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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
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Page
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ARTICLE I DEFINITIONS
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1 |
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Section 1.1
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Definitions
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1 |
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Section 1.2
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Other Definitional Provisions
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2 |
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ARTICLE II SALE OF MORTGAGE LOANS AND
RELATED PROVISIONS
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2 |
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Section 2.1
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Sale of Mortgage Loans
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2 |
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Section 2.2
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Payment of Purchase Price
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4 |
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ARTICLE III REPRESENTATIONS AND
WARRANTIES; REMEDIES FOR BREACH
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5 |
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Section 3.1
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Representations and
Warranties
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5 |
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ARTICLE IV SELLER’S
COVENANTS
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11 |
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Section 4.1
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Covenants of the Seller
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11 |
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ARTICLE V SERVICING
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11 |
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Section 5.1
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Servicing
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11 |
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ARTICLE VI LIMITATION ON LIABILITY OF
THE SELLERS
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11 |
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Section 6.1
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Limitation on Liability of the
Seller
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11 |
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ARTICLE VII TERMINATION
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12 |
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Section 7.1
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Termination
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12 |
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ARTICLE VIII MISCELLANEOUS
PROVISIONS
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12 |
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Section 8.1
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Amendment
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12 |
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Section 8.2
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GOVERNING LAW
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12 |
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Section 8.3
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Notices
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12 |
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Section 8.4
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Severability of Provisions
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13 |
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Section 8.5
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Relationship of Parties
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13 |
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Section 8.6
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Counterparts
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13 |
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Section 8.7
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Further Agreements
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13 |
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Section 8.8
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Intention of the Parties
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13 |
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Section 8.9
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Successors and Assigns; Assignment of
this Agreement
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14 |
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Section 8.10
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Survival
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14 |
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Section 8.11
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Third Party Beneficiary
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14 |
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Section 8.12
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No Petition
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i
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.
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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.
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(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
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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
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$[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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