EXHIBIT 10.3
MORTGAGE CERTIFICATE PURCHASE AGREEMENT
---------------------------------------
This Mortgage Certificate Purchase Agreement (the "Agreement"),
dated as of [ ], 20[ ], is between Xxxxx Fargo Asset Securities Corporation, a
Delaware corporation (the "Company"), and [ ] (the "Seller").
The Company and the Seller hereby recite and agree as follows:
1. Defined Terms. Terms used without definition herein shall have
the respective meanings assigned to them in the Trust Agreement, dated as of
[ ], 20[ ] (the "Trust Agreement"), among the Company, [ ], as securities
administrator (the "Securities Administrator"), and [ ], as trustee (the
"Trustee"), relating to the issuance of the Company's Mortgage Pass-Through
Certificates, Series 20[ ]-[ ] (the "Certificates") or, if not defined therein,
in the underwriting agreement, dated [ ], 20[ ], and terms agreement, dated [ ],
20[ ] (together, the "Underwriting Agreement"), among the Company, the Seller
and [ ] (the "Underwriter").
2. Purchase Price; Purchase and Sale. The Seller agrees to sell, and
the Company agrees to purchase, the mortgage pass-through certificates listed on
the Mortgage Certificate Schedule (the "Underlying Certificates"). In
consideration of the sale of the Underlying Certificates from the Seller to the
Company on the Closing Date, the Company agrees to pay to the Seller on the
Closing Date by wire transfer of immediately available funds, as directed by the
Seller, an amount equal to $[ ] in respect of the Underlying Certificates (the
"Purchase Price").
Upon payment of the Purchase Price, the Seller shall be deemed to
transfer, convey, sell and assign to the Company, without recourse, all the
right, title and interest of the Seller in and to (i) the Underlying
Certificates and all distributions on the Underlying Certificates payable after
the Closing Date, (ii) all rights of the Seller as a certificateholder under the
Underlying Pooling and Servicing Agreements, (iii) all present and future
claims, demands, causes and choses in action in respect of the foregoing,
including the rights of the Seller under the Underlying Certificates, and (iv)
all proceeds of the foregoing of every kind and nature whatsoever, including,
without limitation, all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts,
rights to payment of any and every kind and other forms of obligations and
receivables, instruments and other property that at any time constitute all or
part of or are included in the proceeds of the foregoing.
In connection with the transfer of the Underlying Certificates, the
Seller hereby agrees to remit to the Securities Administrator by wire transfer
of immediately available funds on the date on which received, all payments
received by the Seller after the date hereof in connection with the Underlying
Certificates. The Seller shall also promptly forward to the Securities
Administrator for each Underlying Certificate written irrevocable instructions
to forward all distributions on the Underlying Certificates to the account
specified by the Securities Administrator. The Trustee shall deliver to or at
the direction of the Company any and all certificates, opinions of counsel and
other documents as the Company shall request to effect the registration and
transfer of the Underlying Certificates in the name of the Seller or its
designee.
3. Representations and Warranties; Covenants. The Seller hereby
represents and warrants to the Company that (i) the Company's representations
and warranties to the Trustee pursuant to Section 2.02(b) of the Trust Agreement
are true and correct, as of the date thereof, and (ii) Seller has not dealt with
any broker, investment banker, agent or other person (other than the Company and
the Underwriter) who may be entitled to any commission or compensation in
connection with the sale of the Underlying Certificates. The Seller hereby
agrees to cure any breach of such representations and warranties in accordance
with the terms of the Trust Agreement.
4. Underwriting. The Seller hereby agrees to furnish any and all
information, documents, certificates, letters or opinions with respect to the
Underlying Certificates, reasonably requested by the Company in order to perform
any of its obligations or satisfy any of the conditions on its part to be
performed or satisfied pursuant to the Underwriting Agreement at or prior to the
Closing Date.
5. Costs. The Company shall pay all expenses incidental to the
performance of its obligations under the Underwriting Agreement, including
without limitation (i) any recording fees or fees for title policy endorsements
and continuations, (ii) the expenses of preparing, printing and reproducing the
Prospectus, the Prospectus Supplement, the Underwriting Agreement, the Trust
Agreement and the Certificates and (iii) the cost of delivering the Certificates
to the Underwriter (or its designee) insured to the satisfaction of the
Underwriter.
6. Notices. All demands, notices and communications hereunder shall
be in writing, shall be effective only upon receipt and shall, if sent to the
Company, be addressed to it at Xxxxx Fargo Asset Securities Corporation, 0000
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attn: Vice President, Structured
Finance, or, if sent to the Seller, be addressed to it at [ ].
7. Trustee Beneficiary. The representations, warranties and
agreements made by the Seller in this Agreement are made for the benefit of, and
may be enforced by, the Trustee and the holders of Certificates to the same
extent that the Trustee and the holders of Certificates, respectively, have
rights against the Company under the Trust Agreement in respect of
representations, warranties and agreements made by the Company therein.
8. Recharacterization. The parties hereto intend the conveyance by
the Seller to the Company of all of its right, title and interest in and to the
Underlying Certificates pursuant to this Agreement to constitute a purchase and
sale and not a loan. Notwithstanding the foregoing, to the extent that such
conveyance is held not to constitute a sale under applicable law, it is intended
that this Agreement shall constitute a security agreement under applicable law
and that the Seller shall be deemed to have granted to the Company a first
priority security interest in all of the Seller's right, title and interest in
and to the Underlying Certificates.
9. Miscellaneous. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought. This Agreement may not be changed in any
manner which would have a material adverse effect on holders of Certificates
without the prior written consent of the Trustee. The Trustee shall be protected
in consenting to any such change to the same extent provided in Article X of the
Trust Agreement. This Agreement may be signed in any number of counterparts,
each of which shall be deemed an original, which taken together shall constitute
one and the same instrument. This Agreement shall bind and inure to the benefit
of and be enforceable by the Company and the Seller and their respective
successors and assigns.
IN WITNESS WHEREOF, the Company and the Seller have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
XXXXX FARGO ASSET SECURITIES
CORPORATION
By:
------------------------------------
Name:
Title:
[SELLER]
By:
------------------------------------
Name:
Title:
