HOME EQUITY LINE OF CREDIT (HELOC) REVOLVING CREDIT LOAN PURCHASE, SALE & SERVICING AGREEMENTRevolving Credit Agreement |
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Exhibit 10.66
HOME EQUITY LINE OF CREDIT (HELOC) REVOLVING CREDIT LOAN PURCHASE, SALE & SERVICING AGREEMENT dated as of February 3, 2004 between WACHOVIA BANK, N.A. Purchaser AND E-LOAN, INC. Seller
Table of Contents
Schedules* A. Revolving Credit Loan Schedule Data Fields B. Content of Mortgage File B-1 Legal Documents B-2 Credit Documents C. Seller Guide- Applicable Guidelines and Restrictions D. Sample Purchase Price and Terms Letter Exhibits* Exhibit 2.05 Form of Assignment, Assumption and Recognition Agreement Exhibit 5.03 Form of Notice of Foreclosure Exhibit 5.04-1 Form of Collection Account Certification Exhibit 5.04-2 Form of Collection Account Letter Agreement Exhibit 6.02(a) Report P-139 -- Monthly Statement of Mortgage Accounts Exhibit 6.02(b) Report S-213 -- Summary of Curtailments Made Remittance Report Exhibit 6.02(c) Report S-214 -- Summary of Paid in Full Remittance Report Exhibit 6.02(d) Report S-215 -- Consolidation of Remittance Report Exhibit 6.02(e) Report S1AE -- Monthly Draw Report Exhibit 8.01 Report P-195 Delinquency Report Exhibit 9 Form of Officer's Certificate Exhibit 10 Form of Warranty Bill of Sale
*Exhibits and schedules have been omitted in accordance with Item 601 of Regulation S-K, and will be provided upon request.
HELOC MORTGAGE LOAN PURCHASE, SALE & SERVICING AGREEMENT This HELOC Revolving Credit Loan Purchase, Sale & Servicing Agreement, dated as of February 3, 2004, is entered into between Wachovia Bank, N.A. ("Purchaser") and E-Loan, Inc., a Delaware corporation ("Seller"). PRELIMINARY STATEMENT 1. Seller is engaged in the business, inter alia , of making variable rate open-end home equity mortgage loans to individuals, the repayment of which is secured by a first or second lien mortgage on such individuals' residences. 2. Wachovia Bank, N.A. is engaged in the business, inter alia , of purchasing and making variable rate open-end home equity mortgage loans for its own account. 3. Seller has established certain terms, conditions and loan programs for making variable rate open-end home equity mortgage loans as described in Seller's Program and Underwriting Guidelines (the "Seller Guide") and Wachovia Bank, N.A. is willing to purchase certain mortgage loans that comply with the terms of such terms, conditions and loan programs (the "Revolving Credit Loans"). The applicable provisions of the Seller Guide are attached hereto as Schedule C. 4. Wachovia Bank, N.A. and Seller desire to establish a flow program whereby Seller will make variable rate open-end home equity mortgage loans which meet the applicable provisions of the Seller Guide, and Wachovia Bank, N.A. will, on a regular basis, purchase such mortgage loans from Seller, as applicable, provided the parties agree on the price, date and other conditions or considerations as set forth in this Agreement. 5. Wachovia Bank, N.A. and Seller wish to prescribe the terms and manner of purchase by Wachovia Bank, N.A. and sale by Seller of the Revolving Credit Loans, and the servicing of the Revolving Credit Loans prior to transfer of the servicing to Wachovia Bank, N.A. or its designee by Seller, as the Servicer, in this Agreement. NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth, Wachovia Bank, N.A. and Seller agree as follows :
Section 1.01 Defined Terms . Whenever used in this Agreement, the following words and phrases shall have the meaning specified in this Article: "Accepted Servicing Practices": Those servicing standards, policies and procedures applicable to mortgage loans owned by Fannie Mae and Freddie Mac as set forth in the respective servicing guidelines of each such entity for servicers of such mortgage loans, or, with respect to matters not addressed thereby, those customary and usual standards of servicing utilized by prudent institutional mortgage loan servicers with respect to mortgage loans comparable to the Revolving Credit Loans, in the jurisdiction where the Revolving Credit Loans are located. "Accrued Interest": With respect to a Revolving Credit Loan, interest which is accrued and unpaid at the effective Note Rate determined in accordance with the Mortgage Note less the Servicing Fee Rate on the average daily balance of Credit Line Advances outstanding from the date with respect to which interest has last been paid to and received by the Seller to, and including, the last day of the calendar month immediately preceding the calendar month in which the Funding Date occurs. "Affiliate": When used with reference to a specified Person, any Person that (i) directly or indirectly controls or is controlled by or is under common control with the specified Person, (ii) is an officer of, partner in or trustee of, or serves in a similar capacity with respect to, the specified person or of which the specified Person is an officer, partner or trustee, or with respect to which the specified Person serves in a similar capacity, or (iii) directly or indirectly is the beneficial owner of 10% or more of any class of equity securities of the specified Person or of which the specified person is directly or indirectly the owner of 10% or more of any class of equity securities. "Agreement": This HELOC Revolving Credit Loan Purchase, Sale & Servicing Agreement between the Purchaser and the Seller, together with all amendments hereof and supplements hereto. "ALTA": The American Land Title Association. "Appraised Value": With respect to any Mortgaged Property, the lesser of: (i) the value thereof as determined by an appraisal made for the originator of the Revolving Credit Loan at the time of origination of the Revolving Credit Loan by an appraiser who met the minimum requirements of FNMA and FHLMC or the value as determined using another collateral assessment tool approved by the Seller Guide, including, but not limited to, broker's price opinions, AVMs or HUD-1 Settlement Statements or a FNMA Form 2005 or a FHMLC Form 704; or (ii) the purchase price paid for the related Mortgaged Property by the Mortgagor with the proceeds of the Revolving Credit Loan; provided that, in the case of a Refinanced Revolving Credit Loan, such value of the Mortgaged Property shall be based solely upon the value determined by an appraisal made for the originator of such Refinanced Revolving Credit Loan at the time of origination of such Refinanced Revolving Credit Loan by an appraiser who met the minimum requirements of FNMA and FHLMC or any other collateral assessment tool approved by the Seller Guide.
"ARM Loan": An 'adjustable rate' Revolving Credit Loan, the Note Rate of which is subject to periodic adjustment in accordance with the terms of the Mortgage Note. Each Revolving Credit Loan subject to this Agreement shall be an ARM Loan. "Assignment": An individual assignment of a Mortgage, notice of transfer or equivalent instrument in recordable form, sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to reflect of record the sale or transfer of the Revolving Credit Loan. "Bankruptcy Code": The Bankruptcy Reform Act of 1978 (11 U.S.C. 101-1330), as amended, modified, or supplemented from time to time, and any successor statute, and all rules and regulations issued or promulgated in connection therewith. "Business Day": Any day other than (i) a Saturday or Sunday, or (ii) a day on which the Federal Reserve is closed; "Closing Date": February 3, 2004. . "Code": The Internal Revenue Code of 1986, as amended. "Collection Account": The separate trust account or accounts created and maintained pursuant to Section 5.04. "Combined Loan-to-Value Ratio" or "CLTV": With respect to any Revolving Credit Loan, the ratio (expressed as a percentage) equal to the sum of (a) the Credit Line, plus (y) the outstanding principal balance of any Senior Liens on the Mortgaged Property as of the Cut-off Date divided by (b) the Appraised Value of the related Mortgaged Property. "Condemnation Proceeds": All awards or settlements, whether permanent or temporary, partial or entire, in respect of a Mortgaged Property by exercise of the power of eminent domain or condemnation (or consideration received for a deed in lieu of condemnation), to the extent not required to be released to a Mortgagor in accordance with the terms of the related Revolving Credit Loan documents. "Credit Documents": Those documents, comprising part of the Mortgage File, required of the Mortgagor, as described in Section 2 (Specific Loan Program Guidelines) of the Seller Guide. The Credit Documents are specified on Schedule B-2 hereto. "Credit Line": With respect to a Revolving Credit Loan, the maximum principal amount which may be advanced to a Mortgagor under the terms of the related Mortgage Note. "Credit Line Advance": With respect to a Revolving Credit Loan, a principal disbursement to a Mortgagor under the terms of the related Mortgage Note (collectively, "Credit Line Advances").
"Cut-off Date": With respect to any Revolving Credit Loan (i) which was originated within the month in which the respective Funding Date occurs, the origination date of such Revolving Credit Loan, or (ii) which was originated prior to the month in which the respective Funding Date occurs, the last day of the month preceding the month in which such Funding Date occurs. "Defective Revolving Credit Loan": As defined in Section 3.04(c). "Deleted Revolving Credit Loan": A Revolving Credit Loan repurchased by Seller, replaced or to be replaced with a Qualified Substitute Revolving Credit Loan. "Delinquency Percentage": shall mean, with respect to any Due Period, the percentage result equal to the sum of aggregate Credit Line Advances outstanding with respect to all Revolving Credit Loans (a) for which the scheduled Monthly Payment due during such Due Period has not been made by the related Mortgagor, (b) for which the related borrower has filed for bankruptcy protection, (c) which are in foreclosure, and (d) with respect to which the related Mortgaged Property is characterized as an REO Property, in each case as of the close of business on the last Business Day of such Due Period, divided by the aggregate Credit Line Advances outstanding on of all of the Revolving Credit Loans on such date. "Determination Date": The close of business of the last Business Day of the month immediately preceding the month of the related Remittance Date. "Due Date": With respect to any Revolving Credit Loan, the day of the month on which each Monthly Payment is due thereon, exclusive of any days of grace. "Due Period": With respect to each Remittance Date, the period commencing on the first day of the month immediately preceding the month of such Remittance Date and ending on the last day of the month immediately preceding the month of such Remittance Date. "Eligible Account": One or more accounts that are maintained (i) with a depository institution the long-term unsecured debt obligations of which have been rated by each Rating Agency in one of its two highest rating categories at the time of any deposit therein, (ii) that are trust accounts with any depository institution held by the depository institution in its capacity as a corporate trustee, or (iii) the deposits in which are insured by the FDIC (to the limits established by the FDIC). "Environmental Assessment": A "Phase I" environmental assessment of a Mortgaged Property prepared by an Independent Person who regularly conducts environmental assessments and who has any necessary license(s) required by applicable law and has five years experience in conducting environmental assessments. "Environmental Conditions Precedent to Foreclosure": As defined in Section 5.15. "Environmental Laws": All federal, state, and local statutes, laws, regulations, ordinances, rules, judgments, orders, decrees or other governmental restrictions relating to the environment or to emissions, discharges or releases of pollutants, contaminants or industrial, toxic or hazardous substances or wastes into the environment, including ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants or industrial, toxic or hazardous substances or wastes or the cleanup or other remediation thereof.
"Estimated Accrued Interest": With respect to a Revolving Credit Loan and the calendar month in which the related Funding Date occurs, an amount equal to accrued and unpaid interest for the period from, and including, the first day of such calendar month to, but not including, the Funding Date at the applicable Mortgage Interest Rate for such month less the Servicing Fee Rate on the unpaid principal balance of Credit Line Advances outstanding as of the close of business on the Cut-off Date. "Estimated Purchase Price": The aggregate amount equal to, for each Revolving Credit Loan, the sum of (a) the Purchase Price Percentage of the Stated Principal Balance of each Revolving Credit Loan plus , (b) Estimated Accrued Interest, minus (c) interest payments received by the Seller that, in accordance with the terms of the Mortgage Note, were due on or after the related Funding Date. "Event of Default": Any one of the conditions or circumstances enumerated in Section 10.01. "FDIC": The Federal Deposit Insurance Corporation or any successor organization. "FHLMC": The Federal Home Loan Mortgage Corporation (also known as Freddie Mac) or any successor organization. "FHLMC Servicing Guide": The FHLMC/Freddie Mac Seller' and Servicers' Guide in effect on and after the Funding Date. "Fidelity Bond": A fidelity bond to be maintained by the Servicer pursuant to Section 5.12. "FNMA": The Federal National Mortgage Association (also known as Fannie Mae) or any successor organization. "FNMA Guide": The FNMA/Fannie Mae Selling Guide and the Servicing Guide, collectively, in effect on and after the Funding Date. "Funding Date": Each date, as specified in the related Purchase Price and Terms Letter (up to four per month), upon which Purchaser purchases Revolving Credit Loans from the Seller hereunder. "Funding Date Scheduled Principal Balance": With respect to any Revolving Credit Loan and the related Funding Date, the outstanding unpaid principal balance of all Credit Line Advances related to such Revolving Credit Loan as of the Cut-off Date. "Gross Margin": With respect to each ARM Loan, the fixed percentage added to the Index on each Rate Adjustment Date, as specified in each related Mortgage Note and listed in the Revolving Credit Loan Schedule.
"Independent": With respect to any specified Person, such Person who: (i) does not have any direct financial interest or any material indirect financial interest in the applicable Mortgagor, the Seller, the Servicer, the Purchaser, or their Affiliates; and (b) is not connected with the applicable Mortgagor, the Seller, the Servicer, the Purchaser, or their respective Affiliates as an officer, employee, promoter, underwriter, trustee, member, partner, shareholder, director, or Person performing similar functions. "Index": With respect to each ARM Loan, on each Rate Adjustment Date, the applicable rate index set forth on the Revolving Credit Loan Schedule, which shall be an index described on such Revolving Credit Loan Schedule. "Insolvency Proceeding": With respect to any Person: (i) any case, action, or proceeding with respect to such Person before any court or other governmental authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up, or relief of debtors; or (ii) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of the creditors generally of such Person or any substantial portion of such Person's creditors; in any case undertaken under federal, state or foreign law, including the Bankruptcy Code. "Insurance Proceeds": Proceeds of any Purchaser-Paid Mortgage Insurance Policy, title policy, hazard policy or other insurance policy covering a Revolving Credit Loan, if any, to the extent such proceeds are not to be applied to the restoration of the related Mortgaged Property or released to the Mortgagor in accordance with the procedures that the Servicer would follow in servicing mortgage loans held for its own or its Affiliates' account or managed by it for third-party institutional investors. "Interest Adjustement Date": As to any ARM Loan, the date specified in a Mortgage Note on which the Mortgage Interest Rate for the related Mortgage Loan is subject to adjustment. "Legal Documents": Those documents, comprising part of the Mortgage File, set forth in Schedule B-1 of this Agreement. "Liquidation Proceeds": Amounts, other than Insurance Proceeds and Condemnation Proceeds, received by the Servicer in connection with the liquidation of a defaulted Revolving Credit Loan through trustee's sale, foreclosure sale or otherwise, other than amounts received following the acquisition of an REO Property in accordance with the provisions hereof. "Loan-to-Value Ratio" or "LTV": With respect to any Revolving Credit Loan, the original principal balance of such Revolving Credit Loan divided by Appraised Value of the related Mortgaged Property. "MAI Appraiser": With respect to any real property, a member of the American Institute of Real Estate Appraisers with a minimum of 5 years of experience appraising real property of a type similar to the real property being appraised and located in the same geographical area as the real property being appraised.
"Maximum Rate": With respect to each ARM Loan, the rate per annum set forth in the related Mortgage Note as the maximum Note Rate thereunder. The Maximum Rate as to each ARM Loan is set forth on the related Revolving Credit Loan Schedule. "Minimum Rate": With respect to each ARM Loan, the rate per annum set forth in the related Mortgage Note as the minimum Note Rate thereunder. The Minimum Rate as to each ARM Loan is set forth on the related Revolving Credit Loan Schedule. "Monthly Payment": The monthly payment of principal and/or interest on a Revolving Credit Loan which is payable by a Mortgagor under the related Mortgage Note. "Monthly Period": Initially, the period from the Cutoff Date through to and including the first Determination Date during the term hereof, and, thereafter, the period commencing on the day after each Determination Date during the term hereof and ending on the next succeeding Determination Date during the term hereof (or, if earlier, the date on which this Agreement terminates). "Mortgage": The mortgage, deed of trust or other instrument securing a Mortgage Note, which creates a lien on an unsubordinated estate in fee simple in real property. "Mortgaged Property": With respect to a Revolving Credit Loan, the underlying real property securing repayment of a Mortgage Note, consisting of a fee simple estate. "Mortgage File": With respect to a particular Revolving Credit Loan, those origination and servicing documents, escrow documents, and other documents as are specified on Schedule B-1 and B-2 to this Agreement and any additional documents required to be added to the Mortgage File pursuant to the related Purchase Price and Terms Letter. Notwithstanding the previous sentence, the documents constituting the Mortgage File may be provided as imaged files. "Mortgage Interest Rate": As to each Mortgage Loan at any time, the annual rate at which interest accrues on such Mortgage Loan at such time pursuant to the related Mortgage Note. "Mortgage Note": The note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage. "Mortgagor": The obligor or obligors on a Mortgage Note. "90 Day Rolling Delinquency Percentage" With respect to the entire portfolio of Revolving Credit Loans, and a date of determination, a percentage equal to the weighted average of the Delinquency Percentages for the immediately preceding three Due Periods. "Non-recoverable Advance": As of any date of determination, any Servicing Advance previously made or any Servicing Advance proposed to be made in respect of a Revolving Credit Loan which, in the good faith judgment of the Servicer and in accordance with the servicing standard set forth in Section 5.01, will not or, in the case of a proposed advance, would not be ultimately recoverable pursuant to Section 5.05 (d) or (e) hereof. The determination by the Servicer that it has made a Non-recoverable Advance or that any proposed advance would constitute a Non-recoverable Advance shall be evidenced by an Officer's Certificate satisfying the requirements of Section 6.04 hereof and delivered to the Purchaser on or before the Determination Date in any month.
"Note Rate": With respect to any Revolving Credit Loan at any time any determination thereof is to be made, the annual rate at which interest accrues thereon as determined in accordance with the terms of the related Mortgage Note. "Offering Materials": All documents, tapes, or other materials relating to the Revolving Credit Loans provided by Seller to Purchaser prior to Purchaser submitting its bid to purchase the Mortgage loans. "Officers' Certificate": A certificate signed by (i) the President or a Vice President and (ii) the Treasurer or the Secretary or one of the Assistant Treasurers or Assistant Secretaries of the Servicer, and delivered by the Servicer to the Purchaser as required by this Agreement. "Payment Adjustment Date": The date on which Monthly Payments shall be adjusted as determined in accordance with the related Mortgage Note. "Payoff": With respect to any Revolving Credit Loan, any payment or recovery received in advance of the last scheduled Due Date of such Revolving Credit Loan, which payment or recovery consists of principal in an amount equal to the outstanding principal balance of such Revolving Credit Loan, all accrued and unpaid prepayment penalties, if any, premiums, and/or interest with respect thereto, and all other unpaid sums due with respect to such Revolving Credit Loan, provided that, if received during the period when Credit Line Advances can be made, the Mortgagor has requested that the Revolving Credit Line be terminated. "Periodic Rate Cap": With respect to each ARM Loan, the permissible percentage by which the Note Rate may be increased or decreased on any Rate Adjustment Date as determined in accordance with the terms of the related Mortgage Note. "Permitted Investments": Investments that mature, unless payable on demand, not later than the Business Day preceding the related Remittance Date; provided that such investments shall only consist of the following: A. direct obligations of, or obligations fully guaranteed as to principal and interest by, the United States or any agency or instrumentality thereof, provided such obligations are backed by the full faith and credit of the United States; B. repurchase obligations (the collateral for which is held by a third party), provided that the long-term unsecured obligations of the party agreeing to repurchase such obligations are at the time rated by each Rating Agency in one of its two highest rating categories, C. certificates of deposit, time deposits and bankers' acceptances of any bank or trust company incorporated under the laws of the United States or any state, provided that the long-term unsecured debt obligations of such bank or trust company (or, in the case of the principal depository institution of a depository institution holding company, the long- term unsecured debt obligations of the depository institution holding company) at the date of acquisition thereof have been rated by each Rating Agency in one of its two highest rating categories D. commercial paper (having original maturities of not more than 365 days) of any corporation incorporated under the laws of the United States or any state thereof which on the date of acquisition has been rated at the time by each Rating Agency in its highest rating category; and E. any other demand, money market or time deposit account or obligation, or interest-bearing or other security or investment, acceptable to the Purchaser (such acceptance evidenced in writing);
provided further that "Permitted Investments" shall not include any instrument described hereunder which evidences either the right to receive (a) only interest with respect to the obligations underlying such instrument or (b) both principal and interest payments derived from obligations underlying such instrument and the interest and principal payments with respect to such instrument provide a yield to maturity at par greater than 120% of the yield to maturity at par of the underlying obligations. "Person": Any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Premium": With respect to a Revolving Credit Loan, an amount equal to the Purchase Price Percentage minus 100% (each expressed as a decimal), multiplied by the Funding Date Scheduled Principal Balance of such Revolving Credit Loan. "Prepaid Monthly Payment": Any Monthly Payment received prior to its scheduled Due Date. "Purchase Price": As to each Revolving Credit Loan, the price set forth in the Revolving Credit Loan Schedule determined in accordance with the related Purchase Price and Terms Letter. "Purchase Price and Terms Letter": With respect to any pool of Revolving Credit Loans purchased and sold on any Funding Date, the letter agreement between the Purchaser and Seller (including any exhibits, schedules and attachments thereto, which shall be substantially in the form of Schedule D hereof), setting forth the terms and conditions of such transaction and describing the Revolving Credit Loans to be purchased by the Purchaser on such Funding Date, which shall include the Purchaser's Par Rate Sheet and the Addendum to Par Rate Sheet. A Purchase Price and Terms Letter may relate to more than one pool of Revolving Credit Loans to be purchased on one or more Funding Dates hereunder. "Purchase Price Percentage:" With respect to a Revolving Credit Loan, the percentage amount, as set forth on the Revolving Credit Loan Schedule, expressed as a decimal, which is multiplied by the Funding Date Scheduled Principal Balance to determine the principal portion of the related Purchase Price on the related Funding Date.
"Purchaser": WACHOVIA BANK, N.A., or its successor in interest or any successor under this Agreement appointed as herein provided. "Purchaser-Paid Mortgage Insurance Policy": With respect to the Revolving Credit Loans serviced hereunder, a primary insurance policy which is a blanket policy of primary mortgage insurance covering the Revolving Credit Loans for which the Purchaser is obligated to pay premiums in an amount determined using a per annum rate (the "Purchaser-Paid Mortgage Insurance Rate") equal to the percentage indicated on the Revolving Credit Loan Schedule. "Purchaser's Account": The account of the Purchaser at a bank or other entity most recently designated in a written notice by the Purchaser to the Seller as the "Purchaser's Account." "Qualified Mortgage Insurer": American Guaranty Corporation, Commonwealth Mortgage Assurance Company, General Electric Mortgage Insurance Companies, Mortgage Guaranty Insurance Corporation, PMI Mortgage Insurance Company, Old Republic Mortgage Insurance Company, Radian FKA Commonwealth or United Guaranty Residential Insurance Corporation. "Qualified Substitute Revolving Credit Loan": A Revolving Credit Loan substituted by a Seller for a Deleted Revolving Credit Loan which must, on the date of such substitution, (a)(i) have a Credit Line (or in the case of a substitution of more than one mortgage loan for a Deleted Revolving Credit Loan, an aggregate principal balance), not in excess of one hundred ten percent (110%) of the Credit Line of the Deleted Revolving Credit Loan and not less than ninety percent (90%) of the Credit Line of the Deleted Revolving Credit Loan (the amount of any shortfall to be distributed by the Seller to the Purchaser in the month of substitution), (ii) have a remaining term to maturity not substantially greater than (and not more than one year less than) that of the Deleted Revolving Credit Loan, (iii) have a Note Rate not less than (and not more than one percentage point greater than) the Note Rate of the Deleted Revolving Credit Loan, (iv) have a Minimum Rate not less than that of the Deleted Revolving Credit Loan, (v) have a Maximum Rate not less than that of the Deleted Revolving Credit Loan and not more than two (2) percentage points above that of the Deleted Revolving Credit Loan, (vi) have a Gross Margin not less than that of the Deleted Revolving Credit Loan, (vii) have a Periodic Rate Cap equal to that of the Deleted Revolving Credit Loan, (viii) have a Loan-to-Value Ratio at the time of substitution equal to or less than the Loan-to-Value Ratio of the Deleted Revolving Credit Loan at the time of substitution, (ix) have the same Rate Adjustment Date as that of the Deleted Revolving Credit Loan, (x) have an Index as provided herein for all ARM Loans subject to this Agreement, (xi) comply as of the date of substitution with each representation and warranty set forth in Sections 3.01, 3.02 and 3.03, (xii) be in the same credit grade category as the Deleted Revolving Credit Loan and (xiii) have the same prepayment penalty term or (b) otherwise be acceptable to the Purchaser. "Rate Adjustment Date": With respect to each ARM Loan, the date on which the Note Rate adjusts. "Rating Agency": Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Moody's Investors Service, Inc., and Fitch, Inc.
"Refinanced Revolving Credit Loan": A Revolving Credit Loan that was made to a Mortgagor who owned the Mortgaged Property prior to the origination of such Revolving Credit Loan and the proceeds of which were used in whole or part to satisfy an existing mortgage. "REMIC": A "real estate mortgage investment conduit" within the meaning of Section 860D of the Internal Revenue Code or any similar tax vehicle providing for the pooling of assets (such as a Financial Asset Security Investment Trust). "Remittance Date": The 20th day of each calendar month, commencing on the 20th day of the month following the Funding Date, or, if such 20th day is not a Business Day, then the next Business Day immediately preceding such 20th day. "Remittance Rate": With respect to each Revolving Credit Loan, the related Note Rate minus the Servicing Fee Rate. "REO Property": A Mortgaged Property acquired by the Servicer on behalf of the Purchaser as described in Section 5.13. "Repurchase Price": As to each Revolving Credit Loan required to be repurchased hereunder, an amount equal to the sum of (1) the related Purchase Price Percentage multiplied by the Stated Principal Balance of such Revolving Credit Loan at the time of repurchase; plus (2) accrued interest on such Revolving Credit Loan at the applicable Note Rate from the last date through which interest has been distributed to the Purchaser hereunder to the date of repurchase, whether or not received; plus (3) the aggregate amount of any Servicing Advances relating to such Revolving Credit Loan incurred on or prior to the Repurchase Date, minus (4) any amounts representing interest payments received in respect of such Defective Revolving Credit Loan which are being held in the Collection Account for future remittance, provided such amounts in the Collection Account are actually remitted to Purchaser. "Revolving Credit Loan": Each individual variable rate open- end home-equity mortgage loan (including all documents included in the Mortgage File evidencing the same, all Monthly Payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, and other proceeds relating thereto, and any and all rights, benefits, proceeds and obligations arising therefrom or in connection therewith) which (a) is the subject of this Agreement and the related Purchase Price and Terms Letter, (b) is identified on a Revolving Credit Loan Schedule prepared in connection with the related Funding Date, and (c) became subject to this Agreement upon payment of the Purchase Price by Purchaser on such Funding Date. "Revolving Credit Loan Schedule": The list (prepared by the Seller or its agent) of Revolving Credit Loans purchased by Purchaser on each Funding Date that sets forth the information specified on Schedule A hereto (with respect to each such Revolving Credit Loan (as such Revolving Credit Loan Schedule is amended from time to time to reflect the addition of any Qualified Substitute Revolving Credit Loans) and the deletion of any Deleted Revolving Credit Loans). "Seller": E-Loan, Inc., or its successors in interest.
"Seller Guide": As defined in paragraph 3 of the Preliminary Statement to this Agreement. "Senior Lien": With respect to a Revolving Credit Loan, a lien (i) which is senior in priority to that of the related Mortgage, and (ii) the outstanding principal balance of which (determined as of the date the Revolving Credit Loan was originated) is stated on the Revolving Credit Loan Schedule with respect to such Revolving Credit Loan "Servicer": As described in Section 5.01, E-Loan, Inc. "Servicer's Mortgage File": With respect to a particular Revolving Credit Loan copies or images of the documents specified on Schedule B-1 hereto and originals or copies of the documents specified on Schedule B-2 attached hereto and all additional documents received by Servicer with respect to such Revolving Credit Loan. "Servicing Advances": All "out of pocket" costs and expenses that are customary, reasonable and necessary which are incurred by the Servicer in the performance of its servicing obligations hereunder, including (without duplication) (i) reasonable attorneys' fees and (ii) the cost of (a) the preservation, restoration and protection of the Mortgaged Property, (b) any enforcement or judicial proceedings, including foreclosures, (c) the servicing, management and liquidation of any Specially Serviced Mortgaged Loans and/or any REO Property, and (d) compliance with the Servicer's obligations under Section 5.08. "Servicing Event": Any of the following events with respect to any Revolving Credit Loan: (i) any Monthly Payment being more than 60 days delinquent; (ii) any filing of an Insolvency Proceeding by or on behalf of the related Mortgagor, any consent by or on behalf of the related Mortgagor to the filing of an Insolvency Proceeding against such Mortgagor, or any admission by or on behalf of such Mortgagor of its inability to pay such Person's debts generally as the same become due; (iii) any filing of an Insolvency Proceeding against the related Mortgagor that remains undismissed or unstayed for a period of 60 days after the filing thereof; (iv) any issuance of any attachment or execution against, or any appointment of a conservator, receiver or liquidator with respect to, all or substantially all of the assets of the related Mortgagor or with respect to any Mortgaged Property; (v) any receipt by the Servicer of notice of the foreclosure or proposed foreclosure of any other lien on the related Mortgaged Property; (vi) any proposal of a material modification (as reasonably determined by the Seller) to such Revolving Credit Loan due to a default or imminent default under such Revolving Credit Loan; or (vii) in the reasonable judgment of the Servicer, the occurrence, or likely occurrence within 60 days, of a payment default with respect to such Revolving Credit Loan that is likely to remain uncured by the related Mortgagor within 60 days thereafter. "Servicing Fee": With respect to each Revolving Credit Loan, the annual fee the Purchaser shall pay for servicing, which shall, for each Due Period, be equal to one-twelfth (1/12) of the product of (i) the average daily Stated Principal Balance of such Revolving Credit Loan for such Due Period, and (ii) the Servicing Fee Rate applicable to such Revolving Credit Loan. Such fee shall be payable monthly, computed on the basis of the same principal amount and period respecting which any related interest payment on such Revolving Credit Loan is computed. The obligation of the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee is payable solely from, the interest portion (including recoveries with respect to interest from Liquidation Proceeds) of Monthly Payments remitted to Purchaser.
"Servicing Fee Rate": One-half of one percent (0.50%) per annum. "Servicing Officer": Any officer of the Servicer involved in, or responsible for, the administration and servicing of the Revolving Credit Loans whose name appears on a written list of servicing officers furnished by the Servicer to the Purchaser upon request therefor by the Purchaser, as such list may from time to time be amended. "Specially Serviced Revolving Credit Loan": A Revolving Credit Loan as to which a Servicing Event has occurred and is continuing. "Stated Principal Balance": With respect to any Revolving Credit Loan, and a date of determination, the sum of (i) the Funding Date Scheduled Principal Balance, plus (ii) all Credit Line Advances made with respect to such Revolving Credit Loan on or after the Cut-off Date to, but not including, such date of determination (to the extent such Credit Line Advances will be reimbursed by or on behalf of Purchaser in accordance with this Agreement), minus (iii) all amounts previously remitted to the Purchaser with respect to such Revolving Credit Loan representing payments or other recoveries of principal, minus (iv) all amounts representing principal payments being held in the Collection Account for remittance to Purchaser (provided such amounts are actually remitted to Purchaser in accordance with this Agreement). "Uniform Commercial Code": The Uniform Commercial Code as in effect on the date hereof in the State of North Carolina; provided that if by reason of mandatory provisions of law, the perfection or the effect of perfection or non-perfection of the security interest in any collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than North Carolina, "Uniform Commercial Code" shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non- perfection. "Unpaid Principal Balance": With respect to any Revolving Credit Loan, at any time, the actual outstanding principal balance then payable by the Mortgagor under the terms of the related Mortgage Note. "Warranty Bill of Sale": A warranty bill of sale with respect to the Revolving Credit Loans purchased on a Funding Date in the form annexed hereto as Exhibit 10 . ARTICLE II Section 2.01 Sale and Conveyance of Revolving Credit Loans . Seller agrees to sell and Purchaser agrees to purchase, from time to time, those certain Revolving Credit Loans identified in a Revolving Credit Loan Schedule, at the price and on the terms set forth herein and in the related Purchase Price and Terms Letter. Purchaser, on any Funding Date, shall be obligated to purchase only such Revolving Credit Loans set forth in the applicable Revolving Credit Loan Schedule, subject to the terms and conditions of this Agreement and the related Purchase Price and Terms Letter.
Purchaser will purchase Revolving Credit Loans from Seller on such Funding Dates as may be agreed upon by Purchaser and Seller. The closing shall, at Purchaser's option be either: by telephone, confirmed by letter, e- mail, or facsimile, and/or wire as the parties shall agree; or conducted in person at such place, as the parties shall agree. On each Funding Date and subject to the terms and conditions of this Agreement, each Seller will sell, transfer, assign, set over and convey to the Purchaser, without recourse except as set forth in this Agreement, and the Purchaser will purchase, all of each Seller's right, title and interest in and to the Revolving Credit Loans being conveyed by it hereunder, as identified on the Revolving Credit Loan Schedule. Conveyance of title to the Revolving Credit Loans shall be accomplished, on or before the related Funding Date, by (i) an endorsement of each Mortgage Note to the Purchaser by the Seller, (ii) an assignment of each Mortgage to the Purchaser by the Seller, and (iii) delivery of a Warranty Bill of Sale in the form attached hereto as Exhibit 10. Examination of the Mortgage Files may be made by Purchaser or its designee as follows. Prior to each Funding Date, Seller will deliver to Purchaser or its designee, the Legal Documents required pursuant to Schedule B- 1. On or before such Funding Date, Seller shall make the Credit Documents and copies of the Legal Documents available to Purchaser for review, at Purchaser's office at 301 S. College St., 10 th Floor, Charlotte, NC 28288, during reasonable business hours. If Purchaser identifies any Revolving Credit Loans that do not conform to the requirements of the Seller Guide or this Agreement, Purchaser may demand that the Seller repurchase such Revolving Credit Loan by providing notice to Seller within 30 days of the related Funding Date. Seller shall repurchase any such Revolving Credit Loan within 10 Business Days of receipt of Purchaser's written notice requiring the same. The fact that Purchaser has conducted or has failed to conduct any partial or complete examination of the Revolving Credit Loan files shall not affect Purchaser's rights to demand repurchase or other relief as provided herein. On each Funding Date, and in accordance with the terms herein, Purchaser will pay to Seller, by wire transfer of immediately available funds, the Estimated Purchase Price, according to the instructions to be provided, respectively, by Seller. Seller, simultaneously with the payment of the Purchase Price, shall execute and deliver to Purchaser a Warranty Bill of Sale with respect to the Revolving Credit Loans in the form annexed hereto as Exhibit 10 . Notwithstanding the foregoing, the amount of the variance, if any, between the amount of the Estimated Accrued Interest and the actual accrued interest on a Revolving Credit Loan at the applicable Mortgage Interest Rate for the period from, and including the Cut-off Date to but not including the Funding Date shall be reconciled and adjusted for at the time of the first scheduled remittance to the Purchaser with respect to such Revolving Credit Loans. Purchaser shall be entitled to all scheduled principal and interest payments received and posted after the Cut-off Date. Except as provided in the last sentence of this paragraph, the Purchaser shall also be entitled to all other recoveries on the Revolving Credit Loans collected on or after the Cut-off Date. Principal and interest payments on or prior to the Cut-off Date shall belong to the Seller. If either Party discovers an error in the Purchase Price calculation or payment within one-hundred-twenty (120) days after a Funding Date, such Party shall notify the other party and the parties shall make any Purchase Price adjustments and transfers of funds required to correct any errors in the calculation or payment of the Purchase Price. Section 2.02 Delivery of Documents, Possession of Mortgage Files. With respect to each Revolving Credit Loan to be purchased by the Purchaser on the related Funding Date, the Seller will deliver to the Purchaser or its designee the Legal Documents as set forth in Schedule B- 1 on or before such Funding Date.
Upon the sale of any Revolving Credit Loan by a Seller, the ownership of such Revolving Credit Loan, including the Mortgage Note, the Mortgage, the contents of the related Mortgage File and all rights, benefits, payments, proceeds and obligations arising therefrom or in connection therewith, shall then be vested in the Purchaser, and the ownership of all records and documents with respect to such Revolving Credit Loan prepared by or which come into the possession of the Seller shall immediately vest in the Purchaser and, to the extent retained by the Seller or the Servicer, shall be retained and maintained, in trust, by the Seller or the Servicer, as applicable, at the will of the Purchaser in a custodial capacity only. The contents of such Mortgage File not delivered to the Purchaser are and shall be held in trust by the Seller or the Servicer, as applicable, for the benefit of the Purchaser as the owner thereof and the Seller' or the Servicer's possession of the contents of each Mortgage File so retained is at the will of the Purchaser for the sole purpose of servicing the related Revolving Credit Loan, and such retention and possession by the Seller or the Servicer is in a custodial capacity only. Mortgage Files shall be maintained separately from the other books and records of the Seller or the Servicer. Each Seller and the Servicer shall release from its custody of the contents of any Mortgage File only in accordance with written instructions from the Purchaser, except where such release is required as incidental to the Servicer 's servicing of the Revolving Credit Loans or is in connection with a repurchase or substitution of any such Revolving Credit Loan pursuant to Section 3.04. Any documents released to a Seller or the Servicer in connection with the foreclosure or servicing of any Revolving Credit Loan shall be held by such Person in trust for the benefit of the Purchaser in accordance with this Section 2.02. Such Person shall return to the Purchaser such documents when such Person's need in connection with such foreclosure or servicing no longer exists (unless sooner requested by the Purchaser); provided that, if such Revolving Credit Loan is liquidated, then, upon the delivery by a Seller or the Servicer to the Purchaser of a request for the release of such documents and a certificate certifying as to such liquidation, the Purchaser shall promptly release and, to the extent necessary, deliver to such Person such documents. Section 2.03 Books and Records. The sale of each of its Revolving Credit Loans shall be reflected on the Seller' s balance sheet and other financial statements as a sale of assets by the Seller. Each Seller shall be responsible for maintaining, and shall maintain, a complete set of books and records for the Revolving Credit Loans it conveyed to the Purchaser which shall be clearly marked to reflect the sale of each Revolving Credit Loan to the Purchaser and the ownership of each Revolving Credit Loan by the Purchaser. Section 2.04 Defective Documents; Delivery of Revolving Credit Loan Documents. If, subsequent to the related Funding Date, the Purchaser or either Seller finds any document or documents constituting a part of a Mortgage File to be defective in any material respect or missing (in this Section 2.04, a "Defect"), the party discovering such Defect shall promptly so notify the other parties. The Seller shall have a period of 45 days within which to correct or cure any such Defect after the earlier of Seller's discovery of same or Seller being notified of same. If such Defect can ultimately be cured but is not reasonably expected to be cured within such 45 day period, Seller shall have such additional time as is reasonably determined by the Purchaser (but which shall not exceed 120 days from the date of notification pursuant to the first sentence of this paragraph) to cure or correct such Defect provided that Seller has commenced curing or correcting such Defect and is diligently pursuing same. Seller hereby covenants and agrees that, if any material Defect cannot be corrected or cured, the related Revolving Credit Loan shall automatically constitute, upon the expiration of the applicable cure period described above and without any further action by any other party, a Defective Revolving Credit Loan, whereupon Seller shall repurchase such Revolving Credit Loan by paying to the Purchaser the Repurchase Price therefor in accordance with Section 3.04(c) and (d).
The Seller will, with respect to each Revolving Credit Loan to be purchased by the Purchaser, deliver and release to the Purchaser the Legal Documents as set forth in Section 2.01. If the Seller cannot deliver an original intervening assignment with evidence of recording thereon within the applicable time periods, then the Seller shall promptly deliver to the Purchaser such original intervening assignments with evidence of recording indicated thereon upon receipt thereof from the public recording official, except in cases where the original intervening assignments are retained permanently by the recording office, in which case, Seller shall deliver a copy of such intervening assignment, certified to be a true and complete copy of the recorded original thereof by the applicable recording office. If an original intervening assignment has been lost, then the Seller will deliver a copy of such intervening assignment, certified by the local public recording official At the Purchaser's request, the Assignments shall be promptly recorded in the name of the Purchaser or in the name of a Person designated by the Purchaser in all appropriate public offices for real property records. If any such Assignment is lost or returned unrecorded because of a defect therein, then the Seller shall promptly prepare a substitute Assignment to cure such defect and thereafter cause each such Assignment to be duly recorded. All recording fees related to such a one-time recordation of the Assignments to or by Seller shall be paid by the Seller. Section 2.05 Transfer of Revolving Credit Loans. Subject to the provisions of this Section 2.05 , the Purchaser shall have the right, at any time and from time to time, to assign any of the Revolving Credit Loans and all or any part of its interest under this Agreement and designate any person to exercise any rights of the Purchaser hereunder, and the assignees or designees shall accede to the rights and obligations hereunder of the Purchaser with respect to such Revolving Credit Loans. Any such assignee or designee must be acceptable to the Servicer in its reasonable discretion, and must provide the Servicer with all financial statements required under Section 4.01(n) prior to such assignment The Seller recognizes that the Revolving Credit Loans may be divided into "packages" for resale ("Revolving Credit Loan Packages" ). All of the provisions of this Agreement shall inure to the benefit of the Purchaser and any such assignees or designees. All references to the Purchaser shall be deemed to include its assignees or designees. Utilizing resources reasonably available to the Seller without incurring any cost except the Seller's overhead and employees' salaries, the Seller shall cooperate in any such assignment of the Revolving Credit Loans and this Agreement; provided that the Purchaser shall bear all costs associated with any such assignment of the Revolving Credit Loans and this Agreement other than Seller's overhead or employees' salaries.
The Servicer and the Purchaser acknowledge that the Servicer shall continue to remit payments to the Purchaser on the Remittance Date after the transfer of the Revolving Credit Loans, unless the Servicer was notified in writing of the new record owner of the Revolving Credit Loans prior to the immediately preceding Determination Date, in which case, the Servicer shall remit to the new record owner (or trustee or master servicer, as the case may be) of the Revolving Credit Loans. Any prospective assignees of the Purchaser who have entered into a commitment to purchase any of the Revolving Credit Loans may review and underwrite the Servicer's servicing and origination operations, upon reasonable prior notice to the Servicer, and the Servicer shall cooperate with such review and underwriting to the extent such prospective assignees request information or documents that are reasonably available and can be produced without unreasonable expense or effort. The Servicer shall make the Mortgage Files related to the Revolving Credit Loans held by the Servicer available at the Servicer's principal operations center for review by any such prospective assignees during normal business hours upon reasonable prior notice to the Servicer (in no event less than 5 Business Days prior notice). The Servicer may, in its sole discretion, require that such prospective assignees sign a confidentiality agreement with respect to such information disclosed to the prospective assignee which is not available to the public at large and a release agreement with respect to its activities on the Servicer's premises. The Servicer shall keep at its servicing office books and records in which, subject to such reasonable regulations as it may prescribe, the Servicer shall note transfers of Revolving Credit Loans. The Purchaser may, subject to the terms of this Agreement, sell and transfer, in whole or in part, any or all of the Revolving Credit Loans; provided that no such sale and transfer shall be binding upon the Servicer unless such transferee shall agree in writing to an Assignment, Assumption and Recognition Agreement, in substantially the form of Exhibit 2.05 attached hereto, and an executed copy of such Assignment, Assumption and Recognition Agreement shall have been delivered to the Servicer. The Servicer shall evidence its acknowledgment of any transfers of the Revolving Credit Loans to any assignees of the Purchaser by executing such Assignment, Assumption and Recognition Agreement. The Servicer shall mark its books and records to reflect the ownership of the Revolving Credit Loans by any such assignees, and the previous Purchaser shall be released from its obligations hereunder accruing after the date of transfer to the extent such obligations relate to Revolving Credit Loans sold by the Purchaser. This Agreement shall be binding upon and inure to the benefit of the Purchaser and the Servicer and their permitted successors, assignees and designees. ARTICLE III Section 3.01 Representations and Warranties of Seller . Seller, as to itself, represents, warrants and covenants to the Purchaser that as of each Funding Date or as of such date specifically provided herein:
The representations and warranties in this Section shall survive the execution and assignment of this Agreement and the transfer of each Revolving Credit Loan.
Section 3.02 Representations and Warranties of the Servicer. The Servicer represents, warrants and covenants to the Purchaser that as of the Funding Date or otherwise as of such date as specifically provided herein:
Section 3.03 Representations and Warranties as to Individual Revolving Credit Loans. With respect to each Revolving Credit Loan, the Seller hereby makes the following representations and warranties to the Purchaser on which the Purchaser specifically relies in purchasing such Revolving Credit Loan. Such representations and warranties are made as of the applicable Funding Date unless otherwise indicated: (a) Revolving Credit Loan Schedule Complete True and Correct . Such Revolving Credit Loan complies with the terms and conditions set forth herein, and all of the information set forth with respect thereto on the Revolving Credit Loan Schedule is true and correct in all material respects; (b) Complete Mortgage Files . The instruments and documents specified in Section 2.02 with respect to such Revolving Credit Loan have been delivered to the Purchaser in compliance with the requirements of Article II. The Seller is in possession of a Mortgage File respecting such Revolving Credit Loan, except for such documents as have been previously delivered to the Purchaser and all documents required hereunder to be delivered to Purchaser after the Funding Date will be so delivered by Seller within the time specified herein for such delivery. (c) Owner of Record . The Mortgage relating to such Revolving Credit Loan has been duly recorded or transmitted for recording in the appropriate recording office, and the Seller is the owner of record of such Revolving Credit Loan and the indebtedness evidenced by the related Mortgage Note; (d) Payments Current . All payments required to be made up to and including the Funding Date for such Revolving Credit Loan under the terms of the Mortgage Note have been made, such that such Revolving Credit Loan is not delinquent 30 days or more on the Funding Date. There has been no delinquency, exclusive of any period of grace, in any payment by the Mortgagor thereunder during the twelve months preceding the Funding Date;
(e) Consent of Senior Lienholder . With respect to each Revolving Credit Loan that is not a first mortgage lien, either (i) no consent for the Revolving Credit Loan is required by the holder of the Senior Lien or (ii) such consent has been obtained and has been delivered to the Purchaser; (f) CLTV . The CLTV does not exceed 100% and any Senior Lien encumbering the related Mortgaged Property does not have a mandatory future advance provisions, and if any Senior Lien has a negative amortization feature, the CLTV was determined using the maximum loan amount of such Senior Lien. (g) No Outstanding Charges . There are no delinquent taxes, and all taxes, ground rents, water charges, sewer charges, municipal charges, insurance premiums, assessments, including assessments payable in future installments, or other outstanding charges affecting the Mortgaged Property related to such Revolving Credit Loan, which previously became due and owing in respect of the related Mortgaged Property have been paid; (h) Original Terms Unmodified . The terms of the Mortgage Note and the Mortgage related to such Revolving Credit Loan have not been impaired, waived, altered or modified in any material respect, except as in accordance with written instruments which are a part of the Legal Documents and which impairment, waiver alteration or modification has been approved by the insurer under any applicable Purchaser-Paid Mortgage Insurance Policy and title insurance policy and is specifically set forth in the related Revolving Credit Loan Schedule; (i) No Defenses . The Mortgage Note and the Mortgage related to such Revolving Credit Loan are not subject to any right of rescission, set-off or defense, including the defense of usury, nor will the operation of any of the terms of such Mortgage Note and such Mortgage, or the exercise of any right thereunder, render such Mortgage Note or Mortgage unenforceable, in whole or in part, or subject such Mortgage Note or Mortgage to any right of rescission, set-off or defense, including the defense of usury and no such right of rescission, set-off or defense has been asserted with respect thereto; (j) Hazard Insurance . As of the date of origination of each Revolving Credit Loan, (a) all buildings upon the Mortgaged Property related to such Revolving Credit Loan were insured by an insurer acceptable to FNMA or FHLMC against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where such Mortgaged Property is located, pursuant to insurance policies conforming to the requirements of Section 5.11. All such insurance policies (collectively, the "hazard insurance policy") contained a standard mortgagee clause naming the originator of such Revolving Credit Loan, its successors and assigns, as mortgagee. Such policies are the valid and binding obligations of the insurer, and all premiums thereon, as of the date of origination, due have been paid. The related Mortgage obligates the Mortgagor thereunder to maintain all such insurance at such Mortgagor's cost and expense, and on such Mortgagor's failure to do so, authorizes the holder of such Mortgage to maintain such insurance at such Mortgagor's cost and expense and to seek reimbursement therefor from such Mortgagor; or (b) in the case of a condominium or unit in a planned unit development ("PUD") project that is not covered by an individual policy, the condominium or PUD project was covered by a "master" or "blanket" policy and there exists and is in the Servicing File a certificate of insurance showing that the individual unit that secures the first mortgage is covered under such policy. The insurance policy contains a standard mortgagee clause naming the originator of such Revolving Credit Loan (and its successors and assigns), as insured mortgagee. Such policies are the valid and binding obligations of the insurer, and all premiums thereon have been paid. The insurance policy provides for advance notice to the Seller or Servicer if the policy is canceled or not renewed, or if any other change that adversely affects the Seller's interests is made; the certificate includes the types and amounts of coverage provided, describes any endorsements that are part of the "master" policy and would be acceptable pursuant to the FNMA Guide;
(k) Compliance With Applicable Laws . All requirements of any federal, state or local laws or regulations (including but not limited to usury, truth in lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws, consumer privacy, and data security confidentiality) applicable to the origination and servicing of such Revolving Credit Loan have at all times been complied with in all material respects. None of the Mortgage Loans are, to the best of the Seller's knowledge, (a) subject to, covered by or in violation of the Home Ownership and Equity Protection Act of 1994 ("HOEPA"), (b) classified as "high cost," "covered," "high risk home", "threshold," or "predatory" loans under any other applicable state, federal or local law, including any predatory or abusive lending laws (or similarly classified loans using different terminology under a law imposing heightened scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees) or (c) in violation of any state or local law or ordinance similar to HOEPA ; provided, however, that a Mortgage Loan may be a "covered" loan under applicable state or local law if it has been originated pursuant to procedures consistent with those prescribed by secondary market ratings agencies as a condition for inclusion in securitizations rated by such agencies. No predatory or deceptive lending practices, including but not limited to the extension of credit to the applicable Mortgagor without regard for said Mortgagor's ability to repay the Mortgage Loan and the extension of credit to said Mortgagor which has no apparent benefit to said Mortgagor, were employed by the originator of the Mortgage Loan in connection with the origination of the Mortgage Loan. Each Mortgage Loan is in compliance with the anti-predatory lending eligibility for purchase requirements of the FNMA Guide. No Mortgage Loan secured by owner occupied real property or an owner occupied manufactured home located in the State of Georgia was originated (or modified) between October 1, 2002, through and including March 6, 2003. (l) No Satisfaction of Mortgage . The Mortgage related to such Revolving Credit Loan has not been satisfied, canceled, in whole or in part, or rescinded, and the related Mortgaged Property has not been released from the lien of such Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission; (m) Valid Lien . The Mortgage related to such Revolving Credit Loan is a valid, subsisting and enforceable perfected lien in the priority specified on the Revolving Credit Loan Schedule on the related Mortgaged Property, including all improvements on the related Mortgaged Property, which Mortgaged Property is free and clear of any encumbrances and liens having priority over the lien of the Mortgage subject only to (a) the lien of current real estate taxes and special assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of the public record as of the date of recording of such Mortgage which are (i) acceptable to mortgage lending institutions generally, (ii) specifically referred to in the lender's title insurance policy and do not adversely affect the market value or intended use of the related Mortgaged Property, (c) Senior Liens, and (d) other matters to which like properties are commonly subject which do not individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by such Mortgage or the use, enjoyment, or market value of the related Mortgaged Property;
(n) Validity of Documents . The Mortgage Note and the Mortgage related to such Revolving Credit Loan and all other agreements executed in connection with the Revolving Credit Loan 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 general equitable principles (regardless whether such enforcement is considered in a proceeding in equity or at law), none of which will materially interfere with the ultimate realization by the Purchaser of the benefits provided by the security of the Mortgage; (o) Valid Execution of Documents . All parties to the Mortgage Note and the Mortgage related to such Revolving Credit Loan had legal capacity to enter into such Revolving Credit Loan and to execute and deliver the related Mortgage Note and the related Mortgage and the related Mortgage Note and the related Mortgage have been duly and properly executed by such parties; (p) Full Disbursement of Proceeds . Such Revolving Credit Loan has closed and the proceeds of any Credit Line Advances under the Mortgage Note have been fully disbursed prior to the Funding Date; provided that, with respect to any Revolving Credit Loan originated within the previous 120 days, alterations and repairs with respect to the related Mortgaged Property or any part thereof may have required an escrow of funds in an amount sufficient to pay for all outstanding work within 120 days of the origination of such Revolving Credit Loan, and, if so, such funds are held in escrow by the Seller, a title company or other escrow agent; and there is no requirement for future advances thereunder, and any and all requirements as to completion of any on- site or off-site improvements and as to disbursements of any escrow funds therefor have been complied with. All costs, fees and expenses incurred in making or closing the Revolving Credit Loan and the recording of the Mortgage were paid, and the Mortgagor is not entitled to any refund of any amounts paid or due under the Mortgage Note or Mortgage; (q) Ownership . The Mortgage Note and the Mortgage related to such Revolving Credit Loan have not been assigned, pledged or otherwise transferred by the Seller, in whole or in part (except for a pledge of the Mortgage Notes to Seller's warehouse lender in connection with the funding of such Mortgage Loans), and the Seller has, and is transferring to Purchaser, good and marketable title thereto, and the Seller is the sole owner thereof and has full right and authority to transfer and sell such Revolving Credit Loan, and is transferring such Revolving Credit Loan to the Purchaser free and clear of any encumbrance, equity, lien, pledge, participation interests, rights of first refusal or similar rights, charge, claim or security interest; (r) Originator and Subsequent Mortgagee Authorized . All parties that have had any interest in such Revolving Credit Loan, whether as originator, mortgagee, subsequent mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were) (i) in compliance with any and all applicable licensing requirements of the laws of the state wherein the related Mortgaged Property is located, and (ii) (A) organized under the laws of such state, or (B) qualified to do business in such state, or (C) federal savings and loan associations, federal savings banks, or national banks having principal offices in such state, or (D) not doing business in such state;
(s) Title Insurance . Intentionally omitted; (t) No Defaults . (a) There is no default, breach, violation or event of acceleration existing under the Mor |
AGREEMENTS / CONTRACTS
CLAUSES
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