MORTGAGE LOAN PURCHASE AGREEMENT between EMC MORTGAGE CORPORATION as Mortgage Loan Seller and BEAR STEARNS ASSET BACKED SECURITIES I LLC as Purchaser Dated as of November 30, 2006
between
EMC
MORTGAGE CORPORATION
as
Mortgage Loan Seller
and
BEAR
▇▇▇▇▇▇▇ ASSET BACKED SECURITIES I LLC
as
Purchaser
Dated
as
of
November
30, 2006
|
TABLE
OF CONTENTS
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|
|
SECTION
1.
|
Definitions
|
|
SECTION
2.
|
Purchase
and Sale of the Mortgage Loans and Related Rights.
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|
SECTION
3.
|
Mortgage
Loan Schedule
|
|
SECTION
4.
|
Mortgage
Loan Transfer.
|
|
SECTION
5.
|
Examination
of Mortgage Files.
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|
SECTION
6.
|
Recordation
of Assignments of Mortgage.
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|
SECTION
7.
|
Representations
and Warranties of the Mortgage Loan Seller Concerning the Mortgage
Loans
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|
SECTION
8.
|
Representations
and Warranties Concerning the Mortgage Loan Seller
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|
SECTION
9.
|
Representations
and Warranties Concerning the Purchaser
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|
SECTION
10.
|
Conditions
to Closing.
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|
SECTION
11.
|
Fees
and Expenses
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|
SECTION
12.
|
Accountants’
Letters.
|
|
SECTION
13.
|
Indemnification.
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|
SECTION
14.
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Notices
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|
SECTION
15.
|
Transfer
of Mortgage Loans
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|
SECTION
16.
|
Termination
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SECTION
17.
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Representations,
Warranties and Agreements to Survive Delivery
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|
SECTION
18.
|
Severability
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|
SECTION
19.
|
Counterparts
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|
SECTION
20.
|
Amendment
|
|
SECTION
21.
|
GOVERNING
LAW
|
|
SECTION
22.
|
Further
Assurances
|
|
SECTION
23.
|
Successors
and Assigns.
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|
SECTION
24.
|
The
Mortgage Loan Seller
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|
SECTION
25.
|
Entire
Agreement
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|
SECTION
26.
|
No
Partnership
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EXHIBITS
AND SCHEDULE TO
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|
|
Exhibit
1
|
Contents
of Mortgage File
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|
Exhibit
2
|
Mortgage
Loan Schedule Information
|
|
Exhibit
3
|
Mortgage
Loan Seller’s Information
|
|
Exhibit
4
|
Purchaser’s
Information
|
|
Exhibit
5
|
Schedule
of Lost Notes
|
|
Exhibit
6
|
Standard
& Poor’s Appendix E to Glossary
|
|
Schedule
A
|
Required
Ratings for Each Class of
Certificates
|
MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of November 30, 2006, as amended and
supplemented by any and all amendments hereto (collectively, “this
Agreement”),
by
and between EMC MORTGAGE CORPORATION, a Delaware corporation (the “Mortgage
Loan Seller”),
and
BEAR ▇▇▇▇▇▇▇ ASSET BACKED SECURITIES I LLC, a Delaware limited liability company
(the “Purchaser”).
Upon
the
terms and subject to the conditions of this Agreement, the Mortgage Loan Seller
agrees to sell, and the Purchaser agrees to purchase, certain conventional,
closed-end, fixed rate junior-lien mortgage loans secured by one- to four-family
residences (collectively, the “Mortgage
Loans”)
as
described herein. The Purchaser intends to deposit the Mortgage Loans into
a
trust fund (the “Trust
Fund”)
and
create Bear ▇▇▇▇▇▇▇ Mortgage Funding Trust 2006-SL5, Mortgage-Backed
Certificates, Series 2006-SL5 (the “Certificates”),
under
a pooling and servicing agreement, dated as of November 1, 2006 (the
“Pooling
and Servicing Agreement”),
among
the Purchaser, as depositor, EMC, as mortgage loan seller and as master servicer
(in that capacity, the “Master
Servicer”),
and
LaSalle Bank National Association, as trustee (the “Trustee”).
The
Purchaser has filed with the Securities and Exchange Commission (the
“Commission”)
a
registration statement on Form S-3 (Number 333-131374) relating to its
Mortgage-Backed Certificates and the offering of certain series thereof
(including certain classes of the Certificates) from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder (the “Securities
Act”).
Such
registration statement, when it became effective under the Securities Act,
and
the prospectus relating to the public offering of certain classes of the
Certificates by the Purchaser (the “Public
Offering”),
as
each may be amended or supplemented from time to time pursuant to the Securities
Act or otherwise, are referred to herein as the “Registration
Statement”
and
the
“Prospectus,”
respectively. The “Free
Writing Prospectus”
shall
mean the free writing prospectus, dated November 27, 2006. The
“Prospectus
Supplement”
shall mean that supplement, dated November
29,
2006, to the Prospectus, dated October 18, 2006, relating to certain classes
of
Certificates. With
respect to the Public Offering of certain classes of the Certificates, Bear,
▇▇▇▇▇▇▇ & Co. Inc. (“Bear
▇▇▇▇▇▇▇”)
and the
Purchaser have entered into a terms agreement, dated as of November 27, 2006,
to
an underwriting agreement, dated April 13, 2006 (together, the “Underwriting
Agreement”)
between
Bear ▇▇▇▇▇▇▇ and the Purchaser.
Now,
therefore, in consideration of the premises and the mutual agreements set forth
herein, the parties hereto agree as follows:
SECTION
1. Definitions.
Certain
terms are defined herein. Capitalized terms used herein but not defined herein
shall have the meanings specified in the Pooling and Servicing Agreement. The
following other terms are defined as follows:
Acquisition
Price:
With
respect to the Mortgage Loan Seller and the sale of the Mortgage Loans, cash
in
an amount equal to $ *
(plus
$ *
in
accrued interest).
Bear
▇▇▇▇▇▇▇:
Bear,
▇▇▇▇▇▇▇ & Co. Inc.
Closing
Date:
November 30, 2006.
Custodial
Agreement:
The
▇▇▇▇▇ Fargo Custodial Agreement.
Custodian:
▇▇▇▇▇
Fargo, as custodian under the ▇▇▇▇▇ Fargo Custodial Agreement.
Cut-off
Date:
November 1, 2006.
Cut-off
Date Balance:
Shall
mean $351,590,694.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced by a Replacement Mortgage
Loan.
Due
Date:
As to
any Mortgage Loan, the date in each month on which the related Scheduled Payment
is due, as set forth in the related Mortgage Note.
EMC:
EMC
Mortgage Corporation.
EMC
Flow Loans:
The
Mortgage Loans purchased by EMC pursuant to a flow loan purchase
agreement.
Group
II Mortgage Loans:
The Mortgage Loans with respect to Group II.
LaSalle:
LaSalle
Bank National Association, or its successors in interest.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
Moody’s:
▇▇▇▇▇’▇
Investors Service, Inc., or its successors in interest.
Mortgage:
The
mortgage or deed of trust or other instrument creating a first or junior lien
on
an interest in an estate in fee simple in real property securing a Mortgage
Note.
Mortgage
File:
The
items referred to in Exhibit
1
pertaining to a particular Mortgage Loan and any additional documents required
to be added to such documents pursuant to this Agreement.
Mortgage
Rate:
The
annual rate of interest borne by a Mortgage Note as stated herein.
Mortgagor:
The
obligor(s) on a Mortgage Note.
Net
Mortgage Rate:
As to
each Mortgage Loan, and at any time, the per annum rate equal to the Mortgage
Rate less the sum of (i) the Servicing Fee Rate, (ii) the Trustee Fee Rate
and
(iii) the rate at which the LPMI Fee is calculated, if any.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for the Mortgage Loan Seller
or
the Purchaser, reasonably acceptable to the Trustee.
Person:
Any
legal person, including any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Piggyback
Loan:
With
respect to a second lien mortgage loan originated by the same originator to
the
same borrower at the same time as the first lien mortgage loan, each secured
by
the same mortgaged property.
Purchase
Price:
With
respect to any Mortgage Loan required to be purchased by the Mortgage Loan
Seller pursuant to the applicable provisions of this Agreement, an amount equal
to the sum of (i) 100% of the principal remaining unpaid on such Mortgage Loan
as of the date of purchase (including if a foreclosure has already occurred,
the
principal balance of the related Mortgage Loan at the time the Mortgaged
Property was acquired), (ii) accrued and unpaid interest thereon at the Mortgage
Interest Rate through and including the last day of the month of purchase,
reduced
by any portion of the Servicing Fee, Servicing Advances and Advances payable
to
the purchaser of the Mortgage Loan,
plus
and
(iii) any costs and damages (if any) incurred by the Trust in connection with
any violation of such Mortgage Loan of any anti-predatory lending
laws.
Rating
Agencies:
Moody’s
and Standard & Poor’s, each a “Rating Agency”.
Replacement
Mortgage Loan:
A
mortgage loan substituted for a Deleted Mortgage Loan which must meet on the
date of such substitution the requirements stated herein and in the Pooling
and
Servicing Agreement; upon such substitution, such mortgage loan shall be a
“Mortgage Loan” hereunder.
Securities
Act:
The
Securities Act of 1933, as amended.
Standard
& Poor’s:
Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or its
successors in interest.
Value:
The
value of the Mortgaged Property at the time of origination of the related
Mortgage Loan, such value being the lesser of (i) the value of such property
set
forth in an appraisal accepted by the applicable originator of the Mortgage
Loan
or (ii) the sales price of such property at the time of
origination.
▇▇▇▇▇
Fargo:
▇▇▇▇▇
Fargo Bank, National Association, or its successor in interest.
▇▇▇▇▇
Fargo Custodial Agreement:
The
custodial agreement, dated as of November 30, 2006, among the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Trustee and ▇▇▇▇▇ Fargo Bank,
National Association as Custodian relating to the Mortgage Loans identified
in
such custodial agreement.
SECTION
2. Purchase
and Sale of the Mortgage Loans and Related Rights.
(a) Upon
satisfaction of the conditions set forth in Section 10 hereof, the Mortgage
Loan
Seller agrees to sell, and the Purchaser agrees to purchase the Mortgage Loans
sold by the Mortgage Loan Seller having an aggregate outstanding principal
balance as of the Cut-off Date equal to the Cut-off Date Balance.
(b) The
closing for the purchase and sale of the Mortgage Loans and the closing for
the
issuance of the Certificates will take place on the Closing Date at the office
of the Purchaser’s counsel in New York, New York or such other place as the
parties shall agree.
(c) Upon
the
satisfaction of the conditions set forth in Section 10 hereof, on the Closing
Date, the Purchaser shall pay to the Mortgage Loan Seller the Acquisition Price
for the Mortgage Loans sold by the Mortgage Loan Seller in immediately available
funds by wire transfer to such account or accounts as shall be designated by
the
Mortgage Loan Seller.
SECTION
3. Mortgage
Loan Schedule.
The
Mortgage Loan Seller agrees to provide to the Purchaser as of the date hereof
a
listing of the Mortgage Loans (the “Mortgage
Loan Schedule”)
setting forth the information listed on Exhibit 2 to this Agreement with respect
to each of the Mortgage Loans being sold by the Mortgage Loan Seller.
The
Mortgage Loan Schedule shall be delivered to the Purchaser on the Closing Date
and shall be in form and substance mutually agreed to by the Mortgage Loan
Seller and the Purchaser.
SECTION
4. Mortgage
Loan Transfer.
(a) The
Purchaser will be entitled to all scheduled payments of principal and interest
on the Mortgage Loans due after the Cut-off Date (regardless of when actually
collected) and all payments thereof. The Mortgage Loan Seller will be entitled
to all scheduled payments of principal and interest on the Mortgage Loans sold
by it to the Purchaser due on or before the Cut-off Date (including payments
collected after the Cut-off Date) and all payments thereof. Such principal
amounts and any interest thereon belonging to the Mortgage Loan Seller as
described above will not be included in the aggregate outstanding principal
balance of the Mortgage Loans as of the Cut-off Date as set forth on the
Mortgage Loan Schedule.
(b) Pursuant
to various conveyancing documents to be executed on the Closing Date and
pursuant to the Pooling and Servicing Agreement, the Purchaser will assign
on
the Closing Date all of its right, title and interest in and to the Mortgage
Loans to the Trustee for the benefit of the Certificateholders. In connection
with the transfer and assignment of the Mortgage Loans, Mortgage Loan Seller
has
delivered or will deliver or cause to be delivered to the Trustee, or the
Custodian on behalf of the Trustee, by the Closing Date or such later date
as is
agreed to by the Purchaser and the Mortgage Loan Seller (each of the Closing
Date and such later date is referred to as a “Mortgage
File Delivery Date”),
the
items of the respective Custodian’s Mortgage File, provided,
however,
that in
lieu of the foregoing, the Mortgage Loan Seller may deliver the following
documents, under the circumstances set forth below: (x) in lieu of the original
Mortgage (other than the Mortgages related to the EMC Flow Loans), assignments
to the Trustee or intervening assignments thereof which have been delivered,
are
being delivered or will upon receipt of recording information relating to the
Mortgage required to be included thereon, be delivered to recording offices
for
recording and have not been returned in time to permit their delivery as
specified above, the Mortgage Loan Seller may deliver a true copy thereof with
a
certification by the Mortgage Loan Seller or the Master Servicer, on the face
of
such copy, substantially as follows: “Certified to be a true and correct copy of
the original, which has been transmitted for recording;” (y) in lieu of the
Mortgage (other than the Mortgages related to the EMC Flow Loans), assignments
to the Trustee or intervening assignments thereof, if the applicable
jurisdiction retains the originals of such documents or if the originals are
lost (in each case, as evidenced by a certification from the Mortgage Loan
Seller or the Master Servicer to such effect), the Mortgage Loan Seller may
deliver photocopies of such documents containing an original certification
by
the judicial or other governmental authority of the jurisdiction where such
documents were recorded; and (z) in lieu of the Mortgage Notes relating to
the
Mortgage Loans, each identified in the list delivered by the Purchaser to the
Trustee on the Closing Date and attached hereto as Exhibit
5
the
Mortgage Loan Seller may deliver lost note affidavits and indemnities of the
Mortgage Loan Seller; and provided further, however, that in the case of
Mortgage Loans which have been prepaid in full after the Cut-off Date and prior
to the Closing Date, the Mortgage Loan Seller, in lieu of delivering the above
documents, may deliver to the Trustee a certification by the Mortgage Loan
Seller or the Master Servicer to such effect. The Mortgage Loan Seller shall
deliver such original documents (including any original documents as to which
certified copies had previously been delivered) or such certified copies to
the
Trustee, or the Custodian on behalf of the Trustee, promptly after they are
received. The Mortgage Loan Seller shall cause the Mortgage and intervening
assignments, if any, and the assignment of the Mortgage to be recorded not
later
than 180 days after the Closing Date unless such assignment is not required
to
be recorded under the terms set forth in Section 6(a) hereof.
(c) In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the
Mortgage Loan Seller
further
agrees that it will cause, at the Mortgage Loan Seller’s own expense, within 30
days after the Closing Date, the MERS® System to indicate that such Mortgage
Loans have been assigned by the Mortgage Loan Seller to the Purchaser and by
the
Purchaser to the Trustee in accordance with this Agreement for the benefit
of
the Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
(a) the code in the field which identifies the specific Trustee and (b) the
code
in the field “Pool Field” which identifies the series of the Certificates issued
in connection with such Mortgage Loans. The Mortgage Loan Seller further agrees
that it will not, and will not permit the Master Servicer or related Servicer
to, alter the codes referenced in this paragraph with respect to any Mortgage
Loan during the term of the Pooling and Servicing Agreement unless and until
such Mortgage Loan is repurchased in accordance with the terms of the Pooling
and Servicing Agreement.
(d) The
Mortgage Loan Seller and the Purchaser acknowledge hereunder that all of the
Mortgage Loans will ultimately be assigned to LaSalle Bank National Association,
as Trustee for the benefit of the Certificateholders, on the date
hereof.
SECTION
5. Examination
of Mortgage Files.
(a) On
or
before the Mortgage File Delivery Date, the Mortgage Loan Seller will have
made
the Mortgage Files available to the Purchaser or its agent for examination
which
may be at the offices of the Trustee or the Mortgage Loan Seller and/or the
Mortgage Loan Seller’s custodian. The fact that the Purchaser or its agent has
conducted or has failed to conduct any partial or complete examination of the
Mortgage Files shall not affect the Purchaser’s rights to demand cure,
repurchase, substitution or other relief as provided in this Agreement. In
furtherance of the foregoing, the Mortgage Loan Seller shall make the Mortgage
Files available to the Purchaser or its agent from time to time so as to permit
the Purchaser to confirm the Mortgage Loan Seller’s compliance with the delivery
and recordation requirements of this Agreement and the Pooling and Servicing
Agreement. In addition, upon request of the Purchaser, the Mortgage Loan Seller
agrees to provide to the Purchaser, Bear ▇▇▇▇▇▇▇ and to any investors or
prospective investors in the Certificates information regarding the Mortgage
Loans and their servicing, to make the Mortgage Files available to the
Purchaser, Bear ▇▇▇▇▇▇▇ and to such investors or prospective investors (which
may be at the offices of the Mortgage Loan Seller and/or the Mortgage Loan
Seller’s custodian) and to make available personnel knowledgeable about the
Mortgage Loans for discussions with the Purchaser, Bear ▇▇▇▇▇▇▇ and such
investors or prospective investors, upon reasonable request during regular
business hours, sufficient to permit the Purchaser, Bear ▇▇▇▇▇▇▇ and such
investors or potential investors to conduct such due diligence as any such
party
reasonably believes is appropriate.
(b) Pursuant
to the Pooling and Servicing Agreement, on the Closing Date the Trustee (or
the
Custodian as obligated under the applicable Custodial Agreement) for the benefit
of the Certificateholders, will review items of the Mortgage Files as set forth
on Exhibit
1
and will
deliver to the
Mortgage
Loan Seller an initial certification in the form attached as Exhibit One to
the
applicable Custodial Agreement.
(c) Within
90
days of the Closing Date, the Trustee or the Custodian on its behalf shall,
in
accordance with the provisions of Section 2.02 of the Pooling and Servicing
Agreement, deliver to the Mortgage Loan Seller, Master Servicer and the Trustee
an Interim Certification in the form attached as Exhibit Two to the applicable
Custodial Agreement to the effect that all such documents have been executed
and
received and that such documents relate to the Mortgage Loans identified on
the
Mortgage Loan Schedule, except for any exceptions listed on Schedule A attached
to such Interim Certification. The Custodian shall be under no duty or
obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine,
enforceable, or appropriate for the represented purpose or that they have
actually been recorded or that they are other than what they purport to be
on
their face.
(d) The
Trustee or the Custodian on its behalf will review the Mortgage Files within
180
days of the Closing Date and will deliver to the Mortgage Loan Seller, the
Master Servicer and the Trustee, a final certification substantially in the
form
of Exhibit 3 to the Custodial Agreement. If the Trustee or the Custodian on
its
behalf is unable to deliver a final certification with respect to the items
listed in Exhibit
1
due to
any document that is missing, has not been executed, is unrelated, determined
on
the basis of the Mortgagor name, original principal balance and loan number,
to
the Mortgage Loans identified in the Mortgage Loan Schedule (a “Material
Defect”),
the
Trustee or the Custodian on its behalf shall notify the Mortgage Loan Seller
of
such Material Defect. The Mortgage Loan Seller shall correct or cure any such
Material Defect within 90 days from the date of notice from the Trustee, the
Depositor or the Master Servicer of the Material Defect and if the Mortgage
Loan
Seller does not correct or cure such Material Defect within such period and
such
defect materially and adversely affects the interests of the Certificateholders
in the related Mortgage Loan, the Mortgage Loan Seller will, in accordance
with
the terms of the Pooling and Servicing Agreement, within 90 days of the date
of
notice, provide the Trustee with a Replacement Mortgage Loan (if within two
years of the Closing Date) or purchase the related Mortgage Loan at the
applicable Purchase Price; provided,
however,
that if
such defect relates solely to the inability of the Mortgage Loan Seller to
deliver the original security instrument or intervening assignments thereof,
or
a certified copy because the originals of such documents, or a certified copy,
have not been returned by the applicable jurisdiction, the Mortgage Loan Seller
shall not be required to purchase such Mortgage Loan if the Mortgage Loan Seller
delivers such original documents or certified copy promptly upon receipt, but
in
no event later than 360 days after the Closing Date. The foregoing repurchase
obligation shall not apply in the event that the Mortgage Loan Seller cannot
deliver such original or copy of any document submitted for recording to the
appropriate recording office in the applicable jurisdiction because such
document has not been returned by such office; provided that the Mortgage Loan
Seller shall instead deliver a recording receipt of such recording office or,
if
such receipt is not available, a certificate of the Mortgage Loan Seller or
a
Servicing Officer confirming that such documents have been accepted for
recording, and delivery to the Trustee shall be effected by the Mortgage Loan
Seller within thirty days of its receipt of the original recorded
document.
(e) At
the
time of any substitution, the Mortgage Loan Seller shall deliver or cause to
be
delivered the Replacement Mortgage Loan, the Mortgage File and any other
documents and payments required to be delivered in connection with a
substitution pursuant to the Pooling and Servicing Agreement. At the time of
any
purchase or substitution, the Trustee shall (i) assign the selected Mortgage
Loan to the Mortgage Loan Seller and shall release or cause the Custodian to
release the documents (including, but not limited to, the Mortgage, Mortgage
Note and other contents of the Mortgage File) in the possession of the Trustee
or the Custodian, as applicable relating to the Deleted Mortgage Loan and (ii)
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in the Mortgage Loan Seller
title to such Deleted Mortgage Loan.
SECTION
6. Recordation
of Assignments of Mortgage.
(a) The
Mortgage Loan Seller will, promptly after the Closing Date, cause each Mortgage
and each assignment of Mortgage from the Mortgage Loan Seller to the Trustee,
and all unrecorded intervening assignments, if any, delivered on or prior to
the
Closing Date, to be recorded in all recording offices in the jurisdictions
where
the related Mortgaged Properties are located; provided,
however,
the
Mortgage Loan Seller need not cause to be recorded any assignment which relates
to a Mortgage Loan that is a MOM Loan or for which the related Mortgaged
Property is located in any jurisdiction under the laws of which, as evidenced
by
an Opinion of Counsel delivered by the Mortgage Loan Seller to the Trustee
and
the Rating Agencies, the recordation of such assignment is not necessary to
protect the Trustee’s interest in the related Mortgage Loan; provided,
however,
notwithstanding the delivery of any Opinion of Counsel, each assignment of
Mortgage shall be submitted for recording by the Mortgage Loan Seller in the
manner described above, at no expense to the Trust Fund or Trustee, upon the
earliest to occur of (i) reasonable direction by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25% of the Trust,
(ii)
the occurrence of an Event of Default, (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Mortgage Loan Seller under the Pooling
and Servicing Agreement, (iv) the occurrence of a servicing transfer or an
assignment of the servicing as described in Section 7.07 of the Pooling and
Servicing Agreement or (iv) with respect to any one assignment of Mortgage,
the
occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor
under the related Mortgage.
While
each such Mortgage or assignment is being recorded, if necessary, the Mortgage
Loan Seller shall leave or cause to be left with the Trustee or the Custodian
on
its behalf a certified copy of such Mortgage or assignment. In the event that,
within 180 days of the Closing Date, the Trustee has not been provided with
an
Opinion of Counsel as described above or received evidence of recording with
respect to each Mortgage Loan delivered to the Purchaser pursuant to the terms
hereof or as set forth above and the related Mortgage Loan is not a MOM Loan,
the failure to provide evidence of recording or such Opinion of Counsel shall
be
considered a Material Defect, and the provisions of Section 5(c) and (d) shall
apply. All customary recording fees and reasonable expenses relating to the
recordation of the assignments of mortgage to the Trustee or the Opinion of
Counsel, as the case may be, shall be borne by the Mortgage Loan
Seller.
(b)
It
is the
express intent of the parties hereto that the conveyance of the Mortgage Loans
by the Mortgage Loan Seller to the Purchaser, as contemplated by this Agreement
be, and be treated as, a sale. It is, further, not the intention of the parties
that such conveyance be deemed a pledge of the Mortgage Loans by the Mortgage
Loan Seller to the Purchaser to secure a debt or other obligation of the
Mortgage Loan Seller. However, in the event that, notwithstanding the intent
of
the parties, the Mortgage Loans are held by a court to continue to be property
of the Mortgage Loan Seller, then (a) this Agreement shall also be deemed to
be
a security agreement within the meaning of Articles 8 and 9 of the applicable
Uniform Commercial Code; (b) the transfer of the Mortgage Loans provided for
herein shall be deemed to be a grant by the Mortgage Loan Seller to the
Purchaser of a security interest in all of the Mortgage Loan Seller’s right,
title and interest in and to the Mortgage Loans and all amounts payable to
the
holders of the Mortgage Loans in accordance with the terms thereof and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, to the extent the Purchaser
would otherwise be entitled to own such Mortgage Loans and proceeds pursuant
to
Section 4 hereof, including all amounts, other than investment earnings, from
time to time held or invested in any accounts created pursuant to the Pooling
and Servicing Agreement, whether in the form of cash, instruments, securities
or
other property; (c) the possession by the Purchaser or the Trustee (or the
Custodian on its behalf) of Mortgage Notes and such other items of property
as
constitute instruments, money, negotiable documents or chattel paper shall
be
deemed to be “possession by the secured party” for purposes of perfecting the
security interest pursuant to Section 9-305 (or comparable provision) of the
applicable Uniform Commercial Code; and (d) notifications to persons holding
such property, and acknowledgments, receipts or confirmations from persons
holding such property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or agents
(as
applicable) of the Purchaser for the purpose of perfecting such security
interest under applicable law. Any assignment of the interest of the Purchaser
pursuant to any provision hereof or pursuant to the Pooling and Servicing
Agreement shall also be deemed to be an assignment of any security interest
created hereby. The Mortgage Loan Seller and the Purchaser shall, to the extent
consistent with this Agreement, take such actions as may be reasonably necessary
to ensure that, if this Agreement were deemed to create a security interest
in
the Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Pooling and Servicing Agreement.
SECTION
7. Representations
and Warranties of the Mortgage Loan Seller Concerning the Mortgage
Loans.
The
Mortgage Loan Seller hereby represents and warrants to the Purchaser as of
the
Closing Date or such other date as may be specified below with respect to each
Mortgage Loan:
(a) the
information set forth in the Mortgage Loan Schedule hereto is true and correct
in all material respects;
(b) immediately
prior to the transfer to the Purchaser, the Mortgage Loan Seller was the sole
owner of beneficial title and holder of each Mortgage and Mortgage Note relating
to the Mortgage Loans and is conveying the same free and clear of any and all
liens, claims, encumbrances, participation interests, equities, pledges, charges
or security interests of any nature and the Mortgage Loan Seller has full right
and authority to sell or assign the same pursuant to this
Agreement;
(c) each
Mortgage Loan at the time it was made complied in all material respects with
all
applicable local, state and federal laws and regulations, including, without
limitation, usury, equal credit opportunity, disclosure and recording laws
and
all applicable predatory abusive and fair lending laws; and each Mortgage Loan
has been serviced in all material respects in accordance with all applicable
local, state and federal laws and regulations, including, without limitation,
usury, equal credit opportunity, disclosure and recording laws and all
applicable anti-predatory lending laws and the terms of the related Mortgage
Note, the Mortgage and other loan documents;
(d) there
is
no monetary default existing under any Mortgage or the related Mortgage Note
and
there is no material event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a default, breach
or event of acceleration; and neither the Mortgage Loan Seller, any of its
affiliates nor any servicer of any related Mortgage Loan has taken any action
to
waive any default, breach or event of acceleration; and no foreclosure action
is
threatened or has been commenced with respect to the Mortgage Loan;
(e) the
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, (i) if required by
law
in the jurisdiction where the Mortgaged Property is located, or (ii) to protect
the interests of the Trustee on behalf of the Certificateholders;
(f) no
selection procedure reasonably believed by the Mortgage Loan Seller to be
adverse to the interests of the Certificateholders was utilized in selecting
the
Mortgage Loans;
(g) each
Mortgage is a valid and enforceable junior lien on the property securing the
related Mortgage Note and each Mortgaged Property is owned by the Mortgagor
in
fee simple (except with respect to common areas in the case of condominiums,
PUDs and de minimis
PUDs) or
by leasehold for a term longer than the term of the related Mortgage, subject
only to (i) the lien of current real property taxes and assessments, (ii)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage, such
exceptions being acceptable to mortgage lending institutions generally or
specifically reflected in the appraisal obtained in connection with the
origination of the related Mortgage Loan or referred to in the lender’s title
insurance policy delivered to the originator of the related Mortgage Loan and
(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;
(h) there
is
no mechanics’ lien or claim for work, labor or material affecting the premises
subject to any Mortgage which is or may be a lien prior to, or equal with,
the
lien of such Mortgage except those which are insured against by the title
insurance policy referred to in clause (m) below;
(i) there
was
no delinquent tax or assessment lien against the property subject to any
Mortgage, except where such lien was being contested in good faith and a stay
had been granted against levying on the property;
(j) there
is
no valid offset, defense or counterclaim to any Mortgage Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid principal and
interest on such Mortgage Note;
(k) the
physical property subject to any Mortgage is free of material damage and is
in
good repair and there is no proceeding pending or threatened for the total
or
partial condemnation of any Mortgaged Property;
(l) the
Mortgaged Property and all improvements thereon comply with all requirements
of
any applicable zoning and subdivision laws and ordinances;
(m) with
respect to any junior lien Mortgage Loan, other
than any Piggyback Loan that has an initial principal amount less than
or equal to $200,000, (a) a lender’s title insurance policy or binder, or
other assurance of title customary in the relevant jurisdiction therefore in
a
form acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, was issued on the date that each
Mortgage Loan was created by a title insurance company which, to the best of
the
Mortgage
Loan Seller’s
knowledge, was qualified to do business in the jurisdiction where the related
Mortgaged Property is located, insuring the related seller and its successors
and assigns; and the Mortgage
Loan Seller
is the sole insured under such lender’s title insurance policy, and such policy,
binder or assurance is valid and remains in full force and effect, and each
such
policy, binder or assurance shall contain all applicable endorsements including
a negative amortization endorsement, if applicable, or (b) a lien
search was conducted at the time of origination with respect to
the related Mortgaged Property;
(n) at
the
time of origination, each Mortgaged Property was the subject of an appraisal
which conformed to the underwriting requirements of the originator of the
Mortgage Loan and, the appraisal is in a form acceptable to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac;
(o) the
improvements on each Mortgaged Property securing a Mortgage Loan are insured
(by
an insurer which is acceptable to the Mortgage Loan Seller) against loss by
fire
and such hazards as are covered under a standard extended coverage endorsement
in the locale in which the Mortgaged Property is located, in an amount which
is
not less than the lesser of the maximum insurable value of the improvements
securing such Mortgage Loan or the outstanding principal balance of the Mortgage
Loan, but in no event in an amount less than an amount that is required to
prevent the Mortgagor from being deemed to be a co-insurer thereunder; if the
improvement on the Mortgaged Property is a condominium unit, it is included
under the coverage afforded by a blanket policy for the condominium project;
if
upon origination of the related Mortgage Loan, the improvements on the Mortgaged
Property were in an area identified as a federally designated flood area, a
flood insurance policy is in effect in an amount representing coverage not
less
than the least of (i) the outstanding principal balance of the Mortgage Loan,
(ii) the restorable cost of improvements located on such Mortgaged Property
or
(iii) the maximum coverage available under federal law; and each Mortgage
obligates the Mortgagor thereunder to maintain the insurance referred to above
at the Mortgagor’s cost and expense;
(p) each
Mortgage Loan constitutes a "qualified mortgage" under Section 860G(a)(3)(A)
of
the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6),
(7)
and (9) without reliance on the provisions of Treasury Regulation Section
1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other
provision that would allow a Mortgage Loan to be treated as a “qualified
mortgage” notwithstanding its failure to meet the requirements of Section
860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2),
(4), (5), (6), (7) and (9);
(q) none
of
the Mortgage Loans are (a) loans subject to 12 CFR Part 226.31, 12 CFR Part
226.32 or 12 CFR Part 226.34 of Regulation Z, the regulation implementing TILA,
which implements the Home Ownership and Equity Protection Act of 1994, as
amended or (b) “high cost home,” “covered” (excluding home loans defined as
“covered home loans” in the New Jersey Home
Ownership Security Act of 2002 that were originated between November 26, 2003
and July 7, 2004), “high risk home” or “predatory” loans under any applicable
state, federal or local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory scrutiny or additional
legal liability for residential mortgage loans having high interest rates,
points and/or fees);
(r) the
information set forth in Schedule A of the Prospectus Supplement with respect
to
the Mortgage Loans
is true
and correct in all material respects;
(s) no
Mortgage Loan (a) is a “high cost loan” or “covered loan” as applicable (as such
terms are defined in the then current Standard & Poor’s LEVELS® Glossary,
which is now Version 5.7, Appendix E, attached hereto as Exhibit 6) or (b)
was
originated on or after October 1, 2002 through March 6, 2003 and is governed
by
the Georgia Fair Lending Act;
(t) each
Mortgage Loan was originated in accordance with the underwriting guidelines
of
the related originator;
(u) each
original Mortgage has been recorded or is in the process of being recorded
in
accordance with the requirements of Section 2.01 of the Pooling and Servicing
Agreement in the appropriate jurisdictions wherein such recordation is required
to perfect the lien thereof for the benefit of the Trust Fund;
(v) the
Mortgage File contains each of the documents and instruments listed in Section
2.01 of the Pooling and Servicing Agreement, subject to any exceptions,
substitutions and qualifications as are set forth in such Section;
(w) the
Mortgage Loans are currently being serviced in accordance with accepted
servicing practices;
(x) with
respect to each Mortgage Loan that has a prepayment penalty feature, each such
prepayment penalty is enforceable and will be enforced by the Mortgage Loan
Seller and each prepayment penalty
is
permitted pursuant to federal, state and local law. In addition, with respect
to
each Mortgage Loan (i) no Mortgage Loan will impose a prepayment penalty for
a
term in excess of five years from the date such Mortgage Loan was originated
and
(ii) such prepayment penalty is at least equal to the lesser of (A) the maximum
amount permitted under applicable law and (B) six months interest at the related
Mortgage Interest Rate on the amount prepaid in excess of 20% of the original
principal balance of such Mortgage Loan; and
(y) If
any of
the Mortgage Loans are secured by a leasehold interest, with respect to each
leasehold interest: the use of leasehold estates for residential properties
is
an accepted practice in the area where the related Mortgaged Property is
located; residential property in such area consisting of leasehold estates
is
readily marketable; the lease is recorded and no party is in any way in breach
of any provision of such lease; the leasehold is in full force and effect and
is
not subject to any prior lien or encumbrance by which the leasehold could be
terminated or subject to any charge or penalty; and the remaining term of the
lease does not terminate less than ten years after the maturity date of such
Mortgage Loan.
(z) With
respect to the Group II Mortgage Loans, no refinance or purchase money mortgage
loan has an APR or total points and fees that exceed the thresholds set by
the
Home Ownership and Equity Protection Act of 1994 (“HOEPA”) and its implementing
regulations, including 12 CFR § 226.32(a)(1)(i) and (ii).
(aa) With
respect to the Group II Mortgage Loans, no borrower obtained a prepaid
single-premium credit-life, credit disability, credit unemployment or credit
property insurance policy in connection with the origination of the mortgage
loan.
(bb) With
respect to the Group II Mortgage Loans, that contain a provision permitting
imposition of a penalty upon a prepayment prior to maturity: (a) the mortgage
loan provides some benefit to the borrower (e.g., a rate or fee reduction)
in
exchange for accepting such prepayment penalty; (b) the mortgage loan’s
originator had a written policy of offering the borrower, or requiring any
third-party brokers to offer the borrower, the option of obtaining a mortgage
loan that did not require payment of such a penalty; (c) the prepayment penalty
was adequately disclosed to the borrower pursuant to applicable state and
federal law; and (d) no subprime loan originated on or after October 1, 2002
will provide for prepayment penalties for a term in excess of three years and
any loans originated prior to such date, and any non-subprime loans, will not
provide for prepayment penalties for a term in excess of five years; unless
the
loan was modified to reduce the prepayment period to no more than three years
from the date of the note and the borrower was notified in writing of such
reduction in prepayment period.
(cc) With
respect to the Group II Mortgage Loans, the borrower was not encouraged or
required to select a mortgage loan product offered by the mortgage loan’s
originator which is a higher cost product designed for less creditworthy
borrowers, taking into account such facts as, without limitation, the mortgage
loan’s requirements and the borrower’s credit history, income, assets and
liabilities.
(dd)
With
respect to the Group II Mortgage Loans, the methodology used in underwriting
the
extension of credit for each Group II Mortgage Loan in the trust did not rely
solely on the extent of the borrower’s equity in the collateral as the principal
determining factor in approving such extension of credit. The methodology
employed objective criteria such as the borrower’s income, assets and
liabilities, to the proposed mortgage payment and, based on such methodology,
the Mortgage Loan’s originator made a reasonable determination that at the time
of origination the borrower had the ability to make timely payments on the
Mortgage Loan.
(ee) With
respect to the Group II Mortgage Loans, no borrower was charged “points and
fees” in an amount greater than (a) $1,000 or (b) 5% of the principal amount of
such mortgage loan, whichever is greater. For purposes of this representation,
“points and fees” (x) include origination, underwriting, broker and finder’s
fees and charges that the lender imposed as a condition of making the mortgage
loan, whether they are paid to the lender or a third party; and (y) exclude
bona
fide discount points, fees paid for actual services rendered in connection
with
the origination of the mortgage (such as attorneys’ fees, notaries fees and fees
paid for property appraisals, credit reports, surveys, title examinations and
extracts, flood and tax certifications, and home inspections); the cost of
mortgage insurance or credit-risk price adjustments; the costs of title, hazard,
and flood insurance policies; state and local transfer taxes or fees; escrow
deposits for the future payment of taxes and insurance premiums; and other
miscellaneous fees and charges, which miscellaneous fee and charges, in total,
do not exceed 0.25 percent of the loan amount.
(ff) With
respect to any Group II Mortgage Loans originated on or after August 1, 2004,
neither the related mortgage nor the related mortgage note requires the borrower
to submit to arbitration to resolve any dispute arising out of or relating
in
any way to the mortgage loan transaction.
(gg) No
Group
II Mortgage Loan was originated in connection with a manufactured housing
unit.
(hh) None
of
the Group II Mortgage Loans have an original principal balance that exceeds
the
applicable ▇▇▇▇▇▇▇ Mac loan limit as of the Closing Date.
(ii) None
of
the Group II Mortgage Loans are seasoned more than 12 months.
(jj) With
respect to any second lien mortgage loan within Loan Group II, such lien is
on a
one- to four-family residence that is the principal residence of the
borrower.
(kk) None
of
the Group II Mortgage Loans has an original principal balance that exceeds
one-half of the one-unit
limitation for first lien mortgage loans, i.e.,
$208,500 (in Alaska, Guam, Hawaii or Virgin Islands: $312,750), without regard
to the number of units.
(ll) With
respect to the Group II Mortgage Loans, the original principal balance of the
first lien mortgage loan plus the original principal balance of any second
lien
mortgage loans relating to the same mortgaged property does not exceed the
applicable ▇▇▇▇▇▇▇ Mac loan limit for first lien mortgage loans for that
property type.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 7 will inure to the benefit of the Purchaser, its successors and
assigns, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or assignment of Mortgage or the examination of any Mortgage
File.
Upon any substitution for a Mortgage Loan, the representations and warranties
set forth above shall be deemed to be made by the Mortgage Loan Seller as to
any
Replacement Mortgage Loan as of the date of substitution.
Upon
discovery or receipt of notice by the Mortgage Loan Seller, the Purchaser or
the
Trustee of a breach of any representation or warranty of the Mortgage Loan
Seller set forth in this Section 7 which materially and adversely affects the
value of the interests of the Purchaser, the Certificateholders or the Trustee
in any of the Mortgage Loans delivered to the Purchaser pursuant to this
Agreement, the party discovering or receiving notice of such breach shall give
prompt written notice to the others. It is understood and agreed that a breach
of any one of the representations contained in clauses (c), (q) and (s) in
respect of a Group II Mortgage Loan and clauses (z) through (ii) above will
be
deemed to materially adversely affect the interests of the related
Certificateholders. In the case of any such breach of a representation or
warranty set forth in this Section 7, within 90 days from the date of discovery
by the Mortgage Loan Seller, or the date the Mortgage Loan Seller is notified
by
the party discovering or receiving notice of such breach (whichever occurs
earlier), the Mortgage Loan Seller will (i) cure such breach in all material
respects, (ii) purchase the affected Mortgage Loan at the applicable Purchase
Price or (iii) if within two years of the Closing Date, substitute a qualifying
Replacement Mortgage Loan in exchange for such Mortgage Loan; provided that,
(A)
in the case of a breach of the representation and warranty concerning the
Mortgage Loan Schedule contained in clause (a) of this Section 7, if such breach
is material and relates to any field on the Mortgage Loan Schedule which
identifies any Prepayment Charge or (B) in the case of a breach of the
representation contained in clause (x) of this Section 7, then, in each case,
in
lieu of purchasing such Mortgage Loan from the Trust Fund at the Purchase Price,
the Mortgage Loan Seller shall pay the amount of the Prepayment Charge (net
of
any amount previously collected by or paid to the Trust Fund in respect of
such
Prepayment Charge) from its own funds and without reimbursement therefor, and
the Mortgage Loan Seller shall have no obligation to repurchase or substitute
for such Mortgage Loan. The obligations of the Mortgage Loan Seller to cure,
purchase or substitute a qualifying Replacement Mortgage Loan shall constitute
the Purchaser’s, the Trustee’s and the Certificateholder’s sole and exclusive
remedy under this Agreement or otherwise respecting a breach of representations
or warranties hereunder with respect to the Mortgage Loans, except for the
obligation of the Mortgage Loan Seller to indemnify the Purchaser for such
breach as set forth in and limited by Section 13 hereof.
Any
cause
of action against the Mortgage Loan Seller or relating to or arising out of
a
breach by the Mortgage Loan Seller of any representations and warranties made
in
this Section 7 shall accrue as to any Mortgage Loan upon (i) discovery of such
breach by the Mortgage Loan Seller or notice thereof by the party discovering
such breach and (ii) failure by the Mortgage Loan Seller to cure such breach,
purchase such Mortgage Loan or substitute a qualifying Replacement Mortgage
Loan
pursuant to the terms hereof.
SECTION
8. Representations
and Warranties Concerning the Mortgage Loan Seller.
As of
the date hereof and as of the Closing Date, the Mortgage Loan Seller represents
and warrants to the Purchaser as to itself in the capacity indicated as
follows:
(a) the
Mortgage Loan Seller (i) is a corporation duly organized, validly existing
and
in good standing under the laws of the State of Delaware and (ii) is qualified
and in good standing to do business in each jurisdiction where such
qualification is necessary, except where the failure so to qualify would not
reasonably be expected to have a material adverse effect on the Mortgage Loan
Seller’s business as presently conducted or on the Mortgage Loan Seller’s
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(b) the
Mortgage Loan Seller has full power to own its property, to carry on its
business as presently conducted and to enter into and perform its obligations
under this Agreement;
(c) the
execution and delivery by the Mortgage Loan Seller of this Agreement has been
duly authorized by all necessary action on the part of the Mortgage Loan Seller;
and neither the execution and delivery of this Agreement, nor the consummation
of the transactions herein contemplated, nor compliance with the provisions
hereof or thereof, will conflict with or result in a breach of, or constitute
a
default under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Mortgage Loan Seller or its properties
or the charter or by-laws of the Mortgage Loan Seller, except those conflicts,
breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Mortgage Loan Seller’s ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
(d) the
execution, delivery and performance by the Mortgage Loan Seller of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents, approvals,
notices, registrations or other actions as have already been obtained, given
or
made and, in connection with the recordation of the Mortgages, powers of
attorney or assignments of Mortgages not yet completed;
(e) this
Agreement has been duly executed and delivered by the Mortgage Loan Seller
and,
assuming due authorization, execution and delivery by the Purchaser or the
parties thereto, constitutes a valid and binding obligation of the Mortgage
Loan
Seller enforceable against it in accordance with its terms (subject to
applicable bankruptcy and insolvency laws and other similar laws affecting
the
enforcement of the rights of creditors generally);
(f) there
are
no actions, suits or proceedings pending or, to the knowledge of the Mortgage
Loan Seller, threatened against the Mortgage Loan Seller, before or by any
court, administrative agency, arbitrator or governmental body (i) with respect
to any of the transactions contemplated by this Agreement or (ii) with respect
to any other matter which in the judgment of the Mortgage Loan Seller could
reasonably be expected to be determined adversely to the Mortgage Loan Seller
and if determined adversely to the Mortgage Loan Seller materially and adversely
affect the Mortgage Loan Seller’s ability to perform its obligations under this
Agreement and the Mortgage Loan Seller is not in default with respect to any
order of any court, administrative agency, arbitrator or governmental body
so as
to materially and adversely affect the transactions contemplated by this
Agreement; and
(g) the
Mortgage Loan Seller’s Information (as defined in Section 13(a) hereof) does not
include any untrue statement of a material fact or omit to state a material
fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading.
SECTION
9. Representations
and Warranties Concerning the Purchaser.
As of
the date hereof and as of the Closing Date, the Purchaser represents and
warrants to the Mortgage Loan Seller as follows:
(a) the
Purchaser (i) is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware and (ii) is
qualified and in good standing to do business in each jurisdiction where such
qualification is necessary, except where the failure so to qualify would not
reasonably be expected to have a material adverse effect on the Purchaser’s
business as presently conducted or on the Purchaser’s ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
(b) the
Purchaser has full power to own its property, to carry on its business as
presently conducted and to enter into and perform its obligations under this
Agreement;
(c) the
execution and delivery by the Purchaser of this Agreement has been duly
authorized by all necessary action on the part of the Purchaser; and neither
the
execution and delivery of this Agreement, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Purchaser or its properties or the certificate of formation
or limited liability company agreement of the Purchaser, except those conflicts,
breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Purchaser’s ability to enter into this Agreement and to
consummate the transactions contemplated hereby or thereby;
(d) the
execution, delivery and performance by the Purchaser of this Agreement and
the
consummation of the transactions contemplated hereby or thereby do not require
the consent or approval of, the giving of notice to, the registration with,
or
the taking of any other action in respect of, any state, federal or other
governmental authority or agency, except those consents, approvals, notices,
registrations or other actions as have already been obtained, given or
made;
(e) this
Agreement has been duly executed and delivered by the Purchaser and, assuming
due authorization, execution and delivery by the Mortgage Loan Seller,
constitutes a valid and binding obligation of the Purchaser enforceable against
it in accordance with its terms (subject to applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of creditors
generally);
(f) there
are
no actions, suits or proceedings pending or, to the knowledge of the Purchaser,
threatened against the Purchaser, before or by any court, administrative agency,
arbitrator or governmental body (i) with respect to any of the transactions
contemplated by this Agreement or (ii) with respect to any other matter which
in
the judgment of the Purchaser could reasonably be expected to be determined
adversely to the Purchaser and if determined adversely to the Purchaser
materially and adversely affect the Purchaser’s ability to perform its
obligations under this Agreement; and the Purchaser is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions
contemplated by this Agreement; and
(g) the
Purchaser’s Information (as defined in Section 13(b) hereof) does not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading.
SECTION
10. Conditions
to Closing.
(a) The
obligations of the Purchaser under this Agreement will be subject to the
satisfaction, on or prior to the Closing Date, of the following
conditions:
(1) Each
of
the obligations of the Mortgage Loan Seller required to be performed at or
prior
to the Closing Date pursuant to the terms of this Agreement shall have been
duly
performed and complied with in all material respects; all of the representations
and warranties of the Mortgage Loan Seller under this Agreement shall be true
and correct as of the date or dates specified in all material respects; and
no
event shall have occurred which, with notice or the passage of time, would
constitute a default under this Agreement or the Pooling and Servicing
Agreement; and the Purchaser shall have received certificates to that effect
signed by authorized officers of each of the Mortgage Loan Seller.
(2) The
Purchaser shall have received all of the following closing documents, in such
forms as are agreed upon and reasonably acceptable to the Purchaser, duly
executed by all signatories other than the Purchaser as required pursuant to
the
respective terms thereof:
(i) The
Pooling and Servicing Agreement, in form and substance reasonably satisfactory
to the Trustee and the Purchaser, and all documents required thereby duly
executed by all signatories;
(ii) A
certificate of an officer of the Mortgage Loan Seller dated as of the Closing
Date, in a form reasonably acceptable to the Purchaser, and attached thereto
the
resolutions of the Mortgage Loan Seller authorizing the transactions
contemplated by this Agreement, together with copies of the articles of
incorporation, by-laws and certificate of good standing of the Mortgage Loan
Seller;
(iii) One
or
more opinions of counsel from the Mortgage Loan Seller’s counsel otherwise in
form and substance reasonably satisfactory to the Purchaser the Trustee and
each
Rating Agency;
(iv) A
letter
from each of the Rating Agencies giving each Class of Certificates set forth
on
Schedule A hereto the rating set forth therein; and
(v) Such
other documents, certificates (including additional representations and
warranties) and opinions as may be reasonably necessary to secure the intended
ratings from each Rating Agency for the Certificates.
(3) The
Certificates to be sold to Bear ▇▇▇▇▇▇▇ pursuant to the Underwriting Agreement
and the Purchase Agreement shall have been issued and sold to Bear
▇▇▇▇▇▇▇.
(4) The
Mortgage Loan Seller shall have furnished to the Purchaser such other
certificates of its officers or others and such other documents and opinions
of
counsel to evidence fulfillment of the conditions set forth in this Agreement
and the transactions contemplated hereby as the Purchaser and its counsel may
reasonably request.
(b) The
obligations of the Mortgage Loan Seller under this Agreement shall be subject
to
the satisfaction, on or prior to the Closing Date, of the following
conditions:
(1) The
obligations of the Purchaser required to be performed by it on or prior to
the
Closing Date pursuant to the terms of this Agreement shall have been duly
performed and complied with in all material respects, and all of the
representations and warranties of the Purchaser under this Agreement shall
be
true and correct in all material respects as of the date hereof and as of the
Closing Date, and no event shall have occurred which would constitute a breach
by it of the terms of this Agreement or the Pooling and Servicing Agreement,
and
the Mortgage Loan Seller shall have received a certificate to that effect signed
by an authorized officer of the Purchaser.
(2) The
Mortgage Loan Seller shall have received copies of all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to the
Mortgage Loan Seller, duly executed by all signatories other than the Mortgage
Loan Seller as required pursuant to the respective terms thereof:
(i) The
Pooling and Servicing Agreement, in form and substance reasonably satisfactory
to the Mortgage Loan Seller and the Trustee, and all documents required thereby
duly executed by all signatories;
(ii) A
certificate of an officer of the Purchaser dated as of the Closing Date, in
a
form reasonably acceptable to the Mortgage Loan Seller and attached thereto
the
written consent of the member of the Purchaser authorizing the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement, together
with copies of the Purchaser’s certificate of formation, limited liability
company agreement and evidence as to the good standing of the Purchaser dated
as
of a recent date;
(iii) One
or
more opinions of counsel from the Purchaser’s counsel in form and substance
reasonably satisfactory to the Mortgage Loan Seller, the Trustee and the Rating
Agencies; and
(iv) Such
other documents, certificates (including additional representations and
warranties) and opinions as may be reasonably necessary to secure the intended
rating from each Rating Agency for the Certificates.
SECTION
11. Fees
and Expenses.
Subject
to Section 16 hereof, the Mortgage Loan Seller shall pay on the Closing Date
or
such later date as may be agreed to by the Purchaser (i) the fees and expenses
of the Mortgage Loan Seller’s attorneys and the reasonable fees and expenses of
the Purchaser’s attorneys, (ii) the fees and expenses of Deloitte & Touche
LLP, (iii) the fee for the use of Purchaser’s Registration Statement based on
the aggregate original principal amount of the Certificates and the filing
fee
of the Commission as in effect on the date on which the Registration Statement
was declared effective, (iv) the fees and expenses including counsel’s fees and
expenses in connection with any “blue sky” and legal investment matters, (v) the
fees and expenses of the Trustee which shall include without limitation the
fees
and expenses of the Trustee (and the fees and disbursements of its counsel)
with
respect to (A) legal and document review of this Agreement, the Pooling and
Servicing Agreement, the Certificates and related agreements, (B) attendance
at
the Closing and (C) review of the Mortgage Loans to be performed by the Trustee
or the Custodian on its behalf, (vi) the expenses for printing or otherwise
reproducing the Certificates, the Prospectus and the Prospectus Supplement,
(vii) the fees and expenses of each Rating Agency (both initial and ongoing),
(viii) the fees and expenses relating to the preparation and recordation of
mortgage assignments (including intervening assignments, if any and if
available, to evidence a complete chain of title from the originator to the
Trustee) from the Mortgage Loan Seller to the Trustee or the expenses relating
to the Opinion of Counsel referred to in Section 6(a) hereof, as the case may
be
and (ix) Mortgage File due diligence expenses and other out-of-pocket expenses
incurred by the Purchaser in connection with the purchase of the Mortgage Loans
and by Bear ▇▇▇▇▇▇▇ in connection with the sale of the Certificates. The
Mortgage Loan Seller additionally agrees to pay directly to any third party
on a
timely basis the fees provided for above which are charged by such third party
and which are billed periodically.
SECTION
12. Accountants’
Letters.
(a) Deloitte
& Touche LLP
will
review the characteristics of a sample of the Mortgage Loans described in the
Mortgage Loan Schedule and will compare those characteristics to the description
of the Mortgage Loans contained in the Free Writing Prospectus under the
captions “Summary—The Mortgage Loans” and “The Mortgage Pool” and in Schedule A
thereto. Deloitte & Touche LLP
will
review the characteristics of a sample of the Mortgage Loans described in the
Mortgage Loan Schedule and will compare those characteristics to the description
of the Mortgage Loans contained in the Prospectus Supplement under the captions
“Summary—The Mortgage Loans” and “The Mortgage Pool” and in Schedule A thereto.
The Mortgage Loan Seller will cooperate with the Purchaser in making available
all information and taking all steps reasonably necessary to permit such
accountants to complete the review and to deliver the letters required of them
under the Underwriting Agreement. Deloitte & Touche LLP
will
also confirm certain calculations as set forth under the caption “Yield,
Prepayment and Maturity Considerations” in the Free Writing Prospectus and the
Prospectus Supplement.
(b) To
the
extent statistical information with respect to the Mortgage Loan Seller’s
servicing portfolio is included in the Free Writing Prospectus and the
Prospectus Supplement under the caption “Servicing
of the Mortgage Loans,”
a
letter from the certified public accountant for the Mortgage Loan Seller will
be
delivered to the Purchaser dated the date of the Prospectus Supplement, in
the
form previously agreed to by the Mortgage Loan Seller and the Purchaser, with
respect to such statistical information.
SECTION
13. Indemnification.
(a) The
Mortgage Loan Seller shall indemnify and hold harmless the Purchaser and its
directors, officers and controlling persons (as defined in Section 15 of the
Securities Act) from and against any loss, claim, damage or liability or action
in respect thereof, to which they or any of them may become subject, under
the
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or
action arises out of, or is based upon any untrue statement of a material fact
contained in the Mortgage
Loan Seller’s Information
as
identified in Exhibit
3,
the
omission to state in the Free Writing Prospectus, the Prospectus Supplement
or
Prospectus (or any amendment thereof or supplement thereto approved by the
Mortgage Loan Seller and in which additional Mortgage Loan Seller’s Information
is identified), in reliance upon and in conformity with Mortgage Loan Seller’s
Information a material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances in which they were made,
not misleading; and the Mortgage Loan Seller shall reimburse the Purchaser
and
each other indemnified party for any legal and other expenses reasonably
incurred by them in connection with investigating or defending or preparing
to
defend against any such loss, claim, damage, liability or action.
The
foregoing indemnity agreement is in addition to any liability which the Mortgage
Loan Seller otherwise may have to the Purchaser or any other such indemnified
party.
(b) The
Purchaser shall indemnify and hold harmless the Mortgage Loan Seller and its
respective directors, officers and controlling persons (as defined in Section
15
of the Securities Act) from and against any loss, claim, damage or liability
or
action in respect thereof, to which they or any of them may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon any untrue statement of
a
material fact contained in the Purchaser’s
Information
as
identified in Exhibit
4,
the
omission to state in the Free Writing Prospectus, the Prospectus Supplement
or
Prospectus (or any amendment thereof or supplement thereto approved by the
Purchaser and in which additional Purchaser’s Information is identified), in
reliance upon and in conformity with the Purchaser’s Information, a material
fact required to be stated therein or necessary to make the statements therein
in light of the circumstances in which they were made, not misleading; and
the
Purchaser shall reimburse the Mortgage Loan Seller and each other indemnified
party for any legal and other expenses reasonably incurred by them in connection
with investigating or defending or preparing to defend any such loss, claim,
damage, liability or action. The foregoing indemnity agreement is in addition
to
any liability which the Purchaser otherwise may have to the Mortgage Loan Seller
or any other such indemnified party.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if
a
claim in respect thereof is to be made against the indemnifying party under
such
subsection, notify each party against whom indemnification is to be sought
in
writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this Section 13 except to the extent that it has been prejudiced in any
material respect by such failure or from any liability which it may have
otherwise). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
it
may elect by written notice delivered to the indemnified party promptly (but,
in
any event, within 30 days) after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be
at
the expense of such indemnified party or parties unless (i) the employment
of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
or
(iii) such indemnified party or parties shall have reasonably concluded that
there is a conflict of interest between itself or themselves and the
indemnifying party in the conduct of the defense of any claim or that the
interests of the indemnified party or parties are not substantially co-extensive
with those of the indemnifying party (in which case the indemnifying parties
shall not have the right to direct the defense of such action on behalf of
the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying parties (provided,
however,
that
the indemnifying party shall be liable only for the fees and expenses of one
counsel in addition to one local counsel in the jurisdiction involved. Anything
in this subsection to the contrary notwithstanding, an indemnifying party shall
not be liable for any settlement or any claim or action effected without its
written consent; provided,
however,
that
such consent was not unreasonably withheld.
(d) If
the
indemnification provided for in paragraphs (a) and (b) of this Section 13 shall
for any reason be unavailable to an indemnified party in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to in
Section 13, then the indemnifying party shall in lieu of indemnifying the
indemnified party contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
benefits received by the Mortgage Loan Seller on the one hand and the Purchaser
on the other from the purchase and sale of the Mortgage Loans, the offering
of
the Certificates and the other transactions contemplated hereunder. No person
found liable for a fraudulent misrepresentation shall be entitled to
contribution from any person who is not also found liable for such fraudulent
misrepresentation.
(e) The
parties hereto agree that reliance by an indemnified party on any publicly
available information or any information or directions furnished by an
indemnifying party shall not constitute negligence, bad faith or willful
misconduct by such indemnified party.
SECTION
14. Notices.
All
demands, notices and communications hereunder shall be in writing but may be
delivered by facsimile transmission subsequently confirmed in writing. Notices
to the Mortgage Loan Seller shall be directed to EMC Mortgage Corporation,
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, (Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇)),
attention: President or General Counsel; notices to the Purchaser shall be
directed to Bear ▇▇▇▇▇▇▇ Asset Backed Securities I LLC, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (Telecopy: (212-272-7206)), Attention: Chief Counsel;
or
to any other address as may hereafter be furnished by one party to the other
party by like notice. Any such demand, notice or communication
hereunder shall be deemed to have been received on the date received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt) provided that it is received
on a
business day during normal business hours and, if received after normal business
hours, then it shall be deemed to be received on the next business
day.
SECTION
15. Transfer
of Mortgage Loans.
The
Purchaser retains the right to assign the Mortgage Loans and any or all of
its
interest under this Agreement to the Trustee without the consent of the Mortgage
Loan Seller, and, upon such assignment, the Trustee shall succeed to the
applicable rights and obligations of the Purchaser hereunder; provided, however,
the Purchaser shall remain entitled to the benefits set forth in Sections 11,
13
and 17 hereto and as provided in Section 2(a). Notwithstanding the foregoing,
the sole and exclusive right and remedy of the Trustee with respect to a breach
of representation or warranty of the Mortgage Loan Seller shall be the cure,
purchase or substitution obligations of the Mortgage Loan Seller contained
in
Sections 5 and 7 hereof.
SECTION
16. Termination.
This
Agreement may be terminated (a) by the mutual consent of the parties hereto
prior to the Closing Date, (b) by the Purchaser, if the conditions to the
Purchaser’s obligation to close set forth under Section 10(a) hereof are not
fulfilled as and when required to be fulfilled or (c) by the Mortgage Loan
Seller, if the conditions to the Mortgage Loan Seller’s obligation to close set
forth under Section 10(b) hereof are not fulfilled as and when required to
be
fulfilled. In the event of termination pursuant to clause (b), the Mortgage
Loan
Seller shall pay, and in the event of termination pursuant to clause (c), the
Purchaser shall pay, all reasonable out-of-pocket expenses incurred by the
other
in connection with the transactions contemplated by this Agreement. In the
event
of a termination pursuant to clause (a), each party shall be responsible for
its
own expenses.
SECTION
17. Representations,
Warranties and Agreements to Survive Delivery.
All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Mortgage Loan Seller submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans to the Purchaser (and by the Purchaser
to
the Trustee). Subsequent to the delivery of the Mortgage Loans to the Purchaser,
each of the Mortgage Loan Seller’s representations and warranties contained
herein with respect to the Mortgage Loans shall be deemed to relate to the
Mortgage Loans actually delivered to the Purchaser and included in the Mortgage
Loan Schedule and any Replacement Mortgage Loan.
SECTION
18. Severability.
If any
provision of this Agreement shall be prohibited or invalid under applicable
law,
this Agreement shall be ineffective only to such extent, without invalidating
the remainder of this Agreement.
SECTION
19. Counterparts.
This
Agreement may be executed in counterparts, each of which will be an original,
but which together shall constitute one and the same agreement.
SECTION
20. Amendment.
This
Agreement cannot be amended or modified in any manner without the prior written
consent of each party.
SECTION
21. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF
OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
SECTION
22. Further
Assurances.
Each of
the parties agrees to execute and deliver such instruments and take such actions
as another party may, from time to time, reasonably request in order to
effectuate the purpose and to carry out the terms of this Agreement including
any amendments hereto which may be required by either Rating
Agency.
SECTION
23. Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by each
of
the Mortgage Loan Seller and the Purchaser and their permitted successors and
assigns and, to the extent specified in Section 13 hereof, Bear ▇▇▇▇▇▇▇, and
its
directors, officers and controlling persons (within the meaning of federal
securities laws), to the extent of its rights as a third party beneficiary
hereunder. The Mortgage Loan Seller acknowledges and agrees that the Purchaser
may assign its rights under this Agreement (including, without limitation,
with
respect to the Mortgage Loan Seller’s representations and warranties respecting
the Mortgage Loans) to the Trustee. Any person into which the Mortgage Loan
Seller may be merged or consolidated (or any person resulting from any merger
or
consolidation involving the Mortgage Loan Seller), any person resulting from
a
change in form of the Mortgage Loan Seller or any person succeeding to the
business of the Mortgage Loan Seller, shall be considered the “successor” of the
Mortgage Loan Seller hereunder and shall be considered a party hereto without
the execution or filing of any paper or any further act or consent on the part
of any party hereto. Except as provided in the two preceding sentences, this
Agreement cannot be assigned, pledged or hypothecated by either party hereto
without the written consent of the other parties to this Agreement and any
such
assignment or purported assignment shall be deemed null and void.
SECTION
24. The
Mortgage Loan Seller.
The
Mortgage Loan Seller will keep in full force and effect its existence, all
rights and franchises as a corporation or a limited liability company, as the
case may be, under the laws of the State of its incorporation and will obtain
and preserve its qualification to do business as a foreign corporation or a
limited liability company, as the case may be, in each jurisdiction in which
such qualification is necessary to perform its obligations under this
Agreement.
SECTION
25. Entire
Agreement.
This
Agreement contains the entire agreement and understanding between the parties
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof.
SECTION
26. No
Partnership.
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties hereto.
[Signature
Page Follows]
* Please
contact Bear ▇▇▇▇▇▇▇ for pricing information.
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective duly authorized officers as of the date first above
written.
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EMC
MORTGAGE CORPORATION
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By:/s/
▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
EVP
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BEAR
▇▇▇▇▇▇▇ ASSET BACKED SECURITIES I LLC
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By:/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Title:
Vice President
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EXHIBIT
1
CONTENTS
OF MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser or
its
designee, and which shall be delivered to the Purchaser or its designee pursuant
to the terms of this Agreement.
(i) The
original Mortgage Note, including any riders thereto, endorsed without recourse
to the order of “LaSalle Bank National Association, as Trustee for
certificateholders of Bear ▇▇▇▇▇▇▇ Mortgage Funding Trust, Mortgage-Backed
Certificates, Series 2006-SL5,” or to blank and showing to the extent available
to the Mortgage Loan Seller an unbroken chain of endorsements from the original
payee thereof to the Person endorsing it to the Trustee;
(ii) the
original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the
presence of the MIN and language indicating that such Mortgage Loan is a MOM
Loan, which shall have been recorded (or, for Mortgage Loans other than the
EMC
Flow Loans, if the original is not available, a copy), with evidence of such
recording indicated thereon (or if clause (x) in the proviso below applies,
shall be in recordable form);
(iii) unless
the Mortgage Loan is a MOM Loan, the assignment (either an original or a copy,
which may be in the form of a blanket assignment if permitted in the
jurisdiction in which the Mortgaged Property is located) to the Trustee of
the
Mortgage with respect to each Mortgage Loan in the name of “LaSalle Bank
National Association, as Trustee for certificateholders of Bear ▇▇▇▇▇▇▇ Mortgage
Funding Trust, Mortgage-Backed Certificates, Series 2006-SL5,” which shall have
been recorded (or if clause (x) in the proviso below applies, shall be in
recordable form);
(iv) an
original or a copy of all intervening assignments of the Mortgage, if any,
to
the extent available to the Mortgage Loan Seller, with evidence of recording
thereon;
(v) the
original policy of title insurance or mortgagee’s certificate of title insurance
or commitment or binder for title insurance, if available, or a copy thereof,
or, in the event that such original title insurance policy is unavailable,
a
photocopy thereof, or in lieu thereof, a current lien search on the related
Mortgaged Property and
(vi) originals
or copies of all available assumption, modification or substitution agreements,
if any; provided, however, that in lieu of the foregoing, the Mortgage Loan
Seller may deliver the following documents, under the circumstances set forth
below: (x) if any Mortgage, assignment thereof to the Trustee or intervening
assignments thereof have been delivered or are being delivered to recording
offices for recording and have not been returned in time to permit their
delivery as specified above, the Purchaser may deliver a true copy thereof
with
a certification by the Mortgage Loan Seller or the title company issuing the
commitment for title insurance, on the face of such copy, substantially as
follows: “Certified to be a true and correct copy of the original, which has
been transmitted for recording”; and (y)
in lieu of the Mortgage (other than the Mortgages related to the EMC Flow
Loans), assignment or intervening assignments thereof, if the applicable
jurisdiction retains the originals of such documents (as evidenced by a
certification from the Depositor to such effect) the Depositor may deliver,
or
cause to be delivered, photocopies of such documents containing an original
certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; and
(z)
in lieu of the Mortgage Notes relating to the Mortgage Loans identified in
the
list set forth in Exhibit J to the Pooling and Servicing Agreement, the
Purchaser may deliver a lost note affidavit and indemnity and a copy of the
original note, if available; and provided, further, however, that in the case
of
Mortgage Loans which have been prepaid in full after the Cut-Off Date and prior
to the Closing Date, the Purchaser, in lieu of delivering the above documents,
may deliver to the Trustee and its Custodian a certification of a Servicing
Officer to such effect and in such case shall deposit all amounts paid in
respect of such Mortgage Loans, in the Protected Account or in the Distribution
Account on the Closing Date. In the case of the documents referred to in clause
(x) above, the Purchaser shall deliver such documents to the Trustee or its
Custodian promptly after they are received. the Mortgage Loan Seller shall
cause, at its expense, the Mortgage and intervening assignments, if any, and
to
the extent required in accordance with the foregoing, the assignment of the
Mortgage to the Trustee to be submitted for recording promptly after the Closing
Date; provided that the Mortgage Loan Seller need not cause to be recorded
any
assignment (a) in any jurisdiction under the laws of which, as evidenced by
an
Opinion of Counsel addressed to the Trustee delivered by the Mortgage Loan
Seller to the Trustee and the Rating Agencies, the recordation of such
assignment is not necessary to protect the Trustee’s interest in the related
Mortgage Loan or (b) if MERS is identified on the Mortgage or on a properly
recorded assignment of the Mortgage as mortgagee of record solely as nominee
for
the Mortgage Loan Seller and its successors and assigns. In the event that
the
Mortgage Loan Seller, the Purchaser or the Master Servicer gives written notice
to the Trustee that a court has recharacterized the sale of the Mortgage Loans
as a financing, the Mortgage Loan Seller shall submit or cause to be submitted
for recording as specified above or, should the Mortgage Loan Seller fail to
perform such obligations, the Master Servicer shall cause each such previously
unrecorded assignment to be submitted for recording as specified above at the
expense of the Trust. In the event a Mortgage File is released to the Mortgage
Loan Seller or the Master Servicer as a result of such Person having completed
a
Request for Release, the Custodian shall, if not so completed, complete the
assignment of the related Mortgage in the manner specified in clause (iii)
above.
EXHIBIT
2
MORTGAGE
LOAN SCHEDULE INFORMATION
The
Mortgage Loan Schedule shall set forth the following information with respect
to
each Mortgage Loan:
(a) the
city,
state and zip code of the Mortgaged Property;
(b) the
property type;
(c) the
Mortgage Interest Rate;
(d) the
Servicing Fee Rate;
(e) the
Master Servicer’s Fee Rate;
(f) the
LPMI
Fee, if applicable;
(g) the
Trustee Fee Rate, if applicable;
(h) the
Net
Rate;
(i) the
maturity date;
(j) the
stated original term to maturity;
(k) the
stated remaining term to maturity;
(l) the
original Principal Balance;
(m) the
first
payment date;
(n) the
principal and interest payment in effect as of the Cut-off Date;
(o) the
unpaid Principal Balance as of the Cut-off Date;
(p) the
Loan-to-Value Ratio at origination;
(q) the
insurer of any Primary Mortgage Insurance Policy;
(r) the
MIN
with respect to each MOM Loan;
(s) the
Gross
Margin, if applicable;
(t) the
next
Adjustment Date, if applicable;
(u) the
Maximum Lifetime Mortgage Rate, if applicable;
(v) the
Minimum Lifetime Mortgage Rate, if applicable;
(w) the
Periodic Rate Cap, if applicable;
(x) the
Loan
Group, if applicable;
(y) a
code
indicating whether the Mortgage Loan is negatively amortizing;
(z)
which
Mortgage Loans adjust after an initial fixed-rate period of one, two, three,
five, seven or ten years or any other period;
(aa) the
Prepayment Charge, if any;
(bb) lien
position (e.g., first lien or second lien);
(cc) a
code
indicating whether the Mortgage Loan is has a balloon payment;
(dd) a
code
indicating whether the Mortgage Loan is an interest-only loan;
(ee) the
interest-only term, if applicable;
(ff) the
Mortgage Loan Seller; and
(gg) the
original amortization term.
Such
schedule also shall set forth for all of the Mortgage Loans, the total number
of
Mortgage Loans, the total of each of the amounts described under (n) and (o)
above, the weighted average by principal balance as of the Cut-off Date of
each
of the rates described under (c) through (h) above, and the weighted average
remaining term to maturity by unpaid principal balance as of the Cut-off
Date.
EXHIBIT
3
MORTGAGE
LOAN SELLER’S INFORMATION
All
information in the Free Writing Prospectus and the Prospectus Supplement
described under the following captions: “SUMMARY — The Mortgage Loans,” “THE
MORTGAGE POOL”, “THE SPONSOR” and “SCHEDULE A — Mortgage Loan Statistical
Data.”
EXHIBIT
4
PURCHASER’S
INFORMATION
All
information in the Free Writing Prospectus, the Prospectus Supplement and the
Prospectus, except the Mortgage Loan Seller’s Information.
EXHIBIT
5
SCHEDULE
OF LOST NOTES
Available
Upon Request
EXHIBIT
6
REVISED
October 20, ▇▇▇▇
▇▇▇▇▇▇▇▇
▇ - Standard & Poor’s Predatory Lending Categories
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set
forth in
those laws. Note that certain loans classified by the relevant statute as
Covered are included in Standard & Poor’s High Cost Loan Category because
they included thresholds and tests that are typical of what is generally
considered High Cost by the industry.
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code ▇▇▇. §§ ▇▇-▇▇-▇▇▇ et seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. ▇▇▇. §§ 5-3.5-101 et seq.
Effective
for covered loans offered or entered into on or after January 1,
2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746
et seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. ▇▇▇. §§ 494.0078 et seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 - current)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Indiana
|
Indiana
Home Loan Practices Act, Ind. Code ▇▇▇. §§ 24-9-1-1 et seq.
Effective
January 1, 2005; amended by 2005 HB 1179, effective July 1, 2005.
|
High
Cost Home Loans
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. ▇▇▇. §§ 16a-1-101 et seq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id. § 16a-3-207) and;
|
|
High
APR Consumer Loan (id.
§16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. ▇▇▇ - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇. Rev. Stat. §§ 360.100
et seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq.
and 209 C.M.R. §§ 40.01 et seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
▇▇▇▇ No. 284, Nev. Rev. Stat. §§ 598D.010 et seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev.
Code ▇▇▇.
§§ 1349.25 et seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
Rhode
Island
|
Rhode
Island Home Loan Protection Act, R.I. Gen. Laws §§ 34-25.2-1 et seq.
Effective
December 31, 2006.
|
High
Cost Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code ▇▇▇.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
Tennessee
|
Tennessee
Home Loan Protection Act, Tenn. Code ▇▇▇. §§ ▇▇-▇▇-▇▇▇ et seq.
Effective
January 1, 2007.
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act,
W. Va. Code
▇▇▇. §§ 31-17-1 et seq.
Effective
June 5, ▇▇▇▇
|
▇▇▇▇
▇▇▇▇▇▇▇▇ Mortgage Loan Act Loan
|
|
Standard
& Poor’s Covered Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
November 27, 2003 - July 5, 2004
|
Covered
Home Loan
|
|
Standard
& Poor’s Home Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code ▇▇▇.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
SCHEDULE
A
REQUIRED
RATINGS FOR EACH CLASS OF CERTIFICATES
Public
Certificates
|
Class
|
Standard
& Poor’s
|
▇▇▇▇▇’▇
|
|
▇-▇
|
AAA
|
Aaa
|
|
A-II
|
AAA
|
Aaa
|
|
M-1
|
AA+
|
Aa1
|
|
M-2
|
AA
|
Aa2
|
|
M-3
|
AA-
|
Aa3
|
|
M-4
|
A+
|
A1
|
|
▇-▇
|
▇
|
▇▇
|
|
▇-▇
|
▇-
|
▇▇
|
|
▇-▇
|
BBB+
|
Baa1
|
|
B-2
|
BBB
|
Baa2
|
|
B-3
|
BBB-
|
Baa3
|
None
of
the above ratings has been lowered, qualified or withdrawn since the dates
of
issuance of such ratings by the Rating Agencies.
Private
Certificates
|
Class
|
Standard
& Poor’s
|
Moody’s
|
|
B-4
|
BB+
|
Ba1
|
|
C
|
Not
Rated
|
Not
Rated
|
|
R-1
|
Not
Rated
|
Not
Rated
|
|
R-2
|
Not
Rated
|
Not
Rated
|
|
R-3
|
Not
Rated
|
Not
Rated
|
|
RX
|
Not
Rated
|
Not
Rated
|
|
X
|
Not
Rated
|
Not
Rated
|