AEGIS MORTGAGE CORPORATION,
SELLER
and
AEGIS ASSET BACKED SECURITIES
CORPORATION,
DEPOSITOR
FORM OF
SALE AGREEMENT
Dated as of
[ ]
Aegis Asset Backed Securities
Trust
(Mortgage Pass-Through Certificates,
Series [ ])
TABLE OF CONTENTS
Section 1. Sale and Purchase of Mortgage
Loans.
2
Section 2. Purchase Price of Mortgage
Loans.
2
Section 3. Transfer of the Mortgage
Loans.
3
Section 4. Representations and Warranties
of the Seller.
4
Section 5. Covenants of the
Seller.
5
Section 6. Cure, Repurchase and
Substitution Obligations.
6
Section 7. Conditions to Obligation of
the Depositor.
7
Section 8. Mandatory Delivery; Grant of
Security Interest.
8
Section 9. Indemnification.
8
Section 10. Notices.
9
Section 11. Severability of
Provisions.
10
Section 12. GOVERNING LAW.
10
Section 13. Agreement of the
Seller.
10
Section 14. Survival.
10
Section 15. Assignment.
11
Section 16. Miscellaneous.
11
Section 17. Request for
Opinions.
12
Exhibit A
Bill of Sale
Exhibit B
Representations and Warranties of Aegis
Mortgage Corporation
SALE AGREEMENT
This SALE AGREEMENT dated as of
[ ]
(this “Agreement”) is by and between Aegis Asset Backed
Securities Corporation, a Delaware corporation (the
“Depositor”) and Aegis Mortgage Corporation, a Delaware
corporation (the “Seller”).
RECITALS
(1)
Schedule I attached hereto and made a
part hereof lists a pool of one-to-four family, fully amortizing
and balloon mortgage loans (collectively, the “Mortgage
Loans”) currently owned by the Seller that the Seller desires
to sell to the Depositor.
(2)
The Depositor desires to purchase the
Mortgage Loans and intends immediately thereafter to transfer the
Mortgage Loans and any other assets constituting the Trust Fund,
and assign all its rights under this Agreement, to
[ ], as
trustee (the “Trustee”), pursuant to the terms of a
pooling and servicing agreement (the “Pooling and Servicing
Agreement”) dated as of
[ ],
among the Depositor, the Seller,
[ ], as
servicer (the “Servicer”)[, the Murrayhill Company, as
Credit Risk Manager,] and the Trustee.
(3)
Pursuant to the terms of the Pooling and
Servicing Agreement, the Aegis Asset Backed Securities Trust
Mortgage Pass-Through Certificates, Series
[ ] evidencing 100% of the
beneficial ownership interest in the Trust Fund will be issued to
the Depositor, in consideration of the Depositor’s assignment
of the assets of the Trust Fund to the Trustee.
(4)
Certificates to be issued to the
Depositor will be designated as the Aegis Asset Backed Securities
Trust Mortgage Pass-Through Certificates, Series
[ ], Class
[ ], Class [ ], Class
[ ], [… and Class [ ]]
Certificates, and shall be collectively referred to herein as the
“Certificates.”
(5)
The Class [ ], Class
[ ], Class [ ], [… and
Class [ ]] Certificates (collectively, the
“Underwritten Certificates”) shall be sold pursuant to
an underwriting agreement dated
[ ] (the
“Underwriting Agreement”), among the Depositor, the
Seller and
[ ] [,
as representative of the several underwriters (the
“Underwriters”)]. The public offering and sale of
the Underwritten Certificates are registered under the Securities
Act of 1933, as amended, and are being made pursuant to a
prospectus supplement dated
[ ] (the
“Prospectus Supplement”), and a prospectus dated
[ ] (the
“Base Prospectus,” and together with the Prospectus
Supplement, the “Prospectus”). The balance of the
Certificates will be retained by the Depositor or one of its
affiliates.
(6)
Capitalized terms used and not defined
herein shall have the meanings assigned to them in the Pooling 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 hereby agree as follows:
Section 1.
Sale and Purchase of Mortgage
Loans.
(a)
Subject to the terms and conditions of
this Agreement, the Seller agrees to sell, and the Depositor agrees
to purchase, on the date of issuance of the Certificates, which is
expected to be on or about
[ ] (the
“Closing Date”), , the Mortgage Loans having an
aggregate principal balance (“Pool Balance”) as of
[ ] (the
“Cut-off Date”), of approximately
$[ ].
(b)
The Seller and the Depositor have agreed
upon which of the mortgage loans owned by the Seller are to be
purchased by the Depositor pursuant to this Agreement, and the
Seller has prepared, or has provided information to the Depositor
enabling the Depositor to prepare, Schedule I attached hereto
(“Schedule I”), setting forth information with
respect to the Mortgage Loans to be purchased by the Depositor as
of the Closing Date. The Seller shall, with the
Depositor’s consent, amend or modify, or provide information
to the Depositor enabling the Depositor to amend or modify
Schedule I on or prior to the Closing Date if necessary to
reflect the actual Mortgage Loans transferred by the Seller and
accepted by the Depositor on the Closing Date.
Schedule I, as so amended or modified, shall conform to
the requirements of the Depositor as set forth in this Agreement
and to the definition of “Mortgage Loan Schedule” under
the Pooling and Servicing Agreement, and shall be the definitive
Mortgage Loan Schedule attached as an exhibit to the Pooling and
Servicing Agreement.
(c)
The sale of the Mortgage Loans shall be
effected pursuant to a Bill of Sale substantially in the form
attached hereto as Exhibit A (the “Bill of
Sale”).
Section 2.
Purchase Price of Mortgage
Loans.
(a)
On the Closing Date, as full
consideration for the Seller’s sale of the Mortgage Loans to
the Depositor, the Depositor shall deliver to the Seller (or its
designee) cash and Certificates equal in value to the amount that
shall be set out in the related Bill of Sale.
(b)
The Depositor or any assignee or
transferee of the Depositor (which may include the Trustee, or its
Custodian, acting on behalf of the Certificateholders) shall be
entitled to all Scheduled Payments due after the Cut-off Date, and
all curtailments or other principal prepayments received with
respect to the Mortgage Loans paid by each Borrower after the
Cut-off Date, except that the Depositor or any assignee or
transferee of the Depositor will not be entitled to any
curtailments or other prepayments received on or after the Cut-off
Date but reflected in the aggregate Cut-off Date Balance. All
Scheduled Payments due on or before the Cut-off Date and collected
on or after the Cut-off Date shall belong to the Seller.
(c)
Pursuant to the Pooling and Servicing
Agreement, the Depositor will transfer and assign all its right,
title and interest in and to the Mortgage Loans to the Trustee for
the benefit of the Certificateholders in consideration of the
issuance of the Certificates to the Depositor.
Section 3.
Transfer of the Mortgage
Loans .
(a)
Mortgage File . For purposes of this Agreement, the
“Mortgage File” will be as defined in the Pooling and
Servicing Agreement.
(b)
Transfer of Ownership
. Upon the sale of any Mortgage
Loans, the ownership of each Mortgage Loan Document with respect
thereto shall be vested in the Depositor, and the ownership of all
other records and documents with respect thereto prepared by or
which come into the possession of the Seller shall immediately vest
in the Depositor. The Seller shall promptly deliver to the
Custodian any documents that come into its possession with respect
to such Mortgage Loans following such sale. Prior to such
delivery, the Seller shall hold any such documents for the benefit
of the Depositor, its successors and assigns.
(c)
Delivery of Mortgage Files
. Not later than two Business Days
prior to the Closing Date the Seller shall deliver to the
Custodian, each of the Mortgage Loan Documents required to be
included in the Mortgage File. The Mortgage Note for each
such Mortgage Loan shall be endorsed to the Trustee or in blank,
and the Mortgage for each such Mortgage Loan shall either name the
Custodian as mortgagee or beneficiary, as appropriate, or be
assigned to the Trustee or in blank. Each such endorsement
and assignment shall be substantially in the form set forth in the
Custody Agreement.
Prior to the transfer and sale of any
Mortgage Loans, the Mortgage Loan Documents delivered to the
Custodian shall be held by the Custodian for the benefit of the
Seller and the possession by the Custodian of such Mortgage Loan
Documents will be at the will of the Seller and will be in a
custodial capacity only. Following the transfer and sale of
any Mortgage Loans from the Seller to the Depositor in accordance
with the terms and upon satisfaction of the conditions of this
Agreement, the Custodian will hold all Mortgage Loan Documents
delivered to it hereunder for the benefit of the Depositor, as its
agent and bailee. The Custodian, who will also act as the
Trustee, will act as a custodian for the receipt and custody of all
Mortgage Files and, after the transfer of any Mortgage Loans from
the Depositor to the Trustee, the Custodian will hold all Mortgage
Loan Documents delivered to it hereunder for the benefit of the
Trustee on behalf of the Certificateholders.
(d)
Examination of Mortgage Loan
Documents: Acceptance of Mortgage Loans
. Prior to the Closing Date, the
Seller shall either (i) deliver to the Depositor or its designee in
escrow, for examination, the Mortgage Loan Documents pertaining to
each Mortgage Loan then being sold by it or (ii) make such Mortgage
Loan Documents available to the Depositor or its designee for
examination at the Seller’s offices or at such other place as
the Seller shall specify. The Depositor, the Custodian or a
designee of either entity may review the Mortgage Loan Documents to
verify that all documents required to be included in each Mortgage
File (as such term has been defined in the Pooling and Servicing
Agreement) are so included.
Prior to the Closing Date, the Custodian
shall review the documents delivered pursuant to Section 3(c)
hereof to ascertain that, as to each Mortgage Loan listed on
Schedule I, (i) all documents required to be delivered by the
Seller pursuant to Section 3(c) have been received, (ii) such
documents appear regular on their face and relate to such Mortgage
Loan and (iii) the information on Schedule I accurately
reflects the information set forth in the corresponding Mortgage
File, to the extent required by Section 2.1 of the Pooling and
Servicing Agreement. An additional review shall be conducted
by the Custodian or its designee prior to the first anniversary of
the Closing Date to determine that all Mortgage Loan Documents
required to be included in the Mortgage File are included therein.
If at any time the Depositor or the Trustee, or its
Custodian, discovers or receives notice that any Mortgage Loan
Document is missing or defective in any material respect with
respect to any Mortgage Loan, the Seller shall correct or cure any
such omission or defect or, if such omission or defect materially
impairs the value of the Mortgage Loan, repurchase the defective
Mortgage Loan or substitute for such defective Mortgage Loan a
Qualified Substitute Mortgage Loan in accordance with and if
permitted by the terms of Section 6 hereof. At the time of
such repurchase or substitution, the Custodian shall release
documents in its possession relating to such Mortgage Loan to the
Seller. The fact that the Depositor, the Trustee or a
designee of either entity has conducted or has failed to conduct
any partial or complete examination of the Mortgage Loan Documents
prior to the Closing Date shall not affect the rights of the
Depositor (or any assignee or successor thereof) to demand
repurchase or other relief as provided herein.
(e)
Recordation of Assignments of
Mortgage . Subject to
the sale of the Mortgage Loans by the Seller to the Depositor, the
Depositor hereby authorizes and instructs the Seller, and the
Seller hereby agrees, to record all Assignments required to be
contained in the Mortgage File to the extent required pursuant to
Section 2.1 of the Pooling and Servicing Agreement. All
recording fees relating to the recordation of the Assignments as
described above shall be paid by the Seller. With respect to
any Non-MERS Mortgage Loans, if the Trustee does not receive,
within the time specified in the Pooling and Servicing Agreement,
evidence satisfactory to it of such recording with respect to any
Mortgage Loan in a Required Recordation State, the Seller shall, in
cooperation with the Trustee, correct or cure any such omission or
repurchase the affected Mortgage Loan within 90 days of such
demand, which demand is made within the time specified in the
Pooling and Servicing Agreement (including any such extensions
provided for therein).
Section 4.
Representations and Warranties of the
Seller .
The Seller hereby represents and warrants
to the Depositor as follows:
(a)
The Seller has been duly incorporated and
is validly existing and in good standing under the laws of the
State of Delaware and is duly qualified to do business and in good
standing under the laws of each jurisdiction that requires such
qualification wherein it owns or leases any material properties
(except where the failure so to qualify would not have a material
adverse effect on it). The Seller has the full corporate
power and authority to own its properties and conduct its business
as currently conducted.
(b)
The Seller has the full power, authority
(corporate and other) and legal right to execute and deliver,
engage in the transactions contemplated by, and perform and observe
the terms and conditions of, this Agreement.
(c)
This Agreement has been duly and validly
authorized, executed and delivered by the Seller and (assuming the
due authorization, execution and delivery hereof by the Depositor)
constitutes the valid, legal and binding agreement of the Seller,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, receivership, conservatorship, reorganization,
moratorium and other laws affecting creditors’ rights
generally and to general principles of equity, regardless of
whether such enforcement is sought in a proceeding in equity or at
law and except that the provisions of indemnity contained herein
may be unenforceable as against public policy.
(d)
No consent, approval, authorization or
order of or registration or filing with, or notice to, any
governmental authority or court is required, under federal laws or
the laws of the State of Delaware, for the execution, delivery and
performance of or compliance by the Seller with this Agreement or
the consummation by the Seller of the transactions contemplated
hereby.
(e)
None of the execution and delivery of
this Agreement by the Seller, the consummation by the Seller of the
transactions herein contemplated, or compliance with the provisions
hereof by the Seller, will (i) conflict with or result in a breach
of, or constitute a default under, any of the provisions of the
Seller’s charter or by-laws, or any law, governmental rule or
regulation, or any judgment, decree or order binding on the Seller
or any of its properties, or any of the provisions of any
indenture, mortgage, deed of trust, contract or other instrument to
which the Seller is a party or by which it is bound or (ii) result
in the creation or imposition of any lien, charge or encumbrance
upon any of its properties.
(f)
To the Seller’s knowledge, there is
no litigation pending or threatened against the Seller that would
reasonably be expected to materially and adversely affect the
execution, delivery, performance or enforceability of this
Agreement.
(g)
Each of the representations and
warranties set forth in Exhibit B hereto is true and correct
with respect to the Mortgage Loans as of the Closing
Date.
(h)
The statistical information in the
Prospectus Supplement under the headings “Description of the
Mortgage Pool — General,” “— Certain
Characteristics of the Mortgage Loans,” “Additional
Information” and “Underwriting Standards” is true
and correct.
Section 5.
Covenants of the Seller
.
The Seller hereby covenants with the
Depositor as follows:
(a)
On or before the Closing Date, it shall
take all steps required of it to effectuate the transfer of the
Mortgage Loans to the Trustee, as transferee of the Depositor, free
and clear of any lien, charge or encumbrance.
(b)
The Seller shall use its best efforts to
make available to counsel for the Depositor in executed form each
of the documents listed in Section 7(b) below no later than two
Business Days before the Closing Date, it being understood that
such documents are to be released and delivered only on the closing
of the transaction contemplated hereby and the sale of the
Certificates.
(c)
The Seller shall deliver or cause to be
delivered to the Depositor (i) an Opinion of Counsel as to various
corporate matters substantially in a form satisfactory to the
Depositor and (ii) such other Opinions of Counsel, if any, as are
required by any Rating Agency for the issuance of the ratings on
the Certificates specified in Section 7(d) below.
(a)
For federal income tax purposes, the
Seller will treat the transfer of the Mortgage Loans as a
sale.
Section 6.
Cure, Repurchase and Substitution
Obligations .
(a)
Each of the representations and
warranties of the Seller contained herein shall survive the
purchase by the Depositor of any of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive
or qualified endorsement on the Mortgage Notes and notwithstanding
subsequent termination of this Agreement or the Pooling and
Servicing Agreement. The representations and warranties shall
not be impaired by any review and examination of Mortgage Loan
Documents or other documents evidencing or relating to the Mortgage
Loans or any failure on the part of the Depositor to review or
examine such documents and shall inure to the benefit of the
Trustee (as the assignee of the Depositor) for the benefit of the
Certificateholders and the Custodian. With respect to the
representations and warranties contained herein 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 Seller, the Depositor,
the Custodian or the Trustee that the substance of any such
representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage
Loan, then notwithstanding the Seller’s knowledge or lack of
knowledge with respect to the inaccuracy of such representation and
warranty at the time it was made, the Seller shall take the action
described in the following paragraph in respect of such Mortgage
Loan.
(b)
Upon discovery or receipt of notice by
the Seller, the Depositor, the Trustee or the Custodian of any
missing or materially defective document in any Mortgage File, or a
breach of any of the Seller’s representations and warranties
set forth in Section 4 hereof with respect to any Mortgage Loan,
which in any of the foregoing cases materially and adversely
affects the value of any Mortgage Loan or the interest therein of
the Depositor, the Trustee or the Certificateholders, the party
discovering or receiving notice of such missing or materially
defective document, breach, or default shall give prompt written
notice to the others. Upon its discovery or its receipt of
notice of any such missing or materially defective document, breach
or default (the “Defect Discovery Date”), the Seller
shall either (a) within 90 days of discovery or receipt of such
notice, provide the Custodian with such missing documents or cure
such defect, breach or default, in all material respects or (b)
within 90 days of such discovery or receipt of such notice, either
repurchase the affected Mortgage Loan at the Purchase Price
therefor or cause the removal of such Mortgage Loan from the Trust
Fund (in which case it shall become a Deleted Mortgage Loan) and
substitute therefor one or more Qualified Substitute Mortgage Loans
as defined in the Pooling and Servicing Agreement; provided,
however , that any such substitution shall occur within two
years of the Closing Date. The Trustee or its designee shall
amend the Mortgage Loan Schedule to reflect the withdrawal of any
Mortgage Loan from the terms of this Agreement and the Pooling and
Servicing Agreement and the addition, if any, of a Qualified
Substitute Mortgage Loan. In order to effect a substitution
pursuant to this Section, the Seller will deliver (i) to the
Custodian each of the Mortgage Loan Documents required to be
contained in the Mortgage File with respect to the Substitute
Mortgage Loan(s) and (ii) if the aggregate Scheduled Principal
Balance on the date of substitution of the Qualified Substitute
Mortgage Loan(s) is less than the aggregate Scheduled Principal
Balance of the Deleted Mortgage Loan(s) (after application of
Scheduled Payments due in the month of substitution), to the
Trustee cash in an amount equal to such Substitution Adjustment
Amount. Any repurchase pursuant to this Section shall be
accomplished by the delivery into the Trustee Custodial Account, on
(or determined as of) the last day of the calendar month in which
such repurchase is made, of the Purchase Price for the Mortgage
Loans to be repurchased.
(a)
The obligations of the Seller set forth
in this Agreement to cure or to repurchase a materially defective
Mortgage Loan or to substitute a Qualified Substitute Mortgage Loan
for such Mortgage Loan and to indemnify the Depositor and others as
provided in this Agreement constitute the sole remedies of the
Depositor and the Trustee against the Seller respecting a defective
document in any Mortgage File or a breach of representations and
warranties of the Seller set forth in Section 4 hereof.
Section 7.
Conditions to Obligation of the
Depositor .
The obligation of the Depositor hereunder
to purchase the Mortgage Loans is subject to:
(a)
The representations and warranties of the
Seller under this Agreement (exclusive of Exhibit B hereto) shall
be accurate in all material respects as of the Closing Date, and no
event shall have occurred which, with notice or the passage of
time, would constitute a default under this Agreement;
(b)
The Depositor shall have received, or the
Depositor’s attorneys shall have received, in escrow (to be
released from escrow at the time of closing), the following
documents in such forms as are agreed upon and acceptable to the
Depositor, duly executed by all signatories other than the
Depositor as required pursuant to the respective terms
thereof:
(i)
A Bill of Sale substantially in the form
of Exhibit A hereto;
(ii)
An Opinion of Counsel for the Seller as
to various corporate matters and such other Opinions of Counsel as
are necessary in order to obtain the ratings set forth in Section
7(d) below, each of which shall be acceptable to the Depositor, its
counsel, the Underwriters, their counsel and the Rating Agencies
referred to below;
(iii)
The Pooling and Servicing Agreement
referred to in the Recitals;
(iv)
A letter from [Deloitte & Touche LLP]
dated the date hereof containing in substance the information
required by Section 6(c) of the Underwriting Agreement;
and
(v)
The Seller shall have delivered to the
Trustee or the Custodian, in escrow, all documents (including,
without limitation, the Mortgage assigned by the Seller in blank or
to the Trustee or Custodian and the Mortgage Note endorsed in blank
or
