EXECUTION COPY
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, dated as of November 1, 2001 (the
"Purchase Agreement"), between DLJ Mortgage Capital, Inc., a Delaware
corporation ("Seller"), and Credit Suisse First Boston Mortgage Securities
Corp., a Delaware corporation ("Buyer").
For and in consideration of the mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. The Seller hereby sells, grants, transfers and assigns to Buyer,
without recourse, all of the right, title and interest of Seller, in, to and
under (a) those certain Contracts listed on Exhibit A attached hereto (the
"Contracts"), (b) those certain agreements listed on Exhibit B attached hereto
(the "Agreements") with respect to the Contracts and (c) the June Credit Support
Agreement, dated November 21, 2001 (the "June Credit Support Agreement"), by and
among the Seller, TYCO Capital Corporation, The CIT Group/Sales Financing, Inc.
and The CIT Group/Consumer Finance, Inc. (NY) relating to the Contracts, and the
Buyer hereby agrees to buy such Contracts and rights in such Agreements and the
June Credit Support Agreement for a purchase price of $107,640,227.46 (the
"Purchase Price"). The parties hereto acknowledge that such Purchase Price is
the fair market value of the Contracts and the rights in such Agreements and the
June Credit Support Agreement.
The Seller specifically reserves and does not assign to the Buyer
hereunder any and all right, title and interest in, to and under and all
obligations of the Seller with respect to any contracts subject to the
Agreements which are not the Contracts set forth on Exhibit A attached hereto
and are not the subject of this Purchase Agreement.
2. The Seller warrants and represents to, and covenants with, the
Buyer that:
a. The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
and has all requisite corporate power and authority to acquire, own and purchase
the Contracts;
b. The Seller has full corporate power and authority to
execute, deliver and perform its obligations under this Purchase, and to
consummate the transactions set forth herein. The execution, delivery and
performance by the Seller of this Purchase Agreement, and the consummation by it
of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Seller. This Purchase Agreement has been duly
executed and delivered by the Seller and constitutes the valid and legally
binding obligation of the Seller enforceable against the Seller in accordance
with its respective terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law;
c. To the best of Seller's knowledge, no material consent,
approval, order or authorization of, or declaration, filing or registration
with, any governmental entity is required to be obtained or made by the Seller
in connection with the execution, delivery or performance by the Seller of this
Purchase Agreement, or the consummation by it of the transactions contemplated
hereby;
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d. The Seller is the lawful owner of the Contracts and the
Credit Support Agreement with the full right to transfer the Contracts and the
Credit Support Agreement free from any and all claims and encumbrances
whatsoever;
e. The Seller has not received notice of, and has no knowledge
of, any offsets, counterclaims or other defenses with respect to the Agreements,
the Contracts or the Credit Support Agreement;
f. The Seller has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Agreements, the Contracts
or the Credit Support Agreement, including without limitation the transfer of
the servicing obligations under the Agreements. The Seller has no knowledge of,
and has not received notice of, any waivers under or amendments or other
modifications of, or assignments of rights or obligations under or defaults
under, the Agreements, the Credit Support Agreement or the Contracts; and
g. Neither the Seller nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Contracts, any
interest in the Contracts or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the Contracts,
any interest in the Contracts or any other similar security from, or otherwise
approached or negotiated with respect to the Contracts, any interest in the
Contracts or any other similar security with, any person in any manner, or made
by general solicitation by means of general advertising or in any other manner,
or taken any other action which would constitute a distribution of the Contracts
under the Securities Act of 1933 (the "1933 Act") or which would render the
disposition of the Contracts a violation of Section 5 of the 1933 Act or require
registration pursuant thereto.
3. The Buyer warrants and represents to, and covenants with, the
Seller that:
a. The Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
and has all requisite corporate power and authority to acquire, own and purchase
the Contracts;
b. The Buyer has full corporate power and authority to execute,
deliver and perform its obligations under this Purchase Agreement, and to
consummate the transactions set forth herein. The execution, delivery and
performance by the Buyer of this Purchase Agreement, and the consummation by it
of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Buyer. This Purchase Agreement has been duly
executed and delivered by the Buyer and constitutes the valid and legally
binding obligation of the Buyer enforceable against the Buyer in accordance with
its respective terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law
(except as enforcement of such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies);
c. To the best of Buyer's knowledge, no material consent,
approval, order or authorization of, or declaration, filing or registration
with, any governmental entity is required to be obtained or made by the Buyer in
connection with the execution, delivery or
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performance by the Buyer of this Purchase Agreement, or the consummation by it
of the transactions contemplated hereby;
d. The Buyer agrees to be bound by all of the terms, covenants
and conditions of the Agreements and the Contracts, and from and after the date
hereof, the Buyer assumes for the benefit of the Seller all of the Seller's
obligations thereunder, with respect to the Contracts;
e. The Buyer understands that the Contracts have not been
registered under the 1933 Act or the securities laws of any state;
f. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge with respect to financial and
business matters that it is capable of evaluating the merits and the risks of
investment in the Contracts;
g. The Buyer has been furnished with all information regarding
the Contracts that it has requested from the Seller; and
h. Either: (1) the Buyer is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan (also "Plan") within the
meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended
("Code"), and the Buyer is not directly or indirectly purchasing the Contracts
on behalf of, as investment manager of, as named fiduciary of, as Trustee of, or
with assets of, a Plan; or (2) the Buyer's purchase of the Contracts will not
result in a prohibited transaction under section 406 of ERISA or Section 4975 of
the Code.
4. This Purchase Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by duly authorized representatives of the parties
hereto.
5. This Purchase Agreement may be assigned by the Buyer at any time
without the prior consent of the Seller.
6. This Purchase Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and such counterparts shall constitute but one and the same
instrument.
7. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
8. It is the express intent of the parties hereto that the
conveyance of the Contracts, by the Seller to the Buyer be, and be construed as,
an absolute sale thereof. It is, further, not the intention of the parties that
such conveyance be deemed a pledge thereof. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of the Seller, or if for any other reason this Purchase Agreement is
held or deemed to create a security
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interest in either such assets, then (i) this Purchase Agreement shall be deemed
to be a security agreement within the meaning of the Uniform Commercial Code of
the State of New York and (ii) the conveyance provided for in this Purchase
Agreement shall be deemed to be an assignment and a grant by the Seller to the
Buyer, of a security interest in all of the assets transferred, whether now
owned or hereafter acquired. The Seller for the benefit of the Buyer shall, to
the extent consistent with this Purchase Agreement, take such actions as may be
necessary to ensure that, if this Purchase Agreement were deemed to create a
security interest in the Contracts, 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 the Agreement. The Seller shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted by the Seller to the Buyer.
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IN WITNESS WHEREOF, the parties have caused this Purchase Agreement to
be executed by their duly authorized officers as of the date first above
written.
DLJ Mortgage Capital, Inc., Credit Suisse First Boston Mortgage
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Securities Corp.,
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Seller Buyer
By: By:
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Its: Its:
Taxpayer Identification Taxpayer Identification
Number :00-0000000 Number: 00-0000000
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EXHIBIT A
CONTRACT SCHEDULE
[See Attachment]
EXHIBIT B
LIST OF AGREEMENTS
1. Master Manufactured Housing Purchase, Sale and Servicing Agreement (the
"Sale and Servicing Agreement") dated as of June 29, 2001, among The CIT
Group/Sales Financing, Inc., The CIT Group/Consumer Financing, Inc. (NY),
The CIT Group, Inc. and DLJ Mortgage Capital, Inc. (a copy of which is
attached to this Exhibit B)
2. Xxxx of Sale (as defined in the Sale and Servicing Agreement)
3. Term Sheet (as defined in the Sale and Servicing Agreement) for the
Contracts (as defined in this Purchase Agreement).
