EXHIBIT 10.1
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------------------------------,
as
SELLER
and
CWABS, INC.,
as PURCHASER
MORTGAGE LOAN PURCHASE AND ASSIGNMENT AGREEMENT
Dated as of _________, 200_
______ Mortgage Investment Trust 200_-__
Mortgage Backed Notes, Series 200_-__
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TABLE OF CONTENTS
MORTGAGE LOAN PURCHASE AND ASSIGNMENT AGREEMENT
Page
----
RECITALS..................................................................1
AGREEMENT.................................................................2
1.
Purchase and Sale of Mortgage
Loans.................................2
2.
Representations and
Warranties......................................4
3.
Survival of
Representations.........................................7
4.
Repurchase, Purchase or Substitution of Mortgage
Loans..............8
5.
Covenants...........................................................8
6.
Successors and Assigns, Additional
Information......................9
7.
Indemnification.....................................................9
8.
Notices............................................................10
9.
Representations and Indemnities to
Survive.........................10
10.
Miscellaneous......................................................10
11. Severability
of Provisions.........................................10
12. Binding
Nature of Agreement; Assignment............................10
13. Entire
Agreement...................................................11
14. Benefits of
Agreement..............................................11
SCHEDULE I - MORTGAGE LOAN
SCHEDULE.....................................I-1
SCHEDULE II -MORTGAGE LOAN REPRESENTATIONS AND
WARRANTIES..............II-1
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MORTGAGE LOAN PURCHASE AND ASSIGNMENT AGREEMENT
This
Mortgage Loan Purchase and Assignment Agreement (the
"Agreement")
dated as of _________, 200_, is executed on the Closing Date (as
defined
below) by and between CWABS, Inc., a Delaware corporation (such
entity, and
its successors and assigns, being referred to herein as the
"Purchaser") and
______________________________, a _______________ organized as
______________________________, as seller (the "Seller" or the
"Company").
The
Purchaser and the Seller hereby recite and agree as follows:
RECITALS
1.
Schedule I attached hereto and made a part hereof lists certain
conventional, fixed and adjustable rate, first lien residential
mortgage loans
(collectively, the "Mortgage Loans") owned by the Seller that the
Seller
desires to sell, without recourse, to the Purchaser.
2.
The Seller desires to sell, without recourse, all of its right,
title
and interest in and to the Mortgage Loans (other than its rights as
owner of
the servicing rights under the Sale and Servicing Agreement) to the
Purchaser,
and to transfer all of its obligations thereunder to the Purchaser
pursuant to
this Agreement.
3.
The Purchaser desires to purchase such Mortgage Loans, and the
Purchaser intends immediately thereafter to transfer all of its
right, title
and interest in and to the Mortgage Loans pursuant to the terms of
a Sale and
Servicing Agreement dated as of _________, 200_ (the "Sale and
Servicing
Agreement"), by and among the Seller, as seller, the Purchaser, as
depositor,
___________________, as trust administrator and master servicer (in
such
capacity, the "Master Servicer"), _______________________________,
as
indenture trustee (the "Indenture Trustee"), _____________________,
as
servicer, and ______ Mortgage Investment Trust 200_-__ (the
"Issuer" or the
"Trust").
4.
The Trust shall issue the Mortgage Backed Notes, Series
200_-__,
[Class AF-1A], [Class AF-1B], [Class AF-2], [Class AF-3], [Class
AF-4], [Class
AF-5A], [Class AF-5B], [Class AF-6], [Class MF-1], [Class MF-2],
[Class MF-3],
[Class MF-4], [Class MF-5], [Class MF-6], [Class MF-7], [Class
MF-8], [Class
BF], [Class 2-AV-1], [Class 2-AV-2], [Class 3-AV-1], [Class
3-AV-2], [Class
3-AV-3], [Class 3-AV-4], [Class MV-1], [Class MV-2], [Class MV-3],
[Class
MV-4], [Class MV-5], [Class MV-6], [Class MV-7], [Class MV-8],
[Class BV],
[Class PF], [Class PV], [Class CF] or [Class CV] Notes
(collectively, the
"Notes").
5.
The Notes (other than the [Class B], [Class C] and [Class P]
Notes)
will be offered and sold by
______________--_____________________________________________________________
______________________ (the "Underwriters") pursuant to the terms
and
conditions of an underwriting agreement among the Purchaser and
the
Underwriters dated ________, 200_ (the "Underwriting Agreement"),
through the
use of a prospectus supplement dated ________, 200_ (the
"Prospectus
Supplement"), and the related prospectus dated ________, 200_ (the
"Base
Prospectus" and, together with the Prospectus Supplement, the
"Prospectus").
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6.
Capitalized terms used herein and not defined herein shall have
the
meanings assigned to them in the Sale 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 hereto hereby agree as
follows:
1.
Purchase and Sale of Mortgage Loans.
(a) Concurrently with the execution and delivery hereof on
________,
200_
(the "Closing Date"), the Seller hereby sells, assigns,
transfers
and
otherwise conveys to the Purchaser, without recourse, all of
its
right, title and interest (other than any servicing rights relating
to
the
Mortgage Loans) in and to the Mortgage Loans, including all
interest
and
principal received on or with respect to the Mortgage Loans on
or
after the Cut-off Date (other than any such payments that were due
on or
prior to such date) and all payments due after such date but
received
prior to such date and intended by the related Mortgagors to be
applied
after such date, together with all of the Seller's right, title
and
interest in and to any related escrow account and all amounts from
time
to
time credited to and the proceeds of such account, the Seller's
rights
under any insurance policies related to the Mortgage Loans and
the
proceeds thereof and the Seller's security interest in any
collateral
pledged to secure the Mortgage Loans, including the Mortgaged
Properties.
(b) The Seller further agrees, at its own expense, on or prior
to
the
Closing Date, (i) to indicate in its books and records that the
Mortgage Loans have been sold to the Issuer, as assignee of the
Purchaser
and (ii) to deliver to
the Purchaser a data file in the form of Schedule
I
containing a true and complete list of all such Mortgage Loans
(the
"Mortgage Loan Schedule"). The Mortgage Loan Schedule shall conform
to
the
requirements set forth in this Agreement and to the definition
of
"Mortgage Loan Schedule" in the Sale and Servicing Agreement.
In
connection with such transfer and assignment of the Mortgage
Loans
hereunder, the Seller does hereby deliver, or cause to be
delivered, to
the
Purchaser (or its designee) each Mortgage File relating to the
Mortgage Loans in the manner set forth in Section 2.01 of the Sale
and
Servicing Agreement. In the case of Mortgage Loans (if any) that
have
been
prepaid in full after the Cut-off Date and prior to the execution
of
this
Agreement, the Seller, in lieu of delivering the related
Mortgage
Files, shall herewith deliver to the Purchaser an Officer's
Certificate
which shall include a statement to the effect that all amounts
received
in
connection with such prepayment that are required to be deposited
in
the
Collection Account have been so deposited. The Seller hereby
covenants not to take any action inconsistent with the ownership
interest
of
the Purchaser or its assignee and any subsequent assignee or
pledgee
in
the Mortgage Files.
(c) The Purchaser and the Seller intend that on the Closing Date
the
conveyance by the Seller to the Purchaser of all its right, title
and
interest in and to the Mortgage Loans pursuant to this Agreement
shall
be,
and be construed as, a sale of the Mortgage Loans, without
recourse.
It
is, further, not intended that such conveyance be deemed to be
a
pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a
debt
or other obligation of the
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Seller. However, in the event that the Mortgage Loans are held to
be
property of the Seller, or if this Agreement is held or deemed to
create
a
security interest in the Mortgage Loans, then it is intended that
(i)
this
Agreement shall also be deemed to be a security agreement within
the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code
and
the
Uniform Commercial Code of any other applicable jurisdiction;
(ii)
the
conveyances provided for in this Section 1 shall be deemed to be
a
grant by the Seller to the Purchaser, to secure payment in full of
the
Secured Obligations (as defined below), of a security interest in
all of
the
Seller's right (including the power to convey title thereto),
title
and
interest, whether now owned or hereafter acquired, in and to
the
Mortgage Loans, including without limitation the Mortgage Notes,
the
Mortgages, any related insurance policies, the Seller's security
interest
in
any collateral pledged to secure the Mortgage Loans with respect
to
the
Mortgage Loans and all other documents in the related Mortgage
Files,
and
all accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit,
goods,
letters of credit, advices of credit and investment property
constituting
part
of the assets of the Trust, arising from or relating to (A) the
Mortgage Loans (other than any servicing rights relating to the
Mortgage
Loans), including with respect to each Mortgage Loan, the Mortgage
Note
and
related Mortgage, and all other documents in the related
Mortgage
Files, and including any Qualifying Substitute Mortgage Loans; (B)
pool
insurance policies, hazard insurance policies and any bankruptcy
bond
relating to the foregoing, if applicable; (C) all amounts payable
on or
after the Cut-off Date
(other than any such payments that were due on or
prior to such date) to the holders of the Mortgage Loans in
accordance
with
the terms thereof; (D) all income, payments, proceeds and
products
of
the conversion, voluntary or involuntary, of the foregoing into
cash,
instruments, securities or other property; and (E) all cash and
non-cash
proceeds of any of the foregoing; (iii) the possession or control
by the
Indenture Trustee or any agent of the Indenture Trustee of Mortgage
Notes
or
such other items of property as constitute instruments, money,
documents, advices of credit, letters of credit, goods,
certificated
securities or chattel paper shall be deemed to be possession or
control
by the secured party, or
possession or control by the Purchaser, for
purposes of perfecting the security interest pursuant to the
Uniform
Commercial Code (including, without limitation, Sections 9-312 or
9-313
thereof); and (iv) notifications to persons holding such property,
and
acknowledgments, receipts or confirmations from persons holding
such
property, shall be deemed notifications to, or acknowledgements,
receipts
or
confirmations from, securities intermediaries, bailees or agents
of,
or
persons holding for, the Indenture Trustee, as applicable, for
the
purpose of perfecting such security interest under applicable
law.
"Secured Obligations" means the rights of the Purchaser under
this
Agreement. The Seller shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to
ensure
that, if this Agreement were deemed to create a security interest
in the
Mortgage Loans and the other property described above, such
security
interest would be deemed to be a perfected security interest of
first
priority under applicable law and would be maintained as such
throughout
the
term of this Agreement. Without limiting the generality of the
foregoing, the Seller shall prepare and deliver to the Purchaser at
least
two
months prior to any filing date, and the Purchaser shall file,
or
shall cause to be filed, at the expense of the Seller, all
filings
necessary to maintain the effectiveness of any original filings
necessary
under the Uniform Commercial Code as in effect in any jurisdiction
to
perfect the Purchaser's security interest in or lien on the
Mortgage
Loans.
Notwithstanding the foregoing provisions of this Section 1, (i)
the
Seller, as a servicer of the Mortgage Loans, shall retain the
servicing rights
(including, without limitation, primary
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servicing) with respect to the Mortgage Loans, and rights to
receive servicing
fees, servicing income, reimbursement for advances made in respect
of such
Mortgage Loans and other payments made as compensation for such
servicing
subject to the Sale and Servicing Agreement pursuant to the terms
and
conditions set forth therein (collectively, the "Servicing Rights")
and (ii)
the Servicing Rights are not included in the collateral in which
the Seller
grants a security interest in favor of the Purchaser pursuant to
the
immediately preceding paragraph, nor are the Servicing Rights
included in the
assets being sold pursuant to this Agreement.
(d)
In consideration of the sale of the Mortgage Loans from the Seller
to
the Purchaser on the Closing Date, the Purchaser agrees on the
Closing Date
(i) to pay to the Seller by transfer of immediately available
funds, an amount
equal to $_______________, which is net of (A) an amount of
$___________
representing the current Securities and Exchange Commission
registration
statement fees for the amount of Notes issued on the Closing Date
and offered
publicly pursuant to the Prospectus and (B) the underwriting
discount, (ii) to
deliver to the Seller the [Class B] and [Class P] Notes and (iii)
to transfer
to the Seller or one of its Affiliates on the Closing Date the
Ownership
Certificate (together, the "Purchase Price"). The Seller shall pay,
and be
billed directly for, all expenses incurred by the Purchaser in
connection with
the issuance of the Notes, including, without limitation, upfront
payments due
to the Cap Counterparty in respect of the Interest Rate Cap
Agreements,
printing fees incurred in connection with the prospectus relating
to the
Notes, blue sky registration fees and expenses, fees and expenses
of Sidley
Austin LLP, fees of the rating agencies requested to rate the
Notes,
accountant's fees and expenses, Custodian fees, loan level due
diligence fees,
the fees and expenses of the Indenture Trustee and the Owner
Trustee, the fees
(other than any fees to which the Master Servicer is entitled
pursuant to the
Sale and Servicing Agreement) and expenses of the Master Servicer
and Trust
Administrator and other out-of-pocket costs, if any.
2.
Representations and Warranties.
(a) The Seller hereby represents and warrants to the Purchaser
that,
as
of the date of this Agreement:
(i) The Company is a ___________, duly organized validly
existing and in good standing under the laws of the
_______________,
and has the corporate power to own its assets and to transact
the
business in which it is currently engaged. The Company is duly
qualified to do business as a foreign corporation and is in
good
standing in each jurisdiction in which the character of the
business
transacted by it or any properties owned or leased by it
requires
such qualification and in which the failure so to qualify would
have
a material adverse effect on the business, properties, assets,
or
condition (financial or other) of the Company;
(ii) The Company has the corporate power and authority to make,
execute, deliver and perform 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. When executed and delivered,
this
Agreement will constitute the legal, valid and binding obligation
of
the Company enforceable in accordance with its terms, except as
enforcement of such terms may be
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limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by the
availability
of equitable remedies;
(iii) [The Company has been organized in conformity with the
requirements for qualification as a REIT; the Company has filed
an
election to be treated as a REIT for federal income tax
purposes;
and the Company currently qualifies as, and it proposes to
operate
in a manner that will enable it to continue to qualify as, a
REIT;]
(iv) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Company,
and
the transfer, assignment and conveyance of the Mortgage Notes
and
the Mortgages by the Company pursuant to this Agreement are not
subject to the bulk transfer or any similar statutory provisions
in
effect in any applicable jurisdiction;
(v) Neither the execution and delivery of this Agreement, the
sale of the Mortgage Loans to the Purchaser or the transactions
contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions of this Agreement will conflict with or
result
in a breach of any of the terms, articles of incorporation or
by-laws, or constitute a default or result in the violation of
any
law, rule, regulation, order, judgment or decree to which the
Company or its property is subject, or constitute a default under
or
result in the acceleration of payment under any material
agreement,
indenture or
loan or credit agreement or other material instrument
to which the Company or its property are subject;
(vi) The Company does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every
covenant
contained in this Agreement. The Company is solvent and the sale
of
the Mortgage Loans will not cause the Company to become
insolvent.
The sale of the Mortgage Loans is not undertaken to hinder, delay
or
defraud any of the Company's creditors;
(vii) Other than those matters which are disclosed in the
Prospectus Supplement under the caption "Risk
Factors--______________________," there is no action, suit,
proceeding or investigation pending or, to the knowledge of the
Seller, threatened against the Company which, either in any one
instance or in the aggregate, may result in any material
adverse
change in the business, operations, financial condition,
properties
or assets of the Company, or in any material impairment of the
right
or ability of the Company to carry on its business substantially
as
now conducted, or in any material liability on the part of the
Company, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be
contemplated herein, or which would be likely to impair
materially
the ability of the Company to perform under the terms of this
Agreement;
(viii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution,
delivery and performance by the Company of or compliance by the
Company with this Agreement or the sale of the Mortgage Loans
as
evidenced by the consummation of the transactions contemplated
by
this Agreement, or if required, such approval has been obtained
prior to the Closing Date;
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(ix) The selection of the Mortgage Loans was not made in a
manner so as to affect adversely the interests of the
Purchaser;
(x) Neither this Agreement nor any statement, report or other
document furnished or to be furnished pursuant to this Agreement
or
in connection with the transactions contemplated hereby contains
any
untrue statement of fact;
(xi) There has been no change in the business, operations,
financial condition or assets of the Company since
____________,
200_, that would have a material adverse effect on its ability
to
perform its obligations under this Agreement or the Sale and
Servicing Agreement;
(xii) The Company has not dealt with any broker, investment
banker, agent or other Person (other than the Underwriters) that
may
be entitled to any commission or compensation in the connection
with
the sale of the Mortgage Loans;
(xiii) The consideration received by the Company upon the sale
of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value of the Mortgage
Loans;
and
(xiv) The Company has complied with all applicable anti-money
laundering laws and regulations (the "Anti-Money Laundering
Laws")
and
has established an anti-money laundering compliance program as
required by the Anti-Money Laundering Laws.
(b) The Seller hereby makes the representations and warranties
set
forth in Schedule II hereto with respect to each Mortgage Loan and
by
this
reference incorporated herein, to the Purchaser and the
Indenture
Trustee, as of the Closing Date or, if applicable, such other date
as may
be
specified therein. With respect to any of the representations
and
warranties made in Schedule
II that are made to the best of the Seller's
knowledge or as to which the Seller has no knowledge, if it is
discovered
by
the Purchaser, the Seller, the Issuer or the Indenture Trustee
that
the
substance of such representation and warranty is inaccurate and
such
inaccuracy materially and adversely affects the value of the
related
Mortgage Loan or the interest therein of the Noteholders then,
notwithstanding the Seller's lack of knowledge with respect to
the
substance of such representation and warranty being inaccurate at
the
time
the representation or warranty was made, such inaccuracy shall
be
deemed a breach of the applicable representation or warranty.
(c) The Purchaser hereby represents and warrants to the Seller
that,
as
of the date of this Agreement:
(i) it is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has
full
power and
authority to enter into and perform its obligations under
this Agreement and the Sale and Servicing Agreement;
(ii) this Agreement and the Sale and Servicing Agreement have
been duly authorized, executed and delivered by the Purchaser
and
constitute the legal, valid
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and binding agreements of the Purchaser enforceable against the
Purchaser in accordance with their respective terms, subject to
(A)
bankruptcy, insolvency, receivership, conservatorship,
reorganization, moratorium or other similar laws affecting
creditors' rights generally, (B) general principles of equity
regardless of whether enforcement is sought in a proceeding in
equity or at law, and (C) public policy considerations limiting
the
enforceability of provisions of this Agreement and the Sale and
Servicing Agreement which purport to provide indemnification
from
penalties under applicable securities laws;
(iii) neither the execution and delivery by the Purchaser of
this Agreement, nor the performance by the Purchaser of the
provisions hereof, will (A) conflict with or result in a breach
of,
or constitute a default under, any of the provisions of the
certificate of incorporation or bylaws of the Purchaser or any
law,
governmental rule or regulation or any judgment, decree or
order
binding on the Purchaser or any of its properties, or any of
the
provisions of any indenture, mortgage, deed of trust, contract
or
other instrument to which the Purchaser is a party or by which it
is
bound, or (B) result in the creation of any lien, charge, or
encumbrance upon any of its properties pursuant to the terms of
any
such indenture, mortgage, deed of trust, contract or other
instrument, which, in the case of either (A) or (B), would have
a
material adverse effect on its ability to perform its
obligations
hereunder or on the financial condition of the Purchaser;
(iv) there are no actions, suits or proceedings against the
Purchaser pending or, to the knowledge of the Purchaser,
threatened,
or, to the knowledge of the Purchaser, investigations pending,
before any court, administrative agency or other tribunal (A)
asserting the invalidity of this Agreement, (B) seeking to
prevent
the consummation of any of the transactions contemplated by
this
Agreement or (C) which might materially and adversely affect
the
performance by the Purchaser of its obligations under, or the
validity or enforceability of, this Agreement;
(v) the Purchaser is not in violation of its certificate of
incorporation or bylaws or in default under any agreement,
indenture
or instrument the effect of which default would have a material
adverse effect on the ability of the Purchaser to perform its
obligations under this Agreement or on the financial condition
of
the Purchaser;
(vi) the Purchaser is not a party to, bound by or in breach or
violation of any indenture or other agreement or order or
regulation
of any court, regulatory body, administrative agency or
governmental
body having jurisdiction over it that materially and adversely
affects the (A) ability of the Purchaser to perform its
obligations
under this Agreement or (B) the business, operations, financial
condition, properties or assets of the Purchaser; and
(vii) no consent, approval, authorization or order of any
federal or state court or governmental agency or body is
required
for the consummation by the Purchaser of the transactions
contemplated by the terms of this Agreement.
3.
Survival of Representations. Each of the representations and
warranties of the Seller and the Purchaser contained herein shall
survive the
purchase and sale of the Mortgage Loans pursuant hereto and shall
continue in
full force and effect, notwithstanding any restrictive
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or qualified endorsement on the Mortgage Notes and notwithstanding
subsequent
termination of this Agreement. The representations and warranties
shall not be
impaired by any review and examination of documents to be delivered
or held by
the Seller in respect of each Mortgage Loan or other documents
evidencing or
relating to the Mortgage Loans or any failure on the part of the
Purchaser or
any successor or assignee thereof to review or examine such
documents.
4.
Repurchase, Purchase or Substitution of Mortgage Loans.
(a) Upon discovery by the Purchaser, the Seller, the Master
Servicer
or
any assignee, transferee or designee of the Purchaser of a
Material
Defect with respect to a Mortgage Loan or a breach of any of
the
representations and warranties of the Seller contained in Section 2
of
this
Agreement that materially and adversely affects the value of
any
Mortgage Loan or the interest therein of the Purchaser or the
Purchaser's
assignee, transferee or
