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MASTER LOAN SALE AGREEMENT
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between
[SELLER]
and
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FEDERAL AGRICULTURAL MORTGAGE CORPORATION
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dated as of
[Date]
TABLE OF CONTENTS
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 5
SECTION 2. SALE AND PURCHASE OF LOANS 7
2.1 Agreement to Sell and Purchase 7
2.2 Conveyance of Qualified Loans
72.3 Conveyance of Mortgage Servicing Documents 9
2.4 Delivery of Payment; Place of Closing 10
SECTION 3. CONDITIONS PRECEDENT 10
3.1 Conditions Precedent to Obligations of Parties 10
3.2 Conditions Precedent to Obligations of Seller 10
3.3 Conditions Precedent to Obligations of Xxxxxx Mac 11
SECTION 4. REPRESENTATIONS AND WARRANTIES 11
4.1 Representations and Warranties of Xxxxxx Mac 11
4.2 Representations and Warranties of the Seller 12
4.3 Replacement of Defective Loans 18
4.4 Absolute and Unconditional Obligations 18
SECTION 5. COVENANTS 19
5.1 Affirmative Covenants of the Seller 19
SECTION 6. INDEMNIFICATION 20
6.1 General 20
6.2 Breaches of Representations and Warranties 20
SECTION 7. MISCELLANEOUS 21
7.1 Loan Sale Supplements 21
7.2 No Waiver; Cumulative Remedies 21
7.3 Counterparts 21
7.4 Governing Laws 21
7.5 Notices 21
7.6 Survival and Termination of Agreement 22
7.7 Entire Agreement 22
7.8 Waiver of Jury Trial 22
7.9 Severability 22
7.10 Assignability 22
7.11 Third Party Beneficiaries 22
EXHIBITS
LOAN SALE SUPPLEMENT Exhibit A
SECRETARY'S CERTIFICATE OF XXXXXX MAC Exhibit B
SECRETARY'S CERTIFICATE OF SELLER Exhibit C
FORM OF OPINION OF COUNSEL TO WESTERN FARM CREDIT BANK Exhibit D
MASTER LOAN SALE AGREEMENT
MASTER LOAN SALE AGREEMENT, dated as of June 1, 1996 (this "Agreement"),
between [Seller] (the "Seller") and the Federal Agricultural Mortgage
Corporation, a federally chartered institution of the Farm Credit System
("Xxxxxx Mac").
W I T N E S S E T H:
WHEREAS, the Seller owns or will own certain agricultural real estate
mortgage loans (the "Qualified Loans") to be identified on the Schedule of
Qualified Loans (as hereinafter defined) attached to each Loan Sale Supplement.
WHEREAS, the Seller desires to sell and Xxxxxx Mac desires to purchase the
Qualified Loans upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties to this Agreement hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms defined in the
caption or in the recitals hereto shall have the meanings set forth therein, and
the following terms shall have the following meanings:
"Act": Title VIII of the Farm Credit Act of 1971, as
amended.
"Additional Collateral Documents": As to any Qualified Loan, any security
documents (including any UCC-1, UCC-2 or UCC-3 Financing Statement) other than
those listed in clauses (i) through (v) of Section 2.2(b), that are delivered to
Xxxxxx Mac or its designee and evidence rights or interests in the related
Mortgaged Property.
"Agricultural Real Estate": As defined in the Act and the
Securities Guide.
"Appraisal Standards": The appraisal standards established
by Xxxxxx Mac and set forth in the Securities Guide.
"Appraised Value": The appraised value of a Mortgaged Property, which is
the appraised value based upon the appraisal conducted in accordance with the
Appraisal Standards less than six months prior to the Seller's approval for
purchase or the Seller's origination of the Qualified Loan, which approval or
origination shall have occurred not more than six months prior to the Cut-Off
Date.
"Assignment": An assignment of a Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage to Xxxxxx Mac or its designee.
"Borrower": The obligor under a Qualified Loan.
"Business Day": Any other day than (i) a Saturday or a Sunday, (ii) a day
on which banking institutions in the States of Minnesota, New York or [Seller's
jurisdiction] are required or authorized by law to be closed, (iii) a day on
which the wire transfer system of the Federal Reserve Bank of New York is closed
or (iv) a day on which Xxxxxx Mac is closed.
"Closing Date": As defined in the Loan Sale Supplement.
"Collection Period": As defined in the Loan Sale Supplement.
"Contractual Obligations": As to any Person, any provision of any security
issued by such person or of any agreement, instrument or undertaking to which
such person is a party or by which it or any of the property owned by it is
bound.
"Custodian": First Trust National Association or its successor in
interest, including any corporation, association or bank that purchases
substantially all of the corporate trust business of the Custodian, or its
permitted successor as custodian for Xxxxxx Mac or its designee.
"Cut-Off Date": As defined in the Loan Sale Supplement.
"Cut-Off Date Principal Balance": As to any Qualified Loan other than an
Eligible Substitute Qualified Loan, the unpaid principal balance thereof at the
Cut-Off Date after giving effect to all installments of principal due on or
prior thereto, whether or not received. As to any Eligible Substitute Qualified
Loan, the unpaid principal balance thereof as of the beginning of the Collection
Period during which such Eligible Substitute Qualified Loan was assigned to
Xxxxxx Mac or its designee.
"Defective Qualified Loan": A Qualified Loan as to which a representation
or warranty made by the Seller under Section 4.2 has been breached and that
consequently is required to be replaced with an Eligible Substitute Qualified
Loan by such Seller or repurchased by such Seller pursuant to Section 2.2 (g) or
4.3.
"Due Date": As to any Qualified Loan, any date upon which a scheduled
installment of principal and interest on such Qualified Loan is due in
accordance with the terms of the related Mortgage Note.
"Eligible Substitute Qualified Loan": A Qualified Loan that is substituted
for a Defective Qualified Loan pursuant to Section 2.2 (g) or 4.3 and that has
characteristics that are acceptable to Xxxxxx Mac, in its sole discretion.
"Environmental Statute": Any Federal, state or local law, ordinance, rule
or regulation including, but not limited to, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended; the Hazardous
Materials Transportation Act, as amended; the Resource Conservation and Recovery
Act, as amended; and any regulations adopted and publications promulgated
pursuant to each of the foregoing.
"Xxxxxx Mac": The Federal Agricultural Mortgage Corporation, a federally
chartered institution of the Farm Credit System and instrumentality of the
United States, or any successor corporation or entity. The term Xxxxxx Mac, when
used to refer to the entity purchasing or holding the Qualified Loans, shall
also include any entity designated by Xxxxxx Mac to be the holder of the
Qualified Loans.
"Governmental Authority": Any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Hazardous Materials": Any flammable explosives, radioactive materials or
any other materials, wastes or substances defined as hazardous materials,
hazardous wastes or hazardous or toxic substances by any Environmental Statute
or by any Federal, state or local governmental authority having or claiming
jurisdiction over the Mortgaged Property.
"Installment Payment": As to any Qualified Loan and any Due Date, any
payment of principal and/or interest thereon in accordance with the amortization
schedule of such Qualified Loan (after adjustment for any curtailments occurring
prior to the Due Date but before any adjustment to such amortization schedule by
reason of any bankruptcy or similar proceeding or any moratorium or similar
waiver or grace period).
"Loan Sale Supplement": An instrument substantially in the form of Exhibit
A hereto executed by Xxxxxx Mac and the Seller pursuant to Section 2.2 hereof
which supplements this Master Loan Sale Agreement and identifies the Qualified
Loans being sold to Xxxxxx Mac by the Seller on the Closing Date identified
therein and sets forth the terms of the sale.
"Loan-to-Value Ratio": As of any date, the fraction, expressed as a
percentage, the numerator of which is the principal balance of the related
Qualified Loan at the date of determination and the denominator of which is the
Appraised Value of the related Mortgaged Property as of the date of the
appraisal performed in accordance with the Appraisal Standards.
"Mortgage": A mortgage, deed of trust or other instrument that constitutes
a first lien on an interest in real property securing a Mortgage Note.
"Mortgage File": The mortgage documents listed in
subsection 2.2(b) pertaining to the particular Qualified Loan.
"Mortgage Note": The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Borrower under a Qualified Loan.
"Mortgage Rate": As to any Qualified Loan, the rate of
interest borne by the related Mortgage Note.
"Mortgaged Property": The property securing a Qualified
Loan.
"Mortgage Servicing Documents": The custodial documents, servicing
documents, escrow documents, if any, the original appraisal, including any
updates thereto, which was the basis for the Appraised Value, and all other
documents, records, and tapes necessary for prudent servicing in accordance with
the Seller's standards for mortgage loan servicing, and such other papers and
documents, tax receipts, insurance policies, insurance premium receipts, water
stock certificates, ledger sheets, payment records, insurance claim files and
correspondence, foreclosure files and correspondence, current and historical
computerized data files and other papers and records of whatever kind or
description, whether developed or originated by the Seller.
"Officers' Certificate": As to any Person, a certificate signed by the
Chairman of the Board, the Vice Chairman of the Board, the President, any
Executive Vice President, Senior Vice President, Vice President or Second Vice
President, and any of the Treasurer, the Secretary, or one of the Assistant
Treasurers or Assistant Secretaries of such Person delivered pursuant to this
Agreement.
"Opinion of Counsel": A written opinion of counsel
acceptable to Xxxxxx Mac.
"Person": An individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental
Authority or any other entity of whatever nature.
"Qualified Loans": As defined in the recitals.
"Purchase Price": As specified in the Loan Sale Supplement.
"Repurchase Price": With respect to any Qualified Loan required to be
purchased on any date pursuant to Section 4.2, an amount equal to the sum of (i)
100% of the unpaid principal balance thereof as shown on the Schedule of
Qualified Loans less any principal payments made in respect of such Qualified
Loan and (ii) the unpaid accrued interest at the Net Mortgage Rate on the unpaid
principal balance thereof from the Due Date to which interest was last paid by
the Borrower to the next Due Date for such Qualified Loan; and (iii) if the date
of repurchase by the Seller occurs after the Qualified Loan has been
securitized, any Yield Maintenance Amount that would be payable under the terms
of the related Mortgage Note as if a Principal Prepayment in Full were made on
the date of repurchase by the Seller and such Yield Maintenance Amount were
calculated based on interest accruing at the Net Mortgage Rate less the sum of
(x) the Guarantee Fee Rate and (y) the Trustee Fee Rate (each of the Guarantee
Fee Rate and the Trustee Fee Rate having the meaning given such term in the
applicable securitization documents).
"Schedule of Qualified Loans": The list of Qualified Loans transferred to
Xxxxxx Mac or its designee on the Closing Date and attached to and made part of
the Loan Sale Supplement in the form and containing the information set forth in
Attachment I thereto, which list may be amended pursuant to Section 4.3 upon
conveyance of an Eligible Substitute Qualified Loan. Such schedule, which shall
be in hard copy and in machine readable format to Xxxxxx Mac and the Custodian,
may consist of multiple reports that collectively set forth all of the
information requested.
"Scheduled Principal Balance": As to any Qualified Loan and any Due Date,
the principal balance of such Qualified Loan as of such Due Date, as specified
in the amortization schedule at the time relating thereto (after adjustments for
curtailments occurring prior to such Due Date but before any adjustment to such
amortization schedule by reason of any bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period) after giving effect to the payment
of principal due prior to such Due Date, whether or not received from the
related Borrower.
"Securities Guide": The publication entitled "Federal Agricultural
Mortgage Corporation Securities Guide," release dated April 10, 1992, as
modified by any guide update or bulletin or as replaced by any other publication
of Xxxxxx Mac identified by Xxxxxx Mac as a "Selling Guide" or as a "Servicing
Guide."
"Servicing Officer": Any officer of the Seller involved in, or responsible
for, the administration and servicing of the Qualified Loans whose name and
specimen signature appears on a list of servicing officers furnished to Xxxxxx
Mac or its designee by the Seller on the applicable Closing Date, as such list
may from time to time be amended by delivery of written notice by an existing
Servicing Officer.
"Substitution Adjustment Principal Amount": As of any date of
substitution, the amount, if any, by which the unpaid principal balance of any
Defective Qualified Loan for which one or more Eligible Substitute Qualified
Loans are substituted on such date of substitution exceeds the aggregate
Scheduled Principal Balances of the related Eligible Substitute Qualified Loans.
1.2 Other Definitional Provisions
(a) The words "hereof", "herein" and "hereunder" and words of similar
import when used herein shall refer to this Agreement as a whole and not
to any particular provision of this Agreement, and section, subsection,
attachment, schedule and exhibit references are to this Agreement unless
otherwise specified.
(b) The meaning given to terms defined herein shall be equally
applicable to the singular and plural forms of such terms.
(c) Capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in the Securities Guide.
SECTION 2. SALE AND PURCHASE OF LOANS
2.1 Agreement to Sell and Purchase. Upon the basis of the representations,
warranties and agreements herein contained and upon the terms and subject to the
conditions set forth herein, Seller agrees to sell to Xxxxxx Mac and Xxxxxx Mac
agrees to purchase from Seller on each Closing Date, the Qualified Loans
identified in the related Schedule of Qualified Loans for the applicable
Purchase Price.
2.2 Conveyance of Qualified Loans.
(a) On each Closing Date, concurrently with the execution and
delivery of each Loan Sale Supplement and the payment to the Seller of the
Purchase Price, the Seller shall sell, transfer, assign, set-over and
convey to Xxxxxx Mac or its designee (as Xxxxxx Mac shall designate in
writing prior to such Closing Date) all the right, title and interest of
the Seller in and to the Qualified Loans. The parties hereto agree that
the delivery to the Custodian of any Assignment as contemplated in
paragraph (b)(iii) shall be deemed to have taken place immediately after
the vesting of title in and to the Qualified Loans in the Custodian on
behalf of Xxxxxx Mac, which vesting will have occurred by virtue of the
execution by Seller and Xxxxxx Mac of the Loan Sale Supplement, dated the
Closing Date, and the delivery of the Mortgage Notes endorsed as described
in paragraph (b)(i).
(b) In connection with such transfer and assignment described in
clause (a) above, Seller will deliver to, or deposit with, the Custodian
on behalf of Xxxxxx Mac, the following documents or instruments with
respect to each Qualified Loan so assigned:
(i) The Mortgage Note, endorsed in the following form: "Pay to
the order of First Trust National Association, as Custodian/Trustee
without recourse" and showing an unbroken chain of endorsements from
the original lender thereof to the Person endorsing it to the
Custodian;
(ii) The Mortgage with evidence of recording indicated thereon
or, if (x) the public recording office retains the original of the
Mortgage or (y) the Custodian receives a certificate of a Servicing
Officer certifying that the original of the Mortgage is lost, missing
or destroyed, a copy of the Mortgage certified by the public
recording office in which such Mortgage has been recorded to be a
true and complete copy of the original Mortgage;
(iii) A copy of the original Assignment in the form "First Trust
National Association, as Custodian/Trustee" which assignment or
equivalent instrument may be in the form of one or more blanket
assignments covering Mortgages secured by Mortgaged Properties
located in the same county, if permitted by law and accompanied by an
Opinion of Counsel to that effect (a copy of such blanket assignment
to be delivered in each applicable Mortgage File) and any intervening
assignments in original recorded form evidencing an unbroken chain of
assignments from the initial assignor to the Custodian. If the
Assignment is not complete due to the lack of necessary recording
information for insertion in the Assignment as of the applicable
Closing Date, the original Assignment shall be retained by the Seller
until such time as the necessary information becomes available, at
which time the Seller shall promptly complete the Assignment and
forward it to the appropriate office for recordation. Upon completion
of recordation, the Seller will forward the original documents (or
cause the original documents to be forwarded) to the Custodian;
(iv) Evidence of title to the Mortgaged Property (either in the
form of an original opinion from an attorney or firm of attorneys or
an original or certified copy of a lender's title insurance policy or
binding title insurance commitment issued by a title insurance
company);
(v) Either (1) the original of each modification agreement and
each assumption agreement, if any, relating to such Qualified Loan
or, if (x) the public recording office retains the original of the
modification or assumption agreement or (y) the Custodian receives a
certificate of a Servicing Officer certifying that the original of
the modification or assumption agreement is lost, missing or
destroyed, a copy of the modification (with respect to the Mortgage)
or assumption agreement certified by the public recording office in
which such Mortgage was recorded to be a true and complete copy of
the original modification or assumption agreement, or (2) a signed
statement of the Seller that there is no modification agreement or
assumption agreement relating to such Qualified Loan (such statement
may be part of a list of Qualified Loans as to which no modification
agreement or assumption agreement exists); and
(vi) Any Additional Collateral Documents relating to such
Qualified Loan or a signed statement of the Seller that there is no
Additional Collateral Document relating to such Qualified Loan (such
statement may be part of a list of Qualified Loans as to which no
Additional Collateral Document exists).
(c) (i) The Seller acknowledges and understands that ownership of
each document comprising a Mortgage File subsequent to the Closing
Date is vested in the Custodian on behalf of Xxxxxx Mac. The Seller
hereby agrees not to take any action inconsistent with such
ownership.
(ii) In the event that, in connection with any Qualified Loan,
the Seller cannot deliver or cause the delivery of the Mortgage or
any modification or assumption agreement with evidence of recording
thereon solely because of a delay caused by the public recording
office where such Mortgage or modification or assumption agreement
has been delivered for recordation, the Seller shall deliver or cause
to be delivered to the Custodian a photocopy, certified to be true
and correct, of such Mortgage or modification or assumption
agreement, as the case may be. The Seller shall promptly deliver or
cause to be delivered to the Seller such Mortgage or modification or
assumption agreement, as the case may be, with evidence of recording
indicated thereon upon receipt thereof from the public recording
official.
(d) Documents taken as security instruments relating to any of the
Qualified Loans and not delivered to the Custodian as part of the Mortgage
File shall be held by the Seller in trust for the benefit of Xxxxxx Mac.
(e) In the event that, in connection with any Qualified Loan, the
Seller cannot deliver or cause to be delivered the Assignment (or blanket
Assignment, if applicable) or intervening assignment with evidence of
recording indicated thereon, the Seller shall deliver or cause to be
delivered to the Custodian a photocopy, certified to be true and correct,
of such Assignment. The Seller shall deliver or cause to be delivered to
the Custodian such Assignment or intervening assignment with evidence of
recording indicated thereon promptly upon receipt thereof from the public
recording official or, in the event the original recorded Assignment or
intervening assignment is retained by the public recording office or, if
the Seller certifies that the original recorded Assignment or intervening
assignment, as applicable, is lost, a copy of such recorded Assignment or
intervening assignment, as applicable, certified by the public recording
office.
(f) The Seller shall execute, acknowledge and deliver all other
documents furnished it by Xxxxxx Mac as may be necessary to effectuate the
transfer to Xxxxxx Mac or its designee of all right, title and interest in
and to the Qualified Loans and the Mortgages.
(g) If the Custodian finds any document or documents constituting a
part of a Mortgage File to be missing, mutilated, torn, damaged or
defective on its face, the Custodian shall notify the Seller in writing.
The Seller shall then correct or cure such omission or defect or cause
such omission or defect to be corrected or cured within 90 days from the
date of such notification. If (x) the Seller does not correct or cure such
omission or defect or cause such omission or defect to be corrected or
cured within such period and (y) such omission or defect relates to any
document identified in Section 2.2(b), the Seller shall either (A) replace
the related Qualified Loan or cause the related Qualified Loan to be
replaced with one or more Eligible Substitute Qualified Loans in the
manner and subject to the conditions set forth in Section 4.3 or (B)
purchase such Qualified from Xxxxxx Mac by remitting the Repurchase Price
with respect to such Qualified Loan to Xxxxxx Mac on date of such
purchase. Upon receipt of such Repurchase Price or Eligible Substitute
Qualified Loan, Xxxxxx Mac shall promptly release to the Seller or its
designee or assignee the related Mortgage File, and shall also execute and
deliver such instruments of transfer or assignment prepared or caused to
be prepared by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller or its designee any Qualified Loan
released pursuant thereto. The foregoing remedy shall not be deemed to
restrict or limit any right available to Xxxxxx Mac against the Seller or
the Originator of the related Qualified Loan.
2.3 Conveyance of Mortgage Servicing Documents. In connection with the
transfer and assignment described in Section 2.2 (a) above and the delivery
described in Section 2.2 (b) above, the Seller does hereby agree to deliver to,
or deposit with, Xxxxxx Mac or its designee, all of the Mortgage Servicing
Documents on or before each applicable Closing Date.
2.4 Delivery and Payment; Place of Closing. Subject to satisfaction of the
conditions precedent set forth in Section 3 hereof, on each Closing Date, the
Seller shall deliver to Xxxxxx Mac or its designee, all of the documents
referred to in Section 2.2 (b), together with all interest and principal
received on or with respect to the Qualified Loans from and after the Cut-Off
Date (other than payments due on such Qualified Loans on or before the Cut-Off
Date and other than that portion of any payment of interest received after the
Cut-Off Date that represents interest accruing on or prior to the Cut-Off Date).
Such delivery shall be made against payment by Xxxxxx Mac of the cash portion,
if any, of the Purchase Price to the Seller on the Closing Date by wire transfer
in immediately available funds to an account designated by the Seller or by
delivery to the Seller of any securities to be received by the Seller.
SECTION 3. CONDITIONS PRECEDENT
3.1 Conditions Precedent to Obligations of Parties. The respective
obligations of Xxxxxx Mac and the Seller hereunder are subject to the
satisfaction, at or prior to each Closing Date, of the following conditions:
(a) No Injunction, etc. No preliminary or permanent injunction or
other order issued by any Federal or state court of competent jurisdiction
in the United States or by any United States Federal or state governmental
or regulatory body nor any statute, rule, regulation or executive order
promulgated or enacted by any Governmental Authority which restrains,
enjoins or otherwise prohibits the transactions contemplated hereby shall
be in effect.
(b) No Proceeding or Litigation. No suit, action or governmental
proceeding before any court or any Governmental Authority shall have been
commenced and be pending by any Governmental Authority against Xxxxxx Mac,
the Seller or any of their respective affiliates, associates, officers,
directors or agents seeking to restrain, prevent or change, in any
material respect, the transactions contemplated hereby or seeking damages
in any amount material to such transactions.
3.2 Conditions Precedent to Obligation of Seller. The obligation of the
Seller to consummate the transactions contemplated by this Agreement is subject
to the satisfaction at or prior to each Closing Date of the following additional
conditions:
(a) Accuracy of Representations and Warranties. The representations
and warranties of Xxxxxx Mac contained herein shall be true and correct in
all material respects at and as of the Closing Date, with the same force
and effect as though made at and as of the Closing Date, except for
changes permitted or contemplated by this Agreement and except to the
extent that any representation or warranty is made as of a specified date,
in which case such representation or warranty shall be true and correct in
all material respects as of such date.
(b) Secretary's Certificate. At or prior to the first Closing Date
under this Agreement (the "initial Closing Date"), the Seller shall have
received from Xxxxxx Mac a certificate, dated the initial Closing Date, of
Xxxxxx Mac's Secretary, in the form of Exhibit B, certifying the
incumbency of those officers of Xxxxxx Mac executing this Agreement, the
Loan Sale Supplement or any closing documents delivered hereunder or
thereunder, together with certified copies of the resolutions of the Board
of Directors of Xxxxxx Mac authorizing the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein.
3.3 Conditions Precedent to Obligation of Xxxxxx Mac. The obligation of
Xxxxxx Mac to consummate the transactions contemplated by this Agreement is
subject to the satisfaction at or prior to each Closing Date of the following
additional conditions:
(a) Accuracy of Representation and Warranties. The representations
and warranties of the Seller contained herein shall be true and correct in
all material respects at and as of the Closing Date, with the same force
and effect as though made at and as of the Closing Date, except for
changes permitted or contemplated by this Agreement and except to the
extent that any representation or warranty is made as of a specified date,
in which case such representation or warranty shall be true and correct in
all material respects as of such date.
(b) Performance of Agreements. The Seller shall have performed and
complied with, in all material respects, all obligations, agreements and
covenants contained in this Agreement to be performed or complied with by
it prior to or at the Closing Date.
(c) Secretary's Certificate. At or prior to the initial Closing Date,
Xxxxxx Mac shall have received from the Seller a Certificate of Authority,
dated the initial Closing Date, of the Seller's Secretary, in the form of
Exhibit C, certifying the incumbency of those officers of the Seller
executing this Agreement, the Loan Sale Supplement or any closing
documents delivered hereunder or thereunder, and certifying that the
Seller is authorized to execute, deliver and perform this Agreement this
Agreement and the consummation of the transactions contemplated herein.
(d) Opinions of Counsel. Prior to the initial Closing Date, Xxxxxx Mac
shall have received Opinions of Counsel from counsel to the Seller,
covering the matters set forth in Exhibit D.
(e) Payment of Fees and Expenses. If specified therein, the Seller shall
have made all payments of fees and expenses to Xxxxxx Mac as set forth in
the Loan Sale Supplement.
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Xxxxxx Mac. Xxxxxx
Mac represents and warrants to the Seller as follows:
(a) xxxxx Mac is a federally chartered instrumentality of the United
States duly organized, validly existing and in good standing under the
laws governing its creation and existence and with corporate power and
authority to conduct its business as it is currently being conducted;
Xxxxxx Mac holds all licenses, certificates and permits necessary for the
conduct of its business as it is currently being conducted.
(b) Xxxxxx Mac has the requisite power and authority to execute and
deliver this Agreement and the related Loan Sale Supplement, to accept the
transfer, assignment and delivery of all of the Qualified Loans and to take
all other actions and execute and deliver all other documents which are
requisite or pertinent to the transactions described in this Agreement and
the Loan Sale Supplement; the persons signing such documents and taking
such actions on behalf of Xxxxxx Mac have been duly authorized to do so and
such documents and actions are valid, legally binding and enforceable
against Xxxxxx Mac in accordance with their terms.
(c) No action, suit or proceeding is pending or, to the best of
Xxxxxx Mac's knowledge, threatened against Xxxxxx Mac that would prohibit
its entering into this Agreement or performing its obligations under this
Agreement and the Loan Sale Supplement.
4.2 Representations and Warranties of the Seller. The
Seller hereby represents and warrants to Xxxxxx Mac as follows:
(a) It is a federally chartered instrumentality of the United States
duly organized, validly existing and in good standing under the laws
governing its creation and existence and with corporate power and
authority to conduct its business as it is currently being conducted; the
Seller holds all licenses, certificates and permits necessary for the
conduct of its business as it is currently being conducted.
(b) It has the requisite power and authority to execute and deliver
this Agreement and the Loan Sale Supplement, to transfer, assign and
deliver all the Qualified Loans to Xxxxxx Mac and to take all other
actions and execute and deliver all other documents which are requisite or
pertinent to the transactions described in this Agreement and the Loan
Sale Supplement. The persons signing such documents and taking such
actions on behalf of the Seller have been duly authorized to do so and
such documents and actions are valid, legally binding and enforceable
against the Seller in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally or the
rights of creditors of an institution of the Farm Credit System and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(c) No action, suit or proceeding is pending or, to the best of its
knowledge, threatened against it that would prohibit its entering into
this Agreement or performing its obligations under this Agreement and the
Loan Sale Supplement.
(d) The Seller hereby represents and warrants to Xxxxxx Mac that as
of each Closing Date (or, if otherwise specified below, as of the date so
specified) with respect to the Qualified Loans:
The information set forth in the Schedule of Qualified
Loans is true and correct.
Each Mortgage File contains the documents required by
Section 2.2(b) of this Agreement.
Each Qualified Loan conforms in all material respects to
the provisions of the Securities Guide, including, but not by way of
limitation, the following:
(A) Each Qualified Loan was originated by an "Originator"
as that term is defined in the Securities Guide.
(B) The Borrowers under each Qualified Loan are "Eligible
Borrowers" as that term is defined in the Securities Guide.
(C) Except as otherwise identified in writing by the
Seller, none of the Borrowers under any Qualified Loan are "Related
Borrowers" as that term is defined in the Securities Guide with
respect to any Borrowers under any other Qualified Loan sold by the
Seller pursuant to this Agreement.
(D) Each Qualified Loan is a "Qualified Loan" as that term
is defined in the Securities Guide.
The Qualified Loan:
(A) is principally secured by real property (i.e., had a
loan-to-value ratio at origination not in excess of 125% and, as of
the Cut-Off Date, the Loan-to-Value Ratio is not in excess of 70%);
and
(B) is not secured by any collateral having material value
other than the Mortgage and any Additional Collateral Documents that
evidence rights or interests in the Mortgaged Property.
(A) Any security agreement, chattel mortgage or
equivalent document that is related to the Mortgage has been
delivered to Xxxxxx Mac or its designee and is a valid and subsisting
lien on the property described in such document.
(B) The related Mortgage is a valid first lien on the fee
title to the related Mortgaged Property. The Mortgaged Property is
free and clear of all mechanics' liens, materialmen's liens or
similar types of liens. There are no rights outstanding that could
result in any of such liens being imposed on the Mortgaged Property.
(C) Appropriate UCC filing statements on fixtures and
personal property have been filed and a UCC search has been conducted
indicating a security interest in such fixtures and personal
property.
In connection with the origination of the Qualified Loan,
a lender's title insurance policy was issued by a title insurance
company acceptable to Xxxxxx Mac, or, if such policy is unavailable,
an opinion of counsel was delivered by an attorney or firm of
attorneys rated at least "BV" by Xxxxxxxxxx-Xxxxxxx (or approved by
Xxxxxx Mac if no such rating is available). The title insurance
insures (or the title opinion assures) that a lien of the priority
described in clause (v)(B) of this subsection secures the Mortgage
Note, and that the property is not subject to encumbrances except
those taken into account in the appraisal which established the
Appraised Value or which are customarily acceptable to lenders in the
area and do not materially impair the value of the property.
Each of the Mortgage Note and Mortgage (including any
amendments or modifications to either such document) and each
additional security document that evidences rights or interests in
the Mortgaged Property has been properly signed, and is the legal,
valid and binding obligation of the Borrower, enforceable by Xxxxxx
Mac and its successors and assigns in accordance with its terms.
The Mortgage contains customary and enforceable
provisions that permit the holder of the Mortgage to obtain
marketable title to the Mortgaged Property upon the Borrower's
default under the Mortgage Loan. There is no exemption available to
the Borrower that would interfere with the right to sell the
Mortgaged Property or to foreclose the Mortgage, except for state
statutes or regulations respecting rights of redemption or mediation
or rights to cure defaults or require restructuring of loans,
moratoria on foreclosures or payments, rights of first refusal or
homestead rights; provided that no homestead rights exempt from
foreclosure any portion of the Mortgaged Property if the value of the
remainder of such property would result in a loan-to-value ratio of
more than 70% at the Cut-Off Date.
The Mortgage contains a provision for the acceleration of
the payment of the unpaid principal balance of the Qualified Loan in
the event that the Mortgaged Property is sold or transferred without
the prior written consent of the mortgagee thereunder.
The Mortgage Note is payable in monthly, quarterly,
semi-annual or annual installments (as specified in the Schedule of
Qualified Loans), so as to result in complete amortization (after a
final payment of principal that may be substantially disproportionate
to the other scheduled payments of principal) of the Mortgage Loan
over the stated or calculated term. The Qualified Loans do not
provide for negative amortization of interest.
Neither the Mortgage nor the Mortgage Note is usurious
and each meets or is exempt from any applicable usury laws or
regulations.
All relevant material requirements of federal, state and
local laws, rules and regulations then applicable to the making,
servicing and assigning of the Qualified Loan were complied with,
including, without limitation, equal credit opportunity, disclosure
and truth-in-lending laws.
There are no tax or insurance escrow deposits or escrow
payments relating to the Qualified Loan.
The Mortgage provides that the holder may make advances
under the Mortgage to protect the holder's interest in the Mortgaged
Property and to protect the Mortgaged Property from loss. Repayment
of such advances (including reasonable costs and attorney's fees)
plus interest at a default rate of interest is an obligation of the
Borrower, secured by the Mortgage.
The Mortgage Note provides either that: (i) any
Installment Payment not received by the fifteenth day of the month in
which it is due shall accrue interest at a default rate; or (ii) a
late charge equal to a percentage of the delinquent Installment
Payment must be paid as a penalty if such Installment Payment is not
received by the fifteenth day of the month in which it is due.
The Qualified Loan is not subject to any right of
rescission, set-off, counterclaim or defense.
The Mortgage has not been satisfied, canceled or
subordinated. There have been no material modifications or amendments
to the Mortgage or other principal mortgage documents except as
contained in the Mortgage File delivered to Xxxxxx Mac or its
designee.
There are no defaults under the Mortgage or Mortgage Note
and all taxes, governmental assessments, insurance premiums, water,
sewer, and municipal charges relating to the Mortgaged Property that
previously became due and owing have been paid.
The Qualified Loan has been either not more than: (x) 30
days delinquent in payment of principal or interest during the twelve
months preceding the Cut-Off Date or (y) 60 days delinquent in
payment of principal or interest during the three years preceding the
Cut-Off Date; and
The Seller has not advanced funds to, or induced,
solicited or knowingly received any advance of funds (nor will the
Seller advance funds, or induce, solicit or knowingly receive any
advance of funds) from a party other than the Borrower, directly or
indirectly, for the payment of any amount required under the
Qualified Loan other than short term loans made in the ordinary
course of business.
An appraisal to establish the Appraised Value of the
related Mortgaged Property has been conducted in accordance with the
Appraisal Standards.
All of the improvements on the Mortgaged Property that
were included for the purpose of determining the Appraised Value are
within the boundaries and building restriction lines of such
property, and no improvements on adjoining properties encroach upon
the Mortgaged Property.
The structures included in the appraisal establishing the
Appraised Value of the Mortgaged Property are free of material damage
and are in good repair.
All improvements on the Mortgaged Property included in
the Appraised Value are insured against loss by a Standard Hazard
Insurance Policy that conforms to the requirements of the Securities
Guide.
Any applicable zoning laws or regulations or any
inspections, licenses or certificates required with respect to the
use and occupancy of the related Mortgaged Property were complied
with, duly made or issued, as the case may be.
The Seller or its agent has physically inspected the
related Mortgaged Property and observed its main activities within
180 days prior to the Cut-Off Date and has observed that activities
on such Mortgaged Property appeared to have been conducted in a
manner conforming to sound environmental practices as currently
understood and, to the best of Seller's knowledge:
(A) the Borrower has handled on the property only
Hazardous Materials customarily used in the operation of a farm or
ranch, including ordinary cleaning fluids, fuel oil, fertilizers and
pesticides, and only in accordance with any applicable Environmental
Statute;
(B) the Borrower has not otherwise produced
or disposed of Hazardous Materials on the Mortgaged
Property;
(C) there has been no discharge of Hazardous Materials into
waters on or adjacent to the Mortgaged Property, or onto lands from
which such substances might seep, flow or drain into such waters in a
manner which violates any Environmental Statute; and
(D) there has been no event that could give rise to a claim
under any Environmental Statute or under common law, pertaining to
Hazardous Materials on or originating from the Mortgaged Property or
any other real property owned or occupied by the Borrower or arising
out of the conduct of the Borrower, including pursuant to any
Environmental Statute.
There is no proceeding pending, currently occurring or,
to the best of Seller's knowledge threatened, for the total or
partial condemnation of the Mortgaged Property.
The Seller knows of nothing involving the Mortgage, the
Mortgaged Property, the Borrower, or the Borrower's credit standing
that can reasonably be expected to: (a) cause private institutional
investors to regard the Mortgage as an unacceptable investment (b)
cause the Mortgage to become delinquent or (c) adversely affect the
Mortgage's value or marketability.
The Qualified Loan is not
cross-collateralized with any other mortgaged
properties not subject to this Agreement and there are
no lenders who own a participation interest in the
Qualified Loan.
To the extent necessary to preserve the value of the
Mortgaged Property, a security interest has been properly perfected
in any water rights and entitlements associated with the Mortgaged
Property and such documentation has been obtained as may be necessary
to insure the delivery of water to the Mortgaged Property.
The Mortgaged Property is contiguous to a public
thoroughfare, or includes such rights-of-way or easements so that a
public thoroughfare provides for reasonable ingress and egress to
such property.
The proceeds of the Qualified 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 disbursement of any escrow funds therefor have
been complied with. All costs, fees, transfer taxes, and expenses
incurred in making, closing or recording the Qualified Loan have been
paid.
Upon discovery by either the Seller or Xxxxxx Mac (including a designee of
Xxxxxx Mac) of a breach of any of the representations and warranties set forth
in this section 4.2 (b), the Person discovering such breach shall give prompt
written notice to the other party. Within 90 days of its discovery or its
receipt of notice of any such breach, the Seller shall either (i) cure such
breach in all material respects, (ii) purchase the related loan from Xxxxxx Mac
by the deposit of the Repurchase Price into an account designated by Xxxxxx Mac,
or (iii) replace such Qualified Loan with one or more Eligible Substitute
Qualified Loans (but only if such replacement will not have adverse tax or other
economic consequences to Xxxxxx Mac or its assignee) in the manner and subject
to the conditions set forth in Section 4.3.
It is understood and agreed by the parties hereto that the representations
and warranties set forth in this subsection 4.2 shall survive delivery of the
respective Mortgage Files to Xxxxxx Mac, and delivery thereof by Xxxxxx Mac to
its designee, and that all representations and warranties are made by Seller for
the express benefit of Xxxxxx Mac and its designee, and that such parties are
expressly authorized by Seller to rely on such representations and warranties.
4.3 Replacement of Defective Loans. If the Seller elects to replace a
Defective Qualified Loan pursuant to Section 2.2(g) or the penultimate paragraph
of Section 4.2, the Seller shall on the date of substitution:
(a) convey one or more Eligible Substitute Qualified Loans and
deliver the related Mortgage Files to Xxxxxx Mac or its designee as
provided in subsection 2.2; and
(b) deposit or cause to be deposited in an account designated by
Xxxxxx Mac no later than the date of substitution the related Substitution
Adjustment Principal Amount, if any, plus (i) interest on such
Substitution Adjustment Principal Amount at the Mortgage Rate of the
related Defective Qualified Loan from the previous Due Date for such
Defective Qualified Loan (or, if there has been no Due Date for such
Defective Qualified Loan subsequent to the Cut-Off Date, from the Cut-Off
Date) to the date of substitution and (ii) interest on the unpaid
principal balance of the related Defective Qualified Loan at the Mortgage
Rate thereof from the Cut-Off Date or any Due Date as to which the related
Installment Payment had been made to any Due Date prior to the date of
substitution as to which the related Installment Payment remains
delinquent as of the date of substitution; and
(c) deliver to Xxxxxx Mac an Officer's Certificate certifying that
the requirements of this Agreement with respect to the replacement of
Defective Qualified Loans have been met.
4.4 Absolute and Unconditional Obligation. The Seller agrees that its
obligation to cure, repurchase or substitute a Qualified Loan pursuant to
Section 4.2 is absolute and unconditional and that it will make any such cure,
repurchase or substitution irrespective of any defense, claim, set-off,
recoupment, abatement or other right that it may have against Xxxxxx Mac or any
other Person, or of any amendment, supplement, waiver or other circumstance,
whether similar or dissimilar, which in any manner would constitute a legal or
equitable excuse for non-performance by it of such obligation to cure, purchase
or substitute.
SECTION 5. COVENANTS
5.1 Affirmative Covenants of the Seller.
(a) Further Assurances. The Seller agrees, from time to time, at its
expense, to execute and deliver promptly to Xxxxxx Mac all further
instruments and documents, and take all further action, that may be
reasonably necessary, or that Xxxxxx Mac may reasonably request, in order
to effectuate the purposes of this Agreement or the Loan Sale Supplement.
(b) Access to Documentation. Upon the prior written request of Xxxxxx
Mac received reasonably in advance, the Seller shall provide
representatives of Xxxxxx Mac reasonable access to documentation regarding
the Qualified Loans during normal business hours at the offices of the
Seller designated by it. The Seller shall permit such representatives to
photocopy any such documentation and shall provide equipment for that
purpose.
SECTION 6. INDEMNIFICATION
6.1 General. Each party agrees to pay the reasonable costs of the other
party if such other party prevails in an action to enforce or remedy the breach
or violation of this Agreement by such party.
6.2 Breaches of representations and warranties. The remedy set forth in
Section 4.2 with respect to breaches of representations and warranties by the
Seller shall not be deemed to restrict or limit any right available to Xxxxxx
Mac against the Seller with respect to the Qualified Loans. The Seller agrees to
hold Xxxxxx Mac and any assignee of Xxxxxx Mac harmless against any loss or
expense (including any incidental or indirect cost) incurred (or to be incurred,
as such costs are incurred) to the extent that such loss or expense can
reasonably be determined by Xxxxxx Mac to have been (or to be) the result of
such breach.
SECTION 7. MISCELLANEOUS
7.1 Loan Sale Supplements. A Loan Sale Supplement identifying the
Qualified Loans to be sold to Xxxxxx Mac by the Seller on each Closing Date and
establishing the terms of such sale shall be substantially in the form annexed
hereto as Exhibit A (with such changes thereto as Xxxxxx Mac and the Seller
shall agree to), shall have attached thereto a Schedule of Qualified Loans dated
as of the date thereof and shall be executed by Xxxxxx Mac and the Seller as of
the related Closing Date. Each Loan Sale Supplement shall identify and relate to
the particular Qualified Loans. Such Schedule of Qualified Loans shall list all
Qualified Loans sold to Famer mac by Seller on the related Closing Date and
shall show as to each Qualified Loan the information provided for in Exhibit 2
to the Loan Sale Supplement. The Loan Sale Supplement together with this Master
Loan Sale Agreement shall constitute the Loan Sale Agreement with respect to the
related Qualified Loans.
7.2 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of Xxxxxx Mac, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive or any rights, remedies, powers or privileges
provided by law.
7.3 Counterparts. This Agreement may be executed in any number of separate
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
7.4 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, FEDERAL LAW. TO
THE EXTENT FEDERAL LAW INCORPORATES STATE LAW, THAT STATE LAW
SHALL BE THE LAWS OF THE STATE OF NEW YORK.
7.5 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given (a) when delivered by
hand, (b) two business days after it is mailed, certified or registered, return
receipt requested, with postage prepaid, (c) when sent by telex, telegram or
telecopy (with receipt confirmed) or (d) one business day after it is sent by
Express Mail, FedEx or other express delivery service, as follows:
(a) if to the Seller, to it at:
[Seller]
[Address]
Attention:
Telecopy Number:
(b) if to Xxxxxx Mac, to it at:
Federal Agricultural Mortgage Corporation
000 Xxxxxxxxxx Xx., X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Vice President - Mortgage-Backed
Securities
Telecopy Number: 000-000-0000
or to such other persons, addresses and telecopier numbers as a party shall
specify as to itself by notice in writing to the other party.
7.6 Survival and Termination of Agreement. All covenants, agreements,
representations and warranties made herein and in any certificate, document or
statement delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement until the later of the receipt by
Xxxxxx Mac or its assignee of payment in full in respect of all Qualified Loans
and the satisfaction of all of the Mortgages.
7.7 Entire Agreement. This Agreement (which, for this purpose, includes
the Loan Sale Supplement) sets forth the entire agreement of the parties hereto
with respect to its subject matter, and supersedes all previous understandings,
written or oral, with respect thereto.
7.8 Waiver of Jury Trial. The Seller and Xxxxxx Mac hereby irrevocably and
unconditionally waive trial by jury in any legal action or preceding relating to
this Agreement or the Loan Sale Supplement.
7.9 Severability. Any provision of this Agreement or the Loan Sale
Supplement which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or thereof or affecting the validity, enforceability
or legality of any such provision in any other jurisdiction.
7.10 Assignability. Except as herein contemplated, neither this Agreement
nor the Loan Sale Supplement shall be assigned by either of the parties hereto
without the prior written consent of the other party; provided, however, that
Xxxxxx Mac may assign this Agreement to any affiliate of Xxxxxx Mac without
prior notice or consent of the Seller.
7.11 Third Party Beneficiaries. Any assignee or designee of Xxxxxx Mac,
including an assignee holding the Qualified Loans for the benefit of holders of
securities guaranteed by Xxxxxx Mac, is a third party beneficiary to this
Agreement or the Loan Sale Supplement entitled to enforce the representations
and warranties, indemnities and obligations of the parties hereto. Except as
otherwise provided, the parties to this Agreement hereby manifest their intent
that no third party other than such assignee or designee, including an assignee
for the benefit of such holders of securities, shall be deemed a third party
beneficiary of this Agreement or the Loan Sale Supplement, and specifically that
the Borrowers are not third party beneficiaries of this Agreement or the Loan
Sale Supplement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
[SELLER]
By:
Name:
Title:
FEDERAL AGRICULTURAL MORTGAGE
CORPORATION,
By:
Name:Xxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
EXHIBIT A
===================================================================
LOAN SALE SUPPLEMENT
between
[SELLER]
and
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
dated as of
June 1, 1996
===================================================================
EXHIBIT B
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
Secretary's Certificate of Xxxxxx Mac
I, Xxxxxxx X. Xxxxxxx, hereby certify that I am the duly elected or appointed
Secretary of the Federal Agricultural Mortgage Corporation ("Xxxxxx Mac"), and
further certify as follows:
1. Attached hereto as Exhibits A, B and C, respectively, are true and correct
copies of the Charter and Bylaws of Xxxxxx Mac and the resolutions of the Board
of Directors of Xxxxxx Mac authorizing the execution, performance and delivery
of the Master Loan Sale Agreement dated as of June 1, 1996 (the "Master Loan
Sale Agreement") and the Loan Sale Supplement dated as of June 1, 1996 (the
"Loan Sale Supplement"), each between [Seller] ("[Seller]"), as seller and
Xxxxxx Mac, each of which is in full force and effect on the date hereof.
2. Each person purporting to execute, either manually or by facsimile signature,
on behalf of Xxxxxx Mac (a) the Master Loan Sale Agreement and the Loan Sale
Supplement and (b) any other document delivered in connection with the sale and
purchase of the Qualified Loans and the closing related thereto was, at the
respective times of such signing and delivery, and is, as of the date hereof,
duly appointed, qualified and acting as such officer, and was and is duly
authorized to accept the duties and make the statements provided for in such
documents. The signature of each such person as it appears on any such document
is the genuine signature of such person.
3. Xxxxxx Mac has the full power and authority to enter into and consummate all
transactions contemplated by the Master Loan Sale Agreement and the Loan Sale
Supplement, has duly authorized the execution, delivery and performance of the
Master Loan Sale Agreement and the Loan Sale Supplement and has duly executed
and delivered the Master Loan Sale Agreement and the Loan Sale Supplement.
4. At the date hereof, each of the Master Loan Sale Agreement and the Loan Sale
Supplement is in full force and effect as regards Xxxxxx Mac, and the
representations and warranties of Xxxxxx Mac set forth in Section 4.1 of the
Master Loan Sale Agreement are accurate and complete.
Capitalized terms used and not otherwise defined herein shall have the meanings
specified in the Master Loan Sale Agreement and the Loan Sale Supplement.
IN WITNESS WHEREOF, I have hereunto signed my name on behalf Xxxxxx Mac on and
as of this 6th day of June, 1996.
FEDERAL AGRICULTURAL MORTGAGE
CORPORATION
By:
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
I, Xxxxxxxxxxx X. Xxxx, a Vice President of the Federal Agricultural Mortgage
Corporation, hereby certify that Xxxxxxx X. Xxxxxxx is the duly appointed,
qualified and acting Secretary of the Federal Agricultural Mortgage Corporation
and that the signature appearing above is his genuine signature.
By:
Name: Xxxxxxxxxxx X. Xxxx
Title: Vice President-
Mortgage-Backed Securities
EXHIBIT C
[SELLER]
Secretary's Certificate of Seller
I, [ ], hereby certify that I am the duly elected or appointed Secretary of
[Seller], and further certify as follows:
1. Attached hereto as Exhibits A and B, respectively, are true and correct
copies of the Charter and Bylaws of [Seller] each of which is in full force and
effect on the date hereof.
2. Each person purporting to execute, either manually or by facsimile signature,
on behalf of [Seller] (a) the Master Loan Sale Agreement dated as of June 1,
1996 (the "Master Loan Sale Agreement") and the Loan Sale Supplement dated as of
June 1, 1996 (the "Loan Sale Supplement"), each between [Seller], as seller, and
the Federal Agricultural Mortgage Corporation, as purchaser, and (b) any other
document delivered in connection with the sale and purchase of the Qualified
Loans and the closing related thereto was, at the respective times of such
signing and delivery, and is, as of the date hereof, duly appointed, qualified
and acting as such officer, and was and is duly authorized to accept the duties
and make the statements provided for in such documents. The signature of each
such person as it appears on any such document is the genuine signature of such
person.
3. [Seller] has the full power and authority to enter into and consummate all
transactions contemplated by the Master Loan Sale Agreement and the Loan Sale
Supplement, has duly authorized the execution, delivery and performance of the
Master Loan Sale Agreement and the Loan Sale Supplement and has duly executed
and delivered the Master Loan Sale Agreement and the Loan Sale Supplement.
4. At the date hereof, each of the Master Loan Sale Agreement and the Loan Sale
Supplement is in full force and effect as regards [Seller], and the
representations and warranties of [Seller] set forth in Section 4.2 of the
Master Loan Sale Agreement are accurate and complete.
Capitalized terms used and not otherwise defined herein shall have the meanings
specified in the Master Loan Sale Agreement and the Loan Sale Supplement.
IN WITNESS WHEREOF, I have hereunto signed my name on behalf [Seller] on and as
of this _th day of ____, 199_.
[SELLER]
By:
Name:
Title: Secretary
I, ,
a of [Seller, hereby certify
that _______________ is the duly appointed, qualified and acting
Secretary of [Seller] and that the signature appearing above is
[his/her] genuine signature.
By:
Name:
Title:
EXHIBIT D
[FORM OF OPINION OF COUNSEL TO THE SELLER]
[Letterhead of [ ]Esq.]
, 1996
Federal Agricultural Mortgage Corporation
000 00xx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Re: Sale of Qualified Loans
Dear Sir or Madam:
I have acted as counsel to [Seller], a [ ] (the "Seller") in connection
with the sale of Qualified Loans (the "Qualified Loans") to Xxxxxx Mac pursuant
to the Master Loan Sale Agreement dated as of June 1, 1996 (the "Master Loan
Sale Agreement") and the Loan Sale Supplement dated as of June 1, 1996, each
between [the Seller], as Seller and Xxxxxx Mac. Unless indicated otherwise, all
capitalized terms used herein shall have the meanings assigned to them in the
Loan Sale Supplement.
In that connection, I have examined originals, or copies certified or
otherwise identified to my satisfaction, of such documents, corporate records
and other instruments as I have deemed necessary or appropriate for the purposes
of this opinion.
As to matters of fact, I have examined and relied upon representations of
the parties contained in each of the Master Loan Sale Agreement and the Loan
Sale Supplement and, where I have deemed appropriate, representations or
certifications of officers of [Seller] or public officials. I have assumed the
authenticity of all documents submitted to me as originals, the genuineness of
all signatures, the legal capacity of natural persons and the conformity to the
originals of all documents submitted to me as copies. I have assumed that all
parties, except for [Seller], had the corporate power and authority to enter
into and perform all obligations under such documents, and, as to such parties,
I also have assumed the due authorization by all requisite corporate action, the
due execution and delivery and the validity, binding effect and enforceability
of such documents. I have further assumed the conformity of the Qualified Loans
and related documents to the requirements of each of the Master Loan Sale
Agreement and the Loan Sale Supplement.
In rendering this opinion letter, I do not express any opinion concerning
the securities laws of any jurisdiction. I do not express any opinion on any
issue not expressly addressed below.
Based upon the foregoing, I am of the opinion that:
(a) [Seller] is an instrumentality duly organized, validly existing and in
good standing under the laws of the United States, with corporate power
and authority to conduct its business as it is currently being conducted.
(b) [Seller] has the requisite power and authority to execute and deliver
each of the Master Loan Sale Agreement and the Loan Sale Supplement and to
perform its obligations under such Agreements.
(c) Each of the Master Loan Sale Agreement and the Loan Sale Supplement
has been duly authorized, executed and delivered by [Seller] and
constitutes a valid and binding agreement of [Seller], enforceable against
[Seller] in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally and (ii) general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
(d) There are no actions, proceedings or investigations pending, or to
the best of my knowledge, threatened against [Seller] before any court,
administrative agency or other tribunal (a) asserting the invalidity of
either of the Master Loan Sale Agreement or the Loan Sale Supplement, (b)
seeking to prevent the consummation of any of the transactions
contemplated by the Master Loan Sale Agreement and the Loan Sale
Supplement, or (c) that might reasonably be expected to materially and
adversely affect the performance by [Seller] of its obligations under, or
the validity or enforceability of, either of the Master Loan Sale
Agreement or the Loan Sale Supplement.
(e) Neither the consummation of any other of the transactions
contemplated by the Master Loan Sale Agreement and the Loan Sale
Supplement nor the compliance by [Seller] with any of the provisions
thereof will conflict with, constitute a default under or violate any
applicable [Seller's state] or federal laws or regulations.
(f) No consent, approval, authorization or order of any court,
regulatory or supervisory authority or governmental agency or body is
required for the consummation by [the Seller] of the transactions
contemplated in each of the Master Loan Sale Agreement and the Loan Sale
Supplement or for the performance by [the Seller] of the transactions or
obligations contemplated in therein.
(g) [the Seller] is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
county or municipal agency, which default might have consequences that
would materially and adversely affect its condition (financial or other),
operations or properties or might have consequences that would materially
and adversely affect its performance under each of the Master Loan Sale
Agreement and the Loan Sale Supplement.
I am a member of the bar of the State of [ ] and express no opinion as to the
laws of any jurisdiction other than those of the State of [ ] and the laws of
the United States of America.
I am furnishing this opinion letter to you solely for your benefit. This opinion
is not to be used, circulated, quoted or otherwise referred to for any other
purpose.
Very Truly yours,
