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EXECUTION
MORTGAGE LOAN PURCHASE
AGREEMENT
This MORTGAGE LOAN PURCHASE AGREEMENT (this
"Agreement") is dated as of November 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
November 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 December 15, 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 November 1,
2006 (the "Cut-off
Date"), after giving effect to payments of principal due on or
before the Cut-off Date, of $327,281,048.44.
(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.
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(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;
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(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.
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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).
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(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.
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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.
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(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.
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(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, which
is now Version 5.7 File Format, Appendix E) 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.
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(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 Cut-off Date.
(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 r
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