EXHIBIT 4.6
FORM OF
Between
------------------------,
as Originator
and
RESIDENTIAL ASSET FUNDING CORPORATION,
as Sponsor
Dated as of ________, ____
TABLE OF CONTENTS
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Page
Article I DEFINITIONS.............................................................................................1
Section 1.1. Definitions..............................................................................1
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Article II AGREEMENT TO CREATE TRUST; AGREEMENT TO CONVEY Mortgage Loans; ASSIGNMENT.............................1
Section 2.1. Agreement to Create Trust................................................................1
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Section 2.2. Agreement to Convey Mortgage Loans.......................................................2
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Section 2.3. Possession of Files......................................................................2
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Section 2.4. Books and Records........................................................................2
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Section 2.5. Cost of Delivery and Recordation of Documents............................................2
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Section 2.6. Assignment of Agreement..................................................................2
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Article III REPRESENTATIONS AND WARRANTIES........................................................................3
Section 3.1. Representations and Warranties of the Originator.........................................3
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Section 3.2. Representations and Warranties of the Sponsor............................................4
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Article IV CERTAIN COVENANTS OF THE ORIGINATOR....................................................................4
Section 4.1. Further Assurances.......................................................................4
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Section 4.2. Indemnification..........................................................................4
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Article V MISCELLANEOUS...........................................................................................5
Section 5.1. Notices..................................................................................5
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Section 5.2. Severability of Provisions...............................................................5
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Section 5.3. Survival.................................................................................5
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Section 5.4. Effect of Headings and Table of Contents.................................................6
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Section 5.5. Successors and Assigns...................................................................6
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Section 5.6. Miscellaneous............................................................................6
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Section 5.7. Amendments...............................................................................6
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Section 5.8. Third-Party Beneficiaries................................................................6
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Section 5.9. GOVERNING LAW; CONSENT TO JURISDICTION;
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WAIVER OF JURY TRIAL.....................................................................7
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Section 5.10. Execution in Counterparts................................................................7
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Exhibit A - Mortgage Loan Schedule
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This , dated as of ______,
____ (this "Agreement"), by and between ___________, a _________ corporation,
its successors and assigns (the "Originator"), and RESIDENTIAL ASSET FUNDING
CORPORATION, a North Carolina corporation and its successors and assigns (the
"Sponsor").
W I T N E S S E T H:
WHEREAS, Exhibit A attached hereto and made a part hereof
lists certain Mortgage Loans (the "Mortgage Loans") owned by the Originator that
the Originator desires to include in a securitization transaction; and
WHEREAS, the Sponsor has previously filed a Registration
Statement with the Securities and Exchange Commission which allows for the
registration of certain types of asset-backed securities issued by the Sponsor
thereunder; and
WHEREAS, the Sponsor is willing to create a trust (the
"Trust") for which __________________ (the "Owner Trustee") is willing to act as
trustee; and
WHEREAS, the Sponsor is willing to direct the Trust to acquire
the Mortgage Loans from the Originator or its special-purpose affiliate (the
"Depositor") and to issue certain asset-backed securities representing
beneficial interests in the Trust or indebtedness of the Trust (the
"Securities"); and
WHEREAS, the Sponsor is willing to act as the "Issuer" of the
Securities in its capacity as the "manager" of the Trust, as described and
provided in Section 2(4) of the Securities Act of 1933, as amended, and to
assume the responsibilities, obligations and liabilities appurtenant to its
status as an issuer of securities; and
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Capitalized terms used herein that
are not otherwise defined shall have the respective meanings ascribed thereto in
the Indenture, dated as of ______, ___ (the "Indenture"), between the Trust and
__________, as indenture trustee (the "Indenture Trustee").
ARTICLE II
AGREEMENT TO CREATE TRUST; AGREEMENT TO CONVEY
MORTGAGE LOANS; ASSIGNMENT
Section 2.1. Agreement to Create Trust. (a) Subject to the
terms and conditions of this Agreement, the Sponsor agrees to create the Trust
under the Trust Agreement and to
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direct the Trust to acquire the Mortgage Loans listed in the Mortgage Loan
Schedule, which schedule is attached hereto as Exhibit A. The Mortgage Loan
Schedule shall conform to the requirements of the Sponsor and to the definition
of "Mortgage Loan Schedule" under the Indenture.
Upon the Trust's acquisition of the Mortgage Loans, the
Sponsor will further direct the Trust to issue the Securities. The transactions
described in this paragraph (a) are the collectively referred to as the
"Securitization".
The closing for the Securitization shall take place at the
offices of ________, _________, at 10:00 a.m., New York time, on _______, _____
or such other place and time as the parties shall agree (such time being herein
referred to as the "Closing Date").
Section 2.2. Agreement to Convey Mortgage Loans. On the
Closing Date, the Originator or the Depositor shall sell, transfer, assign, set
over and convey to the Trust, without recourse but subject to the terms of this
Agreement, all of its right, title and interest in and to the Mortgage Loans
(including, without limitation, the security interests created thereby), and all
its right, title and interest in and to (i) scheduled payments of interest due
on each Mortgage Loan after the Cut-Off Date, (ii) scheduled payments of
principal due, and unscheduled collections of principal received, on each
Mortgage Loan on and after the Cut-Off Date, (iii) the Insurance Policies, and
(iv) escrow accounts.
Section 2.3. Possession of Files. Upon the sale of the
Mortgage Loans, the ownership of each related Mortgage Loan and the contents of
the related Loan File shall immediately vest in the Trust. The contents of any
Loan File in the possession of the Originator or the Depsoitor at any time after
such sale, and any scheduled payments of principal and interest on the Mortgage
Loans due after the Cut-Off Date and received by the Originator or the
Depositor, shall be held in trust by the Originator or the Depositor, as the
case may be, for the benefit of the Trust as the owner thereof, and shall be
promptly delivered by the Originator or the Depositor, as applicable, to or upon
the order of the Sponsor on behalf of the Trust.
Section 2.4. Books and Records. The conveyance of each
Mortgage Loan to the Trust shall be reflected on the Originator's and the
Depositor's accounting and other records, balance sheet and other financial
statements as a sale of assets by Originator or the Depositor, as applicable, to
the Trust. The Originator and the Depositor shall be responsible for
maintaining, and shall maintain, a complete set of books and records for each
Mortgage Loan which shall be clearly marked to reflect the ownership of each
Mortgage Loan by the Trust for the benefit of the Owners.
Section 2.5. Cost of Delivery and Recordation of Documents.
The costs relating to the delivery and recordation of the documents specified in
this Article II in connection with the Mortgage Loans shall be borne by the
Originator.
Section 2.6. Assignment of Agreement. The Originator hereby
acknowledges and agrees that the Sponsor intends to assign its interest (other
than the Unassigned Rights (as defined in Section 4.02(a) hereof)) under this
Agreement to the Trustee as may be required to effect the purposes of the
Indenture, without further notice to, or consent of, the Originator, and
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the Trustee shall succeed to such of the rights and obligations of the Sponsor
hereunder as shall be so assigned.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of the Originator.
The Originator hereby represents, warrants and covenants to the Sponsor as of
the Closing Date that:
(a) The Originator is a corporation duly organized, validly
existing and in good standing under the laws of the State of ________ and is in
good standing as a foreign corporation in each jurisdiction in which the nature
of its business, or the properties owned or leased by it make such qualification
necessary. The Originator has all requisite corporate power and authority to own
and operate its properties, to enable it to carry out its business as presently
conducted in a material manner and as proposed to be conducted and to enter into
and discharge its obligations under this Agreement in a material manner.
(b) The execution and delivery of this Agreement by the
Originator, and its performance and compliance with the terms of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Originator and will not violate the Originator's organization documents or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Originator is a party or by
which the Originator is bound, or violate any statute or any order, rule or
regulation of any court, governmental agency or body or other tribunal having
jurisdiction over the Originator or any of its properties.
(c) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto and thereto, constitutes a valid, legal and
binding obligation of the Originator, enforceable against it in accordance with
the terms hereof, except as the enforcement hereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(d) The Originator is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which might have consequences that would
materially and adversely affect the condition (financial or other) or operations
of the Originator or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
(e) No litigation is pending or, to the best of the Originator
's knowledge, threatened against the Originator which litigation might have
consequences that would prohibit its entering into this Agreement or that would
materially and adversely affect the condition (financial or otherwise) or
operations of the Originator or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
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Section 3.2. Representations and Warranties of the Sponsor.
The Sponsor hereby represents and warrants to the Originator, as of the date of
execution of this Agreement and the Closing Date, that:
(a) The Sponsor is a corporation duly organized, validly
existing and in good standing under the laws of the State of North Carolina;
(b) The Sponsor has the corporate power and authority to
create the Trust, cause the Trust to acquire the Mortgage Loans and issue the
Securities and to execute, deliver and perform, and to enter into and consummate
all the transactions contemplated by this Agreement;
(c) This Agreement has been duly and validly authorized,
executed and delivered by the Sponsor, and, assuming the due authorization,
execution and delivery hereof by the Originator, constitutes the legal, valid
and binding agreement of the Sponsor, enforceable against the Sponsor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
is required for the execution, delivery and performance of or compliance by the
Sponsor with this Agreement or the consummation by the Sponsor of any of the
transactions contemplated hereby, except such as have been made on or prior to
the Closing Date; and
(e) None of the execution and delivery of this Agreement, the
consummation of the other transactions contemplated hereby, or the fulfillment
of or compliance with the terms and conditions of this Agreement, (i) conflicts
or will conflict with the organization documents of the Sponsor or conflicts or
will conflict with or results or will result in a breach of, or constitutes or
will constitute a default or results or will result in an acceleration under,
any term, condition or provision of any indenture, deed of trust, contract or
other agreement or other instrument to which the Sponsor is a party or by which
it is bound and which is material to the Sponsor, or (ii) results or will result
in a violation of any law, rule, regulation, order, judgment or decree of any
court or governmental authority having jurisdiction over the Sponsor.
ARTICLE IV
CERTAIN COVENANTS OF THE ORIGINATOR
Section 4.1. Further Assurances. The Originator hereby agrees
to do all acts, transactions, and things and to execute and deliver all
agreements, documents, instruments, and papers by and on behalf of the
Originator as the Sponsor or its counsel may reasonably request in order to
consummate the transfer of the Mortgage Loans to the Trust and the rating,
issuance and sale of the Securities.
Section 4.2. Indemnification. (a) The Originator agrees to
indemnify the Sponsor, its officers and directors and "controlling persons"
within the meaning of the Federal securities laws from and against any losses,
claims, actions or liabilities suffered or incurred by
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the Sponsor in connection with the Securitization, except to the extent any such
losses, claims, etc., relate to the "Sponsor Offering Materials", as defined in
the Underwriting Agreement dated as of the Originator (the "Underwriting
Agreement") among the Originator, the Sponsor, the Depositor and ________ (the
"Underwriter"). The rights of the Sponsor under this Section 4.02(a) are the
"Unassigned Rights" which are not being assigned to the Trustee.
(b) The Sponsor agrees to indemnify the Originator, its
officers and directors and "controlling persons" within the meaning of the
federal securities laws from and against any losses, claims, actions or
liabilities suffered or incurred by the Originator relating to the Sponsor
Offering Materials, as defined in the Underwriting Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1. Notices. All demands, notices and communications
hereunder shall be given as follows, until any superseding instructions are
given to all other persons listed below:
The Originator:
[address]
Attention:
Tel:
Fax:
The Sponsor:
[address]
Attention:
Tel:
Fax:
Section 5.2. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement which is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
Section 5.3. Survival. The parties to this Agreement agree
that the representations, warranties and agreements made by each of them herein
and in any certificate or
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other instrument delivered pursuant hereto shall be deemed to be relied upon by
the other party hereto, notwithstanding any investigation heretofore or
hereafter made by such other party or on such other party's behalf, and that the
representations, warranties and agreements made by the parties hereto in this
Agreement or in any such certificate or other instrument shall survive the
execution and delivery of this Agreement and the delivery of and payment for the
Mortgage Loans pursuant to the Loan Sale Agreement and the Sale and Servicing
Agreement.
Section 5.4. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 5.5. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. Except as expressly permitted by
the terms hereof, this Agreement may not be assigned, pledged or hypothecated by
any party hereto to a third party without the written consent of the other party
to this Agreement; provided, however, that the Sponsor may assign its rights
hereunder without the consent of the Originator.
Section 5.6. Miscellaneous. This Agreement supersedes all
prior agreements and understandings relating to the subject matter hereof.
Section 5.7. Amendments. (a) This Agreement may be amended
from time to time by the Originator and the Sponsor by written agreement without
notice to or consent of the Owners, but with the consent of the Note Insurer, to
cure any ambiguity, to correct or supplement any provisions herein, to comply
with any changes in the Code, or to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement; provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, at the expense of the
party requesting the change, delivered to the Trustee and the Note Insurer,
adversely affect in any material respect the interests of any Owner; provided,
further, that no such amendment shall reduce in any manner the amount of, or
delay the timing of, payments received on Mortgage Loans which are required to
be distributed on any Security without the consent of the Owner of such
Security, or change the rights or obligations of any other party hereto without
the consent of such party.
(b) It shall not be necessary for the consent of Owners under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof.
(c) The Owners, if they so request, shall be provided with
copies of any amendments to this Agreement, together with copies of any opinions
or other documents or instruments executed in connection therewith.
Section 5.8. Third-Party Beneficiaries. The parties agree that
each of the Note Insurer and the Trustee is an intended third-party beneficiary
of this Agreement to the extent necessary to enforce the rights and to obtain
the benefit of the remedies of the Sponsor under this Agreement which are
assigned to the Trustee for the benefit of the Owners pursuant to the
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Indenture and to the extent necessary to obtain the benefit of the enforcement
of the obligations and covenants of the Originator under Section 3.1 of this
Agreement.
Section 5.9. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL. (A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) OF THE STATE
OF NEW YORK.
(b) THE SPONSOR AND THE ORIGINATOR EACH HEREBY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND
EACH WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT
ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS
SET FORTH IN SECTION 5.01 OF THIS AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED
TO BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S.
MAILS, POSTAGE PREPAID. THE SPONSOR AND THE ORIGINATOR EACH HEREBY WAIVES ANY
OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY
ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF THE SPONSOR AND THE ORIGINATOR TO SERVE LEGAL PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT EITHER'S RIGHT TO BRING ANY
ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
(c) THE SPONSOR AND THE ORIGINATOR EACH HEREBY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN
CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE
RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 5.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
[Signatures Commence on Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed by their respective officers thereunto duly authorized as of the
date first above written.
-----------------------------------,
as Originator
By:
--------------------------------
Name:
Title:
RESIDENTIAL ASSET FUNDING
CORPORATION, as Sponsor
By:
--------------------------------
Name:
Title: