MORTGAGE LOAN PURCHASE AGREEMENT
This
MORTGAGE
LOAN PURCHASE AGREEMENT
(this
“Agreement”),
dated
as of July 1, 2006, is by and between DLJ
MORTGAGE CAPITAL, INC.,
as
seller (“Seller”),
and
BANK
OF AMERICA, NATIONAL ASSOCIATION,
as
purchaser (“Purchaser”).
WITNESSETH:
WHEREAS,
Seller
is in the business of dealing in residential first lien mortgage loans;
and
WHEREAS,
Seller
wishes to sell all right, title and interest in and to certain mortgage loans
with an aggregate principal balance as of the Cut-Off Date (as defined below)
of
the amount set forth in a letter agreement by and between the Seller and the
Purchaser (the “Purchase
Price and Terms Letter”),
exclusive of the servicing rights related thereto, in accordance with the terms
and conditions of this Agreement; and
WHEREAS,
Purchaser wishes to purchase all right, title and interest in and to such
mortgage loans, exclusive of the servicing rights related thereto, in accordance
with the terms and conditions of this Agreement and the Purchase Price and
Terms
Letter, and
WHEREAS,
following
its purchase of the mortgage loans from Seller, Purchaser may desire to sell
some or all of the mortgage loans to one or more purchasers as a Whole Loan
Transfer or a Pass-Through Transfer.
NOW,
THEREFORE,
in
consideration of the mutual covenants made herein and for other good and
valuable consideration the sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE
I. DEFINITIONS
Whenever
used herein, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
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1.1
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Adjustable
Rate Mortgage Loan.
A
Mortgage Loan that bears a rate of interest that changes in accordance
with the terms of the related Mortgage
Note.
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1.2
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Adjustment
Date.
As to each Adjustable Rate Mortgage Loan, a Due Date, as set forth
in the
related Mortgage Note, on which date an adjustment to the Mortgage
Interest Rate of such Mortgage Loan becomes
effective.
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1.3
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Agreement.
This Mortgage Loan Purchase Agreement, including all exhibits, attachments
and schedules hereto, and all amendments hereof and supplements
hereto.
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1.4
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ALTA.
The American Land Title Association and any successor
thereto.
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1.5
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Appraised
Value.
The amount set forth in an appraisal made by or for the mortgage
originator in connection with its origination of each Mortgage Loan
or,
with respect to certain Mortgage Loans made for the purpose of refinancing
existing mortgage debt, the amount set forth in the appraisal made
by or
for the originator in connection with its origination of such mortgage
debt.
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1
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1.6
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Assignment
of Mortgage.
An assignment of the Mortgage, notice of transfer or equivalent instrument
in recordable form sufficient under the laws of the jurisdiction
wherein
the related Mortgaged Property is located to reflect the transfer
of the
Mortgage to the Purchaser, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket
assignments covering Mortgages secured by Mortgaged Properties in
the same
county or other recording jurisdiction, where permitted by
law.
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1.7
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Assignment
of Proprietary Lease.
With respect to a Cooperative Loan, the assignment or mortgage of
the
related Cooperative Lease from the Mortgagor to the originator of
the
Cooperative Loan.
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1.8
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Business
Day.
Any day other than (a) a Saturday or Sunday, (b) a day on which banking
institutions in the State of New York are authorized or obligated
by law
or by executive order to be closed.
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1.9
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Code.
The Internal Revenue Code of 1986, as amended, or any successor statute
thereto.
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1.10
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Cooperative.
A
private, cooperative housing corporation organized under the laws
of, and
headquartered in the state in which the related premises are located,
which owns or leases land and all or part of a building or buildings
located in any such state, including apartments, spaces used for
commercial purposes and common areas therein and whose board of directors
authorizes, among other things, the sale of Cooperative
Stock.
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1.11
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Cooperative
Apartment.
A
dwelling unit in a multi-dwelling building owned or leased by a
Cooperative, which unit the Mortgagor has an exclusive right to occupy
pursuant to the terms of a proprietary lease or occupancy
agreement.
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1.12
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Cooperative
Lease.
With respect to a Cooperative Loan, the proprietary lease or occupancy
agreement with respect to the Cooperative Apartment occupied by the
Mortgagor and relating to the related Cooperative Stock, which lease
or
agreement confers an exclusive right to the holder of such Cooperative
Stock to occupy such apartment.
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1.13
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Cooperative
Loans.
Any of the Mortgage Loans made in respect of a Cooperative Apartment,
evidenced by a Mortgage Note and secured by (i) a Security Agreement,
(ii)
the related Cooperative Stock Certificate, (iii) an assignment or
mortgage
of the Cooperative Lease, (iv) financing statements and (v) a stock
power
(or other similar instrument), and ancillary thereto, a recognition
agreement between the Cooperative and the originator of the Cooperative
Loan, each of which was transferred and assigned to the
Seller.
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1.14
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Cooperative
Stock.
With respect to a Cooperative Loan, the single outstanding class
of stock,
partnership interest or other ownership instrument in the related
Cooperative.
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1.15
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Cooperative
Stock Certificate.
With respect to a Cooperative Loan, the stock certificate or other
instrument evidencing the related Cooperative
Stock.
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1.16
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Custodial
Agreement.
The agreement, dated as of July 1, 2006, among the Servicer, Bank
of
America, National Association, as owner (the “Owner”), and the Custodian,
pursuant to which the Custodian shall hold the Mortgage File documents
for
the benefit of the Owner.
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2
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1.17
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Custodian.
U.S. Bank National Association, or its successor in interest or
assigns.
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1.18
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Cut-Off
Date.
July 1, 2006.
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1.19
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Document
Exceptions.
The schedule, if any, attached to the Memorandum of Sale that sets
forth
the exceptions to the Mortgage File with respect to one or more Mortgage
Loans on the Mortgage Loan
Schedule.
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1.20
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Due
Date.
The first day of each calendar month, which is the day on which the
Monthly Payment for each Mortgage Loan is
due.
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1.21
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Escrow
Account.
The account into which Escrow Payments are deposited by a Servicer
as
described in the Servicing
Agreement.
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1.22
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Escrow
Payments.
As defined in the Servicing
Agreement.
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1.23
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Exception
Schedule.
The schedule, if any, attached to the Memorandum of Sale that sets
forth
exceptions to the representations and warranties set forth in Section
4.1
with respect to one or more Mortgage Loans on the related Mortgage
Loan
Schedule.
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1.24
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FHLMC.
Xxxxxxx Mac, or its
successor-in-interest.
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1.25
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FNMA.
Xxxxxx Mae, or its
successor-in-interest.
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1.26
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GNMA.
The Government National Mortgage Association, or its
successor-in-interest.
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1.27
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Index.
The Index by reference to which the Mortgage Interest Rate for any
Mortgage Loan is calculated pursuant to the terms of the related
Mortgage
Note, which Index shall be either (i) One-Year CMT, which is the
weekly
average yield on United States Treasury Securities adjusted to a
constant
maturity of one year, as made available by the Federal Reserve Board,
published in Federal Reserve Statistical Release H.15(519) most recently
available as of 45 days before the applicable Adjustment Date or
(ii)
Six-Month LIBOR, which is the rate for six-month U.S. dollar denominated
deposits offered in the London interbank market as published in The
Wall
Street Journal and most recently available as of the first business
day of
the month immediately preceding the month of the applicable Adjustment
Date or (iii) as specified interest the Memorandum of Sale.
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1.28
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Insurers.
Private mortgage guaranty insurers which are (a) licensed to transact
a
mortgage guaranty insurance business in the states where Mortgaged
Properties for which they have written Primary Insurance Policies
are
located and (b) approved by FHLMC or
FNMA.
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1.29
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Loan-to-Value
Ratio (“LTV”).
The original principal amount of a Mortgage Loan divided by the Original
Value.
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1.30
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Margin.
For each Adjustable Rate Mortgage Loan, the applicable fixed per
annum
percentage rate specified in the applicable Mortgage Note and designated
as such in the Mortgage Loan Schedule, which, when added to the applicable
Index, determines the Mortgage Interest Rate, subject to the restrictions
provided by the Mortgage Note.
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1.31
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Memorandum
of Sale.
A
memorandum, in the form attached hereto as Exhibit
C,
which evidences the sale by the Seller to the Purchaser of the Mortgage
Loans pursuant to the terms of this
Agreement.
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1.32
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Monthly
Payment.
The scheduled payment of principal and interest on a Mortgage Loan
which
is due on the applicable Due Date.
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3
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1.33
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Mortgage.
The mortgage, deed of trust or other security instrument evidencing
the
creation of a first lien security interest in a fee simple estate
in real
property securing repayment of the Mortgage
Note.
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1.34
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Mortgage
File.
The mortgage documents pertaining to a particular Mortgage Loan as
set
forth on Exhibit
A.
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1.35
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Mortgage
Interest Rate.
The rate of interest determined pursuant to the Mortgage Note for
the
related Mortgage Loan.
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1.36
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Mortgage
Loan.
A
first lien residential mortgage loan sold by Seller to Purchaser
pursuant
to the terms and conditions of this Agreement and the Purchase Price
and
Terms Letter.
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1.37
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Mortgage
Loan Schedule.
The schedule of Mortgage Loans which shall be attached to the Memorandum
of Sale and shall set forth as to each applicable Mortgage Loan the
following information, among other
things:
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(i)
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the
Seller’s Mortgage Loan identifying
number;
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(ii)
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the
Mortgagor’s first and last name;
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(iii)
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the
street address of the Mortgaged Property including the city, state
and zip
code;
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(iv)
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a
code indicating whether the Mortgaged Property is
owner-occupied;
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(v)
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the
number and type of residential units constituting the Mortgaged
Property;
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(vi)
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the
original months to maturity or the remaining months to maturity from
the
Cut-Off Date of the Mortgage Loan, in either case based on the original
amortization schedule and, if different, the maturity expressed in
the
same manner but based on the actual amortization
schedule;
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(vii)
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with
respect to Adjustable Rate Mortgage Loans:
(a)
the Margin, and
(b)
the Mortgage Interest Rate, periodic cap, lifetime floor and lifetime
ceiling and, if applicable, the negative amortization
cap,
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(viii)
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the
Loan-to-Value Ratio of the Mortgage Loan at
origination;
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(ix)
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Mortgage
Interest Rate of the Mortgage Loan as of the Cut-Off
Date;
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(x)
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the
next date on which the Monthly Payment on the Mortgage Loan is due,
and
the date on which the first Monthly Payment was due on the Mortgage
Loan;
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(xi)
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the
stated maturity date of the Mortgage
Loan;
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(xii)
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the
amount of the Monthly Payment as of the Cut-Off
Date;
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(xiii)
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the
last date on which a payment was actually applied to the outstanding
principal balance of the Mortgage Loan;
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(xiv)
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the
original principal amount of the Mortgage
Loan;
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(xv)
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the
principal balance of the Mortgage Loan as of the close of business
on the
Cut-Off Date, after deduction of payments of principal due on or
before
the Cut-Off Date whether or not
collected;
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(xvi)
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the
type of Mortgage Loan (i.e.,
conventional, FHA loan, VA loan);
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(xvii)
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a
code indicating the purpose of the Mortgage Loan (i.e.,
purchase, rate and term refinance, equity take-out
refinance);
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4
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(xviii)
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a
code indicating the documentation style of the Mortgage Loan (i.e.,
full, alternative or reduced);
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(xix)
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a
Primary Mortgage Insurance Policy Insurer code, percent and policy
number
(if applicable);
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(xx)
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the
Appraised Value of the Mortgaged
Property;
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(xxi)
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the
sale price of the Mortgaged Property, if
applicable;
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(xxii)
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a
code indicating if the Mortgage Loan is subject to a prepayment
penalty;
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(xxiii)
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if
the Due Date is other than the first day of the month, the Due
Date;
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(xxiv)
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a
credit score or mortgage score;
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(xxv)
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a
code indicating the form of ownership (i.e., fee simple, leasehold
or
co-op; and
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(xxvi)
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the
Servicing Fee applicable to such Mortgage
Loan.
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With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
shall
set forth the following information, as of the Cut-Off Date: (1) the number
of Mortgage Loans; (2) the current aggregate outstanding principal balance
of the Mortgage Loans; (3) the weighted average mortgage interest rate of
the Mortgage Loans; and (4) the weighted average maturity of the Mortgage
Loans.
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1.38
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Mortgage
Note.
The note or other instrument evidencing the Mortgagor’s obligation to
repay the amount of the Mortgage Loan, executed by the Mortgagor
or its
authorized agent.
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1.39
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Mortgaged
Property.
The real property, together with improvements thereto, securing the
indebtedness of the Mortgagor under the related Mortgage Loan, or,
in the
case of a Cooperative Loan, the property described in the definition
of
“Cooperative
Loan.”
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1.40
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Mortgagor.
The obligor(s) on a Mortgage Note.
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1.41
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Opinion
of Counsel.
A
written opinion of counsel, who may be an employee of the Seller
or
Servicer, reasonably acceptable to
Purchaser.
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1.42
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Original
Value.
With respect to any Mortgage Loan other than a Mortgage Loan originated
for the purpose of refinancing an existing mortgage debt, the lesser
of
(a) the Appraised Value of the Mortgaged Property at the time the
Mortgage
Loan was originated or (b) the purchase price paid for the Mortgaged
Property by the Mortgagor. With respect to a Mortgage Loan originated
for
the purpose of refinancing existing mortgage debt, the Original Value
shall be equal to the Appraised Value of the Mortgaged Property at
the
time the Mortgage Loan was
originated.
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1.43
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Pass-Through
Transfer.
The sale or transfer of some or all of the Mortgage Loans by Purchaser
to
a trust to be formed as part of a publicly issued or privately placed
mortgage backed securities
transaction.
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1.44
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Person.
Any individual, corporation, partnership, limited liability company,
joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
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1.45
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Primary
Mortgage Insurance Policy.
A
policy of primary mortgage insurance (including all endorsements
thereto)
which complies with substantially all of the requirements established
by
FNMA or FHLMC for such policies.
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5
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1.46
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Purchase
Price.
The product of the Purchase Price Percentage and the aggregate scheduled
principal balance of the Mortgage Loans as of the Cut-Off Date after
giving effect to scheduled Monthly Payments due on or before the
Cut-Off
Date, whether or not received
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1.47
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Purchase
Price Percentage.
As
set forth in the Memorandum of
Sale.
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1.48
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Purchaser.
Bank of America, National
Association.
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1.49
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REMIC.
A
“real estate mortgage investment conduit” within the meaning of Section
860D of the Code.
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1.50
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REMIC
Provisions.
Provisions of the federal income tax law relating to a REMIC, which
appear
at section 860A through 860G of Subchapter M of Chapter 1, Subtitle
A of
the Code, and related provisions, and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in
effect
from time to time.
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1.51
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REO
Property.
A
Mortgaged Property acquired by Servicer through a foreclosure or
deed in
lieu of foreclosure, as described in the Servicing
Agreement.
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1.52
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Sale
Date.
July 28, 2006.
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1.53
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Security
Agreement.
With respect to a Cooperative Loan, the agreement or mortgage creating
a
security interest in favor of the originator of the Cooperative Loan
in
the related Cooperative Stock.
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1.54
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Seller.
DLJ Mortgage Capital, Inc. or its successor in interest or assigns.
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1.55
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Servicer.
Xxxxx Fargo Bank, N.A., or its successor in interest or assigns,
or a
mortgage loan servicing institution (including related servicing
corporations and agents) to which Servicer may assign servicing duties
with respect to particular Mortgage Loans, or any successor to Servicer
under the Servicing Agreement.
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1.56
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Servicing
Agreement.
That certain Second Amended and Restated Master Seller’s Warranties and
Servicing Agreement by and between Purchaser and Servicer dated as
of May
1, 2006.
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1.57
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Servicing
Fee.
For each Mortgage Loan, the fee provided pursuant to the Memorandum
of
Sale, expressed as a per annum percentage of the outstanding principal
balance of such Mortgage Loan, payable monthly to the Servicer for
performing primary servicing functions with respect to such Mortgage
Loan;
provided,
that if no fee is provided by the Memorandum of Sale, the Servicing
Fee
shall be the amount per annum as set forth in the related Purchase
Price
and Terms Letter.
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1.58
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Whole
Loan Transfer.
Any sale or transfer of some or all of the Mortgage Loans by Purchaser
to
a third party, which sale or transfer is not a Pass-Through
Transfer.
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ARTICLE
II. CONVEYANCE AND TRANSFER
Section
2.1 Conveyance
and Transfer.
On
the
Sale Date, subject to, and upon the terms and conditions of this Agreement,
Seller shall sell, transfer, assign and deliver to Purchaser, and Purchaser
shall purchase, all right, title and interest in and to the Mortgage Loans
as
well as all remittances and other payments (other than Monthly Payments due
on
or before the Cut-Off Date) received by Servicer in connection with such
Mortgage Loans after the Cut-Off Date.
6
Section
2.2 Sale
Date.
On
the
Sale Date, the Mortgage File related to each Mortgage Loan will be delivered
to
Custodian; provided, that to the extent that any such documents have not been
returned from the applicable public recording office, a true certified copy
of
the original thereof together with a certification that the original has been
delivered for recording in the appropriate public recording office of the
jurisdiction in which the Mortgaged Property is located shall be delivered
to
the Custodian, for the benefit of Purchaser. Seller shall, in connection with
such delivery:
| (a) |
with
respect to each mortgage loan that is not a Cooperative
Loan:
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(i)
cause the related Mortgage Note to be endorsed either “Pay to the order of
U.S. Bank National Association, as custodian/trustee, without
recourse” or
“Pay to the order of __________________________, without recourse”;
and
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(ii)
assign to either U.S. Bank National Association, as custodian/trustee,
or
blank, the related Mortgage by an Assignment of Mortgage signed by
Seller
or the originator of the Mortgage Loan, in either case showing a
complete
chain of title from Seller or such originator and in form and substance
acceptable for recording (except with respect to Assignments of Mortgage
in blank which shall be acceptable for recording upon insertion of
the
assignee’s name).
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| (b) |
and,
with respect to each Cooperative
Loan:
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(i)
cause the related Mortgage Note to be endorsed to “Pay to the order of
U.S. Bank National Association, as custodian/trustee, without recourse” or
“Pay to the order of __________________________, without recourse”;
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Pursuant
to the Custodial Agreement, the Custodian shall notify the Purchaser and the
Seller if any document or documents constituting a part of the Mortgage File
are
missing or defective in respect of the items reviewed by it pursuant to the
Custodial Agreement. The Purchaser shall notify the Seller and the Custodian
of
any such omission or defect which it finds in respect of any Mortgage Loan.
If
such omission or defect materially and adversely affect the interests of the
Purchaser in the Mortgage Loan, the Seller shall correct or cure such omission
or defect within 60 days from the date the Seller was notified of such omission
or defect and, if the Seller does not correct or cure such omission or defect
within such period, then the Seller shall purchase such Mortgage Loan from
the
Purchaser within 10 days from the expiration of such 60-day period by depositing
in immediately available funds the repurchase price for such Mortgage Loan
to
the account designated by the Purchaser, calculated and payable in the manner
set forth in Section
4.2.
The
Seller shall be responsible for the initial and ongoing fees and expenses of
the
Custodian so long as the Custodian is U.S. Bank National Association or any
other entity which acts as custodian for mortgage loans held for sale by the
Seller or which replaces the initial Custodian at the direction of the Seller;
provided, however, that if the Custodian is terminated at the request or
direction of the Purchaser, the Purchaser shall be responsible for the ongoing
fees of any replacement Custodian..
7
Section
2.3 Due
Diligence Examination.
Prior
to
the fifth Business Day preceding the Sale Date, Purchaser shall have the right,
during Seller’s regular business hours without interrupting Seller’s operations
to review the documents and Seller’s books, records and accounts with respect to
such Mortgage Loans, including all credit and underwriting
information
for the
purpose of determining that the Mortgage Loans comply with the terms and
conditions of this Agreement and the Purchase Price and Terms
Letter.
ARTICLE
III. CONSIDERATION
Section
3.1 Purchase
Price.
On
the
Sale Date, Purchaser shall pay to the Seller, by wire transfer of immediately
available funds, the sum of (i) the Purchase Price and (ii) accrued interest
on
the aggregate scheduled principal balance of the Mortgage Loans, as of the
Cut-Off Date after giving effect to scheduled Monthly Payments due on or before
the Cut-Off Date, whether or not received, from the Cut-Off Date through the
day
prior to the Sale Date at the weighted average (by principal balance) of the
Mortgage Interest Rates borne by such Mortgage Loans as set forth in the
applicable Memorandum of Sale less the related Servicing Fees.
ARTICLE
IV. REPRESENTATIONS AND WARRANTIES
Section
4.1 Representations
and Warranties of Seller.
Seller
represents, warrants and covenants to Purchaser that as of the Sale
Date:
(i)
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and is qualified to transact business
under the laws of each state required by applicable law or is otherwise exempt
under applicable law from such qualification and no demand for such
qualification has been made upon Seller by any state;
(ii)
Seller has all requisite corporate power, authority and capacity to enter into
this Agreement and to perform the obligations required of it hereunder. This
Agreement has been duly authorized, validly executed and delivered by Seller
and
(assuming the due authorization and execution of this Agreement by Purchaser)
constitutes a valid and legally binding agreement of Seller enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization and similar laws, and by
equitable principles affecting the enforceability of the rights of creditors.
No
consent, approval, authorization or order of any court, regulatory body or
governmental agency or body is required for the execution, delivery and
performance by Seller of, or compliance by the Seller with this Agreement,
the
sale of the Mortgage Loans or the consummation of the transactions contemplated
by the Agreement;
(iii)
Neither the execution and delivery of this Agreement, the sale of the Mortgage
Loans to Purchaser, the consummation of any other transaction contemplated
herein, nor the fulfillment of or compliance with the terms of this Agreement,
will conflict with or result in the breach of any term or provision of the
certificate of incorporation or by-laws of Seller or conflict with, result
in a
material breach, violation or acceleration of or constitute a material default
under, the terms of any indenture or other agreement or instrument to which
Seller is a party or by which it is bound, or any statute, order, judgment,
governmental rule or regulation applicable to Seller or any of its properties;
8
(iv)
Seller is not aware of any facts or circumstances which will materially impair
its ability to perform its obligations under this Agreement;
(v)
There
is no action, suit, proceeding or investigation pending or, to Seller’s
knowledge, threatened, that, if determined adversely to Seller, would materially
and adversely affect the sale of the Mortgage Loans by Seller pursuant to this
Agreement on the Sale Date, the execution, delivery or enforceability of this
Agreement, or the ability of Seller to perform its obligations hereunder or
which would have a material adverse effect on the financial condition of
Seller;
(vi)
No
consent, approval, authorization or order of any court, regulatory body or
governmental agency or body is required for the execution, delivery and
performance by Seller of or compliance by Seller with this Agreement, the sale
of the Mortgage Loans or the consummation of the transactions contemplated
by
this Agreement;
(vii)
With respect to each Mortgage Loan:
(a) The
information with respect to such Mortgage Loan set forth on the Mortgage Loan
Schedule is complete, true and correct.
(b) The
Mortgage and the Mortgage Note is not assigned or pledged to any Person and,
immediately prior to the transfer thereof to the Purchaser pursuant to
Section 2.1,
the
Seller had good and marketable title thereto. The Seller is the sole owner
and
holder of such Mortgage Loan 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, subject to no interest
or participation of, or agreement with, any other party, to sell and assign
such
Mortgage Loan pursuant to this Agreement. Upon the transfer thereof to the
Purchaser pursuant to Section 2.1,
the
Seller will have taken all actions necessary on its part to be taken so that
the
Purchaser will have good indefeasible title to, and will be sole owner of,
the
Mortgage and the Mortgage Note, free and clear of any and all liens, claims,
encumbrances, participation interests, equities, pledges, charges, or security
interests of any nature.
(c) With
respect to each Mortgage Loan (other than a Cooperative Loan), (i) the Mortgage
is a valid, subsisting and enforceable first lien on the Mortgaged Property,
including all buildings, fixtures, installations and improvements to the
Mortgaged Property, and the Mortgaged Property is free and clear of all
encumbrances and liens having parity with or priority over the first lien of
the
Mortgage except for (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements, mineral right reservations and other
matters of public record as of the date of recording of such Mortgage, such
exceptions generally being acceptable under prudent mortgage lending standards
and specifically reflected in the appraisal made in connection with the
origination of such Mortgage Loan or specifically referred to in the mortgagee’s
policy of title insurance and (C) other matters to which like properties
are commonly subject that do not materially interfere with the value (as
determined by the Appraised Value), use, enjoyment or marketability of the
Mortgaged Property and (ii) there are no security agreements, pledged accounts,
chattel mortgages, or equivalent documents related to the Mortgage.
9
(d) The
terms
of the Mortgage and the Mortgage Note have not been impaired, waived, altered,
or modified in any respect, except by a written instrument which has been
recorded, if necessary, to protect the interest of the Purchaser, each of which
is a part of the Mortgage File and which has been delivered to the Custodian.
The substance of any such alteration or modification is reflected on the
Mortgage Loan Schedule and has been approved by the issuer of any Primary
Mortgage Insurance Policy.
(e) No
instrument of release, waiver, alteration, or modification has been executed
in
connection with such Mortgage Loan, and no Mortgagor has been released, in
whole
or in part, except in connection with an assumption agreement, which is part
of
the Mortgage File and has been delivered to the Custodian, and the terms of
which are reflected in the Mortgage Loan Schedule and has been approved by
the
issuer of any Primary Mortgage Insurance Policy.
(f) There
is
no default, breach, violation, or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
such a default, breach, violation, or event of acceleration, and neither the
Seller, nor to the best of the Seller’s knowledge, any prior seller or servicer,
has waived any such default, breach, violation, or event of acceleration.
All taxes,
governmental assessments (including assessments payable in future installments),
insurance premiums, leasehold payments, or ground rents which previously became
due and owing in respect of or affecting the related Mortgaged Property have
been paid, or 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. The Seller has not 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 or the Mortgage Note. No foreclosure action has been commenced with
respect to such Mortgage Loan.
(g) The
Mortgaged Property is free of material damage or waste and in good repair.
There
is no proceeding pending or, to the best of the Seller’s knowledge, threatened
for the total or partial condemnation of the Mortgaged Property and no notice
of
any such pending or threatened proceeding has been received so as to adversely
impair the value or marketability of the Mortgaged Property.
(h) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor,
or material (and no rights are outstanding that under law could give rise to
such lien) which are, or may be, liens prior or equal to the lien of the related
Mortgage, which are not insured against by the related mortgagee’s policy of
title insurance.
(i) All
of
the improvements which were included for the purpose of determining the
Appraised Value of the Mortgaged Property were completed at the time that such
Mortgage Loan was originated and lie wholly within the boundaries and building
restriction lines of such Mortgaged Property. No improvements on adjoining
properties encroach upon the Mortgaged Property. 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.
10
(j) The
Seller is (or, if the Seller did not originate the Mortgage Loan, the
originator, during the period in which it held and disposed of such interest,
was): (i) in compliance with any and all applicable licensing requirements
of the laws of the state wherein the Mortgaged Property is located and
(ii)(A) organized under the laws of such state, (B) qualified to do
business in such state, (C) a federal savings and loan association or
national bank having principal offices in such state, (D) not doing
business in such state, or (E) not required to qualify to do business in
such state.
(k) No
Monthly Payment with respect to such Mortgage Loan is delinquent as of the
related Sale Date. For purposes of the prior sentence, “delinquent” means that a
scheduled Monthly Payment was not received by the time the next Monthly Payment
was due and such scheduled Monthly Payment remains unpaid. All payments required
to be made under the related Mortgage and Mortgage Note through and including
the Cut-Off Date, have been made. Not more than one payment required to be
made
under the related Mortgage and Mortgage Note has remained unpaid through its
next Due Date (excluding any applicable grace period) during the twelve months
immediately preceding the Cut-Off Date.
(l) There
are
no custodial agreements in effect adversely affecting the right or ability
of
the Seller to make the deliveries specified in Section
2.2.
Each of
the documents with respect to such Mortgage Loan specified in Section 2.2,
in
Exhibit A hereto
or
in the Mortgage File, is genuine, true, correct and complete and has not been
altered or modified in any way except as noted in the Mortgage File, and each
is
duly executed and in due and proper form. Each of the documents with respect
to
such Mortgage Loan specified in Exhibit A
hereto
is genuine, true, correct and complete and has not been altered or modified
in
any way except as reflected on the Mortgage Loan Schedule.
(m) The
Mortgage Note and the Mortgage are genuine, and each is the legal, valid and
binding obligation of the maker thereof and each party assuming liability
therefor, enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting the enforcement of creditors’ rights generally and except
that the equitable remedy of specific performance and other equitable remedies
are subject to the discretion of the courts. All parties to the Mortgage Note
and the Mortgage had legal capacity to execute the Mortgage Note and the
Mortgage and convey the estate therein purported to be conveyed, and the
Mortgage Note and the Mortgage have been duly and properly executed by such
parties or pursuant to a valid power-of-attorney that has been recorded with
the
Mortgage.
(n) The
transfer of the Mortgage Note and the Mortgage as and in the manner contemplated
by this Agreement is sufficient fully to transfer to the Purchaser all right,
title and interest of the Seller thereto as note holder and mortgagee or trust
deed beneficiary. The Mortgage has been duly assigned and the Mortgage Note
has
been duly endorsed as provided in Section 2.2.
The
Assignment of Mortgage delivered to the Purchaser pursuant to Section 2.2
is in
recordable form except for the insertion of the name of the assignee and
recording information and is acceptable for recording under the laws of the
applicable jurisdiction.
11
(o) Any
and
all requirements of any federal, state, or local law including, without
limitation, usury, predatory and abusive lending, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity,
or
disclosure laws applicable to such Mortgage Loan have been complied with, and
the Seller shall maintain, in its possession, available for the Purchaser’s
inspection, and shall deliver to the Purchaser or its designee upon demand,
evidence of compliance with all such requirements. The consummation of the
transactions contemplated by this Agreement will not cause the violation of
any
such laws.
(p) The
proceeds of such Mortgage Loan have been fully disbursed. There is no
requirement for, and the Seller shall not make any, future advances under the
terms of the Mortgage Loan. Any future advances made prior to the applicable
Cut-off Date have been consolidated with the principal balance secured by the
Mortgage, and such principal balance, as consolidated, bears a single interest
rate and single repayment term reflected on the related Mortgage Loan Schedule.
Unless such Mortgage Loan is subject to negative amortization, the Unpaid
Principal Balance as of the applicable Cut-off Date does not exceed the original
principal amount of such Mortgage Loan. All requirements as to completion of
any
on-site or off-site improvements and as to disbursements of any escrow funds
therefor have been complied with, and certificates of completion with respect
thereto are contained in the related credit file. All costs, fees and expenses
incurred in making, or closing or recording such Mortgage Loan have been paid
or
will be paid in the ordinary course of business.
(q) Such
Mortgage Loan (unless it is a Cooperative Loan) is covered by an ALTA mortgage
title insurance policy acceptable to Seller, with, in the case of an Adjustable
Rate Mortgage Loan, an adjustable rate mortgage endorsement, substantially
in
the form of ALTA Form 6.1 or 6.2, or such other generally used and acceptable
form of policy and applicable endorsements acceptable to FNMA or FHLMC. Each
such policy affirmatively insures ingress and egress and insures against
encroachments by or upon the Mortgaged Property. Each such policy was issued
on
the date of the origination of each related Mortgaged Loan by a title insurer
acceptable under Seller’s underwriting guidelines and qualified to do business
in the jurisdiction where the Mortgaged Property is located, insuring the
Seller, and its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of such Mortgage Loan. Each such
policy has been duly and validly endorsed to the Purchaser or the assignment
to
the Purchaser of the Seller’s interest does not require the consent of or
notification to the insurer, and such mortgage title insurance policy is in
full
force and effect. Where required by law or regulation, the Mortgagor has been
given the opportunity to choose the carrier of the required mortgage title
insurance. No claims have been made under such policy and the Seller has taken
no action that would impair the enforceability of such policy.
(r) Unless
such Mortgage Loan is a Cooperative Loan, all buildings and other improvements
upon the Mortgaged Property are insured against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where
the
Mortgaged Property is located, pursuant to insurance policies conforming to
the
requirements of Section 2.13 of the Servicing Agreement and issued by an
insurer acceptable to FNMA or FHLMC. If the Mortgaged Property is in an area
then identified on a flood hazard boundary map or flood insurance rate map
issued by the Federal Emergency Management Agency as having special flood
hazards (and such flood insurance is available), a flood insurance policy is
in
effect meeting the requirements of the current guidelines of the Federal
Insurance Administration with an insurance carrier acceptable to Seller. Each
individual insurance policy has been validly issued and is in full force and
effect. The Seller has caused to be performed all acts required to preserve
the
rights and interests of the Purchaser in all insurance policies required by
this
Agreement, including, without limitation, notification of insurers, and
assignment of policies or interests therein. Each individual insurance policy
contains a standard mortgagee clause naming the Seller, and its successors
and
assigns, as mortgagee and loss payee. All premiums due thereon have been paid.
The Mortgage obligates the Mortgagor to maintain all such insurance at the
Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the servicer or the owner of the Mortgage to obtain and maintain
such
insurance at the Mortgagor’s cost and expense and to seek reimbursement therefor
from the Mortgagor. No claims have been made under such policies since
origination of the Mortgage Loan, and the Seller has taken no action that would
impair the coverage of any such insurance policy, the benefits of any
endorsement or the validity, binding effect and enforceability of the
foregoing.
12
(s) There
is
no valid offset, defense, counterclaim or right of rescission as to the related
Mortgage Note or Mortgage, including the obligation of the Mortgagor to pay
the
unpaid principal of or interest on such Mortgage Note. The operation of any
of
the terms of such Mortgage Note or Mortgage, or the exercise of any right
thereunder, will not 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. Such Mortgage
Loan is not subject to any pending bankruptcy, insolvency, reorganization or
moratorium. If such Mortgage Loan is an Adjustable Rate Mortgage Loan, all
the
applicable terms of the Mortgage Note pertaining to adjustments of the Mortgage
Interest Rate and the Monthly Payments and payment adjustments in connection
therewith are enforceable and will not affect the priority of the Mortgage
lien.
If such Mortgage Loan is an Adjustable Rate Mortgage Loan, the related Mortgage
Note has been timely and appropriately adjusted, if such adjustment is required,
and the respective Mortgagor timely and appropriately advised. All such
adjustments have been made in compliance with applicable law and in accordance
with the terms of the Mortgage Loan documents.
(t) Such
Mortgage Loan was originated by (i) a savings and loan association,
savings bank, commercial bank, credit union, insurance company or similar
institution that is supervised and examined by a Federal or state authority
or
(ii) a mortgage banker approved by the Secretary of Housing and Urban
Development.
(u) Principal
payments on such Mortgage Loan commenced or are required to commence no more
than two months after funds were disbursed in connection with such Mortgage
Loan. Unless such Mortgage Loan is subject to negative amortization as indicated
on the Mortgage Loan Schedule, the Mortgage Note requires a Monthly Payment
which is sufficient to fully amortize the original principal balance over the
remaining term thereof and to pay interest at the Mortgage Interest
Rate.
13
(v) Such
Mortgage Loan is a residential mortgage loan having an original term to maturity
as set forth on the Mortgage Loan Schedule, and if no such term is specified
in
the Mortgage Loan Schedule, the term to maturity does not exceed forty years,
with interest payable in arrears on the first day of each month (or such other
day of the month as may be noted on the Mortgage Loan Schedule). On the related
Sale Date, and if such Mortgage Loan is an Adjustable Rate Mortgage Loan, until
the next Interest Rate Adjustment Date, the Mortgage Interest Rate is as set
forth on the Mortgage Loan Schedule. If such Mortgage Loan is an Adjustable
Rate
Mortgage Loan, the Mortgage Interest Rate is subject to adjustment periodically
on each Interest Rate Adjustment Date to a new Mortgage Interest Rate (rounded
as provided in the Mortgage Note) equal to the then current Index plus the
Gross
Margin as specified on the related Mortgage Note, subject to the Maximum
Mortgage Interest Rate, the Minimum Mortgage Interest Rate, the Interest Rate
Increase Maximum and the Interest Rate Decrease Maximum, in each case if and
to
the extent specified in the Mortgage Loan Schedule.
(w) The
Mortgage Note is not and has not been secured by any collateral, pledged account
or other security, except the lien of the Mortgage or the Security Agreement,
as
applicable.
(x) The
Mortgage contains customary and enforceable provisions which render the rights
and remedies of the Purchaser 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. There is no homestead, dower,
curtesy or other exemption or right available to the Mortgagor or any other
Person which would interfere with the right to sell the Mortgaged Property
at a
trustee’s sale or the right to foreclose the Mortgage. The Mortgage or Mortgage
Note contains a provision that is, to the extent not prohibited by federal
or
state law, enforceable and that provides for the acceleration of the payment
of
the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent
of
the mortgagee thereunder. The Mortgagor has not notified the Seller and the
Seller has no knowledge of any relief requested or allowed to the Mortgagor
under the Servicemembers Civil Relief Act or any comparable state
legislation.
(y) If
the
Mortgage constitutes a deed of trust, a trustee, duly qualified under applicable
law to serve as such, has been properly designated and currently so serves
and
is named in such Mortgage, and no fees or expenses are or will become payable
by
the Purchaser to the trustee under the deed of trust, except in connection
with
a trustee’s sale after default by the Mortgagor.
(z) The
Mortgaged Property consists of (x) a single parcel of real property
separately assessed for tax purposes, upon which is erected a detached or an
attached one-to-four-family residence, an individual condominium or an
individual unit in a planned unit development or (y) in the case of a
Cooperative Loan, the related Coop Ownership Interests, in each case that is
in
compliance with Seller’s applicable requirements. Such Mortgaged Property is not
(i) a property held in trust (other than a revocable inter vivos trust that
is in compliance with FNMA’s requirements applicable to Seller, or, if the
Mortgaged Property is located in Illinois, an Illinois land trust), (ii) a
mobile home or manufactured home, or (iii) a recreational vehicle. Such
Mortgage Loan is not considered an agricultural loan. The related Mortgaged
Property does not consist of a log home, earthen home, underground home or
a
home which is situated on more than twenty acres of property. No portion of
the
related Mortgaged Property is being used for commercial purposes.
14
(aa) The
Loan-to-Value Ratio of such Mortgage Loan at the time of origination was not
greater than the Loan to Value Ratio set forth in the Mortgage Loan Schedule,
and if no such percentage is specified, not greater than 95%. If such Mortgage
Loan had at the time of origination a Loan-to-Value Ratio in excess of 80%,
such
Mortgage Loan is subject to a Primary Mortgage Insurance Policy. All provisions
of such Primary Mortgage Insurance Policy have been and are being complied
with,
such policy is in full force and effect, and all premiums due thereunder have
been paid. No Mortgage Loan requires payment of such premiums, in whole or
in
part, by the Purchaser. No action has been taken and no event has occurred
that
has, or will result in the exclusion from, denial of, or defense to coverage.
Any Mortgage Loan subject to a Primary Mortgage Insurance Policy obligates
the
Mortgagor to maintain the Primary Mortgage Insurance Policy and to pay all
related premiums and charges. The mortgage interest rate for the Mortgage Loan
as set forth on the Mortgage Loan Schedule is net of any such insurance premium.
None of the Mortgage Loans are covered by a “lender-paid” Primary Mortgage
Insurance Policy.
(bb) Such
Mortgage Loan was underwritten in accordance with the underwriting guidelines
of
the Seller or the originator of the Mortgage Loan in effect at the time such
Mortgage Loan was originated, which underwriting guidelines have been provided
to the Purchaser.
(cc) There
exist no deficiencies in excess of $1,000 with respect to escrow deposits and
payments, if such are required, for which customary arrangements for repayment
thereof have not been made or which the Seller expects not to be cured, and
no
escrow deposits or payments of other charges or payments due the Seller have
been capitalized under the Mortgage or the Mortgage Note.
(dd) Such
Mortgage Loan does not have a shared appreciation feature or other contingent
interest feature, and such Mortgage Loan does not involve buydowns, balloons,
timeshares or graduated payments. If such Mortgage Loan is an Adjustable Rate
Mortgage Loan, it is not convertible to a Mortgage Loan with a fixed Mortgage
Interest Rate, unless otherwise indicated in the related Mortgage Loan Schedule.
(ee) The
origination, servicing and collection practices used with respect to such
Mortgage Loan (including without limitation, the establishment, maintenance
and
servicing of the Escrow Accounts, if any), have been in all material respects
in
accordance with applicable laws and regulations, the terms of the Mortgage
Loan
documents, and Acceptable Servicing Procedures. With respect to Escrow Accounts
and Escrow Payments that the Seller is entitled to collect, there are no
deficiencies for which customary arrangements for repayment have not been made.
All Escrow Payments have been collected in all material respects in compliance
with applicable law, Acceptable Servicing Procedures and the provisions of
the
Mortgage Loan documents. If such Mortgage Loan is the subject of an escrow,
escrow of funds is not prohibited by applicable law and has been established
in
an amount sufficient to pay for every escrowed item that remains unpaid and
has
been assessed but is not yet due and payable. Any Escrow Account interest
required to be paid pursuant to applicable law has been properly paid and
credited.
15
(ff) If
such
Mortgage Loan is an Adjustable Rate Mortgage Loan, the Mortgagor has received
and has executed, where applicable, prior to origination of the Mortgage Loan,
any disclosure and rescission materials required by applicable law with respect
to the making of the Mortgage Loan.
(gg) The
appraisal report with respect to the Mortgaged Property contained in the credit
file was signed by a qualified appraiser, who met the requirements of the
Seller’s appraisal policies and procedures, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation is not affected by the approval or disapproval of such
application and who otherwise meets the requirements of Seller. Such appraisal
was made in accordance with the relevant provisions of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, as in effect on
the
date such Mortgage Loan was originated, and on forms that contain no less
information than contained in a FNMA Form 1004 appraisal.
(hh) No
Mortgage Loan is subject to the Home Ownership and Equity Protection Act of
1994
or Section 226.32 of Regulation Z, is a “high-cost” loan or a “predatory” loan
as defined under any state or local law or regulation applicable to the
originator of such Mortgage Loan or which would result in liability to the
purchaser or assignee of such Mortgage Loan under any predatory or abusive
lending law, or, without limiting the generality of the foregoing, is a
“covered” loan under the laws of the states of California, Colorado or
Ohio.
(ii) Unless
otherwise stated in the Mortgage Loan Schedule, if such Mortgage Loan is an
Adjustable Rate Mortgage Loan, it does not have an interest rate step-down
feature or similar feature that would result in a downwards adjustment to the
Mortgage Interest Rate, the Gross Margin or the Index as a result of the related
Mortgagor’s payment method or payment history (e.g., no downwards adjustment in
return for allowing the automatic withdrawal of funds from the related
Mortgagor’s bank account to make the Monthly Payments on such Mortgage Loan, or
for making payments when due on such Mortgage Loan).
(jj) No
misrepresentation, negligence or fraud has taken place on the part of the Seller
or any third party originator of such Mortgage Loan and the Seller is not aware
of any fact that would reasonably lead the Seller to believe that any
misrepresentation, negligence or fraud has taken place on the part of any other
Person, including without limitation the Mortgagor, any appraiser, any builder
or developer, or any other party involved in the origination of the Mortgage
Loan or in the application of any insurance in relation to such Mortgage
Loan.
(kk) The
Mortgaged Property is lawfully occupied under applicable law; all inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of occupancy,
have been made or obtained from the appropriate authorities.
16
(ll) The
Seller has no knowledge of any circumstances or condition existing as of the
Sale Date with respect to the Mortgage, the Mortgaged Property, the Mortgagor
or
the Mortgagor’s credit standing that can reasonably be expected to cause the
Mortgage Loan to be an unacceptable investment as of the Sale Date.
(mm) Neither
the Seller, nor to the Seller’s knowledge, the related Mortgagor, has received
any notice that the Mortgaged Property is in violation or potential violation
of
an environmental law pertaining to environmental hazards including, without
limitation, asbestos. To the best of the Seller’s knowledge, the Mortgaged
Property is in compliance with all applicable environmental law.
(nn) Such
Mortgage Loan was selected from among the outstanding mortgage loans of the
same
type in the Seller’s portfolio on the Sale Date and such selection was not made
in a manner so as to affect adversely the interests of the
Purchaser.
(oo) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months.
(pp) If
such
Mortgage Loan is a Cooperative Loan, the security instruments create a valid,
enforceable and subsisting first priority security interest in the related
cooperative shares securing the related cooperative note, subject only to
(x) the lien of the related cooperative for unpaid assessments representing
the Mortgagor’s pro rata share of payments for a blanket mortgage, if any,
current and future real property taxes, insurance premiums, maintenance fees
and
other assessments to which like collateral is commonly subject, and (y) other
matters to which like collateral is commonly subject and which do not materially
interfere with the benefits of the security intended to be provided; provided,
however, that the related proprietary lease for the Cooperative Apartment may
be
subordinated or otherwise subject to the lien of a mortgage on the cooperative
building.
(qq)
If such
Mortgage Loan is a Cooperative Loan, a search for filings of financing
statements has been made by a party competent to make the same, which party
is
acceptable to Seller in accordance with its underwriting guidelines and is
qualified to do business in the jurisdiction where the cooperative unit is
located; and such search has not found anything which would materially and
adversely affect the Cooperative Loan.
(rr) If
such
Mortgage Loan is a Cooperative Loan, the related cooperative corporation that
owns title to the related cooperative apartment building is a “cooperative
housing corporation” within the meaning of Section 216 of the Code, and is in
material compliance with applicable laws which, if not complied with, could
have
a material adverse effect on the Mortgaged Property
(ss) If
such
Mortgage Loan is a Cooperative Loan: (i) the terms of the related proprietary
lease or occupancy agreement is longer than the terms of the Cooperative Loan,
(ii) there is no provision in such proprietary lease or occupancy agreement
which requires the Mortgagor to offer for sale the cooperative shares owned
by
such Mortgagor first to the Cooperative, and (iii) there is no prohibition
against pledging the shares of the cooperative corporation or assigning the
cooperative lease.
17
(tt) No
loan
is a High Cost Loan or Covered Loan (as such terms are defined in the Standard
& Poor’s LEVELS® Glossary in effect on the Closing Date).
(uu) Each
Mortgage Loan is a “qualified mortgage” within Section 860G(a)(3) of the
Code.
(vv) No
Mortgage Loan is secured by a long-term residential lease.
(ww) No
Mortgage Loan secured by property located in the Commonwealth of Kentucky and
originated on or after June 24, 2003 had an original principal amount of
$200,000 or less.
(xx) Each
Mortgage Loan has a non-zero FICO score and a minimum FICO score of
720.
(yy) [Reserved].
(zz) Seller
has furnished information regarding its borrower credit files to credit
reporting agencies in compliance with the provisions of the Fair Credit
Reporting Act and its implementing regulations applicable to
Seller.
(aaa) Article
XVI, Section 50(a)(6) of the Texas Constitution is not applicable to the
Mortgage Loan or the origination thereof. If the Mortgage Loan was originated
in
Texas, it is not a cash-out refinancing.
(bbb) The
Seller has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001 to the
extent such act is applicable to the Seller.
(ccc)
No
Mortgage Loan is an interest-only mortgage loan.
(ddd) No
Mortgage Loan had an original principal balance greater than $1,250,000 and
no
more than 1.0% of the Mortgage Loans had an original principal balance greater
than $1,000,000. Each Mortgage Loan with an original principal balance greater
than $1,000,000 meets the following criteria: (1) the FICO score of the related
Mortgagor is not less than 700; (2) the LTV of the Mortgage Loan does not exceed
70.0%; (3) the related Mortgagor has a debt to income ratio of 50.0% or less;
(4) the Mortgage Loan has a reserve of no less than six (6) months; and (5)
the
related Mortgage File includes (A) a full appraisal of the Mortgaged Property
and (B) loan origination documentation that includes income and asset
verification terms.
(eee) The
maximum weighted average LTV of all of the Mortgage Loans is not greater than
70.0%.
(ddd) No
more
than 49.9% of the related Mortgaged Properties are located in the State of
California.
(fff) The
Mortgagor related to each Mortgage Loan has a debt to income ratio of 60.0%
or
less.
18
(ggg) Not
less
than 80.0% of the Mortgage Loans were originated under the applicable
originator’s full documentation origination program (or other program requiring
verification of the related Mortgagor’s income and assets).
(hhh) No
Mortgage Loan is subject to a prepayment premium.
(iii)
No
Mortgage Loan is a “pledged asset” Mortgage Loan.
(jjj) With
respect to any Mortgage Loan originated on or after August 1, 2004, neither
the
related Mortgage nor the Mortgage Note requires the Mortgagor to submit to
arbitration to resolve any dispute arising thereunder or in connection with
the
origination of such Mortgage Loan.
Section
4.2 Remedies.
It
is
understood and agreed that the representations and warranties set forth in
Section
4.1
shall
survive delivery of the Mortgage Loans to Purchaser and shall inure to the
benefit of Purchaser notwithstanding any examination of any Mortgage File or
other documents relating to the Mortgage Loans by Purchaser. Upon discovery
by
either Seller or Purchaser of a breach of any of the representations and
warranties set forth in Section
4.1,
the
party discovering such breach shall give prompt written notice to the other.
Within 60 days after the earlier of discovery or its receipt of notice of any
breach of a representation or warranty set forth in Section
4.1above
relating to a particular Mortgage Loan which materially and adversely affects
the value of the Mortgage Loan or Purchaser’s interest therein, Seller shall
cure such breach in all material respects or shall, at Purchaser’s option,
repurchase the Mortgage Loan for an amount equal to (i) the unpaid principal
balance of the Mortgage Loan plus (ii) interest on such unpaid principal balance
at the applicable Mortgage Interest Rate less the related Servicing Fee from
the
date to which interest has last been paid by the Mortgagor to the last day
of
the month in which such repurchase occurs plus (iii) with respect to any
Mortgage Loan subject to a Pass-Through Transfer, any costs and damages (in
excess of the amounts to be paid pursuant to clauses (i) and (ii) above)
incurred by the related trust prior to the date of such purchase in connection
with any violation by such Mortgage Loan of any predatory and abusive lending
laws, to the extent such costs and damages result from a breach of the
representation and warranty made by the Seller pursuant to Section
4.1(vii)(hh).
Any
such repurchase shall be accomplished by the deposit by Seller in the account
designated by Purchaser of the amount of the repurchase price in immediately
available funds. Within five (5) Business Days after Seller’s deposit of the
repurchase amount, Purchaser shall cause the Custodian to endorse the applicable
Mortgage Notes and assign the applicable Mortgages to Seller and promptly
deliver such instruments, together with all related Mortgage Loan documents,
to
Seller.
Seller
shall indemnify and hold harmless Purchaser (and its successors and assigns),
and will reimburse Purchaser (and its successors and assigns), within thirty
(30) days of receipt of written request, for, all losses, liabilities, damages,
penalties, fines, forfeitures, deficiencies, claims, judgments or other costs
or
expenses incurred by Purchaser (or its successors or assigns), to the extent
that such loss, damage, deficiency, claim or expense results from any breach
of
any representation or warranty made by Seller as set forth in Section
4.1(vii)
above.
The foregoing indemnification shall not, however, cover any indirect, special
or
consequential losses, liabilities, damages, penalties, fines, forfeitures,
deficiencies, claims, judgments or other costs or expenses incurred by Purchaser
(or its successors or assigns).
19
Promptly
after receipt by the Purchaser of notice of the commencement of any action,
the
Purchaser shall, if a claim in respect thereof is to be made against the Seller
under this Agreement, notify the Seller of the commencement thereof; but the
omission so to notify the Seller will not relieve Seller of any liability that
it may have to the Purchaser otherwise than under this Agreement. In case any
such action is brought against the Purchaser, and it notifies the Seller of
the
commencement thereof, the Seller will be entitled to participate therein, and,
to the extent that it may wish, assume (at its own expense) the defense thereof,
with counsel reasonably satisfactory to the Purchaser (who shall not, except
with the written consent of the Purchaser, be counsel to the Seller), and,
after
notice from the Seller to the Purchaser under this Section
4.2,
the
Seller shall not be liable for any legal or other expenses subsequently incurred
by the Purchaser in connection with the defense thereof other than reasonable
costs of investigation. In no event shall the Seller be liable for the fees
and
expenses of more than one counsel for the Purchaser in connection with any
proceeding in the same jurisdiction. All such fees and expenses shall be
reimbursed as they are incurred.
Section
4.3 Representations
and Warranties of Purchaser.
Purchaser
represents, warrants and covenants to Seller that as of the Sale
Date:
(a) Organization.
The
Purchaser is a national banking association duly organized, validly existing
and
in good standing under the laws of the United States of America and is licensed,
qualified and in good standing in each state where a Mortgaged Property is
located if the laws of such state require licensing or qualification in order
for the Purchaser to purchase and hold the Mortgage Loans and otherwise perform
its obligations under this Agreement.
(b) Authority
and Capacity.
Purchaser has all requisite power, authority and capacity to enter into this
Agreement and to perform the obligations required of it hereunder. This
Agreement has been duly authorized, validly executed and delivered by Purchaser
and (assuming the due authorization and execution of this Agreement by Seller)
constitutes a valid and legally binding agreement of Purchaser enforceable
in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization and similar laws, and by
equitable principles affecting the enforceability of the rights of creditors.
No
consent, approval, authorization or order of any court, regulatory body or
governmental agency or body is required for the execution, delivery and
performance by Purchaser of, or compliance by the Purchaser with this Agreement,
the purchase of the Mortgage Loans or the consummation of the transactions
contemplated by this Agreement.
(c) No
Conflict
Neither
the execution and delivery of this Agreement by Purchaser, nor the consummation
by Purchaser of the transactions hereby contemplated,
nor compliance with the provisions hereof by Purchaser will conflict with or
result in a breach of, or constitute a default under, any of the provisions
of
Purchaser’s articles of association or by-laws, or any statute, governmental
rule or regulation, or any judgment, decree or order binding on Purchaser or
any
of its properties, or any of the provisions of any contract or other instrument
to which Purchaser is a party or by which it is bound.
(d) Compliance
with Laws.
There
is no action, suit, proceeding or investigation pending, or to Purchaser’s
knowledge, threatened against Purchaser before any court, administrative agency
or other tribunal (i) asserting the invalidity of this Agreement, (ii) seeking
to prevent the consummation of any of the transactions contemplated hereby
or
(iii) which might materially and adversely affect the performance by Purchaser
of its obligations under, or the validity or enforceability of, this
Agreement.
20
(e) Performance.
Purchaser does not believe, nor does it have any reason or cause to believe,
that it cannot perform each and every covenant of Purchaser contained in this
Agreement.
(f) Financial
Standing.
Purchaser has the financial capacity to complete the transactions contemplated
herein.
ARTICLE
V. COVENANT NOT TO SOLICIT
Seller
covenants that neither Seller nor any affiliate of Seller will take any action
personally, by telephone, by mail or otherwise, to solicit the prepayment of
the
Mortgage Loans by the Mortgagors, in whole or in part. Nothing in this Article
V, however, shall prohibit Seller or any affiliate from
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(i)
|
advertising
its availability for handling refinancings of mortgage loans in its
portfolio if the Mortgage Loans are not specifically targeted:
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(ii)
|
promoting
terms available for refinancing by sending letters or promotional
material
to the mortgagors of all the mortgage loans that it owns or
services;
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|
(iii)
|
promoting
terms available for refinancing by sending letters or promotional
material
to the mortgagors of all the mortgage loans of a specific type
(e.g.,
conventional fixed-rate or conventional adjustable-rate) that it
owns or
services;
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(iv)
|
promoting
terms available for refinancing by sending letters or promotional
material
to the mortgagors of all the mortgage loans that fall within specific
interest rate ranges that it owns or
services;
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|
(v)
|
providing
payoff information or otherwise cooperating with individual Mortgagors
who
contact it about prepaying any Mortgage Loan;
or
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|
(vi)
|
advising
individual Mortgagors who contact it about prepaying any Mortgage
Loan of
refinancing terms or streamlined origination arrangements that are
available.
|
In
no
event, however, shall Seller or any affiliate treat mortgage loans that it
holds
in its own portfolio and the Mortgage Loans as separate classes of mortgages
for
purposes of advertising the availability of refinancing terms.
ARTICLE
VI. SERVICING THE MORTGAGE LOANS
Servicer
shall service the Mortgage Loans on behalf of Purchaser pursuant to the terms
of
the Servicing Agreement.
21
ARTICLE
VII. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
The
obligations of Purchaser under this Agreement with respect to the Sale Date
are
subject to the satisfaction at or prior to each Sale Date of the following
conditions:
Section
7.1 Correctness
of Representations and Warranties.
The
representations and warranties made by Seller in this Agreement with respect
to
the Mortgage Loans to be purchased by the Purchaser on the Sale Date are true
and correct on the Sale Date.
Section
7.2 Compliance
With Conditions.
All
of
the material terms, covenants and conditions of this Agreement required to
be
complied with and performed by Seller at or prior to the Sale Date with respect
to the Mortgage Loans shall have been duly complied with and performed in all
material respects.
Section
7.3 No
Material Adverse Change.
On
the
Sale Date, there shall not have been any change in the Mortgage Loans that
will
materially and adversely affect the consummation of the transactions
contemplated hereby.
Section
7.4 No
Actions.
On
the
Sale Date, there shall not have been commenced or threatened any action, suit
or
proceeding that will materially and adversely affect the Mortgage Loans or
the
consummation of the transactions contemplated hereby with respect
thereto.
ARTICLE
VIII. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The
obligations of Seller under this Agreement are subject to the satisfaction
at or
prior to each Sale Date of each of the following conditions:
Section
8.1 Correctness
of Representations and Warranties.
The
representations and warranties made by Purchaser in this Agreement are true
and
correct in all material respects.
Section
8.2 Compliance
with Conditions.
All
of
the terms, conditions and covenants of this Agreement required to be complied
with and performed by Purchaser at or prior to the Sale Date shall have been
duly complied with and performed in all material respects.
Section
8.3 No
Actions.
On
the
Sale Date, there shall not have been commenced or threatened any action, suit
or
proceeding that will materially and adversely affect the consummation of the
transactions contemplated hereby.
22
ARTICLE
IX.
PASS-THROUGH
AND WHOLE LOAN TRANSFER; COMPLIANCE WITH REMIC PROVISIONS
Section
9.1 Pass-Through Transfers or Whole-Loan Transfers.
(a) Purchaser
and Seller agree that with respect to some or all of the Mortgage Loans,
Purchaser, at its sole option, upon 30 days’ prior written notice to the Seller,
may effect one or more Whole Loan Transfers or Pass-Through Transfers with
respect to each Mortgage Loan, retaining Servicer as the servicer or subservicer
if a master servicer is employed as provided in Section
9.2;
provided, however, that Seller’s obligations under Section 9.1(b) with respect
to any Whole Loan Transfer or Pass-Through Transfer made by Purchaser or any
of
its permitted assignees with respect to Mortgage Loans shall cease if, as a
result thereof, more than four investors would own Mortgage Loans at any one
time.
(b) Seller
shall cooperate with Purchaser in connection with each Whole Loan Transfer
or
Pass-Through Transfer permitted under this Section
9.1.
In
connection therewith, Seller shall provide Purchaser with such information
as it
customarily provides third parties in connection with Whole Loan Transfers
or
Pass-Through Transfers; provided,
however,
that
Seller shall not be obligated to provide any such information unless the
Mortgage Loans constitute not less than 10% of a single mortgage loan group
in a
Pass-Through Transfer. In addition, in connection with each Whole Loan Transfer
or Pass-Through Transfer permitted hereunder, upon the request of Purchaser,
Seller shall provide an officer’s certificate to the effect that the
representations and warranties made by Seller in Section
4.1
are true
and correct as of the date of such certificate, provided that nothing has
occurred during the period commencing on the Sale Date and ending on the date
of
such certificate which would make such representations and warranties untrue.
Purchaser shall provide Seller with all drafts of the applicable prospectus
supplement or other similar instrument when produced and shall revise the
seller’s information contained therein (the “Seller’s Information”) in
accordance with Seller’s comments to correct any information therein at
Purchaser’s cost. Notwithstanding anything herein to the contrary, Purchaser
shall reimburse Seller for all reasonable out-of-pocket expenses, including
attorney’s fees, incurred by Seller in connection with any Whole Loan Transfer
or Pass-Through Transfer.
(c) Seller
(i) will indemnify and hold harmless the Purchaser and each Person, if any
who
controls Purchaser within the meaning of the Securities Act of 1933, as amended
(an “Indemnified Party”), against any losses, claims, damages or liabilities to
which such Indemnified Party may become subject, under the Securities Act of
1933, as amended, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any
untrue statement of any material fact contained in the Seller’s Information
included in the prospectus or the prospectus supplement or the disclosure
document prepared in connection with any permitted Pass-Through Transfer
(collectively, the “Disclosure Documents”) and (ii) will reimburse each
Indemnified Party for any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such loss,
claim, damage, liability or action; provided,
however,
that
Seller shall have no such indemnification or reimbursement obligations unless
the Mortgage Loans constitute not less than 10% of a single mortgage loan group
in such Pass-Through Transfer. Subject to the foregoing proviso, Seller agrees
to execute an indemnification agreement in connection with any Pass-Through
Transfer containing the foregoing indemnity.
23
(d) Purchaser
(i) will indemnify and hold harmless Seller against any losses, claims, damages
or liabilities to which Seller may become subject, under the Securities Act
of
1933, as amended, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (x) arise out of or are based upon
any untrue statement of any material fact contained in any Disclosure Document
(other than an untrue statement of material fact contained in the Seller’s
Information), or (y) arise out of or are based upon the omission to state in
any
Disclosure Document a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (unless such omission constitutes Seller’s
Information) and (ii) will reimburse Seller for any legal or other expenses
reasonably incurred by Seller in connection with investigating or defending
any
such loss, claim, damage, liability or action. Purchaser agrees to execute
an
indemnification agreement containing the foregoing indemnity.
ARTICLE
X. MISCELLANEOUS PROVISIONS
Section
10.1 Costs
and Expenses.
Except
as
otherwise provided herein, all costs and expenses incurred in connection with
the transactions contemplated hereby shall be paid by Seller including, without
limitation, the costs of shipping the Mortgage Files to the Custodian, any
recording or filing fees, transfer fees, and all other costs associated with
the
preparation and filing of assignments or any other transfer or conveyance
documents. Notwithstanding the foregoing, Purchaser shall pay all expenses
incurred by Purchaser incurred in performance of its “due diligence” activities,
review of the Mortgage Loan documents and the preparation of this
Agreement.
Section
10.2 Access
to Information.
Seller
shall give to Purchaser and its counsel, accountants and other representatives
reasonable access during normal business hours throughout the period prior
to
the Sale Date, to all of Seller’s files, books and records relating to the
Mortgage Loans.
Section
10.3 Survival
of Representations, Warranties and Indemnifications.
Each
party hereto covenants and agrees that the representations, warranties,
covenants and indemnifications in this Agreement, and in any document delivered
or to be delivered pursuant hereto, shall survive the Sale Date.
Section
10.4 Notices.
All
notices, requests, demands and other communications which are required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given upon the delivery or mailing thereof, as the
case
may be, sent by registered or certified mail, return receipt requested, postage
prepaid:
(a)
If to
the Purchaser, to:
Bank
of
America, National Association
Hearst
Tower
NC1-027-21-04
000
Xxxxx
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Managing Director
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
24
(b)
If to
Seller, to:
DLJ
Mortgage Capital, Inc.
c/o
Credit Suisse First Boston LLC
Eleven
Madison Avenue, 4th
Floor
Attention:
Xxxx Xxx
with
a
copy to:
DLJ
Mortgage Capital, Inc.
c/o
Credit Suisse First Boston LLC
Eleven
Madison Avenue, 7th
Floor
Attention:
General Counsel - RMBS
or
to
such other address as Purchaser or Seller shall have specified in writing to
the
other.
Section
10.5 Waivers.
Either
Purchaser or Seller may, by written notice to the other:
(a) Extend
the time for the performance of any of the obligations or other transactions
of
the other party; or
(b) Waive
compliance with any of the terms, conditions or covenants required to be
complied with by the other party hereunder.
The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any other subsequent
breach.
Section
10.6 Entire
Agreement; Amendment.
This
Agreement constitutes the entire agreement between the parties with respect
to
the sale of the Mortgage Loans and supersedes all prior agreements with respect
thereto. This Agreement may be amended but only in writing signed by the party
against whom such amendment is sought to be enforced.
Section
10.7 Binding
Effect.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their successors and assigns. Nothing in this Agreement, express or implied,
is intended to confer on any person other than the parties hereto and their
successors and assigns, any rights, obligations, remedies or
liabilities.
Section
10.8 Headings.
Headings
on the Articles and Sections in this Agreement are for reference purposes only
and shall not be deemed to have any substantive effect.
25
Section
10.9 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York except to the extent preempted by federal law, without giving
effect to choice of law principles. The obligations, rights and remedies of
the
parties hereunder shall be determined in accordance with such laws.
Each
of
Seller and Purchaser hereby knowingly, voluntarily and intentionally waives
any
and all rights it may have to trial by jury in respect or any litigation based
on, or arising out of, under, or in connection with, this Agreement, or any
other documents or instruments executed in connection herewith, or any course
of
conduct, course of dealing, statements (whether oral or written), or actions
of
Seller or Purchaser. This provision is a material inducement for Purchaser
to
enter this Agreement.
Section
10.10 Incorporation
of Exhibits.
All
Exhibits attached hereto shall be incorporated herein and shall be understood
to
be a part hereof as though included in the body of this Agreement.
Section
10.11 Counterparts.
For
the
purpose of facilitating the execution of this Agreement as herein provided
and
for other purposes, this Agreement may be executed in any number of
counterparts, each of which counterparts shall be deemed to be an original,
and
such counterparts shall constitute and be one and the same instrument.
Section
10.12 Assignment.
The
Purchaser shall have the right, without the consent of the Seller hereof, to
assign, in whole or in part, its interest under this Agreement with respect
to
some or all of the Mortgage Loans, and designate any person to exercise any
rights of the Purchaser hereunder, by executing an Assignment, Assumption and
Recognition Agreement substantially in the form of Exhibit
B
hereto
(as modified in substance by agreement of the Seller and the related assignee)
and the assignee or designee shall accede to the rights and obligations
hereunder of the Purchaser with respect to such Mortgage Loans. In no event
shall Purchaser sell a partial interest in any Mortgage Loan without the written
consent of Seller, which consent shall not be unreasonably denied. All
references to the Purchaser in this Agreement shall be deemed to include its
assignee or designee. However, in no event shall there be more than four Persons
at any given time having the status of “Purchaser”
hereunder.
[Signature
page follows.]
26
IN
WITNESS WHEREOF,
each of
the undersigned parties to this Agreement has caused this Agreement to be duly
executed in its corporate name by one of its duly authorized officers, all
as of
the date first above written.
DLJ
MORTGAGE CAPITAL, INC.
By:
Name:
Title:
BANK
OF AMERICA, NATIONAL ASSOCIATION
By:
Name:
Title:
[Signature
Page to BofA/DLJMC Mortgage Loan Purchase Agreement]
EXHIBIT
A
MORTGAGE
FILE
Subject
to Document Exceptions, the contents of each Mortgage File shall include the
following documents with respect to the related Mortgage Loan:
|
(a)
|
the
original Mortgage Note, endorsed as set forth in Section
2.2(a);
|
|
(b)
|
the
original recorded Mortgage, or in instances where the original recorded
Mortgage cannot be delivered by Seller to Purchaser prior to or concurrent
with the Sale Date (due to a delay on the part of the recording office)
the Seller may, in lieu of delivering such original Mortgage, deliver
to
Purchaser a fully legible reproduction of the original mortgage provided
that the Seller certifies on the face of such reproduction as follows:
“Certified true and correct copy of original which has been transmitted
for recordation”. For purposes hereof transmitted for recordation means
having been mailed or otherwise delivered for recordation to the
appropriate authority. In all such instances, Seller shall deliver
the
original recorded Mortgage to Purchaser within 180 days after the
Sale
Date except to the extent that any delay in recording or delivering
any
document is caused by the recording
office.
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|
(c)
|
the
original Assignment of Mortgage;
|
|
(d)
|
all
original recorded intervening assignments of the Mortgage showing
a
complete chain of title to the Mortgage from the originator to Purchaser,
or in instances where an original recorded intervening assignment
of
Mortgage cannot be delivered by Seller to Purchaser prior to or concurrent
with the Sale Date (due to a delay on the part of the recording office)
the Seller may, in lieu of delivering such original intervening assignment
of Mortgage, deliver to Purchaser a fully legible reproduction of
the
original intervening assignment of Mortgage provided that the Seller
certifies on the face of such reproduction as follows: “Certified true and
correct copy of original which has been transmitted for recordation”. In
all such instances, Seller shall deliver each original recorded
intervening assignment of Mortgage to Purchaser within 180 days after
the
Sale Date except to the extent that any delay in recording or delivering
any document is caused by the recording
office;
|
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(e)
|
the
original title insurance policy;
|
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(f)
|
all
modification and assumption agreements, if any; and,
|
|
(g)
|
with
respect to any Cooperative Loan:
|
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(i)
|
A
counterpart of the Cooperative Lease and the Assignment of Proprietary
Lease to the originator of the Cooperative Loan with intervening
assignments showing an unbroken chain of title from such originator
to the
Purchaser;
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(ii)
|
The
related Cooperative Stock Certificate, representing the related
Cooperative Stock pledged with respect to such Cooperative Loan,
together
with an undated stock power (or other similar instrument) executed
in
blank;
|
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(iii)
|
The
original recognition agreement by the Cooperative of the interests
of the
mortgagee with respect to the related Cooperative
Loan;
|
|
(iv)
|
The
Security Agreement;
|
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(v)
|
Copies
of the original UCC-1 financing statement, and any continuation
statements, filed by the originator of such Cooperative Loan as secured
party, each with evidence of recording thereof, evidencing the interest
of
the originator under the Security Agreement and the Assignment of
Proprietary Lease;
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|
(vi)
|
Copies
of the filed UCC-3 assignments of the security interest referenced
above
showing an unbroken chain of title from the originator to the Trustee,
each with evidence of recording thereof, evidencing the interest
of the
originator under the Security Agreement and the Assignment of Proprietary
Lease;
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|
(vii)
|
An
executed assignment of the interest of the originator in the Security
Agreement, Assignment of Proprietary Lease and the recognition agreement
referenced above, showing an unbroken chain of title from the originator
to the Purchaser; and
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(viii)
|
For
any Cooperative Loan that has been modified or amended, the original
instrument or instruments effecting such modification or
amendment
|
EXHIBIT
B
FORM
OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated [date of assignment], among DLJ
Mortgage Capital, Inc., a Delaware corporation (“Seller”),
Bank
of America, National Association (“Assignor”),
and
_____________________, a __________________ (“Assignee”).
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
The
Assignor hereby grants, transfers and assigns to Assignee of the Mortgage Loans
all of the right, title and interest of Assignor, as Purchaser, in, to and
under
(a) those certain Mortgage Loans listed on Exhibit
A
attached
hereto (the “Mortgage
Loans”),
(b)
that certain Mortgage Loan Purchase Agreement and the related Memorandum of
Sale
(collectively, the “Purchase
Agreement”),
dated
as of [__] by and DLJ Mortgage Capital, Inc. (“Seller”),
and
Bank of America, National Association (“Purchaser”)
with
respect to the Mortgage Loans, and (c) that certain Servicing Agreement by
and
between Purchaser and [____] dated as of [____] (the “Servicing
Agreement”)
as it
relates to the Mortgage Loans, a copy of which is attached hereto, it being
understood and agreed that Exhibit
A
attached
hereto shall constitute the Mortgage Loan Schedule for purposes of the Servicing
Agreement. The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
all obligations of the Assignor with respect to any mortgage loans subject
to
the Purchase Agreement or the Servicing Agreement that are not the Mortgage
Loans set forth on Exhibit
A
attached
hereto and are not the subject of this Assignment, Assumption and Recognition
Agreement.
The
Assignor warrants and represents to, and covenants with, Assignee that:
(a) The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans free from any and all claims and encumbrances
whatsoever.
(a) The
Assignor has not received notice or, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Seller with respect to the
Purchase Agreement or the Mortgage Loans.
(b) The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Purchase Agreement or the Mortgage
Loans, including without limitation the transfer of the servicing obligations
under the Purchase Agreement. The Assignor has no knowledge of, and has not
received notice of, any waivers under or amendments or other modifications
of,
or assignments of rights or obligations under or defaults under, the Purchase
Agreement, or the Mortgage Loans.
(c) Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner, or made
by
general solicitation by means of general advertising or in any other manner,
or
taken any other action that would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933 (“1933
Act”)
or
that would render the disposition of the Mortgage Loans a violation of Section
5
of the 1933 Act or require registration pursuant thereto.
Assignee
warrants and represents to, and covenants with, the Assignor and the Seller
that:
(a) The
Assignee is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to acquire, own and purchase the Mortgage
Loans.
(b) The
Assignee has full corporate power and authority to execute, deliver and perform
under this Assignment, Assumption and Recognition Agreement, and to consummate
the transactions set forth herein. The execution, delivery and performance
of
the Assignee of this Assignment, Assumption and Recognition Agreement, and
the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action of the Assignee. This Assignment,
Assumption and Recognition Agreement has been duly executed and delivered by
the
Assignee and constitutes the valid and legally binding obligation of the
Assignee enforceable against the Assignee in accordance with its respective
terms.
(c) To
the
best of Assignee’s knowledge, no material consent, approval, order or
authorization of, or declaration, filing or registration with, any governmental
entity is required to be obtained or made by the Assignee in connection with
the
execution, delivery or performance by the Assignee of this Assignment,
Assumption and Recognition Agreement, or the consummation by it of the
transactions contemplated hereby.
(d) The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants and
conditions of the Purchase Agreement and the Mortgage Loans, and from and after
the date hereof, the Assignee assumes for the benefit of each of the Seller
and
the Assignor all of the Assignor’s obligations as Purchaser thereunder, with
respect to the Mortgage Loans.
(e) The
Assignee understands that the Mortgage Loans have not been registered under
the
1933 Act or the securities laws of any state.
(f) The
purchase price being paid by the Assignee for the Mortgage Loans is in excess
of
$250,000 and will be paid by cash remittance of the full purchase price within
60 days of the sale.
(g) The
Assignee is acquiring the Mortgage Loans for investment for its own account
only
and not for any other person.
(h) The
Assignee considers itself a substantial, sophisticated institutional investor
having such knowledge and financial and business matters that it is capable
of
evaluating the merits and the risks of investment in the Mortgage
Loans.
(i) The
Assignee has been furnished with all information regarding the Mortgage Loans
that it has requested from the Assignor or the Seller.
(j) Neither
the Assignee nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, an interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner, or made
any
general solicitation by means of general advertising or in any other manner,
or
taken any other action that would constitute a distribution of the Mortgage
Loans under the 1933 Act or that would render the disposition of the Mortgage
Loans a violation of Section 5 of the 1933 Act or require registration pursuant
thereto, nor will it act, nor has it authorized or will it authorize any person
to act, in such manner with respect to the Mortgage Loans.
(k) Either:
(I) the Assignee is not an employee benefit plan (“Plan”)
within
the meaning of section 3(3) of the Employee Retirement Income Security Act
of
1974, as amended (“ERISA”)
or a
plan (also “Plan”)
within
the meaning of section 4975(e)(1) of the Internal Revenue Code of 1986
(“Code”),
and
the Assignee is not directly or indirectly purchasing the Mortgage Loans on
behalf of, investment manager of, as named fiduciary of, as Trustee of, or
with
assets of, a Plan; or (II) the Assignee’s purchase of the Mortgage Loans will
not result in a prohibited transaction under section 406 of ERISA or section
4975 of the Code.
Distributions
shall be made by wire transfer of immediately available funds to
_____________________________
for
the
account of _________________________________________
account
number ____________________________________________.
Applicable
statements should be mailed to ____________________
_____________________________________________________________.
The
Assignee’s address for purposes for all notices and correspondence related to
the Mortgage Loans and this Agreement is :
________________________________________
________________________________________
Attention:
______________________________
The
Seller agrees to recognize the Assignee of the Mortgage Loans as the
“Purchaser”
under
the Purchase Agreement with respect to the Mortgage Loans.
The
Seller warrants and represents to, and covenants with, Assignee that:
(a) No
offsets, counterclaims or other defenses are available to the Seller with
respect to the Purchase Agreement or the Mortgage Loans.
(b) The
Seller has not waived or agreed to any waiver under, or agreed to any amendment
or other modification of, the Purchase Agreement or the Mortgage Loans,
including without limitation the transfer of the servicing obligations under
the
Purchase Agreement. The Seller has no knowledge of, and has not received notice
of, any waivers under or amendments or other modifications of, or assignments
of
rights or obligations under or defaults under, the Purchase Agreement, or the
Mortgage Loans.
(c) Neither
the Seller nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner, or made
by
general solicitation by means of general advertising or in any other manner,
or
taken any other action that would constitute a distribution of the Mortgage
Loans under the 1933 Act or that would render the disposition of the Mortgage
Loans a violation of Section 5 of the 1933 Act or require registration pursuant
thereto.]
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the
parties have caused this Assignment, Assumption and Recognition Agreement to
be
executed by their duly authorized officers as of the date first above
written.
|
Assignor
|
Assignee
|
|
|
BANK
OF AMERICA, NATIONAL ASSOCAITION
|
___________________________________________________
|
|
|
______________________________________________
|
______________________________________________
|
|
|
By:
______________________________________________
|
By:________________________________________________
|
|
|
Its: ______________________________________________
|
Its: ________________________________________________
|
|
|
Seller
|
||
|
DLJ
MORTGAGE CAPITAL, INC.
|
||
|
______________________________________________
|
||
|
By:
______________________________________________
|
||
|
Its: ______________________________________________
|
EXHIBIT
C
FORM
OF MEMORANDUM OF SALE
The
mortgage loans described on the schedule attached hereto as Exhibit
A
shall be
deemed sold by DLJ Mortgage Capital, Inc. (“Seller”)
to
Bank of America, National Association (“Purchaser”)
pursuant to the terms and conditions of that certain Mortgage Loan Purchase
Agreement (“Agreement”),
dated
as of July 1, 2006, between Seller and Purchaser and the following additional
terms and conditions:
|
Sale
Date:
|
[_______]
|
|
Purchase
Price Percentage:
|
[_______]%
|
|
Document
Exceptions:
|
As
set forth on the schedule attached hereto as Exhibit
B.
|
|
Exception
Schedule:
|
As
set forth on the schedule attached hereto as Exhibit
C.
|
|
Servicing
Fee:
|
[[_______]%
per annum] [As set forth on Exhibit
A]
|
|
First
Remittance Date:
|
[_______]
|
|
Additional
Terms and Conditions:
|
[_______]
|
DLJ
Mortgage Capital, Inc.
By: _________________________________
Name: _________________________________
Title: _________________________________
Bank
of America, National Association
By: _________________________________
Name: _________________________________
Title: _________________________________
