Exhibit 10.1
Form of Mortgage Loan Purchase Agreement
FORM OF MORTGAGE LOAN
PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement dated as of ________________, 199_
(the "Agreement"), is between THE CIT GROUP SECURITIZATION CORPORATION III, as
purchaser (the "Purchaser"), and THE CIT GROUP/CONSUMER FINANCE, INC., as seller
(the "Seller").
Subject to the terms hereof, the Seller agrees to sell, and the Purchaser
agrees to purchase, the mortgage loans set forth on Exhibit A (collectively, the
"Initial Mortgage Loans"), having an aggregate outstanding principal balance as
of ________________, 199_ (the "Initial Cut-off Date") of approximately
$____________.
It is the intention of the Seller and the Purchaser that the Purchaser
shall sell the Initial Mortgage Loans to the CIT Home Equity Loan Trust 199_ - _
and shall enter into a Pooling and Servicing Agreement, dated as of the date
hereof, among the Purchaser, the Seller, as seller and master servicer and
___________, as trustee, pursuant to which Home Equity Loan Asset Backed
Certificates, Series 199_-_ (the "Certificates"), evidencing ownership interests
in the Initial Mortgage Loans will be issued.
The Purchaser and the Seller wish to prescribe the terms and conditions of
the purchase by the Purchaser of the Initial Mortgage Loans and the servicing
and administration of the Initial Mortgage Loans.
In consideration of the premises and the mutual agreements hereinafter set
forth, the Purchaser and the Seller agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Certain capitalized terms used in this Agreement
shall have the respective meanings assigned to them in the Pooling and Servicing
Agreement. All references in this Agreement to Articles, Sections, subsections
and exhibits are to the same contained in or attached to this Agreement unless
otherwise specified.
ARTICLE II
SALE AND CONVEYANCE OF INITIAL MORTGAGE LOANS;
MORTGAGE LOAN FILES
SECTION 2.01. Sale and Conveyance of Initial Mortgage Loans. On the Closing
Date, subject to the terms and conditions hereof, the Seller shall sell,
transfer, assign absolutely, set over and otherwise convey to the Purchaser (i)
all the right, title and interest of the Seller in and to the Initial Mortgage
Loans and all the rights, benefits, and obligations arising from and in
connection with each Initial Mortgage Loan, (ii) assignments of the security
interests in the Initial Mortgaged Properties granted by the Mortgagors pursuant
to the Initial Mortgage Loans, (iii) all payments received by the Seller on or
with respect to the Initial Mortgage Loans on or after the Initial Cut-off Date,
(iv) the interest of the Seller in any Initial Mortgaged Property (including any
right to receive future Net Liquidation Proceeds) that secures the Initial
Mortgage Loans; (v) all rights of the Seller to proceeds of Insurance Policies
covering the Mortgagors and the Initial Mortgage Loans, (vi) the proceeds from
any Master Servicer's Errors and Omissions Protection Policy, any fidelity bond
and any blanket physical damage policy, to the extent such proceeds relate to
any Initial Mortgaged Property, (vii) all rights of recourse against any
cosigner or under any personal guarantee with respect to the Initial Mortgage
Loans, (viii) all amounts held for the Trust in the Collection Account, [(ix)
all amounts held for the Trust in the Pre-Funding Account, (x) all amounts held
for the Trust in the Capitalized Interest Account], (xi) all proceeds in any way
derived from any of the foregoing items, and (xii) all documents contained or
required to be contained in the Mortgage Loan Files relating to the Initial
Mortgage Loans. The parties intend and agree that the conveyance of the Seller's
right, title and interest in and to the Initial Mortgage Loans pursuant to this
Agreement shall constitute an absolute sale.
The Seller hereby declares and covenants that it shall at no time have any
legal, equitable or beneficial interest in, or any right, including without
limitation any reversionary or offset right, to the Collection Account, [the
Pre-Funding Account, the Capitalized Interest Account and the Reserve Account,]
and that, in the event it receives any of the same, it shall hold same in trust
for the benefit of the Trust on behalf of the Certificateholders and shall
immediately endorse over to the Trust any such amount it receives.
SECTION 2.02. Purchase Price; Payments on the Initial Contracts.
(a) The purchase price for the Initial Mortgage Loans shall be an amount
equal to $ ______________. Such purchase price shall be payable in immediately
available funds on the Closing Date.
(b) The Purchaser shall be entitled to all payments of principal and
interest received on or after the Initial Cut-off Date. All payments of
principal and interest received before the Initial Cut-off Date shall belong to
the Seller. The Seller shall hold in trust for the Purchaser and shall promptly
remit to the Purchaser, any payments on the Initial Mortgage Loans received by
the Seller that belong to the Purchaser under the terms of this Agreement.
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SECTION 2.03. Conditions to Sale of Initial Mortgage Loans. The Purchaser's
obligations hereunder are subject to the following conditions:
(a) The Purchaser shall have received (i) the Pooling and Servicing
Agreement executed by all the parties thereto, (ii) all documents required by
the Pooling and Servicing Agreement and (iii) such other opinions and documents
as the Purchaser may reasonably require in connection with the purchase of the
Initial Mortgage Loans hereunder or the sale of the Certificates;
(b) The representations and warranties of the Seller and the Master
Servicer made in the Pooling and Servicing Agreement shall be true and correct
on the Closing Date; and
(c) The Purchaser shall have received from counsel to the Seller a letter
stating that the Purchaser may rely on such counsel's opinion delivered pursuant
to the Pooling and Servicing Agreement and such counsel's opinions to Xxxxx'x
Investors Service, Inc. and Standard and Poor's Ratings Service in respect of
the sale of the Initial Mortgage Loans to the Purchaser by the Seller, or such
opinions may be addressed and delivered to the Purchaser.
SECTION 2.04. Examination of Files. The Seller will make the Mortgage Loan
Files with respect to the Initial Mortgage Loans available to the Purchaser or
its agent for examination at the Trust's offices or such other location as
otherwise shall be agreed upon by the Purchaser and the Seller.
SECTION 2.05. Transfer of Initial Mortgage Loans. Pursuant to the Pooling
and Servicing Agreement, the Purchaser will assign all of its right, title and
interest in and to the Initial Mortgage Loans to the Trust for the benefit of
the Certificateholders. The Purchaser has the right to assign its interest under
this Agreement as may be required to effect the purposes of the Pooling and
Servicing Agreement, by written notice to the Seller and without the consent of
the Seller, and the assignee shall succeed to the rights and obligations
hereunder of the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER;
REPURCHASE OF INITIAL MORTGAGE LOANS
SECTION 3.01. Representations and Warranties of the Seller.
(a) The representations and warranties of the Seller contained in the
Pooling and Servicing Agreement are incorporated herein, and are made to the
Purchaser on the date hereof, as if set forth herein and as if made to the
Purchaser on the date hereof. The Seller will make such representations and
warranties in the Pooling and Servicing Agreement directly to the Trust
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and will become obligated in respect of such representations and warranties
pursuant to the Pooling and Servicing Agreement. On the Closing Date, the Seller
shall deliver to the Purchaser an Officers' Certificate, dated the Closing Date,
to the effect that the representations and warranties made in the Pooling and
Servicing Agreement by the Seller are true and correct as of the Closing Date.
(b) It is understood and agreed that the representations and warranties
incorporated by reference in this Agreement by Section 3.01(a) hereof shall
remain operative and in full force and effect, shall survive the transfer and
conveyance of the Initial Mortgage Loans by the Seller to the Purchaser and by
the Purchaser to the Trust, and shall inure to the benefit of the Purchaser, the
Trust and their successors and permitted assignees.
(c) The Seller shall indemnify the Purchaser and the Master Servicer and
hold the Purchaser and the Master Servicer harmless against any loss, penalties,
fines, forfeitures, legal fees and related costs, judgments and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Seller's representations and
warranties contained or incorporated by reference in this Agreement. It is
understood and agreed that the obligation of the Seller set forth in this
Section 3.01 to indemnify the Purchaser and the Master Servicer as provided in
this Section 3.01 constitutes the sole remedy of the Purchaser and the Master
Servicer respecting a breach of the foregoing representations and warranties.
The Trust shall also have the remedies provided in the Pooling and Servicing
Agreement.
(d) Each indemnified party shall give prompt notice to the Seller of any
action commenced against it with respect to which indemnity may be sought
hereunder but failure to so notify an indemnifying party shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement, unless the failure to notify materially prejudices the rights and
condition of the Seller. The Seller shall be entitled to participate in any such
action, and to assume the defense thereof, and after notice from the Seller to
an indemnified party of its election to assume the defense thereof, the Seller
will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof.
(e) Any cause of action against the Seller or relating to or arising out of
the breach of any representations and warranties made or incorporated by
reference in this Section 3.01 shall accrue as to any Initial Mortgage Loan upon
(i) discovery of such breach by the Purchaser or the Servicer or notice thereof
by the Seller to the Purchaser and the Servicer, (ii) failure by the Seller to
cure such breach and (iii) demand upon the Seller by the Purchaser for all
amounts payable in respect of such Initial Mortgage Loan.
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ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. Amendment. This Agreement may be amended from time to time by
the Seller and the Purchaser by written agreement signed by the Seller and the
Purchaser.
SECTION 4.02. Counterparts. For the purpose of facilitating the execution
of this Agreement as herein provided and for other purposes, this Agreement may
be executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 4.03. Termination. The Seller's obligations under this Agreement
shall survive the sale of the Initial Mortgage Loans to the Purchaser.
SECTION 4.04. Governing Law. This Agreement 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 4.05. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed by
first class mail, postage prepaid, to (i) in the case of the Seller, The CIT
Group/Consumer Finance, Inc., 000 XXX Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000,
Attention: President, or such other address as may hereafter be furnished to
Purchaser in writing by the Seller or (ii) in the case of the Purchaser, The CIT
Group Securitization Corporation III, 000 XXX Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, Attention: President, or such other address as may hereafter be furnished
to the Seller by the Purchaser.
SECTION 4.06. Severabilitv of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 4.07. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Seller and the Purchaser and their respective
successors and assigns, as may be permitted hereunder.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
THE CIT GROUP SECURITIZATION
CORPORATION III,
as Purchaser
By:____________________________________
Name:
Title:
THE CIT GROUP/CONSUMER FINANCE, INC.,
as Seller
By:____________________________________
Name:
Title:
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EXHIBIT A
List of Initial Mortgage Loans
EXHIBIT B
FORM OF OPINION OF COUNSEL
_________________, 199_
solely in its capacity as [Trustee] Trustee
under the Pooling and Servicing Agreement
[Address]
Dear Ladies and Gentlemen:
I have acted as counsel to The CIT Group/Consumer Finance, Inc. ("CITCF")
and The CIT Group Securitization Corporation III, a Delaware corporation (the
"Company"), in connection with the sale of CIT Home Equity Loan Trust 199_-_
Asset-Backed Certificates (the "Certificates"). The Certificates represent
interests in, a trust, the CIT Home Equity Loan Trust 199_-_ (the "Trust"),
consisting of a pool of mortgage loans secured by residential properties
(collectively, the "Mortgage Loans") and certain related property. The Company
purchased certain of the Mortgage Loans from CITCF (the "Initial Mortgage
Loans") pursuant to a residential properties Purchase Agreement, dated as of
________________, 199_, by and between CITCF and the Company. Additional
Mortgage Loans are being purchased by the Company from CITCF (the "Subsequent
Mortgage Loans") pursuant to the Subsequent Mortgage Loan Purchase Agreement
dated as of _________________, 199_ (the "Subsequent Purchase Agreement").
Pursuant to a Pooling and Servicing Agreement, dated as of _________________,
199_ (the "Pooling and Servicing Agreement"), among the Company, CITCF, as
Master Servicer and the Trustee, the Company transferred the Initial Mortgage
Loans to the Trust. The Company will also transfer, pursuant to the Pooling and
Servicing Agreement, the Subsequent Mortgage Loans to the Trust, the corpus of
which will consist of each of the Initial Mortgage Loans and the Subsequent
Mortgage Loans and certain other property transferred by the Company to the
Trust.
A11 capitalized terms used herein and not defined shall have the meanings
assigned to them in the Subsequent Purchase Agreement.
In rendering the following opinions, I have examined (i) the Subsequent
Purchase Agreement; (ii) the Pooling and Servicing Agreement; (iii) the
Certificate of Incorporation of each of CITCF and the Company; (iv) the By-Laws
of each of CITCF and the Company; (v) copies of certain unanimous consents
adopted by the Board of Directors of the
Company authorizing the issuance and sale of the Certificates and the purchase
of the Mortgage Loans; and (vi) copies of certain unanimous written consents of
the Board of Directors of CITCF. I have also examined such other documents and
made such investigations of law as I have considered necessary and appropriate
for the purposes of the opinions expressed herein. I have assumed the
authenticity of signatures on original documents and the conformity to the
original of all documents submitted to me as certified, conformed or photostatic
copies and have relied as to all matters of fact on certificates,
representations or statements by officers of the Company or CITCF.
In making my examination of agreements, instruments and other documents and
in giving opinions herein, I have assumed that the Trustee has and had the power
and capacity to execute and deliver such agreements, instruments and other
documents and to perform all of their obligations thereunder and that such
agreements, instruments and other documents were duly authorized by all
requisite action by or on behalf of the Trustee were duly executed,
acknowledged, as necessary, and delivered by or on behalf of and are the legal,
valid and binding obligations of, and are enforceable in accordance with their
terms against, the Trustees.
Based upon, and subject to, the foregoing I am of the opinion that:
1. The Subsequent Purchase Agreement has been duly authorized, executed and
delivered by each of CITCF and the Company and constitutes the legal, valid and
binding agreement of each of CITCF and the Company, and is enforceable against
each of CITCF and the Company in accordance with its terms; the Subsequent
Purchase Agreement is effective to transfer all of CITCF's right, title and
interest in and to the Subsequent Mortgage Loans and other property described in
Section 2.1 of the Subsequent Purchase Agreement to the Company; the Pooling and
Servicing Agreement is effective to transfer all of the Company's right, title
and interest in and to such Subsequent Mortgage Loans and other property to the
Trust subject to no prior liens or encumbrances.
2. No consent, approval, authorization or order of, registration or filing
with, or notice to any governmental authority or court is required under federal
laws or the laws of the State of Delaware for the execution, delivery and
performance by the Company of the Subsequent Purchase Agreement or the
consummation of any other transaction contemplated thereby by the Company,
except for those which have been obtained or except such as may be required
under the Securities Act of 1933, as amended or the regulations promulgated
thereunder or state securities or Blue Sky laws of any jurisdiction.
3. No consent, approval, authorization or order of, registration or filing
with, or notice to, any governmental authority or court is required under
federal laws or the laws of the State of Delaware for the execution, delivery
and performance by CITCF of the Subsequent Purchase Agreement or the
consummation of any other transaction contemplated thereby by CITCF except for
those which have been obtained or except such as may be required under the
Securities Act of 1933, as amended or the regulations promulgated thereunder or
state securities or Blue Sky laws of any jurisdiction.
I am furnishing this opinion to you solely for your benefit. This opinion
is not to be used, circulated, quoted or otherwise referred to or relied on by
any other person or for any other purpose.
The foregoing opinion is given on the express understanding that the
undersigned is an officer of the Company and CITCF and shall in no event incur
any personal liability in connection with the said opinion.
Very truly yours,
