EXHIBIT 10.1
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HOMEPRIDE MORTGAGE AND FINANCE CORP.
as Purchaser,
and
[___________________________________]
as Seller,
LOAN PURCHASE AGREEMENT
Dated as of ________________
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................................3
SECTION 1.1 DEFINITIONS........................................................................3
ARTICLE II SALE OF CONTRACTS AND RELATED PROVISIONS...........................................3
SECTION 2.1 SALE OF [CONTRACTS] [MORTGAGE LOANS]...............................................3
SECTION 2.2 PAYMENT OF PURCHASE PRICE..........................................................6
SECTION 2.3 [RESERVED].........................................................................6
SECTION 2.4 [RESERVED].........................................................................7
SECTION 2.5 [RESERVED].........................................................................7
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH................................8
SECTION 3.1 SELLER REPRESENTATIONS AND WARRANTIES..............................................8
ARTICLE IV SELLER'S COVENANTS................................................................12
SECTION 4.1 COVENANTS OF THE SELLER...........................................................12
ARTICLE V SERVICING.........................................................................13
SECTION 5.1 SERVICING.........................................................................13
ARTICLE VI INDEMNIFICATION BY THE SELLER WITH RESPECT TO THE [CONTRACTS] [MORTGAGE LOANS]....13
SECTION 6.1 INDEMNIFICATION WITH RESPECT TO THE [CONTRACTS] [MORTGAGE LOANS]..................13
SECTION 6.2 LIMITATION ON LIABILITY OF THE SELLER.............................................13
ARTICLE VII TERMINATION.......................................................................13
SECTION 7.1 TERMINATION.......................................................................14
ARTICLE VIII MISCELLANEOUS PROVISIONS..........................................................14
SECTION 8.1 AMENDMENT.........................................................................14
SECTION 8.2 GOVERNING LAW.....................................................................14
SECTION 8.3 NOTICES...........................................................................14
SECTION 8.4 SEVERABILITY OF PROVISIONS........................................................14
SECTION 8.5 RELATIONSHIP OF PARTIES...........................................................15
SECTION 8.6 COUNTERPARTS......................................................................15
SECTION 8.7 FURTHER AGREEMENTS................................................................15
SECTION 8.8 INTENTION OF THE PARTIES..........................................................15
SECTION 8.9 SUCCESSORS AND ASSIGNS; ASSIGNMENT OF THIS AGREEMENT..............................15
SECTION 8.10 SURVIVAL..........................................................................16
TABLE OF CONTENTS
(continued)
Page
EXHIBIT 1 ..................................................................................18
[RESERVED] ..................................................................................18
EXHIBIT 2 [FORM OF OPINION OF COUNSEL PURSUANT TO SECTION 2.3]..............................20
EXHIBIT 3 [CONTRACT] [MORTGAGE LOAN] SCHEDULE...............................................21
-II-
This LOAN PURCHASE AGREEMENT (this "Agreement"), dated as of
________________, is made between [___________________________________] (the
"Seller") and HomePride Mortgage and Finance Corp. (the "Purchaser").
W I T N E S S E T H :
WHEREAS, the Seller owns Cut-off Date Asset Balances and the Related
Documents (each as defined herein) for the [manufactured housing contracts]
[mortgage loans] listed on the [Contract] [Mortgage Loan] Schedule attached as
Exhibit 3 hereto (collectively, the "[Contracts] [Mortgage Loans]"), including
rights to (a) any property acquired by foreclosure or deed in lieu of
foreclosure or otherwise, and (b) the proceeds of any insurance policies
covering the Contracts;
WHEREAS, the parties hereto desire that (i) the Seller sell the
Cut-off Date Asset Balances of the [Contracts] [Mortgage Loans] to the Purchaser
pursuant to the terms of this Agreement together with the Related Documents on
the Closing Date, and thereafter all Additional Balances created on or after the
Cut-off Date and (ii) the Seller sell certain Additional Loans and the
Additional Balances thereto (as defined herein) on and after the Closing Date;
WHEREAS, the Purchaser will create [________] 200_-____ Trust (the
"Trust," or the "Issuer") under Delaware law, and will transfer the [Contracts]
[Mortgage Loans] and all of its rights under this Agreement to the Trust, as a
capital contribution to the Trust;
[WHEREAS, pursuant to the terms of a Pooling and Servicing Agreement
dated as of __________ (the "Pooling Agreement") between the Seller, as [master]
servicer (the "[Master] Servicer"), the Purchaser, and _________, the trustee
(the "Trustee"), the [Master] Servicer will service the [Contracts] [Mortgage
Loans] directly or through one or more Subservicers;]
[WHEREAS, pursuant to the terms of a Servicing Agreement dated as of
__________ (the "Servicing Agreement") between the Seller, as [master] servicer
(the "[Master] Servicer"), the Trust, and _________, the indenture trustee (the
"Indenture Trustee"), the [Master] Servicer will service the Contracts directly
or through one or more Subservicers;]
[WHEREAS, pursuant to the terms of a Trust Agreement dated as of
_______________ (the "Trust Agreement") between the Purchaser, as depositor and
______________________, as owner trustee (the "Owner Trustee"), the Trust will
issue the Certificates (as defined in the Trust Agreement);]
[WHEREAS, pursuant to the terms of an Indenture dated as of
_______________ (the "Indenture") between the Issuer and the Indenture Trustee,
the Issuer will issue and transfer to or at the direction of the Purchaser the
Asset-Backed [Notes] [Certificates], Series ______ (the "[Notes]
[Certificates]");]
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For all purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Definitions contained in [the Pooling and Servicing
Agreement] [Appendix A to the Indenture], which is incorporated by reference
herein. All other capitalized terms used herein shall have the meanings
specified herein.
ARTICLE II
SALE OF CONTRACTS AND RELATED PROVISIONS
Section 2.1 Sale of [Contracts] [Mortgage Loans].
(a) The Seller, by the execution and delivery of this Agreement, does
hereby sell, assign, set over, and otherwise convey to the Purchaser, without
recourse, all of its right, title and interest in, to and under the following,
whether now existing or hereafter acquired and wherever located: (i) the
[Contracts] [Mortgage Loans], (including without limitation the Cut-off Date
Asset Balances and Deposit Date Asset Balances, as applicable, and all
Additional Balances; (provided, however, that following the occurrence of an
Amortization Event, any subsequent loan balance represented by each Draw and
interest thereon will not be deemed transferred to the Trust, and the Seller (in
such event) shall retain ownership of each loan balance represented by each such
Draw made thereafter and interest thereon); all interest accruing thereon and
all collections in respect thereof received on or after the Cut-off Date or the
related Deposit Date, as applicable); (ii) property which secured a [Contract]
[Mortgage Loan] and which has been acquired by foreclosure or deed in lieu of
foreclosure; (iii) the interest of the Seller in any insurance policies in
respect of the [Contracts] [Mortgage Loans]; and (iv) all proceeds of the
foregoing provided, however, that the Purchaser does not assume the obligation
under each Loan Agreement to fund Draws to the Mortgagor thereunder, and the
Purchaser shall not be obligated or permitted to fund any such Draws, it being
agreed that the Seller will retain the obligation to fund future Draws. Such
conveyance shall be deemed to be made: (1) with respect to the Initial Loans, as
of the Closing Date; (2) with respect to each Additional Loan and the Deposit
Date Asset Balance thereof, as of the related Deposit Date; and (3) with respect
to the amount of each Additional Balance created on or after the Cut-off Date
with respect to any Initial Loan and with respect to the amount of each
Additional Balance created on or after the related Deposit Date with respect to
any Additional Loan, as of the later of the Closing and the date that the
corresponding Draw was made pursuant to the related Loan Agreement, subject to
the receipt by the Seller of consideration therefor as provided herein under
clause (b) of Section 2.2.
(b) In connection with the conveyance set forth in Section 2.1(a), the
Seller further agrees, at its own expense, on or prior to the Closing Date with
respect to the Asset Balance of the [Contracts] [Mortgage Loans], to indicate in
its books and records that the [Contracts] [Mortgage Loans] have been sold to
the Purchaser pursuant to this Agreement and to
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deliver to the Purchaser true and complete lists of all of the [Contracts]
[Mortgage Loans], specifying as of the Cut-off Date (i) its account number and
(ii) its Cut-off Date Asset Balance. Such lists, which form part of the
[Contract] [Mortgage Loan] Schedule, shall be marked as Exhibit 3 to this
Agreement and are hereby incorporated into and made a part of this Agreement.
(c) In connection with the conveyance set forth in Section 2.1(a), the
Seller shall on behalf of the Purchaser deliver to, and deposit with the
respective Custodian, on or before the Closing Date the following documents or
instruments (or copies thereof as permitted by this Section) with respect to
each [Mortgage Loan] [Land Home Contract] so assigned the original Mortgage
Note, [with respect to each Contract so assigned, the original title document],
endorsed without recourse in blank, or in the name of the Purchaser, and signed
by an authorized officer (which endorsement shall contain either an original
signature or a facsimile signature of an authorized officer of the Seller, and
if in the form of an allonge, the allonge shall be stapled to the Mortgage
Note), with all intervening endorsements showing a complete chain of title from
the originator to the Seller. If the [Mortgage Loan] [Contract] was acquired by
the endorser in a merger, the endorsement must be by "____________, successor by
merger to [name of predecessor]". If the [Mortgage Loan] [Contract] was acquired
or originated by the endorser while doing business under another name, the
endorsement must be by "____________ formerly known as [previous name]."
In lieu of delivering the Mortgage Note relating to any [Mortgage
Loan] [Land Home Contract, or original title document with respect to each
Contract this is not a Land Home Contract], the Seller may deliver a lost note
affidavit from the Seller stating that the original Mortgage Note [or title
document] was lost, misplaced or destroyed, and, if available, a copy of each
original Mortgage Note; provided, however, that in the case of [Mortgage Loans]
[Land Home Contracts] which have been prepaid in full after the Cut-off Date and
prior to the Closing Date, the Seller, in lieu of delivering the above
documents, may deliver to the Custodian, if any, or the Trustee, a certification
to such effect and shall deposit all amounts paid in respect of such [Contract]
[Mortgage Loan] in the Custodial Account on the Closing Date.
All other documents contained in the [Contract File] [Mortgage File]
[Land Home Contract File] and any original documents relating to the [Mortgage
Loans] [Contracts] not contained in the [Contract File] [Mortgage File] [Land
Home Contract File] or delivered to the Custodian, if any, or the Purchaser are
and shall be held by the Seller in trust as agent for the Purchaser.
Within the time period for the review of each [Contract File]
[Mortgage File] [Land Home Contract File] set forth in Section ____ of the
Custodial Agreement, if a material defect in any [Contract File] [Mortgage File]
[Land Home Contract File] is discovered which may materially and adversely
affect the value of the related [Contract] [Mortgage Loan], or the interests of
the [Indenture] Trustee (as pledgee of the Securityholders), the [Noteholders,
the Certificateholders] [Certificateholders] [or the Credit Enhancer] in such
[Contract] [Mortgage Loan] including the Seller's failure to deliver any
document required to be delivered to the applicable Custodian on behalf of the
[Indenture] Trustee (provided that a [Contract File] [Mortgage File] [Land Home
Contract File] will not be deemed to contain a defect for an unrecorded
assignment under clause (iii) above if the Seller has submitted such assignment
for recording or if such assignment is not required to be recorded pursuant to
the terms of the
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following paragraph), the Seller shall cure such defect, repurchase the related
[Contract] [Mortgage Loan] at the Repurchase Price or substitute an Eligible
Substitute [Contract] [Mortgage Loan] for the related [Contract] [Mortgage Loan]
upon the same terms and conditions set forth in Section 3.1 hereof for breaches
of representations and warranties as to the [Contracts] [Mortgage Loans].
Within 90 days after the Closing Date (or 60 days after the date of
transfer of any Eligible Substitute [Contract] [Mortgage Loan] or the related
Deposit Date for any Additional Loan, if applicable), the Seller at its own
expense shall complete and submit for recording in the appropriate public office
for real property records each of the assignments referred to in above, with
such assignment completed in favor of the Trust. While such assignment to be
recorded is being recorded, the applicable Custodian shall retain a photocopy of
such assignment. If any assignment is lost or returned unrecorded to the
applicable Custodian because of any defect therein, the Seller is required to
prepare a substitute assignment or cure such defect, as the case may be, and the
Seller shall cause such assignment to be recorded in accordance with this
paragraph.
In the event that the Seller delivers to the Custodian on behalf of
the Indenture Trustee any Mortgage Note or assignment in blank, the Seller
shall, or shall cause the Custodian to, complete the endorsement of the Mortgage
Note within 45 days after the Closing Date
In instances where an original Mortgage or any original intervening
assignment of Mortgage was not, in accordance with this Section, delivered by
the Seller to the respective Custodian prior to or concurrently with the
execution and delivery of this Agreement, the Seller will deliver or cause to be
delivered the originals of such documents to such Custodian promptly upon
receipt thereof.
The Purchaser hereby acknowledges its acceptance of all right, title
and interest to the property, now existing and hereafter created, conveyed to it
pursuant to this Section 2.1.
(d) The parties hereto intend that the transactions set forth herein
constitute a sale by the Seller to the Purchaser of all the Seller's right,
title and interest in and to the [Contracts] [Mortgage Loans] and other property
as and to the extent described above. In the event the transactions set forth
herein are deemed not to be a sale, the Seller hereby grants to the Purchaser a
security interest in all of the Seller's right, title and interest in, to and
under the [Contracts] [Mortgage Loans] and such other property, to secure all of
the Seller's obligations hereunder, and this Agreement shall constitute a
security agreement under applicable law. The Seller agrees to take or cause to
be taken such actions and to execute such documents, including without
limitation the filing of all necessary UCC-1 financing statements filed in the
State of [___________________] (which shall have been submitted for filing as of
the Closing Date with respect to the Asset Balance of the Initial Loans or as of
the applicable Deposit Date with respect to the Additional Loans), any
continuation statements with respect thereto and any amendments thereto required
to reflect a change in the name or corporate structure of the Seller or the
filing of any additional UCC-1 financing statements due to the change in the
principal office of the Seller, as are necessary to perfect and protect the
Purchaser's interests in each [Contract] [Mortgage Loan] and the proceeds
thereof.
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Section 2.2 Payment of Purchase Price.
(a) The "Purchase Price" for the [Contracts] [Mortgage Loans]
(including the Additional Balances) shall be (i) (A) in the case of each Initial
Loan transferred hereunder on the Cut-off Date, ___% of the Cut-off Date Asset
Balance thereof, (B) in the case of the Deposit Date Asset Balance of each
Additional Loan transferred hereunder on any Deposit Date, 100% of the Deposit
Date Asset Balance thereof as of the related Deposit Date and (C) in the case of
each Additional Balance transferred hereunder created on or after the Cut-off
Date with respect to any Initial Loan or created on or after the related Deposit
Date with respect to any Additional Loan, the principal amount of the related
Draw under the Loan Agreement on the later of the Closing Date and the date of
the creation of such Additional Balance, together with (ii) the Certificates.
(b) In consideration of the sale of the Initial Loans from the Seller
to the Purchaser on the Closing Date, the Purchaser shall pay to the Seller on
the Closing Date by wire transfer of immediately available funds to a bank
account designated by the Seller, the amount specified above in clause (i) (A)
for each Initial Loan and the Purchaser shall transfer to the Seller on the
Closing Date the Certificates; provided, that such payment may be on a net
funding basis if agreed by the Seller and the Purchaser. In consideration for
the sale of each Additional Loan from the Seller to the Purchaser on the related
Deposit Date, the Issuer as assignee of the Purchaser shall remit to the Seller
on such Deposit Date by wire transfer of immediately available funds to a bank
account designated by the Seller, the amount specified above in clause (i)(B)
for such Additional Loan. With respect to each Additional Balance transferred
hereunder with respect to any [Contract] [Mortgage Loan], the Issuer as assignee
of the Purchaser shall pay or cause to be paid to the Seller the portion of the
Purchase Price specified above in clause (i)(C) for such Additional Balance in
one of the following ways, as applicable: for any Collection Period during the
Revolving Period, so long as an Amortization Event has not occurred, a cash
payment pursuant to Section 3.03(ii) of the Servicing Agreement and Section
2.2(a)(i)(C) hereof in an amount equal to the related Draw, if then available
from Principal Collections during the related Collection Period on the
[Contracts] [Mortgage Loans].
Section 2.3 Procedure for Transfer of Additional Loans on or after the
Closing Date.
(a) Except as otherwise agreed by the Seller, the Purchaser [and the
Credit Enhancer], each Additional Loan shall be either a _________ Loan, a
______ Loan or a ________ Loan. Each Additional Loan shall (i) be not more than
30 days delinquent at the time of transfer to the Issuer, (ii) be secured by a
first or second lien on the related [Manufactured Home] [Mortgaged Property],
(iii) have an original draw period not greater than 15 years, and an original
term to maturity not greater than 25 years, (iv) have a principal balance at the
time of transfer to the Issuer not greater than $_______, (v) have a Gross
Margin not less than 1%, (vi) have a Combined Loan-to-Value Ratio not greater
than 100% (except due to rounding) and (vii) if the [Contract] [Mortgage Loan]
provides for an initial period during which the [Contract] [Loan] Rate is less
than the sum of the current Index plus the applicable Gross Margin, such initial
period shall not extend beyond three months after the date of such transfer (any
such Additional Loan, a "Teaser Loan"). In addition, as of any Deposit Date the
[Contracts] [Mortgage Loans] after giving effect to the transfer of the
Additional Loans must (i) have a
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weighted average Gross Margin not less than ____% and (ii) have a weighted
average Combined Loan-to-Value Ratio not greater than __% (determined, in each
case, based on the Credit Limits of all [Contracts] [Mortgage Loans] including
such Additional Loans on or before the Deposit Date). Furthermore, no more that
__% of the Additional Loans transferred on any date may be Teaser Loans
(determined based on the Credit Limits of all Additional Loans transferred to
the Issuer on such date) and no less than _% of the Additional Loans transferred
on any date will be secured by a first lien on the [Manufactured Home]
[Mortgaged Property] (determined based on the Credit Limits of all Additional
Loans transferred to the Issuer on such date). All representations and
warranties as to each Additional Loan shall be as provided in clauses (ii)
through (xi) in Section 3.1(b) hereof other than clause (viii), except as
otherwise specified by the Seller prior to the Deposit Date and approved by the
Purchaser. The Seller shall provide notice to the Purchaser, the Rating Agencies
and the Credit Enhancer of each proposed transfer of Additional Loans hereunder
not less than 10 days prior to the proposed Deposit Date, together with a form
of Schedule Annex (or, if requested, a computer diskette containing such
information) relating thereto. The foregoing criteria for Additional Loans are
subject to revision with the written consent of [the Credit Enhancer and] each
Rating Agency.
(b) In connection with each transfer of Additional Loans hereunder on
or after the Closing Date, the Seller shall deliver to the Purchaser the
following documents, in such number of original counterparts as the Purchaser
shall reasonably request:
(i) a duly completed and executed Transfer Certificate in the
form attached hereto as Exhibit 1, with the related Schedule Annex attached
thereto; and
(ii) a duly completed and executed Opinion of Counsel to the
Seller and the Rating Agencies in the form attached hereto as Exhibit 2 and
acceptable to [the Credit Enhancer and] the Rating Agencies.
[As a condition to any such proposed transfer of Additional Loans, the Seller
shall not have received written notice from any Rating Agency or the Credit
Enhancer to the effect that such transfer would adversely affect the related
capital requirement of the Credit Enhancer.] Subject to the fulfillment of all
other conditions set forth herein with respect to any such transfer (including
delivery of all documents required pursuant to Section 2.1(c)), it is agreed
that no additional opinions, consents, agreements or other documentation shall
be required to effect any transfer of Additional Loans hereunder.
Section 2.4 [Reserved].
Section 2.5 Draws After an Amortization Event.
(a) In the event that an Amortization Event occurs, any Draws made on
the [Contracts] [Mortgage Loans] thereafter shall not be deemed to be
"Additional Balances" hereunder, and the ownership of the related balances shall
be retained by the Seller. Following an Amortization Event, on any Payment Date,
with respect to the related Collection Period, all payments and collections in
respect of the [Contracts] [Mortgage Loans] shall be allocated on a pro rata
basis as follows: (i) to the Trust, in an amount equal to the Security
Collections for such Payment Date, and (ii) to the Seller, in an amount equal to
the Excluded Amount for such
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Payment Date. Any losses incurred with respect to the [Contracts] [Mortgage
Loans] following an Amortization Event shall be allocated equally between the
Trust and the Seller, in accordance with the manner in which Net Liquidation
Proceeds are allocated between the Trust and the Seller as a result of the
application of clause (ii) of the definition of the "Excluded Amount."
Notwithstanding any other provision hereof or of the Servicing Agreement, the
payments and collections allocable to the Excluded Amount need not be deposited
in the Collection Account and shall not be deposited in the Distribution Account
or the Payment Account, and shall be distributed by the [Master] Servicer to the
Seller not less frequently than monthly in accordance with reasonable
instructions provided by the Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1 Seller Representations and Warranties. The Seller
represents and warrants to the Purchaser, with respect to each [Contract]
[Mortgage Loan] as of the Closing Date (or if otherwise specified below, as of
the date so specified):
(a) As to the Seller:
(i) The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of [_______________] and
has the corporate power to own its assets and to transact the business in
which it is currently engaged. The Seller 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 properties owned or
leased by it requires such qualification and in which the failure to so
qualify would have a material adverse effect on the business, properties,
assets or condition (financial or other) of the Seller;
(ii) The Seller has the power and authority to make, execute,
deliver and perform its obligations under 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 Seller enforceable in
accordance with its terms, except as enforcement of such terms may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and by the availability of equitable
remedies;
(iii) The Seller is not required to obtain the consent of any
other Person or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consents, licenses,
approvals or authorizations, or registrations or declarations, as shall
have been obtained or filed, as the case may be;
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(iv) The execution and delivery of this Agreement and the
performance of the transactions contemplated hereby by the Seller will not
violate any provision of any existing law or regulation or any order or
decree of any court applicable to the Seller or any provision of the
[Certificate/Articles] of Incorporation or Bylaws of the Seller, or
constitute a material breach of any mortgage, indenture, contract or other
agreement to which the Seller is a party or by which the Seller may be
bound; and
(v) No litigation or administrative proceeding of or before any
court, tribunal or governmental body is currently pending, or to the
knowledge of the Seller threatened, against the Seller or any of its
properties or with respect to this Agreement or the Certificates which in
the opinion of the Seller has a reasonable likelihood of resulting in a
material adverse effect on the transactions contemplated by this Agreement.
(vi) This Agreement constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in
equity);
(vii) This Agreement constitutes a valid transfer and assignment
to the Purchaser of all right, title and interest of the Seller in and to
the Cut-off Date Asset Balances with respect to the applicable [Contracts]
[Mortgage Loans], all monies due or to become due with respect thereto, and
all proceeds of such Cut-off Date Loan Balances with respect to the
[Contracts] [Mortgage Loans] and such funds as are from time to time
deposited in the Custodial Account (excluding any investment earnings
thereon) as assets of the Trust and all other property specified in the
definition of "Trust" as being part of the corpus of the Trust conveyed to
the Purchaser by the Seller;
(viii) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand or any federal,
state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the [Master] Servicer or its
properties or might have consequences that would materially adversely
affect its performance hereunder;
(b) As to the [Contracts] [Mortgage Loans]:
(i) The information set forth in the [Contract] [Mortgage Loan]
Schedule for such [Contracts] [Mortgage Loans] is true and correct in all
material respects as of the date or dates respecting which such information
is furnished;
(ii) The applicable Cut-off Date Asset Balances have not been
assigned or pledged, and the Seller has good and marketable title thereto,
and the Seller is the sole owner and holder of such Cut-off Date Asset
Balances free and clear of any and all liens, claims, encumbrances,
participation interests, equities, pledges, charges of security interests
of any nature and has full right and authority, under all governmental
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and regulatory bodies having jurisdiction over the ownership of the
applicable [Contracts] [Mortgage Loans] to sell and assign the same
pursuant to this Agreement;
(iii) The related [Contract] [Mortgage Note and the Mortgage]
have not been assigned or pledged, and the Seller has good and marketable
title thereto, and the Seller is the sole owner and holder of the
[Contract] [Mortgage Loan] free and clear of any and all liens, claims,
encumbrances, participation interests, equities, pledges, charges of
security interests of any nature and has full right and authority, under
all governmental and regulatory bodies having jurisdiction over the
ownership of the applicable [Contracts] [Mortgage Loans] to sell and assign
the same pursuant to this Agreement;
(iv) To the best of Seller's knowledge, there is no valid offset,
defense or counterclaim of any obligor under any [Contract] [Mortgage
Loan];
(v) To the best of Seller's knowledge, there is no delinquent
recording or other tax or fee or assessment lien against any related
[Manufactured Home] [Mortgaged Property];
(vi) To the best of Seller's knowledge, there is no proceeding
pending or threatened for the total or partial condemnation of the related
[Manufactured Home] [Mortgaged Property];
(vii) To the best of Seller's knowledge, there are no mechanics'
or similar liens or claims which have been filed for work, labor or
material affecting the related [Manufactured Home] [Mortgaged Property]
which are, or may be liens prior or equal to, or subordinate with, the lien
of the related [Contract] [Mortgage], except liens which are fully insured
against by the title insurance policy referred to in clause (xi);
(viii) As of the applicable Cut-off Date for the [Contracts]
[Mortgage Loans], no more than ____% of the [Contracts] [Mortgage Loans]
(by aggregate principal balance) were 30-59 days delinquent and no more
than ____% of the [Contracts] [Mortgage Loans] (by Cut-off Date Pool
Balance) were 60 or more days delinquent (none of which were 90 or more
days delinquent);
(ix) For each [Contract] [Mortgage Loan], the related [Contract
File] [Mortgage File] [Land Home Contract File] contains each of the
documents and instruments specified to be included therein;
(x) The related [Contract] [Mortgage Note and the related
Mortgage] at the time it was made complied in all material respects with
applicable local, state and federal laws, including, without limitation,
usury, truth-in-lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity or disclosure laws applicable to the
[Contract] [Mortgage Loan];
(xi) No instrument of release or waiver has been executed in
connection with the [Contracts] [Mortgage Loans], and no Mortgagor has been
released, in whole or in part from its obligations in connection with a
[Contract] [Mortgage Loan];
10
(c) Upon discovery by Seller or upon notice from the Purchaser, [the
Credit Enhancer], the Trust, the [Owner Trustee, the Indenture] Trustee or any
Custodian, as applicable, of a breach of any representation or warranty in
clause (a) above which materially and adversely affects the interests of the
[Noteholders or the Certificateholders] [Certificateholders] [or the Credit
Enhancer], as applicable, in any [Contract] [Mortgage Loan], the Seller shall,
within 45 days of its discovery or its receipt of notice of such breach, either
(i) cure such breach in all material respects or (ii) to the extent that such
breach is with respect to a [Contract] [Mortgage Loan] or a Related Document,
either (A) repurchase such [Contract] [Mortgage Loan] from the Trust at the
Repurchase Price, or (B) substitute one or more Eligible Substitute [Contracts]
[Mortgage Loans] for such [Contract] [Mortgage Loan], in each case in the manner
and subject to the conditions and limitations set forth below.
Upon discovery by the Seller or upon notice from the Purchaser, [the
Credit Enhancer], the Trust, the [Owner Trustee, the Indenture] Trustee or any
Custodian, as applicable, of a breach of any representation or warranty in
clause (b) above [or in Section 3.2] with respect to any [Contract] [Mortgage
Loan], or upon the occurrence of a Repurchase Event, which materially and
adversely affects the interests of any [Noteholder or the Certificateholder]
[Certificateholder] [or the Credit Enhancer], as applicable, or of the Purchaser
in such [Contract] [Mortgage Loan] (notice of which shall be given to the
Purchaser by the Seller, if it discovers the same), notwithstanding the Seller's
lack of knowledge with respect to the substance of such representation and
warranty, the Seller shall, within 90 days after the earlier of its discovery or
receipt of notice thereof, either cure such breach or Repurchase Event in all
material respects or either (i) repurchase such [Contract] [Mortgage Loan] from
the Trust at the Repurchase Price, or (ii) substitute one or more Eligible
Substitute [Contracts] [Mortgage Loans] for such [Contract] [Mortgage Loan], in
each case in the manner and subject to the conditions set forth below. The
Repurchase Price for any such [Contract] [Mortgage Loan] repurchased by the
Seller shall be deposited or caused to be deposited by the [Master] Servicer in
the Collection Account maintained by it pursuant to Section 3.02 of the
Servicing Agreement.
In the event that the Seller elects to substitute an Eligible
Substitute [Contract] [Mortgage Loan] or Loans for a Deleted [Contract]
[Mortgage Loan] pursuant to this Section 3.1, the Seller shall deliver to the
applicable Custodian on behalf of the Trust, with respect to such Eligible
Substitute [Contract] [Mortgage Loan] or Loans, the original Mortgage Note and
all other documents and agreements as are required by Section 2.1(c), with the
Mortgage Note endorsed as required by Section 2.1(c). No substitution will be
made in any calendar month after the Determination Date for such month. Monthly
Payments due with respect to Eligible Substitute [Contracts] [Mortgage Loans] in
the month of substitution shall not be part of the Owner Trust and will be
retained by the [Master] Servicer and remitted by the [Master] Servicer to the
Seller on the next succeeding Payment Date, provided that a payment at least
equal to the applicable Minimum Monthly Payment has been received by the Owner
Trust, for such month in respect of the Deleted [Contract] [Mortgage Loan]. For
the month of substitution, distributions to the Payment Account pursuant to the
Servicing Agreement will include the Monthly Payment due on a Deleted [Contract]
[Mortgage Loan] for such month and thereafter the Seller shall be entitled to
retain all amounts received in respect of such Deleted [Contract] [Mortgage
Loan]. The [Master] Servicer shall amend or cause to be amended the [Contract]
[Mortgage Loan] Schedule to reflect the removal of such Deleted [Contract]
[Mortgage Loan] and the substitution of the Eligible Substitute [Contract]
[Mortgage Loan] or Loans and the [Master] Servicer shall
11
deliver the amended [Contract] [Mortgage Loan] Schedule to the Trustee. Upon
such substitution, the Eligible Substitute [Contract] [Mortgage Loan] or Loans
shall be subject to the terms of this Agreement and the Servicing Agreement in
all respects, the Seller shall be deemed to have made the representations and
warranties with respect to the Eligible Substitute [Contract] [Mortgage Loan]
contained herein set forth in Section 3.1(b) as of the date of substitution, and
the Seller shall be obligated to repurchase or substitute for any Eligible
Substitute [Contract] [Mortgage Loan] as to which a Repurchase Event has
occurred as provided herein. In connection with the substitution of one or more
Eligible Substitute [Contracts] [Mortgage Loans] for one or more Deleted
[Contracts] [Mortgage Loans], the [Master] Servicer will determine the amount
(such amount, a "Substitution Adjustment Amount"), if any, by which the
aggregate principal balance of all such Eligible Substitute [Contracts]
[Mortgage Loans] as of the date of substitution is less than the aggregate
principal balance of all such Deleted [Contracts] [Mortgage Loans] (after
application of the principal portion of the Monthly Payments due in the month of
substitution that are to be distributed to the Payment Account in the month of
substitution). The Seller shall deposit the amount of such shortfall into the
Collection Account on the day of substitution, without any reimbursement
therefor.
Upon receipt by the Trust and the applicable Custodian of written
notification, signed by a Servicing Officer, of the deposit of such Repurchase
Price or of such substitution of an Eligible Substitute [Contract] [Mortgage
Loan] and deposit of any applicable Substitution Adjustment Amount as provided
above, the applicable Custodian, on behalf of the Trust shall release to the
Seller the related [Contract File] [Mortgage File] [Land Home Contract File] for
the [Contract] [Mortgage Loan] being repurchased or substituted for and the
Trust shall execute and deliver such instruments of transfer or assignment
prepared by the [Master] Servicer, in each case without recourse, as shall be
necessary to vest in the Seller or its designee such [Contract] [Mortgage Loan]
released pursuant hereto and thereafter such [Contract] [Mortgage Loan] shall
not be an asset of the Trust.
It is understood and agreed that the obligation of the Seller to cure
any breach, or to repurchase or substitute for, any [Contract] [Mortgage Loan]
as to which such a breach has occurred and is continuing shall, except to the
extent provided in Section 6.1 of this Agreement, constitute the sole remedy
respecting such breach available to the Purchaser, the Trust, the
[Certificateholders (or the Trustee on behalf of the Certificateholders)]
[Certificateholders (or the Owner Trustee on behalf of the Certificateholders)
and the Noteholders (or the Indenture Trustee on behalf of the Noteholders)]
against the Seller.
It is understood and agreed that the representations and warranties
set forth in this Section 3.1 shall survive delivery of the respective [Contract
Files] [Mortgage Files] [Land Home Contract Files] to the Trust, or its
Custodians.
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ARTICLE IV
SELLER'S COVENANTS
Section 4.1 Covenants of the Seller. The Seller hereby covenants that,
except for the transfer hereunder, the Seller will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur or assume any Lien on any
[Contract] [Mortgage Loan], whether now existing or hereafter created, or any
interest therein; the Seller will notify the Trust, as assignee of the
Purchaser, of the existence of any Lien (other than as provided above) on any
[Contract] [Mortgage Loan] immediately upon discovery thereof; and the Seller
will defend the right, title and interest of the Trust, as assignee of the
Purchaser, in, to and under the [Contracts] [Mortgage Loans], whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Seller; provided, however, that nothing in this
Section 4.1 shall be deemed to apply to any Liens for municipal or other
local taxes and other governmental charges if such taxes or governmental
charges shall not at the time be due and payable or if the Seller shall
currently be contesting the validity thereof in good faith by appropriate
proceedings.
ARTICLE V
SERVICING
Section 5.1 Servicing. The Seller will be the [Master] Servicer of the
[Contracts] [Mortgage Loans] pursuant to the terms and conditions of the
Servicing Agreement and will service the [Contracts] [Mortgage Loans] directly
or through one or more sub-servicers in accordance therewith.
ARTICLE VI
INDEMNIFICATION BY THE SELLER
WITH RESPECT TO THE [CONTRACTS] [MORTGAGE LOANS]
Section 6.1 Indemnification With Respect to the [Contracts] [Mortgage
Loans]. The Seller shall indemnify and hold harmless the Purchaser from and
against any loss, liability or expense arising from the breach by the Seller of
its representations and warranties in Section 3.1 of this Agreement which
materially and adversely affects the Purchaser's interest in any [Contract]
[Mortgage Loan] or from the failure by the Seller to perform its obligations
under this Agreement in any material respect, provided that the Seller shall
have no obligation to indemnify the Purchaser in respect of any loss, liability
or expense that arises as a result of the Purchaser's willful malfeasance, bad
faith or gross negligence or as a result of the breach by the Purchaser of its
obligations hereunder.
Section 6.2 Limitation on Liability of the Seller. None of the
directors, officers, employees or agents of the Seller shall be under any
liability to the Purchaser, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement. Except as and to the extent
expressly provided in the Servicing Agreement, the Seller shall not be under any
liability to the Trust, the Owner Trust, the [Owner Trustee, the Indenture]
Trustee, the [Noteholder or the Certificateholders] [Certificateholders]. The
Seller and any director, officer, employee or agent of the Seller may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
13
ARTICLE VII
TERMINATION
Section 7.1 Termination. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate,
except for the Seller's indemnity obligations as provided herein, upon the
termination of the Trust pursuant to the terms of the Operating Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment. This Agreement may be amended from time to time
by the Seller and the Purchaser by written agreement signed by the Seller and
the Purchaser[, with the consent of the Credit Enhancer (which consent shall not
be unreasonably withheld)].
Section 8.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 8.3 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid, addressed as
follows:
(i) if to the Seller:
[___________________________________]
[___________________________________]
[___________________________________]
[___________________________________]
Attention:
or, such other address as may hereafter be furnished to the Purchaser in writing
by the Seller.
(ii) if to the Purchaser:
HomePride Mortgage and Finance Corp.
[___________________________________]
[___________________________________]
[___________________________________]
Attention:
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
Section 8.4 Severability of Provisions. If any one or more of the
covenants, agreements, provisions of terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable
14
from the remaining covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity of enforceability of the other
provisions of this Agreement.
Section 8.5 Relationship of Parties. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture between the parties
hereto, and the services of the Seller shall be rendered as an independent
contractor and not as agent for the Purchaser.
Section 8.6 Counterparts. This Agreement may be executed in one or
more counterparts and by the different parties hereto on separate counterparts,
each of which, when so executed, shall be deemed to be an original and such
counterparts, together, shall constitute one and the same agreement.
Section 8.7 Further Agreements. The Purchaser and the Seller each
agree to execute and deliver to the other such additional documents, instruments
or agreements as may be necessary or appropriate to effectuate the purposes of
this Agreement. Each of the Purchaser and the Seller agrees to use its best
reasonable efforts to take all actions necessary to be taken by it to cause the
[Notes and] Certificates to be issued and rated in the highest rating category
by each of the Rating Agencies.
Section 8.8 Intention of the Parties. It is the intention of the
parties that the Purchaser is purchasing, and the Seller is selling, the
[Contracts] [Mortgage Loans], rather than a loan by the Purchaser to the Seller
secured by the [Contracts] [Mortgage Loans]. Accordingly, the parties hereto
each intend to treat the transaction for federal income tax purposes as a sale
by the Seller, and a purchase by the Purchaser, of the [Contracts] [Mortgage
Loans]. The Purchaser will have the right to review the [Contracts] [Mortgage
Loans] and the Related Documents to determine the characteristics of the
[Contracts] [Mortgage Loans] which will affect the federal income tax
consequences of owning the [Contracts] [Mortgage Loans] and the Seller will
cooperate with all reasonable requests made by the Purchaser in the course of
such review.
Section 8.9 Successors and Assigns; Assignment of This Agreement. This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, Purchaser and their respective successors and assigns. [The obligations
of the Seller under this Agreement cannot be assigned or delegated to a third
party without the consent of the Credit Enhancer and the Purchaser, which
consent shall be at the Credit Enhancer's and the Purchaser's sole discretion,
except that the Purchaser and the Credit Enhancer acknowledge and agree that the
Seller may assign its obligations hereunder to any Affiliate of the Seller, to
any Person succeeding to the business of the Seller, to any Person into which
the Seller is merged and to any Person resulting from any merger, conversion or
consolidation to which the Seller is a party]. The parties hereto acknowledge
that the Purchaser is acquiring the [Contracts] [Mortgage Loans] for the purpose
of contributing them to the Issuer. As an inducement to the Purchaser to
purchase the [Contracts] [Mortgage Loans], the Seller acknowledges and consents
to (i) the assignment by the Purchaser to the Issuer of all of the Purchaser's
rights against the Seller pursuant to this Agreement insofar as such rights
relate to [Contracts] [Mortgage Loans] transferred to the Issuer and to the
enforcement or exercise of any right or remedy against the Seller pursuant to
this Agreement by the Issuer, [(ii) the assignment by the Purchaser to the
[Owner] Trustee of all of the Trust's rights against the Seller pursuant to this
Agreement and to the enforcement or exercise of any right or remedy against the
Seller pursuant to this Agreement by the [Owner] Trustee and
15
(iii) the [Owner Trustee's pledge of its interest in this Agreement to the
Indenture Trustee and the enforcement by the Indenture Trustee of any such right
or remedy against the Seller.]] Such enforcement of a right or remedy by the
Issuer, the [Owner] Trustee [or the Indenture Trustee], as applicable, shall
have the same force and effect as if the right or remedy had been enforced or
exercised by the Purchaser directly.
Section 8.10 Survival. The representations and warranties made herein
by the Seller and the provisions of Article VI hereof shall survive the purchase
of the [Contracts] [Mortgage Loans] hereunder.
16
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed to this Agreement by their respective officers thereunto duly
authorized as of the day and year first above written.
HOMEPRIDE MORTGAGE AND FINANCE CORP.
as Purchaser
By:
--------------------------------
Name:
Title:
[__________________________________]
as Seller
By:
--------------------------------
Name:
Title:
17
Exhibit 1
TRANSFER CERTIFICATE
This is a Transfer Certificate ("Certificate"), dated and effective as of
_____________, 200_ (the "Deposit Date"), delivered pursuant to Section
2.3(b)(i) of the Loan Purchase Agreement (the "Agreement") dated as of
_________________________________, by and between HomePride Mortgage and Finance
Corp. (the "Purchaser") and [_______________________________] (the "Seller"),
relating to [______________] Trust Series 200_ (the "Trust"). Capitalized terms
used but not otherwise defined herein shall have the respective meanings set
forth in the Agreement.
By execution and delivery of this Certificate, the Seller hereby evidences
the sale to the Trust as assignee of the Purchaser, as of the Deposit Date, of
the Additional Loans listed on the Schedule Annex attached hereto (the
"Additional Loans"), with a Deposit Date Asset Balance of $___________, subject
to and in accordance with the terms and conditions of the Agreement.
The Seller hereby represents and warrants to, and agrees with, the
Certificateholders, for the benefit of the Trust, as of the Deposit Date (or
such other date specified below), as follows:
(i) All of the representations and warranties of the Seller as set forth
in Section 3.1(a) of the Agreement are true and correct insofar as
they relate to the Additional Loans; provided, that any reference
therein to the "Agreement" shall be deemed to refer to this
Certificate (including the Agreement as amended hereby).
(ii) The information set forth in the Schedule Annex with respect to the
Additional Loans is true and correct in all material respects at the
date or dates respecting which such information is furnished.
(iii) All of the representations and warranties of the Seller as set forth
in clauses (ii) through (xi) of Section 3.1(b) of the Agreement are
true and correct with respect to the Additional Loans; provided, that
any reference therein to the "Cut-off Date" shall be deemed to refer
to the Deposit Date.
(iv) No selection procedures believed by the Seller to be adverse to the
interests of the holders of the Certificates or the Notes [or the
Credit Enhancer] were utilized in selecting the Additional Loans.
(v) All provisions of Section 3.1 of the Agreement shall be applicable
with respect to any breach of any of the foregoing representations and
warranties as to any Additional Loan, with the same effect as if such
representations and warranties were set out in full in the Agreement.
(vi) UCC-1 financing statements have been submitted for filing in respect
of the Additional Loans as contemplated in Section 2.1(d) of the
Agreement.
18
This Certificate, when executed by the Seller and countersigned by the
Purchaser, shall constitute an amendment to the Agreement in accordance with
Section 8.1 thereof.
IN WITNESS WHEREOF, the Seller has caused its name to be signed to this
Certificate by its officer thereunto duly authorized as of the day and year
first above written.
[_________________________________],
as Seller
By:
--------------------------------
Name:
Title:
Accepted and Agreed:
[______________] Trust 200_-____
By: [INSERT NAME OF OWNER TRUSTEE]
By:
-----------------------------------------
Name:
Title:
19
Exhibit 2
[Form of Opinion of Counsel pursuant to Section 2.3]
[to be provided]
20
Exhibit 3
[CONTRACT] [MORTGAGE LOAN] SCHEDULE
[to be provided upon request]
21
