RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Purchaser,
_____________________________,
as Seller and Servicer,
_____________________________,
as Seller,
HOME EQUITY LOAN TRUST [ ]-[ ],
as Issuer,
and
_____________________________,
as Indenture Trustee
____________________________________________
MORTGAGE LOAN PURCHASE AGREEMENT
____________________________________________
Dated as of ____________
This Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
____________, is made among [ ], as seller ("[ ]") and as servicer (in
such capacity, the "Servicer"), [ ] as seller ("[ ]" and, together with
[ ], each a "Seller" and collectively, the "Sellers"), Residential Asset
Mortgage Products, Inc., as purchaser (the "Purchaser"), Home Equity Loan Trust
[ ]-[ ], as issuer (the "Issuer"), and [ ], as indenture trustee (the
"Indenture Trustee").
WITNESSETH:
WHEREAS, [ ], in the ordinary course of its business acquires and
originates home equity loans and acquired or originated all of the home equity
loans listed on the Mortgage Loan Schedule attached as Exhibit 1 hereto (the
"Initial Mortgage Loans");
WHEREAS, [ ] sold a portion of the Initial Mortgage Loans (the "[ ]
Initial Mortgage Loans") and intends to sell a portion of the Subsequent
Mortgage Loans to be sold by [ ] hereunder, to [ ] ("[ ]"), pursuant
to a Mortgage Loan Purchase Agreement (the "[ ] Purchase Agreement"), dated
as of [ ] (each date of sale, a "Prior Transfer Date") among [ ], as
purchaser, [ ], as seller, [ ], as Issuer and [ ], as trustee;
WHEREAS, [ ] sold the [ ] Initial Mortgage Loans to [ ] pursuant
to a Trust Agreement, dated as of [ ], between [ ], as depositor and
[ ], as owner trustee;
WHEREAS, [ ] owns the Cut-Off Date Principal Balances and the Related
Documents for the portion of Initial Mortgage Loans identified on the Mortgage
Loan Schedule-A attached as Exhibit 1-A hereto (the "[ ] Initial Mortgage
Loans"), including rights to (a) any property acquired by foreclosure or deed
in lieu of foreclosure or otherwise, and (b) the proceeds of any insurance
policies covering the [ ] Initial Mortgage Loans;
WHEREAS, [ ] owns the Cut-Off Date Principal Balances and the Related
Documents for the [ ] Initial Mortgage Loans identified on the Mortgage Loan
Schedule-B attached as Exhibit 1-B hereto, including rights to (a) any property
acquired by foreclosure or deed in lieu of foreclosure or otherwise, and (b)
the proceeds of any insurance policies covering the [ ] Initial Mortgage
Loans;
WHEREAS, the parties hereto desire that: (i) [ ] sell the Cut-Off Date
Principal Balances of the [ ] Initial Mortgage Loans to the Purchaser on the
Closing Date pursuant to the terms of this Agreement together with the Related
Documents, and thereafter all Additional Balances relating to the [ ]
Initial Mortgage Loans created on or after the Cut-Off Date and prior to the
Rapid Amortization Period, (ii) [ ] sell the Cut-Off Date Principal Balances
of the [ ] Initial Mortgage Loans to the Purchaser on the Closing Date
pursuant to the terms of this Agreement together with the Related Documents,
and thereafter all Additional Balances relating to the [ ] Initial Mortgage
Loans created on or after the Cut-Off Date and prior to the Rapid Amortization
Period, (iii) the Sellers may sell Subsequent Mortgage Loans to the Issuer on
one or more Subsequent Transfer Dates pursuant to the terms of the related
Subsequent Transfer Agreement, and (iv) the related Seller and [ ] make
certain representations and warranties on the Closing Date and on each
Subsequent Transfer Date;
WHEREAS, pursuant to the Trust Agreement, the Purchaser will sell the
Initial Mortgage Loans and transfer all of its rights under this Agreement to
the Issuer on the Closing Date;
WHEREAS, pursuant to the terms of the Servicing Agreement, the Servicer
will service the Mortgage Loans;
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will
issue the Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue
the Notes, secured by the Trust Estate;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...................................................2
Section 1.1 Definitions.............................................2
Section 1.2 Other Definitional Provisions...........................2
ARTICLE II SALE OF MORTGAGE LOANS AND RELATED PROVISIONS.................3
Section 2.1 Sale of Initial Mortgage Loans..........................3
Section 2.2 Sale of Subsequent Mortgage Loans.......................6
Section 2.3 Payment of Purchase Price...............................9
Section 2.4 [Reserved].............................................10
Section 2.5 Draws During Rapid Amortization Period.................10
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH..........11
Section 3.1 Representations and Warranties.........................11
ARTICLE IV SELLERS' COVENANTS...........................................21
Section 4.1 Covenants of the Sellers...............................21
ARTICLE V SERVICING....................................................21
Section 5.1 Servicing..............................................21
ARTICLE VI LIMITATION ON LIABILITY OF THE SELLERS.......................22
Section 6.1 Limitation on Liability of the Sellers.................22
ARTICLE VII TERMINATION..................................................22
Section 7.1 Termination............................................22
ARTICLE VIII MISCELLANEOUS PROVISIONS.....................................22
Section 8.1 Amendment..............................................22
Section 8.2 Governing Law..........................................22
Section 8.3 Notices................................................22
Section 8.4 Severability of Provisions.............................23
Section 8.5 Relationship of Parties................................24
Section 8.6 Counterparts...........................................24
Section 8.7 Further Agreements.....................................24
Section 8.8 Intention of the Parties...............................24
Section 8.9 Successors and Assigns; Assignment of this Agreement...24
Section 8.10 Survival...............................................25
Section 8.11 Third Party Beneficiary................................25
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For all purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Definitions contained in Appendix A to the indenture dated
as of [ ] (the "Indenture"), between the Issuer and the Indenture Trustee,
which is incorporated by reference herein. All other capitalized terms used
herein shall have the meanings specified herein.
Section 1.2 Other Definitional Provisions. All terms defined in this Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein.
As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document,
to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; the term "including" shall mean
"including without limitation"; "or" shall include "and/or"; and the term
"proceeds" shall have the meaning ascribed thereto in the UCC.
The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to herein or in
any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to
a Person are also to its permitted successors and assigns.
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1 Sale of Initial Mortgage Loans.
(a) [ ], by the execution and delivery of this Agreement, does hereby
sell, assign, set over, and otherwise convey to the Purchaser, without
recourse, all of its right, title and interest in, to and under the following,
wherever located: (i) the [ ] Initial Mortgage Loans (including the Cut-Off
Date Principal Balances now existing and all Additional Balances thereafter
arising thereunder to and including the date immediately preceding the
commencement of the Rapid Amortization Period relating thereto; provided,
however, that any Principal Balance represented by a Draw made during the Rapid
Amortization Period and interest thereon and money due or to become due in
respect thereof will not be or deemed to be transferred to the Purchaser, and
[ ] in such event shall retain ownership of each Principal Balance
represented by each such Draw and interest thereon and money due or to become
due in respect thereof), all interest accruing thereon, all monies due or to
become due thereon, and all collections in respect thereof received on or after
the Cut-Off Date (other than interest due thereon prior to the Cut-Off Date);
(ii) the interest of [ ] in any insurance policies in respect of the [ ]
Initial Mortgage Loans; and (iii) all proceeds of the foregoing; provided,
however, that the Purchaser does not assume the obligation under each Loan
Agreement relating to a Mortgage Loan to fund Draws to the Mortgagor
thereunder, and the Purchaser shall not be obligated or permitted to fund any
such Draws, it being agreed that [ ] will retain the obligation to fund
future Draws. Such conveyance shall be deemed to be made: (1) with respect to
the Cut-Off Date Principal Balances, as of the Closing Date; and (2) with
respect to the amount of each Additional Balance created on or after the
Cut-Off Date and prior to the commencement of the Rapid Amortization Period, as
of the later of the Closing Date and the date that the corresponding Draw was
made pursuant to the related Loan Agreement, subject to the receipt by [ ]
of consideration therefor as provided herein under clause (a) of Section 2.3.
(b) Reserved.
(c) [ ], by the execution and delivery of this Agreement, does hereby
sell, assign, set over, and otherwise convey to the Purchaser, without
recourse, all of its right, title and interest in, to and under the following,
and wherever located: (i) the [ ] Initial Mortgage Loans (including the
Cut-Off Date Principal Balances now existing and its rights to acquire all
Additional Balances and Excluded Amounts thereafter arising thereunder, all
interest accruing thereon, all monies due or to become due thereon, and all
collections in respect thereof received on or after the Cut-Off Date (other
than interest thereon in respect of any period prior to the Cut-Off Date));
(ii) the [ ]'s interest in any insurance policies in respect of the [ ]
Initial Mortgage Loans; and (iii) all proceeds of the foregoing; provided,
however, that the Purchaser does not assume the obligation under each Loan
Agreement relating to a Mortgage Loan to fund Draws to the Mortgagor
thereunder, and the Purchaser shall not be obligated or permitted to fund any
such Draws, it being agreed that [ ] will retain the obligation to fund
future Draws pursuant to the applicable [ ] Purchase Agreement. Such
conveyance shall be deemed to be made: (1) with respect to the Cut-Off Date
Principal Balances, as of the Closing Date; and (2) with respect to the amount
of each Additional Balance created on or after the Cut-Off Date and prior to
the commencement of the Rapid Amortization Period, as of the later of the
Closing Date and the date that the corresponding Draw was made pursuant to the
related Loan Agreement, subject to the receipt by [ ] of consideration
therefor as provided herein under clause (a) of Section 2.3.
(d) In connection with the conveyance by [ ] of the [ ] Initial
Mortgage Loans and any Subsequent Mortgage Loans, [ ] further agrees, at its
own expense, on or prior to the Closing Date with respect to the Principal
Balances of the [ ] Initial Mortgage Loans and on or prior to the related
Subsequent Cut-Off Date in the case of such Subsequent Mortgage Loans sold by
it, to indicate in its books and records that the [ ] Initial Mortgage Loans
have been sold to the Purchaser pursuant to this Agreement, and, in the case of
the Subsequent Mortgage Loans, to the Issuer pursuant to the related Subsequent
Transfer Agreement, and to deliver to the Purchaser true and complete lists of
all of the Mortgage Loans sold by [ ] specifying for each Mortgage Loan
(i) its account number and (ii) its Cut-Off Date Principal Balance or Subsequent
Cut-Off Date Principal Balance. The Mortgage Loan Schedule indicating such
information with respect to the Mortgage Loans sold by [ ] shall be marked
as Exhibit 1-A to this Agreement and is hereby incorporated into and made a
part of this Agreement.
(e) In connection with the conveyance by [ ] of the [ ] Initial
Mortgage Loans and any Subsequent Mortgage Loans, such Seller further agrees,
at its own expense, on or prior to the Closing Date with respect to the
Principal Balances of such [ ] Initial Mortgage Loans and on or prior to the
related Subsequent Cut-Off Date in the case of such Subsequent Mortgage Loans
sold by it, to indicate in its books and records that the respective [ ]
Initial Mortgage Loans have been sold to the Purchaser pursuant to this
Agreement, and, in the case of the Subsequent Mortgage Loans, to the Issuer
pursuant to the related Subsequent Transfer Agreement. [ ], as Servicer of
the Mortgage Loans sold by [ ], agrees to deliver to the Purchaser true and
complete lists of all of the Mortgage Loans sold by each Seller specifying for
each Mortgage Loan (i) its account number and (ii) its Cut-Off Date Principal
Balance or Subsequent Cut-Off Date Principal Balance. The Mortgage Loan
Schedule indicating such information with respect to the Mortgage Loans sold by
[ ] shall be marked as Exhibit 1-B to this Agreement and is hereby
incorporated into and made a part of this Agreement.
(f) In connection with the conveyance by [ ] of the [ ] Initial
Mortgage Loans and any Subsequent Mortgage Loans sold by it and the conveyance
by [ ] of the [ ] Initial Mortgage Loans and any Subsequent Mortgage
Loans sold by such Seller, [ ] shall, (A) with respect to each Mortgage
Loan, on behalf of the Purchaser deliver to, and deposit with the Custodian, at
least five (5) Business Days before the Closing Date in the case of an Initial
Mortgage Loan, and, on behalf of the Issuer, three (3) Business Days prior to
the related Subsequent Transfer Date in the case of a Subsequent Mortgage Loan,
the original Loan Agreement endorsed or assigned without recourse in blank
(which endorsement shall contain either an original signature or a facsimile
signature of an authorized officer of [ ]) or, with respect to any Mortgage
Loan as to which the original Loan Agreement has been permanently lost or
destroyed and has not been replaced, a Lost Note Affidavit, and any
modification agreement or amendment to such Loan Agreement and (B) except as
provided in clause (A) with respect to the Loan Agreements, deliver the
Mortgage Files to the Servicer.
Within the time period for the review of each Loan Agreement set forth in
Section 2.2 of the Custodial Agreement, if a material defect in any Loan
Agreement is discovered which may materially and adversely affect the value of
the related Mortgage Loan, or the interests of the Indenture Trustee (as
pledgee of the Mortgage Loans), the Noteholders, the Certificateholders or the
Enhancer in such Mortgage Loan, including [ ]'s failure to deliver the Loan
Agreement to the Custodian on behalf of the Indenture Trustee, [ ] shall
cure such defect, repurchase the related Mortgage Loan at the Repurchase Price
or substitute an Eligible Substitute Loan therefor upon the same terms and
conditions set forth in Section 3.1 hereof for breaches of representations and
warranties as to the Mortgage Loans. If a material defect in any of the
documents in the Mortgage File held by the Servicer is discovered which may
materially and adversely affect the value of the related Mortgage Loan, or the
interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the
Noteholders, the Certificateholders or the Enhancer in such Mortgage Loan,
including [ ]'s failure to deliver such documents to the Servicer on behalf
of the Indenture Trustee, [ ] shall cure such defect, repurchase the related
Mortgage Loan at the Repurchase Price or substitute an Eligible Substitute Loan
therefor upon the same terms and conditions set forth in Section 3.1 hereof for
breaches of representations and warranties as to the Mortgage Loans.
Upon sale of the Initial Mortgage Loans, the ownership of each Loan
Agreement, each related Mortgage and the contents of the related Mortgage File
shall be vested in the Purchaser and the ownership of all records and documents
with respect to the Initial Mortgage Loans that are prepared by or that come
into the possession of any Seller, as a seller of the Initial Mortgage Loans
hereunder or by [ ] in its capacity as Servicer under the Servicing
Agreement shall immediately vest in the Purchaser, and shall be promptly
delivered to the Servicer in the case of the documents in possession of [ ]
and retained and maintained in trust by [ ] as the Servicer (except for the
Loan Agreements, which shall be retained by the Custodian) at the will of the
Purchaser, in such custodial capacity only. Each Seller's records will
accurately reflect the sale of each Initial Mortgage Loan sold by it to the
Purchaser.
The Purchaser hereby acknowledges its acceptance of all right, title and
interest to the property conveyed to it pursuant to this Section 2.1.
(g) The parties hereto intend that the transactions set forth herein
constitute a sale by the Sellers to the Purchaser of each of the Sellers'
right, title and interest in and to their respective Initial Mortgage Loans and
other property as and to the extent described above. In the event the
transactions set forth herein are deemed not to be a sale, each Seller hereby
grants to the Purchaser a security interest in all of such Seller's right,
title and interest in, to and under all accounts, chattel papers, general
intangibles, contract rights, payment intangibles, certificates of deposit,
deposit accounts, instruments, documents, letters of credit, money, advices of
credit, investment property, goods and other property consisting of, arising
under or related to the Initial Mortgage Loans and such other property, to
secure all of such Seller's obligations hereunder, and this Agreement shall and
hereby does constitute a security agreement under applicable law. Each Seller
agrees to take or cause to be taken such actions and to execute such documents,
including the filing of any continuation statements with respect to the UCC-1
financing statements filed with respect to the Initial Mortgage Loans by the
Purchaser on the Closing Date, and any amendments thereto required to reflect a
change in the name or corporate structure of such Seller or the filing of any
additional UCC-1 financing statements due to the change in the principal office
or jurisdiction of incorporation of such Seller, as are necessary to perfect
and protect the Purchaser's and its assignees' interests in each Initial
Mortgage Loan and the proceeds thereof. The Servicer shall file any such
continuation statements on a timely basis.
(h) In connection with the assignment of any Mortgage Loan registered on the
MERS® System, [ ] further agrees that it will cause, at [ ]'s own
expense, as soon as practicable after the Closing Date, the MERS® System to
indicate that such Mortgage Loan has been assigned by [ ] to the Indenture
Trustee in accordance with this Agreement or the Trust Agreement for the
benefit of the Noteholders by including (or deleting, in the case of Mortgage
Loans which are repurchased in accordance with this Agreement) in such computer
files (a) the specific code which identifies the Indenture Trustee as the
assignee of such Mortgage Loan and (b) the series specific code in the field
"Pool Field" which identifies the series of the Notes issued in connection with
such Mortgage Loans. [ ] agrees that it will not alter the codes referenced
in this paragraph with respect to any Mortgage Loan during the term of this
Agreement unless and until such Mortgage Loan is repurchased in accordance with
the terms of this Agreement.
Section 2.2 Sale of Subsequent Mortgage Loans.
(a) Subject to the conditions set forth in paragraphs (b) and (c) below (the
satisfaction of which (other than the conditions specified in paragraphs
(b)(i), (b)(ii) and (b)(iii)) shall be evidenced by an Officer's Certificate of
[ ] dated the date of the related Subsequent Transfer Date), in
consideration of the Issuer's payment of the purchase price provided for in
Section 2.3 on one or more Subsequent Transfer Dates using amounts on deposit
in the Custodial Account, the Pre-Funding Account, the Funding Account or the
Reserve Sub-Account (in each case to the extent permitted by the Servicing
Agreement), each Seller may, on the related Subsequent Transfer Date, sell,
transfer, assign, set over and convey without recourse to the Issuer but
subject to the other terms and provisions of this Agreement all of the right,
title and interest of such Seller in and to (i) Subsequent Mortgage Loans
identified on the related Mortgage Loan Schedule attached to the related
Subsequent Transfer Agreement delivered by [ ] on such Subsequent Transfer
Date (including the Subsequent Cut-Off Date Principal Balance then existing and
all Additional Balances and Excluded Amounts thereafter arising thereunder to
and including the date immediately preceding the commencement of the Rapid
Amortization Period); provided that Excluded Amounts shall not be conveyed to
the Issuer and shall be retained by [ ], (ii) all money due or to become due
on such Subsequent Mortgage Loan and all collections received on or after the
related Subsequent Cut-Off Date and (iii) all items with respect to such
Subsequent Mortgage Loans to be delivered pursuant to Section 2.1 above and the
other items in the related Mortgage Files; provided, however, that the Seller
of a Subsequent Mortgage Loan reserves and retains all right, title and
interest in and to principal received and interest accruing on such Subsequent
Mortgage Loan prior to the related Subsequent Cut-Off Date. Any transfer to
the Issuer by a Seller of Subsequent Mortgage Loans shall be absolute, and is
intended by the Issuer and such Seller to constitute and to be treated as a
sale of such Subsequent Mortgage Loans by such Seller to the Issuer. In the
event that any such transaction is deemed not to be a sale, [ ] and [ ],
as the case may be, hereby grant to the Issuer as of each Subsequent Transfer
Date a security interest in all of such Seller's right, title and interest in,
to and under all accounts, chattel papers, general intangibles, payment
intangibles, contract rights, certificates of deposit, deposit accounts,
instruments, documents, letters of credit, money, advices of credit, investment
property, goods and other property consisting of, arising under or related to
the related Subsequent Mortgage Loans and such other property, to secure all of
such Seller's obligations hereunder, and this Agreement shall constitute a
security agreement under applicable law. Each Seller agrees to take or cause
to be taken such actions and to execute such documents, including the filing of
all necessary UCC-1 financing statements filed in the State of [ ] (which
shall be submitted for filing as of the related Subsequent Transfer Date), any
continuation statements with respect thereto and any amendments thereto
required to reflect a change in the name or corporate structure of such Seller
or the filing of any additional UCC-1 financing statements due to the change in
the principal office or jurisdiction of incorporation of such Seller, as are
necessary to perfect and protect the interests of the Issuer and its assignees
in each Subsequent Mortgage Loan and the proceeds thereof. The Servicer shall
file any such continuation statements on a timely basis.
The Issuer on each Subsequent Transfer Date shall acknowledge its
acceptance of all right, title and interest to the related Subsequent Mortgage
Loans and other property, existing on the Subsequent Transfer Date and
thereafter created, conveyed to it pursuant to this Section 2.2.
The Issuer shall be entitled to all scheduled principal payments due on
and after each Subsequent Cut-Off Date, all other payments of principal due and
collected on and after each Subsequent Cut-Off Date, and all payments of
interest on any related Subsequent Mortgage Loans, minus that portion of any
such interest payment that is allocable to the period prior to the related
Subsequent Cut-Off Date and any payment relating to any Excluded Amounts as
provided in Section 2.5.
(b) Any Seller may transfer to the Issuer Subsequent Mortgage Loans and the
other property and rights related thereto described in Section 2.2(a) above,
and during the Pre-Funding Period, upon the release of funds on deposit in the
Pre-Funding Account, or during the Revolving Period, upon the release of funds
on deposit in the Custodial Account or the Funding Account, or during the
Managed Amortization Period, following a Funding Event, upon the release of
funds on deposit in the Reserve Sub-Account, respectively, in accordance with
the Servicing Agreement, only upon the satisfaction of each of the following
conditions on or prior to the related Subsequent Transfer Date:
(i) such Seller or [ ], as Servicer, shall have provided the Indenture
Trustee, the Rating Agencies and the Enhancer with a timely Addition Notice
substantially in the form of Exhibit 3, which notice shall be given no later
than seven Business Days prior to the related Subsequent Transfer Date, and
shall designate the Subsequent Mortgage Loans to be sold to the Issuer, the
aggregate Principal Balance of such Subsequent Mortgage Loans as of the related
Subsequent Cut-Off Date and any other information reasonably requested by the
Indenture Trustee or the Enhancer with respect to such Subsequent Mortgage
Loans;
(ii) such Seller shall have delivered to the Indenture Trustee and the
Enhancer a duly executed Subsequent Transfer Agreement substantially in the
form of Exhibit 2, (A) confirming the satisfaction of each condition precedent
and representations specified in this Section 2.2(b) and in Section 2.2(c) and
in the related Subsequent Transfer Agreement and (B) including a Mortgage Loan
Schedule listing the Subsequent Mortgage Loans;
(iii) as of each Subsequent Transfer Date, as evidenced by delivery to the
Indenture Trustee of the Subsequent Transfer Agreement in the form of Exhibit
2, the respective Seller shall not be insolvent, made insolvent by such
transfer or aware of any pending insolvency;
(iv) such sale and transfer shall not result in a material adverse tax
consequence to the Issuer or, due to any action or inaction on the part of the
respective Seller, to the Securityholders or the Enhancer;
(v) the Revolving Period shall not have terminated or, if during the Managed
Amortization Period, a Funding Event shall have occurred; and
(vi) the Enhancer shall have approved the sale of the Subsequent Mortgage
Loans (which approval shall not be unreasonably withheld) within five (5)
Business Days of receipt of an electronic file containing the information
regarding the Subsequent Mortgage Loans that was delivered to the Enhancer
prior to the Closing Date with respect to the Initial Mortgage Loans; provided,
that if the Enhancer shall not have notified the respective Seller or [ ]
within such five (5) Business Days that the Enhancer does not so approve, such
sale of Subsequent Mortgage Loans shall be deemed approved by the Enhancer.
The obligation of the Issuer to purchase a Subsequent Mortgage Loan on
any Subsequent Transfer Date is subject to the following conditions: (i) each
such Subsequent Mortgage Loan must satisfy the representations and warranties
specified in the related Subsequent Transfer Agreement and this Agreement; (ii)
no such Seller has selected such Subsequent Mortgage Loans in a manner that it
reasonably believes is adverse to the interests of the Noteholders or the
Enhancer; and (iii) as of the related Subsequent Cut-Off Date each Subsequent
Mortgage Loan will satisfy the following criteria: (A) such Subsequent Mortgage
Loan may not be 30 or more days contractually delinquent as of the related
Subsequent Cut-Off Date; (B) the original stated term to maturity of such
Subsequent Mortgage Loan will not exceed 360 months; (C) such Subsequent
Mortgage Loan must have an outstanding Principal Balance of at least $1,000 and
not more than $[ ] as of the related Subsequent Cut-Off Date and will not
have a Credit Limit in excess of $[ ] as of the related Subsequent Cut-Off
Date; (D) such Subsequent Mortgage Loan will be underwritten substantially in
accordance with the criteria set forth under "Description of the Mortgage Loans
- Underwriting Standards" in the Prospectus Supplement; (E) such Subsequent
Mortgage Loan must have a CLTV at origination of no more than 100.00%; (F) the
remaining term to stated maturity of such Subsequent Mortgage Loan must be no
later than 360 months; (G) such Subsequent Mortgage Loan shall not provide for
negative amortization; (H) following the purchase of such Subsequent Mortgage
Loans by the Issuer, the Mortgage Loans included in the Trust Estate must have
a weighted average interest rate, a weighted average remaining term to maturity
and a weighted average CLTV at origination, as of each Subsequent Cut-Off Date,
that does not vary materially from the Initial Mortgage Loans included
initially in the Trust Estate, and the percentage of Mortgage Loans (by
aggregate principal balance) that are secured by second liens on the related
Mortgaged Properties shall be no greater than the percentage of Initial
Mortgage Loans; and (I) following the purchase of such Subsequent Mortgage
Loans by the Issuer, the percentage of Mortgage Loans (by aggregate principal
balance) that are secured by Mortgaged Properties that are manufactured housing
properties shall be no greater than [ ]%. Subsequent Mortgage Loans with
characteristics materially varying from those set forth above may be purchased
by the Issuer and included in the Trust Estate if they are acceptable to the
Enhancer, in its reasonable discretion; provided, however, that the addition of
such Subsequent Mortgage Loans will not materially affect the aggregate
characteristics of the Mortgage Loans in the Trust Estate. Neither of the
Sellers shall transfer Subsequent Mortgage Loans with the intent to mitigate
losses on Mortgage Loans previously transferred. Upon the end of the Revolving
Period, the Enhancer may increase the Overcollateralization Amount pursuant to
Section 2.2(d) herein.
(c) Within five Business Days after each Subsequent Transfer Date, [ ]
shall deliver to the Rating Agencies, the Indenture Trustee and the Enhancer a
copy of the a Mortgage Loan Schedule reflecting the Subsequent Mortgage Loans
in electronic format.
(d) In the event that a mortgage loan is not acceptable to the Enhancer as a
Subsequent Mortgage Loan pursuant to Section 2.2(b)(vi) hereof, the Enhancer
and [ ] may mutually agree to the transfer of such mortgage loan to the
Issuer as a Subsequent Mortgage Loan, subject to any increase in the
Overcollateralization Amount that may be agreed to by [ ] and the Enhancer
pursuant to the Indenture, in which event [ ] shall deliver to the Issuer
and the Indenture Trustee, with a copy to the Enhancer, an Officer's
Certificate confirming the agreement to the transfer of such Subsequent
Mortgage Loan and specifying the amount of such increase in the
Overcollateralization Amount, which additional Overcollateralization Amount may
not be contributed by [ ].
Section 2.3 Payment of Purchase Price.
(a) The sale of the Initial Mortgage Loans shall take place on the Closing
Date, subject to and simultaneously with the deposit of the Initial Mortgage
Loans into the Trust Estate, the deposit of the Original Pre-Funded Amount and
the Interest Coverage Amount into the Pre Funding Account and the Capitalized
Interest Account, respectively, and the issuance of the Securities. The
purchase price for the [ ] Initial Mortgage Loans to be paid by the
Purchaser to [ ] on the Closing Date shall be an amount equal to $[ ] in
immediately available funds, together with the Certificates, in respect of the
Cut-Off Date Principal Balances thereof. The purchase price for the [ ]
Initial Mortgage Loans to be paid by the Purchaser to [ ] on the Closing
Date shall be an amount equal to $[ ] in immediately available funds, in
respect of the Cut-Off Date Principal Balances thereof. The purchase price
paid for any Subsequent Mortgage Loan by the Indenture Trustee pursuant to the
terms hereunder shall be one-hundred percent (100%) of the Subsequent Cut-Off
Date Principal Balance thereof (as identified on the Mortgage Loan Schedule
attached to the related Subsequent Transfer Agreement provided by [ ]). In
the case of each Additional Balance transferred hereunder created on or after
the Cut-Off Date (or the Subsequent Cut-Off Date in the case of a Subsequent
Mortgage Loan) and prior to the commencement of the Rapid Amortization Period,
the purchase price thereof shall be the principal amount of the related Draw
under the related Loan Agreement on the later of the Closing Date (or the
related Subsequent Transfer Date in the case of a Subsequent Mortgage Loan) and
the date of the creation of such Additional Balance.
(b) In consideration of the sale of the [ ] Initial Mortgage Loans by
[ ] to the Purchaser on the Closing Date, the Purchaser shall pay to [ ]
on the Closing Date by wire transfer of immediately available funds to a bank
account designated by [ ], the amount specified above in paragraph (a) for
the [ ] Initial Mortgage Loans; provided, that such payment may be on a net
funding basis if agreed by [ ] and the Purchaser. In consideration of the
sale of any Subsequent Mortgage Loan by [ ] to the Issuer, the Issuer shall
pay to [ ] by wire transfer of immediately available funds to a bank account
designated by [ ], the amount specified above in paragraph (a) for each
Subsequent Mortgage Loan sold by [ ].
(c) In consideration of the sale of the [ ] Initial Mortgage Loans by
[ ] to the Purchaser on the Closing Date, the Purchaser shall pay to [ ]
on the Closing Date by wire transfer of immediately available funds to a bank
account designated by [ ], the amount specified above in paragraph (a) for
the [ ] Initial Mortgage Loans; provided, that such payment may be on a net
funding basis if agreed by [ ] and the Purchaser. In consideration of the
sale of any Subsequent Mortgage Loan by [ ] to the Issuer, the Issuer shall
pay to [ ] by wire transfer of immediately available funds to a bank account
designated by [ ], the amount specified above in paragraph (a) for each
Subsequent Mortgage Loan sold by [ ].
(d) With respect to each Additional Balance transferred hereunder with
respect to any Initial Mortgage Loan or Subsequent Mortgage Loan, the Issuer as
assignee of the Purchaser shall pay or cause to be paid to [ ] or its
designee the purchase price specified above for such Additional Balance in one
of the following ways, as applicable, a cash payment pursuant to Section
3.03(b) of the Servicing Agreement and Section 2.3(a) hereof in an amount equal
to the related Draw, if then available from Principal Collections during the
related Collection Period on the Mortgage Loans, or from funds on deposit in
the Funding Account or from the payment of the Additional Balance Increase
Amount pursuant to Section 3.05 of the Indenture.
Section 2.4 [Reserved].
Section 2.5 Draws During Rapid Amortization Period. During the Rapid
Amortization Period, any Draws made on the Mortgage Loans (each, an "Excluded
Amount") shall not be Additional Balances, and the ownership of the related
balances shall be retained by [ ]. On any Payment Date during the Rapid
Amortization Period, with respect to the related Collection Period, all
Collections in respect of each Mortgage Loan shall be allocated pro rata as
between the Issuer and [ ], based on the relative proportions of the
Principal Balance and the Excluded Amount thereof, respectively, as of the end
of the calendar month immediately prior to such Collection Period. During the
Rapid Amortization Period, any losses incurred with respect to a Mortgage Loan
shall be allocated pro rata between the Issuer and [ ], based on the
Principal Balance and the Excluded Amount thereof, respectively, as of the date
of liquidation of such Mortgage Loan. Notwithstanding any other provision
hereof or of the Servicing Agreement, payments and collections allocable to an
Excluded Amount shall not be deposited into the Custodial Account, the
Distribution Account or the Note Payment Account, and shall be distributed by
the Servicer to [ ] no less frequently than monthly in accordance with
reasonable instructions provided by the Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1 Representations and Warranties. [ ] represents and warrants to
the Purchaser, as of the Closing Date and as of each Subsequent Transfer Date
(or if otherwise specified below, as of the date so specified):
(a) As to [ ]:
(i) [ ] is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction governing its creation and
existence and is or will be in compliance with the laws of each state in which
any Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan;
(ii) [ ] has the power and authority to make, execute, deliver and perform
its obligations under this Agreement and each Subsequent Transfer Agreement to
which it is a party and all of the transactions contemplated under this
Agreement and each such Subsequent Transfer Agreement, and has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement and each such Subsequent Transfer Agreement;
(iii) [ ] is not required to obtain the consent of any other Person or any
consents, licenses, approvals or authorizations from, or registrations or
declarations with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement or any Subsequent Transfer Agreement, except for such consents,
licenses, approvals or authorizations, or registrations or declarations, as
shall have been obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement and any Subsequent Transfer
Agreement by [ ] and its performance and compliance with the terms of this
Agreement and each such Subsequent Transfer Agreement will not violate [ ]'s
Certificate of Incorporation or Bylaws or constitute a material default (or an
event which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the material breach of, any material contract,
agreement or other instrument to which [ ] is a party or which may be
applicable to [ ] or any of its assets;
(v) No litigation before any court, tribunal or governmental body is
currently pending, or to the knowledge of [ ] threatened, against [ ] or
with respect to this Agreement or any Subsequent Transfer Agreement that in the
opinion of [ ] has a reasonable likelihood of resulting in a material
adverse effect on the transactions contemplated by this Agreement or any
Subsequent Transfer Agreement;
(vi) Reserved;
(vii) This Agreement and each Subsequent Transfer Agreement to which it is a
party, constitutes a legal, valid and binding obligation of [ ], enforceable
against [ ] in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited
by general principles of equity (whether considered in a proceeding at law or
in equity) or by public policy with respect to indemnification under applicable
securities laws;
(viii) This Agreement constitutes a valid transfer and assignment to the
Purchaser of all right, title and interest of [ ] in and to the [ ]
Initial Mortgage Loans, including the Cut-Off Date Principal Balances now
existing and all Additional Balances thereafter arising to and including the
day immediately preceding the Rapid Amortization Period, all monies due or to
become due with respect thereto, and all proceeds of such Cut-Off Date
Principal Balances with respect to the [ ] Initial Mortgage Loans; and this
Agreement and the related Subsequent Transfer Agreement, when executed, will
constitute a valid transfer and assignment to the Issuer of all right, title
and interest of [ ] in and to the related Subsequent Mortgage Loans,
including the Cut-Off Date Principal Balances existing on the related
Subsequent Cut-Off Date and thereafter all Additional Balances arising to and
including the day immediately preceding the Rapid Amortization Period, all
monies due or to become due with respect thereto, and all proceeds of such
Subsequent Cut-Off Date Principal Balances and such funds as are from time to
time deposited in the Custodial Account (excluding any investment earnings
thereon) as assets of the Trust and all other property specified in the
definition of "Trust" as being part of the corpus of the Trust conveyed to the
Purchaser by [ ], and upon payment for the Additional Balances with respect
to any of the Mortgage Loans, will constitute a valid transfer and assignment
to the Purchaser (or the Issuer in the case of any Additional Balances relating
to Subsequent Mortgage Loans) of all right, title and interest of [ ] in and
to the Additional Balances, all monies due or to become due with respect
thereto, and all proceeds of such Additional Balances and all other property
specified in the definition of "Trust" relating to the Additional Balances; and
(ix) [ ] is not in default with respect to any order or decree of any court
or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that would
materially and adversely affect the condition (financial or otherwise) or
operations of [ ] or its properties or might have consequences that would
materially adversely affect its performance hereunder;
(b) As to each Initial Mortgage Loan (except as otherwise specified
below) as of the Closing Date, or with respect to each Subsequent Mortgage Loan
as of the related Subsequent Transfer Date (except as otherwise specified
below):
(i) The information set forth in the Mortgage Loan Schedule with respect to
each Mortgage Loan or the Mortgage Loans is true and correct in all material
respects as of the date or dates respecting which such information is initially
furnished;
(ii) With respect to each of the [ ] Initial Mortgage Loans or, as
applicable, any the Subsequent Mortgage Loans sold by [ ] as of each Prior
Transfer Date: (A) the related Loan Agreement and the Mortgage had not been
assigned or pledged, except for any assignment or pledge that has been
satisfied and released, (B) immediately prior to the assignment of such
Mortgage Loans to [ ], [ ] had good title thereto and (C) immediately
prior to such assignment, [ ] was the sole owner and holder of the Mortgage
Loan free and clear of any and all liens, encumbrances, pledges, or security
interests (other than, with respect to any Mortgage Loan in a second lien
position, the lien of the related first mortgage) of any nature and had full
right and authority, under all governmental and regulatory bodies having
jurisdiction over the ownership of the applicable Mortgage Loan, to sell and
assign the same pursuant to the related [ ] Purchase Agreement;
(iii) With respect to the [ ] Initial Mortgage Loans or, as applicable, any
Subsequent Mortgage Loans sold by [ ] as of each respective Subsequent
Transfer Date: (A) the related Loan Agreement and the Mortgage have not been
assigned or pledged, except for any assignment or pledge that has been
satisfied and released, (B) immediately prior to the assignment of the Mortgage
Loans to the Purchaser(or to the Issuer in the case of the Subsequent Mortgage
Loans sold by [ ]), [ ] had good title thereto and (C) [ ] is the sole
owner and holder of the Mortgage Loan free and clear of any and all liens,
encumbrances, pledges, or security interests (other than, with respect to any
Mortgage Loan in a second lien position, the lien of the related first
mortgage) of any nature and has full right and authority, under all
governmental and regulatory bodies having jurisdiction over the ownership of
the applicable Mortgage Loans to sell and assign the same pursuant to this
Agreement or the related Subsequent Transfer Agreement, as applicable;
(iv) To the best of [ ]'s knowledge, there is no valid offset, defense or
counterclaim of any obligor under any Loan Agreement or Mortgage;
(v) To the best of [ ]'s knowledge, there is no delinquent recording or
other tax or fee or assessment lien against any related Mortgaged Property;
(vi) To the best of [ ]'s knowledge, there is no proceeding pending or
threatened for the total or partial condemnation of the related Mortgaged
Property;
(vii) To the best of [ ]'s knowledge, there are no mechanics' or similar
liens or claims which have been filed for work, labor or material affecting the
related Mortgaged Property which are, or may be liens prior or equal to, or
subordinate with, the lien of the related Mortgage, except liens which are
fully insured against by the title insurance policy referred to in clause (xi);
(viii) As of the Cut-Off Date or related Subsequent Cut-Off Date, no
Mortgage Loan was 30 days or more delinquent in payment of principal or
interest;
(ix) With respect to the [ ] Initial Mortgage Loans or, as applicable, any
Subsequent Mortgage Loans sold by [ ], the related Mortgage File contains or
will contain, in accordance with the definition of "Mortgage File" in Appendix
A to the Indenture, each of the documents and instruments specified to be
included therein (it being understood that the Custodian maintains the Loan
Agreement related to each Mortgage File and the Servicer maintains the
remainder of the items to be included in the Mortgage File pursuant to the
terms of this Agreement);
(x) To the best of the [ ]'s knowledge, the related Loan Agreement and the
related Mortgage at the time it was made complied in all material respects with
applicable local, state and federal laws, including, but not limited to,
applicable predatory lending laws;
(xi) A title search or other assurance of title customary in the relevant
jurisdiction was obtained with respect to each Mortgage Loan;
(xii) None of the Mortgaged Properties is a mobile home or a manufactured
housing unit that is not permanently attached to its foundation;
(xiii) As of the Cut-Off Date, (a) no more than approximately [ ]%,
[ ]%, [ ]%, [ ]%, [ ]% and [ ]% of the Initial Mortgage Loans, by Cut-Off
Date Principal, are secured by Mortgaged Properties located in [ ]%, [ ]%,
[ ]%, [ ]%, [ ]%and [ ]%, respectively;
(xiv) As of the Cut-Off Date or Subsequent Cut-Off Date, the Combined
Loan-to-Value Ratio for each Mortgage Loan was not in excess of 100.00%;
(xv) [ ] has not transferred the [ ] Initial Mortgage Loans to the
Purchaser or any Subsequent Mortgage Loans to the Issuer with any intent to
hinder, delay or defraud any of its creditors;
(xvi) As of the Cut-Off Date, no more than approximately [ ]% of the Initial
Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged
Properties which may have been appraised using a statistical property
evaluation method and all of the appraisals on such Mortgaged Properties have
been delivered by [ ] (also known as [ ]); no more than approximately
[ ]% of the Initial Mortgage Loans, by Cut-Off Date Principal Balance, are
secured by Mortgaged Properties which may have been appraised using the [ ]
Stated Value method; [ ]% of the Initial Mortgage Loans, by Cut-Off Date
Principal Balance, are secured by Mortgaged Properties which may have been
appraised using a tax assessment; no more than approximately [ ]% of the
Initial Mortgage Loans, by Cut-Off Date Principal Balance, are secured by
Mortgaged Properties which may have been appraised using a broker price
opinion; no more than approximately [ ]% of the Initial Mortgage Loans, by
Cut-Off Date Principal Balance, are secured by Mortgaged Properties which may
have been appraised using a URAR Form 1004; no more than approximately [ ]% of
the Initial Mortgage Loans, by Cut-Off Date Principal Balance, are secured by
Mortgaged Properties which may have been appraised using a Drive-By Form 704;
no more than approximately [ ]% of the Initial Mortgage Loans, by Cut-Off Date
Principal Balance, are secured by Mortgaged Properties which may have been
appraised using Form 2055 (Exterior Only); no more than approximately [ ]% of
the Initial Mortgage Loans, by Cut-Off Date Principal Balance, are secured by
Mortgaged Properties which may have been appraised using a Form 2055 (with
Interior Inspection), and no more than approximately [ ]% of the Initial
Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged
Properties which may have been appraised using a Form 2065.
(xvii) The minimum monthly payment with respect to any Mortgage Loan is
not less than the interest accrued at the applicable Loan Rate on the average
daily Principal Balance during the interest period relating to the date on
which such minimum monthly payment is due;
(xviii) Within a loan type, and except as required by applicable law, each
Loan Agreement and each Mortgage is an enforceable obligation of the related
Mortgagor;
(xix) To the best knowledge of [ ], the physical property subject to each
Mortgage is free of material damage and is in acceptable repair;
(xx) [ ] has not received a notice of default of any senior mortgage loan
related to a Mortgaged Property which has not been cured by a party other than
the Servicer;
(xxi) Each Mortgage Loan has a substantially similar definition of the prime
rate as the Index applicable to the related Loan Rate;
(xxii) None of the Mortgage Loans is a reverse mortgage loan;
(xxiii) No Initial Mortgage Loan has an original term to maturity in excess
of 360 months. Interest rate adjustments for the Mortgage Loans prior to the
Cut-Off Date or Subsequent Cut-Off Date were made in compliance with the
related Mortgage and Loan Agreement. Over the term of any Mortgage Loan, the
Loan Rate may not exceed the related Maximum Loan Rate, if any;
(xxiv) As of the Cut-Off Date, the Initial Mortgage Loans have Maximum
Loan Rates which range between [ ] and the maximum interest rate allowed
under the applicable state law. The current Gross Margins for the Initial
Mortgage Loans range between [ ] and [ ], and the weighted average Gross
Margin for the Mortgage Loans is approximately [ ]% (not including teaser
rates) as of the Cut-Off Date. As of the Cut-Off Date, the Loan Rates on the
Initial Mortgage Loans range between [ ] (not including teaser rates) and
[ ]. As of the Cut-Off Date, the weighted average Loan Rate for the Initial
Mortgage Loans is approximately [ ] (not including teaser rates). The
weighted average remaining term to scheduled maturity of the Initial Mortgage
Loans on a contractual basis as of the Cut-Off Date is approximately [ ]
months;
(xxv) (A) Each Mortgaged Property consists of a single parcel of real property
with a single family or two- to four-family residence erected thereon, or an
individual condominium unit, planned unit development unit or manufactured
housing unit. (B) With respect to the Initial Mortgage Loans, (a)
approximately [ ]% (by Cut-Off Date Principal Balance) are secured by real
property with a single family residence erected thereon, (b) approximately
[ ]% (by Cut-Off Date Principal Balance) are secured by real property improved
by planned development units, (c) approximately [ ]% (by Cut-Off Date
Principal Balance) are secured by real property improved by individual
condominium units, (d) approximately [ ]% (by Cut-Off Date Principal Balance)
are secured by real property with a two- to four-family residence erected
thereon, (e) approximately [ ]% (by Cut-Off Date Principal Balance) are
secured by real property improved by townhouses, and (f) [ ]% are secured by
real property improved by manufactured housing;
(xxvi) As of the Cut-Off Date, (A) the Credit Limits range between
approximately $[ ] and $[ ] with an average of $[ ], and (B) no
Initial Mortgage Loan had a principal balance in excess of $[ ];
(xxvii) No more than approximately [ ]% of the Initial Mortgage Loans, by
aggregate Principal Balance as of the Cut-Off Date, are secured by second liens;
(xxviii) A policy of hazard insurance and flood insurance, if applicable,
was required from the Mortgagor for the Mortgage Loan when the Mortgage Loan
was originated;
(xxix) Other than with respect to a payment default, there is no material
default, breach, violation or event of acceleration existing under the terms of
any Loan Agreement or Mortgage and, to the best of [ ]'s knowledge, no event
which, with notice and expiration of any grace or cure period, would constitute
a material default, breach, violation or event of acceleration under the terms
of any Loan Agreement or Mortgage, and no such material default, breach,
violation or event of acceleration has been waived by [ ] involved in
originating or servicing the related Mortgage Loan;
(xxx) No instrument of release or waiver has been executed by [ ] or, to the
best knowledge of [ ], by any other person, in connection with the Mortgage
Loans, and no Mortgagor has been released by [ ] or, to the best knowledge
of [ ], by any other person, in whole or in part from its obligations in
connection therewith;
(xxxi) With respect to each Mortgage Loan secured by a second lien, either
(a) no consent for such Mortgage Loan was required by the holder or holders of
the related prior lien, (b) such consent has been obtained and is contained in
the related Mortgage File or (c) no consent for such Mortgage Loan was required
by relevant law;
(xxxii) With respect to each Mortgage Loan, to the extent permitted by
applicable law, the related Mortgage contains a customary provision for the
acceleration of the payment of the unpaid Principal Balance of the Mortgage
Loan in the event the related Mortgaged Property is sold without the prior
consent of the mortgagee thereunder;
(xxxiii) No Mortgage Loan provides for payments that are subject to
reduction by withholding taxes levied by foreign (non-United States) sovereign
government;
(xxxiv) None of the Mortgage Loans are "high cost loans" subject to the
Home Ownership and Equity Protection Act of 1994;
(xxxv) As of the Cut-Off Date, none of the Mortgage Loans are "High Cost
Loans" or "Covered Loans" (as such terms are defined in the current version of
Appendix E to the Standard & Poor's LEVELS Glossary in effect as of the Closing
Date);
(xxxvi) None of the Initial Mortgage Loans are secured by Mortgaged
Properties located in the State of Georgia and no Subsequent Mortgage Loan
shall be secured by Mortgaged Properties located in the State of Georgia if
such Mortgage Loan was originated prior to [ ] and subsequent to [ ];
and
(xxxvii) [ ] used no selection procedures that identified the Mortgage
Loans as being less desirable or valuable than other comparable mortgage loans
originated or acquired by [ ] under the Home Equity Program. The Mortgage
Loans are representative of [ ]'s portfolio of home equity lines of credit
that were originated under the Home Equity Program.
With respect to this Section 3.1(b), representations made by [ ]
with respect to the [ ] Initial Mortgage Loans, made as of the Cut-Off Date
or the Closing Date or with respect to the Subsequent Mortgage Loans sold by
[ ] and made as of the Subsequent Cut-Off Date or the Subsequent Transfer
Date, are made by [ ] in its capacity as Servicer. Representations made by
[ ] with respect to the [ ] Initial Mortgage Loans or the Subsequent
Mortgage Loans sold by [ ] and made as of any other date, are made by [ ]
in its capacity as Seller.
(c) [Reserved].
(d) [ ] Representations and Warranties. [ ] represents and
warrants to the Purchaser, as of the Closing Date and as of each Subsequent
Transfer Date:
(I) As to [ ]:
(i) [ ] is a Delaware statutory trust duly organized, validly existing and
in good standing under the laws of the State of Delaware;
(ii) [ ] has the power and authority to make, execute, deliver and perform
its obligations under this Agreement and each Subsequent Transfer Agreement to
which it is a party and all of the transactions contemplated under this
Agreement and each such Subsequent Transfer Agreement, and has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement and each such Subsequent Transfer Agreement;
(iii) [ ] is not required to obtain the consent of any other Person or any
consents, licenses, approvals or authorizations from, or registrations or
declarations with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement or any Subsequent Transfer Agreement, except for such consents,
licenses, approvals or authorizations, or registrations or declarations, as
shall have been obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement and any Subsequent Transfer
Agreement by [ ] and its performance and compliance with the terms of this
Agreement and each such Subsequent Transfer Agreement will not violate [ ]'s
organizational documents or constitute a material default (or an event which,
with notice or lapse of time, or both, would constitute a material default)
under, or result in the material breach of, any material contract, agreement or
other instrument to which [ ] is a party or which may be applicable to
[ ] or any of its assets;
(v) No litigation before any court, tribunal or governmental body is
currently pending, or to the knowledge of [ ] threatened, against [ ] or
with respect to this Agreement or any Subsequent Transfer Agreement that in the
opinion of [ ] has a reasonable likelihood of resulting in a material
adverse effect on the transactions contemplated by this Agreement or any
Subsequent Transfer Agreement;
(vi) This Agreement and each Subsequent Transfer Agreement to which it is a
party constitutes a legal, valid and binding obligation of [ ], enforceable
against [ ] in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited
by general principles of equity (whether considered in a proceeding at law or
in equity) or by public policy with respect to indemnification under applicable
securities laws;
(vii) This Agreement constitutes a valid transfer and assignment to the
Purchaser of all right, title and interest of [ ] in and to the [ ]
Initial Mortgage Loans, including the Cut-Off Date Principal Balances with
respect to the [ ] Initial Mortgage Loans, all Additional Balances
thereafter arising, all monies due or to become due with respect thereto, and
all proceeds of such Cut-Off Date Principal Balances with respect to the [ ]
Initial Mortgage Loans; and this Agreement and the related Subsequent Transfer
Agreement, when executed, will constitute a valid transfer and assignment to
the Issuer of all right, title and interest of [ ] in and to the related
Subsequent Mortgage Loans, including the Cut-Off Date Principal Balances
existing on the related Subsequent Cut-Off Date and all Additional Balances
thereafter arising, all monies due or to become due with respect thereto, and
all proceeds thereof and such funds as are from time to time deposited in the
Custodial Account (excluding any investment earnings thereon) as assets of the
Trust and all other property specified in the definition of "Trust" as being
part of the corpus of the Trust conveyed to the Purchaser by [ ]; and
(viii) [ ] is not in default with respect to any order or decree of any
court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that would
materially and adversely affect the condition (financial or otherwise) or
operations of [ ] or its properties or might have consequences that would
materially adversely affect its performance hereunder.
(II) As to the [ ] Initial Mortgage Loans as of the Closing Date, or
with respect to each Subsequent Mortgage Loan as of the related Subsequent
Transfer Date:
(i) With respect to the [ ] Initial Mortgage Loans or, as applicable, any
Subsequent Mortgage Loans sold by [ ]: (A) the related Loan Agreement and
the Mortgage have not been assigned or pledged, except for any assignment or
pledge that has been satisfied and released, (B) immediately prior to the
assignment of such Mortgage Loans to the Purchaser (or to the Issuer in the
case of the Subsequent Mortgage Loans sold by [ ]), [ ] had good title
thereto and (C) [ ] is the sole owner and holder of the Mortgage Loan free
and clear of any and all liens, encumbrances, pledges, or security interests
(other than, with respect to any Mortgage Loan in a second lien position, the
lien of the related first mortgage) of any nature and has full right and
authority, under all governmental and regulatory bodies having jurisdiction
over the ownership of the applicable Mortgage Loans to sell and assign the same
pursuant to this Agreement;
(ii) For each [ ] Initial Mortgage Loans or, as applicable, any Subsequent
Mortgage Loans sold by [ ], the related Mortgage File contains or will
contain each of the documents and instruments specified to be included therein
in the definition of "Mortgage File" in Appendix A to the Indenture (it being
understood that the Custodian maintains the Loan Agreement related to each
Mortgage File and the Servicer maintains the remainder of the items to be
included in the Mortgage File pursuant to the terms of this Agreement);
(iii) [ ] has not transferred the [ ] Initial Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of its creditors; and
(iv) No instrument of release or waiver has been executed by [ ] in
connection with the [ ] Initial Mortgage Loans, and no Mortgagor has been
released by [ ], in whole or in part, from its obligations in connection
therewith.
(e) Remedies. Upon discovery by any Seller or [ ] or upon notice
from the Purchaser, the Enhancer, the Issuer, the Owner Trustee, the Indenture
Trustee or the Custodian, as applicable, of a breach of such Seller's or
[ ]'s respective representations or warranties in paragraphs (a) or (d)(I)
above that materially and adversely affects the interests of the
Securityholders or the Enhancer, as applicable, in any Mortgage Loan, [ ] or
[ ], as applicable, shall, within 90 days of its discovery or its receipt of
notice of such breach, either (i) cure such breach in all material respects or
(ii) to the extent that such breach is with respect to a Mortgage Loan or a
Related Document, either (A) repurchase such Mortgage Loan from the Issuer at
the Repurchase Price, or (B) substitute one or more Eligible Substitute Loans
for such Mortgage Loan, in each case in the manner and subject to the
conditions and limitations set forth below.
Upon discovery by any Seller or [ ] or upon notice from the Purchaser,
the Enhancer, the Issuer, [ ], the Owner Trustee, the Indenture Trustee or
the Custodian, as applicable, of a breach of a Seller's or [ ]'s
representations or warranties in paragraphs (b) or (d)(II) above, with respect
to any Mortgage Loan, or upon the occurrence of a Repurchase Event, that
materially and adversely affects the interests of the Securityholders, the
Enhancer or the Purchaser in such Mortgage Loan (notice of which shall be given
to the Purchaser by the respective Seller or [ ], if it discovers the same),
notwithstanding such Seller's or [ ]'s lack of knowledge with respect to the
substance of such representation and warranty, such Seller or [ ], as the
case may be, shall, within 90 days after the earlier of its discovery or
receipt of notice thereof, either cure such breach or Repurchase Event in all
material respects or either (i) repurchase such Mortgage Loan from the Issuer
at the Repurchase Price, or (ii) substitute one or more Eligible Substitute
Loans for such Mortgage Loan, in each case in the manner and subject to the
conditions set forth below. The Repurchase Price for any such Mortgage Loan
repurchased by such Seller or [ ] shall be deposited or caused to be
deposited by the Servicer into the Custodial Account. Any purchase of a
Mortgage Loan due to a Repurchase Event shall be the obligation of [ ].
In furtherance of the foregoing, if [ ] or the Seller that repurchases
or substitutes a Mortgage Loan is not a member of MERS and the Mortgage is
registered on the MERS® System, [ ], at its own expense and without any
right of reimbursement, shall cause MERS to execute and deliver an assignment
of the Mortgage in recordable form to transfer the Mortgage from MERS to [ ]
or the Seller and shall cause such Mortgage to be removed from registration on
the MERS® System in accordance with MERS' rules and regulations.
In the event that any Seller elects to substitute an Eligible Substitute
Loan or Loans for a Deleted Loan pursuant to this Section 3.1, such Seller
shall deliver to the Custodian on behalf of the Issuer, with respect to such
Eligible Substitute Loan or Loans, the original Loan Agreement, with the Loan
Agreement endorsed as required under the definition of "Mortgage File" and
shall deliver the other documents required to be part of the Mortgage File to
the Servicer. No substitution will be made in any calendar month after the
Determination Date for such month. Minimum Monthly Payments due with respect
to Eligible Substitute Loans in the month of substitution shall not be part of
the Trust Estate and will be retained by the Servicer and remitted by the
Servicer to such Seller on the next succeeding Payment Date, provided that a
payment at least equal to the applicable Minimum Monthly Payment for such month
in respect of the Deleted Loan has been received by the Issuer. For the month
of substitution, distributions to the Note Payment Account pursuant to the
Servicing Agreement will include the Minimum Monthly Payment due on a Deleted
Loan for such month and thereafter such Seller shall be entitled to retain all
amounts received in respect of such Deleted Loan. The Servicer shall amend or
cause to be amended the Mortgage Loan Schedule to reflect the removal of such
Deleted Loan and the substitution of the Eligible Substitute Loan or Loans and
the Servicer shall deliver the amended Mortgage Loan Schedule to the Owner
Trustee, the Indenture Trustee and the Enhancer. Upon such substitution, the
Eligible Substitute Loan or Loans shall be subject to the terms of this
Agreement and the Servicing Agreement in all respects, [ ] shall be deemed
to have made the representations and warranties with respect to the Eligible
Substitute Loan contained herein set forth in Section 3.1(b) (other than
clauses (viii) (xiii), (xxiv), (xxv)(B), (xxvi) and (xxvii) thereof and other
than clauses (iii) and (ix) thereof in the case of Eligible Substitute Loans
substituted by [ ]); if the Seller is [ ], [ ] shall be deemed to have
made the representations and warranties set forth in Section 3.1(d)(II); in
each case, as of the date of substitution, and the related Seller shall be
deemed to have made a representation and warranty that each Mortgage Loan so
substituted is an Eligible Substitute Loan as of the date of substitution. In
addition, [ ] shall be obligated to repurchase or substitute for any
Eligible Substitute Loan as to which a Repurchase Event has occurred as
provided herein. In connection with the substitution of one or more Eligible
Substitute Loans for one or more Deleted Loans, the Servicer shall determine
the amount (such amount, a "Substitution Adjustment Amount"), if any, by which
the aggregate principal balance of all such Eligible Substitute Loans as of the
date of substitution is less than the aggregate principal balance of all such
Deleted Loans (after application of the principal portion of the Minimum
Monthly Payments due in the month of substitution that are to be distributed to
the Note Payment Account in the month of substitution). Such Seller shall
deposit the amount of such shortfall into the Custodial Account on the date of
substitution, without any reimbursement therefor.
Upon receipt by the Indenture Trustee on behalf of the Issuer and the
Custodian of written notification, signed by a Servicing Officer, of the
deposit of such Repurchase Price or of such substitution of an Eligible
Substitute Loan (together with the complete related Mortgage File) and deposit
of any applicable Substitution Adjustment Amount as provided above, the
Custodian, on behalf of the Indenture Trustee, shall (i) release to such Seller
or [ ], as the case may be, the related Loan Agreement for the Mortgage Loan
being repurchased or substituted for, (ii) cause the Servicer to release to
such Seller any remaining documents in the related Mortgage File which are held
by the Servicer, and (iii) the Indenture Trustee on behalf of the Issuer shall
execute and deliver such instruments of transfer or assignment prepared by the
Servicer, in each case without recourse, as shall be necessary to vest in such
Seller or [ ], as the case may be, or its respective designee such Mortgage
Loan released pursuant hereto and thereafter such Mortgage Loan shall not be an
asset of the Issuer.
It is understood and agreed that the obligation of each Seller and [ ]
to cure any breach, or to repurchase or substitute for any Mortgage Loan as to
which such a breach has occurred and is continuing, shall constitute the sole
remedy respecting such breach available to the Purchaser, the Issuer, the
Certificateholders (or the Owner Trustee on behalf of the Certificateholders)
and the Noteholders (or the Indenture Trustee on behalf of the Noteholders)
against such Seller and [ ].
It is understood and agreed that the representations and warranties set
forth in this Section 3.1 shall survive delivery of the respective Mortgage
Files to the Issuer or the Custodian.
ARTICLE IV
SELLERS' COVENANTS
Section 4.1 Covenants of the Sellers. Each Seller hereby covenants that,
except for the transfer hereunder and as of any Subsequent Transfer Date, it
will not sell, pledge, assign or transfer to any other Person, or grant,
create, incur or assume any Lien on any Mortgage Loan, or any interest therein,
except with respect to any Excluded Amount. Each Seller shall notify the
Issuer (in the case of the Initial Mortgage Loans, as assignee of the
Purchaser), of the existence of any Lien (other than as provided above) on any
Mortgage Loan immediately upon discovery thereof; and each Seller shall defend
the right, title and interest of the Issuer (in the case of the Initial
Mortgage Loans, as assignee of the Purchaser) in, to and under the Mortgage
Loans against all claims of third parties claiming through or under such
Seller; provided, however, that nothing in this Section 4.1 shall be deemed to
apply to any Liens for municipal or other local taxes and other governmental
charges if such taxes or governmental charges shall not at the time be due and
payable or if any Seller shall currently be contesting the validity thereof in
good faith by appropriate Proceedings.
ARTICLE V
SERVICING
Section 5.1 Servicing. [ ] shall service the Mortgage Loans pursuant to the
terms and conditions of the Servicing Agreement and the Program Guide and shall
service the Mortgage Loans directly or through one or more sub-servicers in
accordance therewith.
ARTICLE VI
LIMITATION ON LIABILITY OF THE SELLERS
Section 6.1 Limitation on Liability of the Sellers. None of the directors,
officers, employees or agents of [ ] or [ ] shall be under any liability
to the Purchaser or the Issuer, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement and any Subsequent Transfer
Agreement. Except as and to the extent expressly provided in the Servicing
Agreement, [ ] and [ ] shall not be under any liability to the Issuer,
the Owner Trustee, the Indenture Trustee or the Securityholders. [ ] or
[ ] and any director, officer, employee or agent of [ ] or [ ] may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
ARTICLE VII
TERMINATION
Section 7.1 Termination. The obligations and responsibilities of the parties
hereto shall terminate upon the termination of the Trust Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment. This Agreement may be amended from time to time by the
parties hereto by written agreement with the prior written consent of the
Enhancer (which consent shall not be unreasonably withheld.
Section 8.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section 8.3 Notices. All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid, addressed as
follows:
(a) if to the [ ]:
__________________________
__________________________
__________________________
__________________________
__________________________;
(b) if to [ ]:
__________________________
__________________________
__________________________
__________________________
__________________________;
(c) if to the Purchaser:
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: President
Re: Home Equity Loan Trust [ ]-[ ];
(d) if to the Indenture Trustee:
__________________________
__________________________
__________________________
__________________________
__________________________;
(e) if to the Issuer:
__________________________
__________________________
__________________________
__________________________
__________________________;; or
(f) if to the Enhancer:
__________________________
__________________________
__________________________
__________________________
__________________________;;
or, with respect to any of the foregoing Persons, at such other address as may
hereafter be furnished to the other foregoing Persons in writing.
Section 8.4 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be held invalid for any
reason whatsoever, then such covenants, agreements, provisions or terms shall
be deemed severable from the remaining covenants, agreements, provisions or
terms of this Agreement and shall in no way affect the validity of
enforceability of the other provisions of this Agreement.
Section 8.5 Relationship of Parties. Nothing herein contained shall be deemed
or construed to create a partnership or joint venture among the parties hereto,
and the services of the [ ] shall be rendered as an independent contractor
and not as agent for the Purchaser.
Section 8.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed to be an
original and such counterparts, together, shall constitute one and the same
agreement.
Section 8.7 Further Agreements. The parties hereto each agree to execute and
deliver to the other such additional documents, instruments or agreements as
may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 8.8 Intention of the Parties. It is the intention of the parties
hereto that the Purchaser will be purchasing on the Closing Date, and the
Sellers will be selling on the Closing Date, the Initial Mortgage Loans, rather
than the Purchaser providing a loan to the Sellers secured by the Initial
Mortgage Loans on the Closing Date; and that the Issuer will be purchasing on
each Subsequent Transfer Date, and the Sellers will be selling on each
Subsequent Transfer Date, the related Subsequent Mortgage Loans, rather than
the Issuer providing a loan to the Sellers secured by the related Subsequent
Mortgage Loans on each Subsequent Transfer Date. Accordingly, the parties
hereto each intend to treat this transaction for federal income tax purposes as
(i) a sale by the Sellers, and a purchase by the Purchaser, of the Initial
Mortgage Loans on the Closing Date and (ii) a sale by the Sellers, and a
purchase by the Issuer, of the related Subsequent Mortgage Loans on each
Subsequent Transfer Date. The Purchaser and the Issuer shall each have the
right to review the Mortgage Loans and the Related Documents to determine the
characteristics of the Mortgage Loans which will affect the federal income tax
consequences of owning the Mortgage Loans, and each Seller shall cooperate with
all reasonable requests made by the Purchaser or the Issuer in the course of
such review.
Section 8.9 Successors and Assigns; Assignment of this Agreement.
(a) This Agreement shall bind and inure to the benefit of and be enforceable
by the parties hereto and their respective permitted successors and assigns.
The obligations of each Seller under this Agreement cannot be assigned or
delegated to a third party without the consent of the Enhancer and the
Purchaser (and the Issuer with respect to the transfer of any Subsequent
Mortgage Loans), which consent shall be at the Purchaser's sole discretion (and
the Issuer's sole discretion with respect to the transfer of any Subsequent
Mortgage Loans); provided, that each Seller may assign its obligations
hereunder to any Affiliate of such Seller, to any Person succeeding to the
business of such Seller, to any Person into which such Seller is merged and to
any Person resulting from any merger, conversion or consolidation to which such
Seller is a party. The parties hereto acknowledge that (i) the Purchaser is
acquiring the Initial Mortgage Loans for the purpose of contributing them to
the Home Equity Loan Trust [ ]-[ ] and (ii) the Issuer is acquiring the
Subsequent Mortgage Loans for the purpose of pledging the Subsequent Mortgage
Loans to the Indenture Trustee for the benefit of the Noteholders and the
Enhancer.
(b) As an inducement to the Purchaser and the Issuer to purchase the Initial
Mortgage Loans and to the Issuer to purchase any Subsequent Mortgage Loans,
each Seller acknowledges and consents to (i) the assignment by the Purchaser to
the Issuer of all of the Purchaser's rights against any Seller pursuant to this
Agreement insofar as such rights relate to the Initial Mortgage Loans
transferred to the Issuer and to the enforcement or exercise of any right or
remedy against any of the Sellers pursuant to this Agreement by the Issuer,
(ii) the enforcement or exercise of any right or remedy against any of the
Sellers pursuant to this Agreement by or on behalf of the Issuer and (iii) the
Issuer's pledge of its interest in this Agreement to the Indenture Trustee and
the enforcement by the Indenture Trustee of any such right or remedy against
any Seller following an Event of Default under the Indenture. Such enforcement
of a right or remedy by the Issuer, the Owner Trustee, the Enhancer or the
Indenture Trustee, as applicable, shall have the same force and effect as if
the right or remedy had been enforced or exercised by the Purchaser or the
Issuer directly.
Section 8.10 Survival. The representations and warranties made herein by
each Seller and the provisions of Article VI hereof shall survive the purchase
of the Initial Mortgage Loans hereunder and any transfer of Subsequent Mortgage
Loans pursuant to this Agreement and the related Subsequent Transfer Agreement.
Section 8.11 Third Party Beneficiary. The Enhancer shall be a third party
beneficiary hereof and shall be entitled to enforce the provisions of this
Agreement as if a party hereto.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above written.
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Purchaser
By:
Name:
Title:
__________________________________,
as Seller and Servicer
By:
Name:
Title:
__________________________________, as
Seller
By: __________________________________,
not in its individual capacity but
solely as
Owner Trustee
By:
Name:
Title:
[Signatures Continue On Following Page]
HOME EQUITY LOAN TRUST [ ]-[ ], as
Issuer
By: __________________________________,
not in its individual capacity but
solely as
Owner Trustee
By:
Name:
Title:
__________________________________, as
Indenture Trustee
By:
Name:
Title:
2-1
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
[On file with [ ] and Servicer]
1
EXHIBIT 2
FORM OF SUBSEQUENT TRANSFER AGREEMENT
Pursuant to this Subsequent Transfer Agreement No. (the
"Agreement"), dated as of , , between [_________],
as seller (the "Seller"), and Home Equity Loan Trust [ ]-[ ], as issuer
(the "Issuer"), and pursuant to the mortgage loan purchase agreement dated as
of _______________ (the "Mortgage Loan Purchase Agreement"), among
__________________, as a seller and servicer, _______________, as a Seller,
Residential Asset Mortgage Products, Inc., as purchaser (the "Purchaser"), the
Issuer and _______________, as indenture trustee (the "Indenture Trustee"), the
Seller and the Issuer agree to the sale by the Seller and the purchase by the
Issuer of the mortgage loans listed on the attached Schedule of Subsequent
Mortgage Loans (the "Subsequent Mortgage Loans").
Capitalized terms used and not defined herein have their respective
meanings as set forth in Appendix A to the indenture dated as of
_______________, between the Issuer and the Indenture Trustee, which meanings
are incorporated by reference herein. All other capitalized terms used herein
shall have the meanings specified herein.
Section 1. Sale of Subsequent Mortgage Loans.
(a) The Seller does hereby sell, transfer, assign, set over and convey
to the Issuer, without recourse, all of its right, title and interest in and to
the Subsequent Mortgage Loans (including the Subsequent Cut-Off Date Principal
Balance now existing and all Additional Balances thereafter arising to and
including the date immediately preceding the commencement of the Rapid
Amortization Period), all principal received and interest thereon on and after
the Subsequent Cut-Off Date, all monies due or to become due thereon and all
items with respect to the Subsequent Mortgage Loans to be delivered pursuant to
Section 2.2 of the Mortgage Loan Purchase Agreement; provided, however, that
the Seller reserves and retains all right, title and interest in and to
principal received and interest accruing on the Subsequent Mortgage Loans prior
to the Subsequent Cut-Off Date. The Seller, contemporaneously with the
delivery of this Agreement, has delivered or caused to be delivered to the
Indenture Trustee each item set forth in Section 2.2 of the Mortgage Loan
Purchase Agreement.
The transfer to the Issuer by the Seller of the Subsequent Mortgage Loans
identified on the Mortgage Loan Schedule shall be absolute and is intended by
the parties hereto to constitute a sale by the Seller to the Issuer on the
Subsequent Transfer Date of all the Seller's right, title and interest in and
to the Subsequent Mortgage Loans, and other property as and to the extent
described above, and the Issuer hereby acknowledges such transfer. In the
event the transactions set forth herein shall be deemed not to be a sale, the
Seller hereby grants to the Issuer as of the Subsequent Transfer Date a
security interest in all of the Seller's right, title and interest in, to and
under all accounts, chattel papers, general intangibles, contract rights,
certificates of deposit, deposit accounts, instruments, documents, letters of
credit, money, payment intangibles, advices of credit, investment property,
goods and other property consisting of, arising under or related to the
Subsequent Mortgage Loans, and such other property, to secure all of the
Issuer's obligations hereunder, and this Agreement shall constitute a security
agreement under applicable law. The Seller agrees to take or cause to be taken
such actions and to execute such documents, including without limitation the
filing of all necessary UCC-1 financing statements filed in the State of
[ ] (which shall be submitted for filing as of the Subsequent Transfer
Date), any continuation statements with respect thereto and any amendments
thereto required to reflect a change in the name or corporate structure of the
Seller or the filing of any additional UCC-1 financing statements due to the
change in the principal office or jurisdiction of incorporation of the Seller,
as are necessary to perfect and protect the Issuer's interests in each
Subsequent Mortgage Loan and the proceeds thereof.
(b) The expenses and costs relating to the delivery of the Subsequent
Mortgage Loans, this Agreement and the Mortgage Loan Purchase Agreement shall
be borne by the Seller.
(c) Additional terms of the sale are set forth on Attachment A hereto.
Section 2. Representations and Warranties; Conditions Precedent.
(a) The Seller hereby affirms the representations and warranties made
by it and set forth in Section 3.1 of the Mortgage Loan Purchase Agreement that
relate to the Seller or the Subsequent Mortgage Loans as of the date hereof.
The Seller hereby confirms that each of the conditions set forth in Section
2.2(b) of the Mortgage Loan Purchase Agreement are satisfied as of the date
hereof and further represents and warrants that each Subsequent Mortgage Loan
complies with the requirements of this Agreement and Section 2.2(c) of the
Mortgage Loan Purchase Agreement. [ ], as Servicer of the Subsequent
Mortgage Loans hereby affirms the representations and warranties made by it
regarding the Subsequent Mortgage Loans as set forth in Section 3.1 of the
Mortgage Loan Purchase Agreement.
(b) The Seller is solvent, is able to pay its debts as they become due
and has capital sufficient to carry on its business and its obligations
hereunder; it will not be rendered insolvent by the execution and delivery of
this Instrument or by the performance of its obligations hereunder nor is it
aware of any pending insolvency; no petition of bankruptcy (or similar
insolvency proceeding) has been filed by or against the Seller prior to the
date hereof.
(c) All terms and conditions of the Mortgage Loan Purchase Agreement
relating to the Subsequent Mortgage Loans are hereby ratified and confirmed;
provided, however, that in the event of any conflict the provisions of this
Agreement shall control over the conflicting provisions of the Mortgage Loan
Purchase Agreement.
Section 3. Recordation of Instrument. To the extent permitted by
applicable law or a memorandum thereof if permitted under applicable law, this
Agreement is subject to recordation in all appropriate public offices for real
property records in all of the counties or other comparable jurisdictions in
which any or all of the properties subject to the related Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Servicer at the Noteholders' expense on
direction of the Noteholders of Notes representing not less than a majority of
the aggregate Note Balance of the Notes or the Enhancer, but only when
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Noteholders or the
Enhancer or is necessary for the administration or servicing of the Subsequent
Mortgage Loans.
Section 4. GOVERNING LAW. THIS INSTRUMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 5. Counterparts. This Instrument may be executed in
counterparts, each of which, when so executed, shall be deemed to be an
original and together shall constitute one and the same instrument.
Section 6. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Seller and the Issuer and their respective
successors and assigns.
[__________________________________],
as Seller
By:
Name:
Title:
HOME EQUITY LOAN TRUST [ ]-[ ], as
Issuer
By: ___________________________,
not in its individual capacity but
solely as
Owner Trustee
By:
Name:
Title:
___________________________,
as Servicer
By:
Name:
Title:
Attachments
A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
C. Seller's Officer's Certificate.
D. Seller's Officer's Certificate (confirmation of Enhancer approval).
HOME EQUITY LOAN TRUST [ ]-[ ]
ATTACHMENT A TO FORM OF SUBSEQUENT TRANSFER AGREEMENT
____________, ____
A.
1. Subsequent Cut-Off Date:
2. Pricing Date:
3. Subsequent Transfer Date:
4. Aggregate Principal Balance of the Subsequent
Mortgage Loans as of the Subsequent Cut-Off Date:
5. Purchase Price: 100.00%
B.
As to all Subsequent Mortgage Loans:
1. Longest stated term to maturity:
months
2. Minimum Loan Rate: %
3. Maximum Loan Rate: %
4. WAC of all Subsequent Mortgage Loans: %
5. WAM of all Subsequent Mortgage Loans: %
6. Largest Principal Balance: $
7. Non-owner occupied Mortgaged Properties: %
8. California zip code concentrations: % and %
9. Condominiums: %
10. Single-family: %
11. Weighted average term since origination: %
12. Principal balance of Subsequent Mortgage Loans with $
respect to which the Mortgagor is an employee of
[ ] or an affiliate of [ ]:
13. Number of Subsequent Mortgage Loans with respect to
which the Mortgagor is an employee of [ ] or an
affiliate of [ ]:
EXHIBIT 3
FORM OF ADDITION NOTICE
DATE:
.. Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Home Equity Loan Trust [ ]-[ ]
Ladies and Gentlemen:
Pursuant to Section 2.2 of the mortgage loan purchase agreement dated as
of ________________ (the "Purchase Agreement"), among
___________________________, as a Seller and Servicer,
___________________________, as a Seller, Residential Asset Mortgage Products,
Inc., as Purchaser, Home Equity Loan Trust [ ]-[ ], as Issuer and
___________________________, as Indenture Trustee, the Seller has designated
the Subsequent Mortgage Loans identified on the Mortgage Loan Schedule attached
hereto to be sold to the Issuer on , , with an
aggregate Principal Balance of $ . Capitalized terms not otherwise
defined herein have the meaning set forth in the Appendix A to the indenture
dated as of ________________, between the Issuer and the Indenture Trustee.
Please acknowledge your receipt of this notice by countersigning the
enclosed copy in the space indicated below and returning it to the attention of
the undersigned.
Very truly yours,
[____________________________],
as Seller
By:
Name:
Title:
ACKNOWLEDGED AND AGREED:
_____________________,
as Indenture Trustee
By:
Name:
Title:
