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FORM OF MORTGAGE LOAN PURCHASE AGREEMENT

Mortgage Loan Purchase Agreement

FORM OF MORTGAGE LOAN PURCHASE AGREEMENT | Document Parties: SG MORTGAGE SECURITIES, LLC You are currently viewing:
This Mortgage Loan Purchase Agreement involves

SG MORTGAGE SECURITIES, LLC

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Title: FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
Governing Law: New York     Date: 5/27/2005

FORM OF MORTGAGE LOAN PURCHASE AGREEMENT, Parties: sg mortgage securities  llc
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Exhibit 10.1

 

SG MORTGAGE SECURITIES, LLC,

 

as Purchaser,

 

[SELLER],

 

as Seller

 

[WELLS FARGO],

 

as Master Servicer

 

[ISSUER],

 

as Issuer,

 

and

 

[INDENTURE TRUSTEE],

 

as Indenture Trustee

 


 

MORTGAGE LOAN PURCHASE AGREEMENT

 


 

Dated as of [DATE]

 

 


TABLE OF CONTENTS

 

          Page

ARTICLE I DEFINITIONS

   1

Section 1.1

  

Definitions

   1

Section 1.2

  

Other Definitional Provisions

   2

ARTICLE II SALE OF MORTGAGE LOANS AND RELATED PROVISIONS

   2

Section 2.1

  

Sale of Mortgage Loans

   2

Section 2.2

  

Payment of Purchase Price

   4

ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH

   5

Section 3.1

  

Representations and Warranties

   5

ARTICLE IV SELLER’S COVENANTS

   11

Section 4.1

  

Covenants of the Seller

   11

ARTICLE V SERVICING

   11

Section 5.1

  

Servicing

   11

ARTICLE VI LIMITATION ON LIABILITY OF THE SELLERS

   11

Section 6.1

  

Limitation on Liability of the Seller

   11

ARTICLE VII TERMINATION

   12

Section 7.1

  

Termination

   12

ARTICLE VIII MISCELLANEOUS PROVISIONS

   12

Section 8.1

  

Amendment

   12

Section 8.2

  

GOVERNING LAW

   12

Section 8.3

  

Notices

   12

Section 8.4

  

Severability of Provisions

   13

Section 8.5

  

Relationship of Parties

   13

Section 8.6

  

Counterparts

   13

Section 8.7

  

Further Agreements

   13

Section 8.8

  

Intention of the Parties

   13

Section 8.9

  

Successors and Assigns; Assignment of this Agreement

   14

Section 8.10

  

Survival

   14

Section 8.11

  

Third Party Beneficiary

   14

Section 8.12

  

No Petition

   14

 

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This Mortgage Loan Purchase Agreement (the “Agreement”), dated as [DATE], is made among [SELLER], as seller (the “Seller”), [WELLS FARGO], as master servicer (the “Master Servicer”), SG MORTGAGE SECURITIES, LLC, as purchaser (the “Purchaser”), [ISSUER], as issuer (the “Issuer”), and [INDENTURE TRUSTEE]., as indenture trustee (the “Indenture Trustee”).

 

WITNESSETH:

 

WHEREAS, the Seller in the ordinary course of its business acquires and originates home equity loans and acquired or originated all of the home equity loans listed on the Mortgage Loan Schedule attached as Exhibit 1 hereto (the “Mortgage Loans”);

 

WHEREAS, the Seller owns the Cut-Off Date Principal Balances and the Related Documents for the portion of Mortgage Loans identified on the Mortgage Loan Schedule attached as Exhibit 1 hereto (the “Mortgage Loans”), including rights to (a) any property acquired by foreclosure or deed in lieu of foreclosure or otherwise, and (b) the proceeds of any insurance policies covering the Mortgage Loans;

 

WHEREAS, the parties hereto desire that: (i) the Seller sell the Cut-Off Date Principal Balances of the Mortgage Loans to the Purchaser on the Closing Date pursuant to the terms of this Agreement together with the Related Documents, and (ii) the Seller make certain representations and warranties on the Closing Date;

 

WHEREAS, pursuant to the [Trust Agreement], the Purchaser will sell the Mortgage Loans and transfer all of its rights under this Agreement to the Issuer on the Closing Date;

 

WHEREAS, pursuant to the terms of the Master Servicing Agreement, the Master Servicer will service the Mortgage Loans;

 

WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will issue the Certificates;

 

WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue the Notes, secured by the Trust Estate;

 

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

Section 1.1 Definitions . For all purposes of this Agreement, except as otherwise expressly provided herein or unless the context otherwise requires, capitalized terms not otherwise defined herein shall have the meanings assigned to such terms in the Definitions contained in Appendix A to the indenture dated as of [DATE] (the “Indenture”), between the Issuer and the Indenture Trustee, which is incorporated by reference herein. All other capitalized terms used herein shall have the meanings specified herein.

 

1

 


Section 1.2 Other Definitional Provisions . All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.

 

As used in this Agreement and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined in this Agreement or in any such certificate or other document, and accounting terms partly defined in this Agreement or in any such certificate or other document, to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles. To the extent that the definitions of accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under generally accepted accounting principles, the definitions contained in this Agreement or in any such certificate or other document shall control.

 

The words “hereof,” “herein,” “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; Section and Exhibit references contained in this Agreement are references to Sections and Exhibits in or to this Agreement unless otherwise specified; the term “including” shall mean “including without limitation”; “or” shall include “and/or”; and the term “proceeds” shall have the meaning ascribed thereto in the UCC.

 

The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as the feminine and neuter genders of such terms.

 

Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein; references to a Person are also to its permitted successors and assigns.

 

ARTICLE II

 

SALE OF MORTGAGE LOANS AND RELATED PROVISIONS

 

Section 2.1 Sale of Mortgage Loans .

 

(a) The Seller, by the execution and delivery of this Agreement, does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse, all of its right, title and interest in, to and under the following, and wherever located: (i) the Mortgage Loans (including the Cut-Off Date Principal Balances), all interest accruing thereon, all monies due or to become due thereon, and all collections in respect thereof received on or after the Cut-Off Date (other than interest thereon in respect of any period prior to the Cut-Off Date); (ii) the interest of the Seller in any insurance policies in respect of the Mortgage Loans; and (iii) all proceeds of the foregoing. Such conveyance shall be deemed to be made, with respect to the Cut-Off Date Principal Balances, as of the Closing Date, subject to the receipt by the Seller of consideration therefor as provided herein under clause (a) of Section 2.2.

 

2

 


(b) In connection with the conveyance by the Seller of the Mortgage Loans, the Seller further agrees, at its own expense, on or prior to the Closing Date with respect to the Principal Balances of the Mortgage Loans to indicate in its books and records that the Mortgage Loans have been sold to the Purchaser pursuant to this Agreement, and to deliver to the Purchaser true and complete lists of all of the Mortgage Loans sold by the Seller specifying for each Mortgage Loan (i) its account number and (ii) its Cut-Off Date Principal Balance. The Mortgage Loan Schedule indicating such information with respect to the Mortgage Loans sold by the Seller shall be marked as Exhibit 1 to this Agreement and is hereby incorporated into and made a part of this Agreement.

 

(c) In connection with the conveyance by the Seller of the Mortgage Loans, the Seller shall, (A) with respect to each related Mortgage Loan, on behalf of the Purchaser deliver to, and deposit with the Custodian, at least five (5) Business Days before the Closing Date the original Mortgage Notes endorsed or assigned without recourse in blank (which endorsement shall contain either an original signature or a facsimile signature of an authorized officer of the Seller) or, with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost or destroyed and has not been replaced, a Lost Note Affidavit, and any modification agreement or amendment to such Mortgage Note, and (B) except as provided in clause (A) with respect to the Mortgage Notes, deliver the Mortgage Files to the Master Servicer.

 

Within the time period for the review of each Mortgage Note set forth in [Section 2.2 of the Custodial Agreement], if a material defect in any Mortgage Note is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders, the Certificateholders or the Enhancer in such Mortgage Loan, including the Seller’s failure to deliver the Mortgage Note to the Custodian on behalf of the Indenture Trustee, the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute an Eligible Substitute Loan therefor upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans, provided that the Seller shall have the option to substitute an Eligible Substitute Mortgage Loan or Loans for such Mortgage Loan only if such substitution occurs within two years following the Closing Date. If a material defect in any of the documents in the Mortgage File held by the Master Servicer is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders, the Certificateholders or the Enhancer in such Mortgage Loan, the Seller shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute an Eligible Substitute Loan therefor upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans, provided that the Seller shall have the option to substitute an Eligible Substitute Mortgage Loan or Loans for such Mortgage Loan only if such substitution occurs within two years following the Closing Date.

 

Upon sale of the Mortgage Loans, the ownership of each Mortgage Note, each related Mortgage and the contents of the related Mortgage File shall be vested in the Purchaser and the ownership of all records and documents with respect to the Mortgage Loans that are prepared by or that come into the possession of the Seller or by the Master Servicer shall immediately vest in the Purchaser, and be retained and maintained in trust by the Master Servicer (except for the

 

3

 


Mortgage Notes, which shall be retained by the Custodian), at the will of the Purchaser, in such custodial capacity only. the Master Servicer’s records will accurately reflect the sale of the Mortgage Loan to the Purchaser.

 

The Purchaser hereby acknowledges its acceptance of all right, title and interest to the property conveyed to it pursuant to this Section 2.1.

 

(d) The parties hereto intend that the transactions set forth herein constitute a sale by the Seller to the Purchaser of the Seller’s right, title and interest in and to the Mortgage Loans and other property as and to the extent described above. In the event the transactions set forth herein are deemed not to be a sale, the Seller hereby grants to the Purchaser a security interest in all of the Seller’s right, title and interest in, to and under all accounts, chattel papers, general intangibles, payment intangibles, contract rights, certificates of deposit, deposit accounts, instruments, documents, letters of credit, money, advices of credit, investment property, goods and other property consisting of, arising under or related to the Mortgage Loans and such other property, to secure all of the Seller’s obligations hereunder, and this Agreement shall and hereby does constitute a security agreement under applicable law. The Seller agrees to take or cause to be taken such actions and to execute such documents, including without limitation the filing of any continuation statements with respect to the UCC-1 financing statements filed with respect to the Mortgage Loans by the Purchaser on the Closing Date, and any amendments thereto required to reflect a change in the name or corporate structure of the Seller or the filing of any additional UCC-1 financing statements due to the change in the principal office or jurisdiction of incorporation of the Seller, as are necessary to perfect and protect the Purchaser’s and its assignees’ interests in each Mortgage Loan and the proceeds thereof. The Master Servicer shall file any such continuation statements on a timely basis.

 

(e) [In connection with the assignment of any Mortgage Loan registered on the MERS ® System, the Seller further agrees that it will cause, at the Seller’s own expense, as soon as practicable after the Closing Date, the MERS ® System to indicate that such Mortgage Loans has been assigned by the Seller to the Indenture Trustee in accordance with this Agreement or the Trust Agreement for the benefit of the Noteholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code “[IDENTIFY INDENTURE TRUSTEE SPECIFIC CODE]” in the field “[IDENTIFY THE FIELD NAME FOR INDENTURE TRUSTEE]” which identifies the Indenture Trustee and (b) the code “[IDENTIFY SERIES SPECIFIC CODE NUMBER]” in the field “Pool Field” which identifies the series of the Notes issued in connection with such Mortgage Loans. The Seller agrees that it will not alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.]

 

Section 2.2 Payment of Purchase Price .

 

(a) The sale of the Mortgage Loans shall take place on the Closing Date, subject to and simultaneously with the deposit of the Mortgage Loans into the Trust Estate and the issuance of the Securities. The purchase price (the “Purchase Price”) for the Mortgage Loans to be paid by the Purchaser to the Seller on the Closing Date shall be an amount equal to

 

4

 


$[PURCHASE PRICE] in immediately available funds, together with the Certificates, in respect of the Cut-Off Date Principal Balances thereof.

 

(b) In consideration of the sale of the Mortgage Loans by the Seller to the Purchaser on the Closing Date, the Purchaser shall pay to the Seller on the Closing Date by wire transfer of immediately available funds to a bank account designated by the Seller, the amount specified above in paragraph (a) for the Mortgage Loans; provided, that such payment may be on a net funding basis if agreed by the Seller and the Purchaser.

 

ARTICLE III

 

REPRESENTATIONS AND WARRANTIES;

REMEDIES FOR BREACH

 

Section 3.1 Representations and Warranties . The Seller represents and warrants to the Purchaser, as of the Closing Date (or if otherwise specified below, as of the date so specified):

 

(a) As to the Seller:

 

(i) The Seller is a [corporation] duly organized, validly existing and in good standing under the laws of the jurisdiction governing its creation and existence and is or will be in compliance with the laws of each state in which any Mortgaged Property is located to the extent necessary to ensure the enforceability of each Mortgage Loan;

 

(ii) The Seller has the power and authority to make, execute, deliver and perform its obligations under this Agreement and all of the transactions contemplated under this Agreement and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement;

 

(iii) The Seller is not required to obtain the consent of any other Person or any consents, licenses, approvals or authorizations from, or registrations or declarations with, any governmental authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except for such consents, licenses, approvals or authorizations, or registrations or declarations, as shall have been obtained or filed, as the case may be;

 

(iv) The execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not violate the Seller’s


 
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