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RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Purchaser,
and
RESIDENTIAL FUNDING CORPORATION
as Seller
________________
HOME LOAN PURCHASE AGREEMENT
Dated as of September 1, 2006
________________
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TABLE OF CONTENTS
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.......................................14
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
This
HOME
LOAN
PURCHASE
AGREEMENT
(this
"Agreement"
or
"Home
Loan
Purchase
Agreement"),
dated as of September 1, 2006, is made between
Residential
Funding Corporation
(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
September
28,
2006
(the
"Indenture"),
between Home Loan Trust 2006-HI4,
as issuer, and JPMorgan Chase Bank, N.A., 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)
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
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)
The assignment (which may be included in one or more blanket
assignments if permitted
by applicable law) of the Mortgage recorded to "JPMorgan Chase
Bank, N.A. 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 (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
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
$272,486,184.31
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.
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 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;
(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
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
7.5% of the Cut-off
Date Loan Balance of the Home Loans are secured by
Mortgaged Properties located in Ohio;
(xiv)
Approximately
86.12% of the Home Loans by Cut-Off Date Loan
Balance,
had a Combined
Loan-to-Value Ratio in excess of 100%;
(xv)
Approximately
0.1% 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 filing or cause to be submitted for
filing UCC-1
fin
