EXHIBIT 10.1
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MORTGAGEIT SECURITIES CORP.
as Purchaser,
MORTGAGEIT HOLDINGS, INC.
as Seller
_______________________
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of JANUARY 1, 2005
_______________________
Adjustable Rate Mortgage Loans
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TABLE OF CONTENTS
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Page
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ARTICLE I
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DEFINITIONS..................................................................................1
Section 1.1.
Definitions............................................................1
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 for the Mortgage
Loans.......................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES
FOR BREACH..........................................6
Section 3.1.
Seller Representations and
Warranties..................................6
Section 3.2.
Purchaser Representations and
Warranties..............................13
ARTICLE IV
SELLER'S
COVENANTS..........................................................................15
Section 4.1.
Covenants of the
Seller...............................................15
ARTICLE
V
LIMITATION ON LIABILITY OF THE
SELLER.......................................................15
Section 5.1.
Limitation on Liability of the
Seller.................................15
ARTICLE VI
TERMINATION.................................................................................15
Section 6.1.
Termination...........................................................15
ARTICLE VII
MISCELLANEOUS
PROVISIONS....................................................................15
Section 7.1.
Amendment.............................................................15
Section 7.2.
Governing
Law.........................................................15
Section 7.3.
Notices...............................................................16
Section 7.4.
Severability of
Provisions............................................16
Section 7.5.
Relationship of
Parties...............................................16
Section 7.6.
Counterparts..........................................................16
Section 7.7.
Survival..............................................................16
Section 7.8.
Further
Agreements....................................................16
Section 7.9.
Intention of the
Parties..............................................17
Section 7.10. Successors
and Assigns; Assignment of Purchase Agreement..............17
Exhibits
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Exhibit 1
Mortgage Loan Schedule
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This MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement"),
dated as of January 1, 2005, is made
between MortgageIT Holdings, Inc. (the
"Seller") and MortgageIT Securities Corp.
(the "Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller owns the Mortgage Loans indicated 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 the Seller sell the
Mortgage Loans to the Purchaser, and that
the Seller make certain
representations and warranties and
undertake certain obligations with respect to
the Mortgage Loans; and
WHEREAS, pursuant to the terms of an Amended and Restated
Trust Agreement dated as of January 19,
2005 (the "Trust Agreement"), among the
Purchaser, as depositor, Wilmington Trust
Company, as owner trustee (the "Owner
Trustee") and Wells Fargo Bank, National
Association, as certificate registrar
and certificate paying agent, the Purchaser
will convey the Mortgage Loans to
the Issuer (as defined below); and
WHEREAS, pursuant to the terms of a Servicing Agreement dated
as of November 1, 2005 (the "Servicing
Agreement"), between the Seller and the
Purchaser, the Seller will service, or
cause to be serviced by the Subservicer,
the Mortgage Loans; and
WHEREAS, pursuant to the terms of a Sale and Servicing
Agreement dated as of January 19, 2004
among the Purchaser, the Seller, Wells
Fargo Bank, N.A. as Master Servicer (the
"Master Servicer") and Securities
Administrator (the "Securities
Administrator"), a Trust Estate designated as
MortgageIT Trust 2005-1, a Delaware
statutory trust (the "Issuer") and Deutsche
Bank National Trust Company as Indenture
Trustee (the "Indenture Trustee"), the
Master Servicer will master service the
Mortgage Loans; and
WHEREAS, pursuant to the terms of an Indenture dated as of
January 19, 2005 (the "Indenture"), between
the Issuer and the Indenture
Trustee, the Issuer will pledge the
Mortgage Loans and issue and transfer to the
Purchaser the MortgageIT Trust 2005-1,
Mortgage-Backed Notes, Series 2005-1,
Class 1-A-1, Class 1-A-2, Class 2-A, Class
1-M-1, Class 1-M-2, Class 2-M-1,
Class 2-M-2, Class 1-B-1, Class 1-B-2 and
Class 2-B-1 Notes (collectively, the
"Notes"), representing debt of the
Issuer;
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 Mortgage
Loan Purchase Agreement, except as
otherwise expressly provided herein or unless
the context otherwise
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requires, capitalized terms not otherwise
defined herein shall have the meanings
assigned to such terms in Appendix A
attached to the Indenture, which is
incorporated by reference herein. All other
capitalized terms used herein shall
have the meanings specified herein.
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 but subject to the terms
of this Agreement, all of its right,
title and interest in, to and under the
following, whether now existing or
hereafter acquired and wherever located,
(i) all of its right, title and
interest in the Mortgage Loans identified
on Exhibit 1 as of the Closing Date,
including the related Cut-off Date
Principal Balance, all interest accruing
thereon on and after the Cut-off Date, and
all collections of interest and
principal due after the Cut-off Date, (ii)
the Seller's interest in any
insurance policies related to the Mortgage
Loans and (iii) all proceeds of the
foregoing.
(b) In
connection with such conveyances by the Seller, the Seller
shall on behalf of the Purchaser deliver
to, and deposit with Deutsche Bank
National Trust Company, as custodian for
the Indenture Trustee, on or before the
Closing Date, the following documents or
instruments with respect to each
Mortgage Loan:
(i) the
original Mortgage Note endorsed without recourse
to the order of the Indenture Trustee or in blank, and showing
an
unbroken chain of endorsements from the original payee thereof to
the
Person endorsing it to the Indenture Trustee or in blank or,
with
respect to any Mortgage Loan as to which the original Mortgage Note
has
been lost or destroyed and has not been replaced, a lost note
affidavit
together with a copy of the related Mortgage Note;
(ii)
the original Mortgage and, if the related Mortgage
Loan is a MOM Loan, noting the presence of the MIN and language
indicating that such Mortgage Loan is a MOM Loan, with evidence
of
recording thereon, or, if the original Mortgage has not yet
been
returned from the public recording office, a copy of the
original
Mortgage certified by the Seller or the public recording office
in
which such original Mortgage has been recorded, or, if the
original
Security Instrument, assignments to the Indenture Trustee or
intervening assignments thereof which have been delivered, are
being
delivered or will, upon receipt of recording information relating
to
the Security Instrument required to be included thereon, be
delivered
to recording offices for recording and have not been returned to
the
Seller in time to permit their recording as specified in
Section
2.01(b) of the Sale and Servicing Agreement, shall be in
recordable
form;
(iii)
unless the Mortgage Loan is a MOM Loan, a certified
copy of the assignment (which may be in the form of a blanket
assignment if permitted in the jurisdiction in which the
Mortgaged
Property is located) to "Deutsche Bank National Trust Company,
as
Indenture Trustee", with evidence of recording with respect to
each
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Mortgage Loan in the name of the Indenture Trustee thereon (or if
(A)
the original Security Instrument, assignments to the Indenture
Trustee
or intervening assignments thereof which have been delivered, are
being
delivered or will, upon receipt of recording information relating
to
the Security Instrument required to be included thereon, be
delivered
to recording offices for recording and have not been returned to
the
Seller in time to permit their delivery as specified in Section
2.01(b)
of the Sale and Servicing Agreement, the Seller may deliver a true
copy
thereof with a certification by the Seller, on the face of such
copy,
substantially as follows: "Certified to be a true and correct copy
of
the original, which has been transmitted for recording" or (B)
the
related Mortgaged Property is located in a state other than
Maryland
and an Opinion of Counsel has been provided as set forth in
Section
2.01(b) of the Sale and Servicing Agreement, shall be in
recordable
form);
(iv)
all intervening assignments of the Security
Instrument, if applicable and only to the extent available to
the
Depositor with evidence of recording thereon;
(v) the
original or a copy of the policy or certificate
of primary mortgage guaranty insurance, to the extent available,
if
any;
(vi)
the original or a copy of the policy of title
insurance or mortgagee's certificate of title insurance or
commitment
or binder for title insurance; and
(vii)
originals of all modification agreements, if
applicable and available.
If a material defect in any Mortgage File 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 or the Certificateholders in
such Mortgage Loan, including if any
document required to be delivered to the
Indenture Trustee has not been
delivered (provided that a Mortgage File
will not be deemed to contain a defect
for an unrecorded assignment under clause
(iii) above if the Seller has
submitted such assignment for recording
pursuant to the terms of the second
following paragraph), the Seller shall cure
such defect, repurchase the related
Mortgage Loan at the Repurchase Price or
substitute a Substitute Mortgage Loan
for the related Mortgage Loan upon the same
terms and conditions set forth in
Section 3.1 hereof for breaches of
representations and warranties as to the
Mortgage Loans.
In connection with the assignment of any Mortgage Loan registered
on
the MERS(R) System, the Seller further
agrees that it will cause, at the
Seller's own expense, within 30 days after
the Closing Date, the MERS(R) System
to indicate that such Mortgage Loans have
been assigned by the Seller to the
Indenture Trustee in accordance with this
Agreement for the benefit of the
Noteholders by including (or deleting, in
the case of Mortgage Loans which are
repurchased in accordance with the Sale and
Servicing Agreement) in such
computer files (a) the code in the field
which identifies the specific Trustee
and (b) the code in the field "Pool Field"
which identifies the series of the
Notes issued in connection with such
Mortgage Loans. The Seller further agrees
that it will not, and will not permit the
Master Servicer to, alter the codes
referenced in this paragraph with respect
to any Mortgage Loan during the term
of the Indenture, unless and until such
Mortgage Loan is repurchased in
accordance with the terms of the
Indenture.
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Promptly after the Closing Date (or after the date of transfer of
any
Substitute Mortgage Loan), the Seller, at
its own expense, shall complete and
submit for recording in the appropriate
public office for real property records
each of the assignments referred to in
clause (iii) above, with such assignment
completed in favor of the Indenture
Trustee. While such assignment to be
recorded is being recorded, the Indenture
Trustee shall retain a photocopy of
such assignment. If any assignment is lost
or returned unrecorded to the
Indenture Trustee because of any defect
therein, the Seller is required to
prepare a substitute assignment or cure
such defect, as the case may be, and the
Seller shall cause such substitute
assignment to be recorded in accordance with
this paragraph.
In instances where an original Mortgage or any original
intervening
assignment of Mortgage was not, in
accordance with clause (ii) or (iv) above,
delivered by the Seller to the Indenture
Trustee, prior to or concurrently with
the execution and delivery of this
Agreement, the Seller will deliver or cause
to be delivered the originals of such
documents to the Indenture Trustee,
promptly upon receipt thereof.
The Purchaser hereby acknowledges its acceptance of all right,
title
and interest to the Mortgage Loans and
other property, now existing and
hereafter created, conveyed to it pursuant
to this Section 2.1.
(c) The
parties hereto intend that the transactions set forth
herein, including the sale of the Mortgage
Loans pursuant to this Agreement,
constitute a sale by the Seller to the
Purchaser of all 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 by a court of competent jurisdiction
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 the Mortgage
Loans and such other property, to
secure all of the Seller's obligations
hereunder, and this Agreement shall
constitute a security agreement under
applicable law, including, without
limitation, Article 9 of the applicable
Uniform Commercial Code. The Seller
agrees to take or cause to be taken such
actions and to execute such documents,
including without limitation the filing of
all necessary UCC-1 financing
statements filed in the State of Delaware
(which shall have been submitted for
filing as of the Closing Date with respect
to the Principal Balance of the
Mortgage Loans), any continuation
statements with respect thereto 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 of the Seller, as are
necessary to ensure that, if this Agreement
were deemed to create a security
interest in the Mortgage Loans, such
security interest would be deemed to be a
perfected security interest of first
priority under applicable law and will be
maintained as such throughout the term of
the Indenture.
Section 2.2. PAYMENT OF PURCHASE PRICE FOR THE MORTGAGE LOANS.
(a) The
purchase price for the Mortgage Loans shall be equal to
the sum of (1) $________ * and (2) a 100%
Percentage Interest in the Class 1-B-1
Notes and Class 1-B-2 Notes.
(b) In
consideration of the sale of the Mortgage Loans from the
Seller to the Purchaser on the Closing
Date, the Purchaser shall (A) pay to the
Seller on the Closing Date by
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wire transfer of immediately available
funds to a bank account designated by the
Seller, the amount specified above in
clause (a)(1) and (B) cause the transfer
to the Seller of the Notes in clauses
(a)(2).
* Provided Upon Request.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1. SELLER REPRESENTATIONS AND WARRANTIES. The Seller
hereby represents and warrants to the
Purchaser as of the Closing Date (or if
otherwise specified below, as of the date
so specified) that:
(a) with
respect to the Seller:
(i) the Seller
is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Maryland,
and is qualified and in good standing to do business in each
jurisdiction where such qualification is necessary, except where
the
failure so to qualify would not reasonably be expected to have
a
material adverse effect on its business as presently conducted or
on
its ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(ii)
the Seller has full corporate power to own its
property, to carry on its business as presently conducted and to
enter
into and perform its obligations under this Agreement;
(iii) the
execution and delivery by the Seller of this
Agreement have been duly authorized by all necessary corporate
action
on the part of the Seller; and neither the execution and delivery
of
this Agreement, nor the consummation of the transactions herein
contemplated hereby, nor compliance with the provisions hereof,
will
conflict with or result in a breach of, or constitute a default
under,
any of the provisions of any applicable law, governmental rule,
regulation, judgment, decree or order binding on the Seller or
its
properties or the certificate of incorporation or by-laws of
the
Seller, except those conflicts, breaches or defaults which would
not
reasonably be expected to have a material adverse effect on the
Seller's ability to enter into this Agreement and to consummate
the
transactions contemplated hereby;
(iv)
the execution, delivery and performance by the Seller
of this Agreement and the consummation of the transactions
contemplated
hereby do
not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in
respect
of, any state, federal or other governmental authority or
agency,
except those consents, approvals, notices, registrations or
other
actions as have already been obtained, given or made and, in
connection
with the recordation of the Mortgages, powers of attorney or
assignments of Mortgages not yet completed;
(v) this
Agreement has been duly executed and delivered
by the Seller and, assuming due authorization, execution and
delivery
by the Purchaser, constitutes a valid and binding obligation of
the
Seller enforceable against it in accordance with its terms (subject
to
applicable bankruptcy and insolvency laws and other similar
laws
affecting the enforcement of the rights of creditors
generally);
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(vi)
there are no actions, litigation, suits or
proceedings pending or, to the best of the Seller's knowledge,
threatened against the Seller before or by any court,
administrative
agency, arbitrator or governmental body (i) with respect to any of
the
transactions contemplated by this Agreement or (ii) with respect to
any
other matter which in the judgment of the Seller if determined
adversely to the Seller would reasonably be expected to materially
and
adversely affect the Seller's ability to perform its obligations
under
this Agreement; and the Seller is not in default with respect to
any
order of any court, administrative agency, arbitrator or
governmental
body so as to materially and adversely affect the transactions
contemplated by this Agreement;
(vii) The
execution and delivery of this Agreement and the
performance of the transactions contemplated hereby by the Seller
will
not violate any provision of any existing law or regulation or
any
order or decree of any court applicable to the Seller or any
provision
of the Certificate of Incorporation or Bylaws of the Seller, or
constitute
a material breach of any mortgage, indenture, contract or
other agreement to which the Seller is a party or by which the
Seller
may be bound; and
(viii) the
Seller's chief executive office and principal
place of business are located in the County of New York in the
State of
New York; and
(b) with
respect to the Mortgage Loans:
(i) as of the
Cut-off Date, the information set forth on
the Mortgage Loan Schedule with respect to each Mortgage Loan is
true
and correct in all material respects;
(ii)
immediately prior to the transfer to the Purchaser,
the Seller had good title to and is the sole owner of each Mortgage
and
Mortgage Note relating to the Mortgage Loans, and is conveying the
same
free and clear of any and all liens, claims, encumbrances,
pledges,
charges or security interests of any nature, the related Mortgage
Note
and the Mortgage were not subject to any pledge or assignment, and
the
Seller has full legal authority to sell and assign the Mortgage
Loans
pursuant to this Agreement;
(iii) no
default, release or waiver exists under the
mortgage documents, and no modifications to the mortgage documents
have
been made that have not been disclosed;
(iv)
there is no monetary default existing under any
Mortgage or the related Mortgage Note; neither the Seller, any of
its
affiliates nor any servicer of any related Mortgage Loan has taken
any
action to waive any default, breach or event of acceleration
with
respect thereto; and no foreclosure action is threatened or has
been
commenced with respect to such Mortgage Loan;
(v) each
Mortgage Loan was underwritten in accordance
with the underwriting guidelines of the Seller and its affiliates.
The
Seller has no knowledge of any fact that should have led it to
expect
at the time of the initial creation of an interest in the Mortgage
Loan
that such Mortgage Loan would not be paid in full when due;
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(vi)
no selection procedures reasonably believed by the
Seller to be adverse to the interest of the Noteholders or
Certificateholders have been used in selecting the Mortgage
Loans;
(vii) Each
Mortgage is a valid and enforceable first lien
on the Mortgaged Property securing the related Mortgage Note and
each
Mortgaged Property is owned by the Mortgagor in fee simple (except
with
respect to common areas in the case of condominiums, PUDs and
de
minimis PUDs) or by leasehold for a term at least 10 years longer
than
the term of the related Mortgage, subject only to (1) the lien
of
nondelinquent current real property taxes and assessments, (2)
covenants, conditions and restrictions, rights of way, easements
and
other matters of public record as of the date of recording of
such
Mortgage, such exceptions appearing of record being acceptable
to
mortgage lending institutions generally or specifically reflected
in
the appraisal made in connection with the origination of the
related
Mortgage Loan or referred to in the lender's title insurance
policy
delivered to the originator of the related Mortgage Loan, and (3)
other
matters to which like properties are commonly subject that do
not
materially interfere with the benefits of the security intended to
be
provided by such Mortgage;
(viii) there is
no mechanics' lien or claim for work, labor
or material affecting the premises subject to any Mortgage which is
or
may be a lien prior to, or equal with, the lien of such Mortgage
except
those which are fully insured against by a title insurance
policy
included in the Mortgage File;
(ix)
there is no delinquent tax or assessment lien against
the Mortgaged Property subject to any Mortgage, including the
obligation of the Mortgagor to pay the unpaid principal and
interest on
such Mortgage Note;
(x) there is
no valid offset, defense or counterclaim of
any obligor under any Mortgage Note or Mortgage, including the
obligation of the Mortgagor to pay the unpaid principal and
interest on
such Mortgage Note;
(xi)
except to the extent insurance is in place which will
cover such damage, the physical property subject to any Mortgage
is
free of material damage and is in good repair, and there is no
proceeding pending or, to the best of Seller's knowledge,
threatened,
for the total or partial condemnation of any Mortgaged
Property;
(xii)
neither any improvement located on or being part of
the Mortgaged Property, nor the Mortgaged Property itself, is
in
violation of any applicable zoning law or regulation, or
subdivision
law or ordinance;
(xiii) each
Mortgage Loan has been serviced since
origination in accordance with the servicing standard set forth
in
Section 3.01 of the Servicing Agreement and in accordance with
all
applicable laws and regulations, including, without limitation,
usury,
equal credit opportunity, disclosure and recording laws and all
anti-predatory lending laws and the terms of the related Mortgage
Note,
the Mortgage and other loan documents;
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