Exhibit 4.2
SALES AGREEMENT
SALES AGREEMENT dated ______________, 200_, between Aegis Asset Backed
Securities Corporation, a Delaware corporation ("AEGIS"), and Aegis Mortgage
Corporation, an Oklahoma corporation ("AEGIS MORTGAGE").
RECITALS
1. Schedules IA, IB and IC attached hereto and made a part hereof
list three pools of one-to-four family, fully amortizing,
mortgage loans (collectively, the "Initial Mortgage Loans")
currently owned by Aegis Mortgage that Aegis Mortgage desires to
sell to Aegis.
2. Aegis desires to purchase the Initial Mortgage Loans and intends
immediately thereafter to transfer the Initial Mortgage Loans to
Aegis Asset Securities Trust 200_-_ (the "Trust") to be
established pursuant to the terms of a pooling and servicing
agreement (the "Pooling and Servicing Agreement") dated as of
____ __, 200__, among Aegis, _______________, as Master Servicer
(the "Master Servicer"), _______________, as Servicer (the
"Servicer"), and _______________, as Trustee (the "Trustee").
3. Pursuant to the terms of the Pooling and Servicing Agreement,
the Trust will issue securities evidencing 100% of the
beneficial ownership interest in the Trust to Aegis in
consideration of Aegis's deposit of the Initial Mortgage Loans
to the Trust.
4. Certificates to be issued by the Trust to Aegis will be
designated as the Mortgage Loan Asset Backed Certificates,
Series 200_-__, Class AF-___, Class AV-__, Class M-___, Class B
and Class R Certificates, and shall be collectively referred to
herein as the "Certificates."
5. The Class AF-___, Class AV-__, Class M-___, Class B and Class R
Certificates (collectively, the "Underwritten Certificates")
shall be sold pursuant to an underwriting agreement dated _____,
200__ (the "Underwriting Agreement"), among Aegis, Aegis
Mortgage and _____________________, _____________________,
_____________________ and ___________________ as underwriters
(the "Underwriters"). The public offering and sale of the
Underwritten Certificates are registered under the Securities
Act of 1933, as amended, and are being made pursuant to a
prospectus supplement dated _____, 200__ (the "Prospectus
Supplement"), to a prospectus dated ____________, 200__
(collectively, with the Prospectus Supplement, the
"Prospectus"). The balance of the Certificates will be retained
by Aegis or one of its affiliates or a portion thereof may be
sold to _____________________.
6. In addition, Aegis desires to purchase additional mortgage loans
(the "Subsequent Mortgage Loans") from Aegis Mortgage and to
transfer the Subsequent Mortgage Loans to the Trust during the
Funding Period (as defined in the Pooling and
Servicing Agreement) subsequent to the issuance of the
Certificates (each date of sale of Subsequent Mortgage Loans is
referred to herein as a "Subsequent Sales Date"). The sale of
Subsequent Mortgage Loans will be effected pursuant to
Subsequent Sales Agreements substantially in the form attached
as Schedule IV to the Pooling and Servicing Agreement, which
will incorporate certain of the provisions of this Sales
Agreement. The Initial Mortgage Loans and the Subsequent
Mortgage Loans are referred to collectively as the "Mortgage
Loans."
7. Capitalized terms used and not defined herein shall have the
meanings assigned to them in the Pooling and Servicing
Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises herein made and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as follows:
SECTION 1. SALE AND PURCHASE OF INITIAL MORTGAGE LOANS.
(a) Subject to the terms and conditions of this Agreement,
Aegis Mortgage agrees to sell, and Aegis agrees to purchase, on the date of the
issuance of the Certificates, which is expected to be on or about ________,
200__ (the "Closing Date"), the Mortgage Loans having an aggregate principal
balance as of ________, 200__ (the "Cut Off Date"), of approximately $________.
(b) Aegis Mortgage and Aegis have agreed upon which of the
mortgage loans owned by Aegis Mortgage are to be purchased by Aegis pursuant to
this Agreement, and Aegis Mortgage has prepared, or has provided information to
Aegis enabling Aegis to prepare, schedules attached hereto as Schedules IA, IB
and IC (collectively, "Schedule I"), setting forth information with respect to
the Initial Mortgage Loans to be purchased by Aegis as of the Closing Date.
Aegis Mortgage shall, with Aegis's consent, amend or modify, or provide
information to Aegis enabling Aegis to amend or modify Schedule I on or prior to
the Closing Date if necessary to reflect the actual Initial Mortgage Loans
transferred by Aegis Mortgage and accepted by Aegis on the Closing Date.
Schedule IA (which lists the Initial Mortgage Loans in Group I), Schedule IB
(which lists the Initial Mortgage Loans in Group II) and Schedule IC (which
lists the Initial Mortgage Loans in Group III), as so amended or modified, shall
conform to the requirements of Aegis as set forth in this Agreement and to the
definition of "Mortgage Loan Schedule" under the Pooling and Servicing
Agreement, and shall be used as the definitive Mortgage Loan Schedule attached
as an exhibit to the Pooling and Servicing Agreement.
(c) The sale of the Mortgage Loans shall be effected
pursuant to the Xxxx of Sale substantially in the form attached hereto as
Exhibit A (the "Xxxx of Sale").
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SECTION 2. PURCHASE PRICE OF INITIAL MORTGAGE LOANS.
(a) On the Closing Date, as full consideration for Aegis
Mortgage's sale of the Initial Mortgage Loans to Aegis, Aegis will deliver to
Aegis Mortgage cash in an amount that shall be set out in the Xxxx of Sale and
shall be equal to the amount received with respect to the sale of the
Underwritten Certificates. Aegis shall retain the balance of the Certificates
except for ________% of the Class R Certificates, and Aegis Mortgage shall make
a capital contribution to Aegis in an amount equal to the value thereof.
(b) Aegis or any assignee or transferee of Aegis (which may
include the Trustee (or its Custodian) acting on behalf of the
Certificateholders) shall be entitled to all Scheduled Payments due after the
Cut Off Date, and all curtailments or other principal prepayments received with
respect to the Initial Mortgage Loans paid by the Borrower after the Cut Off
Date, except that Aegis or any assignee or transferee of Aegis will not be
entitled to any Curtailments or other prepayments received on or after the Cut
Off Date but reflected in the aggregate Stated Principal Balance of the Initial
Mortgage Loans on the Cut Off Date. All Scheduled Payments due on or before the
Cut Off Date and collected on or after the Cut Off Date shall belong to Aegis
Mortgage.
(c) Pursuant to the Pooling and Servicing Agreement, Aegis
will transfer and assign all its right, title and interest in and to the Initial
Mortgage Loans to the Trustee (or its Custodian) for the benefit of the
Certificateholders in consideration of the issuance of the Certificates to
Aegis.
SECTION 3. TRANSFER OF THE MORTGAGE LOANS.
(a) MORTGAGE FILE. For purposes of this Agreement, the
"Mortgage File" will be as defined in the Pooling and Servicing Agreement.
(b) TRANSFER OF OWNERSHIP. Upon the sale of any Mortgage
Loans, the ownership of each Mortgage Loan Document with respect thereto shall
be vested in Aegis, and the ownership of all other records and documents with
respect thereto prepared by or which come into the possession of Aegis Mortgage
shall immediately vest in Aegis. Aegis Mortgage shall promptly deliver to the
Custodian (as defined below) or the Trustee, as appropriate, any documents that
come into its possession with respect to such Mortgage Loans following such
sale. Prior to such delivery, Aegis Mortgage shall hold any such documents for
the benefit of Aegis, its successors and assigns.
(c) DELIVERY OF MORTGAGE LOAN FILES. Not later than two
Business Days prior to the Closing Date (or a Subsequent Sales Date) Aegis
Mortgage shall deliver to _____________, as custodian (the "Custodian"), each of
the Mortgage Loan Documents required to be included in the Mortgage File. The
Mortgage Note for each such Mortgage Loan shall be endorsed to the Trustee or
Custodian or in blank, and the Security Instrument for each such Mortgage Loan
shall either name the Custodian as mortgagee or beneficiary, as appropriate, or
be assigned to the Trustee or Custodian or in blank. Each such endorsement and
assignment shall be substantially in the form set forth in the Custody
Agreement.
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Prior to the transfer and sale of any Mortgage Loans, the Mortgage Loan
Documents delivered to the Custodian shall be held by the Custodian for the
benefit of Aegis Mortgage and the possession by the Custodian of such Mortgage
Loan Documents will be at the will of Aegis Mortgage and will be in a custodial
capacity only. Following the transfer and sale of any Mortgage Loans from Aegis
Mortgage to Aegis in accordance with the terms and upon satisfaction of the
conditions of this Agreement, the Custodian will hold all Mortgage Loan
Documents delivered to it hereunder for the benefit of Aegis, as its agent and
bailee. The Custodian, who will also act as the Trustee, will act as a custodian
for the receipt and custody of all Mortgage Files, and, after the transfer of
any Mortgage Loans from Aegis to the Trust, the Custodian will hold all Mortgage
Loan Documents delivered to it hereunder for the benefit of the Trustee on
behalf of the Certificateholders.
(d) EXAMINATION OF MORTGAGE LOAN DOCUMENTS: ACCEPTANCE OF
MORTGAGE LOANS. Prior to the Closing Date (or a Subsequent Sales Date), Aegis
Mortgage shall either (i) deliver to Aegis or its designee in escrow, for
examination, the Mortgage Loan Documents pertaining to each Mortgage Loan then
being sold or (ii) make such Mortgage Loan Documents available to Aegis or its
designee for examination at Aegis Mortgage's offices or at such other place as
Aegis Mortgage shall specify. Aegis, the Custodian, or a designee of either
entity may review the Mortgage Loan Documents to verify that all documents
required to be included in each Mortgage File (as such term has been defined in
the Pooling and Servicing Agreement) are so included.
Prior to the Closing Date (or a Subsequent Sales Date), the Custodian
shall review the documents delivered pursuant to Section 3(c) hereof to
ascertain that, as to each Mortgage Loan listed on Schedule I, (i) all documents
required to be delivered by Aegis Mortgage pursuant to Section 3(c) have been
received, (ii) such documents appear regular on their face and relate to such
Mortgage Loan and (iii) the information on Schedule I accurately reflects the
information set forth in the corresponding Mortgage File, to the extent required
by Section 2.1 of the Pooling and Servicing Agreement. An additional review
shall be conducted by the Custodian or its designee prior to the first
anniversary of the Closing Date to determine that all Mortgage Loan Documents
required to be included in the Mortgage File are included therein. If at any
time Aegis or the Trustee (or its Custodian) discovers or receives notice that
any Mortgage Loan Document is missing or defective in any material respect with
respect to any Mortgage Loan, Aegis Mortgage shall correct or cure any such
omission or defect or, if such omission or defect materially impairs the value
of the Mortgage Loan, repurchase the defective Mortgage Loan or substitute for
such defective Mortgage Loan a Substitute Mortgage Loan in accordance with and
if permitted by the terms of Section 7 hereof. At the time of such repurchase or
substitution, the Custodian shall release documents in its possession relating
to such Mortgage Loan to Aegis Mortgage. The fact that Aegis, the Trustee or a
designee of either entity has conducted or has failed to conduct any partial or
complete examination of the Mortgage Loan Documents prior to the Closing Date
(or a Subsequent Sales Date) shall not affect the rights of Aegis (or any
assignee or successor thereof) to demand repurchase or other relief as provided
herein.
(e) RECORDATION OF ASSIGNMENTS OF SECURITY INSTRUMENT.
Subject to the sale of the Mortgage Loans by Aegis Mortgage to Aegis, Aegis
hereby authorizes and instructs Aegis Mortgage, and Aegis Mortgage hereby
agrees, with respect to each Mortgage Loan, to record all
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Assignments required to be contained in the Mortgage File pursuant to Section
2.1 of the Pooling and Servicing Agreement in the public recording office for
the jurisdiction in which the related Mortgaged Property is located if not
previously recorded, as evidenced in the manner provided in Section (30) of
Exhibit B hereto. All recording fees relating to the recordation of the
Assignments as described above shall be paid by Aegis Mortgage. If the Trustee
does not receive, within the time specified in the Pooling and Servicing
Agreement, evidence satisfactory to it of such recording with respect to any
Mortgage Loan or, in the alternative, an Opinion of Counsel acceptable to Aegis
and the Rating Agencies, to the effect that such recording is not required to
protect the right, title and interest of the Trustee in any such Mortgage Loan,
Aegis Mortgage shall, in cooperation with the Trustee, correct or cure any such
omission or repurchase the affected Mortgage Loan within 90 days of such demand
which demand is made within the time specified in the Pooling and Servicing
Agreement (including any such extensions provided for therein).
SECTION 4. REPRESENTATIONS AND WARRANTIES OF AEGIS MORTGAGE. Aegis
Mortgage hereby represents and warrants to Aegis as follows:
(a) Aegis Mortgage has been duly incorporated and is validly
existing and in good standing under the laws of the State of Oklahoma and is
duly qualified to do business and in good standing under the laws of each
jurisdiction that requires such qualification wherein it owns or leases any
material properties (except where the failure so to qualify would not have a
material adverse effect on it). Aegis Mortgage has the full corporate power and
authority to own its properties and conduct its business as currently conducted.
(b) Aegis Mortgage has the full power, authority (corporate
and other) and legal right to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of, this
Agreement.
(c) This Agreement has been duly and validly authorized,
executed and delivered by Aegis Mortgage and (assuming the due authorization,
execution and delivery hereof by Aegis) constitutes the valid, legal and binding
agreement of Aegis Mortgage, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, receivership, conservatorship, reorganization,
moratorium and other laws affecting creditors' rights generally and to general
principles of equity, regardless of whether such enforcement is sought in a
proceeding in equity or at law and except that the provisions of indemnity
contained herein may be unenforceable as against public policy.
(d) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
is required, under federal laws or the laws of the State of Oklahoma, for the
execution, delivery and performance of or compliance by Aegis Mortgage with this
Agreement or the consummation by Aegis Mortgage of the transactions contemplated
hereby.
(e) Neither the execution and delivery of this Agreement by
Aegis Mortgage, nor the consummation by Aegis Mortgage of the transactions
herein contemplated, nor compliance with the provisions hereof by Aegis
Mortgage, will (i) conflict with or result in a
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breach of, or constitute a default under, any of the provisions of Aegis
Mortgage's charter or by-laws, or any law, governmental rule or regulation, or
any judgment, decree or order binding on Aegis Mortgage or any of its
properties, or any of the provisions of any indenture, mortgage, deed of trust,
contract or other instrument to which Aegis Mortgage is a party or by which it
is bound or (ii) result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties.
(f) There is no litigation pending or, to Aegis Mortgage's
knowledge, threatened against Aegis Mortgage that would reasonably be expected
to affect adversely the execution, delivery, performance or enforceability of
this Agreement.
(g) Each of the representations and warranties set forth in
Exhibit B hereto is true and correct with respect to the Mortgage Loans.
In addition, Aegis Mortgage represents and warrants that as of
the Closing Date, it has no reason to believe that any borrower will default
under the Group I, Group II and Group III Mortgage Loans. This representation
and warranty will be deemed to be breached only if, as to any Mortgage Loan:
(i) the Mortgage Loan had an original Loan to Value
Ratio as of the Cut Off Date in excess of 80%;
(ii) the Mortgage Loan is in default and is
liquidated within six months after the Closing Date;
(iii) a Realized Loss is incurred on the Mortgage
Loan; and
(iv) prior to liquidation, Realized Losses had been
incurred on the Mortgage Loans in an amount sufficient to reduce the aggregate
Certificate Principal Amount of the Subordinate Certificates to zero.
(h) The statistical information in the Prospectus Supplement
in Appendix A and under the headings "_____________________," "--
_____________________," "-- _____________________" and "-- ____________________"
is true and correct.
(i) Aegis Mortgage has originated and identified or
purchased and identified additional mortgage loans not on the Mortgage Loan
Schedule as of the Closing Date to be sold to Aegis and to be included as part
of the Group I Mortgage Loans (the "Identified Group I Mortgage Loans"). As of
the Closing Date, the Identified Group I Mortgage Loans had aggregate Stated
Principal Balances which when substracted from the Original Pre-Funded Amount
allocable to Group I would cause such allocable amount to be less than 25% of
the aggregate Certificate Principal Balances of the Group I Certificates as of
the Closing Date.
(j) Aegis Mortgage has originated and identified or
purchased and identified additional mortgage loans not on the Mortgage Loan
Schedule as of the Closing Date to be sold to Aegis and to be included as part
of the Group II Mortgage Loans (the "Identified Group II Mortgage Loans"). As of
the Closing Date, the Identified Group II Mortgage Loans had
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aggregate Stated Principal Balances which when substracted from the Original
Pre-Funded Amount allocable to Group II would cause such allocable amount to be
less than 25% of the aggregate Certificate Principal Balances of the Group II
Certificates as of the Closing Date.
(k) Aegis Mortgage has originated and identified or
purchased and identified additional mortgage loans not on the Mortgage Loan
Schedule as of the Closing Date to be sold to Aegis and to be included as part
of the Group III Mortgage Loans (the "Identified Group III Mortgage Loans"). As
of the Closing Date, the Identified Group III Mortgage Loans had aggregate
Stated Principal Balances which when substracted from the Original Pre-Funded
Amount allocable to Group III would cause such allocable amount to be less than
25% of the aggregate Certificate Principal Balances of the Group III
Certificates as of the Closing Date.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF AEGIS. Aegis hereby
represents and warrants to Seller as follows:
(a) Aegis is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware.
(b) Aegis has the full power, authority (corporate and
other) and legal right to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of, this
Agreement.
(c) This Agreement has been duly and validly authorized,
executed and delivered by Aegis and (assuming the due authorization, execution
and delivery thereof by Aegis Mortgage) constitutes the valid, legal and binding
agreement of Aegis, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting creditors' rights generally, and to general principles of
equity, regardless of whether such enforcement is sought in a proceeding in
equity or at law.
(d) No consent, approval, authorization or order of or
registration of 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 of or compliance by Aegis with this
Agreement or the consummation by Aegis of any other transaction contemplated
hereby, except such as may be required and have been obtained pursuant to state
"blue sky" laws.
(e) Neither the execution and delivery of this Agreement by
Aegis, nor the consummation by Aegis of the transactions hereby contemplated,
nor compliance with the provisions hereof by Aegis, will (i) conflict with or
result in a breach of, or constitute a default under, any of the provisions of
Aegis's articles of incorporation or by-laws, or any law, governmental rule or
regulation, or any judgment, decree or order binding on Aegis or any of its
properties, or any of the provisions of any contract or other instrument to
which Aegis is a party or by which it is bound or (ii) result in the creation or
imposition of any lien, charge or encumbrance on any of its properties.
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(f) There is no litigation pending or, to Aegis's knowledge,
threatened against Aegis that would reasonably be expected to affect adversely
the execution, delivery, performance or enforceability of this Agreement.
SECTION 6. COVENANTS OF AEGIS MORTGAGE. Aegis Mortgage hereby covenants
with Aegis as follows:
(a) On or before the Closing Date, Aegis Mortgage shall take
all steps required of it to effectuate the transfer of the Mortgage Loans to the
Trustee, as transferee of Aegis, free and clear of any lien, charge, or
encumbrance.
(b) Aegis Mortgage shall use its best efforts to make
available to counsel for Aegis in executed form each of the documents listed in
Section 8(b) below no later than two Business Days before the Closing Date, it
being understood that such documents are to be released and delivered only on
the closing of the transaction contemplated hereby and the sale of the
Certificates.
(c) Aegis Mortgage shall deliver or cause to be delivered to
Aegis (i) an Opinion of Counsel as to various corporate matters substantially in
a form satisfactory to Aegis and (ii) such other Opinions of Counsel, if any, as
are required by either Rating Agency for the issuance of the ratings on the
Certificates specified in Section 8(e) below.
(d) For federal income tax purposes, Aegis Mortgage will
treat the transfer of the Mortgage Loans as a sale.
(e) As of the Closing Date, each mortgage loan that may be
transferred pursuant to a Subsequent Sales Agreement will have been originated
or purchased and identified by Aegis Mortgage.
SECTION 7. CURE, REPURCHASE AND SUBSTITUTION OBLIGATIONS.
(a) Each of the representations and warranties of Aegis
Mortgage contained herein shall survive the purchase by Aegis of any of the
Mortgage Loans and shall continue in full force and effect, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes and notwithstanding
subsequent termination of this Agreement or the Pooling and Servicing Agreement.
The representations and warranties shall not be impaired by any review and
examination of Mortgage Loan Documents or other documents evidencing or relating
to the Mortgage Loans or any failure on the part of Aegis to review or examine
such documents and shall inure to the benefit of the Trustee (as the assignee of
Aegis) for the benefit of the Certificateholders, the Master Servicer and the
Custodian. With respect to the representations and warranties contained herein,
which are made to the best of Aegis Mortgage's knowledge or as to which Aegis
Mortgage has no knowledge, if it is discovered by Aegis Mortgage, Aegis, the
Custodian or the Trustee that the substance of any such representation and
warranty is inaccurate and such inaccuracy materially and adversely affects the
value of the related Mortgage Loan, then notwithstanding Aegis Mortgage's
knowledge or lack of knowledge with respect to the
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inaccuracy of such representation and warranty at the time it was made, Aegis
Mortgage shall take the action described in the following paragraph in respect
of such Mortgage Loan.
(b) Upon discovery or receipt of notice by Aegis Mortgage,
Aegis, the Trustee, the Master Servicer or the Custodian of any missing or
materially defective document in any Mortgage File, or a breach of any of Aegis
Mortgage's representations and warranties set forth in Section 4 hereof with
respect to any Mortgage Loan, or a default in the performance of any of the
covenants or other obligations of Aegis Mortgage under this Agreement, which in
any of the foregoing cases materially and adversely affects the value of any
Mortgage Loan or the interest therein of Aegis, the Trustee, the Custodian or
the Master Servicer or causes a Qualification Defect (as defined below), the
party discovering or receiving notice of such missing or materially defective
document, breach, or default shall give prompt written notice to the others. A
"Qualification Defect" with respect to a Mortgage Loan shall mean (i) a
defective document in the Mortgage File, (ii) the absence of a document in the
Mortgage File, or (iii) the breach of any representation, warranty or covenant
with respect to a Mortgage Loan made by Aegis Mortgage, the Servicer or Aegis,
but only if the affected Mortgage Loan would cease to qualify as a "qualified
mortgage" for purposes of the REMIC Provisions. Upon its discovery or its
receipt of notice of any such missing or materially defective document, breach
or default (the "Defect Discovery Date"), Aegis Mortgage shall either (a),
within 90 days of discovery or receipt of such notice, provide the Custodian
with such missing documents or cure such defect, breach or default, in all
material respects or (b), within 90 days of such discovery or receipt of such
notice, either repurchase the affected Mortgage Loan at the Purchase Price
therefor or cause the removal of such Mortgage Loan from the Trust Fund (in
which case it shall become a Deleted Mortgage Loan) and substitute therefor one
or more Substitute Mortgage Loans as defined in the Pooling and Servicing
Agreement; PROVIDED, HOWEVER, that any such substitution shall occur within two
years of the Closing Date. Notwithstanding the foregoing, if such defect,
breach, or default results in a Qualification Defect, or if a Qualification
Defect otherwise exists with respect to a Mortgage Loan, Aegis Mortgage shall
cure such defect or repurchase the affected Mortgage Loan within 90 days of the
Defect Discovery Date. The Trustee or its designee shall amend the Mortgage Loan
Schedule to reflect the withdrawal of any Mortgage Loan from the terms of this
Agreement and the Pooling and Servicing Agreement and the addition, if any, of a
Substitute Mortgage Loan. In order to effect a substitution pursuant to this
Section, Aegis Mortgage will deliver (i) to the Custodian each of the Mortgage
Loan Documents required to be contained in the Mortgage File with respect to the
Substitute Mortgage Loan(s) and (ii) if the aggregate Stated Principal Balance
on the date of substitution of the Substitute Mortgage Loan(s) is less than the
aggregate Stated Principal Balance of the Deleted Mortgage Loan(s) (after
application of Scheduled Payment's due in the month of substitution), to the
Master Servicer cash in an amount equal to such Substitution Adjustment Amount.
Any repurchase pursuant to this Section shall be accomplished by the delivery
into the Master Servicer Custodial Account, on (or determined as of) the last
day of the calendar month in which such repurchase is made, of the Purchase
Price for the Mortgage Loans to be repurchased.
(c) The obligations of Aegis Mortgage set forth in this
Agreement to cure or to repurchase a materially defective Mortgage Loan or to
substitute a Substitute Mortgage Loan for such Mortgage Loan and to indemnify
Aegis as provided in this Agreement constitute the
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sole remedies of Aegis and the Trustee against Aegis Mortgage respecting a
defective document in any Mortgage File or Servicer Mortgage Loan File or a
breach of representations and warranties of Aegis Mortgage set forth in Section
4 hereof.
(d) As soon as practicable following the conversion of an
ARM Loan to a fixed rate Mortgage Loan, Aegis Mortgage shall purchase such
Mortgage Loan from the Trust Fund for a purchase price equal to 100% of the
Stated Principal Balance of such Mortgage Loan plus accrued and unpaid interest
thereon at the applicable Net Rate in effect immediately before such ARM Loan
was converted.
SECTION 8. CONDITIONS TO OBLIGATION OF AEGIS. The obligation of Aegis
hereunder to purchase the Mortgage Loans is subject to:
(a) The representations and warranties of Aegis Mortgage
under this Agreement shall be accurate in all material respects as of the
Closing Date, and no event shall have occurred which, with notice or the passage
of time, would constitute a default under this Agreement;
(b) Aegis shall have received, or Aegis's attorneys shall
have received, in escrow (to be released from escrow at the time of closing),
the following documents in such forms as are agreed upon and acceptable to
Aegis, duly executed by all signatories other than Aegis as required pursuant to
the respective terms thereof:
(i) A Xxxx of Sale substantially in the form of
Exhibit A hereto;
(ii) An Opinion of Counsel for Aegis Mortgage as to
various corporate matters and such other Opinions of Counsel as are necessary in
order to obtain the ratings set forth in Section 8(e) below, each of which shall
be acceptable to Aegis, its counsel, the Underwriters, their counsel and the
Rating Agencies referred to below;
(iii) The Pooling and Servicing Agreement referred to
in the Recitals;
(iv) A letter from __________________________ dated
the date hereof containing in substance the information required by Section 6(d)
of the Standard Provisions to the Underwriting Agreement; and
(v) Aegis Mortgage shall have delivered to the
Trustee or the Custodian, in escrow, all documents (including, without
limitation, the Security Instrument assigned by Aegis Mortgage in blank or to
the Trustee or Custodian and the Mortgage Note endorsed in blank or to the
Trustee or Custodian with respect to each Mortgage Loan) required to be
delivered hereunder and shall have released its interest therein to Aegis or its
designee;
(c) All other terms and conditions of this Agreement shall
have been complied with;
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(d) The receipt of written confirmation from each of
__________________________ and __________________________, as to the assignment
of the ratings shown in the following table:
CLASS _______ _______
AF-__ _____ _____
AV-__ _____ _____
M-__ _____ _____
M-__ _____ _____
B _____ _____
R _____ _____
SECTION 9. FEES AND DEPOSITS. On the Closing Date, Aegis Mortgage will
pay to Aegis an "Issuance Fee," which fee is equal to the amount of (i) the fees
and expenses of attorneys, accountants (but not in connection with an
accountant's review of "Computational Materials," as that term is defined in the
Underwriting Agreement), printers, the Custodian, the Master Servicer and the
Trustee in connection with the issuance of the Certificates, (ii) the fees
payable to the Securities and Exchange Commission relative to the Underwritten
Certificates and (iii) the fees payable to each Rating Agency for its initial
rating of the Underwritten Certificates. In addition, Aegis Mortgage shall pay
(i) any fees related to the Trustee's, Master Servicer's or Custodian's receipt
and review of the Mortgage Files with respect to the Mortgage Loans, (ii) the
fees and expenses of Aegis's attorneys and accountants and (iii) any required
reserve fund deposits and expenses related to recordation of assignments of
Aegis Mortgage's interest in the collateral to the Trustee or Custodian.
SECTION 10. SERVICING.
(a) The Mortgage Loans will be serviced by the Servicer
under the Pooling and Servicing Agreement. Aegis Mortgage hereby assigns, sells,
transfers and conveys to Aegis all its rights under the Pooling and Servicing
Agreement with respect to the servicing of the Mortgage Loans.
(b) In consideration of the services rendered under its
Pooling and Servicing Agreement, the Servicer shall be entitled to a monthly
Servicing Fee for each Mortgage Loan computed based upon the Stated Principal
Balance of the Mortgage Loan as of the opening of business on the first day of
the Due Period preceding the Servicer Remittance Date (without taking into
account any payment of principal due on such Due Date). The Servicing Fee for
each Mortgage Loan shall be payable solely from the interest portion of each
Scheduled Payment paid by the Borrower or other payment of interest paid with
respect to the Mortgage Loan, whether from the proceeds of foreclosure or any
judgment, writ of attachment or levy against the Borrower or its assets, or from
funds paid in connection with any prepayment in full or from Insurance Proceeds
or Liquidation Proceeds.
The Servicer shall also be entitled to retain in addition to the
Servicing Fee any late charges, conversion fees, penalty interest or assumption
fees paid by the Borrower, which amounts are not required to be deposited to its
Custodial P&I Accounts.
11
SECTION 11. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST. The sale and
delivery on the Closing Date of the Mortgage Loans described in the Mortgage
Loan Schedule is mandatory, it being specifically understood and agreed that
each Mortgage Loan is unique and identifiable on the date hereof and that an
award of money damages would be insufficient to compensate Aegis for the losses
and damages incurred by Aegis in the event of Aegis Mortgage's failure to
deliver the Mortgage Loans on or before the Closing Date. Aegis Mortgage hereby
grants to the Trustee for the benefit of the Certificateholders, a lien on and a
continuing first priority security interest in each Mortgage Loan and each
document and instrument evidencing each such Mortgage Loan to secure the
performance by Aegis Mortgage of its obligation to deliver such Mortgage Loans
hereunder. Subject to Section 7(c) hereof, all rights and remedies of Aegis
under this Agreement are distinct from, and cumulative with, any other rights or
remedies under this Agreement or afforded by law or equity and all such rights
and remedies may be exercised concurrently, independently or successively.
SECTION 12. INDEMNIFICATION.
(a) If Aegis Mortgage breaches its representations,
warranties, covenants or obligations set forth herein, Aegis Mortgage shall
indemnify and hold harmless Aegis, the Master Servicer, the Custodian, and the
Trustee (each, an "Indemnified Party") from and against any actual loss,
damages, penalties, fines, forfeiture, 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, such breach, except to
the extent such breach is the result of the Indemnified Party's failure to
fulfill its obligations under this Agreement. Promptly after receipt by the
Indemnified Party of notice of the commencement of any such action, the
Indemnified Party will, if a claim in respect thereof is to be made against
Aegis Mortgage under this Section, notify Aegis Mortgage in writing of the
commencement thereof, but the omission so to notify Aegis Mortgage will not
relieve Aegis Mortgage from any liability hereunder unless such omission
materially prejudices the rights and positions of Aegis Mortgage. In case any
such action is brought against the Indemnified Party and it notifies Aegis
Mortgage of the commencement thereof, Aegis Mortgage will be entitled to
participate therein, and to assume the defense thereof, with counsel
satisfactory to the Indemnified Party, and after notice from Aegis Mortgage to
the Indemnified Party of its election so to assume the defense thereof, Aegis
Mortgage will not be liable to the Indemnified Party under this Section for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of such
investigation. Aegis Mortgage shall pay to Aegis in addition to any amounts that
may be due hereunder, the Issuance Fee if any of the following results in the
inability of the parties hereto to consummate the transactions contemplated
herein: (A) failure to obtain any consent or authorization, if any, required
under federal or Virginia law for Aegis Mortgage to perform the transactions
contemplated herein; or (B) failure to satisfy any of the conditions set forth
in Section 8(a), (b), (c) or (d) hereof.
(b) Aegis Mortgage shall indemnify the Trustee, the Master
Servicer and the Custodian and hold the Trustee, the Master Servicer, and the
Custodian harmless from and against all claims, liabilities, costs and expenses
(including, without limitation, reasonable attorney's fees) arising out of, or
assessed against any of them in connection with, any ERISA
12
violation alleged against the Trustee, the Master Servicer, and the Custodian
relating to the Certificates.
13
SECTION 13. NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered to or mailed by registered mail, postage prepaid, or transmitted by
telecopier, telex or telegraph and confirmed by a similar mailed writing, as
follows:
(a) If to Aegis:
00000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: President
with a copy, given in the manner prescribed above, to:
Xxxx Xxxxxx, Esquire
XxXxx Xxxxxx LLP
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
(b) If to Aegis Mortgage:
00000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: President
Any party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions of
this Section for the giving of notice.
SECTION 14. SEVERABILITY OF PROVISIONS. Any part, provision,
representation or warranty of this Agreement which is prohibited or which is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation or warranty of this Agreement that
is prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
14
YORK, NOTWITHSTANDING ANY NEW YORK OR OTHER CONFLICT OF LAWS PROVISIONS TO THE
CONTRARY.
SECTION 16. AGREEMENT OF AEGIS MORTGAGE. Aegis Mortgage agrees to
execute and deliver such instruments and take such actions as Aegis or the
Trustee may, from time to time, reasonably request in order to effectuate the
purpose and to carry out the terms of this Agreement including, without
limitation, the execution and filing of any UCC financing statements to evidence
the interests of Aegis and any of its transferees in the Mortgage Loans and
other assets assigned to the Trust.
SECTION 17. SURVIVAL. Aegis Mortgage agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by Aegis,
notwithstanding any investigation heretofore or hereafter made by Aegis or on
Aegis's behalf, and that the representations, warranties and agreements made by
Aegis Mortgage herein or in any such certificate or other instruments shall
survive the delivery of and payment for the Mortgage Loans.
SECTION 18. ASSIGNMENT. Aegis Mortgage hereby acknowledges that Aegis
will assign all its rights hereunder (except Aegis's rights set forth in Section
9 and 12) to the Trustee. Aegis Mortgage agrees that, upon the execution of the
Pooling and Servicing Agreement, the Trustee will have all such rights and
remedies provided to Aegis hereunder (except those rights of Aegis set forth in
Sections 9 and 12) and this Agreement will inure to the benefit of the Trustee.
The Master Servicer, the Custodian, the Paying Agent and the Certificate
Registrar for purposes of Section 12, and the Trustee for all purposes, shall
constitute not only an assignee of Aegis's rights in accordance with this
Section but also intended third party beneficiaries of this Agreement.
SECTION 19. MISCELLANEOUS.
(a) This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument. This
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective successors and assigns.
(b) Any person into which Aegis Mortgage may be merged or
consolidated or any person resulting from a merger or consolidation involving
Aegis Mortgage or any person succeeding to the business of Aegis Mortgage shall
be considered the successor of Aegis Mortgage hereunder, without the further act
or consent of either party. Except as provided in Section 17 and the preceding
sentence, this Agreement may not be assigned, pledged or hypothecated by any
party without the written consent of each other party to this Agreement.
(c) This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought.
15
The headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
(d) Aegis shall immediately effect the redelivery of the
Mortgage Loans and all Mortgage Loan Documents and any security interest created
by Section 11 hereof shall be deemed to have been released if, on the Closing
Date, each of the conditions set forth in Section 8 hereof shall not have been
satisfied or waived.
(e) It is the express intent of the parties hereto that the
conveyances of the Mortgage Loans by Aegis Mortgage to Aegis as contemplated by
this Agreement (and the Subsequent Sales Agreements) be construed as a sale of
the Mortgage Loans by Aegis Mortgage to Aegis. It is, further, not the intention
of the parties that such conveyances be deemed a pledge of the Mortgage Loans by
Aegis Mortgage to Aegis or any assignee of Aegis, including, but not limited to,
the Trustee, to secure a debt or other obligation of Aegis Mortgage.
Nevertheless, if, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Aegis Mortgage then (i) this Agreement shall also be
deemed to be a security agreement within the meaning of Article 9 of the
___________ Uniform Commercial Code and the Uniform Commercial Code of any other
state as necessary; (ii) the conveyances provided for herein shall be deemed to
be a grant by Aegis Mortgage to Aegis of a security interest in all Aegis
Mortgage's right, title and interest in and to the Mortgage Loans and all
amounts payable by the holder of the Mortgage Loans in accordance with the terms
thereof and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities, or other property, including
without limitation, all amounts from time to time held or invested in the Master
Servicer Custodial Account, the Collection Account, the Distribution Account or
any other account established under the Pooling and Servicing Agreement, whether
in the form of cash, instruments, securities or other property; (iii) the
conveyances provided for herein (and in the Subsequent Sales Agreements) shall
be deemed to be a grant by Aegis Mortgage to Aegis of a security interest in all
Aegis Mortgage's right, title and interest in and to the Pooling and Servicing
Agreements with respect to the Mortgage Loans and all insurance policies
relating to the Mortgage Loans; (iv) the possession by Aegis or its agents of
Mortgage Notes and such other items of property as constitute instruments,
money, negotiable documents or tangible chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section _________ of the _________ Uniform Commercial Code;
and (v) notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of Aegis for the purpose of
perfecting such security interest under applicable law. Any assignment of the
interest of Aegis pursuant to any provision hereof shall also be deemed to be an
assignment of any security interest created hereby. Aegis Mortgage and Aegis
shall, to the extent consistent with this Agreement (and the Subsequent Sales
Agreements), take such actions as may be necessary to ensure that, if this
Agreement (and the Subsequent Sales Agreements) is deemed to create a security
interest in the Mortgage Loans, such security interest will be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement and the Pooling and Servicing
Agreement.
16
(f) Aegis Mortgage shall not file any involuntary petition
or otherwise institute any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law against Aegis so long as any debt instrument issued by
Aegis is outstanding and for one year and one day thereafter.
SECTION 20. REQUEST FOR OPINIONS. Aegis Mortgage and Aegis hereby
request and authorize XxXxx Xxxxxx LLP, as their counsel in this transaction, to
issue on behalf of Aegis Mortgage and Aegis such legal opinions to the Master
Servicer, the Trustee, the Underwriters and the Rating Agencies as may be (i)
required by any and all documents, certificates or agreements executed in
connection with this Sales Agreement or (ii) requested by the Master Servicer,
the Trustee, the Underwriters or the Rating Agencies, or their respective
counsel.
17
IN WITNESS WHEREOF, Aegis Mortgage and Aegis have caused this Sales
Agreement to be executed and delivered by their respective officers thereunto
duly authorized as of the date first above written.
AEGIS ASSET BACKED SECURITIES CORPORATION
By:
------------------------------------
Name:
Title:
AEGIS MORTGAGE CORPORATION
By:
------------------------------------
Name:
Title:
SCHEDULE IA
MORTGAGE LOANS IN POOL ONE
(SEE SCHEDULE IA TO POOLING AND SERVICING AGREEMENT)
SCHEDULE IB
MORTGAGE LOANS IN POOL TWO
(SEE SCHEDULE IB TO POOLING AND SERVICING AGREEMENT)
SCHEDULE IC
MORTGAGE LOANS IN POOL THREE
(SEE SCHEDULE IC TO POOLING AND SERVICING AGREEMENT)
EXHIBIT A TO THE SALES AGREEMENT
XXXX OF SALE
------------
XXXX OF SALE made on _________, 200__, by Aegis Mortgage Corporation, an
Oklahoma corporation ("Aegis Mortgage"), to Aegis Asset Backed Securities
Corporation, a Delaware corporation ("Aegis").
WHEREAS, Aegis Mortgage and Aegis are parties to a sales agreement dated
_________, 200__ (the "Sales Agreement"), with respect to the sale by Aegis
Mortgage and purchase by Aegis of mortgage loans (the "Initial Mortgage Loans");
WHEREAS, Aegis intends to transfer the Initial Mortgage Loans and
certain other assets to __________________, as trustee (the "Trustee"), for
__________________ Trust 200_-__ (the "Trust") established pursuant to the
Pooling and Servicing Agreement dated as of _________, 200__ (the "Pooling and
Servicing Agreement"), among Aegis, ___________, as master servicer (the "Master
Servicer"), _____________________, as servicer (the "Servicer"), and the
Trustee.
NOW THEREFORE, Aegis Mortgage, for and in consideration of the purchase
price set forth in the Sales Agreement, and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged, does hereby
bargain, sell, convey, assign and transfer to Aegis, without recourse, free and
clear of any liens, claims or other encumbrances, all its right, title and
interest in and to each of the Initial Mortgage Loans identified on Schedules
IA, IB and IC to the Sales Agreement, together with the Mortgage Loan Documents
and other documents maintained as part of the related Mortgage Files and
Servicer Mortgage Loan Files and all payments thereon and proceeds of the
conversion, voluntary or involuntary of the foregoing.
Aegis Mortgage hereby acknowledges receipt from Aegis of cash in the
amount of $[[ ]], which amount constitutes the purchase price for the Initial
Mortgage Loans as set forth in Section 2(a) of the Sales Agreement.
Nothing in this Xxxx of Sale shall be construed to be a modification of,
or limitation on, any provision of the Sales Agreement, including the
representations, warranties and agreements set forth therein except that Aegis
Mortgage, as of the date hereof, makes the following additional representations
and warranties to Aegis concerning the Initial Mortgage Loans.
(a) All the representations and warranties made by Aegis Mortgage in
the Sales Agreement are true and correct in all material respects as of the date
hereof (subject, in the case of Schedule I delivered pursuant to the Sales
Agreement, to such amendments thereto as were duly made on or before the date
hereof).
(b) Since the date of the Sales Agreement, no event has occurred
which, with notice or the passage of time, would constitute a default under the
Sales Agreement, and there has been no material adverse change or development
involving a prospective
A-1
material adverse change in the business operations, financial condition,
properties or assets of Aegis Mortgage.
Unless otherwise defined herein, capitalized terms used in this Xxxx of
Sale shall have the meanings assigned to them in the Sales Agreement, or if not
assigned in the Sales Agreement, the Pooling and Servicing Agreement.
A-2
IN WITNESS WHEREOF, Aegis Mortgage has caused this Xxxx of Sale to be
executed and delivered by its officer thereunto duly authorized as of the date
above written.
AEGIS MORTGAGE CORPORATION
By:
------------------------------------
Name:
Title:
Aegis hereby acknowledges receipt from Aegis Mortgage of the Mortgage
Loans identified on Schedules IA, IB and IC to the Sales Agreement, subject to
its right of inspection set forth in Section 3 of the Sales Agreement, and in
payment of the Issuance Fee referred to in Section 9 of the Sales Agreement.
AEGIS ASSET BACKED SECURITIES CORPORATION
By:
------------------------------------
Name:
Title:
A-3
EXHIBIT B TO THE SALES AGREEMENT
REPRESENTATIONS AND WARRANTIES OF AEGIS MORTGAGE
CORPORATION
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings assigned to them in the Sales Agreement, or if not assigned in
the Sales Agreement, the Pooling and Servicing Agreement.
Aegis Mortgage represents and warrants with respect to the Mortgage
Loans being conveyed by it to Aegis (for purposes of this Exhibit, the "Mortgage
Loans") as follows:
(1) Aegis Mortgage has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans to Aegis.
(2) There is no litigation pending or, to Aegis Mortgage's
knowledge, threatened against Aegis Mortgage that would reasonably be
expected (i) to affect adversely the transfer of the Mortgage Loans, the
issuance of the Certificates or the execution, delivery, performance or
enforceability of this Agreement or (ii) to have a material adverse
effect on the financial condition of Aegis Mortgage.
(3) With respect to each Mortgage Loan, Aegis Mortgage has
not acted (i) to modify the Mortgage Loan in any material respect, (ii)
to satisfy, cancel or subordinate the Mortgage Loan in whole or in part,
(iii) to release the related Mortgaged Property in whole or in part from
the lien of the related Mortgage or (iv) to execute any instrument of
release, cancellation, modification or satisfaction of the Mortgage
Loan, except to the extent reflected in the Loan File.
(4) Aegis Mortgage has not assigned any interest or
participation in the Mortgage Loans other than to Aegis (or, if any such
interest or participation has been assigned, it will be released upon
conveyance to Aegis). On the date of conveyance, Aegis Mortgage will be
the sole owner of, and will have good and marketable title to, the
Mortgage Loans, subject to no prior lien, mortgage, security interest,
pledge, charge or other encumbrance, except any lien to be released
concurrently with the purchase by Aegis of the Mortgage Loans.
(5) With respect to each Mortgage Loan, Aegis Mortgage is in
possession of each of the Mortgage Loan Documents required to be
included in the Mortgage File and the Servicer Mortgage Loan File,
except for such documents as have been delivered to Aegis (or its
designee) or the Servicer.
(6) The transfer, assignment and conveyance of the Mortgage
Notes and the Security Instruments by Aegis Mortgage pursuant to this
Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction.
B-1
(7) Each of the Mortgage Loans was underwritten in
accordance with the standards described in the Prospectus Supplement.
(8) The full principal amount of the Mortgage Loans has been
advanced to the Borrowers or advanced according to the direction of the
Borrowers. The Borrowers have no option under the Security Instruments
to borrow additional funds secured by the Security Instruments. The
Stated Principal Balances of the Mortgage Loans are as represented by
Aegis Mortgage to Aegis and are fully secured by the Security
Instruments.
(9) All Mortgage Loan documentation, Mortgage Loan
submission documentation and purchase documentation that have been
submitted are, to the best of Aegis Mortgage's knowledge, complete and
accurate and have been completed, executed and delivered in the form and
manner as specified in Aegis Mortgage's underwriting guidelines in
effect as of the date hereof. Each Mortgage Note delivered to Aegis or
its custodian is the original Mortgage Note and is the only Mortgage
Note evidencing the related Mortgage Loan that has been manually signed
by the Borrower except in those instances where a Lost Note Affidavit
has been delivered to Aegis or its custodian. As of the date hereof,
Aegis Mortgage has no knowledge of any default, breach, violation or
event of acceleration existing under any of the Mortgage Loan Documents
transferred to Aegis or any event that with notice and expiration of any
grace or cure period would result in a default, breach, violation or
event of acceleration. Aegis Mortgage has not waived any event of
default or breach, violation or event of acceleration.
(10) All improvements located on each Mortgaged Property lie
within the boundary lines of the related Mortgaged Property. There are
no violations of applicable zoning laws or regulations.
(11) Each ARM Loan conforms, if applicable, to its stated
Initial Note Rate, Index, Gross Margin, Interest Rate Change Dates,
Index Value Dates, Payment Change Dates, Maximum Lifetime Note Rate,
Periodic Rate Cap, Periodic Payment Cap, first Interest Rate Change
Date, Initial Periodic Rate Cap, Initial Periodic Payment Cap, any
pre-payment penalty, Minimum Gross Margin, and Minimum Lifetime Note
Rate. Each ARM Loan has been serviced pursuant to prudent servicing
standards and Xxxxxx Xxx or FHLMC standards. Installments of principal
and interest are subject to change due to adjustments to the Note Rates,
with interest calculated and payable in arrears, and are sufficient to
amortize each Mortgage Loan fully by the stated maturity date, over an
original term of thirty years from commencement of amortization. All
provisions for the adjustment of Note Rates comply with state and
federal law and the terms of the Mortgage Note.
B-2
(12) Upon default by a Borrower on a Mortgage Loan and the
subsequent foreclosure on the Mortgaged Property pursuant to proper
procedures, the holder of the Mortgage Loan will be able to deliver
"Good and Merchantable Title" to the Mortgaged Property underlying that
Mortgage Loan, except to the extent that the enforceability of remedies
against such Borrower may be subject to applicable bankruptcy,
reorganization, insolvency or other similar laws affecting creditors'
rights generally from time to time in effect, and to general principles
of equity. There is no homestead exemption or other defense available to
the Borrower that would prevent the sale of the Mortgaged Property at a
trustee's sale or impair the right of foreclosure.
(13) Each Mortgage Loan is an "obligation principally secured
by an interest in real property" within the meaning of Treas. Reg.
Section 1.860G-2(a).
(14) No Mortgage Note is secured by any collateral except the
lien of the corresponding Security Instrument.
(15) No Mortgage Loan is a graduated payment mortgage loan
and no Mortgage Loan has a shared appreciation or other contingent
interest feature.
(16) In connection with the origination and servicing of each
Mortgage Loan, all applicable federal, state and local laws and
regulations including but not limited to consumer credit, equal credit
opportunity, real estate settlement procedures, truth-in-lending and
usury, have been complied with by Aegis Mortgage and the entity from
whom Aegis Mortgage purchased such Mortgage Loans. All levied
assessments not part of the general tax xxxx have been paid in full
before or at closing of each Mortgage Loan.
(17) Aegis Mortgage has no knowledge of any relief requested
or allowed to any Borrower under the Soldiers' and Sailors' Civil Relief
Act of 1940.
(18) All information regarding the Mortgage Loans that could
reasonably be expected to adversely affect the value or the
marketability of any Mortgaged Property or Mortgage Loan and of which
Aegis Mortgage is aware has been provided by Aegis Mortgage to Aegis.
(19) All amounts, with respect to the Mortgage Loans,
received after the Cut Off Date and to which Aegis Mortgage is not
entitled will be deposited into the Collection Account.
(20) Aegis Mortgage did not use adverse selection procedures
in selecting the Mortgage Loans to be sold to Aegis.
(21) There is in effect with respect to each Mortgage Loan so
identified on Schedule I a policy of Primary Mortgage Insurance issued
by the
B-3
mortgage insurance company specified therein; all the information set
forth in Schedule I is true and correct.
(22) The information set forth in Schedule I is true and
correct in all material respects as of the Cut Off Date.
(23) The consideration received by Aegis Mortgage upon the
sale of the Mortgage Loans constitutes fair consideration and reasonably
equivalent value for the Mortgage Loans.
(24) Aegis Mortgage is not, and does not expect with the
passage of time to become, insolvent or bankrupt. The sale of the
Mortgage Loans will not cause Aegis Mortgage to become insolvent and is
not undertaken with the intent to hinder, delay or defraud any of Aegis
Mortgage's creditors.
(25) Aegis Mortgage intends to relinquish all rights to
possess, control and monitor the Mortgage Loans. Aegis Mortgage will
have no right to modify or alter the terms of the Mortgage Loans, and
Aegis Mortgage will have no right or obligation to repurchase any
Mortgage Loan or substitute another mortgage loan for any Mortgage Loan,
except as provided in Sections 3(d), 3(e), 7(b) and 7(d) of the Sales
Agreement.
(26) As of the date hereof, no Borrower is subject to
bankruptcy or insolvency proceedings, and, to the best of Aegis
Mortgage's knowledge, the filing of a bankruptcy or insolvency
proceeding that would result in such Mortgage Loan becoming subject to
bankruptcy or insolvency proceedings is not imminent. As of the date
hereof, no property securing a Mortgage Loan is subject to foreclosure
proceedings, and, to the best of Aegis Mortgage's knowledge, the
commencement of foreclosure proceedings, with respect to property
securing a Mortgage Loan, is not imminent.
(27) Each Security Instrument securing a Mortgage Loan has
been duly executed and delivered by the Borrower and constitutes a
legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency or other
laws affecting the enforcement of creditors' rights generally and to
general principles of equity.
(28) Each Security Instrument securing a Mortgage Loan has
been duly recorded in the appropriate governmental recording office of
the jurisdiction where the Mortgaged Property are located, or Aegis
Mortgage has obtained an Opinion of Counsel that no recording or filing
is necessary in order to make effective the lien and security interest
intended to be created thereby.
(29) If the Security Instrument securing a Mortgage Loan does
not name Aegis Mortgage or the Custodian as the holder, then a valid and
recordable
B-4
Assignment assigning to Aegis Mortgage or the Custodian the Security
Instrument underlying the Mortgage Loan has been duly recorded in the
appropriate governmental recording office for the jurisdiction in which
the Mortgaged Property are located, and Aegis Mortgage has delivered to
Aegis the original copy of such Assignment with appropriate evidence
that such Assignment has been duly recorded or a copy of the original
Assignment together with a certificate from an Officer of Aegis Mortgage
or the loan originator from which Aegis Mortgage purchased the Mortgage
Loan certifying that such Assignment has been recorded in the
appropriate governmental recording office, but that such recorded
Assignment has not been returned to Aegis Mortgage; PROVIDED, HOWEVER,
that such Assignment shall not be required to have been recorded if
Seller shall have obtained an Opinion of Counsel that no recording is
necessary in order to make effective the assignment intended to be
created thereby.
(30) A Title Insurance Policy has been issued on a currently
prescribed American Land Title Association form (or other acceptable
form of Title Insurance Policy) with respect to each Mortgage Loan
(other than a Junior Mortgage Loan described below), is valid and
binding and remains in full force and effect and insures Aegis Mortgage,
its successors or assigns as holding a lien for the full principal
amount of such Mortgage Loan. With respect to a Junior Mortgage Loan
with a principal balance of $[[ ]] or less where the senior mortgage
loan is held by an institutional lender such as a bank, other financial
institution or mortgage company, no Title Insurance Policy may have been
issued so long as Aegis Mortgage has determined that the Borrower has
valid title to the Mortgaged Property based on the property profile or a
title report.
(31) There are no mechanic's or other liens against the
Mortgaged Property that are superior to or equal to the lien of the
Mortgage Loan, except such liens as are expressly insured against by a
Title Insurance Policy.
(32) A Hazard Insurance Policy is in full force and effect as
required by Aegis Mortgage's underwriting guidelines in effect as of the
date hereof, and Flood Insurance coverage is in effect if required by
Aegis Mortgage's underwriting guidelines in effect as of the date
hereof. Such insurance policies contain a mortgagee clause insuring
Aegis Mortgage, its successors and assigns. If Mortgage Insurance is
required, all conditions necessary for the effectiveness thereof have
been satisfied, and the Mortgage Insurance is valid and in full force
and effect and meets the requirements of Aegis Mortgage's underwriting
guidelines in effect as of the date hereof. Such Mortgage Insurance is
the valid and binding agreement of the insurer, and all premiums thereon
have been paid when due and sufficient escrow arrangements have been
established to provide for future premium payments. To the best of Aegis
Mortgage's knowledge, no events have occurred since the Mortgage
Insurance was issued that would reduce the stated coverage of the
Mortgage Insurance.
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(33) All taxes, government assessments or municipal charges
due and owing have been paid, and sufficient escrow arrangements have
been established to make payment thereof in the future.
(34) There has been no casualty damage to the Mortgaged
Property, except such as is expressly referenced in the Appraisal, nor
is any condemnation proceeding, either in whole or in part, pending or
threatened.
(35) With respect to a deed of trust, the trustee named in
the Mortgage Loan Documents is authorized to serve as such in the
applicable jurisdiction. No fees or expenses are payable by Aegis
Mortgage or Aegis to such trustee pursuant to a deed of trust other than
any applicable trustee's expenses incurred after a default.
(36) An appraisal of each Mortgaged Property was made by an
appraiser who either (i) met the minimum qualifications of Xxxxxx Mae or
FHLMC for appraisers, and each appraisal was completed on a form
satisfactory to Xxxxxx Xxx and FHLMC and includes information concerning
comparable property values or (ii) at the time that the appraisal was
made, was certified in the state in which the Mortgaged Property are
located.
(37) No Mortgage Loan is secured by a leasehold estate except
such leasehold estates as are permitted pursuant to Aegis Mortgage's
underwriting guidelines in effect as of the date hereof.
(38) Taking into account the specific characteristics of the
various Mortgage Loans: (1)(A) the Servicing Fee Rate for each Mortgage
Loan and (B) all other amounts such as late charges, prepayment fees,
penalty interest, assumption fees or interest earnings (the "Additional
Amounts") that the Servicer and any subservicer retained by the Servicer
are entitled to receive, represent a reasonable and customary servicing
fee for servicing and other duties required to be performed by the
Servicer and the subservicers; and (2) the Servicing Fee and the
Additional Amounts will be divided between the Servicer and any
subservicers retained by it in such proportions that the amounts
retained by the Servicer and each subservicer will represent a
reasonable and customary servicing fee for the performance of the
Mortgage Loan servicing and other duties required to be performed by
each of them.
(39) There is no offset, defense or counterclaim to any
Mortgage Note or Security Instrument, including any offset, defense or
counterclaim that would excuse or lessen the obligation of the Borrower
to pay the unpaid principal or interest on such Mortgage Note.
(40) Less than 1% of the Initial Mortgage Loans were more
than 30 days delinquent as of _______, 200__.
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(41) Less than _____% of the Mortgage Loans in Group __ are
secured by second liens, none of the Mortgage Loans in Group __ and
Group __ is secured by second liens and none of the Mortgage Loans is
secured by third liens. With respect to any Mortgage Loan (i) which is a
Junior Mortgage Loan with a balance of $________ or less and (ii) as to
which there is not a Title Insurance Policy or a written commitment to
issue a Title Insurance Policy or a certified copy and (iii) the related
senior mortgage is held by an institutional lender such as a bank, other
financial institution or mortgage company, the Seller has determined
based on a review of a property profile or title report acceptable to
such Seller that the Borrower has valid title to the Mortgaged Property.
(42) The Security Instrument with respect to certain of the
Mortgage Loans contains a provision for the acceleration of the payment
of the unpaid principal balance of such Mortgage Loans if the related
Mortgaged Property is sold or transferred without the prior written
consent of the Mortgagee thereunder, at the option of the Mortgagee.
This provision provides that the Mortgagee cannot exercise its option if
either (i) the exercise of such option is prohibited by federal law or
(ii) (A) the Borrower causes to be submitted to the Mortgagee
information required by the Mortgagee to evaluate the intended
transferee as if a new loan were being made to such transferee and (B)
the Mortgagee reasonably determines that the Mortgagee's security will
not be impaired by the assumption of such Mortgage Loan by the
transferee and that the risk of breach of any covenant or agreement in
the Mortgage Loan Documents is acceptable to the Mortgagee. To the best
of Aegis Mortgage's knowledge, such provisions are enforceable.
(43) To the best of Aegis Mortgage's knowledge, no funds
provided to a borrower from a Junior Mortgage Loan were concurrently
used as a down payment for a first Mortgage Loan.
(44) With respect to each Junior Mortgage Loan: (a) the
indebtedness secured by the related prior lien requires equal monthly
payments and does not provide for a balloon payment; (b) at the time of
origination, the related prior lien was not more than 30 days
delinquent; (c) either (i) no consent for the making of such Junior
Mortgage Loan was required by the holder of the related prior lien or
(ii) such consent was obtained and has been delivered to the Trustee;
and (d) Aegis Mortgage has not received, and is not aware of, a notice
of default of any senior mortgage loan which has not been cured.
(45) Each Junior Mortgage Loan had a combined loan-to-value
ratio not greater than 100%; for the purpose of calculating the combined
loan-to-value ratio, the maximum principal of any mortgage loan
providing for negative amortization was used.
(46) None of the Mortgage Loans is a retail installment
contract for goods or services or a home improvement loan for goods or
services, which are
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either "consumer credit contracts" or "purchase money loans" as such
terms are defined in 16 CFR 433.1.
(47) With respect to the Group __ and Group __ Mortgage Loans
(a) no Mortgage Loan in Group __ and Group __ was subject to Home
Ownership and Equity Protection Act of 1994 or any comparable state law;
(b) no proceeds from any Mortgage Loan in Group __ and Group __ were
used to finance single-premium credit insurance policies; (c) the
Servicer will accurately and fully report for each Mortgage Loan in
Group __ and Group __ its borrower credit files to all three credit
repositories in a timely manner; and (d) no prepayment penalty is
payable on any Mortgage Loan in Group __ and Group __ for a period in
excess of five years following origination.
(48) With respect to (a) each adjustable rate Initial
Mortgage Loan in Group __ and Group __ and (b) each adjustable rate
Subsequent Mortgage Loan in Group __ and Group ___, such Mortgage Loan
has a gross margin of not less than _____%.
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