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XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
as Purchaser
and
CREDIT-BASED ASSET SERVICING AND SECURITIZATION LLC
as Seller
MORTGAGE LOAN PURCHASE AGREEMENT
Fixed Rate and Adjustable Rate Mortgage Loans
Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2003-CB3
C-BASS Mortgage Loan Asset-Backed Certificates, Series 2003-CB3
Dated as of June 27, 2003
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01 Definitions................................................................... 1
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01 Sale of Mortgage Loans........................................................ 2
Section 2.02 Obligations of Seller Upon Sale............................................... 2
Section 2.03 Payment of Purchase Price for the Mortgage Loans.............................. 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Seller Representations and Warranties Relating to the Mortgage Loans.......... 5
Section 3.02 Seller Representations and Warranties......................................... 14
ARTICLE IV
SELLER'S COVENANTS
Section 4.01 Covenants of the Seller....................................................... 17
ARTICLE V
OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS
ARTICLE VI
TERMINATION
Section 6.01 Termination................................................................... 18
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment..................................................................... 19
Section 7.02 Governing Law................................................................. 19
Section 7.03 Notices....................................................................... 19
Section 7.04 Severability of Provisions.................................................... 19
Section 7.05 Counterparts.................................................................. 19
Section 7.06 Further Agreements............................................................ 20
Section 7.07 Intention of the Parties...................................................... 20
Section 7.08 Successors and Assigns; Assignment of this Agreement.......................... 20
Section 7.09 Survival...................................................................... 21
Schedule I Mortgage Loan Schedule
i
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of June 27, 2003,
(the "Agreement"), between CREDIT-BASED ASSET SERVICING AND SECURITIZATION LLC
("C-BASS" or the "Seller") and XXXXXXX XXXXX MORTGAGE INVESTORS, INC. (the
"Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller is the owner of either the notes or other
evidence of indebtedness (the "Mortgage Notes") or other evidence of ownership
so indicated on Schedule I hereto, and the other documents or instruments
constituting the Mortgage File (collectively, the "Mortgage Loans"); and
WHEREAS, the Seller, as of the date hereof, owns the mortgages
(the "Mortgages") on the properties (the "Mortgaged Properties") securing such
Mortgage Loans, including rights (a) to any property acquired by foreclosure or
deed in lieu of foreclosure or otherwise, and (b) to the proceeds of any
insurance policies covering the Mortgage Loans or the Mortgaged Properties or
the obligors on the Mortgage Loans; and
WHEREAS, the parties hereto desire that the Seller sell the
Mortgage Loans to the Purchaser and the Purchaser purchase the Mortgage Loans
from the Seller pursuant to the terms of this Agreement; and
WHEREAS, pursuant to the terms of a Pooling and Servicing
Agreement, dated as of June 1, 2003 (the "Pooling and Servicing Agreement"),
among the Seller as seller, the Purchaser, as depositor, Xxxxxx Loan Servicing
LP ("Xxxxxx"), as servicer, and U.S. Bank National Association, as trustee (the
"Trustee"), the Purchaser will convey the Mortgage Loans to Xxxxxxx Xxxxx
Mortgage Investors Trust, Series 2003-CB3.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. All capitalized terms used but not
defined herein and below shall have the meanings assigned thereto in the Pooling
and Servicing Agreement.
"Custodian": A custodian acceptable to the Trustee, which may
be the Trustee and which shall not be the Seller or any affiliate of the Seller.
The initial Custodian shall be The Bank of New York.
"Insurance Agreement": With respect to any FHA Mortgage Loan,
the insurance contract issued by the FHA.
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01 Sale of Mortgage Loans. The Seller does hereby agree
to and does hereby sell, assign, set over, and otherwise convey to the
Purchaser, without recourse, on the Closing Date, all its right, title and
interest, in and to (i) each Mortgage Loan and the related Cut-off Date
Principal Balance thereof, including any Related Documents, (ii) all payments on
or collections in respect of the Mortgage Loans due after the Cut-off Date
(except with respect to any Arrearages); (iii) property which secured such
Mortgage Loan and which has been acquired by foreclosure or deed in lieu of
foreclosure; (iv) its interest in any insurance policies in respect of the
Mortgage Loans; and (v) all proceeds of any of the foregoing.
Section 2.02 Obligations of Seller Upon Sale.
(a) In connection with any transfer pursuant to Section
2.01 hereof, the Seller further agrees, at its own expense, on or prior to the
Closing Date, (x) to indicate in its books and records that the Mortgage Loans
have been sold to the Purchaser pursuant to this Agreement and (y) to deliver to
the Purchaser and the Trustee a computer file containing a true and complete
list of all the Mortgage Loans specifying, among other things, for each Mortgage
Loan, as of the Cut-off Date, its account number and Cut-off Date Principal
Balance. Such file (the "Mortgage Loan Schedule") which is included as Exhibit
D-1 to the Pooling and Servicing Agreement, shall also be marked as Schedule I
to this Agreement and is hereby incorporated into and made a part of this
Agreement.
In connection with such transfer and assignment, the Seller,
on behalf of the Purchaser, does hereby deliver or cause to be delivered to, and
deposit with the Trustee, or its designated agent (the "Custodian"), the
following documents or instruments with respect to each Mortgage Loan (a
"Mortgage File") so transferred and assigned:
(i) the original Mortgage Note and any riders
thereto, endorsed either (A) in blank or (B) in the following form: "Pay to the
order of U.S. Bank National Association, as Trustee under the Pooling and
Servicing Agreement, dated as of June 1, 2003, among Credit-Based Asset
Servicing and Securitization LLC, Xxxxxxx Xxxxx Mortgage Investors, Inc., Xxxxxx
Loan Servicing LP and U.S. Bank National Association, Xxxxxxx Xxxxx Mortgage
Investors Trust, C-BASS Mortgage Loan Asset-Backed Certificates, Series
2003-CB3, without recourse," or with respect to any lost Mortgage Note, an
original Lost Note Affidavit, together with a copy of the related Mortgage Note;
(ii) the original Mortgage and any riders thereto
with evidence of recording thereon, and the original recorded power of attorney,
if the Mortgage was executed pursuant to a power of attorney, with evidence of
recording thereon or, if such Mortgage or power of attorney has been submitted
for recording but has not been returned from the applicable public recording
office, has been lost or is not otherwise available, a copy of such Mortgage or
power of attorney, as the case may be, certified to be a true and complete copy
of the original submitted for recording;
(iii) an original Assignment of Mortgage, in form
and substance acceptable for recording. The Mortgage shall be assigned either
(A) in blank or (B) to
"U.S. Bank National Association, as Trustee under the Pooling and Servicing
Agreement, dated as of June 1, 2003, among Credit-Based Asset Servicing and
Securitization LLC, Xxxxxxx Xxxxx Mortgage Investors, Inc., Xxxxxx Loan
Servicing LP and U.S. Bank National Association, Xxxxxxx Xxxxx Mortgage
Investors Trust, C-BASS Mortgage Loan Asset-Backed Certificates, Series
2003-CB3, without recourse";
(iv) an original or a certified copy of any
intervening assignment of Mortgage showing a complete chain of assignments;
(v) the original or a certified copy of lender's
title insurance policy (except with respect to any Mortgage Loan set forth on
Exhibit D-2 of the Pooling and Servicing Agreement);
(vi) the original or copies of each assumption,
modification, written assurance or substitution agreement, if any; and
(vii) for each FHA Loan, the original Mortgage
Insurance Certificate.
The Seller shall within 90 days following the Closing Date,
with respect to each Mortgage Loan that is subject to the provisions of the
Homeownership and Equity Protection Act of 1994 place or cause to be placed a
legend on the original Mortgage Note indicating the satisfaction of the
provisions of such Act and the regulations issued thereunder, to the effect that
the Mortgage Loan is subject to special truth in lending rules.
If any of the documents referred to in Section 2.02(ii), (iii)
or (iv) above has as of the Closing Date been submitted for recording but either
(x) has not been returned from the applicable public recording office or (y) has
been lost or such public recording office has retained the original of such
document, the obligations of the Seller to deliver such documents shall be
deemed to be satisfied upon (1) delivery to the Trustee or the Custodian no
later than the Closing Date, of a copy of each such document certified by the
Seller in the case of (x) above or the applicable public recording office in the
case of (y) above to be a true and complete copy of the original that was
submitted for recording and (2) if such copy is certified by the Seller,
delivery to the Trustee or the Custodian, promptly upon receipt thereof of
either the original or a copy of such document certified by the applicable
public recording office to be a true and complete copy of the original. The
Seller shall deliver or cause to be delivered to the Trustee or the Custodian
promptly upon receipt thereof any other documents constituting a part of a
Mortgage File received with respect to any Mortgage Loan, including, but not
limited to, any original documents evidencing an assumption or modification of
any Mortgage Loan.
Upon discovery or receipt of notice of any materially
defective document in, or that a document is missing from, a Mortgage File, the
Seller shall have 120 days to cure such defect or 150 days following the Closing
Date, in the case of missing Mortgages or Assignments or deliver such missing
document to the Trustee or the Custodian. If the Seller does not cure such
defect or deliver such missing document
within such time period, the Seller shall either repurchase or substitute for
such Mortgage Loan in accordance with Section 3.01 hereof.
The Purchaser hereby acknowledges its acceptance of all right,
title and interest to the Mortgage Loans and other property, now existing and
hereafter created, conveyed to it pursuant to Section 2.01.
The parties hereto intend that the transaction set forth
herein be a sale by the Seller to the Purchaser of all the Seller's right, title
and interest in and to the Mortgage Loans and other property described above. In
the event the transaction set forth herein is deemed not to be a sale, the
Seller hereby grants to the Purchaser a security interest in all of the Seller's
right, title and interest in, to and under the Mortgage Loans and other property
described above, whether now existing or hereafter created, to secure all of the
Seller's obligations hereunder; and this Agreement shall constitute a security
agreement under applicable law. The Seller and the Purchaser shall, to the
extent consistent with this Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement.
(b) The Seller shall cause the Assignments of Mortgage
which were delivered in blank to be completed and shall cause all Assignments
referred to in Section 2.02(iii) hereof and, to the extent necessary, in Section
2.02(iv) hereof to be recorded. The Seller shall be required to deliver such
assignments for recording within 30 days of the Closing Date. The Seller shall
furnish the Trustee, or its designated agent, with a copy of each assignment of
Mortgage submitted for recording. In the event that any such Assignment is lost
or returned unrecorded because of a defect therein, the Seller shall promptly
have a substitute Assignment prepared or have such defect cured, as the case may
be, and thereafter cause each such Assignment to be duly recorded. In the event
that any Mortgage Note is endorsed in blank as of the Closing Date, promptly
following the Closing Date the Seller shall cause to be completed such
endorsements in the following form: "Pay to the order of U.S. Bank National
Association, as Trustee under the Pooling and Servicing Agreement, dated as of
June 1, 2003, among Credit-Based Asset Servicing and Securitization LLC, Xxxxxxx
Xxxxx Mortgage Investors, Inc., Xxxxxx Loan Servicing LP and U.S. Bank National
Association, C-BASS Mortgage Loan Asset-Backed Certificates, Series 2003-CB3,
without recourse."
Section 2.03 Payment of Purchase Price for the Mortgage Loans. In
consideration of the sale of the Mortgage Loans from the Seller to the Purchaser
on the Closing Date, the Purchaser agrees to pay to the Seller on the Closing
Date by transfer of immediately available funds, as directed by the Seller, an
amount equal to $293,002,232.15 in respect of the Mortgage Loans (the "Purchase
Price"), net of an expense reimbursement amount of $31,728.84 (the "Expense
Reimbursement Amount"), and to transfer to the Seller or its designee on the
Closing Date, the Class N, Class X, and Residual Certificates (collectively, the
"Private Certificates"). The Expense Reimbursement Amount shall reimburse the
Purchaser for the Purchaser's Securities and Exchange Commission registration
statement fees and the Purchaser's registration
statement administration fees allocable to the Trust. In addition to the Expense
Reimbursement Amount, the Seller shall pay, and be billed directly for, all
expenses incurred by the Purchaser in connection with the issuance of the
Certificates, including, without limitation, printing fees incurred in
connection with the prospectus relating to the Certificates, blue sky
registration fees and expenses, fees and reasonable expenses of Purchaser's
counsel, fees of the rating agencies requested to rate the Certificates,
accountant's fees and expenses and the fees and expenses of the Trustee and
other out-of-pocket costs, if any. If the Purchaser shall determine that the
Expense Reimbursement Amount is not sufficient to reimburse the Purchaser for
all expenses incurred by it that are subject to reimbursement by the Seller
hereunder as described above, the Seller shall promptly reimburse the Purchaser
for such additional amounts upon written notice by the Purchaser to the Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Seller Representations and Warranties Relating to the
Mortgage Loans. The Seller hereby represents and warrants to the Purchaser, with
respect to the Mortgage Loans, that as of the Closing Date or as of such date
specifically provided herein:
(a) The information set forth in the Mortgage Loan
Schedule is complete, true and correct as of the Cut-off Date.
(b) There are no delinquent taxes, ground rents, water
charges, sewer rents, assessments, including assessments payable in future
installments, or other outstanding charges affecting the related Mortgaged
Property.
(c) The terms of the Mortgage Note and the Mortgage have
not been impaired, waived, altered or modified in any respect, except by written
instruments, recorded in the applicable public recording office if necessary to
maintain the lien priority of the Mortgage and the interests of the
Certificateholders, and which have been delivered to the Trustee; the substance
of any such waiver, alteration or modification has been approved by the title
insurer, to the extent required by the related policy, and is reflected on the
Mortgage Loan Schedule. No instrument of waiver, alteration or modification has
been executed, and no Mortgagor has been released, in whole or in part, except,
in connection with an assumption agreement approved by the title insurer, to the
extent required by the policy and, in the case of an FHA Loan, to the extent
required by the Insurance Agreement, and which assumption agreement has been
delivered to the Trustee and the terms of which are reflected in the Mortgage
Loan Schedule.
(d) The Mortgage Note and the Mortgage are not subject to
any right of rescission, set-off, counterclaim or defense, including the defense
of usury, nor will the operation of any of the terms of the Mortgage Note and
the Mortgage, or the exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto.
(e) All buildings upon the Mortgaged Property are insured
by a generally acceptable insurer against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where the Mortgaged
Property is located, pursuant to insurance policies conforming to the
requirements of the Pooling and Servicing Agreement. All such insurance policies
contain a standard mortgagee clause naming the Seller, its successors and
assigns as mortgagee and all premiums thereon have been paid. If upon
origination of the Mortgage Loan, the Mortgaged Property was in an area
identified on a Flood Hazard Map or Flood Insurance Rate Map issued by the
Federal Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect which policy conforms to the requirements of the Federal National
Mortgage Association ("FNMA") and the Federal Home Loan Mortgage Corporation
("FHLMC"). The Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to
do so, authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor. All acts required to be performed to preserve the rights and remedies
of the Trustee in any such insurance policies have been performed, including,
without limitation, any necessary notifications of insurers and assignments of
policies or interests therein.
(f) As of the date of origination of the Mortgage Loan,
any and all requirements of any federal, state or local law, including, without
limitation, usury, truth in lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity, disclosure or predatory and abusive
lending laws applicable to the origination of the Mortgage Loans have been
complied with. Any and all requirements of any federal, state or local law,
including, without limitation, usury, truth in lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws applicable to the servicing of the Mortgage Loans have been complied with.
(g) The Mortgage has not been satisfied, canceled,
subordinated (other than with respect to second lien loans, the subordination to
the first lien loan) rescinded, in whole or in part, and the Mortgaged Property
has not been released from the lien of the Mortgage, in whole or in part, nor
has any instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release.
(h) The Mortgage is a valid, existing and enforceable
first or second lien on the Mortgaged Property, including all improvements on
the Mortgaged Property subject only to (1) the lien of current real property
taxes and assessments not yet due and payable, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of the public record as
of the date of recording being acceptable to mortgage lending institutions
generally and, in the case of FHA Loans, to the FHA, and specifically referred
to in the lender's title insurance policy delivered to the originator of the
Mortgage Loan, (3) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security intended to
be provided by the Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property and which may not in any way prevent realization of
the benefits of the related Insurance Agreement, if applicable and (4) with
respect to any second lien mortgage loan, the lien of the related first mortgage
loan. Any security agreement, chattel mortgage or equivalent document related to
and delivered in connection with the Mortgage Loan establishes and creates a
valid, existing and enforceable first or second lien and first or second
priority security interest on the property described therein and the Seller has
full right to sell and assign the same to the Purchaser.
(i) The Mortgage Note and the related Mortgage are
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms.
(j) The proceeds of the Mortgage Loan have been fully
disbursed to or for the account of the Mortgagor and there is no obligation for
the mortgagee to advance additional funds thereunder and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage have been paid, and the Mortgagor is not entitled to
any refund of any amounts paid or due to the mortgagee pursuant to the Mortgage
Note or Mortgage.
(k) Immediately prior to the transfer and assignment
contemplated herein, the Seller was the sole owner and holder of the Mortgage
Loans and has good and marketable title to each Mortgage Loan, free and clear of
any and all liens, pledges, charges, claims, participation interests, mortgages,
security interests or encumbrances or other interests of any nature and has full
right and authority to sell and assign the same.
(l) Each Mortgage Loan is covered by an ALTA mortgagee
title insurance policy acceptable to FNMA or FHLMC, issued by a title insurer
acceptable to (1) FNMA and FHLMC, in the case of a conventional Mortgage Loan
and (2) the FHA, in the case of an FHA Loan, and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to the
exceptions contained in (h)(1) and (2) above) the Seller, its successors and
assigns as to the first or second priority lien of the Mortgage in the original
principal amount of the Mortgage Loan and against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions of the
Mortgage providing for adjustment in the mortgage interest rate and/or monthly
payment including any negative amortization thereunder. Additionally, such
mortgagee title insurance policy affirmatively insures ingress and egress to and
from the Mortgaged Property, and against encroachments by or upon the Mortgaged
Property or any interest therein. The Seller is the sole insured of such
mortgagee title insurance policy, and such lender's title insurance policy is in
full force and effect and will be in full force and effect upon the consummation
of the transactions contemplated by this Agreement. No claims have been made
under such mortgagee title insurance policy, and no prior holder of the
related Mortgage, including the Seller, has done, by act or omission, anything
which would impair the coverage of such mortgagee title insurance policy.
(m) There are no mechanics' or similar liens or claims
which have been filed for work, labor or material (and no rights are outstanding
that under law could give rise to such lien) affecting the related Mortgaged
Property which are or may be liens prior to, or equal or coordinate with, the
lien of the related Mortgage.
(n) The collection practices used by the Servicer with
respect to each Mortgage Note and Mortgage have been in all respects legal,
proper, prudent and customary in the mortgage servicing industry.
(o) The Mortgage and related Mortgage Note contain
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby, including, (1) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (2)
otherwise by judicial foreclosure. There is no homestead or other exemption
available to the Mortgagor which would interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage.
The Mortgagor has not notified the Seller and the Seller has no knowledge of any
relief requested or allowed to the Mortgagor under the Soldiers and Sailors
Civil Relief Act of 1940, as amended.
(p) The Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage on the Mortgaged
Property and the security interest of any applicable security agreement or
chattel mortgage.
(q) In the event the Mortgage constitutes a deed of
trust, a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the Mortgage, and no
fees or expenses are or will become payable by the Purchaser to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Mortgagor.
(r) No Mortgage Loan contains provisions pursuant to
which monthly payments are (1) paid or partially paid with funds deposited in
any separate account established by the Seller, the Mortgagor, or anyone on
behalf of the Mortgagor, (2) paid by any source other than the Mortgagor or (3)
contains any other similar provisions which may constitute a "buydown"
provision. The Mortgage Loan is not a graduated payment mortgage loan and the
Mortgage Loan does not have a shared appreciation or other contingent interest
feature.
(s) The Mortgage Note, the Mortgage, the Assignment and
any other documents required to be delivered with respect to each Mortgage Loan
pursuant to Section 2.02 hereof have been delivered to the Purchaser or its
designee, all in compliance with the specific requirements of Section 2.02
hereof.
(t) If the residential dwelling on the Mortgaged Property
is a condominium unit or a unit in a planned unit development (other than a de
minimis
planned unit development) such condominium or planned unit development project
meets FNMA's eligibility requirements.
(u) None of the Mortgage Loans are secured by a leasehold
estate or constitute other than real property under applicable state law.
(v) The rights with respect to each Mortgage Loan are
assignable by the Seller without the consent of any Person other than consents
which will have been obtained on or before the Closing Date.
(w) The Mortgage Loans are not being transferred by the
Seller with any intent to hinder, delay or defraud any creditors of the Seller.
(x) All parties which have had any interest in each
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, and
including, without limitation, the Seller, are (or during the period in which
they held and disposed such interest, were) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the property
securing the Mortgage is located to the extent that any noncompliance thereunder
would affect the value or marketability of the Mortgage Loans.
(y) To the best of Seller's knowledge, the Mortgaged
Property is free from any and all toxic or hazardous substances and there exists
no violation of any local, state or federal environmental law, rule or
regulation.
(z) The Mortgaged Property is free from material damage.
(aa) Each Mortgage Loan has been serviced by the Servicer
in accordance with the terms thereof and Applicable Regulations.
(bb) All prepayment penalties included in the transaction
are enforceable and were originated in compliance with all applicable federal,
state and local laws.
(cc) [Reserved]
(dd) There is no proceeding pending for the total or
partial condemnation and no eminent domain proceedings pending affecting any
Mortgaged Property.
(ee) There was no fraud involved in the origination of any
Mortgage Loan by the applicable mortgagee or Mortgagor, and to the best of the
Seller's knowledge, there was no fraud by the appraiser or any other party
involved in the origination of any such Mortgage Loan.
(ff) Each mortgage file contains an appraisal of or a
broker's price opinion regarding the related Mortgaged Property indicating an
appraised value equal to
the appraised value identified for such Mortgaged Property on the Mortgage Loan
Schedule. Each appraisal has been prepared on FNMA or FHLMC forms.
(gg) No improvements on any Mortgaged Property encroach on
adjoining properties (and in the case of a condominium unit, such improvements
are within the project with respect to that unit), and no improvements on
adjoining properties encroach upon such Mortgaged Property unless there exists
in the applicable Mortgage File a title policy with endorsements which insure
against losses sustained by the insured as a result of such encroachments.
(hh) Each Insurance Agreement is in full force and effect
and will be in full force and effect upon the consummation of the transactions
contemplated by this Agreement.
(ii) With respect to escrow deposits, if any, all such
payments are in the possession of, or under the control of, the Servicer and
there exists no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. No escrow deposits or
escrow advances or other charges or payments due the Servicer have been
capitalized under any Mortgage or the related Note.
(jj) No Mortgage Loan, other than a Bankruptcy Plan
Mortgage Loan, is subject to any pending bankruptcy or insolvency proceeding. To
the Seller's best knowledge, no material litigation or lawsuit relating to any
Mortgage Loan is pending.
(kk) The Seller used no selection procedures that
identified the Mortgage Loans as being less desirable or valuable than other
comparable mortgage loans acquired by the Seller.
(ll) The sale, transfer, assignment and conveyance of
Mortgage Loans by the Seller pursuant to this Agreement will not result in any
tax, fee or governmental charge (other than income taxes and related taxes)
payable by the Seller, the Depositor or the Trustee to any federal, state or
local government other than taxes which have or will be paid by the Seller as
due ("Transfer Taxes"). In the event that the Depositor or the Trustee receives
actual notice of any Transfer Taxes arising out of the transfer, assignment and
conveyance of the Mortgage Loans, other than any taxes to be paid by the
creditor, on written demand by the Depositor, or the Trustee, or upon the
Seller's otherwise being given notice thereof by the Depositor or the Trustee,
the Seller shall pay, and otherwise indemnify and hold the Depositor and the
Trustee harmless, on an after-tax basis, from and against any and all such
Transfer Taxes (it being understood that the Certificateholders, the Trustee and
the Depositor shall have no obligation to pay such Transfer Taxes).
(mm) With respect to each Mortgage Loan that is a
"mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will
have a claim or defense under such Mortgage Loan as a result of a violation of
the Home Ownership and Equity Protection Act of 1994.
(nn) With respect to the Mortgage Loans, the Mortgaged
Properties securing repayment of the related Mortgage Note, consists of a fee
simple interest in a single parcel or two contiguous parcels of real property
(i) improved by a (A) detached or semi-detached one-family dwelling, (B)
detached or semi-detached two-to four family dwelling, (C) one-family unit in a
FNMA eligible condominium project, (D) detached or semi-detached one-family
dwelling in a planned unit development, (E) multi-family dwelling or townhouse
or (F) mobile home or manufactured dwelling which constitutes real property or
(ii) unimproved by any residential dwelling.
(oo) Except for the Mortgage Loans identified on the
Mortgage Loan Schedule as delinquent, 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 except, in the case of an FHA Loan, by written
instruments, and the substance of which waiver has been approved by the FHA to
the extent required by the applicable Insurance Agreement.
(pp) The Seller has no actual knowledge that with respect
to any Mortgage Loan (1) the Servicer has sent a notice of default to the
related Mortgagor which the Servicer is currently seeking to enforce, or (2) any
foreclosure proceedings have been commenced or acceleration been declared which
is currently pending. The Seller is not transferring any Mortgage Loan to the
Purchaser with the intention or knowledge that the Purchaser or the Trust will
acquire the related Mortgaged Property.
(qq) With respect to any Mortgage Loan that is secured by
a second lien on the related Mortgaged Property, either (i) no consent for the
Mortgage Loan is required by the holder of any related senior lien or (ii) such
consent has been obtained and is contained in the Mortgage File.
(rr) In any case in which a Mortgage Loan is secured by a
second lien and a senior lien on the related Mortgaged Property provides for
negative amortization or deferred interest, the balance of such senior lien on
the related Mortgaged Property used to calculate the Combined Loan to Value
Ratio for the Mortgage Loan is based on the maximum amount of negative
amortization possible under such senior loan.
(ss) With respect to a Mortgage Loan which is a second
lien, as of the date hereof, the Seller has not received a notice of default of
a senior lien on the related Mortgaged Property which has not been cured.
(tt) Except with respect to 0.26% of the Group I Mortgage
Loans and 0.39% of the Group II Mortgage Loans, pursuant to which the related
Mortgagor had not made the Monthly Payment due on April 1, 2003 as of May 31,
2003, no Mortgage Loan is delinquent (other than Mortgage Loans subject to a
bankruptcy plan or forbearance plan). The Seller has not waived any default,
breach, violation or event of acceleration, and the Seller has not taken any
action to waive any default, breach, violation or event of acceleration, with
respect to any Mortgage Loan.
(uu) Each Mortgage Loan is a "qualified Mortgage" within
the meaning of Section 860 G(a)(3) of the Code.
(vv) With respect to any Adjustable-Rate Mortgage Loan,
all rate adjustments have been performed in accordance with the terms of the
related Mortgage Note or subsequent modifications, if any.
(ww) At the time of their origination, all FHA Loans
conformed to HUD origination guidelines.
(xx) Each Mortgage Loan is directly secured by a Mortgage
on a residential property, and either (1) substantially all of the proceeds of
the Mortgage Loan were used to acquire, improve or protect the portion of the
residential property that consists of an interest in real property (within the
meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d)) and the
interest in real property was the only security for the Mortgage Loan as of the
Testing Date (as defined below), or (2) the fair market value of the interest in
real property which secures the Mortgage Loan was at least equal to 80% of the
principal amount of the Mortgage Loan (a) as of the Testing Date, or (b) as of
the Closing Date. For purposes of the previous sentence, (1) the fair market
value of the referenced interest in real property shall first be reduced by (a)
the amount of any lien on the interest in real property that is senior to the
Mortgage Loan, unless the Mortgage Loan includes both a first lien loan and a
second lien loan on the same Mortgaged Property, in which case the 80% test
shall be applied in the aggregate, and (b) a proportionate amount of any lien on
the interest in real property that is on a parity with the Mortgage Loan, and
(2) the "Testing Date" shall be the date on which the referenced Mortgage Loan
was originated unless (a) the Mortgage Loan was modified after the date of its
origination in a manner that would cause "significant modification" of the
Mortgage Loan within the meaning of Treasury Regulations Section 1.1001-3, and
(b) the "significant modification" did not occur at a time when the Mortgage
Loan was in default or when default with respect to the Mortgage Loan was
reasonably foreseeable.
(yy) With respect to each Mortgage Loan that is a mobile
or manufactured housing unit, such unit is a "single family residence" within
the meaning of Section 25(e)(1) of the Code, and has a minimum of 400 square
feet of living space, a minimum width of 102 inches and is of a kind customarily
used at a fixed location.
(zz) Any written agreement between the Mortgagor in
respect of a Mortgage Loan and the Servicer modifying such Mortgagor's
obligation to make payments under the Mortgage Loan (such modified Mortgage
Loan, a "Modified Mortgage Loan") involved the application of the Seller's
underwriting standards or some assessment of the Mortgagor's ability to repay
the Modified Mortgage Loan.
(aaa) The Servicer has fully furnished, in accordance with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company or their
successors on a monthly basis.
(bbb) No Mortgage Loan is a "high cost" or a "covered" loan
or any other similarly designated loan as defined under any state, local or
federal law, which law contains provisions which may result in liability to the
purchaser or assignee of such loan.
(ccc) No Mortgage Loan is the subject of pending or final
foreclosure proceedings.
(ddd) As of the Closing Date, the Seller would not initiate
foreclosure proceedings with respect to any Mortgage Loan based on such Mortgage
Loan's delinquency status prior to the next scheduled payment date for such
Mortgage Loan.
With respect to the representations and warranties set forth
in this Section 3.01 that are made to the best of the Seller's knowledge or as
to which the Seller has no knowledge, if it is discovered by the Depositor, the
Seller, the Servicer or the Trustee, as set forth in Section 2.04 of the Pooling
and Servicing Agreement, that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value of
the related Mortgage Loan or the interest therein of the Purchaser or the
Purchaser's assignee, transferee or designee for the benefit of the
Certificateholders then, notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty being inaccurate at
the time the representation or warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
Upon discovery by the Depositor, the Seller, the Servicer, the
Purchaser or any assignee, transferee or designee of the Purchaser of a breach
of any of the representations and warranties contained in this Article III or
Section 2.04 of the Pooling and Servicing Agreement that materially and
adversely affects the value of any Mortgage Loan or the interest therein of the
Purchaser or the Purchaser's assignee, transferee or designee for the benefit of
the Certificateholders, the party discovering the breach shall give prompt
written notice to the others and in no event later than two Business Days from
the date of such discovery. Within 90 days of the earlier of its discovery or
its receipt of notice of any such breach of a representation or warranty, the
Seller shall promptly cure such breach in all material respects, or in the event
such defect or breach cannot be cured, the Seller shall repurchase the affected
Mortgage Loan or cause the removal of such Mortgage Loan from the Trust Fund and
substitute for it one or more Eligible Substitute Mortgage Loans, in either
case, in accordance with Section 2.03 of the Pooling and Servicing Agreement.
Upon discovery or receipt of written notice by the Seller of
any materially defective document in, or that a document is missing from, a
Mortgage File, the Seller shall have 120 days to cure such defect or 150 days
following the Closing Date, in the case of missing Mortgages or Assignments (or
within 90 days of the earlier of the Seller's discovery or receipt of
notification if such defect would cause the Mortgage Loan not to be a "qualified
mortgage" for REMIC purposes), or in the event such defect cannot be cured, the
Seller shall repurchase the affected Mortgage Loan or cause the removal of such
Mortgage Loan from the Trust Fund and substitute for it one or more Eligible
Substitute Mortgage Loans, in either case, within such time periods and in
accordance with Section 2.03 of the Pooling and Servicing Agreement.
It is understood and agreed that the representations and
warranties set forth in this Section 3.01 shall survive delivery of the
respective Mortgage Files to the Trustee or its agent, on behalf of the
Purchaser and shall inure to the benefit of the Certificateholders
notwithstanding any restrictive or qualified endorsement or assignment.
It is understood and agreed that the obligations of the Seller
set forth in this Section 3.01 to cure, repurchase or substitute for a defective
Mortgage Loan constitute the sole remedies of the Purchaser, the
Certificateholders or the Trustee on their behalf respecting a missing or
defective document or a breach of the representations or warranties contained in
this Section 3.01.
Section 3.02 Seller Representations and Warranties. The Seller
hereby represents and warrants to the Purchaser that as of the Closing Date or
as of such date specifically provided herein:
(i) The Seller is duly organized, validly
existing and in good standing as a limited liability company under the laws of
the State of Delaware and has the power and authority to own its assets and to
transact the business in which it is currently engaged. The Seller is duly
qualified to do business and is in good standing in each jurisdiction in which
the character of the business transacted by it or properties owned or leased by
it requires such qualification and in which the failure to so qualify would have
a material adverse effect on (a) its business, properties, assets or condition
(financial or other), (b) the performance of its obligations under this
Agreement, (c) the value or marketability of the Mortgage Loans, or (d) its
ability to foreclose on the related Mortgaged Properties.
(ii) The Seller has the power and authority to
make, execute, deliver and perform this Agreement and to consummate all of the
transactions contemplated hereunder and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement. When
executed and delivered, this Agreement will constitute the Seller's legal, valid
and binding obligations enforceable in accordance with its terms, except as
enforcement of such terms may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by the availability of equitable
remedies, (2) general equity principals (regardless of whether such enforcement
is considered in a proceeding in equity or at law) or (3) public policy
considerations underlying the securities laws, to the extent that such policy
considerations limit the enforceability of the provisions of this Agreement
which purport to provide indemnification from securities laws liabilities.
(iii) The Seller holds all necessary licenses,
certificates and permits from all governmental authorities necessary for
conducting its business as it is presently conducted, except for such licenses,
certificates and permits the absence of
which, individually or in the aggregate, would not have a material adverse
effect on the ability of the Seller to conduct its business as it is presently
conducted. It is not required to obtain the consent of any other party or any
consent, license, approval or authorization from, or registration or declaration
with, any governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this Agreement,
except for such consents, licenses, approvals or authorizations, or
registrations or declarations as shall have been obtained or filed, as the case
may be, prior to the Closing Date.
(iv) The execution, delivery and performance of
this Agreement by the Seller will not conflict with or result in a breach of, or
constitute a default under, any provision of any existing law or regulation or
any order or decree of any court applicable to the Seller or any of its
properties or any provision of its Limited Liability Company Agreement, or
constitute a material breach of, or result in the creation or imposition of any
lien, charge or encumbrance upon any of its properties pursuant to any mortgage,
indenture, contract or other agreement to which it is a party or by which it may
be bound.
(v) No certificate of an officer, written
statement or report delivered pursuant to the terms hereof by the Seller
contains any untrue statement of a material fact or omits to state any material
fact necessary to make the certificate, statement or report not misleading.
(vi) The transactions contemplated by this
Agreement are in the ordinary course of the Seller's business.
(vii) The Seller is not insolvent, nor will the
Seller be made insolvent by the transfer of the Mortgage Loans, nor is the
Seller aware of any pending insolvency.
(viii) The Seller is not in violation of, and the
execution and delivery of this Agreement by it and its performance and
compliance with the terms of this Agreement will not constitute a violation with
respect to any order or decree of any court, or any order or regulation of any
federal, state, municipal or governmental agency having jurisdiction, which
violation would materially and adversely affect the Seller's condition
(financial or otherwise) or operations or any of the Seller's properties, or
materially and adversely affect the performance of any of its duties hereunder.
(ix) There are no actions or proceedings against,
or investigations of, the Seller pending or, to its knowledge, threatened,
before any court, administrative agency or other tribunal (i) that, if
determined adversely, would prohibit the Seller from entering into this
Agreement and the Pooling and Servicing Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or (iii)
that, if determined adversely, would prohibit or materially and adversely affect
the Seller's performance of any of its respective obligations under, or the
validity or enforceability of, this Agreement and the Pooling and Servicing
Agreement.
(x) The Seller is not transferring the Mortgage
Loans to the Purchaser hereunder with any intent to hinder, delay or defraud any
of its creditors.
(xi) The Seller acquired title to the Mortgage
Loans in good faith, without notice of any adverse claims.
(xii) The transfer, assignment and conveyance of
the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement
are not subject to the bulk transfer laws or any similar statutory provisions in
effect in any applicable jurisdiction.
(xiii) The Seller understands that (a) the Private
Certificates have not been and will not be registered or qualified under the
Securities Act of 1933, as amended (the "Securities Act") or any state
securities law, (b) the Purchaser is not required to so register or qualify the
Private Certificates, (c) the Private Certificates may be resold only if
registered and qualified pursuant to the provisions of the Act or any state
securities law, or if an exemption from such registration and qualification is
available, (d) the Pooling and Servicing Agreement contains restrictions
regarding the transfer of the Private Certificates and (e) the Private
Certificates will bear a legend to the foregoing effect.
(xiv) The Seller is acquiring the Private
Certificates for its own account for investment only and not with a view to or
for sale in connection with any distribution thereof in any manner that would
violate the Securities Act or any applicable state securities laws.
(xv) The Seller is (a) a substantial,
sophisticated institutional investor having such knowledge and experience in
financial and business matters, and, in particular, in such matters related to
securities similar to the Private Certificates, such that it is capable of
evaluating the merits and risks of investment in the Private Certificates, (b)
able to bear the economic risks of such an investment and (c) an "accredited
investor" within the meaning of Rule 501 (a) promulgated pursuant to the
Securities Act.
(xvi) The Seller has been furnished with such
information concerning the Private Certificates and the Purchaser as has been
requested by the Seller from the Purchaser and is relevant to the Seller's
decision to purchase the Private Certificates. The Seller has had any questions
arising from such review answered by the Purchaser to the satisfaction of the
Seller.
(xvii) The Seller has not and will not nor has it
authorized or will it authorize any person to (a) offer, pledge, sell, dispose
of or otherwise transfer any Private Certificate, any interest in any Private
Certificate or any other similar security to any person in any manner, (b)
solicit any offer to buy or to accept a pledge, disposition of other transfer of
any Private Certificate, any interest in any Private Certificate or any other
similar security from any person in any manner, (c) otherwise approach or
negotiate with respect to any Private Certificate, any interest in any Private
Certificate or any other similar security with any person in any manner, (d)
make any general solicitation by
means of general advertising or in any other manner or (e) take any other
action, that (as to any of (a) through (e) above) would constitute a
distribution of any Private Certificate under the Securities Act, that would
render the disposition of any Private Certificate a violation of Section 5 of
the Securities Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not sell or
otherwise transfer any of the Private Certificates, except in compliance with
the provisions of the Pooling and Servicing Agreement.
(xviii) The Seller is not an employee benefit plan
or other retirement arrangement subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), (collectively, an "ERISA Plan"),
and is not acting on behalf of, as named fiduciary of, as trustee of, or
investing the assets of an ERISA Plan.
ARTICLE IV
SELLER'S COVENANTS
Section 4.01 Covenants of the Seller.
(a) The Seller hereby covenants that except for the
transfer hereunder, the Seller will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any lien on any
Mortgage Loan, or any interest therein; the Seller will notify the Trustee, as
assignee of the Purchaser, of the existence of any lien on any Mortgage Loan
immediately upon discovery thereof, and the Seller will defend the right, title
and interest of the Trust, as assignee of the Purchaser, in, to and under the
Mortgage Loans, against all claims of third parties claiming through or under
the Seller; provided, however, that nothing in this Section 4.01 shall prevent
or be deemed to prohibit the Seller from suffering to exist upon any of the
Mortgage Loans any liens for municipal or other local taxes and other
governmental charges if such taxes or governmental charges shall not at the time
be due and payable or if the Seller shall currently be contesting the validity
thereof in good faith by appropriate proceedings and shall have set aside on its
books adequate reserves with respect thereto.
(b) The Seller hereby covenants that neither it nor any
affiliate of the Seller will directly solicit any Mortgagor hereunder to
refinance the related Mortgage Loan. For the purposes of the foregoing, neither
the Seller nor any affiliate of the Seller shall be deemed to directly solicit
any Mortgagor if the Seller responds to a request from a Mortgagor regarding a
refinancing or if the Mortgagor receives marketing materials which are generally
disseminated.
ARTICLE V
OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS
(a) On or after June 30, 2003, as to any Mortgage Loan
which is Delinquent in payment by 120 days or more or any REO Property, an
Affiliate of the
Seller may, at its option, purchase such Mortgage Loan from the Trust Fund at
the Purchase Price for such Mortgage Loan provided that an Affiliate of the
Seller may exercise the purchase right during the period commencing on the first
day of the calendar quarter succeeding the calendar quarter in which the Initial
Delinquency Date occurred and ending on the last Business Day of such calendar
quarter. The "Initial Delinquency Date" of a Mortgage Loan shall mean the date
on which the Mortgage Loan first became 120 days Delinquent.
(b) If an Affiliate of the Seller does not exercise the
purchase right with respect to a Mortgage Loan during the period specified in
the preceding paragraph, such Mortgage Loan shall thereafter again become
eligible for purchase pursuant to the preceding paragraph only after the
Mortgage Loan ceases to be 120 days or more Delinquent and thereafter becomes
120 day Delinquent again.
ARTICLE VI
TERMINATION
Section 6.01 Termination. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate
upon the termination of the Trust as provided in Section 8.01 of the Trust
Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment. This Agreement may be amended from time to
time by the Seller and the Purchaser, by written agreement signed by the Seller
and the Purchaser.
Section 7.02 Governing Law. This Agreement shall be governed by
and 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.
Section 7.03 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 registered mail, postage prepaid, addressed
as follows:
if to the Seller:
Credit-Based Asset Servicing and Securitization LLC
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
or such other address as may hereafter be furnished to the Purchaser in writing
by the Seller.
if to the Purchaser:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset-Backed Finance
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
Section 7.04 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, 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 7.05 Counterparts. This Agreement may be executed in one
or more counterparts by the different parties hereto on separate counterparts,
each of which, when so executed, shall be deemed to be an original and such
counterparts, together, shall constitute one and the same agreement.
Section 7.06 Further Agreements. The Purchaser and the Seller each
agree to execute and deliver to the other such additional documents, instruments
or agreements as may be necessary or reasonable and appropriate to effectuate
the purposes of this Agreement or in connection with the issuance of any Series
of Certificates representing interests in the Mortgage Loans.
Without limiting the generality of the foregoing, as a further
inducement for the Purchaser to purchase the Mortgage Loans from the Seller, the
Seller will cooperate with the Purchaser in connection with the sale of any of
the securities representing interests in the Mortgage Loans. In that connection,
the Seller will provide to the Purchaser any and all information and appropriate
verification of information, whether through letters of its auditors and counsel
or otherwise, as the Purchaser shall reasonably request and will provide to the
Purchaser such additional representations and warranties, covenants, opinions of
counsel, letters from auditors, and certificates of public officials or officers
of the Seller as are reasonably required in connection with such transactions
and the offering of investment grade securities rated by the Rating Agencies.
Section 7.07 Intention of the Parties. It is the intention of the
parties that the Purchaser is purchasing, and the Seller is selling, the
Mortgage Loans rather than the pledging of the Mortgage Loans by the Seller to
secure a loan by the Purchaser to the
Seller. Accordingly, the parties hereto each intend to treat the transaction for
Federal income tax purposes and all other purposes as a sale by the Seller and a
purchase by the Purchaser of the Mortgage Loans. The Purchaser will have the
right to review the Mortgage Loans and the related Mortgage Files to determine
the characteristics of the Mortgage Loans which will affect the Federal income
tax consequences of owning the Mortgage Loans and the Seller will cooperate with
all reasonable requests made by the Purchaser in the course of such review.
Section 7.08 Successors and Assigns; Assignment of this Agreement.
This Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser and the Trustee. The obligations of the Seller under this
Agreement cannot be assigned or delegated to a third party without the consent
of the Purchaser and which consent shall be at the Purchaser's sole discretion,
except that the Purchaser acknowledges and agrees that the Seller may assign its
obligations hereunder to any Person into which the Seller is merged or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party or any Person succeeding to the business of the Seller. The
parties hereto acknowledge that the Purchaser is acquiring the Mortgage Loans
for the purpose of contributing them to a trust that will issue a series of
certificates representing undivided interests in such Mortgage Loans. As an
inducement to the Purchaser to purchase the Mortgage Loans, the Seller
acknowledges and consents to the assignment by the Purchaser to the Trustee of
all of the Purchaser's rights against the Seller pursuant to this Agreement
insofar as such rights relate to Mortgage Loans transferred to the Trustee and
to the enforcement or exercise of any right or remedy against the Seller
pursuant to this Agreement by the Trustee. Such enforcement of a right or remedy
by the Trustee shall have the same force and effect as if the right or remedy
had been enforced or exercised by the Purchaser directly.
Section 7.09 Survival. The representations and warranties set
forth in Sections 3.01 and 3.02 hereof shall survive the purchase of the
Mortgage Loans hereunder.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed to this Mortgage Loan Purchase Agreement by their
respective officers thereunto duly authorized as of the day and year first above
written.
XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.,
as Purchaser
By: ______________________________________
Name: Xxxxxxx Xxxxxx
Title: President
CREDIT-BASED ASSET SERVICING
AND SECURITIZATION LLC,
as Seller
By: ______________________________________
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
