RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Purchaser,
and
RESIDENTIAL FUNDING CORPORATION
as Seller
HOME LOAN PURCHASE AGREEMENT
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Dated as of June 1, 2001
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions...................................................................1
ARTICLE II
SALE OF HOME LOANS AND RELATED PROVISIONS
Section 2.1. Sale of Home Loans............................................................2
Section 2.2. Payment of Purchase Price.....................................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1. Seller Representations and Warranties.........................................4
ARTICLE IV
SELLER'S COVENANTS
Section 4.1. Covenants of the Seller......................................................12
ARTICLE V
SERVICING
Section 5.1. Servicing....................................................................12
ARTICLE VI
LIMITATION ON LIABILITY OF THE SELLER
Section 6.1. Limitation on Liability of the Seller........................................12
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Page
ARTICLE VII
TERMINATION
Section 7.1. Termination..................................................................13
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. Amendment....................................................................13
Section 8.2. GOVERNING LAW................................................................13
Section 8.3. Notices......................................................................13
Section 8.4. Severability of Provisions...................................................14
Section 8.5. Relationship of Parties......................................................14
Section 8.6. Counterparts.................................................................14
Section 8.7. Further Agreements...........................................................14
Section 8.8. Intention of the Parties.....................................................14
Section 8.9. Successors and Assigns; Assignment of This Agreement.........................15
Section 8.10. Survival.....................................................................15
Exhibits
Exhibit 1 Home Loan Schedule
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This HOME LOAN PURCHASE AGREEMENT (this "Agreement" or "Home Loan
Purchase Agreement"), dated as of June 1, 2001, is made between Residential
Funding Corporation (the "Seller") and Residential Funding Mortgage Securities
II, Inc. (the "Purchaser").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Seller owns Home Loans and the Related Documents for
the Home Loans indicated on the Home Loan Schedule attached as Exhibit 1 hereto
(collectively, the "Home Loans"), including rights to (a) any property acquired
by foreclosure or deed in lieu of foreclosure or otherwise, and (b) the proceeds
of any insurance policies covering the Home Loans;
WHEREAS, the parties hereto desire that the Seller sell the Home
Loans to the Purchaser pursuant to the terms of this Agreement together with the
Related Documents on the Closing Date;
WHEREAS, pursuant to the terms of the Trust Agreement, the
Purchaser will sell the Home Loans to the Issuer in exchange for the cash
proceeds of the Securities;
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer
will issue and transfer to or at the direction of the Depositor, the
Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue and
transfer to or at the direction of the Depositor, the Notes; and
WHEREAS, pursuant to the terms of the Servicing Agreement, the
Master Servicer will service the Home Loans directly or through one or more
Subservicers.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. For all purposes of this Home Loan
Purchase Agreement, except as otherwise expressly provided herein or unless the
context otherwise requires, capitalized terms not otherwise defined herein shall
have the meanings assigned to such terms in the Definitions contained in
Appendix A to the Indenture dated June 26, 2001 (the "Indenture"), between Home
Loan Trust 2001-HI3, as issuer, and The Chase Manhattan Bank, as indenture
trustee, which is incorporated by reference herein. All other capitalized terms
used herein shall have the meanings specified herein.
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ARTICLE II
SALE OF HOME LOANS AND RELATED PROVISIONS
Section 2.1. Sale of Home Loans.
(a) The Seller, by the execution and delivery of this Agreement,
does hereby sell, assign, set over, and otherwise convey to the Purchaser,
without recourse, all of its right, title and interest in, to and under the
following, and wherever located: (i) the Home Loans, all interest accruing
thereon and all collections in respect thereof received on or after the Cut-off
Date; (ii) property which secured a Home Loan and which has been acquired by
foreclosure or deed in lieu of foreclosure; (iii) the interest of the Seller in
any insurance policies in respect of the Home Loans; and (iv) all proceeds of
the foregoing. Such conveyance shall be deemed to be made, with respect to the
Cut-off Date Loan Balances, as of the Closing Date, subject to the receipt by
the Seller of consideration therefor as provided herein under clause (b) of
Section 2.2.
(b) In connection with such conveyance, the Seller further
agrees, at its own expense, on or prior to the Closing Date to indicate in its
books and records that the Home Loans have been sold to the Purchaser pursuant
to this Agreement and to deliver to the Purchaser true and complete lists of all
of the Home Loans specifying for each Home Loan (i) its account number and (ii)
its Cut-off Date Loan Balance. Such lists, which form part of the Home Loan
Schedule, shall be marked as Exhibit 1 to this Agreement and are hereby
incorporated into and made a part of this Agreement.
(c) In connection with such conveyance by the Seller, the Seller
shall on behalf of the Purchaser deliver to, and deposit with the Custodian, on
or before the Closing Date, the following documents or instruments with respect
to each Home Loan:
(i) the original Mortgage Note endorsed without recourse to
the Indenture Trustee and showing an unbroken chain of endorsement from
the originator thereof to the Person endorsing it or, with respect to
any Home Loan as to which the original Mortgage Note has been
permanently lost or destroyed and has not been replaced, a Lost Note
Affidavit from the related seller or Residential Funding Corporation
stating the original Mortgage Note was lost, misplaced or destroyed
together with a copy of such Note;
(ii) the original Mortgage with evidence of recording thereon, or
a copy of the original Mortgage with evidence of recording thereon;
(iii) assignments (which may be included in one or more
blanket assignments if permitted by applicable law) of the Mortgage
recorded to "The Chase Manhattan Bank as indenture trustee" c/o the
Seller at an address specified by the Seller; and
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(iv) originals of any intervening assignments of the
Mortgage, with evidence of recording thereon, or a copy of such original
intervening assignment with evidence of recording indicated thereon; and
(v) a true and correct copy of each assumption,
modification, consolidation or substitution agreement, if any, relating
to the Home Loan.
Within the time period for the review of each Mortgage File set
forth in Section 2.3 of the Custodial Agreement, if a defect or omission in any
Mortgage File is discovered which may materially and adversely affect the value
of the related Home Loan, or the interests of the Indenture Trustee (as pledgee
of the Home Loans), the Noteholders, the Certificateholders or the Credit
Enhancer in such Home Loan, including the Seller's failure to deliver any
document required to be delivered to the Custodian on behalf of the Indenture
Trustee (provided that a Mortgage File will not be deemed to contain a defect
for an unrecorded assignment under clause (iii) above if the Seller has
submitted such assignment for recording or if such assignment is not required to
be recorded pursuant to the terms of the following paragraph), the Seller shall
cure such defect, repurchase the related Home Loan at the Repurchase Price or
substitute an Eligible Substitute Loan for the related Home Loan upon the same
terms and conditions set forth in Section 3.1 hereof for breaches of
representations and warranties as to the Home Loans. As set forth in Section 2.3
of the Custodial Agreement, the Custodian shall deliver to the Indenture Trustee
a certificate (the "Interim Certification") to the effect that all documents
required to be delivered pursuant to this Subsection 2.1(c) have been executed
and received and that such documents relate to the Home Loans identified on the
Home Loan Schedule, except for any exceptions listed on Schedule B attached to
such Interim Certification.
Within 60 days after the receipt by the Master Servicer of the
recording information, the Seller at its own expense shall complete and submit
for recording in the appropriate public office for real property records each of
the assignments referred to in clause (iii) above. While such assignment to be
recorded is being recorded, the Custodian shall retain a photocopy of such
assignment. If any assignment is lost or returned unrecorded to the Custodian
because of any defect therein, the Seller is required to prepare a substitute
assignment or cure such defect, as the case may be, and the Seller shall cause
such assignment to be recorded in accordance with this paragraph.
In the event that the Seller delivers to the Custodian on behalf
of the Indenture Trustee any Mortgage Note or assignment in blank, the Seller
shall, or shall cause the Custodian to, complete the endorsement of the Mortgage
Note and the assignment in conjunction with the Interim Certification issued by
the Custodian.
In instances where an original Mortgage or any original
intervening assignment of Mortgage was not, in accordance with clause (ii),
(iii), (iv) or (v) above (or copies thereof as permitted in this section 2.1(c)
above), delivered by the Seller to the respective Custodian prior to
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or concurrently with the execution and delivery of this Agreement, the Seller
will deliver or cause to be delivered the originals of such documents to such
Custodian promptly upon receipt thereof.
The Purchaser hereby acknowledges its acceptance of all right,
title and interest to the property, conveyed to it pursuant to this Section 2.1.
(d) The parties hereto intend that the transactions set forth
herein constitute a sale by the Seller to the Purchaser of all the Seller's
right, title and interest in and to the Home Loans and other property as and to
the extent described above. In the event the transactions set forth herein are
deemed not to be a sale, the Seller hereby grants to the Purchaser a security
interest in all of the Seller's right, title and interest in, to and under the
Home Loans and such other property, to secure all of the Seller's obligations
hereunder, and this Agreement shall constitute a security agreement under
applicable law. The Seller agrees to take or cause to be taken such actions and
to execute such documents, including without limitation the filing of all
necessary UCC-1 financing statements filed in the State of Minnesota (which
shall have been submitted for filing as of the Closing Date), any continuation
statements with respect thereto and any amendments thereto required to reflect a
change in the name or corporate structure of the Seller or the filing of any
additional UCC-1 financing statements due to the change in the principal office
or jurisdiction of incorporation of the Seller, as are necessary to perfect and
protect the Purchaser's interests in each Home Loan and the proceeds thereof.
Section 2.2. Payment of Purchase Price.
(a) The "Purchase Price" for the Home Loans shall be an amount
equal to $445,111,482.42 in immediately available funds together with the
Certificates.
(b) In consideration of the sale of the Home Loans from the
Seller to the Purchaser on the Closing Date, the Purchaser shall pay to the
Seller on the Closing Date by wire transfer of immediately available funds to a
bank account designated by the Seller, the amount specified above in clause (a);
provided, that such payment may be on a net funding basis if agreed by the
Seller and the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1. Seller Representations and Warranties. The Seller represents
and warrants to the Purchaser, as of the Closing Date (or if otherwise specified
below, as of the date so specified):
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(a) As to the Seller:
(i) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has the corporate power to own its assets and to transact the
business in which it is currently engaged. The Seller is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in
which the failure to so qualify would have a material adverse effect on
the business, properties, assets or condition (financial or other) of
the Seller;
(ii) The Seller has the power and authority to make, execute,
deliver and perform its obligations under this Agreement and all of the
transactions contemplated under this Agreement, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement. When executed and delivered, this
Agreement will constitute the legal, valid and binding obligation of the
Seller enforceable in accordance with its terms, except as enforcement
of such terms may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies;
(iii) The Seller is not required to obtain the consent of any
other Person or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity
or enforceability of this Agreement, except for such consents, licenses,
approvals or authorizations, or registrations or declarations, as shall
have been obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement and the
performance of the transactions contemplated hereby by the Seller will
not violate any provision of any existing law or regulation or any order
or decree of any court applicable to the Seller or any provision of the
Certificate of Incorporation or Bylaws of the Seller, or constitute a
material breach of any mortgage, indenture, contract or other agreement
to which the Seller is a party or by which the Seller may be bound;
(v) No litigation or administrative proceeding of or before
any court, tribunal or governmental body is currently pending, or to the
knowledge of the Seller threatened, against the Seller or any of its
properties or with respect to this Agreement or the Certificates which
in the opinion of the Seller has a reasonable likelihood of resulting in
a material adverse effect on the transactions contemplated by this
Agreement;
(vi) This Agreement constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as enforceability
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may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting
the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(vii) This Agreement constitutes a valid transfer and
assignment to the Purchaser of all right, title and interest of the
Seller in, to and under the Home Loans, all monies due or to become due
with respect thereto, and all proceeds of such Cut-off Date Loan
Balances with respect to the Home Loans and such funds as are from time
to time deposited in the Custodial Account (excluding any investment
earnings thereon) as assets of the Trust and all other property
specified in the definition of "Trust" as being part of the corpus of
the Trust conveyed to the Purchaser by the Seller;
(viii) The Seller is not in default with respect to any order
or decree of any court or any order, regulation or demand or any
federal, state, municipal or governmental agency, which default might
have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or might have consequences that would materially adversely
affect its performance hereunder; and
(The Seller has not transferred the Home Loans to the
Purchaser with any intent to hinder, delay or defraud any of its
creditors.
(b) As to the Home Loans:
(i) The information set forth in the Home Loan Schedule with
respect to each Home Loan or the Home Loans that compose either the
Group I Loans or Group II Loans, as applicable, is true and correct in
all material respects as of the date or dates respecting which such
information is furnished;
(ii) [Reserved];
(iii) The related Mortgage Note and the Mortgage have not been
assigned or pledged, the Seller has good and marketable title thereto
and the Seller is the sole owner and holder of the Home 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, under all governmental and
regulatory bodies having jurisdiction over the ownership of the
applicable Home Loans to sell and assign the same pursuant to this
Agreement;
(iv) To the best of Seller's knowledge, there is no valid offset,
defense or counterclaim of any obligor under any Mortgage;
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(v) To the best of Seller's knowledge, there is no delinquent
recording or other tax or fee or assessment lien against any related
Mortgaged Property;
(vi) To the best of Seller's knowledge, there is no proceeding
pending or threatened for the total or partial condemnation of the
related Mortgaged Property;
(vii) To the best of Seller's knowledge, there are no
mechanics' or similar liens or claims which have been filed for work,
labor or material affecting the related Mortgaged Property which are, or
may be liens prior or equal to, or subordinate with, the lien of the
related Mortgage, except liens which are fully insured against by the
title insurance policy referred to in clause (xi);
(viii) As of the Cut-off Date, none of the Home Loans were 30 or
more days delinquent;
(ix) For each Home Loan, the related Mortgage File contains each
of the documents and instruments specified to be included therein;
(x) The related Mortgage Note and the related Mortgage at
the time it was made complied in all material respects with applicable
local, state and federal laws;
(xi) A policy of title insurance in the form and amount
required by the Program Guide was effective as of the closing of each
Home Loan and each such policy is valid and remains in full force and
effect, and a title search or other assurance of title customary in the
relevant jurisdiction was obtained with respect to each Home Loan as to
which no title insurance policy or binder was issued;
(xii) None of the Mortgaged Properties is a mobile home that
is permanently attached to its foundation and none of the Mortgaged
Properties are manufactured housing units that are not permanently
attached to their foundation;
(xiii) Approximately 8.0% and 28.7% of the Group I Loans and
Group II Loans, respectively, in each case by Cut-off Date Loan Balance,
are secured by Mortgaged Properties located in California;
(xiv) Approximately 94.70% and 94.12% of the Group I Loans and
Group II Loans, respectively, by Cut-Off Date Loan Balance, had a
Combined Loan-to-Value Ratio in excess of 100%;
(xv) [Reserved];
(xvi) [Reserved];
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(xvii) None of the proceeds of any Home Loan were used to finance
the purchase of single premium credit insurance policies;
(xviii) The Seller will submit for filing or cause to be
submitted for filing UCC-1 financing statements in accordance with the
terms of this Agreement;
(xix) Each Mortgage is substantially similar one to the other and
is an enforceable obligation of the related Mortgagor;
(xx) To the best of Seller's knowledge, the physical property
subject to each Mortgage is free of material damage and is in good
repair;
(xxi) The Seller has not received a notice of default of any
senior mortgage loan related to a Mortgaged Property which has not been
cured by a party other than the related Subservicer;
(xxii) No Group I Loan and no more than two Group II Loans have
a prepayment penalty term that extends beyond five years after the date
of origination;
(xxiiNone of the Home Loans are reverse Home Loans;
(xxiv) No Group I Loan and no more than has a remaining term to
stated maturity of less than 57 months. All of the Group I Loans are
fixed rate and are fully amortizing, except for 0.3% that are Balloon
Payment loans. As of the Cut-off Date, the Loan Rates on the Group I
Loans range between 8.30% per annum and 19.20% per annum and the
weighted average Loan Rate is approximately 13.5556% per annum. The
weighted average remaining term to stated maturity of the Group I Loans
as of the Cut-off Date is approximately 235 months;
(xxv) No Group II Loan has a remaining term to stated maturity
of less than 60 months. All of the Group II Loans are fixed rate and are
fully amortizing. As of the Cut- off Date, the Loan Rates on the Group
II Loans range between 6.00% per annum and 18.88% per annum and the
weighted average Loan Rate is approximately 13.1379 % per annum. The
weighted average remaining term to stated maturity of the Group II Loans
as of the Cut-off Date is approximately 248 months;
(xxvi) (A) Each Mortgaged Property with respect to the Group I
Loans and Group II Loans consists of a single parcel of real property
with a single family residence erected thereon, manufactured housing or
an individual condominium unit. (B) With respect to the Group I Loans
and Group II Loans, respectively, (i) approximately 2.6% and 1.2% (by
Cut-off Date Loan Balance) are secured by real property improved by
individual condominium units and (ii) approximately 90.9% and 85.6% (by
Cut-off Date Loan Balance)
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of the Group I Loans and Group II Loans, respectively, are secured by
real property with a single family residence erected thereon;
(xxvii) Approximately 99.95% of the Group I Loans and all of the
Group II Loans, respectively, by Cut-off Date Loan Balance, are secured
by second mortgages or deeds of trust and approximately 0.05% of the
Group I Loans, by Cut-off Date Loan Balance, are secured by first
mortgages or deeds of trust;
(xxviii) If any of the Home Loans are secured by a leasehold
interest, with respect to each leasehold interest, the use of leasehold
estates for residential properties is an accepted practice in the area
where the related Mortgaged Property is located; residential property in
such area consisting of leasehold estates is readily marketable; the
lease is recorded and no party is in any way in breach of any provision
of such lease; the leasehold is in full force and effect and is not
subject to any prior lien or encumbrance by which the leasehold could be
terminated; and the remaining term of the lease does not terminate less
than five years after the maturity date of such Home Loan.
(xxix) Each Subservicer meets all applicable requirements under
the Servicing Agreement, is properly qualified to service the Home Loans
and has been servicing the Home Loans prior to the Cut-off Date in
accordance with the terms of the Program Guide;
(xxx) For each Home Loan, if required, as of the Cut-off Date,
flood insurance has been obtained which meets all applicable
requirements of Section 3.04 of the Servicing Agreement. For each Home
Loan, hazard insurance has been obtained which meets all applicable
requirements of Section 3.04 of the Servicing Agreement;
(xxxi) There is no material default, breach, violation or event
of acceleration existing under the terms of any Mortgage Note or
Mortgage and no event which, with notice and expiration of any grace or
cure period, would constitute a material default, breach, violation or
event of acceleration under the terms of any Mortgage Note or Mortgage,
and no such material default, breach, violation or event of acceleration
has been waived by the Seller or by any other entity involved in
originating or servicing a Home Loan;
(xxxii) No instrument of release or waiver has been executed in
connection with the Home Loans, and no Mortgagor has been released, in
whole or in part from its obligations in connection with a Home Loan;
(xxxiii) With respect to each Home Loan that is a second lien,
either (i) no consent for the Home Loan was required by the holder of
the related prior lien or liens or (ii) such consent has been obtained
and is contained in the Mortgage File;
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(xxxiv) With respect to each Home Loan, either (i) the Home Loan
is assumable pursuant to the terms of the Mortgage Note, or (ii) the
Home Loan contains a customary provision for the acceleration of the
payment of the unpaid principal balance of the Home Loan in the event
the related Mortgaged Property is sold without the prior consent of the
mortgagee thereunder; and
(xxxv) Each Mortgage File either contains (a) an original
Mortgage Note or (b) with respect to any Home Loan as to which the
original Mortgage Note has been permanently lost or destroyed and has
not been replaced, a Lost Note Affidavit together with a copy of such
Mortgage Note.
(c) Upon discovery by Seller or upon notice from the Purchaser, the
Credit Enhancer, the Issuer, the Owner Trustee, the Indenture Trustee or any
Custodian, as applicable, of a breach of any representation or warranty in
clause (a) above which materially and adversely affects the interests of the
Securityholders or the Credit Enhancer in any Home Loan, the Seller shall,
within 45 days of its discovery or its receipt of notice of such breach, either
(i) cure such breach in all material respects or (ii) to the extent that such
breach is with respect to a Home Loan or a Related Document, either (A)
repurchase such Home Loan from the Trust at the Repurchase Price, or (B)
substitute one or more Eligible Substitute Loans for such Home Loan, in each
case in the manner and subject to the conditions and limitations set forth
below.
Upon discovery by the Seller or upon notice from the Purchaser,
the Credit Enhancer, the Issuer, the Owner Trustee, the Indenture Trustee or any
Custodian, as applicable, of a breach of any representation or warranty in
clause (b) above with respect to any Home Loan or upon the occurrence of a
Repurchase Event that materially and adversely affects the interests of the
Securityholders or the Credit Enhancer or of the Purchaser in such Home Loan
(notice of which shall be given to the Purchaser by the Seller, if it discovers
the same), notwithstanding the Seller's lack of knowledge with respect to the
substance of such representation and warranty or Repurchase Event, the Seller
shall, within 90 days after the earlier of its discovery or receipt of notice
thereof, either cure such breach or Repurchase Event in all material respects or
either (i) repurchase such Home Loan from the Trust at the Repurchase Price, or
(ii) substitute one or more Eligible Substitute Loans for such Home Loan, in
each case in the manner and subject to the conditions set forth below. The
Repurchase Price for any such Home Loan repurchased by the Seller shall be
deposited or caused to be deposited by the Master Servicer in the Custodial
Account maintained by it pursuant to Section 3.02 of the Servicing Agreement.
The Seller may only substitute an Eligible Substitute Loan or
Loans for a Deleted Loan pursuant to this Section 3.1(c) if the Seller obtains
an Opinion of Counsel generally to the effect that the substitution of an
Eligible Substitute Loan or Loans for a Deleted Loan will not cause an entity
level federal or state income tax to be imposed on the Trust. The Seller shall
also deliver to the Custodian on behalf of the Trust, with respect to such
Eligible Substitute Loan or Loans, the original Mortgage Note and all other
documents and agreements as are required by Section 2.1(c),
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with the Mortgage Note endorsed as required by Section 2.1(c). No substitution
will be made in any calendar month after the Determination Date for such month.
Monthly Payments due with respect to Eligible Substitute Loans in the month of
substitution shall not be part of the Trust and will be retained by the Master
Servicer and remitted by the Master Servicer to the Seller on the next
succeeding Payment Date, provided that a payment at least equal to the
applicable Monthly Payment has been received by the Trust, for such month in
respect of the Deleted Loan. For the month of substitution, distributions to the
Custodial Account pursuant to the Servicing Agreement will include the Monthly
Payment due on a Deleted Loan for such month and thereafter the Seller shall be
entitled to retain all amounts received in respect of such Deleted Loan. The
Master Servicer shall amend or cause to be amended the Home Loan Schedule to
reflect the removal of such Deleted Loan and the substitution of the Eligible
Substitute Loan or Loans and the Master Servicer shall deliver the amended Home
Loan Schedule to the Indenture Trustee. Upon such substitution, the Eligible
Substitute Loan or Loans shall be subject to the terms of this Agreement and the
Servicing Agreement in all respects, the Seller shall be deemed to have made the
representations and warranties with respect to the Eligible Substitute Loan
contained herein set forth in clauses (iii) through (xxxv) of Section 3.1(b)
(other than clauses (viii), (xiii), (xiv), (xxiv), (xxv), (xxvi)(B) and (xxvii))
as of the date of substitution, and the Seller shall be obligated to repurchase
or substitute for any Eligible Substitute Loan as to which a Repurchase Event
has occurred as provided herein. In connection with the substitution of one or
more Eligible Substitute Loans for one or more Deleted Loans, the Master
Servicer will determine the amount (such amount, a "Substitution Adjustment
Amount"), if any, by which the aggregate principal balance of all such Eligible
Substitute Loans as of the date of substitution is less than the aggregate
principal balance of all such Deleted Loans (after application of the principal
portion of the Monthly Payments due in the month of substitution that are to be
distributed to the Custodial Account in the month of substitution). The Seller
shall deposit the amount of such shortfall into the Custodial Account on the day
of substitution, without any reimbursement therefor.
Upon receipt by the Indenture Trustee on behalf of the Trust and
the Custodian of written notification, signed by a Servicing Officer, of the
deposit of such Repurchase Price or of such substitution of an Eligible
Substitute Loan (together with the complete related Mortgage File) and deposit
of any applicable Substitution Adjustment Amount as provided above, the
Custodian, on behalf of the Indenture Trustee shall release to the Seller the
related Mortgage File for the Home Loan being repurchased or substituted for and
the Indenture Trustee on behalf of the Trust shall execute and deliver such
instruments of transfer or assignment prepared by the Master Servicer, in each
case without recourse, as shall be necessary to vest in the Seller or its
designee such Home Loan released pursuant hereto and thereafter such Home Loan
shall not be an asset of the Trust.
It is understood and agreed that the obligation of the Seller to
cure any breach, or to repurchase or substitute for, any Home Loan as to which
such a breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Purchaser, the Issuer, the
Certificateholders (or the Owner Trustee on behalf of the Certificateholders)
and the Noteholders (or the Indenture Trustee on behalf of the Noteholders)
against the Seller.
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It is understood and agreed that the representations and
warranties set forth in this Section 3.1 shall survive delivery of the
respective Mortgage Files to the Indenture Trustee, or the Custodian.
ARTICLE IV
SELLER'S COVENANTS
Section 4.1. Covenants of the Seller. The Seller hereby covenants
that, except for the transfer hereunder, the Seller will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur or assume any
Lien on any Home Loan, or any interest therein. The Seller will notify the
Indenture Trustee, as assignee of the Purchaser, of the existence of any Lien
(other than as provided above) on any Home Loan immediately upon discovery
thereof; and the Seller will defend the right, title and interest of the Issuer,
as assignee of the Purchaser, in, to and under the Home Loans against all claims
of third parties claiming through or under the Seller; provided, however, that
nothing in this Section 4.1 shall be deemed to apply to any Liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the Seller
shall currently be contesting the validity thereof in good faith by appropriate
proceedings.
ARTICLE V
SERVICING
Section 5.1. Servicing. The Seller will service the Home Loans
pursuant to the terms and conditions of the Servicing Agreement and will service
the Home Loans directly or through one or more subservicers in accordance
therewith.
ARTICLE VI
LIMITATION ON LIABILITY OF THE SELLER
Section 6.1. Limitation on Liability of the Seller. None of the
directors, officers, employees or agents of the Seller shall be under any
liability to the Purchaser, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement. Except as and to the extent
expressly provided herein or in the Servicing Agreement, the Seller shall not be
under any liability to the Trust, the Owner Trustee, the Indenture Trustee or
the Securityholders. The Seller and any director, officer,
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employee or agent of the Seller may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder.
ARTICLE VII
TERMINATION
Section 7.1. Termination. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate,
except for the Seller's indemnity obligations as provided herein, upon the
termination of the Owner Trust pursuant to the terms of the Trust Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. Amendment. This Agreement may be amended from time
to time by the Seller and the Purchaser by written agreement signed by the
Seller and the Purchaser, with the consent of the Credit Enhancer (which consent
shall not be unreasonably withheld).
Section 8.2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 8.3. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, postage prepaid, addressed
as follows:
(i) if to the Seller:
Residential Funding Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Managing Director, Structured Finance
or, such other address as may hereafter be furnished to the Purchaser in writing
by the Seller.
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(ii) if to the Purchaser:
Residential Funding Mortgage Securities II, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Managing Director, Structured Finance
(iii) if to the Custodian:
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: MDC -- Account Manager
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
Section 8.4. Severability of Provisions. If any one or more of
the covenants, agreements, provisions of terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity of
enforceability of the other provisions of this Agreement.
Section 8.5. Relationship of Parties. Nothing herein contained
shall be deemed or construed to create a partnership or joint venture between
the parties hereto, and the services of the Seller shall be rendered as an
independent contractor and not as agent for the Purchaser.
Section 8.6. Counterparts. This Agreement may be executed in one
or more counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed to be an original
and such counterparts, together, shall constitute one and the same agreement.
Section 8.7. Further Agreements. The Purchaser and the Seller
each agree to execute and deliver to the other such additional documents,
instruments or agreements as may be necessary or appropriate to effectuate the
purposes of this Agreement.
Section 8.8. Intention of the Parties. It is the intention of the
parties that the Purchaser is purchasing, and the Seller is selling, the Home
Loans, rather than a loan by the Purchaser to the Seller secured by the Home
Loans. Accordingly, the parties hereto each intend to treat the transaction for
federal income tax purposes as a sale by the Seller, and a purchase by the
Purchaser, of the Home Loans. The Purchaser will have the right to review the
Home Loans and the Related Documents to determine the characteristics of the
Home Loans which will affect the federal
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income tax consequences of owning the Home Loans and the Seller will cooperate
with all reasonable requests made by the Purchaser in the course of such review.
Section 8.9. Successors and Assigns; Assignment of This
Agreement. This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller, Purchaser and their respective successors and
assigns. The obligations of the Seller under this Agreement cannot be assigned
or delegated to a third party without the consent of the Credit Enhancer and the
Purchaser, which consent shall be at the Credit Enhancer's and the Purchaser's
sole discretion, except that the Purchaser and the Credit Enhancer acknowledge
and agree that the Seller may assign its obligations hereunder to any Affiliate
of the Seller, to any Person succeeding to the business of the Seller, to any
Person into which the Seller is merged and to any Person resulting from any
merger, conversion or consolidation to which the Seller is a party. The parties
hereto acknowledge that the Purchaser is acquiring the Home Loans for the
purpose of contributing them to the Issuer. Pursuant to the terms of the Trust
Agreement, the Issuer will issue and transfer to or at the direction of the
Purchaser, the Certificates and pursuant to the terms of the Indenture, the
Issuer will issue and transfer to or at the direction of the Purchaser, the
Notes secured by the Home Loans. As an inducement to the Purchaser to purchase
the Home Loans, the Seller acknowledges and consents to (i) the assignment by
the Purchaser to the Issuer of all of the Purchaser's rights against the Seller
pursuant to this Agreement insofar as such rights relate to Home Loans
transferred to the Issuer and to the enforcement or exercise of any right or
remedy against the Seller pursuant to this Agreement by the Issuer, (ii) the
enforcement or exercise of any right or remedy against the Seller pursuant to
this Agreement by or on behalf of the Issuer and (iii) the Issuer's pledge of
its interest in this Agreement to the Indenture Trustee and the enforcement by
the Indenture Trustee of any such right or remedy against the Seller following
an Event of Default under the Indenture. Such enforcement of a right or remedy
by the Issuer or the Indenture Trustee, as applicable, shall have the same force
and effect as if the right or remedy had been enforced or exercised by the
Purchaser directly.
Section 8.10. Survival. The representations and warranties made herein by
the Seller and the provisions of Article VI hereof shall survive the purchase of
the Home Loans hereunder.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed to this Home Loan Purchase Agreement by their
respective officers thereunto duly authorized as of the day and year first above
written.
RESIDENTIAL FUNDING MORTGAGE
SECURITIES II, INC.
as Purchaser
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
RESIDENTIAL FUNDING CORPORATION
as Seller
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed to this Home Loan Purchase Agreement by their
respective officers thereunto duly authorized as of the day and year first above
written.
RESIDENTIAL FUNDING MORTGAGE
SECURITIES II, INC.
as Purchaser
By:
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
RESIDENTIAL FUNDING CORPORATION
as Seller
By:
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
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Exhibit 1
HOME LOAN SCHEDULE
