EXHIBIT 10.2
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
February 28, 2008, is between Xxxxx Fargo Asset Securities Corporation, a
Delaware corporation (the "Company"), and Xxxxx Fargo Bank, N.A., a national
banking association (the "Seller" or "Xxxxx Fargo Bank").
The Company and the Seller hereby recite and agree as follows:
1. Defined Terms. Terms used without definition herein shall have
the respective meanings assigned to them in the Pooling and Servicing Agreement,
dated as of February 28, 2008 (the "Pooling and Servicing Agreement"), among the
Company, Xxxxx Fargo Bank, as master servicer (the "Master Servicer"), and HSBC
Bank USA, National Association, as trustee (the "Trustee"), relating to the
issuance of the Company's Mortgage Pass-Through Certificates, Series 2008-AR2
(the "Certificates") or, if not defined therein, in the underwriting agreement,
dated February 15, 2006, and terms agreement, dated January 23, 2008 (together,
the "Underwriting Agreement"), among the Company, Xxxxx Fargo Bank and Xxxxxx
Brothers Inc. ("Xxxxxx Brothers Inc.").
2. Assignment of Servicing Agreements. The Seller agrees to sell,
and the Company agrees to purchase, the mortgage loans (the "Mortgage Loans")
listed on the Mortgage Loan Schedule and all of the Seller's interest with
respect to the Mortgage Loans as the owner in, to and under each Servicing
Agreement.
3. Purchase Price; Purchase and Sale. The purchase price (the
"Purchase Price") for the Mortgage Loans shall consist of $[______________]
payable by the Company to the Seller on the Closing Date in immediately
available funds and the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5
and Class B-6 Certificates (the "Class B Certificates") transferred by the
Company to the Seller on the Closing Date.
Upon payment of the Purchase Price, the Seller shall be deemed to
have transferred, assigned, set over and otherwise conveyed to the Company all
the right, title and interest of the Seller in and to the Mortgage Loans
including all interest and principal received or receivable by the Seller on or
with respect to the Mortgage Loans after the Cut-Off Date (and including
scheduled payments of principal and interest due after the Cut-Off Date but
received by the Seller on or before the Cut-Off Date and Principal Prepayments
received or applied on the Cut-Off Date, but not including payments of principal
and interest due on the Mortgage Loans on or before the Cut-Off Date), together
with all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard, primary mortgage or other insurance policies, the
Seller's right to receive amounts, if any, payable on behalf of any Mortgagor
from the Subsidy Account relating to any Subsidy Loan, all of the Seller's
rights described in Section 2 above, and all other property and rights described
in the first paragraph of Section 2.01(a) of the Pooling and Servicing
Agreement. The Company hereby directs the Seller, and the Seller hereby agrees,
to deliver to the Trustee or Custodian on behalf of the Trustee, all documents,
instruments and agreements required to be delivered by the Company to the
Trustee under the Pooling and Servicing Agreement; including, without
limitation, the documents required to be delivered under Section 2.01(a) of the
Pooling and Servicing Agreement; and upon the occurrence of a Document Transfer
Event, the documents required to be delivered under Section 2.01(b). The Seller
further agrees to deliver such other documents, instruments and agreements as
the Company or the Trustee shall reasonably request.
4. Representations and Warranties; Covenants. The Seller hereby
represents and warrants to the Company that (i) the Company's representations
and warranties to the Trustee pursuant to Section 2.03(b) of the Pooling and
Servicing Agreement are true and correct, as of the date thereof, and (ii)
Seller has not dealt with any broker, investment banker, agent or other person
(other than the Company and Xxxxxx Brothers Inc.) who may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans.
The Seller hereby agrees to cure any breach of such representations and
warranties in accordance with the terms of the Pooling and Servicing Agreement.
The Seller hereby agrees to continue to pay on behalf of the Company
and its successors and assignees, promptly as they become due, any lender-paid
primary mortgage insurance premiums ("LPMI Premiums") with respect to any
lender-paid primary mortgage insurance policy (an "LPMI Policy") on each
Mortgage Loan so insured as of the Cut-Off Date, until such Mortgage Loan has
been paid in full or otherwise liquidated; provided, however, that the foregoing
obligation of the Seller shall terminate with respect to all such Mortgage Loans
in the event that either (i) another entity acceptable to the insurers of such
LPMI Policies (the "LPMI Insurers") and the rating agencies rating the
Certificates undertakes to pay such LPMI Premiums, or (ii) the Seller pays
one-time premiums to such LPMI Insurers such that all outstanding LPMI Policies
will remain in force until the related Mortgage Loans have been paid in full or
otherwise liquidated, without the requirement of any further premium payments.
5. Repurchase or Substitution. (a) The Seller hereby agrees to
repurchase any Mortgage Loan (i) for which any document is not delivered, as
provided in paragraph 3 above, (ii) which is found by the Trustee or the
Custodian to be defective in any material respect, as provided in the Pooling
and Servicing Agreement, or (iii) which is discovered at any time not to be in
conformance with the representations and warranties referred to in paragraph 4
above and which document relating thereto the Seller does not deliver or which
defect or breach the Seller does not cure (as provided in paragraph 4 above)
within 60 days after the date of notice thereof from the Trustee or the Company,
at a price equal to the Repurchase Price. In addition, the Seller hereby agrees
to reimburse the Company for any Reimbursement Amount. Alternatively, the Seller
hereby agrees, if so requested by the Company to substitute for any such
Mortgage Loan, a new mortgage loan having characteristics such that the
representations and warranties referred to in paragraph 4 above would not have
been incorrect (except for representations and warranties as to the correctness
of the Mortgage Loan Schedule) had such substitute mortgage loan originally been
a Mortgage Loan. The Seller further agrees that a substituted mortgage loan will
have (i) an unpaid principal balance no greater than the Scheduled Principal
Balance of the Mortgage Loan for which it is substituted (after giving effect to
the scheduled principal payment due in the month of substitution on the Mortgage
Loan for which such mortgage loan is substituted), (ii) a Net Mortgage Interest
Rate equal to and a Loan-to-Value Ratio no greater than, that of the Mortgage
Loan for which it is substituted, (iii) the same Gross Margin and Index as that
of the Mortgage Loan for which it is substituted and (iv) the same frequency of
mortgage rate adjustment as that of the Mortgage Loan for which it is
substituted. The Seller shall remit to the Company, in cash, the difference
between the unpaid principal balance of the Mortgage Loan to be substituted and
the unpaid principal balance of the substitute mortgage loan.
(b) In the event that the Seller has a right against the originator
or former owner (the "Prior Holder") of a Mortgage Loan which is in default or
as to which default is reasonably foreseeable for breach of a representation or
warranty regarding the characteristics of such Mortgage Loan made by the Prior
Holder, the Seller may request the Company to repurchase the Mortgage Loan from
the Trust Estate pursuant to Section 3.08 of the Pooling and Servicing Agreement
and the Seller agrees that at the time of the repurchase by the Company, the
Seller will repurchase the Mortgage Loan from the Company at a price equal to
the Repurchase Price.
At the time of any such repurchase by the Seller, the Seller agrees
either to promptly (i) liquidate such Mortgage Loan, to the extent that the
Seller's rights in respect of the Prior Holder consist of a claim for indemnity
or (ii) transfer such Mortgage Loan to the Prior Holder at a price not less than
that paid by the Seller to the Company.
6. Underwriting. The Seller hereby agrees to furnish any and all
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans, reasonably requested by the Company in order to perform any of
its obligations or satisfy any of the conditions on its part to be performed or
satisfied pursuant to the Underwriting Agreement at or prior to the Closing
Date.
7. Costs. The Company shall pay all expenses incidental to the
performance of its obligations under the Underwriting Agreement, including
without limitation (i) any recording fees or fees for title policy endorsements
and continuations, (ii) the expenses of preparing, printing and reproducing the
Prospectus, the Prospectus Supplement, the Underwriting Agreement, the Pooling
and Servicing Agreement and the Certificates and (iii) the cost of delivering
the Class A Certificates to Xxxxxx Brothers Inc. (or its designee) insured to
the satisfaction of Xxxxxx Brothers Inc.
8. Servicing. (a) The Seller hereby represents to the Company that
the Mortgage Loans are serviced by the Servicers. The Seller has delivered
copies of each Servicing Agreement to the Company, though omitting schedules of
mortgage loans which are serviced thereunder, but which are not being sold in
this transaction.
(b) With respect to each Mortgage Loan, the Servicing Fee Rate and
the Master Servicing Fee Rate (which is in addition to the Servicing Fee Rate)
shall be as set forth on the Mortgage Loan Schedule.
(c) On the Closing Date, the Seller shall assign to the Company its
interest with respect to the Mortgage Loans in, to and under each Servicing
Agreement.
9. Notices. All demands, notices and communications hereunder shall
be in writing, shall be effective only upon receipt and shall, if sent to the
Company, be addressed to it at Xxxxx Fargo Asset Securities Corporation, 0000
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attn: Vice President, Structured
Finance, or, if sent to the Seller, be addressed to it at Xxxxx Fargo Bank,
N.A., 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx, 00000, Attn: Vice President,
Structured Finance.
10. Trustee Beneficiary. The representations, warranties and
agreements made by the Seller in this Agreement are made for the benefit of, and
may be enforced by, the Trustee and the holders of Certificates to the same
extent that the Trustee and the holders of Certificates, respectively, have
rights against the Company under the Pooling and Servicing Agreement in respect
of representations, warranties and agreements made by the Company therein.
11. Recharacterization. The parties hereto intend the conveyance by
the Seller to the Company of all of its right, title and interest in and to the
Mortgage Loans pursuant to this Agreement to constitute a purchase and sale and
not a loan. Notwithstanding the foregoing, to the extent that such conveyance is
held not to constitute a sale under applicable law, it is intended that this
Agreement shall constitute a security agreement under applicable law and that
the Seller shall be deemed to have granted to the Company a first priority
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans.
12. Miscellaneous. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought. This Agreement may not be changed in any
manner which would have a material adverse effect on holders of Certificates
without the prior written consent of the Trustee. The Trustee shall be protected
in consenting to any such change to the same extent provided in Article VIII of
the Pooling and Servicing Agreement. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument. This Agreement shall bind and
inure to the benefit of and be enforceable by the Company and the Seller and
their respective successors and assigns.
IN WITNESS WHEREOF, the Company and the Seller have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
XXXXX FARGO ASSET SECURITIES CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
