HOME LOAN PURCHASE AGREEMENT

Mortgage Loan Purchase Agreement

You are currently viewing:

This Mortgage Loan Purchase Agreement involves

RESIDENTIAL FUNDING MORTGAGE SECURITIES II INC | RESIDENTIAL FUNDING CORPORATION

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.

Title: HOME LOAN PURCHASE AGREEMENT
Date: 11/10/2005

EXECUTION COPY

RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.

as Purchaser,

and

RESIDENTIAL FUNDING CORPORATION

as Seller

HOME LOAN PURCHASE AGREEMENT

Dated as of October 1, 2005

<PAGE>

<TABLE>

TABLE OF CONTENTS

Page

<S> <C>

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.......................................................11

Section 4.1. Covenants of the Seller..........................................11

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.................................................12

Section 8.1. Amendment........................................................12

Section 8.2. GOVERNING LAW....................................................12

Section 8.3. Notices..........................................................13

Section 8.4. Severability of Provisions.......................................13

Section 8.5. Relationship of Parties..........................................13

Section 8.6. Counterparts.....................................................13

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.........................................................14

Exhibit A Home Loan Schedule

Exhibit B Standard & Poor's Glossary For File Format For LEVELS(R) Version 5.6c Revised

</TABLE>

<PAGE>

This HOME LOAN PURCHASE AGREEMENT (this "Agreement" or "Home Loan

Purchase Agreement"), dated as of October 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 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 October 27, 2005 (the "Indenture"), between Home Loan Trust

2005-HI3, 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.

<PAGE>

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.

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, 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) unless the Home Loan has been recorded in the name of MERS(R) System,

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;

<PAGE>

(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; 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 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.

<PAGE>

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 $ 224,743507.64 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.

<PAGE>

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;

<PAGE>

(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;

<PAGE>

(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

SITE SEARCH

AGREEMENTS / CONTRACTS

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates