EXHIBIT 4.2
XXXXXX XXXXXXX ABS CAPITAL I INC.
Depositor,
and
CDC MORTGAGE CAPITAL INC.,
Unaffiliated Seller
---------------------------
UNAFFILIATED SELLER'S AGREEMENT
Dated as of November 1, 2001
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.....................................................1
ARTICLE II
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
Section 2.01. Agreement to Purchase the Mortgage Loans........................2
Section 2.02. [Reserved]......................................................3
Section 2.03. Purchase Price..................................................3
Section 2.04. Conveyance of Mortgage Loans; Possession of Mortgage Files......3
Section 2.05. Examination of Mortgage Files...................................3
Section 2.06. Books and Records...............................................4
Section 2.07. Cost of Delivery and Recordation of Documents...................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties as to the Unaffiliated Seller....4
Section 3.02. Representations and Warranties of the Depositor.................6
ARTICLE IV
THE UNAFFILIATED SELLER
Section 4.01. Covenants of the Unaffiliated Seller............................7
Section 4.02. Merger or Consolidation.........................................7
Section 4.03. Costs...........................................................7
ARTICLE V
CONDITIONS OF CLOSING
Section 5.01. Conditions of Depositor's Obligations...........................8
Section 5.02. Conditions of Unaffiliated Seller's Obligations................10
Section 5.03. Termination of Depositor's Obligations.........................11
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ARTICLE VI
MISCELLANEOUS
Section 6.01. Notices........................................................11
Section 6.02. Severability of Provisions.....................................11
Section 6.03. Agreement of Unaffiliated Seller...............................11
Section 6.04. Survival.......................................................12
Section 6.05. Effect of Headings and Table of Contents.......................12
Section 6.06. Successors and Assigns.........................................12
Section 6.07. Confirmation of Intent; Grant of Security Interest.............12
Section 6.08. Miscellaneous..................................................13
Section 6.09. Amendments.....................................................13
Section 6.10. Third-Party Beneficiaries......................................13
SECTION 6.11. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL...13
Section 6.12. Execution in Counterparts......................................14
Section 6.13. Subsequent Mortgage Loans......................................14
Exhibit A - Mortgage Loan Schedule
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THIS UNAFFILIATED SELLER'S AGREEMENT, dated as of November 1,
2001, by and among XXXXXX XXXXXXX ABS CAPITAL I INC., a Delaware corporation,
its successors and assigns (the "Depositor"), and CDC Mortgage Capital Inc., a
New York corporation and its successors (the "Unaffiliated Seller").
WHEREAS, Exhibit A attached hereto and made a part hereof lists
certain first and second lien mortgage loans (the "Mortgage Loans") owned by the
Unaffiliated Seller and the Unaffiliated Seller desires to sell to the Depositor
and that the Depositor desires to purchase; and
WHEREAS, it is the intention of the Unaffiliated Seller and the
Depositor that simultaneously with the Unaffiliated Seller's conveyance of the
Mortgage Loans to the Depositor on the Closing Date, (a) the Depositor shall
deposit the Mortgage Loans in a trust pursuant to a Pooling and Servicing
Agreement to be dated as of November 1, 2001 (the "Pooling and Servicing
Agreement"), to be entered into by and among the Depositor, as depositor, Ocwen
Federal Bank FSB, as servicer (in such capacity, the "Servicer"), the
Unaffiliated Seller, Impac Funding Corporation, as originator, ("IFC"), BNC
Mortgage Inc. ("BNC") together with IFC, the "ORIGINATORS"), and Bankers Trust
Company of California, N.A., as trustee and collateral agent (in each such
capacity, as applicable, the "Trustee") and (b) the Trustee shall issue
certificates evidencing beneficial ownership interests in the property of the
trust fund formed by the Pooling and Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. Whenever used herein, the following
words and phrases, unless the context otherwise requires, shall have the
meanings specified in this Article I:
"AGREEMENT" means this Unaffiliated Seller's Agreement, as amended
or supplemented in accordance with the provisions hereof.
"PROSPECTUS" means the Prospectus, dated November 8, 2001,
relating to the offering by the Depositor from time to time of its
Mortgage-Pass-through Certificates (Issuable in Series) in the form in which it
was or will be filed with the Commission pursuant to Rule 424(b) under the
Securities Act with respect to the offer and sale of the Certificates.
"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement, dated
November 26, 2001, relating to the offering of the Certificates in the form in
which it was or will be filed with the Commission pursuant to Rule 424(b) under
the Securities Act with respect to the offer and sale of the Certificates.
"REGISTRATION STATEMENT" means that certain registration statement
on Form S-3, as amended (Registration No. 333-65702) relating to the offering by
the Depositor from time to time of its Mortgage-Backed Certificates (Issuable in
Series) as heretofore declared effective by the Commission.
"TERMINATION EVENT" means the existence of any one or more of the
following conditions:
(a) a stop order suspending the effectiveness of the
Registration Statement shall have been issued or a proceeding for that
purpose shall have been initiated or threatened by the Commission; or
(b) subsequent to the execution and delivery of this
Agreement, a downgrading, or public notification of a possible change,
without indication of direction, shall have occurred in the rating
afforded any of the debt securities or claims paying ability of any
person providing any form of credit enhancement for any of the
Certificates, by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act; or
(c) subsequent to the execution and delivery of this
Agreement, there shall have occurred an adverse change in the condition,
financial or otherwise, earnings, affairs, regulatory situation or
business prospects of the Unaffiliated Seller reasonably determined by
the Depositor to be material; or
(d) subsequent to the date of this Agreement there shall
have occurred any of the following: (i) a suspension or material
limitation in trading in securities substantially similar to the
Certificates; (ii) a general moratorium on commercial banking activities
in the State of New York declared by either Federal or New York State
authorities; or (iii) the engagement by the United States in hostilities,
or the escalation of such hostilities, or any calamity or crisis, if the
effect of any such event specified in this clause (iii) in the judgment
of the Depositor makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Certificates on the terms and
in the manner contemplated in the Prospectus Supplement.
"UNAFFILIATED SELLER" means CDC Mortgage Capital Inc. , in its
capacity as Unaffiliated Seller of the Mortgage Loans under this Agreement.
Capitalized terms used herein that are not otherwise defined shall
have the respective meanings ascribed thereto in the Pooling and Servicing
Agreement.
ARTICLE II
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
Section 2.01. AGREEMENT TO PURCHASE THE MORTGAGE LOANS.
(a) Subject to the terms and conditions of this Agreement, the
Unaffiliated Seller agrees to sell, and the Depositor agrees to purchase, the
Mortgage Loans having the Cut-Off Date Aggregate Principal Balance or, in
accordance with Section 2.08 hereof, such other balance as is evidenced by the
actual Cut-Off Date Aggregate Principal Balance of the Mortgage Loans accepted
by the Depositor on the Closing Date and listed in the Mortgage Loan Schedule.
(b) The Depositor and the Unaffiliated Seller have agreed upon
which of the Unaffiliated Seller's Mortgage Loans are to be purchased by the
Depositor on the Closing Date pursuant to this Agreement, and the Unaffiliated
Seller has prepared a schedule describing the Mortgage Loans (the "MORTGAGE LOAN
SCHEDULE") setting forth all of the Mortgage Loans to be purchased under this
Agreement, which schedule is attached hereto as Exhibit A. The Mortgage Loan
Schedule shall conform to the definition of "Mortgage Loan Schedule" in the
Pooling and Servicing Agreement.
(c) The closing for the purchase and sale of the Mortgage Loans
shall take place at the offices of Xxxxx Xxxxxxxxxx LLP, New York, New York, at
10:00 a.m., New York time, on November 29, 2001 or such other place and time as
the parties shall agree (such time being herein referred to as the "Closing
Date").
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Section 2.02. [RESERVED].
Section 2.03. PURCHASE PRICE. On the Closing Date, as
consideration for the Unaffiliated Seller's sale of the Mortgage Loans to the
Depositor, the Depositor will deliver to the Unaffiliated Seller (i) an amount
in cash equal to 99.500% of the aggregate principal balance as of the Closing
Date of the Offered Certificates, payable by wire transfer of same day funds and
(ii) the Class X, Class P and Class R Certificates.
The consideration described in this Section 2.03 collectively
represents full consideration for the Unaffiliated Seller's sale of the Mortgage
Loans to the Depositor.
Section 2.04. CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE
FILES.
(a) On the Closing Date the Unaffiliated Seller shall sell,
transfer, assign, set over and convey or cause to be assigned, set over or
conveyed, to the Depositor, without recourse but subject to the terms of this
Agreement, all right, title and interest in and to the applicable Mortgage
Loans, including all principal outstanding as of, and all interest due after,
the Cut-Off Date (except for $135,810.00 in interest, which is being retained by
the Unaffiliated Seller), the Insurance Policies relating to each such Mortgage
Loan, all right, title and interest in and to the proceeds of such Insurance
Policies and all of its rights under this Agreement with respect to the Mortgage
Loans from and after the Cut-Off Date. Upon payment of the purchase price for
such Mortgage Loans as provided in Section 2.03 of this Agreement, the
Unaffiliated Seller shall have hereby, and shall be deemed to have, or caused to
have sold, transferred, assigned, set over and conveyed such Mortgage Loans, the
Insurance Policies relating to each such Mortgage Loan, all right, title and
interest in and to the proceeds of such Insurance Policies and all of their
rights under this Agreement with respect to the Mortgage Loans from and after
the Cut-Off Date.
(b) Upon the sale of such Mortgage Loans, the ownership of each
related Mortgage Note, each related Mortgage and the contents of the related
Mortgage File shall immediately vest in the Depositor and the ownership of all
related records and documents with respect to each Mortgage Loan prepared by or
which come into the possession of the Unaffiliated Seller shall immediately vest
in the Depositor. The contents of any Mortgage File in the possession of the
Unaffiliated Seller at any time after such sale, and any principal collected and
interest due on the Mortgage Loans after the Cut-Off Date and received by or on
behalf of the Unaffiliated Seller (except for $135,810.00 in interest, which is
being retained by the Unaffiliated Seller), shall be held in trust by the
Unaffiliated Seller for the benefit of the Depositor as the owner thereof, and
shall be promptly delivered by the Unaffiliated Seller to or upon the order of
the Depositor.
(c) Pursuant to the Pooling and Servicing Agreement, the
Depositor shall, on the Closing Date, assign all of its right, title and
interest in and to the applicable Mortgage Loans, the related Insurance Policies
and any proceeds thereof and all of its rights under this Agreement to the
Trust.
Section 2.05. EXAMINATION OF MORTGAGE FILES. Prior to the Closing
Date, the Unaffiliated Seller shall make the Mortgage Files available to the
Depositor or its designee for examination at the Unaffiliated Seller's offices
or at such other place as the Unaffiliated Seller shall reasonably specify. Such
examination may be made by the Depositor or its designee at any time on or
before the Closing Date. If the Depositor or its designee makes such examination
prior to the Closing Date and identifies any Mortgage Loans that do not conform
to the requirements of the Depositor as described in this Agreement, such
Mortgage Loans shall be deleted from the Mortgage Loan Schedule and may be
replaced, prior to the Closing Date, by substitute Mortgage Loans acceptable to
the Depositor. The Depositor may, at its option and without notice to the
Unaffiliated Seller, purchase all or part of the Mortgage Loans without
conducting any partial or complete examination. The fact that the Depositor or
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the Trustee has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not affect the rights of the Depositor
or the Trustee to demand repurchase or other relief as provided in this
Agreement.
Section 2.06. BOOKS AND RECORDS. The sale of each Mortgage Loan
shall be reflected on the Unaffiliated Seller's accounting and other records,
balance sheet and other financial statements as a sale of assets by the
Unaffiliated Seller to the Depositor. The Unaffiliated Seller shall be
responsible for maintaining, and shall maintain, a complete set of books and
records for each Mortgage Loan which shall be clearly marked to reflect the
ownership of each Mortgage Loan by the Trustee for the benefit of the
Certificateholders and the Class A Certificate Insurer.
Section 2.07. COST OF DELIVERY AND RECORDATION OF DOCUMENTS. The
costs relating to the delivery and recordation of the documents specified in
this Article II in connection with the Mortgage Loans shall be borne by the
Originators.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. REPRESENTATIONS AND WARRANTIES AS TO THE
UNAFFILIATED SELLER. The Unaffiliated Seller hereby represents and warrants to
the Depositor, as of the Closing Date, that:
(a) The Unaffiliated Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York
and has all licenses necessary to carry on its business as now being conducted
and is licensed, qualified and in good standing in each state necessary in order
to conduct business of the type conducted by the Unaffiliated Seller and to
perform its obligations as the Unaffiliated Seller hereunder; the Unaffiliated
Seller has the full power and authority, corporate and otherwise, to execute and
deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Unaffiliated Seller
and the consummation of the transactions contemplated hereby have been duly and
validly authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Unaffiliated Seller; and all requisite corporate action has
been taken by the Unaffiliated Seller to make this Agreement valid and binding
upon the Unaffiliated Seller in accordance with its terms;
(b) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Unaffiliated Seller of or compliance by the Unaffiliated
Seller with this Agreement or the sale of the Mortgage Loans pursuant to the
terms of this Agreement or the consummation of the transactions contemplated by
this Agreement, or if required, such approval has been obtained prior to the
Closing Date;
(c) Neither the execution and delivery of this Agreement, the acquisition nor
origination of the Mortgage Loans by the Unaffiliated Seller nor the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, has or will conflict with or result in a
breach of any of the terms, conditions or provisions of the Unaffiliated
Seller's charter or by-laws or any legal restriction or any agreement or
instrument to which the Unaffiliated Seller is now a party or by which it is
bound or to which its property is subject, or constitute a default or result in
an acceleration under any of the foregoing, except such unfulfillment,
non-compliance or default or acceleration does not in the aggregate have a
material adverse effect on the operation, business, condition (business or
otherwise) of the Unaffiliated Seller or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Unaffiliated Seller or
its property is subject, except such violation
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does not in the aggregate have a material adverse effect on the operation,
business, condition (business or otherwise) of the Unaffiliated Seller or impair
the ability of the Trustee (or the Servicer as the agent of the Trustee) to
realize on the Mortgage Loans, or impair the value of the Mortgage Loans;
(d) There is no action, suit, proceeding or investigation
pending nor, to the knowledge of the Unaffiliated Seller, threatened before a
court, administrative agency or government tribunal against the Unaffiliated
Seller which, either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Unaffiliated Seller, or in any material impairment
of the right or ability of the Unaffiliated Seller to carry on its business
substantially as now conducted, or which would draw into question the validity
of this Agreement, the Mortgage Loans, or of any action taken or to be taken in
connection with the obligations of the Unaffiliated Seller contemplated herein,
or which would impair materially the ability of the Unaffiliated Seller to
perform under the terms of this Agreement or that will prohibit its entering
into this Agreement or the consummation of any of the transactions contemplated
hereby or under any subservicing agreements;
(e) The Unaffiliated Seller is not in violation of or in
default with respect to, and the execution and delivery of this Agreement by the
Unaffiliated Seller and its performance of and compliance with the terms hereof
will not constitute a violation or default with respect to, any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or governmental agency, which violation or default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Unaffiliated Seller or its properties or might have
consequences that would materially and adversely affect its performance
hereunder or under any subservicing agreement;
(f) Upon the receipt of each Trustee's Mortgage File by the
Depositor (or its assignee) under this Agreement, the Depositor (or its
assignee) will own on behalf of the Trust Fund to each related Mortgage Loan and
such other items comprising the corpus of the Trust Fund free and clear of any
lien created by the Unaffiliated Seller (other than liens which will be
simultaneously released);
(g) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Unaffiliated Seller, and
the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by the Unaffiliated Seller pursuant to this Agreement are not subject to the
bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(h) With respect to any Mortgage Loan purchased by the
Unaffiliated Seller, the Unaffiliated Seller acquired title to the Mortgage Loan
in good faith, without notice of any adverse claim;
(i) The Unaffiliated Seller does not believe, nor does it have
any reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement. The Unaffiliated Seller is solvent and the sale of
the Mortgage Loans by the Unaffiliated Seller pursuant to the terms of this
Agreement will not cause the Unaffiliated Seller to become insolvent. The sale
of the Mortgage Loans by the Unaffiliated Seller pursuant to the terms of this
Agreement was not undertaken with the intent to hinder, delay or defraud any of
the Unaffiliated Seller's creditors;
(j) The Mortgage Loans are not intentionally selected in a
manner so as to affect adversely the interests of the Depositor or of any
transferee of the Depositor (including the Trust and the Trustee);
(k) The Unaffiliated Seller will treat the disposition of the
Mortgage Loans pursuant to this Agreement as a sale for accounting and tax
purposes;
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(l) The Unaffiliated Seller has not dealt with any broker or
agent or anyone else that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans to the Depositor other than to
the Depositor or an affiliate thereof; and
(m) The consideration received by the Unaffiliated Seller upon
the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans.
Section 3.02. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor hereby represents, warrants and covenants to the Unaffiliated Seller,
as of the date of execution of this Agreement and the Closing Date, that:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to
purchase each Mortgage Loan and to execute, deliver and perform, and to enter
into and consummate all the transactions contemplated by this Agreement;
(c) This Agreement has been duly and validly authorized,
executed and delivered by the Depositor, and, assuming the due authorization,
execution and delivery hereof by the Unaffiliated Seller and the Originators,
constitutes the legal, valid and binding agreement of the Depositor, enforceable
against the Depositor in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights of creditors generally, and by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
is required for the execution, delivery and performance of or compliance by the
Depositor with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except such as have been made on or prior to
the Closing Date;
(e) The Depositor has filed or will file the Prospectus and
Prospectus Supplement with the Commission in accordance with Rule 424(b) under
the Securities Act; and
(f) None of the execution and delivery of this Agreement, the
purchase of the Mortgage Loans from the Unaffiliated Seller, the consummation of
the other transactions contemplated hereby, or the fulfillment of or compliance
with the terms and conditions of this Agreement, (i) conflicts or will conflict
with the charter or bylaws of the Depositor or conflicts or will conflict with
or results or will result in a breach of, or constitutes or will constitute a
default or results or will result in an acceleration under, any term, condition
or provision of any indenture, deed of trust, contract or other agreement or
other instrument to which the Depositor is a party or by which it is bound and
which is material to the Depositor, or (ii) results or will result in a
violation of any law, rule, regulation, order, judgment or decree of any court
or governmental authority having jurisdiction over the Depositor.
ARTICLE IV
THE UNAFFILIATED SELLER
Section 4.01. COVENANTS OF THE UNAFFILIATED SELLER. The
Unaffiliated Seller covenants to the Depositor as follows:
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(a) The Unaffiliated Seller shall cooperate with the Depositor
and the firm of independent certified public accountants retained with respect
to the issuance of the Certificates in making available all information and
taking all steps reasonably necessary to permit the accountants' letters
required hereunder to be delivered within the times set for delivery herein.
(b) The Unaffiliated Seller agrees to satisfy or cause to be
satisfied on or prior to the Closing Date, all of the conditions to the
Depositor's obligations set forth in Section 5.01 hereof that are within the
Unaffiliated Seller's (or its agents') control.
(c) The Unaffiliated Seller hereby agree to do all acts,
transactions, and things and to execute and deliver all agreements, documents,
instruments, and papers by and on behalf of the Unaffiliated Seller as the
Depositor or its counsel may reasonably request in order to consummate the
transfer of the Mortgage Loans to the Depositor and the subsequent transfer
thereof to the Trustee, and the rating, issuance and sale of the Certificates.
Section 4.02. MERGER OR CONSOLIDATION. The Unaffiliated Seller
will keep in full effect its existence, rights and franchises as a corporation
and will obtain and preserve its qualification to do business as a foreign
corporation, in each jurisdiction necessary to perform its duties under this
Agreement. Any Person into which the Unaffiliated Seller or the Unaffiliated
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Unaffiliated Seller shall be a
party, or any Person succeeding to the business of the Unaffiliated Seller,
shall be approved by the Depositor which approval shall not be unreasonably
withheld. The Unaffiliated Seller shall send notice of any such merger or
consolidation to the Depositor.
Section 4.03. COSTS. In connection with the transactions
contemplated under this Agreement and the Pooling and Servicing Agreement, the
Unaffiliated Seller shall promptly pay (or shall promptly reimburse the
Depositor to the extent that the Depositor shall have paid or otherwise
incurred): (a) the fees and disbursements of the Depositor's and the
Unaffiliated Seller's counsel; (b) the fees of S&P and Xxxxx'x; (c) any of the
fees of the Trustee and the fees and disbursements of the Trustee's counsel; (d)
expenses incurred in connection with printing the Prospectus, the Prospectus
Supplement, any amendment or supplement thereto, any preliminary prospectus and
the Certificates; (e) fees and expenses relating to the filing of documents with
the Securities and Exchange Commission (including without limitation periodic
reports under the Exchange Act); (f) the shelf registration amortization fee of
0.025% of the Class A Certificate Balance of the Offered Certificates on the
Closing Date, paid in connection with the issuance of Offered Certificates; (g)
the fees and disbursements for the accountants for the Unaffiliated Seller; and
(h) all of the initial expenses of the Class A Certificate Insurer including,
without limitation, legal fees and expenses, accountant fees and expenses and
expenses in connection with due diligence conducted on the Custodial Files but
not including the initial premium paid to the Class A Certificate Insurer. For
the avoidance of doubt, the parties hereto acknowledge that it is the intention
of the parties that the Depositor shall not pay any of the Trustee's fees and
expenses (other than amounts paid from Trust Fund cashflow under Section 4.02 of
the Pooling and Servicing Agreement) in connection with the transactions
contemplated by the Pooling and Servicing Agreement. All other costs and
expenses in connection with the transactions contemplated hereunder shall be
borne by the party incurring such expenses.
ARTICLE V
CONDITIONS OF CLOSING
Section 5.01. CONDITIONS OF DEPOSITOR'S OBLIGATIONS. The
obligations of the Depositor to purchase the Mortgage Loans will be subject to
the satisfaction on the Closing Date of the following
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conditions. Upon payment of the purchase price for the Mortgage Loans, such
conditions shall be deemed satisfied or waived.
(a) Each of the obligations of the Unaffiliated Seller and of
the Originators required to be performed by it or them on or prior to the
Closing Date pursuant to the terms of this Agreement or the Pooling and
Servicing Agreement shall have been duly performed and complied with, the
representations and warranties of the Unaffiliated Seller under this Agreement
and of the Originators under the Pooling and Servicing Agreement shall be true
and correct as of the Closing Date and no event shall have occurred which, with
notice or the passage of time, would constitute a default under this Agreement,
and the Depositor shall have received a certificate to the effect of the
foregoing signed by an authorized officer of the Unaffiliated Seller and the
Originators.
(b) The Depositor shall have received a letter dated the date
of this Agreement, in form and substance acceptable to the Depositor and its
counsel, prepared by Deloitte & Touche LLP, independent certified public
accountants, regarding the numerical information contained in the Prospectus
Supplement including, but not limited to the information under the captions
"Prepayment and Yield Considerations" and "The Mortgage Loan Pool" regarding any
numerical information in any marketing materials relating to the Certificates
and regarding any other information as reasonably requested by the Depositor.
(c) The Mortgage Loans will be acceptable to the Depositor, in
its sole reasonable discretion.
(d) The Depositor shall have received the following additional
closing documents, in form and substance reasonably satisfactory to the
Depositor and its counsel:
(i) the Mortgage Loan Schedule;
(ii) this Agreement, the Pooling and Servicing Agreement,
the Insurance Agreement, the Indemnification Agreement and the
Underwriting Agreement dated as of November 26, 2001 between the
Depositor and the Representative and all documents required thereunder,
duly executed and delivered by each of the parties thereto other than the
Depositor;
(iii) officer's certificates of an officer of each of the
Originators and the Unaffiliated Seller, dated as of the Closing Date,
and attached thereto resolutions of the board of directors and a copy of
the charter and by-laws;
(iv) copy of each of the Originators and the Unaffiliated
Seller's charter and all amendments, revisions, and supplements thereof,
certified by a secretary of each entity;
(v) an opinion of the counsel for the Originators and
the Unaffiliated Seller as to various corporate matters in a form
acceptable to the Depositor, its counsel, the Class A Certificate
Insurer, S&P and Xxxxx'x (it being agreed that the opinion shall
expressly provide that the Trustee shall be entitled to rely on the
opinion);
(vi) opinions of counsel for the Unaffiliated Seller, in
forms acceptable to the Depositor, its counsel, the Class A Certificate
Insurer, S&P and Xxxxx'x as to such matters as shall be required for the
assignment of a rating to the Class A Certificates of "AAA" by S&P, and
"Aaa" by Xxxxx'x (it being agreed that such opinions shall expressly
provide that the Trustee shall be entitled to rely on such opinions);
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(vii) a letter from Xxxxx'x to the effect that it has
assigned ratings of "Xxx," "Xx0," "X0" and "Baa3" to the Class A, Class
M-1, Class M-2 and Class B Certificates, respectively;
(viii) a letter from S&P to the effect that it has assigned
ratings of "AAA," "AA," "A," and "BBB-" to the Class A, Class M-1, Class
M-2 and Class B Certificates, respectively;
(ix) an opinion of counsel for the Trustee in form and
substance acceptable to the Depositor, its counsel, Xxxxx'x, the Class A
Certificate Insurer and S&P (it being agreed that the opinion shall
expressly provide that the Unaffiliated Seller shall be entitled to rely
on the opinion);
(x) opinions of counsel for each Originator, in form and
substance acceptable to the Depositor, its counsel, Xxxxx'x, the Class A
Certificate Insurer and S&P (it being agreed that the opinion shall
expressly provide that the Unaffiliated Seller shall be entitled to rely
on the opinion);
(xi) an opinion or opinions of counsel for the Servicer,
in form and substance acceptable to the Depositor, its counsel, the Class
A Certificate Insurer, Xxxxx'x and S&P (it being agreed that the opinion
shall expressly provide that the Unaffiliated Seller shall be entitled to
rely on the opinion); and
(xii) an opinion or opinions of counsel for the Class A
Certificate Insurer, in each case in form and substance acceptable to the
Depositor, its counsel, Xxxxx'x and S&P (it being agreed that the opinion
shall expressly provide that the Unaffiliated Seller shall be entitled to
rely on the opinion).
(e) The Class A Certificate Insurance Policy shall have been
duly executed, delivered and issued with respect to the Class A Certificates.
(f) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
satisfactory in form and substance to the Depositor and its counsel.
(g) The Unaffiliated Seller shall have furnished the Depositor
with such other certificates of its officers or others and such other documents
or opinions as the Depositor or its counsel may reasonably request.
Section 5.02. CONDITIONS OF UNAFFILIATED SELLER'S OBLIGATIONS. The
obligations of the Unaffiliated Seller under this Agreement shall be subject to
the satisfaction, on the Closing Date, of the following conditions:
(a) Each of the obligations of the Depositor required to be
performed by it at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with and all of the
representations and warranties of the Depositor contained in this Agreement
shall be true and correct as of the Closing Date and the Unaffiliated Seller
shall have received a certificate to that effect signed by an authorized officer
of the Depositor.
(b) The Unaffiliated Seller shall have received the following
additional documents:
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(i) the Pooling and Servicing Agreement, and all
documents required thereunder, in each case executed by the Depositor as
applicable; and
(ii) a copy of a letter from Xxxxx'x to the Depositor to
the effect that it has assigned ratings of "Xxx," "Xx0," "X0" and "Baa3"
to the Class A, Class M-1, Class M-2 and Class B Certificates,
respectively, and a copy of a letter from S&P to the Depositor to the
effect that it has assigned ratings of "AAA," "AA," "A" and "BBB-" to the
Class A Certificates.
(iii) an opinion of counsel for the Trustee in form and
substance acceptable to the Unaffiliated Seller and its counsel;
(iv) an opinion or opinions of counsel for the Class A
Certificate Insurer, in each case in form and substance acceptable to the
Unaffiliated Seller and its counsel.
(v) an opinion of the counsel for the Depositor as to
securities and tax matters in form and substance acceptable to the
Unaffiliated Seller and its counsel; and
(vi) an opinion of the counsel for the Depositor as to
true sale matters in form and substance acceptable to the Class A
Certificate Insurer and its counsel.
(c) All legal opinion letters and accountant's comfort letters
delivered in connection with the transactions contemplated by this Agreement and
the other agreements referred to herein shall be addressed to the Unaffiliated
Seller and shall be in form and substance satisfactory to the Unaffiliated
Seller.
(d) The Depositor shall have furnished the Unaffiliated Seller
with such other certificates of its officers or others and such other documents
to evidence fulfillment of the conditions set forth in this Agreement as the
Unaffiliated Seller may reasonably request.
Section 5.03. TERMINATION OF DEPOSITOR'S OBLIGATIONS. The
Depositor may terminate its obligations hereunder by notice to the Unaffiliated
Seller at any time before delivery of and payment of the purchase price for the
Mortgage Loans if: (a) any of the conditions set forth in Section 5.01 are not
satisfied when and as provided therein; (b) there shall have been the entry of a
decree or order by a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Unaffiliated Seller, or
for the winding up or liquidation of the affairs of the Unaffiliated Seller; (c)
there shall have been the consent by the Unaffiliated Seller to the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Unaffiliated Seller or of or relating to substantially all of
the property of the Unaffiliated Seller; (d) any purchase and assumption
agreement with respect to the Unaffiliated Seller or the assets and properties
of the Unaffiliated Seller shall have been entered into; or (e) a Termination
Event shall have occurred. The termination of the Depositor's obligations
hereunder shall not terminate the Depositor's rights hereunder or its right to
exercise any remedy available to it at law or in equity.
ARTICLE VI
MISCELLANEOUS
Section 6.01. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed by registered
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mail, postage prepaid, or transmitted by telex or telegraph and confirmed by a
similar mailed writing, (i) if to the Depositor, addressed to the Depositor at
Xxxxxx Xxxxxxx ABS Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Managing Director - Asset Backed Finance Group, or to such other
address as the Depositor may designate in writing to the other parties, or (ii)
if to the Unaffiliated Seller, addressed to the Unaffiliated Seller at CDC
Mortgage Capital Inc., 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel, or to such other address as the Unaffiliated Seller may
designate in writing to the other parties.
Section 6.02. SEVERABILITY OF PROVISIONS. Any part, provision,
representation, warranty or covenant of this Agreement which is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
Section 6.03. AGREEMENT OF UNAFFILIATED SELLER. The Unaffiliated
Seller agrees to execute and deliver such instruments and take such actions as
the Depositor may, from time to time, reasonably request in order to effectuate
the purpose and to carry out the terms of this Agreement.
Section 6.04. SURVIVAL. The parties to this Agreement agree that
the representations, warranties and agreements made by each of them herein and
in any certificate or other instrument delivered pursuant hereto shall be deemed
to be relied upon by the other party hereto, notwithstanding any investigation
heretofore or hereafter made by such other party or on such other party's
behalf, and that the representations, warranties and agreements made by the
parties hereto in this Agreement or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans.
Section 6.05. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 6.06. SUCCESSORS AND ASSIGNS. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as expressly permitted by the terms
hereof, this Agreement may not be assigned, pledged or hypothecated by any party
hereto to a third party without the written consent of the other party to this
Agreement.
Section 6.07. CONFIRMATION OF INTENT; GRANT OF SECURITY INTEREST.
It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans by the Unaffiliated Seller to the Depositor as contemplated by
this Unaffiliated Seller's Agreement be, and be treated for all purposes as, a
sale of the Mortgage Loans and that the conveyance of the Mortgage Loans by the
Unaffiliated Seller to the Depositor as contemplated by this Unaffiliated
Seller's Agreement be, and be treated for accounting purposes as, a sale of the
Mortgage Loans. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans by the Unaffiliated Seller
to the Depositor to secure a debt or other obligation of the Unaffiliated
Seller. However, in the event that, notwithstanding the intent of the parties,
the Mortgage Loans are held to continue to be property of the Originators or the
Unaffiliated Seller then (a) this Unaffiliated Seller's Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
Uniform Commercial Code; (b) the transfer of the Mortgage Loans provided for
herein shall be deemed to be a grant by the Originators to the
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Unaffiliated Seller and by the Unaffiliated Seller to the Depositor of a
security interest in all of such parties' right, title and interest in and to
the Mortgage Loans and all amounts payable on the Mortgage Loans in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the possession by the Depositor of Mortgage Notes and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest pursuant to Section 9-305 of the
Uniform Commercial Code; and (d) notifications to persons holding such property,
and acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Depositor for the purpose of perfecting such security interest under
applicable law. Any assignment of the interest of the Depositor pursuant to any
provision hereof shall also be deemed to be an assignment of any security
interest created hereby. The Unaffiliated Seller and the Depositor shall, to the
extent consistent with this Unaffiliated Seller's Agreement, take such actions
as may be necessary to ensure that, if this Unaffiliated Seller's Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement.
Section 6.08. MISCELLANEOUS. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof.
Section 6.09. AMENDMENTS.
(a) This Agreement may be amended from time to time by the
Unaffiliated Seller and the Depositor by written agreement, without notice to or
consent of the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions herein, to comply with any changes in the Code, or to
make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as evidenced by (i) an
Opinion of Counsel, at the expense of the party requesting the change, delivered
to the Trustee or (ii) a letter from each Rating Agency confirming that such
amendment will not result in the reduction, qualification or withdrawal of the
current rating of the Certificates, adversely affect in any material respect the
interests of any Certificateholder; and provided, further, that no such
amendment shall (x) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of the Holder of such Certificate, or (y) change
the rights or obligations of any other party hereto without the consent of such
party, or (z) cause the Unaffiliated Seller to conduct any activity not
permitted for qualified special purpose entities under the current accounting
literature.
(b) It shall not be necessary for the consent of Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof.
Section 6.10. THIRD-PARTY BENEFICIARIES. The parties agree that
each of the Class A Certificate Insurer, the Servicer, and the Trustee is an
intended third-party beneficiary of this Agreement to the extent necessary to
enforce the rights and to obtain the benefit of the remedies of the Depositor
under this Agreement which are assigned to the Trustee for the benefit of the
Certificateholders and the Class A Certificate Insurer, pursuant to the Pooling
and Servicing Agreement, and to the extent necessary to obtain the benefit of
the enforcement of the obligations and covenants of the Unaffiliated Seller
under Section 4.01 of this Agreement.
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SECTION 6.11. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS)
OF THE STATE OF NEW YORK.
(B) THE DEPOSITOR AND THE UNAFFILIATED SELLER EACH HEREBY
SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW
YORK CITY, AND EACH WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND
CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO
THE ADDRESS SET FORTH IN SECTION 6.01 OF THIS AGREEMENT AND SERVICE SO MADE
SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN
DEPOSITED IN THE U.S. MAIL, POSTAGE PREPAID. THE ORIGINATORS, THE DEPOSITOR AND
THE UNAFFILIATED SELLER EACH HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF THE
ORIGINATORS, THE DEPOSITOR AND THE UNAFFILIATED SELLER TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR AFFECT ANY SUCH PARTIES' RIGHT TO BRING ANY
ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
(C) THE DEPOSITOR AND THE UNAFFILIATED SELLER EACH HEREBY WAIVE
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL
BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 6.12. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 6.13. SUBSEQUENT MORTGAGE LOANS.. Sales of Subsequent
Mortgage Loans shall be effectuated by means of Subsequent Transfer Agreements
on substantially the form of Exhibit L to the Pooling and Servicing Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties to this Unaffiliated Seller's
Agreement have caused their names to be signed by their respective officers
thereunto duly authorized as of the date first above written.
XXXXXX XXXXXXX ABS CAPITAL I INC.
By:
------------------------------
Name:
Title:
CDC MORTGAGE CAPITAL INC.
By:
------------------------------
Name:
Title:
By:
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Name:
Title:
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