<PAGE>
Exhibit 99.1
MORTGAGE LOAN PURCHASE AGREEMENT
between
MERRILL LYNCH MORTGAGE LENDING, INC.
as Seller
and
MERRILL LYNCH MORTGAGE INVESTORS, INC.
as Purchaser
Dated as of
November 15, 2005
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TABLE OF CONTENTS
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Page
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SECTION 1.
DEFINITIONS................................................
1
SECTION 2. PURCHASE AND SALE OF
THE MORTGAGE LOANS AND RELATED
RIGHTS.....................................................
3
SECTION 3. MORTGAGE LOAN
SCHEDULES.................................... 4
SECTION 4. MORTGAGE LOAN
TRANSFER..................................... 4
SECTION 5. EXAMINATION OF
MORTGAGE FILES.............................. 5
SECTION 6. RECORDATION OF
ASSIGNMENTS OF MORTGAGE..................... 6
SECTION 7. REPRESENTATIONS AND
WARRANTIES OF SELLER CONCERNING THE
MORTGAGE LOANS.............................................
8
SECTION 8. REPRESENTATIONS AND
WARRANTIES CONCERNING THE SELLER....... 11
SECTION 9. REPRESENTATIONS AND
WARRANTIES CONCERNING THE PURCHASER.... 12
SECTION 10. CONDITIONS TO
CLOSING...................................... 13
SECTION 11. FEES AND
EXPENSES.......................................... 15
SECTION 12. ACCOUNTANTS'
LETTERS....................................... 15
SECTION 13.
INDEMNIFICATION............................................
16
SECTION 14.
NOTICES....................................................
18
SECTION 15. TRANSFER OF MORTGAGE
LOANS................................. 18
SECTION 16.
TERMINATION................................................
20
SECTION 17. REPRESENTATIONS, WARRANTIES
AND AGREEMENTS TO SURVIVE
DELIVERY...................................................
20
SECTION 18. MANDATORY DELIVERY; GRANT OF
SECURITY INTEREST............. 20
SECTION 19.
SEVERABILITY...............................................
21
SECTION 20.
COUNTERPARTS...............................................
21
SECTION 21.
AMENDMENT..................................................
21
SECTION 22. GOVERNING
LAW.............................................. 21
SECTION 23. FURTHER
ASSURANCES......................................... 21
SECTION 24. SUCCESSORS AND
ASSIGNS..................................... 21
SECTION 25. THE
SELLER.................................................
22
SECTION 26. ENTIRE
AGREEMENT........................................... 22
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SECTION 27. NO
PARTNERSHIP.............................................
22
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EXHIBITS AND SCHEDULE TO
MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 1 Contents of Mortgage
File
Exhibit 2 Contents of Final Mortgage
File
Exhibit 3 Mortgage Loan Schedule
Information
Exhibit 4 Seller's Information
Exhibit 5 Purchaser's Information
Exhibit 6 Schedule of Lost Notes
Exhibit 7 S&P Appendix
ii
<PAGE>
MORTGAGE LOAN
PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of November 15, 2005,
as
amended and supplemented by any and all
amendments hereto (collectively, the
"Agreement"), by and between MERRILL LYNCH
MORTGAGE LENDING, INC., a Delaware
corporation (the "Seller"), and MERRILL
LYNCH MORTGAGE INVESTORS, INC., a
Delaware corporation (the "Purchaser").
Upon the terms and subject to the conditions of this Agreement,
the
Seller agrees to sell, and the Purchaser
agrees to purchase, certain first lien,
fixed-rate and adjustable-rate mortgage
loans secured by one- to four-family
residences, individual condominiums, co-op
units and units in planned unit
developments (collectively, the "Mortgage
Loans") as described herein. The
Purchaser intends to deposit the Mortgage
Loans into a trust fund (the "Trust
Fund") and create Mortgage Pass-Through
Certificates, MLMI Series 2005-A8 (the
"Certificates"), under a pooling and
servicing agreement, to be dated as of
October 1, 2005 (the "Pooling and Servicing
Agreement"), between the Purchaser,
as seller, Wachovia Bank, National
Association, as trustee (the "Trustee") and
Wells Fargo Bank, N.A., as master servicer
and securities administrator (the
"Master Servicer" and "Securities
Administrator").
The Purchaser has filed with the Securities and Exchange
Commission
(the "Commission") a registration statement
on Form S-3 (Number 333-127233)
relating to its Mortgage Pass-Through
Certificates and the offering of certain
series thereof (including certain classes
of the Certificates) from time to time
in accordance with Rule 415 under the
Securities Act of 1933, as amended, and
the rules and regulations of the Commission
promulgated thereunder (the
"Securities Act"). Such registration
statement, when it became effective under
the Securities Act, and the prospectus
relating to the public offering of
certain classes of the Certificates by the
Purchaser (the "Public Offering"), as
from time to time each is amended or
supplemented pursuant to the Securities Act
or otherwise, are referred to herein as the
"Registration Statement" and the
"Prospectus," respectively. The "Prospectus
Supplement" shall mean that
supplement, dated November 11, 2005 to the
Prospectus, dated August 26, 2005,
relating to certain classes of the
Certificates. With respect to the Public
Offering of certain classes of the
Certificates, the Purchaser and Merrill
Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") have entered into a
terms agreement dated as of November 10,
2005 to an underwriting agreement dated
February 28, 2003, between the Purchaser
and Merrill Lynch (together, the
"Underwriting Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties
hereto agree as follows:
Section 1. Definitions.
Certain terms are defined herein. Capitalized terms used herein
but
not defined herein shall have the meanings
specified in the Pooling and
Servicing Agreement. The following other
terms are defined as follows:
Closing Date: November 15, 2005.
Cut-off Date: October 1, 2005.
<PAGE>
Cut-off Date Balance: $1,012,984,581.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced
by a
Substitute Mortgage Loan.
Due Date: With respect to each Mortgage Loan, the first day in
each
month.
Master Servicer: Wells Fargo Bank, N.A.
Merrill Lynch: Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
Moody's: Moody's Investors Service, Inc., or its successors in
interest.
Mortgage: The mortgage or deed of trust creating a first lien on
an
interest in real property securing a
Mortgage Note.
Mortgage File: The items referred to in Exhibit 1 and Exhibit 2
pertaining to a particular Mortgage Loan
and any additional documents required
to be added to such documents pursuant to
this Agreement.
Mortgage Interest Rate: The annual rate of interest borne by a
Mortgage Note as stated therein.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Rate: For each Mortgage Loan, the Mortgage Interest Rate for
such
Mortgage Loan less the Master Servicing Fee
Rate and the Trustee Fee Rate.
Offered Certificates: Shall mean the Class A-1A, Class A-1B,
Class
A-1B2, Class A-1B3, Class A-1B4, Class
A-1C1, Class A-1C2, Class A-2A, Class
A-2B1, Class A-2B2, Class A-3A1, Class
A-3A2, Class A-3A3, Class M-1, Class M-2,
Class B-1 and Class B-2 Certificates issued
pursuant to the Pooling and
Servicing Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
counsel
for the Seller or the Purchaser, reasonably
acceptable to the Trustee.
Person: Any legal person, including any individual,
corporation,
partnership, joint venture, association,
joint stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
Purchase Price: With respect to any Mortgage Loan required to
be
purchased by the Seller pursuant to the
applicable provisions of this Agreement,
an amount equal to the sum of (i) 100% of
the principal remaining unpaid on such
Mortgage Loan as of the date of purchase
(including if a foreclosure has already
occurred, the principal balance of the
related Mortgage Loan at the time the
Mortgaged Property was acquired), and (ii)
accrued and unpaid interest thereon
at the Mortgage Interest Rate through and
including the last day of the month of
purchase (iii) any costs and damages
incurred by the Trust in connection with
any violation by such Mortgage Loan of any
predatory or abusive-lending law.
2
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Rating Agencies: S&P and Moody's, each a "Rating Agency."
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.,
or its successors in interest.
Securities Act: The Securities Act of 1933, as amended.
Substitute Mortgage Loan: A mortgage loan substituted for a
Deleted
Mortgage Loan which must meet on the date
of such substitution the requirements
stated herein and in the Pooling and
Servicing Agreement; upon such
substitution, such mortgage loan shall be a
"Mortgage Loan" hereunder.
Value: The value of the Mortgaged Property at the time of
origination
of the related Mortgage Loan, such value
being the lesser of (i) the value of
such property set forth in an appraisal
accepted by the Originator or (ii) the
sales price of such property at the time of
origination.
Section 2. Purchase and Sale of the
Mortgage Loans and Related Rights.
(a) Upon satisfaction of the conditions set forth in Section 10
hereof, the Seller agrees to sell, and the
Purchaser agrees to purchase Mortgage
Loans having an aggregate Cut-off Date
Balance of $1,012,984,581.
(b) The closing for the purchase and sale of the Mortgage Loans
and
the closing for the issuance of the
Certificates will take place on the Closing
Date at the office of the Purchaser's
counsel in New York, New York or such
other place as the parties shall agree.
(c) Upon the satisfaction of the conditions set forth in Section
10
hereof, on the Closing Date, in
consideration of the purchase of the Mortgage
Loans, the Purchaser shall (i) pay to the
Seller an amount equal to the net sale
proceeds of the Offered Certificates plus
accrued interest (the "Purchase
Price") in immediately available funds by
wire transfer to such account or
accounts as shall be designated by the
Seller and (ii) deliver to the Seller the
Class B.
(d) In addition to the foregoing, on the Closing Date the
Seller
assigns to the Purchaser without recourse
all of its right, title and interest
in (1) the Master Mortgage Loan Purchase
and Servicing Agreement, dated as of
April 1, 2003, between Merrill Lynch
Mortgages Holdings Inc. ("MLMH"), Terwin
Advisors LLC ("Terwin") and GreenPoint
Mortgage Funding, Inc. ("GreenPoint"), as
amended by Amendment No. 1, dated as of
August 20, 2003 among MLMH, Terwin and
GreenPoint, (2) the Assignment, Assumption
and Recognition Agreement, dated as
of November 15, 2005, among the Seller, the
Purchaser and GreenPoint, (3) the
Mortgage Loan Purchase and Interim
Servicing Agreement, dated as of June 24,
2005, between the Seller and Ameriquest
Mortgage Company ("Ameriquest") and the
Bring-Down Letter related thereto and (4)
the Mortgage Loan Flow Purchase, Sale
& Servicing Agreement, dated as of
March 27, 2001, among Merrill Lynch Mortgage
Capital Inc. ("MLMC"), Cendant Mortgage
Corporation and Bishop's Gate
Residential Mortgage Trust, formerly known
as Cendant Residential Mortgage
Trust, and (5) the Assignment, Assumption
and Recognition Agreement, dated as of
November 15, 2005, among the Seller, the
Purchaser and PHH Mortgage Corporation,
formerly known as Cendant Mortgage
Corporation ("PHH").
3
<PAGE>
Section 3. Mortgage Loan Schedules.
The Seller agrees to provide to the Purchaser as of the date hereof
a
preliminary listing of the Mortgage Loans
(the "Preliminary Mortgage Loan
Schedule") setting forth the information
listed on Exhibit 3 to this Agreement
with respect to each of the Mortgage Loans
being sold by the Seller. If there
are changes to the Preliminary Mortgage
Loan Schedule, the Seller shall provide
to the Purchaser as of the Closing Date a
final schedule (the "Final Mortgage
Loan Schedule") setting forth the
information listed on Exhibit 3 to this
Agreement with respect to each of the
Mortgage Loans being sold by the Seller to
the Purchaser. The Final Mortgage Loan
Schedule shall be delivered to the
Purchaser on the Closing Date, shall be
attached to an amendment to this
Agreement to be executed on the Closing
Date by the parties hereto and shall be
in form and substance mutually agreed to by
the Seller and the Purchaser (the
"Amendment"). If there are no changes to
the Preliminary Mortgage Loan Schedule,
the Preliminary Mortgage Loan Schedule
shall be the Final Mortgage Loan Schedule
for all purposes hereof.
Section 4. Mortgage Loan Transfer.
(a) The Purchaser will be entitled to all scheduled payments of
principal and interest on the Mortgage
Loans due after the Cut-off Date
(regardless of when actually collected) and
all payments thereof other than
scheduled principal and interest received
after the Cut-off Date. The Seller
will be entitled to all scheduled payments
of principal and interest on the
Mortgage Loans due on or before the Cut-off
Date (including payments collected
after the Cut-off Date) and all payments
thereof other than scheduled principal
and interest on the Mortgage Loans received
on or before the Cut-off Date. Such
principal amounts and any interest thereon
belonging to the Seller as described
above will not be included in the aggregate
outstanding principal balance of the
Mortgage Loans as of the Cut-off Date as
set forth on the Final Mortgage Loan
Schedule.
(b) Pursuant to various conveyancing documents to be executed on
the
Closing Date and pursuant to the Pooling
and Servicing Agreement, the Purchaser
will assign on the Closing Date all of its
right, title and interest in and to
the Mortgage Loans to the Trustee for the
benefit of the Certificateholders. In
connection with the transfer and assignment
of the Mortgage Loans, the Seller
has delivered or will deliver or cause to
be delivered to the Trustee by the
Closing Date or such later date as is
agreed to by the Purchaser and the Seller
(each of the Closing Date and such later
date is referred to as a "Mortgage File
Delivery Date"), the items of each Mortgage
File, provided, however, that in
lieu of the foregoing, the Seller may
deliver the following documents, under the
circumstances set forth below: (x) in lieu
of the original Mortgage, assignments
to the Trustee or intervening assignments
thereof which have been delivered, are
being delivered or will upon receipt of
recording information relating to the
Mortgage required to be included thereon,
be delivered to recording offices for
recording and have not been returned in
time to permit their delivery as
specified above, the Seller may deliver a
true copy thereof with a certification
by the Seller or the Originator, on the
face of such copy, substantially as
follows: "Certified to be a true and
correct copy of the original, which has
been transmitted for recording;" (y) in
lieu of the Mortgage, assignments to the
Trustee or intervening assignments thereof,
if the applicable jurisdiction
retains the originals of such documents or
if the originals are lost (in each
case, as evidenced by a certification from
the Seller to such effect), the
Seller may deliver photocopies of such
documents containing an original
certification by the judicial or other
governmental authority of the
jurisdiction where such documents were
recorded;
4
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and (z) in lieu of the Mortgage Notes
relating to the Mortgage Loans, each
identified in the list delivered by the
Purchaser to the Trustee on the Closing
Date and attached hereto as Exhibit 6 the
Seller may deliver lost note
affidavits and indemnities of the Seller;
and provided further, however, that in
the case of Mortgage Loans which have been
prepaid in full after the Cut-off
Date and prior to the Closing Date, the
Seller, in lieu of delivering the above
documents, may deliver to the Trustee a
certification by the Seller to such
effect. The Seller shall deliver such
original documents (including any original
documents as to which certified copies had
previously been delivered) or such
certified copies to the Trustee promptly
after they are received. The Seller
shall cause the Mortgage and intervening
assignments, if any, and the assignment
of the Mortgage to be recorded not later
than 180 days after the Closing Date,
or, in lieu of such assignments, shall
provide an Opinion of Counsel pursuant to
Section 6(a) hereof to the effect that the
recordation of such assignment is not
necessary to protect the Trustee's interest
in the related Mortgage Loan. Upon
the request of the Purchaser, the Seller
will assist the Purchaser in effecting
the assignment referred to above.
(c) The Seller and the Purchaser acknowledge hereunder that all of
the
Mortgage Loans and the related servicing
will ultimately be assigned to Wachovia
Bank, National Association, as Trustee for
the Certificateholders, on the date
hereof.
Section 5. Examination of Mortgage
Files.
(a) On or before the Mortgage File Delivery Date, the Seller will
have
made the Mortgage Files available to the
Purchaser or its agent for examination
which may be at the offices of the Trustee
or the Seller and/or the Seller's
custodian. The fact that the Purchaser or
its agent has conducted or has failed
to conduct any partial or complete
examination of the Mortgage Files shall not
affect the Purchaser's rights to demand
cure, repurchase, substitution or other
relief as provided in this Agreement. In
furtherance of the foregoing, the
Seller shall make the Mortgage Files
available to the Purchaser or its agent
from time to time so as to permit the
Purchaser to confirm the Seller's
compliance with the delivery and
recordation requirements of this Agreement and
the Pooling and Servicing Agreement. In
addition, upon request of the Purchaser,
the Seller agrees to provide to the
Purchaser, Merrill Lynch and to any
investors or prospective investors in the
Certificates information regarding the
Mortgage Loans and their servicing, to make
the Mortgage Files available to the
Purchaser, Merrill Lynch and to such
investors or prospective investors (which
may be at the offices of the Seller and/or
the Seller's custodian) and to make
available personnel knowledgeable about the
Mortgage Loans for discussions with
the Purchaser, Merrill Lynch and such
investors or prospective investors, upon
reasonable request during regular business
hours, sufficient to permit the
Purchaser, Merrill Lynch and such investors
or potential investors to conduct
such due diligence as any such party
reasonably believes is appropriate.
(d) Pursuant to the Pooling and Servicing Agreement, on the
Closing
Date the Trustee, for the benefit of the
Certificateholders, will review items
of the Mortgage Files as set forth on
Exhibit 1 and will deliver to the Seller a
certification in the form attached as
Exhibit One to the Custodial Agreement.
(e) Pursuant to the Pooling and Servicing Agreement, the Trustee
will
review the Mortgage Files within 180 days
of the Closing Date and will deliver
to the Purchaser a final certification
substantially in the form of Exhibit Two
to the Custodial Agreement. If the
Trustee
5
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is unable to deliver a final certification
with respect to the items listed in
Exhibit 2 due to any document that is
missing, has not been executed, is
unrelated, determined on the basis of the
Mortgagor name, original principal
balance and loan number, to the Mortgage
Loans identified in the Final Mortgage
Loan Schedule (a "Material Defect"), the
Trustee shall notify the Seller of such
Material Defect. The Seller shall correct
or cure any such Material Defect
within 90 days from the date of notice from
the Trustee of the Material Defect
and if the Seller does not correct or cure
such Material Defect within such
period and such defect materially and
adversely affects the interests of the
Certificateholders in the related Mortgage
Loan, the Seller will, in accordance
with the terms of the Pooling and Servicing
Agreement, within 90 days of the
date of notice, provide the Trustee with a
Substitute Mortgage Loan (if within
two years of the Closing Date) or purchase
the related Mortgage Loan at the
applicable Purchase Price; provided,
however, that if such defect relates solely
to the inability of the Seller to deliver
the original security instrument or
intervening assignments thereof, or a
certified copy because the originals of
such documents, or a certified copy, have
not been returned by the applicable
jurisdiction, the Seller shall not be
required to purchase such Mortgage Loan if
the Seller delivers such original documents
or certified copy promptly upon
receipt, but in no event later than 360
days after the Closing Date. The
foregoing repurchase obligation shall not
apply in the event that the Seller
cannot deliver such original or copy of any
document submitted for recording to
the appropriate recording office in the
applicable jurisdiction because such
document has not been returned by such
office; provided that the Seller shall
instead deliver a recording receipt of such
recording office or, if such receipt
is not available, a certificate of the
Seller confirming that such documents
have been accepted for recording, and
delivery to the Trustee shall be effected
by the Seller within thirty days of its
receipt of the original recorded
document.
(f) At the time of any substitution, the Seller shall deliver or
cause
to be delivered the Substitute Mortgage
Loan, the related Mortgage File and any
other documents and payments required to be
delivered in connection with a
substitution pursuant to the Pooling and
Servicing Agreement. At the time of any
purchase or substitution, the Trustee shall
(i) assign to the Seller and cause
the Trustee to release the documents
(including, but not limited to, the
Mortgage, Mortgage Note and other contents
of the Mortgage File) in the
possession of the Trustee relating to the
Deleted Mortgage Loan and (ii) execute
and deliver such instruments of transfer or
assignment, in each case without
recourse, as shall be necessary to vest in
the Seller title to such Deleted
Mortgage Loan.
Section 6. Recordation of Assignments of
Mortgage.
(a) The Seller will, promptly after the Closing Date, cause
each
Mortgage and each assignment of Mortgage
from the Seller to the Trustee, and all
unrecorded intervening assignments, if any,
delivered on or prior to the Closing
Date, to be recorded in all recording
offices in the jurisdictions where the
related Mortgaged Properties are located;
provided, however, the Seller need not
cause to be recorded any assignment which
relates to a Mortgage Loan in any
jurisdiction under the laws of which, as
evidenced by an Opinion of Counsel, the
recordation of such assignment is not
necessary to protect the Trustee's
interest in the related Mortgage Loan;
provided, however, notwithstanding the
delivery of any Opinion of Counsel, each
assignment of Mortgage shall be
submitted for recording by the Seller in
the manner described above, at no
expense to the Trust Fund or Trustee, upon
the earliest to occur of (i)
reasonable direction by the Holders of
Certificates evidencing, in the
aggregate, not less than 25% of the Voting
Rights, (ii) the occurrence of a
Master Servicer Event of Termination
(upon
6
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instruction of the Seller), (iii) the
occurrence of a bankruptcy, insolvency or
foreclosure relating to the Seller, (iv)
the occurrence of a servicing transfer
as described in Section 7.02 of the Pooling
and Servicing Agreement or (v) with
respect to any one assignment of Mortgage,
the occurrence of a bankruptcy,
insolvency or foreclosure relating to the
Mortgagor under the related Mortgage.
While each such Mortgage or assignment is being recorded, if
necessary, the Seller shall leave or cause
to be left with the Trustee a
certified copy of such Mortgage or
assignment. In the event that, within 180
days of the Closing Date, the Trustee has
not provided an Opinion of Counsel as
described above or received evidence of
recording with respect to each Mortgage
Loan delivered to the Purchaser pursuant to
the terms hereof or as set forth
above, the failure to provide evidence of
recording or such Opinion of Counsel
shall be considered a Material Defect, and
the provisions of Section 5(c) and
(d) shall apply. All customary recording
fees and reasonable expenses relating
to the recordation of the assignments of
mortgage to the Trustee or the Opinion
of Counsel, as the case may be, shall be
borne by the Seller.
(g) It is the express intent of the parties hereto that the
conveyance
of the Mortgage Loans by the Seller to the
Purchaser, as contemplated by this
Agreement be, and be treated as, a sale. It
is, further, not the intention of
the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the
Seller to the Purchaser to secure a debt or
other obligation of the Seller.
However, in the event that, notwithstanding
the intent of the parties, the
Mortgage Loans are held by a court of
competent jurisdiction to continue to be
property of the Seller, then (i) this
Agreement shall also be deemed to be a
security agreement within the meaning of
Articles 8 and 9 of the applicable
Uniform Commercial Code; (ii) the transfer
of the Mortgage Loans provided for
herein shall be deemed to be a grant by the
Seller to the Purchaser of a
security interest in all of the Seller's
right, title and interest in and to the
Mortgage Loans and all amounts payable to
the holders of the Mortgage Loans in
accordance with the terms thereof and all
proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash,
instruments, securities or other
property, to the extent the Purchaser would
otherwise be entitled to own such
Mortgage Loans and proceeds pursuant to
Section 4 hereof, including all amounts,
other than investment earnings, from time
to time held or invested in any
accounts created pursuant to the Pooling
and Servicing Agreement, whether in the
form of cash, instruments, securities or
other property; (iii) the possession by
the Purchaser or the Trustee of Mortgage
Notes and such other items of property
as constitute instruments, money,
negotiable documents or chattel paper shall be
deemed to be "possession by the secured
party" for purposes of perfecting the
security interest pursuant to Section 9-305
(or comparable provision) of the
applicable Uniform Commercial Code; and
(iv) notifications to persons holding
such property, and acknowledgments,
receipts or confirmations from persons
holding such property, shall be deemed
notifications to, or acknowledgments,
receipts or confirmations from, financial
intermediaries, bailees or agents (as
applicable) of the Purchaser for the
purpose of perfecting such security
interest under applicable law. Any
assignment of the interest of the Purchaser
pursuant to any provision hereof or
pursuant to the Pooling and Servicing
Agreement shall also be deemed to be an
assignment of any security interest
created hereby. The Seller and the
Purchaser shall, to the extent consistent
with this Agreement, take such actions as
may be reasonably necessary to ensure
that, if this Agreement were deemed to
create a security interest in the
Mortgage Loans, such security interest
would be deemed to be a perfected
security interest of first priority under
applicable law and will be maintained
as such throughout the term of the Pooling
and Servicing Agreement.
7
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Section 7. Representations and Warranties
of Seller Concerning the Mortgage
Loans.
The Seller hereby represents and warrants to the Purchaser as of
the
Closing Date or such other date as may be
specified below with respect to each
Mortgage Loan being sold by it:
(a) the information set forth in the Mortgage Loan Schedule hereto
is
true and correct
in all material respects;
(b) immediately prior to the transfer to the Purchaser, the Seller
was
the sole owner
of beneficial title and holder 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, participation interests,
equities,
pledges, charges or security interests of any nature and the
Seller has full
right and authority to sell or assign the same pursuant to
this
Agreement;
(c) no selection procedure reasonably believed by the Seller to
be
adverse to the
interests of the Certificateholders was utilized in
selecting the
Mortgage Loans;
(d) each Mortgage Loan constitutes a "qualified mortgage" under
Section
860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1);
(e)
no Mortgage Loan is in foreclosure;
(f) no Mortgage Loan provides for interest other than at either (i)
a
single fixed
rate in effect throughout the term of the Mortgage Loan or
(ii) a "variable
rate" (within the meaning of Treas. Reg. Section
1.860G-1(a)(3))
in effect throughout the term of the Mortgage Loan;
(g) the Seller would not, based on the delinquency status of
the
Mortgage Loans,
institute foreclosure proceedings with respect to any of
the Mortgage
Loans prior to the next scheduled payment for such Mortgage
Loan;
(h) the information set forth under the caption "The Mortgage
Pool--General"
and "--Tabular Characteristics of the Mortgage Pool" in the
Prospectus
Supplement is true and correct in all material respects;
(i) as of the Cut-off Date, no Mortgage Loan is more than 30 days
past
due. The Seller
has not advanced funds, or induced, solicited or knowingly
received any
advance of funds from a party other than the owner of the
related
Mortgaged Property, directly or indirectly, for the payment of
any
amount required
by the Mortgage Note or Mortgage;
(j) to the best of the Seller's knowledge, there are no
delinquent
taxes, ground
rents, water charges, sewer rents, assessments, insurance
premiums,
leasehold payments, including assessments payable in future
installments or
other outstanding charges affecting the related Mortgaged
Property;
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(k) to the best of the Seller's knowledge, there is no default,
breach,
violation or event of acceleration existing under the Mortgage
or
the Mortgage
Note and no event which, with the passage of time or with
notice and the
expiration of any grace or cure period, would constitute a
default, breach,
violation or event of acceleration, and the Seller has not
waived any
default, breach, violation or event of acceleration;
(l) to the best of the Seller's knowledge, the Mortgaged Property
is
free of damage
and waste and there is no proceeding pending for the total
or partial
condemnation thereof;
(m) to the best of the Seller's knowledge, the Mortgaged Property
is
lawfully occupied under applicable
law at time of origination; all
inspections,
licenses and certificates required to be made or issued with
respect to all
occupied portions of the Mortgaged Property and, with
respect to the
use and occupancy of the same, including but not limited to
certificates of
occupancy, have been made or obtained from the appropriate
authorities;
(n) all requirements of any federal, state or local law
(including
usury, truth in
lending, real estate settlement procedures, consumer credit
protection,
equal credit opportunity, disclosure or recording, predatory
and abusive
lending laws) applicable to the origination and servicing of
such Mortgage
Loan have been complied with in all material respects;
(o) to the best of the Seller's knowledge, as of the date of
transfer
of the Mortgage
Loans, there is no mechanics' lien or claim for work, labor
or material
affecting the Mortgaged Property except those which are insured
against by the
title insurance policy;
(p) to the best of the Seller's knowledge, as of the date of
the
transfer of the
Mortgage Loans to the Purchaser, there is no valid offset,
defense or
counterclaim to any Mortgage Note or Mortgage;
(q) to the best of the Seller's knowledge, as of the date of
closing,
the physical
property subject to any mortgage is free of material damage
and is in good
repair;
(r) at the time of origination, no improvement located on or
being
part of the
Mortgaged Property was in violation of any applicable zoning
and subdivision
laws or ordinances;
(s) each Mortgage Loan is and will be a mortgage loan arising out
of
the originator's
practice in accordance with the seller/originator's
underwriting
guidelines. The seller has no knowledge of 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;
(t) each original mortgage has been recorded or is in the process
of
being recorded
in the appropriate jurisdictions wherein such recordation is
required to
perfect the lien thereof for the benefit of the trust;
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(u) the related mortgage file contains each of the documents
and
instruments
specified;
(v) loans originated are being serviced according to the
seller/servicer
guidelines;
(w) the mortgage note and the mortgage have not been impaired,
altered
or modified in
any material respect, except by a written instrument which
has been
recorded or is in the process of being recorded;
(x) a lender's title policy or binder, or other assurance of
title
insurance
customary in a form acceptable to FNMA or FHLMC was issued at
origination and
each policy or binder is valid and remains in full force
and effect;
(y) none of the Mortgage Loans are secured by a leasehold
interest;
(z) none of the Mortgage Loans are subject to the Georgia Fair
Lending
Act, as
amended;
(aa) none of the Mortgage Loans is subject to the Home Ownership
and
Equity
Protection Act of 1994 or is a "high cost" or "predatory" loan
as
defined by
applicable local, state and federal predatory and abusive
lending laws;
and
(bb) no Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as
such terms are defined in Appendix E of the then current
Standard &
Poor's Glossary For File Format For LEVELS(R) Version 5.6b
Revised
(attached hereto as Exhibit 7).
It is understood and agreed that the representations and
warranties
set forth in this Section 7 will inure to
the benefit of the Purchaser, its
successors and assigns, notwithstanding any
restrictive or qualified endorsement
on any Mortgage Note or assignment of
Mortgage or the examination of any
Mortgage File. Upon any substitution for a
Mortgage Loan, the representations
and warranties set forth above shall be
deemed to be made by the Seller as to
any Substitute Mortgage Loan as of the date
of substitution.
Upon discovery or receipt of notice by the Seller, the Purchaser
or
the Trustee of a breach of any
representation or warranty of the Seller set
forth in this Section 7 which materially
and adversely affects the value of the
interests of the Purchaser, the
Certificateholders or the Trustee in any of the
Mortgage Loans delivered to the Purchaser
pursuant to this Agreement, the party
discovering or receiving notice of such
breach shall give prompt written notice
to the others. In the case of any such
breach of a representation or warranty
set forth in this Section 7, within 90 days
from the date of discovery by the
Seller, or the date the Seller is notified
by the party discovering or receiving
notice of such breach (whichever occurs
earlier), the Seller will (i) cure such
breach in all material
