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RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Purchaser,
and
RESIDENTIAL FUNDING COMPANY, LLC
as Seller
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HOME LOAN PURCHASE AGREEMENT
Dated as of December 1, 2006
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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 5.7 Revised
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This HOME LOAN PURCHASE AGREEMENT (this "Agreement" or "Home Loan
Purchase
Agreement"), dated as of December 1, 2006, is made between
Residential Funding
Company, LLC (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 December 28, 2006 (the "Indenture"),
between Home Loan
Trust 2006-HI5, as issuer, and U.S. 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 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
"U.S. Bank National Association 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 $247,350,070.81 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 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,
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
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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;
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(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
