EXHIBIT 10.1
FORM OF HOME LOAN PURCHASE AGREEMENT
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RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Purchaser,
and
RESIDENTIAL FUNDING CORPORATION
as Seller
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HOME LOAN PURCHASE AGREEMENT
Dated as of [______ __], 200[_]
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS....................................................
1
Section 1.1.
Definitions...........................................
1
ARTICLE II SALE OF HOME LOANS AND RELATED
PROVISIONS.....................
2
Section 2.1.
Sale of Home Loans....................................
2
Section 2.2.
Payment of Purchase Price.............................
4
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR
BREACH..........
5
Section 3.1.
Seller Representations and Warranties.................
5
ARTICLE IV SELLER'S
COVENANTS............................................
12
Section 4.1.
Covenants of the Seller...............................
12
ARTICLE V
SERVICING......................................................
12
Section 5.1.
Servicing.............................................
12
ARTICLE VI LIMITATION ON LIABILITY OF THE
SELLER.........................
12
Section 6.1.
Limitation on Liability of the Seller.................
12
ARTICLE VII
TERMINATION..................................................
12
Section 7.1.
Termination...........................................
12
ARTICLE VIII MISCELLANEOUS
PROVISIONS....................................
13
Section 8.1.
Amendment.............................................
13
Section 8.2.
GOVERNING LAW.........................................
13
Section 8.3.
Notices...............................................
13
Section 8.4.
Severability of Provisions............................
13
Section 8.5.
Relationship of Parties...............................
14
Section 8.6.
Counterparts..........................................
14
Section 8.7.
Further Agreements....................................
14
Section 8.8.
Intention of the Parties..............................
14
Section 8.9.
Successors and Assigns; Assignment of This Agreement..
14
Section 8.10.
Survival..............................................
15
Exhibit A
Home Loan Schedule
Exhibit B
Standard & Poor's Glossary For File Format For LEVELS(R)
Version 5.6c Revised
i
This HOME LOAN PURCHASE AGREEMENT (this "Agreement" or "Home Loan
Purchase
Agreement"), dated as of [______ __], 200[_], is made between
Residential
Funding Corporation (the "Seller") and Residential Funding Mortgage
Securities
II, Inc. (the "Purchaser").
WITNESSETH:
WHEREAS, the Seller owns Home Loans and the Related Documents for
the Home
Loans indicated on the Home Loan Schedule attached as Exhibit A
hereto
(collectively, the "Home Loans"), including rights to (a) any
property acquired
by foreclosure or deed in lieu of foreclosure or otherwise, and (b)
the proceeds
of any insurance policies covering the Home Loans;
WHEREAS, the parties hereto desire that the Seller sell the Home
Loans to
the Purchaser pursuant to the terms of this Agreement together with
the Related
Documents on the Closing Date;
WHEREAS, pursuant to the terms of the Trust Agreement, the
Purchaser will
sell the Home Loans to the Issuer in exchange for the Securities;
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer
will
issue and transfer to or at the direction of the Depositor, the
Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will
issue and
transfer to or at the direction of the Depositor, the Notes; and
WHEREAS, pursuant to the terms of the Servicing Agreement, the
Master
Servicer will service the Home Loans directly or through one or
more
Subservicers.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. For all purposes of this Home Loan
Purchase
Agreement, except as otherwise expressly provided herein or unless
the context
otherwise requires, capitalized terms not otherwise defined herein
shall have
the meanings assigned to such terms in the Definitions contained in
Appendix A
to the Indenture dated [______ __], 200[_] (the "Indenture"),
between Home Loan
Trust 2005-HI[_], as issuer, and [__________]., 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 LOANS AND RELATED PROVISIONS
Section 2.1. Sale of Home Loans. (a) The Seller, by the execution
and
delivery of this Agreement, does hereby sell, assign, set over, and
otherwise
convey to the Purchaser, without recourse, all of its right, title
and interest
in, to and under the following, and wherever located: (i) the Home
Loans, all
interest accruing thereon and all collections in respect thereof
received on or
after the Cut-off Date; (ii) property which secured a Home Loan and
which has
been acquired by foreclosure or deed in lieu of foreclosure; (iii)
the interest
of the Seller in any insurance policies in respect of the Home
Loans; and (iv)
all proceeds of the foregoing. Such conveyance shall be deemed to
be made, with
respect to the Cut-off Date Loan Balances, as of the Closing Date,
subject to
the receipt by the Seller of consideration therefor as provided
herein under
clause (b) of Section 2.2.
(b) In connection with such conveyance, the Seller further agrees,
at its
own expense, on or prior to the Closing Date to indicate in its
books and
records that the Home Loans have been sold to the Purchaser
pursuant to this
Agreement and to deliver to the Purchaser true and complete lists
of all of the
Home Loans specifying for each Home Loan (i) its account number and
(ii) its
Cut-off Date Loan Balance. Such lists, which form part of the Home
Loan
Schedule, shall be marked as Exhibit A to this Agreement and are
hereby
incorporated into and made a part of this Agreement.
(c) In connection with such conveyance by the Seller, the Seller
shall on
behalf of the Purchaser deliver to, and deposit with the Custodian,
on or before
the Closing Date, the following documents or instruments with
respect to each
Home Loan:
(i) the original Mortgage Note endorsed without recourse to the
Indenture Trustee and showing an unbroken chain of endorsement from
the
originator thereof to the Person endorsing it or, with respect to
any Home
Loan as to which the original Mortgage Note has been permanently
lost or
destroyed and has not been replaced, a Lost Note Affidavit from the
related
seller or Residential Funding Corporation stating the original
Mortgage
Note was lost, misplaced or destroyed together with a copy of such
Note;
(ii) the original Mortgage, noting the presence of the MIN of the
Home
Loan and language indicating that the Home Loan is a MOM Loan if
the Home
Loan is a MOM Loan, with evidence of recording indicated thereon,
or, if
the original Mortgage has not yet been returned from the public
recording
office, a copy of the original Mortgage with evidence of recording
indicated thereon;
(iii) unless the Home Loan has been recorded in the name of MERS(R)
System, the assignment (which may be included in one or more
blanket
assignments if permitted by applicable law) of the Mortgage
recorded to
"[__________]. as indenture trustee" c/o the Seller at an address
specified
by the Seller;
2
(iv) originals of any intervening assignments of the Mortgage, with
evidence of recording noted thereon or attached thereto, or a copy
of such
original intervening assignment with evidence of recording
indicated
thereon; and
(v) a true and correct copy of each assumption, modification,
consolidation or substitution agreement, if any, relating to the
Home Loan.
Within the time period for the review of each Mortgage File set
forth in
Section 2.03 of the Custodial Agreement, if a defect or omission in
any Mortgage
File is discovered which may materially and adversely affect the
value of the
related Home Loan, or the interests of the Indenture Trustee (as
pledgee of the
Home Loans), the Noteholders or the Certificateholders in such Home
Loan,
including the Seller's failure to deliver any document required to
be delivered
to the Custodian on behalf of the Indenture Trustee (provided that
a Mortgage
File will not be deemed to contain a defect for an unrecorded
assignment under
clause (iii) above if the Seller has submitted such assignment for
recording or
if such assignment is not required to be recorded pursuant to the
terms of the
following paragraph), the Seller shall cure such defect, repurchase
the related
Home Loan at the Repurchase Price or substitute an Eligible
Substitute Loan for
the related Home Loan upon the same terms and conditions set forth
in Section
3.1 hereof for breaches of representations and warranties as to the
Home Loans.
As set forth in Section 2.03 of the Custodial Agreement, the
Custodian shall
deliver to the Indenture Trustee a certificate (the "Interim
Certification") to
the effect that all documents required to be delivered pursuant to
this
Subsection 2.1(c) have been executed and received and that such
documents relate
to the Home Loans identified on the Home Loan Schedule, except for
any
exceptions listed on Schedule B attached to such Interim
Certification.
Within 60 days after the receipt by the Master Servicer of the
recording
information, the Seller at its own expense shall complete and
submit for
recording in the appropriate public office for real property
records each of the
assignments referred to in clause (iii) above. While such
assignment to be
recorded is being recorded, the Custodian shall retain a photocopy
of such
assignment. If any assignment is lost or returned unrecorded to the
Custodian
because of any defect therein, the Seller is required to prepare a
substitute
assignment or cure such defect, as the case may be, and the Seller
shall cause
such assignment to be recorded in accordance with this paragraph.
In connection
with the assignment of any Home Loan registered on the MERS(R)
System, the
Seller further agrees that it will cause, at the Seller's own
expense, within 30
Business Days after the Closing Date, the MERS(R) System to
indicate that such
Home Loans have been assigned by the Seller to the Purchaser in
accordance with
this Agreement, by the Purchaser to the Trust in accordance with
the terms of
the Trust Agreement and by the Trust, to the Indenture Trustee for
the benefit
of the Noteholders, pursuant to the Indenture, by including (or
deleting, in the
case of Home Loans which are repurchased in accordance with this
Agreement) in
such computer files (a) the code in the field which identifies the
specific
Trust and (b) the code in the field "Pool Field" which identifies
the series of
the Notes issued in connection with such Home Loans. The Seller
further agrees
that it will not, and will not permit the Master Servicer to alter
the codes
referenced in this paragraph with respect to any Home Loan during
the term of
this Agreement, the Trust Agreement and the Indenture, unless and
until such
Home Loan is repurchased in accordance with the terms of this
Agreement.
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In the event that the Seller delivers to the Custodian on behalf of
the
Indenture Trustee any Mortgage Note or assignment in blank, the
Seller shall, or
shall cause the Custodian to, complete the endorsement of the
Mortgage Note and
the assignment in conjunction with the Interim Certification issued
by the
Custodian.
In instances where an original Mortgage or any original intervening
assignment of Mortgage was not, in accordance with clause (ii),
(iii), (iv) or
(v) above (or copies thereof as permitted in this Section 2.1(c)
above),
delivered by the Seller to the respective Custodian prior to or
concurrently
with the execution and delivery of this Agreement, the Seller will
deliver or
cause to be delivered the originals of such documents to such
Custodian promptly
upon receipt thereof.
The Purchaser hereby acknowledges its acceptance of all right,
title and
interest to the property, conveyed to it pursuant to this Section
2.1.
(d) The parties hereto intend that the transactions set forth
herein
constitute a sale by the Seller to the Purchaser of all the
Seller's right,
title and interest in and to the Home Loans and other property as
and to the
extent described above. In the event the transactions set forth
herein are
deemed not to be a sale, the Seller hereby grants to the Purchaser
a security
interest in all of the Seller's right, title and interest in, to
and under (i)
the Home Loans, all interest accruing thereon and all collections
in respect
thereof received on or after the Cut-off Date; (ii) property which
secured a
Home Loan and which has been acquired by foreclosure or deed in
lieu of
foreclosure; (iii) the interest of the Seller in any insurance
policies in
respect of the Home Loans; and (iv) all proceeds of the foregoing,
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 Delaware (which shall have been
submitted for
filing within 10 days following the Closing Date), any continuation
statements
with respect thereto and any amendments thereto required to reflect
a change in
the name or corporate structure of the Seller or the filing of any
additional
UCC-1 financing statements due to the change in the principal
office or
jurisdiction of incorporation of the Seller, as are necessary to
perfect and
protect the Purchaser's interests in each Home Loan and the
proceeds thereof.
Section 2.2. Payment of Purchase Price. (a) The "Purchase Price"
for the
Home Loans shall be an amount equal to $[__________] in immediately
available
funds, together with the Certificates.
(b) In consideration of the sale of the Home Loans from the Seller
to the
Purchaser on the Closing Date, the Purchaser shall pay to the
Seller on the
Closing Date by wire transfer of immediately available funds to a
bank account
designated by the Seller, the amount specified above in clause (a);
provided,
that such payment may be on a net funding basis if agreed by the
Seller and the
Purchaser.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1. Seller Representations and Warranties. The Seller
represents
and warrants to the Purchaser, as of the Closing Date (or if
otherwise specified
below, as of the date so specified):
(a) As to the Seller:
(i) The Seller is a corporation duly organized, validly existing
and
in good standing under the laws of the State of Delaware and has
the
corporate power to own its assets and to transact the business in
which it
is currently engaged. The Seller is duly qualified to do business
as a
foreign corporation and is in good standing in each jurisdiction in
which
the character of the business transacted by it or properties owned
or
leased by it requires such qualification and in which the failure
to so
qualify would have a material adverse effect on the business,
properties,
assets or condition (financial or other) of the Seller;
(ii) The Seller has the power and authority to make, execute,
deliver
and perform its obligations under this Agreement and all of the
transactions contemplated under this Agreement, and has taken all
necessary
corporate action to authorize the execution, delivery and
performance of
this Agreement. When executed and delivered, this Agreement will
constitute
the legal, valid and binding obligation of the Seller enforceable
in
accordance with its terms, except as enforcement of such terms may
be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement
of creditors' rights generally and by the availability of equitable
remedies;
(iii) The Seller is not required to obtain the consent of any other
Person or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority,
bureau or
agency in connection with the execution, delivery, performance,
validity or
enforceability of this Agreement, except for such consents,
licenses,
approvals or authorizations, or registrations or declarations, as
shall
have been obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement and the
performance
of the transactions contemplated hereby by the Seller will not
violate any
provision of any existing law or regulation or any order or decree
of any
court applicable to the Seller or any provision of the Certificate
of
Incorporation or Bylaws of the Seller, or constitute a material
breach of
any mortgage, indenture, contract or other agreement to which the
Seller is
a party or by which the Seller may be bound;
(v) No litigation or administrative proceeding of or before any
court,
tribunal or governmental body is currently pending, or to the
knowledge of
the Seller threatened, against the Seller or any of its properties
or with
respect to this Agreement or
5
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
in
general and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or
in
equity);
(vii) This Agreement constitutes a valid transfer and assignment to
the Purchaser of all right, title and interest of the Seller in, to
and
under the Home Loans, all monies due or to become due with respect
thereto,
and all proceeds of such Cut-off Date Loan Balances with respect to
the
Home Loans and such funds as are from time to time deposited in the
Custodial Account (excluding any investment earnings thereon) as
assets of
the Trust and all other property specified in the definition of
"Trust" as
being part of the corpus of the Trust conveyed to the Purchaser by
the
Seller;
(viii) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand or any
federal,
state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the
condition
(financial or other) or operations of the Seller or its properties
or might
have consequences that would materially adversely affect its
performance
hereunder; and
(ix) The Seller has not transferred the Home Loans to the Purchaser
with any intent to hinder, delay or defraud any of its creditors.
(b) As to the Home Loans:
(i) The information set forth in the Home Loan Schedule with
respect
to each Home Loan is true and correct in all material respects as
of the
date or dates respecting which such information is furnished;
(ii) [Reserved];
(iii) The related Mortgage Note and the Mortgage have not been
assigned or pledged, the Seller has good and marketable title
thereto and
the Seller is the sole owner and holder of the Home Loan free and
clear of
any and all liens, claims, encumbrances, participation interests,
equities,
pledges, charges or security interests of any nature and has full
right and
authority, under all governmental and regulatory bodies having
jurisdiction
over the ownership of the applicable Home Loans to sell and assign
the same
pursuant to this Agreement;
(iv) To the best of Seller's knowledge, there is no valid offset,
defense or counterclaim of any obligor under any Mortgage;
6
(v) To the best of Seller's knowledge, there is no delinquent
recording or other tax or fee or assessment lien against any
related
Mortgaged Property;
(vi) To the best of Seller's knowledge, there is no proceeding
pending
or threatened for the total or partial condemnation of the related
Mortgaged Property;
(vii) To the best of Seller's knowledge, there are no mechanics' or
similar liens or claims which have been filed for work, labor or
material
affecting the related Mortgaged Property which are, or may be liens
prior
or equal to, or subordinate with, the lien of the related Mortgage,
except
liens which are fully insured against by the title insurance policy
referred to in clause (xi);
(viii) As of the Cut-off Date, none of the Home Loans were 30 or
more
days delinquent;
(ix) For each Home Loan, the related Mortgage File contains each of
the documents and instruments specified to be included therein;
(x) Each Home Loan at the time it was made complied in all material
respects with applicable local, state and federal laws including
but not
limited to all applicable anti-predatory lending laws and usury
laws;
(xi) A policy of title insurance in the form and amount required by
the Program Guide was effective as of the closing of each Home Loan
and
each such policy is valid and remains in full force and effect, and
a title
search or other assurance of title customary in the relevant
jurisdiction
was obtained with respect to each Home Loan as to which no title
insurance
policy or binder was issued;
(xii) None of the Mortgaged Properties is a mobile home that is
permanently attached to its foundation and none of the Mortgaged
Properties
are manufactured housing units that are not permanently attached to
their
foundation;
(xiii) Approximately [____]% of the Cut-off Date Loan Balance of
the
Home Loans are secured by Mortgaged Properties located in Ohio;
(xiv) Approximately [____]% of the Home Loans by Cut-Off Date Loan
Balance, had a Combined Loan-to-Value Ratio in excess of 100%;
(xv) None of the mortgage loans in the mortgage pool are loans
that,
under applicable state or local law in effect at the time of
origination of
the loan, are referred to as (1) "high cost" or "covered" loans or
(2) any
other similar designation if the law imposes greater restrictions
or
additional legal liability for residential mortgage loans with high
interest rates, points and/or fees;
