Exhibit 99.1
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXXX XXXXX MORTGAGE LENDING, INC.
as Seller
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
as Purchaser
Dated as of
March 1, 2007
TABLE OF CONTENTS
Page
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SECTION 1 DEFINITIONS................................................. 1
SECTION 2 PURCHASE AND SALE OF THE MORTGAGE LOANS AND RELATED RIGHTS.. 3
SECTION 3 MORTGAGE LOAN SCHEDULES..................................... 4
SECTION 4 MORTGAGE LOAN TRANSFER...................................... 4
SECTION 5 EXAMINATION OF MORTGAGE FILES............................... 5
SECTION 6 RECORDATION OF ASSIGNMENTS OF MORTGAGE...................... 7
SECTION 7 REPRESENTATIONS AND WARRANTIES OF SELLER CONCERNING THE
MORTGAGE LOANS.............................................. 8
SECTION 8 REPRESENTATIONS AND WARRANTIES CONCERNING THE SELLER........ 11
SECTION 9 REPRESENTATIONS AND WARRANTIES CONCERNING THE PURCHASER..... 12
SECTION 10 CONDITIONS TO CLOSING....................................... 13
SECTION 11 FEES AND EXPENSES........................................... 15
SECTION 12 ACCOUNTANTS' LETTERS........................................ 16
SECTION 13 INDEMNIFICATION............................................. 16
SECTION 14 NOTICES..................................................... 18
SECTION 15 TRANSFER OF MORTGAGE LOANS.................................. 18
SECTION 16 TERMINATION................................................. 19
SECTION 17 REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.................................................... 19
SECTION 18 MANDATORY DELIVERY; GRANT OF SECURITY INTEREST.............. 19
SECTION 19 SEVERABILITY................................................ 20
SECTION 20 COUNTERPARTS................................................ 20
SECTION 21 AMENDMENT................................................... 20
SECTION 22 GOVERNING LAW............................................... 20
SECTION 23 FURTHER ASSURANCES.......................................... 20
SECTION 24 SUCCESSORS AND ASSIGNS...................................... 20
SECTION 25 THE SELLER.................................................. 21
SECTION 26 ENTIRE AGREEMENT............................................ 21
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SECTION 27 NO PARTNERSHIP.............................................. 21
EXHIBITS AND SCHEDULE TO
MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 1 Contents of Mortgage File
Exhibit 2 Contents of Final Mortgage File
Exhibit 3 Mortgage Loan Schedule Information
Exhibit 4 Seller's Information
Exhibit 5 Purchaser's Information
Exhibit 6 Schedule of Lost Notes
Exhibit 7 S&P Appendix
Schedule A Required Ratings For Each Class of Certificates
Schedule B Schedule of Assigned Agreements
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MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of March 1, 2007 (the
"Agreement"), by and between XXXXXXX XXXXX MORTGAGE LENDING, INC., a Delaware
corporation (the "Seller"), and XXXXXXX XXXXX MORTGAGE INVESTORS, INC., a
Delaware corporation (the "Purchaser").
Upon the terms and subject to the conditions of this Agreement, the
Seller agrees to sell, and the Purchaser agrees to purchase, certain first lien,
adjustable-rate mortgage loans secured by one- to four-family residences,
townhouses, individual condominiums, co-op units and units in planned unit
developments (collectively, the "Mortgage Loans") as described herein. The
Purchaser intends to deposit the Mortgage Loans into a trust fund (the "Trust
Fund") and create Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-1
Mortgage Pass-Through Certificates, under a pooling and servicing agreement,
dated as of March 1, 2007 (the "Pooling and Servicing Agreement"), by and among
the Purchaser, as depositor, HSBC Bank USA, National Association, as trustee
(the "Trustee") and Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator (the "Master Servicer" and "Securities Administrator").
The Purchaser has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Number 333-140436)
relating to its Mortgage Pass-Through Certificates and the offering of certain
series thereof (including certain classes of the Certificates) from time to time
in accordance with Rule 415 under the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder (the
"Securities Act"). Such registration statement, when it became effective under
the Securities Act, and the prospectus relating to the public offering of
certain classes of the Certificates by the Purchaser (the "Public Offering"), as
from time to time each is amended or supplemented pursuant to the Securities Act
or otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus," respectively. The "Prospectus Supplement" shall mean that
supplement, dated March 28, 2007, to the Prospectus, dated March 22, 2007,
relating to certain classes of the Certificates. With respect to the Public
Offering of certain classes of the Certificates, the Purchaser and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") have entered into a
Terms Agreement, dated as of March 27, 2007, to an underwriting agreement, dated
February 28, 2003, between the Purchaser and Xxxxxxx Xxxxx (together, the
"Underwriting Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties hereto agree as follows:
Section 1 Definitions.
Certain terms are defined herein. Capitalized terms used herein but
not defined herein shall have the meanings specified in the Pooling and
Servicing Agreement. The following other terms are defined as follows:
Certificates: The Class I-A-1, Class I-A-2, Class II-A-1, Class
II-A-2, Class A-R, Class M-1, Class M-2, Class M-3, Class B-1, Class B-2, Class
B-3 and Class P Certificates issued pursuant to the Pooling and Servicing
Agreement.
Closing Date: March 30, 2007.
Custodial Agreement: An agreement, dated as of the Closing Date, among
the Depositor, the Master Servicer, the Trustee and the Custodian in
substantially the form of Exhibit G to the Pooling and Servicing Agreement.
Custodian: Xxxxx Fargo Bank, N.A., including any successors in
interest, or any successor custodian appointed pursuant to the provisions hereof
and of the Custodial Agreement.
Cut-off Date: March 1, 2007.
Cut-off Date Balance: $453,680,470.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Substitute Mortgage Loan.
Due Date: With respect to each Mortgage Loan, the first day in each
month.
Xxxxxx Xxx: Federal National Mortgage Association or any successor
thereto.
Fitch: Fitch, Inc.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation of any
successor thereto.
Master Servicer: Xxxxx Fargo Bank, X.X.
Xxxxxxx Xxxxx: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
Moody's: Xxxxx'x Investors Service, Inc., or its successors in
interest.
Mortgage: The mortgage or deed of trust creating a first lien on an
interest in real property securing a Mortgage Note.
Mortgage File: The items referred to in Exhibit 1 and Exhibit 2
pertaining to a particular Mortgage Loan and any additional documents required
to be added to such documents pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne by a
Mortgage Note as stated therein.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Rate: For each Mortgage Loan, the Mortgage Interest Rate for such
Mortgage Loan less the Master Servicing Fee Rate.
Offered Certificates: The Class I-A-1, Class I-A-2, Class II-A-1,
Class II-A-2, Class A-R, Class M-1, Class M-2 and Class M-3 Certificates offered
pursuant to the Prospectus
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and the Prospectus Supplement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Seller or the Purchaser, reasonably acceptable to the Trustee.
Person: Any legal person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller pursuant to the applicable provisions of this Agreement,
an amount equal to the sum of (i) 100% of the principal remaining unpaid on such
Mortgage Loan as of the date of purchase (including if a foreclosure has already
occurred, the principal balance of the related Mortgage Loan at the time the
Mortgaged Property was acquired), (ii) accrued and unpaid interest thereon at
the Mortgage Interest Rate through and including the last day of the month of
purchase and (iii) any costs and damages incurred by the Issuing Entity in
connection with any violation by such Mortgage Loan of any predatory or
abusive-lending law.
Rating Agencies: S&P and Fitch, each a "Rating Agency".
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
or its successors in interest.
Securities Act: The Securities Act of 1933, as amended.
Security: As used herein, the term shall refer to the Trust Fund and
the Certificates created thereby.
Substitute Mortgage Loan: A mortgage loan substituted for a Deleted
Mortgage Loan which must meet on the date of such substitution the requirements
stated herein and in the Pooling and Servicing Agreement; upon such
substitution, such mortgage loan shall be a "Mortgage Loan" hereunder.
Value: The value of the Mortgaged Property at the time of origination
of the related Mortgage Loan, such value being the lesser of (i) the value of
such property set forth in an appraisal accepted by the Originator or (ii) the
sales price of such property at the time of origination.
Section 2 Purchase and Sale of the Mortgage Loans and Related Rights.
(a) Upon satisfaction of the conditions set forth in Section 10 hereof, the
Seller agrees to sell, and the Purchaser agrees to purchase Mortgage Loans
having an aggregate Cut-off Date Balance of $453,680,470.
(b) The closing for the purchase and sale of the Mortgage Loans and the
closing for the issuance of the Certificates will take place on the Closing Date
at the office of the Purchaser's counsel in New York, New York or such other
place as the parties shall agree.
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(c) Upon the satisfaction of the conditions set forth in Section 10 hereof,
on the Closing Date, in consideration of the purchase of the Mortgage Loans, the
Purchaser shall (i) pay to the Seller an amount equal to the net sale proceeds
of the Offered Certificates plus accrued interest in immediately available funds
by wire transfer to such account or accounts as shall be designated by the
Seller and (ii) deliver to the Seller the Class B and Class P Certificates.
(d) In addition to the foregoing, on the Closing Date the Seller assigns to
the Purchaser without recourse all of its right, title and interest in the
agreements listed on Schedule B.
Section 3 Mortgage Loan Schedules
The Seller agrees to provide to the Purchaser as of the date hereof a
preliminary listing of the Mortgage Loans (the "Preliminary Mortgage Loan
Schedule") setting forth the information listed on Exhibit 3 to this Agreement
with respect to each of the Mortgage Loans being sold by the Seller. If there
are changes to the Preliminary Mortgage Loan Schedule, the Seller shall provide
to the Purchaser as of the Closing Date a final schedule (the "Final Mortgage
Loan Schedule") setting forth the information listed on Exhibit 3 to this
Agreement with respect to each of the Mortgage Loans being sold by the Seller to
the Purchaser. The Final Mortgage Loan Schedule shall be delivered to the
Purchaser on the Closing Date and shall be in form and substance mutually agreed
to by the Seller and the Purchaser. If there are no changes to the Preliminary
Mortgage Loan Schedule, the Preliminary Mortgage Loan Schedule shall be the
Final Mortgage Loan Schedule for all purposes hereof.
Section 4 Mortgage Loan Transfer
(a) The Purchaser will be entitled to all scheduled payments of principal
and interest on the Mortgage Loans due after the Cut-off Date (regardless of
when actually collected) and all payments thereof other than scheduled principal
and interest received after the Cut-off Date. The Seller will be entitled to all
scheduled payments of principal and interest on the Mortgage Loans due on or
before the Cut-off Date (including payments collected after the Cut-off Date)
and all payments thereof other than scheduled principal and interest on the
Mortgage Loans received on or before the Cut-off Date. Such principal amounts
and any interest thereon belonging to the Seller as described above will not be
included in the aggregate outstanding principal balance of the Mortgage Loans as
of the Cut-off Date as set forth on the Final Mortgage Loan Schedule.
(b) Pursuant to various conveyancing documents to be executed on the
Closing Date and pursuant to the Pooling and Servicing Agreement, the Purchaser
will assign on the Closing Date all of its right, title and interest in and to
the Mortgage Loans to the Trustee for the benefit of the Certificateholders. In
connection with the transfer and assignment of the Mortgage Loans, the Seller
has delivered or will deliver or cause to be delivered to the Trustee by the
Closing Date or such later date as is agreed to by the Purchaser and the Seller
(each of the Closing Date and such later date is referred to as a "Mortgage File
Delivery Date"), the items of each Mortgage File, provided, however, that in
lieu of the foregoing, the Seller may deliver the following documents, under the
circumstances set forth below: (x) in lieu of the original Mortgage, assignments
to the Trustee or intervening assignments thereof which have been delivered, are
being delivered or will upon receipt of recording information relating to the
Mortgage required to
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be included thereon, be delivered to recording offices for recording and have
not been returned in time to permit their delivery as specified above, the
Seller may deliver a true copy thereof with a certification by the Seller or the
applicable originator, on the face of such copy, substantially as follows:
"Certified to be a true and correct copy of the original, which has been
transmitted for recording;" (y) in lieu of the Mortgage, assignments to the
Trustee or intervening assignments thereof, if the applicable jurisdiction
retains the originals of such documents or if the originals are lost (in each
case, as evidenced by a certification from the Seller to such effect), the
Seller may deliver photocopies of such documents containing an original
certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; and (z) in lieu of the Mortgage
Notes relating to the Mortgage Loans, each identified in the list delivered by
the Purchaser to the Trustee on the Closing Date and attached hereto as Exhibit
6 the Seller may deliver lost note affidavits and indemnities of the Seller; and
provided further, however, that in the case of Mortgage Loans which have been
prepaid in full after the Cut-off Date and prior to the Closing Date, the
Seller, in lieu of delivering the above documents, may deliver to the Trustee a
certification by the Seller to such effect. The Seller shall deliver such
original documents (including any original documents as to which certified
copies had previously been delivered) or such certified copies to the Trustee
promptly after they are received. The Seller shall cause the Mortgage and
intervening assignments, if any, and the assignment of the Mortgage to be
recorded not later than 180 days after the Closing Date, or, in lieu of such
assignments, shall provide an Opinion of Counsel pursuant to Section 6(a) hereof
to the effect that the recordation of such assignment is not necessary to
protect the Trustee's interest in the related Mortgage Loan. Upon the request of
the Purchaser, the Seller will assist the Purchaser in effecting the assignment
referred to above.
(c) The Seller and the Purchaser acknowledge hereunder that all of the
Mortgage Loans and the related servicing will ultimately be assigned to HSBC
Bank USA, National Association, as Trustee for the Certificateholders, on the
date hereof.
Section 5 Examination of Mortgage Files
(a) On or before the Mortgage File Delivery Date, the Seller will have made
the Mortgage Files available to the Purchaser or its agent for examination which
may be at the offices of the Trustee or the Seller and/or the Custodian. The
fact that the Purchaser or its agent has conducted or has failed to conduct any
partial or complete examination of the Mortgage Files shall not affect the
Purchaser's rights to demand cure, repurchase, substitution or other relief as
provided in this Agreement. In furtherance of the foregoing, the Seller shall
make the Mortgage Files available to the Purchaser or its agent from time to
time so as to permit the Purchaser to confirm the Seller's compliance with the
delivery and recordation requirements of this Agreement and the Pooling and
Servicing Agreement. In addition, upon request of the Purchaser, the Seller
agrees to provide to the Purchaser, Xxxxxxx Xxxxx and to any investors or
prospective investors in the Certificates information regarding the Mortgage
Loans and their servicing, to make the Mortgage Files available to the
Purchaser, Xxxxxxx Xxxxx and to such investors or prospective investors (which
may be at the offices of the Seller and/or the Seller's custodian) and to make
available personnel knowledgeable about the Mortgage Loans for discussions with
the Purchaser, Xxxxxxx Xxxxx and such investors or prospective investors, upon
reasonable request during regular business hours, sufficient to permit the
Purchaser, Xxxxxxx Xxxxx and such
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investors or potential investors to conduct such due diligence as any such party
reasonably believes is appropriate.
(b) Pursuant to the Pooling and Servicing Agreement, on the Closing Date
the Trustee (or the Custodian), for the benefit of the Certificateholders, will
review items of the Mortgage Files as set forth on Exhibit 1 and will deliver to
the Seller a certification in the form attached as Exhibit One to the Custodial
Agreement.
(c) Pursuant to the Pooling and Servicing Agreement, the Trustee or the
Custodian, as its agent, will review the Mortgage Files within 180 days of the
Closing Date and will deliver to the Purchaser a final certification
substantially in the form of Exhibit Two to the Custodial Agreement. If the
Trustee or the Custodian, as its agent, is unable to deliver a final
certification with respect to the items listed in Exhibit 2 due to any document
that is missing, has not been executed, is unrelated, determined on the basis of
the Mortgagor name, original principal balance and loan number, to the Mortgage
Loans identified in the Final Mortgage Loan Schedule (a "Material Defect"), the
Trustee or the Custodian, as its agent, shall notify the Seller of such Material
Defect. The Seller shall correct or cure any such Material Defect within 90 days
from the date of notice from the Trustee or the Custodian, as applicable, of the
Material Defect and if the Seller does not correct or cure such Material Defect
within such period and such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the Seller
will, in accordance with the terms of the Pooling and Servicing Agreement,
within 90 days of the date of notice, provide the Trustee with a Substitute
Mortgage Loan (if within two years of the Closing Date) or purchase the related
Mortgage Loan at the applicable Purchase Price; provided, however, that if such
defect relates solely to the inability of the Seller to deliver the original
security instrument or intervening assignments thereof, or a certified copy
because the originals of such documents, or a certified copy, have not been
returned by the applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan if the Seller delivers such original documents or
certified copy promptly upon receipt, but in no event later than 360 days after
the Closing Date. The foregoing repurchase obligation shall not apply in the
event that the Seller cannot deliver such original or copy of any document
submitted for recording to the appropriate recording office in the applicable
jurisdiction because such document has not been returned by such office;
provided that the Seller shall instead deliver a recording receipt of such
recording office or, if such receipt is not available, a certificate of the
Seller confirming that such documents have been accepted for recording, and
delivery to the Trustee or the Custodian, as its agent, shall be effected by the
Seller within thirty days of its receipt of the original recorded document.
(d) At the time of any substitution, the Seller shall deliver or cause to
be delivered the Substitute Mortgage Loan, the related Mortgage File and any
other documents and payments required to be delivered in connection with a
substitution pursuant to the Pooling and Servicing Agreement. At the time of any
purchase or substitution, the Trustee shall (i) assign to the Seller and release
or cause the Custodian, as its agent, to release the documents (including, but
not limited to, the Mortgage, Mortgage Note and other contents of the Mortgage
File) in the possession of the Trustee or the Custodian relating to the Deleted
Mortgage Loan and (ii) execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in the
Seller title to such Deleted Mortgage Loan.
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Section 6 Recordation of Assignments of Mortgage
(a) The Seller need not cause to be recorded any assignment which relates
to a Mortgage Loan in any jurisdiction; provided, however, each assignment of
Mortgage shall be submitted for recording by the Seller, at no expense to the
Issuing Entity or Trustee, upon the earliest to occur of (i) reasonable
direction by the Holders of Certificates evidencing, in the aggregate, not less
than 25% of the Voting Rights, (ii) the occurrence of an Event of Default with
respect to the Master Servicer (upon instruction of the Seller), (iii) the
occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller or
(iv) with respect to any one assignment of Mortgage, the occurrence of a
bankruptcy, insolvency or foreclosure relating to the Mortgagor under the
related Mortgage.
While each such Mortgage or assignment is being recorded, if
necessary, the Seller shall leave or cause to be left with the Trustee a
certified copy of such Mortgage or assignment. All customary recording fees and
reasonable expenses relating to the recordation of the assignments of mortgage
to the Trustee shall be borne by the Seller.
(b) It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans by the Seller to the Purchaser, as contemplated by this
Agreement be, and be treated as, a sale. It is, further, not the intention 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.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held by a court of competent jurisdiction to continue to be
property of the Seller, then (i) this Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the applicable
Uniform Commercial Code; (ii) the transfer of the Mortgage Loans provided for
herein 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, to the extent the Purchaser would otherwise be entitled to own such
Mortgage Loans and proceeds pursuant to Section 4 hereof, including all amounts,
other than investment earnings, from time to time held or invested in any
accounts created pursuant to the Pooling and Servicing Agreement, whether in the
form of cash, instruments, securities or other property; (iii) the possession by
the Purchaser or the Trustee of Mortgage Notes and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 (or comparable provision) of the
applicable Uniform Commercial Code; and (iv) 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 any provision hereof or pursuant to the Pooling and Servicing
Agreement 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 reasonably necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be
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deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of the Pooling and
Servicing Agreement.
Section 7 Representations and Warranties of Seller Concerning the Mortgage
Loans.
The Seller hereby represents and warrants to the Purchaser as of the
Closing Date or such other date as may be specified below with respect to each
Mortgage Loan being sold by it:
(a) the information set forth in the Mortgage Loan Schedule hereto is true
and correct in all material respects;
(b) immediately prior to the transfer to the Purchaser, the Seller was the
sole owner of beneficial title and holder of each Mortgage and Mortgage Note
relating to the Mortgage Loans and is conveying the same free and clear of any
and all liens, claims, encumbrances, participation interests, equities, pledges,
charges or security interests of any nature and the Seller has full right and
authority to sell or assign the same pursuant to this Agreement;
(c) no selection procedure reasonably believed by the Seller to be adverse
to the interests of the Certificateholders was utilized in selecting the
Mortgage Loans;
(d) 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);
(e) no Mortgage Loan is in foreclosure;
(f) no Mortgage Loan provides for interest other than at either (i) a
single fixed rate in effect throughout the term of the Mortgage Loan or (ii) a
"variable rate" (within the meaning of Treas. Reg. Section 1.860G-1(a)(3)) in
effect throughout the term of the Mortgage Loan;
(g) the Seller would not, based on the delinquency status of the Mortgage
Loans, institute foreclosure proceedings with respect to any of the Mortgage
Loans prior to the next scheduled payment for such Mortgage Loan;
(h) the information set forth under the captions "Description of the
Mortgage Pools--General" and "Description of the Mortgage Pools--Tabular
Characteristics of the Mortgage Loans" and in Annex II of the Prospectus
Supplement is true and correct in all material respects;
(i) as of the Cut-off Date, no Mortgage Loan is more than 30 days past due.
The Seller 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;
(j) to the best of the Seller's knowledge, there are no delinquent taxes,
ground rents, water charges, sewer rents, assessments, insurance premiums,
leasehold payments, including assessments payable in future installments or
other outstanding charges affecting the related Mortgaged Property;
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(k) to the best of the Seller's knowledge, there is no default, breach,
violation or event of acceleration existing under the Mortgage or the Mortgage
Note and no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration, and the Seller has not waived any default,
breach, violation or event of acceleration;
(l) to the best of the Seller's knowledge, the Mortgaged Property is free
of damage and waste and there is no proceeding pending for the total or partial
condemnation thereof;
(m) to the best of the Seller's knowledge, the Mortgaged Property is
lawfully occupied under applicable law at time of origination; all inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of occupancy,
have been made or obtained from the appropriate authorities;
(n) all requirements of any federal, state or local law (including usury,
truth in lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure or recording, predatory and abusive lending
laws) applicable to the origination and servicing of such Mortgage Loan have
been complied with in all material respects;
(o) to the best of the Seller's knowledge, as of the date of transfer of
the Mortgage Loans, there is no mechanics' lien or claim for work, labor or
material affecting the Mortgaged Property except those which are insured against
by the title insurance policy;
(p) to the best of the Seller's knowledge, as of the date of the transfer
of the Mortgage Loans to the Purchaser, there is no valid offset, defense or
counterclaim to any Mortgage Note or Mortgage;
(q) to the best of the Seller's knowledge, as of the date of closing, the
physical property subject to any Mortgage is free of material damage and is in
good repair;
(r) at the time of origination, no improvement located on or being part of
the Mortgaged Property was in violation of any applicable zoning and subdivision
laws or ordinances;
(s) each Mortgage Loan is and will be a mortgage loan arising out of the
related originator's practice in accordance with the related originator's
underwriting guidelines. The Seller has no knowledge of any fact that should
have led it to expect at the time of the initial creation of an interest in the
Mortgage Loan that such Mortgage Loan would not be paid in full when due;
(t) each original Mortgage has been recorded or is in the process of being
recorded in the appropriate jurisdictions wherein such recordation is required
to perfect the lien thereof for the benefit of the trust;
(u) the related Mortgage File contains each of the documents and
instruments specified;
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(v) each Mortgage Loan is being serviced according to the related
Servicer's guidelines;
(w) the Mortgage Note and the Mortgage have not been impaired, altered or
modified in any material respect, except by a written instrument which has been
recorded or is in the process of being recorded;
(x) a lender's title policy or binder, or other assurance of title
insurance customary in a form acceptable to Xxxxxx Xxx or Xxxxxxx Mac was issued
at origination and each policy or binder is valid and remains in full force and
effect;
(y) none of the Mortgage Loans are secured by a leasehold interest;
(z) There is no mortgage loan in the trust that was originated on or after
October 1, 2002 and before March 7, 2003, which is secured by property located
in the State of Georgia. There is no mortgage loan in the trust that was
originated on or after March 7, 2003, which is a "high cost home loan" as
defined under the Georgia Fair Lending Act;
(aa) none of the Mortgage Loans is subject to the Home Ownership and Equity
Protection Act of 1994 or is a "high cost" or "predatory" loan as defined by
applicable local, state and federal predatory and abusive lending laws;
(bb) there is no Mortgage Loan in the Trust Fund that was originated on or
after January 1, 2005, which is a "high cost home loan" as defined under the
Indiana Home Loan Practices Act (I.C. 24-9); and
(cc) no Mortgage Loan is a High Cost Loan or Covered Loan, as applicable
(as such terms are defined in Appendix E of the then current Standard & Poor's
Glossary For File Format For LEVELS(R) Version 5.7 Revised (attached hereto as
Exhibit 7).
It is understood and agreed that the representations and warranties
set forth in this Section 7 will inure to the benefit of the Purchaser, its
successors and assigns, notwithstanding any restrictive or qualified endorsement
on any Mortgage Note or assignment of Mortgage or the examination of any
Mortgage File. Upon any substitution for a Mortgage Loan, the representations
and warranties set forth above shall be deemed to be made by the Seller as to
any Substitute Mortgage Loan as of the date of substitution.
Upon discovery or receipt of notice by the Seller, the Purchaser or
the Trustee of a breach of any representation or warranty of the Seller set
forth in this Section 7 which materially and adversely affects the value of the
interests of the Purchaser, the Certificateholders or the Trustee in any of the
Mortgage Loans delivered to the Purchaser pursuant to this Agreement, the party
discovering or receiving notice of such breach shall give prompt written notice
to the others. In the case of any such breach of a representation or warranty
set forth in this Section 7, within 90 days from the date of discovery by the
Seller, or the date the Seller is notified by the party discovering or receiving
notice of such breach (whichever occurs earlier), the Seller will (i) cure such
breach in all material respects, (ii) purchase the affected Mortgage Loan at the
applicable Purchase Price or (iii) if within two years of the Closing Date,
substitute a qualifying
10
Substitute Mortgage Loan in exchange for such Mortgage Loan. The obligations of
the Seller to cure, purchase or substitute a qualifying Substitute Mortgage Loan
shall constitute the Purchaser's, the Trustee's and the Certificateholder's sole
and exclusive remedy under this Agreement or otherwise respecting a breach of
representations or warranties hereunder with respect to the Mortgage Loans,
except for the obligation of the Seller to indemnify the Purchaser for such
breach as set forth in and limited by Section 14 hereof. With respect to the
representations and warranties described in the Agreement which are made to the
best of the Seller's knowledge, if it is discovered by any of the Depositor, the
Seller or the Trustee that the substance of such representation and warranty is
inaccurate and such inaccuracy materially and adversely affects the value of the
related Mortgage Loan, then notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty, such inaccuracy
shall be deemed a breach of the applicable representation or warranty.
Any cause of action against the Seller or relating to or arising out
of a breach by the Seller of any representations and warranties made in this
Section 7 shall accrue as to any Mortgage Loan upon (i) discovery of such breach
by the Seller or notice thereof by the party discovering such breach and (ii)
failure by the Seller to cure such breach, purchase such Mortgage Loan or
substitute a qualifying Substitute Mortgage Loan pursuant to the terms hereof.
Section 8 Representations and Warranties Concerning the Seller
As of the date hereof and as of the Closing Date, the Seller
represents and warrants to the Purchaser as to itself in the capacity indicated
as follows:
(a) the Seller (i) is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and (ii) is qualified and
in good standing to do business in each jurisdiction where such qualification is
necessary, except where the failure so to qualify would not reasonably be
expected to have a material adverse effect on the Seller's business as presently
conducted or on the Seller's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(b) the Seller has full power to own its property, to carry on its business
as presently conducted and to enter into and perform its obligations under this
Agreement;
(c) the execution and delivery by the Seller of this Agreement have been
duly authorized by all necessary action on the part of the Seller; and neither
the execution and delivery of this Agreement, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under, any
of the provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Seller or its properties or the charter or by-laws of the
Seller, except those conflicts, breaches or defaults which would not reasonably
be expected to have a material adverse effect on the Seller's ability to enter
into this Agreement and to consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Seller of this Agreement
and the consummation of the transactions contemplated hereby do not require the
consent or approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any
11
state, federal or other governmental authority or agency, except those consents,
approvals, notices, registrations or other actions as have already been
obtained, given or made and, in connection with the recordation of the
Mortgages, powers of attorney or assignments of Mortgages not yet completed;
(e) this Agreement has been duly executed and delivered by the Seller and,
assuming due authorization, execution and delivery by the Purchaser, constitutes
a valid and binding obligation of the Seller enforceable against it in
accordance with its terms (subject to applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally);
(f) there are no actions, suits or proceedings pending or, to the knowledge
of the Seller, threatened against the Seller, before or by any court,
administrative agency, arbitrator or governmental body (i) with respect to any
of the transactions contemplated by this Agreement or (ii) with respect to any
other matter which in the judgment of the Seller will be determined adversely to
the Seller and will if determined adversely to the Seller materially and
adversely affect the Seller's ability to perform its obligations under this
Agreement; and the Seller is not in default with respect to any order of any
court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this Agreement;
and
(g) the Seller's Information (as defined in Section 13(a) hereof) does not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading.
Section 9 Representations and Warranties Concerning the Purchaser
As of the date hereof and as of the Closing Date, the Purchaser
represents and warrants to the Seller as follows:
(a) the Purchaser (i) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and (ii) is qualified
and in good standing as a foreign corporation to do business in each
jurisdiction where such qualification is necessary, except where the failure so
to qualify would not reasonably be expected to have a material adverse effect on
the Purchaser's business as presently conducted or on the Purchaser's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(b) the Purchaser has full corporate power to own its property, to carry on
its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(c) the execution and delivery by the Purchaser of this Agreement have been
duly authorized by all necessary corporate action on the part of the Purchaser;
and neither the execution and delivery of this Agreement, nor the consummation
of the transactions herein contemplated, nor compliance with the provisions
hereof, will conflict with or result in a breach of, or constitute a default
under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Purchaser or its properties or the
articles of incorporation or by-laws of the Purchaser, except those conflicts,
breaches or defaults which
12
would not reasonably be expected to have a material adverse effect on the
Purchaser's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(d) the execution, delivery and performance by the Purchaser of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents, approvals,
notices, registrations or other actions as have already been obtained, given or
made;
(e) this Agreement has been duly executed and delivered by the Purchaser
and, assuming due authorization, execution and delivery by the Seller,
constitutes a valid and binding obligation of the Purchaser enforceable against
it in accordance with its terms (subject to applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of creditors
generally);
(f) there are no actions, suits or proceedings pending or, to the knowledge
of the Purchaser, threatened against the Purchaser, before or by any court,
administrative agency, arbitrator or governmental body (i) with respect to any
of the transactions contemplated by this Agreement or (ii) with respect to any
other matter which in the judgment of the Purchaser will be determined adversely
to the Purchaser and will if determined adversely to the Purchaser materially
and adversely affect the Purchaser's ability to perform its obligations under
this Agreement; and the Purchaser is not in default with respect to any order of
any court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this Agreement;
and
(g) the Purchaser's Information (as defined in Section 13(b) hereof) does
not include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
Section 10 Conditions to Closing
(a) The obligations of the Purchaser under this Agreement will be subject
to the satisfaction, on or prior to the Closing Date, of the following
conditions:
(i) Each of the obligations of the Seller required to be performed at
or prior to the Closing Date pursuant to the terms of this Agreement shall have
been duly performed and complied with in all material respects; all of the
representations and warranties of the Seller under this Agreement shall be true
and correct as of the date or dates specified in all material respects; and no
event shall have occurred which, with notice or the passage of time, would
constitute a default under this Agreement, or the Pooling and Servicing
Agreement; and the Purchaser shall have received certificates to that effect
signed by authorized officers of the Seller.
(ii) The Purchaser shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to the
Purchaser, duly executed by all signatories other than the Purchaser as required
pursuant to the respective terms thereof:
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(A) [Reserved]
(B) If required pursuant to Section 3 hereof, the Final Mortgage
Loan Schedule containing the information set forth on Exhibit 3 hereto;
(C) The Pooling and Servicing Agreement, in form and substance
reasonably satisfactory to the Trustee and the Purchaser, and all documents
required thereby duly executed by all signatories;
(D) A certificate of an officer of the Seller dated as of the
Closing Date, in a form reasonably acceptable to the Purchaser, and attached
thereto the resolutions of the Seller's authorizing the transactions
contemplated by this Agreement, together with copies of the charter and by-laws
of the Seller;
(E) One or more opinions of counsel from the Seller's counsel
otherwise in form and substance reasonably satisfactory to the Purchaser, the
Trustee and each Rating Agency;
(F) A letter from each of the Rating Agencies giving each Class
of Certificates set forth on Schedule A the rating set forth on Schedule A; and
(G) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably necessary to
secure the intended ratings from each Rating Agency for the Certificates.
(iii) The Certificates to be sold to Xxxxxxx Xxxxx pursuant to the
Underwriting Agreement shall have been issued and sold to Xxxxxxx Xxxxx.
(iv) The Seller shall have furnished to the Purchaser such other
certificates of its officers or others and such other documents and opinions of
counsel to evidence fulfillment of the conditions set forth in this Agreement
and the transactions contemplated hereby as the Purchaser and its counsel may
reasonably request.
(b) The obligations of the Seller under this Agreement shall be subject to
the satisfaction, on or prior to the Closing Date, of the following conditions:
(i) The obligations of the Purchaser required to be performed by it on
or prior to the Closing Date pursuant to the terms of this Agreement shall have
been duly performed and complied with in all material respects, and all of the
representations and warranties of the Purchaser under this Agreement shall be
true and correct in all material respects as of the date hereof and as of the
Closing Date, and no event shall have occurred which would constitute a breach
by it of the terms of this Agreement, and the Seller shall have received a
certificate to that effect signed by an authorized officer of the Purchaser.
(ii) The Seller shall have received copies of all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable to
the Seller, duly
14
executed by all signatories other than the Seller as required pursuant to the
respective terms thereof:
(A) [Reserved];
(B) The Pooling and Servicing Agreement, in form and substance
reasonably satisfactory to the Seller, and all documents required thereby duly
executed by all signatories;
(C) A certificate of an officer of the Purchaser dated as of the
Closing Date, in a form reasonably acceptable to the Seller, and attached
thereto the resolutions of the Purchaser authorizing the transactions
contemplated by this Agreement and the Pooling and Servicing Agreement, together
with copies of the Purchaser's articles of incorporation, and evidence as to the
good standing of the Purchaser dated as of a recent date;
(D) One or more opinions of counsel from the Purchaser's counsel
in form and substance reasonably satisfactory to the Seller; and
(E) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably necessary to
secure the intended rating from each Rating Agency for the Certificates;
Section 11 Fees and Expenses
Subject to Section 17 hereof, the Seller shall pay on the Closing Date
or such later date as may be agreed to by the Purchaser (i) the fees and
expenses of the Seller's attorneys and the reasonable fees and expenses of the
Purchaser's attorneys, (ii) the fees and expenses of Deloitte & Touche LLP,
(iii) the filing fee charged by the Commission for the registration of the
Certificates, (iv) the fees and expenses including counsel's fees and expenses
in connection with any "blue sky" and legal investment matters, (v) the fees and
expenses of the Trustee which shall include without limitation the fees and
expenses of the Trustee (and the fees and disbursements of its counsel) with
respect to (A) legal and document review of this Agreement, the Pooling and
Servicing Agreement, the Certificates and related agreements, (B) attendance at
the Closing and (C) review of the Mortgage Loans to be performed by the Trustee,
(vi) the expenses for printing or otherwise reproducing the Certificates, the
Prospectus and the Prospectus Supplement, (vii) the fees and expenses of each
Rating Agency (both initial and ongoing), (viii) the fees and expenses relating
to the preparation and recordation of mortgage assignments (including
intervening assignments, if any and if available, to evidence a complete chain
of title from the originator to the Trustee) from the Seller to the Trustee or
the expenses relating to the Opinion of Counsel referred to in Section 6(a)
hereof, as the case may be, and (ix) Mortgage File due diligence expenses and
other out-of-pocket expenses incurred by the Purchaser in connection with the
purchase of the Mortgage Loans and by Xxxxxxx Xxxxx in connection with the sale
of the Certificates. The Seller additionally agrees to pay directly to any third
party on a timely basis the fees provided for above which are charged by such
third party and which are billed periodically.
Section 12 Accountants' Letters
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Deloitte & Touche LLP will review the characteristics of a sample
of the Mortgage Loans described in the Final Mortgage Loan Schedule and will
compare those characteristics to the description of the Mortgage Loans contained
in the Prospectus Supplement under the captions "Summary--The Mortgage Loans",
"Description of the Mortgage Pools--General", "Description of the Mortgage
Pools--Tabular Characteristics of the Mortgage Loans" and "Annex II--The
Mortgage Pool". The Seller will cooperate with the Purchaser in making available
all information and taking all steps reasonably necessary to permit such
accountants to complete the review and to deliver the letters required of them
under the Underwriting Agreement. Deloitte & Touche LLP will also confirm
certain calculations as set forth under the caption "Yield, Prepayment and
Weighted Average Life" in the Prospectus Supplement.
Section 13 Indemnification
(a) The Seller shall indemnify and hold harmless the Purchaser and its
directors, officers and controlling persons (as defined in Section 15 of the
Securities Act) from and against any loss, claim, damage or liability or action
in respect thereof, to which they or any of them may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon (i) any untrue statement of a material
fact contained in the Seller's Information as identified in Exhibit 4, the
omission to state in the Prospectus Supplement or Prospectus (or any amendment
thereof or supplement thereto approved by the Seller and in which additional
Seller's Information is identified), in reliance upon and in conformity with
Seller's Information a material fact required to be stated therein or necessary
to make the statements therein in light of the circumstances in which they were
made, not misleading, (ii) any representation or warranty assigned or made by
the Seller in Section 7 or Section 8 hereof being, or alleged to be, untrue or
incorrect, or (iii) any failure by the Seller to perform its obligations under
this Agreement; and the Seller shall reimburse the Purchaser and each other
indemnified party for any legal and other expenses reasonably incurred by them
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action.
(b) The Seller shall indemnify and hold harmless the Purchaser, the Trust
Fund and the Trustee against any documented out-of-pocket losses, 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 by any third party that results from, a material breach of
the representations and warranties set forth in Section 7 of this Agreement;
provided, however, indemnification shall not be available for any economic
losses of the Purchaser due to reinvestment losses, loss of investment income or
any other special, indirect or consequential losses. The Seller shall indemnify
and hold harmless the Purchaser, the Trust Fund and the Trustee against any
losses, 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 by any third party in connection with the Georgia
Fair Lending Act; provided, however, indemnification shall not be available for
any economic losses of the Purchaser due to reinvestment losses, loss of
investment income or any other special, indirect or consequential losses.
16
The foregoing indemnity agreement is in addition to any liability which the
Seller otherwise may have to the Purchaser or any other such indemnified party.
(c) The Purchaser shall indemnify and hold harmless the Seller and its
respective directors, officers and controlling persons (as defined in Section 15
of the Securities Act) from and against any loss, claim, damage or liability or
action in respect thereof, to which they or any of them may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon (i) any untrue statement of
a material fact contained in the Purchaser's Information as identified in
Exhibit 5, the omission to state in the Prospectus Supplement or Prospectus (or
any amendment thereof or supplement thereto approved by the Purchaser and in
which additional Purchaser's Information is identified), in reliance upon and in
conformity with the Purchaser's Information, a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made, not misleading, (ii) any representation
or warranty made by the Purchaser in Section 9 hereof being, or alleged to be,
untrue or incorrect, or (iii) any failure by the Purchaser to perform its
obligations under this Agreement; and the Purchaser shall reimburse the Seller,
and each other indemnified party for any legal and other expenses reasonably
incurred by them in connection with investigating or defending or preparing to
defend any such loss, claim, damage, liability or action. The foregoing
indemnity agreement is in addition to any liability which the Purchaser
otherwise may have to the Seller, or any other such indemnified party,
(d) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 13 except to the extent that it has been prejudiced
in any material respect by such failure or from any liability which it may have
otherwise). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent it
may elect by written notice delivered to the indemnified party promptly (but, in
any event, within 30 days) after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action, or
(iii) such indemnified party or parties shall have reasonably concluded that
there is a conflict of interest between itself or themselves and the
indemnifying party in the conduct of the defense of any claim or that the
interests of the indemnified party or parties are not substantially co-extensive
with those of the indemnifying party (in which case the indemnifying parties
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying parties (provided, however, that the
indemnifying party shall be liable only for the
17
fees and expenses of one counsel in addition to one local counsel in the
jurisdiction involved. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement or
any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
(e) If the indemnification provided for in paragraphs (a) and (b) of this
Section 13 shall for any reason be unavailable to an indemnified party in
respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to in Section 13, then the indemnifying party shall in lieu of
indemnifying the indemnified party contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as shall be appropriate to reflect
the relative benefits received by the Seller on the one hand and the Purchaser
on the other from the purchase and sale of the Mortgage Loans, the offering of
the Certificates and the other transactions contemplated hereunder. No person
found liable for a fraudulent misrepresentation shall be entitled to
contribution from any person who is not also found liable for such fraudulent
misrepresentation.
(f) The parties hereto agree that reliance by an indemnified party on any
publicly available information or any information or directions furnished by an
indemnifying party shall not constitute negligence, bad faith or willful
misconduct by such indemnified party.
Section 14 Notices
All demands, notices and communications hereunder shall be in writing
but March be delivered by facsimile transmission subsequently confirmed in
writing. Notices to the Seller shall be directed to Xxxxxxx Xxxxx Mortgage
Lending Inc., 000 Xxxxx Xxxxxx, 4 World Financial Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, (Telecopy: 212-449-6710), and notices to the Purchaser shall be
directed to Xxxxxxx Xxxxx Mortgage Investors, Inc., 000 Xxxxx Xxxxxx, 4 World
Financial Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, (Telecopy:
212-449-6710), Attention: Xxxxx Xxxxxxx; or to any other address as may
hereafter be furnished by one party to the other party by like notice. Any such
demand, notice or communication hereunder shall be deemed to have been received
on the date received at the premises of the addressee (as evidenced, in the case
of registered or certified mail, by the date noted on the return receipt)
provided that it is received on a business day during normal business hours and,
if received after normal business hours, then it shall be deemed to be received
on the next business day.
Section 15 Transfer of Mortgage Loans
The Purchaser retains the right to assign the Mortgage Loans and any
or all of its interest under this Agreement to the Trustee without the consent
of the Seller, and, upon such assignment, the Trustee shall succeed to the
applicable rights and obligations of the Purchaser hereunder; provided, however,
the Purchaser shall remain entitled to the benefits set forth in Sections 11, 13
and 17 hereto and as provided in Section 2(a). Notwithstanding the foregoing,
the sole and exclusive right and remedy of the Trustee with respect to a breach
of representation or warranty of the Seller shall be the purchase or
substitution obligations of the Seller contained in Sections 5 and 7 hereof.
Section 16 Termination
18
This Agreement may be terminated (a) by the mutual consent of the
parties hereto prior to the Closing Date, (b) by the Purchaser, if the
conditions to the Purchaser's obligation to close set forth under Section 10(a)
hereof are not fulfilled as and when required to be fulfilled or (c) by the
Seller, if the conditions to the Seller's obligation to close set forth under
Section 10(b) hereof are not fulfilled as and when required to be fulfilled. In
the event of termination pursuant to clause (b), the Seller shall pay, and in
the event of termination pursuant to clause (c), the Purchaser shall pay, all
reasonable out-of-pocket expenses incurred by the other in connection with the
transactions contemplated by this Agreement. In the event of a termination
pursuant to clause (a), each party shall be responsible for its own expenses.
Section 17 Representations, Warranties and Agreements to Survive Delivery
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Seller submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans to the Purchaser (and by the Purchaser to
the Trustee). Subsequent to the delivery of the Mortgage Loans to the Purchaser,
the Seller's representations and warranties contained herein with respect to the
Mortgage Loans shall be deemed to relate to the Mortgage Loans actually
delivered to the Purchaser and included in the Final Mortgage Loan Schedule and
any Substitute Mortgage Loan and not to those Mortgage Loans deleted from the
Preliminary Mortgage Loan Schedule pursuant to Section 3 hereof prior to the
Closing.
Section 18 Mandatory Delivery; Grant of Security Interest
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
obligation to deliver or cause to be delivered the consideration for the
Mortgage Loans pursuant to Section 2 hereof. The Seller agrees that, upon
acceptance of the Mortgage Loans by the Purchaser or its designee and delivery
of payment to the Seller, that its security interest in the Mortgage Loans shall
be released. All rights and remedies of the Purchaser under this Agreement are
distinct from, and cumulative with, any other rights or remedies under this
Agreement or afforded by law or equity and all such rights and remedies may be
exercised concurrently, independently or successively.
Notwithstanding the foregoing, if on the Closing Date, each of the
conditions set forth in Section 10 hereof shall have been satisfied and the
Purchaser shall not have paid or caused to be paid the purchase price as
described in Section 2(c) hereof, or any such condition shall not have been
waived or satisfied and the Purchaser determines not to pay or cause to be
19
paid the purchase price, the Purchaser shall immediately effect the redelivery
of the Mortgage Loans, if delivery to the Purchaser has occurred and the
security interest created by this Section 18 shall be deemed to have been
released.
Section 19 Severability
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any 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.
Section 20 Counterparts
This Agreement may be executed in counterparts, each of which will be
an original, but which together shall constitute one and the same agreement.
Section 21 Amendment
This Agreement cannot be amended or modified in any manner without the
prior written consent of each party.
Section 22 GOVERNING LAW
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND PERFORMED IN THE
STATE OF NEW YORK AND SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
Section 23 Further Assurances
Each of the parties agrees to execute and deliver such instruments and
take such actions as another party may, from time to time, reasonably request in
order to effectuate the purpose and to carry out the terms of this Agreement
including any amendments hereto which may be required by either Rating Agency.
Section 24 Successors and Assigns
This Agreement shall bind and inure to the benefit of and be enforceable by
the Seller and the Purchaser and their permitted successors and assigns and, to
the extent specified in Section 13 hereof, Xxxxxxx Xxxxx, and their directors,
officers and controlling persons (within the meaning of federal securities
laws). The Seller acknowledges and agrees that the Purchaser may
20
assign its rights under this Agreement (including, without limitation, with
respect to the Seller's representations and warranties respecting the Mortgage
Loans) to the Trustee. Any person into which the Seller may be merged or
consolidated (or any person resulting from any merger or consolidation involving
the Seller), any person resulting from a change in form of the Seller or any
person succeeding to the business of the Seller, shall be considered the
"successor" of the Seller hereunder and shall be considered a party hereto
without the execution or filing of any paper or any further act or consent on
the part of any party hereto. Except as provided in the two preceding sentences,
this Agreement cannot be assigned, pledged or hypothecated by either party
hereto without the written consent of the other parties to this Agreement and
any such assignment or purported assignment shall be deemed null and void.
Section 25 The Seller
The Seller will keep in full effect all rights as are necessary to
perform their respective obligations under this Agreement.
Section 26 Entire Agreement
This Agreement contains the entire agreement and understanding between
the parties with respect to the subject matter hereof, and supersedes all prior
and contemporaneous agreements, understandings, inducements and conditions,
express or implied, oral or written, of any nature whatsoever with respect to
the subject matter hereof.
Section 27 No Partnership
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
21
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective duly authorized officers as of the date first above
written.
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT 1
CONTENTS OF MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items, which shall be available for inspection by the Purchaser or
its designee, and which shall be delivered to the Purchaser or its designee
pursuant to the terms of the Agreement.
A. With respect to each Mortgage Loan (other than a Cooperative Loan):
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Backed Securities Trust,
Series 2007-1 Mortgage Pass-Through Certificates, 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 recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iii) an original Assignment of the Mortgage executed in the following
form: "HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series
2007-1 Mortgage Pass-Through Certificates.
(iv) the original recorded Assignment or Assignments of the Mortgage
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), if applicable and only to the extent available to
the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) the original power of attorney, if applicable.
B. With respect to each Mortgage Loan that is a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the
E-1-1
order of HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series
2007-1 Mortgage Pass-Through Certificates, 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 duly executed assignment of Security Agreement to
the Trustee;
(iii) the acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and any
required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3 with
respect to the Security Agreement, indicating the Trustee as the assignee
of the secured party;
(v) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank attached;
(vi) the original collateral assignment of the proprietary lease by
Mortgagor to the originator;
(vii) a copy of the recognition agreement;
(viii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3 with
evidence of filing thereon; and
(ix) the originals of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loan.
E-1-2
EXHIBIT 2
CONTENTS OF FINAL MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser or its agent, and which shall be delivered to the Purchaser
pursuant to the terms of the Agreement.
A. With respect to each Mortgage Loan (other than a Cooperative Loan):
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Backed Securities Trust,
Series 2007-1 Mortgage Pass-Through Certificates, 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 recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iii) an original Assignment of the Mortgage executed in the following
form: "HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series
2007-1 Mortgage Pass-Through Certificates.
(iv) the original recorded Assignment or Assignments of the Mortgage
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), if applicable and only to the extent available to
the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) the original power of attorney, if applicable.
B. With respect to each Mortgage Loan that is a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of
E-2-1
the Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-1 Mortgage
Pass-Through Certificates, 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 duly executed assignment of Security Agreement to
the Trustee;
(iii) the acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and any
required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3 with
respect to the Security Agreement, indicating the Trustee as the assignee
of the secured party;
(v) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank attached;
(vi) the original collateral assignment of the proprietary lease by
Mortgagor to the originator;
(vii) a copy of the recognition agreement;
(viii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3 with
evidence of filing thereon; and
(ix) the originals of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loan.
E-2-2
EXHIBIT 3
MORTGAGE LOAN SCHEDULE INFORMATION
The Preliminary and Final Mortgage Loan Schedules shall set forth the
following information with respect to each Mortgage Loan:
the loan number of the mortgage loan;
the city, state and zip code of the Mortgage Property;
a code indicating whether the Mortgaged Property is owner-occupied;
the type of Residential Dwelling constituting the Mortgaged Property;
the original months to maturity;
the original date of the mortgage;
the Loan-to-Value Ratio at origination;
the Mortgage Rate;
the date on which the first Monthly Payment was due on the Mortgage
Loan;
the stated maturity date;
the amount of the Monthly Payment at origination;
the amount of the Monthly Payment as of the Cut-off Date;
the last Due Date on which a Monthly Payment was actually applied to
the unpaid Stated Principal Balance;
the original principal amount of the Mortgage Loan;
the Stated Principal Balance of the Mortgage Loan as of the close of
business on the Cut-off Date;
a code indicating the purpose of the Mortgage Loan (i.e., purchase
financing, Rate/Term Refinancing, Cash-Out Refinancing);
a code indicating the documentation style (i.e., full, alternative or
reduced);
the Value of the Mortgaged Property;
the sale price of the Mortgaged Property, if applicable;
the actual unpaid principal balance of the Mortgage Loan as of the
Cut-off Date;
E-3-1
the Servicing Fee;
with respect to each adjustable-rate Mortgage Loan, the next Interest
Rate Adjustment Date;
with respect to each adjustable-rate Mortgage Loan, the Gross Margin;
with respect to each adjustable-rate Mortgage Loan, the Minimum and
Maximum Mortgage Rate under the terms of the Mortgage Note;
with respect to each adjustable-rate Mortgage Loan, the First Rate
Cap;
with respect to each adjustable-rate Mortgage Loan, the related
Periodic Rate Cap;
with respect to each adjustable-rate Mortgage Loan, whether additional
collateral exists;
with respect to each adjustable-rate Mortgage Loan, whether it is
interest-only; and
with respect to each adjustable-rate Mortgage Loan, the Seller.
Such schedule shall set forth the following information with respect
to the Mortgage Loans in the aggregate as of the Cut-off Date: (1) the number of
Mortgage Loans; (2) the current principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Rate of the Mortgage Loans; and (4) the weighted
average maturity of the Mortgage Loans.
E-3-2
EXHIBIT 4
SELLER'S INFORMATION
All information in the Prospectus Supplement described under the
following Sections: "Summary -- The Mortgage Loans," "Description of the
Mortgage Pools" and "Annex II -- The Mortgage Pool".
E-4-1
EXHIBIT 5
PURCHASER'S INFORMATION
All information in the Prospectus Supplement and the Prospectus,
except the Seller's Information.
E-5-1
EXHIBIT 6
SCHEDULE OF LOST NOTES
Available Upon Request
E-6-1
EXHIBIT 7
REVISED April 18, 0000
XXXXXXXX X - Standard & Poor's Anti-Predatory Lending Categories
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
Name of Anti-Predatory Lending Law/Effective Category under Applicable
State/Jurisdiction Date Anti-Predatory Lending Law
------------------ ----------------------------------------------- ----------------------------
Arkansas Arkansas Home Loan Protection Act, Ark. Code High Cost Home Loan
Xxx. Sections 00-00-000 et seq.
Effective July 16, 0000
Xxxxxxxxx Xxxxxxx, XX Ordinance No. 72-2003 (PSH), Mun. Code Sections Covered Loan
757.01 et seq.
Effective June 2, 2003
Colorado Consumer Equity Protection, Colo. Stat. Xxx. Covered Loan
Sections 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,
0000
Xxxxxxxxxxx Xxxxxxxxxxx Abusive Home Loan Lending Practices High Cost Home Loan
Act, Conn. Gen. Stat. Sections 36a-746 et seq.
Effective October 1, 0000
Xxxxxxxx xx Xxxxxxxx Home Loan Protection Act, D.C. Code Sections Covered Loan
26-1151.01 et seq.
Effective for loans closed on or after January
28, 2003
Florida Fair Lending Act, Fla. Stat. Xxx. Sections High Cost Home Loan
494.0078 et seq.
E-7-1
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Law/Effective Category under Applicable
State/Jurisdiction Date Anti-Predatory Lending Law
------------------ ----------------------------------------------- ----------------------------
Effective October 2, 2002
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. High Cost Home Loan
2003) Sections 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
Georgia as amended (Mar. 7, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. High Cost Home Loan
- current) Sections 7-6A-1 et seq.
Effective for loans closed on or after Xxxxx 0,
0000
XXXXX Section 32 Home Ownership and Equity Protection Act of High Cost Loan
1994, 15 U.S.C. Section 1639, 12 C.F.R.
Sections 226.32 and 226.34
Effective October 1, 1995, amendments October
1, 2002
Illinois High Risk Home Loan Act, Ill. Comp. Stat. tit. High Risk Home Loan
815, Sections 137/5 et seq.
Effective January 1, 2004 (prior to this date,
regulations under Residential Mortgage License
Act effective from March 14, 2001)
Kansas Consumer Credit Code, Kan. Stat. Xxx. Sections High Loan to Value Consumer
16a-1-101 et seq. Loan (id. Section 16a-3-207)
and;
Sections 16a-1-301 and 16a-3-207 became High APR Consumer Loan (id.
effective April 14, 1999; Section 16a-3-308a Section 16a-3-308a)
became effective July 1, 1999
Kentucky 2003 KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. High Cost Home Loan
Rev. Stat. Sections 360.100 et seq.
Effective June 24, 2003
Maine Truth in Lending, Me. Rev. Stat. tit. 9-A, High Rate High Fee Mortgage
Sections 8-101 et seq.
Effective September 29, 1995 and as amended
from time to time
E-7-2
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Law/Effective Category under Applicable
State/Jurisdiction Date Anti-Predatory Lending Law
------------------ ----------------------------------------------- ----------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. Sections 32.00 High Cost Home Loan
et seq. and 209 C.M.R. Sections 40.01 et seq.
Effective March 22, 2001 and amended from time
to time
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. Sections Home Loan
598D.010 et seq.
Effective October 1, 2003
New Jersey New Jersey Home Ownership Security Act of 2002, High Cost Home Loan
N.J. Rev. Stat. Sections 46:10B-22 et seq.
Effective for loans closed on or after November
27, 2003
New Mexico Home Loan Protection Act, N.M. Rev. Stat. High Cost Home Loan
Sections 58-21A-1 et seq.
Effective as of January 1, 2004; Revised as of
February 26, 2004
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made on or after
April 1, 2003
North Carolina Restrictions and Limitations on High Cost Home High Cost Home Loan
Loans, N.C. Gen. Stat. Sections 24-1.1E et seq.
Effective July 1, 2000; amended October 1, 2003
(adding open-end lines of credit)
Ohio H.B. 386 (codified in various sections of the Covered Loan
Ohio Code), Ohio Rev. Code Xxx. Sections
1349.25 et seq.
Effective May 24, 2002
Oklahoma Consumer Credit Code (codified in various Subsection 10 Mortgage
sections of Title 14A)
Effective July 1, 2000; amended effective
January 1, 2004
E-7-3
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Law/Effective Category under Applicable
State/Jurisdiction Date Anti-Predatory Lending Law
------------------ ----------------------------------------------- ----------------------------
South Carolina South Carolina High Cost and Consumer Home High Cost Home Loan
Loans Act, S.C. Code Xxx. Sections 37-23-10 et
seq.
Effective for loans taken on or after January
1, 0000
Xxxx Xxxxxxxx Xxxx Xxxxxxxx Residential Mortgage Lender, West Virginia Mortgage Loan
Broker and Servicer Act, W. Va. Code Xxx. Act Loan
Sections 31-17-1 et seq.
Effective June 5, 2002
STANDARD & POOR'S COVERED LOAN CATEGORIZATION
Name of Anti-Predatory Lending Law/Effective Category under Applicable
State/Jurisdiction Date Anti-Predatory Lending Law
------------------ ----------------------------------------------- ----------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. Covered Loan
2003) Sections 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 0000
Xxx Xxxxxx Xxx Xxxxxx Home Ownership Security Act of 2002, Covered Home Loan
N.J. Rev. Stat. Sections 46:10B-22 et seq.
Effective November 27, 2003 - July 5, 2004
STANDARD & POOR'S HOME LOAN CATEGORIZATION
Name of Anti-Predatory Lending Law/Effective Category under Applicable
State/Jurisdiction Date Anti-Predatory Lending Law
------------------ ----------------------------------------------- ----------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. Home Loan
2003) Sections 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
E-7-4
STANDARD & POOR'S HOME LOAN CATEGORIZATION
Name of Anti-Predatory Lending Law/Effective Category under Applicable
State/Jurisdiction Date Anti-Predatory Lending Law
------------------ ----------------------------------------------- ----------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, Home Loan
N.J. Rev. Stat. Sections 46:10B-22 et seq.
Effective for loans closed on or after November
27, 2003
New Mexico Home Loan Protection Act, N.M. Rev. Stat. Home Loan
Sections 58-21A-1 et seq.
Effective as of January 1, 2004; Revised as of
February 26, 2004
North Carolina Restrictions and Limitations on High Cost Home Consumer Home Loan
Loans, N.C. Gen. Stat. Sections 24-1.1E et seq.
Effective July 1, 2000; amended October 1, 2003
(adding open-end lines of credit)
South Carolina South Carolina High Cost and Consumer Home Consumer Home Loan
Loans Act, S.C. Code Xxx. Sections 37-23-10 et
seq.
Effective for loans taken on or after January
1, 2004
E-7-5
SCHEDULE A
REQUIRED RATINGS FOR EACH CLASS OF CERTIFICATES
Offered Certificates
Class S&P Fitch
----- --- -----
Class I-A-1 AAA AAA
Class I-A-2 AAA AAA
Class II-A-1 AAA AAA
Class II-A-2 AAA AAA
Class A-R AAA AAA
Class M-1 N/R AA
Class M-2 N/R A
Class M-3 N/R BBB
Class X-0 X/X XX
Xxxxx X-0 X/X X
Class B-3 N/R N/R
None of the above ratings has been lowered since the respective dates of such
letters.
SCHEDULE B
SCHEDULE OF ASSIGNED AGREEMENTS
1. Master Mortgage Loan Sale and Servicing Agreement, dated as of October 1,
2006, between ABN AMRO Mortgage Group, Inc. ("ABN AMRO") and Xxxxxxx Xxxxx
Mortgage Lending, Inc. ("MLML");
2. Assignment, Assumption and Recognition Agreement, dated as of March 1,
2007, among MLML, Xxxxxxx Xxxxx Mortgage Investors, Inc. ("MLMI") and ABN
AMRO;
3. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
April 1, 2005, between MLML and ComUnity Lending, Incorporated as amended
by that certain Amendment Number 1 to Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of November 1, 2005, and that certain
Amendment Number 2 to Master Mortgage Loan Purchase and Interim Servicing
Agreement, dated as of April 1, 2006 and the Bring Down Letter related
thereto;
4. Master Mortgage Loan Purchase and Servicing Agreement, dated as of November
1, 2004, between Xxxxxxx Xxxxx Bank, USA ("MLBUSA") and Countrywide Home
Loans, Inc. ("CWHL");
5. Assignment, Assumption and Recognition Agreement, dated as of March 1,
2007, among MLMI, MLML, CWHL and Countrywide Home Loans Servicing LP
("CWHLS");
6. Assignment, Assumption and Recognition Agreement, dated as of March 1,
2007, among MLBUSA, MLML, CWHL and CWHLS;
7. Master Loan Purchase and Sale Agreement, dated as of March 1, 2006, between
Xxxxxxx Xxxxx Credit Corporation ("MLCC") and E-Loan, Inc. and the Bring
Down Letter related thereto;
8. Master Seller's Warranties and Servicing Agreement, dated as of May 1,
2006, between MLML and IndyMac Bank, F.S.B. ("IndyMac") and the Bring Down
Letter related thereto;
9. Assignment, Assumption and Recognition Agreement, dated as of March 1,
2007, among MLML, MLMI and IndyMac;
10. Master Loan Purchase and Sale Agreement, dated as of February 1, 2005,
between MLCC and Market Street Mortgage Corporation and Market Street
Mortgage Corporation D/B/A Leader Financial and Market Street Mortgage
Corporation D/B/A Memorial Park Mortgage, as amended by the Delegated
Underwriting Addendum to Master Loan Purchase and Sale Agreement, dated as
of October 3, 2006, between MLCC and Market Street Mortgage Corporation,
and the Bring-Down Letter related thereto;
11. Master Seller's Warranties and Servicing Agreement, dated as of May 1,
2004, between MLBUSA and National City Mortgage Co. ("Nat City") as amended
by that certain
Amendment Number One, dated as of May 1, 2004, to the Master Seller's
Warranties and Servicing Agreement;
12. Assignment, Assumption and Recognition Agreement, dated as of March 1,
2007, among MLMI, MLML and Nat City;
13. Assignment, Assumption and Recognition Agreement, dated as of March 1,
2007, among MLBUSA, MLML and Nat City.
14. Portfolio Servicing Agreement, dated January 28, 2000, between MLCC and
Cendant Mortgage Corporation ("Cendant PHH");
15. Loan Sub-Servicing Agreement, dated January 28, 2000, between MLCC and
Cendant PHH;
16. Securitized Loan Primary Servicing Agreement, dated January 28, 2000,
between MLCC and Cendant PHH;
17. Servicing Rights Purchase, and Sale Agreement, dated January 28, 2000,
between MLCC and Cendant PHH;
18. Amendment Agreement No. 1, dated as of January 2, 2001, between MLCC and
Cendant PHH;
19. Assignment, Assumption and Recognition Agreement, dated as of March 1,
2007, among MLML, MLMI and PHH Mortgage Corporation ("PHH");
20. Assignment and Assumption Agreement, dated as of March 1, 2007, among MLCC,
MLML and PHH;
21. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
August 1, 2005, between MLCC and Quicken Loans Inc., and the Bring-Down
Letter related thereto;
22. Bulk Sale Addendum to the Master Loan Purchase and Sale Agreement, dated as
of July 11, 2005, between MLCC and Silver State Financial Services, Inc.;
23. Seller's Purchase, Warranties and Interim Servicing Agreement, dated as of
December 1, 2006, between MLML and Wachovia Mortgage Corporation
("Wachovia"), as amended by the Regulation AB Compliance Addendum to
Seller's Purchase, Warranties and Servicing Agreement, dated as of December
1, 2006 and the Bring Down Letter related thereto;
24. Mortgage Loan Purchase Agreement, dated as of May 1, 2006, among MLML,
Washington Mutual Bank and Washington Mutual Bank fsb;
25. Servicing Agreement, dated as of November 1, 2005, between Washington
Mutual Bank and MLML, as amended by the Regulation AB Amendment to
Servicing Agreement, dated as of March 1, 2006;
26. Mortgage Loan Purchase Agreement, dated as of November 1, 2005, between
MLML and Washington Mutual Mortgage Securities Corp. ("WMMSC") as amended
by that certain Regulation AB Amendment to Mortgage Loan Purchase and Sale
Agreement, dated as of March 1, 2006;
27. Assignment, Assumption and Recognition Agreement, dated as of March 1,
2007, among MLML, MLMI, Washington Mutual Bank and WMMSC;
28. Master Loan Purchase and Sale Agreement, dated as of August 1, 2005,
between MLCC and Mortgage Access Corp. D/B/A Weichert Financial Services
("Weichert"), as amended and supplemented by the Bulk Sale Addendum to the
Mortgage Loan Purchase and Sale Agreement, dated as of August 1, 2005,
between MLCC and Weichert, and the Bring-Down Letter related thereto;
29. Seller's Warranties and Servicing Agreement (WFHM Mortgage Loan Series
2006-W60), dated as of July 1, 2006, between MLML and Xxxxx Fargo Bank,
N.A. ("Xxxxx Fargo");
30. Seller's Warranties and Servicing Agreement (WFHM Mortgage Loan Series
2006-W82), dated as of October 1, 2006, between Xxxxxxx Xxxxx Bank, USA
("MLBUSA") and Xxxxx Fargo;
31. Seller's Warranties and Servicing Agreement (WFHM Mortgage Loan Series
2006-W90), dated as of November 1, 2006, between Xxxxxxx Xxxxx Bank, USA
("MLBUSA") and Xxxxx Fargo and the Bring Down Letter related thereto;
32. Assignment, Assumption and Recognition Agreement, dated as of March 1,
2007, among MLML, MLMI and Xxxxx Fargo;
33. Assignment, Assumption and Recognition Agreement, dated as of March 1,
2007, among MLBUSA, the MLML and Xxxxx Fargo.
