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EXHIBIT 10.1

PHOENIX RESIDENTIAL SECURITIES, LLC,

as Purchaser,

[_______________],

as Seller and Servicer,

[________],

as Seller,

PRS SERIES 20[__]-[__] TRUST,

as Issuer,

and

[_______],

as Indenture Trustee

 

MORTGAGE LOAN PURCHASE AGREEMENT

 

Dated as of [______], 20[__]

 


 

 

 

 

 

 

ARTICLE I DEFINITIONS

 

 

2

 

 

 

 

 

 

Section 1.1 Definitions

 

 

2

 

 

 

 

 

 

Section 1.2 Other Definitional Provisions

 

 

2

 

 

 

 

 

 

ARTICLE II SALE OF MORTGAGE LOANS AND RELATED PROVISIONS

 

 

3

 

 

 

 

 

 

Section 2.1 Sale of Mortgage Loans

 

 

3

 

 

 

 

 

 

Section 2.2 [Reserved]

 

 

5

 

 

 

 

 

 

Section 2.3 Payment of Purchase Price

 

 

5

 

 

 

 

 

 

ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH

 

 

5

 

 

 

 

 

 

Section 3.1 Representations and Warranties

 

 

5

 

 

 

 

 

 

ARTICLE IV SELLERS’ COVENANTS

 

 

14

 

 

 

 

 

 

Section 4.1 Covenants of the Seller

 

 

14

 

 

 

 

 

 

ARTICLE V SERVICING

 

 

15

 

 

 

 

 

 

Section 5.1 Servicing

 

 

15

 

 

 

 

 

 

ARTICLE VI LIMITATION ON LIABILITY OF THE SELLERS

 

 

15

 

 

 

 

 

 

Section 6.1 Limitation on Liability of the Seller

 

 

15

 

 

 

 

 

 

ARTICLE VII TERMINATION

 

 

15

 

 

 

 

 

 

Section 7.1 Termination

 

 

15

 

 

 

 

 

 

ARTICLE VIII MISCELLANEOUS PROVISIONS

 

 

15

 

 

 

 

 

 

Section 8.1 Amendment

 

 

15

 

 

 

 

 

 

Section 8.2 Governing Law

 

 

15

 

 

 

 

 

 

Section 8.3 Notices

 

 

16

 

 

 

 

 

 

Section 8.4 Severability of Provisions

 

 

17

 

 

 

 

 

 

Section 8.5 Relationship of Parties

 

 

17

 

 

 

 

 

 

Section 8.6 Counterparts

 

 

18

 

 

 

 

 

 

Section 8.7 Further Agreements

 

 

18

 

 

 

 

 

 

Section 8.8 Intention of the Parties

 

 

18

 

 

 

 

 

 

Section 8.9 Successors and Assigns; Assignment of this Agreement

 

 

18

 

 

 

 

 

 

Section 8.10 Survival

 

 

18

 

 

 

 

 

 

EXHIBIT 1 MORTGAGE LOAN SCHEDULE

 

Exhibit 1

 


 

     This Mortgage Loan Purchase Agreement (the “Agreement”), dated as of [_______], 20[__], is made among [_______________] (“[___]” or the “Servicer”), [_______], as seller (“[_______]” or the “Seller” and together with [___], the “Sellers”), Phoenix Residential Securities, LLC, as purchaser (the “Purchaser”), PRS Series 20[__]-[__] Trust, as issuer (the “Issuer”), and [_______], as indenture trustee (the “Indenture Trustee”).

WITNESSETH :

     WHEREAS, [___], in the ordinary course of its business acquires and originates mortgage loans and acquired or originated all of the mortgage loans listed on the Mortgage Loan Schedule attached as Exhibit 1 hereto (the “Mortgage Loans”);

     WHEREAS, [___] sold the Mortgage Loans to [_______] (“[_______]”) pursuant to a Mortgage Loan Purchase Agreement (the “[_______] Purchase Agreement”), dated as of [_______], 20[__] (each date of sale, a “Prior Transfer Date”) among [_______], as purchaser, [___], as seller, [_______], as Issuer and [_______], as trustee;

     WHEREAS, [_______] sold the Mortgage Loans to [_______] pursuant to a Trust Agreement, dated as of [_______], 20[__], between [_______], as depositor and [_______], as owner trustee;

     WHEREAS, [_______] owns the Cut-Off Date Principal Balances and the Related Documents for the Mortgage Loans identified on the Mortgage Loan Schedule attached as Exhibit 1 hereto, 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 Mortgage Loans;

     WHEREAS, the parties hereto desire that: (i) [_______] sell the Cut-Off Date Principal Balances of the Mortgage Loans to the Purchaser on the Closing Date pursuant to the terms of this Agreement and (iii) the Seller and [___] make certain representations and warranties on the Closing Date;

     WHEREAS, pursuant to the Trust Agreement, the Purchaser will sell the Mortgage Loans and transfer all of its rights under this Agreement to the Issuer on the Closing Date;

     WHEREAS, pursuant to the terms of the Servicing Agreement, the Servicer will service the Mortgage Loans;

     WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will issue the Certificates;

     WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue the Notes, secured by the Trust Estate;

     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 Appendix A to the Indenture dated as of [_______], 20[__] (the “Indenture”), between the Issuer and the Indenture Trustee, which is incorporated by reference herein. All other capitalized terms used herein shall have the meanings specified herein.

     Section 1.2 Other Definitional Provisions . All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.

     As used in this Agreement and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined in this Agreement or in any such certificate or other document, and accounting terms partly defined in this Agreement or in any such certificate or other document, to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles. To the extent that the definitions of accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under generally accepted accounting principles, the definitions contained in this Agreement or in any such certificate or other document shall control.

     The words “hereof,” “herein,” “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; Section and Exhibit references contained in this Agreement are references to Sections and Exhibits in or to this Agreement unless otherwise specified; the term “including” shall mean “including without limitation”; “or” shall include “and/or”; and the term “proceeds” shall have the meaning ascribed thereto in the UCC.

     The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as the feminine and neuter genders of such terms.

     Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein; references to a Person are also to its permitted successors and assigns.

2


 

ARTICLE II

SALE OF MORTGAGE LOANS AND RELATED PROVISIONS

     Section 2.1 Sale of Mortgage Loans .

          (a) [_______], 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, and wherever located: (i) the Mortgage Loans (including the Cut-Off Date Principal Balances of the Mortgage Loans), all interest accruing thereon, all monies due or to become due thereon, and all collections in respect thereof received on or after the Cut-Off Date (other than interest thereon in respect of any period prior to the Cut-Off Date); (ii) the [_______]’s interest in any insurance policies in respect of the Mortgage Loans; and (iii) all proceeds of the foregoing.

          (b) In connection with the conveyance by [_______] of the Mortgage Loans, the Seller further agrees, at its own expense, on or prior to the Closing Date with respect to the Principal Balances of the Mortgage Loans, to indicate in its books and records that the respective Mortgage Loans have been sold to the Purchaser pursuant to this Agreement. The Servicer agrees to deliver to the Purchaser true and complete lists of all of the Mortgage Loans sold by the Seller specifying for each Mortgage Loan (i) its account number and (ii) its Cut-Off Date Principal Balance. The Mortgage Loan Schedule indicating such information with respect to the Mortgage Loans shall be marked as Exhibit 1 to this Agreement and is hereby incorporated into and made a part of this Agreement.

          (c) In connection with the conveyance by [_______] of the Mortgage Loans, [___] shall, (A) with respect to each Mortgage Loan, on behalf of the Purchaser deliver to, and deposit with the Custodian, at least five (5) Business Days before the Closing Date, the original Mortgage Note endorsed or assigned without recourse in blank (which endorsement shall contain either an original signature or a facsimile signature of an authorized officer of [___]), or, with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost or destroyed and has not been replaced, a Lost Note Affidavit, and any modification agreement or amendment to such Mortgage Note and (B) except as provided in clause (A) with respect to the Mortgage Notes, deliver the Mortgage Files to the Servicer.

     Within the time period for the review of each Mortgage Note set forth in Section 2.2 of the Custodial Agreement, if a material defect in any Mortgage Note is discovered which may materially and adversely affect the value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders, the Certificateholders in such Mortgage Loan, including [___]’s failure to deliver the Mortgage Note to the Custodian on behalf of the Indenture Trustee, [___] shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute an Eligible Substitute Loan therefor upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans[, provided that the Seller shall have the option to substitute an Eligible Substitute Loan or Loans for such Mortgage Loan only if such substitution occurs within two years following the Closing Date]. If a material defect in any of the documents in the Mortgage File held by the Servicer is discovered which may materially and adversely affect the

3


 

value of the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders, the Certificateholders in such Mortgage Loan, including [___]’s failure to deliver such documents to the Servicer on behalf of the Indenture Trustee, [___] shall cure such defect, repurchase the related Mortgage Loan at the Repurchase Price or substitute an Eligible Substitute Loan therefor upon the same terms and conditions set forth in Section 3.1 hereof for breaches of representations and warranties as to the Mortgage Loans[, provided that the Seller shall have the option to substitute an Eligible Substitute Loan or Loans for such Mortgage Loan only if such substitution occurs within two years following the Closing Date]..

     Upon sale of the Mortgage Loans, the ownership of each Mortgage Note, each related Mortgage and the contents of the related Mortgage File shall be vested in the Purchaser and the ownership of all records and documents with respect to the Mortgage Loans that are prepared by or that come into the possession of the Seller or by the Servicer under the Servicing Agreement shall immediately vest in the Purchaser, and shall be promptly delivered to the Servicer and retained and maintained in trust by the Servicer (except for the Mortgage Notes, which shall be retained by the Custodian) at the will of the Purchaser, in such custodial capacity only. The Seller’s records will accurately reflect the sale of each Mortgage Loan sold by it to the Purchaser.

     The Purchaser hereby acknowledges its acceptance of all right, title and interest to the property 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 each of the Seller’ right, title and interest in and to their respective 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 all accounts, chattel papers, general intangibles, contract rights, payment intangibles, certificates of deposit, deposit accounts, instruments, documents, letters of credit, money, advices of credit, investment property, goods and other property consisting of, arising under or related to the Mortgage Loans and such other property, to secure all of the Seller’s obligations hereunder, and this Agreement shall and hereby does 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 the filing of any continuation statements with respect to the UCC-1 financing statements filed with respect to the Mortgage Loans by the Purchaser on the Closing Date, 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 or jurisdiction of incorporation of th


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