Exhibit 4.4
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is made and entered
into on [________], 20__ by and among MID-STATE HOMES, INC., a Florida
corporation ("Mid-State"), MID-STATE TRUST IX (the "Seller"), a Delaware
statutory trust, and MID-STATE CAPITAL CORPORATION (the "Purchaser"), a Delaware
corporation. Capitalized terms used but not defined herein shall have the
meaning ascribed to them in the [Indenture or the Trust Agreement][Pooling and
Servicing Agreement] each as defined below.
W I T N E S S E T H :
WHEREAS, ▇▇▇ ▇▇▇▇▇▇ Homes, Inc., and its affiliates, Dream Homes, Inc.,
Dream Homes USA, Inc., ▇▇▇▇▇▇▇▇▇▇ Homes, Inc. and Crestline Homes, Inc.
(collectively, "▇▇▇ ▇▇▇▇▇▇ Homes"), are in the business of constructing and
selling partially-finished homes, generally on a deferred, installment sale
basis pursuant to a building or installment sale contract between ▇▇▇ ▇▇▇▇▇▇
Homes and the purchaser of the home, and ▇▇▇ ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ Mortgage Company ("▇▇▇▇▇▇ Mortgage") is in the business of
financing homes constructed by ▇▇▇ ▇▇▇▇▇▇ Homes, Inc. and its affiliates and
purchasing and originating non-conforming residential mortgage loans ("Mortgage
Loans," and together with the Accounts, the "Mortgage Assets");
WHEREAS, ▇▇▇ ▇▇▇▇▇▇ Homes and ▇▇▇▇▇▇ Mortgage, as part of the ordinary
course of their businesses, assigned to Mid-State, without recourse, all of
their interests in each of the Mortgage Assets;
WHEREAS, Mid-State, as part of the ordinary course of its business,
assigned to the Seller, without recourse, all of its interests in each of the
Mortgage Assets;
WHEREAS, Mid-State is the holder of 100% ownership interest in the Seller
and in furtherance of the issuance of the [Notes] [Pass-Through Certificates] as
described below, shall cause the Seller 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, Mid-State Trust [__] will issue [____]% Asset-Backed Notes,
Class A, [____]% Asset-Backed Notes, Class M-1, [___]% Asset-Backed Notes, Class
M-2 and [___]% Asset-Backed Notes, Class B (collectively, the "Notes"), secured
by the mortgage and other collateral, as more particularly set forth in the
Indenture, dated [______], 20__ (the "Indenture"), between the Issuer and
[_____________], as trustee (the "Indenture Trustee");]
[WHEREAS, the Purchaser will enter into a Pooling and Servicing Agreement,
dated [______________], 20__, with Mid-State, as a servicer, ▇▇▇▇▇▇ Mortgage, as
a servicer, and [__________________], as trustee (the "Pooling Agreement"),
pursuant to which Pass-Through Certificates, Series 20 -[__], Class A, Class
▇-▇, ▇▇▇▇▇ ▇-▇, Class M-1, Class M-2 and Class B (collectively, the
"Certificates") will be issued;]
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. 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 and (ii) all
documents and instruments related to the Mortgage Assets comprising the Mortgage
Collateral as specified in Section 3 hereof (the "Mortgage Asset Files").
The Purchaser agrees to purchase, and does hereby purchase from the
Seller, for a purchase price equal to the net proceeds of the sale of the
[Notes][Certificates], 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 and (ii) the Mortgage Asset Files.
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][Certificates].
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][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][Note];
(iv) unrecorded assignments in recordable form to the Purchaser,
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;
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(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][Purchaser, Trustee], the Servicers 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 Mid-State or ▇▇▇▇▇▇ Mortgage, as the case may be, 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. Mid-State, as holder of 100% ownership interest in 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][Note] 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
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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][Note] has been, or shall have been, released from the lien
or security interest of the Mortgage securing such [Account Note][Note],
except for Mortgaged Property securing any [Account Note][Note] 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 [Holding Account][Collection Account]
on or before the Closing Date;
(viii) the terms of the [Account Note][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 [Indenture Trustee][Trustee]; 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 [Indenture
Trustee][Trustee] and the terms of which are reflected in the Schedule of
Mortgage Assets;
(ix) Mid-State Homes, Inc. 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][Notes] evidence obligations bearing a fixed
or adjustable Coupon Rate and fully amortizing level monthly payments.
Each [Account Note][Note] 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][Note] or Mortgage,
including both the obligation of the Obligor to pay the unpaid cash price
or finance charge on such [Account Notes][Notes] and the defense of usury;
furthermore, neither the operation of any of the terms of the [Account
Notes][Notes] and the Mortgage nor the exercise of any right thereunder
will render the [Account Notes][Notes] or the Mortgage unenforceable, in
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whole or in part, or subject such [Account Notes][Notes] 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 and 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;
(xv) 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;
(xvi) there has been no fraud, dishonesty, misrepresentation or
negligence on the part of the originator in connection with the
origination of any [Account Notes][Notes] or in connection with the sale
of the related Mortgage Asset;
(xvii) 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;
(xviii) 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;
(xix) 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;
(xx) 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;
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(xxi) 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;
(xxii) the Mortgage Assets comply in all material respects to the
description set forth under the heading "The Trust Fund--Total Mortgage
Assets Comprising the Mortgage Collateral" in the Purchaser's Prospectus
Supplement, dated [________], 20__;
(xxiii) each Mortgage Asset, at the time of its origination,
conformed to the applicable originator's underwriting guidelines;
(xxiv) the related Mortgage Asset File contains each of the
documents and instruments specified;
(xxv) each Mortgage Asset is being serviced in accordance with the
applicable Servicer's servicing procedures; and
(xxvi) other than the Mortgage Assets identified in the Purchaser's
Prospectus Supplement, dated [________], 20__, as 31-60 days past due,
there is no default, breach, violation or event of acceleration existing
under the [Account Notes][Notes] 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.
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 [Indenture Trustee][Trustee] has not been delivered or if any
documents so delivered do not relate to a Mortgage Asset listed on the Schedule
of Mortgage Assets, Mid-State 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,] Mid-State shall either (i) purchase such Mortgage Asset from the
Issuer 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"). Mid-State 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) above, Mid-State shall reimburse the Purchaser for all costs or
damages incurred by the Purchaser as a result
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of the violation of such law (such amount, the "Reimbursement Amount").
Until Mid-State receives written notice to the contrary from the Purchaser, the
Reimbursement Amount shall be delivered to the [Indenture Trustee][Trustee] for
deposit into the Collection Account within 10 days from the date the Purchaser
or Mid-State was notified by the [Indenture Trustee][Trustee] of the amount of
such costs and damages.
As to any Deleted Mortgage Asset for which Mid-State substitutes a
Qualified Substitute Mortgage Asset or Qualified Substitute Mortgage Assets,
Mid-State shall effect such substitution by delivery to the Purchaser for such
Qualified Substitute Mortgage Asset or Qualified Substitute Mortgage Assets of
the [Account Note][Note] and such other Mortgage Asset documents related
thereto, with the [Account Note][Note] endorsed to the order of Mid-State,
without recourse, and endorsed by Mid-State 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
Mid-State. Available Funds will include the Monthly Payment due on any Deleted
Mortgage Asset in the month of substitution, and Mid-State shall deposit such
amount in the Collection Account if received by it subsequent to the month of
substitution. Mid-State shall be entitled to receive all amounts due subsequent
to the month of substitution in respect of such Deleted Mortgage Asset.
Mid-State shall give or cause to be given written notice to the Purchaser, the
[Indenture Trustee][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 Mid-State 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 Mid-State substitutes one or more Qualified
Substitute Mortgage Assets for one or more Deleted Mortgage Assets, Mid-State
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, Mid-State 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 Mid-State 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 Mid-State.
A. Mid-State hereby represents and warrants to the Purchaser that, as of
the Closing Date:
(i) The Seller has been duly formed and is validly existing as a
Delaware statutory trust in good standing under the laws of the State of
Delaware with full power and authority to own, lease, operate and sell its
properties and to conduct its business as presently conducted by it.
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(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 amended and restated trust agreement 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) Mid-State has been duly incorporated and is validly existing
as a Florida corporation in good standing under the laws of the State of
Florida with full corporate power and authority to own, lease, operate and
sell its properties and to conduct its business as presently conducted by
it.
(viii) Mid-State 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.
(ix) This Agreement has been duly and validly authorized, executed
and delivered by Mid-State, all requisite corporate action has been taken,
and this
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Agreement constitutes the legal, valid and binding obligation of
Mid-State, 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.
(x) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement except as has been
obtained and are in effect.
(xi) None of the execution, delivery or performance of this
Agreement by Mid-State 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 bylaws of Mid-State, (ii) any
term or provision of any agreement, contract, instrument or indenture of
any nature whatsoever, to which Mid-State 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 Mid-State or its subsidiaries.
(xii) There are no actions, suits or proceedings pending or
threatened against or affecting the Seller or Mid-State which if adversely
determined, individually or in the aggregate, would materially adversely
affect the Seller's or Mid-State's obligations under this Agreement.
(B) Mid-State hereby covenants to the Purchaser that:
(i) Mid-State shall keep and maintain, for the period during which
the representations contained in this Section 5B survive, all records
pertaining to Mid-State's loss on account, foreclosure and delinquency
experience for the Mortgage Collateral and shall permit the Purchaser or
its designee, their agents or employees access to such records upon
reasonable notice for the purposes of auditing the same in order to verify
the accuracy and completeness thereof.
(ii) Mid-State shall pay all expenses related to the filing of the
assignments contained in each Mortgage Asset File with the appropriate
recording office, if so required by the Rating Agencies to maintain the
initial ratings of the Notes.
(iii) Mid-State shall take all actions necessary to cause the Seller
to fulfill its obligations set forth herein.
(iv) Mid-State shall cause the Seller to include in its financial
statements a footnote describing the sale of the Mortgage Collateral and
Mortgage Asset Files to the Purchaser and the issuance and sale of the
[Notes][Pass-Through Certificates] and indicating that the Purchaser's
assets are not available to satisfy the claims of creditors, if any, of
the Seller.
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
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Seller agree that subsequent to the date hereof, no modification or
adjustment shall be made in respect of such purchase price.
7. Indemnity. Mid-State 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 Mid-State, 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.
Mid-State agrees that upon written notice by any Indemnitee of the
assertion of such a claim, demand, action, judgment or suit, Mid-State shall
assume full responsibility for the defense thereof. Each Indemnitee agrees to
use its best efforts to promptly notify Mid-State 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 and Mid-State; if to the Seller, addressed to the Seller
at such address as the Seller may designate in writing to the Purchaser and
Mid-State; and if to Mid-State, addressed to Mid-State at such address as
Mid-State may designate in writing to the Purchaser and the Seller.
Notices required hereunder shall in addition be sent to [____________],
and to [__________________].
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
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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 or Mid-State, as applicable, 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, Mid-State 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
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 (c) 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 and Mortgage Asset Files. The Seller
and the Purchaser acknowledge that in the event a court were to
recharacterize the transaction as a secured loan, the [Indenture
Trustee][Trustee] will act as agent of the Issuer pursuant to the terms of
that certain letter between the Issuer and the [Indenture
Trustee][Trustee] attached hereto as Exhibit A.
11. Survival. The Seller and Mid-State agree that the representations,
warranties and agreements made by them 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 and Mid-State 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.
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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][Trustee] and their respective
successors and assigns and the Seller and Mid-State and their respective
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 Seller 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
Seller 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 Seller and (c) under no circumstances shall Wilmington Trust
Company be personally liable for the payment of any indebtedness or expenses of
the Seller or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Seller under this
Agreement.
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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 TRUST IX
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:____________________________________
Name:
Title:
PURCHASER:
MID-STATE CAPITAL CORPORATION
By:______________________________________
Name:
Title:
MID-STATE HOMES, INC.
By:______________________________________
Name:
Title:
EXHIBIT A
[Letterhead of the [Indenture Trustee][Trustee]]
[______], 20__
Mid-State Capital Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: [Indenture dated [______], 20__, between [__________________], as
Indenture Trustee, and Mid-State Trust [__], as Issuer relating to
Class A, Class M-1, Class M-2 and Class B Notes][Pooling and
Servicing Agreement, dated [_______], 20__, among Mid-State Capital
Corporation, Mid-State Homes, Inc., ▇▇▇▇▇▇ Mortgage Company and
[______], relating to Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-1, Class M-2 and
Class B Certificates]
Ladies and Gentlemen:
We are writing in connection with the issuance of your asset-backed
[notes][certificates] pursuant to the [Indenture][Pooling and Servicing
Agreement] described above. Capitalized terms used in this letter shall have the
meanings assigned to them in the [Indenture][Pooling and Servicing Agreement].
This will confirm that in the event that the Purchase and Sale Agreement
is deemed to transfer to the Purchaser a security interest in any portion of the
Trust Estate, we will act as the agent of the Purchaser 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][Pooling and Servicing Agreement],
in acting as such agent, we will have all of the protections given to us as
[Indenture Trustee][Trustee] under the [Indenture][Pooling and Servicing
Agreement].
Very truly yours,
[______________________________]
as [Indenture Trustee][Trustee]
By:______________________________________
Name:
Title:
A-1
