RENAISSANCE MORTGAGE ACCEPTANCE CORP. as Purchaser, RENAISSANCE REIT INVESTMENT CORP. as Seller, and DELTA FUNDING CORPORATION as Originator MORTGAGE LOAN SALE AND CONTRIBUTION AGREEMENT Series 2007-1 Dated as of March 29, 2007
EXHIBIT99.1
RENAISSANCE
MORTGAGE ACCEPTANCE CORP.
as
Purchaser,
RENAISSANCE
REIT INVESTMENT CORP.
as
Seller,
and
DELTA
FUNDING CORPORATION
as
Originator
__________________________
Series
2007-1
Dated
as
of March 29, 2007
__________________________
TABLE
OF CONTENTS
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ARTICLE
I
DEFINITIONS
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Section
1.1
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Definitions
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ARTICLE
II
SALE
OF MORTGAGE LOANS AND RELATED PROVISIONS
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|
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Section
2.1
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Sale
of Mortgage Loans.
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Section
2.2
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Agreement
to Purchase.
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ARTICLE
III
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
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Section
3.1
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Representations
and Warranties
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Section
3.2
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Substitution
of Mortgage Loans
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ARTICLE
IV
SELLER’S
COVENANTS
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|
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Section
4.1
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Covenants
of the Seller
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ARTICLE
V
INDEMNIFICATION
BY THE ORIGINATOR
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Section
5.1
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Indemnification
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Section
5.2
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Limitation
on Liability of the Originator and the Seller
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ARTICLE
VI
TERMINATION
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Section
6.1
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Termination
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ARTICLE
VII
ADMINISTRATIVE
DUTIES
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Section
7.1
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Administrative
Duties.
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Section
7.2
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Records
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Section
7.3
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Additional
Information to be Furnished
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ARTICLE
VIII
MISCELLANEOUS
PROVISIONS
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|
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Section
8.1
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Amendment
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Section
8.2
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Governing
Law
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Section
8.3
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Notices
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Section
8.4
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Severability
of Provisions
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Section
8.5
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Relationship
of Parties
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Section
8.6
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Counterparts
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Section
8.7
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Further
Agreements
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Section
8.8
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Intention
of the Parties
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Section
8.9
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Successors
and Assigns; Assignment of Purchase Agreement
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Section
8.10
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Survival
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Section
8.11
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Third
Party Beneficiary
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EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
This
MORTGAGE LOAN SALE AND CONTRIBUTION AGREEMENT (this “Agreement”), dated as of
March 29, 2007, is made among Renaissance REIT Investment Corp. (the “Seller”),
Renaissance Mortgage Acceptance Corp.
(the
“Purchaser”) and Delta Funding Corporation (the “Originator”).
W I T N E S S E T H:
WHEREAS,
the Seller owns the Mortgage Loans indicated on the Mortgage Loan Schedule
attached as Exhibit A hereto (the “Mortgage Loans”), including rights to (a) any
property acquired by foreclosure or deed in lieu of foreclosure or otherwise,
(b) the proceeds of any insurance policies covering the Mortgage Loans and
(c)
its rights with respect to the Interest Rate Swap Agreement; and
WHEREAS,
the parties hereto desire that the Seller sell the Mortgage Loans to the
Purchaser and transfer its rights under the Interest Rate Swap Agreement to
the
Purchaser, and that the Originator make certain representations and warranties
on the Closing Date and undertake certain obligations on the Closing Date with
respect to such Mortgage Loans, in each case pursuant to the terms of this
Agreement; and
WHEREAS,
pursuant to the terms of an Amended and Restated Trust Agreement dated as of
March 29, 2007 (the “Trust Agreement”), among the Purchaser, as depositor,
Wilmington Trust Company, as owner trustee (the “Owner Trustee”) and ▇▇▇▇▇ Fargo
Bank, N.A., as certificate registrar and certificate paying agent, the Purchaser
will convey the Mortgage Loans to the Issuer; and
WHEREAS,
pursuant to the terms of a Servicing Agreement dated as of March 29, 2007 (the
“Servicing Agreement”), among ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (the
“Master Servicer”) and securities administrator (the “Securities
Administrator”), Ocwen Loan Servicing, LLC, servicer (the “Servicer”),
Renaissance Home Equity Loan Trust 2007-1, as issuer (the “Issuer”) and HSBC
Bank USA, National Association, as indenture trustee (the “Indenture Trustee”),
the Servicer will service the Mortgage Loans directly or through one or more
Subservicers and the Master Servicer will provide master servicing functions;
and
WHEREAS,
pursuant to the terms of an Indenture dated as of March 29, 2007 (the
“Indenture”), between the Issuer, the Indenture Trustee and the Securities
Administrator, the Issuer will pledge the Mortgage Loans to the Indenture
Trustee and issue and transfer to the Purchaser the Asset-Backed Notes, Series
2007-1 (collectively, the “Notes”), representing debt of the Issuer;
and
WHEREAS,
the parties intend these transactions to be treated for federal, state and
local
tax purposes as the retention by the Seller of ownership of the Mortgage Loans
and issuance by the Seller of secured indebtedness evidenced by the Notes,
and
have mutually covenanted to treat the transactions consistent with that intent
for all federal, state and local tax purposes;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Definitions.
For all
purposes of this Mortgage Loan Sale and Contribution Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Definitions attached to the Indenture as Appendix A, which
is incorporated by reference herein. All other capitalized terms used herein
shall have the meanings specified herein.
ARTICLE
II
SALE
OF
MORTGAGE LOANS AND RELATED PROVISIONS
Section
2.1 Sale
of Mortgage Loans.
(a) The
Seller, concurrently with the execution and delivery of this Agreement, does
hereby sell, transfer, assign, set over and otherwise convey, to the Purchaser,
without recourse, (subject to Sections 2.2 and 3.1) (i) all of its right, title
and interest in and to each Mortgage Loan, including the Cut-Off Date Principal
Balance and all collections in respect of interest and principal received after
the Cut-Off Date (other than payments in respect of accrued interest and
principal due on or before March 1, 2007); (ii) property which secured such
Mortgage Loan and which has been acquired by foreclosure or deed in lieu of
foreclosure; (iii) its interest in any insurance policies in respect of the
Mortgage Loans and (v) all proceeds of any of the foregoing.
(b) In
connection with such transfer, assignment and conveyance the Seller shall
deliver to, and deposit with, the Indenture Trustee or the Custodian on behalf
of the Indenture Trustee, on or before the Closing Date, the following documents
or instruments with respect to each Mortgage Loan (the “Related Documents”) and
the related Mortgage Loan Schedule in computer readable format:
(i) The
original Mortgage Note, with all prior and intervening endorsements showing
a
complete chain of endorsements from the originator of the Mortgage Loan to
the
Person so endorsing the Mortgage Loan to the Indenture Trustee, endorsed by
such
Person “Pay to the order of HSBC Bank USA, National Association, as Indenture
Trustee under the applicable agreement, without recourse” and signed, by
facsimile or manual signature, in the name of the Seller by a Responsible
Officer;
(ii) For
each
Mortgage Loan (regardless of whether of not such Mortgage Loan is a MERS
Mortgage Loan), any of: (1) the original Mortgage and related power of attorney,
if any, with evidence of recording thereon or electronic confirmation acceptable
to prudent lenders that the Mortgage was filed pursuant to an e-filing system
recognized by the related county filing office, (2) (A) a copy of the Mortgage,
if any, certified as a true copy of the original Mortgage by a Responsible
Officer of the Seller by facsimile or manual signature or by the closing
attorney or by an officer of the title insurer or agent of the title insurer
that issued the related title insurance policy, in such case, if the original
has been transmitted for recording until such time as the original is returned
by the public recording office and (B) a copy of the related power of attorney,
if any, or (3) a copy of the original recorded Mortgage and a copy of the
related power of attorney, if any, certified by the public recording office.
For
each Mortgage Loan that is a MERS Mortgage Loan, the original Mortgage, noting
the presence of the MIN of the related Mortgage Loan and either language
indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM
Loan or if the Mortgage Loan was not a MOM Loan at origination, the original
Mortgage and the assignment thereof to MERS, with evidence of recording
indicated thereon, or a copy of the Mortgage certified by the public recording
office in which such Mortgage has been recorded;
(iii) For
each
Mortgage Loan, the original Assignment of Mortgage in recordable form, from
the
Seller in blank, or to “HSBC Bank USA, National Association, as Indenture
Trustee under the applicable agreement”;
(iv) The
original lender’s title insurance policy or a true copy thereof or, if such
original lender’s title insurance policy has been lost, a copy thereof certified
by the appropriate title insurer to be true and complete or, if such lender’s
title insurance policy has not been issued as of the Closing Date, a marked
up
commitment (binder) to issue such policy;
(v) For
each
Mortgage Loan that was not a MERS Mortgage Loan at its origination, all
intervening assignments, if any, showing a complete chain of assignments from
the originator to the Seller, including any recorded warehousing assignments,
with evidence of recording thereon, or a copy thereof certified by a Responsible
Officer of the Seller by facsimile or manual signature, or by the closing
attorney or by an officer of the title insurer or agent of the title insurer
that issued the related title insurance policy, as a true copy of the original
of such intervening assignments if the original has been transmitted for
recording until such time as the original is returned by the public recording
office or a copy of the original recorded intervening assignments certified
by
the public recording office;
(vi) Originals
of all assumption, written assurance, substitution and modification agreements,
if any; and
(vii) In
the
case of a Cooperative Loan, the originals of the following documents or
instruments:
| 1. |
The
Cooperative Shares, together with a stock power in
blank;
|
| 2. |
The
executed Security Agreement;
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| 3. |
The
executed Proprietary Lease;
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| 4. |
The
executed Recognition Agreement;
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| 5. |
The
executed assignment of Recognition
Agreement;
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| 6. |
The
executed UCC-1 financing statements with evidence of recording thereon
which have been filed in all places required to perfect the Seller’s
interest in the Cooperative Shares and the Proprietary Lease;
and
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| 7. |
Executed
UCC-3 financing statements or other appropriate UCC financing statements
required by state law, evidencing a complete and unbroken line from
the
mortgagee to the Trustee with evidence of recording thereon (or in
a form
suitable for recordation).
|
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Seller agrees that it will cause, at the Seller’s expense, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Seller to the
Indenture Trustee in accordance with this Agreement for the benefit of the
Noteholders, by including (or deleting, in the case of Mortgage Loans which
are
repurchased in accordance with this Agreement) in such computer files the
information required by the MERS® System to identify the series of Notes issued
in connection with such Mortgage Loans. The Seller further agrees that it will
not, and will not permit the Servicer or the Master Servicer to alter the
information referenced in this paragraph with respect to any Mortgage Loan
during the term of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement.
In
instances where, for a Mortgage Loan that is not a MERS Mortgage Loan, the
original recorded Mortgage is not delivered as provided above, and in instances
where intervening assignments called for by clause (v) above are unavailable,
the Seller will deliver or cause to be delivered the original recorded Mortgage
and intervening assignments to the Indenture Trustee or the Custodian on behalf
of the Indenture Trustee promptly upon receipt thereof but in no event later
than one year after the Closing Date.
The
Seller hereby confirms to the Purchaser that it has caused the portions of
the
Electronic Ledger relating to the Mortgage Loans to be clearly and unambiguously
marked, and has made the appropriate entries in its general accounting records,
to indicate that such Mortgage Loans have been transferred to the Indenture
Trustee, as designee of the Purchaser, and constitute part of the Trust in
accordance with the terms of the trust created hereunder.
(c) The
parties hereto intend that the transactions set forth herein be a sale by the
Seller to the Purchaser of all the Seller’s right, title and interest in and to
the Mortgage Loans and other property described above and the sale by the
Purchaser to the Trust of all the Purchaser’s right, title and interest in and
to the Mortgage Loans and other property described above. In the event either
transaction set forth herein is deemed not to be a sale, the Seller hereby
grants to the Purchaser, and the Purchaser hereby grants to the Indenture
Trustee, a security interest in all of its respective right, title and interest
in, to and under the Mortgage Loans and other property described above; and
this
Agreement shall constitute a security agreement under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take
such
actions as may be 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
Agreement.
Except
as
may otherwise expressly be provided herein, neither the Seller nor the Purchaser
shall assign, sell, dispose of or transfer any interest in the Trust or any
portion thereof, or permit the Trust or any portion thereof to be subject to
any
lien, claim, mortgage, security interest, pledge or other encumbrance of, any
other Person.
In
the
event that the parties hereto have failed to transfer the entire legal ownership
in and to each Mortgage Loan to the Trust, the parties hereto intend that this
document operate to transfer the entire equitable ownership interest in and
to
each Mortgage Loan to the Trust.
(d) Except
with respect to any MERS Mortgage Loan, within thirty (30) days of the Closing
Date, the Seller, at its own expense, shall prepare and send for recording
the
Assignments of Mortgage in favor of the Indenture Trustee, in the appropriate
real property or other records. With respect to any Assignment of Mortgage
as to
which the related recording information is unavailable within thirty (30) days
following the Closing Date, such Assignment of Mortgage shall be submitted
for
recording within thirty (30) days after receipt of such information but in
no
event later than one year after the Closing Date. The Indenture Trustee or
the
Custodian on behalf of the Indenture Trustee shall be required to retain a
copy
of each Assignment of Mortgage submitted for recording. In the event that any
such Assignment of Mortgage is lost or returned unrecorded because of a defect
therein, the Seller shall promptly prepare a substitute Assignment of Mortgage
or cure such defect, as the case may be, and thereafter the Seller shall be
required to submit each such Assignment of Mortgage for recording. Any failure
of the Seller to comply with this Section 2.1(d) shall result in the obligation
of the Seller to purchase or substitute for the related Mortgage Loans pursuant
to the provisions of Section 2.2.
(e) [Reserved].
(f) If
the
Seller is given notice that a Mortgage File is defective or incomplete and
if
the Seller does not correct or cure such omission or defect within the 90-day
period specified in this Section 2.1(f), the Seller shall purchase such Mortgage
Loan from the Trust on the Determination Date in the month following the month
in which such 90-day period expired at the Purchase Price of such Mortgage
Loan.
At any time the Seller exercises its option to repurchase any Mortgage Loan
pursuant to Section 3.1, the Seller shall notify the Purchaser, the Servicer,
the Master Servicer, the Securities Administrator and the Indenture Trustee
of
any such repurchase no later than five Business Days prior to the Determination
Date of the month in which it wishes to repurchase such Mortgage Loans and
the
Seller shall repurchase such Mortgage Loan from the Trust on such Determination
Date. The Purchase Price for any purchased or repurchased Mortgage Loan shall
be
delivered to the Servicer for deposit in the Collection Account no later than
the applicable Determination Date; and, upon receipt by the Indenture Trustee
or
the Custodian on behalf of the Indenture Trustee of written notification of
such
deposit signed by a Responsible Officer of the Seller, the Indenture Trustee
or
the Custodian on behalf of the Indenture Trustee shall, in accordance with
Section 3.07 of the Servicing Agreement, release to the Seller the related
Mortgage File and
the
Indenture Trustee or the Custodian shall execute and deliver such instruments
of
transfer or assignment, in each case without recourse, as shall be necessary
to
vest in the Seller or its designee any Mortgage Loan released pursuant
hereto.
It is
understood and agreed that the obligation of the Seller to purchase any Mortgage
Loan as to which a material defect in or omission of a constituent document
exists shall constitute the sole remedy against the Seller respecting such
defect or omission available to the Servicer (in its role as such), the Master
Servicer, the Noteholders, the Securities Administrator or the Indenture Trustee
on behalf of Noteholders. If pursuant to the foregoing provisions the Seller
repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Seller shall
cause
the Servicer, at the Seller’s expense, to either (i) cause MERS to execute and
deliver an Assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Seller and shall cause such Mortgage to be removed from
registration on the MERS® System in accordance with MERS’ rules and regulations
or (ii) cause MERS to designate on the MERS® System the Seller as the beneficial
holder of such Mortgage Loan.
The
Seller, promptly following the transfer of (i) a Mortgage Loan from or (ii)
an
Eligible Substitute Mortgage Loan to the Trust pursuant to this Section 2.1
or
Section 3.1, as the case may be, shall amend the Mortgage Loan Schedule,
appropriately ▇▇▇▇ the Electronic Ledger and make appropriate entries in its
general account records to reflect such transfer and the addition of any
Eligible Substitute Mortgage Loan, if applicable.
Section
2.2 Agreement
to Purchase.
The
Seller agrees to sell and the Purchaser agrees to purchase, on or before March
29, 2007 (the “Closing Date”), certain fixed-rate and adjustable-rate mortgage
loans (the “Mortgage Loans”), having an aggregate principal balance as of the
close of business on the Cut-Off Date of $949,999,859.57 (the “Closing
Balance”), after giving effect to all payments due on the Mortgage Loans on or
before the Cut-Off Date, whether or not received, including the right to any
Prepayment Charges payable by the related Mortgagors in connection with any
Principal Prepayments on the Mortgage Loans. The
purchase price payable in connection with such sale shall consist of (i) the
cash proceeds from the sale of the Notes and (ii) delivery of the Trust
Certificates to the Seller.
The
Seller and the Purchaser intend that the sale of the Mortgage Loans to the
Purchaser, followed by the Purchaser’s sale of the Mortgage Loans to the Issuer,
shall be treated for federal, state and local tax purposes as a transfer by
the
Seller directly to the Issuer (followed by the issuance by the Issuer of Notes
that are intended by all parties to such issuance to be treated for federal,
state and local tax purposes as indebtedness of the Seller secured by the
Mortgage Loans).
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.1 Representations
and Warranties.
The
Originator (in the case of (a) and (c) below) and Seller (in the case of (b)
below) hereby represents and warrants to the Purchaser as of the Closing Date
(or if otherwise specified below, as of the date so specified):
(a) As
to
the Originator:
(1) The
Originator is a corporation licensed as a mortgage banker duly organized,
validly existing and in good standing under the laws of the state of its
incorporation and has, and had at all relevant times, full corporate power
to
originate the Mortgage Loans, to own its property, to carry on its business
as
presently conducted and to enter into and perform its obligations under this
Agreement. The Originator has all necessary licenses and is qualified to
transact business in and is in good standing under the laws of each state where
a Mortgaged Property is located or is otherwise exempt under applicable law
from
such qualification or is otherwise not required under applicable law to effect
such qualification and no demand for such qualification has been made upon
the
Originator by any state having jurisdiction;
(2) The
execution and delivery of this Agreement by the Originator and the Originator’s
performance of and compliance with the terms of this Agreement will not violate
the Originator’s articles of incorporation or by-laws or constitute a default
(or an event which, with notice or lapse of time or both, would constitute
a
default) under, or result in the breach or acceleration of, any material
contract, agreement or other instrument to which the Originator is a party
or
which may be applicable to the Originator or any of its assets;
(3) The
Originator has the full power and authority to enter into and consummate all
transactions contemplated by this Agreement to be consummated by it, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement. This Agreement, assuming due
authorization, execution and delivery by the other parties hereto, constitutes
a
valid, legal and binding obligation of the Originator, enforceable against
it in
accordance with the terms hereof, except as such enforcement may be limited
by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting the rights of creditors generally, and
by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law);
(4) The
Originator is not in violation of, and the execution and delivery of this
Agreement by the Originator and the performance by it and compliance with the
terms of this Agreement will not constitute a violation with respect to, any
order or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction, which violation would
materially and adversely affect the condition (financial or otherwise) or
operations of the Originator or any of its properties or materially and
adversely affect the performance of any of its duties hereunder;
(5) Except
as
disclosed in the Free Writing Prospectus and the Prospectus Supplement, there
are no actions or proceedings against, or investigations of, the Originator
pending or, to the knowledge of the Originator, threatened, before any court,
administrative agency or other tribunal (A) that, if determined adversely,
would
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or (C)
that, if determined adversely, would prohibit or materially and adversely affect
the performance by the Originator of any of its obligations under, or the
validity or enforceability of, this Agreement;
(6) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Originator
of, or compliance by the Originator with, this Agreement, or for the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders, if any, that have been obtained
prior to the Closing Date;
(7) The
Originator is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS;
(8) No
Officer’s Certificate, statement, report or other document prepared by the
Originator and furnished or to be furnished by it pursuant to this Agreement
or
in connection with the transactions contemplated hereby contains any untrue
statement of material fact; and
(9) The
transactions contemplated by this Agreement are in the ordinary course of
business of the Originator.
(b) As
to
the Seller:
(1) The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation and has, and had at all
relevant times, full corporate power to sell the Mortgage Loans, to own its
property, to carry on its business as presently conducted and to enter into
and
perform its obligations under this Agreement;
(2) The
execution and delivery of this Agreement by the Seller and the Seller’s
performance of and compliance with the terms of this Agreement will not violate
the Seller’s articles of incorporation or by-laws or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, or result in the breach or acceleration of, any material contract,
agreement or other instrument to which the Seller is a party or which may be
applicable to the Seller or any of its assets;
(3) The
Seller has the full power and authority to enter into and consummate all
transactions contemplated by this Agreement to be consummated by it, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement. This Agreement, assuming due
authorization, execution and delivery by the other parties hereto, constitutes
a
valid, legal and binding obligation of the Seller, enforceable against it in
accordance with the terms hereof, except as such enforcement may be limited
by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting the rights of creditors generally, and
by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law);
(4) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and the performance by it and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, which violation would materially and
adversely affect the condition (financial or otherwise) or operations of the
Seller or any of its properties or materially and adversely affect the
performance of any of its duties hereunder;
(5) There
are
no actions or proceedings against, or investigations of, the Seller pending
or,
to the knowledge of the Seller, threatened, before any court, administrative
agency or other tribunal (A) that, if determined adversely, would prohibit
its
entering into this Agreement, (B) seeking to prevent the consummation of any
of
the transactions contemplated by this Agreement or (C) that, if determined
adversely, would prohibit or materially and adversely affect the performance
by
the Seller of any of its obligations under, or the validity or enforceability
of, this Agreement;
(6) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement, or for the consummation of
the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations and orders, if any, that have been obtained prior
to
the Closing Date;
(7) The
Seller did not sell the Mortgage Loans to the Purchaser with any intent to
hinder, delay or defraud any of its creditors; and the Seller will not be
rendered insolvent as a result of the sale of the Mortgage Loans to the
Purchaser;
(8) The
Seller acquired title to the Mortgage Loans in good faith, without notice of
any
adverse claim;
(9) No
Officer’s Certificate, statement, report or other document prepared by the
Seller and furnished or to be furnished by it pursuant to this Agreement or
in
connection with the transactions contemplated hereby contains any untrue
statement of material fact;
(10) The
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Seller pursuant to this Agreement are not subject to the bulk transfer
laws
or any similar statutory provisions in effect in any applicable
jurisdiction;
(11) The
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller; and
(12) The
Seller has caused or hereby agrees to cause to be performed any and all acts
required to be performed to preserve the rights and remedies of the Indenture
Trustee in any insurance policies applicable to the Mortgage Loans, including,
without limitation, any necessary notifications of insurers, assignments of
policies or interests therein, and establishments of co-insured, joint loss
payee and mortgagee rights in favor of the Indenture Trustee.
(c) As
to
each Mortgage Loan:
(1) The
information set forth on the Mortgage Loan Schedule and the Prepayment Charge
Schedule is complete, true and correct as of the dates as of which the
information therein is given;
(2) The
Mortgage Notes and the Mortgages have not been assigned or pledged by the Seller
to any Person other than warehouse lenders, and immediately prior to the
transactions herein contemplated, the Seller had good and marketable title
thereto, and was the sole owner and holder of the Mortgage Loans free and clear
of any and all liens, claims, encumbrances, participation interests, equities,
pledges, charges or security interests of any nature (collectively, a “Lien”),
other than any such Lien released simultaneously with the sale contemplated
herein, and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign the
same pursuant to this Agreement, and immediately upon the transfer and
assignment of each Mortgage Loan as contemplated by this Agreement, the Trust
will be the sole beneficial owner of, each Mortgage Loan free and clear of
any
lien, claim, participation interest, mortgage, security interest, pledge, charge
or other encumbrance or other interest of any nature;
(3) With
respect to any Mortgage Loan that is not a Cooperative Loan, each Mortgage
is a
valid and existing lien on the property therein described, and each Mortgaged
Property is free and clear of all encumbrances and liens having priority over
the lien of the Mortgage, except (i) liens for real estate taxes and special
assessments not yet due and payable, (ii) covenants, conditions and
restrictions, rights of way, easements and other matters of public record as
of
the date of recording such Mortgage, such exceptions appearing of record being
acceptable to mortgage lending institutions generally or specifically reflected
in the appraisal made in connection with the origination of the related Mortgage
Loan, (iii) other matters to which like properties are commonly subject which
do
not materially interfere with the benefits of the security intended to be
provided by such Mortgage, (iv) in the case of a Mortgaged Property that is
a
condominium or an individual unit in a planned unit development, liens for
common charges permitted by statute and (v) in the case of a Mortgage Loan
secured by a second lien on the related Mortgaged Property, the related First
Lien. Any security agreement, chattel mortgage or equivalent document related
to
the Mortgage and delivered to the Indenture Trustee or the Custodian on behalf
of the Indenture Trustee establishes in the Seller a valid and subsisting lien
on the property described therein, and the Seller has full right to sell and
assign the same to the Trust;
(4) The
terms
of each Mortgage Note and Mortgage have not been impaired, altered or modified
in any respect, except by a written instrument which has been recorded, if
necessary to protect the interests of the Trust, and which has been delivered
to
the Indenture Trustee or the Custodian on behalf of the Indenture Trustee.
The
substance of any such alteration or modification is reflected on the Mortgage
Loan Schedule;
(5) No
instrument of release or waiver has been executed in connection with any
Mortgage Loan, and no Mortgagor has been released, in whole or in part, except
in connection with an assumption agreement which has been approved by the
primary mortgage guaranty insurer, if any, and which has been delivered to
the
Indenture Trustee or the Custodian on behalf of the Indenture
Trustee;
(6) Except
with respect to delinquencies described in clause (12) hereof, no Mortgagor
is
in default in complying with the terms of its Mortgage Note or Mortgage, and
the
Seller has not waived any default, breach, violation or event of acceleration
except that the Seller may have accepted late
payments, and all taxes, governmental assessments, insurance premiums or water,
sewer and municipal charges which previously became due and owing have been
paid, or an escrow of funds has been established in an amount sufficient to
pay
for every such item which remains unpaid and which has been assessed but is
not
yet due and payable. The Seller has not advanced funds or induced, solicited
or
knowingly received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required by the Mortgage,
except for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage proceeds, whichever is more recent, to the day
which precedes by one (1) month the Due Date of the first installment of
principal and interest;
(7) There
is
no proceeding pending or threatened for the total or partial condemnation of
any
Mortgaged
Property, nor is such a proceeding currently occurring, and such property is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or otherwise, so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the premises
were intended;
(8) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could give rise to
such lien) affecting any Mortgaged Property which are, or may be, liens prior
or
equal to, or coordinate with, the lien of the Mortgage except those that are
stated in the title insurance policy and for which related losses are
affirmatively insured against by such policy;
(9) All
of
the improvements that were included for the purpose of determining the Appraised
Value of each Mortgaged Property lie wholly within the boundaries and building
restriction lines of such property, and no improvements on adjoining properties
encroach upon the Mortgaged Property except those that are stated in the title
insurance policy and for which related losses are affirmatively insured against
by such policy;
(10) No
improvement located on or being part of any Mortgaged Property is in violation
of any applicable zoning law or regulation. 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 and fire
underwriting certificates, have been made or obtained from the appropriate
authorities and the Mortgaged Property is lawfully occupied under applicable
law;
(11) All
parties that have had any interest in any Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (1) in compliance with any and all
licensing requirements of the United States and of the laws of the state wherein
the Mortgaged Property is located that are applicable to such parties and (2)(A)
organized under the laws of such state or (B) qualified to do business in such
state or exempt from such qualification in a manner so as not to affect
adversely the enforceability of such Mortgage Loan or (C) federal savings and
loan associations or national banks having principal offices in such state
or
(D) not doing business in such state;
(12) With
respect to the Mortgage Loans, as of the Cut-Off Date, all payments required
to
be made on each Mortgage Loan under the terms of the related Mortgage Note
have
been made and none of the Mortgage Loans (by Cut-Off Date Pool Balance) are
59
or more days delinquent;
(13) Each
of
the documents and instruments included in a Mortgage File is duly executed
and
in due and proper form and each such document or instrument is in a form
generally acceptable to prudent institutional mortgage lenders that regularly
originate or purchase mortgage loans;
(14) The
Mortgage Notes and the related Mortgages 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, receivership, moratorium or other
similar
laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in
a
proceeding in equity or at law). All parties to the Mortgage Note and the
Mortgage had legal capacity to execute the Mortgage Note and the Mortgage,
and
each Mortgage Note and Mortgage have been duly and properly executed by such
parties. The Mortgagor is a natural person who is a party to the Mortgage Note
and the Mortgage in an individual capacity, and not in the capacity of a trustee
or otherwise;
(15) Any
and
all requirements of any federal, state or local law, including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity or disclosure laws, applicable
to
the origination and servicing of the Mortgage Loans or otherwise applicable
to
the Mortgage Loans have been complied with, and the Originator has and shall
maintain in its possession, available for the Indenture Trustee’s inspection,
and shall deliver to the Indenture Trustee upon demand, evidence of compliance
with all such requirements;
(16) Except
for Escrow Repair Loans, the proceeds of the Mortgage Loans have been fully
disbursed, 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, closing or recording the Mortgage
Loan have been paid;
(17) Each
Mortgage Loan is covered by an ALTA mortgage title insurance policy or such
other form of policy acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, issued by and
constituting the valid and binding obligation of a title insurer generally
acceptable to prudent mortgage lenders that regularly originate or purchase
mortgage loans comparable to the Mortgage Loans for sale to prudent investors
in
the secondary market that invest in mortgage loans such as the Mortgage Loans
and qualified to do business in the jurisdiction where the Mortgaged Property
is
located, insuring the Seller, its successors and assigns, as to the first
priority lien of the Mortgage in the case of a Mortgage Loan secured by a First
Lien on the related Mortgaged Property and the second
priority
lien of the Mortgage in the case of a Mortgage Loan secured by a second lien
on
the related Mortgaged Property, in the original principal amount of the Mortgage
Loan. The Originator is the sole named insured of such mortgage title insurance
policy, the assignment to the Indenture Trustee of the Seller’s interest in such
mortgage title insurance policy does not require the consent of or notification
to the insurer or the same has been obtained, and such mortgage title insurance
policy is in full force and effect and will be in full force and effect and
inure to the benefit of the Indenture Trustee upon the consummation of the
transactions contemplated by this Agreement. No claims have been made under
such
mortgage title insurance policy and no prior holder of the related Mortgage,
including the Originator and the Seller, has done, by act or omission, anything
that would impair the coverage of such mortgage title insurance
policy;
(18) All
improvements upon the Mortgaged Properties are insured by a generally acceptable
insurer against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located
pursuant to insurance policies conforming to the requirements of this Agreement.
If a Mortgaged Property was, at the time of origination of the related Mortgage
Loan, in an area identified on a Flood Hazard Boundary Map or Flood Hazard
Rate
Map issued by the Federal Emergency Management Agency as having special flood
hazards (and if the flood insurance policy referenced herein has been made
available), a flood insurance policy is in effect with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing coverage
described in this Agreement. All individual insurance policies (collectively,
the “hazard insurance policy”) are the valid and binding obligation of the
insurer and contain a standard mortgagee clause naming the Originator, its
successors and assigns, as mortgagee. All premiums thereon have been paid.
The
Mortgage obligates the Mortgagor thereunder to maintain all such insurance
at
the Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance
at
the Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
(19) No
Mortgage Loan is subject to any right of rescission, set-off, counterclaim
or
defense, including the defense of usury, nor will the operation of any of the
terms of any Mortgage Note or the related Mortgage, or the exercise of any
right
thereunder in accordance with the terms thereof, render either the Mortgage
Note
or the Mortgage unenforceable, in whole or in part, or subject to any right
of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(20) Each
Mortgage Loan
was
originated or purchased and reunderwritten by the Originator;
(21) Except
with respect to any interest-only Mortgage Loan or any Stepped Fixed Rate
Mortgage Loan, each Mortgage Loan is payable in Monthly Payments which would
be
sufficient, in the absence of late payments, to fully amortize such loan within
the term thereof, beginning no later than sixty (60) days after disbursement
of
the proceeds of the Mortgage Loan. With the exception of no more than 2% of
the
Mortgage Loans which have interest rates that may be reduced if the related
Mortgagor makes timely payments on such Mortgage Loan, each Mortgage Loan bears
a fixed interest rate for the term of the Mortgage Loan or an
adjustable-interest rate based on the related Loan Index;
(22) Each
Mortgage contains a customary provision for the acceleration of the payment
of
the unpaid principal balance of the Mortgage Loan in the event the related
Mortgaged Property is sold without the prior consent of the holder
thereunder;
(23) No
Mortgage Loan is a construction loan;
(24) The
Mortgage Notes are not and have not been secured by any collateral, pledged
account or other security except the lien of the corresponding Mortgage and
the
security interest of any applicable security agreement or chattel mortgage
referred to in clause (3) above;
(25) Each
Mortgage contains customary and enforceable provisions which render the rights
and remedies of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security, including (i) in the case
of
a Mortgage designated as a deed of trust, by trustee’s sale and (ii) otherwise
by judicial or nonjudicial foreclosure. There is no homestead or other exemption
available to the Mortgagor that would interfere with the right to sell the
Mortgaged Property at a trustee’s sale or the right to foreclose the
Mortgage;
(26) With
respect to each Mortgage constituting a deed of trust, a trustee, duly qualified
under applicable law to serve as such, has been properly designated and
currently so serves and is named in such Mortgage, and no fees or expenses
are
or will become payable by the Indenture Trustee or the Noteholders to the
Indenture Trustee under the deed of trust, except in connection with a trustee’s
sale after default by the Mortgagor, which fees and expenses shall constitute
Servicing Advances;
(27) Each
Mortgaged Property is located in the state identified in the Mortgage Loan
Schedule. No residence or dwelling is a manufactured dwelling that is not
treated as real property under local law;
(28) The
Mortgage Loans were underwritten in accordance with the Originator’s
underwriting guidelines described in the Prospectus under the heading “The
Seller—Loan Underwriting”;
(29) There
exist no deficiencies with respect to escrow deposits and payments, if such
are
required, for which customary arrangements for repayment thereof have not been
made, and no escrow deposits or payments of other charges or payments due the
Seller have been capitalized under any Mortgage or the related Mortgage
Note;
(30) No
Mortgage Loan was originated under a buy-down plan;
(31) Other
than as provided by this Agreement, there is no obligation on the part of the
Seller or any other party to make payments in addition to those made by the
Mortgagors;
(32) With
respect to each Mortgage Loan, the Seller is in possession of a complete
Mortgage File, except those documents delivered to the Indenture Trustee or
Custodian on behalf of the Indenture Trustee, and there are no custodial
agreements in effect adversely affecting the right or ability of the Seller
to
make the document deliveries required hereby;
(33) No
Mortgage Loan was selected for inclusion under this Agreement on any basis
which
was intended to have a material adverse effect on the Noteholders;
(34) No
Mortgage Loan has a shared appreciation or other contingent interest
feature;
(35) With
respect to each Mortgage Loan secured by a second lien on the related Mortgaged
Property: (a) the related First Lien does not provide for negative amortization;
and (b) either no consent for the Mortgage Loan secured by a second lien on
the
related Mortgaged Property is required by the holder of the related First Lien
or such consent has been obtained and is contained in the Mortgage
File;
(36) Each
Mortgage Loan conforms, and all the Mortgage Loans in the aggregate conform,
in
all material respects to the description thereof set forth in the Free Writing
Prospectus and the Prospectus Supplement;
(37) A
full
appraisal on forms approved by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac or on a report of
an
insured automated valuation model of the related Mortgaged Property was
performed in connection with the origination of each Mortgage Loan. Each
appraisal or insured automation valuation model report meets guidelines that
would be generally acceptable to prudent mortgage lenders that regularly
originate or purchase mortgage loans comparable to the Mortgage Loans for sale
to prudent investors in the secondary market that invest in mortgage loans
such
as the Mortgage Loans;
(38) To
the
best of the Seller’s knowledge, no Mortgaged Property was, as of the related
Cut-Off Date, located within a one-mile radius of any site listed in the
National Priorities List as defined under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as
amended, or on any similar state list of hazardous waste sites which are known
to contain any hazardous substance or hazardous waste;
(39) None
of
the Mortgage
Loans are subject to a bankruptcy proceeding;
(40) Each
Cooperative Loan is secured by a valid, subsisting and enforceable perfected
first lien and security interest in the related Mortgaged Property, subject
only
to (i) the rights of the Cooperative Corporation to collect Maintenance and
assessments from the Mortgagor, (ii) the lien of the Blanket Mortgage, if any,
on the Cooperative Property and of real property taxes, water and sewer charges,
rents and assessments on the Cooperative Property not yet due and payable,
and
(iii) other matters to which like Cooperative Units are commonly subject which
do not materially
interfere with the benefits of the security intended to be provided by the
Security Agreement or the use, enjoyment, value or marketability of the
Cooperative Unit. Each original UCC financing statement, continuation statement
or other governmental filing or recordation necessary to create or preserve
the
perfection and priority of the first priority lien and security interest in
the
Cooperative Shares and Proprietary Lease has been timely and properly made.
Any
security agreement, chattel mortgage or equivalent document related to the
Cooperative Loan and delivered to the Seller or its designee establishes in
the
Seller a valid and subsisting perfected first lien on and security interest
in
the property described therein, and the Seller has full right to sell and assign
the same;
(41) Each
Cooperative Corporation qualifies as a “cooperative housing corporation” as
defined in Section 216 of the Code;
(42) Each
adjustable-rate Mortgage Loan is secured by a first lien, and each fixed-rate
Mortgage Loan is secured by a first or second lien;
(43) No
Mortgage Loan was subject to (i) the Home Ownership and Equity Protection Act
of
1994, (ii) the regulations promulgated by the New York State Banking Department
(3 NYCRR Part 41), or (iii) except as set forth in clause (48) below, any other
comparable regulations or legislation enacted by any other State or regulatory
body;
(44) Any
Mortgage Loan that is subject to the regulations promulgated by the Illinois
Office of Banks and Real Estate and the Department of Financial Institutions
(Title 38 Chapter II Section 1050.155) or the regulations promulgated by the
Vermont Commissioner of Banking (Vermont Stat. ▇▇▇. Title 9, Subsection 104,
Reg. B-98-2) is in full compliance therewith as of the Closing
Date;
(45) With
respect to each Mortgage Loan that has a Prepayment Charge feature, each such
Prepayment Charge is enforceable (except
to
the extent that the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws affecting creditor’s
rights generally or the collectability thereof may be limited due to
acceleration in connection with a foreclosure)
and each
Prepayment Charge is permitted pursuant to applicable federal, state and local
law, subject to federal preemption where applicable;
(46) Each
Mortgage Loan at the time it was made complied in all material respects with
applicable local, state and federal laws, including, but not limited to, all
applicable high cost (e.g., predatory and abusive) lending laws;
(47) Each
Mortgage Loan in Loan Group II bears interest at a fixed rate for the life
of
the Mortgage Loan;
(48) No
Mortgage Loan is a High Cost Home Loan and no Mortgage Loan originated on or
after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act;
(49) No
Mortgage Loan is a high cost loan or a covered loan, as applicable (as such
terms are defined in the then current Standard & Poor’s LEVELS Version 5.7
Glossary Revised, Appendix E); and
(50) With
respect to any Mortgage Loan that is secured by a leasehold estate: (a) the
lease is valid, in full force and effect; (b) all rents and other payments
due
under the lease have been paid; (c) the lessee is not in default under any
provision of the lease; (d) the term of the lease exceeds the maturity date
of
the related Mortgage Loan by at least five (5) years; and (e) the Mortgagee
under the Mortgage Loan is given notice and an opportunity to cure any defaults
under the lease.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 3.1 shall survive delivery of the respective Mortgage Files to the
Indenture Trustee or the Custodian on behalf of the Indenture Trustee and the
termination of the rights and obligations of the Servicer pursuant to the
Servicing Agreement. Upon discovery by the Seller, the Depositor, the Servicer,
the Master Servicer or a Responsible Officer of the Indenture Trustee or the
Securities Administrator of a breach of any of the foregoing representations
and
warranties, which materially and adversely affects the value of, or the
interests of the Trust or the Noteholders in, the related Mortgage Loan, the
party discovering such breach shall give prompt written notice to the other
parties. Within sixty (60) days of its discovery or its receipt of notice of
breach, the Originator
shall
use
all reasonable efforts to cure such breach in all material respects or shall
purchase such Mortgage Loan from the Trust or substitute an Eligible Substitute
Mortgage Loan as provided in Section 3.2 for such Mortgage Loan. Any such
purchase by the Seller shall be at the Purchase Price, and in each case shall
be
accomplished in the manner set forth in Section 2.1(f). It is understood and
agreed that the obligation of the Seller to cure, substitute or purchase any
Mortgage Loan as to which such a breach has occurred and is continuing shall
constitute the sole remedy against the Seller respecting such breach available
to the Servicer (in its role as such), the Master Servicer (in its role as
such), the Noteholders, the Securities Administrator or the Indenture Trustee
on
behalf of Noteholders. In addition, on any Payment Date the Seller may, at
its
option, repurchase Mortgage Loans from the Trust (which such Mortgage Loans
shall not be adversely selected), provided that such option shall terminate
after the Seller has repurchased Mortgage Loans in the aggregate amount of
1% of
the Cut-off Date Pool Balance. Any such repurchase by the Seller shall be at
the
Purchase Price, and in each case shall be accomplished in the manner set forth
in Section 2.1(f).
Upon
discovery by the Servicer, the Seller, the Depositor, the Master Servicer or
a
Responsible Officer of the Indenture Trustee or the Securities Administrator
of
a breach of the representation set forth in Section 3.1(c)(45) which materially
and adversely affects the Holders of the NIMs Notes, the party discovering
such
breach shall give prompt written notice to the Originator. Within 60 days of
the
earlier of discovery by the Servicer, the Depositor, Master Servicer or the
Seller, as applicable, or receipt of notice by the Originator of such breach,
the Originator shall cure such breach in all material respects and pay to the
Servicer for deposit into the Collection Account the amount of the scheduled
Prepayment Charge, less any amount previously collected and paid by the Servicer
into the Collection Account.
Section
3.2 Substitution
of Mortgage Loans.
On or
before the date on which the Seller would otherwise be required to repurchase
a
Mortgage Loan under Section 2.1(f) or 3.1, the Seller may deliver to the
Indenture Trustee or the Custodian on behalf of the Indenture Trustee one or
more Eligible Substitute Mortgage Loans in substitution for any one or more
of
the Defective Mortgage Loans which the Seller would otherwise be required to
repurchase pursuant to Section 2.1(f) or 3.1.
The
Seller shall notify the Servicer, the Master Servicer, the Securities
Administrator and the Indenture Trustee in writing not less than five (5)
Business Days before the related Determination Date which is on or before the
date on which the Seller would otherwise be required to repurchase such Mortgage
Loan pursuant to Section 2.1(f) or 3.1 of its intention to effect a substitution
under this Section 3.2. On such Determination Date (the “Substitution Date”),
the Seller shall deliver to the Indenture Trustee or the Custodian on behalf
of
the Indenture Trustee (1) the Eligible Substitute Mortgage Loans to be
substituted for the Defective Mortgage Loans, (2) a list of the Defective
Mortgage Loans to be substituted for by such Eligible Substitute Mortgage Loans,
(3) an Officer’s Certificate (A) stating that the aggregate Principal Balance of
all Eligible Substitute Mortgage Loans (determined with respect to each Eligible
Substitute Mortgage Loan as of the Determination Date on which it was
substituted) including the principal balance of Eligible Substitute Mortgage
Loans being substituted on such Determination Date does not exceed an amount
equal to 5% of the aggregate Original Class Principal Balance as of the Closing
Date, (B) stating that all conditions precedent to such substitution specified
in the immediately preceding paragraph have been satisfied and attaching as
an
exhibit a supplemental Mortgage Loan schedule (the “Supplemental Mortgage Loan
Schedule”) setting forth the same type of information as appears on the Mortgage
Loan Schedule and representing as to the accuracy thereof and (C) confirming
that the representations and warranties contained in Section 3.1 are true and
correct in all material respects with respect to the Eligible Substitute
Mortgage Loans on and as of such Determination Date, provided
that
remedies for the inaccuracy of such representations are limited as set forth
in
Sections 2.1(f), 3.1 and this Section 3.2 and (4) a certificate stating that
cash in the amount of the related Substitution Adjustment, if any, has been
delivered to the Servicer for deposit in the Collection Account. Upon receipt
of
the foregoing, pursuant to Section 3.07 of the Servicing Agreement, the
Indenture Trustee or the Custodian on behalf of the Indenture Trustee shall
release such Defective Mortgage Loans to the Seller.
Concurrently
with the satisfaction of the conditions set forth in the immediately preceding
paragraphs and the transfer of such Eligible Substitute Mortgage Loans to the
Indenture Trustee pursuant to Section 2.1, the Mortgage Loan Schedule shall
be
deemed to be amended to exclude all Mortgage Loans being replaced by such
Eligible Substitute Mortgage Loans and to include the information set forth
on
the Supplemental Mortgage Loan Schedule with respect to such Eligible Substitute
Mortgage Loans, and all references in this Agreement to Mortgage Loans shall
include such Eligible Substitute Mortgage Loans and be deemed to be made on
or
after the related Substitution Date, as the case may be, as to such Eligible
Substitute Mortgage Loans.
ARTICLE
IV
SELLER’S
COVENANTS
Section
4.1 Covenants
of the Seller.
The
Seller hereby covenants that, except for the transfer hereunder with respect
to
the Mortgage Loans, the Seller will not sell, pledge, assign or transfer to
any
other Person, or grant, create, incur or assume any Lien on, any Mortgage Loan,
whether now existing or hereafter created, or any interest therein; the Seller
will notify the Issuer, as assignee of the Purchaser, of the existence of any
Lien (other than as provided above) on any Mortgage Loan immediately upon
discovery thereof; and the Seller will defend the right, title and interest
of
each of the Issuer and the Indenture Trustee, as assignee of the Purchaser
and
the Issuer, respectively, in, to and under the Mortgage Loans, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Seller.
ARTICLE
V
INDEMNIFICATION
BY THE ORIGINATOR
Section
5.1 Indemnification.
The
Originator shall indemnify and hold harmless each of (i) the Purchaser, (ii)
the
Underwriters, (iii) the Person, if any, to which the Purchaser assigns its
rights in and to a Mortgage Loan and each of their respective successors and
assigns and (iv) each person, if any, who controls the Purchaser within the
meaning of Section 15 of the Securities Act of 1933, as amended (the “1933 Act”)
((i) through (iv) collectively, the “Indemnified Party”) against any and all
losses, claims, expenses, damages or liabilities to which the Indemnified Party
may become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, expenses, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (a) any untrue statement or alleged untrue statement
of
any material fact contained in the Free Writing Prospectus and the Prospectus
Supplement or the omission or the alleged omission to state therein the material
fact necessary in order to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with (i) information furnished in writing to the
Purchaser or any of its affiliates by the Originator or any of its affiliates
specifically for use therein, which shall include, with respect to the Free
Writing Prospectus and the Prospectus Supplement, the information set forth
under the captions “Summary—The Mortgage Loans,” “Risk Factors” (to the extent
of information concerning the Mortgage Loans contained therein), “Description of
the Mortgage Loans”, or (ii) the data files containing information with respect
to the Mortgage Loans as transmitted to the Purchaser by the Originator or
any
of its affiliates (as such transmitted information may have been amended in
writing by the Originator or any of its affiliates with the written consent
of
the Purchaser subsequent to such transmission), (b) any representation, warranty
or covenant made by the Originator or any affiliate of the Originator herein
or
in the Servicing Agreement, on which the Purchaser has relied, being, or alleged
to be, untrue or incorrect or (c) any updated collateral information provided
by
any Underwriter to a purchaser of the Notes or Certificates derived from the
data contained in clause (ii) and the Remittance Report or a current collateral
tape obtained from the Originator or an affiliate of the Originator, including
the current principal balances of the Mortgage Loans; provided, however, that
to
the extent that any such losses, claims, expenses, damages or liabilities to
which the Indemnified Party may become subject arise out of or are based upon
both (1) statements, omissions, representations, warranties or covenants of
the
Seller described in clause (a), (b) or (c) above and (2) any other factual
basis, the Originator shall indemnify and hold harmless the Indemnified Party
only to the extent that the losses, claims, expenses, damages, or liabilities
of
the person or persons asserting the claim are determined to rise from or be
based upon matters set forth in clause (1) above and do not result from the
negligence or willful misconduct of such Indemnified Party. This indemnity
shall
be in addition to any liability that the Originator may otherwise
have.
Section
5.2 Limitation
on Liability of the Originator and the Seller.
The
Originator and the Seller shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Originator or Seller, as the case may be, herein. Neither the Originator, the
Seller nor any of the directors or officers or employees or agents of the
Originator or the Seller shall be under any liability to the Trust or the
Noteholders for any action taken or for refraining from the taking of any action
by the Seller or the Originator in good faith pursuant to this Agreement, or
for
errors in judgment; provided, however, that this provision shall not protect
the
Originator or the Seller or any such Person against any liability which would
otherwise be imposed by reason of its willful misfeasance, bad faith or
negligence in the performance of duties of the Originator or the Seller or
by
reason of its reckless disregard of its obligations and duties of the Originator
or the Seller hereunder. The Originator or the Seller and any director or
officer or employee or agent of the Originator or the Seller may rely in good
faith on any document of any kind prima
facie
properly
executed and submitted by any Person respecting any matters arising hereunder.
The Originator or the Seller and any director or officer or employee or agent
of
any such party shall be indemnified by the Trust and held harmless against
any
loss, liability or expense incurred in connection with any legal action relating
to this Agreement or the Notes, other than any loss, liability or expense
related to any specific Mortgage Loan or Mortgage Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) and any loss, liability or expense incurred by reason of its willful
misfeasance, bad faith or negligence in the performance of duties hereunder
or
by reason of its reckless disregard of obligations and duties hereunder. The
Originator or the Seller shall be under no obligation to appear in, prosecute
or
defend any legal action that is not incidental to its duties hereunder and
that
in its opinion, may involve it in any expense or liability; provided, however,
that the Seller and the Originator may undertake any such action which it may
deem necessary or desirable in respect of this Agreement, and the rights and
duties of the parties hereto and the interests of the Noteholders hereunder.
In
such event, the reasonable legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust.
ARTICLE
VI
TERMINATION
Section
6.1 Termination.
The
respective obligations and responsibilities of the Seller and the Purchaser
created hereby shall terminate, except for the Originator’s indemnity
obligations as provided herein, upon the termination of the Issuer pursuant
to
the terms of the Trust Agreement.
ARTICLE
VII
ADMINISTRATIVE
DUTIES
Section
7.1 Administrative
Duties.
(a) Duties
with Respect to the Indenture.
The
Originator (in such capacity, the “Administrator”) shall perform all its duties
and the duties of the Issuer under the Indenture. In addition, the Administrator
shall consult with the Owner Trustee as the Administrator deems appropriate
regarding the duties of the Issuer under the Indenture. The Administrator shall
monitor the performance of the Issuer and shall advise the Owner Trustee when
action is necessary to comply with the Issuer’s duties under the Indenture. The
Administrator shall prepare for execution by the Issuer or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of
the
Issuer to prepare, file or deliver pursuant to the Indenture. In furtherance
of
the foregoing, the Administrator shall take all necessary action that is the
duty of the Issuer to take pursuant to the Indenture.
(b) Duties
with Respect to the Issuer.
(i) In
addition to the duties of the Administrator set forth in this Agreement or
any
of the Basic Documents, the Administrator shall perform such calculations and
shall prepare for execution by the Issuer or the Owner Trustee or shall cause
the preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of
the
Issuer or the Owner Trustee to prepare, file or deliver pursuant to this
Agreement or any of the Basic Documents or under state and federal tax and
securities laws (including, but not limited to, UCC filings in applicable
jurisdictions and annual compliance certificates, if any), and at the request
of
the Owner Trustee, the Indenture Trustee or the Securities Administrator shall
take all appropriate action that it is the duty of the Issuer to take pursuant
to this Agreement or any of the Basic Documents. In accordance with the
directions of the Issuer or the Owner Trustee, the Administrator shall
administer, perform or supervise the performance of such other activities in
connection with the Notes (including the Basic Documents) as are not covered
by
any of the foregoing provisions and as are expressly requested by the Issuer,
the Indenture Trustee, the Securities Administrator or the Owner
Trustee.
(ii) Notwithstanding
anything in this Agreement or any of the Basic Documents to the contrary, the
Administrator shall be responsible for promptly notifying the Owner Trustee
and
Certificate Paying Agent in the event that any withholding tax is imposed on
the
Issuer’s payments (or allocations of income) to an Owner (as defined in the
Trust Agreement) as contemplated in Section 5.03 of the Trust Agreement. Any
such notice shall be in writing and specify the amount of any withholding tax
required to be withheld by the Owner Trustee or the Certificate Paying Agent
pursuant to such provision.
(iii) In
carrying out the foregoing duties or any of its other obligations under this
Agreement, the Administrator may enter into transactions with or otherwise
deal
with any of its Affiliates; provided,
however,
that
the terms of any such transactions or dealings shall be in accordance with
any
directions received from the Issuer and shall be, in the Administrator’s
opinion, no less favorable to the Issuer in any material respect than with
terms
made available to unrelated third parties.
(c) Tax
Matters.
The
Administrator shall prepare, on behalf of the Owner Trustee, tax returns and
information reports as required by the Code. The Administrator shall also
prepare financial statements and such annual or other reports of the Issuer
as
are necessary for the Securities Administrator to prepare a Form
1099.
(d) Non-Ministerial
Matters.
With
respect to matters that in the reasonable judgment of the Administrator are
non-ministerial, the Administrator shall not take any action pursuant to this
Article VIII unless within a reasonable time before the taking of such action,
the Administrator shall have notified the Owner Trustee, the Indenture Trustee
and the Securities Administrator of the proposed action and the Owner Trustee
and, with respect to items (1), (2), (3) and (4) below, the Indenture Trustee
and the Securities Administrator shall not have withheld consent or provided
an
alternative direction. For the purpose of the preceding sentence,
“non-ministerial matters” shall include:
(1) the
amendment of or any supplement to the Indenture;
(2) the
initiation of any claim or lawsuit by the Issuer and the compromise of any
action, claim or lawsuit brought by or against the Issuer (other than in
connection with the collection of the Mortgage Loans);
(3) the
amendment, change or modification of this Agreement or any of the Basic
Documents to which the Indenture Trustee, the Securities Administrator or the
Owner Trustee, as applicable, is a party;
(4) the
appointment of successor Certificate Paying Agents and successor Indenture
Trustees or Securities
Administrator pursuant
to the Indenture or the appointment of a successor Servicer or Master Servicer
or the consent to the assignment by the Certificate Registrar, Paying Agent,
Indenture Trustee or Securities Administrator of its obligations under the
Indenture; and
(5) the
removal of the Indenture Trustee or the Securities Administrator.
(e) Originator
shall act as Administrator.
By
execution of this Agreement, the Originator agrees to be bound as Administrator
and shall perform the obligations of the Administrator as described
herein.
Section
7.2 Records.
The
Administrator shall maintain appropriate books of account and records relating
to services performed under this Agreement, which books of account and records
shall be accessible for inspection by the Issuer, the Indenture Trustee, the
Securities Administrator and the Owner Trustee at any time during normal
business hours.
Section
7.3 Additional
Information to be Furnished.
The
Administrator shall furnish to the Issuer, the Indenture Trustee, the Securities
Administrator and the Owner Trustee from time to time such additional
information regarding the Mortgage Loans and the Notes as the Issuer, the
Indenture Trustee, the Securities Administrator or the Owner Trustee shall
reasonably request.
ARTICLE
VIII
MISCELLANEOUS
PROVISIONS
Section
8.1 Amendment.
This
Agreement may be amended from time to time by the Seller and the Purchaser
by
written agreement signed by the Seller and the Purchaser, which consent shall
not be unreasonably withheld;
provided, however, that any amendment of Article VII of this Agreement shall
require the consent of the Issuer and the Owner Trustee.
Section
8.2 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section
8.3 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when delivered addressed as follows:
(i) if
to the
Seller:
Renaissance
REIT Investment Corp.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
or,
such
other address as may hereafter be furnished to the Purchaser in writing by
the
Seller.
(ii) if
to the
Purchaser:
Renaissance
Mortgage Acceptance Corp.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
or
such
other address as may hereafter be furnished to the Seller in writing by the
Purchaser.
(iii) if
to the
Originator:
Delta
Funding Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
or
such
other address as may hereafter be furnished to the Seller in writing by the
Purchaser.
(iv) if
to the
Owner Trustee:
Wilmington
Trust Company
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Corporate Trust Administration
(v) if
to the
Issuer:
Renaissance
Home Equity Loan Trust Series 2007-1
c/o
Delta
Funding Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(vi) if
to the
Securities Administrator:
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Services—Renaissance HEL Trust 2007-1
(vi) if
to the
Indenture Trustee:
HSBC
Bank
USA, National Association
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust & Loan Agency/Renaissance HEL Trust 2007-1
Section
8.4 Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this
Agreement.
Section
8.5 Relationship
of Parties.
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties hereto, and the services of the Seller shall be
rendered as an independent contractor and not as agent for the
Purchaser.
Section
8.6 Counterparts.
This
Agreement may be executed in two or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original and such counterparts together shall constitute
one
and the same agreement.
Section
8.7 Further
Agreements.
The
Purchaser, the Originator and the Seller each agree to execute and deliver
to
the other such additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this
Agreement.
Section
8.8 Intention
of the Parties.
The
Seller and the Purchaser agree that it is their intention that the sale of
the
Mortgage Loans to the Purchaser, and the Purchaser’s sale of the Mortgage Loans
to the Issuer pursuant to the Trust Agreement shall be treated for federal,
stated and local tax purposes as a transfer directly by the Seller to the Issuer
(with the Issuer’s issuance of the Notes treated for federal, state and local
tax purposes as the issuance by the Seller of indebtedness secured by the
Mortgage Loans) and mutually covenant to report this and all related
transactions for all federal, stated and local tax reporting purposes in a
manner consistent with that intent. The Purchaser will have the right to review
the Mortgage Loans and the Related Documents to determine the characteristics
of
the Mortgage Loans which will affect the federal, stated and local tax
consequences of owning the Mortgage Loans and the Seller will cooperate with
all
reasonable requests made by the Purchaser in the course of such
review.
Section
8.9 Successors
and Assigns; Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Originator, the Purchaser and their respective successors and
assigns. The obligations of the Seller and the Originator under this Agreement
cannot be assigned or delegated to a third party without the consent of the
Purchaser, which consent shall be at the Purchaser’s sole discretion. The
parties hereto acknowledge that (i) the Purchaser is acquiring the Mortgage
Loans for the purpose of selling them to the Issuer who will in turn pledge
the
Mortgage Loans to the Indenture Trustee for the benefit of the Noteholders
and
(ii) the Purchaser is acquiring the rights with respect to the Interest Rate
Swap Agreement for the purpose of transferring them to the Issuer who will
in
turn assign these rights to the Indenture Trustee for the benefit of the
Noteholders. As an inducement to the Purchaser to purchase the Mortgage Loans,
the Seller and the Originator acknowledge and consent to (i) the assignment
by
the Purchaser to the Issuer of all of the Purchaser’s rights against the Seller
and the Originator pursuant to this Agreement and to the enforcement or exercise
of any right or remedy against the Seller and the Originator pursuant to this
Agreement as assigned by the Purchaser and (ii) the assignment by the Issuer
to
the Indenture Trustee of such rights and to the enforcement or exercise of
any
right or remedy by the Indenture Trustee, or the Servicer or the Master Servicer
acting pursuant to the Servicing Agreement, against the Seller and the
Originator pursuant to this Agreement as assigned by the Issuer. Such
enforcement of a right or remedy by the Issuer, the Owner Trustee, the Servicer,
the Master Servicer, the Securities Administrator or the Indenture Trustee,
as
applicable, shall have the same force and effect as if the right or remedy
had
been enforced or exercised by the Purchaser directly.
Section
8.10 Survival.
The
representations and warranties made herein by the Seller and the Originator
and
the provisions of Article V hereof shall survive the purchase of the Mortgage
Loans hereunder.
Section
8.11 Third
Party Beneficiary.
Each of
the Indenture Trustee, the Owner Trustee and the Issuer shall be deemed a
third-party beneficiary of this Agreement to the same extent as if it were
a
party hereto, and shall have the right to enforce the provisions of this
Agreement.
IN
WITNESS WHEREOF, the Seller, the Originator and the Purchaser have caused their
names to be signed to this Mortgage Loan Sale and Contribution Agreement by
their respective officers thereunto duly authorized as of the day and year
first
above written.
RENAISSANCE
MORTGAGE
ACCEPTANCE CORP.
as
Purchaser
By: /s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title:
Vice
President
RENAISSANCE
REIT
INVESTMENT CORP.
as
Seller
By: /s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title:
Vice
President
DELTA
FUNDING
CORPORATION
as
Originator
By: /s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title:
Vice
President
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
See
Exhibit B to Indenture