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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14
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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 [Certificate of Incorporation or Bylaws] or
constitute a material default (or an event which, with notice or
lapse of time, or both, would constitute a material default) under,
or result in the material breach of, any material contract,
agreement or other instrument to which the Seller is a party or
which may be applicable to the Seller or any of its
assets;
(v) No litigation before any court,
tribunal or governmental body is currently pending, or to the
knowledge of the Seller threatened, against the Seller or with
respect to this Agreement that in the opinion of the Seller has a
reasonable likelihood of resulting in a material adverse effect on
the transactions contemplated by this Agreement;
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(vi) This Agreement to which it is a
party, constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or h