Exhibit 99.1
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXXX XXXXX MORTGAGE LENDING, INC.
as Seller
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
as Purchaser
Dated as of
April 28, 2006
TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS............................................... 1
SECTION 2. PURCHASE AND SALE OF THE MORTGAGE LOANS AND RELATED
RIGHTS.................................................... 3
SECTION 3. MORTGAGE LOAN SCHEDULES................................... 4
SECTION 4. MORTGAGE LOAN TRANSFER.................................... 4
SECTION 5. EXAMINATION OF MORTGAGE FILES............................. 5
SECTION 6. RECORDATION OF ASSIGNMENTS OF MORTGAGE.................... 6
SECTION 7. REPRESENTATIONS AND WARRANTIES OF SELLER CONCERNING THE
MORTGAGE LOANS............................................ 8
SECTION 8. REPRESENTATIONS AND WARRANTIES CONCERNING THE SELLER...... 11
SECTION 9. REPRESENTATIONS AND WARRANTIES CONCERNING THE PURCHASER... 12
SECTION 10. CONDITIONS TO CLOSING..................................... 13
SECTION 11. FEES AND EXPENSES......................................... 15
SECTION 12. ACCOUNTANTS' LETTERS...................................... 15
SECTION 13. INDEMNIFICATION........................................... 16
SECTION 14. NOTICES................................................... 18
SECTION 15. TRANSFER OF MORTGAGE LOANS................................ 18
SECTION 16. TERMINATION............................................... 19
SECTION 17. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.................................................. 19
SECTION 18. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST............ 19
SECTION 19. SEVERABILITY.............................................. 20
SECTION 20. COUNTERPARTS.............................................. 20
SECTION 21. AMENDMENT................................................. 20
SECTION 22. GOVERNING LAW............................................. 20
SECTION 23. FURTHER ASSURANCES........................................ 20
SECTION 24. SUCCESSORS AND ASSIGNS.................................... 21
SECTION 25. THE SELLER................................................ 21
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SECTION 26. ENTIRE AGREEMENT.......................................... 21
SECTION 27. NO PARTNERSHIP............................................ 21
EXHIBITS AND SCHEDULE TO
MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 1 Contents of Mortgage File
Exhibit 2 Contents of Final Mortgage File
Exhibit 3 Mortgage Loan Schedule Information
Exhibit 4 Seller's Information
Exhibit 5 Purchaser's Information
Exhibit 6 Schedule of Lost Notes
Exhibit 7 S&P Appendix
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MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of April 28, 2006, as amended
and supplemented by any and all amendments hereto (collectively, the
"Agreement"), by and between XXXXXXX XXXXX MORTGAGE LENDING, INC., a Delaware
corporation (the "Seller"), and XXXXXXX XXXXX MORTGAGE INVESTORS, INC., a
Delaware corporation (the "Purchaser").
Upon the terms and subject to the conditions of this Agreement, the Seller
agrees to sell, and the Purchaser agrees to purchase, certain first lien,
adjustable-rate mortgage loans secured by one- to four-family residences,
townhouses, individual condominiums, co-op units and units in planned unit
developments (collectively, the "Mortgage Loans") as described herein. The
Purchaser intends to deposit the Mortgage Loans into a trust fund (the "Trust
Fund") and create Mortgage Pass-Through Certificates, MLMI Series 2006-A2 (the
"Certificates"), under a pooling and servicing agreement, to be dated as of
April 1, 2006 (the "Pooling and Servicing Agreement"), by and among the
Purchaser, as depositor, HSBC Bank USA, National Association, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator (the "Master Servicer" and "Securities Administrator").
The Purchaser has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Number 333-130545) relating
to its Mortgage Pass-Through Certificates and the offering of certain series
thereof (including certain classes of the Certificates) from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder (the "Securities
Act"). Such registration statement, when it became effective under the
Securities Act, and the prospectus relating to the public offering of certain
classes of the Certificates by the Purchaser (the "Public Offering"), as from
time to time each is amended or supplemented pursuant to the Securities Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus," respectively. The "Prospectus Supplement" shall mean that
supplement, dated April 26, 2006 to the Prospectus, dated March 31, 2006,
relating to certain classes of the Certificates. With respect to the Public
Offering of certain classes of the Certificates, the Purchaser and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") have entered into a
terms agreement dated as of April 25, 2006 to an underwriting agreement dated
February 28, 2003, between the Purchaser and Xxxxxxx Xxxxx (together, the
"Underwriting Agreement").
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties hereto agree as follows:
Section 1. Definitions.
Certain terms are defined herein. Capitalized terms used herein but not
defined herein shall have the meanings specified in the Pooling and Servicing
Agreement. The following other terms are defined as follows:
Closing Date: April 28, 2006.
Cut-off Date: April 1, 2006.
Cut-off Date Balance: $348,838,110.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Substitute Mortgage Loan.
Due Date: With respect to each Mortgage Loan, the first day in each month.
Master Servicer: Xxxxx Fargo Bank, X.X.
Xxxxxxx Xxxxx: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
Moody's: Xxxxx'x Investors Service, Inc., or its successors in interest.
Mortgage: The mortgage or deed of trust creating a first lien on an
interest in real property securing a Mortgage Note.
Mortgage File: The items referred to in Exhibit 1 and Exhibit 2 pertaining
to a particular Mortgage Loan and any additional documents required to be added
to such documents pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne by a Mortgage
Note as stated therein.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Rate: For each Mortgage Loan, the Mortgage Interest Rate for such
Mortgage Loan less the Master Servicing Fee Rate.
Offered Certificates: Shall mean the Class I-A, Class II-A1, Class II-A2,
Class III-A, Class IV-A, Class A-R, Class M-1, Class M-2 and Class M-3
Certificates issued pursuant to the Pooling and Servicing Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Seller or the Purchaser, reasonably acceptable to the Trustee.
Person: Any legal person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Purchase Price: With respect to any Mortgage Loan required to be purchased
by the Seller pursuant to the applicable provisions of this Agreement, an amount
equal to the sum of (i) 100% of the principal remaining unpaid on such Mortgage
Loan as of the date of purchase (including if a foreclosure has already
occurred, the principal balance of the related Mortgage Loan at the time the
Mortgaged Property was acquired), (ii) accrued and unpaid interest thereon at
the Mortgage Interest Rate through and including the last day of the month of
purchase and
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(iii) any costs and damages incurred by the Issuing Entity in connection with
any violation by such Mortgage Loan of any predatory or abusive-lending law.
Rating Agencies: S&P and Moody's, each a "Rating Agency."
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., or
its successors in interest.
Securities Act: The Securities Act of 1933, as amended.
Substitute Mortgage Loan: A mortgage loan substituted for a Deleted
Mortgage Loan which must meet on the date of such substitution the requirements
stated herein and in the Pooling and Servicing Agreement; upon such
substitution, such mortgage loan shall be a "Mortgage Loan" hereunder.
Value: The value of the Mortgaged Property at the time of origination of
the related Mortgage Loan, such value being the lesser of (i) the value of such
property set forth in an appraisal accepted by the Originator or (ii) the sales
price of such property at the time of origination.
Section 2. Purchase and Sale of the Mortgage Loans and Related Rights.
(a) Upon satisfaction of the conditions set forth in Section 10
hereof, the Seller agrees to sell, and the Purchaser agrees to purchase
Mortgage Loans having an aggregate Cut-off Date Balance of $348,838,110.
(b) The closing for the purchase and sale of the Mortgage Loans and
the closing for the issuance of the Certificates will take place on the
Closing Date at the office of the Purchaser's counsel in New York, New York
or such other place as the parties shall agree.
(c) Upon the satisfaction of the conditions set forth in Section 10
hereof, on the Closing Date, in consideration of the purchase of the
Mortgage Loans, the Purchaser shall (i) pay to the Seller an amount equal
to the net sale proceeds of the Offered Certificates plus accrued interest
in immediately available funds by wire transfer to such account or accounts
as shall be designated by the Seller and (ii) deliver to the Seller the
Class B and Class P Certificates.
(d) In addition to the foregoing, on the Closing Date the Seller
assigns to the Purchaser without recourse all of its right, title and
interest in (1) the Master Mortgage Loan Purchase and Servicing Agreement,
dated as of April 1, 2003, between Xxxxxxx Xxxxx Mortgages Holdings Inc.
("MLMH"), Terwin Advisors LLC ("Terwin") and GreenPoint Mortgage Funding,
Inc. ("GreenPoint"), as amended by Amendment No. 1, dated as of August 20,
2003 among MLMH, Terwin and GreenPoint, and the Bring-Down Letter related
thereto, (2) the Assignment, Assumption and Recognition Agreement, dated as
of April 1, 2006, among the Seller, the Purchaser and GreenPoint, (3) the
Master Mortgage Loan Purchase and Servicing Agreement, dated as of November
1,2004, by and between Xxxxxxx Xxxxx Bank USA ("MLBUSA") and Countrywide
Home Loans, Inc. ("CWHL"), as amended, (4) the Assignment, Assumption and
Recognition Agreement, dated as of April 1, 2006, among the Seller, the
Purchaser, CWHL and
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Countrywide Home Loans Servicing LP, (5) Mortgage Servicing Purchase and
Sale Agreement dated as of February 27, 2006, between the Seller and
CitiMortgage, Inc. ("CitiMortgage") and (6) the Assignment, Assumption and
Recognition Agreement, dated as of April 1, 2006, among the Seller, the
Purchaser and CitiMortgage.
Section 3. Mortgage Loan Schedules.
The Seller agrees to provide to the Purchaser as of the date hereof a
preliminary listing of the Mortgage Loans (the "Preliminary Mortgage Loan
Schedule") setting forth the information listed on Exhibit 3 to this Agreement
with respect to each of the Mortgage Loans being sold by the Seller. If there
are changes to the Preliminary Mortgage Loan Schedule, the Seller shall provide
to the Purchaser as of the Closing Date a final schedule (the "Final Mortgage
Loan Schedule") setting forth the information listed on Exhibit 3 to this
Agreement with respect to each of the Mortgage Loans being sold by the Seller to
the Purchaser. The Final Mortgage Loan Schedule shall be delivered to the
Purchaser on the Closing Date, shall be attached to an amendment to this
Agreement to be executed on the Closing Date by the parties hereto and shall be
in form and substance mutually agreed to by the Seller and the Purchaser (the
"Amendment"). If there are no changes to the Preliminary Mortgage Loan Schedule,
the Preliminary Mortgage Loan Schedule shall be the Final Mortgage Loan Schedule
for all purposes hereof.
Section 4 Mortgage Loan Transfer.
(a) The Purchaser will be entitled to all scheduled payments of
principal and interest on the Mortgage Loans due after the Cut-off Date
(regardless of when actually collected) and all payments thereof other than
scheduled principal and interest received after the Cut-off Date. The
Seller will be entitled to all scheduled payments of principal and interest
on the Mortgage Loans due on or before the Cut-off Date (including payments
collected after the Cut-off Date) and all payments thereof other than
scheduled principal and interest on the Mortgage Loans received on or
before the Cut-off Date. Such principal amounts and any interest thereon
belonging to the Seller as described above will not be included in the
aggregate outstanding principal balance of the Mortgage Loans as of the
Cut-off Date as set forth on the Final Mortgage Loan Schedule.
(b) Pursuant to various conveyancing documents to be executed on the
Closing Date and pursuant to the Pooling and Servicing Agreement, the
Purchaser will assign on the Closing Date all of its right, title and
interest in and to the Mortgage Loans to the Trustee for the benefit of the
Certificateholders. In connection with the transfer and assignment of the
Mortgage Loans, the Seller has delivered or will deliver or cause to be
delivered to the Trustee by the Closing Date or such later date as is
agreed to by the Purchaser and the Seller (each of the Closing Date and
such later date is referred to as a "Mortgage File Delivery Date"), the
items of each Mortgage File, provided, however, that in lieu of the
foregoing, the Seller may deliver the following documents, under the
circumstances set forth below: (x) in lieu of the original Mortgage,
assignments to the Trustee or intervening assignments thereof which have
been delivered, are being delivered or will upon receipt of recording
information relating to the Mortgage required to be included thereon, be
delivered to recording offices for recording and have not been returned in
time to permit their delivery as specified above, the Seller may deliver a
true copy thereof with a certification by the Seller or the Originator, on
the face of such copy,
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substantially as follows: "Certified to be a true and correct copy of the
original, which has been transmitted for recording;" (y) in lieu of the
Mortgage, assignments to the Trustee or intervening assignments thereof, if
the applicable jurisdiction retains the originals of such documents or if
the originals are lost (in each case, as evidenced by a certification from
the Seller to such effect), the Seller may deliver photocopies of such
documents containing an original certification by the judicial or other
governmental authority of the jurisdiction where such documents were
recorded; and (z) in lieu of the Mortgage Notes relating to the Mortgage
Loans, each identified in the list delivered by the Purchaser to the
Trustee on the Closing Date and attached hereto as Exhibit 6 the Seller may
deliver lost note affidavits and indemnities of the Seller; and provided
further, however, that in the case of Mortgage Loans which have been
prepaid in full after the Cut-off Date and prior to the Closing Date, the
Seller, in lieu of delivering the above documents, may deliver to the
Trustee a certification by the Seller to such effect. The Seller shall
deliver such original documents (including any original documents as to
which certified copies had previously been delivered) or such certified
copies to the Trustee promptly after they are received. The Seller shall
cause the Mortgage and intervening assignments, if any, and the assignment
of the Mortgage to be recorded not later than 180 days after the Closing
Date, or, in lieu of such assignments, shall provide an Opinion of Counsel
pursuant to Section 6(a) hereof to the effect that the recordation of such
assignment is not necessary to protect the Trustee's interest in the
related Mortgage Loan. Upon the request of the Purchaser, the Seller will
assist the Purchaser in effecting the assignment referred to above.
(c) The Seller and the Purchaser acknowledge hereunder that all of the
Mortgage Loans and the related servicing will ultimately be assigned to
HSBC Bank USA, National Association, as Trustee for the Certificateholders,
on the date hereof.
Section 5. Examination of Mortgage Files.
(a) On or before the Mortgage File Delivery Date, the Seller will have
made the Mortgage Files available to the Purchaser or its agent for
examination which may be at the offices of the Trustee or the Seller and/or
the Seller's custodian. The fact that the Purchaser or its agent has
conducted or has failed to conduct any partial or complete examination of
the Mortgage Files shall not affect the Purchaser's rights to demand cure,
repurchase, substitution or other relief as provided in this Agreement. In
furtherance of the foregoing, the Seller shall make the Mortgage Files
available to the Purchaser or its agent from time to time so as to permit
the Purchaser to confirm the Seller's compliance with the delivery and
recordation requirements of this Agreement and the Pooling and Servicing
Agreement. In addition, upon request of the Purchaser, the Seller agrees to
provide to the Purchaser, Xxxxxxx Xxxxx and to any investors or prospective
investors in the Certificates information regarding the Mortgage Loans and
their servicing, to make the Mortgage Files available to the Purchaser,
Xxxxxxx Xxxxx and to such investors or prospective investors (which may be
at the offices of the Seller and/or the Seller's custodian) and to make
available personnel knowledgeable about the Mortgage Loans for discussions
with the Purchaser, Xxxxxxx Xxxxx and such investors or prospective
investors, upon reasonable request during regular business hours,
sufficient to permit the Purchaser, Xxxxxxx Xxxxx and such investors or
potential investors to conduct such due diligence as any such party
reasonably believes is appropriate.
(b) Pursuant to the Pooling and Servicing Agreement, on the Closing
Date the Trustee (or the Custodian), for the benefit of the
Certificateholders, will review items of the
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Mortgage Files as set forth on Exhibit 1 and will deliver to the Seller a
certification in the form attached as Exhibit One to the Custodial
Agreement.
(c) Pursuant to the Pooling and Servicing Agreement, the Trustee or
the Custodian, as its agent, will review the Mortgage Files within 180 days
of the Closing Date and will deliver to the Purchaser a final certification
substantially in the form of Exhibit Two to the Custodial Agreement. If the
Trustee or the Custodian, as its agent, is unable to deliver a final
certification with respect to the items listed in Exhibit 2 due to any
document that is missing, has not been executed, is unrelated, determined
on the basis of the Mortgagor name, original principal balance and loan
number, to the Mortgage Loans identified in the Final Mortgage Loan
Schedule (a "Material Defect"), the Trustee or the Custodian, as its agent,
shall notify the Seller of such Material Defect. The Seller shall correct
or cure any such Material Defect within 90 days from the date of notice
from the Trustee or the Custodian, as applicable, of the Material Defect
and if the Seller does not correct or cure such Material Defect within such
period and such defect materially and adversely affects the interests of
the Certificateholders in the related Mortgage Loan, the Seller will, in
accordance with the terms of the Pooling and Servicing Agreement, within 90
days of the date of notice, provide the Trustee with a Substitute Mortgage
Loan (if within two years of the Closing Date) or purchase the related
Mortgage Loan at the applicable Purchase Price; provided, however, that if
such defect relates solely to the inability of the Seller to deliver the
original security instrument or intervening assignments thereof, or a
certified copy because the originals of such documents, or a certified
copy, have not been returned by the applicable jurisdiction, the Seller
shall not be required to purchase such Mortgage Loan if the Seller delivers
such original documents or certified copy promptly upon receipt, but in no
event later than 360 days after the Closing Date. The foregoing repurchase
obligation shall not apply in the event that the Seller cannot deliver such
original or copy of any document submitted for recording to the appropriate
recording office in the applicable jurisdiction because such document has
not been returned by such office; provided that the Seller shall instead
deliver a recording receipt of such recording office or, if such receipt is
not available, a certificate of the Seller confirming that such documents
have been accepted for recording, and delivery to the Trustee or the
Custodian, as its agent, shall be effected by the Seller within thirty days
of its receipt of the original recorded document.
(d) At the time of any substitution, the Seller shall deliver or cause
to be delivered the Substitute Mortgage Loan, the related Mortgage File and
any other documents and payments required to be delivered in connection
with a substitution pursuant to the Pooling and Servicing Agreement. At the
time of any purchase or substitution, the Trustee shall (i) assign to the
Seller and release or cause the Custodian, as its agent, to release the
documents (including, but not limited to, the Mortgage, Mortgage Note and
other contents of the Mortgage File) in the possession of the Trustee or
the Custodian relating to the Deleted Mortgage Loan and (ii) execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as shall be necessary to vest in the Seller title to such Deleted
Mortgage Loan.
Section 6. Recordation of Assignments of Mortgage.
(a) The Seller need not cause to be recorded any assignment which
relates to a Mortgage Loan in any jurisdiction; provided, however, each
assignment of Mortgage shall be submitted for recording by the Seller, at
no expense to the Issuing Entity or Trustee, upon the
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earliest to occur of (i) reasonable direction by the Holders of
Certificates evidencing, in the aggregate, not less than 25% of the Voting
Rights, (ii) the occurrence of an Event of Default with respect to the
Master Servicer (upon instruction of the Seller), (iii) the occurrence of a
bankruptcy, insolvency or foreclosure relating to the Seller or (iv) with
respect to any one assignment of Mortgage, the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Mortgagor under the related
Mortgage.
While each such Mortgage or assignment is being recorded, if necessary, the
Seller shall leave or cause to be left with the Trustee a certified copy of such
Mortgage or assignment. All customary recording fees and reasonable expenses
relating to the recordation of the assignments of mortgage to the Trustee shall
be borne by the Seller.
(d) It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans by the Seller to the Purchaser, as contemplated by
this Agreement be, and be treated as, a sale. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans are held by a court of competent
jurisdiction to continue to be property of the Seller, then (i) this
Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the applicable Uniform Commercial Code; (ii)
the transfer of the Mortgage Loans provided for herein shall be deemed to
be a grant by the Seller to the Purchaser of a security interest in all of
the Seller's right, title and interest in and to the Mortgage Loans and all
amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary,
of the foregoing into cash, instruments, securities or other property, to
the extent the Purchaser would otherwise be entitled to own such Mortgage
Loans and proceeds pursuant to Section 4 hereof, including all amounts,
other than investment earnings, from time to time held or invested in any
accounts created pursuant to the Pooling and Servicing Agreement, whether
in the form of cash, instruments, securities or other property; (iii) the
possession by the Purchaser or the Trustee of Mortgage Notes and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest pursuant to Section 9-305 (or
comparable provision) of the applicable Uniform Commercial Code; and (iv)
notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be
deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the
Purchaser for the purpose of perfecting such security interest under
applicable law. Any assignment of the interest of the Purchaser pursuant to
any provision hereof or pursuant to the Pooling and Servicing Agreement
shall also be deemed to be an assignment of any security interest created
hereby. The Seller and the Purchaser shall, to the extent consistent with
this Agreement, take such actions as may be reasonably necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be
maintained as such throughout the term of the Pooling and Servicing
Agreement.
Section 7. Representations and Warranties of Seller Concerning the Mortgage
Loans.
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The Seller hereby represents and warrants to the Purchaser as of the
Closing Date or such other date as may be specified below with respect to each
Mortgage Loan being sold by it:
(a) the information set forth in the Mortgage Loan Schedule hereto is
true and correct in all material respects;
(b) immediately prior to the transfer to the Purchaser, the Seller was
the sole owner of beneficial title and holder of each Mortgage and Mortgage
Note relating to the Mortgage Loans and is conveying the same free and
clear of any and all liens, claims, encumbrances, participation interests,
equities, pledges, charges or security interests of any nature and the
Seller has full right and authority to sell or assign the same pursuant to
this Agreement;
(c) no selection procedure reasonably believed by the Seller to be
adverse to the interests of the Certificateholders was utilized in
selecting the Mortgage Loans;
(d) each Mortgage Loan constitutes a "qualified mortgage" under
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1);
(e) no Mortgage Loan is in foreclosure;
(f) no Mortgage Loan provides for interest other than at either (i) a
single fixed rate in effect throughout the term of the Mortgage Loan or
(ii) a "variable rate" (within the meaning of Treas. Reg. Section
1.860G-1(a)(3)) in effect throughout the term of the Mortgage Loan;
(g) the Seller would not, based on the delinquency status of the
Mortgage Loans, institute foreclosure proceedings with respect to any of
the Mortgage Loans prior to the next scheduled payment for such Mortgage
Loan;
(h) the information set forth under the caption "Description of the
Mortgage Pools--General" and "--Tabular Characteristics of the Mortgage
Pool" in the Prospectus Supplement is true and correct in all material
respects;
(i) as of the Cut-off Date, no Mortgage Loan is more than 30 days past
due. The Seller has not advanced funds, or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Note or Mortgage;
(j) to the best of the Seller's knowledge, there are no delinquent
taxes, ground rents, water charges, sewer rents, assessments, insurance
premiums, leasehold payments, including assessments payable in future
installments or other outstanding charges affecting the related Mortgaged
Property;
(k) to the best of the Seller's knowledge, there is no default,
breach, violation or event of acceleration existing under the Mortgage or
the Mortgage Note and no event
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which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or
event of acceleration, and the Seller has not waived any default, breach,
violation or event of acceleration;
(l) to the best of the Seller's knowledge, the Mortgaged Property is
free of damage and waste and there is no proceeding pending for the total
or partial condemnation thereof;
(m) to the best of the Seller's knowledge, the Mortgaged Property is
lawfully occupied under applicable law at time of origination; all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited to
certificates of occupancy, have been made or obtained from the appropriate
authorities;
(n) all requirements of any federal, state or local law (including
usury, truth in lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity, disclosure or recording, predatory
and abusive lending laws) applicable to the origination and servicing of
such Mortgage Loan have been complied with in all material respects;
(o) to the best of the Seller's knowledge, as of the date of transfer
of the Mortgage Loans, there is no mechanics' lien or claim for work, labor
or material affecting the Mortgaged Property except those which are insured
against by the title insurance policy;
(p) to the best of the Seller's knowledge, as of the date of the
transfer of the Mortgage Loans to the Purchaser, there is no valid offset,
defense or counterclaim to any Mortgage Note or Mortgage;
(q) to the best of the Seller's knowledge, as of the date of closing,
the physical property subject to any mortgage is free of material damage
and is in good repair;
(r) at the time of origination, no improvement located on or being
part of the Mortgaged Property was in violation of any applicable zoning
and subdivision laws or ordinances;
(s) each Mortgage Loan is and will be a mortgage loan arising out of
the originator's practice in accordance with the seller/originator's
underwriting guidelines. The seller has no knowledge of any fact that
should have led it to expect at the time of the initial creation of an
interest in the mortgage loan that such mortgage loan would not be paid in
full when due;
(t) each original mortgage has been recorded or is in the process of
being recorded in the appropriate jurisdictions wherein such recordation is
required to perfect the lien thereof for the benefit of the trust;
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(u) the related mortgage file contains each of the documents and
instruments specified;
(v) loans originated are being serviced according to the
seller/servicer guidelines;
(w) the mortgage note and the mortgage have not been impaired, altered
or modified in any material respect, except by a written instrument which
has been recorded or is in the process of being recorded;
(x) a lender's title policy or binder, or other assurance of title
insurance customary in a form acceptable to FNMA or FHLMC was issued at
origination and each policy or binder is valid and remains in full force
and effect;
(y) none of the Mortgage Loans are secured by a leasehold interest;
(z) none of the Mortgage Loans are subject to the Georgia Fair Lending
Act, as amended;
(aa) none of the Mortgage Loans is subject to the Home Ownership and
Equity Protection Act of 1994 or is a "high cost" or "predatory" loan as
defined by applicable local, state and federal predatory and abusive
lending laws; and
(bb) no Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in Appendix E of the then current
Standard & Poor's Glossary For File Format For LEVELS(R) Version 5.6d
Revised (attached hereto as Exhibit 7).
It is understood and agreed that the representations and warranties set
forth in this Section 7 will inure to the benefit of the Purchaser, its
successors and assigns, notwithstanding any restrictive or qualified endorsement
on any Mortgage Note or assignment of Mortgage or the examination of any
Mortgage File. Upon any substitution for a Mortgage Loan, the representations
and warranties set forth above shall be deemed to be made by the Seller as to
any Substitute Mortgage Loan as of the date of substitution.
Upon discovery or receipt of notice by the Seller, the Purchaser or the
Trustee of a breach of any representation or warranty of the Seller set forth in
this Section 7 which materially and adversely affects the value of the interests
of the Purchaser, the Certificateholders or the Trustee in any of the Mortgage
Loans delivered to the Purchaser pursuant to this Agreement, the party
discovering or receiving notice of such breach shall give prompt written notice
to the others. In the case of any such breach of a representation or warranty
set forth in this Section 7, within 90 days from the date of discovery by the
Seller, or the date the Seller is notified by the party discovering or receiving
notice of such breach (whichever occurs earlier), the Seller will (i) cure such
breach in all material respects, (ii) purchase the affected Mortgage Loan at the
applicable Purchase Price or (iii) if within two years of the Closing Date,
substitute a qualifying Substitute Mortgage Loan in exchange for such Mortgage
Loan. The obligations of the Seller to cure, purchase or substitute a qualifying
Substitute Mortgage Loan shall constitute the Purchaser's, the Trustee's and the
Certificateholder's sole and exclusive remedy under this
10
Agreement or otherwise respecting a breach of representations or warranties
hereunder with respect to the Mortgage Loans, except for the obligation of the
Seller to indemnify the Purchaser for such breach as set forth in and limited by
Section 14 hereof. With respect to the representations and warranties described
in the Agreement which are made to the best of the Seller's knowledge, if it is
discovered by any of the Depositor, the Seller or the Trustee that the substance
of such representation and warranty is inaccurate and such inaccuracy materially
and adversely affects the value of the related Mortgage Loan, then
notwithstanding the seller's lack of knowledge with respect to the substance of
such representation and warranty, such inaccuracy shall be deemed a breach of
the applicable representation or warranty.
Any cause of action against the Seller or relating to or arising out of a
breach by the Seller of any representations and warranties made in this Section
7 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Seller or notice thereof by the party discovering such breach and (ii) failure
by the Seller to cure such breach, purchase such Mortgage Loan or substitute a
qualifying Substitute Mortgage Loan pursuant to the terms hereof.
Section 8. Representations and Warranties Concerning the Seller.
As of the date hereof and as of the Closing Date, the Seller represents and
warrants to the Purchaser as to itself in the capacity indicated as follows:
(a) the Seller (i) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and (ii) is
qualified and in good standing to do business in each jurisdiction where
such qualification is necessary, except where the failure so to qualify
would not reasonably be expected to have a material adverse effect on the
Seller's business as presently conducted or on the Seller's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(b) the Seller has full power to own its property, to carry on its
business as presently conducted and to enter into and perform its
obligations under this Agreement;
(c) the execution and delivery by the Seller of this Agreement have
been duly authorized by all necessary action on the part of the Seller; and
neither the execution and delivery of this Agreement, nor the consummation
of the transactions herein contemplated, nor compliance with the provisions
hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Seller or its
properties or the charter or by-laws of the Seller, except those conflicts,
breaches or defaults which would not reasonably be expected to have a
material adverse effect on the Seller's ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Seller of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been
11
obtained, given or made and, in connection with the recordation of the
Mortgages, powers of attorney or assignments of Mortgages not yet
completed;
(e) this Agreement has been duly executed and delivered by the Seller
and, assuming due authorization, execution and delivery by the Purchaser,
constitutes a valid and binding obligation of the Seller enforceable
against it in accordance with its terms (subject to applicable bankruptcy
and insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally);
(f) there are no actions, suits or proceedings pending or, to the
knowledge of the Seller, threatened against the Seller, before or by any
court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
with respect to any other matter which in the judgment of the Seller will
be determined adversely to the Seller and will if determined adversely to
the Seller materially and adversely affect the Seller's ability to perform
its obligations under this Agreement; and the Seller is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions
contemplated by this Agreement; and
(g) the Seller's Information (as defined in Section 13(a) hereof) does
not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading.
Section 9.Representations and Warranties Concerning the Purchaser.
As of the date hereof and as of the Closing Date, the Purchaser represents
and warrants to the Seller as follows:
(a) the Purchaser (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
(ii) is qualified and in good standing as a foreign corporation to do
business in each jurisdiction where such qualification is necessary, except
where the failure so to qualify would not reasonably be expected to have a
material adverse effect on the Purchaser's business as presently conducted
or on the Purchaser's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(h) the Purchaser has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform
its obligations under this Agreement;
(i) the execution and delivery by the Purchaser of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Purchaser; and neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Purchaser or its
12
properties or the articles of incorporation or by-laws of the Purchaser,
except those conflicts, breaches or defaults which would not reasonably be
expected to have a material adverse effect on the Purchaser's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(j) the execution, delivery and performance by the Purchaser of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
(k) this Agreement has been duly executed and delivered by the
Purchaser and, assuming due authorization, execution and delivery by the
Seller, constitutes a valid and binding obligation of the Purchaser
enforceable against it in accordance with its terms (subject to applicable
bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally);
(l) there are no actions, suits or proceedings pending or, to the
knowledge of the Purchaser, threatened against the Purchaser, before or by
any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
with respect to any other matter which in the judgment of the Purchaser
will be determined adversely to the Purchaser and will if determined
adversely to the Purchaser materially and adversely affect the Purchaser's
ability to perform its obligations under this Agreement; and the Purchaser
is not in default with respect to any order of any court, administrative
agency, arbitrator or governmental body so as to materially and adversely
affect the transactions contemplated by this Agreement; and
(m) the Purchaser's Information (as defined in Section 13(b) hereof)
does not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading.
Section 10. Conditions to Closing.
(a) The obligations of the Purchaser under this Agreement will be
subject to the satisfaction, on or prior to the Closing Date, of the
following conditions:
(i) Each of the obligations of the Seller required to be
performed at or prior to the Closing Date pursuant to the terms of
this Agreement shall have been duly performed and complied with in all
material respects; all of the representations and warranties of the
Seller under this Agreement shall be true and correct as of the date
or dates specified in all material respects; and no event shall have
occurred which, with notice or the passage of time, would constitute a
default under this Agreement, or the Pooling and Servicing Agreement;
and the Purchaser shall have received certificates to that effect
signed by authorized officers of the Seller.
13
(ii) The Purchaser shall have received all of the following
closing documents, in such forms as are agreed upon and reasonably
acceptable to the Purchaser, duly executed by all signatories other
than the Purchaser as required pursuant to the respective terms
thereof:
(A) If required pursuant to Section 3 hereof, the Amendment
dated as of the Closing Date and any documents referred to
therein;
(B) If required pursuant to Section 3 hereof, the Final
Mortgage Loan Schedule containing the information set forth on
Exhibit 3 hereto, one copy to be attached to each counterpart of
the Amendment;
(C) The Pooling and Servicing Agreement, in form and
substance reasonably satisfactory to the Trustee and the
Purchaser, and all documents required thereby duly executed by
all signatories;
(D) A certificate of an officer of the Seller dated as of
the Closing Date, in a form reasonably acceptable to the
Purchaser, and attached thereto the resolutions of the Seller's
authorizing the transactions contemplated by this Agreement,
together with copies of the charter and by-laws of the Seller;
(E) One or more opinions of counsel from the Seller's
counsel otherwise in form and substance reasonably satisfactory
to the Purchaser, the Trustee and each Rating Agency;
(F) A letter from each of the Rating Agencies giving each
Class of Certificates set forth on Schedule A the rating set
forth on Schedule A; and
(G) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably
necessary to secure the intended ratings from each Rating Agency
for the Certificates.
(iii) The Certificates to be sold to Xxxxxxx Xxxxx pursuant to
the Underwriting Agreement shall have been issued and sold to Xxxxxxx
Xxxxx.
(iv) The Seller shall have furnished to the Purchaser such other
certificates of its officers or others and such other documents and
opinions of counsel to evidence fulfillment of the conditions set
forth in this Agreement and the transactions contemplated hereby as
the Purchaser and its counsel may reasonably request.
(n) The obligations of the Seller under this Agreement shall be
subject to the satisfaction, on or prior to the Closing Date, of the
following conditions:
(i) The obligations of the Purchaser required to be performed by
it on or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with in all
material respects, and all of the representations and warranties of
the Purchaser under this Agreement shall be true and correct in all
material respects as of the date hereof and as of the Closing Date,
and no event shall have occurred which would
14
constitute a breach by it of the terms of this Agreement, and the
Seller shall have received a certificate to that effect signed by an
authorized officer of the Purchaser.
(ii) The Seller shall have received copies of all of the
following closing documents, in such forms as are agreed upon and
reasonably acceptable to the Seller, duly executed by all signatories
other than the Seller as required pursuant to the respective terms
thereof:
(A) If required pursuant to Section 3 hereof, the Amendment
dated as of the Closing Date and any documents referred to
therein;
(B) The Pooling and Servicing Agreement, in form and
substance reasonably satisfactory to the Seller, and all
documents required thereby duly executed by all signatories;
(C) A certificate of an officer of the Purchaser dated as of
the Closing Date, in a form reasonably acceptable to the Seller,
and attached thereto the resolutions of the Purchaser authorizing
the transactions contemplated by this Agreement and the Pooling
and Servicing Agreement, together with copies of the Purchaser's
articles of incorporation, and evidence as to the good standing
of the Purchaser dated as of a recent date;
(D) One or more opinions of counsel from the Purchaser's
counsel in form and substance reasonably satisfactory to the
Seller; and
(E) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably
necessary to secure the intended rating from each Rating Agency
for the Certificates;
Section 11. Fees and Expenses.
Subject to Section 17 hereof, the Seller shall pay on the Closing Date or
such later date as may be agreed to by the Purchaser (i) the fees and expenses
of the Seller's attorneys and the reasonable fees and expenses of the
Purchaser's attorneys, (ii) the fees and expenses of Deloitte & Touche LLP,
(iii) the filing fee charged by the Commission for the registration of the
Certificates, (iv) the fees and expenses including counsel's fees and expenses
in connection with any "blue sky" and legal investment matters, (v) the fees and
expenses of the Trustee which shall include without limitation the fees and
expenses of the Trustee (and the fees and disbursements of its counsel) with
respect to (A) legal and document review of this Agreement, the Pooling and
Servicing Agreement, the Certificates and related agreements, (B) attendance at
the Closing and (C) review of the Mortgage Loans to be performed by the Trustee,
(vi) the expenses for printing or otherwise reproducing the Certificates, the
Prospectus and the Prospectus Supplement, (vii) the fees and expenses of each
Rating Agency (both initial and ongoing), (viii) the fees and expenses relating
to the preparation and recordation of mortgage assignments (including
intervening assignments, if any and if available, to evidence a complete chain
of title from the originator to the Trustee) from the Seller to the Trustee or
the expenses relating to the Opinion of Counsel referred to in Section 6(a)
hereof, as the case may be, and (ix) Mortgage File due
15
diligence expenses and other out-of-pocket expenses incurred by the Purchaser in
connection with the purchase of the Mortgage Loans and by Xxxxxxx Xxxxx in
connection with the sale of the Offered Certificates. The Seller additionally
agrees to pay directly to any third party on a timely basis the fees provided
for above which are charged by such third party and which are billed
periodically.
Section 12. Accountants' Letters
Deloitte & Touche LLP will review the characteristics of a sample of the
Mortgage Loans described in the Final Mortgage Loan Schedule and will compare
those characteristics to the description of the Mortgage Loans contained in the
Prospectus Supplement under the captions "Summary--The Mortgage Loans",
"Description of the Mortgage Pools--General" and "--Tabular Characteristics of
the Mortgage Loans" and "Annex II--The Mortgage Pool". The Seller will cooperate
with the Purchaser in making available all information and taking all steps
reasonably necessary to permit such accountants to complete the review and to
deliver the letters required of them under the Underwriting Agreement. Deloitte
& Touche LLP will also confirm certain calculations as set forth under the
caption "Yield, Prepayment and Weighted Average Life" in the Prospectus
Supplement.
Section 13. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser and its
directors, officers and controlling persons (as defined in Section 15 of
the Securities Act) from and against any loss, claim, damage or liability
or action in respect thereof, to which they or any of them may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon (i) any
untrue statement of a material fact contained in the Seller's Information
as identified in Exhibit 4, the omission to state in the Prospectus
Supplement or Prospectus (or any amendment thereof or supplement thereto
approved by the Seller and in which additional Seller's Information is
identified), in reliance upon and in conformity with Seller's Information a
material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made,
not misleading, (ii) any representation or warranty assigned or made by the
Seller in Section 7 or Section 8 hereof being, or alleged to be, untrue or
incorrect, or (iii) any failure by the Seller to perform its obligations
under this Agreement; and the Seller shall reimburse the Purchaser and each
other indemnified party for any legal and other expenses reasonably
incurred by them in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action.
(o) The Seller shall indemnify and hold harmless the Purchaser, the
Trust Fund and the Trustee against any documented out-of-pocket losses,
penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and other costs and expenses resulting from any
claim, demand, defense or assertion by any third party that results from, a
material breach of the representations and warranties set forth in Section
7 of this Agreement; provided, however, indemnification shall not be
available for any economic losses of the Purchaser due to reinvestment
losses, loss of investment income or any other special, indirect or
consequential losses. The Seller shall indemnify
16
and hold harmless the Purchaser, the Trust Fund and the Trustee against any
losses, penalties, fines, forfeitures, reasonable and necessary legal fees
and related costs, judgments, and other costs and expenses resulting from
any claim, demand, defense or assertion by any third party in connection
with the Georgia Fair Lending Act; provided, however, indemnification shall
not be available for any economic losses of the Purchaser due to
reinvestment losses, loss of investment income or any other special,
indirect or consequential losses.
The foregoing indemnity agreement is in addition to any liability which the
Seller otherwise may have to the Purchaser or any other such indemnified party.
(p) The Purchaser shall indemnify and hold harmless the Seller and its
respective directors, officers and controlling persons (as defined in
Section 15 of the Securities Act) from and against any loss, claim, damage
or liability or action in respect thereof, to which they or any of them may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon
(i) any untrue statement of a material fact contained in the Purchaser's
Information as identified in Exhibit 5, the omission to state in the
Prospectus Supplement or Prospectus (or any amendment thereof or supplement
thereto approved by the Purchaser and in which additional Purchaser's
Information is identified), in reliance upon and in conformity with the
Purchaser's Information, a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances in
which they were made, not misleading, (ii) any representation or warranty
made by the Purchaser in Section 9 hereof being, or alleged to be, untrue
or incorrect, or (iii) any failure by the Purchaser to perform its
obligations under this Agreement; and the Purchaser shall reimburse the
Seller, and each other indemnified party for any legal and other expenses
reasonably incurred by them in connection with investigating or defending
or preparing to defend any such loss, claim, damage, liability or action.
The foregoing indemnity agreement is in addition to any liability which the
Purchaser otherwise may have to the Seller, or any other such indemnified
party,
(q) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall not
relieve it from any liability which it may have under this Section 13
except to the extent that it has been prejudiced in any material respect by
such failure or from any liability which it may have otherwise). In case
any such action is brought against any indemnified party, and it notifies
an indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent it may elect by
written notice delivered to the indemnified party promptly (but, in any
event, within 30 days) after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their
own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
17
employment of such counsel shall have been authorized in writing by one of
the indemnifying parties in connection with the defense of such action,
(ii) the indemnifying parties shall not have employed counsel to have
charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) such indemnified party or parties
shall have reasonably concluded that there is a conflict of interest
between itself or themselves and the indemnifying party in the conduct of
the defense of any claim or that the interests of the indemnified party or
parties are not substantially co-extensive with those of the indemnifying
party (in which case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by
the indemnifying parties (provided, however, that the indemnifying party
shall be liable only for the fees and expenses of one counsel in addition
to one local counsel in the jurisdiction involved. Anything in this
subsection to the contrary notwithstanding, an indemnifying party shall not
be liable for any settlement or any claim or action effected without its
written consent; provided, however, that such consent was not unreasonably
withheld.
(r) If the indemnification provided for in paragraphs (a) and (b) of
this Section 13 shall for any reason be unavailable to an indemnified party
in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to in Section 13, then the indemnifying party
shall in lieu of indemnifying the indemnified party contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative benefits
received by the Seller on the one hand and the Purchaser on the other from
the purchase and sale of the Mortgage Loans, the offering of the
Certificates and the other transactions contemplated hereunder. No person
found liable for a fraudulent misrepresentation shall be entitled to
contribution from any person who is not also found liable for such
fraudulent misrepresentation.
(s) The parties hereto agree that reliance by an indemnified party on
any publicly available information or any information or directions
furnished by an indemnifying party shall not constitute negligence, bad
faith or willful misconduct by such indemnified party.
Section 14. Notices.
All demands, notices and communications hereunder shall be in writing but
may be delivered by facsimile transmission subsequently confirmed in writing.
Notices to the Seller shall be directed to Xxxxxxx Xxxxx Mortgage Lending Inc.,
0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (Telecopy: 212-449-6710),
and notices to the Purchaser shall be directed to Xxxxxxx Xxxxx Mortgage
Investors, Inc. ,4 World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (Telecopy:
212-449-6710), Attention: Xxxxx Xxxxxxx; or to any other address as may
hereafter be furnished by one party to the other party by like notice. Any such
demand, notice or communication hereunder shall be deemed to have been received
on the date received at the premises of the addressee (as evidenced, in the case
of registered or certified mail, by the date noted on the return receipt)
provided that it is received on a business day during normal business
18
hours and, if received after normal business hours, then it shall be deemed to
be received on the next business day.
Section 15. Transfer of Mortgage Loans.
The Purchaser retains the right to assign the Mortgage Loans and any or all
of its interest under this Agreement to the Trustee without the consent of the
Seller, and, upon such assignment, the Trustee shall succeed to the applicable
rights and obligations of the Purchaser hereunder; provided, however, the
Purchaser shall remain entitled to the benefits set forth in Sections 11, 13 and
17 hereto and as provided in Section 2(a). Notwithstanding the foregoing, the
sole and exclusive right and remedy of the Trustee with respect to a breach of
representation or warranty of the Seller shall be the purchase or substitution
obligations of the Seller contained in Sections 5 and 7 hereof.
Section 16. Termination.
This Agreement may be terminated (a) by the mutual consent of the parties
hereto prior to the Closing Date, (b) by the Purchaser, if the conditions to the
Purchaser's obligation to close set forth under Section 10(a) hereof are not
fulfilled as and when required to be fulfilled or (c) by the Seller, if the
conditions to the Seller's obligation to close set forth under Section 10(b)
hereof are not fulfilled as and when required to be fulfilled. In the event of
termination pursuant to clause (b), the Seller shall pay, and in the event of
termination pursuant to clause (c), the Purchaser shall pay, all reasonable
out-of-pocket expenses incurred by the other in connection with the transactions
contemplated by this Agreement. In the event of a termination pursuant to clause
(a), each party shall be responsible for its own expenses.
Section 17. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
or contained in certificates of officers of the Seller submitted pursuant
hereto, shall remain operative and in full force and effect and shall survive
delivery of the Mortgage Loans to the Purchaser (and by the Purchaser to the
Trustee). Subsequent to the delivery of the Mortgage Loans to the Purchaser, the
Seller's representations and warranties contained herein with respect to the
Mortgage Loans shall be deemed to relate to the Mortgage Loans actually
delivered to the Purchaser and included in the Final Mortgage Loan Schedule and
any Substitute Mortgage Loan and not to those Mortgage Loans deleted from the
Preliminary Mortgage Loan Schedule pursuant to Section 3 hereof prior to the
Closing.
Section 18. Mandatory Delivery; Grant of Security Interest.
The sale and delivery on the Closing Date of the Mortgage Loans described
on the Mortgage Loan Schedule in accordance with the terms and conditions of
this Agreement is mandatory. It is specifically understood and agreed that each
Mortgage Loan is unique and identifiable on the date hereof and that an award of
money damages would be insufficient to compensate the Purchaser for the losses
and damages incurred by the Purchaser in the event of the Seller's failure to
deliver the Mortgage Loans on or before the Closing Date. The Seller hereby
grants to the Purchaser a lien on and a continuing security interest in the
Seller's interest
19
in each Mortgage Loan and each document and instrument evidencing each such
Mortgage Loan to secure the performance by the Seller of its obligation
hereunder, and the Seller agrees that it holds such Mortgage Loans in custody
for the Purchaser, subject to the Purchaser's obligation to deliver or cause to
be delivered the consideration for the Mortgage Loans pursuant to Section 2
hereof. The Seller agrees that, upon acceptance of the Mortgage Loans by the
Purchaser or its designee and delivery of payment to the Seller, that its
security interest in the Mortgage Loans shall be released. All rights and
remedies of the Purchaser under this Agreement are distinct from, and cumulative
with, any other rights or remedies under this Agreement or afforded by law or
equity and all such rights and remedies may be exercised concurrently,
independently or successively.
Notwithstanding the foregoing, if on the Closing Date, each of the
conditions set forth in Section 10 hereof shall have been satisfied and the
Purchaser shall not have paid or caused to be paid the purchase price as
described in Section 2(c) hereof, or any such condition shall not have been
waived or satisfied and the Purchaser determines not to pay or cause to be paid
the purchase price, the Purchaser shall immediately effect the redelivery of the
Mortgage Loans, if delivery to the Purchaser has occurred and the security
interest created by this Section 18 shall be deemed to have been released.
Section 19. Severability.
Any part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
Section 20. Counterparts.
This Agreement may be executed in counterparts, each of which will be an
original, but which together shall constitute one and the same agreement.
Section 21. Amendment.
This Agreement cannot be amended or modified in any manner without the
prior written consent of each party.
Section 22. GOVERNING LAW.
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND PERFORMED IN THE STATE
OF NEW YORK AND SHALL BE INTERPRETED IN
20
ACCORDANCE WITH THE LAWS OF SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
Section 23. Further Assurances.
Each of the parties agrees to execute and deliver such instruments and take
such actions as another party may, from time to time, reasonably request in
order to effectuate the purpose and to carry out the terms of this Agreement
including any amendments hereto which may be required by either Rating Agency.
Section 24. Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be enforceable by
the Seller and the Purchaser and their permitted successors and assigns and, to
the extent specified in Section 13 hereof, Xxxxxxx Xxxxx, and their directors,
officers and controlling persons (within the meaning of federal securities
laws). The Seller acknowledges and agrees that the Purchaser may assign its
rights under this Agreement (including, without limitation, with respect to the
Seller's representations and warranties respecting the Mortgage Loans) to the
Trustee. Any person into which the Seller may be merged or consolidated (or any
person resulting from any merger or consolidation involving the Seller), any
person resulting from a change in form of the Seller or any person succeeding to
the business of the Seller, shall be considered the "successor" of the Seller
hereunder and shall be considered a party hereto without the execution or filing
of any paper or any further act or consent on the part of any party hereto.
Except as provided in the two preceding sentences, this Agreement cannot be
assigned, pledged or hypothecated by either party hereto without the written
consent of the other parties to this Agreement and any such assignment or
purported assignment shall be deemed null and void.
Section 25. The Seller.
The Seller will keep in full effect all rights as are necessary to perform
their respective obligations under this Agreement.
Section 26. Entire Agreement.
This Agreement contains the entire agreement and understanding between the
parties with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof.
Section 27. No Partnership.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
21
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective duly authorized officers as of the date first above
written.
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By:
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT 1
CONTENTS OF MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items, which shall be available for inspection by the Purchaser or
its designee, and which shall be delivered to the Purchaser or its designee
pursuant to the terms of the Agreement.
A. With respect to each Mortgage Loan (other than a Cooperative Loan):
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-A2, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iii) an original Assignment of the Mortgage executed in the following
form: "HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-A2.
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the immediately
preceding clause (iii), if applicable and only to the extent available to
the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) the original power of attorney, if applicable.
B. With respect to each Mortgage Loan that is a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the
E-1-1
order of HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-A2, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original duly executed assignment of Security Agreement to
the Trustee;
(iii) the acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and any
required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3 with
respect to the Security Agreement, indicating the Trustee as the assignee
of the secured party;
(v) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank attached;
(vi) the original collateral assignment of the proprietary lease by
Mortgagor to the originator;
(vii) a copy of the recognition agreement;
(viii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3 with
evidence of filing thereon; and
(ix) the originals of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loan.
E-1-2
EXHIBIT 2
CONTENTS OF FINAL MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items, which shall be available for inspection by the Purchaser or
its agent, and which shall be delivered to the Purchaser pursuant to the terms
of the Agreement.
A. With respect to each Mortgage Loan (other than a Cooperative Loan):
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-A2, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iii) an original Assignment of the Mortgage executed in the following
form: "HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-A2.
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the immediately
preceding clause (iii), if applicable and only to the extent available to
the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) the original power of attorney, if applicable.
B. With respect to each Mortgage Loan that is a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of
E-2-1
the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 2006-A2, without recourse," with all prior and
intervening endorsements showing a complete chain of endorsement from the
originator to the Person so endorsing to the Trustee;
(ii) the original duly executed assignment of Security Agreement to
the Trustee;
(iii) the acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and any
required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3 with
respect to the Security Agreement, indicating the Trustee as the assignee
of the secured party;
(v) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank attached;
(vi) the original collateral assignment of the proprietary lease by
Mortgagor to the originator;
(vii) a copy of the recognition agreement;
(viii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3 with
evidence of filing thereon; and
(ix) the originals of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loan.
E-2-2
EXHIBIT 3
MORTGAGE LOAN SCHEDULE INFORMATION
The Preliminary and Final Mortgage Loan Schedules shall set forth the
following information with respect to each Mortgage Loan:
the loan number of the mortgage loan;
the city, state and zip code of the Mortgage Property;
a code indicating whether the Mortgaged Property is owner-occupied;
the type of Residential Dwelling constituting the Mortgaged Property;
the original months to maturity;
the original date of the mortgage;
the Loan-to-Value Ratio at origination;
the Mortgage Rate;
the date on which the first Monthly Payment was due on the Mortgage
Loan;
the stated maturity date;
the amount of the Monthly Payment at origination;
the amount of the Monthly Payment as of the Cut-off Date;
the last Due Date on which a Monthly Payment was actually applied to
the unpaid Stated Principal Balance;
the original principal amount of the Mortgage Loan;
the Stated Principal Balance of the Mortgage Loan as of the close of
business on the Cut-off Date;
a code indicating the purpose of the Mortgage Loan (i.e., purchase
financing, Rate/Term Refinancing, Cash-Out Refinancing);
a code indicating the documentation style (i.e., full, alternative or
reduced);
the Value of the Mortgaged Property;
the sale price of the Mortgaged Property, if applicable;
the actual unpaid principal balance of the Mortgage Loan as of the
Cut-off Date;
E-3-1
the Servicing Fee;
with respect to each adjustable-rate Mortgage Loan, the next Interest
Rate Adjustment Date;
with respect to each adjustable-rate Mortgage Loan, the Gross Margin;
with respect to each adjustable-rate Mortgage Loan, the Minimum and
Maximum Mortgage Rate under the terms of the Mortgage Note;
with respect to each adjustable-rate Mortgage Loan, the First Rate
Cap;
with respect to each adjustable-rate Mortgage Loan, the related
Periodic Rate Cap;
with respect to each adjustable-rate Mortgage Loan, whether additional
collateral exists;
with respect to each adjustable-rate Mortgage Loan, whether it is
interest-only; and
with respect to each adjustable-rate Mortgage Loan, the Seller.
Such schedule shall set forth the following information with respect
to the Mortgage Loans in the aggregate as of the Cut-off Date: (1) the number of
Mortgage Loans; (2) the current principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Rate of the Mortgage Loans; and (4) the weighted
average maturity of the Mortgage Loans.
E-3-2
EXHIBIT 4
SELLER'S INFORMATION
All information in the Prospectus Supplement described under the
following Sections: "Summary -- The Mortgage Loans," "Description of the
Mortgage Pools" and "Annex II -- The Mortgage Pool".
E-4-1
EXHIBIT 5
PURCHASER'S INFORMATION
All information in the Prospectus Supplement and the Prospectus,
except the Seller's Information.
E-5-1
EXHIBIT 6
SCHEDULE OF LOST NOTES
[INTENTIONALLY OMITTED]
E-6-1
EXHIBIT 7
REVISED February 07, 0000
XXXXXXXX X - Standard & Poor's Anti-Predatory Lending Categorization
Standard & Poor's has categorized loans governed by anti-predatory lending laws
in the Jurisdictions listed below into three categories based upon a combination
of factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note that
certain loans classified by the relevant statute as Covered are included in
Standard & Poor's High Cost Loan Category because they included thresholds and
tests that are typical of what is generally considered High Cost by the
industry.
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------------------ ----------------------------
Arkansas Arkansas Home Loan Protection Act, Ark. High Cost Home Loan
Code Xxx. Sections 00-00-000 et seq.
Effective July 16, 0000
Xxxxxxxxx Xxxxxxx, XX Ordinance No. 72-2003 (PSH), Mun. Code Covered Loan
Sections 757.01 et seq.
Effective June 2, 2003
Colorado Consumer Equity Protection, Colo. Stat. Covered Loan
Xxx. Sections 5-3.5-101 et seq.
Effective for covered loans offered or
entered into on or after January 1, 2003.
Other provisions of the Act took effect on
June 7, 0000
Xxxxxxxxxxx Xxxxxxxxxxx Abusive Home Loan Lending High Cost Home Loan
Practices Act, Conn. Gen. Stat. Sections
36a-746 et seq.
Effective October 1, 0000
Xxxxxxxx xx Xxxxxxxx Home Loan Protection Act, D.C. Code Covered Loan
Sections 26-1151.01 et seq.
Effective for loans closed on or after
January 28, 2003
Florida Fair Lending Act, Fla. Stat. Xxx. Sections High Cost Home Loan
494.0078 et seq.
E-7-1
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------------------ ----------------------------
Effective October 2, 2002
Georgia (Oct. 1, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. High Cost Home Loan
- Mar. 6, 2003) Sections 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
Georgia as amended Georgia Fair Lending Act, Ga. Code Xxx. High Cost Home Loan
(Mar. 7, 2003 - Sections 7-6A-1 et seq.
current)
Effective for loans closed on or after
Xxxxx 0, 0000
XXXXX Section 32 Home Ownership and Equity Protection Act High Cost Loan
of 1994, 15 U.S.C. Section 1639, 12 C.F.R.
Sections 226.32 and 226.34
Effective October 1, 1995, amendments
October 1, 2002
Illinois High Risk Home Loan Act, Ill. Comp. Stat. High Risk Home Loan
tit. 815, Sections 137/5 et seq.
Effective January 1, 2004 (prior to this
date, regulations under Residential
Mortgage License Act effective from May
14, 2001)
Indiana Indiana Home Loan Practices Act, Ind. Code High Cost Home Loan
Xxx. Sections 24-9-1-1 et seq.
Effective for loans originated on or after
January 1, 2005.
Kansas Consumer Credit Code, Kan. Stat. Xxx. High Loan to Value Consumer
Sections 16a-1-101 et seq. Loan (id. Section 16a-3-207)
and;
Sections 16a-1-301 and 16a-3-207 became
effective April 14, 1999; Section High APR Consumer Loan (id.
16a-3-308a became effective July 1, 1999 Section 16a-3-308a)
Kentucky 2003 KY H.B. 287 - High Cost Home Loan High Cost Home Loan
Act, Ky. Rev. Stat. Sections 360.100 et
seq.
Effective June 24, 2003
E-7-2
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------------------ ----------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. 9-A, High Rate High Fee Mortgage
Sections 8-101 et seq.
Effective September 29, 1995 and as
amended from time to time
Massachusetts Part 40 and Part 32, 209 C.M.R. Sections High Cost Home Loan
32.00 et seq. and 209 C.M.R. Sections
40.01 et seq.
Effective March 22, 2001 and amended from
time to time
Massachusetts Predatory Home Loan High Cost Home Mortgage Loan
Practices Act
Mass. Gen. Laws ch. 183C, Sections 1 et
seq.
Effective November 7, 2004
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. Home Loan
Sections 598D.010 et seq.
Effective October 1, 2003
New Jersey New Jersey Home Ownership Security Act of High Cost Home Loan
2002, N.J. Rev. Stat. Sections 46:10B-22
et seq.
Effective for loans closed on or after
November 27, 2003
New Mexico Home Loan Protection Act, N.M. Rev. Stat. High Cost Home Loan
Sections 58-21A-1 et seq.
Effective as of January 1, 2004; Revised
as of February 26, 2004
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made on or
after April 1, 2003
North Carolina Restrictions and Limitations on High Cost High Cost Home Loan
Home Loans, N.C. Gen. Stat. Sections
24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
E-7-3
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------------------ ----------------------------
Ohio H.B. 386 (codified in various sections of Covered Loan
the Ohio Code), Ohio Rev. Code Xxx.
Sections 1349.25 et seq.
Effective May 24, 2002
Oklahoma Consumer Credit Code (codified in various Subsection 10 Mortgage
sections of Title 14A)
Effective July 1, 2000; amended effective
January 1, 2004
South Carolina South Carolina High Cost and Consumer Home High Cost Home Loan
Loans Act, S.C. Code Xxx. Sections
37-23-10 et seq.
Effective for loans taken on or after
January 1, 0000
Xxxx Xxxxxxxx Xxxx Xxxxxxxx Residential Mortgage Lender, West Virginia Mortgage Loan
Broker and Servicer Act, W. Va. Code Xxx. Act Loan
Sections 31-17-1 et seq.
Effective June 5, 2002
STANDARD & POOR'S COVERED COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------------------ ----------------------------
Georgia (Oct. 1, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. Covered Loan
- Mar. 6, 2003) Sections 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 0000
Xxx Xxxxxx Xxx Xxxxxx Home Ownership Security Act of Covered Home Loan
2002, N.J. Rev. Stat. Sections 46:10B-22
et seq.
Effective November 27, 2003 - July 5, 2004
E-7-4
STANDARD & POOR'S HOME LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------------------ ----------------------------
Georgia (Oct. 1, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. Home Loan
- Mar. 6, 2003) Sections 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 0000
Xxx Xxxxxx Xxx Xxxxxx Home Ownership Security Act of Home Loan
2002, N.J. Rev. Stat. Sections 46:10B-22
et seq.
Effective for loans closed on or after
November 27, 2003
New Mexico Home Loan Protection Act, N.M. Rev. Stat. Home Loan
Sections 58-21A-1 et seq.
Effective as of January 1, 2004; Revised
as of February 26, 2004
North Carolina Restrictions and Limitations on High Cost Consumer Home Loan
Home Loans, N.C. Gen. Stat. Sections
24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
South Carolina South Carolina High Cost and Consumer Home Consumer Home Loan
Loans Act, S.C. Code Xxx. Sections
37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
E-7-5
SCHEDULE A
REQUIRED RATINGS FOR EACH CLASS OF CERTIFICATES
Offered Certificates
Class Xxxxx'x S&P
----- ------- ---
Class I-A Aaa AAA
Class II-A1 Aaa AAA
Class II-A2 Aa1 AAA
Class III-A Aaa AAA
Class IV-A Aaa AAA
Class A-R N/R AAA
Class M-1 Aa2 AA
Class M-2 A2 A
Class M-3 Baa2 BBB
None of the above ratings has been lowered since the respective dates of such
letters.
