EXHIBIT 4.1
EXECUTION COPY
PURCHASE AND SALE AGREEMENT
Between
ACCESS FINANCIAL LENDING CORP.,
as the Seller
and
ACCESS FINANCIAL RECEIVABLES CORP.,
as the Purchaser
Dated as of October 1, 1997
TABLE OF CONTENTS
Page
DEFINITIONS....................................................................1
SECTION 1.01. Definitions................................................. 1
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS................................1
SECTION 2.01. Agreement to Purchase........................................1
SECTION 2.02. Purchase Price.............................................. 1
SECTION 2.03. Conveyance of Mortgage Loans; Possession
of Mortgage Loan Files...................................... 1
SECTION 2.04. Transfer of Mortgage Loans; Assignment of Agreement......... 2
SECTION 2.05. Examination of Mortgage Loan Files.......................... 2
SECTION 2.06. Books and Records........................................... 2
SECTION 2.07. Cost of Delivery and Recordation of Documents............... 2
ARTICLE THREE REPRESENTATIONS AND WARRANTIES...................................2
SECTION 3.01. Representations and Warranties as to the Seller..............2
SECTION 3.02. Representations and Warranties of the Purchaser..............3
THE SELLERUR...................................................................4
SECTION 4.01. Covenants of the Seller......................................4
MISCELLANEOUS.................................................................4
SECTION 5.01. Notices......................................................4
SECTION 5.02. Severability of Provisions...................................4
SECTION 5.03. Agreement of Seller..........................................4
SECTION 5.04. Survival.....................................................4
SECTION 5.05. Effect of Headings and Table of Contents.....................5
SECTION 5.06. Successors and Assigns.......................................5
SECTION 5.07. Confirmation of Intent; Grant of Security Interest...........5
SECTION 5.08. Miscellaneous................................................5
SECTION 5.09. Amendments...................................................5
SECTION 5.10. Third-Party Beneficiaries....................................6
SECTION 5.11. Governing Law; Consent To Jurisdiction;
Waiver Of Jury Trial.........................................6
SECTION 5.12. Execution in Counterparts....................................6
EXHIBIT A - MORTGAGE LOAN SCHEDULE
This Purchase and Sale Agreement, dated as of October 1, 1997, between
ACCESS FINANCIAL LENDING CORP., a Delaware corporation, its successors and
assigns (the "Seller"), and ACCESS FINANCIAL RECEIVABLES CORP., a Delaware
corporation and its successors and assigns (the "Purchaser").
WITNESSETH:
WHEREAS, Exhibit A attached hereto (the "Mortgage Loan Schedule") and made
a part hereof lists certain mortgage loans (the "Mortgage Loans") owned by the
Seller that the Seller desires to sell to the Purchaser and that the Purchaser
desires to purchase;
WHEREAS, it is the intention of the Seller and the Purchaser that,
immediately following the Seller's conveyance of the Mortgage Loans to Purchaser
on the Startup Day, (a) the Purchaser shall convey the Mortgage Loans to a trust
(the "Trust") pursuant to a Pooling and Servicing Agreement, dated as of October
1, 1997 (the "Pooling and Servicing Agreement"), among the Seller, Access
Financial Lending Corp., as master servicer (the "Master Servicer"), the
Purchaser, as transferor and The Chase Manhattan Bank, as trustee (the
"Trustee") and (b) the Trustee shall issue certificates evidencing beneficial
ownership interests in the property of the Trust formed by the Pooling and
Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used herein that are not
otherwise defined shall have the respective meanings ascribed thereto in the
Pooling and Servicing Agreement.
ARTICLE II
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
Section 2.01. Agreement to Purchase.
(a) Subject to the terms and conditions of this Agreement, the Seller
agrees to sell, and the Purchaser agrees to purchase on the Startup Day, the
Mortgage Loans. The Mortgage Loan Schedule shall conform to the requirements of
the Purchaser and to the definition of "Mortgage Loan Schedule" under the
Pooling and Servicing Agreement.
(b) The closing for the purchase and sale of the Mortgage Loans shall take
place at the offices of Dewey Ballantine, New York, New York, at 11:00 a.m., New
York time, on October 31, 1997 or such other place and time as the parties shall
agree (such time being herein referred to as the "Startup Day").
Section 2.01. Purchase Price. On the Startup Day, as full consideration for
the Seller's sale of the Mortgage Loans to the Purchaser, the Purchaser will
deliver to the Seller an amount in cash equal to the Seller's book value of the
Mortgage Loans, as certified to the Purchaser by the Seller.
Section 2.02. Conveyance of Mortgage Loans; Possession of Mortgage Loan
Files.
(a) On the Startup Day, the Seller will direct the Trustee in its capacity
as trustee of Access Financial Lending Loan Purchase Trust to transfer, assign,
set over and otherwise convey without representation, warranty or recourse, to
the Purchaser, all right, title and interest of the Seller in and to each
Mortgage Loan listed on the Mortgage Loan Schedule delivered by the Seller on
the Startup Day, and all its right, title and interest in and to (i) scheduled
payments of interest due on each Mortgage Loan after the Cut-Off Date, (ii)
scheduled payments of principal due, and unscheduled collections of principal
received, on each Mortgage Loan on and after the Cut-Off Date, and (iii) its
Insurance Policies (the "Conveyed Property"); such transfer of the Mortgage
Loans set forth on the Mortgage Loan Schedule to the Purchaser is absolute and
is intended by the parties hereto to be treated as a sale to the Purchaser.
(b) Pursuant to the Pooling and Servicing Agreement, the Purchaser shall,
on the Startup Day, assign all of its right, title and interest in and to the
Conveyed Property together with its rights hereunder to the Trust.
Section 2.03. Transfer of Mortgage Loans; Assignment of Agreement. The
Seller hereby acknowledges and agrees that the Purchaser may assign its interest
under this Agreement to the Trust as may be required to effect the purposes of
the Pooling and Servicing Agreement, without further notice to, or consent of,
the Seller, and the Trust shall succeed to such of the rights and obligations of
the Purchaser hereunder as shall be so assigned. The Purchaser shall, pursuant
to the Pooling and Servicing Agreement, assign all of its right, title and
interest in and to the Conveyed Property to the Trustee for the benefit of the
Certificateholders.
Section 2.04. Examination of Mortgage Loan Files. Prior to the Startup Day,
the Seller shall make the Mortgage Loan Files available to the Purchaser or its
designee for examination at the Trustee's offices or at such other place as the
Seller shall reasonably specify. Such examination may be made by the Purchaser
or its designee at any time on or before the Startup Day. If the Purchaser or
its designee makes such examination prior to the Startup Day and identifies any
Mortgage Loans that do not conform to the requirements of the Purchaser as
described in this Agreement, such Mortgage Loans shall be deleted from the
Schedule of Mortgage Loans and may be replaced, prior to the Startup Day, by
Qualified Replacement Mortgage acceptable to the Purchaser. The Purchaser may,
at its option and without notice to the Seller, purchase the Mortgage Loans
without conducting any partial or complete examination. The fact that the
Purchaser or the Trustee has conducted or has failed to conduct any partial or
complete examination of the Files shall not affect the rights of the Purchaser
or the Trustee to demand repurchase or other relief as provided in this
Agreement.
Section 2.05. Books and Records. The sale of each Mortgage Loan shall be
reflected on the Seller's accounting and other records, balance sheet and other
financial statements as a sale of assets by the Seller to the Purchaser. The
Seller shall be responsible for maintaining, and shall maintain, a complete set
of books and records for each Mortgage Loan which shall be clearly marked to
reflect the ownership of each Mortgage Loan by the Trustee for the benefit of
the Certificateholders.
Section 2.06. Cost of Delivery and Recordation of Documents. The costs
relating to the delivery and recordation of the documents specified in this
Article Two in connection with the Mortgage Loans shall be borne by the Seller.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties as to the Seller. The Seller
hereby represents and warrants to the Purchaser, as of the Startup Day, that:
(a) Organization and Good Standing. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its assets
and to transact the business in which it is currently engaged. The Seller is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Seller.
(b) Authorization; Binding Obligations. The Seller has the power and
authority to make, execute, deliver and perform this Agreement and all of the
transactions contemplated under this Agreement, and to create the Trust and
cause it to make, execute, deliver and perform its obligations under this
Agreement and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and to cause the Trust to
be created. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Seller enforceable in accordance with
its terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(c) No Consent Required. The Seller is not required to obtain the consent
of any other party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement.
(d) No Violations. The execution, delivery and performance of this
Agreement by the Seller will not violate any provision of any existing law or
regulation or any order or decree of any court or the Certificate of
Incorporation or Bylaws of the Seller, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the Seller is a party
or by which the Seller may be bound.
(e) Litigation. No litigation or administrative proceeding of or before any
court, tribunal or governmental body is currently pending, or to the knowledge
of the Seller threatened, against the Seller or any of its properties or, with
respect to this Agreement, the Certificates which, if adversely determined,
would in the opinion of the Seller have a material adverse effect on the
transactions contemplated by this Agreement.
Section 3.02. Representations and Warranties of the Purchaser. The
Purchaser hereby represents, warrants and covenants to the Seller, as of the
date of execution of this Agreement and the Startup Day, that:
(a) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(b) The Purchaser has the corporate power and authority to purchase each
Mortgage Loan and to execute, deliver and perform, and to enter into and
consummate all the transactions contemplated by this Agreement;
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(c) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, and, assuming the due authorization, execution and
delivery hereof by the Seller, constitutes the legal, valid and binding
agreement of the Purchaser, enforceable against the Purchaser in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration or
filing with, or notice to, any governmental authority or court is required for
the execution, delivery and performance of or compliance by the Purchaser with
this Agreement or the consummation by the Purchaser of any of the transactions
contemplated hereby, except such as have been made on or prior to the Startup
Day; and
(e) None of the execution and delivery of this Agreement, the purchase of
the Mortgage Loans from the Seller, the consummation of the other transactions
contemplated hereby, or the fulfillment of or compliance with the terms and
conditions of this Agreement, (i) conflicts or will conflict with the charter or
bylaws of the Purchaser or conflicts or will conflict with or results or will
result in a breach of, or constitutes or will constitute a default or results or
will result in an acceleration under, any term, condition or provision of any
indenture, deed of trust, contract or other agreement or other instrument to
which the Purchaser is a party or by which it is bound and which is material to
the Purchaser, or (ii) results or will result in a violation of any law, rule,
regulation, order, judgment or decree of any court or governmental authority
having jurisdiction over the Purchaser.
ARTICLE IV
THE SELLER
Section 4.01. Covenants of the Seller. The Seller hereby agrees to do all
acts, transactions, and things and to execute and deliver all agreements,
documents, instruments, and papers by and on behalf of the Seller as the
Purchaser or its counsel may reasonably request in order to consummate the sale
and transfer of the Mortgage Loans to the Purchaser and the subsequent sale and
transfer thereof to the Trustee, and the rating, issuance and sale of the
Certificates.
ARTICLE V
MISCELLANEOUS
Section 5.01. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered to or mailed by registered mail, postage prepaid, or transmitted by
telex or telegraph and confirmed by a similar mailed writing, addressed to the
Seller at Access Financial Lending Corp., 400 Highway 169 South, Suite 400, St.
Louis Park, MN 55426-1106, Attention: President, or to such other address as the
Seller may designate in writing to the Purchaser and if to the Purchaser,
addressed to the Purchaser at Access Financial Receivables Corp., 400 Highway
169 South, Suite 410, St. Louis Park, MN 55426-1106, Attention: President, or to
such other address as the Purchaser may designate in writing to the Seller.
Section 5.02. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement which is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any
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Mortgage Loan shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 5.03. Agreement of Seller. The Seller agrees to execute and deliver
such instruments and take such actions as the Purchaser may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement.
Section 5.04. Survival. The parties to this Agreement agree that the
representations, warranties and agreements made by each of them herein and in
any certificate or other instrument delivered pursuant hereto shall be deemed to
be relied upon by the other party hereto, notwithstanding any investigation
heretofore or hereafter made by such other party or on such other party's
behalf, and that the representations, warranties and agreements made by the
parties hereto in this Agreement or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans.
Section 5.05. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 5.06. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as expressly permitted by the terms
hereof, this Agreement may not be assigned, pledged or hypothecated by any party
hereto to a third Person without the written consent of the other party to this
Agreement; provided, however, that the Purchaser may assign its rights hereunder
without the consent of the Seller.
Section 5.07. Confirmation of Intent; Grant of Security Interest. It is the
express intent of the parties hereto that the conveyance of the Mortgage Loans
by the Seller to the Purchaser as contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Seller to the Purchaser of the
Mortgage Loans. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held to continue to be property of the Seller then (a) this Agreement shall also
be deemed to be a security agreement within the meaning of Articles 8 and 9 of
the Uniform Commercial Code; (b) the transfer of the Mortgage Loans provided for
herein shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans and all amounts payable on the Mortgage Loans in accordance with
the terms thereof and all proceeds of the conversion, voluntary or involuntary,
of the foregoing into cash, instruments, securities or other property; (c) the
possession by the Purchaser of Mortgage Loans and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9A305 of the Uniform Commercial Code; and
(d) notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser for the
purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Purchaser pursuant to any provision hereof
shall also be deemed to be an assignment of any security interest created
hereby. The Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement.
Section 5.08. Miscellaneous. This Agreement supersedes all prior agreements
and understandings relating to the subject matter hereof.
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Section 5.09. Amendments. (a) This Agreement may be amended from time to
time by the Seller and the Purchaser by written agreement without notice to or
consent of the Certificateholders to cure any ambiguity, to correct or
supplement any provisions herein, to comply with any changes in the Code, or to
make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, at the expense of the party requesting the change, delivered
to the Trustee, adversely affect in any material respect the interests of any
Certificateholder; provided, further, that no such amendment shall reduce in any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or change the rights or obligations
of any other party hereto without the consent of such party.
(b) It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof.
Section 5.10. Third-Party Beneficiaries. The parties agree that the Trustee
is an intended third-party beneficiary of this Agreement to the extent necessary
to enforce the rights and to obtain the benefit of the remedies of the Purchaser
under this Agreement which are assigned to the Trustee for the benefit of the
Certificateholders pursuant to the Pooling and Servicing Agreement and to the
extent necessary to obtain the benefit of the enforcement of the obligations and
covenants of the Seller under Sections 3.05 and 4.01 of this Agreement.
Section 5.11. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) OF THE STATE OF
NEW YORK.
(b) THE PURCHASER AND THE SELLER HEREBY SUBMIT TO THE NON-EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES
DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND EACH
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS SET
FORTH IN SECTION 5.01 OF THIS AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED TO
BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S.
MAILS, POSTAGE PREPAID. THE PURCHASER AND THE SELLER EACH HEREBY WAIVES ANY
OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY
ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF THE PURCHASER AND THE SELLER TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR AFFECT EITHER'S RIGHT TO BRING ANY ACTION
OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
(c) THE PURCHASER AND THE SELLER HEREBY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH THIS
AGREEMENT. INSTEAD, ANY DISPUTE
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RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 5.14. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
by their respective officers thereunto duly authorized as of the date first
above written.
ACCESS FINANCIAL LENDING CORP.
By:_________________________________
Name: Leslie Zejdlik Foster
Title: President
ACCESS FINANCIAL RECEIVABLES CORP.
By:_________________________________.
Name: Leslie Zejdlik Foster
Title: President
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EXHIBIT A
MORTGAGE LOAN SCHEDULE