EXHIBIT 99.1
Renaissance Mortgage Acceptance Corp.
as Purchaser,
RENAISSANCE REIT INVESTMENT
CORP.
as Seller,
and
DELTA FUNDING CORPORATION
as Originator
__________________________
MORTGAGE LOAN SALE AND CONTRIBUTION
AGREEMENT
Series 2005-2
Dated as of June 29, 2005
__________________________
TABLE OF CONTENTS
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ARTICLE I
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DEFINITIONS
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Section 1.1
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Definitions
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ARTICLE II
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SALE OF MORTGAGE LOANS AND RELATED
PROVISIONS
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Section 2.1
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Sale of Mortgage Loans.
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Section 2.2
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Agreement to Purchase.
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ARTICLE III
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REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
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Section 3.1
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Representations and
Warranties
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Section 3.2
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Substitution of Mortgage
Loans
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ARTICLE IV
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SELLER’S COVENANTS
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Section 4.1
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Covenants of the Seller
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ARTICLE V
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INDEMNIFICATION BY THE
ORIGINATOR
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Section 5.1
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Indemnification
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Section 5.2
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Limitation on Liability of the
Originator and the Seller
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ARTICLE VI
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TERMINATION
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Section 6.1
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Termination
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ARTICLE VII ADMINISTRATIVE
DUTIES
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Section 7.1
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Administrative Duties.
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Section 7.2
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Records
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Section 7.3
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Additional Information to be
Furnished
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ARTICLE VIII MISCELLANEOUS
PROVISIONS
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Section 8.1
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Amendment
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Section 8.2
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Governing Law
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Section 8.3
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Notices
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Section 8.4
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Severability of
Provisions
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Section 8.5
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Relationship of Parties
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Section 8.6
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Counterparts
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Section 8.7
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Further Agreements
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Section 8.8
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Intention of the Parties
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Section 8.9
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Successors and Assigns; Assignment
of Purchase Agreement
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Section 8.10
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Survival
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Section 8.11
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Third Party Beneficiary
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EXHIBIT A
This MORTGAGE LOAN SALE AND
CONTRIBUTION AGREEMENT (this “Agreement”), dated as of
June 29, 2005, is made among Renaissance REIT Investment Corp. (the
“Seller”), Renaissance Mortgage Acceptance Corp. (the
“Purchaser”) and Delta Funding Corporation (the
“Originator”).
W I T N E S
S E T H :
WHEREAS, the Seller owns the
Mortgage Loans indicated on the Mortgage Loan Schedule attached as
Exhibit A hereto (the “Mortgage Loans”), including
rights to (a) any property acquired by foreclosure or deed in lieu
of foreclosure or otherwise, (b) the proceeds of any insurance
policies covering the Mortgage Loans and (c) its rights with
respect to each of the Class AV Interest Rate Cap Agreement, the
Class AF-1 Interest Rate Cap Agreement and the Class N Interest
Rate Cap Agreement; and
WHEREAS, the parties hereto desire
that the Seller sell the Mortgage Loans to the Purchaser and
transfer its rights under the Class AV Interest Rate Cap Agreement,
the Class AF-1 Interest Rate Cap Agreement and the Class N Interest
Rate Cap Agreement to the Purchaser, and that the Originator make
certain representations and warranties on the Closing Date and
undertake certain obligations on the Closing Date with respect to
such Mortgage Loans, in each case pursuant to the terms of this
Agreement; and
WHEREAS, pursuant to the terms of an
Amended and Restated Trust Agreement dated as of June 29, 2005 (the
“Trust Agreement”), among the Purchaser, as depositor,
Wilmington Trust Company, as owner trustee (the “Owner
Trustee”) and Wells Fargo Bank, N.A., as certificate
registrar and certificate paying agent, the Purchaser will convey
the Mortgage Loans to the Issuer; and
WHEREAS, pursuant to the terms of a
Servicing Agreement dated as of June 29, 2005 (the “Servicing
Agreement”), among Wells Fargo Bank, N.A., as master servicer
(the “Master Servicer”) and securities administrator
(the “Securities Administrator”), Ocwen Federal Bank
FSB, servicer (the “Servicer”), Renaissance Home Equity
Loan Trust 2005-2, as issuer (the “Issuer”) and HSBC
Bank USA, National Association, as indenture trustee (the
“Indenture Trustee”), the Servicer will service the
Mortgage Loans directly or through one or more Subservicers and the
Master Servicer will provide master servicing functions;
and
WHEREAS, pursuant to the terms of an
Indenture dated as of June 29, 2005 (the “Indenture”),
between the Issuer, the Indenture Trustee and the Securities
Administrator, the Issuer will pledge the Mortgage Loans to the
Indenture Trustee and issue and transfer to the Purchaser the
Asset-Backed Notes, Series 2005-2 (collectively, the
“Notes”), representing debt of the Issuer;
and
WHEREAS, the parties intend these
transactions to be treated for federal, state and local tax
purposes as the retention by the Seller of ownership of the
Mortgage Loans and issuance by the Seller of secured indebtedness
evidenced by the Notes, and have mutually covenanted to treat the
transactions consistent with that intent for all federal, state and
local tax purposes;
NOW, THEREFORE, in consideration of
the mutual covenants herein contained, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section
1.1 Definitions .
For all purposes of this Mortgage Loan Sale and Contribution
Agreement, except as otherwise expressly provided herein or unless
the context otherwise requires, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in
the Definitions attached to the Indenture as Appendix A, which is
incorporated by reference herein. All other capitalized terms used
herein shall have the meanings specified herein.
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED
PROVISIONS
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Section 2.1
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Sale of Mortgage Loans
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(a) The
Seller, concurrently with the execution and delivery of this
Agreement, does hereby sell, transfer, assign, set over and
otherwise convey, to the Purchaser, without recourse, (subject to
Sections 2.2 and 3.1) (i) all of its right, title and interest in
and to each Mortgage Loan, including the Cut-Off Date Principal
Balance and all collections in respect of interest and principal
received after the Cut-Off Date (other than payments in respect of
accrued interest and principal due on or before June 1, 2005); (ii)
property which secured such Mortgage Loan and which has been
acquired by foreclosure or deed in lieu of foreclosure; (iii) its
interest in any insurance policies in respect of the Mortgage Loans
and (v) all proceeds of any of the foregoing.
(b) In
connection with such transfer, assignment and conveyance the Seller
shall deliver to, and deposit with, the Indenture Trustee or the
Custodian on behalf of the Indenture Trustee, on or before the
Closing Date, the following documents or instruments with respect
to each Mortgage Loan (the “Related Documents”) and the
related Mortgage Loan Schedule in computer readable
format:
(i) The
original Mortgage Note, with all prior and intervening endorsements
showing a complete chain of endorsements from the originator of the
Mortgage Loan to the Person so endorsing the Mortgage Loan to the
Indenture Trustee, endorsed by such Person “Pay to the order
of HSBC Bank USA, National Association, as Indenture Trustee under
the applicable agreement, without recourse” and signed, by
facsimile or manual signature, in the name of the Seller by a
Responsible Officer;
(ii) For
each Mortgage Loan that is not a MERS Mortgage Loan, any of: (1)
the original Mortgage and related power of attorney, if any, with
evidence of recording thereon, (2) (A) a copy of the Mortgage, if
any, certified as a true copy of the original Mortgage by a
Responsible Officer of the Seller by facsimile or manual signature
or by
the closing attorney or by an
officer of the title insurer or agent of the title insurer that
issued the related title insurance policy, in such case, if the
original has been transmitted for recording until such time as the
original is returned by the public recording office and (B) a copy
of the related power of attorney, if any, or (3) a copy of the
original recorded Mortgage and a copy of the related power of
attorney, if any, certified by the public recording office. For
each Mortgage Loan that is a MERS Mortgage Loan, the original
Mortgage, noting the presence of the MIN of the related Mortgage
Loan and either language indicating that the Mortgage Loan is a MOM
Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was
not a MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS, with evidence of recording indicated
thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been
recorded;
(iii) For
each Mortgage Loan, the original Assignment of Mortgage in
recordable form, from the Seller in blank, or to “HSBC Bank
USA, National Association, as Indenture Trustee under the
applicable agreement”
(iv) The
original lender’s title insurance policy or a true copy
thereof or, if such original lender’s title insurance policy
has been lost, a copy thereof certified by the appropriate title
insurer to be true and complete or, if such lender’s title
insurance policy has not been issued as of the Closing Date, a
marked up commitment (binder) to issue such policy;
(v) For
each Mortgage Loan that was not a MERS Mortgage Loan at its
origination, all intervening assignments, if any, showing a
complete chain of assignments from the originator to the Seller,
including any recorded warehousing assignments, with evidence of
recording thereon, or a copy thereof certified by a Responsible
Officer of the Seller by facsimile or manual signature, or by the
closing attorney or by an officer of the title insurer or agent of
the title insurer that issued the related title insurance policy,
as a true copy of the original of such intervening assignments if
the original has been transmitted for recording until such time as
the original is returned by the public recording office or a copy
of the original recorded intervening assignments certified by the
public recording office;
(vi) Originals
of all assumption, written assurance, substitution and modification
agreements, if any; and
(vii) In
the case of a Cooperative Loan, the originals of the following
documents or instruments:
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1.
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The Cooperative Shares, together
with a stock power in blank;
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2.
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The executed Security
Agreement;
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3.
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The executed Proprietary
Lease;
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4.
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The executed Recognition
Agreement;
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5.
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The executed assignment of
Recognition Agreement;
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6.
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The executed UCC-1 financing
statements with evidence of recording thereon which have been filed
in all places required to perfect the Seller’s interest in
the Cooperative Shares and the Proprietary Lease; and
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7.
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Executed UCC-3 financing statements
or other appropriate UCC financing statements required by state
law, evidencing a complete and unbroken line from the mortgagee to
the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
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In addition, in connection with the
assignment of any MERS Mortgage Loan, the Seller agrees that it
will cause, at the Seller’s expense, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Seller
to the Indenture Trustee in accordance with this Agreement for the
benefit of the Noteholders, by including (or deleting, in the case
of Mortgage Loans which are repurchased in accordance with this
Agreement) in such computer files the information required by the
MERS® System to identify the series of Notes issued in
connection with such Mortgage Loans. The Seller further agrees that
it will not, and will not permit the Servicer or the Master
Servicer to alter the information referenced in this paragraph with
respect to any Mortgage Loan during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance
with the terms of this Agreement.
In instances where, for a Mortgage
Loan that is not a MERS Mortgage Loan, the original recorded
Mortgage is not delivered as provided above, and in instances where
intervening assignments called for by clause (v) above are
unavailable, the Seller will deliver or cause to be delivered the
original recorded Mortgage and intervening assignments to the
Indenture Trustee or the Custodian on behalf of the Indenture
Trustee promptly upon receipt thereof but in no event later than
one year after the Closing Date.
The Seller hereby confirms to the
Purchaser that it has caused the portions of the Electronic Ledger
relating to the Mortgage Loans to be clearly and unambiguously
marked, and has made the appropriate entries in its general
accounting records, to indicate that such Mortgage Loans have been
transferred to the Indenture Trustee, as designee of the Purchaser,
and constitute part of the Trust in accordance with the terms of
the trust created hereunder.
(c) The
parties hereto intend that the transactions set forth herein be a
sale by the Seller to the Purchaser of all the Seller’s
right, title and interest in and to the Mortgage Loans and other
property described above and the sale by the Purchaser to the Trust
of all the Purchaser’s right, title and interest in and to
the Mortgage Loans and other property described above. In the event
either transaction set forth herein is deemed not to be a sale, the
Seller hereby grants to the Purchaser, and the Purchaser hereby
grants to the Indenture Trustee, a security interest in all of its
respective right, title and interest in, to and under the Mortgage
Loans and other property described above; and this Agreement shall
constitute a security agreement under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be
deemed to be a perfected security
interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement.
Except as may otherwise expressly be
provided herein, neither the Seller nor the Purchaser shall assign,
sell, dispose of or transfer any interest in the Trust or any
portion thereof, or permit the Trust or any portion thereof to be
subject to any lien, claim, mortgage, security interest, pledge or
other encumbrance of, any other Person.
In the event that the parties hereto
have failed to transfer the entire legal ownership in and to each
Mortgage Loan to the Trust, the parties hereto intend that this
document operate to transfer the entire equitable ownership
interest in and to each Mortgage Loan to the Trust.
(d) Except
with respect to any MERS Mortgage Loan, within thirty (30) days of
the Closing Date, the Seller, at its own expense, shall prepare and
send for recording the Assignments of Mortgage in favor of the
Indenture Trustee, in the appropriate real property or other
records. With respect to any Assignment of Mortgage as to which the
related recording information is unavailable within thirty (30)
days following the Closing Date, such Assignment of Mortgage shall
be submitted for recording within thirty (30) days after receipt of
such information but in no event later than one year after the
Closing Date. The Indenture Trustee or the Custodian on behalf of
the Indenture Trustee shall be required to retain a copy of each
Assignment of Mortgage submitted for recording. In the event that
any such Assignment of Mortgage is lost or returned unrecorded
because of a defect therein, the Seller shall promptly prepare a
substitute Assignment of Mortgage or cure such defect, as the case
may be, and thereafter the Seller shall be required to submit each
such Assignment of Mortgage for recording. Any failure of the
Seller to comply with this Section 2.1(d) shall result in the
obligation of the Seller to purchase or substitute for the related
Mortgage Loans pursuant to the provisions of Section
2.2.
(f) If
the Seller is given notice that a Mortgage File is defective or
incomplete and if the Seller does not correct or cure such omission
or defect within the 90-day period specified in this Section
2.1(f), the Seller shall purchase such Mortgage Loan from the Trust
on the Determination Date in the month following the month in which
such 90-day period expired at the Purchase Price of such Mortgage
Loan. At any time the Seller exercises its option to repurchase any
Mortgage Loan pursuant to Section 3.1, the Seller shall notify the
Purchaser, the Servicer, the Master Servicer, the Securities
Administrator and the Indenture Trustee of any such repurchase no
later than five Business Days prior to the Determination Date of
the month in which it wishes to repurchase such Mortgage Loans and
the Seller shall repurchase such Mortgage Loan from the Trust on
such Determination Date. The Purchase Price for any purchased or
repurchased Mortgage Loan shall be delivered to the Servicer for
deposit in the Collection Account no later than the applicable
Determination Date; and, upon receipt by the Indenture Trustee or
the Custodian on behalf of the Indenture Trustee of written
notification of such deposit signed by a Responsible Officer of the
Seller, the Indenture Trustee or the Custodian on behalf of the
Indenture Trustee shall, in accordance with Section 3.07 of the
Servicing Agreement, release to the Seller the related Mortgage
File and the Indenture Trustee or
the Custodian shall execute and
deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in the Seller or
its designee any Mortgage Loan released pursuant hereto. It is
understood and agreed that the obligation of the Seller to purchase
any Mortgage Loan as to which a material defect in or omission of a
constituent document exists shall constitute the sole remedy
against the Seller respecting such defect or omission available to
the Servicer (in its role as such), the Master Servicer, the
Noteholders, the Securities Administrator or the Indenture Trustee
on behalf of Noteholders. If pursuant to the foregoing provisions
the Seller repurchases a Mortgage Loan that is a MERS Mortgage
Loan, the Seller shall cause the Servicer, at the Seller’s
expense, to either (i) cause MERS to execute and deliver an
Assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS® System in accordance with
MERS’ rules and regulations or (ii) cause MERS to designate
on the MERS® System the Seller as the beneficial holder of
such Mortgage Loan.
The Seller, promptly following the
transfer of (i) a Mortgage Loan from or (ii) an Eligible Substitute
Mortgage Loan to the Trust pursuant to this Section 2.1 or Section
3.1, as the case may be, shall amend the Mortgage Loan Schedule,
appropriately mark the Electronic Ledger and make appropriate
entries in its general account records to reflect such transfer and
the addition of any Eligible Substitute Mortgage Loan, if
applicable.
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Section 2.2
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Agreement to Purchase
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The Seller agrees to sell and the
Purchaser agrees to purchase, on or before June 29, 2005 (the
“Closing Date”), certain fixed-rate and adjustable-rate
mortgage loans (the “Mortgage Loans”), having an
aggregate principal balance as of the close of business on the
Cut-Off Date of $749,999,903.82 (the “Closing
Balance”), after giving effect to all payments due on the
Mortgage Loans on or before the Cut-Off Date, whether or not
received, including the right to any Prepayment Charges payable by
the related Mortgagors in connection with any Principal Prepayments
on the Mortgage Loans. The purchase price payable in connection
with such sale shall consist of (i) the cash proceeds from the sale
of the Notes and (ii) delivery of the Trust Certificates to the
Seller.
The Seller and the Purchaser intend
that the sale of the Mortgage Loans to the Purchaser, followed by
the Purchaser’s sale of the Mortgage Loans to the Issuer,
shall be treated for federal, state and local tax purposes as a
transfer by the Seller directly to the Issuer (followed by the
issuance by the Issuer of Notes that are intended by all parties to
such issuance to be treated for federal, state and local tax
purposes as indebtedness of the Seller secured by the Mortgage
Loans).
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section
3.1 Representations
and Warranties . The Originator (in the case of (a) and (c)
below) and Seller (in the case of (b) below) hereby represents and
warrants to the Purchaser as of the Closing Date (or if otherwise
specified below, as of the date so specified):
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(a)
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As to the Originator
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(1) The
Originator is a corporation licensed as a mortgage banker duly
organized, validly existing and in good standing under the laws of
the state of its incorporation and has, and had at all relevant
times, full corporate power to originate the Mortgage Loans, to own
its property, to carry on its business as presently conducted and
to enter into and perform its obligations under this Agreement. The
Originator has all necessary licenses and is qualified to transact
business in and is in good standing under the laws of each state
where a Mortgaged Property is located or is otherwise exempt under
applicable law from such qualification or is otherwise not required
under applicable law to effect such qualification and no demand for
such qualification has been made upon the Originator by any state
having jurisdiction;
(2) The
execution and delivery of this Agreement by the Originator and the
Originator’s performance of and compliance with the terms of
this Agreement will not violate the Originator’s articles of
incorporation or by-laws or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a
default) under, or result in the breach or acceleration of, any
material contract, agreement or other instrument to which the
Originator is a party or which may be applicable to the Originator
or any of its assets;
(3) The
Originator has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement to be
consummated by it, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement. This Agreement, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a
valid, legal and binding obligation of the Originator, enforceable
against it in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by
general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law);
(4) The
Originator is not in violation of, and the execution and delivery
of this Agreement by the Originator and the performance by it and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court or any
order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, which
violation would materially and
adversely affect the condition (financial or otherwise) or
operations of the Originator or any of its properties or materially
and adversely affect the performance of any of its duties
hereunder;
(5) Except
as disclosed in the Prospectus Supplement, there are no actions or
proceedings against, or investigations of, the Originator pending
or, to the knowledge of the Originator, threatened, before any
court, administrative agency or other tribunal (A) that, if
determined adversely, would prohibit its entering into this
Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (C) that, if
determined adversely, would prohibit or materially and adversely
affect the performance by the Originator of any of its obligations
under, or the validity or enforceability of, this
Agreement;
(6) No
consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by the Originator of, or compliance by the
Originator with, this Agreement, or for the consummation of the
transactions contemplated by this Agreement, except for such
consents, approvals, authorizations and orders, if any, that have
been obtained prior to the Closing Date;
(7) The
Originator is a member of MERS in good standing, and will comply in
all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans for as
long as such Mortgage Loans are registered with MERS;
(8) No
Officer’s Certificate, statement, report or other document
prepared by the Originator and furnished or to be furnished by it
pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material fact;
and
(9) The
transactions contemplated by this Agreement are in the ordinary
course of business of the Originator.
(1) The
Seller is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation and
has, and had at all relevant times, full corporate power to sell
the Mortgage Loans, to own its property, to carry on its business
as presently conducted and to enter into and perform its
obligations under this Agreement;
(2) The
execution and delivery of this Agreement by the Seller and the
Seller’s performance of and compliance with the terms of this
Agreement will not violate the Seller’s articles of
incorporation or by-laws or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a
default) under, or result in the breach or acceleration of, any
material contract, agreement
or other instrument to which the
Seller is a party or which may be applicable to the Seller or any
of its assets;
(3) The
Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement to be
consummated by it, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement. This Agreement, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a
valid, legal and binding obligation of the Seller, enforceable
against it in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by
general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law);
(4) The
Seller is not in violation of, and the execution and delivery of
this Agreement by the Seller and the performance by it and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court or any
order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, which violation would
materially and adversely affect the condition (financial or
otherwise) or operations of the Seller or any of its properties or
materially and adversely affect the performance of any of its
duties hereunder;
(5) There
are no actions or proceedings against, or investigations of, the
Seller pending or, to the knowledge of the Seller, threatened,
before any court, administrative agency or other tribunal (A) that,
if determined adversely, would prohibit its entering into this
Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (C) that, if
determined adversely, would prohibit or materially and adversely
affect the performance by the Seller of any of its obligations
under, or the validity or enforceability of, this
Agreement;
(6) No
consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by the Seller of, or compliance by the Seller with,
this Agreement, or for the consummation of the transactions
contemplated by this Agreement, except for such consents,
approvals, authorizations and orders, if any, that have been
obtained prior to the Closing Date;
(7) The
Seller did not sell the Mortgage Loans to the Purchaser with any
intent to hinder, delay or defraud any of its creditors; and the
Seller will not be rendered insolvent as a result of the sale of
the Mortgage Loans to the Purchaser;
(8) The
Seller acquired title to the Mortgage Loans in good faith, without
notice of any adverse claim;
(9) No
Officer’s Certificate, statement, report or other document
prepared by the Seller and furnished or to be furnished by it
pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material
fact;
(10) The
transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Seller pursuant to this Agreement are not subject
to the bulk transfer laws or any similar statutory provisions in
effect in any applicable jurisdiction;
(11) The
transactions contemplated by this Agreement are in the ordinary
course of business of the Seller; and
(12) The
Seller has caused or hereby agrees to cause to be performed any and
all acts required to be performed to preserve the rights and
remedies of the Indenture Trustee in any insurance policies
applicable to the Mortgage Loans, including, without limitation,
any necessary notifications of insurers, assignments of policies or
interests therein, and establishments of co-insured, joint loss
payee and mortgagee rights in favor of the Indenture
Trustee.
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(c)
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As to each Mortgage
Loan :
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(1) The
information set forth on the Mortgage Loan Schedule and the
Prepayment Charge Schedule is complete, true and correct as of the
dates as of which the information therein is given;
(2) The
Mortgage Notes and the Mortgages have not been assigned or pledged
by the Seller to any Person other than warehouse lenders, and
immediately prior to the transactions herein contemplated, the
Seller had good and marketable title thereto, and was the sole
owner and holder of the Mortgage Loans free and clear of any and
all liens, claims, encumbrances, participation interests, equities,
pledges, charges or security interests of any nature (collectively,
a “Lien”), other than any such Lien released
simultaneously with the sale contemplated herein, and had full
right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign the same
pursuant to this Agreement, and immediately upon the transfer and
assignment of each Mortgage Loan as contemplated by this Agreement,
the Trust will be the sole beneficial owner of, each Mortgage Loan
free and clear of any lien, claim, participation interest,
mortgage, security interest, pledge, charge or other encumbrance or
other interest of any nature;
(3) With
respect to any Mortgage Loan that is not a Cooperative Loan, each
Mortgage is a valid and existing lien on the property therein
described, and each Mortgaged Property is free and clear of all
encumbrances and liens having priority over the lien of the
Mortgage, except (i) liens for real estate taxes and special
assessments not yet due and payable, (ii) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the
date of recording such Mortgage,
such exceptions appearing of record being acceptable to mortgage
lending institutions generally or specifically reflected in the
appraisal made in connection with the origination of the related
Mortgage Loan, (iii) other matters to which like properties are
commonly subject which do not materially interfere with the
benefits of the security intended to be provided by such Mortgage,
(iv) in the case of a Mortgaged Property that is a condominium or
an individual unit in a planned unit development, liens for common
charges permitted by statute and (v) in the case of a Mortgage Loan
secured by a second lien on the related Mortgaged Pro
