Exhibit 10.1
[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.
5
Section 5. Covenants of the
Seller.
6
Section 6. Cure, Repurchase and
Substitution Obligations.
6
Section 7. Conditions to Obligation of
the Depositor.
8
Section 8. Mandatory Delivery; Grant of
Security Interest.
8
Section 9. Indemnification.
9
Section 10. Notices.
9
Section 11. Severability of
Provisions.
10
Section 12. Governing Law.
10
Section 13. Agreement of the
Seller.
11
Section 14. Survival.
11
Section 15. Assignment.
11
Section 16. Miscellaneous.
11
Section 17. Request for
Opinions.
13
Schedule I
Mortgage Loans
Exhibit A
Representations and Warranties of [Aegis
Mortgage Corporation]
[Exhibit B
Form of Transfer Supplement]
[The provisions of the Sale Agreement for
each series will be modified as applicable]
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] [two pools] of one- to four-family,
fully amortizing and balloon mortgage loans (collectively, the
“[Initial] Mortgage Loans”) currently owned by the
Seller that the Seller desires to sell to the Depositor.
(2)
The Depositor desires to purchase the
[Initial] Mortgage Loans from the Seller and intends immediately
thereafter to transfer the [Initial] Mortgage Loans and any other
assets constituting the Trust Fund, and assign all its rights and
delegate all of its obligations under this Agreement, to
[ ], as
trustee (the “Trustee”), pursuant to the terms of a
pooling and servicing agreement dated as of
[ ] (the
“Pooling and Servicing Agreement”), among the
Depositor, the Seller,
[ ], as
servicer (the “Servicer”) [,
[ ], as
[master servicer (in such capacity, the “Master
Servicer”), securities administrator (in such capacity, the
“Securities Administrator”) and custodian (in such
capacity, the “Custodian”),
[ ], as
credit risk manager,] and the Trustee.
(3)
[The Depositor intends to purchase
certain additional mortgage loans (the “Subsequent Mortgage
Loans,” and together with the Initial Mortgage Loans, the
“Mortgage Loans”) from the Seller during the
Pre-Funding Period (as defined in the Pooling and Servicing
Agreement).]
(4)
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.
(5)
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.”
(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 Loan s.
(a)
[Purchase and Sale of Initial Mortgage
Loans. ] 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 [Initial] Mortgage Loans
[(exclusive of the servicing rights related thereto)] having an
aggregate principal balance as of
[ ] (the
“Cut-off Date”), of approximately
$[ ].
(b)
[ Purchase and Sale of Subsequent
Mortgage Loans . Throughout the term of this Agreement,
by execution of a Transfer Supplement in the form attached hereto
as Exhibit B, the Seller will sell to the Depositor and the
Depositor shall purchase from the Seller, subject to satisfaction
of the conditions set forth in Section 2.1(b) of the Pooling and
Servicing Agreement, Subsequent Mortgage Loans for Pool 1 with
respect to which the aggregate Transfer Price (as specified in the
Transfer Supplement) does not exceed the amount then on deposit in
the Pre-Funding Account. Subject to the conditions set forth
in this Section 1(b), in consideration of the Depositor’s
delivery on the related Transfer Date (as specified in the Transfer
Supplement) to the Seller or its designee, or upon the order of the
Seller, of the Transfer Price for the related Subsequent Mortgage
Loans, the Seller shall, on such Transfer Date, sell, transfer,
assign, set over and otherwise convey to the Depositor, without
recourse, but subject to the other terms and provisions of this
Agreement, all of the right, title and interest of the Seller in
and to each Subsequent Mortgage Loan (including all interest and
principal received or receivable on or with respect to such
Subsequent Mortgage Loan, but not including interest due and
payable on such Subsequent Mortgage Loans prior to the Subsequent
Cut-off Date) identified on the Transfer Supplement and delivered
by the Seller on such Transfer Date and all items in the related
Mortgage File.]
(c)
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 [Initial] 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. [In connection with the sale of Subsequent
Mortgage Loans to the Depositor, the Seller and the Depositor shall
amend the Mortgage Loan Schedule to reflect the addition of
Subsequent Mortgage Loans.]
Section 2.
Purchase Price of Mortgage Loans .
(a)
On the Closing Date, as full
consideration for the Seller’s sale of the [Initial] Mortgage
Loans to the Depositor, the Depositor shall deliver to the Seller
cash and Certificates equal to
$[ ].
(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 [(or,
with respect to the Subsequent Mortgage Loans, the Subsequent
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 [(or, with respect to the Subsequent
Mortgage Loans, the Subsequent 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 [(or, with respect to the Subsequent
Mortgage Loans, the Subsequent Cut-off Date)] but reflected in the
aggregate Cut-off Date Balance. All Scheduled Payments due on
or before the Cut-off Date [(or, with respect to the Subsequent
Mortgage Loans, the Subsequent Cut-off Date)] and collected on or
after the Cut-off Date [(or, with respect to the Subsequent
Mortgage Loans, the Subsequent 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 and any other
assets constituting the Trust Fund to the Trustee for the benefit
of the Certificateholders in consideration of the issuance of the
Certificates to the Depositor or its designee(s).
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, upon the direction of the
Depositor, promptly deliver to the Custodian or such other designee
as the Depositor may direct, 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
. To the extent not previously
delivered to the Depositor or a designee of the Depositor, the
Seller shall, not later than two Business Days prior to the Closing
Date [or the applicable Transfer Date], at the direction of the
Depositor, 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 in
blank or as otherwise directed by the Depositor, and the Mortgage
for each such Mortgage Loan shall name the Depositor, the Custodian
or such other party as designated by the Depositor as mortgagee or
beneficiary, as appropriate, or be assigned in blank or as
otherwise directed by the Depositor.
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 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
. To the extent not previously
delivered to the Depositor or a designee of the Depositor, the
Seller shall, prior to the Closing Date [or the applicable Transfer
Date], 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. Any such Mortgage Loan Documents so held
by the Seller and so made available to the Depositor or its
designee shall be held by the Seller and so made available solely
as a matter of convenience to the Depositor or its designee and in
lieu of delivering such Mortgage Loan Documents to the Depositor or
its designee. 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 [or the
applicable Transfer Date], the Seller shall cause the Custodian to
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 [or the applicable Transfer
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 shall be 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 A hereto is true and correct
with respect to the Mortgage Loans as of the Closing Date [or the
applicable Transfer Date].
(h)
The statistical information in the
prospectus supplement dated
[ ] (the
“Prospectus Supplement”), to the prospectus dated
[ ],
under the headings “Description of the Mortgage
Pool[s]—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 [or the
applicable Transfer 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 [or the applicable Transfer
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.
(d)
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 [(
provided that the breach of any of the Seller’s
representations and warranties set forth in paragraph [(48)] of
Exhibit A shall be deemed to materially and adversely affect the
interests of 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
Custodial Account, or at the direction of the Depositor, 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.
(c)
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 A hereto) shall
be accurate in all material respects as of the Closing Date [or the
applicable Transfer 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)
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;
(ii)
The Pooling and Servicing Agreement
referred to in the Recitals;
(iii)
A letter from [Deloitte & Touche LLP]
dated the date hereof containing in substance the information
required by Section 6(c) of the underwriting agreement dated
[ ],
among the Depositor, the Seller,
[ ]
[and]
[ ];
and
(iv)
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 to the Trustee or Custodian with respect to each Mortgage Loan)
required to be delivered hereunder and shall have released its
interest therein to
