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HOME LOAN PURCHASE AGREEMENT

Mortgage Loan Purchase Agreement

HOME LOAN PURCHASE AGREEMENT | Document Parties: RESIDENTIAL FUNDING COMPANY, LLC | Residential Funding Mortgage Securities II, Inc | Wells Fargo Bank, NA You are currently viewing:
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RESIDENTIAL FUNDING COMPANY, LLC | Residential Funding Mortgage Securities II, Inc | Wells Fargo Bank, NA

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Title: HOME LOAN PURCHASE AGREEMENT
Governing Law: New York     Date: 1/11/2007

HOME LOAN PURCHASE AGREEMENT, Parties: residential funding company  llc , residential funding mortgage securities ii  inc , wells fargo bank  na
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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

----

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 are fully insured agai


 
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