CHASE MORTGAGE FINANCE CORPORATION
PURCHASER
X.X. XXXXXX MORTGAGE ACQUISITION CORP.
MORTGAGE LOAN SELLER
MORTGAGE LOAN SALE AGREEMENT
Dated as of September 1, 2006
$ 493,291,937 (APPROXIMATE)
Mortgage Loan Sale Agreement (the "Agreement"), dated as of September 1,
2006, between Chase Mortgage Finance Corporation, as purchaser (the
"Purchaser"), and X.X. Xxxxxx Mortgage Acquisition Corp., as seller (the
"Mortgage Loan Seller").
The Mortgage Loan Seller agrees to sell, and the Purchaser agrees to
purchase, certain mortgage loans listed in Exhibit A hereto (the "Mortgage
Loans") as described herein. The Purchaser, a Delaware corporation with its
principal place of business in Iselin, New Jersey, is a wholly-owned
limited-purpose finance subsidiary of JPMorgan Chase & Co. The Purchaser intends
to deposit the Mortgage Loans into a trust and sell a series of Mortgage
Pass-Through Certificates, Series 2006-S2 (the "Certificates"), evidencing
interests in the Mortgage Loans under a Pooling and Servicing Agreement to be
dated as of September 1, 2006 among the Purchaser, JPMorgan Chase Bank, N.A., as
servicer and custodian, The Bank of New York, as trustee (the "Trustee") and
JPMorgan Chase Bank, N.A., as paying agent, substantially in the form previously
delivered by the Purchaser to the Mortgage Loan Seller (the "Pooling and
Servicing Agreement").
Pursuant to the Pooling and Servicing Agreement, the Purchaser will assign
all of its right, title and interest in and to the Mortgage Loans to the Trustee
for the benefit of the Certificateholders thereunder. The Certificates will
consist of Class A Certificates (the "Class A Certificates"), Class M
Certificates (the "Class M Certificates," and together with the Class A
Certificates, the Class B-1 Certificates and the Class B-2 Certificates, the
"Offered Certificates"), and the Class B-1, Class B-2, Class B-3, Class B-4 and
Class B-5 Certificates (collectively, the "Class B Certificates") and will
evidence specified interests in the pool of Mortgage Loans and certain other
property held in trust under the Pooling and Servicing Agreement. The Class M
Certificates and the Class B Certificates, the aggregate original principal
amount of which will initially equal approximately 2.90% and 1.35% respectively,
of the outstanding principal balance of the Mortgage Loans, will be subordinate
to the Class A Certificates, the aggregate original principal amount of which
will initially equal approximately 95.75% of the outstanding principal balance
of the Mortgage Loans (such percentage referred to herein as the "Senior
Percentage").
The Purchaser has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 relating to the Offered
Certificates, and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933 and the rules of the Commission thereunder.
The Purchaser has caused a prospectus dated September 25, 2006 as supplemented
by a prospectus supplement, dated September 25, 2006 (as supplemented, the
"Prospectus") to be prepared with respect to the sale of the Offered
Certificates, copies of which have been delivered to the Mortgage Loan Seller.
All capitalized terms not otherwise defined herein have the meanings set
forth in the Pooling and Servicing Agreement. The following terms are defined as
follows:
Cut-off Date: September 1, 2006
First Distribution Date: October 25, 2006
Closing Date: September 26, 2006
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
ARTICLE 1
SALE AND CONVEYANCE OF MORTGAGE LOANS
SECTION 1.01 Sale and Conveyance of Mortgage; Possession of Mortgage File.
The Mortgage Loan Seller does hereby sell, transfer, assign, set over and convey
to the Purchaser, without recourse, all right, title, and interest of the
Mortgage Loan Seller in and to the Mortgage Loans and each of the documents and
records maintained by the Mortgage Loan Seller with respect to the origination
or servicing of a particular Mortgage Loan (each, a "Mortgage File") including
all principal and interest due on or with respect to the Mortgage Loans after
the Cut-off Date. All documents relating to the Mortgage Loans not delivered to
the Purchaser are and shall be held in trust by the Mortgage Loan Seller for the
benefit of the Purchaser as the owner thereof or the Purchaser's assignee or
designee and the Mortgage Loan Seller's possession of the contents of each such
document so retained is at the will of the Purchaser or the Purchaser's assignee
or designee and such retention and possession by the Mortgage Loan Seller is in
a custodial capacity only. Upon sale of the Mortgage Loans, the ownership of
each related Mortgage Note, the Mortgage and the contents of the related
Mortgage File will be vested in the Purchaser and the ownership of all records
and documents with respect to the related Mortgage Loan prepared by or which
come into the possession of the Mortgage Loan Seller shall immediately vest in
the Purchaser and shall be retained and maintained, in trust, by the Mortgage
Loan Seller at the will of the Purchaser in such custodial capacity only. The
Mortgage Loan Seller's records will accurately reflect the sale of each Mortgage
Loan to the Purchaser. The Mortgage Loan Seller shall release its custody of the
contents of any Mortgage File only in accordance with written instructions from
the Purchaser or the Purchaser's assignee or designee, except that where such
release is required as incidental to a repurchase of any such Mortgage Loan
pursuant to Section 1.04 or 2.02 hereof, such written instructions shall not be
required. The ownership of each Mortgage Note, the Mortgage and the contents of
the related Mortgage File will be vested in the Trustee, as assignee of the
Purchaser. The Mortgage Loan Seller shall not take any action inconsistent with
such ownership and shall not claim any ownership interest therein. The Mortgage
Loan Seller shall respond to any third party inquiries with respect to ownership
of the Mortgage Loans by stating that such ownership is held by the Trustee and
the Certificateholders.
SECTION 1.02 Books and Records. From and after the sale of the Mortgage
Loans to the Purchaser, record title to each Mortgage and the related Mortgage
Note shall be transferred to the Purchaser or its assignee in accordance with
this Agreement. All rights arising out of the Mortgage Loans, including, but not
limited to, all funds received on or in connection with a Mortgage Loan, shall
be received and held by the Mortgage Loan Seller in trust for the benefit of the
Purchaser or its assignee as the owner of the Mortgage Loans. The Mortgage Loan
Seller shall be responsible for maintaining, and shall maintain, a set of
records for each Mortgage Loan which shall be clearly marked to reflect the
ownership of each Mortgage Loan by the Purchaser or its assignee pursuant to the
Pooling and Servicing Agreement.
2
SECTION 1.03 Delivery of Mortgage Loan Documents. The Mortgage Loan Seller
has delivered or caused to be delivered to the Purchaser or its designee in
accordance with the instructions of the Purchaser, each of the documents
referred to in Section 2.01 of the Pooling and Servicing Agreement.
If, in connection with any Mortgage Loan, the Mortgage Loan Seller cannot
deliver the Mortgage with evidence of recording thereon concurrently with the
execution and delivery of this Agreement, or within 120 days thereafter, solely
because of a delay caused by the public recording office where such Mortgage has
been delivered for recordation, the Mortgage Loan Seller shall deliver or cause
to be delivered to the Purchaser or its designee an Officer's Certificate, with
a photocopy of such Mortgage attached thereto, stating that such Mortgage has
been delivered to the appropriate public recording official for recordation. The
Mortgage Loan Seller shall promptly deliver or cause to be delivered to the
Purchaser or its designee such Mortgage with evidence of recording indicated
thereon upon receipt thereof from the public recording official. Notwithstanding
the above, the Mortgage Loan Seller shall co-operate with the Servicers and use
its best efforts to cause each original Mortgage with evidence of recording
thereon to be delivered to the Purchaser or its designee within 180 days of the
Closing Date.
SECTION 1.04 Review of Mortgage Loans; Repurchase of Mortgage Loans. The
Purchaser or its designee shall review the documents delivered pursuant to
Section 1.03 or Section 2.03 hereof within 270 days after the Closing Date or
the date of substitution, as the case may be, to ascertain that all required
documents have been executed and received and that such documents relate to the
mortgage loans identified on the Mortgage Loan Schedule. If the Purchaser or its
designee discovers that any document or documents constituting a part of a
Mortgage File is missing or defective in any material respect, the Purchaser or
its designee shall notify the Mortgage Loan Seller promptly (and in any event
within no more than five Business Days). The Mortgage Loan Seller shall correct
or cure any such omission or defect within 60 days from the date the Mortgage
Loan Seller was notified of the omission or defect, and, if the Mortgage Loan
Seller does not correct or cure each omission or defect within such period, the
Mortgage Loan Seller shall repurchase such Mortgage Loan at the Purchase Price
within 90 days of the date the Mortgage Loan Seller was notified of such
omission or defect. At the time of such repurchase, the Purchaser or the
Trustee, as appropriate, shall, in exchange for a written receipt therefor,
release documents in its possession relating to such Mortgage Loan to the
Mortgage Loan Seller.
The Mortgage Loan Seller shall repurchase all Mortgage Loans to which an
exception was taken in the Exception Report and confirmed to the Company by the
Trustee unless such exception is cured to the satisfaction of the Purchaser
within five Business Days of the date hereof (or such other period as is agreed
by the Purchaser and the Trustee, but not more than 60 days). At the time of
such repurchase, the Purchaser or the Trustee, as appropriate, shall, in
exchange for a written receipt therefor, release documents in its possession
relating to such Mortgage Loan to the Mortgage Loan Seller.
SECTION 1.05 Treatment as a Security Agreement. The Mortgage Loan Seller,
concurrently with the execution and delivery hereof, has conveyed to the
Purchaser all of the Mortgage Loan Seller's right, title and interest in and to
the Mortgage Loans. The parties intend
3
that the conveyance of the Mortgage Loan Seller's right, title and interest in
and to the Mortgage Loans pursuant to this Agreement shall constitute a purchase
and sale and not a loan. If such conveyance is deemed to be a pledge and not a
sale, then the parties also intend and agree that the Mortgage Loan Seller shall
be deemed to have granted, and in such event does hereby grant, to the Purchaser
a first priority security interest in all of the Mortgage Loan Seller's right,
title and interest in and to the Mortgage Loans, all payments of principal or
interest on such Mortgage Loans, all other payments made in respect of such
Mortgage Loans, and all proceeds if any thereof, and that this Agreement shall
constitute a security agreement under applicable law. If such conveyance is
deemed to be a pledge and not a sale, the Purchaser may, to secure the
Purchaser's own borrowings, repledge (i) all or any portion of the Mortgage
Loans pledged to the Purchaser and not released from the security interest of
this Agreement at the time of such pledge and (ii) all proceeds, products and
profits derived from such Mortgage Loans, including, without limitation, to the
extent of the Mortgage Loan Seller's interest therein, all moneys, goods,
insurance proceeds and other tangible or intangible property received upon the
liquidation or sale thereof or otherwise relating thereto. Such a repledge may
be made by the Purchaser with or without a repledge by the Purchaser of its
rights under this Agreement, and without further notice to or acknowledgment
from the Mortgage Loan Seller. The Mortgage Loan Seller waives, to the extent
permitted by applicable law, all claims, causes of action and remedies whether
legal or equitable (including any right of set-off) against the Purchaser or any
assignee of the Purchaser relating to such action by the Purchaser.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Representations and Warranties of the Mortgage Loan Seller.
The Mortgage Loan Seller represents and warrants to the Purchaser that, as of
the Closing Date, it has made the representations and warranties set forth in
Section 3.01 of the Pooling and Servicing Agreement for the benefit of the
Purchaser. Such representations and warranties are incorporated by reference in
this Section 2.01 hereof, and the Purchaser may rely thereon as if such
representations and warranties were fully set forth herein.
It is understood and agreed that the representations and warranties
incorporated by reference in this Section 2.01 shall survive the sale of the
Mortgage Loans to the Purchaser, the sale and delivery of the Mortgage Loans to
the Trust Fund and the issuance, sale and delivery of the Certificates by the
Purchaser, shall continue so long as any Class A, Class M or Class B Certificate
shall remain outstanding or until the Pooling and Servicing Agreement shall have
been terminated as therein provided, and shall inure to the benefit of the
Purchaser, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File.
The Mortgage Loan Seller acknowledges that, pursuant to the Pooling and
Servicing Agreement, the Purchaser will assign all of its right, title and
interest in and to the Mortgage Loans and its right to exercise the remedies
created by Sections 1.04 and 2.02 hereof to the Trustee for the benefit of the
Certificateholders. The Mortgage Loan Seller agrees that, upon such assignment
to the Trustee, the Trustee may enforce directly, without joinder of the
Purchaser, the repurchase obligations of the Mortgage Loan Seller set forth in
Sections 1.04 and
4
2.02 hereof with respect to breaches of the representations and warranties set
forth in Section 3.01 of the Pooling and Servicing Agreement, or with respect to
documentary defects or omissions set forth in Section 2.02 of the Pooling and
Servicing Agreement.
SECTION 2.02 Breach of Representations and Warranties; Repurchase of
Mortgage Loans. Upon discovery by the Mortgage Loan Seller, the Purchaser or the
Trustee of a breach of any of the representations and warranties incorporated by
reference in Section 2.01 hereof, irrespective of any limitation in such
representation or warranty regarding the knowledge of the Mortgage Loan Seller,
which materially and adversely affects the value of the Mortgage Loans or the
interests of the Purchaser or the Trustee (or which materially and adversely
affects the interests of the Purchaser or the Trustee in the related Mortgage
Loan in the case of a representation and warranty relating to a particular
Mortgage Loan), the party discovering such breach shall give prompt written
notice to the other parties. Within 90 days of its discovery or its receipt of
notice of any such breach, the Mortgage Loan Seller shall (i) cure such breach,
or (ii) substitute a Mortgage Loan if permitted to do so by the provisions of
Section 2.03 below, or (iii) if the breach relates to a particular Mortgage
Loan, repurchase such Mortgage Loan from the Trustee or the Purchaser, as
appropriate, at a price equal to the Purchase Price, or (iv) if the breach
relates to a breach of a representation or warranty regarding the Mortgage Loans
as a whole, repurchase Mortgage Loans selected by the Purchaser (or its designee
or assignee) such that the representations and warranties with respect to the
Mortgage Loans as a whole are materially correct, from the Trustee or the
Purchaser, as appropriate, at the Purchase Price therefor, so long as such
repurchase is in accordance with the Pooling and Servicing Agreement. Any such
repurchase shall be accomplished by payment to the Servicers or deposit in the
Certificate Account of the Purchase Price (after deducting therefrom any amounts
received in respect of such repurchased Mortgage Loan and being held in the
Certificate Account for future distribution).
SECTION 2.03 Option to Substitute. If the Mortgage Loan Seller would
otherwise be required to repurchase any Mortgage Loan pursuant to Section 1.04
or 2.02 hereof, the Mortgage Loan Seller may, at its option, but only within
less than two years of the Closing Date, remove such deficient Mortgage Loan
from the terms of this Agreement and substitute another mortgage loan for such
deficient Mortgage Loan, in lieu of repurchasing such deficient Mortgage Loan.
Any substitute Mortgage Loan shall (i) have an outstanding principal amount at
the time of substitution not in excess of the outstanding principal amount of
the deficient Mortgage Loan, (ii) have a Mortgage Rate not less than the
Mortgage Rate of the deficient Mortgage Loan, and not more than one percentage
point greater than the Mortgage Rate of the deficient Mortgage Loan, (iii) have
a remaining term to maturity not later than, and not more than one year less
than, the remaining term to maturity of the deficient Mortgage Loan, (iv) be, in
the reasonable determination of the related servicer, of the same type, quality
and character (including location of the Mortgaged Property) as the deficient
Mortgage Loan as if the breach had not occurred, (v) have a Loan-to-Value Ratio
at origination not greater than that of the deficient Mortgage Loan, (vi) be, in
the reasonable determination of the Mortgage Loan Seller, in material compliance
with the representations and warranties incorporated by reference in Section
2.01 hereof as of the date of substitution and (vii) if the deficient Mortgage
Loan for which it is being substituted is not a Balloon Loan, not be a Balloon
Loan.
5
The Mortgage Loan Seller shall amend the Mortgage Loan Schedule to reflect
the withdrawal of the deficient Mortgage Loan from this Agreement and the
substitution of such substitute Mortgage Loan therefor. Upon such amendment, the
Mortgage Loan Seller shall be deemed to have made as to such substitute Mortgage
Loan the representations and warranties incorporated by reference in Section
2.01 hereof as of the date of such substitution, which shall continue so long as
any Class A, Class M or Class B Certificate shall remain outstanding or until
the Pooling and Servicing Agreement shall have been terminated as therein
provided.
SECTION 2.04. Action to Ensure Enforceability. The Mortgage Loan Seller
shall, at the request of the Purchaser or the Trustee, take all action on its
part which is reasonably necessary to ensure the enforceability of a Mortgage
Loan.
SECTION 2.05. High Cost Home Loans. No Mortgage Loan is a "High-Cost Home
Loan" as defined in New York Banking Law 6-1; No Mortgage Loan originated (or
modified) on or after October 1, 2002 and before March 7, 2003 is secured by
property located in the State of Georgia; No Mortgage Loan originated on or
after March 7, 2003 is a "High-Cost Home Loan" as defined under the Georgia Fair
Lending Act. No Mortgage Loan is a "High-Cost Home Loan" as defined in the
Arkansas Home Loan Protection Act effective July 16, 2003 (Act 1340 of 2003); No
Mortgage Loan is a "High-Cost Home Loan" as defined in the Kentucky high-cost
home loan statute effective June 24, 2003 (Ky. Rev. Stat. Section 360.100); No
Mortgage Loan is a "home loan" as defined by Nevada Revised Statute Section
598D.040; No Mortgage Loan is a "high-rate, high-fee mortgage" as defined by
Maine Revised Statute, Title 9-A, Section 8-103; No Mortgage Loan is a
"High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective
November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); No Mortgage Loan is a "High-Cost
Home Loan" as defined in the New Mexico Home Loan Protection Act effective
January 1, 2004 (N.M. Stat. Xxx. Sections 58-21A-1 et seq.); No Mortgage Loan is
a "High-Risk Home Loan" as defined in the Illinois High-Risk Home Loan Act
effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.); No Mortgage Loan
is a "High-Cost Home Mortgage Loan" as defined in the Massachusetts Predatory
Home Loan Practices Act, effective November 6, 2004 (Mass. Xxx. Laws Ch. 183C);
No Mortgage Loan is a "High Cost Home Loan" as defined in the Indiana Home Loan
Practices Act, effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1 through
24-9-9).
ARTICLE 3
MISCELLANEOUS PROVISIONS
SECTION 3.01 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 3.02 Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
6
SECTION 3.03 Fees and Expenses. The Mortgage Loan Seller shall pay all
costs, fees and expenses incurred in connection with the transactions
contemplated hereby. The Mortgage Loan Seller will pay, or arrange for payment
of, all recording fees in connection with the transactions contemplated hereby.
SECTION 3.04 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by first class or registered mail, postage prepaid, to
(i) in the case of the Purchaser, Chase Mortgage Finance Corporation, 000 Xxxx
Xxxxxxxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000, (ii) in the case of the Mortgage
Loan Seller, X.X. Xxxxxx Mortgage Acquisition Corp., 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: Contract Finance, or (iii) in the case of
either of the preceding Persons, such other address as may hereafter be
furnished to the other Person in writing by such Person.
SECTION 3.05 Severability Clause. Any part, provision, representation or
warranty of this Agreement which is prohibited or which is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall,
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.
SECTION 3.06 Counterparts. This Agreement may be executed in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
SECTION 3.07 Place of Delivery. The Agreement shall be deemed in effect
when a fully executed counterpart thereof is received by the Purchaser and shall
be deemed to have been made in the State of New York.
SECTION 3.08 Agreement of Parties. The Mortgage Loan Seller and the
Purchaser agree to execute and deliver such instruments and take such actions as
the other party may, from time to time, reasonably request in order to
effectuate the purpose and to carry out the terms of this Agreement.
SECTION 3.09 Successors and Assigns; Assignment of Agreement. This
Agreement shall bind and inure to the benefit of and be enforceable by the
Mortgage Loan Seller and the Purchaser and their respective successors and
assigns. This Agreement cannot be assigned, pledged or hypothecated by any party
hereto to a third party without the written consent of each other party to this
Agreement, and any such purported assignment, pledge or hypothecation shall be
of no force or effect.
SECTION 3.10 Amendment. The Agreement may be amended from time to time by
the Mortgage Loan Seller and the Purchaser by written agreement signed by the
Mortgage Loan Seller and the Purchaser.
7
SECTION 3.11 Waivers; Other Agreements. No term or provision of this
Agreement may be waived or modified unless such waiver or modification is in
writing and signed by a duly authorized officer of the party against whom such
waiver or modification is sought to be enforced.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
8
IN WITNESS WHEREOF, the Purchaser and the Mortgage Loan Seller have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
CHASE MORTGAGE FINANCE CORPORATION
By:
------------------------------------
Name:
Title:
X.X. XXXXXX MORTGAGE ACQUISITION CORP.
By:
------------------------------------
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
