EXHIBIT 10.1
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FORM OF HOME LOAN PURCHASE AGREEMENT
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Purchaser,
and
RESIDENTIAL FUNDING COMPANY, LLC
as Seller
________________
HOME LOAN PURCHASE AGREEMENT
Dated as of [__________], 20[__]
________________
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TABLE OF CONTENTS
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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 5.7
Revised
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This HOME
LOAN PURCHASE AGREEMENT (this "Agreement" or "Home Loan
Purchase
Agreement"), dated as
of [__________],
20[__], 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 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 [___________
___], 20[__] (the
"Indenture"),
between
Home Loan Trust 200[__]-[__], as issuer, and [_____________________],
as
indenture trustee,
which is incorporated by reference herein. All other
capitalized terms used herein shall have the meanings specified
herein.
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ARTICLE II
SALE OF HOME LOANS AND RELATED PROVISIONS
Section
2.1. Sale of Home
Loans. (a) The Seller,
by the execution and
delivery of this Agreement, does hereby sell, assign, set over, and otherwise
convey to the Purchaser, without recourse, all of its
right, title and interest
in, to and under the following, and wherever located: (i) the Home Loans, all
interest accruing
thereon and all collections in respect thereof received on or
after the Cut-off Date; (ii) property which secured a Home Loan and
which has
been acquired by foreclosure or deed in lieu of foreclosure;
(iii) the interest
of the Seller in any insurance policies in respect of the Home
Loans; and (iv)
all proceeds of the foregoing. Such conveyance shall be deemed to
be made, with
respect to the Cut-off Date Loan Balances, as of the Closing Date,
subject to
the receipt by the Seller of consideration therefor as provided herein under
clause (b) of Section 2.2.
(b) In
connection with such conveyance, the Seller further agrees, at
its
own expense,
on or prior to the
Closing Date to indicate in its books and
records that the Home
Loans have been sold to the Purchaser pursuant to this
Agreement and to deliver to the Purchaser true and complete lists of all of
the
Home Loans specifying
for each Home Loan (i)
its account
number and (ii)
its
Cut-off Date
Loan Balance. Such lists, which form part of the Home Loan
Schedule, shall
be marked as Exhibit A to this Agreement and are 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 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 for the use and benefit
of the
Noteholders),
(2) with respect to each MOM Loan, deliver to and deposit
with the Custodian,
the documents or
instruments described
in clauses (i) and (v) below, (3) with
respect to each
Home Loan that is not a MOM Loan but is registered on the
MERS(R) System,
deliver to and deposit
with the Custodian,
the documents or
instruments described in clauses (i), (iv) and (v) below and (4)
with respect to
each Home Loan that is not a MOM Loan and is not
registered
on the MERS(R)
System, deliver to and deposit with the Custodian, the documents or instruments
described in clauses (i), (iii), (iv) and (v) below.
(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 Company,
LLC 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
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has not
yet been returned from the public recording office, a copy of the
original
Mortgage with evidence of recording indicated thereon.
(iii) 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.
(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.
(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 Custodial File set forth in
Section 2.03
of the Custodial Agreement, if a defect or omission in any
Custodial File is discovered which may materially and adversely
affect the value
of the related Home Loan, or the interests of the Indenture
Trustee (as
pledgee
of the Home Loans),
the Noteholders, the Certificateholders or the Credit
Enhancer in such Home
Loan, including
the Seller's failure to deliver any
document required to
be delivered to the
Custodian on behalf of the Indenture
Trustee (provided
that a 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 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
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(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.
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 legal 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 organization
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
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above in clause (a);
provided, that such
payment may be on a net funding basis
if agreed by the Seller and the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section
3.1. Seller Representations and Warranties. The Seller represents
and warrants to the Purchaser, as of the Closing Date (or if
otherwise specified
below, as of the date so specified):
(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 is
or will be in
compliance with the
laws of
each
state in which any
Mortgaged Property is located to the extent
necessary
to ensure the enforceability of each mortgage loan in
accordance
with the
terms of this Agreement;
(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,
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
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;
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(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;
(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;
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(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 Custodial 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
[________________];
(xiv) Approximately
[___]% of the Home
Loans by Cut-Off Date
Loan
Balance,
had a Combined Loan-to-Value Ratio in excess of 100%;
(xv) Approximately [___]% 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;
(xvi) None of the proceeds of any Home Loan were used to finance
the
purchase
of single premium credit insurance policies;
(xvii) The Seller will
submit for f
