MORTGAGE LOAN PURCHASE
AGREEMENT
This MORTGAGE LOAN PURCHASE
AGREEMENT (this “ Agreement ”), dated
as of July 1, 2006, is by and between DLJ MORTGAGE CAPITAL,
INC. , as seller (“ Seller ”), and
BANK OF AMERICA, NATIONAL ASSOCIATION , as
purchaser (“ Purchaser ”).
WITNESSETH:
WHEREAS , Seller is in the business of dealing in
residential first lien mortgage loans; and
WHEREAS , Seller wishes to sell all right, title and
interest in and to certain mortgage loans with an aggregate
principal balance as of the Cut-Off Date (as defined below) of the
amount set forth in a letter agreement by and between the Seller
and the Purchaser (the “ Purchase Price and Terms
Letter ”), exclusive of the servicing rights related
thereto, in accordance with the terms and conditions of this
Agreement; and
WHEREAS , Purchaser wishes to purchase all right, title
and interest in and to such mortgage loans, exclusive of the
servicing rights related thereto, in accordance with the terms and
conditions of this Agreement and the Purchase Price and Terms
Letter, and
WHEREAS, following its purchase of the mortgage loans
from Seller, Purchaser may desire to sell some or all of the
mortgage loans to one or more purchasers as a Whole Loan Transfer
or a Pass-Through Transfer.
NOW, THEREFORE , in consideration of the mutual covenants made
herein and for other good and valuable consideration the
sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
DEFINITIONS
Whenever used herein, the following words and
phrases, unless the context otherwise requires, shall have the
following meanings:
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Adjustable
Rate Mortgage Loan . A
Mortgage Loan that bears a rate of interest that changes in
accordance with the terms of the related Mortgage Note.
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Adjustment
Date . As to each
Adjustable Rate Mortgage Loan, a Due Date, as set forth in the
related Mortgage Note, on which date an adjustment to the Mortgage
Interest Rate of such Mortgage Loan becomes effective.
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Agreement . This Mortgage Loan Purchase Agreement,
including all exhibits, attachments and schedules hereto, and all
amendments hereof and supplements hereto.
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ALTA .
The American Land Title Association and any successor
thereto.
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Appraised
Value . The amount set
forth in an appraisal made by or for the mortgage originator in
connection with its origination of each Mortgage Loan or, with
respect to certain Mortgage Loans made for the purpose of
refinancing existing mortgage debt, the amount set forth in the
appraisal made by or for the originator in connection with its
origination of such mortgage debt.
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Assignment
of Mortgage . An
assignment of the Mortgage, notice of transfer or equivalent
instrument in recordable form sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the Purchaser, which
assignment, notice of transfer or equivalent instrument may be in
the form of one or more blanket assignments covering Mortgages
secured by Mortgaged Properties in the same county or other
recording jurisdiction, where permitted by law.
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Assignment
of Proprietary Lease .
With respect to a Cooperative Loan, the assignment or mortgage of
the related Cooperative Lease from the Mortgagor to the originator
of the Cooperative Loan.
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Business
Day . Any day other than
(a) a Saturday or Sunday, (b) a day on which banking institutions
in the State of New York are authorized or obligated by law or by
executive order to be closed.
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Code .
The Internal Revenue Code of 1986, as amended, or any successor
statute thereto.
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Cooperative . A private, cooperative housing corporation
organized under the laws of, and headquartered in the state in
which the related premises are located, which owns or leases land
and all or part of a building or buildings located in any such
state, including apartments, spaces used for commercial purposes
and common areas therein and whose board of directors authorizes,
among other things, the sale of Cooperative Stock.
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Cooperative
Apartment . A dwelling
unit in a multi-dwelling building owned or leased by a Cooperative,
which unit the Mortgagor has an exclusive right to occupy pursuant
to the terms of a proprietary lease or occupancy
agreement.
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Cooperative
Lease . With respect to a
Cooperative Loan, the proprietary lease or occupancy agreement with
respect to the Cooperative Apartment occupied by the Mortgagor and
relating to the related Cooperative Stock, which lease or agreement
confers an exclusive right to the holder of such Cooperative Stock
to occupy such apartment.
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Cooperative
Loans . Any of the
Mortgage Loans made in respect of a Cooperative Apartment,
evidenced by a Mortgage Note and secured by (i) a Security
Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing
statements and (v) a stock power (or other similar instrument), and
ancillary thereto, a recognition agreement between the Cooperative
and the originator of the Cooperative Loan, each of which was
transferred and assigned to the Seller.
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Cooperative
Stock . With respect to a
Cooperative Loan, the single outstanding class of stock,
partnership interest or other ownership instrument in the related
Cooperative.
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Cooperative
Stock Certificate . With
respect to a Cooperative Loan, the stock certificate or other
instrument evidencing the related Cooperative Stock.
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Custodial
Agreement . The
agreement, dated as of July 1, 2006, among the Servicer, Bank of
America, National Association, as owner (the “Owner”),
and the Custodian, pursuant to which the Custodian shall hold the
Mortgage File documents for the benefit of the Owner.
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Custodian . U.S. Bank National Association, or its
successor in interest or assigns.
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Cut-Off
Date . July 1,
2006.
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Document
Exceptions . The
schedule, if any, attached to the Memorandum of Sale that sets
forth the exceptions to the Mortgage File with respect to one or
more Mortgage Loans on the Mortgage Loan Schedule.
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Due
Date . The first day of
each calendar month, which is the day on which the Monthly Payment
for each Mortgage Loan is due.
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Escrow
Account . The account
into which Escrow Payments are deposited by a Servicer as described
in the Servicing Agreement.
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Escrow
Payments . As defined in
the Servicing Agreement.
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Exception
Schedule . The schedule,
if any, attached to the Memorandum of Sale that sets forth
exceptions to the representations and warranties set forth in
Section 4.1 with respect to one or more Mortgage Loans on
the related Mortgage Loan Schedule.
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FHLMC . Freddie Mac, or its
successor-in-interest.
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FNMA .
Fannie Mae, or its successor-in-interest.
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GNMA .
The Government National Mortgage Association, or its
successor-in-interest.
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Index . The Index by reference to which the Mortgage
Interest Rate for any Mortgage Loan is calculated pursuant to the
terms of the related Mortgage Note, which Index shall be either (i)
One-Year CMT, which is the weekly average yield on United States
Treasury Securities adjusted to a constant maturity of one year, as
made available by the Federal Reserve Board, published in Federal
Reserve Statistical Release H.15(519) most recently available as of
45 days before the applicable Adjustment Date or (ii) Six-Month
LIBOR, which is the rate for six-month U.S. dollar denominated
deposits offered in the London interbank market as published in The
Wall Street Journal and most recently available as of the first
business day of the month immediately preceding the month of the
applicable Adjustment Date or (iii) as specified interest the
Memorandum of Sale.
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Insurers . Private mortgage guaranty insurers which are
(a) licensed to transact a mortgage guaranty insurance business in
the states where Mortgaged Properties for which they have written
Primary Insurance Policies are located and (b) approved by FHLMC or
FNMA.
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Loan-to-Value Ratio
(“LTV”) . The
original principal amount of a Mortgage Loan divided by the
Original Value.
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Margin . For each Adjustable Rate Mortgage Loan, the
applicable fixed per annum percentage rate specified in the
applicable Mortgage Note and designated as such in the Mortgage
Loan Schedule, which, when added to the applicable Index,
determines the Mortgage Interest Rate, subject to the restrictions
provided by the Mortgage Note.
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Memorandum
of Sale . A memorandum,
in the form attached hereto as Exhibit C , which evidences
the sale by the Seller to the Purchaser of the Mortgage Loans
pursuant to the terms of this Agreement.
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Monthly
Payment . The scheduled
payment of principal and interest on a Mortgage Loan which is due
on the applicable Due Date.
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Mortgage . The mortgage, deed of trust or other security
instrument evidencing the creation of a first lien security
interest in a fee simple estate in real property securing repayment
of the Mortgage Note.
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Mortgage
File . The mortgage
documents pertaining to a particular Mortgage Loan as set forth on
Exhibit A .
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Mortgage
Interest Rate . The rate
of interest determined pursuant to the Mortgage Note for the
related Mortgage Loan.
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Mortgage
Loan . A first lien
residential mortgage loan sold by Seller to Purchaser pursuant to
the terms and conditions of this Agreement and the Purchase Price
and Terms Letter.
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Mortgage
Loan Schedule . The
schedule of Mortgage Loans which shall be attached to the
Memorandum of Sale and shall set forth as to each applicable
Mortgage Loan the following information, among other
things:
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(i)
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the
Seller’s Mortgage Loan identifying number;
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(ii)
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the
Mortgagor’s first and last name;
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(iii)
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the street
address of the Mortgaged Property including the city, state and zip
code;
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(iv)
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a code
indicating whether the Mortgaged Property is
owner-occupied;
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(v)
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the number and
type of residential units constituting the Mortgaged
Property;
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(vi)
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the original
months to maturity or the remaining months to maturity from the
Cut-Off Date of the Mortgage Loan, in either case based on the
original amortization schedule and, if different, the maturity
expressed in the same manner but based on the actual amortization
schedule;
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(vii)
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with respect to
Adjustable Rate Mortgage Loans:
(a) the Margin,
and
(b) the
Mortgage Interest Rate, periodic cap, lifetime floor and lifetime
ceiling and, if applicable, the negative amortization
cap,
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(viii)
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the
Loan-to-Value Ratio of the Mortgage Loan at origination;
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(ix)
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Mortgage
Interest Rate of the Mortgage Loan as of the Cut-Off
Date;
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(x)
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the next date
on which the Monthly Payment on the Mortgage Loan is due, and the
date on which the first Monthly Payment was due on the Mortgage
Loan;
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(xi)
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the stated
maturity date of the Mortgage Loan;
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(xii)
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the amount of
the Monthly Payment as of the Cut-Off Date;
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(xiii)
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the last date
on which a payment was actually applied to the outstanding
principal balance of the Mortgage Loan;
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(xiv)
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the original
principal amount of the Mortgage Loan;
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(xv)
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the principal
balance of the Mortgage Loan as of the close of business on the
Cut-Off Date, after deduction of payments of principal due on or
before the Cut-Off Date whether or not collected;
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(xvi)
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the type of
Mortgage Loan ( i.e. , conventional, FHA loan, VA
loan);
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(xvii)
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a code
indicating the purpose of the Mortgage Loan ( i.e. ,
purchase, rate and term refinance, equity take-out
refinance);
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(xviii)
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a code
indicating the documentation style of the Mortgage Loan (
i.e. , full, alternative or reduced);
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(xix)
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a Primary
Mortgage Insurance Policy Insurer code, percent and policy number
(if applicable);
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(xx)
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the Appraised
Value of the Mortgaged Property;
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(xxi)
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the sale price
of the Mortgaged Property, if applicable;
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(xxii)
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a code
indicating if the Mortgage Loan is subject to a prepayment
penalty;
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(xxiii)
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if the Due Date
is other than the first day of the month, the Due Date;
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(xxiv)
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a credit score
or mortgage score;
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(xxv)
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a code
indicating the form of ownership (i.e., fee simple, leasehold or
co-op; and
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(xxvi)
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the Servicing
Fee applicable to such Mortgage Loan.
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With respect to the Mortgage Loans in the
aggregate, the Mortgage Loan Schedule shall set forth the following
information, as of the Cut-Off Date: (1) the number of
Mortgage Loans; (2) the current aggregate outstanding
principal balance of the Mortgage Loans; (3) the weighted
average mortgage interest rate of the Mortgage Loans; and
(4) the weighted average maturity of the Mortgage
Loans.
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Mortgage
Note . The note or other
instrument evidencing the Mortgagor’s obligation to repay the
amount of the Mortgage Loan, executed by the Mortgagor or its
authorized agent.
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Mortgaged
Property . The real
property, together with improvements thereto, securing the
indebtedness of the Mortgagor under the related Mortgage Loan, or,
in the case of a Cooperative Loan, the property described in the
definition of “ Cooperative Loan .”
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Mortgagor . The obligor(s) on a Mortgage Note.
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Opinion of
Counsel . A written
opinion of counsel, who may be an employee of the Seller or
Servicer, reasonably acceptable to Purchaser.
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Original
Value . With respect to
any Mortgage Loan other than a Mortgage Loan originated for the
purpose of refinancing an existing mortgage debt, the lesser of (a)
the Appraised Value of the Mortgaged Property at the time the
Mortgage Loan was originated or (b) the purchase price paid for the
Mortgaged Property by the Mortgagor. With respect to a Mortgage
Loan originated for the purpose of refinancing existing mortgage
debt, the Original Value shall be equal to the Appraised Value of
the Mortgaged Property at the time the Mortgage Loan was
originated.
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Pass-Through
Transfer . The sale or
transfer of some or all of the Mortgage Loans by Purchaser to a
trust to be formed as part of a publicly issued or privately placed
mortgage backed securities transaction.
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Person . Any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
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Primary
Mortgage Insurance Policy . A policy of primary mortgage insurance
(including all endorsements thereto) which complies with
substantially all of the requirements established by FNMA or FHLMC
for such policies.
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Purchase
Price . The product of
the Purchase Price Percentage and the aggregate scheduled principal
balance of the Mortgage Loans as of the Cut-Off Date after giving
effect to scheduled Monthly Payments due on or before the Cut-Off
Date, whether or not received
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Purchase
Price Percentage. As set
forth in the Memorandum of Sale.
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Purchaser . Bank of America, National
Association.
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REMIC . A “real estate mortgage investment
conduit” within the meaning of Section 860D of the
Code.
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REMIC
Provisions . Provisions
of the federal income tax law relating to a REMIC, which appear at
section 860A through 860G of Subchapter M of Chapter 1, Subtitle A
of the Code, and related provisions, and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in
effect from time to time.
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REO
Property . A Mortgaged
Property acquired by Servicer through a foreclosure or deed in lieu
of foreclosure, as described in the Servicing Agreement.
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Sale
Date . July 28,
2006.
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Security
Agreement . With respect
to a Cooperative Loan, the agreement or mortgage creating a
security interest in favor of the originator of the Cooperative
Loan in the related Cooperative Stock.
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Seller . DLJ Mortgage Capital, Inc. or its successor in
interest or assigns.
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Servicer . Wells Fargo Bank, N.A., or its successor in
interest or assigns, or a mortgage loan servicing institution
(including related servicing corporations and agents) to which
Servicer may assign servicing duties with respect to particular
Mortgage Loans, or any successor to Servicer under the Servicing
Agreement.
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Servicing
Agreement . That certain
Second Amended and Restated Master Seller’s Warranties and
Servicing Agreement by and between Purchaser and Servicer dated as
of May 1, 2006.
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Servicing
Fee . For each Mortgage
Loan, the fee provided pursuant to the Memorandum of Sale,
expressed as a per annum percentage of the outstanding principal
balance of such Mortgage Loan, payable monthly to the Servicer for
performing primary servicing functions with respect to such
Mortgage Loan; provided , that if no fee is provided by
the Memorandum of Sale, the Servicing Fee shall be the amount per
annum as set forth in the related Purchase Price and Terms
Letter.
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Whole Loan
Transfer . Any sale or
transfer of some or all of the Mortgage Loans by Purchaser to a
third party, which sale or transfer is not a Pass-Through
Transfer.
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ARTICLE II. CONVEYANCE AND
TRANSFER
Section 2.1
Conveyance and Transfer .
On the Sale Date, subject to, and upon the terms
and conditions of this Agreement, Seller shall sell, transfer,
assign and deliver to Purchaser, and Purchaser shall purchase, all
right, title and interest in and to the Mortgage Loans as well as
all remittances and other payments (other than Monthly Payments due
on or before the Cut-Off Date) received by Servicer in connection
with such Mortgage Loans after the Cut-Off Date.
On the Sale Date, the Mortgage File related to
each Mortgage Loan will be delivered to Custodian; provided, that
to the extent that any such documents have not been returned from
the applicable public recording office, a true certified copy of
the original thereof together with a certification that the
original has been delivered for recording in the appropriate public
recording office of the jurisdiction in which the Mortgaged
Property is located shall be delivered to the Custodian, for the
benefit of Purchaser. Seller shall, in connection with such
delivery:
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(a)
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with respect to
each mortgage loan that is not a Cooperative Loan:
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(i) cause the
related Mortgage Note to be endorsed either “Pay to the order
of U.S. Bank National Association, as custodian/trustee, without
recourse” or “Pay to the order of
__________________________, without recourse”; and
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(ii) assign to
either U.S. Bank National Association, as custodian/trustee, or
blank, the related Mortgage by an Assignment of Mortgage signed by
Seller or the originator of the Mortgage Loan, in either case
showing a complete chain of title from Seller or such originator
and in form and substance acceptable for recording (except with
respect to Assignments of Mortgage in blank which shall be
acceptable for recording upon insertion of the assignee’s
name).
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(b)
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and, with
respect to each Cooperative Loan:
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(i) cause the
related Mortgage Note to be endorsed to “Pay to the order of
U.S. Bank National Association, as custodian/trustee, without
recourse” or “Pay to the order of
__________________________, without recourse”;
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Pursuant to the Custodial Agreement, the
Custodian shall notify the Purchaser and the Seller if any document
or documents constituting a part of the Mortgage File are missing
or defective in respect of the items reviewed by it pursuant to the
Custodial Agreement. The Purchaser shall notify the Seller and the
Custodian of any such omission or defect which it finds in respect
of any Mortgage Loan. If such omission or defect materially and
adversely affect the interests of the Purchaser in the Mortgage
Loan, the Seller shall correct or cure such omission or defect
within 60 days from the date the Seller was notified of such
omission or defect and, if the Seller does not correct or cure such
omission or defect within such period, then the Seller shall
purchase such Mortgage Loan from the Purchaser within 10 days from
the expiration of such 60-day period by depositing in immediately
available funds the repurchase price for such Mortgage Loan to the
account designated by the Purchaser, calculated and payable in the
manner set forth in Section 4.2 . The Seller shall be
responsible for the initial and ongoing fees and expenses of the
Custodian so long as the Custodian is U.S. Bank National
Association or any other entity which acts as custodian for
mortgage loans held for sale by the Seller or which replaces the
initial Custodian at the direction of the Seller; provided,
however, that if the Custodian is terminated at the request or
direction of the Purchaser, the Purchaser shall be responsible for
the ongoing fees of any replacement Custodian..
Section 2.3
Due Diligence Examination .
Prior to the fifth Business Day preceding the
Sale Date, Purchaser shall have the right, during Seller’s
regular business hours without interrupting Seller’s
operations to review the documents and Seller’s books,
records and accounts with respect to such Mortgage Loans, including
all credit and underwriting information for the purpose of
determining that the Mortgage Loans comply with the terms and
conditions of this Agreement and the Purchase Price and Terms
Letter.
ARTICLE III.
CONSIDERATION
Section 3.1
Purchase Price .
On the Sale Date, Purchaser shall pay to the
Seller, by wire transfer of immediately available funds, the sum of
(i) the Purchase Price and (ii) accrued interest on the aggregate
scheduled principal balance of the Mortgage Loans, as of the
Cut-Off Date after giving effect to scheduled Monthly Payments due
on or before the Cut-Off Date, whether or not received, from the
Cut-Off Date through the day prior to the Sale Date at the weighted
average (by principal balance) of the Mortgage Interest Rates borne
by such Mortgage Loans as set forth in the applicable Memorandum of
Sale less the related Servicing Fees.
ARTICLE IV. REPRESENTATIONS
AND WARRANTIES
Section 4.1
Representations and Warranties of Seller .
Seller represents, warrants and covenants to
Purchaser that as of the Sale Date:
(i) Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware, and is qualified to transact business under the laws
of each state required by applicable law or is otherwise exempt
under applicable law from such qualification and no demand for such
qualification has been made upon Seller by any state;
(ii) Seller has all requisite corporate power,
authority and capacity to enter into this Agreement and to perform
the obligations required of it hereunder. This Agreement has been
duly authorized, validly executed and delivered by Seller and
(assuming the due authorization and execution of this Agreement by
Purchaser) constitutes a valid and legally binding agreement of
Seller enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization and similar laws, and by equitable
principles affecting the enforceability of the rights of creditors.
No consent, approval, authorization or order of any court,
regulatory body or governmental agency or body is required for the
execution, delivery and performance by Seller of, or compliance by
the Seller with this Agreement, the sale of the Mortgage Loans or
the consummation of the transactions contemplated by the
Agreement;
(iii) Neither the execution and delivery of this
Agreement, the sale of the Mortgage Loans to Purchaser, the
consummation of any other transaction contemplated herein, nor the
fulfillment of or compliance with the terms of this Agreement, will
conflict with or result in the breach of any term or provision of
the certificate of incorporation or by-laws of Seller or conflict
with, result in a material breach, violation or acceleration of or
constitute a material default under, the terms of any indenture or
other agreement or instrument to which Seller is a party or by
which it is bound, or any statute, order, judgment, governmental
rule or regulation applicable to Seller or any of its
properties;
(iv) Seller is not aware of any facts or
circumstances which will materially impair its ability to perform
its obligations under this Agreement;
(v) There is no action, suit, proceeding or
investigation pending or, to Seller’s knowledge, threatened,
that, if determined adversely to Seller, would materially and
adversely affect the sale of the Mortgage Loans by Seller pursuant
to this Agreement on the Sale Date, the execution, delivery or
enforceability of this Agreement, or the ability of Seller to
perform its obligations hereunder or which would have a material
adverse effect on the financial condition of Seller;
(vi) No consent, approval, authorization or
order of any court, regulatory body or governmental agency or body
is required for the execution, delivery and performance by Seller
of or compliance by Seller with this Agreement, the sale of the
Mortgage Loans or the consummation of the transactions contemplated
by this Agreement;
(vii) With respect to each Mortgage
Loan:
(a) The information with respect to such Mortgage
Loan set forth on the Mortgage Loan Schedule is complete, true
and correct.
(b) The Mortgage and the Mortgage Note is not
assigned or pledged to any Person and, immediately prior to the
transfer thereof to the Purchaser pursuant to
Section 2.1 , the Seller had good and marketable title
thereto. The Seller is the sole owner and holder of such Mortgage
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, subject
to no interest or participation of, or agreement with, any other
party, to sell and assign such Mortgage Loan pursuant to this
Agreement. Upon the transfer thereof to the Purchaser pursuant to
Section 2.1 , the Seller will have taken all actions
necessary on its part to be taken so that the Purchaser will have
good indefeasible title to, and will be sole owner of, the Mortgage
and the Mortgage Note, free and clear of any and all liens, claims,
encumbrances, participation interests, equities, pledges, charges,
or security interests of any nature.
(c) With respect to each Mortgage Loan (other than
a Cooperative Loan), (i) the Mortgage is a valid, subsisting and
enforceable first lien on the Mortgaged Property, including all
buildings, fixtures, installations and improvements to the
Mortgaged Property, and the Mortgaged Property is free and clear of
all encumbrances and liens having parity with or priority over the
first lien of the Mortgage except for (A) the lien of current
real property taxes and assessments not yet due and payable,
(B) covenants, conditions and restrictions, rights of way,
easements, mineral right reservations and other matters of public
record as of the date of recording of such Mortgage, such
exceptions generally being acceptable under prudent mortgage
lending standards and specifically reflected in the appraisal made
in connection with the origination of such Mortgage Loan or
specifically referred to in the mortgagee’s policy of title
insurance and (C) other matters to which like properties are
commonly subject that do not materially interfere with the value
(as determined by the Appraised Value), use, enjoyment or
marketability of the Mortgaged Property and (ii) there are no
security agreements, pledged accounts, chattel mortgages, or
equivalent documents related to the Mortgage.
(d) The terms of the Mortgage and the Mortgage Note
have not been impaired, waived, altered, or modified in any
respect, except by a written instrument which has been recorded, if
necessary, to protect the interest of the Purchaser, each of which
is a part of the Mortgage File and which has been delivered to the
Custodian. The substance of any such alteration or modification is
reflected on the Mortgage Loan Schedule and has been approved by
the issuer of any Primary Mortgage Insurance Policy.
(e) No instrument of release, waiver, alteration,
or modification has been executed in connection with such Mortgage
Loan, and no Mortgagor has been released, in whole or in part,
except in connection with an assumption agreement, which is part of
the Mortgage File and has been delivered to the Custodian, and the
terms of which are reflected in the Mortgage Loan Schedule and has
been approved by the issuer of any Primary Mortgage Insurance
Policy.
(f) There is no default, breach, violation, or
event of acceleration existing under the Mortgage or the Mortgage
Note and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute
such a default, breach, violation, or event of acceleration, and
neither the Seller, nor to the best of the Seller’s
knowledge, any prior seller or servicer, has waived any such
default, breach, violation, or event of acceleration. All
taxes, governmental assessments (including
assessments payable in future installments), insurance premiums,
leasehold payments, or ground rents which previously became due and
owing in respect of or affecting the related Mortgaged Property
have been paid, or an escrow of funds has been established in an
amount sufficient to pay for every such item which remains unpaid
and which has been assessed but is not yet due and payable. The
Seller has not advanced funds, or induced, solicited, or knowingly
received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required by
the Mortgage or the Mortgage Note. No foreclosure action has been
commenced with respect to such Mortgage Loan.
(g) The Mortgaged Property is free of material
damage or waste and in good repair. There is no proceeding pending
or, to the best of the Seller’s knowledge, threatened for the
total or partial condemnation of the Mortgaged Property and no
notice of any such pending or threatened proceeding has been
received so as to adversely impair the value or marketability of
the Mortgaged Property.
(h) There are no mechanics’ or similar liens
or claims which have been filed for work, labor, or material (and
no rights are outstanding that under law could give rise to such
lien) which are, or may be, liens prior or equal to the lien of the
related Mortgage, which are not insured against by the related
mortgagee’s policy of title insurance.
(i) All of the improvements which were included for
the purpose of determining the Appraised Value of the Mortgaged
Property were completed at the time that such Mortgage Loan was
originated and lie wholly within the boundaries and building
restriction lines of such Mortgaged Property. No improvements on
adjoining properties encroach upon the Mortgaged Property. No
improvement located on or being part of the Mortgaged Property is
in violation of any applicable zoning law or regulation,
subdivision law or ordinance.
(j) The Seller is (or, if the Seller did not
originate the Mortgage Loan, the originator, during the period in
which it held and disposed of such interest, was): (i) in
compliance with any and all applicable licensing requirements of
the laws of the state wherein the Mortgaged Property is located and
(ii)(A) organized under the laws of such state,
(B) qualified to do business in such state, (C) a federal
savings and loan association or national bank having principal
offices in such state, (D) not doing business in such state,
or (E) not required to qualify to do business in such
state.
(k) No Monthly Payment with respect to such
Mortgage Loan is delinquent as of the related Sale Date. For
purposes of the prior sentence, “delinquent” means that
a scheduled Monthly Payment was not received by the time the next
Monthly Payment was due and such scheduled Monthly Payment remains
unpaid. All payments required to be made under the related Mortgage
and Mortgage Note through and including the Cut-Off Date, have been
made. Not more than one payment required to be made under the
related Mortgage and Mortgage Note has remained unpaid through its
next Due Date (excluding any applicable grace period) during the
twelve months immediately preceding the Cut-Off Date.
(l) There are no custodial agreements in effect
adversely affecting the right or ability of the Seller to make the
deliveries specified in Section 2.2 . Each of the documents
with respect to such Mortgage Loan specified in
Section 2.2 , in Exhibit A
hereto or in the Mortgage File, is genuine,
true, correct and complete and has not been altered or modified in
any way except as noted in the Mortgage File, and each is duly
executed and in due and proper form. Each of the documents with
respect to such Mortgage Loan specified in Exhibit A
hereto is genuine, true, correct and complete and has not been
altered or modified in any way except as reflected on the Mortgage
Loan Schedule.
(m) The Mortgage Note and the Mortgage are genuine,
and each is the legal, valid and binding obligation of the maker
thereof and each party assuming liability therefor, enforceable in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, or
other similar laws affecting the enforcement of creditors’
rights generally and except that the equitable remedy of specific
performance and other equitable remedies are subject to the
discretion of the courts. All parties to the Mortgage Note and the
Mortgage had legal capacity to execute the Mortgage Note and the
Mortgage and convey the estate therein purported to be conveyed,
and the Mortgage Note and the Mortgage have been duly and properly
executed by such parties or pursuant to a valid power-of-attorney
that has been recorded with the Mortgage.
(n) The transfer of the Mortgage Note and the
Mortgage as and in the manner contemplated by this Agreement is
sufficient fully to transfer to the Purchaser all right, title and
interest of the Seller thereto as note holder and mortgagee or
trust deed beneficiary. The Mortgage has been duly assigned and the
Mortgage Note has been duly endorsed as provided in
Section 2.2 . The Assignment of Mortgage delivered to
the Purchaser pursuant to Section 2.2 is in recordable
form except for the insertion of the name of the assignee and
recording information and is acceptable for recording under the
laws of the applicable jurisdiction.
(o) Any and all requirements of any federal, state,
or local law including, without limitation, usury, predatory and
abusive lending, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity,
or disclosure laws applicable to such Mortgage Loan have been
complied with, and the Seller shall maintain, in its possession,
available for the Purchaser’s inspection, and shall deliver
to the Purchaser or its designee upon demand, evidence of
compliance with all such requirements. The consummation of the
transactions contemplated by this Agreement will not cause the
violation of any such laws.
(p) The proceeds of such Mortgage Loan have been
fully disbursed. There is no requirement for, and the Seller shall
not make any, future advances under the terms of the Mortgage Loan.
Any future advances made prior to the applicable Cut-off Date have
been consolidated with the principal balance secured by the
Mortgage, and such principal balance, as consolidated, bears a
single interest rate and single repayment term reflected on the
related Mortgage Loan Schedule. Unless such Mortgage Loan is
subject to negative amortization, the Unpaid Principal Balance as
of the applicable Cut-off Date does not exceed the original
principal amount of such Mortgage Loan. All requirements as to
completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefor have been complied with,
and certificates of completion with respect thereto are contained
in the related credit file. All costs, fees and expenses incurred
in making, or closing or recording such Mortgage Loan have been
paid or will be paid in the ordinary course of business.
(q) Such Mortgage Loan (unless it is a Cooperative
Loan) is covered by an ALTA mortgage title insurance policy
acceptable to Seller, with, in the case of an Adjustable Rate
Mortgage Loan, an adjustable rate mortgage endorsement,
substantially in the form of ALTA Form 6.1 or 6.2, or such other
generally used and acceptable form of policy and applicable
endorsements acceptable to FNMA or FHLMC. Each such policy
affirmatively insures ingress and egress and insures against
encroachments by or upon the Mortgaged Property. Each such policy
was issued on the date of the origination of each related Mortgaged
Loan by a title insurer acceptable under Seller’s
underwriting guidelines and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring the
Seller, and its successors and assigns, as to the first priority
lien of the Mortgage in the original principal amount of such
Mortgage Loan. Each such policy has been duly and validly endorsed
to the Purchaser or the assignment to the Purchaser of the
Seller’s interest does not require the consent of or
notification to the insurer, and such mortgage title insurance
policy is in full force and effect. Where required by law or
regulation, the Mortgagor has been given the opportunity to choose
the carrier of the required mortgage title insurance. No claims
have been made under such policy and the Seller has taken no action
that would impair the enforceability of such policy.
(r) Unless such Mortgage Loan is a Cooperative
Loan, all buildings and other improvements upon the Mortgaged
Property are insured against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where
the Mortgaged Property is located, pursuant to insurance policies
conforming to the requirements of Section 2.13 of the
Servicing Agreement and issued by an insurer acceptable to FNMA or
FHLMC. If the Mortgaged Property is in an area then identified on a
flood hazard boundary map or flood insurance rate map issued by the
Federal Emergency Management Agency as having special flood hazards
(and such flood insurance is available), a flood insurance policy
is in effect meeting the requirements of the current guidelines of
the Federal Insurance Administration with an insurance carrier
acceptable to Seller. Each individual insurance policy has been
validly issued and is in full force and effect. The Seller has
caused to be performed all acts required to preserve the rights and
interests of the Purchaser in all insurance policies required by
this Agreement, including, without limitation, notification of
insurers, and assignment of policies or interests therein. Each
individual insurance policy contains a standard mortgagee clause
naming the Seller, and its successors and assigns, as mortgagee and
loss payee. All premiums due thereon have been paid. The Mortgage
obligates the Mortgagor to maintain all such insurance at the
Mortgagor’s cost and expense, and upon the Mortgagor’s
failure to do so, authorizes the servicer or the owner of the
Mortgage to obtain and maintain such insurance at the
Mortgagor’s cost and expense and to seek reimbursement
therefor from the Mortgagor. No claims have been made under such
policies since origination of the Mortgag
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