MORTGAGE LOAN PURCHASE
AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT
(this “Agreement”), dated as of August 1, 2005, 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 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 Wachovia Bank, National
Association, as trustee (the “Trustee”) pursuant to the
pooling and servicing agreement dated as of August 1, 2005 (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 August 31, 2005 (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; provided, however, that the Purchaser shall not assume the
obligation under any Partially Disbursed Mortgage Loan to fund any
future advances thereunder, it being understood that Interbay, as
lender, shall retain the obligation to fund such future advances,
(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 August 1, 2005 (the “Cut-off
Date”), after giving effect to payments of principal due on
or before the Cut-off Date, of approximately
$103,036,890.36.
(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 Wachovia 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: “Wachovia 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
Standard & Poor’s LEVELS ® Glossary 5.6c)
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 ca
