EXHIBIT 99.1
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXXX XXXXX MORTGAGE LENDING, INC.
as Seller
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
as Purchaser
Dated as of
September 1, 2006
TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS.................................................. 1
SECTION 2. PURCHASE AND SALE OF THE MORTGAGE LOANS AND RELATED RIGHTS... 3
SECTION 3. MORTGAGE LOAN SCHEDULES...................................... 4
SECTION 4. MORTGAGE LOAN TRANSFER....................................... 4
SECTION 5. EXAMINATION OF MORTGAGE FILES................................ 5
SECTION 6. RECORDATION OF ASSIGNMENTS OF MORTGAGE....................... 7
SECTION 7. REPRESENTATIONS AND WARRANTIES OF SELLER CONCERNING THE
MORTGAGE LOANS............................................... 8
SECTION 8. REPRESENTATIONS AND WARRANTIES CONCERNING THE SELLER......... 13
SECTION 9. REPRESENTATIONS AND WARRANTIES CONCERNING THE PURCHASER...... 15
SECTION 10. CONDITIONS TO CLOSING........................................ 16
SECTION 11. FEES AND EXPENSES............................................ 18
SECTION 12. ACCOUNTANTS' LETTERS......................................... 18
SECTION 13. INDEMNIFICATION.............................................. 18
SECTION 14. NOTICES...................................................... 21
SECTION 15. TRANSFER OF MORTGAGE LOANS................................... 21
SECTION 16. TERMINATION.................................................. 21
SECTION 17. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY..................................................... 22
SECTION 18. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST............... 22
SECTION 19. SEVERABILITY................................................. 22
SECTION 20. COUNTERPARTS................................................. 23
SECTION 21. AMENDMENT.................................................... 23
SECTION 22. GOVERNING LAW................................................ 23
SECTION 23. FURTHER ASSURANCES........................................... 23
SECTION 24. SUCCESSORS AND ASSIGNS....................................... 23
SECTION 25. THE SELLER................................................... 24
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SECTION 26. ENTIRE AGREEMENT............................................. 24
SECTION 27. NO PARTNERSHIP............................................... 24
EXHIBITS AND SCHEDULE TO
MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 1 Contents of Mortgage File
Exhibit 2 Contents of Final Mortgage File
Exhibit 3 Mortgage Loan Schedule Information
Exhibit 4 Seller's Information
Exhibit 5 Purchaser's Information
Exhibit 6 Schedule of Lost Notes
Exhibit 7 S&P Appendix
ii
MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of September 1, 2006, as
amended and supplemented by any and all amendments hereto (collectively, the
"Agreement"), by and between XXXXXXX XXXXX MORTGAGE LENDING, INC., a Delaware
corporation (the "Seller"), and XXXXXXX XXXXX MORTGAGE INVESTORS, INC., a
Delaware corporation (the "Purchaser").
Upon the terms and subject to the conditions of this Agreement, the
Seller agrees to sell, and the Purchaser agrees to purchase, certain first lien,
adjustable-rate mortgage loans secured by one- to four-family residences,
townhouses, individual condominiums, co-op units and units in planned unit
developments (collectively, the "Mortgage Loans") as described herein. The
Purchaser intends to deposit the Mortgage Loans into a trust fund (the "Trust
Fund") and create Mortgage Pass-Through Certificates, MLMI Series 2006-AF1 (the
"Certificates"), under a pooling and servicing agreement, to be dated as of
September 1, 2006 (the "Pooling and Servicing Agreement"), by and among the
Purchaser, as depositor, HSBC Bank USA, National Association, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator (the "Master Servicer" and "Securities Administrator").
The Purchaser has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Number 333-130545)
relating to its Mortgage Pass-Through Certificates and the offering of certain
series thereof (including certain classes of the Certificates) from time to time
in accordance with Rule 415 under the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder (the
"Securities Act"). Such registration statement, when it became effective under
the Securities Act, and the prospectus relating to the public offering of
certain classes of the Certificates by the Purchaser (the "Public Offering"), as
from time to time each is amended or supplemented pursuant to the Securities Act
or otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus," respectively. The "Prospectus Supplement" shall mean that
supplement, dated September 28, 2006 to the Prospectus, dated September 8, 2006,
relating to certain classes of the Certificates. With respect to the Public
Offering of certain classes of the Certificates, the Purchaser and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") have entered into a
terms agreement dated as of September 27, 2006 to an underwriting agreement
dated February 28, 2003, between the Purchaser and Xxxxxxx Xxxxx (together, the
"Underwriting Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties hereto agree as follows:
Section 1. Definitions.
Certain terms are defined herein. Capitalized terms used herein but not
defined herein shall have the meanings specified in the Pooling and Servicing
Agreement. The following other terms are defined as follows:
Closing Date: September 29, 2006.
Custodial Agreement: An agreement, dated as of the Closing Date among
the Depositor, the Master Servicer, the Securities Administrator, the Trustee
and the Custodian in substantially the form of Exhibit G to the Pooling and
Servicing Agreement.
Custodian: Xxxxx Fargo Bank, N.A., including any successors in
interest, or any successor custodian appointed pursuant to the provisions hereof
and of the Custodial Agreement.
Cut-off Date: September 1, 2006.
Cut-off Date Balance: $[___________].
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Substitute Mortgage Loan.
Due Date: With respect to each Mortgage Loan, the first day in each
month.
Xxxxxx Xxx: Federal National Mortgage Association or any successor
thereto.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor thereto.
Master Servicer: Xxxxx Fargo Bank, X.X.
Xxxxxxx Xxxxx: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
Moody's: Xxxxx'x Investors Service, Inc., or its successors in
interest.
Mortgage: The mortgage or deed of trust creating a first lien on an
interest in real property securing a Mortgage Note.
Mortgage File: The items referred to in Exhibit 1 and Exhibit 2
pertaining to a particular Mortgage Loan and any additional documents required
to be added to such documents pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne by a
Mortgage Note as stated therein.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Rate: With respect to any Distribution Date and each Mortgage
Loan, the Mortgage Interest Rate for such Mortgage Loan on such Distribution
Date less the Servicing Fee Rate for such Mortgage Loan on such Distribution
Date.
Offered Certificates: Shall mean the Class AF-1 Certificates, the
Class AF-2A Certificates, the Class AF-2B Certificates, the Class AF-2C
Certificates, the Class AF-3A Certificates, the Class AF-3B Certificates, the
Class IO Certificates, the Class PO Certificates, the Class AV-1A Certificates,
the Class AV-1B Certificates, the Class AV-2A Certificates, the Class AV-2B
Certificates, Class A-R Certificate, the Class MF-1 Certificates, Class MF-2
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Certificates, the Class MF-3 Certificates, the Class MV-1 Certificates, Class
MV-2 Certificates and the Class MV-3 Certificates issued pursuant to the Pooling
and Servicing Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Seller or the Purchaser, reasonably acceptable to the Trustee.
Person: Any legal person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller pursuant to the applicable provisions of this Agreement,
an amount equal to the sum of (i) 100% of the principal remaining unpaid on such
Mortgage Loan as of the date of purchase (including if a foreclosure has already
occurred, the principal balance of the related Mortgage Loan at the time the
Mortgaged Property was acquired), (ii) accrued and unpaid interest thereon at
the Mortgage Interest Rate through and including the last day of the month of
purchase and (iii) any costs and damages incurred by the Issuing Entity in
connection with any violation by such Mortgage Loan of any predatory or
abusive-lending law.
Rating Agencies: S&P and Moody's, each a "Rating Agency."
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
or its successors in interest.
Securities Act: The Securities Act of 1933, as amended.
Security: As used herein, the term shall refer to the Trust Fund and
the Certificates created thereby.
Substitute Mortgage Loan: A mortgage loan substituted for a Deleted
Mortgage Loan which must meet on the date of such substitution the requirements
stated herein and in the Pooling and Servicing Agreement; upon such
substitution, such mortgage loan shall be a "Mortgage Loan" hereunder.
Value: The value of the Mortgaged Property at the time of origination
of the related Mortgage Loan, such value being the lesser of (i) the value of
such property set forth in an appraisal accepted by the Originator or (ii) the
sales price of such property at the time of origination.
Section 2. Purchase and Sale of the Mortgage Loans and Related Rights.
(a) Upon satisfaction of the conditions set forth in Section 10
hereof, the Seller agrees to sell, and the Purchaser agrees to purchase Mortgage
Loans having an aggregate Cut-off Date Balance of $[_______________].
(b) The closing for the purchase and sale of the Mortgage Loans and
the closing for the issuance of the Certificates will take place on the Closing
Date at the office of the Purchaser's counsel in New York, New York or such
other place as the parties shall agree.
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(c) Upon the satisfaction of the conditions set forth in Section 10
hereof, on the Closing Date, in consideration of the purchase of the Mortgage
Loans, the Purchaser shall (i) pay to the Seller an amount equal to the net sale
proceeds of the Offered Certificates plus accrued interest in immediately
available funds by wire transfer to such account or accounts as shall be
designated by the Seller and (ii) deliver to the Seller the Class B
Certificates.
(d) In addition to the foregoing, on the Closing Date the Seller
assigns to the Purchaser without recourse all of its right, title and interest
in (1) the Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated as
of March 27, 2001, by and between Xxxxxxx Xxxxx Mortgage Capital, Inc. ("MLMC"),
Cendant Mortgage Corporation ("PHH Mortgage Corporation" or "PHH") and Xxxxxx'x
Gate Residential Mortgage Trust, (2) the Assignment, Assumption and Recognition
Agreement, dated as of September 1, 2006, among the Seller, the Purchaser and
PHH, (3) the Seller's Warranties and Servicing Agreement (WFHM Mortgage Loan
Series 2006-W60), dated as of July 1, 2006, by and between Seller and Xxxxx
Fargo Bank, N.A. ("Xxxxx"), (8) the Assignment, Assumption and Recognition
Agreement, dated as of September 1, 2006, among the Seller, the Purchaser and
Xxxxx, (4) the Master Mortgage Loan Purchase and Servicing Agreement, dated as
of April 1, 2003, among Xxxxxxx Xxxxx Mortgage Holdings Inc., Terwin Advisors,
LLC and GreenPoint Mortgage Funding, Inc. ("Greenpoint"), as amended by
Amendment No. 1, dated as of August 20, 2003 among MLMH, Terwin and GreenPoint,
and the Bring-Down Letter related thereto, (5) the Assignment, Assumption and
Recognition Agreement, dated as of September 1, 2006, among the Seller, the
Purchaser and Greenpoint, (6) the Mortgage Servicing Purchase and Sale Agreement
dated as of September 1, 2006, between the Seller and CitiMortgage, Inc.
("CITI"), (7) the Assignment, Assumption and Recognition Agreement, dated as of
September 1, 2006, among the Seller, the Purchaser and CITI, (8) the Master
Seller's Warranties and Servicing Agreement, dated as of May 1, 2006, among the
Seller and IndyMac Bank, F.S.B. ("IndyMac"), (8) the Assignment, Assumption and
Recognition Agreement, dated as of September 1, 2006, among the Seller, the
Purchaser and IndyMac, (9) the Mortgage Loan Purchase Agreement, dated as of
November 1, 2005, as amended by the Regulation AB Amendment dated March 1, 2006,
between the Seller and Washington Mutual Mortgage Securities Corp ("WMMSC"),
(10) the Mortgage Loan Purchase Agreement dated as of May 1, 2006, between the
Seller, Washington Mutual Bank ("WAMU") and Washington Mutual Bank fsb, (11) the
Servicing Agreement, dated as of November 1, 2005, between the Seller and WAMU,
as amended by the Regulation AB Amendment dated March 1, 2006 and (12) the
Assignment, Assumption and Recognition Agreement, dated as of September 1, 2006,
among the Seller, the Purchaser and WAMU.
Section 3. Mortgage Loan Schedules.
The Seller agrees to provide to the Purchaser as of the date hereof a
preliminary listing of the Mortgage Loans (the "Preliminary Mortgage Loan
Schedule") setting forth the information listed on Exhibit 3 to this Agreement
with respect to each of the Mortgage Loans being sold by the Seller. If there
are changes to the Preliminary Mortgage Loan Schedule, the Seller shall provide
to the Purchaser as of the Closing Date a final schedule (the "Final Mortgage
Loan Schedule") setting forth the information listed on Exhibit 3 to this
Agreement with respect to each of the Mortgage Loans being sold by the Seller to
the Purchaser. The Final Mortgage Loan Schedule shall be delivered to the
Purchaser on the Closing Date, shall be attached to an amendment to this
Agreement to be executed on the Closing Date by the parties hereto and shall
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be in form and substance mutually agreed to by the Seller and the Purchaser (the
"Amendment"). If there are no changes to the Preliminary Mortgage Loan Schedule,
the Preliminary Mortgage Loan Schedule shall be the Final Mortgage Loan Schedule
for all purposes hereof.
Section 4 Mortgage Loan Transfer.
The Purchaser will be entitled to all scheduled payments of principal
and interest on the Mortgage Loans due after the Cut-off Date (regardless of
when actually collected) and all payments thereof other than scheduled principal
and interest received after the Cut-off Date. The Seller will be entitled to all
scheduled payments of principal and interest on the Mortgage Loans due on or
before the Cut-off Date (including payments collected after the Cut-off Date)
and all payments thereof other than scheduled principal and interest on the
Mortgage Loans received on or before the Cut-off Date. Such principal amounts
and any interest thereon belonging to the Seller as described above will not be
included in the aggregate outstanding principal balance of the Mortgage Loans as
of the Cut-off Date as set forth on the Final Mortgage Loan Schedule.
Pursuant to various conveyancing documents to be executed on the
Closing Date and pursuant to the Pooling and Servicing Agreement, the Purchaser
will assign on the Closing Date all of its right, title and interest in and to
the Mortgage Loans to the Trustee for the benefit of the Certificateholders. In
connection with the transfer and assignment of the Mortgage Loans, the Seller
has delivered or will deliver or cause to be delivered to the Trustee by the
Closing Date or such later date as is agreed to by the Purchaser and the Seller
(each of the Closing Date and such later date is referred to as a "Mortgage File
Delivery Date"), the items of each Mortgage File, provided, however, that in
lieu of the foregoing, the Seller may deliver the following documents, under the
circumstances set forth below: (x) in lieu of the original Mortgage, assignments
to the Trustee or intervening assignments thereof which have been delivered, are
being delivered or will upon receipt of recording information relating to the
Mortgage required to be included thereon, be delivered to recording offices for
recording and have not been returned in time to permit their delivery as
specified above, the Seller may deliver a true copy thereof with a certification
by the Seller or the Originator, on the face of such copy, substantially as
follows: "Certified to be a true and correct copy of the original, which has
been transmitted for recording;" (y) in lieu of the Mortgage, assignments to the
Trustee or intervening assignments thereof, if the applicable jurisdiction
retains the originals of such documents or if the originals are lost (in each
case, as evidenced by a certification from the Seller to such effect), the
Seller may deliver photocopies of such documents containing an original
certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; and (z) in lieu of the Mortgage
Notes relating to the Mortgage Loans, each identified in the list delivered by
the Purchaser to the Trustee on the Closing Date and attached hereto as Exhibit
6 the Seller may deliver lost note affidavits and indemnities of the Seller; and
provided further, however, that in the case of Mortgage Loans which have been
prepaid in full after the Cut-off Date and prior to the Closing Date, the
Seller, in lieu of delivering the above documents, may deliver to the Trustee a
certification by the Seller to such effect. The Seller shall deliver such
original documents (including any original documents as to which certified
copies had previously been delivered) or such certified copies to the Trustee
promptly after they are received. The Seller shall cause the Mortgage and
intervening assignments, if any, and the assignment of the Mortgage to be
recorded not later than 180 days after the Closing Date, or, in lieu of such
assignments, shall provide an Opinion of Counsel pursuant to Section 6(a) hereof
to the effect
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that the recordation of such assignment is not necessary to protect the
Trustee's interest in the related Mortgage Loan. Upon the request of the
Purchaser, the Seller will assist the Purchaser in effecting the assignment
referred to above.
The Seller and the Purchaser acknowledge hereunder that all of the
Mortgage Loans and the related servicing will ultimately be assigned to HSBC
Bank USA, National Association, as Trustee for the Certificateholders, on the
date hereof.
Section 5. Examination of Mortgage Files.
(a) On or before the Mortgage File Delivery Date, the Seller will have
made the Mortgage Files available to the Purchaser or its agent for examination
which may be at the offices of the Trustee or the Seller and/or the Custodian.
The fact that the Purchaser or its agent has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files shall not affect the
Purchaser's rights to demand cure, repurchase, substitution or other relief as
provided in this Agreement. In furtherance of the foregoing, the Seller shall
make the Mortgage Files available to the Purchaser or its agent from time to
time so as to permit the Purchaser to confirm the Seller's compliance with the
delivery and recordation requirements of this Agreement and the Pooling and
Servicing Agreement. In addition, upon request of the Purchaser, the Seller
agrees to provide to the Purchaser, Xxxxxxx Xxxxx and to any investors or
prospective investors in the Certificates information regarding the Mortgage
Loans and their servicing, to make the Mortgage Files available to the
Purchaser, Xxxxxxx Xxxxx and to such investors or prospective investors (which
may be at the offices of the Seller and/or the Seller's custodian) and to make
available personnel knowledgeable about the Mortgage Loans for discussions with
the Purchaser, Xxxxxxx Xxxxx and such investors or prospective investors, upon
reasonable request during regular business hours, sufficient to permit the
Purchaser, Xxxxxxx Xxxxx and such investors or potential investors to conduct
such due diligence as any such party reasonably believes is appropriate.
(b) Pursuant to the Pooling and Servicing Agreement, on the Closing
Date the Trustee (or the Custodian), for the benefit of the Certificateholders,
will review items of the Mortgage Files as set forth on Exhibit 1 and will
deliver to the Seller a certification in the form attached as Exhibit One to the
Custodial Agreement.
(c) Pursuant to the Pooling and Servicing Agreement, the Trustee or
the Custodian, as its agent, will review the Mortgage Files within 180 days of
the Closing Date and will deliver to the Purchaser a final certification
substantially in the form of Exhibit Two to the Custodial Agreement. If the
Trustee or the Custodian, as its agent, is unable to deliver a final
certification with respect to the items listed in Exhibit 2 due to any document
that is missing, has not been executed, is unrelated, determined on the basis of
the Mortgagor name, original principal balance and loan number, to the Mortgage
Loans identified in the Final Mortgage Loan Schedule (a "Material Defect"), the
Trustee or the Custodian, as its agent, shall notify the Seller of such Material
Defect. The Seller shall correct or cure any such Material Defect within 90 days
from the date of notice from the Trustee or the Custodian, as applicable, of the
Material Defect and if the Seller does not correct or cure such Material Defect
within such period and such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the Seller
will, in accordance with the terms of the Pooling and Servicing Agreement,
within 90 days of the date of notice, provide the Trustee with a Substitute
Mortgage
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Loan (if within two years of the Closing Date) or purchase the related Mortgage
Loan at the applicable Purchase Price; provided, however, that if such defect
relates solely to the inability of the Seller to deliver the original security
instrument or intervening assignments thereof, or a certified copy because the
originals of such documents, or a certified copy, have not been returned by the
applicable jurisdiction, the Seller shall not be required to purchase such
Mortgage Loan if the Seller delivers such original documents or certified copy
promptly upon receipt, but in no event later than 360 days after the Closing
Date. The foregoing repurchase obligation shall not apply in the event that the
Seller cannot deliver such original or copy of any document submitted for
recording to the appropriate recording office in the applicable jurisdiction
because such document has not been returned by such office; provided that the
Seller shall instead deliver a recording receipt of such recording office or, if
such receipt is not available, a certificate of the Seller confirming that such
documents have been accepted for recording, and delivery to the Trustee or the
Custodian, as its agent, shall be effected by the Seller within thirty days of
its receipt of the original recorded document.
(d) At the time of any substitution, the Seller shall deliver or cause
to be delivered the Substitute Mortgage Loan, the related Mortgage File and any
other documents and payments required to be delivered in connection with a
substitution pursuant to the Pooling and Servicing Agreement. At the time of any
purchase or substitution, the Trustee shall (i) assign to the Seller and release
or cause the Custodian, as its agent, to release the documents (including, but
not limited to, the Mortgage, Mortgage Note and other contents of the Mortgage
File) in the possession of the Trustee or the Custodian relating to the Deleted
Mortgage Loan and (ii) execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in the
Seller title to such Deleted Mortgage Loan.
Section 6. Recordation of Assignments of Mortgage.
(a) The Seller need not cause to be recorded any assignment which
relates to a Mortgage Loan in any jurisdiction; provided, however, each
assignment of Mortgage shall be submitted for recording by the Seller, at no
expense to the Issuing Entity or Trustee, upon the earliest to occur of (i)
reasonable direction by the Holders of Certificates evidencing, in the
aggregate, not less than 25% of the Voting Rights, (ii) the occurrence of an
Event of Default with respect to the Master Servicer (upon instruction of the
Seller), (iii) the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Seller or (iv) with respect to any one assignment of Mortgage,
the occurrence of a bankruptcy, insolvency or foreclosure relating to the
Mortgagor under the related Mortgage.
While each such Mortgage or assignment is being recorded, if
necessary, the Seller shall leave or cause to be left with the Trustee a
certified copy of such Mortgage or assignment. All customary recording fees and
reasonable expenses relating to the recordation of the assignments of Mortgage
to the Trustee shall be borne by the Seller.
(b) It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans by the Seller to the Purchaser, as contemplated by this
Agreement be, and be treated as, a sale. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to the Purchaser to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage
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Loans are held by a court of competent jurisdiction to continue to be property
of the Seller, then (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the applicable Uniform
Commercial Code; (ii) the transfer of the Mortgage Loans provided for herein
shall be deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller's right, title and interest in and to the Mortgage
Loans and all amounts payable to the holders of the Mortgage Loans in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, to the extent the Purchaser would otherwise be entitled to own such
Mortgage Loans and proceeds pursuant to Section 4 hereof, including all amounts,
other than investment earnings, from time to time held or invested in any
accounts created pursuant to the Pooling and Servicing Agreement, whether in the
form of cash, instruments, securities or other property; (iii) the possession by
the Purchaser or the Trustee of Mortgage Notes and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 (or comparable provision) of the
applicable Uniform Commercial Code; and (iv) notifications to persons holding
such property, and acknowledgments, receipts or confirmations from persons
holding such property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Purchaser for the purpose of perfecting such security
interest under applicable law. Any assignment of the interest of the Purchaser
pursuant to any provision hereof or pursuant to the Pooling and Servicing
Agreement shall also be deemed to be an assignment of any security interest
created hereby. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be reasonably necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Pooling and Servicing Agreement.
Section 7. Representations and Warranties of Seller Concerning the Mortgage
Loans.
The Seller hereby represents and warrants to the Purchaser as of the
Closing Date or such other date as may be specified below with respect to each
Mortgage Loan being sold by it:
(a) the information set forth in the Mortgage Loan Schedule hereto is
true and correct in all material respects;
(b) immediately prior to the transfer to the Purchaser, the Seller was
the sole owner of beneficial title and holder of each Mortgage and Mortgage
Note relating to the Mortgage Loans and is conveying the same free and
clear of any and all liens, claims, encumbrances, participation interests,
equities, pledges, charges or security interests of any nature and the
Seller has full right and authority to sell or assign the same pursuant to
this Agreement;
(c) no selection procedure reasonably believed by the Seller to be
adverse to the interests of the Certificateholders was utilized in
selecting the Mortgage Loans;
(d) each Mortgage Loan constitutes a "qualified mortgage" under
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1);
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(e) no Mortgage Loan is in foreclosure;
(f) no Mortgage Loan provides for interest other than at either (i) a
single fixed rate in effect throughout the term of the Mortgage Loan or
(ii) a "variable rate" (within the meaning of Treas. Reg. Section
1.860G-1(a)(3)) in effect throughout the term of the Mortgage Loan;
(g) the Seller would not, based on the delinquency status of the
Mortgage Loans, institute foreclosure proceedings with respect to any of
the Mortgage Loans prior to the next scheduled payment for such Mortgage
Loan;
(h) the information set forth under the captions "Description of the
Mortgage Groups--General," "--Tabular Characteristics of the Mortgage
Loans" and in Annex II of the Prospectus Supplement is true and correct in
all material respects;
(i) as of the Cut-off Date, no Mortgage Loan is more than 30 days past
due. The Seller has not advanced funds, or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Note or Mortgage;
(j) to the best of the Seller's knowledge, there are no delinquent
taxes, ground rents, water charges, sewer rents, assessments, insurance
premiums, leasehold payments, including assessments payable in future
installments or other outstanding charges affecting the related Mortgaged
Property;
(k) to the best of the Seller's knowledge, there is no default,
breach, violation or event of acceleration existing under the Mortgage or
the Mortgage Note and no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration, and the Seller has not
waived any default, breach, violation or event of acceleration;
(l) to the best of the Seller's knowledge, the Mortgaged Property is
free of damage and waste and there is no proceeding pending for the total
or partial condemnation thereof;
(m) to the best of the Seller's knowledge, the Mortgaged Property is
lawfully occupied under applicable law at time of origination; 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;
(n) all requirements of any federal, state or local law (including
usury, truth in lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity, disclosure or recording, predatory
and abusive lending laws) applicable to the origination and servicing of
such Mortgage Loan have been complied with in all
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material respects;
(o) to the best of the Seller's knowledge, as of the date of transfer
of the Mortgage Loans, there is no mechanics' lien or claim for work, labor
or material affecting the Mortgaged Property except those which are insured
against by the title insurance policy;
(p) to the best of the Seller's knowledge, as of the date of the
transfer of the Mortgage Loans to the Purchaser, there is no valid offset,
defense or counterclaim to any Mortgage Note or Mortgage;
(q) to the best of the Seller's knowledge, as of the date of closing,
the Mortgaged Property subject to any Mortgage is free of material damage
and is in good repair;
(r) at the time of origination, no improvement located on or being
part of the Mortgaged Property was in violation of any applicable zoning
and subdivision laws or ordinances;
(s) each Mortgage Loan is and will be a mortgage loan arising out of
the originator's practice in accordance with the seller/originator's
underwriting guidelines. The seller has no knowledge of any fact that
should have led it to expect at the time of the initial creation of an
interest in the Mortgage Loan that such Mortgage Loan would not be paid in
full when due;
(t) each original Mortgage has been recorded or is in the process of
being recorded in the appropriate jurisdictions wherein such recordation is
required to perfect the lien thereof for the benefit of the Trust Fund;
(u) the related Mortgage File contains each of the documents and
instruments specified;
(v) each Mortgage Loan is being serviced according to the related
Servicer's guidelines;
(w) the Mortgage Note and the Mortgage have not been impaired, altered
or modified in any material respect, except by a written instrument which
has been recorded or is in the process of being recorded;
(x) a lender's title policy or binder, or other assurance of title
insurance customary in a form acceptable to Xxxxxx Xxx or Xxxxxxx Mac was
issued at origination and each policy or binder is valid and remains in
full force and effect;
(y) none of the Mortgage Loans are secured by a leasehold interest;
(z) There is no Mortgage Loan in the Trust Fund that was originated on
or after October 1, 2002 and before March 7, 2003, which is secured by
property located in the State of Georgia. There is no Mortgage Loan in the
Trust Fund that was originated on
10
or after March 7, 2003, which is a "high cost home loan" as defined under
the Georgia Fair Lending Act;
(aa) none of the Mortgage Loans is subject to the Home Ownership and
Equity Protection Act of 1994 or is a "high cost" or "predatory" loan as
defined by applicable local, state and federal predatory and abusive
lending laws; and
(bb) no Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in Appendix E of the then current
Standard & Poor's Glossary For File Format For LEVELS(R) Version 5.7
Revised (attached hereto as Exhibit 7);
(cc) There is no Mortgage Loan in the Trust Fund that was originated
on or after January 1, 2005, which is a "high cost home loan" as defined
under the Indiana Home Loan Practices Act (I.C. 24-9);
(dd) With respect to each Mortgage Loan underlying the Security, no
borrower obtained a prepaid single-premium credit-life, credit disability,
credit unemployment or credit property insurance policy in connection with
the origination of the mortgage loan;
(ee) With respect to any Mortgage Loan underlying the Security that
contains a provision permitting imposition of a penalty upon a prepayment
prior to maturity: (a) the Mortgage Loan provides some benefit to the
borrower (e.g., a rate or fee reduction) in exchange for accepting such
prepayment penalty; (b) the Mortgage Loan's originator had a written policy
of offering the borrower, or requiring third-party brokers to offer the
borrower, the option of obtaining a mortgage loan that did not require
payment of such a penalty; (c) the prepayment penalty was adequately
disclosed to the borrower pursuant to applicable state and federal law; (d)
no Mortgage Loan that is a subprime loan originated on or after October 1,
2002 underlying the Security will provide for prepayment penalties for a
term in excess of three years and any Mortgage Loans originated prior to
such date, and any non-subprime loans, will not provide for prepayment
penalties for a term in excess of five years; in each case unless the
Mortgage Loan was modified to reduce the prepayment period to no more than
three years from the date of the note and the borrower was notified in
writing of such reduction in prepayment period; and (e) such prepayment
penalty shall not be imposed in any instance where the Mortgage Loan is
accelerated or paid off in connection with the workout of a delinquent
mortgage or due to the borrower's default, notwithstanding that the terms
of the Mortgage Loan or state or federal law might permit the imposition of
such penalty;
(ff) The Servicer for each Mortgage Loan underlying the Security has
fully furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian, and Trans Union Credit Information Company (three of the credit
repositories), on a monthly basis;
(gg) The Servicer for each Mortgage Loan underlying the Security will
fully furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on its
11
borrower credit files to Equifax, Experian, and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis;
(hh) With respect to each Mortgage Loan underlying the Security, the
borrower was not encouraged or required to select a mortgage loan product
offered by the related Originator which is a higher cost product designed
for less creditworthy borrowers, taking into account such facts as, without
limitation, the Mortgage Loan's requirements and the borrower's credit
history, income, assets and liabilities. For a borrower who seeks financing
through such Originator's higher-priced subprime lending channel, the
borrower should be directed towards or offered such Originator's standard
mortgage line if the borrower is able to qualify for one of the standard
products;
(ii) The methodology used in underwriting the extension of credit for
each Mortgage Loan in the Trust Fund did not rely on the extent of the
borrower's equity in the collateral as the principal determining factor in
approving such extension of credit. The methodology employed objective
criteria that related such facts as, without limitation, the borrower's
credit history, income, assets or liabilities, to the proposed mortgage
payment and, based on such methodology, the Originator made a reasonable
determination that at the time of origination the borrower had the ability
to make timely payments on the Mortgage Loan;
(jj) No borrower under a Mortgage Loan in the Trust Fund was charged
"points and fees" in an amount greater than (a) $1,000 or (b) 5% of the
principal amount of such Mortgage Loan, whichever is greater. For purposes
of this representation, "points and fees" (x) include origination,
underwriting, broker and finder's fees and charges that the lender imposed
as a condition of making the Mortgage Loan, whether they are paid to the
lender or a third party; and (y) exclude bona fide discount points, fees
paid for actual services rendered in connection with the origination of the
mortgage (such as attorneys' fees, notaries fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood
and tax certifications, and home inspections); the cost of mortgage
insurance or credit-risk price adjustments; the costs of title, hazard, and
flood insurance policies; state and local transfer taxes or fees; escrow
deposits for the future payment of taxes and insurance premiums; and other
miscellaneous fees and charges that, in total, do not exceed 0.25 percent
of the loan amount;
(kk) With respect to any Mortgage Loan originated on or after August
1, 2004 and underlying the Security, neither the related Mortgage nor the
related Mortgage Note requires the borrower to submit to arbitration to
resolve any dispute arising out of or relating in any way to the mortgage
loan transaction;
(ll) With respect to any Mortgage Loans underlying the Security that
are on manufactured housing, upon the origination of each such Mortgage
Loan the manufactured housing unit either: (i) will be the principal
residence of the borrower or (ii) will be classified as real property under
applicable state law;
(mm) No first lien Mortgage Loan underlying the Security has an
original
12
principal balance that exceeds the applicable Xxxxxxx Mac loan limit; and
(nn) If any of the Mortgage Loans underlying the Security are
"seasoned" (a seasoned mortgage loan is one where the date of the Mortgage
Note is more than 1 year before the date of issuance of the related
Security) the Seller:
(i) represents that it currently operates or actively participates in
an on-going and active program or business (A) to originate mortgages,
and/or (B) to make periodic purchases of mortgage loans from
originators or other sellers, and/or (C) to issue and/or purchase
securities or bonds supported by the mortgages, with a portion of the
proceeds generated by such program or business being used to purchase
or originate mortgages made to borrowers who are:
(x) low-income families (families with incomes of 80% or
less of area median income) living in low-income areas (a
census tract or block numbering area in which the median
income does not exceed 80 percent of the area median income)
and/or
(y) very low-income families (families with incomes of 60%
or less of area median income); and
(ii) agrees that Xxxxxxx Mac for a period of two (2) years following
the date of the agreement may contact the Seller to confirm that it
continues to operate or actively participate in the mortgage program
or business and to obtain other nonproprietary information about the
Seller's activities that may assist Xxxxxxx Mac in completing its
regulatory reporting requirements. The Seller will make reasonable
efforts to provide such information to Xxxxxxx Mac.
It is understood and agreed that the representations and warranties
set forth in this Section 7 will inure to the benefit of the Purchaser, its
successors and assigns, notwithstanding any restrictive or qualified endorsement
on any Mortgage Note or assignment of Mortgage or the examination of any
Mortgage File. Upon any substitution for a Mortgage Loan, the representations
and warranties set forth above shall be deemed to be made by the Seller as to
any Substitute Mortgage Loan as of the date of substitution.
Upon discovery or receipt of notice by the Seller, the Purchaser or
the Trustee of a breach of any representation or warranty of the Seller set
forth in this Section 7 which materially and adversely affects the value of the
interests of the Purchaser, the Certificateholders or the Trustee in any of the
Mortgage Loans delivered to the Purchaser pursuant to this Agreement, the party
discovering or receiving notice of such breach shall give prompt written notice
to the others. In the case of any such breach of a representation or warranty
set forth in this Section 7, within 90 days from the date of discovery by the
Seller, or the date the Seller is notified by the party discovering or receiving
notice of such breach (whichever occurs earlier), the Seller will (i) cure such
breach in all material respects, (ii) purchase the affected Mortgage Loan at the
applicable Purchase Price or (iii) if within two years of the Closing Date,
substitute a qualifying Substitute Mortgage Loan in exchange for such Mortgage
Loan. The obligations of the Seller to
13
cure, purchase or substitute a qualifying Substitute Mortgage Loan shall
constitute the Purchaser's, the Trustee's and the Certificateholder's sole and
exclusive remedy under this Agreement or otherwise respecting a breach of
representations or warranties hereunder with respect to the Mortgage Loans,
except for the obligation of the Seller to indemnify the Purchaser for such
breach as set forth in and limited by Section 14 hereof. With respect to the
representations and warranties described in the Agreement which are made to the
best of the Seller's knowledge, if it is discovered by any of the Depositor, the
Seller or the Trustee that the substance of such representation and warranty is
inaccurate and such inaccuracy materially and adversely affects the value of the
related Mortgage Loan, then notwithstanding the seller's lack of knowledge with
respect to the substance of such representation and warranty, such inaccuracy
shall be deemed a breach of the applicable representation or warranty.
Any cause of action against the Seller or relating to or arising out
of a breach by the Seller of any representations and warranties made in this
Section 7 shall accrue as to any Mortgage Loan upon (i) discovery of such breach
by the Seller or notice thereof by the party discovering such breach and (ii)
failure by the Seller to cure such breach, purchase such Mortgage Loan or
substitute a qualifying Substitute Mortgage Loan pursuant to the terms hereof.
Section 8. Representations and Warranties Concerning the Seller.
As of the date hereof and as of the Closing Date, the Seller represents and
warrants to the Purchaser as to itself in the capacity indicated as follows:
(a) the Seller (i) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and (ii) is
qualified and in good standing to do business in each jurisdiction where
such qualification is necessary, except where the failure so to qualify
would not reasonably be expected to have a material adverse effect on the
Seller's business as presently conducted or on the Seller's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(b) the Seller has full power to own its property, to carry on its
business as presently conducted and to enter into and perform its
obligations under this Agreement;
(c) the execution and delivery by the Seller of this Agreement have
been duly authorized by all necessary action on the part of the Seller; and
neither the execution and delivery of this Agreement, nor the consummation
of the transactions herein contemplated, nor compliance with the provisions
hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Seller or its
properties or the charter or by-laws of the Seller, except those conflicts,
breaches or defaults which would not reasonably be expected to have a
material adverse effect on the Seller's ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Seller of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except
14
those consents, approvals, notices, registrations or other actions as have
already been obtained, given or made and, in connection with the
recordation of the Mortgages, powers of attorney or assignments of
Mortgages not yet completed;
(e) this Agreement has been duly executed and delivered by the Seller
and, assuming due authorization, execution and delivery by the Purchaser,
constitutes a valid and binding obligation of the Seller enforceable
against it in accordance with its terms (subject to applicable bankruptcy
and insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally);
(f) there are no actions, suits or proceedings pending or, to the
knowledge of the Seller, threatened against the Seller, before or by any
court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
with respect to any other matter which in the judgment of the Seller will
be determined adversely to the Seller and will if determined adversely to
the Seller materially and adversely affect the Seller's ability to perform
its obligations under this Agreement; and the Seller is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions
contemplated by this Agreement; and
(g) the Seller's Information (as defined in Section 13(a) hereof) does
not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading.
Section 9.Representations and Warranties Concerning the Purchaser.
As of the date hereof and as of the Closing Date, the Purchaser
represents and warrants to the Seller as follows:
(a) the Purchaser (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
(ii) is qualified and in good standing as a foreign corporation to do
business in each jurisdiction where such qualification is necessary, except
where the failure so to qualify would not reasonably be expected to have a
material adverse effect on the Purchaser's business as presently conducted
or on the Purchaser's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(b) the Purchaser has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform
its obligations under this Agreement;
(c) the execution and delivery by the Purchaser of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Purchaser; and neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of any law,
15
governmental rule, regulation, judgment, decree or order binding on the
Purchaser or its properties or the articles of incorporation or by-laws of
the Purchaser, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on the Purchaser's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(d) the execution, delivery and performance by the Purchaser of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
(e) this Agreement has been duly executed and delivered by the
Purchaser and, assuming due authorization, execution and delivery by the
Seller, constitutes a valid and binding obligation of the Purchaser
enforceable against it in accordance with its terms (subject to applicable
bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally);
(f) there are no actions, suits or proceedings pending or, to the
knowledge of the Purchaser, threatened against the Purchaser, before or by
any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
with respect to any other matter which in the judgment of the Purchaser
will be determined adversely to the Purchaser and will if determined
adversely to the Purchaser materially and adversely affect the Purchaser's
ability to perform its obligations under this Agreement; and the Purchaser
is not in default with respect to any order of any court, administrative
agency, arbitrator or governmental body so as to materially and adversely
affect the transactions contemplated by this Agreement; and
(g) the Purchaser's Information (as defined in Section 13(b) hereof)
does not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading.
Section 10. Conditions to Closing.
(a) The obligations of the Purchaser under this Agreement will be
subject to the satisfaction, on or prior to the Closing Date, of the
following conditions:
(i) Each of the obligations of the Seller required to be
performed at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with in all material
respects; all of the representations and warranties of the Seller under this
Agreement shall be true and correct as of the date or dates specified in all
material respects; and no event shall have occurred which, with notice or the
passage of time, would constitute a default under this Agreement, or the Pooling
and Servicing Agreement; and the Purchaser shall have received certificates to
that effect signed by authorized officers of the
16
Seller.
(ii) The Purchaser shall have received all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable to
the Purchaser, duly executed by all signatories other than the Purchaser as
required pursuant to the respective terms thereof:
(A) If required pursuant to Section 3 hereof, the Amendment
dated as of the Closing Date and any documents referred to therein;
(B) If required pursuant to Section 3 hereof, the Final
Mortgage Loan Schedule containing the information set forth on Exhibit 3
hereto, one copy to be attached to each counterpart of the Amendment;
(C) The Pooling and Servicing Agreement, in form and
substance reasonably satisfactory to the Trustee and the Purchaser, and all
documents required thereby duly executed by all signatories;
(D) A certificate of an officer of the Seller dated as of
the Closing Date, in a form reasonably acceptable to the Purchaser, and
attached thereto the resolutions of the Seller's authorizing the
transactions contemplated by this Agreement, together with copies of the
charter and by-laws of the Seller;
(E) One or more opinions of counsel from the Seller's
counsel otherwise in form and substance reasonably satisfactory to the
Purchaser, the Trustee and each Rating Agency;
(F) A letter from each of the Rating Agencies giving each
Class of Certificates set forth on Schedule A the rating set forth on
Schedule A; and
(G) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably necessary
to secure the intended ratings from each Rating Agency for the
Certificates.
(iii) The Certificates to be sold to Xxxxxxx Xxxxx pursuant to
the Underwriting Agreement shall have been issued and sold to Xxxxxxx Xxxxx.
(iv) The Seller shall have furnished to the Purchaser such other
certificates of its officers or others and such other documents and opinions of
counsel to evidence fulfillment of the conditions set forth in this Agreement
and the transactions contemplated hereby as the Purchaser and its counsel may
reasonably request.
(b) The obligations of the Seller under this Agreement shall be
subject to the satisfaction, on or prior to the Closing Date, of the
following conditions:
(i) The obligations of the Purchaser required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects, and all of
the representations and
17
warranties of the Purchaser under this Agreement shall be true and correct in
all material respects as of the date hereof and as of the Closing Date, and no
event shall have occurred which would constitute a breach by it of the terms of
this Agreement, and the Seller shall have received a certificate to that effect
signed by an authorized officer of the Purchaser.
(ii) The Seller shall have received copies of all of the
following closing documents, in such forms as are agreed upon and reasonably
acceptable to the Seller, duly executed by all signatories other than the Seller
as required pursuant to the respective terms thereof:
(A) If required pursuant to Section 3 hereof, the Amendment
dated as of the Closing Date and any documents referred to therein;
(B) The Pooling and Servicing Agreement, in form and
substance reasonably satisfactory to the Seller, and all documents required
thereby duly executed by all signatories;
(C) A certificate of an officer of the Purchaser dated as of
the Closing Date, in a form reasonably acceptable to the Seller, and
attached thereto the resolutions of the Purchaser authorizing the
transactions contemplated by this Agreement and the Pooling and Servicing
Agreement, together with copies of the Purchaser's articles of
incorporation, and evidence as to the good standing of the Purchaser dated
as of a recent date;
(D) One or more opinions of counsel from the Purchaser's
counsel in form and substance reasonably satisfactory to the Seller; and
(E) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably necessary
to secure the intended rating from each Rating Agency for the Certificates;
Section 11. Fees and Expenses.
Subject to Section 17 hereof, the Seller shall pay on the Closing Date
or such later date as may be agreed to by the Purchaser (i) the fees and
expenses of the Seller's attorneys and the reasonable fees and expenses of the
Purchaser's attorneys, (ii) the fees and expenses of Deloitte & Touche LLP,
(iii) the filing fee charged by the Commission for the registration of the
Certificates, (iv) the fees and expenses including counsel's fees and expenses
in connection with any "blue sky" and legal investment matters, (v) the fees and
expenses of the Trustee which shall include without limitation the fees and
expenses of the Trustee (and the fees and disbursements of its counsel) with
respect to (A) legal and document review of this Agreement, the Pooling and
Servicing Agreement, the Certificates and related agreements, (B) attendance at
the Closing and (C) review of the Mortgage Loans to be performed by the Trustee,
(vi) the expenses for printing or otherwise reproducing the Certificates, the
Prospectus and the Prospectus Supplement, (vii) the fees and expenses of each
Rating Agency (both initial and ongoing), (viii) the fees and expenses relating
to the preparation and recordation of mortgage assignments (including
intervening assignments, if any and if available, to evidence a complete chain
of title from the
18
originator to the Trustee) from the Seller to the Trustee or the expenses
relating to the Opinion of Counsel referred to in Section 6(a) hereof, as the
case may be, and (ix) Mortgage File due diligence expenses and other
out-of-pocket expenses incurred by the Purchaser in connection with the purchase
of the Mortgage Loans and by Xxxxxxx Xxxxx in connection with the sale of the
Offered Certificates. The Seller additionally agrees to pay directly to any
third party on a timely basis the fees provided for above which are charged by
such third party and which are billed periodically.
Section 12. Accountants' Letters
Deloitte & Touche LLP will review the characteristics of a sample of
the Mortgage Loans described in the Final Mortgage Loan Schedule and will
compare those characteristics to the description of the Mortgage Loans contained
in the Prospectus Supplement under the captions "Summary--The Mortgage Loans",
"Description of the Mortgage Groups--General", "--Tabular Characteristics of the
Mortgage Loans" and "Annex II--The Mortgage Groups". The Seller will cooperate
with the Purchaser in making available all information and taking all steps
reasonably necessary to permit such accountants to complete the review and to
deliver the letters required of them under the Underwriting Agreement. Deloitte
& Touche LLP will also confirm certain calculations as set forth under the
captions "Yield, Prepayment and Maturity Considerations with respect to the
Stack I Certificates" or "Yield, Prepayment and Weighted Average Life with
respect to the Stack II Certificates", as applicable, in the Prospectus
Supplement.
Section 13. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser and its
directors, officers and controlling persons (as defined in Section 15 of
the Securities Act) from and against any loss, claim, damage or liability
or action in respect thereof, to which they or any of them may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon (i) any
untrue statement of a material fact contained in the Seller's Information
as identified in Exhibit 4, the omission to state in the Prospectus
Supplement or Prospectus (or any amendment thereof or supplement thereto
approved by the Seller and in which additional Seller's Information is
identified), in reliance upon and in conformity with Seller's Information a
material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made,
not misleading, (ii) any representation or warranty assigned or made by the
Seller in Section 7 or Section 8 hereof being, or alleged to be, untrue or
incorrect, or (iii) any failure by the Seller to perform its obligations
under this Agreement; and the Seller shall reimburse the Purchaser and each
other indemnified party for any legal and other expenses reasonably
incurred by them in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action.
(b) The Seller shall indemnify and hold harmless the Purchaser, the
Trust Fund and the Trustee against any documented out-of-pocket losses,
penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and other costs and expenses resulting from any
claim, demand, defense or assertion by any third
19
party that results from, a material breach of the representations and
warranties set forth in Section 7 of this Agreement; provided, however,
indemnification shall not be available for any economic losses of the
Purchaser due to reinvestment losses, loss of investment income or any
other special, indirect or consequential losses. The Seller shall indemnify
and hold harmless the Purchaser, the Trust Fund and the Trustee against any
losses, penalties, fines, forfeitures, reasonable and necessary legal fees
and related costs, judgments, and other costs and expenses resulting from
any claim, demand, defense or assertion by any third party in connection
with the Georgia Fair Lending Act; provided, however, indemnification shall
not be available for any economic losses of the Purchaser due to
reinvestment losses, loss of investment income or any other special,
indirect or consequential losses.
The foregoing indemnity agreement is in addition to any liability which the
Seller otherwise may have to the Purchaser or any other such indemnified party.
(c) The Purchaser shall indemnify and hold harmless the Seller and its
respective directors, officers and controlling persons (as defined in
Section 15 of the Securities Act) from and against any loss, claim, damage
or liability or action in respect thereof, to which they or any of them may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon
(i) any untrue statement of a material fact contained in the Purchaser's
Information as identified in Exhibit 5, the omission to state in the
Prospectus Supplement or Prospectus (or any amendment thereof or supplement
thereto approved by the Purchaser and in which additional Purchaser's
Information is identified), in reliance upon and in conformity with the
Purchaser's Information, a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances in
which they were made, not misleading, (ii) any representation or warranty
made by the Purchaser in Section 9 hereof being, or alleged to be, untrue
or incorrect, or (iii) any failure by the Purchaser to perform its
obligations under this Agreement; and the Purchaser shall reimburse the
Seller, and each other indemnified party for any legal and other expenses
reasonably incurred by them in connection with investigating or defending
or preparing to defend any such loss, claim, damage, liability or action.
The foregoing indemnity agreement is in addition to any liability which the
Purchaser otherwise may have to the Seller, or any other such indemnified
party,
(d) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall not
relieve it from any liability which it may have under this Section 13
except to the extent that it has been prejudiced in any material respect by
such failure or from any liability which it may have otherwise). In case
any such action is brought against any indemnified party, and it notifies
an indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent it may elect by
written notice delivered to the indemnified party promptly (but, in any
event, within 30 days) after receiving the aforesaid notice from such
indemnified party, to assume the
20
defense thereof with counsel reasonably satisfactory to such indemnified
party. Notwithstanding the foregoing, the indemnified party or parties
shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel
shall have been authorized in writing by one of the indemnifying parties in
connection with the defense of such action, (ii) the indemnifying parties
shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
or (iii) such indemnified party or parties shall have reasonably concluded
that there is a conflict of interest between itself or themselves and the
indemnifying party in the conduct of the defense of any claim or that the
interests of the indemnified party or parties are not substantially
co-extensive with those of the indemnifying party (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the indemnifying parties
(provided, however, that the indemnifying party shall be liable only for
the fees and expenses of one counsel in addition to one local counsel in
the jurisdiction involved. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any
settlement or any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
(e) If the indemnification provided for in paragraphs (a) and (b) of
this Section 13 shall for any reason be unavailable to an indemnified party
in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to in Section 13, then the indemnifying party
shall in lieu of indemnifying the indemnified party contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative benefits
received by the Seller on the one hand and the Purchaser on the other from
the purchase and sale of the Mortgage Loans, the offering of the
Certificates and the other transactions contemplated hereunder. No person
found liable for a fraudulent misrepresentation shall be entitled to
contribution from any person who is not also found liable for such
fraudulent misrepresentation.
(f) The parties hereto agree that reliance by an indemnified party on
any publicly available information or any information or directions
furnished by an indemnifying party shall not constitute negligence, bad
faith or willful misconduct by such indemnified party.
Section 14. Notices.
All demands, notices and communications hereunder shall be in writing
but may be delivered by facsimile transmission subsequently confirmed in
writing. Notices to the Seller shall be directed to Xxxxxxx Xxxxx Mortgage
Lending Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Telecopy:
212-449-6710), and notices to the Purchaser shall be directed to Xxxxxxx Xxxxx
Mortgage Investors, Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(Telecopy: 212-449-6710), Attention: Xxxxx Xxxxxxx; or to any other address as
may hereafter be furnished by one party to the other party by like notice. Any
such demand, notice or
21
communication hereunder shall be deemed to have been received on the date
received at the premises of the addressee (as evidenced, in the case of
registered or certified mail, by the date noted on the return receipt) provided
that it is received on a business day during normal business hours and, if
received after normal business hours, then it shall be deemed to be received on
the next business day.
Section 15. Transfer of Mortgage Loans.
The Purchaser retains the right to assign the Mortgage Loans and any
or all of its interest under this Agreement to the Trustee without the consent
of the Seller, and, upon such assignment, the Trustee shall succeed to the
applicable rights and obligations of the Purchaser hereunder; provided, however,
the Purchaser shall remain entitled to the benefits set forth in Sections 11, 13
and 17 hereto and as provided in Section 2(a). Notwithstanding the foregoing,
the sole and exclusive right and remedy of the Trustee with respect to a breach
of representation or warranty of the Seller shall be the purchase or
substitution obligations of the Seller contained in Sections 5 and 7 hereof.
Section 16. Termination.
This Agreement may be terminated (a) by the mutual consent of the
parties hereto prior to the Closing Date, (b) by the Purchaser, if the
conditions to the Purchaser's obligation to close set forth under Section 10(a)
hereof are not fulfilled as and when required to be fulfilled or (c) by the
Seller, if the conditions to the Seller's obligation to close set forth under
Section 10(b) hereof are not fulfilled as and when required to be fulfilled. In
the event of termination pursuant to clause (b), the Seller shall pay, and in
the event of termination pursuant to clause (c), the Purchaser shall pay, all
reasonable out-of-pocket expenses incurred by the other in connection with the
transactions contemplated by this Agreement. In the event of a termination
pursuant to clause (a), each party shall be responsible for its own expenses.
Section 17. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Seller submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans to the Purchaser (and by the Purchaser to
the Trustee). Subsequent to the delivery of the Mortgage Loans to the Purchaser,
the Seller's representations and warranties contained herein with respect to the
Mortgage Loans shall be deemed to relate to the Mortgage Loans actually
delivered to the Purchaser and included in the Final Mortgage Loan Schedule and
any Substitute Mortgage Loan and not to those Mortgage Loans deleted from the
Preliminary Mortgage Loan Schedule pursuant to Section 3 hereof prior to the
Closing.
Section 18. Mandatory Delivery; Grant of Security Interest.
The sale and delivery on the Closing Date of the Mortgage Loans
described on the Mortgage Loan Schedule in accordance with the terms and
conditions of this Agreement is mandatory. It is specifically understood and
agreed that each Mortgage Loan is unique and identifiable on the date hereof and
that an award of money damages would be insufficient to
22
compensate the Purchaser for the losses and damages incurred by the Purchaser in
the event of the Seller's failure to deliver the Mortgage Loans on or before the
Closing Date. The Seller hereby grants to the Purchaser a lien on and a
continuing security interest in the Seller's interest in each Mortgage Loan and
each document and instrument evidencing each such Mortgage Loan to secure the
performance by the Seller of its obligation hereunder, and the Seller agrees
that it holds such Mortgage Loans in custody for the Purchaser, subject to the
Purchaser's obligation to deliver or cause to be delivered the consideration for
the Mortgage Loans pursuant to Section 2 hereof. The Seller agrees that, upon
acceptance of the Mortgage Loans by the Purchaser or its designee and delivery
of payment to the Seller, that its security interest in the Mortgage Loans shall
be released. All rights and remedies of the Purchaser under this Agreement are
distinct from, and cumulative with, any other rights or remedies under this
Agreement or afforded by law or equity and all such rights and remedies may be
exercised concurrently, independently or successively.
Notwithstanding the foregoing, if on the Closing Date, each of the
conditions set forth in Section 10 hereof shall have been satisfied and the
Purchaser shall not have paid or caused to be paid the purchase price as
described in Section 2(c) hereof, or any such condition shall not have been
waived or satisfied and the Purchaser determines not to pay or cause to be paid
the purchase price, the Purchaser shall immediately effect the redelivery of the
Mortgage Loans, if delivery to the Purchaser has occurred and the security
interest created by this Section 18 shall be deemed to have been released.
Section 19. Severability.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof.
Section 20. Counterparts.
This Agreement may be executed in counterparts, each of which will be
an original, but which together shall constitute one and the same agreement.
Section 21. Amendment.
This Agreement cannot be amended or modified in any manner without the
prior written consent of each party.
Section 22. GOVERNING LAW.
23
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND PERFORMED IN THE
STATE OF NEW YORK AND SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
Section 23. Further Assurances.
Each of the parties agrees to execute and deliver such instruments and
take such actions as another party may, from time to time, reasonably request in
order to effectuate the purpose and to carry out the terms of this Agreement
including any amendments hereto which may be required by either Rating Agency.
Section 24. Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and their permitted successors and
assigns and, to the extent specified in Section 13 hereof, Xxxxxxx Xxxxx, and
their directors, officers and controlling persons (within the meaning of federal
securities laws). The Seller acknowledges and agrees that the Purchaser may
assign its rights under this Agreement (including, without limitation, with
respect to the Seller's representations and warranties respecting the Mortgage
Loans) to the Trustee. Any person into which the Seller may be merged or
consolidated (or any person resulting from any merger or consolidation involving
the Seller), any person resulting from a change in form of the Seller or any
person succeeding to the business of the Seller, shall be considered the
"successor" of the Seller hereunder and shall be considered a party hereto
without the execution or filing of any paper or any further act or consent on
the part of any party hereto. Except as provided in the two preceding sentences,
this Agreement cannot be assigned, pledged or hypothecated by either party
hereto without the written consent of the other parties to this Agreement and
any such assignment or purported assignment shall be deemed null and void.
Section 25. The Seller.
The Seller will keep in full effect all rights as are necessary to
perform their respective obligations under this Agreement.
Section 26. Entire Agreement.
This Agreement contains the entire agreement and understanding between
the parties with respect to the subject matter hereof, and supersedes all prior
and contemporaneous agreements, understandings, inducements and conditions,
express or implied, oral or written, of any nature whatsoever with respect to
the subject matter hereof.
Section 27. No Partnership.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
24
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective duly authorized officers as of the date first above
written.
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT 1
CONTENTS OF MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items, which shall be available for inspection by the Purchaser or
its designee, and which shall be delivered to the Purchaser or its designee
pursuant to the terms of the Agreement.
A. With respect to each Mortgage Loan (other than a Cooperative Loan):
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-AF1, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iii) an original Assignment of the Mortgage executed in the following
form: "HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-AF1.
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the immediately
preceding clause (iii), if applicable and only to the extent available to
the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) the original power of attorney, if applicable.
B. With respect to each Mortgage Loan that is a Cooperative Loan:
E-1-1
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-AF1, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original duly executed assignment of Security Agreement to
the Trustee;
(iii) the acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and any
required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3 with
respect to the Security Agreement, indicating the Trustee as the assignee
of the secured party;
(v) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank attached;
(vi) the original collateral assignment of the proprietary lease by
Mortgagor to the originator;
(vii) a copy of the recognition agreement;
(viii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3 with
evidence of filing thereon; and
(ix) the originals of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loan.
E-1-2
EXHIBIT 2
CONTENTS OF FINAL MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser or its agent, and which shall be delivered to the Purchaser
pursuant to the terms of the Agreement.
A. With respect to each Mortgage Loan (other than a Cooperative Loan):
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-AF1, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iii) an original Assignment of the Mortgage executed in the following
form: "HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-AF1.
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the immediately
preceding clause (iii), if applicable and only to the extent available to
the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) the original power of attorney, if applicable.
B. With respect to each Mortgage Loan that is a Cooperative Loan:
E-2-1
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-AF1, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original duly executed assignment of Security Agreement to
the Trustee;
(iii) the acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and any
required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3 with
respect to the Security Agreement, indicating the Trustee as the assignee
of the secured party;
(v) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank attached;
(vi) the original collateral assignment of the proprietary lease by
Mortgagor to the originator;
(vii) a copy of the recognition agreement;
(viii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3 with
evidence of filing thereon; and
(ix) the originals of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loan.
E-2-2
EXHIBIT 3
MORTGAGE LOAN SCHEDULE INFORMATION
The Preliminary and Final Mortgage Loan Schedules shall set forth the
following information with respect to each Mortgage Loan:
i) the loan number of the mortgage loan;
ii) the city, state and zip code of the Mortgage Property;
iii) a code indicating whether the Mortgaged Property is
owner-occupied;
iv) the type of Residential Dwelling constituting the Mortgaged
Property;
v) the original months to maturity;
vi) the original date of the mortgage;
vii) the Loan-to-Value Ratio at origination;
viii) the Mortgage Rate;
ix) the date on which the first Monthly Payment was due on the
Mortgage Loan;
x) the stated maturity date;
xi) the amount of the Monthly Payment at origination;
xii) the amount of the Monthly Payment as of the Cut-off Date;
xiii) the last Due Date on which a Monthly Payment was actually
applied to the unpaid Stated Principal Balance;
xiv) the original principal amount of the Mortgage Loan;
xv) the Stated Principal Balance of the Mortgage Loan as of the close
of business on the Cut-off Date;
xvi) a code indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, Rate/Term Refinancing, Cash-Out Refinancing);
xvii) a code indicating the documentation style (i.e., full,
alternative or reduced);
xviii) the Value of the Mortgaged Property;
E-3-1
xix) the sale price of the Mortgaged Property, if applicable;
xx) the actual unpaid principal balance of the Mortgage Loan as of the
Cut-off Date;
xxi) the Servicing Fee;
xxii) with respect to each adjustable-rate Mortgage Loan, the next
Interest Rate Adjustment Date;
xxiii) with respect to each adjustable-rate Mortgage Loan, the Gross
Margin;
xxiv) with respect to each adjustable-rate Mortgage Loan, the Minimum
and Maximum Mortgage Rate under the terms of the Mortgage Note;
xxv) with respect to each adjustable-rate Mortgage Loan, the First
Rate Cap;
xxvi) with respect to each adjustable-rate Mortgage Loan, the related
Periodic Rate Cap;
xxvii) with respect to each adjustable-rate Mortgage Loan, whether
additional collateral exists;
xxviii) with respect to each adjustable-rate Mortgage Loan, whether it
is interest-only; and
xxix) with respect to each adjustable-rate Mortgage Loan, the Seller.
Such schedule shall set forth the following information with respect
to the Mortgage Loans in the aggregate as of the Cut-off Date: (1) the number of
Mortgage Loans; (2) the current principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Rate of the Mortgage Loans; and (4) the weighted
average maturity of the Mortgage Loans.
E-3-2
EXHIBIT 4
SELLER'S INFORMATION
All information in the Prospectus Supplement described under the
following Sections: "Summary -- The Mortgage Loans," "Description of the
Mortgage Groups" and "Annex II -- The Mortgage Groups".
E-4-1
EXHIBIT 5
PURCHASER'S INFORMATION
All information in the Prospectus Supplement and the Prospectus,
except the Seller's Information.
E-5-1
EXHIBIT 6
SCHEDULE OF LOST NOTES
Available Upon Request
E-6-1
EXHIBIT 7
REVISED April 18, 0000
XXXXXXXX X - STANDARD & POOR'S PREDATORY LENDING CATEGORIES
Standard & Poor's has categorized loans governed by anti-predatory lending laws
in the Jurisdictions listed below into three categories based upon a combination
of factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note that
certain loans classified by the relevant statute as Covered are included in
Standard & Poor's High Cost Loan Category because they included thresholds and
tests that are typical of what is generally considered High Cost by the
industry.
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------ --------------------------
Arkansas Arkansas Home Loan Protection Act, Ark. High Cost Home Loan
Code Xxx. Sections 00-00-000 et seq.
Effective July 16, 0000
Xxxxxxxxx Xxxxxxx, XX Ordinance No. 72-2003 (PSH), Mun. Code Covered Loan
Sections 757.01 et seq.
Effective June 2, 2003
Colorado Consumer Equity Protection, Colo. Stat. Covered Loan
Xxx. Sections 5-3.5-101 et seq.
Effective for covered loans offered or
entered into on or after January 1, 2003.
Other provisions of the Act took effect on
June 7, 0000
Xxxxxxxxxxx Xxxxxxxxxxx Abusive Home Loan Lending High Cost Home Loan
Practices Act, Conn. Gen. Stat. Sections
36a-746 et seq.
Effective October 1, 0000
X-0-0
Xxxxxxxx xx Xxxxxxxx Home Loan Protection Act, D.C. Code Covered Loan
Sections 26-1151.01 et seq.
Effective for loans closed on or after
January 28, 2003
Florida Fair Lending Act, Fla. Stat. Xxx. Sections High Cost Home Loan
494.0078 et seq.
Effective October 2, 2002
Georgia (Oct. 1, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. High Cost Home Loan
- Mar. 6, 2003) Sections 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
Georgia as amended Georgia Fair Lending Act, Ga. Code Xxx. High Cost Home Loan
(Mar. 7, 2003 - current) Sections 7-6A-1 et seq.
Effective for loans closed on or after
Xxxxx 0, 0000
XXXXX Section 32 Home Ownership and Equity Protection Act of High Cost Loan
1994, 15 U.S.C. Section 1639, 12 C.F.R.
Sections 226.32 and 226.34
Effective October 1, 1995, amendments
October 1, 2002
Illinois High Risk Home Loan Act, Ill. Comp. Stat. High Risk Home Loan
tit. 815, Sections 137/5 et seq.
Effective January 1, 2004 (prior to this
date, regulations under Residential
Mortgage License Act effective from May 14,
2001)
Kansas Consumer Credit Code, Kan. Stat. Xxx. High Loan to Value
Sections 16a-1-101 et seq. Consumer Loan (id. Section
16a-3-207) and;
Sections 16a-1-301 and 16a-3-207 became
effective
E-7-2
April 14, 1999; Section 16a-3-308a became High APR Consumer Loan
effective July 1, 1999 (id. Section 16a-3-308a)
Kentucky 2003 KY H.B. 287 - High Cost Home Loan Act, High Cost Home Loan
Ky. Rev. Stat. Sections 360.100 et seq.
Effective June 24, 2003
Maine Truth in Lending, Me. Rev. Stat. tit. 9-A, High Rate High Fee
Sections 8-101 et seq. Mortgage
Effective September 29, 1995 and as amended
from time to time
Massachusetts Part 40 and Part 32, 209 C.M.R. Sections High Cost Home Loan
32.00 et seq. and 209 C.M.R. Sections 40.01
et seq.
Effective March 22, 2001 and amended from
time to time
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. Home Loan
Sections 598D.010 et seq.
Effective October 1, 2003
New Jersey New Jersey Home Ownership Security Act of High Cost Home Loan
2002, N.J. Rev. Stat. Sections 46:10B-22 et
seq.
Effective for loans closed on or after
November 27, 2003
New Mexico Home Loan Protection Act, N.M. Rev. Stat. High Cost Home Loan
Sections 58-21A-1 et seq.
Effective as of January 1, 2004; Revised as
of February 26, 2004
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made on or after
April 0,
X-0-0
0000
Xxxxx Xxxxxxxx Restrictions and Limitations on High Cost High Cost Home Loan
Home Loans, N.C. Gen. Stat. Sections
24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
Ohio H.B. 386 (codified in various sections of Covered Loan
the Ohio Code), Ohio Rev. Code Xxx.
Sections 1349.25 et seq.
Effective May 24, 2002
Oklahoma Consumer Credit Code (codified in various Subsection 10 Mortgage
sections of Title 14A)
Effective July 1, 2000; amended effective
January 1, 2004
South Carolina South Carolina High Cost and Consumer Home High Cost Home Loan
Loans Act, S.C. Code Xxx. Sections 37-23-10
et seq.
Effective for loans taken on or after
January 1, 0000
Xxxx Xxxxxxxx Xxxx Xxxxxxxx Residential Mortgage Lender, West Virginia Mortgage
Broker and Servicer Act, W. Va. Code Xxx. Loan Act Loan
Sections 31-17-1 et seq.
Effective June 5, 2002
E-7-4
STANDARD & POOR'S COVERED LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------ --------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Xxx. Covered Loan
Mar. 6, 2003) Sections 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 0000
Xxx Xxxxxx Xxx Xxxxxx Home Ownership Security Act of Covered Home Loan
2002, N.J. Rev. Stat. Sections 46:10B-22 et
seq.
Effective November 27, 2003 - July 5, 2004
STANDARD & POOR'S HOME LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------ --------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Xxx. Home Loan
Mar. 6, 2003) Sections 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 0000
Xxx Xxxxxx Xxx Xxxxxx Home Ownership Security Act of Home Loan
2002, N.J. Rev. Stat. Sections 46:10B-22 et
seq.
Effective for loans closed on or after
November 27, 2003
New Mexico Home Loan Protection Act, N.M. Rev. Stat. Home Loan
Sections 58-21A-1 et seq.
Effective as of January 1, 2004; Revised as
of
E-7-5
February 26, 2004
North Carolina Restrictions and Limitations on High Cost Consumer Home Loan
Home Loans, N.C. Gen. Stat. Sections
24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
South Carolina South Carolina High Cost and Consumer Home Consumer Home Loan
Loans Act, S.C. Code Xxx. Sections 37-23-10
et seq.
Effective for loans taken on or after
January 1, 2004
E-7-6
SCHEDULE A
REQUIRED RATINGS FOR EACH CLASS OF CERTIFICATES
Offered Certificates
Class Xxxxx'x S&P
----- ------- ---
Class AF-1 Aaa AAA
Class AF-2A Aaa AAA
Class AF-2B Aaa AAA
Class AF-2C Aaa AAA
Class AF-3A Aaa AAA
Class AF-3B Aaa AAA
Class PO Aaa AAA
Class IO Aaa AAA
Class AV-1A Aaa AAA
Class AV-1B Aa1 AAA
Class AV-2A Aaa AAA
Class AV-2B Aa1 AAA
Class A-R N/R AAA
Class MF-1 Aa2 AA
Class MF-2 A2 A
Class MF-3 Baa2 BBB
Class MV-1 Aa2 AA
Class MV-2 A2 A
Class MV-3 Baa2 BBB
None of the above ratings has been lowered since the
respective dates of such letters.
