EXHIBIT 10.1
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______________________________,
as
SELLER
and
CWALT, 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 CWALT, 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 designee, the party discovering the Material
D
