EXHIBIT 10.1
EXECUTION
HOMEBANC MORTGAGE
CORPORATION,
SELLER
and
HMB ACCEPTANCE CORP.,
DEPOSITOR
MORTGAGE LOAN PURCHASE
AGREEMENT
Dated as of March 1,
2007
HomeBanc Mortgage Trust
2007-1
(Mortgage Pass-Through Certificates)
TABLE OF CONTENTS
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Section 1.
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Sale and
Purchase of Mortgage Loans.
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2
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Section 2.
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Purchase Price
of Mortgage Loans.
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2
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Section 3.
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Transfer of the
Mortgage Loans.
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2
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Section 4.
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Representations
and Warranties of the Seller.
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4
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Section 5.
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Covenants of
the Seller.
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6
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Section 6.
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Cure,
Repurchase and Substitution Obligations.
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6
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Section 7.
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Conditions to
Obligation of the Depositor.
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8
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Section 8.
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Mandatory
Delivery; Grant of Security Interest.
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9
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Section 9.
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Indemnification.
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10
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Section 10.
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Notices.
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11
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Section 11.
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Severability of
Provisions.
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12
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Section 12.
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Governing
Law.
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13
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Section 13.
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Agreement of
the Seller.
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13
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Section 14.
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Survival.
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13
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Section 15.
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Assignment;
Third Party Beneficiaries.
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13
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Section 16.
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Miscellaneous.
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13
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Section 17.
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Request for
Opinions.
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15
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Schedule I
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Mortgage Loan Schedule
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Exhibit A
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Representations and Warranties of HomeBanc
Mortgage Corporation
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217418 HomeBanc 2007-1
Mortgage Loan Purchase Agreement
i
MORTGAGE LOAN PURCHASE AGREEMENT
This MORTGAGE LOAN PURCHASE
AGREEMENT dated as of March 1, 2007 (this
“Agreement”), is by and between HMB Acceptance Corp., a
Delaware corporation (the “Depositor”) and HomeBanc
Mortgage Corporation, a Delaware corporation (the
“Seller”).
RECITALS
(1) Schedule I attached hereto and
made a part hereof lists (I) one pool of conventional, first
lien, adjustable rate, residential mortgage loans, divided into
three loan groups, and (II) one pool of conventional, second lien,
fixed and adjustable rate, residential mortgage loans
(collectively, the “Mortgage Loans”) currently owned by
the Seller that the Seller desires to sell to the
Depositor.
(2) The Depositor desires to
purchase the Mortgage Loans from the Seller and intends immediately
thereafter to transfer the Mortgage Loans and any other assets
constituting the Trust Fund, and assign all its rights and delegate
all of its obligations under this Agreement, to HomeBanc Mortgage
Trust 2007-1 (the “Issuing Entity”) for the benefit of
the Certificateholders pursuant to the terms of a pooling and
servicing agreement (the “Pooling and Servicing
Agreement”) dated as of March 1, 2007, among the
Depositor, HomeBanc Mortgage Corporation, as Seller and as servicer
(in such capacity, the “Servicer”), Wells Fargo Bank,
N.A., as master servicer (in such capacity, the “Master
Servicer”) and as securities administrator (in such capacity,
the “Securities Administrator”), U.S. Bank National
Association, as trustee (in such capacity, the
“Trustee,” and Wilmington Trust Company, as Delaware
trustee.
(3) Pursuant to the terms of the
Pooling and Servicing Agreement, the HomeBanc Mortgage Trust
Mortgage Pass-Through Certificates evidencing 100% of the benefit
and ownership interest in the Trust Fund will be issued to the
Depositor, in consideration of the Depositor’s assignment of
the assets of the Trust Fund to the Trustee.
(4) The Certificates to be delivered
to the Depositor or its designee(s), registered in such names as
the Depositor shall designate, will be designated as the HomeBanc
Mortgage Trust 2007-1 Mortgage Pass-Through Certificates, Class
I-1A-1, Class I-1A-2, Class I-2A-1, Class I-2A-2, Class I-3A-1,
Class I-3A-2, Class II-A, Class I-B-1, Class I-B-2, Class I-B-3,
Class I-B-4, Class I-B-5, Class I-B-6, Class II-B, Class II-M-1,
Class II-M-2, Class I-1X, Class I-2X, Class I-3X, Class II-X and
Class R.
(5) Capitalized terms used and not
defined herein shall have the meanings assigned to them in the
Pooling and Servicing Agreement.
AGREEMENT
NOW THEREFORE, in consideration of
the mutual promises herein made and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
Section 1. Sale and Purchase
of Mortgage Loans.
(a) Subject to the terms and
conditions of this Agreement, the Seller hereby sells, transfers
and assigns to the Depositor on the date of issuance of the
Securities, which is expected to be on or about March 30, 2007
(the “Closing Date”), and the Depositor hereby
purchases, the Mortgage Loans having an aggregate principal balance
as of March 1, 2007 (the “Cut-off Date”), of
$300,008,828.09, including all related Mortgage Files and any
Insurance Proceeds, REO Property, Liquidation Proceeds and other
recoveries relating to the Mortgage Loans, and all income,
revenues, issues products, revisions, substitutions, replacements,
profits, rents and all cash and non-cash proceeds of the
foregoing.
217418 HomeBanc 2007-1
Mortgage Loan Purchase Agreement
(b) The Seller and the Depositor
have agreed upon which of the mortgage loans owned by the Seller
are to be purchased by the Depositor pursuant to this Agreement,
and the Seller has prepared, or has provided information to the
Depositor enabling the Depositor to prepare, Schedule I attached
hereto (“Schedule I”), setting forth information
with respect to the Mortgage Loans to be purchased by the Depositor
as of the Closing Date. The Seller shall, with the
Depositor’s consent, amend or modify, or provide information
to the Depositor enabling the Depositor to amend or modify
Schedule I on or prior to the Closing Date if necessary to
reflect the actual Mortgage Loans transferred by the Seller and
accepted by the Depositor on the Closing Date. Schedule I, as
so amended or modified, shall conform to the requirements of the
Depositor as set forth in this Agreement and to the definition of
“Mortgage Loan Schedule” under the Pooling and
Servicing Agreement, and shall be the definitive Mortgage Loan
Schedule attached as an exhibit to the Pooling and Servicing
Agreement.
Section 2. Purchase Price of
Mortgage Loans.
(a) On the Closing Date, as full
consideration for the Seller’s sale of the Mortgage Loans to
the Depositor, the Depositor shall deliver to the Seller cash equal
to $299,924,078.09.
(b) The Depositor or any assignee or
transferee of the Depositor (which may include the Issuer, acting
on behalf of the Noteholders) shall be entitled to all Monthly
Payments due after the Cut-off Date, and all curtailments or other
principal prepayments received with respect to the Mortgage Loans
paid by each borrower after the Cut-off Date, except that the
Depositor or any assignee or transferee of the Depositor will not
be entitled to any curtailments or other prepayments received on or
after the Cut-off Date but reflected in the aggregate Cut-off Date
Balance. All Monthly Payments due on or before the Cut-off Date and
collected on or after the Cut-off Date shall belong to the
Seller.
(c) Pursuant to the Pooling and
Servicing Agreement, the Depositor will transfer and assign all its
right, title and interest in and to the Mortgage Loans and any
other assets constituting the Trust Fund to the Issuing Entity in
consideration of the issuance of the Certificates to the Depositor
or its designee(s).
Section 3. Transfer of the
Mortgage Loans.
(a) Mortgage File . For
purposes of this Agreement, the “Mortgage File” will be
as defined in the Pooling and Servicing Agreement.
217418 HomeBanc 2007-1
Mortgage Loan Purchase Agreement
2
(b) Transfer of Ownership .
Upon the sale of any Mortgage Loans, the ownership of each Mortgage
Loan Document (as defined below) with respect thereto shall be
vested in the Depositor, and the ownership of all other records and
documents with respect thereto prepared by or which come into the
possession of the Seller shall immediately vest in the Depositor.
The Seller shall, upon the direction of the Depositor, promptly
deliver to U.S. Bank National Association (the
“Custodian”) or such other designee as the Depositor
may direct, any documents that come into its possession with
respect to such Mortgage Loans following such sale. Prior to such
delivery, the Seller shall hold any such documents for the benefit
of the Depositor, its successors and assigns.
(c) Delivery of Mortgage
Files . To the extent not previously delivered to the Depositor
or a designee of the Depositor, the Seller shall, not later than
two Business Days prior to the Closing Date, at the direction of
the Depositor, deliver to the Custodian, each of the mortgage loan
documents required to be included in the Mortgage File pursuant to
Section 2.01(b) of the Pooling and Servicing Agreement (the
“Mortgage Loan Documents”). The Mortgage Note for each
such Mortgage Loan shall be endorsed in blank or as otherwise
directed by the Depositor, and the Mortgage for each such Mortgage
Loan shall name the Depositor, the Custodian or such other party as
designated by the Depositor as mortgagee or beneficiary, as
appropriate, or be assigned in blank or as otherwise directed by
the Depositor.
Prior to the transfer and sale of
any Mortgage Loans, the Mortgage Loan Documents delivered to the
Custodian shall be held by the Custodian for the benefit of the
Seller and the possession by the Custodian of such Mortgage Loan
Documents will be at the will of the Seller and will be in a
custodial capacity only. Following the transfer and sale of any
Mortgage Loans from the Seller to the Depositor in accordance with
the terms and upon satisfaction of the conditions of this
Agreement, the Custodian will hold all Mortgage Loan Documents
delivered to it hereunder for the benefit of the Depositor, as its
agent and bailee. The Custodian will act as a custodian for the
receipt and custody of all Mortgage Files and, after the transfer
of any Mortgage Loans from the Depositor to the Issuer, the
Custodian will hold all Mortgage Loan Documents delivered to it
hereunder for the benefit of the Issuing Entity and on behalf of
the Certificateholders.
(d) Examination of Mortgage Loan
Documents: Acceptance of Mortgage Loans . To the extent not
previously delivered to the Depositor or a designee of the
Depositor, the Seller shall, prior to the Closing Date, either
(i) deliver to the Depositor or its designee in escrow, for
examination, the Mortgage Loan Documents pertaining to each
Mortgage Loan then being sold by it or (ii) make such Mortgage
Loan Documents available to the Depositor or its designee for
examination at the Seller’s offices or at such other place as
the Seller shall specify. Any such Mortgage Loan Documents so held
by the Seller and so made available to the Depositor or its
designee shall be held by the Seller and so made available solely
as a matter of convenience to the Depositor or its designee and in
lieu of delivering such Mortgage Loan Documents to the Depositor or
its designee. The Depositor, the Custodian or a designee of either
entity may review the Mortgage Loan Documents to verify that all
documents required to be included in each Mortgage File (as such
term has been defined in the Pooling and Servicing Agreement) are
so included.
217418 HomeBanc 2007-1
Mortgage Loan Purchase Agreement
3
Prior to the Closing Date, the
Seller shall cause the Custodian to review the documents delivered
pursuant to Section 3(c) hereof to ascertain that, as to each
Mortgage Loan listed on Schedule I, (i) all documents required
to be delivered by the Seller pursuant to Section 3(c) have
been received, (ii) such documents appear regular on their
face and relate to such Mortgage Loan and (iii) the
information on Schedule I accurately reflects the information
set forth in the corresponding Mortgage File, to the extent
required by Section 2.01 of the Pooling and Servicing
Agreement. An additional review shall be conducted by the Custodian
or its designee prior to the first anniversary of the Closing Date
to determine that all Mortgage Loan Documents required to be
included in the Mortgage File are included therein. If at any time
the Depositor or the Trustee, or the Custodian, discovers or
receives notice that any Mortgage Loan Document is missing or
defective in any material respect with respect to any Mortgage
Loan, the Seller shall correct or cure any such omission or defect
or, if such omission or defect materially impairs the value of the
Mortgage Loan, repurchase the defective Mortgage Loan or substitute
for such defective Mortgage Loan a Qualified Substitute Mortgage
Loan in accordance with and if permitted by the terms of
Section 6 hereof. At the time of such repurchase or
substitution, the Custodian shall release documents in its
possession relating to such Mortgage Loan to the Seller. The fact
that the Depositor, the Trustee or a designee of either entity has
conducted or has failed to conduct any partial or complete
examination of the Mortgage Loan Documents prior to the Closing
Date shall not affect the rights of the Depositor (or any assignee
or successor thereof) to demand repurchase or other relief as
provided herein.
(e) Recordation of Assignments of
Mortgage . Subject to the sale of the Mortgage Loans by the
Seller to the Depositor, the Depositor hereby authorizes and
instructs the Seller, and the Seller hereby agrees, to record all
Assignments required to be contained in the Mortgage File to the
extent required pursuant to Section 2.01 of the Pooling and
Servicing Agreement. All recording fees relating to the recordation
of the Assignments as described above shall be paid by the Seller.
With respect to any Non-MERS Mortgage Loans, if the Trustee does
not receive, within the time specified in the Pooling and Servicing
Agreement, evidence satisfactory to it of such recording with
respect to any Mortgage Loan to the extent required pursuant to
Section 2.01 of the Pooling and Servicing Agreement, the
Seller shall, in cooperation with the Trustee, correct or cure any
such omission or repurchase the affected Mortgage Loan within 90
days of such demand, which demand shall be made within the time
specified in the Pooling and Servicing Agreement (including any
such extensions provided for therein).
Section 4. Representations
and Warranties of the Seller .
The Seller hereby represents and
warrants to the Depositor as follows:
(a) The Seller is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware and has full power and authority (i) to
conduct its business as presently conducted by it and (ii) to
execute and deliver this Agreement and perform its obligations
under this Agreement. The Seller is and will remain in compliance
with the laws of each state in which any Mortgaged Property is
located to the extent necessary to perform its obligations in
respect of this Agreement.
(b) The execution and delivery of
this Agreement, the performance by the Seller of its obligations
hereunder and the consummation of the transactions contemplated
hereby have been
217418 HomeBanc 2007-1
Mortgage Loan Purchase Agreement
4
duly authorized by all necessary action on the
part of the Seller. This Agreement has been duly executed and
delivered by the Seller and constitutes a legal, valid and binding
obligation of the Seller, enforceable in accordance with its
respective terms subject to bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors’
rights generally and to general principles of equity and public
policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of
the provisions of this Agreement which purport to provide
indemnification from securities laws liabilities.
(c) The execution, delivery and
performance of this Agreement by the Seller, and the consummation
of the transactions contemplated hereby, will not (i) violate
or conflict with any law, rule, regulation, order, judgment, award,
administrative interpretation, injunction, writ, decree or the like
affecting the Seller or by which the Seller is bound or
(ii) result in a breach of or constitute a default (or an
event which, with notice or lapse of time, or both, would
constitute a default) under any indenture or other material
agreement to which the Seller is a party or by which the Seller is
bound, which in the case of either clause (i) or
(ii) will have a material adverse effect on the Seller’s
ability to perform its obligations under this Agreement.
(d) No authorization, consent,
approval, license, exemption or other action by or notice to or
registration or filing with any governmental authority or
administrative or regulatory body is required for either the
execution, delivery or performance of this Agreement by the Seller
or the consummation of the transactions contemplated hereby, except
such as shall have been made or obtained on or prior to the Closing
Date.
(e) There are no pending or, to the
best of the Seller’s knowledge, threatened actions,
proceedings or investigations against the Seller before any court,
governmental arbitrator or instrumentality which if determined
adversely to the Seller may reasonably be expected, individually or
in the aggregate, to (i) have a material and adverse affect on
the Seller’s ability to perform its obligations under this
Agreement or (ii) to affect the legality, validity or
enforceability of this Agreement.
(f) The Seller is solvent and the
sale of the Mortgage Loans will not cause the Seller to become
insolvent. The sale of the Mortgage Loans is not undertaken with
the intent to hinder, delay or defraud any of the Seller’s
creditors.
(g) The transfer of the Mortgage
Loans to the Depositor at the Closing Date will be treated by the
Seller for financial accounting and reporting purposes as a
sale.
(h) The Seller has not dealt with
any broker or agent or other Person who might be entitled to a fee,
commission or compensation in connection with the transaction
contemplated by this Agreement other than the Depositor and its
affiliates.
(i) The Seller is not in default
with respect to any order or decree of any court, regulation or
demand of any federal, state, municipal or governmental agency,
which default would materially and adversely affect the condition
(financial or other) or operations of the Seller or its properties
or the consequences of which would have a material adverse effect
on the Seller’s ability to perform its obligations under this
Agreement.
217418 HomeBanc 2007-1
Mortgage Loan Purchase Agreement
5
(j) The transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller
hereunder are not subject to the bulk transfer laws or any similar
statutory provisions in effect in any applicable
jurisdiction.
(k) The transactions contemplated by
this Agreement are in the ordinary course of business of the
Seller.
(l) Each of the representations and
warranties set forth in Exhibit A hereto is true and correct with
respect to the Mortgage Loans as of the Closing Date.
Section 5. Covenants of the
Seller.
The Seller hereby covenants with the
Depositor as follows:
(a) On or before the Closing Date,
the Seller shall take all steps required of it to effectuate the
transfer of the Mortgage Loans to the Issuer, as transferee of the
Depositor, free and clear of any lien, charge or
encumbrance.
(b) The Seller shall use its best
efforts to make available to counsel for the Depositor in executed
form each of the documents listed in Section 7(b) below no
later than two Business Days before the Closing Date, it being
understood that such documents are to be released and delivered
only on the closing of the transaction contemplated hereby and the
sale of the Securities.
(c) The Seller shall deliver or
cause to be delivered to the Depositor (i) an Opinion of
Counsel as to various corporate matters substantially in a form
satisfactory to the Depositor and (ii) such other Opinions of
Counsel, if any, as are required by any Rating Agency for the
issuance of the ratings on the Certificates specified in
Section 7(d) below.
Section 6. Cure, Repurchase
and Substitution Obligations.
(a) Each of the representations and
warranties of the Seller contained herein shall survive the
purchase by the Depositor of any of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive
or qualified endorsement on the Mortgage Notes and notwithstanding
subsequent termination of this Agreement or the Pooling and
Servicing Agreement. The representations and warranties shall not
be impaired by any review and examination of Mortgage Loan
Documents or other documents evidencing or relating to the Mortgage
Loans or any failure on the part of the Depositor to review or
examine such documents and shall inure to the benefit of any
assignee, transferee or designee of the Depositor, including the
Issuer for the benefit of the Certificateholders and the Custodian.
With respect to the representations and warranties contained herein
that are made to the best of the Seller’s knowledge or as to
which the Seller has no knowledge, if it is discovered by the
Seller, the Depositor, the Custodian or the Trustee that the
substance of any such representation and warranty is inaccurate and
such inaccuracy materially and adversely affects the value of the
related Mortgage Loan, then notwithstanding the Seller’s
knowledge or lack of knowledge with respect to the inaccuracy of
such representation and warranty at the time it was made, the
Seller shall take the action described in the following paragraph
in respect of such Mortgage Loan.
217418 HomeBanc 2007-1
Mortgage Loan Purchase Agreement
6
(b) Upon discovery or receipt of
notice by the Seller, the Depositor, the Trustee or the Custodian
of any missing or materially defective document in any Mortgage
File, or a breach of any of the Seller’s representations and
warranties set forth in Section 4 hereof with respect to any
Mortgage Loan, which in any of the foregoing cases materially and
adversely affects the value of any Mortgage Loan or the interest
therein of the Depositor, the Trustee or the Certificateholders,
the party discovering or receiving notice of such missing or
materially defective document, breach, or default shall give prompt
written notice to the others. Upon its discovery or its receipt of
notice of any such missing or materially defective document, breach
or default (the “Defect Discovery Date”), the Seller
shall either (a) within 90 days of discovery or receipt of
such notice, provide the Custodian with such missing documents or
cure such defect, breach or default, in all material respects or
(b) within 90 days of such discovery or receipt of such
notice, either repurchase the affected Mortgage Loan at the
purchase price therefor or cause the removal of such Mortgage Loan
from the Trust Fund (in which case it shall become a Deleted
Mortgage Loan) and substitute therefor one or more Qualified
Substitute Mortgage Loans as defined in the Pooling and Servicing
Agreement; provided, however , that any such substitution
shall occur within two years of the Closing Date. The Trustee or
its designee shall amend the Mortgage Loan Schedule to reflect the
withdrawal of any Mortgage Loan from the terms of this Agreement
and the Pooling and Servicing Agreement and the addition, if any,
of a Qualified Substitute Mortgage Loan. In order to effect a
substitution pursuant to this Section, the Seller will deliver
(i) to the Custodian each of the Mortgage Loan Documents
required to be contained in the Mortgage File with respect to the
Substitute Mortgage Loan(s) and (ii) if the aggregate
Scheduled Principal Balance on the date of substitution of the
Qualified Substitute Mortgage Loan(s) is less than the aggregate
Scheduled Principal Balance of the Deleted Mortgage Loan(s) (after
application of Monthly Payments due in the month of substitution),
to the Issuing Entity cash in an amount equal to such substitution
adjustment amount. Any repurchase pursuant to this Section shall be
accomplished by the delivery into the Custodial Account, or at the
direction of the Depositor, on (or determined as of) the last day
of the calendar month in which such repurchase is made, of the
purchase price for the Mortgage Loans to be repurchased.
(c) In addition to such repurchase
or substitution obligation, the Seller shall indemnify the
Depositor and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees
and related costs, judgments, and other costs and expenses
resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Seller’s
representations and warranties contained in this Agreement. It is
understood and agreed that the obligations of the Seller set forth
in this Section 6 to cure, substitute for or repurchase a
defective Mortgage Loan and to indemnify the Depositor as provided
in this Section 6 constitute the sole remedies of the
Depositor respecting a breach of the foregoing representations and
warranties.
(d) The obligations of the Seller
set forth in this Agreement to cure or to repurchase a materially
defective Mortgage Loan or to substitute a Qualified Substitute
Mortgage Loan for such Mortgage Loan and to indemnify the Depositor
and others as provided in thi