Exhibit 99.3
PEOPLE’S CHOICE HOME LOAN SECURITIES
CORP.,
as Purchaser,
and
PEOPLE’S CHOICE FUNDING, INC.,
as Seller
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of October 1, 2005
FIXED AND ADJUSTABLE RATE MORTGAGE
LOANS
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
ARTICLE I
|
|
|
|
|
|
DEFINITIONS
|
|
|
|
|
|
|
|
Section 1.1
|
|
Definitions
|
|
1
|
|
|
|
|
|
|
|
ARTICLE II
|
|
|
|
|
|
SALE OF MORTGAGE LOANS AND RELATED
PROVISIONS
|
|
|
|
|
|
|
|
Section 2.1
|
|
Sale of Mortgage Loans
|
|
2
|
|
Section 2.2
|
|
Payment of Purchase Price for the Mortgage
Loans
|
|
5
|
|
|
|
|
|
|
|
ARTICLE III
|
|
|
|
|
|
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
|
|
|
|
|
|
|
|
Section 3.1
|
|
Representations and Warranties of the
Seller
|
|
5
|
|
Section 3.2
|
|
The Purchaser’s Representations and
Warranties
|
|
14
|
|
|
|
|
|
|
|
ARTICLE IV
|
|
|
|
|
|
SELLER’S COVENANTS
|
|
|
|
|
|
|
|
Section 4.1
|
|
Covenants of the Seller
|
|
15
|
|
|
|
|
|
|
|
ARTICLE V
|
|
|
|
|
|
LIMITATION ON LIABILITY OF THE
SELLER
|
|
|
|
|
|
|
|
Section 5.1
|
|
Limitation on Liability of the
Seller
|
|
15
|
|
|
|
|
|
|
|
ARTICLE VI
|
|
|
|
|
|
TERMINATION
|
|
|
|
|
|
|
|
Section 6.1
|
|
Termination
|
|
15
|
|
|
|
|
|
|
|
ARTICLE VII
|
|
|
|
|
|
MISCELLANEOUS PROVISIONS
|
|
|
|
|
|
|
|
Section 7.1
|
|
Amendment
|
|
15
|
|
Section 7.2
|
|
Governing Law
|
|
16
|
|
Section 7.3
|
|
Notices
|
|
16
|
|
Section 7.4
|
|
Severability of Provisions
|
|
16
|
|
Section 7.5
|
|
Relationship of Parties
|
|
16
|
|
Section 7.6
|
|
Counterparts
|
|
16
|
|
Section 7.7
|
|
Survival
|
|
17
|
|
Section 7.8
|
|
Further Agreements
|
|
17
|
|
Section 7.9
|
|
Intention of the Parties
|
|
17
|
|
Section 7.10
|
|
Successors and
Assigns: Assignment of Purchase Agreement
|
|
17
|
EXHIBITS
Exhibit I - Mortgage Loan Schedule
ii
This MORTGAGE LOAN PURCHASE
AGREEMENT (this “Agreement”), dated as of
October 1, 2005 (the “Cut-off Date”), is made
among People’s Choice Funding, Inc. (the
“Seller”) and People’s Choice Home Loan
Securities Corp. (the “Purchaser”).
WHEREAS, the Seller owns the
Mortgage Loans indicated on the Mortgage Loan Schedule attached as
Exhibit I hereto (the “Mortgage Loans”),
including rights to (a) any property acquired by foreclosure
or deed in lieu of foreclosure or otherwise, and (b) the
proceeds of any insurance policies covering the Mortgage
Loans;
WHEREAS, the parties hereto desire
that the Seller sell the Mortgage Loans to the Purchaser (other
than the servicing rights with respect thereto) and that the Seller
make certain representations and warranties and undertake certain
obligations with respect to the Mortgage Loans;
WHEREAS, pursuant to the terms of an
Amended and Restated Trust Agreement, dated as of October 26,
2005 (the “Trust Agreement”), among the Purchaser, as
depositor, Wilmington Trust Company, as owner trustee (the
“Owner Trustee”), and Wells Fargo Bank, National
Association, as securities administrator (in such capacity, the
“Securities Administrator”), certificate registrar and
certificate paying agent, the Purchaser will convey the Mortgage
Loans to the Issuer (as defined below);
WHEREAS, pursuant to the terms of a
Sale and Servicing Agreement, dated as of October 1, 2005 (the
“Sale and Servicing Agreement”), among the Purchaser,
Wells Fargo Bank, National Association, as master servicer (in such
capacity, the “Master Servicer”) and as Securities
Administrator, People’s Choice Home Loan Securities Trust
Series 2005-4, a Delaware statutory trust (the
“Issuer”), HSBC Bank USA, National Association, as
indenture trustee (the “Indenture Trustee”), the
Seller, EMC Mortgage Corporation, as servicer (the
“Servicer), and People’s Choice Home Loan, Inc., as
subservicer (the “Subservicer”); and
WHEREAS, pursuant to the terms of an
Indenture, dated as of October 26, 2005 (the
“Indenture”), among the Issuer, the Indenture Trustee
and the Securities Administrator, the Issuer will pledge the
Mortgage Loans and issue and transfer to the Purchaser the
People’s Choice Home Loan Trust Series 2005-4,
Mortgage-Backed Notes, Series 2005-4, Class 1A1, Class 1A2, Class
1A3, Class 2Al, Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6, Class M7, Class M8, Class M9, Class M10 and Class M 11
Notes (collectively, the “Notes”), representing debt of
the Issuer;
NOW, THEREFORE, inconsideration of
the mutual covenants herein contained, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
For all purposes of this Agreement,
except as otherwise expressly provided herein or unless the context
otherwise requires, capitalized terms not otherwise defined herein
shall have
the meanings assigned to such terms in Appendix
A attached to the Indenture. All other capitalized terms used
herein shall have the meanings specified herein.
ARTICLE II
SALE OF MORTGAGE LOANS AND
RELATED PROVISIONS
Section 2.1 Sale of Mortgage
Loans .
(a) The Seller, by the execution and
delivery of this Agreement, does hereby sell, assign, set over and
otherwise convey to the Purchaser, without recourse but subject to
the terms of this Agreement, (i) all of its right, title and
interest in the Mortgage Loans, as of the Closing Date, including
the related Cut-off Date Principal Balance, all interest accruing
thereon on and after the Cut-off Date, and all collections of
interest and principal due after the Cut-off Date, other than the
servicing rights with respect thereto, (ii) the Seller’s
interest in any insurance policies and (iii) all proceeds of
the foregoing.
(b) In connection with any transfer
pursuant to this Section 2.1, the Seller agrees (i) to
cause the books and records of the Seller to indicate that the
Mortgage Loans have been sold to the Purchaser pursuant to this
Agreement and (ii) to deliver to the Purchaser the Mortgage
Loan Schedule, which is attached as Exhibit I to this Agreement,
and to the Sale and Servicing Agreement, which is incorporated by
reference herein.
(c) In connection with such
conveyances by the Seller, the Seller shall, on behalf of the
Purchaser, deliver to and deposit with Wells Fargo Bank, National
Association, as custodian for the Indenture Trustee, on or before
the Closing Date, the following documents or instruments with
respect to each Mortgage Loan:
(i) the original Mortgage Note,
including any riders thereto, endorsed by the Seller or the
originator, as applicable, without recourse, to “HSBC Bank
USA, National Association, as Indenture Trustee under the Indenture
relating to People’s Choice Home Loan Securities Trust Series
2005-4, Mortgage-Backed Notes, Series 2005-4”, with any
intervening endorsements showing an unbroken chain of title from
the originator to the Indenture Trustee, or with respect to a
Mortgage Loan as to which the Mortgage Note has been lost, a lost
note affidavit with indemnity and, if available, a copy of the lost
Mortgage Note;
(ii) the original recorded Mortgage,
with evidence of recording indicated thereon; provided that
if such document is not included because of a delay by the public
recording office where such document has been delivered for
recordation or such office as a matter of policy does not return
the original of such document or if such original Mortgage has been
lost, the Seller shall include or cause to be included a copy
thereof certified by the appropriate recording office, if
available;
(iii) an original duly executed
Assignment of the Mortgage in recordable form from the Seller or
the originator, as applicable, to “HSBC Bank USA, National
Association, as Indenture Trustee under the Indenture relating to
People’s Choice Home Loan Securities Trust Series 2005-4,
Mortgage-Backed Notes, Series 2005-4”;
2
(iv) the original intervening
Assignments, if any and if available, with evidence of recording
thereon, showing an unbroken chain of title to the Mortgage from
the originator thereof to Person assigning it to the Indenture
Trustee; provided that if such document is not included
because of a delay by the public recording office where such
document has been delivered for recordation or such office as a
matter of policy does not return the original of such document, the
Seller shall include or cause to be included a copy thereof
certified by the appropriate recording office, if
available;
(v) the originals of each
assumption, modification or substitution agreement, if any and if
available, relating to the Mortgage Loan; and
(vi) the original title insurance
policy, or, if such policy has not been issued, any one of an
original or a copy of the preliminary title report, title binder or
title commitment on the Mortgaged Property with the original policy
of the insurance to be delivered promptly following the receipt
thereof.
The Seller need not cause to be recorded any
assignment in any jurisdiction under the laws of which, as
evidenced by an Opinion of Counsel delivered by the Seller to the
Indenture Trustee and the Rating Agencies, the recordation of such
assignment is not necessary to protect the Indenture
Trustee’s interest in the related Mortgage Loan; provided,
however , that notwithstanding the delivery of any
Opinion of Counsel, each assignment shall be submitted for
recording by the Seller, at no expense to the Trust or the
Indenture Trustee, upon the earliest to occur of:
(i) reasonable direction by the Holders of Notes evidencing at
least 25% of the Note Principal Balance, (ii) the occurrence
of a Master Servicer Event of Default or Event of Default under the
Indenture, (iii) the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Seller, (iv) the occurrence of a
master servicing transfer and (v) the occurrence of a
bankruptcy, insolvency or foreclosure relating to the Mortgagor
under the related Mortgage. Upon receipt of written notice from the
Indenture Trustee that recording of the assignments is required
pursuant to one or more of the conditions set forth in the
preceding sentence, the Seller shall be required to deliver such
assignments for recording as provided above, promptly and in any
event within 30 days following receipt of such notice. The Seller
shall furnish the Indenture Trustee, or its designated agent, with
a copy of each assignment submitted for recording. In the event
that any such assignment is lost or returned unrecorded because of
a defect therein, the Seller shall promptly have a substitute
assignment prepared or have such defect cured, as the case may be,
and thereafter cause each such assignment to be duly
recorded.
To the extent an assignment referred
to in clause (c)(iii) above is required to be recorded (including,
without limitation, assignments for states that are not covered by
the Opinion of Counsel in the prior paragraph), the Seller, at its
own expense, shall complete and submit it for recording in the
appropriate public office for real property records, with such
assignment completed in favor of the Indenture Trustee. While such
assignment to be recorded is being recorded, the Indenture Trustee
shall retain a photocopy of such assignment. If any assignment is
lost or returned unrecorded to the Indenture Trustee because of any
defect therein, the Seller is required to prepare a substitute
assignment or cure such defect, as the case may be, and the Seller
shall cause such substitute assignment to be recorded in accordance
with this paragraph.
3
Notwithstanding anything to the
contrary contained in this Section 2.1, in those instances
where the public recording office retains the original Mortgage
after it has been recorded, the Seller shall be deemed to have
satisfied its obligations hereunder upon delivery to the Indenture
Trustee of a copy of such Mortgage, certified by the public
recording office to be a true and complete copy of the recorded
original thereof.
If any Assignment is lost or
returned unrecorded to the Indenture Trustee because of any defect
therein, the Seller shall prepare a substitute Assignment or cure
such defect, as the case may be, and the Seller shall cause such
Assignment to be recorded in accordance with this
section.
If a defect in any Mortgage File is
discovered which materially and adversely affects the value of the
related Mortgage Loan, or the interests of the Noteholders or
Certificateholders in such Mortgage Loan, including if any document
required to be delivered to the Indenture Trustee has not been
delivered ( provided that a Mortgage File will not be deemed
to contain a defect for an unrecorded assignment under clause
(iii) above if the Seller has submitted such assignment for
recording pursuant to the terms of the following paragraph), the
Seller shall either (i) purchase such Mortgage Loan from the
Trust, at the Purchase Price, within 90 days after the date on
which the Seller was notified of such defect or (ii) cure such
defect, or (iii) substitute a Substitute Mortgage Loan for the
related Mortgage Loan upon the same terms and conditions set forth
in Section 3.1 hereof for substitutions.
The Seller shall exercise its best
reasonable efforts to deliver or cause to be delivered to the
Custodian, on behalf of the Indenture Trustee, within 120 days of
the Closing Date, with respect to the Mortgage Loans, the original
or a photocopy of the title insurance policy with respect to each
such Mortgage Loan assigned to the Purchaser pursuant to this
Section 2.1.
The Purchaser hereby acknowledges
its acceptance of all right, title and interest to the Mortgage
Loans and other property, now existing and hereafter created,
conveyed to it pursuant to this Section 2.1, other than with
respect to servicing rights with respect to the Mortgage
Loans.
(d) The parties hereto intend that
the transaction set forth herein constitutes a sale by the Seller
to the Purchaser of all the Seller’s right, title and
interest in and to the Mortgage Loans (other than with respect to
the related servicing rights) and other property as and to the
extent described above. In the event the transaction set forth
herein is deemed not to be a sale, the Seller hereby grants to the
Purchaser a security interest in all of the Seller’s right,
title and interest in, to and under the Mortgage Loans (other than
with respect to the related servicing rights) and such other
property, to secure all of the Seller’s obligations
hereunder, and this Agreement shall constitute a security agreement
under applicable law. The Seller agrees to take or cause to be
taken such actions and to execute such documents, including,
without limitation, the filing of all necessary UCC-1 financing
statements filed in the State of Delaware (which shall have been
submitted for filing as of the Closing Date with respect to the
aggregate Stated Principal Balance of the Mortgage Loans), any
continuation statements with respect thereto and any amendments
thereto required to reflect a change in the name or corporate
structure of the Seller or the filing of any additional UCC-1
financing statements due to the change in the
4
principal office of the Seller, as are necessary
to perfect and protect the Purchaser’s interests in each
Mortgage Loan and the proceeds thereof.
Section 2.2 Payment of Purchase
Price for the Mortgage Loans.
(a) The purchase price for the
Mortgage Loans (other than with respect to the servicing rights
thereto) shall be the sum of (i) $1,086,169,663.85 and
(ii) the Owner Trust Certificates (the
“Certificates”).
(b) In consideration of the sale of
the Mortgage Loans from the Seller to the Purchaser on the Closing
Date, the Purchaser shall (i) pay to the Seller, on the
Closing Date, by wire transfer of immediately available funds to a
bank account designated by the Seller, the amount specified above
in clauses (a)(i) and (ii) cause the transfer to the Seller
(or its designee or nominee) of the Certificates in clause
(a)(ii).
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1 Representations and
Warranties of the Seller .
The Seller hereby represents and
warrants to the Purchaser, as of the Closing Date (or if otherwise
specified below, as of the date so specified), that:
(a) with respect to the
Seller:
(i) the Seller is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware;
(ii) the Seller has full corporate
power to own its property, carry on its business as presently
conducted and enter into and perform its obligations under this
Agreement;
(iii) the execution and delivery by
the Seller of this Agreement have been duly authorized by all
necessary corporate action on the part of the Seller, and neither
the execution and delivery of this Agreement, nor the consummation
of the transactions herein contemplated hereby, nor compliance with
the provisions hereof, will conflict with or result in a breach of,
or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on
the Seller or its properties or the certificate of incorporation or
by-laws of the Seller, except those conflicts, breaches or defaults
that would not reasonably be expected to have a material adverse
effect on the Seller’s ability to enter into this Agreement
and to consummate the transactions contemplated hereby;
(iv) the execution, delivery and
performance by the Seller of this Agreement and the consummation of
the transactions contemplated hereby do not require the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents,
approvals, notices, registrations or other actions as have already
been
5
obtained, given or made and, in
connection with the recordation of the Mortgages, powers of
attorney or assignments of Mortgages not yet completed;
(v) this Agreement has been duly
executed and delivered by the Seller and, assuming due
authorization, execution and delivery by the Purchaser, constitutes
a valid and binding obligation of the Seller enforceable against it
in accordance with its terms (subject to applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of
the rights of creditors generally);
(vi) there are no actions,
litigation, suits or proceedings pending or threatened against the
Seller before or by any court, administrative agency, arbitrator or
governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any
other matter that, in the judgment of the Seller, if determined
adversely to the Seller, would reasonably be expected to materially
and adversely affect the Seller’s ability to perform its
obligations under this Agreement; and the Seller is not in default
with respect to any order of any court, administrative agency,
arbitrator or governmental body so as to materially and adversely
affect the transactions contemplated by this Agreement;
and
(vii) the Seller’s chief
executive office and principal place of business are located in the
County of Orange in the State of California; and
(b) with respect to the Mortgage
Loans:
(i) as of the Cut-off Date, the
information set forth on the Mortgage Loan Schedule with respect to
each Mortgage Loan is true and correct in all material
respects;
(ii) immediately prior to the
transfer to the Purchaser, the Seller had good title to and is the
sole owner of each Mortgage and Mortgage Note relating to the
Mortgage Loans and is conveying the same free and clear of any and
all liens, claims, encumbrances, pledges, charges or security
interests of any nature; the related Mortgage Note and the Mortgage
were not subject to any pledge or assignment that has not been
released; and the Seller has full legal authority to sell and
assign the Mortgage Loans pursuant to this Agreement;
(iii) no default, release or waiver
exists under the Mortgage Documents, and no modifications to the
Mortgage Documents have been made that have not been
disclosed;
(iv) there is no monetary default
existing under any Mortgage or the related Mortgage Note; neither
the Seller, any of its affiliates nor any servicer of any related
Mortgage Loan has taken any action to waive any default, breach or
event of acceleration with respect thereto; and no foreclosure
action is threatened or has been commenced with respect to such
Mortgage Loan;
(v) each Mortgage Loan was
underwritten in accordance with the underwriting guidelines of the
Seller and its affiliates. The Seller has no knowledge
of
6
any fact that should have led it to
expect at the time of the initial creation of an interest in the
Mortgage Loan that such Mortgage Loan would not be paid in full
when due;
(vi) no selection procedures
reasonably believed by the Seller to be adverse to the interest of
the Noteholders or Certificateholders have been used in selecting
the Mortgage Loans;
(vii) each Mortgage is a valid and
enforceable first lien or second lien on the Mortgaged Property
securing the related Mortgage Note, and each Mortgaged Property is
owned by the Mortgagor in fee simple (except with respect to common
areas in the case of condominiums, PUDs and de minimis PUDs)
or by leasehold for a term at least 5 years longer than the term of
the related Mortgage, subject only to (A) the lien of
nondelinquent current real property taxes and assessments,
(B) 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 in the appraisal made in connection with the
origination of the related Mortgage Loan or referred to in the
lender’s title insurance policy delivered to the originator
of the related Mortgage Loan, and (C) other matters to which
like properties are commonly s