EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXXX XXXXX MORTGAGE LENDING, INC.
as Seller
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
as Purchaser
Dated as of
June 1, 2007
Relating to the Mortgage Loans in the
Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3
TABLE OF CONTENTS
Page
----
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...... 13
SECTION 9. REPRESENTATIONS AND WARRANTIES CONCERNING THE PURCHASER... 15
SECTION 10. CONDITIONS TO CLOSING..................................... 16
SECTION 11. FEES AND EXPENSES......................................... 18
SECTION 12. ACCOUNTANTS' LETTERS...................................... 18
SECTION 13. INDEMNIFICATION........................................... 18
SECTION 14. NOTICES................................................... 21
SECTION 15. TRANSFER OF MORTGAGE LOANS................................ 21
SECTION 16. TERMINATION............................................... 21
SECTION 17. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.................................................. 22
SECTION 18. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST............ 22
SECTION 19. SEVERABILITY.............................................. 22
SECTION 20. COUNTERPARTS.............................................. 23
SECTION 21. AMENDMENT................................................. 23
SECTION 22. GOVERNING LAW............................................. 23
SECTION 23. FURTHER ASSURANCES........................................ 23
SECTION 24. SUCCESSORS AND ASSIGNS.................................... 23
SECTION 25. THE SELLER................................................ 24
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SECTION 26. ENTIRE AGREEMENT.......................................... 24
SECTION 27. NO PARTNERSHIP............................................ 24
EXHIBITS AND SCHEDULE TO
MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 1 Contents of Mortgage File
Exhibit 2 Mortgage Loan Schedule Information
Exhibit 3 Schedule of Lost Notes
Exhibit 4 S&P Appendix
Schedule A Mortgage Loan Schedule
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MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of June 1, 2007, as amended
and supplemented by any and all amendments hereto (collectively, 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, negative amortization mortgage loans secured by one- to
four-family residences, townhouses, individual condominiums, modular housing 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 Alternative Note Asset
Trust, Series 2007-OAR3 Mortgage Pass-Through Certificates (the "Certificates"),
under a pooling and servicing agreement, to be dated as of June 1, 2007 (the
"Pooling and Servicing Agreement"), by and among the Purchaser, as depositor,
HSBC Bank USA, National Association, as trustee (the "Trustee"), Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator (the "Master
Servicer" and "Securities Administrator"), and Wilshire Credit Corporation as a
servicer (the "Servicer").
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 June 28, 2007 to the Prospectus, dated May 15, 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 June 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:
Closing Date: June 29, 2007.
Custodial Agreement: An agreement, dated as of the Closing Date among
the Depositor, the Master Servicer, the Securities Administrator, 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: June 1, 2007.
Cut-off Date Balance: $393,747,909.
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: Xxxxxx Xxx or any successor thereto.
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.
Mortgage Loan Schedule: The Schedule of Mortgage Loans to be annexed
hereto as Schedule A on the Closing Date setting forth the information contained
on Exhibit 2 hereto.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Rate: With respect to any Distribution Date and each Mortgage
Loan, the Mortgage Interest Rate for such Mortgage Loan on such Distribution
Date less the Servicing Fee Rate for such Mortgage Loan on such Distribution
Date.
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Offered Certificates: Shall mean the Class A-1, Class X-0, Xxxxx X-0,
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1,
Class B-2, Class B-3 and Class R Certificates issued pursuant to the Pooling and
Servicing Agreement.
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 or REO Property to
be purchased pursuant to or as contemplated by this Agreement, and as confirmed
by an Officers' Certificate from the Master Servicer to the Trustee, an amount
equal to the sum of (i) 100% of the Stated Principal Balance thereof as of the
date of purchase (or such other price as provided herein), (ii) accrued interest
on such Stated Principal Balance at the applicable Mortgage Interest Rate in
effect from time to time from the Due Date as to which interest was last covered
by a payment by the Mortgagor or an advance by the applicable Servicer or Master
Servicer, which payment or advance had as of the date of purchase been
distributed to Certificateholders, through the end of the calendar month in
which the purchase is to be effected less any unreimbursed Advances and any
unpaid Servicing Fees payable to the purchaser of the Mortgage Loan and (iii)
any costs and damages incurred by the Issuing Entity in connection with any
violation by such Mortgage Loan or REO Property of any predatory or
abusive-lending law.
Rating Agencies: S&P and Moody's, 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.
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(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 $393,747,909.
(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.
(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 P and Class C
Certificates.
Section 3. Mortgage Loan Schedules.
The Seller agrees to provide to the Purchaser as of the Closing Date
the Mortgage Loan Schedule. The Mortgage Loan Schedule shall be delivered to the
Purchaser on the Closing Date, shall be attached to this Agreement on the
Closing Date by the parties hereto and shall be in form and substance mutually
agreed to by the Seller and the Purchaser.
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 Mortgage Loan
Schedule.
(b) 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 (or the
applicable Custodian on its behalf) by the Closing 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 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
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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 3 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 Closing 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 Custodian on its behalf) or the Seller.
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 investors or potential investors to conduct
such due diligence as any such party reasonably believes is appropriate.
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(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.
Section 6. Sale Treatment.
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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 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;
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(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 Pool--General," "--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;
(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;
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(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 Mortgaged 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 originator's practice in accordance with the seller/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 Fund;
(u) the related Mortgage File contains each of the documents and
instruments specified;
(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 delivered to the Custodian;
(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 Fund that was originated on
or after October 1, 2002 and before March 7, 2003, which is secured by property
located in the
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State of Georgia. There is no Mortgage Loan in the Trust Fund that was
originated on or after March 7, 2003, which is a "high cost home loan" as
defined under the Georgia Fair Lending Act;
(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) 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 6.0 Revised (attached
hereto as Exhibit 4); and
(cc) 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).
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, a
Servicer 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 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. 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
10
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 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); and
(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
11
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.
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 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); and
(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
12
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.
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:
(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
13
(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 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;
14
Section 11. Notices.
All demands, notices and communications hereunder shall be in writing
but may be delivered by facsimile transmission subsequently confirmed in
writing. Notices to the Seller shall be directed to Xxxxxxx Xxxxx Mortgage
Lending Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Telecopy:
212-449-6710), and notices to the Purchaser shall be directed to Xxxxxxx Xxxxx
Mortgage Investors, Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, 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 12. 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 Section13
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 13. 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 14. 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
15
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 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 15. 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 16. 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 17. Amendment.
This Agreement cannot be amended or modified in any manner without the
prior written consent of each party.
Section 18. GOVERNING LAW.
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND PERFORMED IN THE
STATE OF NEW YORK AND SHALL BE INTERPRETED IN
16
ACCORDANCE WITH THE LAWS OF SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
Section 19. 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 20. 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
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 21. The Seller.
The Seller will keep in full effect all rights as are necessary to
perform their respective obligations under this Agreement.
Section 22. 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 23. 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]
17
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 Alternative Note Asset Trust,
Series 2007-OAR3 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 Alternative Note Asset Trust, Series 2007-OAR3
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 Alternative Note Asset Trust, Series 2007-OAR3
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
MORTGAGE LOAN SCHEDULE INFORMATION
The Preliminary and Final Mortgage Loan Schedules shall set forth the
following information with respect to each Mortgage Loan:
i) the loan number of the mortgage loan;
ii) the city, state and zip code of the Mortgage Property;
iii) a code indicating whether the Mortgaged Property is
owner-occupied;
iv) the type of Residential Dwelling constituting the Mortgaged
Property;
v) the original months to maturity;
vi) the original date of the mortgage;
vii) the Loan-to-Value Ratio at origination;
viii) the Mortgage Rate;
ix) the date on which the first Monthly Payment was due on the
Mortgage Loan;
x) the stated maturity date;
xi) the amount of the Monthly Payment at origination;
xii) the amount of the Monthly Payment as of the Cut-off Date;
xiii) the last Due Date on which a Monthly Payment was actually
applied to the unpaid Stated Principal Balance;
xiv) the original principal amount of the Mortgage Loan;
xv) the Stated Principal Balance of the Mortgage Loan as of the close
of business on the Cut-off Date;
xvi) a code indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, Rate/Term Refinancing, Cash-Out Refinancing);
xvii) a code indicating the documentation style (i.e., full,
alternative or reduced);
xviii) the Value of the Mortgaged Property;
xix) the sale price of the Mortgaged Property, if applicable;
E-3-1
xx) the actual unpaid principal balance of the Mortgage Loan as of the
Cut-off Date;
xxi) the Servicing Fee;
xxii) with respect to each adjustable-rate Mortgage Loan, the next
Interest Rate Adjustment Date;
xxiii) with respect to each adjustable-rate Mortgage Loan, the Gross
Margin;
xxiv) with respect to each adjustable-rate Mortgage Loan, the Minimum
and Maximum Mortgage Rate under the terms of the Mortgage Note;
xxv) with respect to each adjustable-rate Mortgage Loan, the First
Rate Cap;
xxvi) with respect to each adjustable-rate Mortgage Loan, the related
Periodic Rate Cap;
xxvii) with respect to each adjustable-rate Mortgage Loan, whether
additional collateral exists;
xxviii) with respect to each adjustable-rate Mortgage Loan, whether it
is interest-only; and
xxix) 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 3
SCHEDULE OF LOST NOTES
Available Upon Request
E-6-1
EXHIBIT 4
REVISED April 18, 0000
XXXXXXXX X - STANDARD & POOR'S 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 Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------------ --------------------------
Arkansas Arkansas Home Loan Protection High Cost Home Loan
Act, Ark. Code Xxx. Sections
00-00-000 et seq.
Effective July 16, 0000
Xxxxxxxxx Xxxxxxx, XX Ordinance No. 72-2003 (PSH), Mun. Covered Loan
Code Sections 757.01 et seq.
Effective June 2, 2003
Colorado Consumer Equity Protection, Colo. Covered Loan
Stat. Xxx. 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 High Cost Home Loan
Lending Practices Act, Conn. Gen.
Stat. Sections 36a-746 et seq.
Effective October 1, 0000
X-0-0
Xxxxxxxx xx Xxxxxxxx Home Loan Protection Act, D.C. Covered Loan
Code Sections 26-1151.01 et seq.
Effective for loans closed on or
after January 28, 2003
Florida Fair Lending Act, Fla. Stat. Xxx. High Cost Home Loan
Sections 494.0078 et seq.
Effective October 2, 2002
Georgia (Oct. 1, 2002 - Mar. Georgia Fair Lending Act, Ga. High Cost Home Loan
6, 2003) Code Xxx. Sections 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
Georgia as amended (Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. High Cost Home Loan
2003 - current) Code Xxx. Sections 7-6A-1 et seq.
Effective for loans closed on or
after Xxxxx 0, 0000
XXXXX Section 32 Home Ownership and Equity High Cost Loan
Protection Act of 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. High Risk Home Loan
Comp. Stat. tit. 815, Sections 137/5
et seq.
Effective January 1, 2004 (prior
to this date, regulations under
Residential Mortgage License Act
effective from May 14, 2001)
Kansas Consumer Credit Code, Kan. Stat. High Loan to Value Consumer
Xxx. Sections 16a-1-101 et seq. Loan (id. Section 16a-3-207)
and;
Sections 16a-1-301 and 16a-3-207
became effective
E-7-2
April 14, 1999; Section 16a-3-308a High APR Consumer Loan (id. Section
became effective July 1, 1999 16a-3-308a)
Kentucky 2003 KY H.B. 287 - High Cost Home High Cost Home Loan
Loan Act, Ky. Rev. Stat. Sections
360.100 et seq.
Effective June 24, 2003
Maine Truth in Lending, Me. Rev. Stat. High Rate High Fee Mortgage
tit. 9-A, Sections 8-101 et seq.
Effective September 29, 1995 and
as amended from time to time
Massachusetts Part 40 and Part 32, 209 C.M.R. High Cost Home Loan
Sections 32.00 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. Home Loan
Stat. Sections 598D.010 et seq.
Effective October 1, 2003
New Jersey New Jersey Home Ownership High Cost Home Loan
Security Act of 2002, 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. High Cost Home Loan
Rev. Stat. 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
E-7-3
North Carolina Restrictions and Limitations on High Cost Home Loan
High Cost Home 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 Covered Loan
sections of the Ohio Code), Ohio
Rev. Code Xxx. Sections 1349.25 et
seq.
Effective May 24, 2002
Oklahoma Consumer Credit Code (codified in Subsection 10 Mortgage
various sections of Title 14A)
Effective July 1, 2000; amended
effective January 1, 2004
South Carolina South Carolina High Cost and High Cost Home Loan
Consumer Home 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 West Virginia Mortgage Loan Act Loan
Mortgage Lender, Broker and
Servicer Act, W. Va. Code Xxx.
Sections 31-17-1 et seq.
Effective June 5, 2002
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STANDARD & POOR'S COVERED LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------------ --------------------------
Georgia (Oct. 1, 2002 - Mar. Georgia Fair Lending Act, Ga. Covered Loan
6, 2003) Code Xxx. Sections 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 0000
Xxx Xxxxxx Xxx Xxxxxx Home Ownership Covered Home Loan
Security Act of 2002, 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 Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------------ --------------------------
Georgia (Oct. 1, 2002 - Mar. Georgia Fair Lending Act, Ga. Home Loan
6, 2003) Code Xxx. Sections 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 0000
Xxx Xxxxxx Xxx Xxxxxx Home Ownership Home Loan
Security Act of 2002, 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. Home Loan
Rev. Stat. Sections 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of
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February 26, 2004
North Carolina Restrictions and Limitations on Consumer Home Loan
High Cost Home 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 Loan
Consumer Home Loans Act, S.C.
Code Xxx. Sections 37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
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SCHEDULE A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
E-7-1
