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EXHIBIT 99.1
FORM OF
SALES AGREEMENT
THIS SALES AGREEMENT, made as of __________ __, 20__, (this "Sales
Agreement") by and between _____________, a ____________ [corporation] (the
"Seller") and UNION PLANTERS HOME EQUITY CORP., a Delaware corporation (the
"Purchaser"), recites and provides as follows:
RECITALS
1. Schedule I attached hereto and made a part hereof lists a pool of [one-
to four family, fully amortizing, [fixed][adjustable] rate, first-lien mortgage
loans (collectively, the "Mortgage Loans")][[certain mortgage certificates]
[certain mortgage securities][certain agency securities] (the "Assets")]
currently owned by the [Seller] that the Seller desires to sell to the
Purchaser.
2. The Purchaser desires to purchase the [Mortgage Loans][Assets] and
intends immediately thereafter to [transfer][pledge] the [Mortgage
Loans][Assets] to the Series 20_-_ Trust (the "Trust") pursuant to the terms of
[an Indenture] [a Pooling and Servicing Agreement][a Trust Agreement] (the
"Agreement"), dated as of ____________ 20__, by and among the Purchaser,
[___________________, as master servicer (the "Master Servicer"),] and
_______________________________________________, as trustee (the "Trustee").
3. Pursuant to the terms of the Agreement, the Trust will issue securities
[evidencing ____ of the beneficial ownership interest in the Trust][secured by
the Trust] to the Purchaser in consideration of the Purchaser's [deposit]
[pledge] of the [Mortgage Loans][Assets] to the Trust.
4. Securities to be issued by the Trust to the Purchaser will be
designated as the [Mortgage Pass-Through Certificates][Collateralized Mortgage
Bonds], Series 20_-_, Class __, Class __, Class ___, and Class __ Securities and
shall be collectively referred to herein as the "Securities."
5. The Class __, Class __, and Class __ Securities (collectively, the
"Underwritten Securities") shall be sold pursuant to an underwriting agreement,
dated as of __________ __, 20__ (the "Underwriting Agreement"), by and among the
Purchaser, the Seller and ________, as underwriter (the "Underwriter"). The
Underwritten Securities will be registered pursuant to a prospectus supplement
dated ______________ __, 20__ (the "Prospectus Supplement") to a prospectus
dated ____________ __, 20__ (collectively, with the Prospectus Supplement, the
"Prospectus"). The Class __ Securities will not be offered by the Prospectus.
The Class __ Securities will be sold to ______________ pursuant to a Purchase
Agreement between the Purchaser, the Seller and ______________ dated
______________ __, 20__ (the "_____ Purchase Agreement").
6. Capitalized terms used and not defined herein shall have the meanings
assigned to them in the Agreement[ or, if not defined therein, in the Servicing
Agreement, dated as of _______ 20__,
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between _____________, as master servicer (the "Master Servicer") and
___________ (the "Servicing Agreement")].
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises herein made and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as follows:
SECTION 1. SALE AND PURCHASE.
(a) Subject to the terms and conditions of this Sales Agreement,
the Seller agrees to sell, and the Purchaser agrees to purchase, on the date of
the issuance of the Securities, which is expected to be on or about ____________
__, 20__ (the "Closing Date"), [Mortgage Loans][Assets] having an aggregate
principal balance as of the close of business on __________ 20__ (the "Principal
Cut-off Date"), of approximately $_______________, [plus or minus ___].
(b) [The Seller and the Purchaser have agreed upon which of the
[mortgage loans][assets] owned by the Seller are to be purchased by the
Purchaser pursuant to this Sales Agreement, and the Seller has prepared, or has
provided information to the Purchaser enabling it to prepare, the schedule
attached hereto as [Schedule I], setting forth all of the [Mortgage
Loans][Assets] to be purchased by the Purchaser as of the Closing Date and
describing such [Mortgage Loans][Assets]. The Seller shall, with the Purchaser's
consent, amend or modify, (or provide information to the Purchaser enabling it
to amend or modify) [Schedule I] on or prior to the Closing Date, if necessary
to reflect the actual [Mortgage Loans][Assets] transferred by the Seller and
accepted by the Purchaser on the Closing Date. [Schedule I], as so amended or
modified (collectively, the "Closing Schedule"), shall conform to the
requirements of the Purchaser as set forth in this Sales Agreement and to the
definition of "[Mortgage Loan][Asset] Schedule" under the Agreement, and shall
be used as the definitive [Mortgage Loan][Asset] Schedule attached as an exhibit
to the Agreement.]
(c) The sale of the [Mortgage Loans][Assets] shall be effected
pursuant to the Bill of Sale substantially in the form attached hereto as
[Exhibit A] (the "Bill of Sale").
SECTION 2. POOL PURCHASE PRICE.
(a) On the Closing Date, as full consideration for the Seller's
transfer of the [Mortgage Loans][Assets] to the Purchaser, the Purchaser will
deliver to the Seller, (i) cash in an amount that shall be set out in the Bill
of Sale and shall be equal to the sum of (A) _____________% of the aggregate
initial Security Principal Balance of the Securities, (B) accrued interest on
each Class of Securities [(except the Class __ Securities)] from ___________
20__ to the Closing Date (collectively, the "Pool Purchase Price").
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(b) The Purchaser or any assignee or transferee of the Purchaser (which may
include the Trustee acting on behalf of the Securityholders) shall be entitled
to all [Monthly] Payments due after _____________ 20__ (the "Cut-off Date"), and
all Curtailments or other principal prepayments received with respect to the
[Mortgage Loans][Assets] paid by the Obligor on or after the Cut-off Date,
except that the Purchaser or any assignee or transferee of the Purchaser will
not be entitled to any Curtailments or other prepayments received after the
Cut-off Date but reflected in the aggregate Scheduled Principal Balance of the
[Mortgage Loans][Assets] on the Cut-off Date (the "Cut-off Balance"). All
[Monthly] Payments due on or before the Cut-off Date and collected on or after
the Cut-off Date shall belong to the Seller.
(c) Pursuant to the Agreement, the Purchaser will [transfer and assign]
[pledge] all of its right, title and interest in and to the [Mortgage
Loans][Assets] to the Trustee for the benefit of the Holders of the Securities
in consideration of the issuance of the Securities to the Purchaser.
SECTION 3. TRANSFER OF THE [MORTGAGE LOANS][ASSETS].
(a) Trustee Mortgage Loan File. For purposes of this Sales
Agreement, the "Trustee Mortgage Loan File" will be as defined in the Agreement.
(b) Transfer of Ownership. Upon sale of the Mortgage Loans, the
ownership of each Mortgage Loan Document with respect to each Mortgage Loan
shall be vested in the Purchaser, and the ownership of all other records and
documents with respect to the related Mortgage Loan prepared by or which come
into the possession of the Seller shall immediately vest in the Purchaser. The
Seller shall promptly deliver to the Custodian (as defined below) or the Master
Servicer, as appropriate, any documents that come into its possession with
respect to the Mortgage Loans following the sale of the Mortgage Loans to the
Purchaser. Prior to such delivery, the Seller shall hold any such documents for
the benefit of the Purchaser, its successors and assigns.
(c) Delivery of Mortgage Loan Files. Not later than [___] Business
Days prior to the Closing Date, the Seller shall deliver to ___________________,
or its agent, as custodian (the "Custodian"), each of the Mortgage Loan
Documents required to be included in the Trustee Mortgage Loan File for such
Mortgage Loan. The Mortgage Note for each Mortgage Loan shall be endorsed,
without recourse, to the Trustee or Custodian or in blank, and the Security
Instrument for each Mortgage Loan shall be assigned to the Trustee or Custodian
or in blank.
Prior to the transfer and sale of the Mortgage Loans pursuant to this
Sales Agreement, all Mortgage Loan Documents delivered to the Custodian shall be
held by the Custodian for the benefit of the Sellers and the possession by the
Custodian of such Mortgage Loan Documents will be at the will of the Seller and
will be in a custodial capacity only. [Following the transfer and sale of the
Mortgage Loans from the Seller to the Purchaser in accordance with the terms and
upon satisfaction of the conditions of this Sales Agreement, the Custodian will
hold all Mortgage Loan Documents delivered to it hereunder for the benefit of
the Purchaser, as its agent and bailee.] The Custodian, who will also act as the
Trustee, will act on its behalf as a custodian for the receipt and custody of
all Trustee Mortgage Loan Files and after the transfer of the Mortgage
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Loans from the Purchaser to the Trust, the Custodian will hold all Mortgage Loan
Documents delivered to it hereunder for the benefit of the Trustee, as trustee
of the Trust.
(d) Examination of Mortgage Loan Documents: Acceptance of Mortgage
Loans. Prior to the Closing Date, the Seller shall either (i) deliver to the
Purchaser or its designee in escrow, for examination, the Mortgage Loan
Documents pertaining to each Mortgage Loan, or (ii) make such Mortgage Loan
Documents available to the Purchaser or its designee for examination at the
Seller's offices or at such other place as the Seller shall specify. The
Purchaser, the Trustee, or a designee of either entity may review the Mortgage
Loan Documents to verify that all documents required to be included in each
Trustee Mortgage Loan File (as such term has been defined in the Agreement) are
so included.
Prior to the Closing Date, the Trustee or its designee shall review the
documents delivered pursuant to Section 3(c) hereof to ascertain that, as to
each Mortgage Loan listed in [Schedule I], (i) all documents required to be
delivered by the Seller pursuant to Section 3(c) have been received, (ii) such
documents appear regular on their face and relate to such Mortgage Loan, and
(iii) the information on the Mortgage Loans set forth in [Schedule I] accurately
reflects the information set forth in the corresponding Trustee Mortgage Loan
File, to the extent required by Section ___ of the Agreement. An additional
review shall be conducted by the Trustee or its designee prior to the first
anniversary of the Closing Date to determine that all Mortgage Loan Documents
required to be included in the Trustee Mortgage Loan File are included therein.
If at any time the Purchaser or the Trustee discovers or receives notice that
any Mortgage Loan Document is missing or defective in any material respect with
respect to any Mortgage Loan, the Seller shall correct or cure any such omission
or defect or, if such omission or defect materially impairs the value of the
Mortgage Loans, repurchase or substitute for such defective Mortgage Loan in
accordance with and if permitted by the terms of Section __ hereof. At the time
of such repurchase or substitution, the Trustee shall release documents in its
possession relating to such Mortgage Loan to the Seller. The fact that the
Purchaser, the Trustee or a designee of either entity has conducted or has
failed to conduct any partial or complete examination of the Mortgage Loan
Documents prior to the Closing Date shall not affect the rights of the Purchaser
(or any assignee or successor thereof) to demand repurchase or other relief as
provided herein.
(e) Incomplete Trustee Mortgage Loan Files. In the event the
Seller does not deliver or cause to be delivered to the Custodian a complete
Trustee Mortgage Loan File for each Mortgage Loan identified on the Closing
Schedule (each such Mortgage Loan, an "Incomplete Mortgage Loan") by [5:00] p.m.
Eastern Time on the day prior to the Closing Date, the Purchaser may withhold
from the Pool Purchase Price and deposit with the Trustee cash in an amount
equal to the Principal Cut-off Balance for each Incomplete Mortgage Loan, plus
one month's interest thereon at the Note Rate less the Servicing Fee Rate for
each such Incomplete Mortgage Loan. If cash is deposited with the Trustee by the
Purchaser with respect to an Incomplete Mortgage Loan, the Seller shall use its
best reasonable efforts to provide the Trustee with the Mortgage Loan Documents
missing from the Trustee Mortgage Loan File for the Incomplete Mortgage Loan by
[____ business day prior to the first distribution date]. If the Seller fails to
provide such missing Mortgage Loan Documents prior to such date, the Seller
shall either repurchase from the Purchaser the Incomplete Mortgage Loan for the
Purchase Price or substitute a Qualified
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Substitute Mortgage Loan therefor, provided, however, that any such repurchase
of or substitution for an Incomplete Mortgage Loan occurs by [___ business day
prior to the first distribution date]. Any funds deposited with the Trustee with
respect to an Incomplete Mortgage Loan shall be retained by the Trustee until
all of the Mortgage Loan Documents with respect to the Incomplete Mortgage Loan
have been delivered to the Trustee, or until the Seller has repurchased such
Incomplete Mortgage Loan from the Purchaser or effected a substitution therefor.
However, if the Seller does not complete the repurchase or substitution of the
Incomplete Mortgage Loan by [___ business day prior to the first distribution
date], the Trustee will apply the cash deposited in satisfaction of the Seller's
obligation to repurchase such Incomplete Mortgage Loan pursuant to the
Agreement. Such repurchase shall be applied on the first Distribution Date in
payment on the Securities, and the Trustee shall simultaneously release the
Incomplete Mortgage Loan File to the Purchaser or its designee.
(f) Recordation of Assignments of Security Instrument. Subject to
the sale of the Mortgage Loans by the Seller to the Purchaser in accordance with
the terms of this Sales Agreement, the Purchaser hereby authorizes and instructs
the Seller, and the Seller hereby agrees, with respect to each Mortgage Loan, to
record all Assignments required to be contained in the Trustee Mortgage Loan
File pursuant to the Agreement in the public recording office for the
jurisdiction in which the related Mortgage Premises is located. All recording
fees relating to the recordation of the Assignments as described above shall be
paid by the Seller. If the Trustee does not receive, within the time specified
in the Agreement, evidence satisfactory to it of such recording with respect to
any Mortgage Loan or, in the alternative, an Opinion of Counsel acceptable to
the Purchaser to the effect that such recording is not required to protect the
right, title and interest of the Trustee in any such Mortgage Loan, the Seller
shall, in cooperation with the Master Servicer, correct or cure any such
omission.]
[ Upon the transfer of the Assets to the Purchaser by the Seller, ownership
thereof shall be vested in the Purchaser. As soon as possible prior to the
Closing Date of the sale of the Assets to the Purchaser, the Seller shall
deliver to the Trustee the Assets together with bond powers executed in favor of
"__________________________, AS TRUSTEE FOR __________ SERIES 20_-_" and any
transferor documents and opinions of counsel required by the Agreement or other
documents under which the Assets were issued. Prior to the closing of the sale,
the Trustee shall hold the Assets for the benefit of the Seller. Proceeds shall
be delivered on the Closing Date or may, upon the agreement of the parties, be
netted against amounts due the Seller. [Notwithstanding the foregoing, the
parties acknowledge that the [PARTICULAR CERTIFICATE] has been lost. The Seller
agrees to provide the Trustee with a replacement certificate, registered in the
name of the Trustee or in negotiable form, as promptly as possible after the
Closing Date.]]
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
hereby represents and warrants to the Purchaser as of the date of this Sales
Agreement, or as of such other date as is specifically provided, as follows:
(a) Due Organization. The Seller has been duly incorporated and is
validly existing [and in good standing under] the laws of the [State of
___________] and duly qualified to do business and in good standing under the
laws of each jurisdiction that requires such qualification wherein it owns or
leases any material properties (except where the failure so to qualify would
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not have a material adverse effect on it). The Seller has the full power and
authority (corporate and other) to own its properties and conduct its business
as presently conducted.
(b) Due Authority. The Seller has the full power, authority and
legal right to transfer and convey the [Mortgage Loans][Assets] to the
Purchaser, and has the full power, authority (corporate and other) and legal
right to execute and deliver, engage in the transactions contemplated by, and
perform and observe the terms and conditions of, this Sales Agreement.
(c) Enforceability. This Sales Agreement has been duly and validly
authorized, executed and delivered by the Seller and (assuming the due
authorization, execution and delivery hereof by the Purchaser) constitutes the
valid, legal and binding agreement of the Seller, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, receivership, conservatorship,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and to general principles of equity, regardless of whether such
enforcement is sought in a proceeding in equity or at law and except that the
provisions of indemnity contained herein may be unenforceable as against public
policy.
(d) No Consent. No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
is required, under federal laws or the laws of the State of ___________, for the
execution, delivery and performance of or compliance by the Seller with this
Sales Agreement or the consummation by the Seller of any other transaction
contemplated hereby.
(e) No Conflict. Neither the execution and delivery of this Sales
Agreement by the Seller, nor the consummation by the Seller of the transactions
herein contemplated, nor compliance with the provisions hereof by the Seller,
will (i) conflict with or result in a breach of, or constitute a default under,
any of the provisions of the Seller's charter or by-laws, or any law,
governmental rule or regulation, or any judgment, decree or order binding on the
Seller or any of its properties, or any of the provisions of any indenture,
mortgage, deed of trust, contract or other instrument to which the Seller is a
party or by which it is bound or (ii) result in the creation or imposition of
any lien, charge or encumbrance which would have a material adverse effect upon
any of its properties pursuant to the terms of any such indenture, mortgage,
deed of trust, contract or other instrument.
(f) Disclosure. No certificate of an officer, statement or other
information furnished in writing or a report delivered to the Underwriter, the
Purchaser, any affiliate or designee of the Purchaser or the Trustee by the
Seller for use in connection with the purchase of the [Mortgage Loans][Assets]
and the transactions contemplated hereunder will, to the knowledge of the
Seller, contain any untrue statement of a material fact, or omit a material fact
necessary to make the information, certificate, statement or report not
misleading.
(g) Financial Statements. The Seller has delivered to the
Purchaser financial statements as to its last [two complete fiscal years.] All
such financial statements fairly present the pertinent results of operations and
changes in financial position for each of such periods and the financial
position at the end of each such period of the Seller and its subsidiaries and
have
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been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in the
notes thereto.
(h) No Change. There has been no change in the business,
operations, financial condition, properties or assets of the Seller since the
date of the Seller's financial statements that would have a material adverse
effect on its ability to perform its obligations under this Sales Agreement.
(i) No Broker. The Seller has not dealt with any broker,
investment banker, agent or other person that may be entitled to any commission
or compensation in connection with the sale of the [Mortgage Loans][Assets] to
the Purchaser, except for the Underwriter to the extent described in the
Prospectus Supplement, the Purchaser or an affiliate of the Purchaser.
(j) No Litigation. There is no litigation pending or, to
the Seller's knowledge, threatened against the Seller that would reasonably be
expected to (i) affect adversely the transfer of the [Mortgage Loans][Assets],
the issuance of the Securities, or the execution, delivery, performance or
enforceability of this Sales Agreement or (ii) have a material adverse effect on
the financial condition of the Seller.
(k) Sale. The Seller will treat the transfer of the [Mortgage
Loans][Assets] to the Purchaser as a sale on its books and records in accordance
with generally accepted accounting principles.
(l) Good Title. Immediately prior to the sale of the [Mortgage
Loans][Assets] to the Purchaser, the Seller will be the sole owner of, and will
have good and marketable title to, the [Mortgage Loans][Assets], subject to no
prior lien, mortgage, security interest, pledge, charge or other encumbrance,
and on the Closing Date, the [Security Instrument for the Mortgage Loans]
[Assets] will be duly and validly assigned by the Seller as described in Section
3(c) hereof, the related [Mortgage Notes][certificates] will be endorsed as
described in Section 3(c) hereof and such [Security Instruments and Mortgage
Note][certificate] will be delivered to the Custodian, together with the other
[Mortgage Loan] Documents required by such Section to be included in the Trustee
[Mortgage Loan] File. Following the sale of the [Mortgage Loans][Assets], the
Purchaser will own such [Mortgage Loans][Assets], free and clear of any prior
lien, mortgage, security interest, pledge, charge or other encumbrance
[(assuming, with respect to each Mortgage Loan secured by Mortgaged Premises
located in a jurisdiction in which recordation of an assignment is necessary to
transfer a lien on the Mortgaged Premises, that an Assignment of the Security
Instrument from the Seller to the Purchaser, or its designee, including the
Trustee or the Master Servicer, has been so recorded)].
(m) Mortgage Loan Documents. With respect to each Mortgage Loan,
the Seller is in possession of each of the Mortgage Loan Documents required to
be included in the Trustee Mortgage Loan File and the Servicer Mortgage Loan
File, except for such documents as have been delivered to the Purchaser, the
Custodian or the Master Servicer.]
(n) No Bulk Transfer. The transfer, assignment and conveyance of
the [Mortgage Notes][Assets] and the Security Instruments by the Seller pursuant
to this Sales Agreement are
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not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction.
(o) No Adverse Selection. The Seller used no adverse selection
procedures in selecting the [Mortgage Loans][Assets] from among the outstanding
[mortgage loans][assets] in its portfolio as to which the representations and
warranties in this Section could be made.
(p) [Primary Mortgage Insurance. There is in effect with respect
to each Mortgage Loan identified on [Schedule II] hereto a policy of Primary
Mortgage Insurance issued by the mortgage insurance company specified therein;
all the information set forth in [Schedule II] is true and correct.]
(q) Disclosure. The description of the [Mortgage Loans][Assets]
acquired from the Seller set forth in the Prospectus Supplement under the
heading "____________________" does not contain an untrue statement of a
material fact or omit a material fact required to be stated therein or necessary
in order to make the statements contained therein, in light of the circumstances
under which they are made, not misleading.
(r) Mortgage Loan Schedule. The information set forth in [Schedule
I] hereto will be true and correct in all material respects as of the Cut-off
Date.
(s) Fair Consideration. The consideration received by the Seller
upon the sale of the [Mortgage Loans][Assets] under this Sales Agreement
constitutes fair consideration and reasonably equivalent value for the [Mortgage
Loans][Assets].
(t) Solvency. The Seller is solvent, and the sale of the [Mortgage
Loans][Assets] will not cause the Seller to become insolvent. The sale of the
[Mortgage Loans][Assets] is not undertaken with the intent to hinder, delay or
defraud any of the Seller's creditors.
(u) No Modification. The Seller intends to relinquish all rights
to possess, control and monitor the [Mortgage Loans][Assets] sold pursuant to
this Sales Agreement. After the Closing Date, the Seller will have no right to
modify or alter the terms of the sale of the [Mortgage Loans][Assets], and the
Seller will have no right or obligation to repurchase any [Mortgage Loan][Asset]
or substitute another [mortgage loan][asset] for any [Mortgage Loan][Asset] sold
hereunder, except as provided in Sections 3(e) and 7 hereof.
(v) [No Default. As of the date hereof, no property securing a
Mortgage Loan is subject to foreclosure, litigation, bankruptcy or insolvency
proceedings or any work out or foreclosure agreement, and, to the best of the
Seller's knowledge, the filing of a bankruptcy or insolvency proceeding that
would result in such Mortgage Loan becoming subject to bankruptcy or insolvency
proceedings is not imminent.]
(w) Loan-to-Value Ratios. The Loan-to-Value Ratio of each Mortgage
Loan at the time of origination or as of the date hereof is less than or equal
to [___]; and, with respect to each Mortgage Note that has been modified, the
related Mortgage Loan has a Loan-to-Value Ratio of less than or equal to [___]
as of the date of such modification or the date hereof.]
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(x) Bill of Sale. The Seller's representations and warranties
contained in the Bill of Sale [(attached hereto as Exhibit A)] are true and
correct.
(y) Place of Business. the Seller's principal place of business
and chief executive office are located in ______________, ________________.
(z) Not Plan Investor. the Seller is not a "benefit plan investor"
described in or subject to the Department of Labor Regulations set forth in 29
C.F.R. section 2510.3-101.
(aa) [Mortgage Loan Representations. As to each Mortgage Loan, the
Seller hereby represents and warrants to the Purchaser as of the date of this
Sales Agreement, or as of such other date as is specifically provided, that each
applicable representation and warranty set forth in [Schedule III] hereto is
true and accurate.]
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser hereby represents and warrants to Seller as of the date of this Sales
Agreement, or as of such other date as is specifically provided, as follows:
(a) The Purchaser is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware.
(b) The Purchaser has the full power, authority (corporate and
other) and legal right to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of, this Sales
Agreement.
(c) This Sales Agreement has been duly and validly authorized,
executed and delivered by the Purchaser, and (assuming the due authorization,
execution and delivery thereof by the Seller) constitutes the valid, legal and
binding agreement of the Purchaser, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws affecting creditors' rights generally, and to general
principles of equity, regardless of whether such enforcement is sought in a
proceeding in equity or at law.
(d) No consent, approval, authorization or order of or
registration of filing with, or notice to, any governmental authority or court
is required, under federal laws or the laws of the States of [Delaware or
Tennessee], for the execution, delivery and performance of or compliance by the
Purchaser with this Sales Agreement or the consummation by the Purchaser of any
other transaction contemplated hereby, except such as may be required pursuant
to state "blue sky" laws.
(e) Neither the execution and delivery of this Sales Agreement by
the Purchaser, nor the consummation by the Purchaser of the transactions hereby
contemplated, nor compliance with the provisions hereof by the Purchaser, will
(i) conflict with or result in a breach of, or constitute a default under, any
of the provisions of the Purchaser's articles of incorporation or by-laws, or
any law, governmental rule or regulation, or any judgment, decree or order
binding on the Purchaser or any of its properties, or any of the provisions of
any contract or other instrument to which the Purchaser is a party or by which
it is bound or (ii) result in the creation or
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imposition of any lien, charge or encumbrance which would have a material
adverse effect upon the Securities.
(f) There is no litigation pending or, to the Purchaser's
knowledge, threatened against the Purchaser that would reasonably be expected to
affect adversely the execution, delivery, performance or enforceability of this
Sales Agreement.
SECTION 6. COVENANTS OF THE SELLER. The Seller hereby covenants to the
Purchaser as follows:
(a) Simultaneously with the execution hereof, the Seller shall
execute and deliver a [Secretary's or Assistant Secretary's] Certificate
relating to the Seller's authority to enter into the transactions contemplated
by this Sales Agreement.
(b) On or before the Closing Date, the Seller shall take all steps
required of it to effectuate the [transfer][pledge] of the [Mortgage
Loans][Assets] to the [Trustee][Trust], as transferee of the Purchaser, free and
clear of any lien, charge, or encumbrance. The aggregate Principal Cut-off
Balance of the Mortgage Loans will be approximately $_____________________[,
_______ plus or minus __].
(c) The Seller shall use its best efforts to make available to
counsel for the Purchaser in executed form each of the Closing Documents (as
defined in Section 8(b) below) no later than [___ Business Days] before the
Closing Date, it being understood that such documents are to be released and
delivered only on the closing of the transaction contemplated hereby and the
sale of the Securities.
(d) The Seller shall deliver or cause to be delivered to the
Purchaser (i) an Opinion of Counsel as to various corporate matters
substantially in a form satisfactory to the Purchaser and (ii) such other
Opinions of Counsel, if any, as are required by either Rating Agency for the
issuance of the ratings on the Securities specified in Section 8(f) below.
(e) The Seller shall record its transfer of the [Mortgage Loans]
[Assets] to the Purchaser as a sale of its interest therein under generally
accepted accounting principles. The Seller shall also report the transfer as a
sale in all financial statements and reports to regulatory and supervisory
agencies and authorities to which it reports, if any. For federal income tax
purposes, the Seller will treat the transfer of the [Mortgage Loans][Assets] as
a sale.
SECTION 7. CURE, REPURCHASE AND SUBSTITUTION OBLIGATIONS.
(a) Each of the representations and warranties of the Seller
contained herein shall survive the purchase by the Purchaser of the [Mortgage
Loans][Assets] and shall continue in full force and effect[, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes and] notwithstanding
subsequent termination of this Sales Agreement or the Agreement. The
representations and warranties shall not be impaired by any review and
examination of [Mortgage Loan Documents or other] documents evidencing or
relating to the [Mortgage
-10-
<PAGE> 11
Loans][Assets] or any failure on the part of the Purchaser to review or examine
such documents and shall inure to the benefit of the Trustee (as the assignee of
the Purchaser) for the benefit of the Securityholders. With respect to the
representations and warranties contained herein, which are made to the best of
the Seller's knowledge or as to which the Seller has no knowledge, if it is
discovered by either the Seller, the Purchaser or the Trustee that the substance
of any such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related [Mortgage
Loan][Asset], then notwithstanding the Seller's lack of knowledge with respect
to the substance of such representation and warranty being inaccurate at the
time the representation or warranty was made, the Seller shall take such action
described in the following paragraph in respect of such [Mortgage Loan][Asset].
(b) Upon discovery or receipt of notice by the Seller, the
Purchaser or the Trustee of any missing or materially defective document[ in any
Trustee Mortgage Loan File], or a breach of any of the Seller's representations
and warranties set forth in Section 4 hereof, or a default in the performance of
any of the covenants or other obligations of the Seller under this Sales
Agreement, which in any of the foregoing cases materially and adversely affects
the value of any [Mortgage Loan][Asset] or the interest therein of the Purchaser
or the Trustee or causes a Qualification Defect, the party discovering or
receiving notice of such missing or materially defective document, breach, or
default shall give prompt written notice to the others. Upon its discovery or
its receipt of notice of any such missing or materially defective document,
breach or default, the Seller shall either (a) within [___] days of such
discovery or receipt of such notice, provide the Trustee with such missing
documents or cure such defect, breach or default, in all material respects, or
(b) within [___] days of such discovery or receipt of such notice, either
repurchase the affected [Mortgage Loan][Asset] at the Purchase Price or cause
the removal of such [Mortgage Loan][Asset] from the Trust (in which case it
shall become a Deleted [Mortgage Loan][Asset]) and substitute therefor one or
more Qualified Substitute [Mortgage Loans][Asset] as defined in the Agreement;
provided, however, that any such substitution occurs within [___ years] of the
Closing Date. Notwithstanding the foregoing, however, if such defect, breach, or
default results in a Qualification Defect, or if a Qualification Defect
otherwise exists with respect to [a Mortgage Loan][an Asset], the Seller must
cure such defect or repurchase the affected [Mortgage Loan][Asset] within [__]
days of the Defect Discovery Date. [The Master Servicer shall amend the Mortgage
Loan Schedule to reflect the withdrawal of any Mortgage Loan from the terms of
this Sales Agreement and the Agreement and the addition, if any, of a Qualified
Substitute Mortgage Loan.] [In order to effect a substitution pursuant to this
section, the Seller will deliver to the Trustee (i) each of the [Mortgage Loan]
Documents required to be contained in the Trustee [Mortgage Loan] File with
respect to the Qualified Substitute [Mortgage Loan][Asset](s) and (ii) if the
aggregate Unpaid Principal Balance on the date of substitution of the Qualified
Substitute [Mortgage Loan][Asset](s) is less than the aggregate Unpaid Principal
Balance of the Deleted [Mortgage Loan][Asset](s) (after application of [Monthly]
Payments due in the month of substitution), cash in an amount equal to such
shortfall.] [Any repurchase pursuant to this Section shall be accomplished by
the delivery to the Trustee, on (or determined as of) the last day of the
calendar month in which such repurchase is made, of the Purchase Price.]
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<PAGE> 12
(c) It is understood and agreed that the obligations of the Seller
set forth in this Sales Agreement to cure, repurchase or substitute for a
materially defective [Mortgage Loan][Asset] and to indemnify the Purchaser as
provided in this Sales Agreement constitute the sole remedies of the Purchaser
and the Trustee against the Seller respecting a defective document in any
Trustee [Mortgage Loan] File [or Servicer Mortgage Loan File] or a breach of
representations and warranties of the Seller set forth in Section 4 hereof.
SECTION 8. CONDITIONS TO OBLIGATIONS OF THE PURCHASER. The obligation
of the Purchaser hereunder to purchase the [Mortgage Loans][Assets] is subject
to:
(a) The accuracy in all material respects of all of the
representations and warranties of the Seller under this Sales Agreement, and no
event shall have occurred which, with notice or the passage of time, would
constitute a default under this Sales Agreement;
(b) The Purchaser shall have received, or the Purchaser's
attorneys shall have received, in escrow (to be released from escrow at the time
of closing), the following documents (collectively, the "Closing Documents") in
such forms as are agreed upon and acceptable to the Purchaser, duly executed by
all signatories other than the Purchaser as required pursuant to the respective
terms thereof:
(i) A Bill of Sale substantially in the form of Exhibit A
hereto;
(ii) An Opinion of Counsel for the Seller as to various
corporate matters and such other Opinions of Counsel as are necessary
in order to obtain the ratings set forth in Section 8(f) below, each of
which shall be acceptable to the Purchaser, its counsel, the
Underwriter, its counsel, and the Rating Agencies (it being understood
that such opinions shall expressly provide that the Trustee shall be
entitled to rely on such Opinions of Counsel);
(iii) [The Servicing Agreement described in Section 10
hereof;]
(iv) A letter from ____________________ dated the date
hereof containing in substance the information required by Section ____
of the Underwriting Agreement; and
(v) certificate dated the date hereof from the Seller's
chief financial officer or an officer of the Seller who is
knowledgeable about the Seller's financial and accounting matters
stating that the transfer of the Mortgage Loans from the Seller to the
Purchaser pursuant to this Sales Agreement will be classified as a sale
of the Seller's interest in the Mortgage Loans under generally accepted
accounting principles.
(c) The Seller shall have delivered to the Custodian, in escrow,
all documents [(including, without limitation, the Security Instrument assigned
by the Seller in blank or to the Trustee or Custodian and the Mortgage Note
endorsed in blank or to the Trustee or Custodian with respect to each Mortgage
Loan)] required to be delivered hereunder and shall have released its interest
therein to the Purchaser or its designee;
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<PAGE> 13
(d) All other terms and conditions of this Sales Agreement shall
have been complied with;
(e) The purchase by the Underwriter of the Underwritten Securities
pursuant to the terms of the Underwriting Agreement, and the purchase by _______
of the Class __ Securities pursuant to the _________ Purchase Agreement; and
(f) The receipt of written confirmation from each of ____________
and from ________________ that it has assigned the ratings shown in the
following table:
<TABLE>
<CAPTION>
Class of Securities Rating by Rating by
<S> <C> <C>
__ __ __
__ __ __
__ __ __
__ __ __
</TABLE>
SECTION 9. FEES AND DEPOSITS.
(a) [On the Closing Date, the Seller will pay to the Purchaser an
"Issuance Fee," which fee includes (i) a fee for the Purchaser's services in an
amount not greater than $_________ which fee includes fees and expenses of
attorneys, accountants (but not in connection with an accountant's review of
"Collateral Term Sheets," "Series Term Sheets," and/or "Computational
Materials," as such terms are defined in the Underwriting Agreement), printers
and the Trustee in connection with the issuance of the Securities, (ii) the fees
payable to the Securities and Exchange Commission relative to the Underwritten
Securities and (iii) the fees payable to each Rating Agency for its initial
rating of the Securities. [In addition, the Seller shall pay (i) any fees
related to the Custodian's receipt and review of the Trustee Mortgage Loan Files
with respect to the Mortgage Loans, (ii) the fees and expenses of its attorneys
and accountants, (iii) any required reserve fund deposits.]
(b) [The Master Servicer shall be entitled to receive in
consideration of its services under the Agreement a monthly fee (from which it
shall pay the Trustee's fees and out-of-pocket expenses with respect to the
Trustee's administration of the Trust) in an amount equal to no more than
one-twelfth of ______% per annum times the aggregate Scheduled Principal Balance
of the Mortgage Loans as of the immediately preceding Due Date without taking
into account any payments of principal due on such Due Date.]
SECTION 10. [SERVICING.
(a) The Seller has represented to the Purchaser that the Mortgage
Loans are serviced by
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<PAGE> 14
(b) In consideration of the services rendered under the Servicing
Agreement, the Master Servicer shall be entitled to a monthly Servicing Fee for
each Mortgage Loan computed based upon the Scheduled Principal Balance of the
Mortgage Loan as of the immediately preceding Due Date (without taking into
account any payment of principal due on such Due Date). The Servicing Fee for
each Mortgage Loan shall be payable solely from the interest portion of each
[Monthly] Payment paid by the Obligor or other payment of interest paid with
respect to the Mortgage Loan, whether from the proceeds of foreclosure or any
judgment, writ of attachment or levy against the Obligor or its assets, or from
funds paid in connection with any prepayment in full or from Insurance Proceeds
or Liquidation Proceeds.
The Master Servicer shall also be entitled to retain in addition to the
Servicing Fee any late charges, prepayment fees, conversion fees, penalty
interest or assumption fees paid by the Obligor, which amounts are not required
to be deposited to their Custodial Principal and Interest Accounts.]
SECTION 11. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST. The sale
and delivery on the Closing Date of the [Mortgage Loans][Assets] described in
the [Mortgage Loan] [Asset] Schedule is mandatory, it being specifically
understood and agreed that each [Mortgage Loan][Asset] is unique and
identifiable on the date hereof and that an award of money damages would be
insufficient to compensate the Purchaser for the losses and damages incurred by
the Purchaser in the event of the Seller's failure to deliver the [Mortgage
Loans][Assets] on or before the Closing Date. The Seller hereby grants to the
Purchaser a lien on and a continuing security interest in each [Mortgage
Loan][Asset] and each document and instrument evidencing each such [Mortgage
Loan][Asset] to secure the performance by the Seller of its obligation to
deliver such [Mortgage Loans][Assets] hereunder. Subject to Section 7(c) hereof,
all rights and remedies of the Purchaser under this Sales Agreement are distinct
from, and cumulative with, any other rights or remedies under this Sales
Agreement or afforded by law or equity and all such rights and remedies may be
exercised concurrently, independently or successively.
SECTION 12. INDEMNIFICATION; ASSIGNMENT OF CLAIMS; THIRD-PARTY
BENEFICIARY.
(a) In the event the Seller breaches its representations,
warranties, covenants or obligations set forth herein, the Seller shall
indemnify and hold harmless the Purchaser from and against any actual loss,
damages, penalties, fines, forfeiture, legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, such breach, except to
the extent such breach is the result of the Purchaser's failure to fulfill its
obligations under this Sales Agreement. Promptly after receipt by the Purchaser
of notice of the commencement of any such action, the Purchaser will, if a claim
in respect thereof is to be made against the Seller under this Section, notify
the Seller in writing of the commencement thereof, but the omission so to notify
the Seller will not relieve the Seller from any liability hereunder unless such
omission materially prejudices the rights and positions of the Seller. In case
any such action is brought against the Purchaser, and it notifies the Seller of
the commencement thereof, the Seller will be entitled to participate therein,
and to assume the defense thereof, with counsel satisfactory to the Purchaser,
and after
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<PAGE> 15
notice from the Seller to the Purchaser of its election so to assume the defense
thereof, the Seller will not be liable to the Purchaser under this Section for
any legal or other expenses subsequently incurred by the Purchaser in connection
with the defense thereof other than reasonable costs of such investigation. The
Seller shall (i) pay to the Purchaser, in addition to any amounts that may be
due hereunder, the Issuance Fee and (ii) to the extent such breach by Seller
results in the inability of the Purchaser to perform its obligations under the
Underwriting Agreement, reimburse the Underwriter upon demand for all amounts
otherwise payable by the Purchaser pursuant to Section __ of the Underwriting
Agreement, in either case in the event that any such breach or any of the
following results in the inability of the parties hereto to consummate the
transactions contemplated herein: (A) failure to obtain any consent or
authorization, if any, required under federal or Tennessee law for the Seller to
perform the transactions contemplated herein; or (B) Seller's failure to satisfy
any of the conditions set forth in Section 8(a), (b), (c) or (d) hereof.
(b) In the event of a breach by the Underwriter of the obligation
to purchase the Underwritten Securities pursuant to the Underwriting Agreement
or a breach by _______ of the obligation to purchase the Class __ Securities
pursuant to the ____ Purchase Agreement, the Purchaser hereby assigns to the
Seller, subject to payment in full of the Issuance Fee by the Seller to the
Purchaser, any and all rights of action or other claims the Purchaser may have
against the Underwriter pursuant to the Underwriting Agreement and against ____
pursuant to the ____ Purchase Agreement; provided, however, that the Purchaser
expressly reserves, and does not hereby assign, its rights to indemnification
and contribution under the Underwriting Agreement, the ____ Purchase Agreement
and any other rights to indemnification or contribution it may have at law or in
equity.
(c) In the event the Seller breaches its obligation to sell and
deliver the [Mortgage Loans][Assets] hereunder, the Purchaser hereby assigns to
the Underwriter any and all rights of action or other claims the Purchaser may
have against the Seller pursuant hereto, except its rights to the Issuance Fee
referred to in Section 9(a) above. The parties agree that the Underwriter is an
intended third-party beneficiary of the Seller's representations and warranties
contained in Section 4 of this Sales Agreement[, provided, however, that the
Underwriter's sole remedy for materially defective documents in, or the omission
of required documents from, any Trustee Mortgage Loan File or Servicer Mortgage
Loan File shall be limited to the cure or repurchase of, or substitution for, a
defective Mortgage Loan from the Trust as provided in Section 7(b) hereof, and
provided further that the Underwriter's remedy for any other breach of the
Seller's representations and warranties contained in Section 4 of this Sales
Agreement shall be the indemnification by the Seller from and against any actual
loss, damages, penalties, fines, forfeiture, legal fees and related costs,
judgments and other costs and expenses resulting from any claim, demand, defense
or assertion based on or grounded upon, or resulting from, such breach.] Seller
hereby agrees to so indemnify the Underwriter; provided, however, that the
second and third sentences of Section 12(a) above (modified to change references
to the Purchaser to be references to the Underwriter, as the case may be) shall
apply to the Seller's indemnification obligations to the Underwriter under this
Section 12(c).
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<PAGE> 16
(d) [To the extent that the Purchaser and the Trustee are not
indemnified by the Master Servicer,] the Seller shall indemnify and hold
harmless the Purchaser and the Trustee and any of their respective directors,
officers, employees or agents against any loss, liability or expense, including
reasonable attorney's fees, incurred arising out of or in connection with this
Sales Agreement, the Agreement or the Securities, including, but not limited to,
any such loss, liability, or expense incurred in connection with any legal
action against the Purchaser or the Trustee or any of their respective
directors, officers, employees or agents, or the performance of any of the
Purchaser or the Trustee's duties under this Sales Agreement or the Agreement
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of their respective
duties under this Sales Agreement or the Agreement or by reason of reckless
disregard of obligations and duties under this Sales Agreement or the Agreement.
The provisions of this Section 12(d) shall survive the termination of this Sales
Agreement and the Agreement. The Seller acknowledges that the Purchaser and the
Trustee are relying upon the foregoing indemnification in entering into this
Sales Agreement and the Agreement.
SECTION 13. 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
telecopier, telex or telegraph and confirmed by a similar mailed writing, as
follows:
(a) If to the Purchaser:
Union Planters Home Equity Corp.
7130 Goodlett Farms Parkway
Cordova, Tennessee 38018
Attention: President
with a copy, given in the manner
prescribed above, to:
Kevin J. Buckley, Esquire
Hunton & Williams
951 East Byrd Street
Richmond, Virginia 23220
(b) If to the Seller:
____________________
____________________
____________________
Attn: ______________
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<PAGE> 17
Any party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions of
this Section for the giving of notice.
SECTION 14. SEVERABILITY OF PROVISIONS. Any part provision,
representation or warranty of this Sales 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 Sales Agreement
that 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][Asset] 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 15. GOVERNING LAW. THIS SALES AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE [STATE OF TENNESSEE],
NOTWITHSTANDING ANY TENNESSEE OR OTHER CONFLICT OF LAWS PROVISIONS TO THE
CONTRARY.
SECTION 16. AGREEMENT OF THE SELLER. The Seller agrees to execute and
deliver such instruments and take such actions as the Seller or the Trustee may,
from time to time, reasonably request in order to effectuate the purpose and to
carry out the terms of this Sales Agreement including, without limitation, the
execution and filing of any UCC financing statements to evidence the interests
of the Purchaser and any of its transferees in the [Mortgage Loans][Assets] and
other assets assigned to the Trust.
SECTION 17. SURVIVAL. The Seller agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by the
Purchaser, notwithstanding any investigation heretofore or hereafter made by the
Purchaser or on the Purchaser's behalf, and that the representations, warranties
and agreements made by the Seller herein or in any such certificate or other
instrument shall survive the delivery of and payment for the [Mortgage
Loans][Assets].
SECTION 18. ASSIGNMENT. The Seller hereby acknowledges that the
Purchaser will assign all its rights hereunder (except those rights set forth in
Sections 9 and 12) to the Trustee. The Seller agrees that, upon the execution of
the Agreement, the Trustee will have all such rights and remedies provided to
the Purchaser hereunder (except those rights set forth in Sections 9 and 12) and
this Sales Agreement will inure to the benefit of the Trustee. The Trustee shall
constitute not only an assignee of the Purchaser's rights in accordance with
this Section but also an intended third party beneficiary of this Sales
Agreement to the extent necessary to enforce such rights and to obtain the
benefit of such remedies.
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<PAGE> 18
SECTION 19. MISCELLANEOUS.
(a) This Sales Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument. This
Sales Agreement shall inure to the benefit of, and be binding upon, the parties
hereto and their respective successors and assigns.
(b) Any person into which the Seller may be merged or consolidated
or any person resulting from a merger or consolidation involving the Seller or
any person succeeding to the business of the Seller shall be considered the
successor of the Seller hereunder, without the further act or consent of either
party. Except as provided above, this Sales Agreement cannot be assigned,
pledged or hypothecated by any party without the written consent of each other
party to this Sales Agreement.
(c) This Sales Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof. Neither this Sales
Agreement nor any term hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The
headings in this Sales Agreement are for purposes of reference only and shall
not limit or otherwise affect the meaning hereof.
(d) The Purchaser shall immediately effect the redelivery of the
[Mortgage Loans][Assets] [and all Mortgage Loan Documents] and any security
interest created by Section 11 hereof shall be deemed to have been released if,
on the Closing Date, each of the conditions set forth in Section 8 hereof shall
not have been satisfied or waived.
(e) It is the express intent of the parties hereto that the
conveyance of the [Mortgage Loans][Assets] by the Seller to the Purchaser as
contemplated by this Sales Agreement be construed as a sale of the [Mortgage
Loans][Assets] by the Seller to the Purchaser. It is, further, not the intention
of the parties that such conveyance be deemed a pledge of the [Mortgage
Loans][Assets] by the Seller to the Purchaser or any assignee of the Purchaser,
including, but not limited to, the Trustee, to secure a debt or other obligation
of the Seller. However, in the event that, notwithstanding the intent of the
parties, the [Mortgage Loans][Assets] are held to be property of the Seller then
(a) this Sales Agreement shall also be deemed to be a security agreement within
the meaning of Article 9 of the Tennessee Uniform Commercial Code or the Uniform
Commercial Code of any jurisdiction, as necessary; (b) the conveyance 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][Assets] and all amounts payable to the holder of the [Mortgage
Loans][Assets] 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, including without limitation all amounts, other
than investment earnings, from time to time held or invested in the Custodial
Principal and Interest Account, [the related Master Servicer Custodial Account,]
or the Asset Proceeds Account, whether in the form of cash, instruments,
securities or other property; [(c) the conveyance 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
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<PAGE> 19
right, title and interest in and to the Servicing Agreements with respect to the
Mortgage Loans;] (d) all insurance policies relating to the [Mortgage
Loans][Assets]; [(e) the possession by the Purchaser or its agents of Mortgage
Notes and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-305 of the [Trustee's jurisdiction] Uniform Commercial Code;] and (f)
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
Sales Agreement, take such actions as may be necessary to ensure that, if this
Sales Agreement were deemed to create a security interest in the [Mortgage
Loans][Assets], 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 Sales Agreement and the Agreement.
SECTION 20. REQUEST FOR OPINIONS. The Seller and the Purchaser hereby
request and authorize Hunton & Williams, as their counsel in this transaction,
to issue on behalf of the Seller and the Purchaser such legal opinions to the
Trustee, the Underwriter, and the Rating Agencies as may be (i) required by any
and all documents, certificates or agreements executed in connection with this
Sales Agreement or (ii) requested by the Trustee, the Underwriter, or the Rating
Agencies, or their respective counsel.
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<PAGE> 20
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Sales
Agreement to be executed and delivered by their respective officers thereunto
duly authorized as of the date first above written.
UNION PLANTERS HOME EQUITY CORP.
By:
-----------------------------------
Its:
----------------------------------
--------------------------------------
By:
-----------------------------------
Its:
----------------------------------
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<PAGE> 21
SCHEDULE I
[MORTGAGE LOANS][ASSETS]
SCHEDULE II
[MORTGAGE LOANS FOR WHICH
PRIMARY MORTGAGE INSURANCE
IS IN EFFECT]
SCHEDULE III
[REPRESENTATIONS AND WARRANTIES MADE BY THE SELLER
AS TO THE MORTGAGE LOANS]
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<PAGE> 22
SCHEDULE III
REPRESENTATIONS AND WARRANTIES MADE BY THE SELLER
AS TO THE MORTGAGE LOANS
(a) The information pertaining to each Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct at the date or dates as of which
such information was furnished.
(b) The Seller has not assigned any interest or participation in
any Mortgage Loan other than to the Purchaser (or if any such interest or
participation has been assigned it has been released or will be released prior
to or concurrently with the purchase of such Mortgage Loan by the Purchaser).
The Seller has not acted to (i) modify any Mortgage Note or Mortgage relating to
any Mortgage Loan in any material respect, (ii) satisfy, cancel or subordinate
any Mortgage Loan in whole or in part, (iii) release the related Mortgaged
Property in whole or in part from the lien of any Mortgage Loan or (iv) execute
any instrument effecting the release, cancellation, modification or satisfaction
of any Mortgage Loan.
(c) The Mortgage Note for each Mortgage Loan delivered to the
Purchaser, the Custodian or the Purchaser's other designee is the original
Mortgage Note and is the only Mortgage Note evidencing the Mortgage Loan that
has been manually signed by the related Obligor. As of the Cut-off Date, there
is no default, breach, violation or event of acceleration existing under any of
the Mortgage Loan Documents transferred to the Purchaser or any event that with
notice and expiration of any grace or cure period would result in such a
default, breach, violation or event of acceleration.
(d) As of the Cut-off Date, no [Monthly] Payment on any Mortgage
Loan was more than [__] days delinquent.
(e) Each Mortgage Note and Security Instrument executed and
delivered by a Obligor in connection with a Mortgage Loan has been duly executed
and delivered by the related Obligor and constitutes a legal, valid and binding
obligation of such Obligor, enforceable against such Obligor in accordance with
its terms, subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity (whether
considered in a proceeding at law or in equity).
(f) Each Security Instrument securing a Mortgage Loan has been
duly recorded in the appropriate governmental recording office in the
jurisdiction where the related Mortgaged Property is located or has been
submitted to such recording office for recordation.
(g) If the Security Instrument securing a Mortgage Loan does not
name the Seller as the beneficiary or mortgagee, then a valid assignment, in
recordable form, assigning the Security Instrument to the Seller or to the
Purchaser, has been duly recorded (or has been sent for
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<PAGE> 23
recordation) in the appropriate records depository for the jurisdiction in which
the related Mortgaged Property is located, and the Seller has delivered to the
Purchaser the original of such assignment accompanied by appropriate evidence
that such assignment has been duly recorded (or a copy thereof certified by the
appropriate records depository to be a true and complete copy of the recorded
assignment) or a copy of the original assignment together with a certificate
from an officer of the Seller certifying that such assignment has been sent for
recordation in the appropriate records depository, but that such recorded
assignment has not been returned to the Seller.
(h) No Mortgage Loan has been modified in any material respect
since the date of its origination and no Mortgage Loan is presently subordinated
in whole or in part to any other lien, nor has the Mortgaged Property securing
any Mortgage Loan been released in whole or in part from the lien of the related
Mortgage.
(i) Each Security Instrument contains customary and enforceable
provisions which render the rights and remedies of the holder thereof adequate
for the realization of the holder's rights against the related Mortgaged
Property in the event of a foreclosure or trustee's sale of such property. Upon
default by an Obligor on a Mortgage Loan and foreclosure on, or trustee's sale
of, the related Mortgaged Property pursuant to proper procedures, the holder of
the Mortgage Loan will be able to deliver good and merchantable title to the
Mortgaged Property underlying that Mortgage Loan, except to the extent that the
enforceability of remedies against such Obligor may be subject to applicable
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally, and to general principles of equity (whether considered in a
proceeding at law or in equity). There is no homestead exemption or other
exemption or defense available to the related Obligor that would prevent the
sale of the Mortgaged Property at a trustee's sale or impair the right of the
holder to foreclose thereon.
(j) In connection with the origination of each Mortgage Loan, the
originator complied with all applicable federal, state and local laws and
regulations, including but not limited to those related to consumer credit,
equal credit opportunity, real estate settlement procedures, truth-in-lending
and usury.
(k) An appraisal of the Mortgaged Property underlying each
Mortgage Loan was made at the time the Mortgage Loan was originated by an
appraiser who met the minimum qualifications of Fannie Mae or Freddie Mac for
appraisers of conventional residential mortgage loans and was completed on a
form satisfactory to Fannie Mae or Freddie Mac.
(l) The Seller has legal authority to transfer the Mortgage Loans
and the assignment of each Security Instrument to the Trustee constitutes a
legal, valid and binding assignment of the Security Instrument and creates, or
upon recordation will create, a valid first priority security interest in favor
of the Trustee in such Security Instrument or vests ownership of such Security
Instrument in the Trustee.
(m) The Security Instrument securing each Mortgage Loan creates a
valid and enforceable first lien on the related Mortgaged Property subject only
to Permitted Encumbrances. "Permitted Encumbrances" consist of the following in
respect of any Mortgage Loan:
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1) the lien of current real property taxes and
assessments not yet due and payable;
2) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of
recording acceptable to prudent mortgage lending institutions generally
and specifically referred to in the lender's title insurance policy
delivered to the related originator and referred to or otherwise
considered in the appraisal made for the originator; and
3) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Security Instrument or the use,
enjoyment, value or marketability of the related Mortgaged Property.
(n) There are no mechanic's or other liens against the related
Mortgaged Property which are superior to or equal to the first lien of the
related Mortgage Loan, except such liens that are expressly insured against by a
Title Insurance Policy.
(o) There are no delinquent taxes, ground rents, water charges,
sewer rents, insurance premiums, assessments (including, but not limited to,
assessments payable in future installments), governmental assessments or
municipal charges due and owing as to any Mortgaged Property. All such charges
have been paid or a sufficient escrow has been established to make payment of
such charges.
(p) Each Mortgaged Property is free of material damage and, to the
best of the Seller's knowledge, is in good repair. The Seller is not aware of
any condemnation proceedings with respect to any Mortgaged Property.
(q) All improvements located on each Mortgaged Property that were
considered in determining the appraised value of the Mortgaged Property lie
within the boundary lines of, and comply with building restrictions applicable
to, the Mortgaged Property. There is no violation of applicable zoning laws or
regulations with respect to any Mortgaged Property. No improvements on adjoining
properties encroach upon any Mortgaged Property in any respect so as to affect
adversely the value or marketability of the Mortgaged Property.
(r) The full principal amount of each Mortgage Loan has been paid
to the related Obligor or according to the direction of the Obligor. The Obligor
has no option under the related Security Instrument to borrow additional funds
secured by the related Security Instrument from the Seller or any other person.
The principal balance of each Mortgage Loan as of the Cut-off Date, as set forth
in the Mortgage Loan Schedule, is correct and is fully secured by the related
Mortgage.
(s) Except with respect to any funds held in a temporary buy-down
fund for a buy-down loan, no Mortgage Loan is subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the related
Mortgage Note or Security Instrument, or the exercise of any right
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<PAGE> 25
thereunder, render either the Mortgage Note or the Security Instrument
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including without limitation the defense of
usury, and no such right of rescission, set-off, counterclaim or defense has
been asserted with respect thereto.
(t) Pursuant to the terms of each Mortgage, all improvements on
the related Mortgaged Property are insured by an insurer acceptable to Fannie
Mae against loss by fire and such other risks as are usually insured against by
the broad form of extended coverage hazard insurance policy as is from time to
time available. All such improvements are also insured against flood hazards if
the Mortgaged Property is in an area identified by the Secretary of Housing and
Urban Development or the Director of the Federal Emergency Management Agency as
subject to special flood hazards (and if flood insurance is available for real
properties located in the area in which such Mortgaged Property is located). All
such insurance policies (collectively, the "hazard insurance policy") meet the
requirements of the current guidelines of the Federal Insurance Administration,
conform to the Fannie Mae Sellers' Guide and the Fannie Mae Servicers' Guide,
and collectively constitute a standard policy of insurance for the locale where
the Mortgaged Property is located. The coverage provided by such a hazard
insurance policy is in the amount of the lesser of (i) the full insurable value
of the related Mortgaged Property on a replacement cost basis or (ii) the unpaid
balance of the Mortgage Loan, and in any event must at least be sufficient to
avoid application of any co-insurance clause contained in such hazard insurance
policy. The hazard insurance policy names (and will name) the present owner of
the Mortgaged Property as the insured and contains a standard mortgagee loss
payable clause in favor of the originator (or another initial payee under the
related Mortgage Note) and its successors and assigns, including the Seller and
its successors and assigns. The Security Instrument obligates the Obligor
thereunder to maintain the hazard insurance policy at the Obligor's cost and
expense, and on the mortgagor's failure to do so, authorizes the holder of the
Security Instrument to obtain and maintain such insurance at such holder's cost
and expense, and to seek reimbursement therefor from the Obligor. Where required
by state law or regulation, the Obligor has been given an opportunity to choose
the carrier of the required hazard insurance.
(u) Each Standard Hazard Insurance Policy and Primary Mortgage
Insurance Policy (if any) is the valid and binding obligation of the related
insurer, is in full force and effect, and will be in full force and effect and
inure to the benefit of the Purchaser and its successors and assigns (including
the Trustee) upon the consummation of the transactions contemplated by the Sales
Agreement. The Seller has not engaged in, and has no knowledge of the Obligor
having engaged in, any act or omission which would impair the coverage of any
such policy, the benefits of any endorsement provided for therein, or the
validity and binding effect of either of the foregoing. Statements made by
either the Seller or the related Obligor in the applications for such insurance
were true and complete at the times of such applications and, to the best of the
Seller's knowledge, no events have occurred since the policies for such
insurance were issued that would reduce the stated coverage provided by such
policies.
(v) Each Mortgage Loan is secured by a fee simple estate (or, if
the Mortgaged Property is located in Hawaii or Maryland, a leasehold estate) and
the related
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<PAGE> 26
Mortgaged Property consists of a parcel of real property with a single family
residence or a two- to four-family dwelling erected thereon.
(w) Each Mortgage Loan is covered by either (i) an attorney's
opinion of title and abstract of title the form and substance of which is
acceptable to Fannie Mae or (ii) an American Land Title Association ("ALTA")
lender's title insurance policy or other generally acceptable form of policy of
insurance for the jurisdiction in which the related Mortgaged Property is
located, issued by a title insurer qualified to do business in the jurisdiction
where the related Mortgaged Property is located, insuring the initial mortgagee
(or beneficiary in the case of a deed of trust) and its successors and assigns
(including the Trustee) as to the first priority status of the lien created by
the related Mortgage, subject only to Permitted Encumbrances (as defined above
in paragraph II(m)), providing coverage in the amount of [100%] of the
outstanding principal amount of the Mortgage Loan and providing coverage against
any loss by reason of the invalidity or unenforceability of the lien resulting
from any provisions of the Security Instrument providing for adjustment to the
Mortgage Rate and [Monthly] Payment. Where required by state law or regulation,
the Obligor has been given the opportunity to choose the carrier of such
lender's title insurance. The related initial mortgagee (or beneficiary in the
case of a deed of trust), together with its successors or assigns (including the
Trustee), is the sole insured under such lender's title insurance policy, and
such lender's title insurance policy is in full force and effect and will be in
full force and effect upon the sale of the Mortgage Loan to the Purchaser. No
claims have been made under such lender's title insurance policy, and no prior
holder of the related Mortgage, including the Seller, has done, by act or
omission, anything which would impair the coverage provided by such lender's
title insurance policy.
(x) The Mortgage Loan 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.
(y) Neither the related originator nor the Seller has made any
representations to the related Obligor that are inconsistent with the mortgage
instruments used. If the Mortgage Loan has an adjustable interest rate, (i) the
Mortgage Rate is adjusted on each applicable interest rate adjustment date, in
accordance with the schedule set forth or described in the related Mortgage
Note, to equal the applicable index plus the applicable gross margin, rounded as
specified in the related Mortgage Note, subject to any periodic and/or lifetime
Mortgage Rate caps; (ii) all required notices of interest rate and payment
amount adjustments have been sent to the Obligor on a timely basis and such
adjustments were properly calculated; (iii) installments of interest are subject
to change due to the adjustments to the Mortgage Rate on each interest rate
adjustment date, with interest calculated and payable in arrears, sufficient to
amortize the Mortgage Loan fully by its stated maturity date, over an original
term of not more than thirty years from commencement of amortization; and (iv)
all Mortgage Rate adjustments have been made in strict compliance with state and
federal law and the terms of the related Mortgage Note. Any interest required to
be paid pursuant to state and local law has been properly paid and credited.
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<PAGE> 27
(z) For any Security Instrument that constitutes a deed of trust,
a trustee, authorized and duly qualified under applicable law to serve as such,
has been properly designated and currently serves as such trustee and is named
in the Mortgage, and no fees or expenses are or will become payable by the
Seller or the Purchaser or its assignees (including the Trustee) to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Obligor.
(aa) The Seller has no knowledge of any circumstances or conditions
with respect to any Mortgage, the related Mortgaged Property, the related
Obligor or the Obligor's credit standing that can reasonably be expected to
cause private institutional investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage Loan.
(bb) Each Mortgage Loan is a "qualified mortgage" within the
meaning specified for such term in section 860G of the Code and does not contain
any provision requiring action that would render it not such a "qualified
mortgage."
(cc) Any Mortgage Loan identified on Schedule [ ] to the Sales
Agreement as being insured by the Federal Housing Administration ("FHA") or
guaranteed in whole or in part by the U.S. Department of Veterans Affairs ("VA")
has been serviced in compliance with applicable FHA or VA regulations and the
FHA insurance or VA guarantee with respect to such Mortgage Loan as in effect at
the origination of such Mortgage Loan is in full force and effect. Any premiums
required to be paid to date with respect to such federal insurance or guarantee
have been paid and such federal insurance or guarantee is valid and enforceable.
(dd) As of the date hereof, no property securing a Mortgage Loan is
subject to foreclosure, litigation, bankruptcy or insolvency proceedings or any
workout or foreclosure agreement, and, to the best of the Seller's knowledge,
the filing of a bankruptcy or insolvency proceeding that would result in any
Mortgage Loan becoming subject to bankruptcy or insolvency proceedings is not
imminent.
(ee) If one or more REMIC elections are to be made with respect to
all or part of the Trust, the REMIC Loan-to-Value Ratio of each Mortgage Loan is
less than [125%] either (i) at the time of its origination or as of the Startup
Day or (ii) if such Mortgage Loan has been modified other than as a result of a
default or reasonably foreseeable default, as of the Startup Day.
(ff) Each Mortgage Loan has closed and the proceeds of each
Mortgage Loan have been fully disbursed; there is no requirement for future
advances thereunder; and 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.
(gg) All parties that have had any interest in each Mortgage Loan,
whether as a mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) (a) and
FHA-approved mortgagee and a VA-approved lender, (b) in compliance with any and
all applicable licensing requirements of the laws of the state wherein
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<PAGE> 28
the Mortgaged Property is located or is otherwise exempt, and (c)(1) organized
under the laws of such state, (2) qualified to do business in such state, (3) a
federal savings and loan association, savings bank or national bank having
principal offices in such state or (4) not doing business in such state.
(hh) To the best of the Seller's knowledge, no action, error,
omission, misrepresentation, negligence, fraud or similar occurrence in respect
of any Mortgage Loan has taken place on the part of any Person (including,
without limitation, the mortgagor, any appraiser, any builder or developer or
any party involved in the origination of the Mortgage Loan or in the application
for any insurance relating to such Mortgage Loan) that would result in an
exclusion from, or denial, defense to coverage, under any insurance policy
required to be obtained for the Mortgage Loan including, without limitation, any
FHA insurance or VA guarantee.]
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<PAGE> 29
EXHIBIT A TO THE SALES AGREEMENT
BILL OF SALE
BILL OF SALE, made as of the __ day of ___________, 20__, by
___________ ________________ a __________ [corporation] (the "Seller"), to Union
Planters Home Equity Corp., a Delaware corporation (the "Purchaser").
WHEREAS, the Seller and the Purchaser are parties to that certain Sales
Agreement, dated as of ______________ __, 20__, with respect to the sale by the
Seller and purchase by the Purchaser of certain [Mortgage Loans][Assets] (the
"Sales Agreement");
WHEREAS, the Purchaser intends to [transfer][pledge] the [Mortgage
Loans][Assets] and certain other assets to __________________________, as
Trustee (the "Trustee") for the Series 20_-_ Trust (the "Trust") established
pursuant to the [Agreement] (the "[Agreement]") dated as of ____________ 20__
among the Purchaser, the Trustee and _______________________;
NOW THEREFORE, the Seller, for and in consideration of the purchase
price set forth in the Sales Agreement, and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged, does hereby
bargain, sell, convey, assign and transfer to the Purchaser, without recourse,
free and clear of any liens, claims or other encumbrances, all of its right,
title and interest in and to each of the [Mortgage Loans][Assets] identified on
Schedule I to the Sales Agreement[, together with the Mortgage Loan Documents
and other documents maintained as part of the related Trustee Mortgage Loan
Files and Servicer Mortgage Loan Files] and all payments thereon and proceeds of
the conversion, voluntary or involuntary of the foregoing.
The Seller hereby acknowledges receipt from the Purchaser of cash in
the amount of $_____________________, which cash constitutes the purchase price
for the [Mortgage Loans][Assets] set forth in Section 2 of the Sales Agreement.
Nothing in this Bill of Sale shall be construed to be a modification
of, or limitation on any provision of the Sales Agreement, including the
representations, warranties and agreements set forth therein except that the
Seller, as of the date hereof, makes the following additional representations
and warranties to the Purchaser concerning the [Mortgage Loans][Assets].
(a) All of the representations and warranties made by the Seller
in the Sales Agreement are true and correct in all material respects as of the
date hereof (subject, in the case of the Closing Schedule delivered pursuant to
the Sales Agreement, to such amendments thereto as were duly made on or before
the date hereof).
(b) Since the date of the Sales Agreement, no event has occurred
which, with notice or the passage of time, would constitute a default under the
Sales Agreement, and there has been
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<PAGE> 30
no material adverse change or development involving a prospective material
adverse change in the business operations, financial condition, properties or
assets of the Seller.
(c) [There has been no casualty damage to the Mortgaged Premises.]
(d) The Obligor's [Monthly] Payment due under each [Mortgage
Loan][Asset] is not more than [___] days delinquent in payment.
(e) [An appraisal of each Mortgaged Premises was made by an
appraiser who either (i) meets the minimum qualifications of Fannie Mae or
Freddie Mac for appraisers, and each appraisal was completed on a form
satisfactory to Fannie Mae and Freddie Mac and includes information concerning
comparable property values, or (ii) at the time that the appraisal was made, was
certified in the state in which the Mortgaged Premises are located and met all
of the other requirements.]
(f) [No Mortgage Loan is secured by a leasehold estate.]
(g) [Approximately __% by Scheduled Principal Balance of the
Mortgage Loans were originated pursuant to a limited documentation origination
process.]
(h) [Approximately __% by Scheduled Principal Balance of the
Mortgage Loans are Level Payment Mortgage Loans.]
(i) [None of the Mortgage Loans will be subject to negative
amortization.]
(j) [Approximately __% by Scheduled Principal Balance of the
Mortgaged Premises are owner occupied as a primary residence.]
(k) [Approximately __% by Scheduled Principal Balance of the
Mortgaged Premises are investor owned.]
(l) [Less than __% by Scheduled Principal Balance of the Mortgaged
Premises are condominiums that are also investor properties or second homes.]
(m) [Primary Mortgage Insurance covers approximately __% (by
Scheduled Principal Balance) of the Mortgage Loans with an initial Loan-to-Value
Ratio greater than [___], except to the extent that such insurance was canceled
by the Master Servicer if (i) state law required such cancellation or (ii) the
original loan-to-value ratio was reduced to [___] or below or (iii) the current
loan-to-value ratio, based on a current appraisal obtained by a related Obligor,
is [___] or lower.]
(n) [There exist no deficiencies with respect to escrow deposits
and payments, if required, for which customary arrangements for repayment
thereof have not been made, and no escrow deposits or payments of other charges
or payments due the Seller have been capitalized under the Security Instruments
or Mortgage Notes.]
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<PAGE> 31
(o) [The Loan-to-Value Ratio of each Mortgage Loan at the time of
origination or as of the date hereof is less than or equal to [___]; and, with
respect to each Mortgage Note that has been modified, the related Mortgage Loan
has a Loan-to-Value Ratio of less than or equal to [___] as of the date of the
modification or as of the date hereof.]
(p) [No Mortgage Loan is subject to foreclosure proceedings or any
workout or foreclosure agreements.]
(q) Taking into account the specific characteristics of the
various [Mortgage Loans][Assets], [(1)(A) a weighted average Servicing Fee of
approximately _____% per annum, and (B)] all [other] amounts such as late
charges, prepayment fees, penalty interest, assumption fees or interest earnings
(the "Additional Amounts") that the [Master Servicer and any subservicer
retained by the Master Servicer are][Trustee is] entitled to receive pursuant to
the terms of the Agreement, represent a reasonable and customary [servicing] fee
for the performance of the [Mortgage Loan servicing and other] [Trustee] duties
required to be performed by the [Master Servicer and the subservicers][Trustee]
under the Agreement[, and (2) the Servicing Fee and the Additional Amounts will
be divided between the [Master Servicer and the subservicers in such proportions
that the amounts retained by the Master Servicer and each subservicer will
represent a reasonable and customary servicing fee for the performance of the
Mortgage Loan servicing and other duties required to be performed by each of
them].
(r) [There is no offset, defense or counterclaim to any Mortgage
Note or Security Instrument, including the obligation of the Obligor to pay the
unpaid principal or interest on such Mortgage Note.]
Unless otherwise defined herein, capitalized terms used in this Bill of
Sale shall have the meanings assigned to them in the Sales Agreement, or if not
assigned in the Sales Agreement, the Agreement.
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<PAGE> 32
IN WITNESS WHEREOF, the Seller has caused this Bill of Sale to be
executed and delivered by its respective officer thereunto duly authorized as of
the date above written.
-------------------------------
By:
---------------------------
Its:
--------------------------
The Purchaser hereby acknowledges receipt from the Seller of the
[Mortgage Loans][Assets] identified on Schedule I to the Sales Agreement,
subject to its right of inspection set forth in Section 3 of the Sales
Agreement, and cash in the amount of $_____________ in payment of the Issuance
Fee referred to in Section 9 of the Sales Agreement.
UNION PLANTERS HOME EQUITY CORP.
By:
---------------------------
Its:
--------------------------
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