EXHIBIT 10.1
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------------------------------,
as
SELLER
and
CWHEQ, 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 CWHEQ, 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 Materia
