1
EXHIBIT 10.1
Subject to Completion
FORM OF LOAN PURCHASE AGREEMENT
This Loan Purchase Agreement (the "Agreement") is made as of
_________, 199_, between Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware
corporation (the "Depositor") and ____________ Home Equity Loan Trust 199_-__
(the "Issuer"), a Delaware statutory business trust.
Section 1. Representations and Warranties.
1. Representations and Warranties of the Parties. The Depositor and
the Issuer, each as to itself and not the other, hereby represents, warrants and
agrees that:
(a) Authorization. The execution, delivery and performance of this
Agreement by it are within its respective powers and have been duly authorized
by all necessary action on its part.
(b) No Conflict. The execution, delivery and performance of this
Agreement will not violate or conflict with (i) its charter, bylaws or trust
agreement, (ii) any resolution or other corporate action by it, (iii) any
decisions, statutes, ordinances, rulings, directions, rules, regulations,
orders, writs, decrees, injunctions, permits, certificates or other requirements
of any court or other governmental or public authority in any way applicable to
or binding upon it, and (iv) will not result in or require the creation, except
as provided in or contemplated by this Agreement, of any lien, mortgage, pledge,
security interest, charge or encumbrance of any kind upon the Original Mortgage
Loans.
(c) Binding Obligation. This Agreement has been duly executed by it
and is its valid and binding obligation, enforceable against it in accordance
with this Agreement's terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity.
Section 2. Additional Representations, Warranties and Agreements of the
Depositor.
The Depositor represents and warrants to, and agrees with, the
Issuer that the Depositor has good and valid title to the home equity loans
identified in Schedule ___ of the Indenture [Pooling and Servicing Agreement]
(the "Mortgage Loans") free and clear of all liens, mortgages, deeds of trust,
pledges, security interests, charges, encumbrances or other claims, and, upon
transfer to the Issuer, the Issuer will receive good, valid and marketable title
to all of the Mortgage Loans, free and clear of any liens, mortgages, deeds of
trust, pledges, security interests, charges, encumbrances or other claims.
Section 3. Conveyance of Mortgage Loans.
The Depositor, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the Issuer
Fund, without recourse, all of the Depositor's right, title and interest in and
to (a) the Mortgage Loans, including the Related Documents and all interest and
principal received or receivable by the Depositor on or with respect to the
Mortgage Loans after the Cut-Off Date and all interest and principal payments on
the Mortgage Loans received prior to the Cut-off Date in respect of installments
of interest and principal due thereafter, but not including payments of interest
and principal due and payable on the Mortgage Loans on or before the Cut-off
Date, and all other proceeds received in respect of such Mortgage Loans, (b) the
Depositor's rights under the Master Servicing Agreement, (c) the Insurance
Policies, if any, (d) all cash, instruments or other property held or required
to be deposited in the Collection Account or the Payment Account, (e) all
Additional Balances and (f) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid assets,
including, without limitation, any and all Insurance Proceeds,
2
Liquidation Proceeds and condemnation awards. On or prior to the Closing Date,
the Depositor shall deliver, or cause to be delivered, to the Indenture Trustee
the Trustee Loan File for each Mortgage Loan. Such delivery of the Trustee Loan
Files shall be made against delivery by (i) the Indenture Trustee of the Notes
and (ii) the Issuer of the Trust Certificate(s), in each case to or upon the
order of the Depositor.
Section 4. Intention of Parties.
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans by the Depositor to the Issuer each be, and be construed
as, an absolute sale thereof. It is, further, not the intention of the parties
that such conveyances be deemed a pledge thereof. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of the granting party, or if for any other reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans, then (i)
this Agreement shall be deemed to be a security agreement within the meaning of
the Uniform Commercial Code of the State of __________ and (ii) the conveyances
provided for in this Agreement shall be deemed to be an assignment and a grant
by the Depositor to the Issuer of a security interest in all of the assets
transferred, whether now owned or hereafter acquired.
The Depositor and the Issuer shall, to the extent consistent with
this Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement. The Depositor shall arrange for filing any Uniform Commercial
Code continuation statements in connection with any security interest granted or
assigned hereunder.
Section 5. Miscellaneous.
(a) Amendments, Etc. No rescission, modification, amendment,
supplement or change of this Agreement shall be valid or effective unless in
writing and signed by the parties to this Agreement.
(b) Binding Upon Successors, Etc. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties to this Agreement
and their respective legal representatives, heirs, successors or assigns.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(d) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(e) Headings. The headings of the several parts of this Agreement
are inserted for convenience of reference and are not intended to be a part of
or affect the meaning or interpretation of this Agreement.
(f) Authorization. The Depositor, pursuant to Section [6.03] of the
Trust Agreement, dated as of _______ __, 199_, between the Owner Trustee and the
Depositor, as Depositor, hereby authorizes and directs the Owner Trustee to
enter into this Agreement.
(g) Definitions. Capitalized terms not otherwise defined herein have
the meanings ascribed to such terms in the Indenture dated as of _________, 199_
between the Issuer and ___________________________ _______, as owner trustee.
2
3
IN WITNESS WHEREOF, each party has caused this Loan Purchase
Agreement to be executed by its duly authorized officer or officers as of the
day and year first above written.
XXXXXX XXXXXXX ABS CAPITAL I INC.
By:___________________________________
Name:
Title:
_______________________________
TRUST 199_-_
By:___________________________________
not in its individual capacity but solely
as Owner Trustee
By:___________________________________
Name:
Title:
3
