EXHIBIT 10.1
MORTGAGE LOAN PURCHASE AGREEMENT
BY AND AMONG
COMPASS BANK
(the "Originator")
and
COMPASS ASSET ACCEPTANCE COMPANY, L.L.C.
DATED AS OF [_______], 200[_]
TABLE OF CONTENTS
ARTICLE I DEFINITIONS......................................................1
SECTION 1.1. DEFINITIONS..................................................1
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS................................2
ARTICLE II PURCHASE AND CONVEYANCE OF LOAN BALANCES.........................3
SECTION 2.1. PURCHASE.....................................................3
ARTICLE III CONSIDERATION AND PAYMENT........................................6
SECTION 3.1. PURCHASE PRICE...............................................6
SECTION 3.2. SETTLEMENT...................................................6
ARTICLE IV REPRESENTATIONS AND WARRANTIES...................................6
SECTION 4.1. ORIGINATOR REPRESENTATIONS AND WARRANTIES....................6
SECTION 4.2. REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR
RELATING TO THE AGREEMENT AND THE MORTGAGE LOANS.............8
SECTION 4.3. REPRESENTATIONS AND WARRANTIES OF CAAC......................12
ARTICLE V COVENANTS OF THE ORIGINATOR.....................................13
SECTION 5.1. ORIGINATOR COVENANTS........................................13
ARTICLE VI REPURCHASE OBLIGATION...........................................14
SECTION 6.1. REASSIGNMENT OF INELIGIBLE MORTGAGE LOANS...................14
ARTICLE VII CONDITIONS PRECEDENT............................................14
SECTION 7.1. CONDITIONS TO CAAC'S OBLIGATIONS............................14
SECTION 7.2. [INTENTIONALLY OMITTED].....................................15
SECTION 7.3. CONDITIONS PRECEDENT TO THE ORIGINATOR'S OBLIGATIONS........15
ARTICLE VIII TERM & PURCHASE TERMINATION.....................................16
SECTION 8.1. TERM........................................................16
SECTION 8.2. PURCHASE TERMINATION........................................16
ARTICLE IX MISCELLANEOUS PROVISIONS........................................16
SECTION 9.1. AMENDMENT...................................................16
SECTION 9.2. GOVERNING LAW...............................................17
SECTION 9.3. NOTICES.....................................................17
SECTION 9.4. SEVERABILITY OF PROVISIONS..................................17
SECTION 9.5. ASSIGNMENT..................................................17
SECTION 9.6. ACKNOWLEDGMENT AND AGREEMENT OF THE ORIGINATOR..............17
SECTION 9.7. FURTHER ASSURANCES..........................................18
SECTION 9.8. NO WAIVER; CUMULATIVE REMEDIES..............................18
SECTION 9.9. COUNTERPARTS................................................18
SECTION 9.10. BINDING EFFECT; THIRD-PARTY BENEFICIARIES...................18
SECTION 9.11. MERGER AND INTEGRATION......................................18
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SECTION 9.12. HEADINGS....................................................18
SECTION 9.13. SCHEDULES AND EXHIBITS......................................18
SECTION 9.14. SURVIVAL OF REPRESENTATIONS AND WARRANTIES..................18
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MORTGAGE LOAN PURCHASE
AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of [_____],
200[__], by and among COMPASS BANK (the "Originator"), and COMPASS ASSET
ACCEPTANCE COMPANY, L.L.C., ("CAAC").
W I T N E S S E T H;
WHEREAS, CAAC desires to purchase certain Mortgage Loans
(hereinafter defined) due to the Originator under certain Mortgage Files of the
Originator;
WHEREAS, the Originator desires to sell the existing balances
and other related rights under certain Mortgage Loans to CAAC upon the terms and
conditions hereinafter set forth;
WHEREAS, it is contemplated that the Mortgage Loans purchased
hereunder will be transferred by CAAC to the Trust (hereinafter defined) in
connection with the issuance of certain Notes (hereinafter defined);
WHEREAS, it is contemplated that pursuant to the Transfer
Agreement the Originator will sell contemporaneously with the sale of the
Mortgage Loans hereunder, all its additional right, title and interest in and to
the Related Documents to the Owner Trustee for the benefit of the Noteholders;
and
WHEREAS, the Originator agrees that all covenants and
agreements made by it herein with respect to the Mortgage Loans shall also be
for the benefit of the Owner Trustee and all holders of the Notes;
NOW, THEREFORE, it is hereby agreed by and between CAAC and
the Originator as follows:
ARTICLE I
DEFINITIONS
-----------
Section 1.1. DEFINITIONS. All capitalized terms used herein or
in any certificate, document, or Conveyance Paper made or delivered pursuant
hereto, and not defined herein or therein, shall have the meaning ascribed
thereto in the Sale and Servicing Agreement whenever used herein or therein; in
addition, the following words and phrases shall have the following meanings:
"AGREEMENT" shall mean this Mortgage Loan Purchase Agreement
and all amendments hereof and supplements hereto.
"APPOINTMENT DATE" shall have the meaning specified in Section
8.2.
"CLOSING DATE" shall mean [______], 200[_].
"COMPASS BANK" shall mean Compass Bank.
"CONVEYANCE" shall have the meaning specified in Section
2.1(a).
"CONVEYANCE PAPERS" shall have the meaning specified in
Section 4.1(c).
"CAAC" shall have the meaning set forth in the preamble.
"CUT-OFF DATE" shall mean with respect to each Mortgage Loan,
the close of business on [_________], 200[_].
"DISSOLUTION EVENT" shall have the meaning specified in
Section 8.2.
"INDENTURE TRUSTEE" shall mean [___________], a [___________],
the institution executing the Indenture as, and acting in the capacity of,
Indenture Trustee thereunder, or its successor in interest, or any successor
indenture trustee appointed as provided in the Indenture.
"NOTES" shall mean the Compass Receivables Asset Funding
Mortgage Loan Asset Backed Notes, Series 200[_]-[_] representing undivided
interests in the Trust.
"ORIGINATOR" shall have the meaning set forth in the preamble.
"OWNER TRUSTEE" shall mean [___________], a [___________], the
institution executing the Trust Agreement as, and acting in the capacity of,
Owner Trustee thereunder, or its successor in interest, or any successor owner
trustee appointed as provided in the Trust Agreement.
"PURCHASED ASSETS" shall have the meaning set forth in Section
2.1(a).
"PURCHASE PRICE" shall have the meaning set forth in Section
3.1.
"RELATED DOCUMENTS" shall have the meaning set forth in
Section 2.1(a).
"REPURCHASE PRICE" shall have the meaning set forth in Section
6.1(b).
"SALE AND SERVICING AGREEMENT" shall mean the Sale and
Servicing Agreement dated as of the date hereof among Compass Bank, as Servicer,
CAAC, the Owner Trustee and the Indenture Trustee, and all amendments thereto.
"SETTLEMENT STATEMENT" shall mean a document substantially in
the form of EXHIBIT A hereto.
"TRANSFER AGREEMENT" shall mean the Transfer Agreement dated
as of the date hereof with respect to the Transferred Assets among the
Originator and the Owner Trustee, and all amendments thereto.
"TRANSFERRED ASSETS" shall have such meaning as defined in the
Transfer Agreement.
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"TRUST" shall mean the trust governed by the Trust Agreement.
Section 1.2. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the same
meanings defined when used in any certificate, other document, or Conveyance
Paper made or delivered pursuant hereto unless otherwise defined therein.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement or any Conveyance Paper shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and Section, Subsection, Schedule and Exhibit references contained in
this Agreement are references to Sections, Subsections, Schedules and Exhibits
in or to this Agreement unless otherwise specified.
(c) All determinations of the principal or finance charge
balance of Mortgage Loans, and of any collections thereof, shall be made in
accordance with the Sale and Servicing Agreement.
ARTICLE II
PURCHASE AND CONVEYANCE OF LOAN BALANCES
----------------------------------------
Section 2.1. PURCHASE.
(a) The Originator does hereby sell, transfer, assign, set
over and otherwise convey to CAAC, without recourse, all of its right, title and
interest in, to and under (i) the unpaid principal balances of the Initial
Mortgage Loans as of the Cut-Off Date, (ii) all monies due and/ or to become due
and all amounts received with respect thereto after the Cut-Off Date (including,
without limitation, all Principal Collections and Interest Collections thereon),
(iii) all property which secured such Initial Mortgage Loans and which had been
acquired by foreclosure or deed in lieu of foreclosure, (iv) all insurance
proceeds related to the Initial Mortgage Loans, and (v) all proceeds (including,
without limitation, "proceeds" as defined in Article 9 of the UCC as in effect
in the State of Alabama) of any of the foregoing. The Originator also agrees
that it shall, upon the request of CAAC, to the extent of the availability
thereof, sell, transfer, assign, set over and otherwise convey to CAAC, without
recourse, all of its right, title and interest in, to and under (1) the unpaid
principal balances of the Eligible Substitute Mortgage Loans as of the
Subsequent Cut-Off Date, (2) all monies due and/or to become due and all amounts
received with respect thereto after the Subsequent Cut-Off Date (including,
without limitation, all Principal Collections and Interest Collections thereon),
(3) all property which secured such Eligible Substitute Mortgage Loan and which
had been acquired by foreclosure or deed in lieu of foreclosure, (4) all
insurance proceeds related to the Eligible Substitute Mortgage Loans, and (5)
all proceeds (including, without limitation, "proceeds" as defined in Article 9
of the UCC as in effect in the State of Alabama) of any of the foregoing. All of
the assets and rights transferred and to be transferred pursuant to this SECTION
2.1(a) are hereinafter referred to collectively as the "Purchased Assets" and
the sales, transfers, assignments and conveyances of the Purchased Assets
contemplated by this Section 2.1(a) are hereinafter referred to collectively as
the "Conveyance". The Purchased Assets shall not include any right to enforce
payment of the
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Mortgage Files and other instruments, documents and agreements relating to the
Mortgage Loans (the "Related Documents"). Furthermore, the parties hereto intend
that (x) the Asset-Backed Securities Facilitation Act of Alabama (Alabama Act
No. 2001-779, the "ACT") shall apply to the transactions contemplated in this
Agreement and (y) the transactions contemplated in this Agreement, taken as a
whole, shall constitute a "securitization transaction" within the meaning of
such term as set forth in the Act. In the event the transactions set forth
herein are characterized by a court of competent jurisdiction as a pledge or a
secured financing rather than a sale, the Originator shall be deemed to have
granted to CAAC, and hereby does grant to CAAC, a security interest in all of
the Originator's right, title and interest in, to and under the Purchased
Assets, whether now owned or hereafter acquired, in order to secure all of the
Originator's obligations hereunder. For purposes of each such transfer, this
Agreement shall constitute a security agreement under applicable law. With
respect to the Purchased Assets sold by the Originator to CAAC, the Servicer
shall cause the Originator to file as promptly as practicable, but in no event
later than 10 days following the Closing Date, in the appropriate public filing
office or offices UCC-1 financing statements and continuation statements
describing such Purchased Assets and naming the Originator as the debtor and
CAAC as secured party, to file appropriate continuation statements thereto, to
file amendments thereto in the case of a name change or change in corporate
structure and to file appropriate additional UCC financing statements, if any,
if the Originator changes its jurisdiction of incorporation.
(b) In further consideration of the Purchase Price set forth
in Section 3.1, the Originator hereby agrees to assign to the Owner Trustee all
of its right, title and interest in and to the Mortgage Files evidencing and
securing the Mortgage Loans, and all other Related Documents, pursuant to the
terms of the Transfer Agreement.
(c) In connection with the Conveyance and in compliance with
the Transfer Agreement, the Originator agrees and confirms that it is entitled
to retain possession of the applicable Mortgage Files and other Related
Documents as long as (i) the long-term senior unsecured debt of Compass Bank is
assigned ratings by two of the three Rating Agencies of at least "BBB" by Fitch,
"Baa3" by Xxxxx'x or "BBB-" by Standard and Poor's, or such lower ratings as
shall be acceptable to the Rating Agencies in order to maintain their current
ratings of the Class A and Class M Notes, and (ii) the Originator is Compass
Bank or remains an Affiliate of Compass Bank. At such time as either of the
conditions specified in the preceding sentence is not satisfied, as promptly as
practicable, but in no event more than 90 days thereafter in the case of clause
(i) below and 60 days in the case of clause (ii) below, the Originator shall (i)
either (x) record an assignment of Mortgage in favor of the Owner Trustee (which
may be a blanket assignment if permitted by applicable law) with respect to each
of the Mortgage Loans being serviced by the Originator in the appropriate real
property or other records or (y) deliver to the Owner Trustee the assignment of
such Mortgage in favor of the Owner Trustee in form for recordation, together
with an Opinion of Counsel addressed to the Owner Trustee to the effect that
recording is not required to protect the Owner Trustee's right, title and
interest in and to the related Mortgage Loan or to perfect a first priority
security interest in favor of the Owner Trustee in the related Mortgage Loan,
which Opinion of Counsel also shall be reasonably acceptable to each of the
Rating Agencies (as evidenced in writing), and (ii) unless an Opinion of
Counsel, reasonably acceptable to each of the Rating Agencies (as evidenced in
writing), is delivered to the Owner Trustee to the effect that delivery of the
Mortgage Files is not necessary to protect the Trust's right, title and interest
in and to the related Mortgage Loans or to perfect a first priority
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security interest in favor of the Owner Trustee in the related Mortgage Loans,
deliver the related Mortgage Files to the Owner Trustee to be held by the Owner
Trustee in trust, upon the terms herein set forth, for the use and benefit of
all present and future Noteholders. Furthermore, the Originator hereby
acknowledges that in the event that any loss is suffered by the Trust in respect
of a Mortgage Loan purchased by CAAC as a result of the Originator's retention
of such Related Documents, the Originator will repurchase such Mortgage Loan
from CAAC simultaneously on or immediately after CAAC repurchases such Mortgage
Loans from the Trust in accordance with the terms of the Sale and Servicing
Agreement.
(d) In connection with such Conveyance, the Originator agrees
(i) to record and file, at its own expense, any financing statement (and
continuation statements with respect to such financing statements when
applicable) with respect to the Mortgage Loans now existing and hereafter
created, meeting the requirements of applicable state law in such manner and in
such jurisdictions as are necessary to perfect, and maintain perfection of, the
Conveyance of such Purchased Assets from the Originator to CAAC, (ii) such
financing statement shall name the Originator, as seller, and CAAC, as
purchaser, of the Purchased Assets and (iii) to deliver a file-stamped copy of
such financing statements or other evidence of such filings (excluding such
continuation statements, which shall be delivered as filed) to CAAC (or to the
Owner Trustee, if CAAC so directs) promptly upon becoming available after the
Closing Date with respect to the Mortgage Loans.
(e) Computer records are the customary and principal means by
which the Originator and CAAC record the ownership of mortgage loans and other
consumer receivables which Compass Bank and its affiliates originate, own or
service. Therefore, in connection with such Conveyance and in connection with
the Originator's transfers under the Transfer Agreement, the Originator further
agrees that it will, at its own expense, on or prior to the Closing Date with
respect to the Initial Mortgage Loans and on or prior to the applicable Transfer
Date with respect to the Eligible Substitute Mortgage Loans (i) indicate in its
or its agent's computer files or microfiche lists that the applicable Mortgage
Files and Related Documents have been sold to the Owner Trustee pursuant to the
Transfer Agreement and the Purchased Assets related to the Mortgage Loans listed
in an applicable Schedule to this Agreement have been conveyed to CAAC in
accordance with this Agreement and that such Purchased Assets will be further
conveyed by CAAC to the Owner Trustee pursuant to the Sale and Servicing
Agreement for the benefit of the Noteholders by including an appropriate code
for such Mortgage Loans in such computer file and microfiche list and (ii)
deliver to CAAC (or to the Owner Trustee, if CAAC so directs) a computer file or
electronic or magnetic tape list containing a true and complete list of all such
Mortgage Loans specifying for each such Mortgage Loan, as of the Cut-Off Date
with respect to such Initial Mortgage Loan and as of the Subsequent Cut-Off Date
with respect to each such Eligible Substitute Mortgage Loan, (a) the account
number, (b) the aggregate unpaid principal amount thereof, (c) the Loan Rate,
(d) the lien position of the related Mortgage, and (e) the CLTV. Such computer
file or microfiche list shall be marked as a Schedule to this Agreement, shall
be delivered to CAAC (or to the Owner Trustee, if so directed by CAAC) as
proprietary and confidential, and is hereby incorporated into and made a part of
this Agreement. The Originator further agrees to make the same indications in
its or its agent's computer files and the same deliveries to the Owner Trustee
as set forth in clauses (i) and (ii) of this Section 2.1(e) with respect to
Eligible Substitute Mortgage Loans purchased by CAAC and transferred to the
Owner Trustee and agrees not to alter the code
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referenced in clause (i) of this paragraph with respect to any of the Mortgage
Loans purchased by CAAC during the term of this Agreement unless and until the
related Mortgage Loans have been reconveyed to the Originator. Prior to the
earlier of the reconveyance of the related Mortgage Loans to the Originator, or
the assignment of the Mortgage Documents and delivery of the Mortgage Loan Files
to the Owner Trustee pursuant to the Transfer Agreement, the aforementioned
computer files shall be the register for ownership of the Purchased Assets.
Prior to the delivery by the registered owner to the Originator of the Owner
Trustee's assignment of a Mortgage Loan, the Servicer, CAAC and the Originator
may treat the Person registered in such computer records as the owner of the
Purchased Assets for all purposes hereunder. In connection with such Conveyance,
the Originator also confirms that the total principal amount of the Initial
Mortgage Loans as of the Cut-Off Date to be conveyed hereunder on the Closing
Date is approximately $[__________].
(f) The parties hereto intend that the conveyance to CAAC of
the Originator's right, title and interest in and to the Purchased Assets shall
constitute an absolute sale, conveying good title free and clear of any liens,
claims, encumbrances or right of others from the Originator to CAAC and that the
Purchased Assets shall not be part of the Originator's estate in the event of
the insolvency of the Originator or a conservatorship, receivership or similar
event with respect thereto.
ARTICLE III
CONSIDERATION AND PAYMENT
-------------------------
Section 3.1. PURCHASE PRICE. The Purchase Price for the
Purchased Assets relating to the Initial Mortgage Loans shall be payable on the
Closing Date and shall be an amount equal to the principal amount of such
Mortgage Loans as of the Cut-Off Date, plus a premium based upon the present
value of the aggregate anticipated excess spread on such Mortgage Loans, taking
into account applicable servicing fees, cost of funds, credit enhancement fees
and expected losses (calculated on an historical basis). The Purchase Price for
any Eligible Substitute Mortgage Loans conveyed to CAAC under this Agreement
shall be payable as of the Transfer Date thereof by CAAC for a price, in each
case, equal to the aggregate principal amount of such Eligible Substitute
Mortgage Loans so conveyed plus a premium calculated in the same manner as the
purchase price for the Initial Mortgage Loans.
Section 3.2. SETTLEMENT. On each Determination Date, the
Originator shall deliver to CAAC a Settlement Statement in substantially the
form of EXHIBIT A, showing the aggregate Repurchase Price of Mortgage Loans
repurchased by the Originator during such Collection Period, if any, and the
amount of Mortgage Loans outstanding during such Collection Period; provided,
further, that on the Distribution Date following the conveyance to CAAC of any
Eligible Substitute Mortgage Loans to CAAC, the Originator shall include in such
Settlement Statement the aggregate Purchase Price for its Eligible Substitute
Mortgage Loans.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 4.1. ORIGINATOR REPRESENTATIONS AND WARRANTIES. The
Originator hereby represents and warrants to, and agrees with, CAAC as of the
Closing Date and on each Transfer Date, that:
(a) ORGANIZATION AND GOOD STANDING OF THE ORIGINATOR. It is a
banking corporation duly organized, validly existing and in good standing under
the laws of the State of Alabama and has, in all material respects, full power
and authority to own its properties and conduct its business as such properties
are presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement and the Transfer
Agreement and when this Agreement and the Transfer Agreement have been executed
and delivered, this Agreement and the Transfer Agreement will constitute the
legal, valid and binding obligation of the Originator enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies (whether in a proceeding
at law or in equity).
(b) DUE QUALIFICATION. It is duly qualified to do business and
is in good standing and has obtained all necessary licenses and approvals (or is
exempt from such requirements), in each jurisdiction in which failure to so
qualify or to obtain such licenses and approvals would render any Mortgage File
relating to any Mortgage Loan unenforceable by it or the Owner Trustee and would
have a material adverse effect on its business, properties, assets or condition
(financial or other).
(c) DUE AUTHORIZATION. The execution, delivery and performance
of this Agreement, the Transfer Agreement and any other document or instrument
delivered pursuant hereto or thereto (such other documents or instruments,
collectively, the "Conveyance Papers") and the consummation of the transactions
provided for in this Agreement or any other Conveyance Papers have been duly
authorized by all necessary corporate action on its part.
(d) NO CONFLICT. Its execution and delivery of this Agreement,
the Transfer Agreement and the Conveyance Papers, the performance of the
transactions contemplated by this Agreement, the Transfer Agreement and the
Conveyance Papers, and the fulfillment of the terms of this Agreement, the
Transfer Agreement and the Conveyance Papers applicable to it will not violate
any existing law or regulation or any order or decree of any court applicable to
it or any provision of its certificate of incorporation or bylaws, or constitute
(with or without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust, or other instrument to
which it is a party or by which it or any of its properties are bound.
(e) NO VIOLATION. The execution, delivery and performance of
this Agreement, the Transfer Agreement and the Conveyance Papers and the
fulfillment of the terms contemplated herein and therein applicable to it will
materially comply with currently existing applicable laws.
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(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best of its knowledge, threatened against it, before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement, the Transfer
Agreement or the Conveyance Papers, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement, the Transfer Agreement
or the Conveyance Papers, (iii) seeking any determination or ruling that, in its
judgment, has a reasonable likelihood of resulting in a material adverse effect
on the transactions contemplated by this Agreement, the Transfer Agreement or
the Conveyance Papers, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforcement of this Agreement,
the Transfer Agreement or the Conveyance Papers or (v) seeking to affect
adversely the income tax attributes of the Trust under United States Federal or
Alabama income tax systems.
(g) ALL CONSENTS. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be obtained
by it in connection with the execution and delivery of this Agreement, the
Transfer Agreement or the Conveyance Papers and the performance of the
transactions contemplated by this Agreement, the Transfer Agreement or the
Conveyance Papers have been obtained.
(h) CHIEF EXECUTIVE OFFICE. Its chief executive office is
located within the State of Alabama.
The representations and warranties set forth in this Section
4.1 shall survive the transfer and assignment of the Mortgage Loans to CAAC and
the transfer of the remaining right, title and interest under the Mortgage Loans
to the Owner Trustee under the Transfer Agreement. Upon discovery by the
Originator or CAAC of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give written notice to the
other parties within three Business Days following such discovery.
Section 4.2. REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR
RELATING TO THE AGREEMENT AND THE MORTGAGE LOANS.
(a) REPRESENTATIONS AND WARRANTIES. The Originator hereby
represents and warrants to CAAC as of the respective Cut-Off Date with respect
to each Mortgage Loan it sells (and to the extent expressly stated below at such
other time) that, as to such Mortgage Loan:
(i) This Agreement constitutes a legal, valid and binding
obligation of the Originator, enforceable against the Originator 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);
(ii) This Agreement constitutes a valid transfer and
assignment to CAAC of all right, title and interest of the Originator
in and to the applicable Mortgage Loans, all monies due or to become
due with respect thereto, and all proceeds of such Mortgage
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Loans and all other property specified in the definition of "Purchased
Assets" relating to such Mortgage Loans;
(iii) As of the Closing Date with respect to the Initial
Mortgage Loans, and as of the applicable Transfer Date with respect to
any Eligible Substitute Mortgage Loans, the related computer file or
electronic or magnetic tape list referred to in Section 2.1(e), are
true, accurate and complete listings in all material respects of all
such Mortgage Loans, and the information contained therein with respect
to the identity of such Mortgage Loans is true and correct in all
material respects. As of the Cut-Off Date with respect to the Initial
Mortgage Loans sold to CAAC by the Originator, the aggregate principal
amount of such Initial Mortgage Loans transferred to CAAC which are to
be subsequently transferred to the Owner Trustee was approximately
$[__________];
(iv) The Purchased Assets related to the Initial Mortgage
Loans as of the Closing Date, and to the Eligible Substitute Mortgage
Loans as of the applicable Transfer Date, have not been assigned or
pledged, and the Originator has good and marketable title thereto, and
the Originator is the sole owner and holder of such assets free and
clear of any and all liens, claims, encumbrances, participation
interests, equities, pledges, charges or security interests 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, assign or transfer the Purchased
Assets pursuant to this Agreement.
(v) Immediately prior to the Originator's assignment of the
Transferred Assets to the Owner Trustee pursuant to the Transfer
Agreement, the Transferred Assets with respect to each Mortgage Loan
have not been assigned or pledged, and the Originator has good and
marketable title thereto, and the Originator is the sole owner and
holder of the Transferred Assets relating to the Mortgage Loans free
and clear of any and all liens, claims, encumbrances, participation
interests, equities, pledges, charges or security interests of any
nature, and has full right and authority, under all governmental and
regulatory bodies having jurisdiction over the ownership of such
Mortgage Loans, to transfer and assign the Transferred Assets pursuant
to the Transfer Agreement;
(vi) As to the Originator's Mortgage Loan, the related
Mortgage is a valid and subsisting first lien or second lien, as set
forth on the related computer file or electronic or magnetic tape list
referred to in Section 2.1(e), on the property therein described, and
the related Mortgaged Property is free and clear of all encumbrances
and liens having priority over the first or second lien, as applicable,
of such Mortgage except for liens for (i) real estate taxes and special
assessments not yet delinquent; (ii) any first and, if applicable,
second mortgage loan secured by such Mortgaged Property and specified
on the related computer file or microfiche list referred to in Section
2.1(e); (iii) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of
recording that are acceptable to mortgage lending institutions
generally, and (iv) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by such Mortgage;
(vii) As of the Closing Date with respect to the Initial
Mortgage Loans, and the applicable Transfer Date for any Eligible
Substitute Mortgage Loans, to the best
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knowledge of the Originator, there is no valid offset, defense, right
of rescission or counterclaim of any obligor under any Mortgage File or
Mortgage;
(viii) To the best knowledge of the Originator, as of the
Closing Date with respect to the Initial Mortgage Loans, and the
applicable Transfer Date for any Eligible Substitute Mortgage Loans,
there is no delinquent recording or other tax or fee or assessment lien
against any related Mortgage Property;
(ix) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date with respect to any
Eligible Substitute Mortgage Loans, to the Originator's best knowledge,
there is no proceeding pending or threatened for the total or partial
condemnation of the related Mortgaged Property, and such property is
free of material damage and is in good repair;
(x) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date for any Eligible
Substitute Mortgage Loans, 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, the lien of the related Mortgage, except liens which are fully
insured against by the title insurance policy referred to in clause
(xiv) or liens which do not materially interfere with the collection of
the Mortgage Loan upon foreclosure or otherwise;
(xi) As of the Cut-Off Date for the Initial Mortgage Loans (or
as of the applicable Transfer Date for any Eligible Substitute Mortgage
Loan), no scheduled monthly payment is more than 29 days delinquent
(measured on a contractual basis);
(xii) For each Mortgage Loan, the related Mortgage File
contains each of the documents and instruments specified to be included
therein (including, if applicable, an appraisal (which may be an
appraisal prepared using a statistical data base));
(xiii) As to each of the Originator's Mortgage Loans, the
related Mortgage and the related Mortgage Note at the time they were
made complied in all material respects with applicable state and
federal laws including, without limitation, usury, truth-in-lending,
real estate settlement procedures, consumer credit protection
(including, without limitation, the Home Ownership Equity Protection
Act), equal credit opportunity or disclosure laws applicable to such
Mortgage Loan;
(xiv) A lender's title insurance policy or binder was issued
on the date of origination of each of the Originator's Initial Mortgage
Loans and any Eligible Substitute Mortgage Loans in excess of
$[100,000] and each such policy is valid and remains in full force and
effect, and a title search or other assurance of title customary in the
relevant jurisdiction was obtained with respect to each such Mortgage
Loan as to which no title insurance policy or binder was issued;
(xv) [The related Mortgaged Property is not a mobile home or a
manufactured housing unit that is not permanently attached to its
foundation;]
10
(xvi) As of the Statistical Cut-Off Date for the Initial
Mortgage Loans no more than [_____] % of such Mortgage Loans, by Pool
Balance as of the Statistical Cut-Off Date, are secured by Mortgaged
Properties located in one United States postal zip code;
(xvii) As of the Statistical Cut-Off Date, the Combined
Loan-to-Value Ratio for each Mortgage Loan was not in excess of
[____]%;
(xviii) No selection procedure reasonably believed by the
Originator to be adverse to the interests of the Noteholders was
utilized in selecting the Initial Mortgage Loans or any Eligible
Substitute Mortgage Loan, as applicable, transferred hereunder;
(xix) The Originator has not transferred Mortgage Loans with
any intent to hinder, delay or defraud any of its creditors;
(xx) Each Mortgage Note and each Mortgage is in substantially
the form previously provided to CAAC by the Originator and each
Mortgage Loan is an enforceable obligation of the related Mortgagor;
(xxi) As of the Closing Date with respect to the Initial
Mortgage Loans and the applicable Transfer Date with respect to the
Eligible Substitute Mortgage Loans, the Originator has not received a
notice of default of any senior mortgage loan with respect to the
related Mortgaged Property which has not been cured by a party other
than the Originator;
(xxii) The Initial Mortgage Loan does not have an original
term to maturity in excess of 360 months; and the Principal Balance of
which, when included in the pool balance (in each case for the Initial
Mortgage Loans as of the Cut-Off Date), would not cause the weighted
average remaining term to maturity of the Initial Mortgage Loans on a
contractual basis to be greater than [____] months;
(xxiii) Each Mortgaged Property consists of a single parcel of
real property with a one-to-four unit single family residence erected
thereon, or an individual condominium unit, planned unit development
unit or townhouse;
(xxiv) The Principal Balance of which, when included in the
pool balance (in each case for the Initial Mortgage Loans as of the
Cut-Off Date), would not cause the average Principal Balance of such
Mortgage Loans to be greater than $[_______];
(xxv) Within 10 days of the Closing Date with respect to the
Initial Mortgage Loans and, to the extent not already included in such
filing with respect to the Initial Mortgage Loans, the applicable
Transfer Date with respect to any Eligible Substitute Mortgage Loan,
the Originator will file UCC-1 financing statements in accordance with
Section 2.1 hereof; and
(xxvi) The Principal Balance of which, when included in the
Pool Balance (in each case for the Initial Mortgage Loans as of the
Cut-Off Date), would not cause the weighted average percentage of the
Initial Mortgage Loans secured by first liens to be
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less than [____]%; and would not cause the weighted average percentage
of the Initial Mortgage Loans secured by second liens to be greater
than [_____]%.
(b) NOTICE OF BREACH. The representations and warranties set
forth in this Section 4.2 shall survive the transfer and assignment of the
Purchased Assets to CAAC. Upon discovery by either the Originator or CAAC of a
breach of any of the representations and warranties set forth in this Section
4.2 (without regard to any limitation set forth therein concerning the knowledge
of the Originator as to the facts stated therein), the party discovering such
breach shall give written notice to the other party within three Business Days
following such discovery. The Originator hereby acknowledges that CAAC intends
to rely on the representations hereunder in connection with representations made
by CAAC to secured parties, assignees or subsequent transferees including but
not limited to transfers made by CAAC to the Trust pursuant to the Sale and
Servicing Agreement.
Section 4.3. REPRESENTATIONS AND WARRANTIES OF CAAC. As of the
Closing Date and as of the Transfer Date on which CAAC acquires the Eligible
Substitute Mortgage Loans, if any, CAAC hereby represents and warrants to, and
agrees with, the Originator that:
(a) ORGANIZATION AND GOOD STANDING. CAAC is a limited
liability company duly organized and validly existing under the laws of the
State of Delaware and has, in all material respects, full power and authority to
own its properties and conduct its business as such properties are presently
owned and such business is presently conducted and to execute, deliver, and
perform its obligations under this Agreement and the Conveyance Papers.
(b) DUE AUTHORIZATION. The execution and delivery of this
Agreement and the Conveyance Papers and the consummation of the transactions
provided for in this Agreement and the Conveyance Papers have been duly
authorized by CAAC by all necessary action on the part of CAAC.
(c) NO CONFLICT. The execution and delivery of this Agreement
and the Conveyance Papers, the performance of the transactions contemplated by
this Agreement and the Conveyance Papers, and the fulfillment of the terms
hereof or thereof, will not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or lapse
of time or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust or other instrument to which CAAC is a party or by which
it or its properties is bound.
(d) NO VIOLATION. The execution, delivery and performance of
this Agreement and the Conveyance Papers and the fulfillment of the terms
contemplated herein and therein applicable to CAAC will materially comply with
currently existing state or federal laws applicable to CAAC.
(e) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of CAAC, threatened against CAAC, before any
court, regulatory body, administrative agency, or other tribunal or governmental
instrumentality, (i) asserting the invalidity of this Agreement or the
Conveyance Papers, (ii) seeking to prevent the consummation
12
of any of the transactions contemplated by this Agreement or the Conveyance
Papers, (iii) seeking any determination or ruling that, in the reasonable
judgment of CAAC, would materially and adversely affect the performance by CAAC
of its obligations under this Agreement or the Conveyance Papers, or (iv)
seeking any determination or ruling that would materially and adversely affect
the validity or enforceability of this Agreement or the Conveyance Papers.
(f) ALL CONSENTS. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be obtained
by CAAC in connection with the execution and delivery of this Agreement and the
Conveyance Papers and the performance of the transactions contemplated by this
Agreement and the Conveyance Papers or the fulfillment of the terms of this
Agreement and the Conveyance Papers have been obtained.
The representations and warranties set forth in this Article
IV shall survive the Conveyance of the Mortgage Loans to CAAC and termination of
the rights and obligations of CAAC and the Originator under this Agreement. Upon
discovery by CAAC or the Originator of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
ARTICLE V
COVENANTS OF THE ORIGINATOR
---------------------------
Section 5.1. ORIGINATOR COVENANTS. The Originator hereby
covenants and agrees with CAAC as follows:
(a) SECURITY INTERESTS. Except for the conveyances hereunder
and to the Owner Trustee pursuant to the Transfer Agreement and subject to the
transactions permitted pursuant to Section 9.5 hereof, the Originator will not
sell, pledge, assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any Lien on any Mortgage Loan or the Purchased Assets,
whether now existing or hereafter created, or any interest therein, and the
Originator, at its expense, shall defend the right, title and interest of CAAC
in, to and under the Purchased Assets, whether now existing or hereafter
created, against all claims of third parties claiming through or under CAAC or
the Originator; provided, however, that nothing in this Section 5.1(a) shall
prevent or be deemed to prohibit the Originator from suffering to exist upon any
of the applicable Mortgage Loans any Liens for municipal or other governmental
charges if such taxes or governmental charges shall not at the time be due and
payable or if the Originator shall currently be contesting the validity thereof
in good faith by appropriate proceedings and shall have set aside on its books
adequate reserves with respect thereto.
(b) DELIVERY OF COLLECTIONS OR RECOVERIES. In the event that
the Originator receives Interest Collections or Principal Collections, the
Originator agrees to pay to CAAC (or to the Servicer if CAAC so directs) all
such Collections as soon as practicable after receipt thereof.
(c) NOTICE OF LIENS. The Originator shall notify CAAC promptly
after becoming aware of any Lien on any Mortgage Loan or the Purchased Assets
other than the
13
conveyances hereunder or pursuant to the Transfer Agreement or the Sale and
Servicing Agreement.
(d) MORTGAGE FILE MODIFICATION GUIDELINES. The Originator may
make changes to the terms and provisions of its respective Mortgage Files in any
respect (including, without limitation, the calculation of the amount or the
timing of charge-offs and the finance charges to be assessed on advances made
thereunder) solely if expressly permitted by the terms of the Sale and Servicing
Agreement and applicable laws.
ARTICLE VI
REPURCHASE OBLIGATION
---------------------
Section 6.1. REASSIGNMENT OF INELIGIBLE MORTGAGE LOANS. (a)
(a) In the event any representation or warranty under Section 4.2 is not true
and correct in any material respect as of the date specified therein and as a
result of such breach CAAC is required to accept reassignment of Defective
Mortgage Loans pursuant to Section 2.02 of the Sale and Servicing Agreement, the
Originator shall accept reassignment of CAAC's interest in the applicable
Defective Mortgage Loans on the terms and conditions set forth in Section
6.1(b).
(b) The Originator shall accept reassignment of any applicable
Defective Mortgage Loans originally transferred by it to CAAC on or prior to the
end of the Collection Period in which such reassignment obligation arises, and
shall pay for such reassigned Defective Mortgage Loans the entire principal
balance thereof plus accrued and unpaid interest thereon, plus any applicable
premium previously received by the Originator pursuant to Section 3.1 hereof in
connection with such Mortgage Loans repurchased minus any Principal Collections
credited to such Defective Mortgage Loan thereof prior to such retransfer date
(the "Repurchase Price"). Upon reassignment of Defective Mortgage Loans, CAAC
shall automatically and without further action be deemed to sell, transfer,
assign, set-over and otherwise convey to the Originator, without recourse,
representation or warranty, all the right, title and interest of CAAC in and to
such Defective Mortgage Loans, all monies due or to become due with respect
thereto and all proceeds thereof. The Originator shall forward the Repurchase
Price to CAAC or any portion thereof to the Owner Trustee upon the direction of
CAAC and such reassigned Defective Mortgage Loans shall be treated by CAAC as
collected in full as of the date on which the Repurchase Price therefore was
received by CAAC or the Owner Trustee. CAAC shall execute such documents and
instruments of transfer or assignment and take such other actions as shall
reasonably be requested by the Originator to effect the conveyance of such
Defective Mortgage Loans pursuant to this subsection. The Originator
acknowledges that CAAC has appointed the Owner Trustee its attorney in fact to
collect the Repurchase Price and to enforce its rights hereunder.
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ARTICLE VII
CONDITIONS PRECEDENT
--------------------
Section 7.1. CONDITIONS TO CAAC'S OBLIGATIONS. The obligations
of CAAC to purchase the Initial Mortgage Loans on the Closing Date shall be
subject to the satisfaction of the following conditions:
(a) All information concerning the Initial Mortgage Loans
provided as of the Cut-Off Date shall be true and correct as of the Cut-Off Date
in all material respects;
(b) The Originator shall have delivered to CAAC (or to the
Owner Trustee, which CAAC hereby directs) a computer file or electronic or
magnetic tape list containing a true and complete list of all information
specified in Section 2.1(e) hereof and shall have substantially performed all
other obligations required to be performed by the provisions of this Agreement;
(c) The Originator shall have prepared for recording and
filing, at its expense, any financing statement with respect to the Initial
Mortgage Loans now existing and hereafter created for the transfer of accounts
(as defined in Section 9-106 of the UCC as in effect in the State of Alabama)
meeting the requirements of applicable state law in such manner and in such
jurisdictions as would be necessary to perfect the sale of such Mortgage Loans
from the Originator to CAAC if the Initial Mortgage Loans were deemed to
constitute accounts receivable under applicable law, and shall deliver a
file-stamped copy of such financing statements or other evidence of such filings
to the Owner Trustee as agent for CAAC;
(d) On or before the Closing Date, CAAC and the Owner Trustee
shall have entered into the Sale and Servicing Agreement and the closing under
the Sale and Servicing Agreement shall take place simultaneously with the
initial closing hereunder; and
(e) All corporate and legal proceedings and all instruments
and opinions in connection with the transactions contemplated by this Agreement
shall be satisfactory in form and substance to CAAC, and CAAC shall have
received from the Originator copies of all documents (including, without
limitation, records of corporate proceedings) relevant to the transactions
herein contemplated as CAAC may reasonably have requested.
Section 7.2. [INTENTIONALLY OMITTED]
Section 7.3. CONDITIONS PRECEDENT TO THE ORIGINATOR'S
OBLIGATIONS. The obligations of the Originator to sell the Initial Mortgage
Loans on the Closing Date and to sell any Eligible Substitute Mortgage Loans on
the applicable Transfer Date therefore shall, in each case, be subject to the
satisfaction of the following conditions:
(a) All representations and warranties of CAAC contained in
this Agreement shall be true and correct with the same effect as though such
representations and warranties had been made on such date;
(b) Payment or provision for payment of the applicable
Purchase Price in accordance with the provisions of Article III hereof shall
have been made; and
15
(c) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Originator, and the Originator shall
have received from CAAC copies of all documents (including, without limitation,
records of corporate proceedings) relevant to the transactions herein
contemplated as the Originator may reasonably have requested.
ARTICLE VIII
TERM & PURCHASE TERMINATION
---------------------------
Section 8.1. TERM. This Agreement shall commence as of the
date of execution and delivery hereof and shall continue until the Trust shall
have terminated as provided in Article VIII of the Sale and Servicing Agreement.
Section 8.2. PURCHASE TERMINATION. If the Originator
voluntarily goes into liquidation or consents to the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceeding of or relating to the
Originator or of or relating to all or substantially all its property, or a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceeding, or for the winding-up or liquidation of its
affairs, shall have been entered against the Originator; or the Originator shall
admit in writing its inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations (such voluntary liquidation, appointment,
entering of such decree, admission, filing, making or suspension, a "Dissolution
Event"), the Originator shall on the day of such appointment, voluntary
liquidation, entering of such decree, admission, filing, making or suspension,
as the case may be (the "Appointment Date"), immediately cease to transfer
Eligible Substitute Mortgage Loans to CAAC and shall promptly give notice to
CAAC and the Owner Trustee of such Dissolution Event. Notwithstanding any
cessation of the transfer to CAAC of Eligible Substitute Mortgage Loans,
Mortgage Loans transferred to CAAC prior to the occurrence of such Dissolution
Event and Principal Collections and Interest Collections, insurance proceeds and
other monies in respect of such Mortgage Loans whenever received, shall continue
to be property of CAAC available for transfer by CAAC to the Trust pursuant to
the Sale and Servicing Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
------------------------
Section 9.1. AMENDMENT. This Agreement and any Conveyance
Papers and the rights and obligations of the parties hereunder may not be
changed orally, but only by an instrument in writing signed by CAAC and the
Originator in accordance with this Section 9.1. This Agreement and any
Conveyance Papers may be amended from time to time by CAAC and the Originator
(i) to cure any ambiguity, (ii) to correct or supplement any provisions herein
which may be inconsistent with any other provisions herein or in any such other
Conveyance Papers, (iii) to add any other provisions with respect to matters or
questions arising under this
16
Agreement or any Conveyance Papers which shall not be inconsistent with the
provisions of this Agreement or any Conveyance Papers, and (iv) to change,
modify, delete or add any other obligation of the Originator or CAAC; PROVIDED,
HOWEVER, that no amendment pursuant to clause (iv) of this Section 9.1 shall be
effective unless the Rating Agencies have notified the Originator and CAAC in
writing that such amendment will not result in a reduction or withdrawal of the
rating of the Notes. Any reconveyance executed in accordance with the provisions
hereof shall not be considered to be an amendment to this Agreement.
Section 9.2. GOVERNING LAW. THIS AGREEMENT AND THE CONVEYANCE
PAPERS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ALABAMA,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 9.3. 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, return receipt requested,
to (a) the Originator, 00 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000,
Attention: [_______] and (b) in the case of CAAC, 00 Xxxxx 00xx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, Attention: [_______], or, as to each party, at such
other address as shall be designated by such party in a written notice to each
other party.
Section 9.4. SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, agreements, provisions or terms of this Agreement or any
Conveyance Papers shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions, or terms shall be deemed severable from the
remaining covenants, agreements, provisions and terms of this Agreement or any
Conveyance Papers and shall in no way affect the validity or enforceability of
the other provisions of this Agreement or of any Conveyance Papers.
Section 9.5. ASSIGNMENT. Notwithstanding anything to the
contrary contained herein, this Agreement and all other Conveyance Papers may
not be assigned by the parties hereto; PROVIDED, HOWEVER, that (i) the
Originator shall have the right to assign its right, title and interest, in, to
and under this Agreement, to (a) any entity affiliated with Compass Bank and (b)
any other entity provided that the Rating Agencies have advised CAAC and the
Originator that such assignment will not result in the reduction or withdrawal
of the rating of the Notes, and (ii) CAAC shall have the right to assign this
Agreement to (a) any affiliate of Compass Bank and (b) any other entity provided
that the Rating Agencies have advised CAAC that such assignment will not result
in the reduction or withdrawal of the rating of the Notes.
Section 9.6. ACKNOWLEDGMENT AND AGREEMENT OF THE ORIGINATOR.
By execution below, the Originator expressly acknowledges and agrees that any
amounts payable by the Originator to CAAC hereunder which are to be paid by CAAC
to the Owner Trustee for the benefit of the Noteholders, to the extent required
by and pursuant to the terms of the Sale and Servicing Agreement (including,
without limitation, payments to be made under Article III and Section 6.1
hereof) shall be paid by the Originator, on behalf of CAAC, directly to the
Owner Trustee. Any payment required to be made on or before a specified date in
same-day funds may be made on the prior business day in next-day funds.
17
Section 9.7. FURTHER ASSURANCES. CAAC and the Originator agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the other parties
more fully to effect the purposes of this Agreement and the Conveyance Papers,
including, without limitation, the execution of any financing statements or
continuation statements or equivalent documents relating to the Purchased Assets
for filing under the provisions of the UCC (as in effect in the State of
Alabama) or other law of any applicable jurisdiction.
Section 9.8. NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of CAAC or the Originator, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
Section 9.9. COUNTERPARTS. This Agreement and all Conveyance
Papers may be executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section 9.10. BINDING EFFECT; THIRD-PARTY BENEFICIARIES. This
Agreement and the Conveyance Papers will inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
Section 9.11. MERGER AND INTEGRATION. Except as specifically
stated otherwise herein, this Agreement and the Conveyance Papers set forth the
entire understanding of the parties relating to the subject matter hereof, and
all prior understandings, written or oral, are superseded by this Agreement and
the Conveyance Papers. This Agreement and the Conveyance Papers may not be
modified, amended, waived or supplemented except as provided herein.
Section 9.12. HEADINGS. The headings are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 9.13. SCHEDULES AND EXHIBITS. The schedules and
exhibits attached hereto and referred to herein shall constitute a part of this
Agreement and are incorporated into this Agreement for all purposes.
Section 9.14. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Originator submitted pursuant
hereto, or contained in any assignment permitted hereunder, shall remain
operative and in full force and effect and shall survive conveyance of the
Purchased Assets by CAAC to the Owner Trustee pursuant to the Sale and Servicing
Agreement.
[END OF PAGE]
18
IN WITNESS WHEREOF, CAAC and the Originator have caused this
Mortgage Loan Purchase Agreement to be duly executed by their respective
officers as of the day and year first above written.
COMPASS BANK
BY:
--------------------------------------------------
COMPASS ASSET ACCEPTANCE COMPANY, L.L.C.
BY:
--------------------------------------------------
19
EXHIBIT A
---------
to MORTGAGE LOAN PURCHASE AGREEMENT
FORM OF SETTLEMENT STATEMENT
MORTGAGE LOAN PURCHASE AGREEMENT
Current Settlement Date: ____________
Compass Bank (the "ORIGINATOR") and Compass Asset Acceptance
Company, L.L.C. ("CAAC"), pursuant to the Mortgage Loan Purchase Agreement (the
"MORTGAGE LOAN PURCHASE AGREEMENT") dated as of [_____], 200[_], by and among
the Originator and CAAC, do hereby agree and certify as follows:
1. Capitalized terms used in this Settlement Statement have their
respective meanings in the Mortgage Loan Purchase Agreement. As used herein, the
term "Collection Period" shall mean the Collection Period immediately preceding
the calendar month in which this Settlement Statement is delivered. This
Settlement Statement is being delivered pursuant to Section 3.2 of the Mortgage
Loan Purchase Agreement. References hereto to certain sections are references to
the respective sections in the Mortgage Loan Purchase Agreement.
2. The date of this Settlement Statement is a Distribution Date under
the Sale and Servicing Agreement.
3. The Repurchase Price for any Mortgage Loans required to be
repurchased by the [ORIGINATOR] pursuant to Section 6.1 of the Mortgage Loan
Purchase Agreement with respect to the Collection Period is equal to $________.
By:
-------------------------------------
Name:
-----------------------------------
Its:
------------------------------------
