MORTGAGE LOAN PURCHASE AGREEMENT
This
is a
Mortgage Loan Purchase Agreement (this “Agreement”), dated as of April 5, 2007,
among FREMONT INVESTMENT & LOAN, a California industrial bank (the
“Responsible Party”), FREMONT GENERAL CORPORATION, a Nevada corporation (the
“Parent”), XXXXXXXXXX SECURITIES, LP, a Delaware limited partnership (the
“Seller”) and STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., a Delaware limited
liability company (the “Purchaser”).
Preliminary
Statement
The
Seller intends to sell the Mortgage Loans (as hereinafter identified) to the
Purchaser on the terms and subject to the conditions set forth in this
Agreement. The Purchaser intends to deposit the Mortgage Loans into a mortgage
pool comprising the Trust Fund. The Trust Fund will be evidenced by a single
series of mortgage pass-through certificates designated as Xxxxxxxxxx Mortgage
Loan Trust, Series 2007-FRE1 Asset-Backed Pass-Through Certificates (the
“Certificates”). The Certificates will consist of eighteen classes of
certificates and will be issued pursuant to a Pooling and Servicing Agreement,
dated as of April 1, 2007 (the “Pooling and Servicing Agreement”), among the
Depositor as depositor, EMC Mortgage Corporation as servicer (the “Servicer”)
and Xxxxx Fargo Bank, N.A. as trustee (the “Trustee”). Capitalized terms used
but not defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
The
parties hereto agree as follows:
SECTION
1 Agreement
to Purchase.
The
Seller agrees to sell and the Purchaser agrees to purchase, on or before April
5, 2007 (the “Closing Date”), certain adjustable-rate and fixed-rate,
interest-only, balloon and fully-amortizing, first lien and second lien,
closed-end, subprime, one- to four- family residential mortgage loans purchased
by the Seller from the Responsible Party (the “Mortgage Loans”), having a
scheduled principal balance as of the close of business on April 1, 2007 (the
“Cut-off Date”) of $1,034,567,380 (the “Closing Balance”), after giving effect
to all payments due on the Mortgage Loans on or before the Cut-off Date, whether
or not received including the right to any Prepayment Charges payable by the
related Mortgagors in connection with any Principal Prepayments on the Mortgage
Loans, on servicing-released basis.
SECTION
2 Mortgage
Loan Schedule.
The
Purchaser and the Seller have agreed upon which of the Mortgage Loans are to
be
purchased by the Purchaser pursuant to this Agreement and the Seller will
prepare or cause to be prepared on or prior to the Closing Date a final schedule
(the “Closing Schedule”) that shall describe such Mortgage Loans and set forth
all of the Mortgage Loans to be purchased under this Agreement, including the
Prepayment Charges. The Closing Schedule will conform to the requirements set
forth in this Agreement and, with respect to the Mortgage Loans subject to
this
Agreement, to the definition of “Mortgage Loan Schedule” under the Pooling and
Servicing Agreement. The Closing Schedule shall be used as part of the Mortgage
Loan Schedule under the Pooling and Servicing Agreement and shall be based
on
information provided by the Originator.
SECTION
3 Consideration.
(a) In
consideration for the Mortgage Loans to be purchased hereunder the Purchaser
shall, as described in Section 8, pay to or upon the order of the Seller in
immediately available funds an amount (the “Aggregate Purchase Price”) equal to
(i) the net sale proceeds of the Class A Certificates and the Mezzanine
Certificates and (ii) the Class CE Certificates and the Class P
Certificates.
(b) The
Purchaser or any assignee, transferee or designee of the Purchaser shall be
entitled to all scheduled payments of principal due after the Cut-off Date,
all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans allocable to the period after the
Cut-off Date. All scheduled payments of principal and interest due on or before
the Cut-off Date and collected after the Cut-off Date shall belong to the
Seller.
(c) Pursuant
to the Pooling and Servicing Agreement, the Purchaser will assign all of its
right, title and interest in and to the Mortgage Loans, together with its rights
under this Agreement, including the Guaranty set forth in Section 20 hereof,
to
the Trustee for the benefit of the Certificateholders.
SECTION
4 Transfer
of the Mortgage Loans.
(a) Possession
of Mortgage Files.
The
Seller does hereby sell, and in connection therewith hereby assigns, to the
Purchaser, effective as of the Closing Date, without recourse but subject to
the
terms of this Agreement, all of its right, title and interest in, to and under
the Mortgage Loans, including the related Prepayment Charges. The contents
of
each Mortgage File not delivered to the Purchaser or to any assignee, transferee
or designee of the Purchaser on or prior to the Closing Date are and shall
be
held in trust by the Seller for the benefit of the Purchaser or any assignee,
transferee or designee of the Purchaser. Upon the sale of the Mortgage Loans,
the ownership of each Mortgage Note, the related Mortgage and the other contents
of the related Mortgage File is vested in the Purchaser and the ownership of
all
records and documents with respect to the related Mortgage Loan prepared by
or
that come into the possession of the Seller on or after the Closing Date shall
immediately vest in the Purchaser and shall be delivered immediately to the
Purchaser or as otherwise directed by the Purchaser.
(b) Delivery
of Mortgage Loan Documents.
The
Seller will, on or prior to the Closing Date, deliver or cause to be delivered
to the Purchaser or any assignee, transferee or designee of the Purchaser each
of the following documents for each Mortgage Loan:
(i) the
original Mortgage Note, endorsed in blank or in the following form “Pay to the
order of Xxxxx Fargo Bank, N.A., as Trustee under the applicable agreement,
without recourse,” with all prior and intervening endorsements showing a
complete chain of endorsement from the originator to the Person so endorsing
to
the Trustee;
(ii) the
original Mortgage with evidence of recording thereon, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power of attorney,
with evidence of recording thereon;
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(iii) an
original Assignment in blank;
(iv) the
original recorded Assignment or Assignments showing a complete chain of
assignment from the originator to the Person assigning the Mortgage to the
Trustee as contemplated by the immediately preceding clause (iii);
(v) the
original or copies of each assumption, modification or substitution agreement,
if any; and
(vi) the
original lender’s title insurance policy or certified copy thereof or, if the
original title policy has not been issued, the irrevocable commitment to issue
the same.
With
respect to a maximum of approximately 2.0% of the Original Mortgage Loans,
by
outstanding principal balance of the Original Mortgage Loans as of the Cut-off
Date, if any original Mortgage Note referred to in Section 4(b)(i) above cannot
be located, the obligations of the Seller to deliver such documents shall be
deemed to be satisfied upon delivery to the Purchaser of a photocopy of such
Mortgage Note, if available, with a lost note affidavit substantially in the
form of Exhibit I attached to the Pooling and Servicing Agreement. If any of
the
original Mortgage Notes for which a lost note affidavit was delivered to the
Purchaser is subsequently located, such original Mortgage Note shall be
delivered to the Purchaser within three Business Days.
If
any of
the documents referred to in Sections 4(b)(ii), (iii) or (iv) above has, as
of
the Closing Date, been submitted for recording but either (x) has not been
returned from the applicable public recording office or (y) has been lost or
such public recording office has retained the original of such document, the
obligations of the Seller to deliver such documents shall be deemed to be
satisfied upon (1) delivery to the Purchaser of a copy of each such document
certified by the Originator in the case of (x) above or the applicable public
recording office in the case of (y) above to be a true and complete copy of
the
original that was submitted for recording and (2) if such copy is certified
by
the Originator, delivery to the Purchaser promptly upon receipt thereof of
either the original or a copy of such document certified by the applicable
public recording office to be a true and complete copy of the original. Notice
shall be provided to the Purchaser, the Trustee and the Rating Agencies by
the
Seller if delivery pursuant to clause (2) above will be made more than 180
days
after the Closing Date. If a certified copy or the original lender’s title
insurance policy was not delivered pursuant to Section 4(b)(vi) above, the
Seller shall deliver or cause to be delivered to the Purchaser, promptly after
receipt thereof, a certified copy or the original lender’s title insurance
policy. The Seller shall deliver or cause to be delivered to the Purchaser
promptly upon receipt thereof any other original documents constituting a part
of a Mortgage File received with respect to any Mortgage Loan, including, but
not limited to, any original documents evidencing an assumption or modification
of any Mortgage Loan.
The
Seller shall (at the expense of the Responsible Party) promptly (within sixty
Business Days following the later of the Closing Date and the date of receipt
by
the Seller of the recording information for a Mortgage, but in no event later
than ninety days following the Closing Date) submit or cause to be submitted
for
recording, at no expense to the Trust Fund, the Trustee or the Purchaser, in
the
appropriate public office for real property records, each Assignment referred
to
in Sections 4(b)(iii) and (iv) above and the Seller shall execute each original
Assignment or cause each original Assignment to be executed in the following
form: “Xxxxx Fargo Bank, N.A., as Trustee under the applicable agreement.” In
the event that any such Assignment is lost or returned unrecorded because of
a
defect therein, the Seller shall promptly prepare or cause to be prepared a
substitute Assignment or cure or cause to be cured such defect, as the case
may
be, and thereafter cause each such Assignment to be duly recorded.
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Notwithstanding
the foregoing, however, for administrative convenience and facilitation of
servicing and to reduce closing costs, the Assignments shall not be required
to
be submitted for recording (except with respect to any Mortgage Loan located
in
Maryland) unless the Trustee or the Purchaser receives notice that such failure
to record would result in a withdrawal or a downgrading by any Rating Agency
of
the rating on any Class of Certificates; provided,
however,
the
Seller shall submit or cause to be submitted each Assignment for recording
in
the manner described above, at the expense of the Responsible Party and at
no
expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i)
written direction by Holders of Certificates entitled to at least 25% of the
Voting Rights, (ii) the occurrence of a Servicer Event of Default, (iii) the
occurrence of a bankruptcy, insolvency or foreclosure relating to the Servicer,
(iv) the occurrence of a servicing transfer as described in Section 7.02 of
the
Pooling and Servicing Agreement, (v) with respect to any one Assignment, the
occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor
under the related Mortgage and (vi) any Mortgage Loan that is 90 days or more
delinquent. Upon receipt of written notice that recording of the Assignments
is
required pursuant to one or more of the conditions set forth in the preceding
sentence, the Seller shall be required to deliver such Assignments or shall
cause such Assignments to be delivered within 30 days following receipt of
such
notice.
Each
original document relating to a Mortgage Loan which is not delivered to the
Purchaser or its assignee, transferee or designee, if held by the Seller, shall
be so held for the benefit of the Purchaser, its assignee, transferee or
designee.
(c) Acceptance
of Mortgage Loans.
The
documents delivered pursuant to Section 4(b) hereof shall be reviewed by the
Purchaser or any assignee, transferee or designee of the Purchaser at any time
before or after the Closing Date (and with respect to each document permitted
to
be delivered after the Closing Date, within seven days of its delivery) to
ascertain that all required documents have been executed and received and that
such documents relate to the Mortgage Loans identified on the Mortgage Loan
Schedule.
(d) Transfer
of Interest in Agreements.
The
Purchaser has the right to assign its interest under this Agreement, in whole
or
in part, to the Trustee, as may be required to effect the purposes of the
Pooling and Servicing Agreement, without the consent of the Seller or the
Responsible Party, and the assignee shall succeed to the rights and obligations
hereunder of the Purchaser. Any expense reasonably incurred by or on behalf
of
the Purchaser or the Trustee in connection with enforcing any obligations of
the
Seller, the Parent or the Responsible Party under this Agreement will be
promptly reimbursed by the Seller, the Parent or the Responsible Party, as
applicable.
(e) Examination
of Mortgage Files.
Prior
to the Closing Date, the Seller shall either (i) deliver in escrow to the
Purchaser, or to any assignee, transferee or designee of the Purchaser for
examination, the Mortgage File pertaining to each Mortgage Loan or (ii) make
such Mortgage Files available to the Purchaser or to any assignee, transferee
or
designee of the Purchaser for examination. Such examination may be made by
the
Purchaser or the Trustee, and their respective designees, upon reasonable notice
to the Seller during normal business hours before the Closing Date and within
60
days after the Closing Date. If any such person makes such examination prior
to
the Closing Date and identifies any Mortgage Loans that do not conform to the
requirements of the Purchaser as described in this Agreement, such Mortgage
Loans shall be deleted from the Closing Schedule. The 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
Purchaser or any person has conducted or has failed to conduct any partial
or
complete examination of the Mortgage Files shall not affect the rights of the
Purchaser or any assignee, transferee or designee of the Purchaser to demand
repurchase or other relief as provided herein or under the Pooling and Servicing
Agreement.
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SECTION
5 Representations,
Warranties and Covenants of the Responsible Party
and the Seller.
(a) The
Responsible Party hereby represents, warrants and covenants, to the Seller
and
the Purchaser, as of the date hereof and as of the Closing Date,
that:
(i) The
Responsible Party is duly organized, validly existing and in good standing
under
the laws of the state of California 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 of each Mortgage Loan;
(ii) The
Responsible Party has the full power and authority to execute, deliver and
perform, and to enter into and consummate, all transactions contemplated by
this
Agreement. The Responsible Party 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
Seller and the Purchaser, constitutes a legal, valid and binding obligation
of
the Responsible Party, enforceable against it in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy, insolvency
or
reorganization;
(iii) The
execution and delivery of this Agreement by the Responsible Party and the
performance of and compliance with the terms of this Agreement which are
applicable to the Responsible Party will not violate the Responsible Party’s
articles of incorporation or bylaws or constitute a default under or result
in a
breach or acceleration of, any material contract, agreement or other instrument
to which the Responsible Party is a party or which may be applicable to the
Responsible Party or its assets;
(iv) The
Responsible Party is not in violation of, and the execution and delivery of
this
Agreement by the Responsible Party 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, except as otherwise set forth in
the
Order (attached hereto as Exhibit 2, the “Order”) or regulation of any
federal, state, municipal or governmental agency having jurisdiction over the
Responsible Party or its assets, which violation will likely have consequences
that would materially and adversely affect the condition (financial or
otherwise) or the operation of the Responsible Party or its assets or might
have
consequences that would materially and adversely affect the enforceability
of
the Mortgage Loans or this Agreement or the performance of its obligations
and
duties hereunder;
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(v) The
Responsible Party does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant of the Responsible
Party
contained in this Agreement;
(vi) Except
as
otherwise set forth in the Order, there are no actions or proceedings against,
or investigations of, pending or, to the best of its knowledge, threatened
the
Responsible Party before any court, administrative or other tribunal (A) that
might prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
is
likely to prohibit or materially and adversely affect the performance by the
Responsible Party of its obligations under, or the validity or enforceability
of, this Agreement
(vii) No
consent, approval, authorization or order of or registration or filing with,
or
notice to any court or governmental agency or body including, without
limitation, the Federal Deposit Insurance Corporation and the California
Department of Financial Institutions, is required for the execution, delivery
and performance by the Responsible Party of, or compliance by the Responsible
Party 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;
(viii) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Responsible Party;
(ix) Neither
this Agreement nor any written statement, report, tape, diskette, form or other
document prepared and furnished or to be furnished by the Responsible Party
pursuant to this Agreement or in connection with the transactions contemplated
hereby contains any untrue statement of material fact; and
(x) The
Responsible Party will not violate the terms and conditions of the Order in
a
manner that materially affects this Agreement, the Mortgage Loans and the
Purchaser’s interest in the Mortgage Loans, and the transaction contemplated by
this Agreement will not cause the Responsible Party to violate the Order.
(b) The
Seller hereby represents and warrants to the Responsible Party and the
Purchaser, as of the date hereof and as of the Closing Date, and covenants,
that:
(i) The
Seller is duly organized, validly existing and in good standing as a limited
partnership under the laws of the State of Delaware with full limited
partnership power and authority to conduct its business as presently conducted
by it to the extent material to the consummation of the transactions
contemplated herein. The Seller has the full limited partnership power and
authority to own the Mortgage Loans and to transfer and convey the Mortgage
Loans to the Purchaser and has the full limited partnership power and authority
to execute and deliver, engage in the transactions contemplated by, and perform
and observe the terms and conditions of this Agreement.
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(ii) The
Seller has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Responsible Party
and
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.
(iii) The
execution, delivery and performance of this Agreement by the Seller (x) does
not
conflict and will not conflict with, does not breach and will not result in
a
breach of and does not constitute and will not constitute a default (or an
event, which with notice or lapse of time or both, would constitute a default)
under (A) any terms or provisions of the certificate of formation or limited
partnership agreement of the Seller, (B) any term or provision of any material
agreement, contract, instrument or indenture, to which the Seller is a party
or
by which the Seller or any of its property is bound or (C) any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or any of its
property and (y) does not create or impose and will not result in the creation
or imposition of any lien, charge or encumbrance which would have a material
adverse effect upon the Mortgage Loans or any documents or instruments
evidencing or securing the Mortgage Loans.
(iv) No
consent, approval, authorization or order of, registration or filing with,
or
notice on behalf of the Seller to any governmental authority or court is
required, under federal laws or the laws of the State of Delaware, for the
execution, delivery and performance by the Seller of, or compliance by the
Seller with, this Agreement or the consummation by the Seller of any other
transaction contemplated hereby; provided, however, that the Seller makes no
representation or warranty regarding federal or state securities laws in
connection with the sale or distribution of the Certificates.
(v) This
Agreement does not contain any untrue statement of material fact or omit to
state a material fact necessary to make the statements contained herein not
misleading. The written statements, reports and other documents furnished by
the
Seller pursuant to this Agreement or in connection with the transactions
contemplated hereby taken in the aggregate do not contain any untrue statement
of material fact or omit to state a material fact necessary to make the
statements contained therein not misleading.
(vi) 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.
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(vii) 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.
(viii) Immediately
prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated,
the Seller will be the owner of the related Mortgage and the indebtedness
evidenced by the related Mortgage Note, and, upon the payment to the Seller
of
the Aggregate Purchase Price, in the event that the Seller retains or has
retained record title, the Seller shall retain such record title to each
Mortgage, each related Mortgage Note and the related Mortgage Files with respect
thereto in trust for the Purchaser as the owner thereof from and after the
date
hereof.
(ix) There
are
no actions or proceedings against, or investigations known to it of, the Seller
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans by the Seller or the consummation of the transactions contemplated by
this
Agreement or (C) that might prohibit or materially and adversely affect the
performance by the Seller of its obligations under, or validity or
enforceability of, this Agreement.
(x) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller are not subject
to the bulk transfer or any similar statutory provisions.
(xi) The
Seller has not dealt with any broker, investment banker, agent or other person,
except for the Purchaser or any of its affiliates, that may be entitled to
any
commission or compensation in connection with the sale of the Mortgage
Loans.
(xii) There
is
no litigation currently pending or, to the best of the Seller’s knowledge
without independent investigation, threatened against the Seller that would
reasonably be expected to adversely affect the transfer of the Mortgage Loans,
the issuance of the Certificates or the execution, delivery, performance or
enforceability of this Agreement, or that would result in a material adverse
change in the financial condition of the Seller.
(xiii) 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.
(xiv) The
Seller makes each of the additional representations and warranties set forth
on
Schedule I hereto.
SECTION
6 Representations
and Warranties of the Responsible Party Relating to the Mortgage
Loans.
The
Responsible Party hereby represents and warrants to the Seller and the Purchaser
that as to each Mortgage Loan as of the Closing Date or as of such other date
as
specified herein:
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(1) The
information set forth in the Mortgage Loan Schedule and the historical
delinquency information described in Item 1100(b) of Regulation AB as provided
in Schedule II hereto related to the Mortgage Pool is complete, true and correct
as of the Cut-off Date;
(2) Each
document or instrument in the related Mortgage File is in a form generally
acceptable to prudent mortgage lenders that regularly originate or purchase
mortgage loans comparable to the Mortgage Loans for sale to prudent investors
in
the secondary market that invest in mortgage loans such as the Mortgage
Loans;
(3) Except
for payments in the nature of Escrow Payments, including without limitation,
taxes and insurance payments, the Originator has not advanced funds, or induced,
solicited or knowingly received any advance of funds from a party other than
the
owner of the related Mortgaged Property, directly or indirectly, for the payment
of any amount required by the Mortgage Note or Mortgage, except for interest
accruing from the date of the Mortgage Note or the date of disbursement of
the
Mortgage proceeds, whichever is greater, to the day which precedes by one month
the Due Date of the first installment of principal and interest. No payment
of
principal and/or interest under the Mortgage Loan has ever been thirty (30)
days
past due, nor has any payment of principal and/or interest under the Mortgage
Loan been more than thirty (30) days past due at any time since origination.
The
first Monthly Payment was or shall be made with respect to the Mortgage Loan
on
its Due Date or within the grace period, all in accordance with the terms of
the
related Mortgage Note;
(4) There
are
no delinquent taxes, ground rents, water and municipal charges, sewer rents,
assessments, fire and hazard insurance premiums, leasehold payments, including
assessments payable in future installments or other outstanding charges
affecting the related Mortgaged Property;
(5) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, recorded, or in the
process of being recorded, in the applicable public recording office if
necessary to maintain the lien priority of the Mortgage, and which have been
delivered or will be delivered to the Trustee on behalf of the Purchaser; the
substance of any such waiver, alteration or modification has been approved
by
the title insurer, to the extent required by the related policy, and is
reflected on the Mortgage Loan Schedule. No instrument of waiver, alteration
or
modification has been executed, and no Mortgagor has been released, in whole
or
in part, except in connection with an assumption agreement approved by the
title
insurer, to the extent required by the policy, and which assumption agreement
has been delivered to the Purchaser and the terms of which are reflected in
the
Mortgage Loan Schedule;
(6) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note and/or
the Mortgage, or the exercise of any right thereunder, render the Mortgage
Note
or the Mortgage unenforceable, in whole or in part, or subject to any right
of
rescission, set-off, counterclaim or defense, including the defense of usury
and
no such right of rescission, set-off, counterclaim or defense has been asserted
with respect thereto and no Mortgagor was a debtor in any state or federal
bankruptcy or insolvency proceeding at the time the Mortgage Loan was
originated;
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(7) All
buildings or other improvements upon the Mortgaged Property are insured by
an
insurer acceptable to prudent lenders in the secondary mortgage market against
loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, pursuant to
insurance policies conforming to the requirements of the Pooling and Servicing
Agreement. All such insurance policies contain a standard mortgagee clause
naming Fremont Investment & Loan, its successors and assigns as mortgagee
and all premiums thereon have been paid. 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
with a generally acceptable insurance carrier, in the amount described in the
Pooling and Servicing Agreement (and to the extent required in the Pooling
and
Servicing Agreement) is in effect. The Mortgage obligates the Mortgagor
thereunder to obtain and 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 obtain and maintain such insurance at Mortgagor’s cost and expense
and to seek reimbursement therefor from the Mortgagor. The hazard insurance
policy is the valid and binding obligation of the insurer, is in full force
and
effect, and will be in full force and effect and inure to the benefit of the
Servicer upon the consummation of the transactions contemplated by this
Agreement. The Originator has not engaged in, and has no knowledge of the
Mortgagor’s having engaged in, any act or omission which would impair the
coverage of any such policy, the benefits of the endorsement provided for
herein, or the validity and binding effect of either, including, without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized by
any
attorney, firm or other person or entity, and no such unlawful items have been
received, retained or realized by the Originator;
(8) Any
and
all requirements of any federal, state or local law including, without
limitation, all applicable predatory and abusive lending laws, usury, truth
in
lending, real estate settlement procedures, consumer credit protection, equal
credit opportunity, fair housing or disclosure laws applicable to the
origination and servicing of mortgage loans of a type similar to the Mortgage
Loans have been complied with and the consummation of the transactions
contemplated hereby will not involve the violation of any such laws or
regulations, and the Originator shall maintain in its possession, available
for
the Purchaser’s inspection, and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements;
(9) 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. Neither the Originator nor the Servicer has waived the performance
by
the Mortgagor of any action, if the Mortgagor’s failure to perform such action
would cause the Mortgage Loan to be in default, nor has the Originator or the
Servicer waived any default resulting from any action or inaction by the
Mortgagor;
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(10) 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 to be a first lien (as reflected on the
Mortgage Loan Schedule), or (B) second lien and second priority security
interest with respect to each Mortgage Loan which is indicated by the Servicer
to be a second lien Mortgage Loan (as reflected on the Mortgage Loan Schedule),
in either case, on the Mortgaged Property, including all buildings and
improvements on the Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems located in or annexed
to such buildings, and all additions, alterations and replacements made at
any
time with respect to the foregoing. The lien of the Mortgage is 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 prudent mortgage lending institutions generally and specifically
referred to in the lender’s title insurance policy delivered to the Responsible
Party by the Originator and which do not adversely affect the 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) a first lien on the
Mortgaged Property with respect to each Mortgage Loan which is indicated by
the
Servicer to be a first lien (as reflected on the Mortgage Loan Schedule) or
a
second lien on the Mortgaged Property with respect to each Mortgage Loan which
is indicated by the Servicer to be a second lien (as reflected on the Mortgage
Loan Schedule). 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 to
be a
first lien (as reflected on the Mortgage Loan Schedule), or (B) second lien
and
second priority security interest with respect to each Mortgage Loan which
is
indicated by the Servicer to be a second lien Mortgage Loan (as reflected on
the
Mortgage Loan Schedule), in either case, on the property described therein
and
the Responsible Party had full right to sell and assign the same to the Seller.
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
(other than subordinate loans originated concurrently therewith);
(11) The
Mortgage Note and the related Mortgage are genuine and each is the legal, valid
and binding obligation of the Mortgagor and enforceable by the Purchaser against
such Mortgagor in accordance with its terms, except only as such enforcement
may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors’ rights generally and by
law;
(12) All
parties to the Mortgage Note, the Mortgage and any other related agreement
had
legal capacity to enter into the Mortgage Loan, to execute and deliver the
Mortgage Note, the Mortgage and any other related agreement and to pledge,
grant
or convey the interest therein purported to be conveyed, and the Mortgage Note,
the Mortgage and any other related agreement have been duly and properly
executed by such parties. The Mortgagor is a natural person;
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(13) The
proceeds of the Mortgage Loan have been fully disbursed to or for the account
of
the Mortgagor and there is no obligation for the Mortgagee to advance additional
funds thereunder and any and all requirements as to completion of any on-site
or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and the recording of the Mortgage have been paid, and the
Mortgagor is not entitled to any refund of any amounts paid or due to the
Mortgagee pursuant to the Mortgage Note or Mortgage;
(14) No
proceeds from any Mortgage Loan were used to purchase single-premium credit
insurance policies;
(15) All
parties which have had any interest in the Mortgage Loan (other than the
Seller), 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 or national banks
having principal offices in such state, 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. All parties which have had any interest in the Mortgage
Loan were in compliance with any and all applicable “doing business” and
licensing requirements of the laws of the state wherein the Mortgaged Property
is located or were not required to be licensed in such state;
(16) On
the
date of its origination and on the Closing Date, the Mortgage Loan was and
is
covered by an American Land Title Association (“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) issued by a title
insurer acceptable to prudent lenders in the secondary mortgage market and
qualified to do business in the jurisdiction where the Mortgaged Property is
located, insuring (subject to the exceptions contained above in Section (10)(a),
(b) and (d)) the Servicer, its successors and assigns as to the first priority
lien or second priority lien, as the case may be, 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 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 Servicer is the sole insured
of
such lender’s title insurance policy, and such lender’s title insurance policy
is valid and remains 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 Originator, has done, by
act
or omission, anything which would impair the coverage of such lender’s title
insurance policy including, without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will
be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Originator;
(17) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and, except with respect to a payment under a
Mortgage Loan that is less than thirty (30) days past due, 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 neither the Originator nor the Servicer nor any other entity involved in
originating or servicing a Mortgage Loan has waived any default, breach,
violation or event of acceleration. With respect to each Mortgage Loan which
is
indicated by the Servicer to be a second lien Mortgage Loan (as reflected on
the
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;
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(18) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could give rise to
such lien) affecting the related Mortgaged Property which are or may be liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(19) As
of the
date of origination of the Mortgage Loan, all improvements which were considered
in determining the Value of the related Mortgaged Property lay wholly within
the
boundaries and building restriction lines of the Mortgaged Property, and no
improvements on adjoining properties encroach upon the Mortgaged
Property;
(20) The
Mortgage Loan was originated by Fremont Investment & Loan or by a savings
and loan association, a savings bank, a commercial bank or similar banking
institution which is supervised and examined by a federal or state authority,
or
by a mortgagee approved as such by the Secretary of HUD. The documents,
instruments and agreements submitted for loan underwriting were not falsified
and contain no untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the information and
statements therein not misleading;
(21) Except
with regards to interest only loans, principal payments on the Mortgage Loan
shall commence (with respect to any newly originated Mortgage Loans) or
commenced no more than sixty days after the proceeds of the Mortgage Loan were
disbursed. The Mortgage Loan bears interest at the Mortgage Rate. With respect
to each Mortgage Loan, the Mortgage Note is payable on the first day of each
month in Monthly Payments, which, in the case of a Fixed-Rate Mortgage Loans,
are sufficient to fully amortize the original principal balance over the
original term thereof, of not more than 30 years, and to pay interest at the
related Mortgage Rate, and, 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 Rate. The Index for each Adjustable-Rate
Mortgage Loan is as defined in the Mortgage Loan Schedule. The Mortgage Note
does not permit negative amortization. No Mortgage Loan is a convertible
Mortgage Loan;
(22) The
origination practices used by the Originator and collection practices used
by
the Servicer with respect to each Mortgage Note and Mortgage have been in all
respects legal, proper, prudent and customary in the mortgage origination and
servicing industry. The Mortgage Loan has been serviced by the Servicer and
any
predecessor servicer in accordance with the terms of the Mortgage Note. With
respect to escrow deposits and Escrow Payments (other than with respect to
each
Mortgage Loan which is indicated by the Servicer to be a second lien Mortgage
Loan and of which the mortgagee under the first lien is collecting Escrow
Payments (as reflected on the Mortgage Loan Schedule)), if any, all such
payments are in the possession of, or under the control of, the Servicer and
there exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. An escrow of funds is
not
prohibited by applicable law with respect to any Mortgage Loan for which such
escrow of funds has been established. All Mortgage Rate adjustments have been
made in strict compliance with state and federal law and the terms of the
related Mortgage Note. If, pursuant to the terms of the Mortgage Note, another
index was selected for determining the Mortgage Rate, the same index was used
with respect to each Mortgage Note which required a new index to be selected,
and such selection did not conflict with the terms of the related Mortgage
Note.
The Originator or an Affiliate executed and delivered any and all notices
required under applicable law and the terms of the related Mortgage Note and
Mortgage regarding the Mortgage Rate and the monthly payment adjustments. Any
interest required to be paid pursuant to state, federal and local law has been
properly paid and credited. No escrow deposits or Escrow Payments or other
charges or payments due the Servicer have been capitalized under any Mortgage
or
the related Mortgage Note and no such escrow deposits or Escrow Payments are
being held by the Servicer for any work on a Mortgaged Property which has not
been completed;
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(23) The
Mortgaged Property is undamaged by waste, earthquake or earth movement,
windstorm, flood, tornado or other casualty, so as to affect adversely the
value
of the Mortgaged Property as security for the Mortgage Loan or the use for
which
the premises were intended and there is no proceeding pending or threatened
for
the total or partial condemnation thereof nor is such a proceeding currently
occurring;
(24) 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 or non-judicial
foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure
on,
or trustee’s sale of, the Mortgaged Property pursuant to the proper procedures,
the holder of the Mortgage Loan will be able to deliver good and merchantable
title to the Mortgaged Property. The Mortgaged Property has not been subject
to
any bankruptcy proceeding or foreclosure proceeding and the Mortgagor has not
filed for protection under applicable bankruptcy laws. There is no homestead
or
other exemption available to the Mortgagor which would materially interfere
with
the right to sell the Mortgaged Property at a trustee’s sale or the right to
foreclose the Mortgage subject to applicable federal and state laws and judicial
precedent with respect to bankruptcy and rights of redemption. The Mortgagor
has
not notified the Originator or the Servicer and neither the Originator nor
the
Servicer has any knowledge of any relief requested or allowed to the Mortgagor
under the Servicemembers Civil Relief Act;
14
(25) The
Mortgage Loan was underwritten in accordance with the underwriting guidelines
of
Fremont Investment & Loan in effect at the time the Mortgage Loan was
originated; and the Mortgage Note and Mortgage are on forms acceptable to
prudent mortgage lending institutions in the secondary market;
(26) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security interest or chattel mortgage referred to
in
(10) above;
(27) The
Mortgage Note is comprised of one original promissory note and each such
promissory note constitutes an “instrument” for purposes of Section 102(a)(47)
of the Uniform Commercial Code;
(28) The
Mortgage File contains an appraisal of the related Mortgaged Property which
(A)
satisfied the standards of prudent mortgage lending institutions, (B) was
conducted generally in accordance with the Fremont Investment & Loan’s
underwriting guidelines and included an assessment of the fair market value
of
the related Mortgaged Property at the time of such appraisal, and (C) was made
and signed, prior to the approval of the Mortgage Loan application, by a
qualified appraiser, duly appointed by the Originator or the Servicer, 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 and who met the minimum qualifications of
prudent mortgage lending institutions. 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;
(29) 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;
(30) No
Mortgage Loan contains provisions pursuant to which Monthly Payments are (a)
paid or partially paid with funds deposited in any separate account established
by the Originator, the Servicer, the Mortgagor, or anyone on behalf of the
Mortgagor, (b) paid by any source other than the Mortgagor or (c) contains
any
other similar provisions which may constitute a “buydown” provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest
feature;
(31) The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by and the Originator has complied with all
applicable law with respect to the making of fixed rate mortgage loans in the
case of Fixed-Rate Mortgage Loans and adjustable rate mortgage loans in the
case
of Adjustable-Rate Mortgage Loans and rescission materials with respect to
Refinanced Mortgage Loans, and such statement is and will remain in the Mortgage
File;
15
(32) No
Mortgage Loan was made in connection with (a) the construction or rehabilitation
of a Mortgaged Property or (b) facilitating the trade-in or exchange of a
Mortgaged Property;
(33) 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. No improvement located on or being part of any
Mortgaged Property is in violation of any applicable zoning law or
regulation;
(34) No
error,
omission, misrepresentation, negligence, fraud or similar occurrence with
respect to the origination, modification or amendment of any Mortgage Loan
has
taken place on the part of any person, including without limitation the
Mortgagor, any appraiser, any builder or developer, or any other party involved
in the origination of the Mortgage Loan or in the application of any insurance
in relation to such Mortgage Loan; provided, however, that the Responsible
Party
shall not be responsible for facts or circumstances pursuant to this subsection
in the event that the Purchaser does not notify the Responsible Party of such
instance within five (5) years of the Closing Date. The Originator has reviewed
all of the documents constituting the Mortgage File and has made such inquiries
as it deems necessary to make and confirm the accuracy of the representations
set forth herein;
(35) Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser or the Purchaser’s
designee) 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 Originator. 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;
(36) Any
principal advances made to the Mortgagor after the date of origination of a
Mortgage Loan but 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
reflected on the Mortgage Loan Schedule. 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 to be a first
lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) or (B) second
lien priority with respect to each Mortgage Loan which is indicated by the
Servicer to be a second lien Mortgage Loan (as reflected on the 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 prudent mortgage lending institutions. The consolidated principal
amount does not exceed the original principal amount of the related Mortgage
Loan;
(37) [Reserved];
(38) Each
Mortgaged Property consists of a fee simple interest in a single parcel of
real
property improved by a Residential Dwelling. If the Residential Dwelling on
the
Mortgaged Property is a condominium unit or a unit in a planned unit development
(other than a de
minimis
planned
unit development) such condominium or planned unit development project meets
the
eligibility requirements of the underwriting guidelines of the
Originator;
16
(39) With
respect to each Mortgage Loan secured by a manufactured home: (A) the
manufactured home is permanently affixed to a foundation which is suitable
for
the soil conditions of the site; (B) all foundations, both perimeter and
interior, have footings that are located below the frost line; (C) any wheels,
axles and trailer hitches are removed from such manufactured home; and (D)
the
related Mortgage Loan is covered under a standard real estate title insurance
policy that identifies the manufactured home as part of the real property and
insures or indemnifies against any loss if the manufactured home is determined
not to be part of the real property;
(40) Each
Mortgage Loan originated in the state of Texas pursuant to Article XVI, Section
50(a)(6) of the Texas Constitution (a “Texas Refinance Loan”) has been
originated in compliance with the provisions of Article XVI, Section 50(a)(6)
of
the Texas Constitution, Texas Civil Statutes and the Texas Finance Code. With
respect to each Texas Refinance Loan that is a Cash-Out Refinancing, the related
Mortgage Loan Documents state that the Mortgagor may prepay such Texas Refinance
Loan in whole or in part without incurring a Prepayment Charge. The Originator
does not collect any such Prepayment Charges in connection with any such Texas
Refinance Loan;
(41) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(42) There
is
no pending action or proceeding directly involving the Mortgaged Property in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with respect
to the Mortgaged Property; and nothing further remains to be done to satisfy
in
full all requirements of each such law, rule or regulation constituting a
prerequisite to use and enjoyment of said property;
(43) The
Originator shall, at its own expense, cause each Mortgage Loan to be covered
by
a “life of loan” tax service contract which is assignable to the Purchaser or
its designee at no cost to the Purchaser or its designee; provided, however,
that if the Originator fails to purchase such tax service contract, the
Originator shall be required to reimburse the Purchaser for all costs and
expenses incurred by the Purchaser in connection with the purchase of any such
tax service contract;
(44) Each
Mortgage Loan is covered by a “life of loan” flood zone service contract which
is assignable to the Purchaser or its designee at no cost to the Purchaser
or
its designee or, for each Mortgage Loan not covered by such flood zone service
contract, the Originator has agreed to purchase such flood zone service
contract;
(45) None
of
the Mortgage Loans are classified as (a) “high cost” loans under the Home
Ownership and Equity Protection Act of 1994 or (b) “high cost,” “threshold,”
“covered” or “predatory” loans under any other applicable federal, state or
local law (including without limitation any regulation or ordinance) (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees);
17
(46) The
Responsible Party has no knowledge of any circumstances or condition with
respect to the Mortgage, the Mortgaged Property, the Mortgagor or the
Mortgagor’s credit standing that can reasonably be expected to cause the
Mortgage Loan to be an unacceptable investment, cause the Mortgage Loan to
become delinquent, adversely affect the value of the Mortgage Loan or to cause
any Mortgage Loan to prepay during any period materially faster or slower than
similar mortgage loans held by the Responsible Party generally secured by
properties in the same geographic area as the related Mortgaged
Property;
(47) The
Servicer and any predecessor servicer with respect to a Mortgage Loan has fully
furnished, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on its borrower credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), on a monthly
basis;
(48) None
of
the Mortgage Loans is subject to a primary mortgage insurance policy;
(49) The
source of the down payment with respect to each Mortgage Loan has been fully
verified by the Originator to the extent set forth in the underwriting
guidelines of the Originator;
(50) With
respect to any first lien Mortgage Loan, the Loan-to-Value Ratio of such
Mortgage Loan at origination was not more than 100% and with respect to any
Mortgage Loan, the combined Loan-to-Value Ratio of such Mortgage Loan at
origination was not more than 100%;
(51) Each
Mortgage Loan constitutes a “qualified mortgage” under Section 860G(a)(3)(A) of
the Code and Treasury Regulation Section 1.860G-2(a)(1);
(52) Each
Mortgage Loan has a valid and original credit score of not less than
500;
(53) No
Mortgage Loan had an original term to maturity of more than thirty (30) years,
unless otherwise set forth in the Mortgage Loan Schedule;
(54) [Reserved];
(55) Each
Mortgagor has a debt-to-income ratio of less than or equal to 60%, unless
otherwise set forth in the Mortgage Loan Schedule;
(56) Each
Mortgage contains a provision for the acceleration of the payment of the unpaid
principal balance of the related Mortgage Loan in the event the related
Mortgaged Property is sold without the prior consent of the mortgagee thereunder
and to the best of the Responsible Party’s knowledge, such provision is
enforceable;
18
(57) With
respect to each Mortgage Loan which is a second lien, (i) the related first
lien
does not provide for 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;
(58) No
Mortgage Loan is a “Specifically Designated National and Blocked Person” as
designated by the Office of Foreign Assets Control or as a person designated
in
Presidential Executive Order 13224 as a person who commits, threatens to commit,
or supports terrorism;
(59) No
Mortgage Loan has a prepayment penalty longer than three years after its
origination. Any prepayment penalty is in an amount equal to or less than the
maximum amount permitted under applicable state law;
(60) The
Mortgage Loan documents with respect to each Mortgage Loan subject to Prepayment
Charges specifically authorizes such Prepayment Charges to be collected and
such
Prepayment Charges are permissible and enforceable in accordance with the terms
of the related Mortgage Loan documents and applicable law (except to the extent
that the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors’ rights
generally or the collectability thereof may be limited due to acceleration
in
connection with a foreclosure);
(61) The
representations and warranties in this Section 6 are applicable to such second
lien Mortgage Loans to the extent that the Fremont Investment & Loan’s
underwriting guidelines and/or procedures related to such representations and
warranties;
(62) The
Mortgaged Property is located in the state identified in the Mortgage Loan
Schedule and consists of a single parcel of real property with a detached single
family residence erected thereon, or a two- to four-family dwelling, or an
individual condominium unit in a low rise condominium project, or an individual
unit in a planned unit development or a de
minimis
planned
unit development which is in each case four stories or less; provided, however,
that any condominium unit, planned unit development, mobile home (double wide
only) or manufactured dwelling shall conform with the applicable requirements
in
the Underwriting Guidelines regarding such dwellings and that no Mortgage Loan
is secured by a single parcel of real property with a cooperative housing
corporation, a log home or, except as specified on the Mortgage Loan Schedule,
a
mobile home erected thereon or by a mixed use property, a property in excess
of
10 acres or other unique property types. As of the date of origination, no
portion of the Mortgaged Property was used for commercial purposes, and since
the date of origination, no portion of the Mortgaged Property has been used
for
commercial purposes; provided, that Mortgaged Properties which contain a home
office shall not be considered as being used for commercial purposes as long
as
the Mortgaged Property has not been altered for commercial purposes and is
not
storing any chemicals or raw materials other than those commonly used for
homeowner repair, maintenance and/or household purposes;
(63) With
respect to Adjustable-Rate Mortgage Loans, the Index set forth in the Mortgage
Note is one-month or six-month LIBOR, unless otherwise set forth in the Mortgage
Loan Schedule;
19
(64) With
respect to each Adjustable-Rate Mortgage Loan, the Mortgage Loan documents
provide that after the related first Adjustment Date, a related Mortgage Loan
may only be assumed if the party assuming such Mortgage Loan meets certain
credit requirements stated in the Mortgage Loan documents;
(65) To
the
best of the Responsible Party’s knowledge, no action, inaction or event has
occurred and no state of facts exists or has existed that has resulted or will
result in the exclusion from, denial of, or defense to coverage under any
insurance policy or bankruptcy bond related to the Mortgage Loans, irrespective
of the cause of such failure of coverage. In connection with the placement
of
any such insurance, no commission, fee, or other compensation has been or will
be received by the Originator or by any officer, director, or employee of the
Originator or any designee of the Originator or any corporation in which the
Originator or any officer, director, or employee had a financial interest at
the
time of placement of such insurance;
(66) With
respect to each Mortgage, the Originator or its Affiliate has within the last
twelve months (unless such Mortgage was originated within such twelve month
period) analyzed the required Escrow Payments for each Mortgage and adjusted
the
amount of such payments so that, assuming all required payments are timely
made,
any deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance with
RESPA and any other applicable law;
(67) As
to
each consumer report (as defined in the Fair Credit Reporting Act, Public Law
91-508) or other credit information furnished by the Originator to the
Purchaser, that the Originator has full right and authority and is not precluded
by law or contract from furnishing such information to the
Purchaser;
(68) If
the
Mortgage Loan is secured by a long-term residential lease, (1) the lessor under
the lease holds a fee simple interest in the land; (2) the terms of such lease
expressly permit the mortgaging of the leasehold estate, the assignment of
the
lease without the lessor’s consent and the acquisition by the holder of the
Mortgage of the rights of the lessee upon foreclosure or assignment in lieu
of
foreclosure or provide the holder of the Mortgage with substantially similar
protections; (3) the terms of such lease do not (a) allow the termination
thereof upon the lessee’s default without the holder of the Mortgage being
entitled to receive written notice of, and opportunity to cure, such default,
(b) allow the termination of the lease in the event of damage or destruction
as
long as the Mortgage is in existence, (c) prohibit the holder of the Mortgage
from being insured (or receiving proceeds of insurance) under the hazard
insurance policy or policies relating to the Mortgaged Property or (d) permit
any increase in rent other than pre-established increases set forth in the
lease; (4) the original term of such lease is not less than 15 years; (5) the
term of such lease does not terminate earlier than five years after the maturity
date of the Mortgage Note; and (6) the Mortgaged Property is located in a
jurisdiction in which the use of leasehold estates in transferring ownership
in
residential properties is a generally accepted practice;
(69) The
Mortgage Note and Mortgage are on forms acceptable to prudent mortgage lending
institutions, if available, and neither the Originator nor any Affiliate has
made any representations to a Mortgagor that are inconsistent with the mortgage
instruments used;
20
(70) Each
of
the Originator and its Affiliates has complied with all applicable anti-money
laundering laws and regulations, including, without limitation, the USA Patriot
Act of 2001;
(71) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such terms
are defined in the then current Standard & Poor’s LEVELS® Glossary which is
now Version 5.7, Appendix E attached hereto as Exhibit 1);
(72) No
mortgage loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act.
SECTION
7 Repurchase
Obligation for Defective Documentation and for Breach of Representation and
Warranty.
(a) The
representations and warranties contained in Section 6 shall not be impaired
by
any review and examination of Mortgage Files or any failure on the part of
the
Seller or the Purchaser to review or examine such documents and shall inure
to
the benefit of any assignee, transferee or designee of the Purchaser, including
the Trustee for the benefit of holders of the Certificates. With respect to
the
representations and warranties contained herein that are made to the knowledge
or the best knowledge of the Responsible Party or as to which the Responsible
Party has no knowledge, if it is discovered that the substance of any such
representation and warranty is inaccurate and the inaccuracy materially and
adversely affects the value of the related Mortgage Loan, or the interest
therein of the Purchaser or the Purchaser’s assignee, designee or transferee,
then notwithstanding the Responsible Party’s lack of knowledge with respect to
the substance of such representation and warranty being inaccurate at the time
the representation and warranty was made, such inaccuracy shall be deemed a
breach of the applicable representation and warranty and the Responsible Party
shall take such action described in the following paragraphs in respect of
such
Mortgage Loan.
Upon
discovery by the Seller, the Purchaser or any assignee, transferee or designee
of the Purchaser of any materially defective document in, or that any material
document was not transferred by or at the direction of the Seller (as listed
on
the Trustee’s Preliminary Exception Report) as part of any Mortgage File, or of
a breach of any of the representations and warranties contained in Section
6
that materially and adversely affects the value of any Mortgage Loan or the
interest therein of the Purchaser or the Purchaser’s assignee, transferee or
designee, the party discovering such breach shall give prompt written notice
to
the Seller (in the case of a missing document) or the Responsible Party and
the
Seller (in the case of a breach of any of the representations and warranties
contained in Section 6). Within sixty (60) days of its discovery or its receipt
of notice of any such missing documentation that was not transferred to the
Purchaser as described above, or of materially defective documentation, or
of
any such breach of a representation and warranty, the Responsible Party or
the
Seller (or their related designee), as applicable, promptly shall deliver such
missing document or cure such defect or breach in all material respects or,
in
the event the Responsible Party or the Seller (or their related designee) cannot
deliver such missing document or cannot cure such defect or breach, the
Responsible Party or the Seller, as applicable, shall, within ninety (90) days
of its discovery or receipt of notice, either (i) repurchase the affected
Mortgage Loan at the Purchase Price or (ii) pursuant to the provisions of the
Pooling and Servicing Agreement, cause the removal of such Mortgage Loan from
the Trust Fund and substitute one or more Qualified Substitute Mortgage Loans.
The Responsible Party or the Seller, as applicable, shall amend the Closing
Schedule to reflect the withdrawal of such Mortgage Loan from the terms of
this
Agreement and the Pooling and Servicing Agreement. The Responsible Party or
the
Seller, as applicable, shall deliver to the Purchaser such amended Closing
Schedule and shall deliver such other documents as are required by this
Agreement or the Pooling and Servicing Agreement within five (5) days of any
such amendment. Any repurchase pursuant to this Section 7(a) shall be
accomplished by transfer to an account designated by the Purchaser of the amount
of the Purchase Price in accordance with Section 2.03 of the Pooling and
Servicing Agreement. Any repurchase required by this Section shall be made
in a
manner consistent with Section 2.03 of the Pooling and Servicing
Agreement.
21
Notwithstanding
the foregoing, within 90 days of the earlier of discovery by the Responsible
Party or receipt of notice by the Responsible Party of the breach of the
representation of the Responsible Party set forth in Section 6(59) above which
materially and adversely affects the interests of the Holders of the Class
P
Certificates in any Prepayment Charge, the Responsible Party shall pay the
amount of the scheduled Prepayment Charge, for the benefit of the Holders of
the
Class P Certificates by remitting such amount to the Servicer for deposit into
the Custodial Account, net of any amount previously collected by the Servicer
or
paid by the Servicer, for the benefit of the Holders of the Class P Certificates
in respect of such Prepayment Charge.
(b) Notwithstanding
the foregoing, with respect to an alleged breach of a representation and
warranty which breach is covered by a title insurance policy, the Purchaser
shall use reasonable efforts to enforce the provisions of any related title
insurance policy prior to seeking a remedy against the Responsible Party or
the
Seller hereunder.
(c) It
is
understood and agreed that the obligations of the Responsible Party or the
Seller set forth in this Section 7 to cure or repurchase a defective Mortgage
Loan constitute the sole remedies of the Purchaser against the Responsible
Party
or the Seller respecting a missing document or a breach of the representations
and warranties contained in Section 6.
SECTION
8 Closing;
Payment for the Mortgage Loans.
The
closing of the purchase and sale of the Mortgage Loans shall be held at the
New
York City office of Mayer, Brown, Xxxx & Maw LLP at 10:00 a.m. New York City
time on the Closing Date.
The
closing shall be subject to each of the following conditions:
(a) All
of
the representations and warranties of the Seller and the Responsible Party
under
this Agreement shall be true and correct in all material respects as of the
date
as of which they are made and no event shall have occurred which, with notice
or
the passage of time, would constitute a default under this
Agreement;
(b) The
Purchaser shall have received, or the attorneys of the Purchaser shall have
received in escrow (to be released from escrow at the time of closing), all
Closing Documents as specified in Section 9 of this Agreement, in such forms
as
are agreed upon and acceptable to the Purchaser, duly executed by all
signatories other than the Purchaser as required pursuant to the respective
terms thereof;
22
(c) The
Seller shall have delivered or caused to be delivered and released to the
Purchaser or to its designee, all documents (including without limitation,
the
Mortgage Loans) required to be so delivered by the Purchaser pursuant to Section
2.01 of the Pooling and Servicing Agreement; and
(d) All
other
terms and conditions of this Agreement and the Pooling and Servicing Agreement
shall have been complied with.
Subject
to the foregoing conditions, the Purchaser shall deliver or cause to be
delivered to the Seller on the Closing Date, against delivery and release by
the
Seller to the Trustee of all documents required pursuant to the Pooling and
Servicing Agreement, the consideration for the Mortgage Loans as specified
in
Section 3 of this Agreement, by delivery to the Seller of the Aggregate Purchase
Price.
SECTION
9 Closing
Documents.
Without
limiting the generality of Section 8 hereof, the closing shall be subject to
delivery of each of the following documents:
(a) An
Officer’s Certificate of the Seller, dated the Closing Date, in form
satisfactory to and upon which the Purchaser and Bear, Xxxxxxx & Co., Inc.
(the “Representative”) may rely, and attached thereto copies of the certificate
of formation, limited liability company agreement and certificate of good
standing of the Seller;
(b) An
Opinion of Counsel of the Seller, dated the Closing Date, in form satisfactory
to and addressed to the Purchaser and the Representative;
(c) An
Officer’s Certificate of the Responsible Party, dated the Closing Date, in form
satisfactory to and upon which the Purchaser and the Representative may rely,
and attached thereto copies of the certificate of incorporation, by-laws and
certificate of good standing of the Responsible Party;
(d) An
Opinion of Counsel of the Responsible Party, dated the Closing Date, in form
satisfactory to and addressed to the Purchaser and the
Representative;
(e) Such
opinions of counsel as the Rating Agencies or the Trustee may request in
connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or
the Seller’s execution and delivery of, or performance under, this
Agreement;
(f) A
letter
from Deloitte & Touche LLP, certified public accountants, to the effect that
they have performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature set forth in the Purchaser’s prospectus supplement for Series 2007-FRE1,
dated April 4, 2007 (the “Prospectus Supplement”) relating to the Offered
Certificates contained under the captions “Summary—The Mortgage Pool,” “Legal
Proceedings,” “Risk Factors,” (to the extent of information concerning the
Mortgage Loans contained therein) and “Description of the Mortgage Pool” agrees
with the records of the Originator; and
(g) Such
further information, certificates, opinions and documents as the Purchaser
or
the Representative may reasonably request.
23
SECTION
10 Costs.
The
Seller shall pay (or shall reimburse the Purchaser or any other Person to the
extent that the Purchaser or such other Person shall pay) all 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 and, except as set forth in Section 4(b), the fees for
recording Assignments.
The
Seller shall pay (or shall reimburse the Purchaser or any other Person to the
extent that the Purchaser or such other Person shall pay) the fees and expenses
of the Seller’s accountants and attorneys, the costs and expenses incurred in
connection with producing the Servicer’s or any Subservicer’s loan loss,
foreclosure and delinquency experience, the costs and expenses incurred in
connection with obtaining the documents referred to in Section 9, the costs
and
expenses of printing (or otherwise reproducing) and delivering this Agreement,
the Pooling and Servicing Agreement, the Certificates, the prospectus and
Prospectus Supplement, and any private placement memorandum relating to the
Certificates and other related documents, the initial fees, costs and expenses
of the Trustee, the fees and expenses of the Purchaser’s counsel in connection
with the preparation of all documents relating to the securitization of the
Mortgage Loans, the filing fee charged by the Securities and Exchange Commission
for registration of the Certificates, the cost of outside special counsel that
may be required by the Originator and the fees charged by any rating agency
to
rate the Certificates. All other costs and expenses in connection with the
transactions contemplated hereunder shall be borne by the party incurring such
expense.
SECTION
11 Transfer
of Servicing Rights.
From
and after the date hereof, the Purchaser shall and does hereby recognize that
the Responsible Party will transfer (a) all rights to service such Mortgage
Loan; (b) any payments or monies payable or received for servicing such Mortgage
Loan, and all rights to receive such payments or monies, including any
additional servicing compensation (including without limitation any late fees,
assumption fees, penalties (but not including any prepayment penalties) or
similar payments with respect to such Mortgage Loan, fees and income associated
with the sale, administration or collection of premiums with respect to
insurance policies related to such Mortgage Loan, and any interest income
customarily received or retained by a servicer in respect of any payments or
other receipts on or with respect to such Mortgage Loan); (c) all rights to
collect, hold and disburse escrow payments or other similar payments with
respect to such Mortgage Loan, and to receive interest income on such amounts
to
the extend permitted by applicable laws; (d) all accounts and other rights
to
payment related to any of the property described in this paragraph; (e) all
rights to possess and use the documents relating to such Mortgage Loan required
to be delivered to Purchaser pursuant to this Agreement; and (f) all rights,
powers and privileges incident to any of the foregoing (collectively, the
“Servicing Rights”) to the Servicer pursuant to the Mortgage Loan Servicing
Rights and Interim Servicing Agreement, dated as of April 1, 2007 (the
“Servicing Rights Purchase Agreement”) and hereby consents to the transfer of
the Servicing Rights to the Servicer. The Purchase hereby acknowledges and
agrees that from and after the date hereof the Purchaser shall look solely
to
the Servicer for performance of any obligations of the Responsible Party with
respect to the servicing of the Mortgage Loans except as specifically set forth
herein.
SECTION
12 Indemnification.
The
Responsible Party shall indemnify and hold harmless each of (i) the Purchaser,
(ii) the Underwriters, (iii) the Person, if any, to which the Purchaser assigns
its rights in and to a Mortgage Loan and each of their respective successors
and
assigns and (iv) each person, if any, who controls the Purchaser within the
meaning of Section 15 of the Securities Act of 1933, as amended (the “1933 Act”)
((i) through (iv) collectively, the “Indemnified Party”) against any and all
losses, claims, expenses, damages or liabilities to which the Indemnified Party
may become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, expenses, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (a) any untrue statement or alleged untrue statement
of
any material fact contained in the Prospectus Supplement or any private
placement memorandum relating to the offering by the Purchaser or an affiliate
thereof, of the Class M-9 Certificates, Class M-10 Certificates, Class CE
Certificates or the Class P Certificates, or the omission or the alleged
omission to state therein the material fact necessary in order to make the
statements therein not misleading, in each case to the extent, but only to
the
extent, that such untrue statement or alleged untrue statement or omission
or
alleged omission was made in reliance upon and in conformity with (i)
information furnished in writing to the Purchaser or any of its affiliates
by
the Responsible Party or any of its affiliates specifically for use therein,
which shall include, with respect to the Prospectus Supplement, the information
set forth under the captions “Summary—The Mortgage Pool,” “Legal Proceedings,”
and “Description of The Mortgage Pool—The Originator” and, with respect to any
private placement memorandum, any information of a comparable nature, or (ii)
the data tapes dated December 13, 2006 and January 5, 2007, or any
modifications, corrections or revisions thereto, containing information with
respect to the Mortgage Loans as transmitted by modem to the Purchaser by the
Responsible Party or any of its affiliates (as such transmitted information
may
have been amended in writing by the Responsible Party or any of its affiliates
with the written consent of the Purchaser subsequent to such transmission),
(b)
any representation, warranty or covenant made by the Responsible Party or any
affiliate of the Responsible Party herein, on which the Purchaser has relied,
being, or alleged to be, untrue or incorrect or (c) any updated collateral
information provided by any Underwriter to a purchaser of the Certificates
derived from the data contained in clause (ii) and the current collateral tape
obtained from the Responsible Party or an affiliate of the Responsible Party
on
March 27, 2007, including the current Stated Principal Balances of the Mortgage
Loans; provided, however, that to the extent that any such losses, claims,
expenses, damages or liabilities to which the Indemnified Party may become
subject arise out of or are based upon both (1) statements, omissions,
representations, warranties or covenants of the Seller described in clause
(a),
(b) or (c) above and (2) any other factual basis, the Seller shall indemnify
and
hold harmless the Indemnified Party only to the extent that the losses, claims,
expenses, damages, or liabilities of the person or persons asserting the claim
are determined to rise from or be based upon matters set forth in clause (1)
above and do not result from the gross negligence or willful misconduct of
such
Indemnified Party. This indemnity shall be in addition to any liability that
the
Seller may otherwise have.
24
SECTION
13 Intent
of the Parties, Mandatory Delivery; Grant of Security Interest.
The
sale of the Mortgage Loans as contemplated hereby is absolute and is intended
by
both the Seller and the Purchaser to constitute a sale of the such Mortgage
Loans by the Seller to the Purchaser.
The
sale
and delivery on the Closing Date of the Mortgage Loans described on the Mortgage
Loan Schedule in accordance with the terms and conditions of this Agreement
is
mandatory. It is 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 Purchaser for the losses and damages
incurred by the Purchaser in the event of the Seller’s failure to deliver the
Mortgage Loans on or before the Closing Date. The Seller hereby grants to the
Purchaser a lien on and a continuing security interest in the Seller’s interest
in each 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 Purchaser, subject to the Purchaser’s (i) right, prior to the Closing
Date, to reject any Mortgage Loan to the extent permitted by this Agreement,
and
(ii) obligation to deliver or cause to be delivered the consideration for the
Mortgage Loans pursuant to Section 8 hereof. Any Mortgage Loans rejected by
the
Purchaser shall concurrently therewith be released from the security interest
created hereby. 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.
25
Notwithstanding
the foregoing, if on the Closing Date, each of the conditions set forth in
Section 8 hereof shall have been satisfied and the Purchaser shall not have
paid
or caused to be paid the Aggregate Purchase Price, or any such condition shall
not have been waived or satisfied and the Purchaser determines not to pay or
cause to be paid the Aggregate Purchase Price, the Purchaser shall immediately
effect the re-delivery of the Mortgage Loans, if delivery to the Purchaser
has
occurred, and the security interest created by this Section 13 shall be deemed
to have been released.
SECTION
14 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by fax and, receipt of which
is
confirmed by telephone, if to the Purchaser, addressed to Stanwich Asset
Acceptance Company, L.L.C., Seven Greenwich Office Park, 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000 (Telecopy: (212-272-7206)), Attention: Xxxxxx
Xxxxx; or such other address as may hereafter be furnished to the Parent,
Responsible Party and the Seller in writing by the Purchaser; if to the
Responsible Party, addressed to the Responsible Party at 0000 Xxxx Xxxxxxxx
Xxxxxxx, Xxxx, Xxxxxxxxxx 00000, or such other address as may hereafter be
furnished to the Parent, Seller and the Purchaser in writing by the Responsible
Party; if to the Parent, addressed to the Parent at 0000 Xxxxxxx Xxxxxxxxx,
0xx
Xxxxx,
Xxxxx Xxxxxx, Xxxxxxxxxx 00000, or such other address as may hereafter be
furnished to the Responsible Party, Seller and the Purchaser in writing by
the
Parent; if to the Seller, addressed to the Seller at Xxxxxxxxxx Securities,
LP,
Seven Greenwich Office Park, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000 (Telecopy: (212-272-7206)), Attention: Xxxxx X. Xxxx, or to such other
address as the Seller may designate in writing to the Parent, Purchaser and
the
Responsible Party.
SECTION
15 Severability
of Provisions.
Any
part, provision, representation or warranty of this Agreement that is prohibited
or that 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 that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any 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.
26
SECTION
16 Agreement
of Parties.
The
Seller, the Responsible Party and the Purchaser each agree to execute and
deliver such instruments and take such actions as either of the others may,
from
time to time, reasonably request in order to effectuate the purpose and to
carry
out the terms of this Agreement and the Pooling and Servicing
Agreement.
SECTION
17 Survival.
a) The
Seller agrees that the representations, warranties and agreements made by it
herein and in any certificate or other instrument delivered pursuant hereto
shall be deemed to be relied upon by the Purchaser, notwithstanding any
investigation heretofore or hereafter made by the Purchaser or on its behalf,
and that the representations, warranties and agreements made by the Seller
herein or in any such certificate or other instrument shall survive the delivery
of and payment for the Mortgage Loans and shall continue in full force and
effect, notwithstanding any restrictive or qualified endorsement on the Mortgage
Notes and notwithstanding subsequent termination of this Agreement, the Pooling
and Servicing Agreement or the Trust Fund.
(b) The
Responsible Party agrees that the representations, warranties and agreements
made by it herein and in any certificate or other instrument delivered pursuant
hereto shall be deemed to be relied upon by the Seller and the Purchaser,
notwithstanding any investigation heretofore or hereafter made by the Seller
or
the Purchaser or on the behalf of either of them, and that the representations,
warranties and agreements made by the Responsible Party herein or in any such
certificate or other instrument shall continue in full force and effect,
notwithstanding subsequent termination of this Agreement, the Pooling and
Servicing Agreement or the Trust Fund.
SECTION
18 GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
SECTION
19 Miscellaneous.
This
Agreement may be executed in two or more counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute one and the same instrument. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof. Neither this Agreement
nor
any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement
of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage Loans
by the Seller to the Purchaser as provided in Section 4 hereof be, and be
construed as, a sale of the Mortgage Loans by the Seller to the Purchaser and
not as a pledge of the Mortgage Loans by the Seller to the Purchaser to secure
a
debt or other obligation of the Seller. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage Loans
are
held to be property of the Seller, then (a) it is the express intent of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to the Purchaser to secure a debt or other obligation of the Seller
and
(b) (1) this Agreement shall also be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the New York Uniform Commercial Code; (2)
the
conveyance provided for in Section 4 hereof shall be deemed to be a grant by
the
Seller to the Purchaser of a security interest in all of the Seller’s right,
title and interest in and to the Mortgage Loans and all amounts payable to
the
holders of the Mortgage Loans in accordance with the terms thereof and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation
all amounts, other than investment earnings, from time to time held or invested
in the Custodial Account whether in the form of cash, instruments, securities
or
other property; (3) the possession by the Purchaser or its agent of Mortgage
Notes, the related Mortgages and such other items of property that constitute
instruments, money, negotiable documents or chattel paper shall be deemed to
be
“possession” by the secured party for purposes of perfecting the security
interest pursuant to the New York Uniform Commercial Code; and (4) notifications
to persons holding such property and acknowledgments, receipts or confirmations
from persons holding such property shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser for the purpose of perfecting
such security interest under applicable law. Any assignment of the interest
of
the Purchaser pursuant to Section 4(d) hereof shall also be deemed to be an
assignment of any security interest created hereby. The Seller and the Purchaser
shall, to the extent consistent with this Agreement, take such actions as may
be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to be
a
perfected security interest of first priority under applicable law and will
be
maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement.
27
SECTION
20 Guaranty.
The
Parent hereby absolutely, unconditionally and irrevocably guarantees to the
Purchaser, the full and prompt payment and performance by the Responsible Party,
of any and all obligations of the Responsible Party under this Agreement and
the
Pooling and Servicing Agreement. The Parent agrees that its obligations pursuant
to this Section 20 shall be a continuing, absolute and unconditional guarantee
of the full and punctual payment and performance by the Responsible Party of
its
obligations under this Agreement and the Pooling and Servicing Agreement and
is
in no way conditioned upon any requirement that the Purchaser first attempt
to
collect any of its obligations from the Responsible Party without regard to
(a)
the validity, regularity or enforceability of this Agreement and the Pooling
and
Servicing Agreement; (b) the absence of any action to enforce the same; (c)
any
waiver or consent by the Purchaser concerning any provisions hereof; (d) the
rendering of any judgment against the Responsible Party or any action to enforce
the same; (e) any defense, set-off, counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted
by
the Responsible Party against the Purchaser; or (f) any other circumstances
that
might otherwise constitute a legal or equitable discharge of a guarantor or
a
defense of a guarantor. The Parent hereby guarantees that payments hereunder
will be paid to the Purchaser immediately upon demand therefor without set-off
or counterclaim in accordance with the wiring instructions of the Purchaser.
The
Parent waives diligence, presentment, protest, demand for payment and notice
of
default or nonpayment to or upon the Responsible Party with respect to the
obligations of the Responsible Party under this Agreement and the Pooling and
Servicing Agreement. This Section 20 shall survive the termination of this
Agreement and the Pooling and Servicing Agreement and shall continue to be
effective if the Responsible Party merges or consolidates with or into another
entity, loses its separate legal identity or ceases to exist.
28
SECTION
21 Representations
Warranties and Covenants of the Parent.
The
Parent represents, warrants and covenants to the Purchaser as of the date hereof
that the representations, warranties and covenants set forth in Schedule III
hereto are true and correct in all material respects.
The
Parent shall indemnify the Purchaser and hold it harmless against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from,
a
breach of the Parent’s representations and warranties, respectively, contained
in this Section
21.
It is
understood and agreed that the obligations of the Parent set forth in this
Section
21
to
indemnify the Purchaser as provided in this Section
21
constitute the sole remedies of the Purchaser respecting a breach of the
foregoing representations and warranties.
SECTION
22 Additional
Obligations.
The
Responsible Party covenants and agrees to perform each of its obligations set
forth in the Regulation AB Addendum attached hereto as Exhibit
3.
[Signatures
follow]
29
IN
WITNESS WHEREOF, the Purchaser, the Seller, the Responsible Party and the Parent
have caused their names to be signed by their respective officers thereunto
duly
authorized as of the date first above written.
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C., as Purchaser
By:
/s/
Xxxxx X.
Xxxx
Name: Xxxxx X. Xxxx
Title: President
XXXXXXXXXX
SECURITIES, LP, as Seller
By:
Xxxxxxxxxx Capital Management, LLC,
as
its
general partner
By:
/s/ Xxxxx X.
Xxxx
Name:
Xxxxx X. Xxxx
|
Title:
President
|
FREMONT
INVESTMENT & LOAN, as Responsible Party
By:
/s/
Xxxx
Xxxxxxxxxxx
Name:
Xxxx Xxxxxxxxxxx
Title:
Senior Vice President
FREMONT
GENERAL CORPORATION, as Parent
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Senior Vice President, Secretary
S-1
Schedule
I
The
Seller hereby represents, warrants, and covenants to the Purchaser as follows
on
the Closing Date and on each Distribution Date thereafter:
General
1. This
Agreement creates a valid and continuing security interest (as defined in the
applicable Uniform Commercial Code (“UCC”)) in the Mortgage Loans in favor of
the Purchaser which security interest is prior to all other liens, and is
enforceable as such as against creditors of and purchasers from the
Seller.
2. The
Mortgage Loans constitute “general intangibles” or “instruments” within the
meaning of the applicable UCC.
3. The
Custodial Account and all subaccounts thereof constitute either a deposit
account or a securities account.
4. To
the
extent that payments and collections received or made with respect to the
Mortgage Loans constitute securities entitlements, such payments and collections
have been and will have been credited to the Custodial Account. The securities
intermediary for the Custodial Account has agreed to treat all assets credited
to the Custodial Account as “financial assets” within the meaning of the
applicable UCC.
Creation
5. The
Seller owns and has good and marketable title to the Mortgage Loans free and
clear of any lien, claim or encumbrance of any Person, excepting only liens
for
taxes, assessments or similar governmental charges or levies incurred in the
ordinary course of business that are not yet due and payable or as to which
any
applicable grace period shall not have expired, or that are being contested
in
good faith by proper proceedings and for which adequate reserves have been
established, but only so long as foreclosure with respect to such a lien is
not
imminent and the use and value of the property to which the lien attaches is
not
impaired during the pendency of such proceeding.
6. The
Seller has received all consents and approvals to the sale of the Mortgage
Loans
hereunder to the Purchaser required by the terms of the Mortgage Loans that
constitute instruments.
7. To
the
extent the Custodial Account or subaccounts thereof constitute securities
entitlements, certificated securities or uncertificated securities, the Seller
has received all consents and approvals required to transfer to the Purchaser
its interest and rights in the Custodial Account hereunder.
Perfection
8. The
Seller has caused or will have caused, within ten days after the effective
date
of this Agreement, the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable law
in
order to perfect the sale of the Mortgage Loans from the Seller to the Purchaser
and the security interest in the Mortgage Loans granted to the Purchaser
hereunder.
Schedule
I-1
9. With
respect to the Custodial Account and all subaccounts that constitute deposit
accounts, either:
(i) the
Seller has delivered to the Purchaser a fully-executed agreement pursuant to
which the bank maintaining the deposit accounts has agreed to comply with all
instructions originated by the Purchaser directing disposition of the funds
in
the Custodial Account without further consent by the Seller; or
(ii) the
Seller has taken all steps necessary to cause the Purchaser to become the
account holder of the Custodial Account.
10. With
respect to the Custodial Account or subaccounts thereof that constitute
securities accounts or securities entitlements, either:
(i) the
Seller has caused or will have caused, within ten days after the effective
date
of this Agreement, the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable law
in
order to perfect the security interest in the Custodial Account granted by
the
Seller to the Purchaser; or
(ii) the
Seller has delivered to the Purchaser a fully-executed agreement pursuant to
which the securities intermediary has agreed to comply with all instructions
originated by the Purchaser relating to the Custodial Account without further
consent by the Purchaser; or
(iii) the
Seller has taken all steps necessary to cause the securities intermediary to
identify in its records the Purchaser as the person having a security
entitlement against the securities intermediary in the Custodial
Account.
Priority
11. Other
than the transfer of the Mortgage Loans to the Purchaser pursuant to this
Agreement, the Seller has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Mortgage Loans. The Seller has
not
authorized the filing of, or is not aware of any financing statements against
the Seller that include a description of collateral covering the Mortgage Loans
other than any financing statement relating to the security interest granted
to
the Purchaser hereunder or that has been terminated.
12. The
Seller is not aware of any judgment, ERISA or tax lien filings against the
Seller.
13. The
Trustee has in its possession all original copies of the Mortgage Notes that
constitute or evidence the Mortgage Loans. To the Seller’s knowledge, none of
the instruments that constitute or evidence the Mortgage Loans has any marks
or
notations indicating that they have been pledged, assigned or otherwise conveyed
to any Person other than the Purchaser or its designee. All financing statements
filed or to be filed against the Seller in favor of the Purchaser in connection
herewith describing the Mortgage Loans contain a statement to the following
effect: “A purchase of or security interest in any collateral described in this
financing statement will violate the rights of the Purchaser.”
Schedule
I-2
14. Neither
the Custodial Account nor any subaccount thereof is in the name of any person
other than the Seller or the Purchaser or in the name of its nominee. The Seller
has not consented for the securities intermediary of the Custodial Account
to
comply with entitlement orders of any person other than the Purchaser or its
designee.
15. Survival
of Perfection Representations.
Notwithstanding any other provision of this Agreement or any other transaction
document, the Perfection Representations contained in this Schedule shall be
continuing, and remain in full force and effect (notwithstanding any replacement
of the Servicer or termination of the Servicer’s rights to act as such) until
such time as all obligations under this Agreement have been finally and fully
paid and performed.
16. No
Waiver.
The
parties to this Agreement (i) shall not, without obtaining a confirmation of
the
then-current rating of the Certificates waive any of the Perfection
Representations, and (ii) shall provide the Rating Agencies with prompt written
notice of any breach of the Perfection Representations, and shall not, without
obtaining a confirmation of the then-current rating of the Certificates (as
determined after any adjustment or withdrawal of the ratings following notice
of
such breach) waive a breach of any of the Perfection
Representations.
17. Seller
to Maintain Perfection and Priority.
The
Seller covenants that, in order to evidence the interests of the Seller and
the
Purchaser under this Agreement, the Seller shall take such action, or execute
and deliver such instruments (other than effecting a Filing (as defined below),
unless such Filing is effected in accordance with this paragraph) as may be
necessary or advisable (including, without limitation, such actions as are
requested by the Purchaser) to maintain and perfect, as a first priority
interest, the Purchaser’s security interest in the Mortgage Loans. The Seller
shall, from time to time and within the time limits established by law, prepare
and present to the Purchaser or its designee to authorize (based in reliance
on
the Opinion of Counsel hereinafter provided for) the Seller to file, all
financing statements, amendments, continuations, initial financing statements
in
lieu of a continuation statement, terminations, partial terminations, releases
or partial releases, or any other filings necessary or advisable to continue,
maintain and perfect the Purchaser’s security interest in the Mortgage Loans as
a first-priority interest (each a “Filing”). The Seller shall present each such
Filing to the Purchaser or its designee together with (x) an Opinion of Counsel
to the effect that such Filing is (i) consistent with the grant of the security
interest to the Purchaser pursuant to Section 19 of this Agreement, (ii)
satisfies all requirements and conditions to such Filing in this Agreement
and
(iii) satisfies the requirements for a Filing of such type under the Uniform
Commercial Code in the applicable jurisdiction (or if the Uniform Commercial
Code does not apply, the applicable statute governing the perfection of security
interests), and (y) a form of authorization for the Purchaser’s signature. Upon
receipt of such Opinion of Counsel and form of authorization, the Purchaser
shall promptly authorize in writing the Seller to, and the Seller shall, effect
such Filing under the UCC without the signature of the Seller or the Purchaser
where allowed by applicable law. Notwithstanding anything else in the
transaction documents to the contrary, the Seller shall not have any authority
to effect a Filing without obtaining written authorization from the Purchaser
or
its designee.
Schedule
I-3
Schedule
II
None
of
the mortgage loans have been 30 days or more delinquent since
origination.
Schedule
II-1
Schedule
III
Representations,
Warranties and Covenants of the Parent
(1) The
Parent is duly organized, validly existing and in good standing under the laws
of the state of Nevada;
(2) The
Parent 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 Seller and the
Purchaser, constitutes a legal, valid and binding obligation of the Parent,
enforceable against the Parent 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 Parent and the performance
of
and compliance with the terms of this Agreement will not violate the Parent’s
organizational documents or constitute a default under or result in a breach
or
acceleration of, any material contract, agreement or other instrument to which
the Parent is a party or which may be applicable to the Parent or its
assets;
(4) The
Parent is not in violation of, and the execution and delivery of this Agreement
by the Parent 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, except as otherwise set forth in the Order,
regulation of any federal, state, municipal or governmental agency having
jurisdiction over the Parent or their respective assets, which violation will
likely have consequences that would materially and adversely affect the
condition (financial or otherwise) or the operation of the Parent or their
respective assets or might have consequences that would materially and adversely
affect the performance of its obligations and duties hereunder or result in
the
creation or imposition of any lien, charge or encumbrance that would have an
adverse effect upon any of its properties pursuant to the terms of any mortgage,
contract, deed of trust or other instrument, or impair the ability of the
Purchaser to realize on the Mortgage Loans, impair the value of the Mortgage
Loans, or impair the ability of the Purchaser to realize the full amount of
any
insurance benefits accruing pursuant to this Agreement;
(5) The
Parent does not believe, nor do they have any reason or cause to believe, that
they cannot perform each and every covenant contained in this
Agreement;
(6) Except
as
otherwise set forth in the Order, there are no actions, suit or proceedings
against, or investigations of, pending or, to the best of its knowledge,
threatened, the Parent or any subsidiary before any court, administrative agency
or other tribunal (A) that are likely to prohibit their entering into this
Agreement, (B) seeking to prevent the sale of the Mortgage Loans or the
consummation of the transactions contemplated by this Agreement or (C) that
are likely to prohibit or materially and adversely affect the performance by
the
Parent of its obligations under, or the validity or enforceability of, this
Agreement;
Schedule
III-1
(7) No
consent, approval, authorization or order of, or registration or filing with,
or
notice to any court or governmental agency or body including, without
limitation, the Federal Deposit Insurance Corporation and the California
Department of Financial Institutions, is required for the execution, delivery
and performance by the Parent of, or compliance by the Parent 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 date hereof;
(8) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Parent;
(9) The
Parent is solvent and will not be rendered insolvent by the consummation of
the
transactions contemplated hereby; and
(10) The
Parent will not violate the terms and conditions of the Fremont Disclosure,
and
the transactions contemplated by this Agreement will not cause the Parent to
violate the Fremont Disclosure.
Schedule
III-2
Exhibit
1
APPENDIX
E - Standard & Poor’s Anti-Predatory Lending Categorization
REVISED
February 07, 2005
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note that
certain loans classified by the relevant statute as Covered are included in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by the
industry.
Standard
& Poor’s High Cost Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx. §§ 00-00-000 et seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. Xxx. §§ 5-3.5-101 et seq.
Effective
for covered loans offered or entered into on or after January 1,
2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746
et seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§ 494.0078 et seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
Exhibit
1-1
Standard
& Poor’s High Cost Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending
Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 - current)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Indiana
|
Indiana
Home Loan Practices Act, Ind. Code Xxx. §§ 24-9-1-1 et seq.
Effective
for loans originated on or after January 1, 2005.
|
High
Cost Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx. §§ 16a-1-101 et seq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id.§
16a-3-207) and;
|
|
High
APR Consumer Loan (id.§
16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. Rev. Stat. §§ 360.100
et seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
Exhibit
1-2
Standard
& Poor’s High Cost Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending
Law
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq.
and 209 C.M.R. §§ 40.01 et seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Massachusetts
Predatory Home Loan Practices Act
Mass.
Gen. Laws ch. 183C, §§ 1 et seq.
Effective
November 7, 2004
|
High
Cost Home Mortgage Loan
|
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat. §§ 598D.010 et seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
High
Cost Home Loan
|
Exhibit
1-3
Standard
& Poor’s High Cost Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending
Law
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev. Code
Xxx.
§§ 1349.25 et seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx. §§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act, W.
Va. Code
Xxx. §§ 31-17-1 et seq.
Effective
June 5, 0000
|
Xxxx
Xxxxxxxx Mortgage Loan Act Loan
|
Standard
& Poor’s Covered Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
November 27, 2003 - July 5, 2004
|
Covered
Home Loan
|
Exhibit
1-4
|
Standard
& Poor’s Home Loan
Categorization
|
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx. §§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
Exhibit
1-5
Exhibit
2
Fremont
Disclosure
[Actual
Cease and Desist Order to be inserted by Fremont]
Exhibit
2-1
Exhibit
3
Regulation
AB Addendum
Subsection
3.1 Definitions.
For
purposes of this Exhibit 3 the following capitalized terms shall have the
respective meanings set forth below.
“Commission”:
The
United States Securities and Exchange Commission.
“Exchange
Act”:
The
Securities Exchange Act of 1934, as amended.
“Mortgage
Loan”:
Each
first or second lien, residential mortgage loan, sold, assigned and transferred
to the Purchaser pursuant to this Agreement and the related Commitment Letter
and identified on the Mortgage Loan Schedule annexed to the related Assignment
and Conveyance on the related Closing Date, which Mortgage Loan includes without
limitation the Mortgage File, the Monthly Payments, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
proceeds, and all other rights, benefits, proceeds and obligations arising
from
or in connection with such Mortgage Loan due on or after the Closing Date for
such Mortgage Loan, excluding replaced or repurchased mortgage
loans.
“Qualified
Correspondent”:
Any
Person from which the Responsible Party purchased Mortgage Loans, provided
that
the following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Responsible Party and such Person that
contemplated that such Person would underwrite mortgage loans from time to
time,
for sale to the Responsible Party, in accordance with underwriting guidelines
designated by the Responsible Party (“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 Responsible Party within 180 days after origination; (iii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Responsible Party in origination of mortgage loans of the same
type
as the Mortgage Loans for the Responsible Party’s own account or (y) the
Designated Guidelines were, at the time such Mortgage Loans were underwritten,
designated by the Responsible Party on a consistent basis for use by lenders
in
originating mortgage loans to be purchased by the Responsible Party; and (iv)
the Responsible Party employed, at the time such Mortgage Loans were acquired
by
the Responsible Party, 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 Responsible
Party.
“Reconstitution
Agreements”:
The
agreement or agreements entered into by the Responsible Party and the Purchaser
and/or certain third parties on the Reconstitution Date or Dates with respect
to
any or all of the Mortgage Loans serviced hereunder, in connection with
Xxxxxxxxxx Mortgage Loan Trust, Series 2007-FRE1.
Exhibit
3-1
“Reconstitution
Date”:
The
date or dates on which any or all of the Mortgage Loans serviced under this
Agreement shall be removed from this Agreement and reconstituted as part of
Xxxxxxxxxx Mortgage Loan Trust, Series 2007-FRE1.
“Regulation
AB”:
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§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.
“Securities
Act”:
The
Securities Act of 1933, as amended.
“Subcontractor”:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Responsible Party or
a
Subservicer.
“Subservicer”:
Any
Person that services Mortgage Loans on behalf of the Responsible Party or any
Subservicer and is responsible for the performance (whether directly or through
Subservicers or Subcontractors) of a substantial portion of the material
servicing functions required to be performed by the Responsible Party under
this
Agreement or any Reconstitution Agreement that are identified in Item 1122(d)
of
Regulation AB.
“Third-Party
Originator”:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Responsible Party.
Subsection
3.2 Intent
of the Parties Regarding Regulation AB; Reasonableness.
The
Purchaser and the Responsible Party acknowledge and agree that the purpose
of
Subsections
3.2
through
3.4
of this
Regulation AB Addendum is to facilitate compliance by the Purchaser 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
Responsible Party acknowledges that investors in privately offered securities
may require that the Purchaser provide comparable disclosure in unregistered
offerings. References in this Regulation AB Addendum to compliance with
Regulation AB include provision of comparable disclosure in private
offerings.
The
Purchaser shall not 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). Each of the Purchaser and the Responsible Party acknowledge that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice
of
counsel, or otherwise, and agrees to comply with reasonable requests made by
the
Purchaser in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB. In connection with
Xxxxxxxxxx Mortgage Loan Trust, 2007-FRE1, the Responsible Party shall cooperate
fully with the Purchaser to deliver to the Purchaser (including any of its
assignees or designees), any and all statements, reports, certifications,
records and any other information necessary in the good faith determination
of
the Purchaser to permit the Purchaser to comply with the provisions of
Regulation AB, together with such disclosures relating to the Responsible Party,
any Subservicer, any Third-Party Originator and the Mortgage Loans, or the
servicing of the Mortgage Loans, reasonably believed by the Purchaser to be
necessary in order to effect such compliance.
Exhibit
3-2
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Responsible Party 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
3.3 Information
to Be Provided by the Responsible Party.
In
connection with Xxxxxxxxxx Mortgage Loan Trust, Series 2007-FRE1, the
Responsible Party shall (i) within five Business Days following request by
the
Purchaser, provide to the Purchaser and such Depositor (or, as applicable,
cause
each Third-Party Originator and each Subservicer 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),
(c)
and
(d)
of this
Subsection, and (ii) as promptly as practicable following notice to or discovery
by the Responsible Party, provide to the Purchaser (in writing and in form
and
substance reasonably satisfactory to the Purchaser and such Depositor) the
information specified in paragraph
(b)
of this
Subsection.
(a) For
the
purpose of satisfying the reporting obligation under the Exchange Act, the
Responsible Party shall provide such information regarding (i) the Responsible
Party, as originator of the Mortgage Loans (including as an acquirer of Mortgage
Loans from a Qualified Correspondent), or (ii) each Third-Party Originator,
and
(iii) as applicable, each Subservicer, as is requested for the purpose of
compliance with Items 1110, 1117 and 1119 of Regulation AB.
(b) If
so
requested by the Purchaser for the purpose of satisfying its reporting
obligation under the Exchange Act with respect to any class of asset-backed
securities, the Responsible Party shall (or shall cause each Subservicer and
Third-Party Originator to) (i) notify the Purchaser in writing of (A) any
material litigation or governmental proceedings pending against the Responsible
Party, any Subservicer or any Third-Party Originator and (B) any affiliations
or
relationships that develop following the closing date of Xxxxxxxxxx Mortgage
Loan Trust, Series 2007-FRE1 between the Responsible Party, any Subservicer
or
any Third-Party Originator (and any other parties identified in writing by
the
requesting party) with respect to Xxxxxxxxxx Mortgage Loan Trust, Series
2007-FRE1, and (ii) provide to the Purchaser a description of such proceedings,
affiliations or relationships.
(c) [Reserved].
(d) In
addition to such information as the Responsible Party is obligated to provide
pursuant to other provisions of this Agreement, if so requested by the
Purchaser, the Responsible Party shall provide to the Servicer such information
regarding the performance or servicing of the Mortgage Loans for the period
from
April 1, 2007 to April 30, 2007 as is reasonably required to facilitate
preparation of distribution reports in accordance with Item 1121 of Regulation
AB. Such information shall be provided not less than ten Business Days following
such request.
Exhibit
3-3
Subsection
3.4 Indemnification;
Remedies.
i) The
Responsible Party shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in Xxxxxxxxxx
Mortgage Loan Trust, Series 2007-FRE1: the 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 Xxxxxxxxxx Mortgage
Loan Trust, Series 2007-FRE1, or for execution of a certification pursuant
to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to
Xxxxxxxxxx Mortgage Loan Trust, Series 2007-FRE1; each broker dealer acting
as
underwriter, placement agent or initial purchaser, each Person who controls
any
of such parties or the Purchaser (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 Purchaser, 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 (A) any untrue statement of a
material fact or alleged untrue statement of a material fact contained in any
information, report, certification, accountants’ letter or other material
provided in written or electronic form under this Section
3
by or on
behalf of the Responsible Party, or provided under this Section
3
by or on
behalf of any Subservicer, Subcontractor or Third-Party Originator, or (B)
the
omission to state in any disclosure required under this Section
3
(collectively, the “Responsible
Party Disclosure Information”)
a
material fact required to be stated in the Responsible Party Disclosure
Information or necessary in order to make the statements made in the Responsible
Party Disclosure Information, in light of the circumstances under which such
statements were made, not misleading (in each case, regardless of whether a
final judgment has been entered by a finder of fact.
Exhibit
3-4
