EXHIBIT 1
SUBSEQUENT TRANSFER INSTRUMENT
SUBSEQUENT TRANSFER INSTRUMENT
Pursuant to this Subsequent Transfer Instrument (the
"Instrument"), dated July 7, 1998, between PacificAmerica Money Center, Inc. as
seller (the "Seller"), and PacificAmerica Home Equity Loan Trust Series 1998-2F
as issuer (the "Issuer"), and pursuant to the Home Equity Loan Purchase
Agreement, dated as of June 22, 1998, among the Seller, the Issuer, Xxxxxxx
Xxxxx Mortgage Investors, Inc. and Bankers Trust Company of California, N.A.
(the "Home Equity Loan Purchase Agreement"), the Seller and the Issuer agree to
the sale by the Seller and the purchase by the Issuer of the Mortgage Loans
listed on the attached Subsequent Mortgage Loan Schedule (the "Subsequent
Mortgage Loans").
Capitalized terms used and not defined herein have their
respective meanings as set forth in Section 1.1 of the Home Equity Loan Purchase
Agreement, which meanings are incorporated by reference herein. All other
capitalized terms used herein shall have the meanings specified herein.
Section 1. CONVEYANCE OF SUBSEQUENT MORTGAGE LOANS.
(a) The Seller does hereby sell, transfer, assign, set over
and convey to the Issuer, without recourse, all of its right, title and interest
in and to the Subsequent Mortgage Loans, and including all principal received
and interest accruing on the Subsequent Mortgage Loans on and after the related
Subsequent Cut-off Date, and all items with respect to the Subsequent Mortgage
Loans to be delivered pursuant to Section 2.2 of the Home Equity Loan Purchase
Agreement; provided, however, that the Seller reserves and retains all right,
title and interest in and to principal received and interest accruing on the
Subsequent Mortgage Loans prior to the related Subsequent Cut-off Date. The
Seller, contemporaneously with the delivery of this Agreement, has delivered or
caused to be delivered to the Indenture Trustee each item set forth in Section
2.2 of the Home Equity Loan Purchase Agreement. The transfer to the Issuer by
the Seller of the Subsequent Mortgage Loans identified on the Subsequent
Mortgage Loan Schedule shall be absolute and is intended by the Seller, the
Issuer, the Indenture Trustee and the Noteholders to constitute and to be
treated as a sale by the Seller.
The parties hereto intend that the transactions set forth
herein constitute a sale by the Seller to the Issuer on the Subsequent Transfer
Date of all the Seller's right, title and interest in and to the Subsequent
Mortgage Loans, and other property as and to the extent described above. In the
event the transactions set forth herein shall be deemed not to be a sale, the
Seller hereby grants to the Issuer as of the Subsequent Transfer Date a security
interest in all of the Seller's right, title and interest in, to and under the
Subsequent Mortgage Loans, and such other property, to secure all of the
Issuer's obligations hereunder, and this Agreement shall constitute a security
agreement under applicable law. The Seller agrees to take or cause to be taken
such actions and
to execute such documents, including without limitation the filing of all
necessary UCC-1 financing statements filed in the State of Delaware and the
State of California (which shall be submitted for filing as of the Subsequent
Transfer Date), any continuation statements with respect thereto and any
amendments thereto 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 Issuer's interests in each Subsequent
Mortgage Loan and the proceeds thereof.
(b) The expenses and costs relating to the delivery of the
Subsequent Mortgage Loans, this Instrument and the Home Equity Loan Purchase
Agreement shall be borne by the Seller.
(c) Additional terms of the sale are set forth on Attachment A
hereto.
Section 2. REPRESENTATIONS AND WARRANTIES; CONDITIONS
PRECEDENT.
(a) The Seller hereby affirms the representations and
warranties set forth in Section 3.1 of the Home Equity Loan Purchase Agreement
that relate to the Seller or the Subsequent Mortgage Loans as of the date
hereof. The Seller hereby confirms that each of the conditions set forth in
Section 2.3(b) of the Home Equity Loan Purchase Agreement are satisfied as of
the date hereof and further represents and warrants that each Subsequent
Mortgage Loan complies with the requirements of this Instrument and Section
2.3(c) of the Home Equity Loan Purchase Agreement.
(b) The Seller is solvent, is able to pay its debts as they
become due and has capital sufficient to carry on its business and its
obligations hereunder; it will not be rendered insolvent by the execution and
delivery of this Instrument or by the performance of its obligations hereunder
nor is it aware of any pending insolvency; no petition of bankruptcy (or similar
insolvency proceeding) has been filed by or against the Seller prior to the date
hereof;
(c) All terms and conditions of the Home Equity Loan Purchase
Agreement are hereby ratified and confirmed; provided, however, that in the
event of any conflict the provisions of this Instrument shall control over the
conflicting provisions of the Home Equity Loan Purchase Agreement.
Section 3. RECORDATION OF INSTRUMENT.
To the extent permitted by applicable law, this Instrument, or
a memorandum thereof if permitted under applicable law, is subject to
recordation in all appropriate public offices for real property records in all
of the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer at the Noteholders' expense on direction of the Majority
Noteholders or the Note Insurer, but only when
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Noteholders or the Note
Insurer or is necessary for the administration or servicing of the Mortgage
Loans.
Section 4. GOVERNING LAW.
This Instrument shall be construed in accordance with the laws
of the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws, without giving
effect to principles of conflicts of law.
Section 5. COUNTERPARTS.
This Instrument 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; such counterparts,
together, shall constitute one and the same instrument.
Section 6. SUCCESSORS AND ASSIGNS.
This Instrument shall inure to the benefit of and be binding
upon the Seller and the Issuer and their respective successors and assigns.
PACIFICAMERICA MONEY CENTER, INC.
By: /s/ Xxxxx Xxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
PACIFICAMERICA HOME EQUITY LOAN
TRUST SERIES 1998-2F
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely in its capacity as
Owner Trustee
By: /s/ Xxxxx Xxxxxx
--------------------
Xxxxx Xxxxxx
Authorized Signatory
ATTACHMENTS
A. Schedule of Subsequent Mortgage Loans.
C. Seller's Officer's Certificate.
D. Seller's Officer's Certificate (confirmation of Note Insurer approval).
ATTACHMENT A
IN ACCORDANCE WITH RULE 202 OF REGULATION S-T,
THE MORTGAGE LOAN SCHEDULES ARE BEING FILED IN PAPER PURSUANT TO
A CONTINUING HARDSHIP EXEMPTION
[TPW: NY01:670766.1] 16018-00490 08/05/98 11:31AM
ATTACHMENT B
OFFICER'S CERTIFICATE
SUBSEQUENT TRANSFER
PACIFICAMERICA MONEY CENTER, INC.
I, Xxxxxxx Xxxxxx, hereby certify that I am the duly elected Chief
Financial Officer of PacificAmerica Money Center, Inc. (the "Seller") a
corporation organized under the laws of the State of Delaware, that I have made
such reasonable investigation as I have deemed necessary to deliver this
Certificate, including discussions with responsible officers of the Seller and
further certify to the best of my knowledge as follows:
1. The Seller is in good standing under the laws of the State
of Delaware.
2. Each person who, as an officer or representative of the
Seller, signed the Subsequent Transfer Instrument, dated as of July 7,
1998, between the Seller and PacificAmerica Home Equity Loan Trust
Series 1998-2F (the "Issuer") and any other document delivered prior
hereto or on the date hereof in connection with the transfer of the
Subsequent Mortgage Loans and the transactions described in the Home
Equity Loan Purchase Agreement (the "Agreement"), dated as of June 22,
1998 among PacificAmerica Money Center, Inc., Xxxxxxx Xxxxx Mortgage
Investors, Inc., Bankers Trust Company of America, N.A. and the Issuer,
at the respective times of such signing and delivery, and is now, duly
elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents are their genuine signatures.
3. With respect to its transfer of the Subsequent Mortgage
Loans and the transactions contemplated by the Agreement, the Seller
has complied in all material respects with all the agreements by which
it is bound and has satisfied in all material respects all the
conditions on its part to be performed or satisfied prior to the
Subsequent Transfer Date other than those which have been waived
pursuant to the terms of the Agreement.
4. Attached hereto as Exhibit I is a certified true copy of
the resolutions of the Board of Directors of the Seller with respect
to the sale of the Subsequent Mortgage Loans subject to the
Agreements, and the same are in full force and effect and have not
been revoked, repealed or amended. Attached as Exhibit II hereto is a
true and correct copy of the Certificate of Incorporation of
PacificAmerica which is in full force and effect on the date hereof.
Attached as Exhibit III is a true and correct copy of the By-Laws of
PacificAmerica which continue in force on the date hereof. Attached as
Exhibit IV hereto is a true and correct copy of the Good Standing
Certificate of PacificAmerica dated June 22, 1998.
5. Any necessary consents, approvals, authorizations or order
of any court or governmental agency or body, which are required for
the execution, delivery and
performance by the Seller of or compliance by the Seller with the
Agreement, the sale of the Subsequent Mortgage Loans as evidenced by
the Agreement, or the consummation of the transactions contemplated by
the Agreement, have been obtained. The Agreement and all related
agreements have been authorized by the Board of Directors of the
Seller, such authorization being reflected in the minutes of that Board
and shall be maintained from the date of their execution as records of
the Seller. The Agreement and related agreements are and will be from
the time of their execution official records of the Seller.
6. Each of the obligations of the Seller required to be
performed by it on or prior to the Subsequent Transfer Date pursuant to
the terms of the Agreement have been duly performed and complied with
and all of the representations and warranties of the Seller under the
Agreement are true and correct as of the Subsequent Transfer Date and
no event has occurred which, with notice or the passage of time, would
constitute a default under the Agreement.
7. Each condition precedent specified in Section 2.2 and
Section 2.3 of the Agreement and each condition precedent specified in
the Subsequent Transfer Instrument has been satisfied by the Seller.
Capitalized terms not defined herein have the meanings set
forth in the Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Seller.
Dated: July 7, 1998
By: /s/ Xxxxxxx Xxxxxx
------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
ATTACHMENT C
OFFICER'S CERTIFICATE OF
PACIFICAMERICA MONEY CENTER, INC.
RE: Note Insurer approval of Subsequent Mortgage Loans
July 7, 1998
Bankers Trust Company
of California, N.A.
0 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Re: Home Equity Loan Purchase Agreement, dated as of June 22, 1998
(the "Purchase Agreement"), among PacificAmerica Money Center,
Inc. (the "Seller"), PacificAmerica Home Equity Loan Trust Series
1998-2F, a Delaware business trust (the "Issuer"), Bankers Trust
Company of California, N.A., as indenture trustee (the "Indenture
Trustee") and Xxxxxxx Xxxxx Mortgage Investors, Inc., relating to
PacificAmerica Home Equity Loan Asset-Backed Notes and
Certificates, Series 1998-2F (Subsequent Mortgage Loan Transfer
July 7, 1998
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Ladies and Gentleman:
In accordance with Section 2.3(b)(vi) of the above-captioned
Purchase Agreement, the undersigned hereby certifies the following:
(a) The Subsequent Mortgage Loans identified on the Subsequent Mortgage
Loan Schedule attached to the related Subsequent Transfer Instrument delivered
by the Seller on July 7, 1998 conform to the representations and warranties of
the Insurance Agreement (the "Insurance Agreement") dated as of June 25, 1998
among Financial Security Assurance (the "Note Insurer"), PacificAmerica Money
Center, Inc., the PacificAmerica Home Equity Loan Trust Series 1998-2F, Xxxxxxx
Xxxxx Mortgage Investors, Inc. and Bankers Trust Company of California, N.A. and
the Note Insurer has informed the Seller that the Subsequent Mortgage Loans are
acceptable to the Note Insurer in its sole discretion.
(b) The undersigned is a duly authorized representative of the Seller
and is authorized to execute and deliver this certificate.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name.
PACIFICAMERICA MONEY CENTER, INC.
Dated: July 7, 1998 By:/s/ Xxxxxxx Xxxxxx
----------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
