NOVASTAR MORTGAGE, INC. as Sponsor, NOVASTAR MORTGAGE FUNDING CORPORATION as Depositor, as Custodian and DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee MORTGAGE LOAN PURCHASE AGREEMENT Dated as of May 1, 2007 Fixed and Adjustable Rate Mortgage Loans...
Exhibit
10.1
NOVASTAR
MORTGAGE, INC. as Sponsor,
NOVASTAR
MORTGAGE FUNDING CORPORATION
as
Depositor,
U.S.
BANK
NATIONAL ASSOCIATION
as
Custodian
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY
as
Trustee
Dated
as
of May 1, 2007
Fixed
and
Adjustable Rate Mortgage Loans
NovaStar
Mortgage Funding Trust, Series 2007-2
NovaStar
Home Equity Loan Asset-Backed Certificate, Series 2007-2
THIS
MORTGAGE LOAN PURCHASE AGREEMENT (this “Purchase
Agreement”),
dated
as of May 1, 2007, is made among NovaStar Mortgage, Inc. (the “Sponsor”),
NovaStar Mortgage Funding Corporation (the “Depositor”),
U.S.
Bank National Association (the “Custodian”)
and
Deutsche Bank National Trust Company as trustee (the “Trustee”).
WITNESSETH
THAT:
WHEREAS,
pursuant to the terms of this Purchase Agreement, the Sponsor will sell the
Mortgage Loans and the related MI Policies to the Depositor on the Closing
Date;
WHEREAS,
pursuant to the terms of the Pooling and Servicing Agreement, the Depositor
will
transfer the Initial Mortgage Loans and the related MI Policies, and assign
all
of its rights under the Purchase Agreement, to the Trustee, without recourse,
on
the Closing Date;
WHEREAS,
pursuant to the terms of the Pooling and Servicing Agreement, the Trustee will
issue the Certificates;
WHEREAS,
pursuant to the terms of the Pooling and Servicing Agreement, the Trustee will
transfer the Certificates to the Depositor;
WHEREAS,
pursuant to the terms of the Underwriting Agreement, the Depositor will sell
the
Offered Certificates to the Underwriters; and
WHEREAS,
pursuant to the terms of the Pooling and Servicing Agreement, the Servicer
will
service the Mortgage Loans.
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
For
all
purposes of this Purchase Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Definitions
contained in Appendix A to the Pooling and Servicing Agreement, dated as of
May
1, 2007, among the Custodian, the Trustee, the Depositor and NovaStar Mortgage,
Inc. as sponsor and servicer (the “Servicer”)
which
is incorporated by reference herein. All other capitalized terms used herein
shall have the meanings specified herein.
ARTICLE
II
SALE
OF MORTGAGE LOANS AND RELATED PROVISIONS
Section
2.01 Sale
of Initial Mortgage Loans and MI Policies.
(a) The
Sponsor hereby sells, and the Depositor hereby purchases on the Closing Date
the
Initial Mortgage Loans identified (and the related MI Policies) on the Mortgage
Loan Schedule annexed hereto as Exhibit 1, the proceeds thereof and all rights
under the Related Documents (including the related Mortgage Files). The Mortgage
Loans consist of a group of conventional, residential first and second lien
mortgage loans with fixed and adjustable interest rates (the “Group I Mortgage
Loans”) and a group of conventional, residential first and second lien mortgage
loans with fixed and adjustable interest rates (the “Group II Mortgage Loans”).
The Mortgage Loans will have a Principal Balance as of the close of business
on
the Cut-off Date, after giving effect to any payments due on or before such
date
whether or not received, of approximately $1,179,863,820. The sale of the
Initial Mortgage Loans will take place on the Closing Date, subject to and
simultaneously with the deposit of the Initial Mortgage Loans and the Original
Pre-Funded Amount and the Interest Coverage Amount into the Trust Fund, the
authentication of the Certificates by the Trustee and the sale of the
Underwritten Certificates pursuant to the Underwriting Agreement. The purchase
price (the “Purchase
Price”)
for
the Initial Mortgage Loans to be paid by the Depositor to the Sponsor on the
Closing Date shall consist of the following:
1
(i)
a
payment in an amount equal to $1,332,065,308 representing the net proceeds
of
the sale of the Underwritten Certificates, which payment shall be paid to the
Sponsor by wire transfer in immediately available funds on the Closing Date
by
or on behalf of the Depositor, or as otherwise agreed by the Depositor;
and
(ii)
the
Class C Certificates (including the net value represented by the Class I
Certificates) and the Residual Certificates.
(b) [Reserved]
(c) In
connection with such conveyances by the Sponsor, the Sponsor shall on behalf
of
and at the direction of the Depositor deliver to, and deposit with the Custodian
on behalf of the Trustee, on or before the Closing Date in the case of an
Initial Mortgage Loan and four Business Days prior to the related Subsequent
Transfer Date in the case of a Subsequent Mortgage Loan, the following documents
or instruments with respect to each Mortgage Loan (the “Mortgage
File”):
(i)
the
original Mortgage Note endorsed to “Deutsche Bank National Trust Company, as
Trustee of the NovaStar Mortgage Funding Trust, Series 2007-2, relating to
the
NovaStar Home Equity Loan Asset-Backed Certificates, Series
2007-2”;
(ii)
the
original Mortgage with evidence of recording thereon, or, if the original
Mortgage has not yet been returned from the public recording office, a copy
of
the original Mortgage certified by the Sponsor or the public recording office
in
which such original Mortgage has been recorded and if the Mortgage Loan is
registered on the MERS System, such Mortgage shall include thereon a statement
that it is a MOM Loan and shall include the MIN for such Mortgage
Loan;
(iii)
unless the Mortgage Loan is registered on the MERS System, an original
assignment (which may be included in one or more blanket assignments if
permitted by applicable law) of the Mortgage endorsed to “Deutsche Bank National
Trust Company, as Trustee of the NovaStar Mortgage Funding Trust, Series 2007-2,
relating to the NovaStar Home Equity Loan Asset-Backed Certificates, Series
2007-2,” and otherwise in recordable form;
2
(iv)
originals of any intervening assignments of the Mortgage showing an unbroken
chain of title from the originator thereof to the Person assigning it to the
Trustee (or to MERS, if the Mortgage Loan is registered on the MERS System,
and
noting the presence of a MIN, if the Mortgage Loan is registered on the MERS
System), with evidence of recording thereon, or, if the original of any such
intervening assignment has not yet been returned from the public recording
office, a copy of such original intervening assignment certified by the Sponsor
or the public recording office in which such original intervening assignment
has
been recorded;
(v)
the
original policy of title insurance (or a commitment for title insurance, if
the
policy is being held by the title insurance company pending recordation of
the
Mortgage);
(vi)
true
and correct copy of each assumption, modification, consolidation or substitution
agreement, if any, relating to the Mortgage Loan; and
(vii)
an
executed copy of the notice of assignment and acknowledgement of assignment
with
respect to the Mortgage Loans covered by the MI Policies.
If
a
defect in any Mortgage File is discovered which may materially and adversely
affect the value of the related Mortgage Loan, or the interests of the Trustee
(as pledgee of the Mortgage Loans), or the Certificateholders in such Mortgage
Loan, including if any document required to be delivered to the Custodian has
not been delivered (provided that a Mortgage File will not be deemed to contain
a defect for an unrecorded assignment under clause (i) above for 180 days
following submission of the assignment if the Sponsor has submitted such
assignment for recording pursuant to the terms of the following paragraph),
the
Sponsor shall cure such defect, repurchase the related Mortgage Loan at the
Repurchase Price or substitute an Eligible Substitute Mortgage Loan for the
related Mortgage Loan upon the same terms and conditions set forth in Section
3.01 hereof as to the Initial Mortgage Loans and the Subsequent Mortgage Loans
and Section 2.02(c) hereof as to the Subsequent Mortgage Loans for breaches
of
representations and warranties.
Promptly
after the Closing Date in the case of an Initial Mortgage Loan, or, in the
case
of a Subsequent Mortgage Loan, promptly after the related Subsequent Transfer
Date (or after the date of transfer of any Eligible Substitute Mortgage Loan),
the Sponsor at its own expense shall complete and submit for recording in the
appropriate public office for real property records each of the assignments
referred to in clause (iii) above, with such assignment completed in favor
of
the Trustee, excluding any Mortgage Loan that is registered on the MERS System
if MERS is identified on the Mortgage or on a properly recorded assignment
of
Mortgage as the mortgagee of record. While such assignment to be recorded is
being recorded, the Custodian shall retain a photocopy of such assignment.
If
any assignment is lost or returned unrecorded to the Custodian because of any
defect therein, the Sponsor is required to prepare a substitute assignment
or
cure such defect, as the case may be, and the Sponsor shall cause such
substitute assignment to be recorded in accordance with this
paragraph.
3
In
instances where an original Mortgage or any original intervening assignment
of
Mortgage is not, in accordance with clause (ii) or (iv) above, delivered by
the
Sponsor to the Custodian, on behalf of the Trustee, prior to or on the Closing
Date in the case of an Initial Mortgage Loan or, in the case of a Subsequent
Mortgage Loan, prior to or on the related Subsequent Transfer Date, the Sponsor
will deliver or cause to be delivered the originals of such documents to the
Custodian, on behalf of the Trustee, promptly upon receipt thereof.
In
connection with the assignment of any Initial Mortgage Loan registered on the
MERS System, promptly after the Closing Date, the Sponsor further agrees that
it
will cause, at the Sponsor’s own expense, the MERS System to indicate that such
Initial Mortgage Loan has been assigned by the Sponsor to the Trustee in
accordance with this Agreement for the benefit of the Certificateholders by
including in such computer files (a) the applicable Trustee code in the field
“Trustee” which identifies the Trustee and (b) the code “NovaStar 2007-2” (or
its equivalent) in the field “Pool” which identifies the series of the
Certificates issued in connection with such Mortgage Loans. The Custodian will
certify in its final certification that the MERS System shows the Trustee on
behalf of the Certificateholders as the beneficial owner of the Mortgage Loans
registered on the MERS System.
Effective
on the Closing Date, the Depositor hereby acknowledges its acceptance of all
right, title and interest to the Initial Mortgage Loans and other property,
existing on the Closing Date and thereafter created and conveyed to it pursuant
to this Section 2.01.
The
Trustee, as assignee or transferee of the Depositor, shall be entitled to all
scheduled principal payments 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 Initial Mortgage Loans. No scheduled payments of principal due on or
before the Cut-off Date and collected after the Cut-off Date shall belong to
the
Depositor pursuant to the terms of this Purchase Agreement. The Pooling and
Servicing Agreement shall provide that any late payment charges collected in
connection with a Mortgage Loan shall be paid to the Servicer as provided
therein.
(d) The
parties hereto intend that the transactions set forth herein constitute a sale
by the Sponsor to the Depositor on the Closing Date of all the Sponsor’s right,
title and interest in and to the Initial Mortgage Loans and other property
as
and to the extent described above. In the event the transactions set forth
herein shall be deemed not to be a sale, the Sponsor hereby grants to the
Depositor as of the Closing Date a security interest in all of the Sponsor’s
right, title and interest in, to and under the Initial Mortgage Loans and such
other property, to secure all of the Sponsor’s obligations hereunder and this
Purchase Agreement shall constitute a security agreement under applicable law
and in such event, the parties hereto acknowledge that the Custodian, in
addition to holding the Initial Mortgage Loans on behalf of the Trustee for
the
benefit of the Certificateholders, holds the Initial Mortgage Loans as designee
of the Depositor. The Sponsor agrees to take or cause to be taken such actions
and to execute such documents, including without limitation the filing of all
necessary UCC-1 financing statements filed in the Commonwealth of Virginia
(which shall have been submitted for filing as of the Closing Date and each
Subsequent Transfer Date, as applicable), any continuation statements with
respect thereto and any amendments thereto required to reflect a change in
the
name or corporate structure of the Sponsor, as are necessary to perfect and
protect the interests of the Depositor and their respective assignees in each
Initial Mortgage Loan and the proceeds thereof and the interests of the Trustee
and its assignees in each Subsequent Mortgage Loan and the proceeds thereof.
The
Depositor agrees to take or cause to be taken such actions and to execute such
documents, including without limitation the filing of all necessary UCC-1
financing statements, and continuation statements with respect thereto and
any
amendments thereto as are necessary to perfect and protect the interests of
the
Trustee and its assignees in each Initial Mortgage Loan.
4
The
parties hereto understand and agree that it is not intended that any Mortgage
Loan be included in the Trust Fund that is a “High-Cost Home Loan” as defined in
the New Jersey Home Ownership Act, effective as of November 27, 2003, the Home
Loan Protection Act of New Mexico, effective as of January 1, 2004, the
Massachusetts Predatory Home Loan Practices Act, effective as of November 7,
2004, or the Indiana Home Loan Practices Act effective January 1st,
2005.
Section
2.02 Conveyance
of the Subsequent Mortgage Loans.
(a) Subject
to the conditions set forth in paragraph (b) below in consideration of the
Trustee’s delivery on the related Subsequent Transfer Dates of all or a portion
of the balance of funds in the Pre-Funding Account, the Sponsor shall on any
Subsequent Transfer Date sell, transfer, assign, set over and convey, without
recourse, to the Depositor, who shall then sell, transfer, assign, set over
and
convey, without recourse, to the Trustee, but subject to the other terms and
provisions of this Purchase Agreement and the Pooling and Servicing Agreement,
all of the right, title and interest of the Sponsor in and to (i) the Subsequent
Mortgage Loans (and the related MI Policies) identified on the related Mortgage
Loan Schedule attached to the related Subsequent Transfer Instrument delivered
by the Sponsor on such Subsequent Transfer Date, (ii) principal due and interest
accruing on the Subsequent Mortgage Loans after the related Subsequent Cut-off
Date and (i) with respect to such Subsequent Mortgage Loans all items to be
delivered pursuant to Section 2.01(c) above and the other items in the related
Mortgage Files; provided, however, that the Sponsor reserves and retains all
right, title and interest in and to principal received and interest accruing
on
the Subsequent Mortgage Loans prior to the related Subsequent Cut-off Date.
The
transfer by the Sponsor to the Depositor, and by the Depositor to the Trustee,
of the Subsequent Mortgage Loans identified on each Mortgage Loan Schedule
attached to the related Subsequent Transfer Instrument and the related MI
Policies shall be absolute and is intended by the Trustee, the Depositor and
the
Sponsor to constitute and to be treated as a sale of the Subsequent Mortgage
Loans by the Sponsor to the Depositor, and a sale of the Subsequent Mortgage
Loans by the Depositor to the Trustee.
The
Subsequent Mortgage Loans presented for purchase will be designated as either
Group I or Group II. Of the Original Pre-Funded Amount of $220,136,180, a
maximum of $184,260,754 will be used to acquire Subsequent Mortgage Loans for
inclusion in Group I and a maximum of $35,875,426 will be used to acquire
Subsequent Mortgage Loans for inclusion in Group II, subject to the satisfaction
of the conditions set forth herein.
In
the
event such transactions shall be deemed not to be a sale, the Sponsor hereby
grants to the Depositor as of each Subsequent Transfer Date a security interest
in all of the Sponsor’s right, title and interest in, to and under the related
Subsequent Mortgage Loans and such other property, to secure all of the
Sponsor’s obligations hereunder, and this Purchase Agreement shall constitute a
security agreement under applicable law, and in such event, the parties hereto
acknowledge that the Custodian, in addition to holding the Subsequent Mortgage
Loans and the related MI Policies on behalf of the Trustee for the benefit
of
the Certificateholders, holds the Subsequent Mortgage Loans and the related
MI
Policies as designee of the Depositor. The Sponsor agrees to take or cause
to be
taken such actions and to execute such documents, including without limitation
the filing of all necessary UCC-1 financing statements filed in the Commonwealth
of Virginia (which shall be submitted for filing as of the related Subsequent
Transfer Date), any continuation statements with respect thereto and any
amendments thereto required to reflect a change in the name or corporate
structure of the Sponsor or the filing of any additional UCC-1 financing
statements due to a change in the state of incorporation of the Sponsor as
are
necessary to perfect and protect the interests of the Depositor and its
assignees in the Subsequent Mortgage Loans.
5
In
the
event such transactions shall be deemed not to be a sale, the Depositor hereby
grants to the Trustee as of each Subsequent Transfer Date a security interest
in
all of the Depositor’s right, title and interest in, to and under the related
Subsequent Mortgage Loans and such other property, to secure all of the
Depositor’s obligations hereunder, and this Purchase Agreement shall constitute
a security agreement under applicable law, and in such event, the parties hereto
acknowledge that the Custodian, in addition to holding the Subsequent Mortgage
Loans and the related MI Policies on behalf of the Trustee for the benefit
of
the Certificateholders, holds the Subsequent Mortgage Loans and the related
MI
Policies as designee of the Trustee. The Depositor agrees to take or cause
to be
taken such actions and to execute such documents, including without limitation,
the filing of all necessary UCC-1 financing statements filed in the State of
Delaware (which shall be submitted for filing as of the related Subsequent
Transfer Date), any continuation statements with respect thereto and any
amendments thereto required to reflect a change in the name or corporate
structure of the Depositor or the filing of any additional UCC-1 financing
statements due to a change in the state of incorporation of the Depositor as
are
necessary to perfect and protect the interests of the Trustee and its assignees
in Subsequent Mortgage Loans.
The
related Mortgage File for each Subsequent Mortgage Loan shall be delivered
to
the Custodian, on behalf of the Trustee, prior to the related Subsequent
Transfer Date.
The
Trustee on each Subsequent Transfer Date shall acknowledge by signing receipt
thereof in the form of Exhibit 2(A), its acceptance of all right, title and
interest to the related Subsequent Mortgage Loans and other property, existing
on the Subsequent Transfer Date and thereafter created, conveyed to it pursuant
to this Section 2.02.
The
Trustee, as trustee of the Trust Fund, shall be entitled to all scheduled
principal payments due after each Subsequent Cut-off Date, all other payments
of
principal due and collected after each related Subsequent Cut-off Date, and
all
payments of interest on the Subsequent Mortgage Loans, minus that portion of
any
such payment which is allocable to the period prior to the related Subsequent
Cut-off Date. No scheduled payments of principal due on or before the related
Subsequent Cut-off Date and collected after the related Subsequent Cut-off
Date
shall belong to the Trust Fund pursuant to the terms of this Purchase
Agreement.
6
The
purchase price distributed by the Trustee solely from the funds in the
Pre-Funding Account, at the direction of the Servicer, shall be one-hundred
percent (100%) of the aggregate Principal Balance of the Subsequent Mortgage
Loans so transferred (as identified on the Mortgage Loan Schedule attached
to
the related Subsequent Transfer Instrument provided by the
Sponsor).
(b) The
Sponsor shall transfer to the Depositor, who shall transfer to the Trustee,
the
Subsequent Mortgage Loans and the other property and rights related thereto
described in Section 2.02(a) above, and the Trustee shall cause to be released
funds from the related Pre-Funding Account, only upon the satisfaction of each
of the following conditions on or prior to the related Subsequent Transfer
Date:
(i)
the
Sponsor shall have provided the Depositor, and the Depositor shall have provided
the Trustee and the Custodian, with a timely Addition Notice, which notice
shall
be given no fewer than four Business Days prior to the related Subsequent
Transfer Date and shall designate the Subsequent Mortgage Loans to be sold
to
the Depositor and then to the Trustee and the aggregate Principal Balances
of
such Subsequent Mortgage Loans as of the related Subsequent Cut-off Date and
any
other information reasonably requested by the Trustee or the Custodian with
respect to the Subsequent Mortgage Loans;
(ii)
the
Sponsor shall have executed, and the Depositor shall have executed and delivered
to the Trustee and the Custodian for execution, a Subsequent Transfer Instrument
substantially in the form of Exhibit 2(A) or 2(B), as applicable. Such
Subsequent Transfer Instrument shall include a representation by the Depositor
confirming the satisfaction of each condition precedent and representations
specified in this Section 2.02(b), Section 2.02(c) and in the related Subsequent
Transfer Instrument (upon which representations neither the Trustee nor the
Custodian shall have any liability in relying). Such Subsequent Transfer
Instrument shall also include a Mortgage Loan Schedule attached thereto listing
the Subsequent Mortgage Loans;
(iii)
as
of each Subsequent Transfer Date, as evidenced by delivery of the Sponsor’s
Subsequent Transfer Instrument in the form of Exhibit 2(A) and the Depositor’s
Subsequent Transfer Instrument is the form of Exhibit 2(B), neither the Sponsor
nor the Depositor shall be insolvent or have been made insolvent by such
transfers, nor shall they be aware of any pending insolvency;
(iv)
such
sale and transfer (i) does not cause any REMIC created under the Pooling and
Servicing Agreement to fail to qualify as a REMIC and (ii) is not a prohibited
transaction within the meaning of Section 860F(a)(2) of the Code or a
contribution resulting in a tax under Section 860G(d) of the Code, both as
evidenced by an Opinion of Counsel provided for the Trustee at the expense
of
the Sponsor;
(v)
the
Pre-Funding Period shall not have terminated; and
(vi)
the
Sponsor shall have delivered to the Custodian, the Trustee, and the Rating
Agencies Opinions of Counsel addressed to the Rating Agencies, the Trustee
and
the Custodian with respect to the transfers of the Subsequent Mortgage Loans
substantially in the form of the Opinion of Counsel delivered to the Custodian,
the Trustee and the Rating Agencies on the Closing Date (1) regarding certain
corporate matters and (2) confirming the existence of a true sale which may
be
contained in such opinion delivered on the Closing Date.
7
The
obligation of the Trustee to distribute funds from the Pre-Funding Account
for
the purchase of a Subsequent Mortgage Loan on any Subsequent Transfer Date
is
subject to the following conditions: (1) each such Subsequent Mortgage Loan
shall satisfy the representations and warranties specified in the related
Subsequent Transfer Instrument and this Purchase Agreement; (2) the Sponsor
shall not select such Subsequent Mortgage Loans in a manner that it reasonably
believes is adverse to the interests of the Majority Certificateholders; (3)
the
Sponsor shall have delivered certain Opinions of Counsel required pursuant
to
Section 2.02(b)(iv) and (vi) hereof; (4) as of the related Subsequent Cut-off
Date, the Subsequent Mortgage Loans shall satisfy the following criteria: (i)
each Subsequent Mortgage Loan shall not be 60 or more days contractually
delinquent as of the related Subsequent Cut-off Date; (ii) the remaining stated
term to maturity of each Subsequent Mortgage Loan shall not exceed 360 months;
(iii) no less than approximately 95.00% of the Subsequent Mortgage Loans are
secured by first liens on the related Mortgaged Property; (iv) each Subsequent
Mortgage Loan shall have an outstanding Principal Balance of at least $10,000;
(v) each Subsequent Mortgage Loan shall be underwritten in accordance with
the
Underwriting Guidelines or shall have been underwritten in accordance with
the
underwriting guidelines in place at the time of such Subsequent Mortgage Loan’s
origination; (vi) each Subsequent Mortgage Loan shall have a Loan-to-Value
Ratio
or a combined Loan-to-Value Ratio of no more than 100%; (vii) each Subsequent
Mortgage Loan shall have a stated maturity of no later than September 1, 2037;
(viii) no Subsequent Mortgage Loan shall permit negative amortization; (ix)
each
Subsequent Mortgage Loan shall have a Mortgage Rate of at least 4.00%; (x)
a
minimum of 55% of the Subsequent Mortgage Loans (by Subsequent Cut-off Date
Principal Balance) shall have an adjustable Mortgage Rate; (xi) the weighted
average Loan-to-Value Ratio of the Subsequent Mortgage Loans (by Subsequent
Cut-off Date Principal Balance) shall be no more than 81.25%; (xii) no less
than
5% of the Subsequent Mortgage Loans shall either (A) have a Loan-to Value Ratio
of no more than 60% or (B) have a Loan-to-Value Ratio of greater than 60% and
be
covered by an MI Policy which will insure losses to the extent that the
uninsured exposure of the related Subsequent Mortgage Loan is reduced to an
amount equal to 55%, 50% or 51% of the lesser of the appraised value or purchase
price, as the case may be, of the related Mortgaged Property, in each case,
at
the time of the effective date of the MI Policy; (xiii) the Subsequent Mortgage
Loans (by Subsequent Cut-off Date Principal Balance) shall have a weighted
average coupon of at least 8.95%; (xiv) pursuant to the Underwriting Guidelines,
no fewer than 50% of the Subsequent Mortgage Loans (by Subsequent Cut-off Date
Principal Balance) shall be ALT-A and M1 credit risks, no more than 30% of
the
Subsequent Mortgage Loans (by Subsequent Cut-off Date Principal Balance) shall
be M2 credit risks, and no more than 15% of the Subsequent Mortgage Loans (by
Subsequent Cut-off Date Principal Balance) shall be M3 and M4 credit risks;
(xv)
the Subsequent Mortgage Loans (by Subsequent Cut-off Date Principal Balance)
shall have a weighted average FICO score issued by a consumer credit rating
agency of at least 605; (xvi) at least 85% of such Subsequent Mortgage Loans
(by
Subsequent Cut-off Date Principal Balance) shall be loans for primary
residences; (xvii) no more than 60% of the Subsequent Mortgage Loans (by
Subsequent Cut-off Date Principal Balance) shall have stated loan documentation,
and no more than 15% of the Subsequent Mortgage Loans (by Subsequent Cut-off
Date Principal Balance shall have no loan documentation; (xviii) at least 60%
of
the Subsequent Mortgage Loans (by Subsequent Cut-off Date Principal Balance)
shall be loans for single family residences; (xix) no more than 85% of the
Subsequent Mortgage Loans (by Subsequent Cut-off Date Principal Balance) shall
be loans that are the subject of cash-out refinances; (xx) the Rating Agencies
shall have confirmed either in writing or verbally to the transfer of the
Subsequent Mortgage Loans; and (xxi) at least 30% of the Subsequent Mortgage
Loans shall have prepayment penalties.
8
The
sale
by the Depositor of the Subsequent Mortgage Loans is subject to the Sponsor
receiving a written or verbal confirmation from each of the Rating Agencies
that
states that the addition of such Subsequent Mortgage Loans will not cause the
Rating Agencies to downgrade any of their ratings on the Offered
Certificates.
Notwithstanding
the foregoing, Subsequent Mortgage Loans with characteristics varying from
those
set forth above may be purchased funds from the Pre-Funding Account on a
Subsequent Transfer Date, if (i) the Trustee is provided with written
confirmation that the aggregate credit risk of such Subsequent Mortgage Loans
is
similar to that of the Initial Mortgage Loans and (ii) the Sponsor receives
and
provides to the Trustee a written confirmation from each of the Rating Agencies
that states that the addition of such Subsequent Mortgage Loans will not cause
the Rating Agencies to downgrade any of their ratings of the Offered
Certificates.
(c) Within
five Business Days after the end of the Pre-Funding Period, the Sponsor shall
deliver to the Rating Agencies, the Trustee and the Custodian a copy of the
updated Mortgage Loan Schedule including the Subsequent Mortgage Loans in
electronic format.
Section
2.03 Pre-Funding
Account.
(a) No
later
than the Closing Date, the Trustee will establish and maintain the Pre-Funding
Account pursuant to the Pooling and Servicing Agreement. On the Closing Date,
the Sponsor will deposit in the Pre-Funding Account the Original Pre-Funded
Amount from the net proceeds of the sale of the Offered
Certificates.
Section
2.04 Interest
Coverage Account
(a) The
Trustee will establish and maintain, pursuant to the Pooling and Servicing
Agreement the Interest Coverage Account. On the Closing Date, the Sponsor will
deposit in the Interest Coverage Account the Interest Coverage Amount from
the
net proceeds of the sale of the Underwritten Certificates.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES;
REMEDIES
FOR BREACH
Section
3.01 Sponsor
Representations and Warranties.
The
Sponsor hereby represents and warrants to the Depositor and the Trustee as
of
the date hereof and as of the Closing Date (or if otherwise specified below,
as
of the date so specified) and as of each Subsequent Transfer Date:
9
(a) As
to the
Sponsor:
(i)
The
Sponsor (i) is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Virginia and (ii) is qualified
and in good standing as a foreign corporation to do business in each
jurisdiction where such qualification is necessary, except where the failure
to
so qualify would not have a material adverse effect on the Sponsor’s ability to
enter into this Purchase Agreement and each Sponsor's Subsequent Transfer
Instrument and to consummate the transactions contemplated hereby;
(ii)
The
Sponsor has the power and authority to make, execute, deliver and perform its
obligations under this Purchase Agreement and each Sponsor's Subsequent Transfer
Instrument and all of the transactions contemplated under this Purchase
Agreement and each Sponsor's Subsequent Transfer Instrument, and has taken
all
necessary corporate action to authorize the execution, delivery and performance
of this Purchase Agreement and each Sponsor's Subsequent Transfer
Instrument;
(iii)
The
Sponsor is not required to obtain the consent of any other Person or any
consent, approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this Purchase Agreement
or
any Sponsor's Subsequent Transfer Instrument except for such consents, approvals
or authorization, or registration or declaration, as shall have been obtained
or
filed, as the case may be;
(iv)
The
execution and delivery of this Purchase Agreement and each Sponsor's Subsequent
Transfer Instrument and the performance of the transactions contemplated hereby
by the Sponsor will not violate any provision of any existing law or regulation
or any order or decree of any court applicable to the Sponsor or any provision
of the certificate of incorporation or bylaws of the Sponsor, or constitute
a
material breach of any mortgage, indenture, contract or other agreement to
which
the Sponsor is a party or by which the Sponsor may be bound;
(v)
No
litigation or administrative proceeding of or before any court, tribunal or
governmental body is currently pending, or to the knowledge of the Sponsor
threatened, against the Sponsor or any of its properties or with respect to
this
Purchase Agreement or any Sponsor's Subsequent Transfer Instrument, the
Certificates which in the opinion of the Sponsor has a reasonable likelihood
of
resulting in a material adverse effect on the transactions contemplated by
this
Purchase Agreement or any Sponsor's Subsequent Transfer Instrument;
(vi)
This
Purchase Agreement and each Sponsor's Subsequent Transfer Instrument constitute
the legal, valid and binding obligations of the Sponsor, enforceable against
the
Sponsor in accordance with its terms, except as enforceability may be limited
by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors’ rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in
equity);
10
(vii)
This Purchase Agreement constitutes a valid transfer and assignment to the
Depositor of all right, title and interest of the Sponsor in and to the Cut-off
Date Principal Balance of the Initial Mortgage Loans, all monies due or to
become due with respect thereto, and all proceeds of such Cut-off Date Principal
Balance of the Initial Mortgage Loans, and this Purchase Agreement and the
Sponsor's Subsequent Transfer Instrument constitutes a valid transfer and
assignment to the Trustee of all right, title and interest of the Sponsor in
and
to the Subsequent Cut-off Date Principal Balance of the Subsequent Mortgage
Loans, all monies due or to become due with respect thereto, and all proceeds
of
such Subsequent Cut-off Date Principal Balance of the Subsequent Mortgage
Loans;
(viii)
The Sponsor is not in default with respect to any order or decree of any court
or any order or regulation of any federal, state or governmental agency, which
default might have consequences that would materially and adversely affect
the
condition (financial or other) or operations of the Sponsor or its properties
or
might have consequences that would materially adversely affect its performance
hereunder; and
(ix)
The
Servicer or any Subservicer who will be servicing any Mortgage Loan pursuant
to
the Pooling and Servicing Agreement or a Subservicing Agreement is qualified
to
do business in all jurisdictions in which its activities as Servicer or
Subservicer of the Mortgage Loans serviced by it require such qualifications
except where failure to be so qualified will not have a material adverse effect
on such servicing activities.
(b) As
to
each Initial Mortgage Loan as of the Closing Date and with respect to each
Subsequent Mortgage Loan as of the Subsequent Transfer Date, except as otherwise
expressly stated:
(i)
The
information set forth on the Mortgage Loan Schedule with respect to each Initial
Mortgage Loan is true and correct in all material respects as of the Closing
Date, and with respect to each Subsequent Mortgage Loan is true and correct
in
all material respects as of the related Subsequent Transfer Date, and the
information regarding the Initial Mortgage Loans and the Subsequent Mortgage
Loans on the computer diskette or tape delivered to the Trustee prior to the
Closing Date or related Subsequent Transfer Date, as applicable, is true and
accurate in all material respects and describes the same Mortgage Loans as
the
Mortgage Loans on the Mortgage Loan Schedule;
(ii)
The
Mortgage Loans are not being transferred with any intent to hinder, delay or
defraud any creditors;
11
(iii)
No
more than 3.60% and 6.44% of the Initial Mortgage Loans in Group I and the
Initial Mortgage Loans in Group II, respectively, (by Cut-off Date Principal
Balance) were secured by condominium units; and no more than 11.49% and 22.65%
of the Initial Mortgage Loans in Group I and the Initial Mortgage Loans in
Group
II, respectively, (by Cut-off Date Principal Balance) were secured by properties
in planned unit developments;
(iv)
As
of the Cut-off Date, the remaining term of each Group I Initial Mortgage Loan
is
not more than 360 months and not less than 113 months and the remaining term
of
each Group II Initial Mortgage Loan is not more than 360 months and not less
than 53 months;
(v)
No
more than 88.55% and 39.33% of the Initial Mortgage Loans in Group I and Initial
Mortgage Loans in Group II, respectively, (by Cut-off Date Principal Balance)
have been the subject of cash-out refinances;
(vi)
No
more than 6.55% and 2.08% of the Initial Mortgage Loans in Group I and Initial
Mortgage Loans in Group II, respectively, (by Cut-off Date Principal Balance),
have been the subject of rate and term (no cash-out) refinances;
(vii)
No
fewer than 4.9% and 58.59% of the Initial Mortgage Loans in Group I and Initial
Mortgage Loans in Group II, respectively, (by Cut-off Date Principal Balance)
are purchase money loans;
(viii)
No
more than 6.12% and 17.69% of the Initial Mortgage Loans in Group I and Initial
Mortgage Loans in Group II, respectively, (by Cut-off Date Principal Balance)
are secured by Mortgaged Properties located in the State of California; no
more
than 19.89% and 25.26% of the Initial Mortgage Loans in Group I and Initial
Mortgage Loans in Group II, respectively, (by Cut-off Date Principal Balance)
are secured by Mortgaged Properties located in the State of Florida; no more
than 5.01% and 3.25% of the Initial Mortgage Loans in Group I and Initial
Mortgage Loans in Group II (by Cut-off Date Principal Balance) are secured
by
Mortgaged Properties located in the State of Virginia; no more than 3.70% and
2.91% of the Initial Mortgage Loans in Group I and Initial Mortgage Loans in
Group II (by Cut-off Date Principal Balance) are secured by Mortgaged Properties
located in the State of New Jersey; no more than 5.02% and 4.32% of the Initial
Mortgage Loans in Group I and Initial Mortgage Loans in Group II (by Cut-off
Date Principal Balance) are secured by Mortgaged Properties located in the
State
of Maryland; no more than 2.59% and 2.75% of the Initial Mortgage Loans in
Group
I and Initial Mortgage Loans in Group II (by Cut-off Date Principal Balance)
are
secured by Mortgaged Properties located in the State of New York; no more than
4.88% and 4.63% of the Initial Mortgage Loans in Group I and Initial Mortgage
Loans in Group II, respectively, (by Cut-off Date Principal Balance) are located
in any other state;
(ix)
The
outstanding Principal Balances of the Initial Mortgage Loans in Group I (by
Cut-off Date Principal Balance) ranged from $858 to $603,250, the average
outstanding Principal Balance of the Initial Mortgage Loans in Group I is
approximately $143,012; the outstanding Principal Balances of the Initial
Mortgage Loans in Group II (by Cut-off Date Principal Balance) ranged from
$11,021 to $1,200,000, the average outstanding Principal Balance of the Mortgage
Loans in Group II is approximately $214,170;
12
(x)
Approximately 98.36% and 94.64% of the Initial Mortgage Loans in Group I and
Initial Mortgage Loans in Group II, respectively, (by Cut-off Date Principal
Balance) were secured by a first lien on a parcel of real property improved
by a
detached single family residence; no more than 4.61% and 2.56% of the Initial
Mortgage Loans in Group I and Initial Mortgage Loans in Group II, respectively,
(by Cut-off Date Principal Balance) were secured by a first lien on a parcel
of
real estate improved by a multi-unit residence;
(xi)
All
points and fees related to each Mortgage Loan were disclosed in writing to
the
borrower in accordance with applicable state and federal law and the borrower
has executed a statement to that effect. No borrower was charged “points and
fees” (whether or not financed) in an amount greater than 5% of the principal
amount of any such loan originated by the Sponsor, such 5% limitation calculated
in accordance with the Lender Letter. All fees and charges (including finance
charges) and whether or not financed, assessed, collected or to be collected
with the origination and servicing of each Mortgage Loan has been disclosed
in
writing to the borrower in accordance with applicable state and federal law
and
regulation;
(xii)
The
Mortgage Rates borne by the adjustable rate Mortgage Loans in Group I as of
the
Closing Date range from 5.100% per annum to 12.650% per annum, and the weighted
average Mortgage Rate (by Cut-off Date Principal Balance) of the adjustable
rate
Initial Mortgage Loans in Group I was 9.214% per annum; the Mortgage Rates
borne
by fixed rate Initial Mortgage Loans in Group I as of the Closing Date range
from 5.250% per annum to 13.875% per annum, and the weighted average Mortgage
Rate (by Cut-off Date Principal Balance) of the fixed rate Initial Mortgage
Loans in Group I was 8.861% per annum; the Mortgage Rates borne by adjustable
rate Initial Mortgage Loans in Group II as of the Closing Date range from 5.875%
per annum to 12.650% per annum, and the weighted average Mortgage Rate (by
Cut-off Date Principal Balance) of the adjustable rate Initial Mortgage Loans
in
Group III was 9.095% per annum; the Mortgage Rates borne by fixed rate Initial
Mortgage Loans in Group II as of the Closing Date range from 5.400% per annum
to
14.200% per annum, and the weighted average Mortgage Rate (by Cut-off Date
Principal Balance) of the fixed rate Initial Mortgage Loans in Group II was
9.728% per annum;
(xiii)
Approximately 46.68% and 54.26% of the Initial Mortgage Loans in Group I and
the
Initial Mortgage Loans in Group II, respectively, (by Cut-off Date Principal
Balance) have a Loan-to-Value Ratio in excess of 80%; no Group I Mortgage Loan
or Group II Mortgage Loan in the Mortgage Pool had a Loan-to-Value Ratio or
combined Loan-to-Value Ratio at origination in excess of 100%; and the weighted
average Loan-to-Value Ratio (by Cut-off Date Principal Balance) of the Initial
Mortgage Loans in Group I and the Initial Mortgage Loans in Group II was equal
to 79.17% and 84.53%, respectively (by Cut-off Date Principal Balance). For
any
Group I Mortgage Loan or Group II Mortgage Loan in the Mortgage Pool, if such
loan has had a material modification since origination, the Loan-to-Value Ratio
as of such modification does not exceed 100%, and any Initial Mortgage Loan
seasoned more than 12 months does not have a Loan-to-Value Ratio in excess
of
100% as of the Cut-Off Date;
13
(xiv)
Approximately 98.36% and 94.64% of the Initial Mortgage Loans in Group I and
the
Initial Mortgage Loans in Group II, respectively (by Cut-off Date Principal
Balance), are secured by first liens on the related Mortgaged Property; and
approximately 1.64% and 5.36% (by Cut-off Date Principal Balance) of the Initial
Mortgage Loans in Group I and the Initial Mortgage Loans in Group II are secured
by second liens on the related Mortgaged Property;
(xv)
As
of the Cut-off Date, the weighted average Loan-to-Value Ratio of the Initial
Mortgage Loans secured by first liens in Group I is approximately 78.94%; the
weighted average combined Loan-to-Value Ratio of the Initial Mortgage Loans
secured by first and second liens in Group I is approximately 79.87%; the
weighted average Loan-to-Value Ratio of the Initial Mortgage Loans secured
by
first liens in Group II is approximately 83.70%; the weighted average combined
Loan-to-Value Ratio of the Initial Mortgage Loans secured by first and second
liens in Group II is approximately 88.75%; the weighted average combined
Loan-to-Value Ratio of all of the Initial Mortgage Loans in Group I and Group
II
is approximately 82.45%; and the gross weighted average coupon of the Initial
Mortgage Loans is approximately 9.044%;
(xvi)
There is no valid offset, right of rescission, defense, claim or counterclaim
of
any obligor under any Mortgage Note or Mortgage, including the obligation of
the
Mortgagor to pay the unpaid principal of or interest on such Mortgage Note,
and
any applicable right of rescission has expired, nor will the operation of any
of
the terms of such Mortgage Note or 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 right of rescission, set-off, recoupment,
counterclaim or defense, including, without limitation, the defense of usury,
and no such right of rescission, set-off, recoupment, counterclaim or defense
has been asserted with respect thereto. To the best of Sponsor’s knowledge,
except for approximately 0.09% of the Mortgage Loans, no Mortgagor of the
applicable Mortgage is or since the date of origination has been a debtor in
any
state or federal bankruptcy or insolvency proceeding and no Mortgaged Property
has been subject to any such proceeding. With regard to the Mortgage Loans
that
involve a Mortgagor who is a debtor in a state or federal bankruptcy or
insolvency proceeding, each such Mortgagor is, as of the Cut-Off Date, current
under the related bankruptcy plan;
(xvii)
There are no mechanics’ liens or any similar liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien prior
to,
or equal with, the lien of such Mortgage, except those which are insured against
by the title insurance policy referred to in clause (xxii) below;
(xviii)
As of the Closing Date in the case of an Initial Mortgage Loan or as of the
related Subsequent Transfer Date in the case of a Subsequent Mortgage Loan,
each
Mortgaged Property is free of material damage and is in good repair and there
is
no proceeding pending or threatened for the total or partial condemnation of
any
Mortgage Property;
14
(xix)
Each Mortgage is a valid and enforceable first or second lien on the Mortgaged
Property including all improvements on the Mortgaged Property securing the
related Mortgage Note and each Mortgaged Property is owned by the Mortgagor
in
fee simple (except with respect to common areas in the case of condominiums,
PUDs and de minimis
PUTDs)
subject only to (1) the lien of nondelinquent current real property taxes and
assessments, (2) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording of
such
Mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally or specifically reflected in the appraisal made
in connection with the origination of the related Mortgage Loan or referred
to
in the lender’s title insurance policy delivered to the originator of the
related Mortgage Loan and (3) other matters to which like properties are
commonly subject that do not materially interfere with the benefits of the
security intended to be provided by such Mortgage. Immediately prior to the
sale
of such Mortgage Loan to the Depositor pursuant to this Purchase Agreement,
the
Sponsor had full right to sell and assign the same to the Depositor or the
Trustee, as the case may be. Immediately following the sale of such Mortgage
Loan to the Depositor and the Depositor’s assignment and sale thereof of such
Mortgage Loan to the Trustee in the case of an Initial Mortgage Loan, the
Trustee will have good title thereto subject to no claims or liens, including
delinquent tax or assessment liens. Immediately following the sale of such
Mortgage Loan to the Depositor and the Depositor's assignment and sale thereof
to the Trustee in the case of a Subsequent Mortgage Loan, the Trustee will
have
good title thereto subject to no claims or liens;
(xx)
Each
Mortgage Loan at origination complied with applicable local, state and federal
laws, including, without limitation, usury, equal credit opportunity, real
estate settlement procedures, the Truth In Lending Act of 1968, as amended,
all
applicable predatory and abusive lending laws and disclosure laws and
consummation of the transactions contemplated hereby, including without
limitation, the receipt of interest by the owner of such Mortgage Loan or the
Holders of Certificates secured thereby, will not violate any such laws. Any
and
all statements or acknowledgments required to be made by the Mortgagor relating
to such requirements are and will remain in the Mortgage File. Each Mortgage
Loan is being serviced in accordance with applicable state and federal laws,
including, without limitation, the Truth In Lending Act of 1968, as amended,
and
other consumer protection laws, real estate settlement procedures, usury, equal
credit opportunity and disclosure laws and in a prudent and customary
manner;
(xxi)
Neither the Sponsor nor any prior holder of any Mortgage has impaired, waived,
altered or modified the Mortgage or Mortgage Notes in any material respect
(except that a Mortgage Loan may have been modified by a written instrument
which has been recorded, if necessary to protect the interests of the owner
of
such Mortgage Loan or the Certificates, and which has been delivered to the
Trustee); satisfied, canceled or subordinated such Mortgage in whole or in
part;
released the applicable Mortgaged Property in whole or in part from the lien
of
such Mortgage; or executed any instrument of release, cancellation or
satisfaction with respect thereto;
15
(xxii)
A
lender’s policy of title insurance (on an ALTA or CLTA form) or binder, or other
assurance of title customary in the relevant jurisdiction insuring the first
lien priority of the Mortgage Loan in an amount at least equal to the original
Principal Balance of each such Mortgage Loan or a commitment binder or
commitment to issue the same was effective on the date of the origination of
each Mortgage Loan, each such policy is valid and remains in full force and
effect, and each such policy was issued by a title insurer qualified to do
business in the jurisdiction where the Mortgaged Property is located, which
policy insures the Sponsor and successor owners of indebtedness secured by
the
insured Mortgage as to the first priority lien of the Mortgage as applicable.
The Sponsor is, and such successor owners will be, the sole insured under such
lender’s title insurance policy; no claims have been made under such mortgage
title insurance policy; no prior holder of the applicable Mortgage, including
the Sponsor, has done, by act or omission, anything which would impair the
coverage of such mortgage title insurance policy; and each such policy, binder
or assurance contains all applicable endorsements;
(xxiii)
All of the improvements which were included for the purpose of determining
the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of such property and no improvements on adjoining
properties encroach upon the Mortgaged Property;
(xxiv)
No
improvement located on or being part of the Mortgaged Property is in violation
of any applicable zoning law or regulation, subdivision law or ordinance, except
where the failure to comply would not have a material adverse effect on the
market value of the Mortgaged Property. 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 and fire
underwriting certificates, have been made or obtained from the appropriate
authorities and the Mortgaged Property is lawfully occupied under applicable
law
except where the failure to comply would not have a material adverse effect
on
the market value of the Mortgaged Property;
(xxv)
Each Mortgage Note and the applicable Mortgage are genuine, and each is the
legal, valid and binding obligation of the maker thereof, enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium, receivership and other similar laws relating to
creditors’ rights generally or by equitable principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law). All parties
to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage
Note and the Mortgage and each Mortgage Note and Mortgage has been duly and
properly executed by such parties;
(xxvi)
The proceeds of the Mortgage Loans have been fully disbursed, there is no
requirement for future advances thereunder and any and all requirements as
to
completion of any on-site or off-site improvements and as to disbursement of
any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making, closing or recording the Mortgage Loans were paid and the
Mortgagor is not entitled to any refund of amounts paid or due under the
Mortgage Note;
16
(xxvii)
Each Mortgage contains customary and enforceable provisions that render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including (i) in the
case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii)
otherwise by judicial foreclosure or if applicable, non-judicial foreclosure.
Upon default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s
sale of, the Mortgaged Property pursuant to the proper procedures, the holder
of
the Mortgage Loan will be able to deliver good and merchantable title to the
property, subject to any applicable rights of redemption;
(xxviii)
With respect to each Mortgage constituting a deed of trust, either a trustee,
duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in such Mortgage or if no duly
qualified trustee has been properly designated and so serves, the Mortgage
contains satisfactory provisions for the appointment of such trustee by the
holder of the Mortgage at no cost or expense to such holder, and no fees or
expenses are or will become payable by the Certificateholders to the trustee
under the deed of trust, except in connection with a trustee’s sale after
default by the Mortgagor;
(xxix)
There exist no deficiencies with respect to escrow deposits and payments, if
such are required, for which customary arrangements for repayment thereof cannot
be made, and no escrow deficits or payments of other charges or payments due
the
Sponsor have been capitalized under the Mortgage or the applicable Mortgage
Note;
(xxx)
The
Mortgage Note is not and has not been secured by any collateral, pledged account
or other security other than real estate securing the Mortgagor’s obligations
and no Mortgage Loan is secured by more than one Mortgaged
Property;
(xxxi)
As
of the Closing Date in the case of an Initial Mortgage Loan and as of the
related Subsequent Transfer Date in the case of a Subsequent Mortgage Loan,
the
improvements upon each Mortgaged Property are covered by a valid and existing
hazard insurance policy substantially acceptable to FNMA and acceptable to
the
Sponsor which policy provides for fire extended coverage and such other hazards
as are customary in the area where the Mortgaged Property is located
representing coverage in an amount not less than the lesser of (A) the maximum
insurable value of the improvements securing such Mortgage Loan and (B) the
outstanding Principal Balance of the related Mortgage Loan; if the improvement
on the Mortgaged Property is a condominium unit, it is included under the
coverage afforded by a blanket policy for the condominium project. All
individual insurance policies contain a standard mortgagee clause naming the
Sponsor or the original holder of the Mortgage, and its successors in interest,
as mortgagee, and the Sponsor has received no notice that any premiums due
and
payable thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor’s cost and expense,
and upon the Mortgagor’s failure to do so, authorizes the holder of the Mortgage
to obtain and maintain such insurance at the Mortgagor’s cost and expense and to
seek reimbursement therefor from the Mortgagor. There has been no act or
omission which would impair the coverage of any such policy, the benefits of
the
endorsement provided for herein, or the validity and binding effect of
either;
17
(xxxii)
If the Mortgaged Property is in an area identified in the Federal Register
by
the Federal Emergency Management Agency as having special flood hazards, a
flood
insurance policy in a form meeting the requirements of the current guidelines
of
the Flood Insurance Administration is in effect with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing coverage
not less than the least of (A) the outstanding Principal Balance of the Mortgage
Loan, (B) the minimum amount required to compensate for damage or loss on a
replacement cost basis and (C) the maximum amount of flood coverage that is
available under federal law;
(xxxiii)
Except for the Mortgage Loans referred to in clause (xlii) as being delinquent,
if any, there is no default, breach, violation or event of acceleration existing
under the Mortgage or the applicable 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 neither the Sponsor, any of its affiliates nor any servicer or subservicer
of any related Mortgage Loan has waived any default, breach, violation or event
of acceleration; no foreclosure action is threatened or has been commenced
with
respect to the Mortgage Loan;
(xxxiv)
Each Mortgage Loan is being serviced by the Servicer in accordance with the
terms of the Mortgage Note;
(xxxv)
There is no obligation on the part of the Sponsor or any other party to make
any
payments with respect to the related Mortgage Loan in addition to the Monthly
Payments required to be made by the applicable Mortgagor;
(xxxvi)
Any future advances made prior to the Cut-off Date in the case of an Initial
Mortgage Loan and as of the related Subsequent Transfer Date in the case of
a
Subsequent Mortgage Loan, with respect to any Mortgage Loan have been
consolidated with the outstanding principal amount secured by such Mortgage,
and
the secured principal amount, as consolidated, bears a single interest rate
and
single repayment term reflected on the Mortgage Loan Schedule. The consolidated
principal amount does not exceed the original principal amount of the Mortgage
Loan. The Mortgage Note with respect to any Mortgage Loan does not permit or
obligate the Servicer to make future advances to the Mortgagor at the option
of
the Mortgagor;
18
(xxxvii)
The Sponsor has caused or will cause to be performed any and all acts required
to preserve the rights and remedies of the Depositor and the Trustee evidencing
an interest in the Mortgage Loans in any insurance policies applicable to the
Mortgage Loans including, without limitation, any necessary notifications of
insurers, assignments of policies or interests therein, and establishments
of
coinsured, joint loss payee and mortgagee rights in favor of
Trustee;
(xxxviii)
Except as set forth in clause (xlii), there are no defaults by the Mortgagor
in
complying with the terms of any Mortgage, and all taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges which
previously became due and owing have been paid, or, if required by the terms
of
the Mortgage Loan, an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed, but is not yet due and payable. Except for (A) payments in the nature
of escrow payments and (B) interest accruing from the date of the Mortgage
Note
or date of disbursement of the Mortgage proceeds to the day which precedes
by
one month the Due Date of the first installment of principal and interest,
including, without limitation, taxes and insurance payments, neither the Sponsor
nor the Servicer has advanced funds, or induced, solicited or knowingly received
any advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required by the Mortgage;
(xxxix)
At the time of origination, each Mortgaged Property was the subject of an
appraisal which conforms to the underwriting requirements of the related
originator; and the Mortgage File contains an appraisal of the applicable
Mortgaged Property;
(xl)
None
of the Mortgage Loans are graduated payment Mortgage Loans or growth equity
Mortgage Loans;
(xli)
[Reserved.]
(xlii)
(a) Except with respect to no more than 0.25% and 1.12% of the Initial Mortgage
Loans in Group I and the Initial Mortgage Loans in Group II, respectively,
none
of the payments of principal of or interest on or in respect of any Initial
Mortgage Loans (by Cut-off Date Principal Balance) shall be 30 days or more
but
less than 60 days past due as of the Cut-off Date; and 0% and 0% of the Initial
Mortgage Loans in Group I and the Initial Mortgage Loans in Group II,
respectively, was 60 days or more past due as of the Cut-off Date; (b) except
as
set forth in clause (a) above, all payments required to be made by the Mortgagor
under the terms of the Mortgage Note have been made and credited; and (c) to
the
Sponsor’s knowledge, there was no delinquent recording, tax or assessment lien
against the property subject to any Mortgage, except where such lien was being
contested in good faith and a stay had been granted against levying on the
property;
(xliii)
Upon payment of the Purchase Price for the Mortgage Loans by the Depositor
or
the Trustee (from the Trust Fund), as applicable, pursuant to this Purchase
Agreement, the Sponsor has transferred to the Depositor good and marketable
title to each Mortgage Note and Mortgage free and clear of any and all liens,
claims, encumbrances, participation interests, equities, pledges, charges or
security interests of any nature and has or had full right and authority,
subject to no participation of or agreement with any other person, to sell
and
assign the same, and following the sale of each Mortgage Loan, the Depositor,
will own such Mortgage Loan free and clear of any encumbrance, equity interest,
participation interest, lien, pledge, charge, claim or security
interest;
19
(xliv)
The Sponsor acquired any right, title and interest in and to the Mortgage Loans
in good faith and without notice of any adverse claim;
(xlv)
The
Mortgage Note, the Mortgage, the related Assignment of Mortgage and any other
documents required to be delivered by the Sponsor have been delivered to the
Custodian. The Custodian is in possession of a complete, true and accurate
Mortgage File in accordance with Section 2.01 hereof. Substantially all the
Mortgage Loans have monthly payments due on the first day of each month and
each
Mortgage Loan had an original term to maturity of no greater than 30
years;
(xlvi)
Each Mortgage Loan contains a due-on-sale provision, although each Mortgage
Loan
may be assumable if permitted by the Servicer under certain
circumstances;
(xlvii)
Each of the Mortgage and the Assignment of Mortgage is in recordable form and
is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(xlviii)
The Mortgagor has not notified the Sponsor, and the Sponsor has no knowledge
of
any relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act other than as disclosed pursuant to the Prospectus
Supplement;
(xlix)
To
the best of the Sponsor’s knowledge, there exists no violation of any local,
state, or federal environmental law, rule or regulation in respect of the
Mortgaged Property which violation has or could have a material adverse effect
on the market value of such Mortgaged Property. The Sponsor has no knowledge
of
any pending action or proceeding directly involving the related Mortgaged
Property in which compliance with any environmental law, rule or regulation
is
in issue; and, to the best of the Sponsor’s knowledge, nothing further remains
to be done to satisfy in full all requirements of each such law, rule or
regulation constituting a prerequisite to the use and employment of such
Mortgaged Property;
(l)
Each
Mortgage Loan conforms, and all such Mortgage Loans in the aggregate conform,
to
the description thereof set forth in the Prospectus and Prospectus Supplement
in
all material respects;
(li)
[Reserved]
20
(lii)
With regard to the Group I Mortgage Loans, no refinance or purchase money
mortgage loan has an APR or total points and fees that exceed the thresholds
set
by the Home Ownership and Equity Protection Act of 1994 (“HOEPA”) and its
implementing regulations, including 12 CFR § 226.32(a)(1)(i) and
(ii);
(liii)
Immediately prior to the transfer to the Depositor or the Trustee, as
applicable, the Sponsor had good and marketable title thereto, and the Sponsor
is the sole legal, equitable owner of beneficial title to and holder of the
Mortgage Loan. The Sponsor is conveying the same to the Depositor or the
Trustee, as applicable, free and clear of any and all liens, claims,
encumbrances, participation interests, equities, pledges, charges or security
interests of any nature and has full right and authority to sell and assign
the
same pursuant to this Purchase Agreement, except for liens which will be
released simultaneously with such conveyance;
(liv)
For
each Mortgage Loan, the related Mortgage File contains a true, accurate and
correct copy of each of the documents and instruments required to be included
therein;
(lv)
The
Servicer meets all applicable requirements under the Pooling and Servicing
Agreement, is properly qualified to service each Mortgage Loan and has been
servicing each Mortgage Loan prior to the Cut-off Date or the related Subsequent
Cut-off Date, as the case may be;
(lvi)
No
instrument of release or waiver has been executed in connection with the
Mortgage Loans, and no Mortgagor has been released, in whole or in part from
its
obligations in connection with a Mortgage Loan except in connection with an
assumption agreement which has been delivered to the Trustee;
(lvii)
On
the basis of a representation by the Mortgagor at the time of origination of
the
Mortgage Loans, at least 92.29% and 93.62% of the Initial Mortgage Loans in
Group I and Initial Mortgage Loans in Group II, respectively, (by Cut-off Date
Principal Balance) will be secured by Mortgages on owner-occupied primary
residence properties;
(lviii)
Approximately 24.97%, and 34.33% of the Initial Mortgage Loans in Group I and
the Initial Mortgage Loans in Group II, respectively, (by Cut-off Date Principal
Balance) provide for a balloon payment and each Mortgage Note with respect
to
each such Mortgage Loan requires monthly payments of principal based on either
a
40 year or 30 year amortization schedules and have scheduled maturity dates
of
30 years or 15 years, respectively, from the due date of the first monthly
payment;
(lix)
No
Mortgage Loan was originated based on an appraisal of the related Mortgaged
Property made prior to completion of construction of the improvements
thereon;
(lx)
None
of the Mortgage Loans is a “buy down” mortgage loan;
21
(lxi)
[Reserved].
(lxii)
No
Mortgage Loan is a “High Cost Home Loan” or “Covered Loan,” as applicable, (as
such terms are defined in the then current Standard & Poor’s LEVELS®
Glossary which is now Version 5.7 Revised, Appendix E) and no Mortgage Loan
is a
“High Cost Home Loan” as defined in the Georgia Fair Lending Act, as amended
(the “Georgia Act”). No Mortgage Loan that was originated (or modified) on or
after October 1, 2002 and before March 7, 2003, is secured by property located
in the State of Georgia;
(lxiii)
None of the Mortgage Loans are covered by the requirements of the Home Ownership
and Equity Protection Act of 1994, as amended, or any comparable state or local
law; none of the Mortgage Loans are “section 32” loans or “high cost” loans as
defined by applicable predatory and abusive lending laws; no proceeds from
any
Mortgage Loan were used to finance any single premium credit insurance policies;
none of the Mortgage Loans (by Cut-off Date Principal Balance) require a
mortgagor to pay a Prepayment Charge if the mortgagor prepays a Mortgage Loan
more than five years after the date the Mortgage Loan was
originated;
(lxiv)
No
Mortgage Loan is a “High-Cost Home Loan” as defined in New York Banking Law
6-1;
(lxv)
No
Mortgage Loan is a “High-Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 of 2003);
(lxvi)
No
Mortgage Loan is a “High-Cost Home Loan” as defined in the Kentucky high-cost
home loan statute effective June 24, 2003 (Ky. Rev. Stat. Section
360.100);
(lxvii)
No Mortgage Loan in the trust is a “high-cost home,” “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 applicable state, federal or
local law (or a similarly classified loan using different terminology under
a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees);
(lxviii)
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.);
(lxix)
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.);
(lxx)
No
Mortgage Loan is a “High-Cost Home Loan” as defined in the Massachusetts
Predatory Home Loan Practices Act effective November 7, 2004 (MA House Xxxx
4880);
22
(lxxi)
No
Mortgage Loan is a “High-Cost Home Loan” as defined in the Indiana Home Loan
Practices Act effective January 1st, 2005 (Indiana Code Xxx. §§ 24-9-1 et
seq.);
(lxxii)
Approximately 63.8% of the Initial Mortgage Loans are subject to prepayment
penalty charges as of the Cut-off Date;
(lxxiii)
[Reserved.]
(lxxiv)
No borrower was required to purchase any credit life, disability, accident
or
health insurance product as a condition of obtaining the extension of credit.
No
borrower obtained a prepaid single premium credit life, credit disability,
credit unemployment or credit property insurance policy in connection with
the
origination of the Mortgage Loan; No proceeds from any Mortgage Loan were used
to purchase single premium credit insurance policies as part of the origination
of, or as a condition to closing, such Mortgage Loan;
(lxxv)
With respect to any Group I Mortgage Loan that contains a provision permitting
imposition of a penalty upon a prepayment prior to maturity: (a) the Mortgage
Loan provides some benefit to the borrower (e.g.,
a rate
or fee reduction) in exchange for accepting such prepayment penalty; (b) the
Mortgage Loan's originator had a written policy of offering the borrower, or
requiring third-party brokers to offer the borrower, the option of obtaining
a
Mortgage Loan that did not require payment of such a penalty; (c) the prepayment
penalty was adequately disclosed to the borrower pursuant to applicable state
and federal law; (d) no Mortgage Loan originated on or after October 1, 2002
will provide for prepayment penalties for a term in excess of three years and
any loans originated prior to such date will not provide for prepayment
penalties for a term in excess of five years; unless the loan was modified
to
reduce the prepayment period to no more than three years (in
the
case of subprime loans) or five years (in the case of non-subprime loans)
from
the
date of the note and the borrower was notified in writing of such reduction
in
prepayment period; and (e) such prepayment penalty shall not be imposed in
any
instance where the mortgage loan is accelerated or paid off in connection with
the workout of a delinquent mortgage or due to the borrower’s default,
notwithstanding that the terms of the Mortgage Loan or state or federal law
might permit the imposition of such penalty;
(lxxvi)
[Reserved.]
(lxxvii)
[Reserved.]
(lxxviii)
[Reserved.]
(lxxix)
With respect to Mortgaged Properties located in the continental United States
and Puerto Rico, no Group I Mortgage Loan secured by a single-family residence
has a Principal Balance at origination in excess of $472,500; no Group I
Mortgage Loan secured by a two-family residence has a Principal Balance at
origination in excess of $511,000; no Group I Mortgage Loan secured by a
three-family residence has a Principal Balance at origination in excess of
$603,250; and no Group I Mortgage Loan secured by a four-family residence has
a
Principal Balance at origination in excess of $416,000; with respect to
Mortgaged Properties located in Alaska, Guam, Hawaii and the Virgin Islands,
no
Group II Mortgage Loan secured by a single-family residence has a Principal
Balance at origination in excess of $1,128,000; no Group II Mortgage Loan
secured by a two-family residence has a Principal Balance at origination in
excess of $630,000; no Group II Mortgage Loan secured by a three-family
residence has a Principal Balance at origination in excess of $667,800; and
no
Group II Mortgage Loan secured by a four-family residence has a Principal
Balance at origination in excess of $131,325;
23
(lxxx)
No
selection procedure reasonably believed by the Sponsor to be adverse to the
interests of the Certificateholders was utilized in selecting the Mortgage
Loans;
(lxxxi)
The terms of the Mortgage Note related to each adjustable rate Mortgage Loan
provide that, following an initial period of two, three or five years following
the month in which such Mortgage Loan was originated and semiannually or
annually thereafter (each such date, an “Adjustment
Date”),
the
Mortgage Rate on such Mortgage Loan will be adjusted to equal the sum of (a)
the
related Index and (b) a fixed percentage amount specified in the related
Mortgage Note (each, a “Gross
Margin”);
provided,
however,
that
the Mortgage Rate generally will not increase or decrease by the related
Periodic Rate Cap, and will not increase above a specified maximum Mortgage
Rate
over the life of the Adjustable Rate Mortgage Loan (the “Maximum
Mortgage Rate”)
or
decrease below a specified minimum Mortgage Rate over the life of the Adjustable
Rate Mortgage Loan (the “Minimum
Mortgage Rate”);
(lxxxii)
None of the Mortgage Loans are negative amortization loans;
(lxxxiii)
No error, omission, negligence, misrepresentation, fraud or similar occurrence
with respect to a Mortgage Loan has taken place on the part of the Sponsor,
its
affiliates or employees or any other person involved in the origination of
the
Mortgage Loan or in the application for any insurance, including, but not
limited to the MI Policy, in relation to such Mortgage Loan;
(lxxxiv)
Each Mortgage Loan was originated by a mortgagee approved by the Secretary
of
Housing and Urban Development pursuant to Sections 203 and 211 of the Act,
a
savings and loan association, a savings bank, a commercial bank, credit union,
insurance company or similar institution which is supervised and examined by
a
federal or state authority;
(lxxxv)
With respect to each Mortgage Loan secured by manufactured housing, such
manufactured housing is permanently affixed to a foundation and constitutes
real
estate under applicable state law;
24
(lxxxvi)
No Mortgage Loans are date of payment or simple interest loans;
(lxxxvii)
The sale, transfer, assignment and conveyance of Mortgage Loans by the Sponsor
pursuant to this Purchase Agreement is not subject to and will not result in
any
tax, fee or governmental charge payable by the Depositor, the Custodian or
the
Trustee to any federal, state or local government (“Transfer Taxes”) other than
Transfer Taxes which have or will be paid by the Sponsor as due;
(lxxxviii)
Each Mortgage Loan is a “qualified mortgage” within Section 860G(a)(3) of the
Code;
(lxxxix)
Approximately 14.59% of the Initial Mortgage Loans (by Cut-off Date Principal
Balance) with a Loan-to-Value Ratio greater than 60% are covered by an MI Policy
issued by an MI Insurer;
(xc)
Approximately 13.34% of the Initial Mortgage Loans that are identified on
Exhibit 1 hereto are covered by a MI Policy issued by an MI
Insurer;
(xci)
All
requirements for the valid transfer of each MI Policy, including any assignments
or notices required in each MI Policy, have been satisfied;
(xcii)
As
of the Closing Date with respect to each Initial Mortgage Loan that is subject
to a MI Policy and as of each Subsequent Transfer Date with respect to each
Subsequent Mortgage Loan that is subject to a MI Policy, the Sponsor is unaware
of any existing circumstances which would cause the MI Insurer to deny a claim
with respect to such Mortgage Loan;
(xciii)
All appraisals of the Mortgage Loans by the Sponsor are full URAR/1004
appraisals;
(xciv)
All Prepayment Charges are enforceable and were originated in compliance with
all applicable federal, state, and local laws;
(xcv)
[Reserved.]
(xcvi)
With respect to mortgage loans that are more than 59 days delinquent as of
the
Cut-off Date, the Sponsor has made a specific review of the Servicer’s data and
records that reflect mortgagor communications and payment history, and has
no
actual knowledge of an event, condition or mortgagor communication which would
cause the Sponsor to institute foreclosure proceedings;
(xcvii)
The servicer for each Group I Mortgage Loan has fully furnished (and will fully
furnish), in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and unfavorable)
on its borrower credit files to Equifax, Experian, and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis;
25
(xcviii)
None of the Group I Mortgage Loans are classified as (a) “high cost” loans under
the Home Ownership and Equity Protection Act of 1994 or (b) “high cost,”
“threshold,” “covered”, “predatory” or “abusive” loans under any other
applicable state, federal or local law (including without limitation any
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);
(xcix)
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 borrower
to submit to arbitration to resolve any dispute arising out of or relating
in
any way to the mortgage loan transaction;
(c)
With
respect to any Group I Mortgage Loan, the borrower was not encouraged or
required to select a mortgage loan product offered by the 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 borrower’s credit history, income, assets and
liabilities. For each Group I Mortgage Loan, with respect to a borrowers seeking
financing through a mortgage loan originator’s higher-priced subprime lending
channel, such borrower was directed towards or offered the mortgage loan
originator’s standard mortgage line if the borrower was able to qualify for one
of the standard products;
(ci)
With
respect to any Group I Mortgage Loan, the methodology used in underwriting
the
extension of credit for each Group I Mortgage Loan did not rely solely on the
extent of the borrower’s equity in the collateral as the principal determining
factor in approving such extension of credit. The methodology employed objective
criteria such as the borrower’s income, assets and liabilities, to the proposed
mortgage payment and, based on such methodology, the mortgage loan’s originator
made a reasonable determination that at the time of origination the borrower
had
the ability to make timely payments on the mortgage loan;
(cii)
With respect to any Group I Mortgage Loan, no borrower was charged “points and
fees” in an amount greater than (a) $1,000 or (b) 5% of the principal amount of
such 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% of the loan amount;
26
(ciii)
For each Group I Mortgage Loan, with respect to any subordinate lien Mortgage
Loan, such lien is on a one- to four-family residence that is the principal
residence of the borrower;
(civ)
For
each Group I Mortgage Loan, no subordinate lien Mortgage Loan has an original
principal balance that exceeds one-half of the one-unit limitation for first
lien mortgage loans, i.e., $208,500 (in Alaska, Guam, Hawaii or Virgin Islands:
$312,750), without regard to the number of units;
(cv)
For
each Group I Mortgage Loan, the original principal balance of the first lien
mortgage loan plus the original principal balance of any subordinate lien
mortgage loans relating to the same mortgaged property does not exceed the
applicable loan limit for first lien mortgage loans for that property type
(as
set out in clause (lxxix) above);
(cvi)
There is no Group I Mortgage Loan that is "seasoned", where the date of the
mortgage note is more than 1 year before the date of issuance of the related
Certificates.
Upon
discovery by the Sponsor or upon notice from the Depositor, the Trustee, or
the
Custodian, as applicable, of a breach of any representation or warranty in
subsection (a) of this Section which materially and adversely affects the
interests of the Certificateholders the Sponsor shall, within 45 days of its
discovery or its receipt of notice of such breach, either (i) cure such breach
in all material respects or (ii) to the extent that such breach is with respect
to a Mortgage Loan or a Related Document, either (A) repurchase such Mortgage
Loan from the Trustee at the Repurchase Price, or (B) substitute one or more
Eligible Substitute Mortgage Loans for such Mortgage Loan, in each case in
the
manner and subject to the conditions and limitations set forth
below.
Upon
discovery by the Sponsor or upon notice from the Depositor, the Trustee, or
the
Custodian, as applicable, of a breach of any representation or warranty in
this
subsection (b) with respect to any Mortgage Loan or upon the occurrence of
a
Repurchase Event, which materially and adversely affects the value of the
related Mortgage Loan or the interests of any Certificateholders or of the
Depositor or the Trustee in such Mortgage Loan (notice of which shall be given
to the Depositor and the Trustee by the Sponsor, if it discovers the same)
the
Sponsor shall, within 90 days after the earlier of its discovery or receipt
of
notice thereof, either cure such breach or Repurchase Event in all material
respects or either (i) repurchase such Mortgage Loan from the Trustee at the
Repurchase Price, or (ii) substitute one or more Eligible Substitute Mortgage
Loans for such Mortgage Loan, in each case in the manner and subject to the
conditions set forth below; provided,
however,
that a
breach of any of the representations and warranties found in subsections b(xx),
(b)(lii), (b)(lxii), (b)(lxvii), (b)(lxxiv), (b)(lxxv), (b)(lxxix), (b)(xcvii),
(b)(xcviii) and (b)(xcix) shall be deemed to materially and adversely affect
the
interest of the Certificateholders. The Repurchase Price for any such Mortgage
Loan repurchased by the Sponsor shall be deposited or caused to be deposited
by
the Servicer in the Collection Account maintained by it pursuant to Section
3.06
of the Pooling and Servicing Agreement.
27
In
the
event that the Sponsor elects to substitute an Eligible Substitute Mortgage
Loan
or Loans for a Deleted Mortgage Loan pursuant to this Section 3.01, the Sponsor
shall deliver to the Custodian on behalf of the Trustee, with respect to such
Eligible Substitute Mortgage Loan or Loans, the original Mortgage Note and
all
other documents and agreements as are required by Section 2.01 hereof, with
the
Mortgage Note endorsed as required by such Section 2.01 hereof. No substitution
will be made in any calendar month after the Determination Date for such month.
Monthly Payments due with respect to Eligible Substitute Mortgage Loans in
the
month of substitution shall not be part of the Trust Fund and will be retained
by the Servicer and remitted by the Servicer to the Sponsor on the next
succeeding Payment Date. For the month of substitution, distributions to the
Collection Account pursuant to the Pooling and Servicing Agreement will include
the Monthly Payment due on a Deleted Mortgage Loan for such month and thereafter
the Sponsor shall be entitled to retain all amounts received in respect of
such
Deleted Mortgage Loan. The Servicer shall amend or cause to be amended the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan
and
the substitution of the Eligible Substitute Mortgage Loan or Loans and the
Servicer shall deliver the amended Mortgage Loan Schedule to the Custodian
and
the Trustee. Upon such substitution, the Eligible Substitute Mortgage Loan
or
Loans shall be subject to the terms of this Purchase Agreement and the Pooling
and Servicing Agreement in all respects, the Sponsor shall be deemed to have
made the representations and warranties with respect to the Eligible Substitute
Mortgage Loan contained herein set forth in this Section 3.01(b), to the extent
set forth in the definition of “Eligible Substitute Mortgage Loan”, as of the
date of substitution, and the Sponsor shall be obligated to repurchase or
substitute for any Eligible Substitute Mortgage Loan as to which a Repurchase
Event has occurred as provided herein. In connection with the substitution
of
one or more Eligible Substitute Mortgage Loans for one or more Deleted Mortgage
Loans, the Servicer will determine the amount (such amount, a “Substitution
Adjustment Amount”), if any, by which (i) the Repurchase Price that would
otherwise apply to such Deleted Mortgage Loan, exceeds (ii) the principal
balance of the related Eligible Substitute Mortgage Loan (after application
of
the principal portion of the Monthly Payments due in the month of substitution
that are to be distributed to the Collection Account in the month of
substitution). The Sponsor shall pay the amount of such shortfall to the
Servicer for deposit into the Collection Account on the day of substitution,
without any reimbursement therefor.
Upon
receipt by the Trustee of written notification, signed by a Servicing Officer,
of the deposit of such Repurchase Price or of such substitution of an Eligible
Substitute Mortgage Loan and deposit of any applicable Substitution Adjustment
Amount as provided above, the Custodian shall, on behalf of the Trustee, cause
to be released to the Sponsor the related Mortgage File for the Mortgage Loan
being repurchased or substituted for and the Trustee shall execute and deliver
such instruments of transfer or assignment prepared by the Servicer, in each
case without recourse, as shall be necessary to vest in the Sponsor or its
designee such Mortgage Loan released pursuant hereto and thereafter such
Mortgage Loan shall not be an asset of the Trustee.
It
is
understood and agreed that the obligation of the Sponsor to cure any breach
with
respect to or to repurchase or substitute for, any Mortgage Loan as to which
such a breach has occurred and is continuing shall, except to the extent
provided in Section 6.01 of this Purchase Agreement, constitute the sole remedy
respecting such breach available to the Depositor, the Trustee, the
Certificateholders or the Custodian against the Sponsor.
28
It
is
understood and agreed that the representations and warranties set forth in
this
Section 3.01 shall survive delivery of the respective Mortgage Files to the
Custodian on behalf of the Trustee.
Section
3.02 Depositor
Representations and Warranties.
The
Depositor hereby represents and warrants to the Sponsor and the Trustee as
of
the date hereof and as of the Closing Date that:
(a) The
Depositor is duly organized and validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority
to
own its properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(b) The
Depositor is duly qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the conduct
of
its business shall require such qualifications and in which the failure to
so
qualify would have a material adverse effect on the business, properties, assets
or condition (financial or other) of the Depositor and the ability of the
Depositor to perform under this Purchase Agreement.
(c) The
Depositor has the power and authority to execute and deliver this Purchase
Agreement and to carry out its terms; the Depositor has full power and authority
to purchase the property to be purchased from the Sponsor and the Depositor
has
duly authorized such purchase by all necessary corporate action; and the
execution, delivery and performance of this Purchase Agreement have been duly
authorized by the Depositor by all necessary corporate action.
(d) The
consummation of the transactions contemplated by this Purchase Agreement and
the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or bylaws of
the
Depositor, or any indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any
such indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor’s knowledge,
any order, rule or regulation applicable to the Depositor of any court or of
any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
(e) The
Depositor (A) is a solvent entity and is paying its debts as they become due
and
(B) after giving effect to the transfer of the Mortgage Loans, will be a solvent
entity and will have sufficient resources to pay its debts as they become
due.
29
ARTICLE
IV
SPONSOR’S
COVENANTS
Section
4.01 Covenants
of the Sponsor.
The
Sponsor hereby covenants as of the date hereof and as of the Closing Date that,
except for the transfer hereunder, on and after the Closing Date, the Sponsor
will not sell, pledge, assign or transfer to any other Person, or grant, create,
incur or assume any Lien on, any Mortgage Loan, whether now existing or
hereafter created, or any interest therein; the Sponsor will notify the
Custodian and the Trustee of the existence of any such Lien on any Mortgage
Loan
immediately upon discovery thereof; the Sponsor will defend the right, title
and
interest of the Trustee, on its own behalf and as assignee of the Depositor,
in,
to and under the Mortgage Loans, whether now existing or hereafter created,
against all claims of third parties claiming through or under the
Sponsor.
In
the
event that the Custodian or the Trustee receives actual notice of any Transfer
Taxes arising out of the transfer, assignment and conveyance of the Mortgage
Loans, on written demand by the Custodian, or upon the Sponsor’s otherwise being
given notice thereof by the Custodian, the Sponsor shall pay any and all such
Transfer Taxes (it being understood that the Holders of the Certificates, the
Depositor, the Custodian and the Trustee shall have no obligation to pay such
Transfer Taxes).
Section
4.02 Payment
of Expenses.
(a) The
Sponsor will pay on the Closing Date all expenses incident to the performance
of
its obligations under this Purchase Agreement and the Underwriting Agreement,
including (i) the preparation, printing and any filing of the preliminary
prospectus, Prospectus Supplement and Prospectus (including any schedules or
exhibits and any document incorporated therein by reference) originally filed
and of each amendment or supplement thereto, (ii) the preparation, printing
and
delivery to the Underwriters of this Purchase Agreement and the Underwriting
Agreement, the Pooling and Servicing Agreement and such other documents as
may
be required in connection with the offering, purchase, sale and delivery of
the
Certificates, (iii) the preparation, issuance and delivery of the certificates
for the Class A Certificates and Mezzanine Certificates to the Underwriters,
including any charges of DTC, Clearstream Luxembourg and the Euroclear System
in
connection therewith; (iv) the qualification of the Class A Certificates and
Mezzanine Certificates under securities laws in accordance with the provisions
of Section 3(f) of the Underwriting Agreement, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and
any
supplement thereto for delivery to potential investors, (v) in addition to
the
initial printing and filing costs under (i) above, the printing and delivery
to
the Underwriters of copies of each preliminary prospectus and of the Prospectus
and any amendments or supplements thereto for delivery to potential investors,
(vi) the fees and expenses of the Trustee and the Custodian, including the
fees
and disbursements of counsel for the Trustee and the Custodian in connection
with the Pooling and Servicing Agreement, the Purchase Agreement and the
Certificates and (vii) any fees payable in connection with the rating of the
Certificates.
30
(b) If
the
Underwriting Agreement is terminated by the Underwriters in accordance with
the
provisions of Section 5 or Section 9(a)(i) thereof, the Sponsor shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
ARTICLE
V
CONDITIONS
TO INITIAL MORTGAGE LOAN PURCHASE
Section
5.01 Conditions
of Depositor’s Obligations.
The
Depositor’s obligations to purchase the Initial Mortgage Loans which each
accepts for purchase hereunder shall be subject to each of the following
conditions:
(i)
the
Mortgage File for each Initial Mortgage Loan shall have been delivered in
accordance with this Purchase Agreement;
(ii)
the
representations and warranties set forth in Section 3.01(b) hereof with respect
to each Initial Mortgage Loan shall be true as of the Closing Date;
(iii)
the
Underwriters or their affiliates shall have had an opportunity to perform a
due
diligence review of each Mortgage Loan; and
(iv)
the
Sponsor shall have provided to the Underwriters or their affiliates such other
documents which are then required to have been delivered under this Purchase
Agreement or which are reasonably requested by the Underwriters or their
affiliates, which other documents may include UCC financing statements, a
favorable opinion or opinions of counsel with respect to matters which are
reasonably requested by the Underwriters, and/or an Officers’
Certificate.
ARTICLE
VI
INDEMNIFICATION
BY THE SPONSOR
WITH
RESPECT TO THE MORTGAGE LOANS
Section
6.01 Indemnification
With Respect to the Mortgage Loans.
The
Sponsor shall indemnify and hold harmless the Depositor, Trustee and the
Custodian from and against any loss, liability or expense arising from the
breach by the Sponsor of its representations and warranties in Section 3.01
of
this Purchase Agreement which materially and adversely affects the value of
any
Mortgage Loan or the Depositor’s assignees’ interest in any Mortgage Loan or
from the failure by the Sponsor to perform its obligations under this Purchase
Agreement in any material respect.
Section
6.02 Limitation
on Liability of the Sponsor.
None
of
the directors, officers, employees or agents of the Sponsor shall be under
any
liability to the Depositor, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Purchase Agreement. Except as and
to
the extent expressly provided in the Basic Documents, the Sponsor shall not
be
under any liability to the Trustee, the Custodian or the Certificateholders.
The
Sponsor and any director, officer, employee or agent of the Sponsor may rely
in
good faith on any document of any kind prima
facie
properly
executed and submitted by any Person respecting any matters arising
hereunder.
31
ARTICLE
VII
TERMINATION
Section
7.01 Termination.
(a) Except
as
provided in Section 7.01(b) hereof, the respective obligations and
responsibilities of the Sponsor, the Depositor, the Trustee and the Custodian
created hereby shall terminate, except for the Sponsor’s indemnity obligations
as provided herein, upon the termination of the Trust Fund pursuant to the
terms
of the Pooling and Servicing Agreement.
(b) The
Depositor may terminate this Purchase Agreement, by notice to the Sponsor,
at
any time at or prior to the Closing Date:
(i)
if
the Underwriting Agreement is terminated by the Underwriters pursuant to the
terms of the Underwriting Agreement or if there has been, since the time of
execution of this Purchase Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
financial condition, earnings, business affairs or business prospects of the
Sponsor, whether or not arising in the ordinary course of business,
or
(ii)
if
there has occurred any material adverse change in the financial markets in
the
United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Underwriters, impracticable to market the Offered Certificates or to enforce
contracts for the sale of the Offered Certificates, or
(iii)
if
trading in any securities of the Sponsor has been suspended or limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the NASDAQ National
Market System has been suspended or limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by
any
of said exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority,
(iv)
if a
banking moratorium has been declared by either federal or New York
authorities,
32
(v)
either (A) a change in control of the Sponsor shall have occurred other than
in
connection with and as a result of the issuance and sale by the Sponsor or
registered, publicly offered common stock; or (B) the Underwriters determine
in
their sole discretion that any material adverse change has occurred in the
management of the Sponsor,
(vi)
there is (A) a material breach by the Sponsor of any representation and warranty
contained in this Purchase Agreement or the Underwriting Agreement other than
a
representation or warranty relating to particular Mortgage Loans, and the
Underwriters have reason to believe in good faith either that such breach is
not
curable within two (2) days or that such breach may not have been cured in
all
material respects at the expiration of two (2) days following discovery thereof
by the Sponsor or (B) a failure by the Sponsor to make any payment payable
by it
under this Purchase Agreement or (C) any other failure by the Sponsor to observe
and perform in any material respect its material covenants, agreements and
obligations with the Depositor, including without limitation those contained
in
this Purchase Agreement, and the Depositor has reason to believe in good faith
that such failure may not have been cured in all material respects at the
expiration of two (2) days following discovery thereof by the Sponsor,
or
(vii)
the
Sponsor fails to provide written notification to the Underwriters of any change
in its loan origination, acquisition or appraisal guidelines or practices,
or
the Sponsor, without the prior consent of the Underwriters (which shall not
be
unreasonably withheld), amends in any material respect its loan origination,
acquisition or appraisal guidelines or practices.
If
this
Purchase Agreement is terminated pursuant to this Section 7.01(b), such
termination shall be without liability of any party to any other party except
as
provided in Section 4.02 hereof.
ARTICLE
VIII
MISCELLANEOUS
PROVISIONS
Section
8.01 Amendment.
This
Purchase Agreement may be amended from time to time by the Sponsor, the
Depositor, the Trustee and the Custodian by written agreement signed by the
Sponsor, the Depositor, the Trustee and the Custodian.
Section
8.02 Governing
Law.
This
Purchase Agreement shall be governed by and construed in accordance with the
laws of the State of New York and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
33
Section
8.03 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, addressed as follows:
|
(i)
|
if
to the Sponsor:
|
NovaStar
Mortgage, Inc.
0000
Xxxx
Xxxxxxx
Xxxxx
000
Xxxxxx
Xxxx, Xxxxxxxx 00000
Attention:
Xxxx Xxxxxxxxxxxx
or,
such
other address as may hereafter be furnished to the Depositor in writing by
the
Sponsor.
|
(ii)
|
if
to the Depositor:
|
NovaStar
Mortgage Funding Corporation
0000
Xxxx
Xxxxxxx
Xxxxx
000
Xxxxxx
Xxxx, Xxxxxxxx 00000
Attention:
Xxxx Xxxxxxxxxxxx
or
such
other address as may hereafter be furnished to the Sponsor in writing by the
Depositor.
|
(iii)
|
if
to the Custodian:
|
U.S.
Bank
National Association
0000
Xxxxxxxxxxxx Xxxxx, Xxxxx X
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx X. Xxxx
or
such
other address as may hereafter be furnished to the Sponsor in writing by the
Custodian.
|
(iv)
|
if
to the Trustee:
|
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, XX 00000
Attention:
Trust Administration - NS0702
or
such
other address as may hereafter be furnished to the Sponsor in writing by the
Trustee.
Section
8.04 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Purchase
Agreement shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terns shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Purchase Agreement and shall
in no way affect the validity or enforceability of the other provisions of
this
Purchase Agreement.
34
Section
8.05 Relationship
of Parties.
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties hereto, and the services of the Sponsor shall be
rendered as an independent contractor and not as agent for the
Depositor.
Section
8.06 Counterparts.
This
Purchase Agreement may be executed in two or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original and such counterparts together
shall
constitute one and the same agreement.
Section
8.07 Further
Agreements.
The
Depositor and the Sponsor each agree to execute and deliver to the other such
additional documents, instruments or agreements as may be necessary or
appropriate to effectuate the purposes of this Purchase Agreement. Each of
the
Depositor and the Sponsor agrees to use its best reasonable efforts to take
all
actions necessary to be taken by it to cause the Class A-1A Certificates to
be
rated “Aaa” by Xxxxx’x and “AAA” by S&P, the Class A-2A Certificates to be
rated “Aaa” by Xxxxx’x and “AAA” by S&P, the Class A-2B Certificates to be
rated “Aaa” by Xxxxx’x and “AAA” by S&P, the Class A-2C Certificates to be
rated “Aaa” by Xxxxx’x and “AAA” by S&P, the Class A-2D Certificates to be
rated “Aaa” by Xxxxx’x and “AAA” by S&P, the Class M-1 Certificates to be
rated “Aa1” by Xxxxx’x and “AA+” by S&P, the Class M-2 Certificates to be
rated “Aa2” by Xxxxx’x and “AA” by S&P, the Class M-3 Certificates to be
rated “Aa3” by Xxxxx’x and “AA-” by S&P, the Class M-4 Certificates to be
rated “A1” by Xxxxx’x and “A+” by S&P, the Class M-5 Certificates to be
rated “A2” by Xxxxx’x and “A” by S&P, the Class M-6 Certificates to be rated
“A3” by Xxxxx’x and “A-” by S&P, the Class M-7 Certificates to be rated
“Baa1” by Xxxxx’x and “BBB+” by S&P, the Class M-8 Certificates to be rated
“Baa2” by Xxxxx’x and “BBB” by S&P, the Class M-9 Certificates to be rated
“Baa3” by Xxxxx’x and “BBB-” by S&P, the Class M-10 Certificates to be rated
“Ba1” by Xxxxx’x and “BB+” by S&P, and each party will cooperate with the
other in connection therewith.
Section
8.08 Intention
of the Parties.
It
is the
intention of the parties that (i) the Depositor is purchasing on the Closing
Date, and the Sponsor is selling on the Closing Date, the Initial Mortgage
Loans, rather than the Depositor providing to the Sponsor a loan secured by
the
Initial Mortgage Loans on the Closing Date, and (ii) the Trustee is purchasing
on the Closing Date, and the Depositor is selling on the Closing Date, the
Initial Mortgage Loans, rather than the Trustee providing to the Depositor
a
loan secured by the Initial Mortgage Loans, and (iii) the Depositor will be
purchasing on each Subsequent Transfer Date, and the Sponsor will be selling
on
each Subsequent Transfer Date, the related Subsequent Mortgage Loans, rather
than the Depositor providing to the Sponsor a loan secured by the related
Subsequent Mortgage Loans on each Subsequent Transfer Date, and (iv) the Trustee
will be purchasing on each Subsequent Transfer Date, and the Depositor will
be
selling on each Subsequent Transfer Date, the related Subsequent Mortgage Loans,
rather than the Trustee providing to the Depositor a loan secured by the related
Subsequent Mortgage Loans on each Subsequent Transfer Date. Accordingly, the
parties hereto each intend to treat these transactions as (i) a sale by the
Sponsor, and a purchase by the Depositor, of the Mortgage Loans on the Closing
Date, and (ii) a sale by the Depositor, and a purchase by the Trustee, of the
Initial Mortgage Loans on the Closing Date, (iii) a sale by the Sponsor, and
a
purchase by the Depositor, of the related Subsequent Mortgage Loans on each
Subsequent Transfer Date, and (iv) a sale by the Depositor, and a purchase
by
the Trustee, of the related Subsequent Mortgage Loans on each Subsequent
Transfer Date.
35
Section
8.09 Successors
and Assigns; Assignment of Purchase Agreement.
This
Purchase Agreement shall bind and inure to the benefit of and be enforceable
by
the Sponsor, the Depositor, the Trustee, the Custodian, and their respective
successors and assigns. The obligations of the Sponsor under this Purchase
Agreement cannot be assigned or delegated to a third party without the consent
of the Depositor, which consent shall be at the Depositor’s discretion. The
parties hereto acknowledge that (i) the Depositor is acquiring the Initial
Mortgage Loans for the purpose of selling them to the Trustee, who will hold
the
Initial Mortgage Loans in trust for the benefit of the Certificateholders and
(ii) the Depositor is acquiring the Subsequent Mortgage Loans for the purpose
of
selling them to the Trustee, who will hold the Subsequent Mortgage Loans for
the
benefit of the Certificateholders. As an inducement to the Depositor and the
Trustee to purchase the Mortgage Loans, the Sponsor acknowledges and consents
to
(i) the assignment by the Depositor to the Trustee of all of the Depositor’s
rights or remedies against the Sponsor pursuant to this Purchase Agreement
and
to (ii) the enforcement or exercise of any rights against the Sponsor pursuant
to this Purchase Agreement by the Depositor and the Trustee. Such enforcement
of
a right or remedy by the Trustee, shall have the same force and effect as if
the
right or remedy had been enforced or exercised by the Depositor
directly.
Section
8.10 Survival.
The
representations and warranties made herein by the Sponsor and the provisions
of
Article V hereof shall survive the purchase of the Mortgage Loans
hereunder.
Section
8.11 Liability
of the Trustee.
The
Trustee is entering into the Basic Documents to which it is a party solely
as
Trustee, hereunder and thereunder, and not in its individual capacity, and
all
persons having any claim against the Trustee by reason of the transactions
contemplated by this Agreement or any other Basic Document shall look only
to
the Trust Fund for payment or satisfaction thereof.
[Signature
page to follow]
36
IN
WITNESS WHEREOF, the Sponsor, the Depositor, the Custodian and the Trustee
have
caused their names to be signed to this Mortgage Loan Purchase Agreement by
their respective officers thereunto duly authorized as of the day and year
first
above written.
|
NOVASTAR
MORTGAGE, INC.
as
Sponsor
|
||
| |
|
|
| By: | /s/ Xxxx Xxxxxxxxxxxx | |
|
Name: Xxxx
Xxxxxxxxxxxx
|
||
| Title: Vice President | ||
|
NOVASTAR
MORTGAGE FUNDING
CORPORATION
as
Depositor
|
||
| |
|
|
| By: | /s/ Xxxx Xxxxxxxxxxxx | |
|
Name: Xxxx Xxxxxxxxxxxx |
||
|
Title: Vice
President
|
||
|
U.S.
BANK NATIONAL ASSOCIATION,
as
Custodian
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxx | |
|
Name:
Xxxxxx Xxxxxxx
|
||
|
Title:
Vice President
|
||
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxx | |
|
Name:
Xxxxxxx Xxxxx
|
||
| Title: Vice President | ||
| By: | /s/ Xxxxxx Xxxxx | |
|
Name:
Xxxxxx Xxxxx
|
||
|
Title:
Authorized Signer
|
||
37
|
NOVASTAR
FINANCIAL, INC., solely with respect to Section 3.01(b)
|
||
| |
|
|
| By: | /s/ Xxxx Xxxxxxxxxxxx | |
|
Name: Xxxx
Xxxxxxxxxxxx
|
||
|
Title: Vice
President
|
||
[Signature
Page to Mortgage Loan Purchase Agreement (2 of 2)]
38
EXHIBIT
1
INITIAL
MORTGAGE LOAN SCHEDULE
[Provided
to Depositor and to Trustee at the Closing]
EXHIBIT
2(A)
SPONSOR’S
SUBSEQUENT TRANSFER INSTRUMENT
Pursuant
to this Sponsor’s Subsequent Transfer Instrument (the “Sponsor’s
Instrument”),
dated
as of _________ __, 200_, between NovaStar Mortgage, Inc. as sponsor (the
“Sponsor”),
and
NovaStar Mortgage Funding Corporation, as depositor (the “Depositor”),
and
pursuant to the Mortgage Loan Purchase Agreement, dated as of May 1, 2007 (the
“Purchase
Agreement”),
among
the Sponsor, the Depositor, U.S. Bank National Association, as Custodian (the
“Custodian”)
and
Deutsche Bank National Trust Company, as Trustee (the “Trustee”),
the
Sponsor and the Depositor agree to the sale by the Sponsor and the purchase
by
the Depositor of the subsequent Mortgage Loans listed on the attached Mortgage
Loan Schedule (the “Subsequent
Mortgage Loans”)
and
the related MI Policies.
Capitalized
terms used and not defined herein have their respective meanings as set forth
in
the definitions contained in the Pooling and Servicing Agreement, dated as
of
May 1, 2007 (the “Pooling
and Servicing Agreement”),
between the Trustee, the Custodian, the Depositor and the Sponsor/Servicer
which
definitions are incorporated by reference herein. All other capitalized terms
used herein shall have the meanings specified herein.
Section
1. Conveyance
of Subsequent Mortgage Loans.
(a) The
Sponsor does hereby sell, transfer, assign, set over and convey to the
Depositor, without recourse, all of its right, title and interest in and to
the
Subsequent Mortgage Loans and the related MI Policies, all scheduled payments
of
principal and interest on the Subsequent Mortgage Loans due after the Subsequent
Cut-off Date, and all other payments of principal and interest on the Subsequent
Mortgage Loans collected after the Subsequent Cut-off Date (minus that portion
of any such payment which is allocable to the period prior to the Subsequent
Cut-off Date); provided, however, that no scheduled payments of principal and
interest due on or before the Subsequent Cut-off Date and collected after the
Subsequent Cut-off Date shall belong to the Depositor pursuant to the terms
of
this Sponsor’s Instrument. The Sponsor, contemporaneously with the delivery of
this Sponsor’s Instrument, has delivered or caused to be delivered to the
Custodian, at the direction of the Depositor, each item set forth in Section
2.02(b) of the Purchase Agreement with respect to such Subsequent Mortgage
Loans
and the related MI Policies. The transfer to the Depositor by the Sponsor of
the
Subsequent Mortgage Loans identified on the attached Mortgage Loan Schedule
shall be absolute and is intended by the Sponsor, the Depositor, the Custodian,
the Trustee and the Certificateholders to constitute and to be treated as a
sale
by the Sponsor.
The
parties hereto intend that the transactions set forth herein constitute a sale
by the Sponsor to the Depositor on the Subsequent Transfer Date of all the
Sponsor’s right, title and interest in and to the Subsequent Mortgage Loans and
the related MI Policies, and other property as and to the extent described
above. In the event the transactions set forth herein shall be deemed not to
be
a sale, the Sponsor hereby grants to the Depositor as of the Subsequent Transfer
Date a security interest in all of the Sponsor’s right, title and interest in,
to and under the Subsequent Mortgage Loans, and such other property, to secure
all of the Sponsor’s obligations hereunder, and this Purchase Agreement shall
constitute a security agreement under applicable law, and in such event, the
parties hereto acknowledge that the Custodian, in addition to holding the
Subsequent Mortgage Loans and the related MI Policies on behalf of the Trustee
for the benefit of the Certificateholders, holds the Subsequent Mortgage Loans
and the related MI Policies as designee and agent of the Depositor. The Sponsor
agrees to take or cause to be taken such actions and to execute such documents,
including without limitation the filing of all necessary UCC-1 financing
statements filed in the State of Maryland (which shall be submitted for filing
as of the Subsequent Transfer Date), any continuation statements with respect
thereto and any amendments thereto required to reflect a change in the name
or
corporate structure of the Sponsor or the filing of any additional UCC-1
financing statements due to the change in the state of incorporation of the
Sponsor as are necessary to perfect and protect the interests of the Depositor
and its assignees in each Subsequent Mortgage Loan, the related MI Policies
and
the proceeds thereof.
EX
2(A)-
1
(b) The
expenses and costs relating to the delivery of the Subsequent Mortgage Loans,
this Sponsor’s Instrument and such other items required under the Mortgage Loan
Purchase Agreement shall be borne by the Sponsor.
(c) Additional
terms of the sale are set forth on Attachment A hereto.
Section
2. Representations
and Warranties; Conditions Precedent.
(a) The
Sponsor hereby affirms the representations and warranties set forth in Section
3.01 of the Purchase Agreement that relate to the Sponsor and the Subsequent
Mortgage Loans as of the date hereof. The Sponsor hereby confirms that each
of
the conditions set forth in Section 2.02(b) of the Purchase Agreement are
satisfied as of the date hereof and further represents and warrants that each
Subsequent Mortgage Loan complies with the requirements of this Sponsor’s
Instrument and Section 2.02(c) of the Purchase Agreement.
(b) The
Sponsor is solvent, is able to pay its debts as they become due and has capital
sufficient to carry on its business and its obligations hereunder; it will
not
be rendered insolvent by the execution and delivery of this Sponsor’s Instrument
or by the performance of its obligations hereunder nor is it aware of any
pending insolvency; no petition of bankruptcy (or similar insolvency proceeding)
has been filed by or against the Sponsor prior to the date hereof.
(c) All
terms
and conditions of the Purchase Agreement are hereby ratified and confirmed;
provided, however, that in the event of any conflict the provisions of this
Sponsor’s Instrument shall control over the conflicting provisions of the
Purchase Agreement.
Section
3. Recordation
of the Sponsor’s Instrument.
To
the
extent permitted by applicable law, this Sponsor’s Instrument, or a memorandum
thereof if permitted under applicable law, is subject to recordation in all
appropriate public offices for real property records in all of the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Servicer, but only when
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders
or
is necessary for the administration or servicing of the Mortgage
Loans.
EX
2(A)-
2
Section
4. Governing
Law.
This
Sponsor’s Instrument shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws, without giving effect to
principles of conflicts of law.
Section
5. Counterparts.
This
Sponsor’s Instrument may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same instrument.
Section
6. Successors
and Assigns.
This
Sponsor’s Instrument shall inure to the benefit of and be binding upon the
Sponsor and the Depositor and their respective successors and assigns. The
Custodian and the Trustee shall be express third party beneficiaries
hereto.
EX
2(A)-
3
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Sponsor’s
Instrument as of the day and year first written above.
|
NOVASTAR
MORTGAGE, INC.,
as
Sponsor
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
NOVASTAR
MORTGAGE FUNDING
CORPORATION,
as
Depositor
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
[Signature
page to Sponsor’s Subsequent Transfer Instrument]
EX
2(A)-
4
NOVASTAR
HOME EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-2
ATTACHMENT
A TO SPONSOR’S SUBSEQUENT TRANSFER INSTRUMENT
__________
__, 200_
A. Profile
of Subsequent Mortgage Loans:
1. Subsequent
Cut-off Date: _________ __, 200_
2. Subsequent
Transfer Date: ________ __, 200_
3. Aggregate
Principal Balance of the Subsequent Mortgage Loans as of the Subsequent Cut-off
Date: $_____________
4. Purchase
Price: 100.00%
B. As
to all
the Subsequent Mortgage Loans the subject of this Instrument:
|
I.
|
Longest
stated term to maturity:
|
____
|
months | |||||
|
II.
|
Minimum
Mortgage Rate:
|
____
|
%
|
|||||
|
III.
|
Maximum
Mortgage Rate:
|
____
|
%
|
|||||
|
IV.
|
WAC
of all Mortgage Loans:
|
____
|
%
|
|||||
|
V.
|
WAM
of all Mortgage Loans:
|
____
|
%
|
|||||
|
VI.
|
Largest
Principal Balance:
|
$
|
______
|
|||||
|
VII.
|
Non-owner
occupied Mortgaged Properties:
|
____
|
%
|
|||||
|
VIII.
|
California
zip code concentration:
|
____
|
%
|
|||||
|
IX.
|
Condominiums:
|
____
|
%
|
|||||
|
X.
|
Single-family:
|
____
|
%
|
|||||
|
XI.
|
Weighted
average term since origination:
|
___
|
month | |||||
|
XII.
|
Mortgage
Loans Covered by MI Policies:
|
____
|
%
|
EX
2(A)-
5
EXHIBIT
2(B)
DEPOSITOR’S
SUBSEQUENT TRANSFER INSTRUMENT
Pursuant
to this Depositor’s Subsequent Transfer Instrument (the “Depositor’s
Instrument”), dated as of _________ __, 200_, between NovaStar Mortgage Funding
Corporation, as depositor (the “Depositor”)
and
Deutsche Bank National Trust Company, as trustee (the “Trustee”),
and
pursuant to the Mortgage Loan Purchase Agreement, dated as of November 1, 2006
(the “Purchase
Agreement”),
among
NovaStar Mortgage, Inc., as sponsor (the “Sponsor”),
the
Depositor, U.S. Bank National Association, as Custodian (“Custodian”)
and
the Trustee, the Depositor and the Trustee agree to the sale by the Depositor
and the purchase by the Trustee of the subsequent Mortgage Loans listed on
the
attached Mortgage Loan Schedule (the “Subsequent
Mortgage Loans”)
and
the related MI Policies, and the pledge of the Subsequent Mortgage Loans by
the
Trustee.
Capitalized
terms used and not defined herein have their respective meanings as set forth
in
the definitions contained in the Pooling and Servicing Agreement, dated as
of
May 1, 2007 (the “Pooling
and Servicing Agreement”),
between the Custodian, the Trustee, the Depositor and the Servicer which
definitions are incorporated by reference herein. All other capitalized terms
used herein shall have the meanings specified herein.
Section
1. Conveyance
of Subsequent Mortgage Loans.
(a) The
Depositor does hereby sell, transfer, assign, set over and convey to the
Trustee, without recourse, (i) all of its right, title and interest in and
to
the Subsequent Mortgage Loans and the related MI Policies, all scheduled
payments of principal and interest on the Subsequent Mortgage Loans due after
the Subsequent Cut-off Date, and all other payments of principal and interest
on
the Subsequent Mortgage Loans collected after the Subsequent Cut-off Date (minus
that portion of any such payment which is allocable to the period prior to
the
Subsequent Cut-off Date); provided, however, that no scheduled payments of
principal and interest due on or before the Subsequent Cut-off Date and
collected after the Subsequent Cut-off Date shall belong to the Trustee pursuant
to the terms of this Depositor’s Instrument and (ii) all of its right, title and
interest in and to the Sponsor’s Subsequent Transfer Instrument, dated as of
______ __, 200_ (the “Sponsor’s Instrument”), between the Sponsor and the
Depositor. The Depositor, contemporaneously with the delivery of this
Depositor’s Instrument, has delivered or caused to be delivered to the Custodian
each item set forth in Section 2.02(b) of the Purchase Agreement with respect
to
such Subsequent Mortgage Loans. The transfer to the Trustee by the Depositor
of
the Subsequent Mortgage Loans identified on the attached Mortgage Loan Schedule
and the related MI Policies shall be absolute and is intended by the Depositor,
the Trustee, the Custodian and the Certificateholders to constitute and to
be
treated as a sale by the Depositor.
The
parties hereto intend that the transactions set forth herein constitute a sale
by the Depositor to the Trustee on the Subsequent Transfer Date of all the
Depositor’s right, title and interest in and to the Subsequent Mortgage Loans
and the related MI Policies, and other property as and to the extent described
above. In the event the transactions set forth herein shall be deemed not to
be
a sale, the Depositor hereby grants to the Trustee as of the Subsequent Transfer
Date a security interest in all of the Depositor’s right, title and interest in,
to and under the Subsequent Mortgage Loans, and such other property, to secure
all of the Depositor’s obligations hereunder, and this Depositor’s Instrument
shall constitute a security agreement under applicable law, and in such event,
the parties hereto acknowledge that the Custodian on behalf of the Trustee,
in
addition to holding the Subsequent Mortgage Loans and the related MI Policies
for the benefit of the Certificateholders, holds the Subsequent Mortgage Loans
and the related MI Policies as designee and agent of the Trustee. The Depositor
agrees to take or cause to be taken such actions and to execute such documents,
including without limitation the filing of all necessary UCC-1 financing
statements filed in the State of Delaware (which shall be submitted for filing
as of the Subsequent Transfer Date), any continuation statements with respect
thereto and any amendments thereto required to reflect a change in the name
or
corporate structure of the Depositor or the filing of any additional UCC-1
financing statements due to the change in the state of incorporation of the
Depositor as are necessary to perfect and protect the interests of the Trustee
and its assignees in each Subsequent Mortgage Loan, the related MI Policies
and
the proceeds thereof.
(b) The
expenses and costs relating to the delivery of the Subsequent Mortgage Loans,
this Depositor’s Instrument and such other items required under the Purchase
Agreement shall be borne by the Depositor.
Section
2. Representations
and Warranties; Conditions Precedent.
(a) The
Depositor hereby affirms the representations and warranties set forth in Section
3.02 of the Purchase Agreement that relate to the Depositor as of the date
hereof. The Depositor hereby confirms that each condition precedent and
Subsequent Mortgage Loan requirement set forth in Section 2.02(b) and 2.02(c)
of
the Purchase Agreement and in this Depositor Instrument are satisfied as of
the
date hereof.
(b) The
Depositor is solvent, is able to pay its debts as they become due and has
capital sufficient to carry on its business and its obligations hereunder;
it
will not be rendered insolvent by the execution and delivery of this Depositor’s
Instrument or by the performance of its obligations hereunder nor is it aware
of
any pending insolvency; no petition of bankruptcy (or similar insolvency
proceeding) has been filed by or against the Depositor prior to the date
hereof.
(c) All
terms
and conditions of the Purchase Agreement are hereby ratified and confirmed
by
the Depositor; provided, however, that in the event of any conflict the
provisions of this Depositor’s Instrument shall control over the conflicting
provisions of the Mortgage Loan Purchase Agreement.
Section
3. Recordation
of Instrument.
To
the
extent permitted by applicable law, this Depositor’s Instrument, or a memorandum
thereof if permitted under applicable law, is subject to recordation in all
appropriate public offices for real property records in all of the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Servicer, but only when
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders
or
is necessary for the administration or servicing of the Mortgage
Loans.
Section
4. Governing
Law.
This
Depositor’s Instrument shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws, without giving
effect to principles of conflicts of law.
Section
5. Counterparts.
This
Depositor’s Instrument may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same instrument.
Section
6. Successors
and Assigns.
This
Depositor’s instrument shall inure to the benefit of and be binding upon the
Depositor, the Custodian and the Trustee and their respective successors and
assigns.
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Depositor’s
Instrument as of the day and year first written above.
|
NOVASTAR
MORTGAGE FUNDING
CORPORATION,
as
Depositor
|
||
| |
|
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| By: | ||
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Name:
|
||
| Title: | ||
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DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity but
solely
as Trustee
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||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
|
U.S.
BANK NATIONAL ASSOCIATION,
as
Custodian
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||
| |
|
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| By: | ||
|
Name: |
||
| Title: | ||
[Signature
page to Depositor’s Subsequent Transfer Instrument 1 of 2]
| Agreed to and Acknowledged by: | |||
|
NOVASTAR
MORTGAGE, INC.
as
Sponsor
|
|||
| By: | |||
|
Name: Xxxx
Xxxxxxxxxxxx
|
|||
|
Title: Vice
President
|
[Signature
page to Depositor’s Subsequent Transfer Instrument 2 of 2]
NOVASTAR
HOME EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-2
ATTACHMENT
A TO DEPOSITOR'S SUBSEQUENT TRANSFER INSTRUMENT
__________
__, 200_
A.
Profile
of Subsequent Mortgage Loans:
1. Subsequent
Cut-off Date: _________ __, 200_
2. Subsequent
Transfer Date: ________ __, 200_
3. Aggregate
Principal Balance of the Subsequent Mortgage Loans as of the Subsequent Cut-off
Date: $_____________
4. Purchase
Price: 100.00%
B.
As
to all
the Subsequent Mortgage Loans the subject of this Instrument:
|
I.
|
Longest
stated term to maturity:
|
____
|
months | |||||
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II.
|
Minimum
Mortgage Rate:
|
____
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%
|
|||||
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III.
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Maximum
Mortgage Rate:
|
____
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%
|
|||||
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IV.
|
WAC
of all Mortgage Loans:
|
____
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%
|
|||||
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V.
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WAM
of all Mortgage Loans:
|
____
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%
|
|||||
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VI.
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Largest
Principal Balance:
|
$
|
______
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|||||
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VII.
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Non-owner
occupied Mortgaged Properties:
|
____
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%
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|||||
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VIII.
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California
zip code concentration:
|
____
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%
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|||||
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IX.
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Condominiums:
|
____
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%
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|||||
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X.
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Single-family:
|
____
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%
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|||||
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XI.
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Weighted
average term since origination:
|
___
|
month | |||||
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XII.
|
Mortgage
Loans Covered by MI Policies:
|
____
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%
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TABLE
OF CONTENTS
| Page(s) | ||||
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ARTICLE
I DEFINITIONS
|
1
|
|||
|
Section
1.01
|
Definitions
|
1
|
||
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ARTICLE
II SALE
OF MORTGAGE LOANS AND RELATED PROVISIONS
|
1
|
|||
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Section
2.01
|
Sale
of Initial Mortgage Loans and MI Policies
|
1
|
||
|
Section
2.02
|
Conveyance
of the Subsequent Mortgage Loans
|
5
|
||
|
Section
2.03
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Pre-Funding
Account
|
9
|
||
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Section
2.04
|
Interest
Coverage Account
|
9
|
||
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ARTICLE
III REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
|
9
|
|||
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Section
3.01
|
Sponsor
Representations and Warranties
|
9
|
||
|
Section
3.02
|
Depositor
Representations and Warranties
|
29
|
||
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ARTICLE
IV SPONSOR’S
COVENANTS
|
30
|
|||
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Section
4.01
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Covenants
of the Sponsor
|
30
|
||
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Section
4.02
|
Payment
of Expenses
|
30
|
||
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ARTICLE
V CONDITIONS
TO INITIAL MORTGAGE LOAN PURCHASE
|
31
|
|||
|
Section
5.01
|
Conditions
of Depositor’s Obligations
|
31
|
||
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ARTICLE
VI INDEMNIFICATION
BY THE SPONSOR WITH RESPECT TO THE MORTGAGE LOANS
|
31
|
|||
|
Section
6.01
|
Indemnification
With Respect to the Mortgage Loans
|
31
|
||
|
Section
6.02
|
Limitation
on Liability of the Sponsor
|
31
|
||
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ARTICLE
VII TERMINATION
|
32
|
|||
|
Section
7.01
|
Termination
|
32
|
||
|
ARTICLE
VIII MISCELLANEOUS
PROVISIONS
|
33
|
|||
|
Section
8.01
|
Amendment
|
33
|
||
|
Section
8.02
|
Governing
Law
|
33
|
||
|
Section
8.03
|
Notices
|
34
|
||
|
Section
8.04
|
Severability
of Provisions
|
34
|
||
|
Section
8.05
|
Relationship
of Parties
|
35
|
||
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Section
8.06
|
Counterparts
|
35
|
||
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Section
8.07
|
Further
Agreements
|
35
|
||
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Section
8.08
|
Intention
of the Parties
|
35
|
||
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Section
8.09
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Successors
and Assigns; Assignment of Purchase Agreement
|
36
|
||
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Section
8.10
|
Survival
|
36
|
||
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Section
8.11
|
Liability
of the Trustee
|
36
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||
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EXHIBIT
1
|
Mortgage
Loan Schedule
|
|||
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EXHIBIT
2(A)
|
Sponsor's
Subsequent Transfer Instrument
|
|||
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EXHIBIT
2(B)
|
Depositor's
Subsequent Transfer Instrument
|
|||
