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EXHIBIT 10.2
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TRANSFER AGREEMENT
among
EQUICREDIT CORPORATION OF AMERICA
EQUICREDIT CORPORATION/ALA. & MISS.
CALIFORNIA/EQUICREDIT CORPORATION
EQUICREDIT CORPORATION OF IN.
EQUICREDIT CORPORATION OF PA.
EQUICREDIT CORPORATION OF SC
Transferors
EQUICREDIT CORPORATION OF AMERICA
Representative
and
EQCC RECEIVABLES CORPORATION
EQCC ASSET BACKED CORPORATION
Transferees
Dated as of ___ 1, 199_
EQCC HOME EQUITY LOAN TRUST 199_-_
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TABLE OF CONTENTS
Page
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ARTICLE I
CERTAIN DEFINITIONS
Section 1.01 General................................................................ 1
ARTICLE II
CONVEYANCE OF THE MORTGAGE LOANS
Section 2.01 Conveyance of Mortgage Loans........................................... 1
Section 2.02 Possession of Mortgage Files........................................... 2
Section 2.03 Books and Records...................................................... 2
Section 2.04 Delivery of Mortgage Loan Documents.................................... 2
Section 2.05 Acceptance by Transferees of the Mortgage Loans; Certain
Substitutions; Certification by the Trustee............................ 4
Section 2.06 Acceptance by Transferees.............................................. 5
Section 2.07 The Closing............................................................ 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Representative and the
Transferors............................................................ 6
Section 3.02 Representations and Warranties as to the Mortgage Loans and the
Mortgage Pool.......................................................... 10
Section 3.03 Purchase and Substitution.............................................. 20
ARTICLE IV
CONDITIONS
Section 4.01 Conditions to Obligation of the Transferees............................ 21
Section 4.02 Conditions To Obligation of the Representative and each Transfeor...... 22
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ARTICLE V
THE TRANSFERORS
Section 5.01 Third Party Servicers......................................... 22
Section 5.02 Enforceability; Merger or Consolidation of the Transferors.... 23
Section 5.03 Mandatory Delivery; Grant of Security Interest................ 23
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.01 Conflicts With Pooling and Servicing Agreement................ 23
Section 6.02 Protection of Title to Trust.................................. 24
Section 6.03 Other Liens or Interests...................................... 24
Section 6.04 Purchase Events............................................... 24
Section 6.05 Indemnification............................................... 25
Section 6.06 Trust......................................................... 25
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment.................................................... 25
Section 7.02 Waivers...................................................... 25
Section 7.03 Costs and Expenses........................................... 25
Section 7.04 Survival..................................................... 25
Section 7.05 Confidential Information..................................... 26
Section 7.06 Severability Clause.......................................... 26
Section 7.07 Headings and Cross-References................................ 26
Section 7.08 Recordation of Agreement..................................... 26
Section 7.09 Governing Law................................................ 26
Section 7.10 Notices...................................................... 26
Section 7.11 Counterparts................................................. 27
Section 7.12 The Certificate Insurer...................................... 27
EXHIBIT A List of Transferors
EXHIBIT B Mortgage Loan Schedules
EXHIBIT C Form of Transferee Receipt
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THIS TRANSFER AGREEMENT is made as of _______ 1, 199_, by and
among THE TRANSFERORS LISTED ON THE SIGNATURE PAGE HERETO (the "Transferors"),
EQUICREDIT CORPORATION OF AMERICA, as representative (the "Representative") and
EQCC ASSET BACKED CORPORATION ("EQBC") and EQCC RECEIVABLES CORPORATION ("EQC,"
and collectively with EQBC the "Transferees").
WHEREAS, Transferors and the Transferees wish to set forth the
terms pursuant to which the Mortgage Loans are to be transferred by the
Transferors to the Transferees in exchange for (i) the delivery of cash from the
Transferees and (ii) the acceptance by EQC of a capital contribution from
EquiCredit Corporation of America;
NOW, THEREFORE, in consideration of the foregoing, the other
good and valuable consideration and the mutual terms and covenants contained
herein, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01 General.
Certain capitalized terms used in this Agreement are defined
in and shall have the respective meanings assigned them in Article I to the
Pooling and Servicing Agreement, dated as of ___________, 199_, among the
Transferees, as Depositors, EquiCredit Corporation of America, as Representative
and Servicer and U.S. Bank National Association, as Trustee (the "Pooling and
Servicing Agreement"). All references herein to "the Agreement" or "this
Agreement" are to this Transfer Agreement, and all references herein to
Articles, Sections and subsections are to Articles, Sections or subsections of
this Transfer Agreement unless otherwise specified.
ARTICLE II
CONVEYANCE OF THE MORTGAGE LOANS
SECTION 2.01 Conveyance of Mortgage Loans.
(a) Immediately prior to consummation on the Closing Date of
the transactions contemplated by the Pooling and Servicing Agreement, in
consideration of each Transferee's delivery of the amount of cash and other
consideration to or to the order of the applicable Transferor as set forth on
Exhibit A hereto, each Transferor does hereby transfer, assign, set over and
convey to the related Transferee without recourse, all of the right, title and
interest of such Transferor in and to the Mortgage Loans set forth in the
applicable Mortgage Loan Schedules attached hereto as Exhibit ▇-▇, ▇-▇, ▇-▇,
▇-▇, B-5 and B-6, together with the Mortgage Files relating thereto and all
proceeds thereof (excepting the Representative's Yield and amounts received on
and after the Cut-off Date in respect of interest accrued on such Mortgage Loans
prior to the Cut-off Date).
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Section 2.02 Possession of Mortgage Files.
(a) Upon the delivery to each Transferor of the consideration
set forth in Section 2.01, the ownership of each Transferor's Mortgage Notes,
related Mortgages and the contents of the related Mortgage Files are vested in
the related Transferee.
(b) Pursuant to Section 2.04, each Transferor has delivered or
caused to be delivered each Transferees' Mortgage File with respect to its
Mortgage Loans to the related Transferee.
Section 2.03 Books and Records.
The transfer of each Mortgage Loan to a Transferee shall be
reflected on the Transferors' balance sheets and other financial statements as a
sale of assets by the Representative and each Transferor. The Transferors 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 a Transferee.
Section 2.04 Delivery of Mortgage Loan Documents.
Each Transferor has delivered or caused to be delivered to the
related Transferee or its designee in accordance with the instructions of such
Transferee, each of the documents referred to in Section 2.04 of the Pooling and
Servicing Agreement, as follows:
(a) (i)(A) The original Mortgage Note, with any intervening
endorsements, endorsed "Pay to the order of U.S. Bank National Association, as
Trustee under the Pooling and Servicing Agreement dated as of _______, 199_
without recourse" and signed, by facsimile or manual signature, in the name of
the applicable Transferor that transferred such Mortgage Loan to the applicable
Transferee pursuant to this Agreement by a Responsible Officer, with all prior
and intervening endorsements showing a complete chain of endorsement from the
originator of such Mortgage Note to the related Transferor, if the applicable
Transferor was not the originator or (B) if such Mortgage Note is a Destroyed
Mortgage Note, an original Destroyed Mortgage Note Affidavit together with a
copy of such Mortgage Note attached hereto, and (ii) with respect to
manufactured housing units, the certificate of title, if any;
(b) Either: (i) the original Mortgage, with evidence of
recording thereon (and, in the case of an Mortgage Loan secured by a Mortgaged
Property held in an Illinois Land Trust, signed by the trustee of such Illinois
Land Trust), (ii) a copy of the Mortgage certified as a true copy (A) by a
Responsible Officer of the applicable Transferor that transferred such Mortgage
Loan to the applicable Transferee pursuant to this Agreement (provided, however,
that such Responsible Officer may complet one or more blanket certificates
attaching copies of one or more Mortgages relating thereto) or (B) by the
closing attorney, or by an officer of the title insurer or agent of the title
insurer which issued the related title insurance policy, or commitment therefor,
if the original has been transmitted for recording until such time as the
original is returned by the public recording office or (iii) a copy of the
Mortgage certified by the public recording office in those instances where the
original recorde Mortgage has been lost or not yet returned;
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(c) The original Assignment of Mortgage in recordable form
from the applicable Transferor that transferred such Mortgage Loan to the
applicable Transferee pursuant to this Agreement in blank or to the order of the
applicable Transferee or its designee;
(d) Except with respect to any Mortgage Loan secured by a
second priority lien and having a Principal Balance not in excess of $_______,
the original policy of title insurance or a true copy thereof or, if such policy
has not yet been delivered by the insurer, the commitment or binder to issue
same, or original documents of assurance of title;
(e) All intervening assignments, if any, showing a complete
chain of assignment from the originator thereof to the applicable Transferor,
including any recorded warehousing assignments, with evidence of recording
thereon, certified by a Responsible Officer of the applicable Transferor as a
true copy of the original of such intervening assignments;
(f) A copy of all assumption and modification agreements, if
any, certified as a true copy by a Responsible Officer of the applicable
Transferor;
(g) If the Mortgaged Property is held in an Illinois Land
Trust, the original Assignment of Beneficial Interest, or, if the trustee of
such Illinois Land Trust retains such original Assignment of Beneficial
Interest, a certified true copy of such Assignment of Beneficial Interest so
certified by such trustee;
(h) If the Mortgaged Property is held in an Illinois Land
Trust, an original Reassignment of Assignment of Beneficial Interest from the
applicable Transferor in blank or to the order of the Transferee or its
designee;
(i) If the Mortgaged Property is held in an Illinois Land
Trust, originals of all intervening Reassignments of Assignment of Beneficial
Interest, showing a complete chain of assignment from the beneficiaries of such
Illinois Land Trust to the applicable Transferor of all of such beneficiaries'
right, title, and interest in, to, and under the trust agreement with respect to
such Illinois Land Trust; and
(j) If the Mortgaged Property is held in an Illinois Land
Trust, (A) a certified copy of the instrument creating the Illinois Land Trust,
(B) a copy of the UCC-1 Financing Statement evidencing the assignment of the
Mortgagor's beneficial interest in the Illinois Land Trust, with evidence of
filing thereon, and (C) the original personal guaranty of the Mortgage Note,
executed by each beneficiary of the Illinois Land Trust.
The applicable Transferor shall use its reasonable efforts to
promptly deliver or cause to be delivered to the Transferees: (a) the original
recorded Mortgage in those instances where a copy thereof certified by such
Transferor was delivered to the related Transferee; (b) any intervening
assignments of Mortgage evidencing a complete chain of assignment from the
originator of such Mortgage to the related Transferor in those instances where
copies of such assignments certified by such Transferor were delivered to the
Transferee; and (c) the title insurance policy or assurance of title required in
Section 2.04 above. The applicable Transferor shall, within five (5) Business
Days after the receipt thereof, and in any event, within twelve months after the
Closing Date, deliver or cause to be delivered to the Transferees each document
described in any of the preceding clauses (a), (b) and (c); provided, however,
that if a document
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described in the preceding clause (a) or clause (b) has no been returned from
the appropriate public recording office, the applicable Transferor shall deliver
a certified copy of the Mortgage and a receipted copy of the assignment from the
appropriate recording office prior to the expiration of such twelve-month
period. Notwithstanding anything to the contrary contained in this Section 2.04,
the applicable Transferor shall be deemed to have satisfied its obligations to
deliver a Mortgage or assignment of Mortgage upon delivery to the related
Transferee of a copy of such Mortgage or Assignment of Mortgage, as applicable,
certified by the public recording office to be a true copy of the recorded
original thereof. From time to time the applicable Transferor may forward or
cause to be forwarded to the applicable Transferee additional original documents
evidencing an assumption or modification of an Mortgage Loan. All Mortgage Loan
documents held by a Transferee as to each Mortgage Loan are referred to herein
as the "Transferees' Mortgage File."
All recording required pursuant to this Section 2.04 shall be
accomplished by and at the expense of the Transferors.
Section 2.05 Acceptance by Transferees of the Mortgage
Loans; Certain Substitutions; Certification by the Trustee.
(a) Each Transferee agrees to execute and deliver on the
Closing Date an acknowledgment of receipt of, for each Mortgage Loan, the items
listed in Section 2.04 (a), (b), (c), (g) and (h) above, in the form attached as
Exhibit C hereto, and declare that they will hold such documents and any
amendments, replacements or supplements thereto, as well as any other assets
transferred pursuant to the terms hereof. Pursuant to the Pooling and Servicing
Agreement, the Custodial Agreement and this Agreement, the Trustee will, for the
benefit of the Transferees and the Certificate Insurer, review (or cause to be
reviewed) each of the documents set forth in Section 2.04 within 45 days after
the Closing Date (or, with respect to any Qualified Substitute Mortgage Loan,
within 45 days after the delivery thereof) and to deliver a certification in the
form attached to the Pooling and Servicing Agreement as Exhibit F-1 to the
effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or any Mortgage Loan specifically
identified in such certification as not covered by such certification), (i) all
documents required to be delivered to it pursuant to this Agreement are in its
possession (other than those described in Section 2.04(a)(ii) and 2.04(f)), (ii)
such documents have been reviewed by it and have not been mutilated, damaged,
torn or otherwise physically altered (handwritten additions, changes or
corrections shall not constitute physical alteration if initialed by the
Mortgagor) and relate to such Mortgage Loan, and (iii) based on its examination
and only as to the foregoing documents, the information set forth on the
Mortgage Loan Schedule (other than items (i), (iv) and (x) of the definition of
Mortgage Loan Schedule) accurately reflects the information set forth in the
Mortgage File. Pursuant to the Pooling and Servicing Agreement, the Custodial
Agreement and this Agreement, the Trustee shall be under no duty or obligation
to inspect, review or examine any such documents, instruments, certificates or
other papers to determine that they are genuine, enforceable, or appropriate for
the represented purpose or that they are other than what they purport to be on
their face. Within 375 days after the Closing Date, pursuant to the Pooling and
Servicing Agreement, the Trustee shall deliver (or cause to be delivered) a
final certification in the form attached to the Pooling and Servicing Agreement
as Exhibit F-2 evidencing the completeness of the Mortgage Files.
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(b) If the Trustee during the process of reviewing the
Mortgage Files finds any document constituting a part of a Mortgage File which
is not executed, has not been received, is unrelated to the Mortgage Loan
identified in the Mortgage Loan Schedule, or does not conform to the
requirements of Section 2.04 or substantively to the description thereof as set
forth in the Mortgage Loan Schedule, the Trustee is required by the Pooling and
Servicing Agreement to promptly give notice of the same In performing any such
review, the Trustee may conclusively rely on the applicable Transferor as to the
purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents listed in Section 2.04 (other
than those described in Section 2.04(f)) have been executed and received and
relate to the Mortgage Files identified in the Mortgage Loan Schedule. The
applicable Transferor agrees to use its reasonable efforts to cause to be
remedied a material defect in a document constituting part of a Mortgage File of
which the Representative is so notified by the Trustee or the Certificate
Insurer. If, however, within 60 days after notice to it respecting such defect,
the applicable Transferor has not caused to be remedied the defect and the
defect materially and adversely affects the interest of the related Transferee
in the Mortgage Loan, upon demand therefor by the Servicer, the Transferor will
on the Payment Date immediately succeeding the end of such 60 day period (i)
substitute, in lieu of such Mortgage Loan, a Qualified Substitute Mortgage Loan
in the manner and subject to the conditions set forth in Section 3.03 or (ii)
purchase such Mortgage Loan at a purchase price equal to the Principal Balance
of such Mortgage Loan as of the date of purchase, plus all accrued and unpaid
interest on such Principal Balance, computed at the Mortgage Interest Rate, net
of the Servicing Fee i the Representative is the Servicer, plus the amount of
any unreimbursed Servicing Advances made by the Servicer with respect to such
Mortgage Loan (after deducting therefrom any amounts received in respect of such
purchased Mortgage Loan or Loans).
(c) Upon receipt by the Trustee of a certification of a
Servicing Officer of the Servicer of such substitution or purchase described
above and receipt of the Mortgage File relating to the purchase price for such
Deleted Mortgage Loan or the Qualified Substitute Mortgage Loan and any
Substitution Adjustment, the Trustee is required to release to the
Representative or to the applicable Transferor the related Mortgage File and
shall execute, without recourse, and deliver such instruments of transfer
necessary to transfer such Mortgage Loan to the Representative or to the
applicable Transferor.
Section 2.06 Acceptance by Transferees.
Each Transferee acknowledges the assignment to it of the
Mortgage Loans being transferred hereby by the related Transferors and the
delivery of the Mortgage Files to it or upon its order and, concurrently with
such delivery, has executed, authenticated and delivered to or upon the order of
the Representative on behalf of the related Transferors, in exchange for such
Mortgage Loans and the related Mortgage Files, cash and other consideration as
set forth in Section 2.01.
Section 2.07 The Closing.
The conveyance of the Mortgage Loans shall take place at the
offices of [Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇], on the
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Closing Date, immediately prior to the closing of the transactions contemplated
by the Pooling and Servicing Agreement, the Underwriting Agreement and the other
Basic Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties of the
Representative and the Transferors.
(1) The Representative hereby represents and warrants to the
Transferees as of the Closing Date:
(a) The Representative is duly organized, validly existing,
and in good standing under the laws of the State of Delaware and has all
licenses necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in each Mortgaged Property State if the
laws of such state require licensing or qualification in order to conduct
business of the type conducted by the Representative and perform its obligations
as Representative hereunder; the Representative has the power and authority 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 Representative
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary action; this Agreement is the valid, binding
and enforceable obligation of the Representative; and all requisite action has
been taken by the Representative to make this Agreement valid, binding and
enforceable upon the Representative in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally or the application of
equitable principles in any proceeding, whether at law or in equity;
(b) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and licenses
required to be taken, given or obtained, as the case may be, by or from any
federal, state or other governmental authority or agency (other than any such
actions, approvals, etc. under any state securities laws, real estate
syndication or "Blue Sky" statutes, as to which the Representative makes no such
representation or warranty), that are necessary in connection with the purchase
and sale of the Certificates and the execution and delivery by such
Representative of the documents to which it is a party, have been duly taken,
given or obtained, as the case may be, are in full force and effect, are not
subject to any pending proceedings or appeals (administrative, judicial or
otherwise) and either the time within which any appeal therefrom may be taken or
review thereof may be obtained has expired or no review thereof may be obtained
or appeal therefrom taken, and are adequate to authorize the consummation of the
transactions contemplated by this Agreement and the other documents on the part
of the Representative and the performance by the Representative of its
obligations as a Representative under this Agreement and such of the other Basic
Documents to which it is a party;
(c) The consummation of the transactions contemplated by this
Agreement will not result in the breach of any terms or provisions of the bylaws
of the Representative or result in
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the breach of any term or provision of, or conflict with or constitute a default
under or result in the acceleration of any obligation under, any material
agreement, indenture or loan or credit agreement or other material instrument to
which the Representative or its property is subject, or result in the violatio
of any law, rule, regulation, order, judgment or decree to which the
Representative or its property is subject;
(d) Neither this Agreement nor the Prospectus nor any
statement, report or other document prepared by the Representative and furnished
or to be furnished pursuant to this Agreement or in connection with the
transactions contemplated hereby, by the Pooling and Servicing Agreement or by
any Basic Document contains any untrue statement of material fact or omits to
state a material fact necessary to make the statements contained herein or
therein not misleading;
(e) There is no action, suit, proceeding or investigation
pending or, to the best of the knowledge of the Representative, threatened
against the Representative 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 Representative or
in any material impairment of the right or ability of the Representative to
carry on its business substantially as now conducted, or in any material
liability on the part of the Representative or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action taken or
to be taken in connection with the obligations of the Representative
contemplated herein, or which would be likely to impair materially the ability
of the Representative to perform under the terms of this Agreement;
(f) The Representative is not in 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 default might have consequences
that would materially and adversely affect the condition (financial or other) or
operations of the Representative or its properties or might have consequences
that would materially and adversely affect its performance hereunder;
(g) Upon the receipt of each Mortgage File by the Transferees
under this Agreement, the Transferees will have good and indefeasible title to
each Mortgage Loan (other than the Representative's Yield and amounts received
after the Cut-off Date in respect of interest accrued on or prior to the Cut-off
Date) and such other items transferred hereunder, free and clear of any Lien
(other than Liens which will be simultaneously released);
(h) The transfer, assignment and conveyance of the Mortgage
Notes and the Mortgages by the Transferor pursuant to this Agreement are not
subject to the bulk transfer laws or any similar statutory provisions in effect
in any applicable jurisdiction;
(i) The origination and collection practices used by the
Representative with respect to each Mortgage Note and Mortgage (other than each
Mortgage Note and Mortgage related to an Acquired Mortgage Loan) have been in
all material respects legal, proper, prudent and customary in the second
mortgage origination and servicing business; and, to the best knowledge of the
Representative, the origination and collection practices used by the originator
with respect to each Mortgage Note and Mortgage related to an Acquired Mortgage
Loan have
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been in all material respects legal, proper, prudent and customary in the second
mortgage origination and servicing business;
(j) The Representative did not transfer and will not transfer
any Mortgage Loan with any intent to hinder, delay or defraud any of its
creditors;
(k) The Representative is solvent and will not be rendered
insolvent as a result of the transfer of the Mortgage Loans to the Transferees
or the sale of the Certificates; and
(l) The Representative is an approved seller/servicer of first
and second mortgage loans for FNMA and FHLMC in good standing,
(2) Each Transferor hereby represents and warrants to the
Transferees as of the Closing Date:
(a) Such Transferor is duly organized, validly existing, and
in good standing under the laws of the jurisdiction of its incorporation and has
all licenses necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in each Mortgaged Property State if the
laws of such state require licensing or qualification in order to conduct
business of the type conducted by such Transferor and perform its obligations as
a Transferor hereunder; such Transferor has the power and authority 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 such Transferor and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary action; this Agreement is the valid, binding and
enforceable obligation of such Transferor; and all requisite action has been
taken by such Transferor to make this Agreement valid, binding and enforceable
upon such Transferor in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors rights generally or the application of
equitable principles in any proceeding, whether at law or in equity;
(b) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and licenses
required to be taken, given or obtained, as the case may be, by or from any
federal, state or other governmental authority or agency (other than any such
actions, approvals, etc. under any state securities laws, real estate
syndication or "Blue Sky" statutes, as to which such Transferor makes no such
representation or warranty), that are necessary in connection with the execution
and delivery by such Transferor of the Basic Documents to which it is a party,
have been duly taken, given or obtained, as the case may be, are in full force
and effect, are not subject to any pending proceedings or appeals
(administrative, judicial or otherwise) and either the time within which any
appeal therefrom may be taken or review thereof may be obtained has expired or
no review thereof may be obtained or appeal therefrom taken, and are adequate to
authorize the consummation of the transactions contemplated by this Agreement
and the other documents on the part of such Transferor and the performance by
such Transferor of its obligations as a Transferor under this Agreement and such
of the other Basic Documents to which it is a party;
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(c) The consummation of the transactions contemplated by this
Agreement will not result in the breach of any terms or provisions of the bylaws
of such Transferor or result in the breach of any term or provision of, or
conflict with or constitute a default under or result in the acceleration of any
obligation under, any material agreement, indenture or loan or credit agreement
or other material instrument to which such Transferor or its property is
subject, or result in the violation of any law, rule, regulation, order,
judgment or decree to which such Transferor or its property is subject;
(d) Neither this Agreement nor the Prospectus nor any
statement, report or other document prepared by the Representative or such
Transferor and furnished or to be furnished pursuant to this Agreement or in
connection with the transactions contemplated hereby, by the Pooling and
Servicing Agreement or by any Basic Document, contains any untrue statement of
material fact or omits to state a material fact necessary to make the statements
contained herein or therein not misleading;
(e) There is no action, suit, proceeding or investigation
pending or, to the best of such Transferor's knowledge, threatened against such
Transferor 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 such Transferor or in any material impairment of the
right or ability of such Transferor to carry on its business substantially as
now conducted, or in any material liability on the part of such Transferor or
which would draw into question the validity of this Agreement or the Mortgage
Loans or of any action taken or to be taken in connection with the obligations
of such Transferor contemplated herein, or which would be likely to impair
materially the ability of the Transferor to perform under the terms of this
Agreement;
(f) Such Transferor is not in 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 default might have consequences
that would materially and adversely affect the condition (financial or other) or
operations of such Transferor its properties or might have consequences that
would materially and adversely affect its performance hereunder or under any
Subservicing Agreement;
(g) Upon the receipt of each Mortgage File by the Transferees
under this Agreement, the Transferees will have good and indefeasible title to
each Mortgage Loan (other than the Representative's Yield and amounts received
after the Cut-off Date in respect of interest accrued on or prior to the Cut-off
Date) and such other assets transferred hereunder free and clear of any Lien
(other than Liens which will be simultaneously released);
(h) The transfer, assignment and conveyance of the Mortgage
Notes and the Mortgages by such Transferor pursuant to this Agreement are not
subject to the bulk transfer laws or any similar statutory provisions in effect
in any applicable jurisdiction;
(i) Such Transferor did not transfer any interest in any
Mortgage Loan with any intent to hinder, delay or defraud any of its respective
creditors;
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(j) Such Transferor is solvent and such Transferor will not be
rendered insolvent as a result of the transfer of the Mortgage Loans to the
Transferees; and
(k) The origination and collection practices used by such
Transferor with respect to each Mortgage Note and Mortgage (other than each
Mortgage Note and Mortgage related to an Acquired Mortgage Loan) have been in
all material respects legal, proper, prudent and customary in the second
mortgage origination and servicing business; and, to the best knowledge of such
Transferor, the origination and collection practices used by the originator with
respect to each Mortgage Note and Mortgage related to an Acquired Mortgage Loan
have been in all material respects legal, proper, prudent and customary in the
second mortgage origination and servicing business.
Section 3.02 Representations and Warranties as to the
Mortgage Loans and the Mortgage Pool.
The Transferors hereby represent and warrant to the
Transferees, jointly and severally, with respect to each Mortgage Loan, as of
the Closing Date:
(a) The information with respect to each Mortgage Loan set
forth in the Mortgage Loan Schedule is true and correct;
(b) All of the original or certified documentation set forth
in Section 2.04 (including all material documents related thereto) has been or
will be delivered to the Transferees on the Closing Date or as otherwise
provided in Section 2.04;
(c) (i) Each Mortgage Loan is principally secured by Mortgaged
Property. Each Mortgaged Property is improved by a one- to four-family
Residential Dwelling, which, to the best of such Transferor's knowledge, does
not include (A) cooperatives, (B) mobile homes other than permanently affixed
mobile homes which constitute real property under state law, or (C) except for
not more than approximately ____% of the Mortgage Loans in the Fixed Rate Group,
manufactured housing units, as defined i the FNMA Selling Guide, which
constitute other than real property under state law; and
(ii) With respect to each Mortgage Loan involving
property improved by a manufactured or mobile home, the Originator has
taken all action necessary to create a valid and perfected first or
second priority (as reflected in the Mortgage Loan Schedule) lien and
security interest in such manufactured or mobile home and the related
Mortgaged Property, including, without limitation, the filing of UCC
financing statements or notations on certificates of title if
necessary, under applicable state law;
(d) Each Mortgage Loan is being serviced by the Servicer or
one or more Subservicers;
(e) The Mortgage Note related to each Mortgage Loan in the
Fixed Rate Group bears a fixed Mortgage Interest Rate; the Mortgage Note related
to each Mortgage Loan in the Adjustable Rate Group bears a Mortgage Interest
Rate that adjusts semi-annually, based on the London interbank offered rate for
six-month United States dollar deposits;
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(f) Mortgage Loans constituting approximately _____% of the
Mortgage Loans in the Fixed Rate Group, and approximately ______% of the
Mortgage Loans in the Adjustable Rate Group, are balloon loans which will
provide for a final Monthly Payment substantially greater than the preceding
Monthly Payments. Approximately______%, ______%, ______% and ______% % of the
Mortgage Loans in the Fixed Rate Group (and approximately ______%, ______% and
______% of the Mortgage Loans in the Adjustable Rate Group) are balloon loans
based on a 30-year amortization schedule (except for approximately ______% of
the Mortgage Loans in the Fixed Rate Group) and a single payment of the
remaining loan balance __, __, __ and __ years (or __, __ and __ years, with
respect to the Mortgage Loans in the Adjustable Rate Group) after origination,
respectively. All of such balloon loans provide for Monthly Payments based on an
amortization schedule specified in the related Mortgage Note and have a final
balloon payment no earlier than __ months following origination and no later
than ___ months following origination. Each other Mortgage Note will provide for
a schedule of substantially equal Monthly Payments which are, if timely paid,
sufficient to fully amortize the principal balance of such Mortgage Note on or
before its maturity date;
(g) Each Mortgage is a valid and subsisting first or second
lien on the Mortgaged Property subject, in the case of any second Mortgage Loan,
only to a First Lien on such Mortgaged Property, and each Mortgage relating to a
Mortgage Loan in the Adjustable Rate Group is a valid and subsisting First Lien
on the Mortgaged Property, and subject in all cases to the exceptions to title
set forth in the title insurance policy or the other evidence of title
enumerated in Section 2.04(d), with respect to the related Mortgage Loan, which
exceptions are generally acceptable to second mortgage lending companies, and
such other exceptions to which similar properties are commonly subject and which
do not individually, or in the aggregate, materially and adversely affect the
benefits of the security intended to be provided by such Mortgage. If the
Mortgaged Property is held in an Illinois Land Trust (a "Land Trust Mortgage"),
(i) a natural person is the beneficiary of such Illinois Land Trust, and either
is a party to the Mortgage Note or is a guarantor thereof, in either case, in an
individual capacity, and not in the capacity of trustee or otherwise, and, if a
party to the Mortgage Note, is jointly and severally liable under the Mortgage
Note; (ii) the Mortgagor is the trustee of such Illinois Land Trust, is a party
to the Mortgage Note and is the mortgagor under the Mortgage in its capacity as
such trustee and not otherwise; (iii) a land trust trustee, duly qualified under
applicable law to serve as such, has been properly designated and currently so
serves and is named as such in the land trust agreement and such trustee is
named in the Land Trust Mortgage as Mortgagor; (iv) all fees and expenses of the
land trust trustee which have previously become due or owing have been paid and
no such fees or expenses are or will become payable by the Certificateholders or
the Trust Fund; (v) the beneficiary is solely obligated to pay any fees and
expenses of the land trust trustee and the priority of the lien of the Land
Trust Mortgage is not and will not be subject or subordinate to any amounts
owing to the land trust trustee; (vi) the Mortgaged Property (only if indicated
to be owner occupied on the Mortgage Loan Schedule) is occupied by the
beneficiary under the land trust agreement and, if such land trust agreement
terminates, the beneficiary will become the owner of the Mortgaged Property;
(vii) the beneficiary is obligated to make payments unde the related Mortgage
Note and (subject to applicable law) will have personal liability for deficiency
judgments; (viii) the Land Trust Mortgages and assignments of beneficial
interest relating to land trusts in the Mortgage Pool were made in compliance
with their respective land trust agreements, were validly entered into by their
respective land trust trustee or beneficiary and did not, do not currently, and
will not in the future, violate any
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provision of their respective land trust agreement; (ix) a UCC financing
statement has been filed, continued, and will be continued, without intervening
liens, as the first lien upon the beneficial interest in the Land Trust
Mortgage; (x) each assignment of beneficial interest with respect to Land Trust
Mortgages in the Mortgage Pool was at the time of respective assignment the only
assignment of such beneficial interest in the land trust, such assignment was
accepted by the respective land trust trustee, to the best of the Transferors'
knowledge, subsequent assignments of the beneficial interest in whole or in part
have not been made, and such subsequent assignments of the beneficial interest
or any part thereof are not permitted pursuant to a written agreement between
the respective beneficiary and the Mortgagee, until the expiration of the
Mortgage Note in each respective land trust; (xi) the Land Trust Mortgages are
the first or second liens on the Mortgaged Properties; no liens are in place
against the beneficial interests, or any par thereof, of any Land Trust Mortgage
or collateral assignment of beneficial interest, which liens are superior to the
interest held by the related Transferor; and the beneficiary or land trust
trustee is forbidden, pursuant to a written agreement between the beneficiary or
the land trust trustee (as applicable) and the Mortgagee, from using the land
trust property or beneficial interest, or any part of either, as security for
any other debt of the same priority as or senior to such Land Trust Mortgage
until the expiration date of its respective Mortgage Note; and (xii) the terms
and conditions of the land trust agreement do not prevent the free and absolute
marketability of the Mortgaged Property. As of the Cut-off Date, approximately
______% of the Mortgage Loans in the Fixed Rate Group and approximately ______%
of the Mortgage Loans in the Adjustable Rate Group were related to Land Trust
Mortgages.
(h) Except with respect to liens released immediately prior to
the transfer herein contemplated, immediately prior to the transfer and
assignment herein contemplated, the applicable Transferor held good and
indefeasible title to, and was the sole owner of, each Mortgage Loan conveyed by
such Transferor subject to no liens, charges, mortgages, encumbrances or rights
of others; and immediately upon the transfer and assignment herein contemplated,
the applicable Transferee will hold good and indefeasible title, to, and be the
sole owner of, each Mortgage Loan (other than the Representative's Yield and
amounts received on or after the Cut-off Date in respect of interest accrued
prior to the Cut-off Date) subject to no liens, charges, mortgages, encumbrances
or rights of others;
(i) Approximately ______% of the Mortgage Loans in the Fixed
Rate Group and approximately ______% of the Mortgage Loans in the Adjustable
Rate Group (excluding Bankruptcy Loans) are 30 or more days contractually
delinquent; none of the Mortgage Loans in the Mortgage Pool are 60 to 89 days
contractually delinquent or more than 89 days contractually delinquent; and none
of the Mortgage Loans in the Mortgage Pool (excluding Bankruptcy Loans) have
been 30 or more days contractually delinquent more than once in the 12 months
preceding the Cut-off Date. For purposes of this representation and warranty "30
or more days contractually delinquent" means that a Monthly Payment due on a Due
Date was unpaid as of the end of the month of the next succeeding Due Date or
following Due Dates and "60 to 89 days contractually delinquent" means that a
Monthly Payment due on a Due Date was unpaid as of the end of the month of the
second Due Date following the Due Date on which such Monthly Payment was due.
Approximately ______% of the Mortgage Loans in the Fixed Rate Group, and
approximately ______% of the Mortgage Loans in the Adjustable Rate Group, are
Bankruptcy Loans. None of the Mortgage Loans in the Fixed Rate Group and none of
the Mortgage Loans in the Adjustable Rate Group are Bankruptcy Loans which are
30 or more days
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contractually delinquent. Except for the Mortgage Loans listed on Exhibit G to
the Pooling and Servicing Agreement, to the best of such Transferor's knowledge,
none of the Mortgage Loans is subject to a Plan. Exhibit S to the Pooling and
Servicing Agreement accurately sets forth the number of days that each Mortgage
Loan listed therein was contractually delinquent as of the Cut-off Date;
(j) To the best of such Transferor's knowledge, (i) there is
no delinquent tax or assessment lien on any Mortgaged Property and (ii) each
Mortgaged Property is free of material damage and is in average repair;
(k) No Mortgage Loan is subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will the
operation of any of the terms of the Mortgage Note or the Mortgage, or the
exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(l) To the best of such Transferor's knowledge, there is no
mechanics' lien or claim for work, labor or material affecting any Mortgaged
Property which is or may be a lien prior to, or equal with, the lien of such
Mortgage except those which are insured against by the title insurance policy
referred to in Section 3.02(n) below;
(m) Each Mortgage Loan, at the time it was made, complied in
all material respects with applicable state and federal laws and regulations,
including, without limitation, usury, equal credit opportunity and disclosure
laws;
(n) With respect to each Mortgage Loan, other than any
Mortgage Loan secured by a second priority lien and having a Principal Balance
not in excess of $__________ or listed in Exhibit W to the Pooling and Servicing
Agreement, a written commitment for a lender's title insurance policy, issued in
standard American Land Title Association or California Land Title Association
form, or other form customary and acceptable in a particular jurisdiction, by a
title insurance company acceptable to FNMA and FHLMC and authorized to transact
business in the state in which the related Mortgaged Property is situated,
together with a condominium endorsement, if applicable, in an amount at least
equal to the original Principal Balance of such Mortgage Loan insuring the
mortgagee's interest under the related Mortgage Loan as the holder of a valid
first or second mortgage lien of record on the real property described in the
Mortgage, subject only to exceptions of the character referred to in Section
3.02(g) above, was effective on the date of the origination of such Mortgage
Loan, and, as of the Closing Date, such commitment will be valid and thereafter
the policy issued pursuant to such commitment shall continue in full force and
effect or, with respect to the Mortgaged Properties located in jurisdictions in
which it is customary and acceptable to obtain an assurance of title in lieu of
a title insurance policy, such assurance of title has been obtained;
(o) The improvements upon each Mortgaged Property are covered
by a valid and existing hazard insurance policy with a generally acceptable
carrier that provides for fire and extended coverage representing coverage
described in Sections 5.07 and 5.08 of the Pooling and Servicing Agreement;
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(p) A flood insurance policy is in effect with respect to each
Mortgaged Property with a generally acceptable carrier in an amount representing
coverage described in Sections 5.07 or 5.08 of the Pooling and Servicing
Agreement, if and to the extent required by Section 5.07 or 5.08 of the Pooling
and Servicing Agreement;
(q) Each Mortgage and Mortgage Note is the legal, valid and
binding obligation of the maker thereof and is enforceable in accordance with
its terms, except only as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law), and all
parties to each Mortgage Loan had ful legal capacity to execute all Mortgage
Loan documents and convey the estate therein purported to be conveyed;
(r) The applicable Transferor has directed the Servicer to
perform any and all acts required to be performed to preserve the rights and
remedies of the Transferees in any insurance policies applicable to the Mortgage
Loans including, without limitation, any necessary notifications of insurers,
assignments of policies or interests therein, and establishments of co-insured,
joint loss payee and mortgagee rights in favor of the Transferees;
(s) No more than approximately ______% of the Mortgage Loans
in the Fixed Rate Group, and no more than approximately ______% of the Mortgage
Loans in the Adjustable Rate Group, are secured by Mortgaged Properties located
within any single five-digit zip code area within the State of California. No
more than approximately ______% % of the Mortgage Loans in the Fixed Rate Group,
and no more than approximately ______% of the Mortgage Loans in the Adjustable
Rate Group, are secured by Mortgaged Properties located within any single
five-digit zip code area outside the State of California;
(t) At least approximately ______% of the Mortgage Loans in
the Fixed Rate Group, and ______% of the Mortgage Loans in the Adjustable Rate
Group, are secured by Owner Occupied Mortgaged Property;
(u) The terms of the Mortgage Note and the Mortgage have not
been impaired, altered or modified in any material respect, except by a written
instrument which has been recorded or is in the process of being recorded, if
necessary, to protect the interest of the Transferees and which has been or will
be delivered to the Transferees. The substance of any such alteration or
modification is reflected on the Mortgage Loan Schedule. Each original Mortgage
was recorded, and all subsequent assignments of the original Mortgage have been
recorded in the appropriate jurisdictions wherein such recordation is necessary
to perfect the lien thereof as against creditors of the Transferors (or, subject
to Section 2.04 hereof, are in the process of being recorded);
(v) No instrument of release or waiver has been executed in
connection with the Mortgage Loan, and no Mortgagor has been released, in whole
or in part;
(w) To the best of such Transferor's knowledge, all taxes,
governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or an escrow of funds has
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been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable.
Except for payments in the nature of escrow payments, including without
limitation, taxes and insurance payments, the Transferor has not advanced funds,
or induced, solicited or knowingly received any advance of funds by a party
other than the Mortgagor, directly or indirectly, for the payment of any amount
required by the Mortgage, except for interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is
greater, to the day which precedes by one month the Due Date of the first
installment of principal and interest With respect to Mortgaged Properties that
are the subject of a ground lease, to the best of the such Transferor's
knowledge, all lease rents, other payments or assessments that have become due
have been paid and the Mortgagor is not in material default under any other
provisions of the lease and the lease is valid, in good standing and in full
force and effect;
(x) To the best of the such Transferor's knowledge, there is
no proceeding pending or threatened for the total or partial condemnation of the
Mortgaged Property, nor is such a proceeding currently occurring, and such
property is undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty, so as to affect adversely the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which the
premises were intended;
(y) To the best of such Transferor's knowledge, all of the
improvements which were included for the purpose of determining the appraised
value of the Mortgaged Property lie wholly within the boundaries and building
restriction lines of such property, and no improvements on adjoining properties
encroach upon the Mortgaged Property;
(z) To the best of such Transferor's knowledge, no
improvement located on or being part of the Mortgaged Property is in violation
of any applicable zoning law or regulation. To the best of such Transferor's
knowledge, all inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities and the Mortgaged Property is lawfully
occupied under applicable law;
(aa) The proceeds of the Mortgage Loan have been fully
disbursed, and there is no obligation on the part of the mortgagee to make
future advances thereunder. Any and all requirements as to completion of any
on-site or off-site improvements and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses incurred in
making or closing or recording the Mortgage Loans were paid;
(bb) The related Mortgage Note is not and has not been secured
by any collateral, pledged account or other security except the lien of the
corresponding Mortgage;
(cc) No Mortgage Loan was originated under a buydown plan;
(dd) There is no obligation on the part of the applicable
Transferor or any other party to make payments in addition to those made by the
Mortgagor;
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(ee) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in such Mortgage, and
no fees or expenses are or will become payable by the Transferees to the trustee
under such deed of trust, except in connection with a trustee's sale after
default by the Mortgagor. If the Mortgaged Property is held in an Illinois Land
Trust, the trustee thereof is duly qualified under applicable law to serve as
such, and has been properly designated and currently so serves, and no fees or
expenses are or will become payable by the Transferees to such trustee;
(ff) No Mortgage Loan has a shared appreciation feature, or
other contingent interest feature;
(gg) With respect to each Mortgage Loan secured by a second
priority lien, the related First Lien requires equal monthly payments, or if it
bears an adjustable interest rate, the monthly payments for the related First
Lien may be adjusted not more frequently than once every six months;
(hh) With respect to each Mortgage Loan secured by a second
priority lien, either (i) no consent for the Mortgage Loan is required by the
holder of the related First Lien or (ii) such consent has been obtained and is
contained in the Mortgage File;
(ii) The maturity date of each Mortgage Loan secured by a
second priority lien is prior to the maturity date of the related First Lien if
such First Lien provides for a balloon payment; and with respect to any First
Lien that provides for negative amortization or deferred interest, the balance
of such First Lien used to calculate the Combined Loan-to-Value Ratio for the
Mortgage Loan is based on the maximum amount of negative amortization possible
under such First Lien;
(jj) All parties which have had any interest in the Mortgage
Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) (1) in compliance
with any and all applicable licensing requirements of the laws of the state
wherein the Mortgaged Property is located, and (2)(A) organized under the laws
of such state, or (B) qualified to do business in such state, or (C) federal
savings and loan associations or national banks having principal offices in such
state, or (D) not doing business in such state so as to require qualification or
licensing;
(kk) The Mortgage contains a customary provision for the
acceleration of the payment of the unpaid principal balance of the Mortgage Loan
in the event the related security for the Mortgage Loan is sold without the
prior consent of the mortgagee thereunder;
(ll) Any future advances made prior to (and excluding) the
Cut-off Date have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected on the Mortgage
Loan Schedule (or single method of determining the Mortgage Interest Rate if
such Mortgage Loan is in the Adjustable Rate Group). The consolidated principal
amount does not exceed the original principal amount of the Mortgage Loan. The
Mortgage
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Note does not permit or obligate the Servicer to make future advances to the
Mortgagor at the option of the Mortgagor;
(mm) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof adequate
for the realization against the Mortgaged Property of the benefits of the
security, including, (i) in the case of a Mortgage designated as a deed of
trust, by trustee's sale, and (ii) otherwise by judicial or non-judicial
foreclosure. There is no homestead or other exemption available to the Mortgagor
which would materially interfere with the right to sell the Mortgaged Property
at a trustee's sale or the right to foreclose the Mortgage except as set forth
in the Prospectus;
(nn) Except for bankruptcy-related defaults under the
Bankruptcy Loans, there is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note 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; and neither the Servicer nor the Transferor has waived any
default, breach, violation or event of acceleration;
(oo) All parties to the Mortgage Note and the Mortgage had
legal capacity to execute the Mortgage Note and the Mortgage and each Mortgage
Note and Mortgage have been duly and properly executed by such parties;
(pp) All amounts received by the Transferors on and after the
Cut-off Date with respect to the Mortgage Loans that are required to be paid to
the Transferees have been transferred to the Transferees;
(qq) All of the Mortgage Loans were originated and
underwritten by, or purchased and re-underwritten by, a wholly-owned subsidiary
of the Representative;
(rr) As of the Cut-off Date, each Mortgage Loan conforms, and
all Mortgage Loans in the aggregate conform, in all material respects, to the
description thereof set forth in the Prospectus, including all statistical data
provided therein in tabular format or otherwise;
(ss) The Mortgage Loans were not selected by the
Representative or the Transferors for transfer to the Transferees on any basis
intended to adversely affect the Transferees;
(tt) A full interior inspection appraisal was performed in
connection with each Mortgaged Property;
(uu) The Mortgage Interest Rate for each Mortgage Loan in the
Fixed Rate Group is not less than ______% per annum, and the Mortgage Interest
Rate for each Mortgage Loan in the Fixed Rate Group is not more than ______% per
annum; none of the Mortgage Loans in the Adjustable Rate Group have current
Mortgage Interest Rates less than______%;
(vv) The gross margin for each Mortgage Loan in the Adjustable
Rate Group is not less than ______% per annum and not more than ______% per
annum. All of Mortgage Loans in the Adjustable Rate Group have periodic
adjustment caps of ______%.
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(ww) Each hazard insurance policy required to be maintained
under Section 5.07 of the Pooling and Servicing Agreement with respect to such
Mortgage Loan is a valid, binding, enforceable and subsisting insurance policy
of its respective kind and is in full force and effect;
(xx) If the Mortgaged Property consists of a leasehold
estate, the Mortgage covers property improvements and the Mortgagor's leasehold
interest in the land upon which such improvements are situated; at origination
of the Mortgage Loan the term of the leasehold estate was scheduled to last for
at least ten years beyond the maturity date of the Mortgage or provided for
perpetual renewal covenants; the leasehold estate is assignable by the
Mortgagee; and the lease is valid and in full force and effect;
(yy) To the best of such Transferor's knowledge, no Mortgaged
Property was, at origination, located within a 1 mile radius of any site with
material environmental or hazardous waste risks;
(zz) With respect to each Bankruptcy Loan, (a) except for the
Bankruptcy Loans specified in Exhibit G to the Pooling and Servicing Agreement,
as of the Cut-off Date, the Mortgagor is not contractually delinquent more than
30 days with respect to any payment due under the related Plan, (b) the Current
CLTV is less than or equal 85%, and (c) either (i) if the Current CLTV is
between 60% and 85%, as of the Cut-off Date, the Mortgagor has made at least six
consecutive payments under the related Plan or (ii) if the Current CLTV is less
than 60%, as of the Cut-off Date, the Mortgagor has made at least three
consecutive payments under the related Plan;
(aaa) With respect to Mortgage Loans which were originated in
the State of Alabama (each, an "Alabama Loan"), (i) each such Alabama Loan was
(A) originated and underwritten by EQCC/Ala. & Miss., or (B) purchased and
re-underwritten by EQCC/Ala. & Miss. from another lender (each originating
entity, an "Alabama Originator"), (ii) with respect each such Alabama Loan
secured by second mortgages, (A) the total "prepaid finance charge" (as defined
in Regulation Z promulgated under the Federal Truth-in-Lending Act) paid by the
related Mortgagor to the related Alabama Originator plus (B) any yield spread
premium ("rate participation") paid by the Alabama Originator did not exceed
______% of the original Principal Balance of such Alabama Loan, (iii) the
original Principal Balance of such Alabama Loan exceeded $_________, (iv) the
aggregate of all points and broker's fees did not exceed ______% of the original
principal balance of the Mortgage Loan, (v) no "referral fee" (as defined in
Regulation X promulgated under the Real Estate Settlement Procedures Act) was
paid to any third party by the related Alabama Originator with respect to such
Alabama Loan, (vi) such Alabama Loan and the manner in which it was originated
fully complied with Alabama law, and (vii) such Alabama Loan was not originated
in such a manner, and neither the related Mortgage Note nor Mortgage contain any
provisions, that would cause such Alabama Loan to be deemed unconscionable under
Alabama law. The aggregate of all such Alabama Mortgage Loans does not exceed
approximately ______% of the Mortgage Loans in the Fixed Rate Group. None of the
Mortgage Loans in the Adjustable Rate Group are Alabama Mortgage Loans;
(bbb) Except as specified in Exhibit Y to the Pooling
and Servicing Agreement, none of the Mortgage Loans in the Fixed Rate Group and
none of the Mortgage Loans in the
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Adjustable Rate Group were originated in connection with the sale of properties
acquired by the Originators through foreclosure;
(ccc) With respect to each Mortgage Loan in the Adjustable
Rate Group, the CLTV does not exceed______%, and with respect to each Mortgage
Loan in the Fixed Rate Group, the CLTV does not exceed______%;
(ddd) Except for the Mortgage Loans listed on Exhibit
T to the Pooling and Servicing Agreement, as of the Cut-off Date no Mortgage
Loan is subject to The Home Ownership and Equity Protection Act of 1994; all
notices required to be delivered to the related Mortgagor pursuant to the Home
Ownership and Equity Protection Act of 1994 have been delivered with respect to
each Mortgage Loan listed on Exhibit T to the Pooling and Servicing Agreement
and all other requirements of that Act have been complied with for each such
Mortgage Loan;
(eee) Each Mortgage Loan in the Adjustable Rate Group
was originated by a savings and loan association, savings bank, commercial bank,
credit union, insurance company, or similar institution which is supervised and
examined by a Federal or State authority, or by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of
the National Housing Act;
(fff) Each Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Internal Revenue Code of 1986,
as amended (the "Code"). For this purpose, Section 860G(a)(3) of the Code shall
be applied without regard to the rule contained in Treasury Regulations Section
1.860G-2(f)(2) which treats a defective mortgage loan as a "qualified mortgage"
under certain circumstances. Accordingly, the Transferors represent and warrant
that each Mortgage Loan is directly secured by a Mortgage on residential real
property, and either (1) substantially all of the proceeds of such Mortgage Loan
were used to acquire, improve or protect such residential real property and such
interest in residential real property was the sole security for such Mortgage
Loan as of the Testing Date (as defined below), or (2) the fair market value of
the interest in real property which secures such Mortgage Loan was at least
equal to 80% of the principal amount of the Mortgage Loan (a) as of the Testing
Date or (b) as of the Closing Date. For purposes of the previous sentence, (1)
the fair market value of the referenced interest in real property shall first be
reduced by (a) the amount of any lien on such interest in real property that is
senior to the lien of the Mortgage Loan, and (b) a proportionate amount of any
lien on such interest in real property that is on a parity with the Mortgage
Loan, and (2) the "Testing Date" shall be the date on which the referenced
Mortgage Loan was originated unless (a) such Mortgage Loan was modified after
the date of its origination in a manner that would cause a "significant
modification" of such Mortgage Loan within the meaning of Treasury Regulations
Section 1.1001 - 3(b), and (b) such "significant modification" did not occur at
a time when such Mortgage Loan was in default or when default with respect to
such Mortgage Loan was reasonably foreseeable. However, if the referenced
Mortgage Loan has been subjected to a "significant modification" after the date
of its origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably foreseeable,
the "Testing Date" shall be the date upon which the latest such "significant
modification" occurred; and
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(ggg) The Depositors have no reason to believe that any
Mortgage Loan as of the Cut-off Date that is 30 or more days contractually
delinquent will not be brought current or will become deliquent again after it
is brought current.
Section 3.03 Purchase and Substitution.
It is understood and agreed that the representations and
warranties set forth in Sections 3.01 and 3.02 shall survive delivery of the
Mortgage Loans to the Transferees. Upon discovery by the Trustee, the
Representative, any Transferee, the Servicer, any Subservicer, the Certificate
Insurer or the Custodian of a breach of any of such representations and
warranties which materially and adversely affects the value of Mortgage Loans or
the interest of the Transferees, or which materially an adversely affects the
interests of the Transferees in the case of a representation and warranty
relating to a particular Mortgage Loan (notwithstanding that such representation
and warranty was made to the Representative's or the Transferors' best
knowledge), the party discovering such breach shall give prompt written notice
to the others. Within 60 days of the earlier of its discovery or its receipt of
notice of any breach of a representation or warranty, the Representative shall
(a) promptly cure, or cause the applicable Transferor to cure, such breach in
all material respects, or (b) purchase, or cause the applicable Transferor to
purchase, such Mortgage Loan by remitting to the Servicer for deposit in the
Principal and Interest Account, on the next succeeding Determination Date
relating to a Payment Date, in the manner and at the price specified in Section
2.05(b), or by substituting, or causing the applicable Transferor to substitute,
one or more Qualified Substitute Mortgage Loans, provided such substitution is
effected not later than the date which is two years after the Closing Date. Any
such substitution shall be accompanied by payment by the Representative or
applicable Transferor of the Substitution Adjustment, if any, to be deposited in
the Principal and Interest Account.
As to any Deleted Mortgage Loan for which a Transferor
substitutes a Qualified Substitute Mortgage Loan or Loans, the Representative
shall effect such substitution by delivering to the applicable Transferee a
certification in the form attached to the Custodial Agreement as Exhibit B, and
delivering to the applicable Transferee the documents constituting the Mortgage
File for such Qualified Substitute Mortgage Loan or Loans.
The Servicer is required to deposit in the Principal and
Interest Account all payments received in connection with such Qualified
Substitute Mortgage Loan or Loans after the date of such substitution; provided,
however, that any amounts received after the date of substitution in respect of
interest accrued on or prior to the date of substitution on such Qualified
Substitute Mortgage Loan will constitute the property of the applicable
Transferor. Monthly Payments received with respect to Qualified Substitute
Mortgage Loans on or before the date of substitution will be retained by the
Representative on behalf of the applicable Transferor. The applicable Transferee
will own all payments received on the Deleted Mortgage Loan on or before the
date of substitution, and the Representative on behalf of the Transferors shall
thereafter be entitled to retain all amounts subsequently received in respect of
such Deleted Mortgage Loan. The Representative shall amend the Mortgage Loan
Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of
this Agreement and the substitution of the Qualified Substitute Mortgage Loan.
Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall
be subject to the terms of this Agreement in all respects, and the
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24
Representative and the Transferors shall be deemed to have made with respect to
such Qualified Substitute Mortgage Loan or Loans, as of the date of
substitution, the covenants, representations and warranties set fort in Sections
3.01 and 3.02. On the date of such substitution, the Representative will remit
to the applicable Transferee an amount equal to the Substitution Adjustment, if
any.
It is understood and agreed that the obligations of the
Representative or any Transferor set forth in Sections 2.05 and 3.03 to cure,
purchase or substitute for a defective Mortgage Loan as provided in Sections
2.05 and 3.03 constitute the sole remedies of the Transferees respecting a
breach of the foregoing representations and warranties.
Any cause of action against the Representative or any
Transferor relating to or arising out of a defect in a Mortgage File as
contemplated by Section 2.05 or the breach of any representations and warranties
made in Sections 3.01 or 3.02 shall arise as to any Mortgage Loan upon the
occurrence of not less than all of the following events: (i) discovery of such
defect or breach by the Certificate Insurer or any party and notice thereof to
the Representative or notice thereof by the Representative to the Transferees,
(ii) failure by the Representative to cure such defect or breach or purchase or
substitute such Mortgage Loan as specified above, and (iii) demand upon the
Representative by the Certificate Insurer or any Transferee for all amounts
payable in respect of such Mortgage Loan. The party delivering such notice shall
also deliver a copy thereof to the Certificate Insurer.
ARTICLE IV
CONDITIONS
SECTION 4.01 Conditions to Obligation of the Transferees.
The obligation of the Transferees to purchase the Mortgage
Loans is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Representative and the Transferors hereunder shall be true
and correct on the Closing Date with the same effect as if then made, and the
Representative and the Transferors shall have performed all obligations to be
performed by them hereunder on or prior to the Closing Date.
(b) Documents to be Delivered By the Representative and the
Transferors at the Closing.
(i) Final Mortgage Loan Schedule specifying the Mortgage Loans
to be Transferred hereunder, one copy to be attached to each
counterpart to the Pooling and Servicing Agreement as the Mortgage Loan
Schedule thereto;
(ii) Officer's Certificate dated as of the Closing Date with
respect to the Representative and each Transferor, and attached thereto
the resolutions of the Representative or such Transferor, as the case
may be, authorizing the transactions
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contemplated by this Agreement and the other Basic Documents, together
with copies of the charter and by-laws of the Representative or such
Transferor, as the case may be;
(iii) Opinion of Counsel to the Representative dated as of the
Closing Date in the form attached to the Underwriting Agreement and any
Opinion of Counsel required to be delivered to any Rating Agency or the
Certificate Insurer; and
(iv) Certificate or other evidence of merger or changes of
name, signed or stamped by the applicable regulatory authority, if any
of the Mortgage Loans were acquired by the applicable Transferor by
merger or acquired or originated by the applicable Transferor while
conducting business under a name other than its present name.
(c) Other Documents. At the Closing, the Representative and
the Transferors shall provide such other documents as either Transferee may
reasonably request.
(d) Other Transactions. The transactions contemplated by the
Pooling and Servicing Agreement and the other Basic Documents shall be
consummated on the Closing Date.
Section 4.02 Conditions To Obligation of the Representative
and each Transferor.
The obligation of the Representative and the Transferors to
transfer the Mortgage Loans to the Transferees is subject to the satisfaction of
the condition that at the Closing Date, each Transferee shall deliver to its
related Transferor or Transferors the amount of cash set forth on Exhibit A
hereto, as provided in Section 2.01 and EQC shall accept a capital contribution
from EquiCredit Corporation of America in an amount equal to the excess of the
principal balance of the Mortgage Loans transferred by EquiCredit Corporation of
America to EQC over the cash delivered by EQC to EquiCredit Corporation of
America, as set forth on Exhibit A hereto.
ARTICLE V
THE TRANSFERORS
SECTION 5.01 Third Party Servicers.
As of the Closing Date, the Representative and the
Transferors have represented to the Transferees that the Mortgage Loans are
serviced by the Servicer or the Transferors and are not subject to servicing
agreements with third parties. It is understood and agreed between the
Representative and the Transferors and the Transferees that the Mortgage Loans
which are the subject of this Agreement are to be delivered free and clear of
any servicing agreements with third party servicers. The Representative and the
Transferor, without reimbursement from the Transferees, shall pay any fees or
penalties required by any third party servicer for releasing the Mortgage Loans
from any such servicing agreement and shall arrange for the orderly transfer of
such servicing from any such third party servicer to the Transferees.
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Section 5.02 Enforceability; Merger or Consolidation of the
Transferors.
(a) The Transferors will keep in full effect its respective existence,
rights and franchises as a corporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the other Basic Documents, the Pooling and
Servicing Agreement, and any of the Mortgage Loans and to perform its duties
under such agreements.
(b) Any Person into which any Transferor may be merged or consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which any Transferor shall be a party, or any Person succeeding to the business
of any Transferor, shall be the successor of any Transferor hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 5.03 Mandatory Delivery; Grant of Security Interest.
The transfer and delivery on the Closing Date by each Transferor of its
Mortgage Loans is mandatory, it being specifically understood and agreed that
each Mortgage Loan is unique and identifiable on the date hereof and that an
award of money damages would be insufficient to compensate the applicable
Transferee for the loss and damages incurred by such Transferee (including
damages to prospective purchasers of the Certificates) in the event of such
Transferor's failure to deliver the Mortgage Loans on or before the Closing
Date. Each Transferor hereby grants to its applicable Transferee a lien on and
continuing security interest in each Mortgage Loan and each document and
instrument evidencing such Mortgage Loan to secure the performance by such
Transferors of their obligations hereunder, and such Transferors agree that it
holds each Mortgage Loan in custody for the Transferees subject to the
Transferees' (i) right to reject any Mortgage Loan under the terms of this
Agreement and (ii) obligation to deliver cash and other consideration as set
forth in Section 2.01 for the Mortgage Loans. All rights and remedies of the
Transferees under this Agreement are distinct from, and cumulative with, any
other rights or remedies under this Agreement or afforded by law or equity, and
all such rights and remedies may be exercised concurrently, independently or
successively.
ARTICLE II
ADDITIONAL AGREEMENTS
The Transferors agree with the Transferees as follows:
Section 6.01 Conflicts With Pooling and Servicing Agreement.
To the extent that any provision of Sections 6.02 through 6.04 of this
Agreement conflicts with any provision of the Pooling and Servicing Agreement,
the Pooling and Servicing Agreement shall govern.
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Section 6.02 Protection of Title to Trust.
(a) The Transferors shall from time to time execute and
deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and other
instruments, and shall take such other action necessary or advisable to:
(i) maintain or preserve the transfer evidenced by this
Agreement or carry out more effectively the purposes hereof; or
(ii) preserve and defend the Transferees' title to the
Mortgage Loans and the rights of the Transferees in such assets against
the claims of all persons and parties, and the Transferors hereby
designate each Transferee, its agent and attorney-in-fact to execute
any financing statement, continuation statement or other instrument
required by the Transferees pursuant to this Section 6.02.
Section 6.03 Other Liens or Interests.
Except for the conveyances hereunder and pursuant to this
Agreement and the other Basic Documents, the Transferors shall not sell, pledge,
assign or transfer the Mortgage Loans to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on any interest therein, and the
Transferors shall defend the right, title and interest of the Transferees in, to
and under such Mortgage Loans against all claims of third parties claiming
through or under the Transferors.
Section 6.04 Purchase Events.
The Transferors and the Representative acknowledge that the
Transferees have assigned all of their right, title and interest in, to and
under this Agreement, including the Transferees' right to cause the
Representative or the Transferors to purchase the Mortgage Loans from the
Transferees under certain circumstances, to the Trust pursuant to Section 2.01
of the Pooling and Servicing Agreement, and the Transferees have granted to the
Trustee a security interest in and Lien on the Mortgage Loans and their right,
title and interest in this Agreement. The Transferors and the Representative
hereby covenant and agree with the Transferees for the benefit of the
Transferees, the Trustee, the Certificateholders and the Certificate Insurer
that the occurrence of a breach of any of the Representative's or the
Transferor's representations and warranties contained in Section 3.02 hereof
shall constitute events obligating the Transferor and the Representative, to the
extent specified in Section 3.03 of the Pooling and Servicing Agreement, and
without further notice from the Transferees hereunder, to purchase an Mortgage
Loan from the Trustee (a "Purchase Event"). It is understood and agreed that the
obligation of the Representative or the Transferors to purchase any Mortgage
Loan as to which a breach has occurred and is continuing shall, if such
obligation is fulfilled, constitute the sole remedy against the Transferors and
the Representative for such breach available to the Trustee, the
Certificateholders or the Certificate Insurer.
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Section 6.05 Indemnification.
The Transferors shall indemnify the Transferees against any
loss or liability as a result of the failure of an Mortgage Loan to be
originated in compliance with all requirements of law. This indemnity obligation
shall be in addition to any obligation that the Transferors may otherwise have.
Section 6.06 Trust.
The Transferors acknowledge that the Transferees shall,
pursuant to the Pooling and Servicing Agreement, transfer the Mortgage Loans to
the Trustee (for the benefit of the Certificateholders), and the Transferees
assign their rights hereunder to the Trustee (for the benefit of the
Certificateholders) as set forth in the Pooling and Servicing Agreement.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment.
This Agreement may be amended from time to time (upon prior
notice to each of the Rating Agencies and with the prior written consent of the
Certificate Insurer) by a written amendment duly executed and delivered by the
Transferors, the Representative and the Transferees, provided, however, that any
such amendment that materially adversely affects the rights of the
Certificateholders under the Pooling and Servicing Agreement must be consented
to by a Majority in Voting Interest of the Certificates.
Section 7.02 Waivers.
No failure or delay on the part of the Transferees in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
Section 7.03 Costs and Expenses.
The Transferors agree to pay all reasonable out-of-pocket
costs and expenses of the Transferees, including fees and expenses of counsel,
in connection with the perfection as against third parties of the Transferees'
right, title and interest in, to and under the Mortgage Loans and the
enforcement of any obligation of the Transferors or the Representative
hereunder.
Section 7.04 Survival.
The representations, warranties and covenants of the
Transferors and the Representative set forth in Sections 3.01 and 3.02 and
Article V of this Agreement shall remain in full force and effect and shall
survive the closing under Section 2.07 and the transfers contemplated by
Sections 6.04 and 6.06.
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Section 7.05 Confidential Information.
The Transferees agree that it shall neither use nor disclose
to any person the names and addresses of the Mortgagors, except in connection
with the enforcement of the Transferees' rights (i) hereunder, (ii) under the
Mortgage Loans, (iii) under the Basic Documents or (iv) as required by law.
Section 7.06 Severability Clause.
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 Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 7.07 Headings and Cross-References.
The various headings in this Agreement are included for
convenience only and shall not affect the meaning or interpretation of any
provision of this Agreement.
Section 7.08 Recordation of Agreement.
To the extent permitted by applicable law, the Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Transferors at the Transferors' expense on direction of the
Transferees accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Transferees.
SECTION 7.09 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT WITH REFERENCE TO SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY ITS TERMS APPLIES TO
THIS AGREEMENT).
Section 7.10 Notices.
All demands, notices and communications under this Agreement
shall be in writing, personally delivered or mailed by certified mail with
return receipt requested, and shall
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be deemed to have been duly given upon receipt at the appropriate address set
forth in the Pooling and Servicing Agreement.
Section 7.11 Counterparts.
This Agreement may be executed in two or more counterparts and
by different parties on separate counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
Section 7.12 The Certificate Insurer.
Any right conferred to the Certificate Insurer hereunder shall
be suspended during any period in which the Certificate Insurer is in default in
its payment obligations under the Insurance Policy. At such time as the
Certificates are no longer outstanding under the Pooling and Servicing
Agreement, and no amounts owed to the Certificate Insurer under any Basic
Document remain unpaid, the Certificate Insurer's rights hereunder shall
terminate. The Certificate Insurer is an intended third-party beneficiary of
this Agreement.
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IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date and year first above written.
TRANSFERORS:
EquiCredit Corporation
of America ("ECA")
EquiCredit Corporation/Ala. & Miss.
California/EquiCredit Corporation
EquiCredit Corporation of In.
EquiCredit Corporation of Pa.
EquiCredit Corporation of SC
By:
--------------------------------
Name:
Title:
TRANSFEREES:
EQCC Receivables Corporation
By:
--------------------------------
Name:
Title:
EQCC Asset Backed Corporation
By:
--------------------------------
Name:
Title:
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EXHIBIT A
AMOUNTS TRANSFERRED BY TRANSFEREES TO TRANSFERORS
EQCC RECEIVABLES CORPORATION
HAS TRANSFERRED THE FOLLOWING AMOUNT:
$____________ to [EquiCredit Corporation of America]
EQCC ASSET BACKED CORPORATION
HAS TRANSFERRED THE FOLLOWING AMOUNTS:
a) $_______________ to [EquiCredit Corporation of Pa.]
b) $_______________ to [EquiCredit Corporation of SC]
c) $_______________ to [EquiCredit Corporation/Ala. & Miss.]
d) $_______________ to [California/EquiCredit Corporation]
e) $_______________ to [EquiCredit Corporation of In.]
A-1
33
EXHIBIT B-1
MORTGAGE LOANS TRANSFERRED BY
EQUICREDIT CORPORATION OF AMERICA
B-1-1
34
EXHIBIT B-2
MORTGAGE LOANS TRANSFERRED BY
EQUICREDIT CORPORATION OF PA
B-2-1
35
EXHIBIT B-3
MORTGAGE LOANS TRANSFERRED BY
EQUICREDIT CORPORATION OF SC
B-3-1
36
EXHIBIT B-4
MORTGAGE LOANS TRANSFERRED BY
EQUICREDIT CORPORATION/ALA. & MISS.
B-4-1
37
EXHIBIT B-5
MORTGAGE LOANS TRANSFERRED BY
CALIFORNIA/EQUICREDIT CORPORATION
B-5-1
38
EXHIBIT B-6
MORTGAGE LOANS TRANSFERRED BY
EQUICREDIT CORPORATION OF IN
B-6-1
39
EXHIBIT C-1
FORM OF TRANSFEREE RECEIPT
_____________ __, 19__
EquiCredit Corporation of America
EquiCredit Corporation/Ala. & Miss.
California/EquiCredit Corporation
EquiCredit Corporation of In.
EquiCredit Corporation of Pa.
EquiCredit Corporation of SC
Re: Transfer Agreement (the "Transfer Agreement"), EQCC Home
Equity Loan Asset Backed Certificates, Series 1998-4, Class
A-1A, Class A-1F, Class X and Class R dated as of December 1,
1998 among the Transferors and the Transferees listed therein
Gentlemen:
In accordance with Section 2.05 of the Transfer Agreement, the
undersigned hereby certifies that, except as noted on the attachment hereto, if
any (the "Loan Exception Report"), it or the Custodian on its behalf has
received, with respect to each Mortgage Loan, the documents specified in
Sections 2.04(a), (b), (c), (g) and (h) of the Transfer Agreement, as
applicable, a Mortgage, or a certified copy thereof, Assignment of Mortgage, or
a certified copy thereof, and a Mortgage Note with respect to each Mortgage Loan
listed in the Transfer Agreement and the documents contained therein appear to
bear original signatures or copies of originals if the originals have not yet
been delivered.
C-1-1
40
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Transfer Agreement.
EQCC ASSET BACKED CORPORATION
By:
-------------------------------
Name:
Title:
EQCC RECEIVABLES CORPORATION
By:
-------------------------------
Name:
Title:
C-1-2