EXHIBIT 4.2
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into on July 15, 2004 by and
between MID-STATE CAPITAL CORPORATION, a Delaware corporation (the "Seller") and
MID-STATE CAPITAL CORPORATION 2004-1 TRUST (the "Issuer" or the "Purchaser"), a
Delaware statutory trust. Capitalized terms used but not defined herein shall
have the meaning ascribed to them in the Indenture or the Trust Agreement, each
as defined below.
W I T N E S S E T H :
WHEREAS, the Purchaser is a statutory trust created under the
Delaware Statutory Trust Act by a trust agreement dated July 13, 2004 (the
"Trust Agreement"), as amended from time to time, between the Seller and
Wilmington Trust Company (in its capacity as trustee thereunder, the "Owner
Trustee");
WHEREAS, Xxx Xxxxxx Homes, Inc., and its affiliates, Dream Homes,
Inc., Dream Homes USA, Inc., Xxxxxxxxxx Homes, Inc. and Crestline Homes, Inc.
(collectively, "Xxx Xxxxxx Homes"), are in the business of supervising the
construction and selling partially-finished homes, generally on a deferred,
installment sale basis pursuant to a building or installment sale contract
between Xxx Xxxxxx Homes and the purchaser of the home, and Xxx Xxxxxx Homes
receives from each Obligor an Account Note and a related Mortgage. All Account
Notes together with the related Mortgages are collectively referred to herein as
the "Accounts;"
WHEREAS, Xxxxxx Mortgage Company ("Xxxxxx Mortgage") is in the
business of financing homes the construction of which is supervised by Xxx
Xxxxxx Homes, Inc. and its affiliates and purchasing and originating residential
mortgage loans ("Mortgage Loans," and together with the Accounts, the "Mortgage
Assets");
WHEREAS, Xxx Xxxxxx Homes and Xxxxxx Mortgage, as part of the
ordinary course of their businesses, assigned to Mid-State Homes, Inc.
("Mid-State"), without recourse, all of their right, title and interest in each
of the Mortgage Assets;
WHEREAS, Mid-State, as part of the ordinary course of its business,
assigned to Mid-State Trust IX, a Delaware statutory trust ("Trust IX"), without
recourse, all of its right, title and interest in each of the Mortgage Assets,
including all of its interests in the related Account Note or Mortgage Note, as
applicable, and the related Mortgage;
WHEREAS, Trust IX sold and assigned to the Seller, without recourse,
all of its right, title and interest in each of the Mortgage Assets, including
all of its interests in the related Account Note or Mortgage Note, as
applicable, and the related Mortgage;
WHEREAS, the Seller, as holder of 100% ownership interest in the
Purchaser and in furtherance of the issuance of the Notes as described below,
desires to sell and assign all of its right, title and interest in and to the
Mortgage Assets listed on the Schedule of Mortgage Assets (the "Mortgage
Collateral") and the related Mortgage Asset Files, as defined below, to the
Purchaser and the Purchaser desires to purchase all the Seller's right, title
and interest in and to the Mortgage Collateral and the related Mortgage Asset
Files; and
WHEREAS, the Issuer will issue 6.005% Asset-Backed Notes, Class A,
6.497% Asset-Backed Notes, Class M-1, 8.114% Asset-Backed Notes, Class M-2 and
8.900% Asset-Backed Notes, Class B (collectively, the "Notes"), secured by the
mortgage assets and other collateral, as more particularly set forth in the
Indenture, dated July 15, 2004 (the "Indenture"), between the Issuer and The
Bank of New York, as trustee (the "Indenture Trustee");
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereby do agree as follows:
1. Purchase and Sale of Mortgage Collateral; Assignment of Rights
Under the Mortgage Asset Sale Agreement. Subject to the terms and conditions set
forth herein, the Seller in its capacity as such agrees to sell and assign, and
hereby does sell and assign, to the Purchaser all of its right, title and
interest in and to (i) the Mortgage Collateral, including all payments received
in respect of the Mortgage Assets comprising the Mortgage Collateral due after
the Cut-off Date and all payments in respect of such Mortgage Assets due prior
to the Cut-off Date but received after the Cut-off Date; (ii) all documents and
instruments related to the Mortgage Assets comprising the Mortgage Collateral as
specified in Section 3 hereof (the "Mortgage Asset Files") and (iii) the
Mortgage Asset Sale Agreement, dated July 15, 2004, among the Seller, Trust IX
and Mid-State.
The Purchaser agrees to purchase, and does hereby purchase from the
Seller, in exchange for the Notes, all of the Seller's right, title and interest
in and to (i) the Mortgage Collateral, including all payments in respect of the
Mortgage Assets comprising the Mortgage Collateral due after the Cut-off Date
and all payments in respect of such Mortgage Assets due prior to the Cut-off
Date but received after the Cut-off Date; (ii) the Mortgage Asset Files and
(iii) the Mortgage Asset Sale Agreement. The Purchaser agrees, on behalf of the
Issuer, to cause the deposit, from the net proceeds of the sale of the Notes, of
an amount equal to all payments due after the Cut-off Date and received on or
before five Business Days prior to the Closing Date in respect of the Mortgage
Collateral into the Collection Account on the Closing Date. All payments
received in respect of the Mortgage Collateral subsequent to such date shall be
deposited by Mid-State Homes, Inc. (the "Servicer") in the Holding Account.
2. Conditions to Sale and Purchase. The sale to the Purchaser of the
Mortgage Collateral and Mortgage Asset Files is subject to the following
conditions: (i) the Seller shall have delivered to the Purchaser those documents
set forth in subsections (i) through (v) of Section 3 hereof and (ii) the
Purchaser shall deliver to the Seller the net proceeds from the sale of the
Notes.
3. Mortgage Asset Documents and Files. Except as otherwise disclosed
in writing at the time of delivery, each Mortgage Asset File with respect to
each Mortgage Asset shall consist of the following documents or instruments:
(i) in the case of each Account, the building or installment
sale contract relating to such Account;
(ii) the Account Note or Mortgage Note, endorsed to the order
of the Purchaser, without recourse;
(iii) the original of the recorded Mortgage and the originals
of other documents, if any, securing such Account Note or Mortgage
Note;
(iv) unrecorded assignments in recordable form to the
Purchaser or its designee, together with originals or certified
copies of any recorded assignment(s) from the originator of such
Mortgage Asset to the Seller in respect of each such Mortgage Asset;
(v) the originals of any assumption agreement, written
assurance or substitution agreement relating to any Mortgaged
Property conveyed by an Obligor in respect of any such Mortgage
Asset;
(vi) all insurance policies, including without limitation,
fire and extended hazard insurance policies, related to the Mortgage
Asset, naming the Issuer, the Indenture Trustee, the Servicer or the
Subservicer as the loss payee of such policies; and
(vii) any and all other documents or instruments in the
possession of the Seller relating to the Mortgage Asset, which
evidence, or were created in connection with the origination of, or
are necessary for the administration of the Mortgage Asset,
including without limitation any credit reports, copies of deeds,
completion certificates, title search reports and credit
applications;
provided, however, that if the original copy of any document described in clause
(iii), (iv) or (v) has been retained by the recording office in which such
document was recorded or is otherwise unavailable, then a copy thereof certified
as true and correct by a duly authorized representative of such local recording
office or officer of the Servicer or Subservicer shall be included as part of
the documents for the related Mortgage Asset.
4. Representations, Warranties and Covenants with Respect to the
Mortgage Assets.
A. The Seller represents, warrants and covenants to the Purchaser as
of the date hereof and as of the Closing Date with respect to each Mortgage
Asset comprising the Mortgage Collateral that:
(i) the information set forth with respect to such Mortgage
Asset in the Schedule of Mortgage Assets is true and correct as of
the date as of which such information is given;
(ii) in the case of each Account, the related building or
instalment sale contract, as the case may be, has been duly executed
by the parties thereto and the duties to be performed thereunder
prior to the date the first payment in connection with such contract
is due have been performed;
(iii) the Mortgage Asset Documents have been duly executed by
the related Obligor and the Mortgage has been duly executed by the
Obligor and, to the extent required under local law for recordation
or enforcement, properly acknowledged;
(iv) the Mortgage has been properly recorded as required by
law. The Mortgage constitutes a valid first priority lien upon and
secures title to the real property and improvements thereon
described therein, which include a single family detached dwelling,
and such Mortgage and the Account Note or Mortgage Note, as
applicable, secured thereby are fully enforceable in accordance with
their terms except as enforceability thereof may be limited by
bankruptcy, insolvency, moratorium and other laws affecting
creditors' rights generally and by general principles of equity
(whether applied in a proceeding in law or at equity);
(v) Immediately prior to the transfer and assignment
contemplated herein, the Seller was the sole owner and holder of the
Mortgage Assets and has good and marketable title to each Mortgage
Asset, free and clear of any and all liens, pledges, charges,
claims, participation interests, mortgages, security interests or
encumbrances or other interests of any nature and has full right and
authority to sell and assign the same;
(vi) all costs, fees, intangible, documentary and recording
taxes and expenses incurred in making, closing, and recording each
Mortgage Asset have been paid;
(vii) no part of the Mortgaged Property purporting to secure
any Account Note or Mortgage Note, as the case may be, has been, or
shall have been, released from the lien or security interest of the
Mortgage securing such Account Note or Mortgage Note, as applicable,
except for Mortgaged Property securing any Account Note or Mortgage
Note, as the case may be, which has been prepaid in full between the
Cut-off Date and the Closing Date, the amount of such prepayment
received more than five days prior to the Closing Date to be
deposited in the Collection Account on or before the Closing Date;
(viii) the terms of the Account Note or Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any
respect, except by written instruments, recorded in the applicable
public recording office if necessary to maintain the lien priority
of the Mortgage, and which have been delivered to the Purchaser or
its designee; the substance of any such waiver, alteration or
modification has been approved by the title insurer, to the extent
required by the related policy, and is reflected on the Schedule of
Mortgage Assets. No instrument of waiver, alteration or modification
has been executed, and no Obligor has been released, in whole or in
part, except, in connection with an assumption agreement approved by
the title insurer, to the extent required by the policy, and which
assumption agreement has been delivered to the Purchaser or its
designee and the terms of which are reflected in the Schedule of
Mortgage Assets;
(ix) Mid-State Homes, Inc., Mid-State Trust IX and the Seller
acquired title to the Mortgage Assets in good faith, for value and
without notice of any adverse claim;
(x) the Account Notes or Mortgage Notes, as the case may be,
evidence obligations bearing a fixed Coupon Rate and fully
amortizing level monthly payments. Each Account Note or Mortgage
Note, as applicable, has an original term to maturity not in excess
of 30 years;
(xi) as of the Closing Date, there is no right of rescission,
setoff, defense or counterclaim to any Account Note or Mortgage
Note, as applicable, or Mortgage, including both the obligation of
the Obligor to pay the unpaid cash price or finance charge on such
Account Notes or Mortgage Notes, as the case may be, and the defense
of usury; furthermore, neither the operation of any of the terms of
the Account Notes or Mortgage Notes, as applicable, and the Mortgage
nor the exercise of any right thereunder will render the Account
Notes or Mortgage Notes, as the case may be, or the Mortgage
unenforceable, in whole or in part, or subject such Account Notes or
Mortgage Notes, as applicable, or Mortgage to any right of
rescission, setoff, counterclaim or defense, including the defense
of usury, and no such right of rescission, setoff, counterclaim or
defense has been asserted with respect thereto;
(xii) there are no mechanics' liens or claims for work, labor
or material (and to the best of the Seller's knowledge, no rights or
claims are outstanding that under law could give rise to such lien)
affecting any Mortgaged Property which are or may be a lien prior
to, or equal with, the lien of such Mortgage;
(xiii) any and all requirements of any federal, state or local
law with respect to the origination and servicing of the Mortgage
Assets including, without limitation, usury, truth in lending, real
estate settlement procedures, consumer credit protection, equal
credit opportunity, predatory and abusive lending laws or disclosure
laws applicable to the Mortgage Assets have been complied with, and
consummation of the transactions contemplated hereby will not
violate any such laws;
(xiv) no Mortgage Asset is a "high cost" mortgage asset as
defined under any federal, state or local laws applicable to such
Mortgage Asset at the time of its origination, no Mortgage Asset
originated in the State of Georgia is subject to the Georgia Fair
Lending Act as in effect from October 1, 2002 through March 6, 2003
and no Mortgage Asset is subject to the provisions of the Home
Ownership and Equity Protection Act of 1994, as amended;
(xv) no Mortgage Asset (other than a Mortgage Asset that would
be subject to the provisions of the Oakland, California or Los
Angeles, California predatory and abusive lending laws or a Mortgage
Asset that is a New Jersey covered purchase loan originated on or
after November 27, 2003 through July 6, 2004) is a High Cost Loan or
Covered Loan, as applicable (as such terms are defined in S&P's
LEVELS(R) Glossary which is now Version 5.6 Revised, Appendix E);
(xvi) with respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, is properly designated, serving and named in such Mortgage;
(xvii) there has been no fraud, dishonesty, misrepresentation
or negligence on the part of the originator in connection with the
origination of any Account Note or Mortgage Note, as applicable, or
in connection with the sale of the related Mortgage Asset;
(xviii) to the best knowledge of the Seller, except Mortgaged
Properties for which Insurance Proceeds are available, each
Mortgaged Property is in good condition and free of damage which
materially and adversely affects the value thereof;
(xix) to the best knowledge of the Seller, there is no
proceeding pending for the total or partial condemnation and no
eminent domain proceedings pending affecting any Mortgaged Property;
(xx) each Mortgage Asset obligates the Obligor thereunder to
maintain a hazard insurance policy in an amount at least equal to
the unpaid Principal Balance of the Mortgage Asset at the Obligor's
cost and expense;
(xxi) no Mortgage Asset contains provisions pursuant to which
monthly payments are (1) paid or partially paid with funds deposited
in any separate account established by a Servicer, the Obligor, or
anyone on behalf of the Obligor, (2) paid by any source other than
the Obligor or (3) contains any other similar provisions which may
constitute a "buydown" provision. No Mortgage Asset is a graduated
payment Mortgage Asset and no Mortgage Asset has a shared
appreciation or other contingent interest feature;
(xxii) the Seller used no selection procedures that identified
the Mortgage Assets as being less desirable or valuable than other
comparable Mortgage Assets acquired by the Seller;
(xxiii) the Mortgage Assets comply in all material respects to
the description set forth under the heading "The Assets of the
Trust" in the Issuer's Prospectus Supplement, dated July 12, 2004;
(xxiv) each Mortgage Asset, at the time of its origination,
conformed to the applicable originator's underwriting guidelines;
(xxv) the related Mortgage Asset file contains each of the
documents and instruments specified;
(xxvi) each Mortgage Asset is being serviced in accordance
with the Servicer's servicing procedures;
(xxvii) other than the Mortgage Assets identified in the
Issuer's Prospectus Supplement, dated July 12, 2004, as 31-60 days
past due, there is no default, breach, violation or event of
acceleration existing under the Account Notes or Mortgage Notes, as
applicable, or Mortgage 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;
(xxviii) to the best knowledge of the Seller, there are no
delinquent taxes or assessments affecting the related Mortgaged
Property; and
(xxix) in the case of each Mortgage Loan, a lender's title
policy or binder, or other assurance of title insurance, was issued
at origination and each policy or binder is valid and remains in
full force and effect.
B. If any of the representations and warranties with respect to any
Mortgage Asset set forth in Section 4(A) hereof are found to be incorrect as of
the time made in any respect which materially and adversely affects the interest
of the Purchaser in a Mortgage Asset or if any Mortgage Asset Document is
defective in any material respect which materially and adversely affects the
interest of the Purchaser in a Mortgage Asset or if any document required to be
delivered to the Purchaser or its designee has not been delivered or if any
documents so delivered do not relate to a Mortgage Asset listed on the Schedule
of Mortgage Assets, the Seller shall notify the Purchaser immediately after
obtaining knowledge thereof and shall use its best efforts to eliminate or
otherwise cure the circumstances and conditions in respect of such omission or
defect or of which such representation or warranty was incorrect as of the time
made within 90 days of such notice to the Purchaser. If such breach or omission
or defect is not or cannot be cured within such 90-day period or, with the prior
written consent of a Responsible Officer of the Indenture Trustee if so
consented to under the Indenture, such longer period as specified in such
consent, the Seller shall either (i) purchase such Mortgage Asset from the
Purchaser for an amount equal to 100% of the then current Principal Balance of
the affected Mortgage Asset (a "Defective Mortgage Asset") or (ii) substitute
for such affected Mortgage Asset one or more Qualified Substitute Mortgage
Assets (in which case the removed Mortgage Asset shall become a "Deleted
Mortgage Asset"). The Seller shall promptly reimburse the Purchaser for any
reasonable expenses (including without limitation reasonable attorney's fees)
incurred by the Purchaser, in respect of any such breach, omission or defect. In
addition to the foregoing, in the case of a breach of the representation set
forth in Section 4A(xiii) or (xv) above, the Seller shall reimburse the
Purchaser for all costs or damages incurred by the Purchaser as a result of the
violation of such law (such amount, the "Reimbursement Amount"). Until the
Seller receives written notice to the contrary from the Purchaser, the
Reimbursement Amount shall be delivered to the Indenture Trustee for deposit
into the Collection Account within 10 days from the date the Purchaser or the
Seller was notified by the Indenture Trustee of the amount of such costs and
damages.
As to any Deleted Mortgage Asset for which the Seller substitutes a
Qualified Substitute Mortgage Asset or Qualified Substitute Mortgage Assets, the
Seller shall effect such substitution by delivery to the Purchaser for such
Qualified Substitute Mortgage Asset or Qualified Substitute Mortgage Assets of
the Account Note or Mortgage Note, as applicable, and such other Mortgage Asset
Documents related thereto, with the Account Note or Mortgage Note, as
applicable, endorsed to the order of the Seller, without recourse, and endorsed
by the Seller in blank or to the order of the Purchaser, without recourse.
Monthly Payments due with respect to Qualified Substitute Mortgage Assets in the
month of substitution will be retained by the Seller. Available Funds will
include the Monthly Payment due on any Deleted Mortgage Asset in the month of
substitution, and the Seller shall deposit such amount in the Collection Account
if received by it subsequent to the month of substitution. The Seller shall be
entitled to receive all amounts due subsequent to the month of substitution in
respect of such Deleted Mortgage Asset. The Seller shall give or cause to be
given written notice to the Purchaser, the Indenture Trustee and the Rating
Agencies that such substitution has taken place. Upon such substitution, such
Qualified Substitute Mortgage Asset or Qualified Substitute Mortgage Assets
shall be subject to the terms of this Agreement in all respects, and the Seller
shall be deemed to have made with respect to such Qualified Substitute Mortgage
Asset or Qualified Substitute Mortgage Assets, as of the date of substitution,
the representations and warranties set forth in Section 4A hereof.
For any month in which the Seller substitutes one or more Qualified
Substitute Mortgage Assets for one or more Deleted Mortgage Assets, the Seller
will determine the amount (if any) by which the aggregate outstanding Principal
Balance of all such Qualified Substitute Mortgage Assets as of the date of
substitution is less than the aggregate outstanding Principal Balance of all
such Deleted Mortgage Assets. On the date of such substitution, the Seller will
deposit from its own funds into the Collection Account an amount equal to the
amount of such shortfall, if any, without reimbursement therefor.
It is understood and agreed that the obligations of the Seller set
forth in this Section 4B to cure, substitute for or deposit funds in the
Collection Account in connection with a Mortgage Asset constitute the sole
remedies available to the Purchaser respecting a breach of the representations
and warranties set forth in Section 4A or defect or omission.
5. Representations, Warranties and Covenants of the Seller.
The Seller hereby represents and warrants to the Purchaser that, as
of the Closing Date:
(i) The Seller has been duly incorporated and is validly
existing as a Delaware corporation in good standing under the laws
of the State of Delaware with full corporate power and authority to
own, lease, operate and sell its properties and to conduct its
business as presently conducted by it.
(ii) The Seller has the full power and authority and legal
right to own the Mortgage Collateral and the related Mortgage Asset
Files and to transfer and convey the Mortgage Collateral and the
related Mortgage Asset Files to the Purchaser and has the full power
and authority and legal right to execute and deliver, engage in the
transactions contemplated by, and perform and observe the terms and
conditions of, this Agreement.
(iii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite action has been
taken, and this Agreement constitutes the legal, valid and binding
obligation of the Seller, enforceable in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally.
(iv) No consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required
for the consummation by the Seller of the sale contemplated by this
Agreement except as required under the Uniform Commercial Code or in
respect of recordings under real estate recording statutes and
except as has been obtained and are in effect.
(v) Neither the sale of the Mortgage Collateral to the
Purchaser nor the execution, delivery or performance of this
Agreement by the Seller 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 charter or by-laws of
the Seller, (ii) any term or provision of any agreement, contract,
instrument or indenture of any nature whatsoever, to which the
Seller or any of its subsidiaries is a party or is bound or (iii)
any law, rule, regulation, order, judgment, writ, injunction or
decree of any court or governmental authority having jurisdiction
over the Seller or its subsidiaries, or results or will result in
the creation or imposition of any lien, charge or encumbrance upon
the Mortgage Collateral or any documents or instrument evidencing or
securing the Mortgage Collateral, except as contemplated by the
Indenture.
(vi) The Seller has duly and validly sold and assigned its
entire right, title and interest in and to the Mortgage Collateral
and the related Mortgage Asset Files to the Purchaser, free and
clear of any lien, encumbrance or any other interests of others
(including without limitation any claim of any creditor of the
Seller or any affiliate of the Seller).
(vii) There are no actions, suits or proceedings pending or
threatened against or affecting the Seller which if adversely
determined, individually or in the aggregate, would materially
adversely affect the Seller's obligations under this Agreement.
6. Payment for the Mortgage Collateral. The Seller acknowledges
receipt of payment in full for the Mortgage Collateral and Mortgage Asset Files
and the Purchaser and the Seller agree that subsequent to the date hereof, no
modification or adjustment shall be made in respect of such purchase price.
7. Indemnity. The Seller agrees to indemnify, reimburse and hold the
Purchaser and its successors, assigns, trustees, employees, agents and servants
(hereinafter in this Section 7 referred to individually as "Indemnitee," and
collectively as "Indemnities") harmless from any and all claims, demands,
actions, suits, judgments and any and all related costs and expenses (including
reasonable attorneys' fees and expenses) (for the purposes of this Section 7 the
foregoing are collectively called "expenses") of whatsoever kind and nature
imposed on, asserted against or incurred by any of the Indemnities in any way
relating to or arising out of the enforcement of any of the terms of this
Agreement, or the preservation of any rights hereunder, or in any way relating
to or arising out of the origination, ownership, purchase, repossession, sale or
other disposition of any of the Mortgage Assets prior to the Closing Date, the
breach of any representation or warranty herein, the violation of the laws of
any state or other governmental body or unit by the Seller, or any tort or
contract claim accruing prior to the Closing Date (including, without
limitation, the claims or off-sets of third parties based on facts that cause a
breach of a representation or warranty herein); provided that no Indemnitee
shall be indemnified pursuant to this Section 7 for losses, damages or
liabilities to the extent caused by the negligence or misconduct of such
Indemnitee; provided further that, for the avoidance of doubt, this Section 7
shall not indemnify against the payment performance of the Mortgage Assets or
the market value of the Mortgage Assets or related Mortgaged Properties.
The Seller agrees that upon written notice by any Indemnitee of the
assertion of such a claim, demand, action, judgment or suit, the Seller shall
assume full responsibility for the defense thereof. Each Indemnitee agrees to
use its best efforts to promptly notify the Seller of any such assertion of
which such Indemnitee has knowledge.
8. Notices. All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered to or mailed by registered mail, postage prepaid, or transmitted by
telex or telegraph and confirmed by a similar mailed writing, if to the
Purchaser, addressed to the Purchaser, at such address as the Purchaser may
designate in writing to the Seller; if to the Seller, addressed to the Seller at
such address as the Seller may designate in writing to the Purchaser.
Notices required hereunder shall in addition be sent to Xxxxx'x
Investors Service, Inc. at its address at 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and to Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
at its address at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
9. Severability of Provisions. Any part, provision, representation
or warranty 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 or warranty 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
Asset 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.
10. Further Assurances. (i) The Seller agrees to execute and deliver
such instruments and take such actions as the Purchaser may, from time to time,
reasonably request in order to convey the Mortgage Assets and the Mortgage Asset
Files to the Purchaser and to effectuate the purpose and to carry out the terms
of this Agreement.
(ii) The Seller and the Purchaser intend that, as a result of
the consummation of the transaction contemplated by this Agreement,
the Seller will have transferred all of its right, title and
interest in the Mortgage Collateral and the Mortgage Asset Files to
the Purchaser and that this transaction be a true sale and agree
that their actions have been and will be consistent with this
characterization of the transaction.
(iii) Notwithstanding subsection (ii) hereof, solely in the
event that a court of appropriate jurisdiction were to
recharacterize the transaction as a secured loan, the Seller hereby
grants a security interest in and pledges, assigns and transfers to
the Purchaser as of the date hereof (a) all of the right, title and
interest of the Seller in and to the Mortgage Collateral and the
related Mortgage Asset Files, (b) all of the right, title and
interest of the Seller in and to the Mortgage Asset Purchase
Agreement, (c) all cash, instruments or other property owned by the
Seller and relating to the Mortgage Collateral held or required to
be deposited on the Closing Date or thereafter in the Holding
Account or the Collection Account, including all investments made
with such funds and all income from such investments and (d) all
proceeds of the foregoing, including, without limitation, all new
Mortgage Assets originated in connection with the sale of property
acquired in respect of the Mortgage Collateral, all insurance
proceeds and condemnation awards. The Seller agrees to execute any
financing statements (including a UCC-1 financing statement naming
the Seller as seller/debtor and the Purchaser as purchaser/secured
party) or other documentation necessary to create, maintain or
perfect this security interest in the Mortgage Collateral, the
Mortgage Asset Files and the Mortgage Asset Sale Agreement. The
Seller and the Purchaser acknowledge that in the event a court were
to recharacterize the transaction as a secured loan, the Indenture
Trustee will act as agent of the Purchaser pursuant to the terms of
that certain letter between the Purchaser and the Indenture Trustee
attached hereto as Exhibit A.
11. Survival. The Seller agrees that the representations, warranties
and agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the Purchaser,
notwithstanding any investigation heretofore or hereafter made by the Purchaser
or on the Purchaser's behalf, and that the representations, warranties and
agreements made by the Seller herein or in any such certificate or other
instrument shall survive the delivery of and payment for the Mortgage Collateral
and the related Mortgage Asset Files.
12. Parties. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
13. Entire Agreement. This Agreement contains the entire agreement
and understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings relating to the
subject matter hereof. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
14. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
15. Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of the Purchaser and the Indenture Trustee and their respective
successors and assigns and the Seller and its successors and assigns, all as
provided herein.
16. Headings. The headings of the various Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
17. Governing Law. This Agreement shall in all respects be governed
by, and construed in accordance with, the laws of the State of Florida,
including all matters of construction, validity and performance.
18. Liability. It is expressly understood and agreed by the parties
hereto that (a) this Agreement is executed and delivered on behalf of the
Purchaser by Wilmington Trust Company, not individually or personally but solely
as owner trustee under the applicable trust agreements, in the exercise of the
powers and authority conferred and vested in it as the owner trustee, (b) each
of the representations, undertakings and agreements herein made on the part of
the Purchaser is made and intended not as personal representations, undertakings
and agreements by Wilmington Trust Company but is made and intended for the
purpose of binding only the Purchaser, and (c) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Purchaser or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Purchaser under this Agreement.
19. Non-Petition. The Seller hereby agrees not to petition or
otherwise invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Issuer under any federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequester or other similar official of
the Issuer or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Issuer.
IN WITNESS WHEREOF, each party has caused this Agreement to be
signed and executed by its proper officer thereunder duly authorized, as of the
day and year first written above.
SELLER:
MID-STATE CAPITAL CORPORATION
By: -----------------------------------
Name: Miles X. Xxxxxxx, III
Title: Vice President
PURCHASER:
MID-STATE CAPITAL CORPORATION 2004-1
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
-----------------------------------
Name:
Title:
EXHIBIT A
[Letterhead of the Indenture Trustee]
July 15, 2004
Mid-State Capital Corporation 2004-1 Trust
c/o Wilmington Trust Company,
as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Re: Indenture dated July 15, 2004, between The Bank of New York, and
Mid-State Capital Corporation 2004-1 Trust, as Issuer relating to
Class A, Class M-1, Class M-2 and Class B Notes
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Ladies and Gentlemen:
We are writing in connection with the issuance of your asset-backed
notes pursuant to the Indenture described above. Capitalized terms used in this
letter shall have the meanings assigned to them in the Indenture.
This will confirm that in the event that the Purchase and Sale
Agreement is deemed to transfer to the Issuer a security interest in any portion
of the Trust Estate, we will act as the agent of the Issuer solely for purposes
of perfecting its security interest in any such portion of the Trust Estate in
our possession during the term of the Indenture, subject to the Grant made by
the Issuer in the Indenture and in acting as such agent, we will have all of the
protections given to us as Indenture Trustee under the Indenture.
Very truly yours,
THE BANK OF NEW YORK
as Indenture Trustee
By:
-----------------------------------
Name:
Title:
