AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AGREEMENT
AMENDED
AND RESTATED MORTGAGE
LOAN PURCHASE AGREEMENT
This
is
an Amended and Restated Mortgage Loan Purchase Agreement (this “Agreement”),
dated August 31, 2006, as amended and restated to and including November 9,
2006, between Nomura Credit & Capital, Inc., a Delaware corporation (the
“Seller”) and Nomura Home Equity Loan, Inc., a Delaware corporation (the
“Purchaser”).
Preliminary
Statement
The
Seller intends to sell the Mortgage Loans (as hereinafter identified) and the
Swap Agreement to the Purchaser on the terms and subject to the conditions
set
forth in this Agreement. The Purchaser intends to deposit the Mortgage Loans
into a mortgage pool comprising the Trust Fund. The Trust Fund will be evidenced
by a single series of asset-backed certificates designated as Nomura Home Equity
Loan, Inc., Home Equity Loan Trust, Series 2006-HE3, Asset-Backed Certificates
(the “Certificates”). The Certificates will consist of nineteen (19) classes of
certificates. The Certificates will be issued pursuant to a Pooling and
Servicing Agreement for Series 2006-HE3, dated as of August 1, 2006 (the
“Pooling and Servicing Agreement”), among the Purchaser, as depositor, Xxxxx
Fargo Bank, N.A. as master servicer and securities administrator (“Xxxxx
Fargo”),
Ocwen
Loan Servicing, LLC as a servicer (“Ocwen”), the Seller as sponsor, and HSBC
Bank USA, National Association as trustee (the “Trustee”). The Purchaser will
sell the Class I-A-1, Class II-A-1, Class II-A-2, Class II-A-3, Class II-A-4,
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8, Class M-9, Class B-1 and Class B-2 Certificates to Nomura Securities
International, Inc. (“NSII”) and Greenwich Capital Markets, Inc. (“Greenwich”,
together with NSII, the “Underwriters”), pursuant to the Amended and Restated
Underwriting Agreement, dated June 1, 2006, between the Purchaser and NSII,
and
the Terms Agreement, dated August 29, 2006 (collectively, the “Underwriting
Agreement”), among the Purchaser and the Underwriters. Capitalized terms used
but not defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement. Pursuant to the custodial agreement, dated as of August
1,
2006 (the “Custodial Agreement”), among the Trustee, Ocwen, Xxxxx Fargo as a
servicer (together with Ocwen, each individually a “Servicer” and together, the
“Servicers”) and Xxxxx Fargo as custodian (the “Custodian”), the Trustee intends
to have the Custodian take possession of the Mortgages and Mortgage Notes,
along
with certain other documents specified in the Custodial Agreement, as the
custodian of the Trustee, in accordance with the terms and conditions
thereof.
The
parties hereto agree as follows:
SECTION
1. Agreement
to Purchase.
The
Seller hereby sells, and the Purchaser hereby purchases, on August 31, 2006
(the
“Closing Date”), (a) certain conventional, one-to four family, fixed-rate and
adjustable-rate mortgage loans secured by first and second liens on residential
real properties (the “Mortgage Loans”), having an aggregate principal balance as
of the close of business on August 1, 2006 (the “Cut-off Date”) of approximately
$1,074,928,098 (the “Closing Balance”), after giving effect to all payments due
on the Mortgage Loans on or before the Cut-off Date, whether or not received,
including the right to any Prepayment Charges payable by the related Mortgagors
in connection with any Principal Prepayments on the Mortgage Loans and (b)
the
swap agreement, dated as of August 31, 2006, between Swiss Re Financial Products
Corporation, as the swap provider and HSBC Bank USA, National Association,
as
trustee for the Supplemental Interest Trust (the “Swap Agreement”).
SECTION
2. Mortgage
Loan Schedule.
The
Purchaser and the Seller have agreed upon which of the mortgage loans owned
by
the Seller are to be purchased by the Purchaser pursuant to this Agreement
and
the Seller will prepare or cause to be prepared on or prior to the Closing
Date
a final schedule (the “Closing Schedule”) that describes such Mortgage Loans and
sets forth all of the Mortgage Loans to be purchased under this Agreement,
including the Prepayment Charges. The Closing Schedule will conform to the
requirements set forth in this Agreement and to the definition of “Mortgage Loan
Schedule” under the Pooling and Servicing Agreement.
SECTION
3. Consideration.
(a) In
consideration for the Mortgage Loans and the Swap Agreement to be purchased
hereunder, the Purchaser shall, as described in Section 10, (i) pay to or upon
the order of the Seller in immediately available funds an amount (the “Purchase
Price”) equal to (i) $____________*
and (ii)
a 100% interest in the Class B-1, Class B-2, Class X, Class P and Class R
certificates (collectively the “Private Certificates”) of which the Class B-1
and Class B-2 Certificates shall be registered in the name of the Underwriters
and the Class X, Class P and Class R certificates shall be registered solely
in
the name of NSII.
(b) The
Purchaser or any assignee, transferee or designee of the Purchaser shall be
entitled to all scheduled payments of principal due after the Cut-off Date,
all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans allocable to the period after the
Cut-off Date. All scheduled payments of principal and interest due on or before
the Cut-off Date and collected after the Cut-off Date shall belong to the
Seller.
(c) Pursuant
to the Pooling and Servicing Agreement, the Purchaser will assign all of its
right, title and interest in and to the Mortgage Loans and the Swap Agreement,
together with its rights under this Agreement, to the Trustee for the benefit
of
the Certificateholders.
SECTION
4. Transfer
of the Mortgage Loans.
(a) Possession
of Mortgage Files.
The
Seller does hereby sell to the Purchaser, without recourse but subject to the
terms of this Agreement, all of its right, title and interest in, to and under
the Mortgage Loans, including the related Prepayment Charges, and the Swap
Agreement. The contents of each Mortgage File not delivered to the Purchaser
or
to any assignee, transferee or designee of the Purchaser on or prior to the
Closing Date are and shall be held in trust by the Seller for the benefit of
the
Purchaser or any assignee, transferee or designee of the Purchaser. Upon the
sale of the Mortgage Loans, the ownership of each Mortgage Note, the related
Mortgage and the other contents of the related Mortgage File is vested in the
Purchaser and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or that come into the possession of the Seller
on or after the Closing Date shall immediately vest in the Purchaser and shall
be delivered immediately to the Purchaser or as otherwise directed by the
Purchaser.
(b) Delivery
of Mortgage Loan Documents.
Pursuant
to various conveyance 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
documents set forth on Exhibit 1 hereto, 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 on the face of such copy, substantially as follows: “Certified to
be a true and correct copy of the original, which has been transmitted for
recording;” (y) in lieu of the Mortgage, assignments to the Trustee or
intervening assignments thereof, if the applicable jurisdiction retains the
originals of such documents or if the originals are lost (in each case, as
evidenced by a certification from the Seller to such effect), the Seller may
deliver photocopies of such documents containing an original certification
by
the judicial or other governmental authority of the jurisdiction where such
documents were recorded; and (z) in lieu of the Mortgage Notes relating to
the
Mortgage Loans, each identified in the list delivered by the Purchaser to the
Trustee on the Closing Date and attached hereto as Exhibit
2
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 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) In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the Seller further agrees that it will cause, at the Seller’s own
expense, within thirty (30) days after the Closing Date, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Seller to the
Purchaser and by the Purchaser to the Trustee in accordance with this Agreement
for the benefit of the Certificateholders by including (or deleting, in the
case
of Mortgage Loans which are repurchased in accordance with this Agreement)
in
such computer files (a) the code in the field which identifies the specific
Trustee and (b) the code in the field “Pool Field” which identifies the series
of the Certificates issued in connection with such Mortgage Loans. The Seller
further agrees that it will not, and will not permit the Servicers to alter
the
codes referenced in this paragraph with respect to any Mortgage Loan during
the
term of the Pooling and Servicing Agreement unless and until such Mortgage
Loan
is repurchased in accordance with the terms of the Pooling and Servicing
Agreement.
(d) Acceptance
of Mortgage Loans.
The
documents delivered pursuant to Section 4(b) hereof shall be reviewed by the
Purchaser or any assignee, transferee or designee of the Purchaser at any time
before or after the Closing Date (and with respect to each document permitted
to
be delivered after the Closing Date, within seven (7) days of its delivery)
to
ascertain that all required documents have been executed and received and that
such documents relate to the Mortgage Loans identified on the Mortgage Loan
Schedule.
(e) Transfer
of Interest in Agreements.
The
Purchaser has the right to assign its interest under this Agreement, in whole
or
in part, to the Trustee, as may be required to effect the purposes of the
Pooling and Servicing Agreement, without the consent of the Seller, and the
assignee shall succeed to the rights and obligations hereunder of the Purchaser.
Any expense reasonably incurred by or on behalf of the Purchaser or the Trustee
in connection with enforcing any obligations of the Seller under this Agreement
will be promptly reimbursed by the Seller.
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 custodians. 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, the Underwriters and to any investors or
prospective investors in the Certificates information regarding the Mortgage
Loans and to make available personnel knowledgeable about the Mortgage Loans
for
discussions with the Purchaser, the Underwriters and such investors or
prospective investors, upon reasonable request during regular business hours,
sufficient to permit the Purchaser, the Underwriters 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 Custodian on
behalf of the Trustee, for the benefit of the Certificateholders, will review
items of the Mortgage Files as set forth on Exhibit
1
and will
deliver to the Seller a certification in the form attached as Exhibit 1 to
the
Custodial Agreement.
(c) Pursuant
to the Pooling and Servicing Agreement, the Trustee or the Custodian, on behalf
of the Trustee, will review the Mortgage Files within 180 days of the Closing
Date and will deliver to the Seller a final certification substantially in
the
form of Exhibit 2 to the Custodial Agreement. If the Custodian 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 or 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”),
pursuant to Section 6 of the Custodial Agreement, the Custodian will notify
the
Trustee of such Material Defect and the Trustee shall notify the Seller of
such
Material Defect. The Seller shall correct or cure any such Material Defect
within ninety (90) days from the date of notice from the Trustee 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 ninety
(90) days of the date of notice, provide the Trustee with a Substitute Mortgage
Loan (if within two (2) 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 or a Servicing Officer confirming that such documents have been accepted
for recording, and delivery to the Trustee shall be effected by the Seller
within thirty (30) 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
Replacement 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 cause the
Custodian, on behalf of the Trustee, 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 Custodian, on behalf of the Trustee, 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 will, promptly after the Closing Date, cause each Mortgage and each
assignment of Mortgage from the Seller to the Trustee, and all unrecorded
intervening assignments, if any, delivered on or prior to the Closing Date,
to
be recorded in all recording offices in the jurisdictions where the related
Mortgaged Properties are located; provided,
however,
the
Seller need not cause to be recorded any assignment for which (a) the related
Mortgaged Property is located in (a) any jurisdiction under the laws of which,
as evidenced by an Opinion of Counsel delivered by the Seller to the Trustee
and
the Rating Agencies, the recordation of such assignment is not necessary to
protect the Trustee’s interest in the related Mortgage Loan or (b) MERS is
identified on the Mortgage or on a properly recorded assignment of the Mortgage
as mortgagee of record solely as nominee for Seller and its successors and
assigns; provided,
however,
notwithstanding the delivery of any Opinion of Counsel, each assignment of
Mortgage shall be submitted for recording by the Seller in the manner described
above, at no expense to the Trust Fund or Trustee, upon the earliest to occur
of
(i) reasonable direction by the Holders of Certificates evidencing Percentage
Interests aggregating not less than twenty-five percent (25%) of the Trust,
(ii)
the occurrence of an Event of Default, (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Seller, (iv) the occurrence of a
servicing transfer as described in Section 8.02 of the Pooling and Servicing
Agreement or (v) with respect to any assignment of Mortgage, the occurrence
of a
bankruptcy, insolvency or foreclosure relating to the Mortgagor under the
related Mortgage.
(b) While
each such Mortgage or assignment is being recorded, if necessary, the Seller
shall leave or cause to be left with the Custodian, on behalf of the Trustee,
a
certified copy of such Mortgage or assignment. In the event that, within 180
days of the Closing Date, the Trustee has not been provided with an Opinion
of
Counsel as described above or received evidence of recording with respect to
each Mortgage Loan delivered to the Purchaser pursuant to the terms hereof
or as
set forth above and the related Mortgage Loan is not a MOM Loan, the failure
to
provide evidence of recording or such Opinion of Counsel shall be considered
a
Material Defect, and the provisions of Section 5(c) and (d) shall apply. All
customary recording fees and reasonable expenses relating to the recordation
of
the assignments of mortgage to the Trustee or the Opinion of Counsel, as the
case may be, shall be borne by the Seller.
SECTION
7. Representations,
Warranties and Covenants of the Seller.
The
Seller hereby represents and warrants to the Purchaser, as of the date hereof
and as of the Closing Date, and covenants, that:
(i) The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and 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.
(ii) 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 or by general principles of
equity.
(iii) The
execution, delivery and performance of this Agreement by the Seller (x) does
not
conflict and will not conflict with, does not breach and will not result in
a
breach of and does not constitute and will not constitute a default (or an
event, which with notice or lapse of time or both, would constitute a default)
under (A) any terms or provisions of the organizational documents of the Seller,
(B) any term or provision of any material agreement, contract, instrument or
indenture, to which the Seller is a party or by which the Seller or any of
its
property is bound, or (C) any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having jurisdiction
over the Seller or any of its property and (y) does not create or impose and
will not result in the creation or imposition of any lien, charge or encumbrance
which would have a material adverse effect upon the Mortgage Loans or any
documents or instruments evidencing or securing the Mortgage Loans.
(iv) No
consent, approval, authorization or order of, registration or filing with,
or
notice on behalf of the Seller to any governmental authority or court is
required, under federal laws or the laws of the State of New York, for the
execution, delivery and performance by the Seller of, or compliance by the
Seller with, this Agreement or the consummation by the Seller of any other
transaction contemplated hereby and by the Pooling and Servicing Agreement;
provided, however, that the Seller makes no representation or warranty regarding
federal or state securities laws in connection with the sale or distribution
of
the Certificates.
(v) This
Agreement does not contain any untrue statement of material fact or omit to
state a material fact necessary to make the statements contained herein not
misleading. The written statements, reports and other documents prepared and
furnished or to be prepared and furnished by the Seller pursuant to this
Agreement or in connection with the transactions contemplated hereby taken
in
the aggregate do not contain any untrue statement of material fact or omit
to
state a material fact necessary to make the statements contained therein not
misleading.
(vi) 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.
(vii) 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.
(viii) Immediately
prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated,
the Seller was the owner of the related Mortgage and the indebtedness evidenced
by the related Mortgage Note, and, upon the payment to the Seller of the
Purchase Price, in the event that the Seller retains or has retained record
title, the Seller 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 from and after the date hereof.
(ix) There
are
no actions or proceedings against, or investigations known to it 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 by the Seller 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 validity or
enforceability of, this Agreement.
(x) 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 in effect in any relevant jurisdiction, except any as may have been
complied with.
(xi) The
Seller has not dealt with any broker, investment banker, agent or other person,
except for the Purchaser or any of its affiliates, that may be entitled to
any
commission or compensation in connection with the sale of the Mortgage Loans
(except that an entity that previously financed the Seller’s ownership of the
Mortgage Loans may be entitled to a fee to release its security interest in
the
Mortgage Loans, which fee shall have been paid and which security interest
shall
have been released on or prior to the Closing Date).
(xii) There
is
no litigation currently pending or, to the best of the Seller’s knowledge
without independent investigation, threatened against the Seller that would
reasonably be expected to adversely affect the transfer of the Mortgage Loans,
the issuance of the Certificates or the execution, delivery, performance or
enforceability of this Agreement, or that would result in a material adverse
change in the financial condition of the Seller.
(xiii) The Seller
is a HUD approved mortgagee pursuant to Section 203 of the National Housing
Act.
SECTION
8. Representations
and Warranties of the Seller Relating to the Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser that as to each Mortgage
Loan as of the Closing Date:
(i) Information
provided to the Rating Agencies, including the loan level detail, is true and
correct according to the Rating Agency requirements;
(ii) No
fraud
has taken place on the part of the Mortgagor or any other party involved in
the
origination or servicing of the Mortgage Loan;
(iii) No
Monthly Payment required to be made under any Mortgage Loan has been, or will
be, contractually delinquent by one month or more on, or at any time preceding,
the date such Mortgage Loan was purchased by the Seller;
(iv) Neither
the Seller nor the related originator of the Mortgage Loan has advanced any
Monthly Payment required under the terms of the Mortgage Note;
(v) There
are
no delinquent taxes, assessment liens or insurance premiums affecting the
related Mortgaged Property;
(vi) The
terms
of the Mortgage Note and the Mortgage have not been materially 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. The substance of any such waiver, alteration or
modification has been approved by the title insurer, to the extent required
by
the related policy. 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 Trustee;
(vii) The
Mortgaged Property is insured against loss by fire and hazards of extended
coverage (excluding earthquake insurance) in an amount which is at least equal
to the lesser of (i) the amount necessary to compensate for any damage or loss
to the improvements which are a part of such property on a replacement cost
basis or (ii) the outstanding principal balance of the Mortgage Loan. 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. All such insurance policies
contain a standard mortgagee clause naming the originator of the Mortgage Loan,
its successors and assigns as mortgagee and the Seller has not engaged in any
act or omission which would impair the coverage of any such insurance policies.
Except as may be limited by applicable law, 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 therefor 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, consumer
credit protection, equal credit opportunity, fair housing, predatory, fair
lending or disclosure laws applicable to the origination and servicing of the
Mortgage Loans have been complied with in all material respects, and the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws;
(ix) The
Mortgage has not been satisfied, cancelled, subordinated (other than with
respect to second lien Mortgage Loans, the subordination to the first lien)
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 was recorded or was submitted for recording in accordance with all
applicable laws and is a valid, existing and enforceable perfected first or
second lien on the Mortgaged Property including all improvements on the
Mortgaged Property, subject only to (a) the lien of the current real property
taxes and (b) covenants, conditions and restrictions, rights of way and
easements;
(xi) The
Mortgage Note and the related Mortgage are genuine and each is the legal, valid
and binding obligation of the maker thereof, insured under the related title
policy, and enforceable in accordance with its terms, except to the extent
that
the enforceability thereof may be limited by a bankruptcy, insolvency or
reorganization;
(xii) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage Note
and the Mortgage and has the full right to convey, transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien
(other than with respect to second lien Mortgage Loans, the subordination to
the
first lien), pledge, charge, claim or security interest and immediately upon
the
sale, assignment and endorsement of the Mortgage Loans from the Seller to the
Purchaser, the Purchaser shall have good and indefeasible title to and be the
sole legal owner of the Mortgage Loans subject only to any encumbrance, equity,
lien, pledge, charge, claim or security interest arising out of the Purchaser’s
actions;
(xiii) Each
Mortgage Loan is covered by a valid and binding American Land Title Association
lender’s title insurance policy issued by a title insurer qualified to do
business in the jurisdiction where the Mortgaged Property is located, which
title insurance policy is generally acceptable to Xxxxxx Xxx and Xxxxxxx Mac.
No
claims have been filed under such lender’s title insurance policy, and the
Seller has not done, by act or omission, anything that would impair the coverage
of the lender’s title insurance policy;
(xiv) There
is
no material default, breach, violation event 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 material default, breach, violation or event of acceleration,
and
the Seller has not, nor has its predecessors, waived any material default,
breach, violation or event of acceleration;
(xv) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material provided to the related Mortgaged Property prior to the origination
of the Mortgage Loan which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage, except as may be disclosed in the
related title policy;
(xvi) Except
with respect to approximately 15.94% of the Mortgage Loans by aggregate
principal balance as of the Cut-off Date, which are balloon loans and
approximately 19.54% of the Mortgage Loans by aggregate principal balance as
of
the Cut-off Date, which are interest only loans, each Mortgage Note is payable
on the first day of each month in equal monthly installments of principal and
interest (subject to adjustment in the case of the adjustable rate Mortgage
Loans), with interest calculated on a 30/360 basis and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date
over
an original term from commencement of amortization to not more than thirty
(30)
years and no Mortgage Loan permits negative amortization;
(xvii) The
servicing practices used in connection with the servicing of the Mortgage Loans
have been in all respects reasonable and customary in the mortgage servicing
industry of like mortgage loan servicers, servicing mortgage loans similar
to
the Mortgage Loans in the same jurisdiction as the Mortgaged
Property;
(xviii) At
the
time of origination of the Mortgage Loan there was no proceeding pending for
the
total or partial condemnation of the Mortgaged Property and, as of the date
such
Mortgage Loan was purchased by the Purchaser, to the best of the Purchaser’s
knowledge there is no proceeding pending for the total or partial condemnation
of the Mortgaged Property;
(xix) 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;
(xx) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the related Mortgage referred to in subsection (x) above;
(xxi) 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 Seller to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(xxii) The
Mortgage Loan is not subject to any valid right of rescission, set-off,
counterclaim or defense, including without limitation the defense of usury,
nor
will the operation of any of the terms of the Mortgage Note or the Mortgage,
or
the exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject to any such right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto;
(xxiii) The
Mortgaged Property is free of material damage and in good repair, excepting
therefrom any Mortgage Loan subject to an escrow withhold as shown on the
Mortgage Loan Schedule;
(xxiv) All
of
the improvements which were included in determining the appraised value of
the
Mortgaged Property lie wholly within the Mortgaged Property’s boundary lines and
no improvements on adjoining properties encroach upon the Mortgaged Property,
excepting therefrom: (i) any encroachment insured against in the lender’s title
insurance policy identified in clause (xiii) above, (ii) any encroachment
generally acceptable to mortgage loan originators doing business in the same
jurisdiction as the Mortgaged Property, and (iii) any encroachment which does
not materially interfere with the benefits of the security intended to be
provided by such Mortgage;
(xxv) All
parties to the Mortgage Note had the legal capacity to execute the Mortgage
Note
and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed
by such parties;
(xxvi) To
the
best of the Seller’s knowledge, at the time of origination of the Mortgage Loan,
no appraised improvement located on or being part of the Mortgaged Property
was
in violation of any applicable zoning law or regulation and all inspections,
licenses and certificates required in connection with the origination of any
Mortgage Loan with respect to the occupancy of the Mortgaged Property, have
been
made or obtained from the appropriate authorities;
(xxvii) No
Mortgagor has notified the Seller of any relief requested or allowed under
the
Servicemembers Civil Relief Act;
(xxviii) All
parties which have held an interest in the Mortgage Loan are (or during the
period in which they held and disposed of such interest, were) (1) in compliance
with any and all applicable licensing requirements of the state wherein the
Mortgaged Property is located, (2) organized under the laws of such state,
(3)
qualified to do business in such state, (4) a federal savings and loan
association or national bank, (5) not doing business in such state, or (6)
exempt from the applicable licensing requirements of such state;
(xxix) The
Mortgage File contains an appraisal of the related Mortgaged Property which
was
made prior to the approval of the Mortgage Loan by a qualified appraiser, duly
appointed by the related originator and was made in accordance with the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
Uniform Standards of Professional Appraisal Practice;
(xxx) Except
as
may otherwise be limited by applicable law, 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;
(xxxi) The
Mortgage Loan does not contain any provision which would constitute a “buydown”
provision and pursuant to which Monthly Payments are paid or partially paid
with
funds deposited in a separate account established by the related originator,
the
Mortgagor or anyone on behalf of the Mortgagor, or paid by any source other
than
the Mortgagor. 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;
(xxxii) To
the
best of the Seller’s knowledge there is no action or proceeding directly
involving the Mortgaged Property presently pending in which compliance with
any
environmental law, rule or regulation is at issue and the Seller has received
no
notice of any condition at the Mortgaged Property which is reasonably likely
to
give rise to an action or proceeding in which compliance with any environmental
law, rule or regulation is at issue;
(xxxiii) Each
Mortgage Loan is an obligation which is principally secured by an interest
in
real property within the meaning of Treasury Regulation section
1.860G-2(a);
(xxxiv) Each
Mortgage Loan is directly secured by a first or second lien on, and consists
of
a single parcel of, real property with a detached one-to-four family residence
erected thereon, a townhouse or an individual condominium unit in a condominium
project, or an individual unit in a planned unit development (“PUD”). No
residence or dwelling is a leasehold, mobile home or a manufactured dwelling
unless it is an Acceptable Manufactured Dwelling. An “Acceptable Manufactured
Dwelling” is a manufactured dwelling, which is permanently affixed to a
foundation and treated as “real estate” under applicable law. No Mortgaged
Property is used for commercial purposes. Mortgaged Properties which contain
a
home office shall not be considered as being used for commercial purposes as
long as the Mortgaged Property has not been altered for commercial purposes
and
is not storing any chemicals or raw materials other than those commonly used
for
homeowner repair, maintenance and/or household purposes;
(xxxv) The
Mortgage Interest Rate payable by the Mortgagor with respect to the Adjustable
Rate Mortgage Loans is subject to adjustment at the time and in the amounts
as
are set forth in the related Mortgage Note;
(xxxvi) The
first
scheduled Monthly Payment under the terms of each Mortgage Note was received
by
the servicer servicing such Mortgage Loan by the 30th day following the related
due date;
(xxxvii) With
respect to each Group I Mortgage Loan, no Mortgagor obtained a prepaid
single-premium credit-life, credit-disability, credit unemployment or credit
property insurance policy in connection with the origination of such Group
I
Mortgage Loan;
(xxxviii) To
the
best of the Seller’s knowledge, the servicer for each Mortgage Loan has
accurately and fully reported its borrower credit files to each of the credit
repositories in a timely manner;
(xxxix) No
Mortgage Loan is subject to the Home Ownership and Equity Protection Act of
1994
(“HOEPA”) or any comparable law and no Mortgage Loan is classified and/or
defined as a “high cost”, “covered” (excluding home loans defined as covered
home loans” in the New Jersey Home Ownership Security Act of 2002 that were
originated between November 26, 2003 and July 7, 2004), “high risk home” or
“predatory” loan under any other federal, state or local law or regulation or
ordinance (or a similarly classified loan using different terminology under
a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees);
(xl) No
Mortgage Loan was selected from the mortgage loans in the Seller’s portfolio in
a manner so as to affect adversely the interests of the Purchaser;
(xli) Each
Mortgage File contains a full appraisal on form 1004 or 2055 with an interior
inspection (or the equivalent form for two-to four-family and investor
properties), or on a similar alternate form which includes substantially similar
information to that required such forms, as applicable;
(xlii) Each
Mortgage Loan is and will be a mortgage loan arising out of the originator’s
practice in accordance with the originator’s underwriting guidelines;
(xliii) As
of the
Closing Date, the Seller has no knowledge of any fact that should lead it to
expect that the Mortgage Loan will not be paid in full when due;
(xliv) No
Mortgage Loan is a high cost loan or a covered loan, as applicable (as such
terms are defined in the then current Standard & Poor’s LEVELS Version 5.7
Glossary Revised, Appendix E;
(xlv) With
respect to any Group I Mortgage Loan originated on or after August 1, 2004,
neither the related Mortgage nor the related Mortgage Note requires the
Mortgagor to submit to arbitration to resolve any dispute arising out of or
relating in any way to the Mortgage Loan transaction;
(xlvi) With
respect to the Group I Mortgage Loans, the related Mortgage Loan’s Mortgagor was
not encouraged or required to select a mortgage loan product offered by such
Mortgage Loan’s originator which is a higher cost product designed for less
creditworthy borrowers, taking into account such facts as, without limitation,
the Mortgage Loan’s requirements and the Mortgagor’s credit history, income,
assets and liabilities and any such Mortgagor
who
sought financing through such originator’s higher-priced lending channel, the
Mortgagor was directed towards or offered the such originator’s standard
mortgage line if such Mortgagor qualified for one of the standard
products;
(xlvii) With
respect to the Group I Mortgage Loans, the methodology used in underwriting
the
extension of credit for each Mortgage Loan did not rely solely on the extent
of
the Mortgagor’s equity in the collateral as the principal determining factor in
approving such extension of credit. The methodology employed objective criteria
such as the Mortgagor’s income, assets or liabilities, to the proposed mortgage
payment and, based on such methodology, the Group I Mortgage Loan’s originator
made a reasonable determination that at the time of origination the Mortgagor
had the ability to make timely payments on the Mortgage Loan;;
(xlviii) With
respect to Group I Mortgage Loans, no Mortgagor was charged “points and fees” in
an amount greater than (a) $1,000 or (b) 5% of the principal amount of such
Group I Mortgage Loan, whichever is greater. For purposes of this
representation, “points and fees” (x) include origination, underwriting, broker
and finder’s fees and charges that the lender imposed as a condition of making
the Mortgage Loan, whether they are paid to the lender or a third party; and
(y)
exclude bona fide discount points, fees paid for actual services rendered in
connection with the origination of the mortgage (such as attorneys’ fees,
notaries fees and fees paid for property appraisals, credit reports, surveys,
title examinations and extracts, flood and tax certifications, and home
inspections); the cost of mortgage insurance or credit-risk price adjustments;
the costs of title, hazard, and flood insurance policies; state and local
transfer taxes or fees; escrow deposits for the future payment of taxes and
insurance premiums; and other miscellaneous fees and charges, which
miscellaneous fees and charges, in total, do not exceed 0.25 percent of the
loan
amount;
(xlix) All
fees
and charges (including finance charges) and whether or not financed, assessed,
collected or to be collected in connection with the origination and servicing
of
each Mortgage Loan has been disclosed in writing to the Mortgagor in accordance
with applicable state and federal law and regulation;
(l) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act;
(li) The
information set forth in the applicable part of the Prepayment Penalty Schedule
relating to the existence of a Prepayment Loan Charge is complete, true and
correct in all material respects at the date or dates on which such information
is furnished respecting with such information is furnished, and each prepayment
penalty is permissible and enforceable in accordance with its terms upon the
mortgagor’s full and voluntary principal prepayment under applicable law, except
to the extent that: (1) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights; (2) the collectability thereof may be limited due to
acceleration in connection with a foreclosure or other involuntary prepayment;
or (3) subsequent changes in applicable law may limit or prohibit enforceability
thereof;
(lii) No
Mortgage Loan contains a provision whereby the Mortgagor can convert an
Adjustable Rate Mortgage Loan into a Fixed Rate Mortgage Loan;
(liii) With
respect to any Mortgage Loan that is secured by a second lien on the related
Mortgaged Property, either (i) no consent for the Mortgage Loan is required
by
the holder of any related senior lien or (ii) such consent has been obtained
and
is contained in the Mortgage File;
(liv) With
respect to a Mortgage Loan which is a second lien, as of the date hereof, the
Seller has not received a notice of default of a senior lien on the related
Mortgaged Property which has not been cured;
(lv) With
respect to any Group I Mortgage Loan that contains a provision permitting
imposition of a penalty upon a prepayment prior to maturity: (i) the Mortgage
Loan provides some benefit to the Mortgagor (e.g. a rate or fee reduction)
in
exchange for accepting such prepayment penalty, (ii) such Mortgage Loan’s
originator had a written policy of offering the Mortgagor, or requiring
third-party brokers to offer the Mortgagor the option of obtaining a mortgage
loan that did not require payment of such a prepayment penalty, (iii) the
prepayment
penalty
was adequately disclosed to the Mortgagor pursuant to applicable state and
federal law, (iv) no Group I Mortgage Loan originated on or after October 1,
2002 will provide for a prepayment penalty for a term in excess of three years
and any Group I Mortgage Loan originated prior to such date will not provide
for
prepayment penalties for a term in excess of five years; in each case unless
such Mortgage Loan was modified to reduce the prepayment period to no more
than
three years from the date of the Mortgage Note and the Mortgagor was notified
in
writing of such reduction in prepayment period, and (v) such prepayment penalty
shall not be imposed in any instance where the mortgage debt is accelerated
or
paid off in connection with the workout of a delinquent Group I Mortgage Loan
due to the Mortgagor’s default notwithstanding that the terms of the Group I
Mortgage Loan or state or federal law might permit the imposition of such
penalty;
(lvi) The
Servicer for each Group I Mortgage Loan has fully furnished, in accordance
with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (i.e., favorable and unfavorable) on its borrower credit
files to Equifax, Experian, and Trans Union Credit Information Company (three
of
the credit repositories), on a monthly basis;
(lvii) With
respect to any Group I Mortgage Loan, the related residential dwelling is not
a
manufactured housing unit;
(lviii) The
original principal balance of each Group I Mortgage Loan which is secured by
a
first lien on the related Mortgaged Property is within Xxxxxxx Mac’s dollar
amount limits for conforming one-to-four family mortgage loans;
(lix) With
respect to Group I Mortgage Loans, no Mortgage Loan originated on or after
January 1, 2005, which is a “high cost home loan” as defined under the Indiana
Home Loan Practices Act (I.C. 24-9);
(lx) With
respect to a Group I Mortgage Loan which is secured by a second lien, (a) such
Mortgage Loan is secured by a one- to four-family residence that is the
principal residence of the Mortgagor, (b) the origination amount Mortgage Loan
did not exceed one-half of the one-unit limitation set forth by Xxxxxxx Mac
for
first lien mortgage loans, and (c) the original principal balance for the first
lien plus the original principal balance of the second lien Mortgage Loan do
not
exceed Xxxxxxx Mac’s applicable loan limits for first lien mortgage loans for
properties of the same type as the related Mortgaged Property; No Group I
Mortgage Loan was originated more than one year prior to the Closing Date;
(lxi) No
Group
I Mortgage Loan was originated more than one year prior to the Closing Date;
and
(lxii) No
Group
I Mortgage Loan has an “annual percentage rate” or “total points and fees”
payable by the borrower (as each such term is defined under HOEPA) that equal
or
exceed the applicable thresholds defined under HOEPA (Section 32 of Regulation
Z, 12 C.F.R. Section 226.32(a)(1)(i) and (ii)).
SECTION
9. Repurchase
Obligation for Defective Documentation and for Breach of Representation and
Warranty.
(a) The
representations and warranties contained in Section 8 shall not be impaired
by
any review and examination of loan files or other documents evidencing or
relating to the Mortgage Loans or any failure on the part of the Seller or
the
Purchaser to review or examine such documents and shall inure to the benefit
of
any assignee, transferee or designee of the Purchaser, including the Trustee
for
the benefit of the Certificateholders. With respect to the representations
and
warranties contained herein as to which the Seller has no knowledge, if it
is
discovered that the substance of any such representation and warranty was
inaccurate as of the date such representation and warranty was made or deemed
to
be made, and such inaccuracy materially and adversely affects the value of
the
related Mortgage Loan or the interest therein of the Purchaser or the
Purchaser’s assignee, transferee or designee, then notwithstanding the lack of
knowledge by the Seller with respect to the substance of such representation
and
warranty being inaccurate at the time the representation and warranty was made,
the Seller shall take such action described in the following paragraph in
respect of such Mortgage Loan. Notwithstanding anything to the contrary
contained herein, any breach of a representation or warranty contained in
clauses (viii), (xxxvii), (xxxix), (xliv), (xlv), (xlvi), (xlvii), (xlviii),
(l), (lv), (lvi), (lvii), (lviii), (lix), (lx), (lxi) and/or (lxii) of Section
8
above, shall be automatically deemed to affect materially and adversely the
interests of the Purchaser or the Purchaser’s assignee, transferee or designee.
Upon
discovery by the Seller, the Purchaser or any assignee, transferee or designee
of the Purchaser of any materially defective document in, or that any material
document was not transferred by the Seller (as listed on an exception report
attached to the initial certification prepared by the Custodian, on behalf
of
the Trustee), or of a breach of any of the representations and warranties
contained in Section 8 that materially and adversely affects the value of any
Mortgage Loan or the interest therein of the Purchaser or the Purchaser’s
assignee, transferee or designee, the party discovering such breach shall give
prompt written notice to the Seller. Within 365 days of its discovery or its
receipt of notice of any such missing documentation that was not transferred
by
the Seller as described above, or of materially defective documentation, or
within 120 days of any such breach of a representation and warranty, the Seller
promptly shall deliver such missing document or cure such defect or breach
in
all material respects or, in the event the Seller cannot deliver such missing
document or cannot cure such defect or breach, the Seller shall, within 365
days
of its discovery or receipt of notice of any such missing or materially
defective documentation or within 120 days of any such breach of a
representation and warranty, either (i) repurchase the affected Mortgage Loan
at
the Purchase Price (as such term is defined in the Pooling and Servicing
Agreement) or (ii) pursuant to the provisions of the Pooling and Servicing
Agreement, cause the removal of such Mortgage Loan from the Trust Fund and
substitute one or more Replacement Mortgage Loans. The Seller shall amend the
Closing Schedule to reflect the withdrawal of such Mortgage Loan from the terms
of this Agreement and the Pooling and Servicing Agreement. The Seller shall
deliver to the Purchaser such amended Closing Schedule and shall deliver such
other documents as are required by this Agreement or the Pooling and Servicing
Agreement within five (5) days of any such amendment. Any repurchase pursuant
to
this Section 9(a) shall be accomplished by transfer to an account designated
by
the Purchaser of the amount of the Purchase Price in accordance with Section
2.03 of the Pooling and Servicing Agreement. Any repurchase required by this
Section shall be made in a manner consistent with Section 2.03 of the Pooling
and Servicing Agreement.
(b) If
the
representation made by the Seller in Section 8(lii) is breached, the Seller
shall not have the right or obligation to cure, substitute or repurchase the
affected Mortgage Loan but shall remit to the Servicer servicing such Mortgage
Loan for deposit in the Collection Account, prior to the next succeeding
Servicer Remittance Date, the amount of the Prepayment Charge indicated on
the
applicable part of the Mortgage Loan Schedule to be due from the Mortgagor
in
the circumstances less any amount collected and remitted to such Servicer for
deposit into the Collection Account.
(c) It
is
understood and agreed that the obligations of the Seller set forth in this
Section 9 to cure or repurchase a defective Mortgage Loan (and to make payments
pursuant to Section 9(b)) constitute the sole remedies of the Purchaser against
the Seller respecting a missing document or a breach of the representations
and
warranties contained in Section 8.
SECTION
10. Closing;
Payment for the Mortgage Loans.The
closing of the purchase and sale of the Mortgage Loans and the Swap Agreement
shall be held at the New York City office of Xxxxxxx Xxxxxxxx & Wood
llp
at 10:00
a.m. New York City time on the Closing Date.
The
closing shall be subject to each of the following conditions:
(a) All
of
the representations and warranties of the Seller under this Agreement shall
be
true and correct in all material respects as of the date as of which they are
made and no event shall have occurred which, with notice or the passage of
time,
would constitute a default under this Agreement;
(b) The
Purchaser shall have received, or the attorneys of the Purchaser shall have
received in escrow (to be released from escrow at the time of closing), all
Closing Documents as specified in Section 11 of this Agreement, in such forms
as
are agreed upon and acceptable to the Purchaser, duly executed by all
signatories other than the Purchaser as required pursuant to the respective
terms thereof;
(c) The
Seller shall have delivered or caused to be delivered and released to the
Purchaser or to its designee, all documents (including without limitation,
the
Mortgage Loans) required to be so delivered by the Purchaser pursuant to Section
2.01 of the Pooling and Servicing Agreement; and
(d) All
other
terms and conditions of this Agreement and the Pooling and Servicing Agreement
shall have been complied with.
Subject
to the foregoing conditions, the Purchaser shall deliver or cause to be
delivered to the Seller on the Closing Date, against delivery and release by
the
Seller to the Trustee of all documents required pursuant to the Pooling and
Servicing Agreement, the consideration for the Mortgage Loans as specified
in
Section 3 of this Agreement.
SECTION
11. Closing
Documents.
Without
limiting the generality of Section 8 hereof, the closing shall be subject to
delivery of each of the following documents:
(a) An
Officers’ Certificate of the Seller, dated the Closing Date, upon which the
Purchaser and the Underwriters may rely with respect to certain facts regarding
the sale of the Mortgage Loans by the Seller to the Purchaser;
(b) An
Opinion of Counsel of the Seller, dated the Closing Date and addressed to the
Purchaser and the Underwriters;
(c) Such
opinions of counsel as the Rating Agencies or the Trustee may request in
connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or
the Seller’s execution and delivery of, or performance under, this Agreement;
and
(d) Such
further information, certificates, opinions and documents as the Purchaser
or
the Underwriters may reasonably request.
SECTION
12. Costs.
The
Seller shall pay (or shall reimburse the Purchaser or any other Person to the
extent that the Purchaser or such other Person shall pay) all costs and expenses
incurred in connection with the transfer and delivery of the Mortgage Loans,
including without limitation, fees for title policy endorsements and
continuations, the fees and expenses of the Seller’s accountants and attorneys,
the costs and expenses incurred in connection with producing a Servicer’s loan
loss, foreclosure and delinquency experience, and the costs and expenses
incurred in connection with obtaining the documents referred to in Sections
11(b) and 11(c), the costs and expenses of printing (or otherwise reproducing)
and delivering this Agreement, the Pooling and Servicing Agreement, the
Certificates, the prospectus and prospectus supplement, and any private
placement memorandum relating to the Certificates and other related documents,
the initial fees, costs and expenses of the Trustee and its counsel, the fees
and expenses of the Purchaser’s counsel in connection with the preparation of
all documents relating to the securitization of the Mortgage Loans, the filing
fee charged by the Securities and Exchange Commission for registration of the
Certificates and the fees charged by any rating agency to rate the Certificates.
The Seller shall pay all costs and expenses related to recording the Assignments
of Mortgage. All other costs and expenses in connection with the transactions
contemplated hereunder shall be borne by the party incurring such
expense.
SECTION
13. Mandatory
Delivery; Grant of Security Interest.
The
sale and delivery on the Closing Date of the Mortgage Loans described on the
Mortgage Loan Schedule and the Swap Agreement 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 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 (i)
right, prior to the Closing Date, to reject any Mortgage Loan to the extent
permitted by this Agreement and (ii) obligation to deliver or cause to be
delivered the consideration for the Mortgage Loans pursuant to Section 3 hereof.
Any Mortgage Loans rejected by the Purchaser shall concurrently therewith be
released from the security interest created hereby. 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, 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 13 shall be deemed to have been
released.
SECTION
14. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by fax and, receipt of which
is
confirmed by telephone, if to the Purchaser, addressed to the Purchaser at
Two
World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, fax: (000) 000-0000, Attention: Legal Department
(NHEL
2006-HE3), or such other address as may hereafter be furnished to the Seller
in
writing by the Purchaser; and if to the Seller, addressed to the Seller at
Two
World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, fax: (000) 000-0000, Attention: Xxxxx Xxxxxx, or
to
such other address as the Seller may designate in writing to the
Purchaser.
SECTION
15. Severability
of Provisions.
Any
part, provision, representation or warranty of this Agreement that is prohibited
or that 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 that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION
16. Agreement
of Parties.
The
Seller and the Purchaser each agree to execute and deliver such instruments
and
take such actions as either of the others may, from time to time, reasonably
request in order to effectuate the purpose and to carry out the terms of this
Agreement and the Pooling and Servicing Agreement.
SECTION
17. Survival.
The
Seller agrees that the representations, warranties and agreements made by it
herein and in any certificate or other instrument delivered pursuant hereto
shall be deemed to be relied upon by the Purchaser, notwithstanding any
investigation heretofore or hereafter made by the Purchaser or on its behalf,
and that the representations, warranties and agreements made by the Seller
herein or in any such certificate or other instrument shall survive the delivery
of and payment for the Mortgage Loans and shall continue in full force and
effect, notwithstanding any restrictive or qualified endorsement on the Mortgage
Notes and notwithstanding subsequent termination of this Agreement, the Pooling
and Servicing Agreement or the Trust Fund.
SECTION
18. GOVERNING
LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
(EXCLUDING THE CHOICE OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF NEW
YORK.
THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK
GENERAL OBLIGATIONS LAW SHALL GOVERN.
SECTION
19. Miscellaneous.
This
Agreement may be executed in two or more counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute one and the same instrument. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof. Neither this Agreement
nor
any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement
of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage Loans
by the Seller to the Purchaser as provided in Section 4 hereof be, and be
construed as, a sale of the Mortgage Loans by the Seller to the Purchaser and
not as 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 aforementioned intent of the parties, the Mortgage Loans
are
held to be property of the Seller, then (a) it is the express intent 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
and
(b) (1) this Agreement shall also be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the New York Uniform Commercial Code; (2)
the
conveyance provided for in Section 4 hereof 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, including without limitation
all amounts, other than investment earnings, from time to time held or invested
in the Collection Account whether in the form of cash, instruments, securities
or other property; (3) the possession by the Purchaser or its agent of Mortgage
Notes, the related Mortgages and such other items of property that 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 of the New York Uniform Commercial Code;
and
(4) 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 Section 4(d) hereof
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 necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans,
such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the
term
of this Agreement and the Pooling and Servicing Agreement.
[Signature
page to follow]
_____________________
*
Please
contact Nomura Credit & Capital, Inc. for pricing
information.
IN
WITNESS WHEREOF, the Purchaser and the Seller have caused their names to be
signed by their respective officers thereunto duly authorized as of the date
first above written.
|
NOMURA
CREDIT
& CAPITAL, INC.
|
||
| |
|
|
| By: /s/ Xxxxxxx X.X. Xxxxxxx | ||
| Name: Xxxxxxx X.X. Xxxxxxx | ||
|
Title: Vice
President
|
||
|
NOMURA
HOME EQUITY
LOAN, INC.
|
||
| |
|
|
| By: /s/ Xxxx X. Xxxxxx | ||
| Name: Xxxx X. Xxxxxx | ||
|
Title: Managing
Director
|
||
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) the
original Mortgage Note (including all riders thereto) bearing all intervening
endorsements necessary to show a complete chain of endorsements from the
original payee, endorsed in blank, via
original signature,
and, if
previously endorsed, signed in the name of the last endorsee by a duly qualified
officer of the last endorsee. If
the
Mortgage Loan was acquired by the last endorsee in a merger, the endorsement
must be by “[name of last endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the last
endorsee while doing business under another name, the endorsement must be by
“[name of last endorsee], formerly known as [previous name]”;
(b) the
original Assignment of Mortgage executed in blank;
(c) the
original of any guarantee executed in connection with the Mortgage Note, if
any;
(d) the
original Mortgage (including all riders thereto) with evidence of recording
thereon and the original recorded power of attorney, if the Mortgage was
executed pursuant to a power of attorney, with evidence of recording thereon,
and in the case of each MOM Loan, the original Mortgage, noting the presence
of
the MIN of the Mortgage Loan and either language indicating that the Mortgage
Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination,
the original Mortgage and the assignment thereof to MERS®, with evidence of
recording indicated thereon; or, if the original Mortgage with evidence of
recording thereon has not been returned by the public recording office where
such Mortgage has been delivered for recordation or such Mortgage has been
lost
or such public recording office retains the original recorded Mortgage, a
photocopy of such Mortgage, together with (i) in the case of a delay caused
by
the public recording office, an Officer’s Certificate of the title insurer
insuring the Mortgage, the escrow agent, the seller or the Servicer servicing
such Mortgage Loan stating that such Mortgage has been delivered to the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage will
be
promptly delivered to the Custodian upon receipt thereof by the party delivering
the Officer’s Certificate or by such Servicer; or (ii) in the case of a Mortgage
where a public recording office retains the original recorded Mortgage or in
the
case where a Mortgage is lost after recordation in a public recording office,
a
copy of such Mortgage with the recording information thereon certified by such
public recording office to be a true and complete copy of the original recorded
Mortgage;
(e) the
originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, if any;
(f) the
originals of any intervening assignments of mortgage with evidence of recording
thereon evidencing a complete chain of ownership from the originator of the
Mortgage Loan to the last assignee, or if any such intervening assignment of
mortgage has not been returned from the applicable public recording office
or
has been lost or if such public recording office retains the original recorded
intervening assignments of mortgage, a photocopy of such intervening assignment
of mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer’s Certificate of the title insurer insuring the
Mortgage, the escrow agent, the seller or the Servicer servicing such Mortgage
Loan stating that such intervening assignment of mortgage has been delivered
to
the appropriate public recording office for recordation and that such original
recorded intervening assignment of mortgage or a copy of such intervening
assignment of mortgage certified by the appropriate public recording office
to
be a true and complete copy of the original recorded intervening assignment
of
mortgage will be promptly delivered to the Custodian upon receipt thereof by
the
party delivering the Officer’s Certificate or by such Servicer; or (ii) in the
case of an intervening assignment of mortgage where a public recording office
retains the original recorded intervening assignment of mortgage or in the
case
where an intervening assignment of mortgage is lost after recordation in a
public recording office, a copy of such intervening assignment of mortgage
with
recording information thereon certified by such public recording office to
be a
true and complete copy of the original recorded intervening assignment of
mortgage;
(g) if
the
Mortgage Note, the Mortgage, any Assignment of Mortgage, or any other related
document has been signed by a Person on behalf of the Mortgagor, the original
power of attorney or other instrument that authorized and empowered such Person
to sign;
(h) the
original lender’s title insurance policy in the form of an ALTA mortgage title
insurance policy
or,
if the
original lender’s title insurance policy has not been issued, the irrevocable
commitment to issue the same; and
(i) the
original of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any.
EXHIBIT
2
FORM
OF LOST NOTE AFFIDAVIT
Loan
#:
_____
Borrower:____
LOST
NOTE
AFFIDAVIT
I,
as
_____________________ of ____________________, a _______________ am authorized
to make this Affidavit on behalf of Nomura Credit & Capital, Inc. (the
“Seller”). In connection with the administration of the Mortgage Loans held by
______________________, a _______________ [corporation] as Seller on behalf
of
____________________ (the “Purchaser”), _______________________ (the
“Deponent”), being duly sworn, deposes and says that:
1. The
Seller’s address is:
______________________________
______________________________
______________________________
2. The
Seller previously delivered to the Purchaser a signed Initial Certification
with
respect to such Mortgage and/or Assignment of Mortgage;
3. Such
Mortgage Note and/or Assignment of Mortgage was assigned or sold to the
Purchaser by __________________, a _________________ pursuant to the terms
and
provisions of an Amended and Restated Mortgage Loan Purchase Agreement dated
as
of August 31, 2006, as amended and restated to and including November 9,
2006;
4. Such
Mortgage Note and/or Assignment of Mortgage is not outstanding pursuant to
a
request for release of Documents;
5. Aforesaid
Mortgage Note and/or Assignment of Mortgage (the “Original”) has been
lost;
6. Deponent
has made or caused to be made a diligent search for the Original and has been
unable to find or recover same;
7. The
Seller was the Seller of the Original at the time of the loss; and
8. Deponent
agrees that, if said Original should ever come into Seller’s possession, custody
or power, Seller will immediately and without consideration surrender the
Original to the Purchaser.
9. Attached
hereto is a true and correct copy of (i) the Note, endorsed in blank by the
Mortgagee and (ii) the Mortgage or Deed of Trust (strike one) which secures
the
Note, which Mortgage or Deed of Trust is recorded in the county where the
property is located.
10. Deponent
hereby agrees that the Seller (a) shall indemnify and hold harmless the
Purchaser, its successors and assigns, against any loss, liability or damage,
including reasonable attorney’s fees, resulting from the unavailability of any
Notes, including but not limited to any loss, liability or damage arising from
(i) any false statement contained in this Affidavit, (ii) any claim of any
party
that purchased a mortgage loan evidenced by the Lost Note or any interest in
such mortgage loan, (iii) any claim of any borrower with respect to the
existence of terms of a mortgage loan evidenced by the Lost Note on the related
property to the fact that the mortgage loan is not evidenced by an original
note
and (iv) the issuance of a new instrument in lieu thereof (items (i) through
(iv) above hereinafter referred to as the “Losses”) and (b) if required by any
Rating Agency in connection with placing such Lost Note into a Pass-Through
Transfer, shall obtain a surety from an insurer acceptable to the applicable
Rating Agency to cover any Losses with respect to such Lost Note.
11. This
Affidavit is intended to be relied upon by the Purchaser, its successors and
assigns. Nomura Credit & Capital, Inc., represents and warrants that is has
the authority to perform its obligations under this Affidavit of Lost
Note.
Executed
this _ day of _______, 200_.
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
On
this
__ day of ______, 200_, before me appeared ______________________ to me
personally known, who being duly sworn did say that he is the
_______________________ of ____________________, a ______________________ and
that said Affidavit of Lost Note was signed and sealed on behalf of such
corporation and said acknowledged this instrument to be the free act and deed
of
said entity.
Signature:
[Seal]
