PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION,
Depositor,
ABFS 1997-2, INC.,
Unaffiliated Seller
and
AMERICAN BUSINESS CREDIT, INC. AND
HOMEAMERICAN CREDIT, INC., D/B/A UPLAND MORTGAGE,
Originators
---------------------------
UNAFFILIATED SELLER'S AGREEMENT
Dated as of September 1, 1997
TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS...........................................................................1
Section 1.01. Definitions...........................................................................1
ARTICLE TWO PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS.......................................4
Section 2.01. Agreement to Purchase the Initial Mortgage Loans......................................4
Section 2.02. Agreement to Purchase the Subsequent Mortgage Loans...................................5
Section 2.03. Purchase Price........................................................................6
Section 2.04. Conveyance of Mortgage Loans; Possession of Mortgage Files............................7
Section 2.05. Delivery of Mortgage Loan Documents...................................................7
Section 2.06. Acceptance of Mortgage Loans..........................................................9
Section 2.07. Transfer of Mortgage Loans; Assignment of Agreement..................................11
Section 2.08. Examination of Mortgage Files........................................................11
Section 2.09. Books and Records....................................................................11
Section 2.10. Cost of Delivery and Recordation of Documents........................................12
ARTICLE THREE REPRESENTATIONS AND WARRANTIES.......................................................12
Section 3.01. Representations and Warranties as to the Originators.................................12
Section 3.02. Representations and Warranties as to the Unaffiliated Seller.........................14
Section 3.03. Representations and Warranties Relating to the Mortgage Loans........................16
Section 3.04. Representations and Warranties of the Depositor......................................24
Section 3.05. Repurchase Obligation for Defective Documentation and
for Breach of a Representation or Warranty..........................................24
ARTICLE FOUR THE UNAFFILIATED SELLER..............................................................27
Section 4.01. Covenants of the Originators and the Unaffiliated Seller.............................27
Section 4.02. Merger or Consolidation..............................................................28
Section 4.03. Costs ...............................................................................28
Section 4.04. Indemnification .....................................................................28
ARTICLE FIVE CONDITIONS OF CLOSING................................................................31
Section 5.01. Conditions of Depositor's Obligations................................................31
Section 5.02. Conditions of Unaffiliated Seller's Obligations......................................32
Section 5.03. Termination of Depositor's Obligations...............................................33
ARTICLE SIX MISCELLANEOUS........................................................................33
Section 6.01. Notices .............................................................................33
Section 6.02. Severability of Provisions...........................................................33
Section 6.03. Agreement of Unaffiliated Seller.....................................................33
Section 6.04. Survival ............................................................................33
Section 6.05. Effect of Headings and Table of Contents.............................................34
Section 6.06. Successors and Assigns...............................................................34
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Section 6.07. Confirmation of Intent; Grant of Security Interest...................................34
Section 6.08. Miscellaneous .......................................................................34
Section 6.09. Amendments ..........................................................................34
Section 6.10. Third-Party Beneficiaries............................................................35
Section 6.11. GOVERNING LAW; CONSENT TO JURISDICTION;
WAIVER OF JURY TRIAL ................................................................35
Section 6.12. Execution in Counterparts............................................................36
Exhibit A - Mortgage Loan Schedule
ii
THIS UNAFFILIATED SELLER'S AGREEMENT, dated as of September 1,
1997, by and among PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION, a
Delaware corporation, its successors and assigns (the "Depositor"), ABFS 1997-2,
INC., a Delaware corporation and its successors (the "Unaffiliated Seller"),
AMERICAN BUSINESS CREDIT, INC., a Pennsylvania corporation ("ABC") and
HOMEAMERICAN CREDIT, INC. D/B/A UPLAND MORTGAGE, a Pennsylvania corporation
("Upland", and together with ABC, the "Originators").
WHEREAS, Exhibit A attached hereto and made a part hereof
lists certain fixed rate business and consumer purpose first and second lien
mortgage loans (the "Mortgage Loans") owned by the Originators that the
Originators desire to sell to the Unaffiliated Seller and the Unaffiliated
Seller desires to sell to the Depositor and that the Depositor desires to
purchase;
WHEREAS, it is the intention of the Originators, the
Unaffiliated Seller and the Depositor that simultaneously with the Originators'
conveyance of the Mortgage Loans to the Unaffiliated Seller and the Unaffiliated
Seller's conveyance of the Mortgage Loans to the Depositor on the Closing Date,
(a) the Depositor shall deposit the Mortgage Loans in a trust pursuant to a
Pooling and Servicing Agreement to be dated as of September 1, 1997 (the
"Pooling and Servicing Agreement"), to be entered into by and among the
Depositor, as depositor, American Business Credit, Inc., as servicer (in such
capacity, the "Servicer") and The Chase Manhattan Bank, as trustee (the
"Trustee") and (b) the Trustee shall issue certificates evidencing beneficial
ownership interests in the property of the trust fund formed by the Pooling and
Servicing Agreement to the Depositor;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used herein, the following words
and phrases, unless the context otherwise requires, shall have the meanings
specified in this Article:
"Accepted Servicing Practices" means the Servicer's normal servicing
practices, which in general will conform to the mortgage servicing practices of
prudent mortgage lending institutions which service for their own account
mortgage loans of the same type as the Mortgage Loans in the jurisdictions in
which the related Mortgaged Properties are located.
"Agreement" means this Unaffiliated Seller's Agreement, as amended or
supplemented in accordance with the provisions hereof.
"Appraised Value" means the appraised value of the Mortgaged Property
based upon the appraisal made by or on behalf of the Originators.
"Certificate Insurer" means Financial Security Assurance Inc., a stock
insurance company organized and created under the laws of the State of New York,
and any successors thereto.
"Closing Date" shall have the meaning ascribed thereto in Section
2.01(c).
"Commission" means the Securities and Exchange Commission.
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"Cut-Off Date" means, with respect to the Initial Mortgage Loans, the
Initial Cut-Off Date, and with respect to the Subsequent Mortgage Loans, the
Subsequent Cut-Off Date.
"Cut-Off Date Aggregate Principal Balance" means the aggregate unpaid
principal balance of the Initial Mortgage Loans as of the Cut-Off Date (or, with
respect to Initial Mortgage Loans which were originated after the Cut-Off Date
as of the date of origination). The Cut-Off Date Aggregate Principal Balance is
$59,721,675.80.
"Cut-Off Date Principal Balance" means as to each Mortgage Loan, its
unpaid principal balance as of the Cut-Off Date (or, with respect to Initial
Mortgage Loans which were originated after the Cut-Off Date as of the date of
origination).
"Deleted Mortgage Loan" means a Mortgage Loan replaced by or to be
replaced by a Qualified Substitute Mortgage Loan pursuant to the terms of the
Pooling and Servicing Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Initial Cut-Off Date" means the close of business on August 31, 1997.
"Initial Mortgage Loans" means the Mortgage Loans transferred and
assigned to the Depositor on the Closing Date.
"Monthly Payment" means, as to any Mortgage Loan (including any REO
Mortgage Loan) and any Due Date, the payment of principal and interest due
thereon in accordance with the amortization schedule at the time applicable
thereto (after adjustment for any Curtailments and Deficient Valuations
occurring prior to such Due Date but before any adjustment to such amortization
schedule by reason of any bankruptcy, other than Deficient Valuations or similar
proceeding or any moratorium or similar waiver or grace period).
"Mortgage" means the mortgage or deed of trust creating a first or
second lien on an estate in fee simple in real property, and securing a Mortgage
Note, as amended or modified.
"Mortgage Interest Rate" means, as to any Mortgage Loan, the fixed per
annum rate at which interest accrues on the unpaid principal balance thereof.
"Mortgage Loans" means such of the mortgage loans to be sold,
transferred and assigned to the Depositor on the Closing Date and each
Subsequent Transfer Date pursuant to Article Two hereof (including the related
Mortgage Notes and related Mortgages), all as identified in the Mortgage Loan
Schedule, and including any mortgage loan substituting or replacing a Mortgage
Loan pursuant to the terms of the Pooling and Servicing Agreement.
"Mortgage Loan Schedule" shall have the meaning ascribed thereto in
Section 2.01(b).
"Mortgage Note" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan, as amended or
modified.
"Mortgaged Property" means the property subject to a Mortgage.
"Mortgagor" means the obligor on a Mortgage Note.
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"Pooling and Servicing Agreement" shall have the meaning ascribed
thereto in the recitals hereof.
"Prospectus" means the Prospectus dated June 10, 1997 relating to the
offering by the Depositor from time to time of its Pass-Through Certificates
(Issuable in Series) in the form in which it was or will be filed with the
Securities Exchange Commission pursuant to Rule 424(b) under the Securities Act
with respect to the offer and sale of the Certificates.
"Prospectus Supplement" means the Prospectus Supplement dated September
17, 1997, relating to the offering of the Certificates in the form in which it
was or will be filed with the Commission pursuant to Rule 424(b) under the
Securities Act with respect to the offer and sale of the Certificates.
"Qualified Appraiser" means an appraiser, duly appointed by the
Unaffiliated Seller, who had no interest, direct or indirect, in the Mortgaged
Property or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan, and such
appraiser and the appraisal made by such appraiser both satisfy the requirements
of Title XI of the Federal Institutions Reform, Recovery and Enforcement Act of
1989 and the regulations promulgated thereunder, all as in effect on the date
the Mortgage Loan was originated.
"Registration Statement" means that certain registration statement on
Form S-3, as amended (Registration No. 333-27355) relating to the offering by
the Depositor from time to time of its Pass-Through Certificates (Issuable in
Series) as heretofore declared effective by the Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsequent Cut-Off Date" means the date specified in the Addition
Notice relating to Subsequent Mortgage Loans.
"Subsequent Mortgage Loans" means the Mortgage Loans hereafter
transferred and assigned to the Depositor on a Subsequent Transfer Date.
"Termination Event" means the existence of any one or more of the
following conditions:
(a) stop order suspending the effectiveness of the
Registration Statement shall have been issued or a proceeding for that
purpose shall have been initiated or threatened by the Commission; or
(b) subsequent to the execution and delivery of this
Agreement, a downgrading, or public notification of a possible change,
without indication of direction, shall have occurred in the rating
afforded any of the debt securities or claims paying ability of any
person providing any form of credit enhancement for any of the
Certificates, by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act; or
(c) subsequent to the execution and delivery of this
Agreement, there shall have occurred an adverse change in the
condition, financial or otherwise, earnings, affairs, regulatory
situation or business prospects of the Certificate Insurer or the
Unaffiliated Seller reasonably determined by the Depositor to be
material; or
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(d) subsequent to the date of this Agreement there shall have
occurred any of the following: (i) a suspension or material limitation
in trading in securities substantially similar to the Certificates;
(ii) a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iii) the
engagement by the United States in hostilities, or the escalation of
such hostilities, or any calamity or crisis, if the effect of any such
event specified in this clause (iii) in the reasonable judgment of the
Depositor makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Certificates on the terms and in
the manner contemplated in the Prospectus Supplement.
"Unaffiliated Seller" means ABFS 1997-2, Inc., in its capacity as
Unaffiliated Seller of the Mortgage Loans under this Agreement and any successor
to ABFS 1997-2, Inc., whether through merger, consolidation, purchase and
assumption of ABFS 1997-2, Inc. or all or substantially all of its assets or
otherwise.
Capitalized terms used herein that are not otherwise defined shall have
the respective meanings ascribed thereto in the Pooling and Servicing Agreement.
ARTICLE TWO
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
Section 2.01. Agreement to Purchase the Initial Mortgage Loans. (a)
Subject to the terms and conditions of this Agreement, the Originators agree to
sell, and the Unaffiliated Seller agrees to purchase on the Closing Date and
immediately subsequent thereto, the Unaffiliated Seller agrees to sell, and the
Depositor agrees to purchase, the Mortgage Loans having the Cut-Off Date
Aggregate Principal Balance or, in accordance with Section 2.08 hereof, such
other balance as is evidenced by the actual Cut-Off Date Aggregate Principal
Balance of the Mortgage Loans accepted by the Depositor on the Closing Date and
listed in the Mortgage Loan Schedule.
(b) Subject to Section 2.08 hereof, the Depositor and the Unaffiliated
Seller have agreed upon which of the Unaffiliated Seller's Mortgage Loans are to
be purchased by the Depositor on the Closing Date pursuant to this Agreement,
and the Unaffiliated Seller has prepared a schedule describing the Mortgage
Loans (the "Mortgage Loan Schedule") setting forth all of the Mortgage Loans to
be purchased under this Agreement, which schedule is attached hereto as Exhibit
A. The Mortgage Loan Schedule shall conform to the requirements of the Depositor
and to the definition of "Mortgage Loan Schedule" under the Pooling and
Servicing Agreement.
(c) The closing for the purchase and sale of the Mortgage Loans shall
take place at the offices of Xxxxx Xxxxxxxxxx, New York, New York, at 10:00
a.m., New York time, on September 29, 1997 or such other place and time as the
parties shall agree (such time being herein referred to as the "Closing Date").
Section 2.02. Agreement to Purchase the Subsequent Mortgage Loans. (a)
Subject to the terms and conditions of this Agreement, the Originators agree to
sell, and the Unaffiliated Seller agrees to purchase on the each Subsequent
Transfer Date and immediately subsequent thereto, the Unaffiliated Seller agrees
to sell, and the Depositor agrees to purchase, Subsequent Mortgage Loans, having
an Aggregate Principal Balance of up to $40,278,324.20 as listed in the Mortgage
Loan Schedule attached to the related Addition Notice.
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(b) Subject to Section 2.08 herein, the Mortgage Loans that are to be
purchased by the Depositor on a Subsequent Transfer Date pursuant to this
Agreement will be set forth on a Mortgage Loan Schedule to be attached to the
related Addition Notice.
(c) Subject to the satisfaction of the conditions set forth in
paragraph (d) below, (i) in consideration of the Unaffiliated Seller's delivery
on the related Subsequent Transfer Dates to or upon the order of the Originators
of the purchase price, the Originators shall on any Subsequent Transfer Date
sell, transfer, assign, set over and convey to the Trustee without recourse but
subject to terms and provisions of this Agreement, all of the right, title and
interest of the Originators in and to the Subsequent Mortgage Loans, including
all principal outstanding as of, and all interest due after, the Subsequent
Cut-Off Date, and all other assets included or to be included in the Trust Fund
for the benefit of the Certificateholders and the Certificate Insurer and (ii)
in consideration of the Depositor's delivery on the related Subsequent Transfer
Dates to or upon the order of the Unaffiliated Seller of the purchase price, the
Unaffiliated Seller shall on any Subsequent Transfer Date sell, transfer,
assign, set over and convey to the Trustee without recourse but subject to terms
and provisions of this Agreement, all of the right, title and interest of the
Originators in and to the Subsequent Mortgage Loans, including all principal
outstanding as of, and all interest due after, the Subsequent Cut-Off Date, and
all other assets included or to be included in the Trust Fund for the benefit of
the Certificateholders.
(d) The Subsequent Mortgage Loans and the other property and rights
related thereto described in paragraph (c) above shall be transferred by the
Depositor to the Trust only upon the satisfaction of each of the following
conditions on or prior to the related Subsequent Transfer Date:
(i) the Unaffiliated Seller shall have provided the Trustee,
the Rating Agencies and the Certificate Insurer with a timely Addition
Notice, which shall include a Mortgage Loan Schedule listing the
Subsequent Mortgage Loans and shall have provided any other information
reasonably requested by any of the foregoing with respect to the
Subsequent Mortgage Loans;
(ii) the Unaffiliated Seller shall have deposited in the
Collection Account all collections of (x) principal in respect of the
Subsequent Mortgage Loans received after the related Subsequent Cut-Off
Date and (y) interest due on the Subsequent Mortgage Loans after the
related Subsequent Cut-Off Date;
(iii) as of each Subsequent Transfer Date, the Depositor was
not insolvent nor will be made insolvent by such transfer nor is the
Depositor aware of any pending insolvency;
(iv) such addition will not result in a material adverse tax
consequence to the Trust or the Holders of the Certificates;
(v) the Pre-Funding Period shall not have terminated;
(vi) the Unaffiliated Seller shall have delivered to the
Trustee an Officer's Certificate confirming the satisfaction of each
condition precedent specified in this paragraph (d) and that the
Subsequent Mortgage Loans comply with the provisions of Section
3.03(af) hereof and Section 2.03(c) of the Pooling and Servicing
Agreement; and
(vii) there shall have been delivered to the Certificate
Insurer, the Rating Agencies and the Trustee, independent Opinions of
Counsel with respect to the transfer of the Subsequent Mortgage Loans
substantially in the form of the Opinions of Counsel
5
delivered to the Certificate Insurer and the Trustee on the Startup
Date (bankruptcy, corporate and tax opinions); and
(viii) the Originators, the Seller and the Depositor shall
have delivered to the Trustee an executed subsequent transfer agreement
substantially in the form of Exhibit L to the Pooling and Servicing
Agreement.
(e) The obligation of the Depositor to purchase a Subsequent Mortgage
Loan on any Subsequent Transfer Date is subject to the requirements set forth in
Section 2.03(c) of the Pooling and Servicing Agreement.
Section 2.03. Purchase Price. (a) On the Closing Date, as full
consideration for the Unaffiliated Seller's sale of the Initial Mortgage Loans
to the Depositor, the Depositor will deliver to the Unaffiliated Seller (i) an
amount in cash equal to the sum of (A) 99.50%, 99.50%, 99.50%, 99.50%, 99.50%
and 99.50% of the aggregate principal balance as of the Closing Date of the
Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, and Class A-6
Certificates, respectively, and (B) accrued interest on such principal balance
at the rate of 6.375%, 6.465%, 6.730%, 7.125% and 6.700% per annum, on the Class
X-0, Xxxxx X-0, Class A-4, Class A-5 and Class A-6 Certificates, respectively,
from (and including) September 1, 1997 to (but not including) September 29,
1997, payable by wire transfer of same day funds and (ii) the Class R
Certificates to be issued pursuant to the Pooling and Servicing Agreement.
On the Closing Date, as full consideration for the Originators' sale of
the Initial Mortgage Loans to the Unaffiliated Seller, the Unaffiliated Seller
will deliver to the Originators an amount in cash equal to the sum of (A)
99.50%, 99.50%, 99.50%, 99.50%, 99.50% and 99.50% of the aggregate principal
balance as of the Closing Date of the Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5 and Class A-6 Certificates, respectively, and (B) accrued
interest on such principal balance at the rate of 6.375%, 6.465%, 6.730%, 7.125%
and 6.700%, per annum, on the Class X-0, Xxxxx X-0, Class A-4, Class A-5 and
Class A-6 Certificates, respectively, from (and including) September 1, 1997 to
(but not including) September 29, 1997, payable by wire transfer of same day
funds.
(b) On each Subsequent Transfer Date, as full consideration for
Originators' sale to the Unaffiliated Seller and the Unaffiliated Seller's sale
of the Subsequent Mortgage Loans to the Depositor, the Depositor will deliver to
the Unaffiliated Seller and the Unaffiliated Seller will deliver to the
Originators an amount in cash equal to the sum of 100% of the aggregate
Principal Balance of the Subsequent Mortgage Loans as of the related Subsequent
Cut-Off Date.
Section 2.04. Conveyance of Mortgage Loans; Possession of Mortgage
Files. (a) On the Closing Date and on each Subsequent Transfer Date, the
Originators shall sell, transfer, assign, set over and convey to the
Unaffiliated Seller, without recourse but subject to the terms of this
Agreement, all right, title and interest in and to the applicable Mortgage
Loans, including all principal outstanding as of, and all interest due after,
the Subsequent Cut-Off Date, the insurance policies relating to each such
Mortgage Loan and all right, title and interest in and to the proceeds of such
insurance policies from and after the Closing Date and the Unaffiliated Seller
shall sell, transfer, assign, set over and convey to the Depositor, without
recourse but subject to the terms of this Agreement, all right, title and
interest in and to the applicable Mortgage Loans, including all principal
outstanding as of, and all interest due after, the Subsequent Cut-Off Date, the
insurance policies relating to each such Mortgage Loan, all right, title and
interest in and to the proceeds of such insurance policies and all of its rights
under this Agreement with respect to the Mortgage Loans from and after the
Closing Date. Upon payment of the purchase price for such Mortgage Loans as
provided in Section 2.03 of this Agreement, the
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Originators and the Unaffiliated Seller shall have hereby, and shall be deemed
to have, sold, transferred, assigned, set over and conveyed such Mortgage Loans,
the insurance policies relating to each such Mortgage Loan, all right, title and
interest in and to the proceeds of such insurance policies and all of its rights
under this Agreement with respect to the Mortgage Loans from and after the
Closing Date.
(b) Upon the sale of such Mortgage Loans, the ownership of each related
Mortgage Note, each related Mortgage and the contents of the related Mortgage
File shall immediately vest in the Depositor and the ownership of all related
records and documents with respect to each Mortgage Loan prepared by or which
come into the possession of the Originators or the Unaffiliated Seller shall
immediately vest in the Depositor. The contents of any Mortgage File in the
possession of the Originators or the Unaffiliated Seller at any time after such
sale, and any principal collected and interest due on the Mortgage Loans after
the Cut-Off Date and received by the Originators or the Unaffiliated Seller,
shall be held in trust by the Originators or the Unaffiliated Seller for the
benefit of the Depositor as the owner thereof, and shall be promptly delivered
by the Originators or the Unaffiliated Seller to or upon the order of the
Depositor.
(c) Pursuant to the Pooling and Servicing Agreement, the Depositor
shall, on the Closing Date, assign all of its right, title and interest in and
to the applicable Mortgage Loans to the Trustee for the benefit of the
Certificateholders and the Certificate Insurer.
Section 2.05. Delivery of Mortgage Loan Documents. (a) On or prior to
the Closing Date or Subsequent Transfer Date, as applicable, the related
Originator shall deliver to the Unaffiliated Seller, and the Unaffiliated Seller
shall deliver to the Trustee (as assignee of the Depositor pursuant to the
Pooling and Servicing Agreement), each of the following documents for each
applicable Mortgage Loan:
(i) The original Mortgage Note, endorsed without recourse in
blank by the related Originator, including all intervening endorsements
showing a complete chain of endorsement;
(ii) The related original Mortgage with evidence of recording
indicated thereon or a copy thereof certified by the applicable
recording office;
(iii) The recorded mortgage assignment, or copy thereof
certified by the applicable recording office, if any, showing a
complete chain of assignment from the originator of the related
Mortgage Loan to the related Originator (which assignment may, at the
related Originator's option, be combined with the assignment referred
to in subpart (iv) hereof);
(iv) A mortgage assignment in recordable form (which, if
acceptable for recording in the relevant jurisdiction, may be included
in a blanket assignment or assignments) of each Mortgage from the
related Originator to the Trustee;
(v) Originals of all assumption, modification and substitution
agreements in those instances where the terms or provisions of a
Mortgage or Mortgage Note have been modified or such Mortgage or
Mortgage Note has been assumed; and
(vi) An original policy of title insurance (or (A) a copy of
the title insurance policy, or (B) a binder thereof or copy of such
binder, together with a certificate from the related Originator that
the original Mortgage has been delivered to the title insurance company
that issued such binder for recordation).
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In instances where the original recorded Mortgage and a completed
assignment thereof in recordable form cannot be delivered by the related
Originator to the Unaffiliated Seller, and by the Unaffiliated Seller to the
Trustee prior to or concurrently with the execution and delivery of this
Agreement (or, with respect to Subsequent Mortgage Loans, prior to or on the
Subsequent Transfer Date), due to a delay in connection with recording, the
related Originator may:
(x) In lieu of delivering such original recorded
Mortgage, deliver to the Trustee a copy thereof provided that the
related Originator certifies that the original Mortgage has been
delivered to a title insurance company for recordation after receipt of
its policy of title insurance or binder therefor; and
(y) In lieu of delivering the completed assignment in
recordable form, deliver to the Trustee the assignment in recordable
form, otherwise complete except for recording information.
(b) Pursuant to the Pooling and Servicing Agreement, the Unaffiliated
Seller shall be required to promptly submit, or cause to be submitted by the
related Originator, for recording in the appropriate public office for real
property records, each assignment referred to in (a) above. The Trustee shall be
required to retain a copy of each assignment submitted for recording. In the
event that any such assignment is lost or returned unrecorded because of a
defect therein, the Unaffiliated Seller or such Originator shall promptly
prepare a substitute assignment or cure such defect, as the case may be, and
thereafter the Unaffiliated Seller or such Originator shall be required to
submit each such assignment for recording.
(c) The Unaffiliated Seller or the related Originator shall, within
five Business Days after the receipt thereof, deliver or cause to be delivered
to the Trustee (as assignee of the Depositor pursuant to the Pooling and
Servicing Agreement): (i) the original recorded Mortgage and related power of
attorney, if any, in those instances where a copy thereof certified by the
related Originator was delivered to the Trustee (as assignee of the Depositor
pursuant to the Pooling and Servicing Agreement); (ii) the original recorded
assignment of Mortgage from the related Originator to the Trustee (as assignee
of the Depositor pursuant to the Pooling and Servicing Agreement), which,
together with any intervening assignments of Mortgage, evidences a complete
chain of assignment from the originator of the Mortgage Loan to the Trustee in
those instances where copies of such assignments certified by the related
Originator were delivered to the Trustee (as assignee of the Depositor pursuant
to the Pooling and Servicing Agreement); and (iii) the title insurance policy or
title opinion required in clause (a)(vi) above. Notwithstanding anything to the
contrary contained in this Section 2.05, in those instances where the public
recording office retains the original Mortgage, power of attorney, if any,
assignment or assignment of Mortgage after it has been recorded or such original
has been lost, the Unaffiliated Seller or the related Originator shall be deemed
to have satisfied its obligations hereunder upon delivery to the Trustee (as
assignee of the Depositor pursuant to the Pooling and Servicing Agreement) of a
copy of such Mortgage, power of attorney, if any, assignment or assignment of
Mortgage certified by the public recording office to be a true copy of the
recorded original thereof. From time to time the Unaffiliated Seller or the
related Originator may forward or cause to be forwarded to the Trustee (as
assignee of the Depositor pursuant to the Pooling and Servicing Agreement)
additional original documents evidencing an assumption or modification of a
Mortgage Loan.
(d) All original documents relating to the Mortgage Loans that are not
delivered to the Trustee (as assignee of the Depositor pursuant to the Pooling
and Servicing Agreement) as permitted by Section 2.05 (a) are and shall be held
by the Unaffiliated Seller or the related
8
Originator in trust for the benefit of the Trustee on behalf of the
Certificateholders and the Certificate Insurer. In the event that any such
original document is required pursuant to the terms of this Section 2.05 to be a
part of a Mortgage File, such document shall be delivered promptly to the
Trustee (as assignee of the Depositor pursuant to the Pooling and Servicing
Agreement). From and after the sale of the Mortgage Loans to the Depositor
pursuant hereto, to the extent that the Unaffiliated Seller or the related
Originator retains legal title of record to any Mortgage Loans prior to the
vesting of legal title in the Trustee (as assignee of the Depositor pursuant to
the Pooling and Servicing Agreement), such title shall be retained in trust for
the Depositor as the owner of the Mortgage Loans and the Trustee, as the
Depositor's assignee.
Section 2.06. Acceptance of Mortgage Loans. (a) Pursuant to the Pooling
and Servicing Agreement, the Trustee has agreed to execute and deliver on or
prior to the Closing Date, or any Subsequent Transfer Date, an acknowledgment of
receipt of, for each Mortgage Loan, the original Mortgage Note with respect to
each Mortgage Loan (with any exceptions noted), in the form attached as Exhibit
E to the Pooling and Servicing Agreement and declares that it will hold such
documents and any amendments, replacements or supplements thereto, as well as
any other assets included in the definition of Trust Fund in the Pooling and
Servicing Agreement and delivered to the Trustee, as Trustee in trust upon and
subject to the conditions set forth in the Pooling and Servicing Agreement for
the benefit of the Certificateholders and the Certificate Insurer. Pursuant to
the Pooling and Servicing Agreement, the Trustee has agreed, for the benefit of
the Certificateholders and the Certificate Insurer, to review (or cause to be
reviewed) each Trustee's Mortgage File within 30 days after the Closing Date or
the Subsequent Transfer Date, as applicable (or, with respect to any Qualified
Substitute Mortgage Loan, within 30 days after the receipt by the Trustee
thereof), and to deliver to the Unaffiliated Seller, the Servicer and the
Certificate Insurer a certification in the form attached to the Pooling and
Servicing Agreement as Exhibit F to the effect that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full
or any Mortgage Loan specifically identified in such certification as not
covered by such certification), (i) all documents required to be delivered to it
pursuant to the Pooling and Servicing Agreement are in its possession, (ii) each
such document has been reviewed by it and has not been mutilated, damaged, torn
or otherwise physically altered (handwritten additions, changes or corrections
shall not constitute physical alteration if initialled by the Mortgagor),
appears regular on its face and relates to such Mortgage Loan, and (iii) based
on its examination and only as to the foregoing
9
documents, the information set forth on the Mortgage Loan Schedule accurately
reflects the information set forth in the Trustee's Mortgage File delivered on
such date. The Pursuant to the Pooling and Servicing Agreement, the Trustee
shall be under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face. Pursuant to the Pooling
and Servicing Agreement, by December 29, 1997, with respect to the Initial
Mortgage Loans, and within 90 days of the Subsequent Transfer Date, with respect
to any related Subsequent Transfer Date, the Trustee shall be required to
deliver (or cause to be delivered) to the Servicer, the Unaffiliated Seller, the
initial Certificateholders and the Certificate Insurer a final certification in
the form attached to the Pooling and Servicing Agreement as Exhibit G to the
effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or any Mortgage Loan specifically
identified in such certification as not covered by such certification), (i) all
documents required to be delivered to it pursuant to the Pooling and Servicing
Agreement are in its possession, (ii) each such document has been reviewed by it
and has not been mutilated, damaged, torn or otherwise physically altered
(handwritten additions, changes or corrections shall not constitute physical
alteration if initialed by the Mortgagor), appears regular on its face and
relates to such Mortgage Loan, and (iii) based on its examination and only as to
the foregoing documents, the information set forth on the Mortgage Loan Schedule
accurately reflects the information set forth in the Trustee's Mortgage File
delivered on such date.
(b) The Pooling and Servicing Agreement provides that, if the Trustee
during the process of reviewing the Trustee's Mortgage Files finds any document
constituting a part of a Trustee's Mortgage File which is not executed, has not
been received, is unrelated to the Mortgage Loan identified in the Mortgage Loan
Schedule, or does not conform to the requirements of Section 2.05 or the
description thereof as set forth in the Mortgage Loan Schedule, the Trustee
shall promptly so notify the Servicer, the Unaffiliated Seller, the related
Originator, the Certificate Insurer and the Trustee. The Unaffiliated Seller
agrees that in performing any such review, the Trustee may conclusively rely on
the Unaffiliated Seller as to the purported genuineness of any such document and
any signature thereon. Each of the Originators and the Unaffiliated Seller
agrees to use reasonable efforts to remedy a material defect in a document
constituting part of a Mortgage File of which it is notified. If, however,
within 60 days after such notice neither the Unaffiliated Seller nor either
Originator has remedied the defect and the defect materially and adversely
affects the interest of the Certificateholders in the related Mortgage Loan or
the interests of the Certificate Insurer, then the Unaffiliated Seller and the
Originators shall be obligated to either substitute in lieu of such Mortgage
Loan a Qualified Substitute Mortgage Loan or purchase such Mortgage Loan in the
manner and subject to the conditions set forth in Section 3.05.
(c) The failure of the Trustee or the Certificate Insurer to give any
notice contemplated herein within the time periods specified above shall not
affect or relieve the Unaffiliated Seller's obligation to repurchase for any
Mortgage Loan pursuant to this Section 2.06 or Section 3.05 of this Agreement.
Section 2.07. Transfer of Mortgage Loans; Assignment of Agreement. (a)
The Originators and the Unaffiliated Seller each hereby acknowledges and agrees
that the Depositor may assign its interest under this Agreement to the Trustee
as may be required to effect the purposes of the Pooling and Servicing
Agreement, without further notice to, or consent of, the Unaffiliated Seller or
the Originators, and the Trustee shall succeed to such of the rights and
obligations of the Depositor hereunder as shall be so assigned. The Depositor
shall, pursuant to the Pooling and Servicing Agreement, assign all of its right,
title and interest in and to the Mortgage Loans and its right to exercise the
remedies created by Sections 2.06 and 3.05 hereof for breaches of the
representations, warranties, agreements and covenants of the Unaffiliated Seller
or the Originators contained in Sections 2.05, 2.06, 3.02 and 3.03 hereof to the
Trustee for the benefit of the Certificateholders and the Certificate Insurer.
Each of the Originators and the Unaffiliated Seller agrees that, upon such
assignment to the Trustee, such representations, warranties, agreements and
covenants will run to and be for the benefit of the Trustee and the Trustee may
enforce, without joinder of the Depositor, the repurchase obligations of the
Unaffiliated Seller and the Originators set forth herein with respect to
breaches of such representations, warranties, agreements and covenants.
Section 2.08. Examination of Mortgage Files. Prior to the Closing Date
and each Subsequent Transfer Date, as applicable, the Unaffiliated Seller shall
make the Mortgage Files available to the Depositor or its designee for
examination at the Unaffiliated Seller's offices or at such other place as the
Unaffiliated Seller shall reasonably specify. Such examination may be made by
the Depositor or its designee at any time on or before the Closing Date or
Subsequent Transfer Date, as the case may be. If the Depositor or its designee
makes such examination prior to the Closing Date or Subsequent Transfer Date, as
the case may be, and identifies any Mortgage Loans that do not conform to the
requirements of the Depositor as described in this Agreement, such Mortgage
Loans shall be deleted from the Mortgage Loan Schedule and may be replaced,
10
prior to the Closing Date or Subsequent Transfer Date, as the case may be, by
substitute Mortgage Loans acceptable to the Depositor. The Depositor may, at its
option and without notice to the Unaffiliated Seller, purchase all or part of
the Mortgage Loans without conducting any partial or complete examination. The
fact that the Depositor or the Trustee has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files shall not affect the
rights of the Depositor or the Trustee to demand repurchase or other relief as
provided in this Agreement.
Section 2.09. Books and Records. The sale of each Mortgage Loan shall
be reflected on each of the Originators' and the Unaffiliated Seller's
accounting and other records, balance sheet and other financial statements as a
sale of assets by the Originators to the Unaffiliated Seller and by the
Unaffiliated Seller to the Depositor. Each of the Originators and the
Unaffiliated Seller 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 Trustee for the
benefit of the Certificateholders and the Certificate Insurer.
Section 2.10. Cost of Delivery and Recordation of Documents. The costs
relating to the delivery and recordation of the documents specified in this
Article Two in connection with the Mortgage Loans shall be borne by the
Unaffiliated Seller.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties as to the Originators .
Each of the Originators hereby represents and warrants to the Unaffiliated
Seller and the Depositor, 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 Pennsylvania and has all
licenses necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in each state where a Mortgaged
Property is located if the laws of such state require licensing or qualification
in order to conduct business of the type conducted by the Originator and to
perform its obligations as the Originator hereunder, and in any event the
Originator is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of the related Mortgage Loan; (i) the
Originator has the full power and authority, corporate and otherwise, to execute
and deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Originator and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Originator; and all requisite corporate action has been taken
by the Originator to make this Agreement valid and binding upon the Originator
in accordance with its terms;
(b) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Originator of, or compliance by the Originator with, this
Agreement or the sale of the Mortgage Loans pursuant to the terms of this
Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such approval has been obtained prior to the Closing
Date;
11
(c) Neither the execution and delivery of this Agreement, the
acquisition or origination of the Mortgage Loans by the Originator or the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, has or will conflict with or result in a
breach of any of the terms, conditions or provisions of the Originator's charter
or by-laws or any legal restriction or any agreement or instrument to which the
Originator is now a party or by which it is bound or to which its property is
subject, or constitute a default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Originator or its property is subject, or impair
the ability of the Trustee (or the Servicer as the agent of the Trustee) to
realize on the Mortgage Loans, or impair the value of the Mortgage Loans;
(d) Neither this Agreement nor the information contained in the
Prospectus Supplement under the captions "The Mortgage Pool", "The Originators,
the Seller and the Servicer" and "Servicing of the Mortgage Loans" nor any
statement, report or other document prepared by the Originator and furnished or
to be furnished pursuant to this Agreement or in connection with the
transactions contemplated hereby contains any untrue statement or alleged untrue
statement of any material fact or omits to state a material fact necessary to
make the statements contained herein or therein, in light of the circumstances
under which they were made, not misleading;
(e) There is no action, suit, proceeding or investigation pending or,
to the knowledge of the Originator, threatened before a court, administrative
agency or government tribunal against the Originator which, either in any one
instance or in the aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Originator, or in any material impairment of the right or ability of the
Originator to carry on its business substantially as now conducted, or in any
material liability on the part of the Originator, or which would draw into
question the validity of this Agreement, the Mortgage Loans, or of any action
taken or to be taken in connection with the obligations of the Originator
contemplated herein, or which would impair materially the ability of the
Originator to perform under the terms of this Agreement or that might prohibit
its entering into this Agreement or the consummation of any of the transactions
contemplated hereby;
(f) The Originator is not in violation of or in default with respect
to, and the execution and delivery of this Agreement by the Originator and its
performance of and compliance with the terms hereof will not constitute a
violation or 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 violation or default 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 or under any Subservicing
Agreement;
(g) Upon the receipt of each Trustee's Mortgage File by the Depositor
under this Agreement, the Depositor will have good title on behalf of the Trust
Fund to each related Mortgage Loan and such other items comprising the corpus of
the Trust Fund free and clear of any lien created by the Originator (other than
liens which will be simultaneously released);
(h) The consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of the Originator, and the transfer,
assignment and conveyance of the Mortgage Notes and the Mortgages by the
Originator pursuant to this Agreement are not subject to the bulk transfer or
any similar statutory provisions in effect in any applicable jurisdiction;
12
(i) With respect to any Mortgage Loan purchased by the Originator, the
Originator acquired title to the Mortgage Loan in good faith, without notice of
any adverse claim;
(j) The Originator does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant contained in
this Agreement. The Originator is solvent and the sale of the Mortgage Loans by
the Originator pursuant to the terms of this Agreement will not cause the
Originator to become insolvent. The sale of the Mortgage Loans by the Originator
pursuant to the terms of this Agreement was not undertaken with the intent to
hinder, delay or defraud any of the Originator's creditors;
(k) The Mortgage Loans are not intentionally selected in a manner so as
to affect adversely the interests of the Depositor or of any transferee of the
Depositor (including the Trustee);
(l) The Originator has determined that it will treat the disposition of
the Mortgage Loans pursuant to this Agreement as a sale for accounting and tax
purposes;
(m) The Originator has not dealt with any broker or agent or anyone
else that may be entitled to any commission or compensation in connection with
the sale of the Mortgage Loans to the Depositor other than to the Depositor or
an affiliate thereof; and
(n) The consideration received by the Originator upon the sale of the
Mortgage Loans under this Agreement constitutes fair consideration and
reasonably equivalent value for the Mortgage Loans.
Section 3.02. Representations and Warranties as to the Unaffiliated
Seller. The Unaffiliated Seller hereby represents and warrants to the
Depositor, as of the Closing Date, that:
(a) The Unaffiliated Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all licenses necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in each state where a Mortgaged
Property is located if the laws of such state require licensing or qualification
in order to conduct business of the type conducted by the Unaffiliated Seller
and to perform its obligations as the Unaffiliated Seller hereunder, and in any
event the Unaffiliated Seller is in compliance with the laws of any such state
to the extent necessary to ensure the enforceability of the related Mortgage
Loan; the Unaffiliated Seller has the full power and authority, corporate and
otherwise, to execute and deliver this Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by the
Unaffiliated Seller and the consummation of the transactions contemplated hereby
have been duly and validly authorized; this Agreement evidences the valid,
binding and enforceable obligation of the Unaffiliated Seller; and all requisite
corporate action has been taken by the Unaffiliated Seller to make this
Agreement valid and binding upon the Unaffiliated Seller in accordance with its
terms;
(b) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Unaffiliated Seller of or compliance by the Unaffiliated
Seller with this Agreement or the sale of the Mortgage Loans pursuant to the
terms of this Agreement or the consummation of the transactions contemplated by
this Agreement, or if required, such approval has been obtained prior to the
Closing Date;
13
(c) Neither the execution and delivery of this Agreement, the
acquisition or origination of the Mortgage Loans by the Unaffiliated Seller or
the transactions contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement, has or will conflict with or result
in a breach of any of the terms, conditions or provisions of the Unaffiliated
Seller's charter or by-laws or any legal restriction or any agreement or
instrument to which the Unaffiliated Seller is now a party or by which it is
bound or to which its property is subject, or constitute a default or result in
an acceleration under any of the foregoing, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the Unaffiliated
Seller or its property is subject, or impair the ability of the Trustee (or the
Servicer as the agent of the Trustee) to realize on the Mortgage Loans, or
impair the value of the Mortgage Loans;
(d) Neither this Agreement nor the information contained in the
Prospectus Supplement under the captions "The Mortgage Pool", "The Originators,
the Seller and the Servicer" and "Servicing of the Mortgage Loans" nor any
statement, report or other document prepared by the Unaffiliated Seller and
furnished or to be furnished pursuant to this Agreement or in connection with
the transactions contemplated hereby contains any untrue statement or alleged
untrue statement of any material fact or omits to state a material fact
necessary to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading;
(e) There is no action, suit, proceeding or investigation pending or,
to the knowledge of the Unaffiliated Seller, threatened before a court,
administrative agency or government tribunal against the Unaffiliated Seller
which, either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Unaffiliated Seller, or in any material impairment
of the right or ability of the Unaffiliated Seller to carry on its business
substantially as now conducted, or in any material liability on the part of the
Unaffiliated Seller, or which would draw into question the validity of this
Agreement, the Mortgage Loans, or of any action taken or to be taken in
connection with the obligations of the Unaffiliated Seller contemplated herein,
or which would impair materially the ability of the Unaffiliated Seller to
perform under the terms of this Agreement or that might prohibit its entering
into this Agreement or the consummation of any of the transactions contemplated
hereby;
(f) The Unaffiliated Seller is not in violation of or in default with
respect to, and the execution and delivery of this Agreement by the Unaffiliated
Seller and its performance of and compliance with the terms hereof will not
constitute a violation or 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 violation or default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Unaffiliated Seller or its properties or might have
consequences that would materially and adversely affect its performance
hereunder or under any Subservicing Agreement;
(g) Upon the receipt of each Trustee's Mortgage File by the Depositor
under this Agreement, the Depositor will have good title on behalf of the Trust
Fund to each related Mortgage Loan and such other items comprising the corpus of
the Trust Fund free and clear of any lien created by the Unaffiliated Seller
(other than liens which will be simultaneously released);
(h) The consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of the Unaffiliated Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by
the Unaffiliated Seller pursuant to this
14
Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(i) With respect to any Mortgage Loan purchased by the Unaffiliated
Seller, the Unaffiliated Seller acquired title to the Mortgage Loan in good
faith, without notice of any adverse claim;
(j) The Unaffiliated Seller does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement. The Unaffiliated Seller is solvent and the sale of
the Mortgage Loans by the Unaffiliated Seller pursuant to the terms of this
Agreement will not cause the Unaffiliated Seller to become insolvent. The sale
of the Mortgage Loans by the Unaffiliated Seller pursuant to the terms of this
Agreement was not undertaken with the intent to hinder, delay or defraud any of
the Unaffiliated Seller's creditors;
(k) The Mortgage Loans are not intentionally selected in a manner so as
to affect adversely the interests of the Depositor or of any transferee of the
Depositor (including the Trustee);
(l) The Unaffiliated Seller has determined that it will treat the
disposition of the Mortgage Loans pursuant to this Agreement as a sale for
accounting and tax purposes;
(m) The Unaffiliated Seller has not dealt with any broker or agent or
anyone else that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans to the Depositor other than to the Depositor
or an affiliate thereof; and
(n) The consideration received by the Unaffiliated Seller upon the sale
of the Mortgage Loans under this Agreement constitutes fair consideration and
reasonably equivalent value for the Mortgage Loans.
Section 3.03. Representations and Warranties Relating to the Mortgage
Loans. The Originators represent and warrant to the Unaffiliated Seller and the
Unaffiliated Seller represents to the Depositor that, as of the Closing Date, as
to each Initial Mortgage Loan, and as of the Subsequent Transfer Date, as to
each Subsequent Mortgage Loan, immediately prior to the sale and transfer of
such Mortgage Loan by the Unaffiliated Seller to the Depositor:
(a) The information set forth in each Mortgage Loan Schedule is
complete, true and correct;
(b) The information to be provided by the Unaffiliated Seller or the
Originators, directly or indirectly, to the Depositor in connection with a
Subsequent Mortgage Loan will be true and correct in all material respects at
the date or dates respecting which such information is furnished;
(c) Each Mortgage is a valid first or second lien on a fee simple (or
its equivalent under applicable state law) estate in the real property securing
the amount owed by the Mortgagor under the Mortgage Note subject only to (i) the
lien of current real property taxes and assessments which are not delinquent,
(ii) with respect to any Mortgage Loan identified on the Mortgage Loan Schedule
as secured by a second lien, the related first mortgage loan, (iii) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record as of the date of recording of such Mortgage, such exceptions
appearing of record being acceptable to mortgage lending institutions generally
in the area wherein the property subject to the Mortgage is located or
specifically reflected in the appraisal obtained in connection with the
origination of the related
15
Mortgage Loan obtained by the Unaffiliated Seller and (iv) other matters to
which like properties are commonly subject which do not materially interfere
with the benefits of the security intended to be provided by such Mortgage;
(d) Immediately prior to the transfer and assignment by the related
Originator to the Unaffiliated Seller and by the Unaffiliated Seller to the
Trustee, the Unaffiliated Seller and such Originator, as applicable, had good
title to, and was the sole owner of each Mortgage Loan, free of any interest of
any other Person, and the Unaffiliated Seller and such Originator has
transferred all right, title and interest in each Mortgage Loan to the Trustee
and the Unaffiliated Seller, as applicable;
(e) As of the Cut-Off Date, no payment of principal or interest on or
in respect of any Mortgage Loan remains unpaid for 30 or more days past the date
the same was due in accordance with the related Mortgage Note without regard to
applicable grace periods;
(f) No Mortgage Loan has a Loan Rate less than 8.99% per annum and the
weighted average interest rate of the Mortgage Loans is 12.68%;
(g) At origination, no Mortgage Loan had an original term to maturity
of greater than 360 months;
(h) As of the Cut-Off Date, the weighted average maturity of the
Mortgage Loans is 219 months;
(i) To the best knowledge of the Unaffiliated Seller and each of the
Originators, there is no mechanics' lien or claim for work, labor or material
(and no rights are outstanding that under law could give rise to such lien)
affecting the premises subject to any Mortgage which is or may be a lien prior
to, or equal or coordinate with, the lien of such Mortgage, except those which
are insured against by the title insurance policy referred to in (ff) below;
(j) To the best knowledge of the Unaffiliated Seller and each of the
Originators, there is no delinquent tax or assessment lien against any Mortgaged
Property;
(k) Such Mortgage Loan, the Mortgage, and the Mortgage Note, including,
without limitation, the obligation of the Mortgagor to pay the unpaid principal
of and interest on the Mortgage Note, are each not subject to any right of
rescission (or any such rescission right has expired in accordance with
applicable law), set-off, counterclaim, or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note or the
Mortgage, or the exercise of any right thereunder, render either the Mortgage
Note or the Mortgage unenforceable, in whole or in part, or subject to any right
of rescission, set-off, counterclaim, or defense, including the defense of
usury, and no such right of rescission, set-off, counterclaim, or defense has
been asserted with respect thereto;
(l) To the best knowledge of the Unaffiliated Seller and each of the
Originators, the Mortgaged Property is free of material damage and is in good
repair, and there is no pending or threatened proceeding for the total or
partial condemnation of the Mortgaged Property;
(m) Neither the Originators nor the Unaffiliated Seller has received a
notice of default of any first mortgage loan secured by the Mortgaged Property
which has not been cured by a party other than the Unaffiliated Seller;
(n) Each Mortgage Note and Mortgage are in substantially the forms
previously provided to the Trustee on behalf of the Unaffiliated Seller;
16
(o) No Mortgage Loan had, at the date of origination, a Loan-to-Value
Ratio in excess of 100%, and the weighted average Loan-to-Value ratio of all
Mortgage Loans is 73.01%;
(p) The Mortgage Loan was not originated in a program in which the
amount of documentation in the underwriting process was limited in comparison to
the originator's normal documentation requirements;
(q) No more than the following percentages of the Mortgage Loans by
Principal Balance as of the Cut-Off Date are secured by Mortgaged Properties
located in the following states;
State Percent of
Principal Balance
-------------------------- --------------------------
Connecticut 1.44%
Delaware 2.10
Florida 4.46
Georgia 16.52
Maryland 2.48
New Jersey 28.14
New York 3.21
North Carolina 3.30
Pennsylvania 34.54
Virginia 3.82
---------
100.00%
=========
(r) The Mortgage Loans were not selected by the Unaffiliated Seller or
the Originators for sale hereunder or inclusion in the Trust Fund on any basis
adverse to the Trust Fund relative to the portfolio of similar mortgage loans of
the Unaffiliated Seller or the Originators;
(s) None of the Mortgage Loans constitutes a lien on leasehold
interests;
(t) Each Mortgage contains customary and enforceable provisions which
render the rights and remedies of the holder thereof adequate for the
realization against the related Mortgaged Property of the benefits of the
security including (A) in the case of a Mortgage designated as a deed of trust,
by trustee's sale and (B) otherwise by judicial foreclosure. To the best of the
Unaffiliated Seller's and the Originators' knowledge, there is no homestead or
other exemption available to the related Mortgagor which would materially
interfere with the right to sell the related Mortgaged Property at a trustee's
sale or the right to foreclose the related Mortgage. The Mortgage contains
customary and enforceable provisions for the acceleration of the payment of the
Principal Balance of such Mortgage Loan in the event all or any part of the
related Mortgaged Property is sold or otherwise transferred without the prior
written consent of the holder thereof;
(u) The proceeds of such Mortgage Loan have been fully disbursed,
including reserves set aside by the Unaffiliated Seller or the Originators,
there is no requirement for, and neither the Unaffiliated Seller nor the
Originators shall make any, future advances thereunder. Any future advances made
prior to the Cut-Off Date have been consolidated with the principal balance
secured by the Mortgage, and such principal balance, as consolidated, bears a
single interest rate and single repayment term reflected on the applicable
Mortgage Loan Schedule. The Principal Balance as of the Cut-Off Date does not
exceed the original principal amount of such Mortgage Loan. Except with respect
to approximately $85,973.78 of escrow funds, any and all requirements as to
completion of any on-site or off-site improvements and as to disbursements of
17
any escrow funds therefor have been complied with. All costs, fees, and expenses
incurred in making, or recording such Mortgage Loan have been paid;
(v) All Mortgage Loans were originated in compliance with the
Originators' Underwriting Guidelines;
(w) The terms of the Mortgage and Mortgage Note have not been impaired,
waived, altered, or modified in any respect, except by a written instrument
which has been recorded, if necessary, to protect the interest of the Trustee
and which has been delivered to the Trustee. The substance of any such
alteration or modification is or as to Subsequent Mortgage Loans will be
reflected on the applicable Mortgage Loan Schedule and, to the extent necessary,
has been or will be approved by (i) the insurer under the applicable mortgage
title insurance policy, and (ii) the insurer under any other insurance policy
required hereunder for such Mortgage Loan where such insurance policy requires
approval and the failure to procure approval would impair coverage under such
policy;
(x) No instrument of release, waiver, alteration, or modification has
been executed in connection with such Mortgage Loan, and no Mortgagor has been
released, in whole or in part, except in connection with an assumption agreement
which has been approved by the insurer under any insurance policy required
hereunder for such Mortgage Loan where such policy requires approval and the
failure to procure approval would impair coverage under such policy, and which
is part of the Mortgage File and has been delivered to the Trustee, and the
terms of which are reflected in the applicable Mortgage Loan Schedule;
(y) Other than delinquencies described in clause (e) above, there is no
default, breach, violation, or event of acceleration existing under the Mortgage
or the Mortgage Note and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute such a default,
breach, violation or event of acceleration, and neither the Originators nor the
Unaffiliated Seller has waived any such default, breach, violation or event of
acceleration. All taxes, governmental assessments (including assessments payable
in future installments), insurance premiums, water, sewer, and municipal
charges, leaseholder payments, or ground rents which previously became due and
owing in respect of or affecting the related Mortgaged Property have been paid.
Neither the Originators nor the Unaffiliated Seller has advanced funds, or
induced, solicited, or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any amount
required by the Mortgage or the Mortgage Note;
(z) All of the improvements which were included for the purposes of
determining the Appraised Value of the Mortgaged Property were completed at the
time that such Mortgage Loan was originated and lie wholly within the boundaries
and building restriction lines of such Mortgaged Property. Except for de minimis
encroachments, no improvements on adjoining properties encroach upon the
Mortgaged Property. To the best of the Unaffiliated Seller's and the
Originators' knowledge, no improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation. All
inspections, licenses, and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property (including all such
improvements which were included for the purpose of determining such Appraised
Value) and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriters certificates, have
been made or obtained from the appropriate authorities and the Mortgaged
Property is lawfully occupied under applicable law;
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(aa) To the best of the Unaffiliated Seller's and the Originators'
knowledge, there do not exist any circumstances or conditions with respect to
the Mortgage, the Mortgaged Property, the Mortgagor, or the Mortgagor's credit
standing that can be reasonably expected to cause such Mortgage Loan to become
delinquent or adversely affect the value or marketability of such Mortgage Loan,
other than any such circumstances or conditions permitted under the Originator's
Underwriting Guidelines;
(bb) All parties which have had any interest in the Mortgage, whether
as mortgagee, assignee, pledgee or otherwise, are (or, during the period in
which they held and disposed of such interest, were) (i) in compliance with any
and all applicable licensing requirements of the laws of the state wherein the
Mortgaged Property is located and (ii) (A) organized under the laws of such
state, (B) qualified to do business in such state, (C) federal savings and loan
associations or national banks having principal offices in such state, (D) not
doing business in such state, or (E) not required to qualify to do business in
such state;
(cc) The Mortgage Note and the Mortgage are genuine, and each is the
legal, valid and binding obligation of the maker thereof, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting the enforcement of creditors' rights generally and except that the
equitable remedy of specific performance and other equitable remedies are
subject to the discretion of the courts. All parties to the Mortgage Note and
the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage
and convey the estate therein purported to be conveyed, and the Mortgage Note
and the Mortgage have been duly and properly executed by such parties or
pursuant to a valid power-of-attorney that has been recorded with the Mortgage;
(dd) The transfer of the Mortgage Note and the Mortgage as and in the
manner contemplated by this Agreement is sufficient either (i) fully to transfer
to the Depositor all right, title, and interest of the Unaffiliated Seller and
the Originators thereto as note holder and mortgagee or (ii) to grant to the
Depositor the security interest referred to in Section 6.07 hereof. The Mortgage
has been duly assigned and the Mortgage Note has been duly endorsed. The
assignment of Mortgage delivered to the Trustee pursuant to Section 2.04(a)(iv)
is in recordable form and is acceptable for recording under the laws of the
applicable jurisdiction. The endorsement of the Mortgage Note, the delivery to
the Trustee of the endorsed Mortgage Note, and such assignment of Mortgage, and
the delivery of such assignment of Mortgage for recording to, and the due
recording of such assignment of Mortgage in, the appropriate public recording
office in the jurisdiction in which the Mortgaged Property is located are
sufficient to permit the Trustee to avail itself of all protection available
under applicable law against the claims of any present or future creditors of
the Unaffiliated Seller and the Originators, and are sufficient to prevent any
other sale, transfer, assignment, pledge, or hypothecation of the Mortgage Note
and Mortgage by the Unaffiliated Seller or the Originators from being
enforceable;
(ee) Any and all requirements of any federal, state, or local law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity, or disclosure
laws applicable to such Mortgage Loan have been complied with, and the Servicer
shall maintain in its possession, available for the Trustee's inspection, and
shall deliver to the Trustee or its designee upon demand, evidence of compliance
with all such requirements. The consummation of the transactions contemplated by
this Agreement will not cause the violation of any such laws;
(ff) Such Mortgage Loan is covered by an ALTA mortgage title insurance
policy or such other generally used and acceptable form of policy, issued by and
the valid and binding
19
obligation of a title insurer qualified to do business in the jurisdiction where
the Mortgaged Property is located, insuring the Unaffiliated Seller, and its
successors and assigns, as to the first or second priority lien, as applicable,
of the Mortgage in the original principal amount of such Mortgage Loan. The
assignment to the Trustee of the Unaffiliated Seller's interest in such mortgage
title insurance policy does not require the consent of or notification to the
insurer. Such mortgage title insurance policy is in full force and effect and
will be in full force and effect and inure to the benefit of the Trustee upon
the consummation of the transactions contemplated by this Agreement. No claims
have been made under such mortgage title insurance policy and neither the
Unaffiliated Seller nor any prior holder of the Mortgage has done, by act or
omission, anything which would impair the coverage of such mortgage title
insurance policy;
(gg) All improvements upon the Mortgaged Property are insured against
loss by fire, hazards of extended coverage, and such other hazards as are
customary in the area where the Mortgaged Property is located pursuant to
insurance policies conforming to the requirements of Section 3.05 hereof. If the
Mortgaged Property at origination was located in an area identified on a flood
hazard boundary map or flood insurance rate map issued by the Federal Emergency
Management Agency as having special flood hazards (and such flood insurance has
been made available), such Mortgaged Property was covered by flood insurance at
origination. Each individual insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be in full
force and effect and inure to the benefit of the Trustee upon the consummation
of the transactions contemplated by this Agreement, and contain a standard
mortgage clause naming the originator of such Mortgage Loan, and its successors
and assigns, as mortgagee and loss payee. All premiums thereon have been paid.
The Mortgage obligates the Mortgagor to maintain all such insurance at the
Mortgagor's cost and expense, and upon the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance at
the Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor, and none of the Unaffiliated Seller, the related Originator or any
prior holder of the Mortgage has acted or failed to act so as to impair the
coverage of any such insurance policy or the validity, binding effect, and
enforceability thereof;
(hh) If the Mortgage constitutes a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly designated
and currently so serves and is named in such Mortgage, as no fees or expenses
are or will become payable by the Trustee or the Certificateholders to the
trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(ii) The Mortgaged Property consists of one or more parcels of real
property separately assessed for tax purposes. To the extent there is erected
thereon a detached or an attached one-family residence or a detached two-to
six-family dwelling, or an individual condominium unit in a low-rise
condominium, or an individual unit in a planned unit development, or a
commercial property, or a mixed use or multiple purpose property, such
residence, dwelling or unit is not (i) a unit in a cooperative apartment, (ii) a
property constituting part of a syndication, (iii) a time share unit, (iv) a
property held in trust, (v) a mobile home, (vi) a manufactured dwelling, (vii) a
log-constructed home, or (viii) a recreational vehicle;
(jj) There exist no material deficiencies with respect to escrow
deposits and payments, if such are required, for which customary arrangements
for repayment thereof have not been made or which the Unaffiliated Seller or the
related Originator expects not to be cured, and no escrow deposits or payments
of other charges or payments due the Unaffiliated Seller have been capitalized
under the Mortgage or the Mortgage Note;
20
(kk) Such Mortgage Loan was not originated at a below market interest
rate. Such Mortgage Loan does not have a shared appreciation feature, or other
contingent interest feature;
(ll) The origination and collection practices used by the Unaffiliated
Seller, the Originators or the Servicer with respect to such Mortgage Loan have
been in all respects legal, proper, prudent, and customary in the mortgage
origination and servicing business;
(mm) The Mortgagor has, to the extent required by applicable law,
executed a statement to the effect that the Mortgagor has received all
disclosure materials, if any, required by applicable law with respect to the
making of fixed-rate mortgage loans. The Servicer shall maintain or cause to be
maintained such statement in the Mortgage File;
(nn) All amounts received by the Unaffiliated Seller or the Originators
with respect to such Mortgage Loan after the Cut-Off Date and required to be
deposited in the Certificate Account have been so deposited in the Certificate
Account and are, as of the Closing Date, or will be as of the Subsequent
Transfer Date, as applicable, in the Certificate Account;
(oo) The appraisal report with respect to the Mortgaged Property
contained in the Mortgage File was signed prior to the approval of the
application for such Mortgage Loan by a qualified appraiser, duly appointed by
the originator of such Mortgage Loan, who had no interest, direct or indirect,
in the Mortgaged Property or in any loan made on the security thereof and whose
compensation is not affected by the approval or disapproval of such application;
(pp) When measured by the Cut-Off Date Balances as of the Cut-Off Date,
the Mortgagors with respect to at least 84.87% of the Mortgage Loans represented
at the time of origination that the Mortgagor would occupy the Mortgaged
Property as the Mortgagor's primary residence;
(qq) Each of the Originators and the Unaffiliated Seller has no
knowledge with respect to the Mortgaged Property of any governmental or
regulatory action or third party claim made, instituted or threatened in writing
relating to a violation of any applicable federal, state or local environmental
law, statute, ordinance, regulation, order, decree or standard;
(rr) Each Mortgage Loan is a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code;
(ss) With respect to second lien Mortgage Loans:
(i) the Unaffiliated Seller has no knowledge that the
Mortgagor has received notice from the holder of the prior mortgage
that such prior mortgage is in default,
(ii) no consent from the holder of the prior mortgage is
needed for the creation of the second lien Mortgage or, if required,
has been obtained and is in the related Mortgage File,
(iii) if the prior mortgage has a negative amortization, the
Loan-to-Value Ratio was determined using the maximum loan amount of
such prior mortgage, and
(iv) the related first mortgage loan encumbering the related
Mortgaged Property does not have a mandatory future advance provision,
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(v) the Mortgage Loans conform in all material respects to the
description thereof in the Prospectus Supplement.
(tt) Each of the Originators and the Unaffiliated Seller further
represents and warrants to the Trustee and the Certificateholders that as of the
Subsequent Cut-Off Date all representations and warranties set forth in clauses
(a) through (ss) above will be correct in all material respects as to each
Subsequent Mortgage Loan, and the representations so made in this subsection
(at) as to the following matters will be deemed to be correct if: (i) each
Subsequent Mortgage Loan is not 30 or more days contractually delinquent as of
the related Subsequent Cut-Off Date; (ii) the original term to maturity of each
Subsequent Mortgage Loan does not exceed 360 months; (iii) each Subsequent
Mortgage Loan has a Mortgage Rate of at least 8.00%; (iv) the purchase of the
Subsequent Mortgage Loans is consented to by the Certificate Insurer and the
Rating Agencies; (v) the principal balance of any Subsequent Mortgage Loan does
not exceed $350,000.00; (vi) no more than 28% of the Subsequent Mortgage Loans
are second liens; (vii) no Subsequent Mortgage Loan has a CLTV of more than, (A)
for consumer purpose loans, 90%, and (B) for business purpose loans, 75%; (viii)
no more than 29% of the Subsequent Mortgage Loans are Balloon Loans; (ix) no
more than 18% of the Subsequent Mortgage Loans are secured by mixed-use
properties, commercial properties, or four or more unit multifamily properties;
(x) no more than 5% of the Subsequent Mortgage Loans are secured by commercial
properties; and (xi) following the purchase of the Subsequent Mortgage Loans by
the Trust, the Mortgage Loans (including the Subsequent Mortgage Loans) (A) will
have a weighted average Mortgage Rate, (I) for consumer purpose loans, of at
least 11.50% and (II) for business purpose loans, of at least 15.50%; and (B)
will have a weighted average CLTV of not more than (I) for consumer purpose
loans, 76.5%, and (II) for business purpose loans, 63%.
(uu) To the best of the Unaffiliated Seller's and the Originators'
knowledge, no error, omission, misrepresentation, negligence, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the part of any
person, including without limitation the Mortgagor, any appraiser, an builder or
developer, or an other party involved in the origination of the Mortgage Loan or
in the application of any insurance in relation to such Mortgage Loan;
(vv) Each Mortgaged Property is in compliance with all environmental
laws, ordinances, rules, regulations and orders of federal, state or
governmental authorities relating thereto. No hazardous material has been or is
incorporated in, stored on or under, released from, treated on, transported to
or from, or disposed of on or from, any Mortgaged Property such that, under
applicable law (A) any such hazardous material would be required to be
eliminated before the Mortgaged Property could be altered, renovated, demolished
or transferred, or (B) the owner of the Mortgaged Property, or the holder of a
security interest therein, could be subjected to liability for the removal of
such hazardous material or the elimination of the hazard created thereby. None
of the Seller or any Mortgagor has received notification from any federal, state
or other governmental authority relating to any hazardous materials on or
affecting the Mortgaged Property or to any potential or known liability under
any environmental law arising from the ownership or operation of the Mortgaged
Property. For the purposes of this subsection, the term "hazardous materials"
shall include, without limitation, gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, asbestos or any material containing asbestos, lead, lead-based paint
and any other substance or material as may be defined as a hazardous or toxic
substance by any federal, state or local environmental law, ordinance, rule,
regulation or order, including, without limitation, CERCLA, the Clean Air Act,
the Clean Water Act, the Resource Conservation and Recovery Act, the Toxic
Substances Control Act and any regulations promulgated pursuant thereto; and
22
(ww) With respect to any business purpose loan, the related Mortgage
Note contains an acceleration clause, accelerating the maturity date under the
Mortgage Note to the date the individual guarantying such loan becomes subject
to any bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting the enforcement of creditors' rights generally.
Section 3.04. Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Unaffiliated Seller,
as of the date of execution of this Agreement and the Closing Date, that:
(a) The Depositor is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to purchase
each Mortgage Loan 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 Depositor, and, assuming the due authorization, execution and
delivery hereof by the Unaffiliated Seller, constitutes the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor 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 Depositor with
this Agreement or the consummation by the Depositor of any of the transactions
contemplated hereby, except such as have been made on or prior to the Closing
Date;
(e) The Depositor has filed or will file the Prospectus and Prospectus
Supplement with the Commission in accordance with Rule 424(b) under the
Securities Act; and
(f) None of the execution and delivery of this Agreement, the purchase
of the Mortgage Loans from the Unaffiliated Seller, 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 charter or bylaws of the Depositor 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 Depositor is a party or by which it is bound and
which is material to the Depositor, 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 Depositor.
Section 3.05. Repurchase Obligation for Defective Documentation and for
Breach of a Representation or Warranty. (a) Each of the representations and
warranties contained in Sections 3.01, 3.02 and 3.03 shall survive the purchase
by the Depositor of the Mortgage Loans and the subsequent transfer thereof by
the Depositor to the Trustee and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement or the Pooling and
Servicing Agreement.
23
(b) With respect to any representation or warranty contained in Section
3.01 that is made to the best of the Originators' knowledge or contained in
Sections 3.02 or 3.03 hereof that is made to the best of the Unaffiliated
Seller's and the Originators' knowledge, if it is discovered by the Servicer,
any Subservicer, the Trustee, the Certificate Insurer or any Certificateholder
that the substance of such representation and warranty was inaccurate as of the
Closing Date and such inaccuracy materially and adversely affects the value of
the related Mortgage Loan, then notwithstanding the Originators' or the
Unaffiliated Seller's lack of knowledge with respect to the inaccuracy at the
time the representation or warranty was made, such inaccuracy shall be deemed a
breach of the applicable representation or warranty. Upon discovery by the
Originators, the Unaffiliated Seller, the Servicer, any Subservicer, the
Trustee, the Certificate Insurer or any Certificateholder of a breach of any of
such representations and warranties which materially and adversely affects the
value of Mortgage Loans or the interest of the Certificateholders, or which
materially and adversely affects the interests of the Certificate Insurer or the
Certificateholders in the related Mortgage Loan in the case of a representation
and warranty relating to a particular Mortgage Loan (notwithstanding that such
representation and warranty was made to the Originators' or the Unaffiliated
Seller's best knowledge), the party discovering such breach shall give pursuant
to Section 3.03 of the Pooling and Servicing Agreement prompt written notice to
the others. Subject to the next to last paragraph of this Section 3.05, within
60 days of the earlier of its discovery or its receipt of notice of any breach
of a representation or warranty, the Unaffiliated Seller and the Originators
shall (a) promptly cure such breach in all material respects, or (b) purchase
such Mortgage Loan at a purchase price equal to the Principal Balance of such
Mortgage Loan as of the date of purchase, plus the greater of (i) all accrued
and unpaid interest on such Principal Balance and (ii) 30 days' interest on such
Principal Balance, computed at the Mortgage Interest Rate, net of the Servicing
Fee if the Unaffiliated Seller is the Servicer, plus the amount of any
unreimbursed Servicing Advances made by the Servicer with respect to such
Mortgage Loan, or (c) remove such Mortgage Loan from the Trust Fund (in which
case it shall become a Deleted Mortgage Loan) and substitute one or more
Qualified Substitute Mortgage Loans; provided, that, such substitution is
effected not later than the date which is 2 years after the Startup Day or at
such later date, if the Trustee and the Certificate Insurer receive an Opinion
of Counsel to the effect set forth below in this Section. Any such substitution
shall be accompanied by payment by the Unaffiliated Seller of the Substitution
Adjustment, if any, to be deposited in the Certificate Account pursuant to the
Pooling and Servicing Agreement. The Originators shall cooperate with the
Unaffiliated Seller to cure any breach and shall reimburse the Unaffiliated
Seller for the costs and expenses related to any cure, substitution (including
any Substitution Adjustment) or repurchase incurred by the Unaffiliated Seller
pursuant to this Section 3.05.
(c) As to any Deleted Mortgage Loan for which the Unaffiliated Seller
or an Originator substitutes a Qualified Substitute Mortgage Loan or Loans, the
Unaffiliated Seller or such Originator shall effect such substitution by
delivering to the Trustee a certification in the form attached to the Pooling
and Servicing Agreement as Exhibit H, executed by a Servicing Officer and the
documents described in Section 2.06(a) for such Qualified Substitute Mortgage
Loan or Loans. Pursuant to the Pooling and Servicing Agreement, upon receipt by
the Trustee of a certification of a Servicing Officer of such substitution or
purchase and, in the case of a substitution, upon receipt of the related
Trustee's Mortgage File, and the deposit of certain amounts in the Certificate
Account pursuant to Section 2.07(b) of the Pooling and Servicing Agreement
(which certification shall be in the form of Exhibit H to the Pooling and
Servicing Agreement), the Trustee shall be required to release to the Servicer
for release to the Unaffiliated Seller the related Trustee's Mortgage File and
shall be required to execute, without recourse, and deliver such instruments of
transfer furnished by the Unaffiliated Seller as may be necessary to transfer
such Mortgage Loan to the Unaffiliated Seller or such Originator.
24
(d) Pursuant to the Pooling and Servicing Agreement, the Servicer shall
deposit in the Certificate Account all payments received in connection with such
Qualified Substitute Mortgage Loan or Loans after the date of such substitution.
Monthly Payments received with respect to Qualified Substitute Mortgage Loans on
or before the date of substitution will be retained by the Unaffiliated Seller.
The Trust Fund will own all payments received on the Deleted Mortgage Loan on or
before the date of substitution, and the Unaffiliated Seller shall thereafter be
entitled to retain all amounts subsequently received in respect of such Deleted
Mortgage Loan. Pursuant to the Pooling and Servicing Agreement, the Servicer
shall be required to give written notice to the Trustee and the Certificate
Insurer that such substitution has taken place and shall amend the Mortgage Loan
Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of
the Pooling and Servicing Agreement and the substitution of the Qualified
Substitute Mortgage Loan. The parties hereto agree to amend the Mortgage Loan
Schedule accordingly. Upon such substitution, such Qualified Substitute Mortgage
Loan or Loans shall be subject to the terms of the Pooling and Servicing
Agreement and this Agreement in all respects, and the Unaffiliated Seller shall
be deemed to have made with respect to such Qualified Substitute Mortgage Loan
or Loans, as of the date of substitution, the representations and warranties set
forth in Sections 3.02 and 3.03 herein. On the date of such substitution, the
Unaffiliated Seller will remit to the Servicer and pursuant to the Pooling and
Servicing Agreement the Servicer will deposit into the Certificate Account an
amount equal to the Substitution Adjustment, if any.
(e) It is understood and agreed that the obligations of the
Unaffiliated Seller and the Originator set forth in Section 2.06 and this
Section 3.05 to cure, purchase or substitute for a defective Mortgage Loan as
provided in Section 2.06 and this Section 3.05 constitute the sole remedies of
the Depositor, the Trustee, the Certificate Insurer and the Certificateholders
respecting a breach of the foregoing representations and warranties.
(f) Any cause of action against the Unaffiliated Seller or an
Originator relating to or arising out of the breach of any representations and
warranties or covenants made in Sections 2.06, 3.02 or 3.03 shall accrue as to
any Mortgage Loan upon (i) discovery of such breach by any party and notice
thereof to the Unaffiliated Seller or such Originator, (ii) failure by the
Unaffiliated Seller or such Originator to cure such breach or purchase or
substitute such Mortgage Loan as specified above, and (iii) demand upon the
Unaffiliated Seller or such Originator by the Trustee for all amounts payable in
respect of such Mortgage Loan.
(g) Notwithstanding any contrary provision of this Agreement, with
respect to any Mortgage Loan which is not in default or as to which no default
is imminent, no purchase, or substitution pursuant to Section 2.06(b) or this
Section 3.05 shall be made unless the Unaffiliated Seller provides to the
Trustee and the Certificate Insurer an Opinion of Counsel to the effect that
such purchase or substitution would not (i) result in the imposition of taxes on
"prohibited transactions" of the REMIC Trust, as defined in Section 860F of the
Code or a tax on contributions to the REMIC Trust under the REMIC Provisions, or
(ii) cause the REMIC Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding. Any Mortgage Loan as to which purchase or
substitution was delayed pursuant to this paragraph shall be purchased or
substituted (subject to compliance with Section 2.06 and this Section 3.05) upon
the earlier of (a) the occurrence of a default or imminent default with respect
to such loan and (b) receipt by the Trustee and the Certificate Insurer of an
Opinion of Counsel to the effect that such purchase or substitution will not
result in the events described in clauses (i) and (ii) of the preceding
sentence.
(h) Pursuant to the Pooling and Servicing Agreement, upon discovery by
the Unaffiliated Seller, the Servicer, the Trustee, the Certificate Insurer or
any Certificateholder that any Mortgage Loan does not constitute a Qualified
Mortgage, the party discovering such fact
25
shall promptly (and in any event within 5 days of the discovery) give written
notice thereof to the other parties. In connection therewith, the Unaffiliated
Seller or the related Originator shall repurchase or substitute a Qualified
Substitute Mortgage Loan for the affected Mortgage Loan within 90 days of the
earlier of such discovery by any of the foregoing parties, or the Trustee's or
the Unaffiliated Seller's receipt of notice, in the same manner as it would a
Mortgage Loan for a breach of representation or warranty contained in Sections
3.02 or 3.03. Pursuant to the Pooling and Servicing Agreement the Trustee shall
reconvey to the Unaffiliated Seller or the related Originator the Mortgage Loan
to be released pursuant hereto in the same manner, and on the same terms and
conditions, as it would a Mortgage Loan repurchased for breach of a
representation or warranty contained in Sections 3.02 or 3.03.
(i) Notwithstanding anything in this Agreement or the Pooling and
Servicing Agreement to the contrary, the Unaffiliated Seller's repurchase
obligations hereunder shall not include failure of the Trustee to record
assignments of the Mortgage Loans referenced in clause (a)(iii) in Section 2.05.
All parties hereto acknowledge and agree that the Trustee has the responsibility
to record all such assignments of the Mortgage Loans to the Trustee.
(j) Each of the Originators and the Unaffiliated Seller shall be
jointly and severally responsible for any repurchase, cure or substitution
obligation of any of the Originators or the Unaffiliated Seller under this
Agreement and the Pooling and Servicing Agreement.
ARTICLE FOUR
THE UNAFFILIATED SELLER
Section 4.01. Covenants of the Originators and the Unaffiliated Seller.
Each of the Originators and the Unaffiliated Seller covenants to the Depositor
as follows:
(a) The Originators and the Unaffiliated Seller shall cooperate with
the Depositor and the firm of independent certified public accountants retained
with respect to the issuance of the Certificates in making available all
information and taking all steps reasonably necessary to permit the accountants'
letters required hereunder to be delivered within the times set for delivery
herein.
(b) The Unaffiliated Seller agrees to satisfy or cause to be satisfied
on or prior to the Closing Date, all of the conditions to the Depositor's
obligations set forth in Section 5.01 hereof that are within the Unaffiliated
Seller's (or its agents') control.
(c) The Originators and the Unaffiliated Seller hereby agree to do all
acts, transactions, and things and to execute and deliver all agreements,
documents, instruments, and papers by and on behalf of the Originators or the
Unaffiliated Seller as the Depositor or its counsel may reasonably request in
order to consummate the transfer of the Mortgage Loans to the Depositor and the
subsequent transfer thereof to the Trustee, and the rating, issuance and sale of
the Certificates.
Section 4.01. Merger or Consolidation . Each of the Originators and the
Unaffiliated Seller will keep in full effect its existence, rights and
franchises as a corporation and will obtain and preserve its qualification to do
business as a foreign corporation, in each jurisdiction necessary to protect the
validity and enforceability of this Agreement or any of the Mortgage Loans and
to perform its duties under this Agreement. Any Person into which the any of the
Originators or the
26
Unaffiliated Seller may be merged or consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Originators or the
Unaffiliated Seller shall be a party, or any Person succeeding to the business
of the Originators or the Unaffiliated Seller, shall be approved by the
Certificate Insurer which approval shall not be unreasonably withheld. If the
approval of the Certificate Insurer is not required, the successor shall be an
established mortgage loan servicing institution that is a Permitted Transferee
and in all events shall be the successor of the Originators or the Unaffiliated
Seller without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding. The Originators and the Unaffiliated Seller shall send notice
of any such merger or consolidation to the Trustee and the Certificate Insurer.
Section 4.03. Costs. In connection with the transactions contemplated
under this Agreement and the Pooling and Servicing Agreement, the Unaffiliated
Seller shall promptly pay (or shall promptly reimburse the Depositor to the
extent that the Depositor shall have paid or otherwise incurred): (a) 50% of the
fees and disbursements of the Depositor's, the Seller's and the Originators'
counsel; (b) the fees of S&P and Xxxxx'x; (c) any of the fees of the Trustee and
the fees and disbursements of the Trustee's counsel; (d) expenses incurred in
connection with printing the Prospectus, the Prospectus Supplement, any
amendment or supplement thereto, any preliminary prospectus and the
Certificates; (e) fees and expenses relating to the filing of documents with the
Securities and Exchange Commission (including without limitation periodic
reports under the Exchange Act); (f) the shelf registration amortization fee of
0.04% of the Class A Certificate Principal Balance on the Closing Date, paid in
connection with the issuance of Certificates; and (g) all of the initial
expenses (not to exceed $61,000) of the Certificate Insurer including, without
limitation, legal fees and expenses, accountant fees and expenses and expenses
in connection with due diligence conducted on the Mortgage Files. For the
avoidance of doubt, the parties hereto acknowledge that it is the intention of
the parties that the Depositor shall not pay any of the Trustee's fees and
expenses in connection with the transactions contemplated by the Pooling and
Servicing Agreement. All other costs and expenses in connection with the
transactions contemplated hereunder shall be borne by the party incurring such
expenses.
Section 4.04. Indemnification. (a)(i) The Originators and the
Unaffiliated Seller, jointly and severally, agree to indemnify and hold harmless
the Depositor, each of its directors, each of its officers who have signed the
Registration Statement, and each of its directors and each person or entity who
controls the Depositor or any such person, within the meaning of Section 15 of
the Securities Act, against any and all losses, claims, damages or liabilities,
joint and several, to which the Depositor or any such person or entity may
become subject, under the Securities Act or otherwise, and will reimburse the
Depositor and each such controlling person for any legal or other expenses
incurred by the Depositor or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus Supplement or any
amendment or supplement to the Prospectus Supplement or the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements in the Prospectus Supplement or any
amendment or supplement to the Prospectus Supplement approved in writing by the
Originators or the Unaffiliated Seller, in light of the circumstances under
which they were made, not misleading, but only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission relates to
the information contained in the Prospectus Supplement referred to in Section
3.01(d). This indemnity agreement will be in addition to any liability which the
Originators and the Unaffiliated Seller may otherwise have.
(ii) The Originators and the Unaffiliated Seller, jointly and
severally, agree to indemnify and to hold the Depositor harmless
against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs,
27
judgments, and any other costs, fees and expenses that the Depositor
may sustain in any way related to the failure of any of the
Originators or the Unaffiliated Seller to perform its duties in
compliance with the terms of this Agreement. The Originators or the
Unaffiliated Seller shall immediately notify the Depositor if a claim
is made by a third party with respect to this Agreement, and the
Originators or the Unaffiliated Seller shall assume the defense of any
such claim and pay all expenses in connection therewith, including
reasonable counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against the Depositor in
respect of such claim. Pursuant to the Pooling and Servicing
Agreement, the Trustee shall reimburse the Unaffiliated Seller in
accordance with the Pooling and Servicing Agreement for all amounts
advanced by the Unaffiliated Seller pursuant to the preceding sentence
except when the claim relates directly to the failure of the
Unaffiliated Seller to perform its duties in compliance with the terms
of this Agreement.
(b) The Depositor agrees to indemnify and hold harmless each of the
Originators and the Unaffiliated Seller, each of their respective directors and
each person or entity who controls the Originators or the Unaffiliated Seller or
any such person, within the meaning of Section 15 of the Securities Act, against
any and all losses, claims, damages or liabilities, joint and several, to which
the Originators or the Unaffiliated Seller or any such person or entity may
become subject, under the Securities Act or otherwise, and will reimburse the
Originators and the Unaffiliated Seller and any such director or controlling
person for any legal or other expenses incurred by such party or any such
director or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, the Prospectus
Supplement, any amendment or supplement to the Prospectus or the Prospectus
Supplement or the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, but
only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission is other than a statement or omission relating to
the information set forth in subsection (a)(i) of this Section 4.04. This
indemnity agreement will be in addition to any liability which the Depositor may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
4.04 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Section 4.04, notify the indemnifying party in writing of the commencement
thereof, but the omission to so notify the indemnifying party will not relieve
the indemnifying party from any liability which the indemnifying party may have
to any indemnified party hereunder except to the extent such indemnifying party
has been prejudiced thereby. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof with counsel reasonably satisfactory to such
indemnified party. After notice from the indemnifying party to such indemnified
party of its election to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 4.04 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it that are different
from or additional to
28
those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. The indemnifying party shall not be
liable for the expenses of more than one separate counsel.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the preceding
parts of this Section 4.04 is for any reason held to be unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or
subsection (b) of this Section 4.04 in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof); provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by the Originators and the
Unaffiliated Seller on the one hand, and the Depositor on the other, the
Originators', the Unaffiliated Seller's and the Depositor's relative knowledge
and access to information concerning the matter with respect to which the claim
was asserted, the opportunity to correct and prevent any statement or omission,
and any other equitable considerations appropriate in the circumstances. The
Originators, the Unaffiliated Seller and the Depositor agree that it would not
be equitable if the amount of such contribution were determined by pro rata or
per capita allocation. For purposes of this Section 4.04, each director of the
Depositor, each officer of the Depositor who signed the Registration Statement,
and each person, if any who controls the Depositor within the meaning of Section
15 of the Securities Act, shall have the same rights to contribution as the
Depositor, and each director of the Originators or the Unaffiliated Seller, and
each person, if any who controls the Originators or the Unaffiliated Seller
within the meaning of Section 15 of the Securities Act, shall have the same
rights to contribution as the Originators and the Unaffiliated Seller.
ARTICLE FIVE
CONDITIONS OF CLOSING
Section 5.01. Conditions of Depositor's Obligations. The obligations
of the Depositor to purchase the Mortgage Loans will be subject to the
satisfaction on the Closing Date of the following conditions. Upon payment of
the purchase price for the Mortgage Loans, such conditions shall be deemed
satisfied or waived.
(a) Each of the obligations of the Unaffiliated Seller required to be
performed by it on or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with and all of the
representations and warranties of the Unaffiliated Seller under this Agreement
shall be true and correct as of the Closing Date and no event shall have
occurred which, with notice or the passage of time, would constitute a default
under this Agreement, and the Depositor shall have received a certificate to the
effect of the foregoing signed by an authorized officer of the Unaffiliated
Seller.
(b) The Depositor shall have received a letter dated the date of this
Agreement, in form and substance acceptable to the Depositor and its counsel,
prepared by Deloitte & Touche LLP, independent certified public accountants,
regarding the numerical information contained in the Prospectus Supplement under
the captions "Prepayment Yield Considerations" and "The Mortgage Pool."
29
(c) The Mortgage Loans will be acceptable to the Depositor, in its sole
discretion.
(d) The Depositor shall have received the following additional closing
documents, in form and substance satisfactory to the Depositor and its counsel:
(i) the Mortgage Loan Schedule;
(ii) the Pooling and Servicing Agreement dated as of September
1, 1997 and the Underwriting Agreement dated as of September 17, 1997
between the Depositor and Prudential Securities Incorporated and all
documents required thereunder, duly executed and delivered by each of
the parties thereto other than the Depositor;
(iii) officer's certificates of an officer of each of the
Originators and the Unaffiliated Seller, dated as of the Closing Date,
and attached thereto resolutions of the board of directors and a copy
of the charter and by-laws;
(iv) copy of each of the Originators and the Unaffiliated
Seller's charter and all amendments, revisions, and supplements
thereof, certified by a secretary of each entity;
(v) an opinion of the counsel for the Originators and the
Unaffiliated Seller as to various corporate matters (it being agreed
that the opinion shall expressly provide that the Trustee shall be
entitled to rely on the opinion);
(vi) opinions of counsel for the Unaffiliated Seller, in forms
acceptable to the Depositor, its counsel, S&P and Xxxxx'x as to such
matters as shall be required for the assignment of a rating to the
Class A Certificates of AAA by S&P, and Aaa by Xxxxx'x (it being agreed
that such opinions shall expressly provide that the Trustee shall be
entitled to rely on such opinions);
(vii) a letter from Xxxxx'x that it has assigned a rating of
Aaa to the Class A Certificates;
(viii) a letter from S&P that it has assigned a rating of AAA
to the Class A Certificates;
(ix) an opinion of counsel for the Trustee in form and
substance acceptable to the Depositor, its counsel, Xxxxx'x and S&P (it
being agreed that the opinion shall expressly provide that the
Unaffiliated Seller shall be entitled to rely on the opinion);
(x) an opinion or opinions of counsel for the Servicer, in
form and substance acceptable to the Depositor, its counsel, Xxxxx'x
and S&P (it being agreed that the opinion shall expressly provide that
the Unaffiliated Seller shall be entitled to rely on the opinion); and
(xi) an opinion or opinions of counsel for the Certificate
Insurer, in each case in form and substance acceptable to the
Depositor, its counsel, Xxxxx'x and S&P (it being agreed that the
opinion shall expressly provide that the Unaffiliated Seller shall be
entitled to rely on the opinion).
30
(e) The Certificate Insurance Policy shall have been duly executed,
delivered and issued with respect to the Class A Certificates.
(f) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be satisfactory in form
and substance to the Depositor and its counsel.
(g) The Unaffiliated Seller shall have furnished the Depositor with
such other certificates of its officers or others and such other documents or
opinions as the Depositor or its counsel may reasonably request.
Section 5.02. Conditions of Unaffiliated Seller's Obligations. The
obligations of the Unaffiliated Seller under this Agreement shall be subject to
the satisfaction, on the Closing Date, of the following conditions:
(a) Each of the obligations of the Depositor required to be performed
by it at or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with and all of the representations
and warranties of the Depositor contained in this Agreement shall be true and
correct as of the Closing Date and the Unaffiliated Seller shall have received a
certificate to that effect signed by an authorized officer of the Depositor.
(b) The Unaffiliated Seller shall have received the following
additional documents:
(i) the Pooling and Servicing Agreement, and all documents
required thereunder, in each case executed by the Depositor as
applicable; and
(ii) a copy of a letter from Xxxxx'x to the Depositor to the
effect that it has assigned a rating of Aaa to the Class A Certificates
and a copy of a letter from S&P to the Depositor to the effect that it
has assigned a rating of AAA to the Class A Certificates.
(iii) an opinion of counsel for the Trustee in form and
substance acceptable to the Unaffiliated Seller and its counsel;
(iv) an opinion or opinions of counsel for the Certificate
Insurer, in each case in form and substance acceptable to the
Unaffiliated Seller and its counsel;
(v) an opinion of the counsel for the Depositor as to
securities and tax matters; and
(vi) an opinion of the counsel for the Depositor as to true
sale matters.
(c) The Depositor shall have furnished the Unaffiliated Seller with
such other certificates of its officers or others and such other documents to
evidence fulfillment of the conditions set forth in this Agreement as the
Unaffiliated Seller may reasonably request.
Section 5.03. Termination of Depositor's Obligations . The Depositor
may terminate its obligations hereunder by notice to the Unaffiliated Seller at
any time before delivery of and payment of the purchase price for the Mortgage
Loans if: (a) any of the conditions set forth in Section 5.01 are not satisfied
when and as provided therein; (b) there shall have been the entry of a decree or
order by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in any
insolvency,
31
readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Unaffiliated Seller, or for the
winding up or liquidation of the affairs of the Unaffiliated Seller; (c) there
shall have been the consent by the Unaffiliated Seller to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Unaffiliated Seller or of or relating to substantially all of the property
of the Unaffiliated Seller; (d) any purchase and assumption agreement with
respect to the Unaffiliated Seller or the assets and properties of the
Unaffiliated Seller shall have been entered into; or (e) a Termination Event
shall have occurred. The termination of the Depositor's obligations hereunder
shall not terminate the Depositor's rights hereunder or its right to exercise
any remedy available to it at law or in equity.
ARTICLE SIX
MISCELLANEOUS
Section 6.01. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed by registered mail, postage prepaid, or
transmitted by telex or telegraph and confirmed by a similar mailed writing, if
to the Depositor, addressed to the Depositor at Prudential Securities Secured
Financing Corporation, Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset Finance Group, or to such other address as the Depositor may
designate in writing to the Unaffiliated Seller and if to the Unaffiliated
Seller, addressed to the Unaffiliated Seller at ABFS 1997-2, Inc., Xxxxxxxxxx
Xxxxxx Xxxxxx, 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxxx, Xxxxxxxxxxxx
00000, Attention: Xx. Xxxxxxx Xxxxxxxx, Xx., or to such other address as the
Unaffiliated Seller may designate in writing to the Depositor.
Section 6.02. 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 6.03. Agreement of Unaffiliated Seller. The Unaffiliated Seller
agrees to execute and deliver such instruments and take such actions as the
Depositor may, from time to time, reasonably request in order to effectuate the
purpose and to carry out the terms of this Agreement.
Section 6.04. Survival. The parties to this Agreement agree that the
representations, warranties and agreements made by each of them herein and in
any certificate or 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 delivery of and payment for the Mortgage Loans.
32
Section 6.05. 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 6.06. 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 and the Certificate Insurer; provided, however, that the Depositor may
assign its rights hereunder without the consent of the Unaffiliated Seller.
Section 6.07.Confirmation of Intent; Grant of Security Interest. It is
the express intent of the parties hereto that the conveyance of the Mortgage
Loans by the Originators to the Unaffiliated Seller and by the Unaffiliated
Seller to the Depositor as contemplated by this Unaffiliated Seller's Agreement
be, and be treated for all purposes as, a sale of the Mortgage Loans. It is,
further, not the intention of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by Originator to the Unaffiliated Seller or by the
Unaffiliated Seller to the Depositor to secure a debt or other obligation of the
Originators or the Unaffiliated Seller, as the case may be. However, in the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held to continue to be property of the Originators or the Unaffiliated Seller
then (a) this Unaffiliated Seller's Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the Uniform
Commercial Code; (b) the transfer of the Mortgage Loans provided for herein
shall be deemed to be a grant by the Originators to the Unaffiliated Seller and
by the Unaffiliated Seller to the Depositor of a security interest in all of
such parties' right, title and interest in and to the Mortgage Loans and all
amounts payable on the Mortgage Loans in accordance with the terms thereof and
all proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property; (c) the possession by the
Depositor of Mortgage Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-305 of the Uniform Commercial Code; and (d)
notifications to persons holding such property, and acknowledgments, receipts or
confirmations from persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Depositor for the
purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Depositor pursuant to any provision hereof
shall also be deemed to be an assignment of any security interest created
hereby. The Originators, the Unaffiliated Seller and the Depositor shall, to the
extent consistent with this Unaffiliated Seller's Agreement, take such actions
as may be necessary to ensure that, if this Unaffiliated Seller's Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement.
Section 6.08. Miscellaneous. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof.
Section 6.09. Amendments. This Agreement may be amended from time to
time by the Originators, the Unaffiliated Seller and the Depositor by written
agreement, upon the prior written consent of the Certificate Insurer, without
notice to or consent of the Certificateholders 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
33
Counsel, at the expense of the party requesting the change, delivered
to the Trustee, adversely affect in any material respect the interests
of any Certificateholder; and 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 Certificate without the consent of the Holder of
such Certificate, or change the rights or obligations of any other
party hereto without the consent of such party.
(b) This Agreement may be amended from time to time by the Unaffiliated
Seller and the Depositor with the consent of the Certificate Insurer, the
Majority Certificateholders and the Holders of the majority of the Percentage
Interest in the Class R Certificates for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders; provided, however, that
no such amendment shall be made unless the Trustee receives an Opinion of
Counsel, at the expense of the party requesting the change, that such change
will not adversely affect the status of the REMIC Trust as a REMIC or cause a
tax to be imposed on the REMIC, and 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
Certificate without the consent of the Holder of such Certificate or reduce the
percentage for each Class the Holders of which are required to consent to any
such amendment without the consent of the Holders of 100% of each Class of
Certificates affected thereby.
(c) It shall not be necessary for the consent of Holders 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.
Section 6.10. Third-Party Beneficiaries. The parties agree that each
of the Certificate 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 Depositor under this Agreement
which are assigned to the Trustee for the benefit of the Certificateholders and
the Certificate Insurer pursuant to the Pooling and Servicing Agreement and to
the extent necessary to obtain the benefit of the enforcement of the obligations
and covenants of the Unaffiliated Seller under Section 4.01 and 4.04(a)(ii) of
this Agreement. The parties further agree that Prudential Securities
Incorporated and each of its directors and each person or entity who controls
Prudential Securities Incorporated or any such person, within the meaning of
Section 15 of the Securities Act (each, an "Underwriter Entity") is an intended
third-party beneficiary of this Agreement to the extent necessary to obtain the
benefit of the enforcement of the obligations and covenants of the Unaffiliated
Seller with respect to each Underwriter Entity under Section 4.04(a)(i) of this
Agreement.
Section 6.11. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. 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 DEPOSITOR AND THE UNAFFILIATED SELLER EACH HEREBY SUBMIT 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 6.01 OF THIS AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED
TO BE COMPLETED
34
FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAIL, POSTAGE
PREPAID. THE DEPOSITOR AND THE UNAFFILIATED SELLER EACH HEREBY WAIVE 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 DEPOSITOR AND THE UNAFFILIATED SELLER 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 DEPOSITOR AND THE UNAFFILIATED SELLER EACH HEREBY WAIVE 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. 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.
[Remainder of Page Intentionally Left Blank]
35
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.
PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By: /s/ Xxx Xxxx
-------------------------------------
Name: Xxx Xxxx
Title: Vice President
ABFS 1997-2, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: President
AMERICAN BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
HOMEAMERICAN CREDIT, INC.,
D/B/A UPLAND MORTGAGE
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
[Signature Page to Unaffiliated Seller's Agreement]
00
XXXXX XX XXX XXXX )
) ss.
COUNTY OF NEW YORK )
On September 29, 1997 before me, the undersigned, a Notary
Public in and for said County and State, personally appeared Xxx Xxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be a Managing Director of Prudential Securities Secured Financing
Corporation, a Delaware corporation, the corporation that executed the within
Unaffiliated Seller's Agreement on behalf of said corporation, and acknowledged
to me that said corporation executed it.
/s/Xxxx Xxxx Constant
--------------------------------------
Notary Public
My Commission expires: January 2, 0000
XXXXX XX XXXXXXXXXXXX )
) ss.
COUNTY OF XXXXXXXXXX )
On September 29, 1997 before me, the undersigned, a Notary
Public in and for said County and State, personally appeared Xxxxxxx X.
Xxxxxxxx, personally known to me (or proved to me on the basis of satisfactory
evidence) to be President of ABFS 1997-2, Inc., the entity that executed the
within Unaffiliated Seller's Agreement; on behalf of said corporation, and
acknowledged to me that said corporation executed it.
/s/ Xxxxxx Xxxxx
-------------------- ----------------
Notary Public
My Commission expires: May 11, 1999
2
STATE OF PENNSYLVANIA )
) ss.
COUNTY OF XXXXXXXXXX )
On September 29, 1997 before me, the undersigned, a Notary
Public in and for said County and State, personally appeared Xxxxxxx Xxxxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be President of American Business Credit, Inc., the entity that executed the
within Unaffiliated Seller's Agreement; on behalf of said corporation, and
acknowledged to me that said corporation executed it.
/s/ Xxxxxx Xxxxx
-------------------------------------
Notary Public
My Commission expires: May 11, 0000
XXXXX XX XXXXXXXXXXXX )
) ss.
COUNTY OF XXXXXXXXXX )
On September 29, 1997 before me, the undersigned, a Notary
Public in and for said County and State, personally appeared Xxxxxxx X. Xxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be a Senior Vice President of HomeAmerican Credit, Inc., d/b/a Upland
Mortgage the entity that executed the within Unaffiliated Seller's Agreement; on
behalf of said corporation, and acknowledged to me that said corporation
executed it.
/s/ Xxxxxx Xxxxx
-----------------------------------
Notary Public
My Commission expires May 11, 1999
EXHIBIT A
MORTGAGE LOAN SCHEDULE
