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EXHIBIT 4.2
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FIRST UNION RESIDENTIAL SECURITIZATION TRANSACTIONS, INC.,
as Purchaser,
and
FIRST UNION NATIONAL BANK,
as Seller,
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of April 1, 1998
XXXXX MORTGAGE LOAN TRUST 1998-A
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Table of Contents
Page
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ARTICLE I DEFINITIONS.............................................................................................2
Section 1.1 Definitions..................................................................................2
ARTICLE II SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE.....................................................2
Section 2.1 Sale of Initial Mortgage Loans...............................................................2
Section 2.2 Sale of Subsequent Mortgage Loans............................................................2
Section 2.3 Obligations of Seller Upon Sale..............................................................3
Section 2.3 Payment of Purchase Price for the Mortgage Loans.............................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH..................................................6
Section 3.1 Seller Representations and Warranties........................................................6
Section 3.2 Seller Representations and Warranties Relating to the Mortgage Loans.........................7
ARTICLE IV SELLER'S COVENANTS....................................................................................8
Section 4.1 Covenants of the Seller......................................................................8
ARTICLE V SERVICING...............................................................................................8
Section 5.1 Servicing....................................................................................8
ARTICLE VI INDEMNIFICATION WITH RESPECT TO THE MORTGAGE LOANS....................................................9
Section 6.1 Indemnification..............................................................................9
ARTICLE VII TERMINATION..........................................................................................12
Section 7.1 Termination.................................................................................12
ARTICLE VIII MISCELLANEOUS PROVISIONS...........................................................................12
Section 8.1 Amendment...................................................................................12
Section 8.2 Governing Law...............................................................................12
Section 8.3 Notices.....................................................................................12
Section 8.4 Severability of Provisions..................................................................13
Section 8.5 Counterparts................................................................................13
Section 8.6 Further Agreements..........................................................................13
Section 8.7 Intention of the Parties....................................................................14
Section 8.8 Successors and Assigns: Assignment of Purchase Agreement....................................14
Section 8.9 Survival....................................................................................14
SCHEDULE I MORTGAGE LOANS
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MORTGAGE LOAN PURCHASE AGREEMENT (the "Purchase Agreement"), dated as
of April 1, 1998 between First Union National Bank (the "Seller") and First
Union Residential Securitization Transactions, Inc. (the "Purchaser").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the notes or other evidence of
indebtedness (the "Initial Mortgage Notes") so indicated on Schedule I hereto
referred to below, and Related Documents (as defined below) (collectively, the
"Initial Mortgage Loans"); and
WHEREAS, following the Closing Date, the Seller will from time to time
own other notes or other evidence of indebtedness (the "Subsequent Mortgage
Notes') so indicated in a Subsequent Transfer Agreement (as defined below) and
the Related Documents (the Subsequent Mortgage Notes and Related Documents,
collectively the "Subsequent Mortgage Loans" and with the Initial Mortgage
Loans, the "Mortgage Loans"); and
WHEREAS, the Seller, in the case of the Initial Mortgage Loans owns,
and in the case of the Subsequent Mortgage Loans will own, the mortgages (the
"Mortgages") on the properties (the "Mortgaged Properties") securing such
Mortgage Loans, including rights to (a) any property acquired by foreclosure or
deed in lieu of foreclosure or otherwise and (b) the proceeds of any insurance
policies covering the Mortgage Loans or the Mortgaged Properties or the obligors
on the Mortgage Loans;
WHEREAS, the parties hereto desire that the Seller sell the Initial
Mortgage Loans to the Purchaser pursuant to the terms of this Purchase
Agreement; and
WHEREAS, pursuant to the terms of a Pooling and Servicing Agreement
dated as of April 1, 1998 (the "Pooling and Servicing Agreement") among the
Purchaser, as depositor, the Seller, as seller First Union Mortgage Corporation,
as servicer, Norwest Bank Minnesota, National Association, as document
custodian, and Norwest Bank Minnesota, National Association, as trustee (the
"Trustee"), the Purchaser will convey the Initial Mortgage Loans to XXXXX
Mortgage Loan Trust 0000-X (xxx "Xxxxx Xxxx"); and
WHEREAS, pursuant to the terms of each Subsequent Transfer Agreement,
the Seller, on behalf of the Purchaser, will transfer the Subsequent Mortgage
Loans, if any, to the Trustee, as assignee of the Purchaser under this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS.
All capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
SECTION 2.1 SALE OF INITIAL MORTGAGE LOANS.
The Seller, concurrently with the execution and delivery of this
Purchase Agreement, does hereby sell, assign, set over, and otherwise convey to
the Purchaser, without recourse, all of its right, title and interest in, to and
under the following, whether now existing or hereafter acquired and wherever
located: the Initial Mortgage Loans, including the related Cut-Off Date Loan
Balances, and all payments in respect of the Initial Mortgage Loans received on
and after the Initial Cut-Off Date (exclusive of payments in respect of interest
on the Initial Mortgage Loans accrued prior to the Initial Cut-Off Date and
received thereafter); property which secured an Initial Mortgage Loan and which
has been acquired by foreclosure or deed in lieu of foreclosure; the interest of
the Seller in any insurance policies in respect of the Initial Mortgage Loans;
all rights under any guaranty executed in connection with a Mortgage Loan; and
all proceeds of the foregoing.
SECTION 2.2 SALE OF SUBSEQUENT MORTGAGE LOANS.
The Seller covenants and agrees to use its best efforts following the
Closing Date to acquire and, on behalf of the Purchaser, sell to the Trustee as
assignee of the Purchaser, and the Trustee as assignee of the Purchaser will
agree in the Pooling and Servicing Agreement to purchase, subject to
satisfaction of the conditions set forth therein, an amount of Subsequent
Mortgage Loans sufficient to reduce the Pre-Funded Amount to less than $100,000
on or before July 24, 1998. On any Subsequent Transfer Date, concurrently with
the execution and delivery of a Subsequent Transfer Agreement and subject to the
terms thereof, the Seller will thereby sell, assign, set over, and otherwise
convey to the Trustee as assignee of the Purchaser, without recourse, all of its
right, title and interest in, to and under the following, whether now existing
or hereafter acquired and wherever located: the Subsequent Mortgage Loans,
including the related Cut-Off Date Loan Balances, and all payments in respect of
the Subsequent Mortgage Loans received on and after the related Subsequent
Cut-Off Date (exclusive of payments in respect of interest on the Subsequent
Mortgage Loans accrued prior to the Subsequent Cut-Off Date and
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received thereafter); property which secured a Subsequent Mortgage Loan and
which has been acquired by foreclosure or deed in lieu of foreclosure; the
interest of the Seller in any insurance policies in respect of the Subsequent
Mortgage Loans; all rights under any guaranty executed in connection with a
Subsequent Mortgage Loan; and all proceeds of the foregoing.
SECTION 2.3 OBLIGATIONS OF SELLER UPON SALE.
In connection with any transfer pursuant to Sections 2.1 or 2.2 hereof,
the Seller further agrees, at its own expense, on or prior to the Closing Date
or, in the case of the Subsequent Mortgage Loans, the Subsequent Transfer Date,
(a) to indicate in its books and records that the related Mortgage Loans have
been sold to the Purchaser or to the Trustee, as assignee of the Purchaser, as
applicable, pursuant to this Purchase Agreement and (b) to deliver to the
Purchaser a computer file containing a true and complete list of all such
Mortgage Loans specifying for each such Mortgage Loan, as of the applicable
Cut-Off Date (i) its account number and (ii) the related Cut-Off Date Loan
Balance. Such file, which forms a part of Exhibit D to the Pooling and Servicing
Agreement, shall also be marked as Schedule I to this Purchase Agreement and is
hereby incorporated into and made a part of this Purchase Agreement.
The Seller agrees to prepare, execute and file UCC-1 financing
statements with the Secretary of State in the State of North Carolina (which
shall have been filed on or before the Closing Date with respect to the Initial
Mortgage Loans and within 5 days of the related Subsequent Transfer Date with
respect to the Subsequent Mortgage Loans) describing the applicable Mortgage
Loans and naming the Seller as debtor and, with respect to the Initial Mortgage
Loans, the Purchaser (and indicating that such loans have been assigned to the
Trustee) or, with respect to the Subsequent Mortgage Loans, the Trustee, as
secured party and all necessary continuation statements and any amendments to
the UCC-1 financing statements required to reflect a change in the name or
corporate structure of the Seller or the filing of any additional UCC-1
financing statements due to the change in the principal office of the Seller, as
are necessary to perfect and protect the Trustee's interest in each Mortgage
Loan, the payments thereon and the proceeds thereof.
In connection with any conveyance by the Seller, the Seller shall on
behalf, and at the direction, of the Purchaser deliver to, and deposit with, the
Trustee, as Document Custodian on or before the Closing Date, or in the case of
the Subsequent Mortgage Loans, the related Subsequent Transfer Date, the
following documents or instruments with respect to each Mortgage Loan (the
"Related Documents"):
(i) the original Mortgage Note, endorsed "Pay to the order of
Norwest Bank Minnesota, National Association, as trustee for the
registered holders from time to time of XXXXX Mortgage Loan Trust
1998-A, Mortgage Pass-Through Certificates, Series 1998-A, without
recourse," signed in the name of the Seller by an authorized officer,
with all intervening endorsements showing a complete chain of title
from the originator of such Mortgage Loan to the Seller;
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(ii) the original Mortgage, with evidence of recording
thereon, provided, that if the original Mortgage has been delivered for
recording to the appropriate public recording office of the
jurisdiction in which the Mortgaged Property is located but has not yet
been returned to the Seller by such recording office, the Seller shall
cause to be delivered to the Document Custodian a certified true copy
of such original Mortgage so certified by the Seller, together with a
certificate of the Seller certifying that such original Mortgage has
been so delivered to such recording office; in all such instances, the
Seller shall deliver or cause to be delivered the original recorded
Mortgage to the Document Custodian promptly upon receipt of the
original recorded Mortgage;
(iii) the original assignment of Mortgage, from the Seller to
"Norwest Bank Minnesota, National Association, as trustee for the
registered holders from time to time of XXXXX Mortgage Loan Trust
1998-A," which assignment shall be in form and substance acceptable for
recording;
(iv) the original attorney's opinion of title or the original
policy of title insurance, provided, that if any such original policy
of title insurance has not yet been received by the Seller, the Seller
shall cause to be delivered to the Document Custodian a copy of such
policy or a title insurance binder or commitment for the issuance of
such policy;
(v) originals of all intervening assignments of Mortgage,
with evidence of recording thereon, showing a complete chain
of title from the originator to the Seller, provided, that if any such
original intervening assignment of Mortgage has been delivered for
recording to the appropriate public recording office of the
jurisdiction in which the Mortgaged Property is located but has not yet
been returned to the Seller by such recording office, the Seller may
have delivered to the Document Custodian a certified true copy of such
original assignment of Mortgage so certified by the Seller, together
with a certificate of the Seller certifying that such original
assignment of Mortgage has been so delivered to such recording office;
in all such instances, the Seller shall deliver or cause to be
delivered any such original assignments to the Document Custodian
promptly upon receipt thereof; and
(vi) originals of all assumption and modification agreements,
if any; provided, however, the Seller may deliver to the Document Custodian all
of the above documents other than those referred to in clause (i) above (which
shall be delivered on or before the Closing Date) within 60 days after the
Closing Date.
For all Initial Mortgage Loans that were owned by the Seller on the
Initial Cut-Off Date as successor by merger to the originator or previous
holder, the Seller shall deliver to the Trustee, as Document Custodian, on or
before the Closing Date, an officer's certificate identifying such Initial
Mortgage Loans and the identities of the Persons (each, a "Merged Holder") that
are
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reflected on the related Mortgage Notes and Mortgage or assignment of
Mortgage as the holder, certifying that the Seller is successor by merger to
each such Merged Holder and certifying as to the authority of the officer
signing the endorsement referred to in clause (i) above and the assignment of
Mortgage referred to in clause (iii) above to execute the same. Such officer's
certificate shall constitute part of the Mortgage File of each such Initial
Mortgage Loan.
The Seller further hereby confirms to the Purchaser that, as of the
Closing Date, it has caused, or with respect to the Subsequent Mortgage Loans,
as of the related Subsequent Transfer Date, it will cause, the portions of the
Electronic Ledger relating to the Mortgage Loans maintained by the Servicer to
be clearly and unambiguously marked to indicate that the Mortgage Loans have
been sold to the Purchaser or the Trustee as assignee of the Purchaser, as
applicable.
The Purchaser hereby acknowledges its acceptance of all right, title
and interest to the Initial Mortgage Loans and other property, now existing and
hereafter created, conveyed to it pursuant to Section 2.1.
The parties hereto intend that (a) the transaction set forth herein
with respect to the Initial Mortgage Loans be a sale by the Seller to the
Purchaser of all the Seller's right, title and interest in and to the Initial
Mortgage Loans and other related property described above and (b) the
transaction contemplated herein with respect to the Subsequent Mortgage Loans be
a sale by the Seller, on behalf of the Purchaser, to the Trustee of all the
Seller's right, title and interest in and to the Subsequent Mortgage Loans and
other related property described above. In the event the transaction set forth
herein with respect to the Initial Mortgage Loans is deemed not to be a sale,
the Seller shall be deemed to have granted and does hereby grant to the
Purchaser a security interest in all of the Seller's right, title and interest
in, to and under the Initial Mortgage Loans and other related property described
above, whether now existing or hereafter created, to secure all of the Seller's
obligations hereunder; and this Purchase Agreement shall constitute a security
agreement under applicable law. In the event the transaction contemplated herein
with respect to the Subsequent Mortgage Loans is deemed not to be a sale, the
Seller, on behalf of the Purchaser, shall be deemed to have granted and does
hereby grant to the Trustee a security interest in all of the Seller's right,
title and interest in, to and under the Subsequent Mortgage Loans and other
related property described above, whether now existing or hereafter created, to
secure all of the Seller's obligations hereunder; and this Purchase Agreement
shall constitute a security agreement under applicable law.
SECTION 2.4 PAYMENT OF PURCHASE PRICE FOR THE MORTGAGE LOANS.
(a) In consideration of the sale of the Initial Mortgage Loans from the
Seller to the Purchaser on the Closing Date and the funding of the Pre-Funding
Account and Capitalized Interest Account on the Closing Date as contemplated by
Section 4.2 of the Pooling and Servicing Agreement, the Purchaser agrees to pay
to the Seller on the Closing Date by transfer of immediately available funds, an
amount equal to $354,577,683.40 (the "Purchase Price").
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ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
SECTION 3.1 SELLER REPRESENTATIONS AND WARRANTIES.
The Seller represents and warrants to the Purchaser as of the Closing
Date and as of each Subsequent Transfer Date:
(i) It is a national banking association, validly existing and
in good standing under the laws of the United States of America and has
the requisite power and authority to own its assets and to transact the
business in which it is currently engaged. It is duly qualified to do
business and is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or
leased by it requires such qualification and in which the failure so to
qualify would have a material adverse effect on (a) its business,
properties, assets, or condition (financial or other), (b) its
performance of its obligations under this Purchase Agreement, (c) the
value or marketability of the Mortgage Loans and (d) the ability to
foreclose on the related Mortgaged Properties;
(ii) It has the power and authority to make, execute, deliver and
perform this Purchase Agreement and all of the transactions
contemplated under this Purchase Agreement, and has taken all necessary
action to authorize the execution, delivery and performance of this
Purchase Agreement. When executed and delivered, this Purchase
Agreement will constitute its legal, valid and binding obligation
enforceable in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies;
(iii) It holds all necessary licenses, certificates and permits
from all government authorities necessary for conducting its business
as it is presently conducted. It is not required to obtain the consent
of any other party or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority,
bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Purchase Agreement,
except for such consents, licenses, approvals or authorizations, or
registrations or declarations, as shall have been obtained or filed, as
the case may be, prior to the Closing Date;
(iv) The execution, delivery and performance of this Purchase
Agreement by it will not conflict with or result in a breach of, or
constitute a default under, any provision of any existing law or
regulation or any order or decree of any court applicable to it or any
of its properties or any provision of its Articles of Association or
Bylaws, or constitute a
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material breach of, or result in the creation or imposition of any
lien, charge or encumbrance upon any of its properties pursuant to, any
mortgage, indenture, contract or other agreement to which it is a party
or by which it may be bound;
(v) No litigation or administrative proceeding of or before any
court, tribunal or governmental body is currently pending, or to its
knowledge threatened, against it or any of its properties or with
respect to this Purchase Agreement or the Certificates which in its
opinion has a reasonable likelihood of resulting in a material adverse
effect on the transactions contemplated by this Purchase Agreement;
(vi) The transactions contemplated by this Purchase Agreement are
in the ordinary course of business of the Seller; and
(vii) The Seller is not insolvent, nor will it be made insolvent by
the transfer of the Mortgage Loans, nor is the Seller aware of any
pending insolvency.
It is understood and agreed that the representations and
warranties set forth in this Section 3.1 shall survive delivery of the
Mortgage Files to the Document Custodian on behalf of the Purchaser.
SECTION 3.2 SELLER REPRESENTATIONS AND WARRANTIES RELATING TO THE
MORTGAGE LOANS.
The Seller represents and warrants to the Purchaser that, as of the
Closing Date with respect to the Initial Mortgage Loans and as of the related
Subsequent Transfer Date with respect to the Subsequent Mortgage Loans to be
transferred on such Subsequent Transfer Date, it has made the representations
and warranties set forth in Section 2.6(a) of the Pooling and Servicing
Agreement for the benefit of the Purchaser or the Trustee as applicable. Such
representations and warranties are incorporated by reference in this Section
3.2, and the Purchaser may rely thereon as if such representations and
warranties were fully set forth herein.
With respect to the representations and warranties set fort in this
Section 3.2 that are made to the best of the Seller's knowledge or as to which
the Seller has no knowledge, if it is discovered by the Purchaser, the Seller,
the Servicer or a Responsible Officer of 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 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, such inaccuracy shall be deemed a breach of the applicable
representation or warranty and with respect to any breach of such representation
or warranty or of any other representation or warranty, the Seller shall cure,
repurchase or substitute in accordance with the Pooling and Servicing Agreement.
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It is understood and agreed that the representations and warranties set
forth in this Section 3.2 shall survive delivery of the respective Mortgage
Files to the Document Custodian on behalf of the Purchaser.
ARTICLE IV
SELLER'S COVENANTS
SECTION 4.1 COVENANTS OF THE SELLER.
(a) The Seller hereby covenants that except for the transfer hereunder,
the Seller will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on any Mortgage Loan,
or any interest therein; the Seller will notify the Trustee, as assignee of the
Purchaser, of the existence of any Lien on any Mortgage Loan immediately upon
discovery thereof; and the Seller will defend the right, title and interest of
the Trust Fund, as assignee of the Purchaser, in, to and under the Mortgage
Loans, against all claims of third parties claiming through or under the Seller;
provided, however, that nothing in this Section 4.1 shall prevent or be deemed
to prohibit the Seller from suffering to exist upon any of the Mortgage Loans
any Liens for municipal or other local taxes and other governmental charges if
such taxes or governmental charges shall not at the time be due and payable or
if the Seller shall currently be contesting the validity thereof in good faith
by appropriate proceedings and shall have set aside on its books adequate
reserves with respect thereto.
(b) During the period commencing on the first day of the offering of
the Offered Senior Certificates, the Class M Certificates, the Class B-1
Certificates and the Class B-2 Certificates (collectively the "Offered
Certificates") to the public and ending on the Closing Date, the Seller shall
not, without the prior written consent of First Union Capital Markets, a
division of Wheat First Securities, Inc., sell or enter into agreements with
other underwriters to sell mortgage pass-through securities, collateralized
mortgage obligations or similar securities representing interests in or secured
by residential mortgage loans purchased or originated by the Seller.
ARTICLE V
SERVICING
SECTION 5.1 SERVICING.
First Union Mortgage Corporation will be the Servicer of the Mortgage
Loans pursuant to the terms and conditions of the Pooling and Servicing
Agreement.
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ARTICLE VI
INDEMNIFICATION WITH RESPECT TO THE MORTGAGE LOANS
SECTION 6.1 INDEMNIFICATION.
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
each of its directors, each of its officers who have signed the registration
statement, and each of its directors and each person or entity who controls the
Purchaser or any such person, within the meaning of Section 15 of the Securities
Act of 1933, as amended (the "Securities Act"), against any and all losses,
claims, damages or liabilities, joint and several, to which the Purchaser, or
any such person or entity may become subject, under the Securities Act or
otherwise, and will reimburse the Purchaser and each such controlling person for
any legal or other expenses incurred by the Purchaser or such controlling person
in connection with investigating or defending any such loss, claims, damages or
liabilities insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Prospectus
Supplement or any amendment or supplement to the Prospectus Supplement approved
in writing by the Seller or the omission or the alleged omission to state
therein a material fact necessary in order to make the statements in the
Prospectus Supplement or any amendment or supplement to the Prospectus
Supplement approved in writing by the Seller, in the light of the circumstances
under which they were made, not misleading, but only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission
relates to the information contained in the Prospectus Supplement under the
captions: "Summary of Terms of the Offered Certificates - The Initial Mortgage
Loans," "Risk Factors" (other than " - Book-Entry System; and " - Certificate
Ratings"), "The Seller and the Servicer" and "The Mortgage Loan Pool" and the
corresponding information in the "Summary of Terms of the Offered Certificates"
(such information, the "Seller Information"). This indemnity agreement will be
in addition to any liability which the Seller may otherwise have.
(b) The Purchaser agrees to indemnify and hold harmless the Seller
against any and all losses, claims, damages or liabilities, joint and several,
to which the Seller, or any such person or entity may become subject, under the
Securities Act or otherwise, and will reimburse the Seller for any legal or
other expenses incurred by the Seller or such controlling person in connection
with investigating or defending any such losses, claims, damages or liabilities
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus Supplement or any
amendment or supplement to the Prospectus Supplement or the omission or the
alleged omission to state therein a material fact necessary in order to make the
statements in the Prospectus Supplement or any amendment or supplement to the
Prospectus Supplement, in the light of the circumstances under which they were
made, not misleading, but only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission relates to the
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information contained in the Prospectus Supplement other than the Seller
Information. This indemnity agreement will be in addition to any liability which
the Purchaser may otherwise have.
(c) Promptly after receipt by any indemnified party under this Article
VI of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Article VI, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Article VI except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Article VI.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Article VI for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Purchaser, if the indemnified parties
under this Article VI consist of the Purchaser, or by the Seller, if the
indemnified parties under this Article VI consist of the Seller.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 6.1(a) and (b), shall use its best efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such
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action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Article VI
is for any reason held to be unenforceable although applicable in accordance
with its terms, the Seller, on the one hand, and the Purchaser, on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Seller and the Purchaser in such proportions as shall be appropriate to reflect
the relative benefits received by the Seller, on the one hand, and the
Purchaser, on the other, from the sale of the Mortgage Loans such that the
Purchaser is responsible for that portion represented by the percentage that the
underwriting discount with respect to the Offered Certificates (the
"Underwriting Discount") bears to the sum of the Purchase Price and the
Underwriting Discount and the Seller shall be responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls the Purchaser within the meaning of Section 15 of the Securities Act
shall have the same rights to contribution as the Purchaser and each director of
the Seller, each officer of the Seller, and each person, if any, who controls
the Seller within the meaning of Section 15 of the Securities Act shall have the
same rights to contribution as the Seller. Notwithstanding anything in this
paragraph (d) to the contrary, the Purchaser shall not be required to contribute
an amount in excess of the amount of the Underwriting Discount.
(e) The Seller agrees to indemnify and to hold each of the Purchaser,
the Trustee, each Certificateholder and the Servicer harmless against any and
all claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, fees and expenses that the Purchaser, the
Trustee and any Certificateholder may sustain in any way (i) related to the
failure of the Seller to perform its duties in compliance with the terms of this
Purchase Agreement or (ii) arising from a breach by the Seller of its
representations and warranties in Article III of this Purchase Agreement. The
Seller shall immediately notify the Purchaser, the Trustee and each
Certificateholder if a claim is made by a third party with respect to this
Purchase Agreement, the Seller shall assume the defense of any such claim and
pay all expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree
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which may be entered against the Purchaser, the Servicer, the Seller, the
Trustee and/or Certificateholder in respect of such claim.
ARTICLE VII
TERMINATION
SECTION 7.1 TERMINATION.
The respective obligations and responsibilities of the Seller and the
Purchaser created hereby shall terminate, except for the Seller's and the
Purchaser's indemnity obligations as provided herein, upon the termination of
the Trust Fund as provided in Article X of the Pooling and Servicing Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 AMENDMENT.
This Purchase Agreement may be amended from time to time by the Seller
and the Purchaser by written agreement signed by the Seller and the Purchaser.
SECTION 8.2 GOVERNING LAW.
THIS PURCHASE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
SECTION 8.3 NOTICES.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or mailed
by registered mail, postage prepaid, addressed as follows:
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if to the Seller:
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
or, such other address as may hereafter be furnished to the Purchaser in
writing by the Seller.
if to the Purchaser:
First Union Residential Securitization Transactions, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
SECTION 8.4 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions of terms of
this Purchase Agreement shall be held invalid for any reason whatsoever, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Purchase
Agreement and shall in no way affect the validity of enforceability of the other
provisions of this Purchase Agreement.
SECTION 8.5 COUNTERPARTS.
This Purchase Agreement may be executed in one or more counterparts and
by the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original and such counterparts, together,
shall constitute one and the same agreement.
SECTION 8.6 FURTHER AGREEMENTS.
The Purchaser and the Seller each agree to execute and deliver to the
other such additional documents, instruments or agreements as may be necessary
or reasonable and appropriate to effectuate the purposes of this Purchase
Agreement or in connection with the issuance of any series of Certificates
representing interests in the Mortgage Loans.
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SECTION 8.7 INTENTION OF THE PARTIES.
It is the intention of the parties that (a) the Purchaser is
purchasing, and the Seller is selling, the Initial Mortgage Loans rather than
pledging the Initial Mortgage Loans to secure a loan by the Purchaser to the
Seller and (b) the Trustee will be purchasing, and the Seller will be selling,
the Subsequent Mortgage Loans rather than pledging the Subsequent Mortgage Loans
to secure a loan by the Trustee to the Seller. Accordingly, the parties hereto
each intend to treat the transaction for Federal income tax purposes and all
other purposes (y) as a sale by the Seller, and a purchase by the Purchaser, of
the Initial Mortgage Loans and (z) as a sale by the Seller, and a purchase by
the Trustee, of the Subsequent Mortgage Loans. The Purchaser will have the right
to review the Mortgage Loans and the related Mortgage Files to determine the
characteristics of the Mortgage Loans which will affect the Federal income tax
consequences of owning the Mortgage Loans and the Seller will cooperate with all
reasonable requests made by the Purchaser in the course of such review.
SECTION 8.8 SUCCESSORS AND ASSIGNS: ASSIGNMENT OF PURCHASE
AGREEMENT.
The Purchase Agreement shall bind and inure to the benefit of and be
enforceable by the Seller, the Purchaser and the Trustee. The obligations of the
Seller under this Purchase Agreement cannot be assigned or delegated to a third
party without the consent of the Purchaser, which consent shall be at the
Purchaser's sole discretion, except that the Purchaser acknowledges and agrees
that the Seller may assign its obligations hereunder to any Person into which
the Seller is merged or any corporation resulting from any merger, conversion or
consolidation to which the Seller is a party or any Person succeeding to the
business of the Seller. The parties hereto acknowledge that the Purchaser is
acquiring the Mortgage Loans for the purpose of contributing them to a trust
that will issue a series of Certificates representing undivided interests in
such Mortgage Loans. As an inducement to the Purchaser to purchase the Mortgage
Loans, the Seller acknowledges and consents to the assignment by the Purchaser
to the Trustee of all of the Purchaser's rights against the Seller pursuant to
this Purchase Agreement insofar as such rights relate to Mortgage Loans
transferred to such Trustee and to the enforcement or exercise of any right or
remedy against the Seller pursuant to this Purchase Agreement by the Trustee
under the Pooling and Servicing Agreement. Such enforcement of a right or remedy
by the Trustee shall have the same force and effect as if the right or remedy
had been enforced or exercised by the Purchaser directly. The parties
acknowledge and agree that the Trustee is an intended third party beneficiary of
this Purchase Agreement (including, specifically, the indemnification provisions
of Section 6.1(e)) and that the Trustee shall be entitled to enforce the
provisions of this Purchase Agreement against the parties hereto.
SECTION 8.9 SURVIVAL.
The representations and warranties set forth in Article III and the
provisions of Article VI shall survive the purchase of the Mortgage Loans
hereunder.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed to this Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above written.
FIRST UNION RESIDENTIAL
SECURITIZATION TRANSACTIONS, INC.,
as Purchaser
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
as Seller
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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STATE OF NORTH CAROLINA)
)ss.:
MECKLENBURG COUNTY )
On the _______ day of __________________ before me, a Notary Public in
and for said State, personally appeared _________________________, known to me
to be a _____________________ of FIRST UNION RESIDENTIAL SECURITIZATION
TRANSACTIONS, INC., the corporation that executed the within instrument, and
also known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
(NOTARIAL SEAL)
Commission Expires:
----------------
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STATE OF NORTH CAROLINA)
)ss.:
MECKLENBURG COUNTY )
On the _______ day of __________________ before me, a Notary Public in
and for said State, personally appeared _________________________, known to me
to be a _____________________ of FIRST UNION NATIONAL BANK, the national banking
association that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
----------------------------------------
Notary Public
(NOTARIAL SEAL)
Commission Expires:
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