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Exhibit 2.2
SECOND AMENDMENT
TO
PURCHASE AND SALE AGREEMENT
Agreement dated as of February 28, 2001, by and between Advanta Corp.,
a Delaware corporation (the "Company"), and Chase Manhattan Mortgage
Corporation, a New Jersey corporation ("Purchaser").
The parties hereto are parties to a Purchase and Sale Agreement dated
as of January 8, 2001, as amended (the "Agreement") and wish to amend the
Agreement in the manner hereinafter set forth.
Now, therefore, the parties hereto, intending to be legally bound,
hereby agree to amend the Agreement as follows:
1. (a) Section 1.05(c)(iii) is hereby amended by amending Section
1.05(c)(iii)(D) to read "(D) the Franchise Premium; less" and the
following is hereby added to the end of Section 1.05(c)(iii): "(E)
$384,000 as an agreed to adjustment on CMSRs."
(b) Section 1.05(l)(i) of the Agreement is hereby amended and
restated to read in its entirety as follows:
"The Buyer shall contract for performance of an ARM Audit with an ARM
Audit Vendor pursuant to the terms of an ARM Audit Agreement to be executed by
the Company and the Buyer within 30 days after the Closing Date. Such ARM Audit
shall be completed no later than 12 months after the Closing Date, unless more
time is required by the ARM Audit Vendor to complete the ARM Audit. The Company
and Buyer shall cooperate with each other in connection with the negotiation of
the ARM Audit Agreement. Buyer shall comply with the provisions of the ARM Audit
Agreement and shall provide the Company with full access to the ARM Audit Vendor
and the data, findings and work product of the ARM Audit Vendor. Funds in the
ARM Holdback Account shall be used by Buyer to fund the ARM Audit and to pay ARM
Adjustments, except to the extent any ARM Adjustment is recovered by the
servicer under the relevant Servicing Agreement. Buyer shall release funds from
the ARM Holdback Account to pay the reasonable fees and expenses of the ARM
Audit Vendor in accordance with the provisions of the ARM Audit Agreement."
(c) Section 1.05(l)(ii) of the Agreement is hereby deleted
from the Agreement.
2. The definition of ARM Audit Agreement contained in Section 2 of the
Agreement is hereby deleted in its entirety and replaced with: "ARM Audit
Agreement" shall mean the
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agreement between the Buyer and the ARM Audit Vendor for performance of the ARM
Audit, the terms of which shall be mutually agreeable to the Company and Buyer.
3. (a) The definition of "Buyer Managed Litigation" contained in
Section 2 of the Agreement is hereby deleted in its entirety and replaced with,
in alphabetical order, the following definition:
"Seller Managed Litigation" shall mean the litigation listed
on Exhibit 1 to this Amendment.
(b) The definition of ARM Holdback contained in Section 2 of
the Agreement is hereby amended and restated to read in its entirety as
follows:
"ARM Holdback" shall mean $4,000,000 to be held by Buyer in
accordance with Section 1.05(1)(i) hereof.
4. Section 6.22 of the Agreement is hereby amended and restated to read
in its entirety as follows:
"SECTION 6.22 Obligation to Seek Reimbursement and/or Indemnification.
From and after the Closing Date, Buyer and its Affiliates shall perform the
obligations of the servicer or subservicer as set forth in the Servicing
Agreements (the "Servicing Obligations"), including, without limitation, the
obligation to make servicing and delinquency advances, manage reimbursable
litigation, cure documentation deficiencies and manage borrowers' defaults.
Obligations which relate to the period prior to the Closing Date shall be
performed to the extent required of the current servicer or current subservicer
under the provisions of the applicable Servicing Agreements; provided, however,
that neither Buyer nor its Affiliates assumes any liability for acts or
omissions or alleged acts or omissions of the Company or its Affiliates on or
prior to the Closing Date. In performing its obligations as servicer or
subservicer under the Servicing Agreements, Buyer and its Affiliates will seek
full recovery (including reimbursement for costs and expenses under the
provisions of the applicable Servicing Agreements and indemnification in favor
of servicer or subservicer for claims relating to servicing under the provisions
of the applicable Servicing Agreements) as servicer or subservicer (including,
where applicable, on behalf of the Company and the Selling Subsidiaries) to the
extent reasonably permissible under the terms of the applicable Servicing
Agreements. For the purpose of determining such obligations of Buyer and its
Affiliates to perform the obligations of the servicer and to seek recovery, the
obligations of the servicer and the recoverability with respect to loans owned
by Buyer or its Affiliates as of the Closing Date (including Owned Loans and
Off-Balance Sheet Loans) shall be determined pursuant to the applicable
Servicing Agreements for mortgage loans owned by Buyer or its Affiliates as in
effect immediately prior to the Closing Date. In the event that recovery is not
reasonably permissible under the terms of the Servicing Agreements with respect
to litigation, (the "Non-reimbursable Litigation"), Buyer and its Affiliates
shall have met the Litigation Threshold (as such term is defined in Section
10.03(c)) prior to seeking recovery against the Company under the terms of this
Agreement."
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5. Section 10.03 of the Agreement is hereby amended and restated to
read in its entirety as follows:
"SECTION 10.03 Litigation Management.
(a) Neither Buyer nor any of its Affiliates have assumed from
the Company or any Selling Subsidiary any liability for any litigation arising
before or after the Closing Date and relating to events occurring prior to the
Closing Date with the exception of Assumed Litigation.
(b) The Company shall manage the Seller Managed Litigation and
the defense and ultimate resolution of any litigation which is not Assumed
Litigation or not covered under the Servicing Obligations. The Company shall
not, without Buyer's prior written consent (which consent shall not be
unreasonably withheld or delayed), compromise any claim or consent to entry of
any judgment with respect to any Company managed litigation which would (i)
require Buyer or any of its Affiliates to take any action or refrain from taking
any action (including payment of money or the taking of any action that would
result in the diminution of the value of any Asset) (it being understood and
agreed that this clause (i) shall not apply if the action to be taken involves
solely the payment of monetary damages or other amounts for which the Company
shall be responsible); (ii) impose an injunction or other equitable relief upon
Buyer or any of its Affiliates; or (iii) affirmatively admit any wrongdoing on
the part of Buyer or any of its Affiliates unless the Company obtains for Buyer
or any of its Affiliates, as an unconditional term of such settlement or
compromise, the release by the claimant or plaintiff of Buyer or any of its
Affiliates from all liability with respect thereto. In connection with any such
settlement, compromise or consent, Company agrees to request an agreement from
the adverse party or parties not to disclose the terms thereof. Buyer agrees to
take all steps reasonably necessary in connection with such settlement or
compromise.
(c) To the extent Buyer seeks full recovery to the extent
reasonably permissible under the terms of the applicable Servicing Agreements,
and does not receive recovery, Buyer will incur the first $1,000,000 of expenses
in connection with Non-reimbursable Litigation (the "Litigation Threshold").
(d) The Company and Buyer shall enter into one or more joint
defense agreements or other arrangements as necessary or appropriate to protect
the attorney-client privilege as it applies to the Assumed Litigation,
litigation managed under the Servicing Obligations, and any litigation arising
out of the conduct of the Business by the Company or the Selling Subsidiaries on
or prior to Closing. Nothing contained in this Agreement shall require Company,
Buyer, or their respective Affiliates to waive the attorney-client privilege,
provided that the Company and Buyer shall, and shall cause their respective
Affiliates to use commercially reasonable best efforts to comply with the
provisions of this Agreement in a manner that does not waive such privilege."
6. The reference to a "Litigation Management Agreement" is removed from
the definition of "Ancillary Agreements".
7. Annex B to Schedule 2 is deleted.
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8. Exhibit L to the Agreement is intentionally omitted.
IN WITNESS WHEREOF, the parties have executed this Second Amendment as
of the date first above written.
ADVANTA CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Chief Financial Officer
CHASE MANHATTAN MORTGAGE CORPORATION
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
Executive Vice President
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The schedule of Seller Managed Litigation attached to this Second Amendment has
been omitted from filing herewith. Copies of such schedule shall be furnished to
the Securities and Exchange Commission upon request.
Also omitted from filing herewith is an amendment, dated January 18, 2001, to
the Purchase and Sale Agreement which amended only Schedule 8.02(k) thereto.
Copies of that amendment and the schedule shall be furnished to the Securities
and Exchange Commission upon request.
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