RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Purchaser,
and
RESIDENTIAL FUNDING COMPANY, LLC
as Seller
________________
HOME LOAN PURCHASE AGREEMENT
Dated as of March 1, 2007
________________
TABLE OF CONTENTS
Page
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
This HOME LOAN
PURCHASE
AGREEMENT
(this
"Agreement"
or "Home Loan Purchase
Agreement"),
dated as of
March 1, 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 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 March 30, 2007 (the "Indenture"),
between Home Loan Trust 2007-HI1,
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 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 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 "LaSalle 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 (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,
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 $257,532,198 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 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
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
9.0% of the
Cut-off
Date
Loan
Balance
of the
Home
Loans
are
secured
by
Mortgaged
Properties located in Ohio;
(xiv)
Approximately
93.2% 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;
(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
financing
statements
in
accordance with the terms of this Agreement;
(xviii)
Each
Mortgage
is
substantially
similar to one
another
and
constitutes
a legal,
valid and
binding
obligation of the related
Mortgagor
enforceable in accordance with its terms except as may be limited
by
bankruptcy, insolvency or similar laws affecting generally the
enforcement of creditor's rights;
(xix)
To the best of Seller's
knowledge,
the physical
property
subject to each
Mortgage is free of material
damage and is in good r
