THE PRUDENTIAL HOME MORTGAGE SECURITIES COMPANY, INC.
(Seller)
and
THE PRUDENTIAL HOME MORTGAGE COMPANY, INC.
(Servicer)
and
FIRST TRUST NATIONAL ASSOCIATION
(Trustee)
___________________________
AMENDMENT NO. 2
Dated as of November 10, 1995
TO
POOLING AND SERVICING AGREEMENT
DATED AS OF JULY 28, 1994
___________________________
$210,828,990.10
Mortgage Pass-Through Certificates
Series 1994-25
MORTGAGE PASS-THROUGH CERTIFICATE PURCHASE AGREEMENT
This Mortgage Pass-Through Certificate Purchase Agreement (the "Agreement")
dated as of November 10, 1995, is between The Prudential Home Mortgage Company,
Inc., a New Jersey corporation ("PHMC") and The Prudential Home Mortgage
Securities Company, Inc., a Delaware corporation ("PHMSC"). PHMC agrees to
sell, and PHMSC agrees to purchase, The Prudential Home Mortgage Securities
Company, Inc., Mortgage Pass-Through Certificates, Series 1994-25, Class A-9
(the "Class A-9 Certificates") described in the Pooling and Servicing Agreement
dated as of July 28, 1994, as amended by Amendment No. 1 dated as of February
28, 1995 and to be further amended by Amendment No. 2 to be dated as of
November 10, 1995 (collectively, the "Pooling and Servicing Agreement"), among
PHMSC, as seller, The Prudential Home Mortgage Company, Inc., as servicer, and
First Trust National Association, as trustee (the "Trustee").
1. Purchase Price; Purchase and Sale. The purchase price for the Class A-9
Certificates shall be $1,245,518.94 (the "Purchase Price") payable by PHMSC to
PHMC on November 10, 1995 in immediately available funds.
Upon payment of the Purchase Price, PHMC shall transfer, assign, set over and
otherwise convey to PHMSC all the right, title and interest of PHMC in and to
the Class A-9 Certificates.
2. Representations and Warranties. PHMC hereby represents and warrants to
PHMSC that upon payment by PHMSC for the Class A-9 Certificates, and delivery
to PHMSC of the Class A-9 Certificates, PHMSC will acquire title to the Class
A-9 Certificates free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest except to the extent
permitted by the Pooling and Servicing Agreement.
3. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. This Agreement may be
signed in any number of counterparts, each of which shall be deemed an
original, which taken together shall constitute one and the same instrument.
This Agreement shall bind and inure to the benefit of and be enforceable by
PHMC and PHMSC and their respective successors and assigns.
IN WITNESS WHEREOF, PHMC and PHMSC have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
THE PRUDENTIAL HOME MORTGAGE COMPANY, INC.
By: Name: M. Xxxxxxx Xxxx
Title: Vice President
THE PRUDENTIAL HOME MORTGAGE SECURITIES COMPANY, INC.
By: Name: M. Xxxxxxx Xxxx
Title: Vice President
THE PRUDENTIAL HOME MORTGAGE SECURITIES COMPANY, INC.
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1994-25, CLASS A-9
Cross Receipt
November 10, 1995
Reference is made to the mortgage pass-through certificate purchase agreement
dated November 10, 1995 (the "Purchase Agreement") between The Prudential Home
Mortgage Company, Inc. ("PHMC") and The Prudential Home Mortgage Securities
Company, Inc. ("PHMSC") relating to the Mortgage Pass-Through Certificates,
Series 1994-25, Class A-9. Reference is further made to the Pooling and
Servicing Agreement dated as of July 28, 1994, as amended by Amendment No. 1
dated as of February 28, 1995 and to be further amended by Amendment No. 2 to
be dated as of November 10, 1995 (the "Agreement"), by and among PHMSC, The
Prudential Home Mortgage Company, Inc., as servicer, and First Trust National
Association, as trustee, relating to The Prudential Home Mortgage Securities
Company, Inc., Mortgage Pass-Through Certificates, Series 1994-25.
1. PHMSC hereby acknowledges receipt of the Series 1994-25, Class A-9
Certificates purchased by PHMSC pursuant to the Purchase Agreement and
representing a beneficial ownership interest in the Trust Estate established
pursuant to the Agreement.
The Prudential Home Mortgage Securities Company, Inc.
By: Name: M. Xxxxxxx Xxxx
Title: Vice President
2. PHMC hereby acknowledges receipt from PHMSC of a check payable in same-
day funds or a wire transfer in immediately available funds in the amount of
$1,245,518.94 representing payment in full of the purchase price for the Class
A-9 Certificates, as provided in the Purchase Agreement.
THE PRUDENTIAL HOME MORTGAGE COMPANY, INC.
By: Name: M. Xxxxxxx Xxxx
Title: Vice President
THE PRUDENTIAL HOME MORTGAGE SECURITIES COMPANY, INC.
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1994-25, CLASS A-9
TRANSFEREE'S LETTER
November 10, 1995
First Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
The undersigned (the "Purchaser") proposes to purchase The Prudential Home
Mortgage Securities Company, Inc. Mortgage Pass-Through Certificates, Series
1994-25, Class A-9 Certificates (the "Class A-9 Certificates"). In doing so,
the Purchaser hereby acknowledges and agrees as follows:
Section 1. Definitions. Each capitalized term used herein and not otherwise
defined herein shall have the meaning ascribed to it in the Pooling and
Servicing Agreement, dated as of July 28, 1994 (the "Pooling and Servicing
Agreement"), among The Prudential Home Mortgage Securities Company, Inc., as
seller ("PHMSC"), The Prudential Home Mortgage Company, Inc., as servicer (the
"Servicer"), and First Trust National Association, as trustee (the "Trustee"),
of The Prudential Home Mortgage Securities Company, Inc. Mortgage Pass-Through
Certificates, Series 1994-25.
Section 2. Representation and Warranties of the Purchaser. In connection with
the proposed transfer, the Purchaser represents and warrants to PHMSC and the
Trustee that:
(a) The Purchaser is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which the Purchaser is
organized, is authorized to invest in the Class A-9 Certificates, and to enter
into this Agreement, and duly executed and delivered this Agreement.
(b) The Purchaser is acquiring the Class A-9 Certificates for its own
account as principal and not with a view to the distribution thereof, in whole
or in part.
(c) The Purchaser has knowledge of financial and business matters and is
capable of evaluating the merits and risks of an investment in the Class A-9
Certificates; the Purchaser has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Purchaser is able to bear the economic risk of an investment in the Class A-9
Certificates and can afford a complete loss of such investment.
(d) The Purchaser confirms that it has undertaken its own independent
analysis of the investment in the Class A-9 Certificates. The Purchaser will
not use or disclose any information it receives in connection with its purchase
of the Class A-9 Certificates other than in connection with a subsequent sale
of Class A-9 Certificates.
(e) The Purchaser (i) is not an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended, ("ERISA") or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code") or any governmental plan, as defined in
Section 3(32) of ERISA, subject to any federal, state or local law ("Similar
Law") which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (collectively, a "Plan"), an agent acting on behalf of a
Plan, or a person utilizing the assets of a Plan or (ii) has provided a
"Benefit Plan Opinion" satisfactory to PHMSC and the Trustee of the Trust
Estate. A Benefit Plan Opinion is an opinion of counsel to the effect that the
proposed transfer will not (a) cause the assets of the Trust Estate to be
regarded as "plan assets" and subject to the fiduciary responsibility
provisions of ERISA or the prohibited transaction provisions of the Code or
Similar Law, (b) give rise to a fiduciary duty under ERISA, Section 4975 of the
Code or Similar Law on the part of PHMSC, the Servicer or the Trustee with
respect to any Plan or (c) constitute a prohibited transaction under ERISA or
Section 4975 of the Code or Similar Law.
(f) If the Purchaser is a depository institution subject to the
jurisdiction of the Office of the Comptroller of the Currency ("OCC"), the
Board of Governors of the Federal Reserve System ("FRB"), the Federal Deposit
Insurance Corporation ("FDIC"), the Office of Thrift Supervision ("OTS") or the
National Credit Union Administration ("NCUA"), the Purchaser has reviewed the
"Supervisory Policy Statement on Securities Activities" dated January 28, 1992
of the Federal Financial Institutions Examination Council as adopted by the
OCC, FRB, FDIC, OTS and NCUA (with modifications as applicable), as
appropriate, other applicable investment authority, rules, supervisory policies
and guidelines of these agencies and, to the extent appropriate, state banking
authorities and has concluded that its purchase of the Class A-9 Certificates
is in compliance therewith.
Section 3. Transfer of Class A-9 Certificates.
(a) The Purchaser understands that the Class A-9 Certificates have not
been registered under the Securities Act of 1933 (the "Act") or any state
securities laws and that no transfer may be made unless the Class A-9
Certificates are registered under the Act and applicable state law or unless an
exemption from registration is available. The Purchaser further understands
that neither PHMSC nor the Trustee is under any obligation to register the
Class A-9 Certificates or make an exemption available. In the event that such
a transfer is to be made in reliance upon an exemption from the Act or
applicable state securities laws, (i) the Trustee shall require, in order to
assure compliance with such laws, that the Certificateholder's prospective
transferee each certify to PHMSC and the Trustee as to the factual basis for
the registration or qualification exemption relied upon, and (ii) unless the
transferee is a "Qualified Institutional Buyer" within the meaning of Rule 144A
of the Act, the Trustee or PHMSC may, if such transfer is made within three
years from the Closing Date, require an Opinion of Counsel that such transfer
may be made pursuant to an exemption from the Act and state securities laws,
which Opinion of Counsel shall not be an expense of the Trustee or PHMSC. Any
such Certificateholder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee and PHMSC against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
(b) No transfer of a Class A-9 Certificate shall be made unless the
transferee provides PHMSC and the Trustee with a Transferee's Letter,
substantially in the form of this Agreement.
(c) The Purchaser acknowledges that its Class A-9 Certificates bear a
legend setting forth the applicable restrictions on transfer.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to the validly
executed by its duly authorized representative as of the day and the year first
above written.
THE PRUDENTIAL HOME MORTGAGE SECURITIES COMPANY, INC.
By: Name: M. Xxxxxxx Xxxx
Title: Vice President
THE PRUDENTIAL HOME MORTGAGE SECURITIES COMPANY, INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1994-25, CLASS A-9
SERVICING OFFICER'S CERTIFICATE
The undersigned, an Officer of The Prudential Home Mortgage Company, Inc. (the
"Servicer"), does hereby certify that:
1. The Servicer has, at all times, acted in compliance with the terms of the
Pooling and Servicing Agreement, dated as of July 28, 1994, as amended by
Amendment No. 1 dated as of February 28, 1995 and as further amended by
Amendment No. 2 dated as of November 10, 1995 (collectively, the "Pooling and
Servicing Agreement"), among The Prudential Home Mortgage Securities Company,
Inc., as seller, the Servicer, and First Trust National Association, as
trustee, and has done nothing to prevent the Trust Estate from qualifying as a
REMIC for federal income tax purposes.
2. All capitalized terms used herein without definition have the meanings
assigned to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has signed his name.
Dated: November 10, 1995
Name:
Title:
AMENDMENT NO. 2, dated as of November 10, 1995, ("Amendment"), to the Pooling
and Servicing Agreement dated as of July 28, 1994 (the "Agreement") among THE
PRUDENTIAL HOME MORTGAGE SECURITIES COMPANY, INC., as seller (the "Seller"),
THE PRUDENTIAL HOME MORTGAGE COMPANY, INC., as servicer (the "Servicer"), and
FIRST TRUST NATIONAL ASSOCIATION, as trustee (the "Trustee").
WHEREAS, Section 10.01 of the Agreement provides, among other things, that the
Seller, the Servicer and the Trustee may amend the Agreement, subject to
certain provisos, with the consent of the Holders of Certificates evidencing
Percentage Interests aggregating not less than 66-2/3% of each Class or
Subclass of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Agreement or modifying in any manner the rights of the Holders of
Certificates of such Class or Subclass.
WHEREAS, the Seller, the Servicer and the Trustee desire to amend the
Agreement, as set forth in this Amendment and have obtained the consent of the
Holder of 100% Percentage Interest of the Class A-9 Certificates and the
Opinion of Counsel required by Section 10.01 in connection with such amendment.
NOW THEREFORE, in consideration of the mutual agreements herein contained, the
Seller, the Servicer and the Trustee agree as follows:
All terms used in this Amendment which are defined in the Agreement, either
directly or by reference therein, have the meanings assigned to them therein,
except to the extent such terms are defined or modified in this Amendment or
the context clearly requires otherwise.
Section 1. Amendment of Section 1.01. Article I of the Agreement is hereby
amended as follows:
(a) The definition of "Denomination" is amended to read as follows:
Denomination: The amount, if any, specified on the face of each Certificate
(other than a Class A-9 Certificate) representing the principal portion of the
Cut-Off Date Aggregate Principal Balance evidenced by such Certificate. As to
a Class A-9 Certificate, the amount specified on the face of such Certificate
representing the portion of the Initial Class A-9 Notional Amount evidenced by
such Certificate.
(b) A new definition "Initial Class A-9 Notional Amount" is added to read as
follows:
Initial Class A-9 Notional Amount: The Initial Class A-9 Notional Amount as
set forth in Section 11.20.
(c) The second sentence of the definition of "Percentage Interest" is
amended to read as follows:
With respect to a Class A-9 Certificate, the undivided percentage interest
obtained by dividing the initial notional amount of such Certificate by the
Initial Class A-9 Notional Amount.
Section 2. Amendment of Section 5.01(a). The first sentence of Section
5.01(a) of the Agreement is hereby amended to read as follows:
(a) The Class A, Class AP, Class M and Class B Certificates shall be issued
only in minimum denominations of a Single Certificate and, except for the Class
A-9, Class AP, Class A-R and Class B Certificates, integral multiples of $1,000
(or $1 in the case of the Class B Certificates and any amount in the case of
the Class A-9 Certificates and the Class AP Certificates) in excess thereof
(except, if necessary, for one Certificate of each of the Class A, Class M and
Class B Certificates) (other than the Class A-9 and Class A- R Certificates)
that evidences one Single Certificate plus such additional principal portion as
is required in order for all Certificates of such Class or Subclass to equal
the aggregate Original Class A Subclass Principal Balance of such Subclass or
the Original Class B Principal Balance or the Original Class M Principal
Balance, as the case may be), and shall be substantially in the respective
forms set forth as Exhibits X-0, X-0, X-0, X-0, X-0, X-0, X-0, X-0, X-0, X-X,
X, X, X-0 and D (reverse side of Certificates) hereto.
Section 3. Amendment of Section 5.02(b) and 5.02(c). Sections 5.02(b) and
5.02(c) of the Agreement are hereby amended to read as follows:
(b) No transfer of a Class B Certificate shall be made unless the
registration requirements of the Securities Act of 1933, as amended, and any
applicable State securities laws are complied with, or such transfer is exempt
from the registration requirements under said Act and laws. In the event that
a transfer is to be made in reliance upon an exemption from said Act or laws,
(i) unless such transfer is made in reliance on Rule 144A, the Trustee or the
Seller may, if such transfer is to be made within three years from the date of
the initial sale of Certificates, require a Class B Certificateholder to
deliver a written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Trustee and the Seller, to the effect that such transfer
may be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from said Act and laws or is being made pursuant to said
Act and laws, which Opinion of Counsel shall not be an expense of the Trustee,
the Seller or the Servicer, and (ii) the Trustee shall require the transferee
to execute an investment letter in the form of Exhibit J hereto certifying to
the Seller and the Trustee the facts surrounding such transfer, which
investment letter shall not be an expense of the Trustee, the Seller or the
Servicer. The Holder of a Class B Certificate desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trustee, the Seller, the
Servicer and any Paying Agent acting on behalf of the Trustee against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws. Neither the Seller nor the
Trustee is under an obligation to register the Class B Certificates under said
Act or any other securities law.
(c) No transfer of a Class M or Class B Certificate shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Class Class B Certificate in the form of Exhibit J hereto,
or, in the case of such Class M Certificate, in the form of Exhibit K hereto,
to the effect that such transferee is not an employee benefit plan subject to
the fiduciary responsibility provisions of ERISA, or a governmental plan as
defined in Section 3(32) of ERISA or Code Section 4975 subject to any federal,
state or local law ("Similar Law") which is to a material extent, similar to
the foregoing provisions of ERISA or the Code (collectively, a "Plan") and is
not a person acting on behalf of any such Plan or using the assets of any such
Plan to effect such purchases, which representation letter shall not be an
expense of the Trustee, the Seller or the Servicer, or (ii) in the case of any
such Class M or Class B Certificate presented for registration in the name of a
Plan, or a trustee of any such Plan, an Opinion of Counsel satisfactory to the
Trustee and the Seller to the effect that the purchase or holding of such Class
M or Class B Certificate will not result in the assets of the Trust Estate
being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code or Similar Law and will not subject the
Trustee, the Seller or the Servicer to any obligation in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Seller or the Servicer. The Class M and Class B
Certificates shall bear a legend referring to the foregoing restrictions
contained in this paragraph and in the case of the Class B Certificates, the
preceding paragraph.
Section 4. Amendment of Section 11.16. Section 11.16 of the Agreement is
hereby amended to read as follows:
Section 11.16. Wire Transfer Eligibility. With respect to the Certificates
(other than the Class A-6, Class A-9, Class A-R, Class AP and Class M
Certificates), the minimum Denomination eligible for wire transfer on each
Distribution Date is $5,000,000.00. Thr minimum Denomination eligible for wire
transfer on each Distribution Date for the Class A-6, Class AP and Class M
Certificates is 100% Percentage Interest. With respect to the Class A-9
Certificates, the minimum Percentage Interest eligible for wire transfer on
each Distribution Date is 25% Percentage Interest. The Class A-R Certificate
is not eligible for wire transfer.
Section 5. Amendment of Section 11.17. Section 11.17 of the Agreement is
hereby amended to read as follows:
Section 11.17. Single Certificate. A Single Certificate for each Subclass of
Class A Certificates (other than the Class A-9 and Class A-R Certificates), the
Class AP Certificates, the Class M Certificates and the Class B Certificates
represents a $100,000 Denomination. A Single Certificate for the Class A-R
Certificate represents $1,000 Denomination. A Single Certificate for the Class
A-9 Certificates represents a $50,000,000 Initial Class A-9 Notional Amount.
Section 6. Addition of Section 11.20. A new Section 11.20 is added to read
as follows:
Section 11.20. Initial Class A-9 Notional Amount. The Initial Class A-9
Notional Amount is $159,187,905.00.
Section 7. Amendment of Exhibit A-9. Exhibit A-9 to the Agreement is hereby
amended as attached hereto as Exhibit A.
Section 8. Amendment of Exhibit J. Exhibit J to the Agreement is hereby
amended as attached hereto as Exhibit B.
Section 9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of such counterparts shall together constitute but one and the same
instrument.
Section 10. Ratification of Agreement. Except as modified and expressly
amended by this Agreement, the Agreement is in all respects ratified and
confirmed, and all the terms, provisions and conditions thereof shall be and
remain in full force and effect.
Section 11. Governing Law. This Amendment shall be construed in
accordance with the laws of the State of New York (without regard to conflicts
of laws principles), and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
THE PRUDENTIAL HOME MORTGAGE
SECURITIES COMPANY, INC.
as Seller
By: Name: M. Xxxxxxx Xxxx
Title: Vice President
THE PRUDENTIAL HOME MORTGAGE
COMPANY, INC.
as Servicer
By: Name: M. Xxxxxxx Xxxx
Title: Vice President
FIRST TRUST NATIONAL ASSOCIATION
as Trustee
By: Name:
Title:
Attest:
By: Name:
Title:
STATE OF NEW YORK)
ss.:
COUNTY OF NEW YORK)
On this 10th day of November, 1995, before me, a notary public in and for the
State of New York, personally appeared M. Xxxxxxx Xxxx, known to me who, being
by me duly sworn, did depose and say that she resides at Brookeville, Maryland;
that she is a Vice President of The Prudential Home Mortgage Securities
Company, Inc., a Delaware corporation, one of the parties that executed the
foregoing instrument; and that she signed her name thereto by order of the
Board of Directors of said corporation.
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK)
ss.:
COUNTY OF NEW YORK)
On this 10th day of November, 1995, before me, a notary public in and for the
State of New York, personally appeared M. Xxxxxxx Xxxx, known to me who, being
by me duly sworn, did depose and say that she resides at Brookeville, Maryland;
that she is a Vice President of The Prudential Home Mortgage Company, Inc., a
New Jersey corporation, one of the parties that executed the foregoing
instrument; and that she signed her name thereto by order of the Board of
Directors of said corporation.
Notary Public
[NOTARIAL SEAL]
STATE OF
ss.:
COUNTY OF
On this _____ day of November, 1995 before me, a notary public in and for the
State of , personally appeared , known to me who,
being by me duly sworn, did depose and say that she resides at
; that she is the ______________ of First Trust National Association, a
national banking association, one of the parties that executed the foregoing
instrument; and that she signed her name thereto by order of the Board of
Directors of said association.
Notary Public
[NOTARIAL SEAL]
STATE OF
ss.:
COUNTY OF
On this ____ day of November, 1995 before me, a notary public in and for the
State of , personally appeared , known to me who, being
by me duly sworn, did depose and say that she resides at ; that
she is the ______________ of First Trust National Association, a national
banking association, one of the parties that executed the foregoing instrument;
and that she signed her name thereto by order of the Board of Directors of said
association.
Notary Public
[NOTARIAL SEAL]
