Exhibit 4.3
PREFERRED SECURITIZATION CORPORATION
Depositor
and
PREFERRED CREDIT CORPORATION
Seller
....................................
SALE AND PURCHASE AGREEMENT
Dated as of [ ]
TABLE OF CONTENTS
PAGE
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...4
Section 2.03. Purchase Price........................................6
Section 2.04. Conveyance of Mortgage Loans; Possession of
Mortgage Files........................................6
Section 2.05. Delivery of Mortgage Loan Documents...................7
Section 2.06. Acceptance of Mortgage Loans.........................10
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. RESERVED.............................................12
Section 3.02. Representations and Warranties as to the Seller......12
Section 3.03. Representations and Warranties Relating to the
Mortgage Loans.......................................15
Section 3.04. Representations and Warranties of the Depositor......26
Section 3.05. Repurchase Obligation for Defective Documentation
and for Breach of a Representation or Warranty.......27
ARTICLE FOUR THE SELLER...............................................30
Section 4.01. Covenants of the Seller..............................30
Section 4.02. Merger or Consolidation..............................31
Section 4.03. Costs................................................31
Section 4.04. Indemnification......................................32
ARTICLE FIVE CONDITIONS OF CLOSING....................................35
Section 5.01. Conditions of Depositor's Obligations................35
Section 5.02. Conditions of Seller's Obligations...................36
Section 5.03. Termination of Depositor's Obligations...............37
ARTICLE SIX MISCELLANEOUS............................................38
Section 6.01. Notices..............................................38
Section 6.02. Severability of Provisions...........................38
Section 6.03. Agreement of Seller..................................39
Section 6.04. Survival.............................................39
Section 6.05. Effect of Headings and Table of Contents.............39
Section 6.06. Successors and Assigns...............................39
Section 6.07. Confirmation of Intent: Grant of Security Interest...39
Section 6.08. Miscellaneous........................................40
Section 6.09. Amendments...........................................40
Section 6.10. Third-Party Beneficiaries............................41
Section 6.11. GOVERNING LAW, CONSENT TO JURISDICTION;
WAIVER OF JURY TRIAL.................................41
Section 6.12. Execution in Counterparts............................42
Exhibit A - Mortgage Loan Schedule
Exhibit B - Officer's Certificate
Exhibit C - Opinion to Counsel to Seller
This Sale and Purchase Agreement, dated as of [ ], by and among
PREFERRED SECURITIZATION CORPORATION, a Delaware corporation, its successors and
assigns (the "Depositor") and PREFERRED CREDIT CORPORATION, a California
corporation and its successors (the "Seller").
WHEREAS, Exhibit A attached hereto and made a part hereof lists
certain fixed rate first, second and third lien mortgage loans (the "Mortgage
Loans") owned by the Seller and the Seller desires to sell to the Depositor and
that the Depositor desires to purchase;
WHEREAS, it is the intention of the Seller and the Depositor that
simultaneously with the 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 fund pursuant to a Pooling and Servicing Agreement to be dated
as of [ ] (the "Pooling and Servicing Agreement"), to be entered into by and
among Preferred Securitization Corporation, as depositor, Preferred Credit
Corporation, as seller, Advanta Mortgage Corp. USA, as servicer (the
"Servicer"), and [Bankers Trust Company,] 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:
"AGREEMENT" means this Sale and Purchase Agreement, as amended or
supplemented in accordance with the provisions hereof.
"[CERTIFICATE INSURER" means _____________________, 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.
"CUT-OFF DATE" means, with respect to each Initial Mortgage Loan, the
Initial Cut-Off Date, and with respect to each Subsequent Mortgage Loan, the
related Subsequent Cut- Off Date.
"CUT-OFF DATE AGGREGATE PRINCIPAL BALANCE" means the aggregate unpaid
principal balance of the Mortgage Loans as of their respective Cut-Off Date.
"CUT-OFF DATE PRINCIPAL BALANCE" means as to each Mortgage Loan, its
unpaid principal balance as of the related Cut-Off Date.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"INITIAL CUT-OFF DATE" means the opening of business on [ ].
"INITIAL MORTGAGE LOANS" means the Mortgage Loans transferred and
assigned to the Depositor on the Closing Date.
"MORTGAGE" means the mortgage, deed of trust or other instrument
creating a first, second or third lien on the Mortgaged Property.
"MORTGAGE LOAN SCHEDULE" shall have the meaning ascribed thereto in
Section 2.01(b).
"POOLING AND SERVICING AGREEMENT" shall have the meaning ascribed
thereto in the recitals hereof.
"PROSPECTUS" means the Prospectus dated [ ] relating to the offering
by the Depositor from time to time of its ABS Mortgage and Manufactured Housing
Contract 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 [ ],
relating to the offering of the Class A 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 Class A Certificates.
"QUALIFIED APPRAISER" means an appraiser, duly appointed by the
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. 333-22843 relating to the offering by the
Depositor from time to time of its [ABS Mortgage and Manufactured Housing
Contract Pass-Through Certificates] (issuable in Series) as heretofore declared
effective by the Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"TERMINATION EVENT" means the existence of any one or more of the
following conditions:
(a) 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 Class A 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 Seller reasonably determined by the Depositor to be
material; or
(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 Class A 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 Class A Certificates on
the terms and in the manner contemplated in the Prospectus Supplement.
"SELLER" means Preferred Credit Corporation, in its capacity as Seller
of the Mortgage Loans under this Agreement and any successor to Preferred Credit
Corporation, whether through merger, consolidation, purchase and assumption of
Preferred Credit Corporation 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 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,
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, the Depositor and the Seller have agreed
upon which of the Seller's Mortgage Loans are to be purchased by the Depositor
on the Closing Date pursuant to this Agreement, and the 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 Stroock & Stroock & Xxxxx LLP, New York, New York,
at 10:00 a.m., New York time, on [ ] or such other place and time as the parties
shall agree (such time being herein referred to as the "Closing Date").
Section 2.02. AGREEMENT TO PURCHASE THE SUBSEQUENT MORTGAGE LOANS. (a)
Subject to the terms and conditions of this Agreement, the Seller agrees to
sell, and the Depositor agrees to purchase, Subsequent Mortgage Loans, having an
Aggregate Principal Balance of up to [$ ] as listed in the Mortgage Loan
Schedule attached to the related Addition Notice.
(b) Subject to Section 2.08, the Depositor and the Seller shall agree
upon which of the Seller's Mortgage Loans are to be purchased by the Depositor
on a Subsequent Transfer Date, and the Seller shall prepare a Mortgage Loan
Schedule setting forth all of the Subsequent Mortgage Loans to be purchased
under the related Subsequent Transfer Instrument.
(c) Subject to the satisfaction of the conditions set forth in
paragraph (d) below, in consideration of the Depositor's delivery on the related
Subsequent Transfer Dates to or upon the order of the Seller of the purchase
price, the Seller shall on any Subsequent Transfer Date sell, transfer, assign,
set over and convey to the Depositor without recourse but subject to terms and
provisions of this Agreement, all of the right, title and interest of the Seller
in and to the Subsequent Mortgage Loans, and all other assets included or to be
included in the Trust Fund for the benefit of the Certificateholders and the
[Certificate Insurer].
(d) The Subsequent Mortgage Loans and the other property and rights
related thereto described in paragraph (c) above shall be transferred by the
Seller to the Depositor and by the Depositor to the Trust Fund only upon the
satisfaction of each of the following conditions on or prior to the related
Subsequent Transfer Date:
(i) the Seller shall have provided the Trustee, the
Rating Agencies and the [Certificate Insurer] with a timely Addition
Notice in no event later than five Business
Days prior to the Subsequent Transfer Date and shall have provided any
other information reasonably requested by any of the foregoing with
respect to the Subsequent Mortgage Loans, to be transferred on such
Subsequent Transfer Date;
(ii) the Seller shall have delivered to the Trustee a
duly executed Subsequent Transfer Instrument, which shall include a
Mortgage Loan Schedule listing the Subsequent Mortgage Loans;
(iii) the Seller shall have deposited or cause to have
deposited in the Collection Account all collections of (x) principal in
respect of the Subsequent Mortgage Loans received on and after the
related Subsequent Cut-Off Date and (y) interest due on the Subsequent
Mortgage Loans on and after the related Subsequent Cut-Off Date;
(iv) as of each Subsequent Transfer Date, the Seller was
not insolvent nor will be made insolvent by such transfer nor is the
Seller aware of any pending insolvency;
(v) such sale and transfer will not result in a
material adverse tax consequence to the Trust Fund or the
Holders of the Certificates;
(vi) the Pre-Funding Period shall not have terminated;
(vii) in connection with the final Subsequent Transfer
Date only, the Seller shall have delivered to the Depositor such
information as is necessary to permit the Depositor to file a Form 8-K
with the Commission containing tabular descriptions of all the Mortgage
Loans acquired by the Trust Fund as of their respective Cut-Off Dates
compared to those contained under the heading "Description of the
Mortgage Loan" in the Prospectus Supplement;
(viii) in connection with the final Subsequent Transfer
Date only, the Seller shall cause to be delivered to the Depositor a
letter, in form and substance acceptable to the Depositor and its
counsel, prepared by [KPMG Peat Marwick,] independent certified public
accountants, regarding the numerical information required to be
furnished pursuant to Section 2.02(d)(vii) above.
(ix) the 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 2.9 of the Pooling
and Servicing Agreement; and
(x) there shall have been delivered to the [Certificate
Insurer], the Rating Agencies and the Trustee, independent Opinions of
Counsel addressed to such Persons with respect to the transfer of the
Subsequent Mortgage Loans substantially in the form of the Opinions of
Counsel delivered to the [Certificate Insurer] and the Trustee on the
Startup Day (bankruptcy, corporate and tax opinions).
(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 2.9 of the Pooling and Servicing Agreement.
Section 2.03. PURCHASE PRICE. On the Closing Date, as full
consideration for the Seller's sale of the Initial Mortgage Loans to the
Depositor, the Depositor will deliver to the Seller (i) an amount in cash equal
to the sum of (A) _________% of the aggregate principal balance as of the
Closing Date of the Class A-1 Certificates, ___________% of the aggregate
principal balance as of the Closing Date of the Class A-2 Certificates,
___________% of the aggregate principal balance as of the Closing Date of the
Class A-3 Certificates, ___________% of the aggregate principal balance as of
the Closing Date of the Class A-4 Certificates, ___________ % of the aggregate
principal balance as of the Closing Date of the Class A-5 Certificates,
___________% of the aggregate principal balance as of the Closing Date of the
Class A-6 Certificates, and (B) accrued interest on the principal balances of
such Certificates at the rate of ____% per annum for the Class A-1 Certificates,
____% per annum for the Class A-2 Certificates, ____% per annum for the Class
A-3 Certificates, ____% per annum for the Class X- 0 Certificates, ____% per
annum for the Class A-5 Certificates and ____% per annum for the Class A-6
Certificates, in each case from (and including) [ ] to (but not including) [ ],
payable by wire transfer of same day funds and (ii) the Class B and Class R
Certificates to be issued pursuant to the Pooling and Servicing Agreement.
Section 2.04. CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE
FILES.
(a) On the Closing Date and on each Subsequent Transfer Date, the
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, together with the Mortgage
Files relating thereto and the insurance policies relating to each such Mortgage
Loan and all right, title and interest in and to all collections thereon and the
proceeds thereof on and after the Cut-Off Date. Upon payment of the purchase
price for such Mortgage Loans as provided in Section 2.03 of this Agreement, the
Seller shall have hereby, and shall be deemed to have, relinquished all rights
with respect to, and to have sold, transferred, assigned, set over and conveyed
such Mortgage Loans together with the Mortgage Files relating thereto and the
insurance policies relating to each such Mortgage Loan and all right, title and
interest in and to all collections thereon and the proceeds thereof on and after
the Cut-Off Date, and shall have no right to sell, pledge, encumber or otherwise
dispose of such Mortgage Loans.
In connection with the sale, transfer, assignment and conveyance from
the Seller to the Depositor, the Seller has filed, or shall cause to be filed,
in the appropriate office or offices in the States of California and New York, a
UCC-1 financing statement executed by the Seller as debtor, naming the Depositor
as secured party and listing the Mortgage Loans and the other property described
above as collateral. The characterization of the Seller as a debtor and the
Depositor as the secured party in such financing statements is solely for
protective purposes and shall in no way be construed as being contrary to the
interest of the parties that this transaction be treated as a sale of the
Seller's entire right, title and interest in the Mortgage Loans to the
Depositor. In connection with such filing, the Seller agrees that it shall cause
to be filed all necessary continuation statements thereof and to take or cause
to be taken such actions and execute such documents as are necessary to perfect
and protect the Trustee's, the Certificateholders' and the [Certificate
Insurer]'s interests in the Mortgage Loans.
(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 Seller shall immediately vest in the
Depositor. The contents of any Mortgage File in the possession of the Seller at
any time after such sale, and any payments of principal on the Mortgage Loans
received by the Seller on and after the Cut-off Date, and interest on the
Mortgage Loan due on and after the Cut-Off Date and received by the Seller,
shall be held in trust by the Seller for the benefit of the Trustee (as assignee
of the Depositor pursuant to the Pooling and Servicing Agreement), and shall be
promptly delivered by the Seller to or upon the order of the Trustee.
(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 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, bearing all intervening
endorsements showing a complete chain of endorsements from the
originator of such Mortgage Loan to the Seller endorsed by the Seller
without recourse in the following form: "Pay to the order of [Bankers
Trust Company,] as Trustee for the benefit of the Certificateholders
and the [Certificate Insurer] for Preferred Credit Asset-Backed
Certificates, Series 199_-_, without recourse" and signed in the name
of the Seller by an authorized officer;
(ii) The original Mortgage with evidence of recording
indicated thereon or if such Mortgage has not been returned from the
applicable recording office, a copy of the Mortgage certified by an
authorized officer of the Seller (such original recorded Mortgage shall
be delivered when so returned);
(iii) An original assignment of the original Mortgage, in
suitable form for recordation in the jurisdiction in which the related
Mortgaged Property is located, in the name of the Seller signed by an
authorized officer (with evidence of submission for recordation of such
assignment in the appropriate real estate recording office for such
Mortgaged Property); provided, however, that assignments of mortgages
shall not be required to be submitted for recording with respect to any
Mortgage Loan which relates to the Trustee's Mortgage File if the
Trustee, each of the Rating Agencies and the [Certificate Insurer]
shall have received an opinion of counsel at the expense of the Seller
satisfactory to the Trustee, each of the Rating Agencies and the
[Certificate Insurer] stating that, in such counsel's opinion, the
failure to record such assignment of Mortgage shall not have a
materially adverse effect on the security interest of the Trustee in
the Mortgage; PROVIDED, FURTHER, that any assignment of Mortgage for
which an opinion has been delivered shall be recorded by the Seller
upon the earlier to occur of (i) receipt by the Trustee of the
[Certificate Insurer]'s written direction to record such Mortgage, (ii)
the occurrence of any Event of Default, as such term is defined in the
Pooling and Servicing Agreement, or (iii) a bankruptcy or insolvency
proceeding involving the Mortgagor is initiated or foreclosure
proceedings are initiated against the Mortgaged Property as a
consequence of an event of default under the Mortgage Loan; PROVIDED,
further, that if the related Mortgage has not been returned from the
applicable recording office, then a copy of such Mortgage certified by
an authorized officer of the Seller shall be delivered (such original
assignment shall be delivered when so returned);
(iv) The original of any intervening assignments of the
Mortgage with evidence of recording thereon showing a complete chain of
assignment from the originator of such Mortgage Loan to the Seller;
(v) The original of any assumption, modification,
consolidation or extension agreements with evidence of
recording thereon; and
(vi) The title report or policy of title insurance (or a
commitment for title insurance if the policy is being held by the title
insurance company pending recordation of the Mortgage) issued with
respect to such Mortgage Loan;
PROVIDED, HOWEVER, that in the case of any Mortgage Loans which have
been prepaid in full after the Cut-Off Date and prior to the date of the
execution of this Agreement, the Seller, in lieu of delivering the above
documents, hereby delivers to the Depositor a certification of an officer of the
Seller of the nature set forth in Exhibit N attached to the Pooling and
Servicing Agreement; and PROVIDED, FURTHER, HOWEVER, that as to certain
Mortgages or assignments thereof which have been delivered or are being
delivered to recording offices for recording and have not been returned to the
Seller in time to permit their delivery hereunder at the time of such transfer,
in lieu of delivering such original documents, the Depositor is delivering to
the Trustee a true copy thereof with a certification by the Seller on the face
of such copy substantially as follows: "certified true and correct copy of
original which has been transmitted for recordation." The Seller agrees that it
will deliver such original documents, together with any related title report or
policy of title insurance not previously delivered, on behalf of the Depositor
to the Trustee promptly after they are received, and no later than 120 days
after the Closing Date; PROVIDED, HOWEVER, that in those instances where the
public recording office retains the original Mortgage or assignment of Mortgage
after it has been recorded or such original document has been lost by the
recording office, the Seller shall be deemed to have satisfied its obligations
hereunder if it shall have delivered to the Trustee a copy of such original
Mortgage or assignment of Mortgage certified by the public recording office to
be a true copy of the recorded original thereof. The Seller agrees, at its own
expense, to record (or to provide the Trustee with evidence of recordation
thereof) each assignment within 60 days of the Closing Date in the appropriate
public office for real property records, provided that such assignments are
redelivered by the Trustee to the Seller upon the Seller's written request and
at the Seller's expense, unless the Seller (at its expense) furnishes to the
Trustee, the [Certificate Insurer] and the Rating Agencies an Opinion of Counsel
reasonably acceptable to the Trustee and the [Certificate Insurer] to the effect
that recordation of such assignment is not necessary under applicable state law
to preserve the Trustee's interest in the related Mortgage Loan against the
claim of any subsequent transferee of such Mortgage Loan or any successor to, or
creditor of the Seller.
(b) In the event that any additional original documents are required
pursuant to the terms of this Section 2.05 to be a part of a Mortgage File, the
Seller or the Depositor, respectively, shall promptly deliver written notice to
the Trustee that such additional original documents are required hereunder and
deliver such original documents to the Trustee. In acting as custodian of any
such original document, the Servicer agrees further that it does not and will
not have or assert any beneficial ownership interest in the Mortgage Loans or
the Mortgage Files.
(c) In the event that any Mortgage Note required to be delivered
pursuant to this Section 2.05 is conclusively determined by any of the Seller,
the Servicer or the Trustee to be lost, stolen or destroyed the Seller shall,
within 14 days of the Closing Date, deliver to the Trustee a "lost note
affidavit" in form and substance acceptable to the Trustee, and shall
simultaneously therewith request the obligor on such Mortgage Note to execute
and return a replacement Mortgage Note, and shall further agree to hold the
Trustee and the [Certificate Insurer] harmless from any loss or damage resulting
from any action taken in reliance on the delivery and possession by the Trustee
of such lost note affidavit. Upon the receipt of such replacement Mortgage Note,
the Trustee shall return the lost note affidavit. Delivery by the Seller of such
lost note affidavit shall not affect the obligations of the Seller hereunder
with respect to the related Mortgage Loan.
(d) Promptly after the Closing Date, the Seller shall, with respect to
each Mortgage Loan, cause to be recorded in the appropriate public office for
real property records, where permitted by applicable law and where applicable
law does not require that a subordinate mortgagee be named as a party defendant
in foreclosure or comparable proceedings in order to foreclose or otherwise
preempt such mortgagee's equity of redemption, a request for notice of any
action by or on behalf of any mortgagee under the related senior lien.
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 an acknowledgment of receipt of each Mortgage Loan,
the original Mortgage Note with respect to each Mortgage Loan (with any
exceptions noted), in the form attached as Exhibit D 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, with respect to any Subsequent Mortgage Loan or Qualified Substitute
Mortgage Loan, within 30 days after the receipt by the Trustee thereof) and to
deliver to the initial Certificateholders, the Seller, the Servicer and the
[Certificate Insurer] a final 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 Section 2.3(a)(i) of the Pooling and Servicing Agreement are in its
possession, (ii) each such document has been reviewed by it, has been, to the
extent required, executed 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. 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.
(b) The Pooling and Servicing Agreement provides that, if the
[Certificate Insurer] or 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 or the [Certificate Insurer], as applicable,
shall promptly so notify the Servicer, the Seller, the [Certificate Insurer] and
the Trustee. The Seller agrees that in performing any such review, the Trustee
may conclusively rely on the Seller as to the purported genuineness of any such
document and any signature thereon. The 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 the
Seller has not 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 Seller shall 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 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. The
Seller 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 Seller, 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 Seller 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]. The 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
Seller 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 Seller shall make the
related Mortgage Files available to the Depositor or its designee for
examination at the Seller's offices or at such other place as the 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, 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 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 the Seller's accounting and other records, balance sheet and
other financial statements as a sale of assets by the Seller to the Depositor.
The 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]. The Seller shall respond
to any inquiries from third parties with respect to ownership of a Mortgage Loan
by stating that is not the owner of such Mortgage Loan and that ownership of
such Mortgage Loan is held by the Trustee on behalf of the Trust Fund.
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 Seller.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.01. RESERVED
Section 3.02. REPRESENTATIONS AND WARRANTIES AS TO THE SELLER. The
Seller hereby represents and warrants to the Depositor, as of the Closing Date,
that:
(a) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of California 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 Seller and to perform its
obligations as the Seller hereunder and under the Pooling and Servicing
Agreement, and in any event the 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 Seller has the full power and authority, corporate and
otherwise, to execute and deliver this Agreement and the Pooling and Servicing
Agreement and to perform in accordance herewith and therewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement and the Pooling and
Servicing Agreement) and the Pooling and Servicing Agreement by the Seller and
the consummation of the transactions contemplated hereby and thereby have been
duly and validly authorized; each of this Agreement and the Pooling and
Servicing Agreement evidences the valid, binding and enforceable obligation of
the Seller; and all requisite corporate action has been taken by the Seller to
make this Agreement and the Pooling and Servicing Agreement valid and binding
upon the 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 Seller of or compliance by the Seller with the Pooling and
Servicing Agreement, 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 and the Pooling and Servicing Agreement, or if
required, such approval has been obtained prior to the Closing Date;
(c) Neither the execution and delivery of this Agreement or the
Pooling and Servicing Agreement, the acquisition or origination of the Mortgage
Loans by the Seller or the transactions contemplated hereby or thereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement or
the Pooling and Servicing Agreement, has or will conflict with or result in a
breach of any of the terms, conditions or provisions of the Seller's charter or
by-laws or any legal restriction or any agreement or instrument to which the
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 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) None of this Agreement, the Pooling and Servicing Agreement or the
information contained in the Prospectus Supplement under the captions
"Description of the Mortgage Loans," "The Seller" nor any statement, report or
other document prepared by the Seller and furnished or to be furnished pursuant
to this Agreement, the Pooling and Servicing Agreement or in connection with the
transactions contemplated hereby or thereby 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 Seller, threatened before a court, administrative agency
or government tribunal against the 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 Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement, the Pooling and Servicing Agreement, the Mortgage Loans, or of any
action taken or to be taken in connection with the obligations of the Seller
contemplated herein or therein, or which would impair materially the ability of
the Seller to perform under the terms of this Agreement or the Pooling and
Servicing Agreement or that might prohibit its entering into this Agreement, the
Pooling and Servicing Agreement, or the consummation of any of the transactions
contemplated hereby;
(f) The Seller is not in violation of or in default with respect to,
and the execution and delivery of this Agreement and the Pooling and Servicing
Agreement by the Seller and its performance of and compliance with the terms
hereof and thereof 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 Seller or its properties or might have
consequences that would materially and adversely affect its performance
hereunder or under the Pooling and Servicing 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 Seller (other than
liens which will be simultaneously released);
(h) The consummation of the transactions contemplated by this
Agreement and the Pooling and Servicing Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this 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 Seller, the
Seller acquired title to the Mortgage Loan in good faith, without notice of any
adverse claim;
(j) The Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every one of its covenants contained
in this Agreement and in the Pooling and Servicing Agreement. The Seller is
solvent and the sale of the Mortgage Loans by the Seller pursuant to the terms
of this Agreement will not cause the Seller to become insolvent. The sale of the
Mortgage Loans by the Seller pursuant to the terms of this Agreement was not
undertaken with the intent to hinder, delay or defraud any of the 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 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 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 Seller upon the sale of the
Mortgage Loans under this Agreement constitutes fair consideration and
reasonably equivalent value for the Mortgage Loans.
(o) In making the representation containing in Section 3.03(bk), the
Seller has examined each of the Mortgage Loans, appraisals of the property
securing each of the Mortgage Loans, and information concerning any liens on
such property that are senior to or in parity with the Mortgage Loan, to
determine whether the "80-percent test" described in such representation has
been satisfied. In all cases where the "80-percent test" was not satisfied, in
order to determine whether the "Alternative test" described in Section 3.03(bk)
was satisfied, the Seller sent to the relevant borrower a survey asking the
borrower to state the purposes for which the proceeds of their Mortgage Loan
were used and the percent of the proceeds used for each purpose. The Seller
examined each of the responses to the borrower survey, which were received (in
either written or oral form) from 100 percent of the borrowers to whom the
surveys were sent, to determine whether the "Alternative test" was satisfied. In
all cases where the "Alternative test" was satisfied as per the borrower survey,
the Seller examined the disbursement records for the relevant Mortgage Loans as
further verification of the use of loan proceeds. Any Mortgage Loan for which
the use of proceeds, as indicated in the borrower survey, caused the
"Alternative test" not to be satisfied, or for which the borrower survey and the
disbursement records were inconsistent, were not treated by the Seller as
satisfying the "Alternative test."
Section 3.03. REPRESENTATIONS AND WARRANTIES RELATING TO THE MORTGAGE
LOANS. The 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 to be transferred on such Subsequent Transfer
Date, immediately prior to the sale and transfer of such Mortgage Loan by the
Seller to the Depositor:
(a) The Mortgage Loans had, as of the Initial Cut-Off Date, an
aggregate Principal Balance equal to [$ ], and all of the information set forth
in the Mortgage Loan Schedule is complete, true and correct;
(b) All payments required to be made up to the Cut-Off Date for the
Mortgage Loan under the terms of the Mortgage Note have been made and credited,
except no payment required under the Mortgage Loan is more than 30 days
Delinquent nor has any payment under the Mortgage Loan been Delinquent for more
than 30 days more than once in the 12 months preceding the Cut-Off Date;
(c) Except as described in clause (b) above, there are no defaults in
complying with the terms of the Mortgage, and all taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges which have
become liens against the Mortgaged Property, leasehold payments or ground rents
which previously became due and owing have been paid. The Seller has not
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 under the Mortgage Loan;
(d) The terms of the Mortgage Note and Mortgage 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 interests of
the Trustee on behalf of the Certificateholders and the [Certificate Insurer]
and which has been delivered to the Trustee. The substance of any such waiver,
alteration or modification has been approved by the title insurer, to the extent
required by the policy, and its terms are reflected on the Mortgage Loan
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement, which assumption agreement is part of
the Mortgage File delivered to the Trustee and the terms of which are reflected
in the Mortgage Loan Schedule;
(e) The Mortgage Loan is not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, 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, recoupment, counterclaim or defense, including, without
limitation, the defense of usury, and no such right of rescission, set-off,
recoupment, counterclaim or defense has been asserted with respect thereto, and
no Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated;
(f) Pursuant to the terms of the Mortgage, the Mortgaged Property is
subject to fire and casualty insurance with a standard mortgagee clause and
extended coverage which provides guaranteed replacement value of the
improvements securing such Mortgage Loan, or coverage in the amount of the full
replacement value of the improvements securing such Mortgage Loan or the amount
of the unpaid principal balance of the first mortgage plus the unpaid principal
balance of the Mortgage Loan, whichever is less. The fire and casualty insurance
is standard in the industry for property similar (in terms of property type,
value and location) to the Mortgaged Property. If the Mortgaged Property is in
an area identified in the Federal Register by the Federal Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available), a flood insurance policy is in effect with respect to the Mortgaged
Property meeting the requirements of the current guidelines of the Federal
Insurance Administration with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (i) the unpaid principal
balance of the Mortgage Loan, (ii) the full insurable value of the Mortgaged
Property or (iii) the maximum amount of insurance available under the Flood
Disaster Protection Act of 1973. To the best of the Seller's knowledge, all such
insurance policies (collectively, the "hazard insurance policy") meet the
requirements of the current guidelines of the Federal Insurance Administration,
conform to the requirements of the FNMA Sellers' Guide and the FNMA Servicers'
Guide, and are a standard policy of insurance for the locale where the Mortgaged
Property is located. It is understood and agreed that such insurance is with
insurers approved by the Servicer and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require such
additional insurance. The hazard insurance policy names the Mortgagor as the
insured and contains a standard mortgagee loss payable clause in favor of the
Seller, and its successors and assigns. The Seller has caused and will cause to
be performed any and all acts required to be performed to preserve the rights
and remedies of the Trustee in any hazard insurance policies applicable to the
Mortgage Loans including, without limitation, any necessary notifications of
insurers and assignments of policies or interests therein. The Mortgage
obligates the Mortgagor thereunder to maintain the hazard insurance policy at
the Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance at
such Mortgagor's cost and expense, and to seek reimbursement therefor from the
Mortgagor; PROVIDED, however, that the addition of any such cost shall not be
taken into account for purposes of calculating the principal amount of the
Mortgage Note or the Mortgage Loan secured by the Mortgage Note. Where required
by state law or regulation, the Mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance, provided the policy is not
a "master" or "blanket" hazard insurance policy covering a condominium or the
common facilities of a planned unit development. To the best of Seller's
knowledge, the hazard 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. The Seller has not engaged in, and
has no knowledge of the Mortgagor's or any Subservicer's having engaged in, any
act or omission which would impair the coverage of any such policy, the benefits
of the endorsement provided for herein, or the validity and binding effect of
either. To the best of Seller's knowledge, in connection with the issuance of
the hazard insurance policy, no unlawful fee, commission, kickback or other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and no
such unlawful items have been received, retained or realized by the Seller;
(g) 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 the Mortgage Loan have been complied with and the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws;
(h) The Mortgage has not been satisfied, canceled, subordinated (other
than in connection with a refinancing of the first mortgage on the Mortgaged
Property) or rescinded, in whole or in part, and the Mortgaged Property has not
been released from the lien of the Mortgage, in whole or in part, nor has any
instrument been executed that would effect any such release, cancellation,
subordination or rescission. The Seller has not waived the performance by the
Mortgagor of any action, if the Mortgagor's failure to perform such action would
cause the Mortgage Loan to be in default, nor has the Seller waived any default
resulting from any action or inaction by the Mortgagor;
(i) The Mortgaged Property is located in the state identified in the
Mortgage Loan Schedule and consists of a fee simple estate in one or more
parcels of real property improved by a one- to four-family residential dwelling;
(j) The Mortgage is a valid, subsisting, enforceable and perfected
lien on the Mortgaged Property, including all buildings on the Mortgaged
Property and all installations and mechanical, electrical, plumbing, heating and
air conditioning systems located in or annexed to such buildings, and all
additions, alterations and replacements made at any time with respect to the
foregoing. The lien of the Mortgage is subject only to:
(i) in the case of Mortgage Loans in a second
priority lien position, a first mortgage;
(ii) in the case of Mortgage Loans in a third priority
position, a first and second mortgage;
(iii) the lien of current real property taxes and
assessments not yet due and payable;
(iv) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions generally
and specifically referred to in the lender's title report delivered to
the originator of the Mortgage Loan and referred to or otherwise
considered in the appraisal made for the originator of the Mortgage
Loan; and
(v) 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 the
Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable junior lien and junior priority security interest on
the property described therein and immediately prior to the sale of such
Mortgage Loan to the Depositor pursuant to this Agreement, the Seller had full
right to sell and assign the same to the Depositor; as of the date of
origination of the Mortgage Loan, the Mortgage Property was not subject to a
Mortgage, deed of trust, deed to secure debt or other security instrument
creating a lien subordinate to the lien of the Mortgage.
(k) The Mortgage Note and the Mortgage and every other agreement, if
any, executed and delivered by the Mortgagor in connection with the Mortgage
Loan are genuine, and each is the legal, valid and binding obligation of the
maker thereof enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium, receivership, or other
similar laws of general applicability relating to or affecting creditors' rights
generally. All parties to the Mortgage Note and the Mortgage and any other
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and such other related
agreements, and the Mortgage Note and the Mortgage and such other related
agreements have been duly and properly executed by such parties. The Seller has
reviewed, or has caused to be reviewed, all of the documents constituting the
Mortgage File and have made such inquiries as it deems necessary to make and
confirm the accuracy of the representations set forth herein;
(l) The Mortgage Loan has been closed and any proceeds of the Mortgage
Loan drawn by the Mortgagor as of the Cut-Off Date have been fully disbursed and
there is no requirement for future advances thereunder. All costs, fees and
expenses incurred in making or closing the Mortgage Loan and the recording of
the Mortgage were paid or will be paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or Mortgage;
(m) At the time of the sale of the Mortgage Loan to the Depositor
under this Agreement, (i) the Seller was the sole owner and holder of the
Mortgage Loan, (ii) the Mortgage Loan was not assigned to any Person other than
the Trustee on behalf of the Trust Fund, or pledged, unless such assignment or
pledge has been duly released, (iii) the Seller had good, indefeasible and
marketable title thereto, (iv) the Seller had full right to transfer and sell
the Mortgage Loan therein to the Depositor free and clear of any encumbrance,
equity interest, participation interest, lien, pledge, charge, claim or security
interest, and (v) the Seller had full right and authority subject to no interest
or participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan to the Depositor under this Agreement, and following the sale of
each Mortgage Loan, the Depositor will own such Mortgage Loan free and clear of
any encumbrance, equity interest, participation interest, lien, pledge, charge,
claim or security interest;
(n) All parties which had any interest in the Mortgage Loan, whether
as mortgagee, assignee, pledgee or otherwise, and including, without limitation,
the Seller, 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
to the extent required to avoid a material adverse effect to the interest of the
Trustee on behalf of the Certificateholders and the [Certificate Insurer], and
(ii) (1) organized under the laws of such state, or (2) qualified to do business
in such state, or (3) federal savings and loan associations, savings banks, or
national banks having principal offices in such state, or (4) not doing business
in such state;
(o) The Mortgage Loan has an original Combined Loan-to-Value Ratio
(calculated at the time of origination by dividing the outstanding principal
amount of the first and second Mortgage Loan by the appraised value of the
Mortgaged Property) equal to or less than 125%;
(p) Each Mortgage Loan was originated pursuant to a title report or a
limited liability lender's title insurance policy or other generally acceptable
form of policy of insurance issued by a title insurer qualified to do business
in the jurisdiction, where the Mortgaged Property is located, evidencing the
Seller, its successors and assigns, of the priority of its lien of the Mortgage
in the original principal amount of the Mortgage Loan, and subject only to the
exceptions contained in clauses (i), (ii), (iii) and (iv) of paragraph (j)
above. Where required by state law or regulation, the Mortgagor has been given
the opportunity to choose the carrier of the required mortgage title insurance.
Immediately prior to the sale of the Mortgage Loan to the Depositor under the
terms of this Agreement, the Seller, its successors and assigns were the sole
insurers of such lender's title insurance policy. Such lender's title insurance
policy is in full force and effect and will be in force and effect upon the
consummation of the transactions contemplated by this Agreement. No claims have
been made under such lender's title insurance policy, and no prior holder of the
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy. In connection
with the issuance of such lender's title insurance policy, no unlawful fee,
commission, kickback or other unlawful compensation or value of any kind has
been or will be received, retained or realized by any attorney, firm or other
person or entity, and no such unlawful items have been received, retained or
realized by the Seller;
(q) Except as described in clause (b) 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 a default, breach,
violation or event of acceleration, and neither the Seller nor its predecessors
have waived any default, breach, violation or event of acceleration;
(r) To the best of the Seller's knowledge, there are no mechanics' or
similar liens or claims which have been filed for work, labor or material (and
no rights are outstanding that under the law could give rise to such liens)
affecting the related Mortgaged Property which are or may be liens prior to, or
equal or coordinate with, the lien of the related Mortgage;
(s) To the best of the Seller's knowledge, all improvements which were
considered in determining the Appraised Value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property and no improvements on adjoining properties encroach upon the Mortgaged
Property. To the best of Seller's knowledge, no improvement located on or being
part of the Mortgaged Property is in violation of any applicable zoning law or
regulation; provided, that in no event shall a legal nonconforming use of the
Mortgaged Property be considered a violation of any such zoning law or
regulation;
(t) The Mortgage Note is payable on the day specified in such Mortgage
Note;
(u) The Mortgage contains customary and enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (i) in the case of a Mortgage designated as a deed
of trust, by trustee's sale, and (ii) otherwise by judicial foreclosure. Upon
default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee's sale
of, the Mortgaged Property pursuant to the proper procedures, the holder of the
Mortgage Loan will be able to deliver good and merchantable title to the
Mortgaged Property. There is no homestead or other exemption available to the
Mortgagor which would interfere with the right to sell the Mortgaged Property at
a trustee's sale or the right to foreclose the Mortgage subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption;
(v) To the best of Seller's knowledge, all inspections, licenses and
certificates required to be made are issued with respect to all occupied
portions of the Mortgaged Property and with respect to the use and occupancy of
the same, including, but not limited to, certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities;
(w) The Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred to in
(j) above;
(x) No fees or expenses are or will become payable by the Trustee out
of the assets of the Trust Fund to the trustee under the deed of trust, except
in connection with a trustee's sale after default by the Mortgagor, provided
that this representation and warranty shall in no way obligate the Trustee to
pay any such amounts;
(y) The Mortgage Note, the Mortgage, the related Assignment of
Mortgage and any other documents required to be delivered by the Seller have
been delivered to the Trustee in accordance with the Pooling and Servicing
Agreement. The Trustee is in possession of a complete, true and accurate
Mortgage File in accordance with the Pooling and Servicing Agreement;
(z) The Mortgage contains a provision for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan in the event that
the Mortgaged Property is sold or transferred without the prior written consent
of the Mortgagee thereunder, at the option of the Mortgagee;
(aa) Each of the Mortgage and the Assignment of Mortgage is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located:
(ab) The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor, nor does it contain
any other similar provisions currently in effect which may constitute a
"buydown" provision. The Mortgage Loan is not a graduated payment mortgage loan
and the Mortgage Loan does not have a shared appreciation or other contingent
interest feature;
(ac) There is no proceeding pending or, to the best of Seller's
knowledge, threatened, for the total or partial condemnation of the Mortgaged
Property; the Mortgaged Property is undamaged by waste, fire, earthquake or
earth movement, windstorm, flood, tornado, other types of water damage, or other
casualty so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises were intended
and each Mortgaged Property is in good repair; and there have not been any
condemnation proceedings with respect to the Mortgaged Property and the Seller
has no knowledge of any such proceedings in the future;
(ad) The origination and collection practices with respect to the
Mortgage Loan have been, and in all respects are in accordance with Accepted
Servicing Practices, and with all applicable laws and regulations;
(ae) The Mortgage File contains an appraisal of the related Mortgage
Property of the Mortgage Loan application by an independent appraiser acceptable
to the Seller;
(af) The Mortgagor has not notified the Seller, and the Seller has no
knowledge of any relief requested or allowed to the Mortgagor under the
Soldiers' and Sailors' Civil Relief Act of 1940;
(ag) There exists no violation of any local, state, or federal
environmental law, rule or regulation in respect of the Mortgaged Property which
violation has or could have a material adverse effect on the market value of
such Mortgaged Property. There is no pending action or proceeding directly
involving the related Mortgaged Property in which compliance with any
environmental law, rule or regulation is in issue; and nothing further remains
to be done to satisfy in full all requirements of each such law, rule or
regulation constituting a prerequisite to the use and employment of such
Mortgaged Property;
(ah) 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 the Mortgage Loan have been complied with, and the Seller
has and shall maintain its possession, available for the Trustee's inspection,
and shall deliver to the Trustee upon demand, evidence of compliance with all
such requirements;
(ai) The Mortgage Loans are representative of the mortgage loans in
the Seller's portfolio of closed-end fixed rate loans secured by one-to-four
family residential properties;
(aj) All information regarding the Mortgage Loans which could
reasonably be expected to adversely affect the value or the marketability of any
Mortgaged Property or Mortgage Loan and of which the Seller is aware has been
provided by the Seller to the Depositor and the [Certificate Insurer];
(ak) The Mortgage Loan was originated in accordance with the
underwriting criteria of the Seller and was underwritten in accordance
therewith. The documents, instruments and agreements submitted for loan
underwriting and the documents constituting a part of the Mortgage File were not
falsified by or with the knowledge of the Seller and contain no untrue statement
of material fact and do not omit to state a material fact required to be stated
therein or necessary to make the information and statements therein not
misleading. The Seller has not made any representations to the Mortgagor that
are inconsistent with the mortgage instruments used;
(al) All amounts, with respect to the Mortgage Loans, received after
the Cut- Off Date and to which the Seller is not entitled, have been deposited
into the Collection Account;
(am) After due inquiry, there is no delinquent recording or other tax
or assessment lien on the Mortgage Property;
(an) The Seller has performed or directed the Servicer to perform any
and all acts required to be performed to preserve the rights and remedies of the
Trustee in any insurance policies applicable to the Mortgage Loan, including,
without limitation, any necessary notification of insurers, assignments of
policies (other than the title policy) or interests therein, and establishment
of co-insurer, joint loan payer and mortgagee rights in favor of the Trustee;
(ao) The Mortgage Loan conforms, and all such Mortgage Loans in the
aggregate conform, to the description thereof set forth in the Prospectus
Supplement;
(ap) As of the Cut-Off Date, no more than 2.00% of the Mortgage Loans
will be secured by Mortgaged Properties located within any single zip code area;
(aq) Each Mortgage Loan constitutes a Qualified Mortgage;
(ar) Each Mortgaged Property does not include cooperatives or mobile
homes attached to a foundation or otherwise and does not constitute other than
real property under state law;
(as) With respect to each Mortgage Loan, there is only one originally
executed Mortgage Note not stamped as a duplicate;
(at) As of the Closing Date, there is no valid offset, defense or
counterclaim to any Mortgage, including, without limitation, any offset,
defense, or counterclaim against the obligation to pay principal and interest in
accordance with the Mortgage;
(au) As of the Closing Date, each Mortgage Loan and Mortgage is an
enforceable obligation of the related Mortgagor, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a proceeding at law or in
equity); no instrument of release or waiver has been executed in connection with
any Mortgage Loan and no Mortgagor has been released, in whole or in part;
(av) The Mortgage Loans are not being transferred with any intent to
hinder, delay or defraud any creditors;
(aw) As of the Closing Date, the Seller has not received, and is not
aware of, a notice of default of any senior mortgage loan related to a Mortgaged
Property which has not been cured;
(ax) No selection procedure reasonably believed by the Seller to be
materially adverse to the interests of the Certificateholders or the
[[Certificate Insurer]] was utilized in selecting the Mortgage Loans; and
(ay) Each Mortgage was recorded or will be recorded (if necessary) and
all subsequent assignments of the original Mortgage have been recorded in the
appropriate jurisdictions wherein such recordation is necessary to perfect the
lien thereof as against creditors of the Seller.
(az) The Mortgage Note related to each Mortgage Loan bears a fixed
coupon rate of at least 10.0% per annum.
(ba) No Mortgage Loan requires a balloon payment at the end of its
term except with respect to certain Mortgage Loans which at the end of their
amortization period, the remaining balance is less than one month's schedule
payment.
(bb) No more than __% of the Mortgage Loans are secured by
condominiums;
(bc) None of the Mortgage Loans are secured by investor-owned
properties.
(bd) Approximately all of the Mortgage Loans are junior mortgage
loans.
(be) With respect to each Mortgage Loan that is not a first mortgage
loan, either (i) no consent for the Mortgage Loan is required by the holder of
the related prior lien or (ii) such consent has been obtained and has been
delivered to the Trustee.
(bf) No Mortgage Loan has a remaining term in excess of 360 months.
(bg) No Mortgage Loan was made in connection with (i) the construction
of a Mortgaged Property or (ii) facilitating the trade-in or exchange or a
Mortgaged Property.
(bh) None of the Mortgage Loans are second homes and none of the
Mortgage Loans are non-owner occupied.
(bi) No funds provided to a borrower from a second Mortgage Loan were
used as a down payment for a first mortgage loan of the same Mortgaged Property.
(bj) The 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 (bi) above will be correct in
all material respects as to each Subsequent Mortgage Loan and the
representations so made in this subsection (bj) as to the following matters will
be deemed to be correct if: (i) such Subsequent Mortgage Loan may not be more
than 30 days Delinquent as of the related Subsequent Cut-Off Date; (ii) such
Subsequent Mortgage Loan has a Mortgage Interest Rate of at least ___%; (iii)
such Subsequent Mortgage Loan has a weighted average Combined Loan-to-Value
Ratio (based on the original appraisal) no greater than 125%; (iv) such
Subsequent Mortgage Loan is a fully amortizing loan with level payments
generally over 15 years; (v) such Subsequent Mortgage Loan is secured by a
Residential Dwelling; (vi) the related Trustee's Mortgage File with respect to
such Subsequent Mortgage Loan shall have been delivered to the Trustee; (vii) no
such Subsequent Mortgage Loan is secured by an investor property or associated
with the purchase of a home; (viii) the Subsequent Mortgage Loans in the
aggregate have a weighted average Principal Balance no greater than $_________;
(ix) the Subsequent Mortgage Loans in the aggregate have a weighted average
remaining term to stated maturity of no greater than 182 months; (x) such
Subsequent Mortgage Loan may not have a DTI greater than _____%; (xi) such
Subsequent Mortgage Loan has a Credit Bureau Risk Score of at least _____; and
(xii) following the purchase of such Subsequent Mortgage Loans by the Trust
Fund, the Mortgage Loans (including the Subsequent Mortgage Loans) (a) will have
a weighted average Mortgage Interest Rate of at least _____%; (b) will have a
weighted average Combined Loan-to-Value Ratio (based on the original appraisal)
of not more than _____%; (c) will have no Subsequent Mortgage Loan with a
Principal Balance in excess of $_________; (d) will not have any non-owner
occupied properties; (e) will have a weighted average Subordinate Mortgage Ratio
of not more than _____%; (f) will not have a concentration in a single zip code
in excess of 2.0% by aggregate Principal Balance; (g) will not have a
concentration in Los Angeles County, California in excess of 10% by aggregate
Principal Balance; (h) will not have concentration in any other county in excess
of 8% by aggregate Principal Balance; (i) the concentration of Credit Bureau
Risk Scores by aggregate Principal Balance shall be the following: (1) between
620-639 shall not exceed _____%; (2) between 620- 659 shall not exceed _____%;
(3) between 620-669 shall not exceed 52%; (4) between 620-689 shall not exceed
_____%; and (5) between 620-709 shall not exceed _____%; (j) will not have a
concentration of Mortgage Loans with self employed mortgagors in excess of
_____% by aggregate Principal Balances; (k) will have a weighted average Credit
Bureau Risk Score of at least ____ and a weighted average DTI of no more than
_____%; (l) will have a concentration of Mortgage Loans secured by single family
residences of at least _____% by aggregate Principal Balances; and (n) the
concentration of Combined Loan-to-Value Ratios by aggregate Principal Balance
shall be the following (1) greater than 80% shall not exceed _____%; (2) greater
than _____% and less than _____% shall not exceed 18%; and (3) greater than 120%
and less than 125% shall not exceed _____%; (o) will not have a concentration in
the State of California in excess of _____% by aggregate Principal Balance; (p)
will not have a concentration of Mortgage Loans secured by condominiums in
excess of _____% and (q) except as modified by this clause (bj), such Subsequent
Mortgage Loan satisfies the representations and warranties set forth in this
Section 3.03. The Pooling and Servicing Agreement will provide that any of such
requirements may be waived or modified in any respect upon prior written consent
of the [Certificate Insurer] and certain other parties.
[(bk) The Mortgage Loans constitute "obligations principally secured
by an interest in real property" for the purpose of Code Section 860G(a)(3)(A)
and Treasury Regulations ss.1.860G-2 issued thereunder. For this purpose a
Mortgage Loan constitutes "obligations principally secured by an interest in
real property" if such Mortgage Loan satisfies either of the following:
(1) The 80-percent test. An obligation is
principally secured by an interest in real
property if the fair market value of the interest
in real property securing the obligation
A. was at least equal to 80 percent of the
adjusted issue price of the obligation at
the time the obligation was originated (or,
if later, but before the Closing Date or
Subsequent Transfer Date, as applicable, the
time the obligation was significantly
modified, as such term is defined in
Treasury Regulations ss. 1.860G-2,); or
B. is at least equal to 80 percent of the
adjusted issue price of the obligation on
the Closing Date or Subsequent Transfer
Date, as applicable.
For purposes of this paragraph (1), the fair market value of
the real property interest must be first reduced by the amount
of any lien on the real property interest that is senior to
the obligation being tested, and must be further reduced by a
proportionate amount of any lien that is in parity with the
obligation being tested, in each case before the percentages
set forth in (1)(A) and (1)(B) are determined. The adjusted
issue price of an obligation is its issue price plus the
amount of accrued original issue discount, if any, as of the
date of determination.
(2) Alternative test. An obligation is principally
secured by an interest in real property if
substantially all of the proceeds of the
obligation were used to acquire or to improve
or protect an interest in real property that, at
the origination date, is the only security for
the obligation. For purposes of this test, loan
guarantees made by the United States or any state
(or any political subdivision, agency, or
instrumentality of the United States or of any
state), or other third party credit enhancement
are not viewed as additional security for a
loan. An obligation is not considered to be
secured by property other than real property
solely because the obligor is personally liable
on the obligation. For this purpose only
"substantially all of the proceeds of the
obligation" can reasonably be concluded to mean
at least 80 percent of the gross proceeds.]
Section 3.04. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor hereby represents, warrants and covenants to the 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 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) Following the final Subsequent Transfer Date, the Depositor will
file a Form 8-K with the Commission containing a description of the Mortgage
Loans acquired by the Trust Fund as of their respective Cut-Off Dates.
(g) None of the execution and delivery of this Agreement, the purchase
of the Mortgage Loans from the 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.
(h) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement; and
(i) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that would materially and adversely affect its
performance hereunder.
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.
(b) With respect to any representation or warranty contained in
Sections 3.02 or 3.03 hereof that is made to the best of the Seller's knowledge,
if it is discovered by the Servicer, any Subservicer, the Trustee, the
[Certificate Insurer], the Depositor or any Certificateholder that the substance
of such representation and warranty was inaccurate as of the Closing Date (or in
the case of the Subsequent Mortgage Loans, as of the respective Subsequent
Transfer Date) and such inaccuracy materially and adversely affects the value of
the related Mortgage Loan or the interest of the [Certificate Insurer], then
notwithstanding the 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 Seller, the Depositor, 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 Seller's best knowledge), the party
discovering such breach shall give pursuant to Section 3.4 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 Seller shall (a) promptly cure such breach in all material
respects, (b) purchase such Mortgage Loan on the next succeeding Servicer
Remittance Date 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, plus the amount of
any unpaid and accrued Servicing Fees, plus the amount of any unreimbursed
Delinquency Interest Advances and 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 two 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 that such substitution will not constitute a
prohibited transaction for the purposes of the REMIC provisions of the Code or
cause the Upper Tier REMIC or the Lower Tier REMIC to fail to qualify as a REMIC
at any time any Certificates are outstanding].
(c) As to any Deleted Mortgage Loan for which the Seller substitutes a
Qualified Substitute Mortgage Loan or Loans, the Seller shall effect such
substitution by delivering to the Trustee a certification in the form attached
to the Pooling and Servicing Agreement as Exhibit G, executed by a Servicing
Officer and the documents described in Section 2.05(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 Collection Account pursuant to Section 2.4 of the Pooling and
Servicing Agreement (which certification shall be in the form of Exhibit G to
the Pooling and Servicing Agreement), the Trustee shall be required to release
to the Servicer for release to the Seller the related Trustee's Mortgage File
and shall be required to execute, without recourse, and deliver such instruments
of transfer furnished by the Seller as may be necessary to transfer such
Mortgage Loan to the Seller.
(d) Pursuant to the Pooling and Servicing Agreement, the Servicer
shall deposit in the Collection Account all payments received in connection with
such Qualified Substitute Mortgage Loan or Loans after the date of such
substitution, or related cut-off date, as applicable, set forth in the
certification delivered to the Trustee. Monthly Payments received with respect
to Qualified Substitute Mortgage Loans on or before the date of substitution or
cut- off date, as applicable, will be retained by the Seller. The Trust Fund
will own all payments received on the Deleted Mortgage Loan on or before the
date of substitution or cut-off date, as applicable, and the Seller shall
thereafter be entitled to retain all amounts subsequently received in respect of
such Deleted Mortgage Loan after the date of substitution or the related cut-off
date, as applicable. 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 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
Seller will remit to the Servicer and pursuant to the Pooling and Servicing
Agreement the Servicer will deposit into the Collection Account an amount equal
to the Substitution Adjustment, if any. For purposes of this paragraph, "cut-off
date" shall mean a date not later than the related date of substitution.
(e) It is understood and agreed that the obligations of the Seller 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 (other than the representation and warranty set
forth in Section 3.03(g) to the extent of any fines, penalties, costs or other
damages or losses except for the lost economic value of the Mortgage Loan, the
value of which the remedies provided for in Section 2.06 and this Section 3.05
shall be deemed adequate).
(f) Any cause of action against the Seller 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 Seller, (ii)
failure by the Seller to cure such breach or purchase or substitute such
Mortgage Loan as specified above, and (iii) demand upon the Seller 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 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, as defined in Section 860F of the Code or a tax on
contributions to the Upper Tier REMIC or Lower Tier REMIC under the REMIC
Provisions, or (ii) cause the Upper Tier REMIC or Lower Tier REMIC to fail to
qualify as an Upper Tier REMIC or Lower Tier 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 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 shall promptly (and in any event
within 5 days of the discovery) give written notice thereof to the other parties
and the [Certificate Insurer]. In connection therewith, the Seller shall
repurchase or substitute a Qualified Substitute Mortgage Loan for the affected
Mortgage Loan within 60 days of the earlier of such discovery by any of the
foregoing parties, or the Trustee's or the 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 Seller 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.
ARTICLE FOUR
THE SELLER
Section 4.01. COVENANTS OF THE SELLER. The Seller covenants to the
Depositor as follows:
(a) The 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 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 Seller's (or its agents')
control.
(c) The Seller hereby agrees to do all acts, transactions, and things
and to execute and deliver all agreements, documents, instruments, and papers by
and on behalf of the 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 4.02. MERGER OR CONSOLIDATION. The 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 Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
Seller shall be a party, or any Person succeeding to the business of the Seller,
shall be approved by the [Certificate Insurer] which approval shall not be
unreasonably withheld and in all events shall be the successor of the 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
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 Seller shall
promptly pay (or shall promptly reimburse the Depositor to the extent that the
Depositor shall have paid or otherwise incurred): (a) the fees and disbursements
of the Depositor's and the Underwriter's counsel; (b) the fees of Standard &
Poor's Ratings Group and Xxxxx'x Investors Service, Inc.; (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
(which fee shall equal l/33rd of l% of the amount of the Certificates) paid in
connection with the issuance of Certificates; (g) all of the initial expenses 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; and (h) all accountant's fees
incurred in connection with the accountant's review of the Prospectus Supplement
and information required to be filed in the Form 8-K pursuant to Sections
2.02(d)(viii) and (ix). 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 Seller, agrees 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 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 3.02(d). This indemnity
agreement will be in addition to any liability which the Seller may otherwise
have.
(ii) The Seller agrees to indemnify and to hold the
Depositor harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any
other costs, fees and expenses that the Depositor may sustain in any
way related to the failure of any of the Seller to perform its duties
in compliance with the terms of this Agreement. The Seller shall
immediately notify the Depositor if a claim is made by a third party
with respect to this Agreement, and the 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 Seller in
accordance with Section 3.6 of the Pooling and Servicing Agreement for
all amounts advanced by the Seller pursuant to the preceding sentence
except when the claim relates directly to the failure of the Seller to
perform its duties in compliance with the terms of this Agreement.
(b) The Depositor agrees to indemnify and hold harmless the Seller,
each of its directors and each person or entity who controls the 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
Seller or any such person or entity may become subject, under the Securities Act
or otherwise, and will reimburse the 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 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 Seller on the one hand, and the
Depositor on the other, the 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 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 Seller, and each person, if any who controls the Seller within the meaning of
Section 15 of the Securities Act, shall have the same rights to contribution as
the 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 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 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 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 [KPMG Peat Marwick], independent certified public accountants,
regarding the numerical information contained in the Prospectus Supplement under
the captions "Prepayment and Yield Considerations" and "Description of the
Mortgage Loans."
(c) 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
[ ] and the Underwriting Agreement
dated as of [ ] between the Depositor
and
[ ] 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 the Seller,
dated as of the Closing Date, in the form of Exhibit B hereto, and
attached thereto resolutions of the board of directors and a copy of
the charter and by-laws;
(iv) copy of the 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 Seller as to various
corporate matters substantially in the form attached hereto as Exhibit
C (it being agreed that the opinion shall expressly provide that the
Trustee shall be entitled to rely on the opinion);
(vii) opinions of counsel for the Seller, in forms acceptable
to the Depositor, its counsel, S&P and Moody's 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 Moody's (it being agreed that
such opinions shall expressly provide that the Trustee shall be
entitled to rely on such opinions);
(viii) a letter from Moody's that it has assigned a rating
of Aaa to the Class A Certificates;
(ix) a letter from S&P that it has assigned a rating
of AAA to the Class A Certificates;
(x) an opinion of counsel for the Trustee in form and
substance acceptable to the Depositor, its counsel Moody's and S&P (it
being agreed that the opinion shall expressly provide that the Seller
shall be entitled to rely on the opinion);
(xi) an opinion or opinions of counsel for the Servicer, in
form and substance acceptable to the Depositor, its counsel, Moody's
and S&P (it being agreed that the opinion shall expressly provide that
the Seller shall be entitled to rely on the opinion); and
(xii) an opinion or opinions of counsel for the [Certificate
Insurer], in each case in form and substance acceptable to the
Depositor, its counsel, Moody's and S&P (it being agreed that the
opinion shall expressly provide that the Seller shall be entitled to
rely on the opinion).
(d) The [Certificate Insurance Policy] shall have been duly executed,
delivered and issued with respect to the Certificates.
(e) 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.
(f) The 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 SELLER'S OBLIGATIONS. The obligations of
the 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 Seller shall have received a certificate
to that effect signed by an authorized officer of the Depositor.
(b) The Seller shall have received the following additional documents
and Certificates:
(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 Moody's 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) the Class B Certificate and the R Certificate
registered in accordance with a letter of instruction from the Seller;
(iv) an opinion of counsel for the Trustee in form and
substance acceptable to the Seller and its counsel;
(v) an opinion or opinions of counsel for the
[Certificate Insurer], in each case in form and substance acceptable
to the Seller and its counsel;
(vi) an opinion of the counsel for the Depositor as to
securities and tax matters; and
(vii) an opinion of the counsel for the Depositor as to
true sale matters.
(c) The Depositor shall have furnished the 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 Seller may
reasonably request.
Section 5.03. TERMINATION OF OBLIGATIONS. (a) The Depositor may
terminate its obligations hereunder by notice to the 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,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Seller, or for the winding up or liquidation
of the affairs of the Seller; (c) there shall have been the consent by the
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 Seller or of or relating to
substantially all of the property of the Seller; (d) any purchase and assumption
agreement with respect to the Seller or substantially all of the assets and
properties of the 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 inequity.
(b) The Seller may terminate its obligations hereunder by notice to
the Depositor 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 5.02
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, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Depositor, or for the
winding up or liquidation of the affairs of the Depositor; (c) there shall have
been the consent by the Depositor 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 Depositor or
of or relating to substantially all of the property of the Depositor; (d) any
purchase and assumption agreement with respect to the Depositor or substantially
all of the assets and properties of the Depositor shall have been entered into;
or (e) a Termination Event shall have occurred. The termination of the Seller's
obligations hereunder shall not terminate the Seller's rights hereunder or its
right to exercise any remedy available to it at law or inequity.
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
delivered in person 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 Preferred Securitization
Corporation, 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attention: Xxxx
X. Xxxxxxxxx, or to such other address as the Depositor may designate in writing
to the Seller and if to the Seller, addressed to the Seller at 0000 Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 Attention: Xxxx X. Xxxxxxxxx, or to
such other address as the 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 SELLER. The 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.
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 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 and the related property by the Seller to the Depositor as contemplated by
this Sale and Purchase Agreement be, and be treated for all purposes as, a sale
of the Mortgage Loans and the related property. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of the Mortgage
Loans and the related property by the Seller to the Depositor to secure a debt
or other obligation of the Seller. However, in the event that, notwithstanding
the intent of the parties, the Mortgage Loans and the related property are held
to continue to be property of the Seller then (a) this Sale and Purchase
Agreement shall also be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the New York Uniform Commercial Code; (b) the transfer of
the Mortgage Loans provided for herein shall be deemed to be a grant by the
Seller to the Depositor of a security interest in all of the Seller's 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 or its
respective agents 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 New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction; 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 Seller and the Depositor shall, to the extent consistent with this
Sale and Purchase Agreement, take such actions as may be necessary to ensure
that, if this Sale and Purchase 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. (a) This Agreement may be amended from time
to time by the 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 Counsel, at
the expense of the party requesting the change, delivered to the Trustee and the
[Certificate Insurer], adversely affect in any material respect the interests of
any Certificateholder (provided that no amendment shall be deemed to adversely
affect in any material respect the interest of any Certificateholder, and no
Opinion of Counsel to that effect shall be required, if the Person requesting
the amendment obtains a letter from Moody's and S&P stating that such amendment
would not result in the downgrading or withdrawal of the respective ratings then
assigned to the Certificates without regard to the [Certificate Insurance
Policy]); 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. The Seller shall
give prompt written notice to Moody's and S&P of any amendment made pursuant to
this Section 6.09 and shall promptly send copies of any such amendment to
Moody's and S&P.
(b) This Agreement may be amended from time to time by the 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
each of the Class RL and Class RM 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 Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC or cause a tax to be imposed on such
Upper-Tier REMIC or the Lower-Tier 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. The parties further agree that [ ] and each of
its directors and each person or entity who controls [ ] 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 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. (A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) OF THE STATE
OF NEW YORK.
(B) THE DEPOSITOR AND THE 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 FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S.
MAIL, POSTAGE PREPAID. THE DEPOSITOR AND THE 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 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 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.
Section 6.12. 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]
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.
PREFERRED SECURITIZATION CORPORATION
By:----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
PREFERRED CREDIT CORPORATION
By:-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer
[Signature Page to Sale and Purchase Agreement]
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.
PREFERRED SECURITIZATION CORPORATION
By:----------------------------------
Name:
Title:
PREFERRED CREDIT CORPORATION
By:------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Executive Officer
[Signature Page to Sale and Purchase Agreement]
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On ________, 1997 before me, the undersigned, a Notary Public in and
for said County and State, personally appeared _______________ personally known
to me (or proved to me on the basis of satisfactory evidence) to be a
_____________ of Preferred Securitization Corporation, a Delaware corporation,
the corporation that executed the within Sale and Purchase Agreement on behalf
of said corporation, and acknowledged to me that said corporation executed it.
----------------------------------
Notary Public
My Commission expires:
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On ______, 1997 before me, the undersigned, a Notary Public in and for
said County and State, personally appeared Xxxx X. Xxxxxxxxx, personally known
to me (or proved to me on the basis of satisfactory evidence) to be Chief
Executive Officer of Preferred Credit Corporation, the entity that executed the
within Sale and Purchase Agreement; on behalf of said corporation, and
acknowledged to me that said corporation executed it.
----------------------------------
Notary Public
My Commission expires:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
SEE ATTACHMENT TO INITIAL CERTIFICATION OF TRUSTEE
EXHIBIT B
FORM OF
OFFICER'S CERTIFICATE
PREFERRED CREDIT
CORPORATION
CERTIFICATE OF SECRETARY
The undersigned, Xxxxxx Xxxxxxxx, Secretary of Preferred Credit
Corporation, a California corporation (the "Seller"), DOES HEREBY CERTIFY that:
l. There has been no amendment to the Articles of Incorporation,
attached hereto as Exhibit 1, of the Seller.
2. There are no proceedings pending, or to the knowledge of the
undersigned contemplated, leading to the dissolution or liquidation of the
Seller.
3. The Seller is in good standing as a corporation in the State of
California.
4. To the best knowledge of the undersigned, after inquiry of the
officials of the Seller responsible for such matters, the Seller is not
delinquent in the payment of its franchise or any other tax due in any state.
5. The By-Laws attached as Exhibit 2 to this Certificate are the
accurate and complete By-Laws of the Seller in effect on the date hereof.
6. The resolutions attached as Exhibit 3 to this Certificate were duly
adopted by the Board of Directors of the Seller and such resolutions have not
been amended, modified, rescinded or revoked and are in full force and effect on
the date hereof, and are the only resolutions of said Board relating to the
Instruments referred to in paragraph 7 hereof.
7. Each of (a) the Pooling and Servicing Agreement, dated as of [ ]
(the "Pooling and Servicing Agreement"), among Preferred Securitization
Corporation, as depositor (the "Depositor"), Advanta Mortgage Corp. USA, as
servicer (the "Servicer"), the Seller, as seller, and [Bankers Trust Company,]
as trustee (the "Trustee"), (b) the Sale and Purchase Agreement, dated as of [
], between the Depositor and the Seller, (c) the Insurance Agreement, dated as
of [ ], among _____________________, as Insurer (the ["Certificate Insurer"]),
the Depositor, the Seller, the Servicer and the Trustee, and (d) the
Indemnification Agreement dated as of [ ], among the [Certificate Insurer],
[Credit Suisse First Boston Corporation,] the Seller and the Depositor, in each
case signed or executed, as the case may be, and delivered by the Seller, was
duly authorized and is in the form approved by one of the officers of the Seller
who executed such Agreements in accordance with the resolutions referred to
above.
8. The persons named below have been since __________, 1996 and are as
of the date hereof duly elected and qualified officers of the Seller, each
holding the respective office or offices set forth opposite their name below,
and their respective signatures are as set forth opposite their name below.
NAME POSITION SIGNATURE
Xxxx X. Xxxxxxxxx Chief Executive ------------------------
Officer
Xxxxxx Xxxxxxxx President ------------------------
and Secretary
9. The information set forth in the Mortgage Loan Schedule required to
be furnished pursuant to the Pooling and Servicing Agreement is true and correct
in all material respects.
10. All material agreements, contracts, instruments and indentures to
which the Seller is a party or is bound in connection with the purchase, sale,
transfer, servicing, origination and securitization of mortgage loans and the
issuance and sale of mortgage loan asset-backed certificates have been fully
identified to our legal counsel, Stroock & Stroock & Xxxxx LLP, New York, New
York ("Stroock"), by the appropriate officers of the Seller.
11. All orders, judgments, writs, injunctions and decrees of any court
or governmental agency or body or other tribunal having jurisdiction over the
Seller in connection with the purchase, sale, transfer, servicing, origination
and securitization of mortgage loans and the issuance and sale of mortgage loan
asset-backed certificates have been fully identified to Xxxxx Xxxxxxxxxx by the
appropriate officers of the Seller.
12. Capitalized terms used herein without definition shall have the
meaning ascribed thereto in the Pooling and Servicing Agreement.
WITNESS my hand this __th day of ___________, 1997.
PREFERRED CREDIT CORPORATION
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Secretary
EXHIBIT C
FORM OF
OPINION OF COUNSEL
TO SELLER
March ___, 1997
To the Addressees Listed
on the Attached Annex A
Re: Preferred Credit Asset-Backed
CERTIFICATES, SERIES 199_-
Ladies and Gentlemen:
I have acted as counsel to Preferred Credit Corporation, a California
corporation (the "Seller"), in connection with the execution and delivery of the
following documents:
(i) The Sale and Purchase Agreement, dated as of
[ ] (the "Sale Agreement"), between the
Seller and Preferred Securitization Corporation (the
"Depositor");
(ii) the Pooling and Servicing Agreement, dated as of [ ] (the
"Pooling and Servicing Agreement"), among the Depositor, the Seller, as
seller, Advanta Mortgage Corp. USA, as servicer (the "Servicer"), and
[Bankers Trust Company,] as trustee (the "Trustee");
(iii) the Insurance Agreement, dated as of [ ] (the "Insurance
Agreement"), among [[MBIA] Insurance Corporation ("[MBIA]"),] the
Depositor, the Seller, the Servicer and the Trustee; and
(iv) the Indemnification Agreement, dated as of
[ ] (the "Indemnification Agreement"), among
[[MBIA],] the Seller, the Servicer and [Credit Suisse First Boston
Corporation.]
Capitalized terms used herein, but not defined, shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
I have examined executed copies of the Sale Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement and the Indemnification Agreement
(collectively, the "Documents"). I have also examined a copy of the Class A
Certificates, the Class B Certificates and the Residual Certificates (the
"CERTIFICATES") and the Prospectus Supplement dated [ ] with respect to the
Class A Certificates (the "PROSPECTUS SUPPLEMENT").
In addition, I have examined originals or photostatic or certified
copies of all such corporate records of the Seller, and such certificates of
public officials, certificates of corporate officers, and other documents, and
such questions of law, as I have deemed relevant and necessary as a basis for
the opinions hereinafter expressed. As to certain issues of fact material to the
opinions expressed herein, I have, with your consent, relied to the extent I
deemed appropriate upon certificates and representations of officers of the
Seller. In making my examinations and rendering the opinions herein expressed, I
have made the following assumptions:
(1) the corporate power of each party (other than the
Seller) to enter into and perform all of its
obligations under each of the Documents;
(2) the due authorization, execution and delivery of the
Documents by all parties thereto (other than the
Seller) and the validity and binding effect on all
parties (other than the Seller) of each of the
Documents;
(3) the genuineness of all signatures; and
(4) the authenticity of all documents submitted to me
as originals and the conformity to originals of
all documents submitted to me as copies.
The opinion expressed in paragraph 2 below with respect to the
enforceability of the Documents is subject to the following additional
qualifications:
(a) The effect of bankruptcy, insolvency, reorganization, moratorium,
receivership, or other similar laws of general applicability relating to or
affecting creditors' rights generally.
(b) The application of general principles of equity, including, but
not limited to, the remedy of specific performance (regardless of whether
enforceability is considered in a proceeding in equity or at law).
As to Paragraph 5 below, I have assumed that the parties to the Sale
Agreement and the Pooling and Servicing Agreement have performed and will
perform their respective obligations thereunder, including the delivery to the
Trustee, or its agent, of the Mortgage Notes, properly endorsed, and
fully-executed assignments in proper, recordable form from the Seller to the
Trustee of the Mortgages following payment of legal and sufficient consideration
therefor, without any such Mortgage having been satisfied or released, or the
Mortgage Note discharged, and without the Trustee having actual or constructive
notice of the existence of any claim, lien, charge, mortgage, security interest,
encumbrance or right of the Seller or the Depositor, or creditors of the Seller
or the Depositor or others. Further I have assumed the absence of any defense
against enforcement of, or right of offset against, each such Mortgage Note and
the related Mortgage. I have undertaken no independent review of the Mortgage
Loans, including the Mortgage Notes and the Mortgages, and have relied solely
upon the representations of the Seller that it has title to the Mortgage Loans
and that the Mortgage Loans are not subject to any liens at the time of their
sale to the Trustee.
I am admitted to the Bar of the State of California, and express no
opinion as to the laws of any other jurisdiction except as to matters that are
governed by the federal law. All opinions expressed herein are based on laws,
regulations and policy guidelines currently in force and may be affected by
future regulations. Furthermore, no opinion is expressed herein regarding the
applicable state Blue Sky, legal investment or real estate syndication laws.
Based upon the foregoing and subject to the last paragraph hereof, I
am of the opinion that:
1. The Seller is a corporation duly incorporated, validly existing and
in good standing under the laws of the state of California and is qualified to
do business in each state necessary to enable it to perform its obligations
under the Documents. The Seller has the power and authority to execute, deliver
and perform its obligations under the Documents.
2. Each of the Documents has been duly authorized, executed and
delivered by the Seller and each constitutes a valid, legal and binding
agreement of the Seller and is enforceable against the Seller in accordance with
their terms.
3. No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required under
federal laws, including, without limitation, the Securities Act of 1933, as
amended, or the laws of the State of California, for the execution, delivery and
performance by the Seller of the Documents, or the offer, issuance, sale or
delivery of the Certificates, except such as have been obtained.
4. Neither the sale of the Mortgage Loans to the Trust Fund, the
issuance or sale of the Certificates, nor the execution, delivery or performance
by the Seller of the Documents, conflicts or will conflict with, or results or
will result in a breach of, or constitutes or will constitute a default under
(i) any term or provision of the certificate of incorporation or by- laws of the
Seller, (ii) any term or provision of any material agreement, contract,
instrument or indenture to which the Seller is a party or is bound which has
been identified to me by the appropriate officers of the Seller, or (iii) any
law, rule or regulation of the State of California or the federal government.
5. Immediately upon the receipt of the Mortgage Notes and the
accompanying Mortgages by the Trustee, and the receipt by the Seller of legal
and sufficient consideration therefor, the Trustee shall, pursuant to the laws
of the State of California, be vested with good and indefeasible title to, and
shall be the sole owner of, and shall obtain all right, title and interest of
the Seller in and to, each Mortgage Loan, free and clear of any claim, lien,
charge, mortgage, security interest, encumbrance or rights of the Seller, EXCEPT
THAT until such time as assignments of mortgage are recorded in the name of the
Trustee in the appropriate jurisdictions (x) the Trustee may not, in certain
jurisdictions, be independently able to enforce the Mortgage against the related
Mortgaged Property or the related Mortgagor, (y) the Seller could record an
assignment of a Mortgage in the name of a third party or record a discharge and
satisfaction of a Mortgage and (z) any notices which may be given to the record
holder of a Mortgage would be given to the Seller.
6. To the best of my knowledge, following due inquiry made of the
appropriate officers of the Seller, there are no actions, proceedings or
investigations pending or, to my knowledge, threatened against the Seller before
any court, governmental agency or body or other tribunal (a) asserting the
invalidity of the Documents, (b) seeking to prevent the consummation of any of
the transactions contemplated by the Documents, (c) which would materially and
adversely affect the performance by the Seller of obligations under, or the
validity or enforceability of the Documents.
I have furnished this opinion as counsel to the Seller and it is
solely for the benefit of the addressees hereto.
Very truly yours,
ANNEX A
[Underwriter]
Preferred Securitization Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Advanta Mortgage Corp. USA
00000 Xxxx Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
[Certificate Isurer]
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
