RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Purchaser,
and
RESIDENTIAL FUNDING COMPANY, LLC
as Seller
HOME EQUITY LOAN PURCHASE AGREEMENT
Dated as of February 27, 2007
Home Equity Loans
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS...............................................................1
Section 1.1
Definitions.......................................................1
ARTICLE II
SALE OF HOME EQUITY LOANS AND RELATED
PROVISIONS..........................2
Section 2.1
Sale of Home Equity Loans.........................................2
Section 2.2
Payment of Purchase Price.........................................5
Section 2.3
Reserved..........................................................6
Section 2.4
Variable Funding Notes on or after the Closing Date...............6
Section 2.5
Draws After an Amortization Event.................................7
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR
BREACH.......................7
Section 3.1
Seller Representations and Warranties.............................7
ARTICLE IV
SELLER'S
COVENANTS.......................................................16
Section 4.1
Covenants of the Seller..........................................16
ARTICLE V
SERVICING................................................................16
Section 5.1
Servicing........................................................16
ARTICLE VI
INDEMNIFICATION BY THE SELLER WITH RESPECT TO THE HOME EQUITY
LOANS......16
Section 6.1
Limitation on Liability of the Seller............................17
ARTICLE VII
TERMINATION..............................................................17
Section 7.1
Termination......................................................17
ARTICLE VIII
MISCELLANEOUS
PROVISIONS.................................................17
Section 8.1
Amendment........................................................17
Section 8.2
GOVERNING LAW....................................................17
Section 8.3
Notices..........................................................17
Section 8.4
Severability of Provisions.......................................18
Section 8.5
Relationship of Parties..........................................18
Section 8.6
Counterparts.....................................................18
Section 8.7
Further Agreements...............................................18
Section 8.8
Intention of the Parties.........................................18
Section 8.9
Successors and Assigns; Assignment of This Agreement.............18
Section 8.10
Survival.........................................................19
Section 8.11
Credit Enhancer as Third-Party Beneficiary.......................19
EXHIBITS
Exhibit 1......
Home Equity Loan Schedule
Exhibit 2......
Standard & Poor's Predatory Lending Categories
This HOME
EQUITY
LOAN
PURCHASE
AGREEMENT
(this
"Agreement"),
dated as of
February 27,
2007,
is made between
Residential
Funding
Company,
LLC (the
"Seller")
and
Residential Funding Mortgage Securities II, Inc. (the "Purchaser").
W I T N E S S E T H :
WHEREAS,
the Seller owns Cut-off Date Loan Balances and the Related
Documents
for the adjustable
rate,
revolving
credit loans (the "Home Equity Loans")
indicated on the
Home Equity Loan
schedule,
attached as Exhibit 1 hereto (the "Home
Equity Loan
Schedule"),
including
rights to (a) any property
acquired by
foreclosure or deed in lieu of foreclosure
or otherwise, and (b) the proceeds of any insurance policies
covering the Home Equity Loans;
WHEREAS,
the parties
hereto desire that the Seller sell the Cut-off Date Loan
Balances of the Home Equity
Loans to the
Purchaser
pursuant to the terms of this
Agreement
together
with the Related
Documents
on the Closing
Date,
and
thereafter
all
Additional
Balances created on or after the Cut-off Date;
WHEREAS,
pursuant to the terms of the Servicing Agreement, the Master
Servicer
will service the Home Equity Loans directly or through one or more
Subservicers;
WHEREAS,
pursuant to the terms of the Trust Agreement, the Purchaser will
sell
the Home Equity Loans to the Issuer in exchange for the cash
proceeds of the Securities;
WHEREAS,
pursuant to the terms of the Trust
Agreement,
the Issuer will issue
and transfer to or at the direction of the Purchaser, the
Certificates; and
WHEREAS,
pursuant
to the terms of the
Indenture,
the Issuer
will issue and
transfer
to or at the
direction
of the
Purchaser,
the Notes,
secured by the Home
Equity
Loans.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained,
the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1
Definitions.
For all
purposes of this Home Equity
Loan
Purchase
Agreement,
except as
otherwise
expressly
provided
herein or unless the
context
otherwise
requires,
capitalized
terms not
otherwise
defined
herein
shall have the
meanings
assigned to such
terms
in the
Definitions
contained
in
Appendix
A to the
Indenture
dated as of the date
hereof (the
"Indenture"),
between
Home Equity Loan Trust
2007-HSA1,
as Issuer and LaSalle
Bank National
Association,
as Indenture Trustee,
which is incorporated by reference herein.
All other capitalized terms used herein shall have the meanings
specified herein.
ARTICLE II
SALE OF HOME EQUITY LOANS AND RELATED PROVISIONS
Section 2.1
Sale of Home Equity Loans.
(a)
The Seller,
by the
execution
and
delivery
of this
Agreement,
does hereby
sell,
assign, set over, and otherwise convey to the Purchaser,
without recourse,
all of its right,
title and interest in, to and under the following,
and wherever located:
(i) the Home Equity
Loans
(including
without
limitation
the
Cut-off
Date Loan
Balances
and all
Additional
Balances
created
on and after the
Cut-off
Date;
provided,
however,
that
following
the
occurrence of an
Amortization
Event,
any subsequent
loan balance
represented by each Draw
and interest
thereon will not be deemed
transferred
to the Issuer,
and the Seller (in such
event)
shall
retain
ownership
of each
loan
balance
represented
by each
such Draw made
thereafter
and
interest
thereon),
all interest
accruing
thereon and all
collections
in
respect
thereof
received on or after the Cut-off Date;
(ii)
property
which secured a Home
Equity Loan and which has been acquired by foreclosure or deed in
lieu of
foreclosure;
(iii)
the
interest of the Seller in any
insurance
policies
in respect of the Home Equity
Loans;
and (iv) all
proceeds
of the
foregoing;
provided,
however,
that the
Purchaser
does not
assume the obligation
under each Loan Agreement
relating to a Home Equity Loan to fund Draws
to the Mortgagor
thereunder,
and the
Purchaser
shall not be obligated or permitted to fund
any such Draws,
it being
agreed that the Seller
will retain the
obligation
to fund future
Draws.
Such
conveyance
shall be deemed to be made:
(1) with
respect to the
Cut-off
Date
Loan Balances,
as of the Closing Date; and (2) with respect to the amount of each
Additional
Balance
created on or after the Cut-off
Date,
as of the later of the
Closing
Date and the
date that the corresponding
Draw was made pursuant to the related Loan Agreement,
subject to
the receipt by the Seller of
consideration
therefor as provided
herein
under clause (b) of
Section 2.2.
(b)
In connection with such conveyance,
the Seller further agrees, at its own expense, on
or prior to the Closing
Date with
respect to the Loan
Balance of the Home
Equity
Loans to
indicate in its books and records that the Home Equity
Loans have been sold to the
Purchaser
pursuant to this
Agreement
and to deliver to the
Purchaser
the Home Equity Loan
Schedule.
Such Home Equity Loan
Schedule
shall be marked as Exhibit 1 to this
Agreement and is hereby
incorporated into and made a part of this Agreement.
(c)
On or before the Closing Date, in connection with such
conveyance by the Seller,
the
Seller shall on behalf of the
Purchaser
(1) with
respect to each Home Equity Loan,
deliver
to the Master
Servicer
(or an
Affiliate of the Master
Servicer)
each of the
documents or
instruments
described
in clause
(ii) below (and the
Master
Servicer
shall hold (or cause
such
Affiliate to hold) such
documents or
instruments
in trust as agent for the
Indenture
Trustee for the
benefit of the
Noteholders
and the Credit
Enhancer),
(2) with
respect to
each MOM Loan,
deliver to, and deposit
with,
the
respective
Custodian,
the
documents or
instruments
described
in clauses
(i) and (v) below,
(3) with
respect to each Home
Equity
Loan that is not a MOM Loan but is
registered
on the MERS(R)System,
deliver to, and deposit
with, the respective
Custodian,
the documents or instruments
described in clauses (i), (iv)
and (v) below and (4) with
respect
to each
Home
Equity
Loan that is not a MOM Loan and is
not registered on the MERS(R)System,
deliver to, and deposit with,
the respective
Custodian,
the documents or instruments described in clauses (i), (iii), (iv)
and (v) below.
(i)
The original
Mortgage Note,
including the related Loan Agreement,
endorsed
without
recourse
to the
Indenture
Trustee and showing an
unbroken
chain of
endorsement
from the
originator
thereof to the Person
endorsing it or, with respect to any Home Equity Loan as to
which the original
Mortgage Note has been
permanently
lost,
misplaced or destroyed and has
not been
replaced,
a Lost Note
Affidavit from the Program Seller or the Seller stating that
the original
Mortgage
Note was lost,
misplaced or
destroyed,
together
with a copy of the
related Mortgage Note.
(ii)
The
original
Mortgage,
noting the
presence
of the MIN of the Home Equity Loan and
language
indicating
that the Home Equity Loan is a MOM Loan if the Home Equity Loan is
a MOM
Loan,
with
evidence of
recording
thereon,
or, if the
original
Mortgage has not yet been
returned
from
the
public
recording
office,
a copy
of such
Mortgage
with
evidence
of
recording
indicated
thereon in the event the
recording
office keeps the original or if the
original is lost,
or if the
original
or a copy of the
original
Mortgage
has not yet been
returned from the public recording office, a copy of the original
Mortgage.
(iii)
Assignments (which may be included in one or more blanket
assignments if permitted by
applicable
law) of the Mortgage
recorded to "LaSalle Bank National
Association as indenture
trustee"
c/o the Seller
(or to MERS,
if the Home
Equity
Loan is
registered
on the MERS(R)
System and noting the presence of a MIN) at an address specified by
the Seller.
(iv)
Originals of any intervening
assignments of the Mortgage,
with evidence of recording
thereon,
or a copy of such intervening
assignment,
with evidence of recording thereon,
or,
if the original of any such
intervening
assignment has not yet been returned from the public
recording office, a copy of such original intervening assignment.
(v)
A copy of each assumption,
modification,
consolidation or substitution agreement, if
any, relating to the Home Equity Loan.
Within
the time
period
for the
review of each
Custodial
File set forth in
Section 2.3 of the Custodial
Agreement,
the Custodian
shall notify the Master
Servicer and
the Credit
Enhancer of any
document or
documents
constituting
a part of a Custodial
File
which are
missing or
defective
in respect of the items
reviewed
as
described
in Section
2.3(b) of the Custodial Agreement;
provided,
that if the defect or missing item with respect
to a Home Equity Loan related to such
Custodial
File is listed on Schedule A of Exhibit 1 of
the Custodial
Agreement,
no notification shall be necessary.
As set forth in Section 2.3 of
the Custodial
Agreement,
the Custodian shall deliver to the Indenture Trustee and the Credit
Enhancer
a
certificate
(the
"Interim
Certification")
to the
effect
that all
documents
required to be delivered
pursuant to this
Subsection
2.1(c) have been executed and received
and that such
documents
relate to the Home Equity Loans
identified
on the Home Equity Loan
Schedule,
except for any exceptions
listed on such Interim
Certification.
If such omission
or defect
materially
and adversely
affects the interests in the related Home Equity Loan of
the Noteholders or the Credit
Enhancer,
the Master Servicer shall promptly notify the Seller
(provided
that a
Custodial
File will not be deemed to
contain a defect
for an
unrecorded
assignment
under
clause
(iii)
above
if the
Seller
has
submitted
such
assignment
for
recording or if such
assignment
is not required to be recorded
pursuant to the terms of the
following
paragraph),
the Seller shall cure such defect,
repurchase the related Home Equity
Loan at the Repurchase
Price or substitute an Eligible
Substitute
Loan for the related Home
Equity
Loan upon the same
terms
and
conditions
set forth in
Section
3.1(c)
hereof
for
breaches of
representations
and warranties as to the Home Equity Loans.
With respect to any
missing Loan
Agreements
referred to in
Subsection
3.1(b)(xxxiv),
the Seller shall have 60
days from the Closing Date to deliver the
documents
referred to in this
Subsection
2.1(c).
If such
documents have not been
delivered
within 60 days,
the Seller shall
repurchase the
related
Home
Equity Loan or
substitute
an Eligible
Substitute
Loan for the related
Home
Equity
Loan upon the same
terms
and
conditions
set forth in
Section
3.1(c)
hereof
for
breaches
of
representations
and
warranties
as to the Home
Equity
Loans.
If a
material
defect in any of the
documents
in the
Mortgage
File
held by the
Master
Servicer
(or an
Affiliate of the Master
Servicer) is discovered
which may
materially
and adversely
affect
the value of the related Home Equity Loan, or the interests of the
Noteholders
or the Credit
Enhancer in such Home Equity Loan,
including the Seller's
failure to deliver such
documents
to the Master
Servicer (or an Affiliate
of the Master
Servicer) on behalf of the
Indenture
Trustee,
the Seller
shall cure such defect,
repurchase
the related Home Equity Loan at the
Repurchase
Price or substitute an Eligible
Substitute
Loan therefor upon the same terms and
conditions set forth in Section 3.1(c) hereof for breaches of
representations
and warranties
as to the Home Equity Loans.
Within 60 days
after the
receipt
by the
Master
Servicer
of the
recording
information
necessary to complete the
recording
of each of the
assignments
referred to in
clause (iii) above,
the Seller at its own expense shall
complete,
or cause to be completed,
in the name of the
Indenture
Trustee,
and shall submit each such
assignment
for recording
in the appropriate
public office for real property
records each of the assignments
referred
to in clause
(iii)
above.
While such
assignment
to be
recorded
is being
recorded,
the
Custodian
shall
retain
a
photocopy
of
such
assignment.
If any
assignment
is
lost or
returned
unrecorded to the Custodian
because of any defect
therein,
the Seller is required
to prepare a substitute
assignment
or cure such
defect,
as the case may be, and the Seller
shall
cause
such
assignment
to
be
recorded
in
accordance
with
this
paragraph.
Notwithstanding
the
foregoing,
as to any Home Equity Loan where the Seller is the
assignee
of record of the
Mortgage,
the
assignment
referred
to in clause
(iii) above shall not be
required
to be
completed
and
submitted
for
recording
(a) if an
Opinion
of
Counsel is
provided
in form
and
substance
satisfactory
to the
Credit
Enhancer
and to each
Rating
Agency,
to the effect that such
recordation
of the
assignment
referred to in clause (iii)
above
(completed
in the name of the
Indenture
Trustee) is not
required
(i) to effect the
sale
and
conveyance
of the Home
Equity
Loan by the
Seller
to the
Depositor
and by the
Depositor to the Issuer,
or the granting and perfecting of the security
interest in the Home
Equity
Loan to the
Indenture
Trustee as
provided
in the
Indenture
or (ii) to defeat any
ownership,
security
interest or other
adverse claim to the Home Equity Loan by any creditor
of the Seller or the
Depositor
by any
purported
transferee
of such Home
Equity Loan in a
purported
transfer
thereof
by the
Seller
or the
Depositor
subsequent
to such
sale and
conveyance or (b) if MERS is identified on the Mortgage or on a
properly
recorded
assignment
of the
Mortgage
as the
mortgagee
of
record
solely
as
nominee
for the
Seller
and its
successors and assigns.
In instances where an original Mortgage or any original intervening
assignment
of Mortgage
was not, in
accordance
with clause (ii) or (iv) above,
delivered by the Seller
to the Custodian prior to or
concurrently
with the execution and delivery of this Agreement,
the Seller will
deliver or cause to be
delivered
the
originals
of such
documents to such
Custodian promptly upon receipt thereof.
In connection
with the
assignment
of any Home Equity Loan
registered on the
MERS(R)System,
the
Purchaser
further
agrees that it will
cause,
at the
Purchaser's
own
expense,
within 30 Business
Days after the Closing
Date,
the MERS(R)System to indicate that
such
Home
Equity
Loan has been
assigned
by the
Purchaser
to the
Indenture
Trustee
in
accordance
with this Agreement for the benefit of the
Noteholders and the Credit Enhancer by
including (or deleting,
in the case of Home Equity Loans which are
repurchased in accordance
with this
Agreement) in such computer
files (a) the code in the field which
identifies
the
specific
Indenture
Trustee and (b) the code in the field "Pool Field" which
identifies
the
series of the Notes issued in connection
with such Home Equity Loans.
The Purchaser
further
agrees that it will not, and will not permit the Master
Servicer to, and the Master
Servicer
agrees that it will not,
alter the codes
referenced
in this
paragraph
with respect to any
Home Equity Loan during the term of this
Agreement
unless and until such Home Equity Loan is
repurchased in accordance with the terms of this Agreement.
The
Purchaser
hereby
acknowledges
its
acceptance
of all right,
title and
interest to the property, conveyed to it pursuant to this Section
2.1.
(d)
The parties hereto intend that the transactions set forth herein
constitute a sale by
the Seller to the Purchaser of all the Seller's
right,
title and interest in and to the Home
Equity
Loans
and other
property
as and to the
extent
described
above.
In the event the
transactions
set forth herein are deemed not to be a sale,
the Seller
hereby
grants to the
Purchaser a security
interest in all of the
Seller's
right,
title and
interest in, to and
under the Home Equity Loans and all accounts,
chattel papers,
general
intangibles,
payment
intangibles,
contract
rights,
certificates
of
deposit,
deposit
accounts,
instruments,
documents,
letters of credit, money, advices of credit,
investment property, goods and other
property
consisting
of,
arising
under or related to the Home
Equity
Loans and such other
property,
to secure all of the
Seller's
obligations
hereunder,
and this
Agreement
shall
constitute a security
agreement
under
applicable law. The Seller agrees to take or cause to
be taken such actions and to execute such documents,
including without
limitation the filing
of all
necessary
UCC-1
financing
statements
filed in the State of
Minnesota
or Delaware
(which
shall
have been
submitted
for
filing as of the
Closing
Date),
any
continuation
statements
with respect
thereto and any amendments
thereto
required to reflect a change in
the name or legal
structure
of the Seller or the filing of any
additional
UCC-1
financing
statements
due to the change in the
principal
office of the
Seller,
as are
necessary
to
perfect and
protect
the
Purchaser's
interests
in each Home
Equity Loan and the
proceeds
thereof.
Section 2.2
Payment of Purchase Price.
(a)
The "Purchase
Price" for the Home Equity Loans
(including the
Additional
Balances)
shall be (1) an amount equal to
$545,407,065.00
for the Home Equity
Loans,
in
immediately
available
funds,
together
with the
Certificates,
in
respect
of the
Cut-off
Date
Loan
Balances
thereof
and (2) in the
case
of
each
Additional
Balance
transferred
hereunder
created on or after the Cut-off
Date,
the
principal
amount of the
related
Draw under the
Loan
Agreement
on the
later
of the
Closing
Date
and the
date of the
creation
of such
Additional Balance.
(b)
In
consideration
of the
sale of the
Home
Equity
Loans
from
the
Seller
to the
Purchaser on the Closing Date,
the
Purchaser
shall pay to the Seller on the Closing Date by
wire transfer of immediately
available funds to a bank account
designated by the Seller, the
amount
specified
above in clause
(a)(1)
for each Home
Equity
Loan;
provided,
that such
payment
may be on a net
funding
basis if
agreed
by the
Seller
and the
Purchaser.
With
respect to each
Additional
Balance
transferred
hereunder
with
respect to any Home Equity
Loan,
the Issuer as assignee of the Purchaser
shall pay or cause to be paid to the Seller or
its designee
the portion of the
Purchase
Price
specified
above in clause
(a)(2) for such
Additional
Balance
in one of the
following
ways,
as
applicable:
(i) for any
Collection
Period prior to the
Collection
Period during which the Revolving
Period ends, so long as an
Amortization
Event has not occurred,
(a) a cash payment
pursuant to Section
3.03(b) of the
Servicing
Agreement and Section
2.2(a)(2)
hereof in an amount equal to the related Draw, if
then available from Principal
Collections
during the related
Collection
Period on the Home
Equity Loans,
and (b) to the extent
aggregate
Draws exceed
Principal
Collections for such
Collection
Period,
an increase in the
aggregate
principal
amount of the Variable
Funding
Notes or an issuance of new variable
funding notes, as of the Payment Date
corresponding
to
the Collection Period in which such Additional
Balances were created,
equal to the amount by
which Additional
Balances
exceeded
Principal
Collections for such Collection
Period,
and
(ii) for the
Collection
Period during which the Revolving
Period ends,
and any
Collection
Period
thereafter,
so long as an
Amortization
Event has not
occurred,
an increase in the
aggregate
principal
amount of Variable
Funding Notes or an issuance of new variable funding
notes as of each Payment Date in an aggregate
amount equal to the total of the related
Draws
for the corresponding Collection Period.
Section 2.3
Reserved.
Section 2.4
Variable Funding Notes on or after the Closing Date.
Subject to Section
4.02 of the
Indenture,
if at any time,
the Seller
holds
Variable
Funding
Notes
that
have
reached
the
Maximum
Variable
Funding
Balance,
as
applicable,
and to the
extent
that the same
are
exchanged
for
Capped
Funding
Notes in
accordance
with Section
4.01(d) of the Indenture,
the Purchaser
agrees that,
upon written
request made by the Seller at any time, the Purchaser
shall use its best
reasonable
efforts
to cause such
Capped
Funding
Notes held by the
Seller to be
registered
for resale by the
Seller
pursuant to an effective
registration
statement filed by the Purchaser in accordance
with, and meeting all
requirements
of, the Securities
Act. The Purchaser shall use its best
reasonable
efforts to cause such
registration
statement to become effective with respect to
such Capped
Funding Notes as soon as practicable
within a mutually
agreed
reasonable
time
period after the Seller's request.
It is contemplated
that such registration
statement will
be the shelf
registration
statement
pursuant to which the Term Notes
issued on the Closing
Date are to be
offered,
or one
substantially
similar
thereto.
In
connection
with
such
registration
statement
and
offering,
the Seller shall
reimburse
the
Purchaser for costs
related
thereto
including
registration
fees,
printing
fees,
rating
fees,
legal
fees,
accountant's
fees, blue sky registration fees and expenses (if any),
related expenses of the
Credit Enhancer and other
out-of-pocket
costs, if any. In connection with such
registration
statement
and related
prospectus,
the Seller shall
provide the
Purchaser
with an updated
Home Equity Loan Schedule and all other
information
reasonably
necessary to assure that the
statements in the prospectus
with respect to the Home Equity Loans and the Seller
(including
in its
capacity
as
servicer
of the Home
Equity
Loans) are
complete
and
correct in all
material
respects
as of the date of sale of such
Capped
Funding
Notes by the
Seller.
In
addition,
the Seller
shall
provide,
or
arrange
to be
provided,
to the
Purchaser
such
additional
agreements,
opinions and
certifications
as may be
reasonably
requested by the
Credit
Enhancer.
The
registration
statement shall not include any information with respect
to the Credit
Enhancer,
except for
information
approved
by the
Credit
Enhancer
for use
therein.
Section 2.5
Draws After an Amortization Event.
In the event
that an
Amortization
Event
occurs,
any Draws made on the Home
Equity Loans thereafter
shall not be deemed to be "Additional
Balances"
hereunder,
and the
ownership
of
the
related
balances
shall
be
retained
by
the
Seller.
Following
an
Amortization
Event, on any Payment Date, with respect to the related
Collection
Period, all
Interest
Collections
and Principal
Collections
in respect of each
individual
Home Equity
Loan shall be
allocated
on a pro rata basis as between the Issuer and the
Seller,
based on
the relative
proportions
of the Loan Balance and the Excluded
Amount,
respectively,
as of
the end of the
calendar
month
immediately
prior
to such
Collection
Period.
Any
losses
incurred
with respect to any
individual
Home Equity Loan
following an
Amortization
Event
shall be
allocated on a pro rata basis
between the Issuer and the Seller,
based on the Loan
Balance and the
Excluded
Amount
thereof as of the date of
liquidation
of such Home Equity
Loan.
Notwithstanding
any
other
provision
hereof
or
of
the
Servicing
Agreement,
the
payments
and
collections
allocable
to the
Excluded
Amount need not be
deposited
in the
Custodial
Account and shall not be deposited in the Certificate
Distribution
Account or the
Payment
Account,
and shall be
distributed
by the
Master
Servicer
to the Seller not less
frequently than monthly in accordance with reasonable instructions
provided by the Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.1
Seller
Representations
and Warranties.
The Seller represents and warrants to
the Purchaser and to the Credit
Enhancer,
as of the Closing Date (or if otherwise
specified
below, as of the date so specified):
(a)
As to the Seller:
(i)
The Seller is a limited
liability
company duly
organized,
validly
existing and in
good standing under the laws
governing its creation and
existence,
and has the power to own
its assets and to
transact
the
business
in which it is
currently
engaged.
The Seller is
duly qualified to do business as a foreign limited
liability
company and is in good standing
in each
jurisdiction
in which the
character of the business
transacted by it or properties
owned or leased by it
requires
such
qualification
and in which the
failure
to so qualify
would
have a
material
adverse
effect on the
business,
properties,
assets
or
condition
(financial or other) of the Seller;
(ii)
The Seller has the power and
authority
to make,
execute,
deliver
and
perform its
obligations
under
this
Agreement
and
all
of the
transactions
contemplated
under
this
Agreement,
and has taken all
necessary
action to
authorize
the
execution,
delivery
and
performance of this
Agreement.
When executed and delivered,
this Agreement will
constitute
the legal,
valid and binding
obligation of the Seller
enforceable
in
accordance
with its
terms,
except as
enforcement
of such
terms may be
limited by
bankruptcy,
insolvency
or
similar
laws
affecting
the
enforcement
of
creditors'
rights
generally
and
by
the
availability of equitable remedies;
(iii)
The Seller is not
required to obtain the consent of any other
Person or any consent,
license,
approval
or
authorization
from,
or
registration
or
declaration
with,
any
governmental
authority,
bureau
or
agency
in
connection
with
the
execution,
delivery,
performance,
validity
or
enforceability
of
this
Agreement,
except
for
such
consents,
license,
approvals or
authorization,
or
registration
or
declaration,
as shall have been
obtained or filed, as the case may be;
(iv)
The execution and delivery of this Agreement and the
performance of the
transactions
contemplated
hereby by the Seller will not
violate
any
provision
of any
existing
law or
regulation
or any order or decree of any court
applicable
to the Seller or any provision of
the
certificate
of
formation
or limited
liability
company
agreement
of the Seller,
or
constitute
a material
breach of any
mortgage,
indenture,
contract or other
agreement
to
which the Seller is a party or by which the Seller may be bound;
(v)
No
litigation
or
administrative
proceeding
of or before
any court,
tribunal
or
governmental
body
is
currently
pending,
or to the
knowledge
of the
Seller
threatened,
against
the
Seller
or any of its
properties
or
with
respect
to this
Agreement
or the
Certificates
which in the opinion of the Seller has a reasonable
likelihood
of resulting in
a material adverse effect on the transactions contemplated by this
Agreement;
(vi)
This
Agreement
constitutes
a legal,
valid and
binding
obligation
of the Seller,
enforceable
against the Seller in accordance with its terms,
except as enforceability may be
limited by
applicable
bankruptcy,
insolvency,
reorganization,
moratorium or other similar
laws now or hereafter in effect
affecting the
enforcement
of
creditors'
rights
