ASSIGNMENT AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated April 6, 2006, (“Agreement”)
among
NIC WL LLC (the “Assignor”),
Financial Asset Securities Corp. (the “Assignee”)
and
Centex Home Equity Company, LLC (the “Company”):
The
parties hereto hereby agree as follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee,
without recourse, all of the right, title and interest of the Assignor, as
purchaser, in, to and under: (i) those certain Mortgage Loans listed as being
originated by the Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”),
all
interest accruing thereon on and after March 1, 2006 and all collections in
respect of interest and principal due after March 1, 2006 (other than
collections of interest accrued prior to March 1, 2006); (ii) property which
secured each such Mortgage Loan and which has been acquired by foreclosure
or
deed in lieu of foreclosure; (ii) its interest in any insurance policies in
respect of the Mortgage Loans;
and (iv)
that certain Master Mortgage Loan Purchase and Interim Servicing Agreement
dated
as of February 28, 2006, as amended (the “Purchase
Agreement”),
among
the Assignor, as purchaser (the “Purchaser”),
the
Company, as originator and servicer (the “Originator”
and
the
“Servicer”,
respectively) and the Xxxxxxx Street Funding II, LLC, as seller (the
“Seller”),
solely insofar as the Purchase Agreement relates to the Mortgage
Loans.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of the
Assignor with respect to (i) any mortgage loans subject to the Purchase
Agreement which are not the Mortgage Loans set forth on the Mortgage Loan
Schedule and are not the subject of this Agreement and (ii) any collections
in
respect of interest and principal due on or before March 1, 2006 and any
collections of interest accrued prior to March 1, 2006.
In
consideration for the Mortgage Loans assigned hereunder, the Assignee shall,
on
the date hereof, deliver to or upon the order of the Assignor or its designee
(i) an amount, in immediately available funds, equal to the net proceeds of
the
sale of the Class A and the Mezzanine Notes (other than the Class M-9, Class
M-10 and Class M-11 Notes), (ii) the Class M-9, Class M-10 and Class M-11 Notes
(the “Retained
Notes”)
and
(iii) the Owner Trust Certificates.
Recognition
of the Company
2. From
and
after the date hereof, the Company shall and does hereby recognize that the
Assignee will transfer the Mortgage Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
Newcastle Mortgage Securities Trust 2006-1 (the “Trust”)
created pursuant to the Amended and Restated Trust Agreement, dated as of April
6, 2006, among the Assignee, Wilmington Trust Company as owner trustee (the
“Owner
Trustee”)
and
JPMorgan Chase Bank, N.A., as certificate registrar (the “Certificate
Registrar”)
(the
“Trust
Agreement”)
and
the Indenture, dated April 6, 2006, between the Trust and JPMorgan Chase Bank,
N.A. as indenture trustee (the “Indenture
Trustee”)
(the
“Indenture”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i)
the Trust will be the owner of the Mortgage Loans, (ii) the Company shall look
solely to the Trust for performance of any obligations of the Assignor insofar
as they relate to the enforcement of the representations, warranties and
covenants with respect to the Mortgage Loans, (iii) the Trust (including the
Indenture Trustee and the Servicer acting on the Trust’s behalf) shall have all
the rights and remedies available to the Assignor, insofar as they relate to
the
Mortgage Loans, under the Purchase Agreement, including, without limitation,
the
enforcement of the document delivery requirements and remedies with respect
to
breaches of representations and warranties set forth in the Purchase Agreement,
and shall be entitled to enforce all of the obligations of the Company
thereunder insofar as they relate to the Mortgage Loans, and (iv) all references
to the Purchaser (insofar as they relate to the rights, title and interest
and,
with respect to obligations of the Purchaser, only insofar as they relate to
the
enforcement of the representations, warranties and covenants of the Company)
or
the Custodian under the Purchase Agreement insofar as they relate to the
Mortgage Loans, shall be deemed to refer to the Trust (including the Indenture
Trustee and the Servicer acting on the Trust’s behalf). Neither the Company nor
the Assignor shall amend or agree to amend, modify, waiver, or otherwise alter
any of the terms or provisions of the Purchase Agreement which amendment,
modification, waiver or other alteration would in any way affect the Mortgage
Loans or the Company’s performance under the Purchase Agreement with respect to
the Mortgage Loans without the prior written consent of the Indenture
Trustee.
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase Agreement. The execution by the Company of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or by
which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have been
duly authorized by all necessary corporate action on part of the Company. This
Agreement has been duly executed and delivered by the Company, and, upon the
due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability may
be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Company in connection with the execution, delivery or performance by the
Company of this Agreement; and
(d) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is
solvent.
4. Pursuant
to Section 12 of the Purchase Agreement, the Company hereby represents and
warrants, for the benefit of the Assignor, the Assignee and the Trust, that
the
representations and warranties set forth in Sections 7.01 and 7.02 of the
Purchase Agreement attached hereto as Exhibit B, are true and correct as of
the
date hereof as if such representations and warranties were made on the date
hereof, except that the representation and warranty set forth in Section 7.02(a)
shall, for purposes of this Agreement, relate to the Mortgage Loan Schedule
attached hereto.
Remedies
for Breach of Representations and Warranties
5. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Indenture Trustee and the
Servicer acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3
and 4
hereof shall be as set forth in Subsection 7.03 of the Purchase Agreement as
if
they were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein).
Notwithstanding
the foregoing, the Assignor may, at its option, satisfy any obligation of the
Company with respect to any breach of representation and warranty made by the
Company regarding the Mortgage Loans.
Miscellaneous
6. This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
7. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of the
Indenture Trustee.
8. This
Agreement shall inure to the benefit of (i) the successors and assigns of the
parties hereto and (ii) the Trust (including the Indenture Trustee and the
Servicer acting on the Trust’s behalf). Any entity into which Assignor, Assignee
or Company may be merged or consolidated shall, without the requirement for
any
further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
9. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
10. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
11. In
the
event that any provision of this Agreement conflicts with any provision of
the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
12. The
Assignor shall notify the Assignee of any proposed disposition of the Retained
Notes that would require the delivery of an updated prospectus supplement (as
determined by the Assignor or the Assignee in its reasonable discretion)
reasonably in advance of settlement of such disposition, and the Assignor shall
provide to the Assignee all information about the disposition and the
prospective transferees which the Assignee reasonably requests.
At
the
time of the Assignor’s notice as required above (or, in the case of information
concerning the Mortgage Loans, as soon thereafter as practicable), the Assignor
shall fully inform the Assignee with respect to all information that may be
necessary in order to correct any untrue statement of a material fact in the
Prospectus Supplement, or to prevent any omission of a material fact necessary
to make the statements in the Prospectus Supplement not misleading in light
of
the circumstances in which they are made in connection with the disposition
of
the Retained Notes, and the Assignor and the Assignee shall cooperate with
one
another in connection with the preparation and use of any supplement to the
Prospectus Supplement required by the Assignee or the Assignor in its reasonable
discretion.
13. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the
Indenture.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
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NIC
WL LLC
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By:
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/s/
Xxx Xxxx
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Name:
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Xxx
Xxxx
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Title:
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President
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FINANCIAL
ASSET SECURITIES CORP.
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By:
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/s/
Xxxxxxx Xxx
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Name:
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Xxxxxxx
Xxx
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Title:
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Vice
President
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CENTEX
HOME EQUITY COMPANY, LLC
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By:
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/s/
Xxxxxxx Xxxx
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Name:
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Xxxxxxx
Xxxx
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Title:
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Senior
Vice President
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EXHIBIT
A
Mortgage
Loan Schedule
EXHIBIT
B
Representations
and Warranties
Capitalized
terms used but not defined herein shall have the meanings assigned thereto
in
the Purchase Agreement.
| Subsection 7.01. |
Representations
and Warranties Respecting the Seller
and Servicer
|
The
Seller represents, warrants and covenants to the Initial Purchaser and to any
subsequent Purchaser as of the initial Closing Date and each subsequent Closing
Date or as of such date specifically provided herein or in the applicable
Assignment and Conveyance:
(i) The
Seller is a Delaware company duly organized, validly existing and in good
standing under the laws of Delaware. The Seller has all licenses necessary
to
carry out its business as now being conducted, and is licensed and qualified
to
transact business in and is in good standing under the laws of each state in
which any Mortgaged Property is located or is otherwise exempt under applicable
law from such licensing or qualification or is otherwise not required under
applicable law to effect such licensing or qualification and no demand for
such
licensing or qualification has been made upon the Seller by any such state,
and
in any event the Seller is in compliance with the laws of any such state to
the
extent necessary to ensure the enforceability of each Mortgage Loan and the
servicing of the Mortgage Loans in accordance with the terms of this Agreement.
No licenses or approvals obtained by the Seller have been suspended or revoked
by any court, administrative agency, arbitrator or governmental body and no
proceedings are pending which might result in such suspension or
revocation;
(ii) The
Seller has the full limited liability company power and authority to hold each
Mortgage Loan, to sell each Mortgage Loan, and to execute, deliver and perform,
and to enter into and consummate, all transactions contemplated by this
Agreement. The Seller has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and delivered this Agreement,
and this Agreement, assuming due authorization, execution and delivery by the
Purchaser, constitutes a legal, valid and binding obligation of the Seller,
enforceable against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or reorganization;
(iii) The
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller's
Certificate of Formation or limited liability company agreement or constitute
a
default under or result in a breach or acceleration of, any material contract,
agreement or other instrument to which the Seller is a party or which may be
applicable to the Seller or its assets;
(iv) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller 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 over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) The
Seller does not believe, nor does it have any reason or cause to believe, that
it cannot perform each and every covenant contained in this Agreement applicable
to the Seller;
(vi) Immediately
prior to the payment of the Purchase Price for each Mortgage Loan, the Seller
or
the Servicer was the owner of the related Mortgage and the indebtedness
evidenced by the related Mortgage Note and upon the payment of the Purchase
Price by the Purchaser;
(vii) There
are
no actions or proceedings against, or investigations of, the Seller before
any
court, administrative or other tribunal (A) that might prohibit its entering
into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans
or
the consummation of the transactions contemplated by this Agreement or (C)
that
might prohibit or materially and adversely affect the performance by the Seller
of its obligations under, or the validity or enforceability of, this
Agreement;
(viii) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the Closing Date;
(ix) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and 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 or any similar statutory
provisions;
(x) Neither
this Agreement nor any written statement, report or other document prepared
and
furnished or to be prepared and furnished by the Seller pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of material fact or omits to state a material fact
necessary to make the statements contained herein or therein not
misleading;
(xi) The
transfer of the Mortgage Loans shall be treated as a sale on the books and
records of Seller, and Seller has determined that, and will treat, the
disposition of the Mortgage Loans pursuant to this Agreement for tax and
accounting purposes as a sale;
(xii) The
consideration received by the Seller upon the sale of the Mortgage loans
constitutes fair consideration and reasonably equivalent value for such Mortgage
Loans;
(xiii) Seller
is
solvent and will not be rendered insolvent by the consummation of the
transactions contemplated hereby. The Seller is not transferring any Mortgage
loan with any intent to hinder, delay or defraud any of its creditors;
(xiv) The
Seller has not dealt with any broker, investment banker, agent or other person
that may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans; and
(xv) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage Note
and the Mortgage and has full right to transfer and sell the Mortgage Loan
to
the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest.
(b) The
Servicer represents, warrants and covenants to the Initial Purchaser and to
any
subsequent Purchaser as of the initial Closing Date and each subsequent Closing
Date or as of such date specifically provided herein or in the applicable
Assignment and Conveyance:
(i) The
Servicer is duly organized, validly existing and in good standing under the
laws
of the state of Delaware and has all licenses necessary to carry on its business
as now being conducted. It is licensed in, qualified to transact business in
and
is in good standing under the laws of the state in which any Mortgaged Property
is located and is and will remain in compliance with the laws of each state
in
which any Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and the servicing of the Mortgage Loan
in
accordance with the terms of this Agreement. No licenses or approvals obtained
by Servicer have been suspended or revoked by any court, administrative agency,
arbitrator or governmental body and no proceedings are pending which might
result in such suspension or revocation;
(ii) The
Servicer has the full power and authority to execute, deliver and perform,
and
to enter into and consummate, all transactions contemplated by this Agreement.
The Servicer has duly authorized the execution, delivery and performance of
this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Purchaser, constitutes
a legal, valid and binding obligation of the Servicer, enforceable against
it in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency or reorganization;
(iii) The
execution and delivery of this Agreement by the Servicer and the performance
of
and compliance with the terms of this Agreement will not violate the Servicer's
Certificate of Formation and limited liability company agreement or constitute
a
default under or result in a breach or acceleration of, any material contract,
agreement or other instrument to which the Servicer is a party or which may
be
applicable to the Servicer or its assets;
(iv) The
Servicer is not in violation of, and the execution and delivery of this
Agreement by the Servicer 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 over the Servicer or its assets,
which violation might have consequences that would materially and adversely
affect the condition (financial or otherwise) or the operation of the Servicer
or its assets or might have consequences that would materially and adversely
affect the performance of its obligations and duties hereunder;;
(v) The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(vi) The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered with respect to each Mortgage Loan pursuant to the
Custodial Agreement, have been delivered to the Custodian all in compliance
with
the specific requirements of the Custodial Agreement. With respect to each
Mortgage Loan, the Servicer is in possession of a complete Mortgage File in
compliance with Exhibit
5,
except
for such documents as have been delivered to the Custodian;
(vii) In
the
event that the Servicer retains record title, the Servicer shall retain such
record title to each Mortgage, each related Mortgage Note and the related
Mortgage Files with respect thereto in trust for the Purchaser as the owner
thereof and only for the purpose of servicing and supervising the servicing
of
each Mortgage Loan;
(viii) There
are
no actions or proceedings against, or investigations of, the Servicer before
any
court, administrative or other tribunal (A) that might prohibit its entering
into this Agreement, (B) seeking to prevent the consummation of the transactions
contemplated by this Agreement or (C) that might prohibit or materially and
adversely affect the performance by the Servicer of its obligations under,
or
the validity or enforceability of, this Agreement;
(ix) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of,
or compliance by the Servicer with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the Closing Date;
(x) Servicer
shall maintain complete records for each Mortgage Loan which shall be clearly
marked to reflect the ownership of each Mortgage Loan by Purchaser;
and
(xi) Neither
this Agreement nor any written statement, report or other document prepared
and
furnished or to be prepared and furnished by the Servicer pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of material fact or omits to state a material fact
necessary to make the statements contained herein or therein not
misleading.
(xii) The
Servicer is an approved servicer of conventional loans for Xxxxxx Xxx or Xxxxxxx
Mac.
(xiii) The
Servicer is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS.
| Subsection 7.02. |
Representations
and Warranties Regarding Individual Mortgage Loans.
|
The
Servicer hereby represents and warrants to the Initial Purchaser and to any
subsequent Purchaser that, as to each Mortgage Loan, as of the related Closing
Date for such Mortgage Loan:
(i) The
information set forth in the related Mortgage Loan Schedule is complete, true
and correct;
(ii) The
Mortgage Loan is in compliance with all requirements set forth in the related
Confirmation, and the characteristics of the related Mortgage Loan Package
as
set forth in the related Confirmation are true and correct; provided, however,
that in the event of any conflict between the terms of any Confirmation and
this
Agreement, the terms of the Confirmationshall control, except to the extent
specifically set forth in the Confirmation;
(iii) Neither
the Seller nor the Servicer has 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; no Mortgage Loan is fifty-nine
(59) or more days delinquent (pursuant to the delinquency methodology acceptable
to the Office of Thrift Supervision) as of the Closing Date;
(iv) 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 that would constitute a lien superior
to the Mortgage, affecting the related Mortgaged Property;
(v) 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 which have been delivered to the Custodian; 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
related 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 which assumption agreement
has been delivered to the Custodian and the terms of which are reflected in
the
related Mortgage Loan Schedule;
(vi) 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. Each
Prepayment Charge or penalty with respect to any Mortgage Loan is permissible,
enforceable and collectible under applicable federal, state and local
law;
(vii) All
buildings upon the Mortgaged Property are insured by a Qualified Insurer
acceptable to Xxxxxx Mae and Xxxxxxx Mac 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 providing coverage
in an amount not less than the greatest of (i) 100% of the replacement cost
of
all improvements to the Mortgaged Property, (ii) either (A) the outstanding
principal balance of the Mortgage Loan with respect to each first lien Mortgage
Loan or (B) with respect to each second lien Mortgage Loan, the sum of the
outstanding principal balance of the related first lien mortgage loan and the
outstanding principal balance of the second lien Mortgage Loan, or (iii) the
amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property, and consistent with the amount that would
have been required as of the date of origination in accordance with the
Underwriting Guidelines. 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 the Mortgaged Property is 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 Xxxxxx Mae and Xxxxxxx
Mac. 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
Mortgagor's cost and expense and to seek reimbursement therefore from the
Mortgagor;
(viii) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
predatory and abusive lending, consumer credit protection, equal credit
opportunity, fair housing or disclosure laws applicable to the origination
and
servicing of mortgage loans of a type similar to the Mortgage Loans and
applicable to any prepayment penalty associated with the Mortgage Loans at
origination have been complied with;
(ix) The
Mortgage has not been satisfied, cancelled, subordinated or 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;
(x) The
Mortgage (including any Negative Amortization which may arise thereunder) is
a
valid, existing and enforceable (A) first lien and first priority security
interest with respect to each Mortgage Loan which is indicated by the Seller
to
be a first lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien
and second priority security interest with respect to each Mortgage Loan which
is indicated by the Seller to be a second lien (as reflected on the Mortgage
Loan Schedule), in either case, on the Mortgaged Property, including all
improvements on the Mortgaged Property subject only to (a) the lien of current
real property taxes and assessments not yet due and payable, (b) 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 specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan and which
do
not adversely affect the Appraised Value of the Mortgaged Property, (c) with
respect to each Mortgage Loan which is indicated by the Seller to be a second
lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) a first lien
on
the Mortgaged Property; and (d) 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. 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 (in each case, as
indicated on the Mortgage Loan Schedule) on the property described therein
and
the Seller has full right to sell and assign the same to the
Purchaser;
(xi) 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;
(xii) All
parties to the Mortgage Note and the Mortgage had legal capacity to enter into
the Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage,
and the Mortgage Note and the Mortgage have been duly and properly executed
by
such parties. The Mortgagor is a natural person;
(xiii) 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 therefore
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;
(xiv) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage Note
and the Mortgage and has full right to transfer and sell the Mortgage Loan
to
the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest;
(xv) All
parties which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) in compliance with any and all applicable
“doing business” and licensing requirements of the laws of the state wherein the
Mortgaged Property is located;
(xvi) The
Mortgage Loan is covered by an American Land Title Association (“ALTA”) lender’s
title insurance policy or a comparable form in the States of California or
Texas
(which, in the case of an Adjustable Rate Mortgage Loan has an adjustable rate
mortgage endorsement in the form of ALTA 6.0 or 6.1), issued by a title insurer
acceptable to Xxxxxx Xxx and Xxxxxxx Mac and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to
the
exceptions contained in (x)(a) and (b), and with respect to any second lien
Mortgage Loan (c), above) the Seller or the Servicer, its successors and assigns
as to the first or second priority lien (as indicated on the Mortgage Loan
Schedule) of the Mortgage in the original principal amount of the Mortgage
Loan
(including, if the Mortgage Loan provides for Negative Amortization, the maximum
amount of Negative Amortization in accordance with the Mortgage) and, with
respect to any Adjustable Rate Mortgage Loan, 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 Monthly
Payment and Negative Amortization provisions of the Mortgage Note. The Seller
or
Servicer is the sole insured of such lender's 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 lender's 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 lender's
title
insurance policy;
(xvii) 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 neither the Seller
nor
the Servicer has waived any default, breach, violation or event of acceleration.
With respect to each second lien Mortgage Loan (i) the related first lien
mortgage loan is in full force and effect, (ii) there is no default, breach,
violation or event of acceleration existing under such first lien mortgage
or
the related mortgage note, (iii) 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 thereunder, (iv) either
(A)
the first lien mortgage contains a provision which allows or (B) applicable
law
requires, the mortgagee under the second lien Mortgage Loan to receive notice
of, and affords such mortgagee an opportunity to cure any default by payment
in
full or otherwise under the first lien mortgage, (v) the related first lien
does
not provide for or permit negative amortization under such first lien Mortgage
Loan, and (vi) either no consent for the Mortgage Loan is required by the holder
of the first lien or such consent has been obtained and is contained in the
Mortgage File;
(xviii) 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;
(xix) All
improvements which were considered in determining the Appraised Value of the
related Mortgaged Property lay wholly within the boundaries and building
restriction lines of the Mortgaged Property, and no improvements on adjoining
properties encroach upon the Mortgaged Property;
(xx) The
Mortgage Loan was originated by the Servicer or by a savings and loan
association, a savings bank, a commercial bank or similar banking institution
which is supervised and examined by a federal or state authority, or by a
mortgagee approved as such by the Secretary of HUD, or by a Qualified
Correspondent;
(xxi) Principal
payments on the Mortgage Loan commenced no more than sixty (60) days after
the
proceeds of the Mortgage Loan were disbursed. The Mortgage Loan bears interest
at the Mortgage Interest Rate. With respect to each Mortgage Loan which is
not a
Negative Amortization Loan, the Mortgage Note is payable on the day of each
month specified in the related Mortgage Note in Monthly Payments, which, in
the
case of a Fixed Rate Mortgage Loans, are sufficient to fully amortize the
original principal balance over the original term thereof (other than with
respect to a Mortgage Loan identified on the related Mortgage Loan Schedule
as
an interest-only Mortgage Loan during the interest-only period or a Mortgage
Loan which is identified on the related Mortgage Loan Schedule as a Balloon
Mortgage Loan) and to pay interest at the related Mortgage Interest Rate, and,
in the case of an Adjustable Rate Mortgage Loan, are changed on each Adjustment
Date, and in any case, are sufficient to fully amortize the original principal
balance over the original term thereof (other than with respect to a Mortgage
Loan identified on the related Mortgage Loan Schedule as an interest-only
Mortgage Loan during the interest-only period or a Mortgage Loan which is
identified on the related Mortgage Loan Schedule as a Balloon Mortgage Loan)
and
to pay interest at the related Mortgage Interest Rate. With respect to each
Negative Amortization Mortgage Loan, the related Mortgage Note requires a
Monthly Payment which is sufficient during the period following each Payment
Adjustment Date, to fully amortize the outstanding principal balance as of
the
first day of such period (including any Negative Amortization) over the then
remaining term of such Mortgage Note and to pay interest at the related Mortgage
Interest Rate; provided, that the Monthly Payment shall not increase to an
amount that exceeds 107.5% of the amount of the Monthly Payment that was due
immediately prior to the Payment Adjustment Date; provided, further, that the
payment adjustment cap shall not be applicable with respect to the adjustment
made to the Monthly Payment that occurs in a year in which the Mortgage Loan
has
been outstanding for a multiple of five (5) years and in any such year the
Monthly Payment shall be adjusted to fully amortize the Mortgage Loan over
the
remaining term. With respect to each Mortgage Loan identified on the Mortgage
Loan Schedule as an interest-only Mortgage Loan, the interest-only period shall
not exceed ten (10) years (or such other period specified on the Mortgage Loan
Schedule) and following the expiration of such interest-only period, the
remaining Monthly Payments shall be sufficient to fully amortize the original
principal balance over the remaining term of the Mortgage Loan and to pay
interest at the related Mortgage Interest Rate. With respect to each Balloon
Mortgage Loan, the Mortgage Note requires a monthly payment which is sufficient
to fully amortize the original principal balance over the original term thereof
and to pay interest at the related Mortgage Interest Rate and requires a final
Monthly Payment substantially greater than the preceding monthly payment which
is sufficient to repay the remained unpaid principal balance of the Balloon
Mortgage Loan as the Due Date of such monthly payment. The Index for each
Adjustable Rate Mortgage Loan is as set forth on the Mortgage Loan Schedule.
No
Mortgage Loan is a Convertible Mortgage Loan. No Balloon Mortgage Loan has
an
original stated maturity of less than seven (7) years;
The
origination, servicing and collection practices used with respect to each
Mortgage Note and Mortgage including, without limitation, the establishment,
maintenance and servicing of the Escrow Accounts and Escrow Payments, if any,
since origination, have been in all respects legal, proper, prudent and
customary in the non conforming mortgage origination and servicing industry.
The
Mortgage Loan has been serviced by the Servicer and any predecessor servicer
in
accordance with the terms of the Mortgage Note and Accepted Servicing Practices.
With respect to escrow deposits and Escrow Payments, if any, all such payments
are in the possession of, or under the control of, the Servicer and there exist
no deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or Escrow Payments
or
other charges or payments due the Servicer have been capitalized under any
Mortgage or the related Mortgage Note and no such escrow deposits or Escrow
Payments are being held by the Servicer for any work on a Mortgaged Property
which has not been completed; provided that, certain Insurance Proceeds may
be
held by the Servicer in escrow pending the completion of repairs which are
required to be made to a Mortgaged Property in connection with the payment
of
such Insurance Proceeds;
(xxii) The
Mortgaged Property is free of damage and waste and there is no proceeding
pending for the total or partial condemnation thereof;
(xxiii) 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, (a) in the case of a Mortgage designated as a
deed
of trust, by trustee's sale, and (b) otherwise by judicial foreclosure. The
Mortgaged Property is not subject to any bankruptcy proceeding or foreclosure
proceeding and the Mortgagor has not filed for protection under applicable
bankruptcy laws. 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 Servicer and the Servicer has no knowledge of any relief requested
or allowed to the Mortgagor under the Servicemembers’ Civil Relief Act or any
similar state law;
(xxiv) The
Mortgage Loan was underwritten in accordance with the published underwriting
standards of Centex Home Equity Company, LLC in effect at the time the Mortgage
Loan was originated; and the Mortgage Note and Mortgage are on forms acceptable
to prudent lenders in the secondary market;
(xxv) 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 referred
to in
(x) above;
(xxvi) The
Mortgage File contains an appraisal of the related Mortgaged Property which
satisfied the standards of Xxxxxx Xxx and Xxxxxxx Mac, was on appraisal form
1004 or form 2055 with an interior inspection and was made and signed, prior
to
the approval of the Mortgage Loan application, by a qualified appraiser, duly
appointed by the Servicer, who had no interest, direct or indirect in the
Mortgaged Property or in any loan made on the security thereof, whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan
and who met the minimum qualifications of Xxxxxx Mae and Xxxxxxx Mac, or an
insured automated valuation model valuation. Each appraisal of the Mortgage
Loan
that is not an insured automated valuation model was made in accordance with
the
relevant provisions of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989;
(xxvii) 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;
(xxviii) No
Mortgage Loan contains provisions pursuant to which Monthly Payments are (a)
paid or partially paid with funds deposited in any separate account established
by the Servicer, the Mortgagor, or anyone on behalf of the Mortgagor, (b) paid
by any source other than the Mortgagor or (c) 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;
(xxix) The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of fixed rate mortgage loans in the case of Fixed Rate Mortgage Loans, and
adjustable rate mortgage loans in the case of Adjustable Rate Mortgage Loans
and
rescission materials with respect to Refinanced Mortgage Loans, and such
statement is and will remain in the Mortgage File;
(xxx) No
Mortgage Loan was made in connection with (a) the construction or rehabilitation
of a Mortgaged Property or (b) facilitating the trade-in or exchange of a
Mortgaged Property;
(xxxi) The
Servicer has no knowledge of any circumstances or condition with respect to
the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor's credit
standing that can reasonably be expected to cause the Mortgage Loan to be an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value of the Mortgage Loan;
(xxxii) No
Mortgage Loan had an LTV or a CLTV at origination in excess of 100%. No Mortgage
Loan is subject to a lender paid primary mortgage insurance policy;
(xxxiii) The
Mortgaged Property is lawfully occupied under applicable law; 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;
(xxxiv) No
error,
omission, misrepresentation, negligence, fraud or similar occurrence with
respect to a Mortgage Loan has taken place on the part of any person, including
without limitation the Mortgagor, any appraiser, any builder or developer,
or
any other party involved in the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan;
(xxxv) The
Assignment of Mortgage is in recordable form, except for the name of the
assignee which is blank, and is acceptable for recording under the laws of
the
jurisdiction in which the Mortgaged Property is located;
(xxxvi) Any
principal advances made to the Mortgagor prior to the Closing Date have been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest rate
and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first or second (as indicated
on
the Mortgage Loan Schedule) lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or
by
other title evidence acceptable to Xxxxxx Mae and Xxxxxxx Mac. The consolidated
principal amount does not exceed the original principal amount of the Mortgage
Loan plus any Negative Amortization;
(xxxvii) 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 the eligibility
requirements of Xxxxxx Mae and Xxxxxxx Mac;
(xxxviii) The
source of the down payment with respect to each Mortgage Loan has been fully
verified by the Servicer;
(xxxix) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(xl) The
Mortgaged Property is in compliance with all applicable environmental laws
pertaining to environmental hazards including, without limitation, asbestos,
and
neither the Seller nor the Servicer nor, to the Seller’s or the Servicer’s
knowledge, the related Mortgagor, has received any notice of any violation
or
potential violation of such law;
(xli) The
Servicer shall, at its own expense, cause each Mortgage Loan to be covered
by a
Tax Service Contract which is assignable to the Purchaser or its designee;
provided however, that if the Servicer fails to purchase such Tax Service
Contract, the Servicer shall be required to reimburse the Purchaser for all
costs and expenses incurred by the Purchaser in connection with the purchase
of
any such Tax Service Contract;
(xlii) Each
Mortgage Loan is covered by a Flood Zone Service Contract which is assignable
to
the Purchaser or its designee or, for each Mortgage Loan not covered by such
Flood Zone Service Contract, the Servicer agrees to purchase such Flood Zone
Service Contract;
(xliii) No
Mortgage Loan is (a)(1) subject to the provisions of the Homeownership and
Equity Protection Act of 1994 as amended (“HOEPA”) or (2) has an APR or total
points and fees that are equal to or exceeds the HOEPA thresholds (as defined
in
12 CFR 226.32 (a)(1)(i) and (ii)), (b) subject to any comparable federal, state
or local statutes or regulations, or any other statute or regulation providing
for heightened regulatory scrutiny or assignee liability to holders of such
mortgage loans, (c) a High Cost Loan or Covered Loan, as applicable (as such
terms are defined in the current Standard & Poor’s LEVELS® Glossary Revised,
Appendix E) or (d) a “high cost” mortgage loan, “covered” mortgage loan
(excluding home loans defined as “covered home loans” pursuant to clause (1) of
the definition of that term in the New Jersey Home Ownership Security Act),
“high risk Home” mortgage loan, or “predatory” mortgage loan or any other
comparable term, no matter how defined under any federal, state, or local law
;
(xliv) No
predatory, abusive, or deceptive lending practices, including but not limited
to, the extension of credit to a Mortgagor without regard for the Mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to a mortgagor
which has no apparent benefit to the Mortgagor, were employed in connection
with
the origination of the Mortgage Loan;
(xlv) The
debt-to-income ratio of the related Mortgagor was not greater than 60% at the
origination of the related Mortgage Loan;
(xlvi) No
Mortgagor was required to purchase any credit insurance product (e.g., life,
mortgage, disability, accident, unemployment or health insurance product) or
debt cancellation agreement as a condition of obtaining the extension of credit
and no Mortgagor in connection with a Mortgage Loan originated on or after
October 1, 2002, obtained a prepaid single premium credit insurance policy
(e.g., life, mortgage, disability, accident, unemployment or health insurance)
or debt cancellation agreement in connection with the origination of the
Mortgage Loan. No proceeds from any Mortgage Loan originated on or after October
1, 2002, were used to purchase single premium credit insurance policies or
debt
cancellation agreements as part of the origination of, or as a condition to
closing, such Mortgage Loan;
(xlvii) The
Mortgage Loans were not selected from the outstanding one- to four-family
mortgage loans in the Seller’s portfolio as to which the representations and
warranties set forth in this Agreement could be made at the related Closing
Date
in a manner so as to affect adversely the interests of the
Purchaser;
(xlviii) The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent
of
the mortgagee thereunder;
(xlix) The
Mortgage Loan complies with all applicable consumer credit statutes and
regulations, including, without limitation, the respective Uniform Consumer
Credit Code laws in effect in Alabama, Colorado, Idaho, Indiana, Iowa, Kansas,
Maine, Oklahoma, South Carolina, Utah, West Virginia and Wyoming, has been
originated by a properly licensed entity, and in all other respects, complies
with all of the material requirements of any such applicable laws;
(l) The
information set forth in the Mortgage Loan Schedule as to Prepayment Charges
is
complete, true and correct in all material respects and each Prepayment Charge
is permissible, enforceable and collectable in accordance with its terms upon
the Mortgagor’s full and voluntary principal payment under applicable
law;
(li) The
Mortgage Loan was not prepaid in full prior to the Closing Date and the Servicer
has not received notification from a Mortgagor that a prepayment in full shall
be made after the Closing Date;
(lii) No
Mortgage Loan is secured by cooperative housing, commercial property or mixed
use property, and each Mortgage Loan is secured by a “single family” residence
within the meaning of Section 25(c)(10) of the Code;
(liii) With
respect to any Mortgage Loan which is secured by manufactured housing, if such
Mortgage Loans are permitted hereunder, such Mortgage Loan satisfies the
requirements for inclusion in residential mortgage backed securities
transactions rated by Standard & Poor's Ratings Services and such
manufactured housing is the principal residence of the Mortgagor at the time
of
the origination of the Mortgage Loan;
(liv) 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);
(lv) No
Mortgage Loan is secured by real property or secured by a manufactured home
located in the state of Georgia unless (x) such Mortgage Loan was originated
prior to October 1, 2002 or after March 6, 2003, or (y) the property securing
the Mortgage Loan is not, nor will be, occupied by the Mortgagor as the
Mortgagor’s principal dwelling. No Mortgage Loan is a “High Cost Home Loan” as
defined in the Georgia Fair Lending Act, as amended (the “Georgia Act”). Each
Mortgage Loan that is a “Home Loan” under the Georgia Act complies with all
applicable provisions of the Georgia Act. No Mortgage Loan secured by owner
occupied real property or an owner occupied manufactured home located in the
State of Georgia was originated (or modified) on or after October 1, 2002
through and including March 6, 2003;
(lvi) No
Mortgage Loan is a “High-Cost” loan as defined under the New York Banking Law
Section 6-1, effective as of April 1, 2003;
(lvii) No
Mortgage Loan (a) is secured by property located in the State of New York;
(b)
had an unpaid principal balance at origination of $300,000 or less, and (c)
has
an application date on or after April 1, 2003, the terms of which Mortgage
Loan
equal or exceed either the APR or the points and fees threshold for “high-cost
home loans”, as defined in Section 6-1 of the New York State Banking
Law;
(lviii) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 or 2003);
(lix) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky high-cost
loan statute effective June 24, 2003 (Ky. Rev. Stat. Section
360.100);
(lx) No
Mortgage Loan secured by property located in the State of Nevada is a “home
loan” as defined in the Nevada Assembly Xxxx No. 284;
(lxi) No
Mortgage Loan is a “manufactured housing loan” or “home improvement home loan”
pursuant to the New Jersey Home Ownership Act. No Mortgage Loan is a “High-Cost
Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the
New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22
et
seq.);
(lxii) No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership
and
Equity protection Act;
(lxiii) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21A-1 et
seq.);
(lxiv) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.);
(lxv) No
Loan
that is secured by property located within the State of Maine meets the
definition of a (i) “high-rate, high-fee” mortgage loan under Article VIII,
Title 9-A of the Maine Consumer Credit Code or (ii) “High-Cost Home Loan” as
defined under the Maine House Xxxx 383 X.X. 494, effective as of September
13,
2003;
(lxvi) With
respect to any Loan for which a mortgage loan application was submitted by
the
Mortgagor after April 1, 2004, no such Loan secured by Mortgaged Property in
the
State of Illinois which has a Loan Interest Rate in excess of 8.0% per annum
has
lender-imposed fees (or other charges) in excess of 3.0% of the original
principal balance of the Loan;
(lxvii) No
Mortgage Loan is a “High Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. Xxx. Laws Ch. 183C). No Mortgage Loan secured by a Mortgaged Property
located in the Commonwealth of Massachusetts was made to pay off or refinance
an
existing loan or other debt of the related borrower (as the term “borrower” is
defined in the regulations promulgated by the Massachusetts Secretary of State
in connection with Massachusetts House Xxxx 4880 (2004)) unless either (1)
(a)
the related Mortgage Interest Rate (that would be effective once the
introductory rate expires, with respect to Adjustable Rate Mortgage Loans)
did
or would not exceed by more than 2.25% the yield on United States Treasury
securities having comparable periods of maturity to the maturity of the related
Mortgage Loan as of the fifteenth day of the month immediately preceding the
month in which the application for the extension of credit was received by
the
related lender or (b) the Mortgage Loan is an “open-end home loan” (as such term
is used in the Massachusetts House Xxxx 4880 (2004)) and the related Mortgage
Note provides that the related Mortgage Interest Rate may not exceed at any
time
the Prime rate index as published in The Wall Street Journal plus a margin
of
one percent, or (2) such Mortgage Loan is in the "borrower's interest," as
documented by a "borrower's interest worksheet" for the particular Mortgage
Loan, which worksheet incorporates the factors set forth in Massachusetts House
Xxxx 4880 (2004) and the regulations promulgated thereunder for determining
"borrower's interest," and otherwise complies in all material respects with
the
laws of the Commonwealth of Massachusetts;
(lxviii) No
Loan
is a “High Cost Home Loan” as defined by the Indiana Home Loan Practices Act,
effective January 1, 2005 (Ind. Code Xxx. §§ 24-9-1 et seq.);
(lxix) The
Mortgagee has not made or caused to be made any payment in the nature of an
“average” or “yield spread premium” to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(lxx) The
sale
or transfer of the Mortgage Loan by the Seller complies with all applicable
federal, state, and local laws, rules, and regulations governing such sale
or
transfer, including, without limitation, the Fair and Accurate Credit
Transactions Act (“FACT Act”) and the Fair Credit Reporting Act, each as may be
amended from time to time, and the Seller has not received any actual or
constructive notice of any identity theft, fraud, or other misrepresentation
in
connection with such Mortgage Loan or any party thereto;
(lxxi) With
respect to each MOM Loan, a MIN has been assigned by MERS and such MIN is
accurately provided on the Mortgage Loan Schedule. The related Assignment of
Mortgage to MERS has been duly and properly recorded, or has been delivered
for
recording to the applicable recording office;
(lxxii) With
respect to each MOM Loan, Seller has not received any notice of liens or legal
actions with respect to such Mortgage Loan and no such notices have been
electronically posted by MERS;
(lxxiii) With
respect to each second lien Mortgage Loan, either no consent for the Mortgage
Loan is required by the holder of the first lien or such consent has been
obtained and is contained in the Mortgage File;
(lxxiv) As
of the
Closing Date, each Mortgage Loan shall be eligible for sale in the secondary
market or for securitization without unreasonable credit
enhancement;
(lxxv) No
Mortgage Loan contains any obligation, conditional or otherwise, requiring
the
owner of such Mortgage Loan to offer a new loan to the related Mortgageor to
refinance the principal balance of the Mortgage Loan, or any portion thereof,,
or to extend the maturity date thereof;
(lxxvi) Each
Mortgage Loan contains a customary “due on sale” clause.
(lxxvii) Any
leasehold estate securing a Mortgage Loan has a term of not less than five
years
in excess of the term of the related Mortgage Loan; and
(lxxviii) If
the
Mortgage Loan provides that the interest rate on the principal balance of the
related Mortgage Loan may be adjusted, all of the terms of the related Mortgage
pertaining to interest rate adjustments and adjustments of the outstanding
principal balance have been made in accordance with the terms of the related
Mortgage Noted and applicable law and are enforceable and such adjustments
will
not affect the priority of the Mortgage lien.
