EXECUTION
MORTGAGE LOAN PURCHASE
AGREEMENT
This MORTGAGE LOAN PURCHASE AGREEMENT (this
“Agreement”) is dated as of October 1, 2006, between
Bayview Financial Securities Company, LLC, a Delaware limited
liability company (the “Purchaser”), and Bayview
Financial, L.P., a Delaware limited partnership (the
“Seller”).
Preliminary
Statement
The Seller intends to sell to the Purchaser
certain fixed rate and adjustable rate mortgage loans, including
balloon payment loans (the “Mortgage Loans”), on the
terms and subject to the conditions set forth in this Agreement.
References in this Agreement to conveyance of all of the
Seller’s right, title and interest in, to and under any loans
or other property shall be deemed to include all accounts, accounts
receivable, contract rights, claims, choses in action, general
intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, notes, drafts, letters of
credit, advices of credit, investment property, uncertificated
securities and rights to payment of any and every kind consisting
of, arising from or relating to any of such loans or other
property. The Purchaser intends to sell the Mortgage Loans and the
other assets constituting the Trust Fund and will assign all of its
rights under this Agreement to U.S. Bank National Association (as
successor to Wachovia Bank, National Association), as trustee (the
“Trustee”) pursuant to the pooling and servicing
agreement dated as of October 1, 2006 (the “Pooling and
Servicing Agreement”), among the Purchaser, as depositor, the
Trustee and Wells Fargo Bank, N.A., as master servicer (the
“Master Servicer”).
Capitalized terms used but not defined herein
shall have the meanings set forth in the Pooling and Servicing
Agreement.
The parties hereto agree as follows:
Section 1. Purchase and Contribution
.
(a) Mortgage Loans . The Seller hereby agrees to sell, and the
Purchaser agrees to purchase, on or before November 17, 2006 (the
“Closing Date”), all of the Seller’s right, title
and interest in, to and under the Mortgage Loans; provided,
however , that the Purchaser does not assume the obligation
under any Mortgage Loan to fund any future advances required to be
made to the related Mortgagor(s) thereunder, and the Purchaser
shall not be obligated or permitted to fund any such advances, it
being understood that Interbay, as lender, shall retain the
obligation to fund future advances. The conveyance of the Mortgage
Loans hereunder includes (i) the Mortgage Loans (other than the
related servicing rights) listed on the Closing Schedule attached
hereto including all payments of interest (other than any Retained
Interest), all prepayment premiums or penalties or yield
maintenance payments received or receivable by the Seller on or
with respect to the Mortgage Loans listed on Schedule I-B
attached hereto, and all principal and other amounts received or
receivable on or with respect to the Mortgage Loans listed on
Schedule I after the Cut-off Date (other than payments due
on or prior to such date) and all payments due after such date but
received prior to such date; (ii) the related Mortgage Files and
all rights of the Seller in the Loan Collateral; (iii) any
Insurance Policies; (iv) any Insurance Proceeds, REO Property,
Liquidation Proceeds and other recoveries (in each case, subject to
clause (i) above); (v) all Holdback Amounts on deposit in custodial
accounts established by Interbay for the benefit of the Trust Fund;
and (vi) all income, revenues, issues, choses in action, products,
revisions, substitutions, replacements, profits, rents and all cash
and non-cash proceeds of the foregoing, having an aggregate
principal balance as of the close of business on October 1, 2006
(the “Cut-off Date”), after
giving effect to payments of principal due on or before the Cut-off
Date, of $ [[●]] .
(b) [Reserved]
(c) Assignment of Additional Rights
. The Seller hereby assigns to the
Purchaser all of the Seller’s rights (excluding its
obligations) under any written contract for the servicing of the
Mortgage Loans to which the Seller becomes a party or a third party
beneficiary. The Purchaser shall have the right to enforce any and
all of the Seller’s rights under each of such Servicing
Agreements as if it were a party thereto, including without
limitation, the right to assign such rights to the Trustee, for the
benefit of the Certificateholders.
Section 2. Schedules of Mortgage Loans .
The Purchaser and the Seller have agreed upon which of the mortgage
loans owned by the Seller are to be purchased by the Purchaser
pursuant to this Agreement and the Seller will prepare on or prior
to the Closing Date a final schedule describing such Mortgage Loans
(the “Closing Schedule”). The Closing Schedule will
conform to the requirements of the Purchaser as set forth in this
Agreement and to the definition of “Mortgage Loan
Schedule” under the Pooling and Servicing Agreement. The
Closing Schedule is attached hereto as Schedule I
.
Section 3. Consideration .
(a) In consideration for the Mortgage Loans to be
purchased hereunder and the obligations undertaken by the Seller
with respect to the Mortgage Loans, the Purchaser shall, as
described in Section 8, pay to the Seller an amount (the
“Purchase Amount”) equal to the cash portion of the
price obtained by the Purchaser as consideration for the transfer
of the Mortgage Loans to the Trustee.
(b) [Reserved]
(c) The Trustee, as assignee of the Purchaser, or
any assignee, transferee or designee of the Trustee shall be
entitled to (i) all interest, other than any Retained Interest,
including any prepayment premiums or penalties or yield maintenance
payments and including prepayment premiums or penalties received or
receivable by the Purchaser on or with respect to the Mortgage
Loans listed on Schedule I-B attached hereto, and principal
received or receivable on or with respect to the Mortgage Loans
listed on Schedule I hereto after the Cut-off Date, but not
including interest and principal due and payable on such Mortgage
Loans on or before the Cut-off Date, (ii) all interest, other than
any Retained Interest, including any prepayment premiums or
penalties or yield maintenance payments and including prepayment
premiums or penalties received or receivable by the Purchaser on or
with respect to the Mortgage Loans listed on Schedule I-B
attached hereto and (iii) other assets described in Section
1.
(d) Pursuant to the Pooling and Servicing
Agreement, the Purchaser will assign all of its right, title and
interest in, to and under the Mortgage Loans and the other assets
constituting the Trust Fund, together with its rights under this
Agreement, to the Trustee, for the benefit of the
Certificateholders. The parties hereto agree that the Trustee shall
be a third party beneficiary of this Agreement, and the Seller
hereby restates its representations, warranties and covenants as
set forth herein for the benefit of the Trustee. The rights of the
Trustee as a third party beneficiary shall be irrevocable and
coupled with an interest.
Section 4. Transfer of the Mortgage Loans
.
(a) Possession of Mortgage Files
. The Seller does hereby sell,
transfer, assign, set over and convey to the Purchaser, without
recourse but subject to the terms of this Agreement, all of its
right, title and interest in, to and under the Mortgage Loans. The
contents of each Mortgage File not delivered to the Purchaser or to
any assignee, transferee or designee of the Purchaser on or prior
to the Closing Date are and shall be held in trust by the Seller
for the benefit of the Purchaser or any assignee, transferee or
designee of the Purchaser. Upon the sale of the Mortgage Loans, the
ownership of each Mortgage Note, the related Mortgage, the other
documents described in this Section 4 and the other contents of the
related Mortgage File shall be vested in the Purchaser, and the
ownership of all records and documents with respect to the related
Mortgage Loan prepared by or that come into the possession of the
Seller on or after the Closing Date shall immediately vest in the
Purchaser and shall be delivered immediately to the Purchaser or as
otherwise directed by the Purchaser. The Seller’s records
will accurately reflect the sale or contribution, as the case may
be, of each Mortgage Loan to and the ownership of each Mortgage
Loan by the Purchaser. The Seller shall release its custody of the
contents of any Mortgage File only in accordance with written
instructions from the Purchaser or any assignee, transferee or
designee of the Purchaser.
(b) Delivery of Mortgage Loan Documents
. The Seller shall, at least three
(3) Business Days prior to the Closing Date, deliver or cause to be
delivered to the Purchaser or any assignee, transferee or designee
of the Purchaser each of the following documents for each Mortgage
Loan:
(i) (A) the original Mortgage Note, endorsed in the
following form: “Pay to the order of U.S. Bank National
Association, as Trustee, without recourse,” or in blank, with
all prior and intervening endorsements showing a complete chain of
endorsement from the originator to the Person so endorsing to the
Trustee or (B) an original or copy of the installment sale contract
for the purchase of the related Mortgaged Property;
(ii) with respect to each Mortgage Loan, (A) the
original Mortgage or copy of the Mortgage with evidence of
recording thereon, and (B) the original or a copy of recorded power
of attorney, if the Mortgage was executed pursuant to a power of
attorney, with evidence of recording thereon;
(iii) with respect to each Non-MERS Mortgage Loan, an
original Assignment of the Mortgage executed in the following form:
“U.S. Bank National Association, as Trustee (Bayview),”
or in blank;
(iv) with respect to each Non-MERS Mortgage Loan,
the original Assignment or Assignments of the Mortgage and if such
Assignment of Mortgage is not endorsed in blank, originals or
copies of all intervening assignments showing a complete chain of
assignment from the originator (or, if applicable, from the U.S.
Department of Housing and Urban Development) to the Person
assigning the Mortgage to the Trustee as contemplated by the
immediately preceding clause (iii) or, in the case of a Cooperative
Loan, an original Assignment of the Security Agreement;
(v) the original or copies of each assumption,
modification, written assurance or substitution agreement, if
any;
(vi) with respect to each Mortgage Loan other than a
Cooperative Loan, the original or a copy of the lender’s
title insurance policy or attorney’s opinion of title or a
copy thereof certified as true and correct by the applicable
insurer, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien or junior lien, as
applicable, on the Mortgaged Property represented therein as a fee
interest or a leasehold interest vested in the Mortgagor, or in the
event such original title policy is unavailable, a written
commitment or uniform binder or preliminary report of title issued
by the title insurance or escrow company or a copy thereof
certified by the title company, with the original policy of title
insurance to be delivered within one year of the Closing
Date;
(vii) with respect to any Cooperative Loan, the
following documents: the Security Agreement; a stock certificate
evidencing the Cooperative Shares and related stock power;
Proprietary Lease; and Recognition Agreement;
(viii) as to each Mortgage Loan insured by the FHA,
the original Mortgage Loan Certificate, and as to each Mortgage
Loan guaranteed by the VA, the original VA Loan Guaranty
Certificate, or in each case a “duplicate original”
thereof in accordance with applicable Regulations; and
(ix) if any assignment of leases is separate from
the Mortgage, the original or copy thereof, together with an
executed reassignment of such instrument to the Trustee.
With respect to each MERS Mortgage Loan, the
Purchaser shall cause the Trustee, at the expense of the Purchaser
and at the direction and with the cooperation of the applicable
Servicer, to take such actions as are necessary to cause the
Trustee to be clearly identified as the owner of each such Mortgage
Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by
MERS.
With respect to any Mortgage Loan as to which
the original Mortgage Note has been permanently lost or destroyed
and has not been replaced, the obligations of the Seller to deliver
the original Mortgage Note pursuant to Section 4(b)(i)(A) above
shall be deemed to be satisfied upon delivery to the Purchaser or
any assignee, transferee or designee of the Purchaser of an
affidavit from the Seller to follow within one Business Day
certifying that the original Mortgage Note has been lost, misplaced
or destroyed, in the form of Exhibit 6 hereto. If any of the
documents referred to in Sections 4(b)(ii) or (iii) above has as of
the Closing Date been submitted for recording but either (x) has
not been returned from the applicable public recording office or
(y) has been lost or such public recording office has retained the
original of such document, the obligations of the Seller to deliver
such documents shall be deemed to be satisfied upon (1) delivery to
the Purchaser of a copy of each such document certified by the
Seller to be a true and complete copy of the original that was
submitted for recording and (2) if such copy is certified by the
Seller, delivery to the Purchaser promptly upon receipt thereof of
either the original or a copy of such document certified by the
applicable public recording office to be a true and complete copy
of the original. If the original or a copy of lender’s title
insurance policy was not delivered pursuant to 4(b)(vi) above, the
Seller shall deliver or cause to be delivered to the Purchaser,
promptly after receipt thereof, the original or a copy of
lender’s title insurance policy. The Seller shall deliver or
cause to be delivered to the Purchaser promptly upon receipt
thereof any other original documents constituting a part of a
Mortgage File received with respect to any Mortgage Loan,
including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
The Seller shall be responsible for recording at
its own expense each of the above documents requiring recordation.
Notwithstanding anything to the contrary contained in this Section
4, in those instances where the public recording office has not yet
returned, or retains the original Mortgage, power of attorney or
Assignment of Mortgage after it has been recorded, the obligations
of the Seller hereunder shall be deemed to have been satisfied upon
delivery not later than ninety (90) days after the Closing Date by
the Seller to the Purchaser or any assignee, transferee or designee
of the Purchaser of a copy of such Mortgage, power of attorney or
Assignment of Mortgage certified by the public recording office to
be a true and complete copy of the recorded original thereof. Upon
delivery to the Seller (x) by the public recording office of any
recorded original Mortgage, power of attorney or Assignment of
Mortgage, or (y) by a title insurance or escrow company of any
lender’s title insurance policy, the Seller promptly (and in
no event later than five (5) Business Days following such receipt)
shall deliver such document to the Purchaser or any assignee,
transferee or designee of the Purchaser. The Seller promptly (and
in no event later than thirty (30) Business Days following the
Closing Date) shall submit for recording, at no expense to the
Trust Fund or the Trustee, in the appropriate public office for
real property records, each Assignment of Mortgage referred to in
clauses (iii) or (iv) of this Section 4(b); provided,
however , that such Assignment of Mortgage need not be
recorded if, in the opinion of counsel (which must be from
independent counsel) acceptable to the Trustee and each Rating
Agency, recording in such states is not required to protect the
Trustee’s interest in the related Mortgage Loan. In the event
that any such Assignment of Mortgage is lost or returned unrecorded
because of a defect therein, the Seller promptly shall prepare a
substitute Assignment of Mortgage or cure such defect, as the case
may be, and thereafter cause each such Assignment of Mortgage to be
duly recorded.
The Seller shall not organize under the law of
any jurisdiction other than the State under which it is organized
as of the Closing Date (whether changing its jurisdiction of
organization or organizing under an additional jurisdiction)
without giving 30 days prior written notice of such action to its
immediate and mediate transferee, including the Trustee. Before
effecting such change, the Seller shall prepare and file in the
appropriate filing office any financing statements or other
statements necessary to continue the perfection of the interests of
its immediate and mediate transferees, including the Trustee, in
the Mortgage Loans. In connection with the transactions
contemplated by the Basic Documents, the Seller authorizes its
immediate or mediate transferee, including the Trustee, to file in
any filing office any initial financing statements, any amendments
to financing statements, any continuation statements, or any other
statements or filings described in this Section 4(b).
(c) FHA Mortgage Loans and VA Mortgage
Loans . On or prior to
the Closing Date, or within the period following the Closing Date
that is prescribed by applicable Regulations, the Seller shall
complete all forms and take such other action as may be required by
FHA and VA, as applicable, in connection with the transfer of the
applicable Mortgage Loans to the Trustee pursuant to the Pooling
and Servicing Agreement, and shall provide such notices to FHA or
VA, as the case may be, in connection therewith as are required
under applicable Regulations, and shall, at the request of the
Purchaser, provide evidence reasonably satisfactory to the
Purchaser that such notices have been provided as so
required.
(d) Acceptance of Mortgage Loans
. The documents delivered pursuant
to Section 4(b) hereof shall be reviewed by the Purchaser or any
assignee, transferee or designee of the Purchaser at any time
before or after the Closing Date (and each document permitted to be
delivered after the Closing Date within seven (7) days of its
delivery) to ascertain that all required documents have been
executed and received and that such documents relate to the
Mortgage Loans identified on the Mortgage Loan Schedule. If the
Purchaser or any assignee, transferee or designee of the Purchaser
discovers that any material document is missing or is defective in
any material respect, the Seller shall correct or cure any such
omission or defect or shall repurchase or substitute for the
affected Mortgage Loan in accordance with the terms of Section 7(a)
hereof and Section 2.03 of the Pooling and Servicing Agreement. At
the time of such repurchase, the Purchaser shall, in exchange for a
written receipt therefor, release such documents relating to such
Mortgage Loan as are then in its possession to the
Seller.
(e) Transfer of Interest in the Agreement
. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, to
the Trustee, as may be required to effect the purposes of the
Pooling and Servicing Agreement without the consent of the Seller,
and the assignee shall succeed to the rights and obligations
hereunder of the Purchaser. Any expense reasonably incurred by or
on behalf of the Purchaser or the Trustee in connection with
enforcing any obligations of the Seller under this Agreement will
be promptly reimbursed by the Seller.
(f) Examination of Mortgage Files
. Not later than three (3) Business
Days prior to the Closing Date, the Seller shall deliver to the
Purchaser or to any assignee, transferee or designee of the
Purchaser in escrow, for examination, the Mortgage File pertaining
to each Mortgage Loan. Such examination may be made by the
Purchaser or any assignee, transferee or designee of the Purchaser
at any time before or after the Closing Date. If any such person
makes such examination prior to the Closing Date and identifies any
Mortgage Loans which do not conform to the requirements of the
Purchaser as described in this Agreement, such Mortgage Loans shall
be deleted from the Closing Schedule, and may be replaced, prior to
the Closing Date, by substitute Mortgage Loans acceptable to the
Purchaser. The Purchaser may, at its option and without notice to
the Seller, purchase all or part of the Mortgage Loans without
conducting any partial or complete examination. The fact that the
Purchaser or any assignee, transferee or designee of the Purchaser
has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not affect the rights of
the Purchaser or any assignee, transferee or designee of the
Purchaser to demand repurchase or other relief as provided herein
or under the Pooling and Servicing Agreement.
Section 5. Representations and Warranties of
the Seller . The Seller hereby represents and warrants to the
Purchaser that as of the Closing Date:
(a) The Seller is a limited partnership 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 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 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
provision of the limited partnership agreement of the Seller or 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, the delivery or the
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 effect on the
Seller’s ability to perform its obligations under this
Agreement or (ii) 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
Purchaser at the Closing Date will be treated by the Seller for
financial accounting and reporting purposes as a sale of
assets.
(h) This Agreement does not contain any untrue
statement of material fact or omit to state a material fact
necessary to make the statements contained herein not misleading.
The written statements, reports and other documents prepared and
furnished by the Seller pursuant to this Agreement or in connection
with the transactions contemplated hereby taken in the aggregate do
not contain any untrue statement of material fact or omit to state
a material fact necessary to make the statements contained therein
not misleading. No certificate of an officer, statement or other
information furnished in writing or report prepared, furnished and
delivered by the Seller to the Purchaser, any affiliate of the
Purchaser or the Trustee for use in connection with the purchase of
the Mortgage Loans and the transactions contemplated under this
Agreement and under the Pooling and Servicing Agreement will
contain any untrue statement of a material fact, or omit a material
fact necessary to make the information, certificate, statement or
report not misleading in any material respect.
(i) 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 Purchaser and its
affiliates.
(j) 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.
(k) 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.
(l) The transactions contemplated by this Agreement
are in the ordinary course of business of the Seller.
(m) The representations and warranties set forth in
this Section 5 shall survive the Closing Date.
Section 6. Representations and Warranties
. The Seller represents and warrants to the Purchaser, as to each
Mortgage Loan, as of the date hereinbelow specified or, if no such
date is specified, then as of the Closing Date, that:
(a) The Seller has good title to and is the sole
owner and holder of the Mortgage Loan.
(b) Immediately prior to the transfer and
assignment to the Purchaser, the Mortgage Note and the Mortgage
were not subject to an assignment or pledge, other than with
respect to which a release has been obtained in connection with
such transfer, and the Seller has full right and authority to sell
and assign the Mortgage Loan.
(c) The Seller is transferring such Mortgage Loan
to the Purchaser free and clear of any and all liens, pledges,
charges or security interests of any nature encumbering the
Mortgage Loans.
(d) The information set forth on the Closing
Schedule is true and correct in all material respects as of the
Cut-off Date or such other date as may be indicated in such
schedule.
(e) The Mortgage Loan complies in all material
respects with all applicable federal, state and local laws,
including, but not limited to, all applicable predatory and abusive
lending laws, and has been acquired, serviced, collected and
otherwise dealt with in compliance with all applicable federal,
state and local laws and regulations, including, without
limitation, usury, truth in lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or
disclosure laws, and the terms of the related Mortgage Note and
Mortgage.
(f) None of the Mortgage Loans are
“high-cost” or “covered” loans as defined
under any applicable federal, state or local predatory and abusive
lending laws. No Mortgage Loan is a High Cost Loan or Covered Loan,
as applicable (as such terms are defined in the then current
version of Standard & Poor’s LEVELS ®
Glossary) and no Mortgage Loan originated on or after October 1,
2002 and prior to March 7, 2003 is governed by the Georgia Fair
Lending Act. With respect to Mortgage Loans subject to the law of
the State of New Jersey, no Mortgage Loan is a High-Cost Home Loan,
as defined in the New Jersey predatory and abusive lending law (NJ
High-Cost Home Loans). With respect to Mortgage Loans subject to
the law of the State of Massachusetts, no Mortgage Loan is a
“High Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act of 2004. No
Mortgage Loan is subject to the Kentucky House Bill 287, the New
Mexico Home Loan Protection Act or New York Banking Law § 6-1,
as amended. No Mortgage Loan is a “High Cost Home Loan”
as defined in the Indiana Home Loan Practices Act (Ind. Code Ann.
§ 24-9-1 et seq.).
(g) The related Mortgage Note and Mortgage are
genuine and each is the legal, valid and binding obligation of the
maker thereof, enforceable in accordance with its terms except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors’ rights generally and by general equity principles
(regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(h) The related Mortgage is a valid and enforceable
first lien on the related Mortgaged Property, which Mortgaged
Property is free and clear of all encumbrances and liens (including
mechanics liens) having priority over such lien except for: (i)
liens for real estate taxes and assessments not yet due and
payable; (ii) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record
being acceptable to mortgage lending institutions generally or
specifically reflected or considered in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan
and (iii) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by such Mortgage.
(i) Any security agreement, pledge agreement,
chattel mortgage or equivalent document related to such Mortgage
Loan establishes and creates a valid and enforceable lien on the
property described therein, including any Additional
Collateral.
(j) No payment due on any Mortgage Loan was more
than fifty-nine (59) days past due as of the applicable date set
forth on the Mortgage Loan Schedule.
(k) [Reserved].
(l) The Seller has not impaired, waived, altered or
modified the related Mortgage or Mortgage Note in any material
respect, or satisfied, canceled, rescinded or subordinated such
Mortgage or Mortgage Note in whole or in part or released all or
any material portion of the Mortgaged Property from the lien of the
Mortgage, or executed any instrument of release, cancellation,
rescission or satisfaction of the Mortgage Note or Mortgage, in
each case other than pursuant to a written agreement or instrument
contained in the Mortgage File.
(m) The Mortgage has not been satisfied, canceled
or subordinated, in whole, or rescinded, and the Mortgaged Property
has not been released from the lien of the Mortgage, in whole or in
part (except for a release that does not materially impair the
security of the Mortgage Loan or a release the effect of which is
reflected in the Loan-to-Value Ratio for the Mortgage Loan as set
forth in the Closing Schedule).
(n) No condition exists with respect to a Mortgage
Loan which could give rise to any right of rescission, set off,
counterclaim, or defense including, without limitation, the defense
of usury, and no such right has been asserted.
(o) There is no proceeding pending for the total or
partial condemnation of any Mortgaged Property and there are no
eminent domain proceedings pending affecting any Mortgaged
Property.
(p) Each Mortgage Loan other than a Cooperative
Loan is covered by eith
