LOAN PURCHASE AGREEMENT
This Loan Purchase Agreement (the "Agreement") is made as of
_________, 199_, by and among [ , a Delaware
__________________________
Corporation (the "Seller")], IndyMac ABS, Inc., a Delaware corporation (the
"Company"), and [ ] 199_-__ (the "Issuer"), a
______________________ ___________
.
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Section 1. Representations and Warranties.
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1. Representations and Warranties of all Parties.
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The Company, the Seller and the Issuer, each as to itself and not the other,
hereby represents, warrants and agrees that:
(a) Authorization. The execution, delivery and performance of
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this Agreement by it are within its respective powers and have been duly
authorized by all necessary action on its part.
(b) No Conflict. The execution, delivery and performance of this
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Agreement will not violate or conflict with (i) its charter, bylaws or trust
agreement, (ii) any resolution or other corporate action by it, (iii) any
decisions, statutes, ordinances, rulings, directions, rules, regulations,
orders, writs, decrees, injunctions, permits, certificates or other
requirements of any court or other governmental or public authority in any
way applicable to or binding upon it, and (iv) will not result in or require
the creation, except as provided in or contemplated by this Agreement, of any
lien, mortgage, pledge, security interest, charge or encumbrance of any kind
upon the Original Mortgage Loans.
(c) Binding Obligation. This Agreement has been duly executed by
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it and is its legally valid and binding obligation, enforceable against it in
accordance with this Agreement's terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, and by general principles of equity.
Section 2. Additional Representations, Warranties and
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Agreements of the Seller and the Company.
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(a) The Seller represents and warrants to, and agrees with, the
Company and the Issuer that (i) the Seller has good and valid title to the
[home equity] loans identified in [Schedule __ to] the Indenture (the
"Loans") free and clear of all liens, mortgages, deeds of trust, pledges,
security interests, charges, encumbrances or other claims; and (ii) upon
transfer to the Company, the Company will receive good, valid and marketable
title to all of the Loans, free and clear of any liens, mortgages, deeds of
trust, pledges, security interests, charges, encumbrances or other claims.
(b) The Company represents and warrants to, and agrees with, the
Issuer that upon transfer of the Loans from Seller to the Company, it will
have good and valid title to the Loans free and clear of all liens,
mortgages, deeds of trust, pledges, security interests, charges, encumbrances
or other claims, and, upon transfer to the Issuer, the Issuer will receive
good, valid and marketable title to all of the Loans, free and clear of any
liens, mortgages, deeds of trust, pledges, security interests, charges,
encumbrances or other claims.
Section 3. Conveyance of Loans.
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The Seller, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the
Company, without recourse, all of the Seller's right, title and interest in
and to (a) the Loans, including the Related Documents and all interest and
principal [received or receivable] [due] on or with respect to the Loans
after the Cut-off Date [and all interest and principal payments on the Loans
received prior to the Cut-off Date in respect of installments of interest and
principal due thereafter,][but not including payments of interest and
principal [due and payable] [received or receivable] on the Loans on or
before the Cut-off Date,] and all other proceeds received in respect of such
Loans, (b) the Seller's rights under the Master Servicing Agreement, (c) the
Insurance Policies, (d) all cash, instruments or other property held or
required to be deposited in the Collection Account or the Payment Account,
(e) all Additional Balances and (f) all proceeds of the conversion, voluntary
or involuntary, of any of the foregoing into cash or other liquid assets,
including, without limitation, all Insurance Proceeds, Liquidation Proceeds
and condemnation awards. On or prior to the Closing Date, the Seller shall
deliver to the Company or, at the Company's direction, to the Trustee or
other designee of the Company, the Trustee Loan File for each Mortgage Loan.
Such delivery of the Trustee Loan Files shall be made against payment by the
Company of the purchase price, previously agreed to by the Seller, for the
Loans.
The Company, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the
Issuer, without recourse, all of the Company's right, title and interest in
and to (a) the Loans, including the Related Documents and all interest and
principal [received or receivable] on or with respect to the Loans after the
Cut-Off Date [and all interest and principal payments on the Loans received
prior to the Cut-off Date in respect of installments of interest and
principal due thereafter,] [but not including payments of interest and
principal [due and payable] [received or receivable] on the Loans on or
before the Cut-off Date,] and all other proceeds received in respect of such
Loans, (b) the Company's rights under the Master Servicing Agreement,
(c) the Insurance Policies, (d) all cash, instruments or other property held
or required to be deposited in the Collection Account or the Payment Account,
(e) all Additional Balances and (f) all proceeds of the conversion, voluntary
or involuntary, of any of the foregoing into cash or other liquid assets,
including, without limitation, all Insurance Proceeds, Liquidation Proceeds
and condemnation awards. On or prior to the Closing Date, the Company shall
deliver, or cause to be delivered, to the Indenture Trustee the Trustee Loan
Files for each Mortgage Loan. [Such delivery of the Trustee Loan Files shall
be made against delivery by (i) the Indenture Trustee of the Senior Bonds and
the Subordinated Bonds and (ii) the Issuer of the Investor Certificate, in
each case to or upon the order of the Company.]
Section 4. Intention of Parties.
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It is the express intent of the parties hereto that the conveyance
(i) of the Loans by the Seller to the Company and (ii) of the Loans by the
Company to the Issuer each be, and be construed as, an absolute sale thereof.
It is, further, not the intention of the parties that such conveyances be
deemed a pledge thereof. However, in the event that, notwithstanding the
intent of the parties, such assets are held to be the property of the
granting party, or if for any other reason this Agreement is held or deemed
to create a security interest in the Loans, then (i) this Agreement shall be
deemed to be a security agreement within the meaning of the Uniform
Commercial Code of the State of ________ and (ii) the conveyances provided
for in this Agreement shall be deemed to be an assignment and a grant (i) by
the Seller to the Company or (ii) by the Company to the Issuer of a security
interest in all of the assets transferred, whether now owned or hereafter
acquired.
The Seller, the Company and the Issuer shall, to the extent
consistent with this Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in
the Loans, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as
such throughout the term of this Agreement. The Seller and the Company shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned hereunder.
Section 5. Miscellaneous.
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(a) Amendments, Etc. No rescission, modification, amendment,
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supplement or change of this Agreement shall be valid or effective unless in
writing and signed by all of the parties to this Agreement.
(b) Binding Upon Successors, Etc. The provisions of this
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Agreement shall be binding upon and inure to the benefit of the parties to
this Agreement and their respective legal representatives, heirs, successors
or assigns.
(c) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(d) Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York.
(e) Headings. The headings of the several parts of this Agreement
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are inserted for convenience of reference and are not intended to be a part
of or affect the meaning or interpretation of this Agreement.
(f) Authorization. The Company, pursuant to Section 6.03 of the
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Trust Agreement, dated as of _______ __, 199_, between the Owner Trustee and
the Company, as Depositor, hereby authorizes and directs the Owner Trustee to
enter into this Agreement.
(g) Definitions. Capitalized terms not otherwise defined herein
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have the meanings ascribed to such terms in the Indenture dated as of
_________, 199_ between the Issuer and ___________________________ _______,
as owner trustee.
IN WITNESS WHEREOF, each party has caused this Loan Purchase Agreement
to be executed by its duly authorized officer or officers as of the day and
year first above written.
[ ]
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By:
Name:
Title:
INDYMAC ABS, INC.
By:
Name:
Title:
