Exhibit 99.1
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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
Ownit Mortgage Loan Trust, Series 2006-1
Dated as of January 1, 2006
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS......................................................1
Section 1.01 Definitions...............................................1
ARTICLE II SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE................1
Section 2.01 Sale of Mortgage Loans....................................1
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..............5
Section 3.01 Seller Representations and Warranties
Relating to the Mortgage Loans..........................5
Section 3.02 Seller Representations and Warranties....................14
ARTICLE IV SPONSOR'S COVENANTS.............................................18
Section 4.01 Covenants of the Seller..................................18
ARTICLE V OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS...................18
ARTICLE VI TERMINATION.....................................................19
Section 6.01 Termination..............................................19
ARTICLE VII MISCELLANEOUS PROVISIONS........................................19
Section 7.01 Amendment................................................19
Section 7.02 Governing Law............................................19
Section 7.03 Notices..................................................19
Section 7.04 Severability of Provisions...............................20
Section 7.05 Counterparts.............................................20
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
Exhibit A Standard And Poor's Glossary For File Format For Levels(R)
Version 5.6(c) Revised
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of January 1, 2006 (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 January 1, 2006 (the "Pooling and Servicing Agreement"), among the
Seller, as sponsor, the Purchaser, as depositor, Xxxxxx Loan Servicing LP
("Xxxxxx"), as servicer and JPMorgan Chase Bank, N.A., as trustee (the
"Trustee"), the Purchaser will convey the Mortgage Loans to Ownit Mortgage Loan
Trust, Series 2006-1.
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 shall have the meanings assigned thereto in the Pooling and Servicing
Agreement.
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, (i) all of its right, title and interest
in and to 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; (iii) all 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 Exhibits D-1 and D-2 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 the Custodian shall cause to be deposited, 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 JPMorgan Chase,
N.A., as Trustee under the Pooling and Servicing Agreement for the Ownit
Mortgage Loan Trust, Series 2006-1, without recourse," or with respect to any
lost Mortgage Note, an original lost note affidavit stating that the original
mortgage note was lost, misplaced or destroyed, together with a copy of the
related Mortgage Note;
(ii) the original Mortgage including 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 JPMorgan Chase Bank, N.A., as Trustee under the Pooling and Servicing
Agreement for the Ownit Mortgage Loan Trust, Series 2006-1, 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 the lender's title insurance
policy;
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(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
and for each VA Loan, the related VA guaranty.
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. If the original lender's title
insurance policy was not delivered pursuant to Section 2.02(v) above, the Seller
shall deliver or cause to be delivered to the Custodian, a written commitment or
interim binder or preliminary report of title issued by the title insurance or
escrow company, with the original to be delivered to the Custodian, promptly
upon receipt thereof. 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 first priority perfected 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 the Pooling and Servicing
Agreement.
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(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 cause the Servicer to deliver such
Assignments for recording within 30 days of the Closing Date. The Seller shall
cause the Servicer to 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 cause the Servicer to 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 the Servicer to cause to be completed such endorsements
in the following form: "Pay to the order of JPMorgan Chase Bank, N.A., as
Trustee under the Pooling and Servicing Agreement, for the Ownit Mortgage Loan
Asset-Backed Certificates, Series 2006-1, 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 $[ ] in respect of the Mortgage Loans (the "Purchase Price"),
net of an expense reimbursement amount of $[ ] (the "Expense Reimbursement
Amount"), and to transfer to the Seller or its designee on the Closing Date,
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 reasonable 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 the Certificate Insurer 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 reasonable 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.
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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 related 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.
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(f) Any and all requirements of any federal, state or local law,
including, without limitation, usury, truth-in-lending, predatory or abusive
lending laws, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws applicable to the origination and
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 in the case of the VA Loans to the VA 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. No more than 2.0% of the Mortgage Loans by Cut-off
Date Principal Balance are evidenced by lost note affidavits due to missing
original Mortgage Notes.
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(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.
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(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 this Agreement have been delivered to the Purchaser or its designee, all in
compliance with the specific requirements of the Pooling and Servicing
Agreement.
(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
security that constitutes other than a fee simple interest in 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 non-compliance thereunder would
affect the value or marketability of the Mortgage Loans.
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(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) There is no proceeding pending for the total or partial
condemnation and no eminent domain proceedings pending affecting any Mortgaged
Property.
(dd) 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.
(ee) 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.
(ff) 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.
(gg) 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.
(hh) 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.
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(ii) 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.
(jj) 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.
(kk) 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 Seller, 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).
(ll) 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 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 which is not a co-operative, (E) multi-family
dwelling or townhouse or (F) mobile home or manufactured dwelling which
constitutes real property.
(mm) 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.
(nn) 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.
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(oo) 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.
(pp) 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 lien.
(qq) 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.
(rr) As of January 1, 2006, 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.
(ss) Each Mortgage Loan is a "qualified Mortgage" within the meaning of
Section 860 G(a)(3) of the Code.
(tt) With respect to any Mortgage Loan which provides for an adjustable
interest rate, all rate adjustments have been performed in accordance with the
terms of the related Mortgage Note or subsequent modifications, if any.
(uu) At the time of their origination, all FHA Loans conformed to HUD
origination guidelines.
(vv) 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, 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, in
which case the "Testing Date" shall be the date on which the referenced Mortgage
Loan was modified after the date of its origination.
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(ww) 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)(10) of the Code. The fair market value of the
manufactured home securing each contract was at least equal to 80% of the
adjusted issue price of the contract at either (i) the time the contract was
originated (determined pursuant to the REMIC Provisions) or (ii) the time the
contract is transferred to the purchaser. Each contract is a "qualified
mortgage" under Section 860G(a)(3) of the Code.
(xx) No Mortgage Loan is covered by the Home Ownership and Equity
Protection Act of 1994 ("HOEPA") and no Mortgage Loan is classified as a high
cost mortgage loan under HOEPA. In addition, no Mortgage Loan is a "high cost
home," "covered," "high risk home" or "predatory" loan under any other
applicable state, federal or local law (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees).
(yy) No Mortgage Loan that was originated on or after October 1, 2002
and before March 7, 2003, which is secured by property located in the State of
Georgia. In addition, there is no Mortgage Loan that was originated on or after
March 7, 2003, which is a "high cost home loan" as defined under the Georgia
Fair Lending Act.
(zz) No borrower obtained a prepaid single-premium credit-life, credit
disability, credit unemployment or credit property insurance policy in
connection with the origination of the Mortgage Loan.
(aaa) No Mortgage Loan originated on or after October 1, 2002 will
impose a prepayment premium for a term in excess of three years. Any such
Mortgage Loans originated prior to such date will not impose prepayment
penalties in excess of five years.
(bbb) 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 (three of the
credit repositories), on a monthly basis.
(ccc) The Servicer will fully furnish, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (i.e., favorable and unfavorable) on its borrower credit files to
Equifax, Experian, and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis.
(ddd) With respect to the Prepayment Penalty Schedule, as of the
Closing Date, each prepayment penalty is permissible and enforceable in
accordance with its terms under applicable state law, except as the
enforceability thereof is limited due to acceleration in connection with a
foreclosure or other involuntary payment.
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(eee) 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") was done in accordance with the terms of the Pooling and
Servicing Agreement.
(fff) 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.
(ggg) As of the Closing Date, no Mortgage Loan is the subject of
pending or final foreclosure proceedings or a bankruptcy or similar proceeding.
(hhh) As of the Closing Date, the Seller would not, applying its
ordinary servicing standards, 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.
(iii) As of the Closing Date, 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 Treasury
Regulations Section 1.860G-1(a)(3)) in effect throughout the term of the
Mortgage Loan.
(jjj) As of the Closing Date, no Mortgage Loan is either (i) a
"High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective
November 27, 2003 or (ii) a "High-Cost Home Loan" as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004.
(kkk) No Mortgage Loan is a High Cost Loan or a Covered Loan, as
applicable (as such terms are defined in Appendix E of the Standard & Poor's
Glossary for File Format for LEVELS(R) Version 5.6(c) Revised (attached hereto
as Exhibit A); provided that no representation and warranty is made in this
clause 3.01(kkk) with respect to any Mortgage Loan secured by property located
in the states of Kansas or West Virginia.
(lll) None of the Mortgage Loans that are secured by a property located
in the State of Illinois are in violation of the provisions of the Illinois
Interest Act.
(mmm) No Group I Mortgage Loan is a "high cost home" or "covered"
(excluding home loans defined as "covered home loans" in the New Jersey Home
Ownership Security Act of 2002 that were originated between November 26, 2003
and July 7, 2004).
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(nnn) With respect to any Group I Mortgage Loan originated on or after
August 1, 2004, neither the related Mortgage nor the related Mortgage Note
requires the Mortgagor to submit to arbitration to resolve any dispute arising
out of or relating in any way to the Mortgage Loan transaction.
(ooo) With respect to any Group I Mortgage Loan the original principal
balance of each Group I Mortgage Loan is within Xxxxxxx Mac's dollar amount
limits for conforming one- to four-family mortgage loans.
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 Certificate Insurer or 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. It is understood by the
parties that a breach of the representations and warranties made in this Xxxxxxx
0.00(x), (xx), (xx), (xx), (xxx), (xxx), (xxx), (xxx) and (ooo) will be deemed
to materially and adversely affect the value of any Mortgage Loan. (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.
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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 principles (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.
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(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.
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(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 or the Seller 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 (d) 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.
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(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.
(c) On the Closing Date, counsel for the Seller shall deliver an
opinion to the Purchaser and the Underwriters as to certain corporate matters
and as to the characterization of the transfer of the Mortgage Loans from the
Seller to the Purchaser.
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ARTICLE V
OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS
(a) 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 days 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
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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.
-20-
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 pledging the Mortgage Loans to the Purchaser 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]
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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:
Title:
CREDIT-BASED ASSET SERVICING AND SECURITIZATION LLC,
as Seller
By:
--------------------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
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SCHEDULE I
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
EXHIBIT A
STANDARD AND POOR'S GLOSSARY FOR
FILE FORMAT FOR LEVELS(R) VERSION 5.6(c) REVISED
[INTENTIONALLY OMITTED]
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