EXHIBIT 10.1
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
December 21, 2006, is between Xxxxx Fargo Asset Securities Corporation, a
Delaware corporation (the "Company"), and Xxxxx Fargo Bank, N.A., a national
banking association ("Xxxxx Fargo Bank" or, the "Seller").
The Company and Xxxxx Fargo Bank hereby recite and agree as follows:
1. Defined Terms. Terms used without definition herein shall have
the respective meanings assigned to them in the Pooling and Servicing Agreement,
dated as of December 21, 2006 (the "Pooling and Servicing Agreement"), among the
Company, Xxxxx Fargo Bank, as servicer (the "Servicer"), HSBC Bank USA, National
Association, as trustee (the "Trustee"), and Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator"), relating to the
issuance of the Company's Home Equity Asset-Backed Certificates, Series 2006-3
(the "Certificates") or, if not defined therein, in the underwriting agreement,
dated November 2, 2006 and terms agreement, dated November 2, 2006 (together,
the "Underwriting Agreement"), among the Company, Xxxxx Fargo Bank and Barclays
Capital Inc., or in the purchase agreement dated November 2, 2006 and the
purchaser terms agreement, dated November 2, 2006 (together, the "Purchase
Agreement"), among the Company, Xxxxx Fargo Bank and Barclays Capital Inc.
2. Assignment of Servicing Agreements. Xxxxx Fargo Bank agrees to
sell, and the Company agrees to purchase, the mortgage loans (the "Mortgage
Loans") listed on the Mortgage Loan Schedule and all of Xxxxx Fargo Bank's
interest with respect to the Mortgage Loans.
3. Purchase Price; Purchase and Sale. The purchase price (the
"Purchase Price") for the Mortgage Loans shall consist of $[_____________]
payable by the Company to Xxxxx Fargo Bank on the Closing Date in immediately
available funds.
Upon payment of the Purchase Price, Xxxxx Fargo Bank shall be deemed
to have transferred, assigned, set over and otherwise conveyed to the Company
all the right, title and interest of Xxxxx Fargo Bank in and to the Mortgage
Loans including all interest and principal received or receivable by Xxxxx Fargo
Bank on or with respect to the Mortgage Loans after the applicable Cut-off Date
(and including scheduled payments of principal and interest due after the
applicable Cut-off Date but received by Xxxxx Fargo Bank on or before such
Cut-off Date and Principal Prepayments received or applied on the applicable
Cut-off Date, but not including payments of principal and interest due on the
Mortgage Loans on or before such Cut-off Date), together with all of Xxxxx Fargo
Bank's right, title and interest in and to the proceeds of any related title,
hazard, primary mortgage or other insurance policies, all of Xxxxx Fargo Bank's
rights described in Section 2 above, and all other property and rights described
in the first paragraph of Section 2.01(a) of the Pooling and Servicing
Agreement. The Company hereby directs Xxxxx Fargo Bank, and Xxxxx Fargo Bank
hereby agrees, to deliver to the Trustee or Custodian on behalf of the Trustee,
all documents, instruments and agreements required to be delivered by the
Company to the Trustee under the Pooling and Servicing Agreement; including,
without limitation, the documents required to be delivered under Section 2.01(a)
of the Pooling and Servicing Agreement; and upon the occurrence of a Document
Transfer Event, the documents required to be delivered under Section 2.01(b).
Xxxxx Fargo Bank further agrees to deliver such other documents, instruments and
agreements as the Company or the Trustee shall reasonably request.
4. Representations and Warranties; Covenants. Xxxxx Fargo Bank
hereby represents and warrants to the Company that (i) the Company's
representations and warranties to the Trustee pursuant to Section 2.04 of the
Pooling and Servicing Agreement are true and correct, as of the date thereof,
and (ii) Xxxxx Fargo Bank has not dealt with any broker, investment banker,
agent or other person (other than the Company and Barclays Capital Inc.) who may
be entitled to any commission or compensation in connection with the sale of the
Mortgage Loans. Xxxxx Fargo Bank hereby agrees to cure any breach of such
representations and warranties in accordance with the terms of the Pooling and
Servicing Agreement.
Xxxxx Fargo Bank hereby agrees to continue to pay on behalf of the
Company and its successors and assignees, promptly as they become due, any
lender-paid primary mortgage insurance premiums ("LPMI Premiums") with respect
to any lender-paid primary mortgage insurance policy (an "LPMI Policy") on each
Mortgage Loan (other than the Covered Mortgage Loans) so insured as of the
applicable Cut-off Date, until such Mortgage Loan has been paid in full or
otherwise liquidated; provided, however, that the foregoing obligation of Xxxxx
Fargo Bank shall terminate with respect to all such Mortgage Loans in the event
that either (i) another entity acceptable to the insurers of such LPMI Policies
(the "LPMI Insurers") and the rating agencies rating the Certificates undertakes
to pay such LPMI Premiums, or (ii) Xxxxx Fargo Bank pays one-time premiums to
such LPMI Insurers such that all outstanding LPMI Policies will remain in force
until the related Mortgage Loans have been paid in full or otherwise liquidated,
without the requirement of any further premium payments.
5. Repurchase or Substitution. (a) Xxxxx Fargo Bank hereby agrees
to repurchase any Mortgage Loan from the Company (i) for which any document is
not delivered, as provided in paragraph 3 above, (ii) which is found by the
Trustee to be defective in any material respect, as provided in the Pooling and
Servicing Agreement, or (iii) which is discovered at any time not to be in
conformance with the representations and warranties referred to in paragraph 4
above and which document relating thereto Xxxxx Fargo Bank does not deliver or
which defect or breach Xxxxx Fargo Bank does not cure (as provided in paragraph
4 above) within 60 days after the date of notice thereof from the Trustee or the
Company, at a price equal to the Purchase Price. In addition, Xxxxx Fargo Bank
hereby agrees to reimburse the Company for any Reimbursement Amount.
Alternatively, Xxxxx Fargo Bank hereby agrees, if so requested by the Company to
substitute for any such Mortgage Loan, a new mortgage loan having
characteristics such that the representations and warranties referred to in
paragraph 4 above would not have been incorrect (except for representations and
warranties as to the correctness of the Mortgage Loan Schedule) had such
substitute mortgage loan originally been a Mortgage Loan. Xxxxx Fargo Bank
further agrees that a substituted mortgage loan will meet the requirements of an
Eligible Substitute Mortgage Loan. Xxxxx Fargo Bank shall remit to the Company,
in cash, the difference between the unpaid principal balance of the Mortgage
Loan to be substituted and the unpaid principal balance of the substitute
mortgage loan.
(b) In the event that Xxxxx Fargo Bank has a right against the
originator or former owner of a Mortgage Loan (the "Prior Holder") for breach of
a representation or warranty regarding the characteristics of such Mortgage Loan
made by the Prior Holder, Xxxxx Fargo Bank may request the Company to repurchase
the Mortgage Loan from the Trust Fund pursuant to Section 2.03 of the Pooling
and Servicing Agreement and Xxxxx Fargo Bank agrees that at the time of the
repurchase by the Company, Xxxxx Fargo Bank will repurchase the Mortgage Loan
from the Company at the "purchase price" paid by the Company pursuant to the
Pooling and Servicing Agreement.
At the time of any such repurchase by Xxxxx Fargo Bank, Xxxxx Fargo
Bank agrees either to promptly (i) liquidate such Mortgage Loan, to the extent
that Xxxxx Fargo Bank's rights in respect of the Prior Holder consist of a claim
for indemnity or (ii) transfer such Mortgage Loan to the Prior Holder at a price
not less than that paid by Xxxxx Fargo Bank to the Company.
6. Underwriting. Xxxxx Fargo Bank hereby agrees to furnish any and
all information, documents, certificates, letters or opinions with respect to
the Mortgage Loans, reasonably requested by the Company in order to perform any
of its obligations or satisfy any of the conditions on its part to be performed
or satisfied pursuant to the Underwriting Agreement or the Purchase Agreement at
or prior to the Closing Date.
7. Costs. The Company shall pay all expenses incidental to the
performance of its obligations under the Underwriting Agreement and the Purchase
Agreement, including without limitation (i) any recording fees or fees for title
policy endorsements and continuations, (ii) the expenses of preparing, printing
and reproducing the Prospectus, the Prospectus Supplement, the Underwriting
Agreement, the Private Placement Memorandum, the Purchase Agreement, the Pooling
and Servicing Agreement and the Certificates and (iii) the cost of delivering
the Certificates to the offices of Barclays Capital Inc. insured to the
satisfaction of Barclays Capital Inc.
8. Servicing. (a) Xxxxx Fargo Bank hereby represents to the Company
that the Mortgage Loans are serviced by the Servicer.
(b) With respect to each Mortgage Loan, the Servicing Fee Rate shall
be as set forth on the Mortgage Loan Schedule.
9. Notices. All demands, notices and communications hereunder shall
be in writing, shall be effective only upon receipt and shall, if sent to the
Company, be addressed to it at Xxxxx Fargo Asset Securities Corporation, 0000
Xxx Xxxxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx 00000, Attn: Vice President, Structured
Finance, or, if sent to Xxxxx Fargo Bank, be addressed to it at Xxxxx Fargo
Bank, N.A., 0000 Xxx Xxxxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx, 00000, Attn: Vice
President, Structured Finance.
10. Trustee Beneficiary. The representations, warranties and
agreements made by Xxxxx Fargo Bank in this Agreement are made for the benefit
of, and may be enforced by, the Trustee and the holders of Certificates to the
same extent that the Trustee and the holders of Certificates, respectively, have
rights against the Company under the Pooling and Servicing Agreement in respect
of representations, warranties and agreements made by the Company therein.
11. Miscellaneous. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought. This Agreement may not be changed in any
manner which would have a material adverse effect on holders of Certificates
without the prior written consent of the Trustee. The Trustee shall be protected
in consenting to any such change to the same extent provided in Article VIII of
the Pooling and Servicing Agreement. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument. This Agreement shall bind and
inure to the benefit of and be enforceable by the Company and Xxxxx Fargo Bank
and their respective successors and assigns.
12. Recharacterization. The parties hereto intend the conveyance by
the Seller to the Company of all of its right, title and interest in and to the
Mortgage Loans pursuant to this Agreement to constitute a purchase and sale and
not a loan. Notwithstanding the foregoing, to the extent that such conveyance is
held not to constitute a sale under applicable law, it is intended that this
Agreement shall constitute a security agreement under applicable law and that
the Seller shall be deemed to have granted to the Company a first priority
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans.
IN WITNESS WHEREOF, the Company and Xxxxx Fargo Bank have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
XXXXX FARGO ASSET SECURITIES
CORPORATION
By:/s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
