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RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Purchaser,
and
RESIDENTIAL FUNDING CORPORATION
as Seller
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HOME LOAN PURCHASE AGREEMENT
Dated as of June 1, 2005
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
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Section 1.1.
Definitions................................................................1
ARTICLE II
SALE OF HOME LOANS AND RELATED PROVISIONS
Section 2.1. Sale of Home
Loans.........................................................2
Section 2.2. Payment of Purchase
Price..................................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.1. Seller Representations
and Warranties......................................5
ARTICLE IV
SELLER'S COVENANTS
Section 4.1. Covenants of the
Seller...................................................12
ARTICLE V
SERVICING
Section 5.1.
Servicing.................................................................13
ARTICLE VI
LIMITATION ON LIABILITY OF THE SELLER
Section 6.1. Limitation on
Liability of the Seller.....................................13
ARTICLE VII
TERMINATION
Section 7.1.
Termination...............................................................13
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1.
Amendment.................................................................13
Section 8.2. GOVERNING
LAW.............................................................14
Section 8.3.
Notices...................................................................14
Section 8.4. Severability of
Provisions................................................14
Section 8.5. Relationship of
Parties...................................................15
Section 8.6.
Counterparts..............................................................15
Section 8.7. Further
Agreements........................................................15
Section 8.8. Intention of the
Parties..................................................15
Section 8.9. Successors and
Assigns; Assignment of This Agreement......................15
Section 8.10.
Survival..................................................................16
Exhibit A Home Loan
Schedule
Exhibit B Standard
& Poor's Glossary For File Format For LEVELS(R) Version 5.6
Revised
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This HOME LOAN PURCHASE AGREEMENT (this "Agreement" or "Home
Loan
Purchase Agreement"), dated as of June 1, 2005,
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 cash
proceeds of 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 June 29, 2005 (the "Indenture"), between Home Loan Trust
2005-HI2, 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.
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ARTICLE II
SALE OF HOME LOANS AND RELATED PROVISIONS
Section 2.1. Sale of Home Loans.
(a) The Seller, by
the execution and delivery of this Agreement, does hereby
sell, assign, set
over, and otherwise convey to the Purchaser, without
recourse, all of its
right, title and interest in, to and under the
following, and
wherever located: (i) the Home Loans, all interest
accruing thereon and
all collections in respect thereof received on or
after the Cut-off
Date; (ii)
property which secured a Home Loan and
which has been acquired by foreclosure or deed in lieu of foreclosure;
(iii) the interest of the Seller in any insurance policies in
respect of
the Home Loans; and (iv) all proceeds of the foregoing.
Such conveyance
shall be deemed
to be made,
with respect to the Cut-off Date Loan
Balances, as of the
Closing Date, subject
to the receipt by the Seller
of consideration therefor as provided herein under clause (b) of
Section
2.2.
(b) In connection
with such conveyance,
the Seller further
agrees, at its
own expense,
on or prior to the
Closing Date to
indicate in its books
and records that the Home Loans have been sold to the Purchaser
pursuant
to this Agreement
and to deliver to the
Purchaser true and complete
lists of all of the Home Loans specifying for each Home Loan (i) its
account number and (ii) its Cut-off Date Loan Balance. Such lists,
which
form part of the Home
Loan Schedule,
shall be marked as
Exhibit A to
this Agreement and are hereby incorporated into and made a part
of this
Agreement.
(c) In connection
with such conveyance by the Seller,
the Seller shall
on
behalf of the Purchaser deliver to, and deposit with the
Custodian, on
or before the Closing Date, the following documents or instruments with
respect to each Home Loan:
(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
with evidence of recording thereon, or a copy of
the original Mortgage with evidence of recording thereon;
(iii) assignments (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;
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(iv) originals of any
intervening
assignments of the Mortgage, with evidence
of recording thereon, or a copy of such original intervening
assignment
with evidence of recording indicated thereon; and
(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 Mortgage File set
forth in Section 2.03 of the Custodial
Agreement, if a defect or omission in any
Mortgage 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 or the
Certificateholders 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 Mortgage
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 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.
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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 the Home Loans
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 Minnesota (which shall have been
submitted for filing as of 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
$239,856,490.01 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.
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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;
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(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;
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(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 Mortgage 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 8.3% of the Cut-off Date Loan Balance of the Home Loans
are secured by Mortgaged Properties located in Ohio.
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(xiv) Approximately 93.39% 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,
