MORTGAGE LOAN PURCHASE AGREEMENT
This is a Purchase Agreement (the "Agreement"), dated as of February
1, 1999, by and between Xxxxxx Capital, a Division of Xxxxxx Brothers Holdings
Inc., having an office at American Express Tower 8th Floor, World Financial
Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Purchaser") and First
Nationwide Mortgage Corporation, having an office at 0000 Xxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 (the "Seller").
W I T N E S S E T H
WHEREAS, the Seller agrees to sell, and the Purchaser agrees to
purchase, certain conventional residential fixed rate mortgage loans (the
"Mortgage Loans") described on the Closing Schedule (as defined herein) on a
servicing retained basis as described herein;
WHEREAS, the Mortgage Loans shall be delivered as whole loans;
WHEREAS, the parties intend hereby to set forth the terms and
conditions upon which the proposed transactions will be effected;
NOW THEREFORE, in consideration of the promises and the mutual
agreements set forth herein, the parties hereto agree as follows:
SECTION 1. All capitalized terms not otherwise defined herein have
the respective meanings set forth in the Seller's Warranties and Servicing
Agreement, dated as of the date herewith (the "Seller's Warranties and
Servicing Agreement").
SECTION 2. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase on a servicing retained basis, Mortgage Loans
having an aggregate principal balance on the Cut-off Date in an amount as set
forth in the Purchase Price and Terms Letter, from the Purchaser to the Seller,
dated as of January 11, 1999 (the "Purchase Price and Terms Letter"), or in
such other amount as agreed by the Purchaser and the Seller as evidenced by the
actual aggregate principal balance of the Mortgage Loans accepted by the
Purchaser on the Closing Date. The Mortgage Loans will be delivered pursuant to
a Seller's Warranties and Servicing Agreement, Group [1999-FN-01] between the
Purchaser and the Seller.
SECTION 3. Mortgage Schedules. The Seller has provided the Purchaser
with certain information constituting a preliminary listing of each of the Pool
1 Mortgage Loans, Pool 2 Mortgage Loans and Pool 3 Mortgage Loans to be
purchased under this Agreement (the "Preliminary Mortgage Schedule"). The
Purchaser shall select from among the Mortgage Loans listed on the Preliminary
Mortgage Schedule such Mortgage Loans that satisfy the pool parameters for
Group [1999-FN-01] as set forth in the Purchase Price and Terms Letter (subject
to a variance of + or - 5%) and shall create a schedule for Group [1999-FN-01]
listing such Mortgage Loans substantially in the form attached hereto as
Exhibit 5. Following such selection and any additional adjustments as specified
in the following paragraph, and prior to the Closing Date, the Seller and the
Purchaser shall agree upon a final mortgage schedule for each of the Pool 1
Mortgage Loans, Pool 2 Mortgage Loans and Pool 3 Mortgage Loans for Group
[1999-FN-01] (the "Closing Schedule"), setting forth all of the Mortgage Loans
to be purchased under this Agreement. The Closing Schedule shall include, for
each Mortgage Loan, the information contained in the definition of "Mortgage
Loan Schedule" under the Seller's Warranties and Servicing Agreement. The
Closing Schedule shall be used as the Mortgage Loan Schedule under the related
Seller's Warranties and Servicing Agreement.
The Seller shall deliver the proposed Closing Schedule to the
Purchaser four (4) Business Days prior to the Closing Date. The proposed
Closing Schedule shall be adjusted on or before the Closing Date as follows:
(a) the Seller shall delete (i) those Mortgage Loans identified by the
Purchaser prior to the Closing Date as not conforming to its requirements (ii)
those Mortgage Loans which have been prepaid in full prior to the Cut-off Date,
or as to which the representations and warranties of the Seller (as described
in Section 6 hereof) cannot be made as of the Closing Date; and (b) the Seller
shall substitute, for those Mortgage Loans deleted in (a) above, those Mortgage
Loans acceptable to the Purchaser to the extent necessary to comply with
Section 2 of the Purchase Price and Terms Letter.
SECTION 4. Purchase Price. The purchase price for each of the Pool 1
Mortgage Loans, Pool 2 Mortgage Loans and Pool 3 Mortgage Loans (the "Purchase
Price") shall be the related percentage of par as stated in the Purchase Price
and Terms Letter, multiplied by the aggregate principal balance, as of the
Cut-off Date, of the Mortgage Loans listed on the related Closing Schedule,
after application of scheduled payments of principal due on or before the
Cut-off Date whether or not collected.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, at closing, accrued interest on the aggregate
principal amount of the Mortgage Loans as of the Cut-off Date at the weighted
average Mortgage Loan Remittance Rate from the Cut-off Date through the day
prior to the Closing Date, inclusive.
The Purchaser shall be entitled to (1) all scheduled principal due
after the Cut-off Date, (2) all other recoveries of principal collected after
the Cut-off Date (provided, however, that all scheduled payments of principal
due on or before the Cut-off Date and collected by the Seller under the
Seller's Warranties and Servicing Agreement after the Cut-off Date shall belong
to the Seller), and (3) all payments of interest on the Mortgage Loans at the
Mortgage Loan Remittance Rate (minus that portion of any such payment which is
allocable to the period prior to the Cut-off Date). The principal balance of
each Mortgage Loan as of the Cut-off Date is determined after application of
payments of principal due on or before the Cut-off Date whether or not
collected. Therefore, payments of scheduled principal and interest prepaid for
a due date beyond the Cut-off Date shall not be applied to the principal
balance as of the Cut-off Date. Such prepaid amounts (minus interest at the
Servicing Fee Rate) shall be the property of the Purchaser. The Seller shall
deposit any such prepaid amounts into the Custodial Account, which account is
established under the Seller's Warranties and Servicing Agreement for the
benefit of the Purchaser, for subsequent remittance by the Seller to the
Purchaser.
SECTION 5. Examination of Mortgage Files. Prior to the Closing Date,
the Seller shall (a) deliver to the Purchaser or its designee in escrow, for
examination, for each Mortgage Loan, the Mortgage Loan Documents described on
Exhibit B-1 to the Seller's Warranties and Servicing Agreement, and (b) make
the Mortgage Files available to the Purchaser for examination at the Seller's
offices or such other location as shall otherwise be agreed upon by the
Purchaser and the Seller. Such examination may be made by the Purchaser, or by
any prospective purchaser of the Mortgage Loans from the Purchaser, at any time
before or after the Closing Date upon prior reasonable notice to the Seller. If
the Purchaser makes such examination prior to the Closing Date and identifies
any Mortgage Loans which do not conform to its requirements, such Mortgage
Loans shall be deleted from the Closing Schedule, and, pursuant to Section 3 of
this Agreement, may be replaced by substitute Mortgage Loans acceptable to the
Purchaser. The Purchaser may, at its option and without notice to the Seller,
purchase all or part of the Mortgage Loans without conducting any partial or
complete examination. The fact that the Purchaser or any prospective purchaser
of the Mortgage Loans has conducted or has failed to conduct any partial or
complete examination of the Mortgage Files shall not affect the Purchaser's (or
any of its successor's) rights to demand repurchase, substitution or other
relief as provided under the related Seller's Warranties and Servicing
Agreement.
SECTION 6. Representations, Warranties and Agreements of Seller. The
Seller agrees and acknowledges that it shall, as a condition to the
consummation of the transactions contemplated hereby, make the representations
and warranties specified in Sections 3.01 and 3.02 of the Seller's Warranties
and Servicing Agreement, as of the date specified in the Seller's Warranties
and Servicing Agreement. The Seller, without conceding that the Mortgage Loans
are securities, hereby makes the following additional representations,
warranties and agreements which shall be deemed to have been made as of the
Closing Date:
a) neither the Seller nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of any Mortgage Loans, any
interest in any Mortgage Loans or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of any
Mortgage Loans, any interest in any Mortgage Loans or any other similar
security from, or otherwise approached or negotiated with respect to any
Mortgage Loans, any interest in any Mortgage Loans or any other similar
security with, any person, other than the Purchaser, in any manner, or made any
general solicitation by means of general advertising or in any other manner, or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933 (the "1933 Act") or which would render
the disposition of any Mortgage Loans a violation of Section 5 of the 1933 Act
or require registration pursuant thereto, nor will it act, nor has it
authorized or will it authorize any person to act, in such manner with respect
to the Mortgage Loans; and
b) the Seller has not dealt with any broker or agent or anyone else
who might be entitled to a fee or commission in connection with this
transaction other than the Purchaser.
SECTION 7. Representations, Warranties and Agreement of Purchaser.
The Purchaser, without conceding that the Mortgage Loans are securities, hereby
makes the following representations, warranties and agreements, which shall
have been deemed to have been made as of the Closing Date:
a) the Purchaser understands that the Mortgage Loans have not been
registered under the 1933 Act or the securities laws of any state;
b) the Purchaser is acquiring the Mortgage Loans for its own account
only and not for any other person;
c) the Purchaser considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans;
d) the Purchaser has been furnished with all information regarding
the Mortgage Loans which it has requested from the Seller or the Company; and
e) neither the Purchaser nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any
interest in any Mortgage Loan or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of any
Mortgage Loan, any interest in any Mortgage Loan or any other similar security
from, or otherwise approached or negotiated with respect to any Mortgage Loan,
any interest in any Mortgage Loan or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action which would
constitute a distribution of the Mortgage Loans under the 1933 Act or which
would render the disposition of any Mortgage Loan a violation of Section 5 of
the 1933 Act or require registration pursuant thereto, nor will it act, nor has
it authorized or will it authorize any person to act, in such manner with
respect to the Mortgage Loans.
SECTION 8. Closing. The closing for the purchase and sale of the
Mortgage Loans, shall take place on the Closing Date. At the Purchaser's
option, the Closing shall be either: by telephone, confirmed by letter or wire
as the parties shall agree; or conducted in person, at such place as the
parties shall agree.
The closing shall be subject to each of the following conditions:
a) all of the representations and warranties of the Seller under
this Agreement and under the Seller's Warranties and Servicing
Agreement shall be true and correct as of the Closing Date and
no event shall have occurred which, with notice or the passage
of time, would constitute a default under this Agreement or an
Event of Default under the Seller's Warranties and Servicing
Agreement;
b) the Purchaser and the Seller shall have received, or the
Purchaser's attorneys shall have received in escrow, all Closing
Documents as specified in Section 9 of this Agreement, in such
forms as are agreed upon and acceptable to the Purchaser, duly
executed by all signatories other than the Purchaser as required
pursuant to the respective terms thereof;
c) the Seller shall have delivered and released to the Custodian
under the Seller's Warranties and Servicing Agreement all
documents required pursuant to the related Custodial Agreement;
and
d) all other terms and conditions of this Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the Closing Date the Purchase Price, plus accrued interest pursuant
to Section 3 of this Agreement, by wire transfer of immediately available funds
to the account designated by the Seller.
SECTION 9. Closing Documents. With respect to Group [1999-FN-01] the
Closing Documents shall consist of fully executed originals of the following
documents:
1. the Seller's Warranties and Servicing Agreement for Group
[1999-FN-01], dated as of the Cut-off Date, in two
counterparts;
2. a Custodian's Certification, as required under the
Custodial Agreement;
3. a Custodial Account Certification or Custodial Account
Letter Agreement as required under the Seller's Warranties
and Servicing Agreement;
4. an Escrow Account Certification or Escrow Account Letter
Agreement, as required under the Seller's Warranties and
Servicing Agreement (if required); and
5. an Officer's Certificate, in the form of Exhibit 1 hereto,
including all attachments thereto;
6. an Opinion of Counsel of the Seller in the form of Exhibit
2 hereto;
7. if applicable, a Security Release Certification, in the
form of Exhibit 3 hereto (for a Seller which is a member of
the Federal Home Loan Bank System), executed by the
applicable regional Federal Home Loan Bank and, if
applicable, in the form of Exhibit 4 hereto executed by any
other person, as requested by the Purchaser, if any of the
Mortgage Loans have at any time been subject to any
security interest, pledge or hypothecation for the benefit
of such person;
8. a Certificate of other evidence of merger or change of
name, signed or stamped by the applicable regulatory
authority, if any of the Mortgage Loans were acquired by
the Seller by merger or acquired or originated by the
Seller while conducting business under a name other than
its present name;
9. The Escrow Agreement, dated as of February 1, 1999,
executed among Xxxxxx Capital as Purchaser, First
Nationwide Mortgage Corporation as Seller and Cadwalader,
Xxxxxxxxxx & Xxxx, as the Escrow Agent; and
10. The Assignment and Assumption Agreement, dated as of
February 11, 1999, between Xxxxxx Capital, as the Assignor,
and First Nationwide Mortgage Corporation, as the Assignee,
relating to the Custodial Agreement.
SECTION 10. Costs. The Purchaser shall pay any commissions due its
salesmen and the legal fees and expenses of its attorneys and all custodial
fees and expenses. All other costs and expenses incurred in connection with the
transfer and delivery of the Mortgage Loans, including recording fees for the
initial recordation of assignments of mortgage to Purchaser or its designee and
the Seller's attorney's fees, shall be paid by the Seller.
SECTION 11. Servicing. The Mortgage Loans shall be serviced by the
Seller in accordance with the terms of the Seller's Warranties and Servicing
Agreement. The Seller shall be entitled to servicing fees calculated as
provided therein.
SECTION 12. Mandatory Delivery, Grant of Security Interest. The sale
and delivery on the Closing Date of the Mortgage Loans described on the Closing
Schedule is mandatory, it being specifically understood and agreed that each
Mortgage Loan is unique and identifiable on the date hereof and that an award
of money damages would be insufficient to compensate the Purchaser for the
losses and damages incurred by the Purchaser (including damages to prospective
purchasers of the Mortgage Loans) in the event of the Seller's failure to
deliver the Mortgage Loans on or before the Closing Date. The Seller hereby
grants to the Purchaser a lien on and a continuing security interest in each
Mortgage Loan and each document and instrument evidencing each such Mortgage
Loan to secure the performance by the Seller of its obligation hereunder, and
the Seller agrees that it holds such Mortgage Loans in custody for the
Purchaser subject to the Purchaser's (i) right to reject any Mortgage Loan
under the terms of this Agreement and to require another Mortgage Loan to be
substituted therefor, and (ii) obligation to pay the Purchase Price for the
Mortgage Loans. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under this
Agreement or afforded by law or equity and all such rights and remedies may be
exercised concurrently, independently or successively.
SECTION 13. Protection of Confidential Information. The Seller shall
keep confidential and shall not divulge to any party, without the Purchaser's
prior written consent, the price paid by the Purchaser for the Mortgage Loans,
except to the extent that it is appropriate for the Seller to do so in working
with legal counsel, courts, auditors, taxing authorities or other governmental
agencies.
SECTION 14. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, return receipt requested, or, if by
other means, when received by the other party at the address in Section 12.05
of the Seller's Warranties and Servicing Agreement, or such other address as
may hereafter be furnished to the other party by like notice. Any such demand,
notice or communication hereunder shall be deemed to have been received on the
date delivered to or received at the premises of the addressee (as evidenced,
in the case of registered or certified mail, by the date noted on the return
receipt).
SECTION 15. Severability Clause. Any part, provision, representation
or warranty of this Agreement which is prohibited or which is held to be void
or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any
part, provision, representation or warranty of this Agreement which is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which
prohibits or renders void or unenforceable any provision hereof. If the
invalidity of any part, provision, representation or warranty of this Agreement
shall deprive any party of the economic benefit intended to be conferred by
this Agreement, the parties shall negotiate, in good-faith, to develop a
structure the economic effect of which is as close as possible to the economic
effect of this Agreement without regard to such invalidity.
SECTION 16. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original, and all such counterparts shall constitute one and the same
instrument.
SECTION 17. Place of Delivery and Governing Law. This Agreement shall
be deemed in effect when a fully executed counterpart thereof is received by
the Purchaser in the State of New York and shall be deemed to have been made in
the State of New York. The Agreement 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 the laws of the State
of New York, except to the extent preempted by Federal law.
SECTION 18. 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 appropriate to effectuate the
purposes of this Agreement.
SECTION 19. Intention of the Parties. It is the intention of the
parties that the Purchaser is purchasing, and the Seller is selling on a
servicing retained basis, an undivided 100% ownership interest in the Mortgage
Loans and not a debt instrument of the Seller or another security. Accordingly,
the parties hereto each intend to treat the transaction for Federal income tax
purposes as a sale by the Seller, and a purchase by the Purchaser, of the
Mortgage Loans. Moreover, the arrangement under which the Mortgage Loans are
held shall be consistent with classification of such arrangement as a grantor
trust in the event it is not found to represent direct ownership of the
Mortgage Loans. The Purchaser shall have the right to review the Mortgage Loans
and the related Mortgage Files to determine the characteristics of the Mortgage
Loans which shall affect the Federal income tax consequences of owning the
Mortgage Loans and the Seller shall cooperate with all reasonable requests made
by the Purchaser in the course of such review.
SECTION 20. Successors and Assigns; Assignment of Purchase Agreement.
This Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective successors and assigns of the
Seller and the Purchaser. This Agreement shall not be assigned, pledged or
hypothecated by the Seller to a third party without the consent of the
Purchaser.
SECTION 21. Waivers; Other Agreements. No term or provision of this
Agreement may be waived or modified unless such waiver or modification is in
writing and signed by the party against whom such waiver or modification is
sought to be enforced.
SECTION 22. Exhibits. The exhibits to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
SECTION 23. General Interpretive Principles. For purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions
of this Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
SECTION 24. Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 25. Entire Agreement. This Agreement and the Seller's
Warranties and Servicing Agreement contain the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof and thereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or
written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof and thereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.
(Purchaser)
By:/s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
FIRST NATIONWIDE MORTGAGE
CORPORATION
(Seller)
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------
Name:Xxxxxx X. Xxxxxx
Title: Executive Vice President
EXHIBIT 1
COMPANY'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of First Nationwide Mortgage Corporation, a corporation
organized under the laws of the state of Delaware, (the "Company") and further
as follows:
1. Attached hereto as Exhibit A is a true, correct and complete copy
of the charter of the Company which is in full force and effect on the
date hereof and which has been in effect without amendment, waiver,
rescission or modification since February __, 1999.
2. Attached hereto as Exhibit B is a true, correct and complete copy
of the bylaws of the Company which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification since February __, 1999.
3. Attached hereto as Exhibit C is an original certificate of good
standing of the Company, issued within ten days of the date hereof, and no
event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit D is a certificate of the Company's
assistant secretary regarding the Company's authority to execute and
deliver each of the Purchase Agreement, the Seller's Warranties and
Servicing Agreement, and the Custodial Agreement by original signature,
and to endorse the Mortgage Notes and execute the Assignments of Mortgages
by original [or facsimile] signature. The portion of the Company's
Corporate Policy Manual referred to therein is in effect on the date
hereof and have been in effect without amendment, waiver rescission or
modification since January 27, 1997.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Mortgage Loan Purchase Agreement, dated as of February __, 1999
(the "Purchase Agreement"), by and between the Company and Xxxxxx Capital,
a Division of Xxxxxx Brothers Holdings Inc. (the "Purchaser"), the
Seller's Warranties and Servicing Agreement, dated as of February ___,
1999, by and between the Company and the Purchaser (the "Seller's
Warranties and Servicing Agreement") and the Custodial Agreement dated as
of February __, 1999 (the "Custodial Agreement") by and among the Company,
the Purchaser and First Trust National Association (the "Custodian")] or
the sale of the mortgage loans or the consummation of the transactions
contemplated by the Agreements; or (ii) any required consent, approval,
authorization or order has been obtained by the Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Purchase Agreement, the Seller's
Warranties and Servicing Agreement and the Custodial Agreement, conflicts
or will conflict with or results or will result in a breach of or
constitutes or will constitute a default under the charter or by-laws of
the Company, the terms of any indenture or other agreement or instrument
to which the Company is a party or by which it is bound or to which it is
subject, or any statute or order, rule, regulations, writ, injunction or
decree of any court, governmental authority or regulatory body to which
the Company is subject or by which it is bound.
7. To the best of my knowledge, there is no action, suit, proceeding
or investigation pending or threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on the part of
the Company or which would draw into question the validity of the Purchase
Agreement, the Seller's Warranties and Servicing Agreement, the Custodial
Agreement or the mortgage loans or of any action taken or to be taken in
connection with the transactions contemplated hereby, or which would be
likely to impair materially the ability of the Company to perform under
the terms of the Purchase Agreement, the Seller's Warranties and Servicing
Agreement or the Custodial Agreement.
8. The Company is duly authorized to engage in the transactions
described and contemplated in the Purchase Agreement, the Seller's
Warranties and Servicing Agreement and the Custodial Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated: By:
----------------------------- ----------------------------
Name:
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of First
Nationwide Mortgage Corporation, hereby certify that ____________ is the duly
elected, qualified and acting [Vice] President of the Company and that the
signature appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: By:
----------------------------- ----------------------------
Name:
Title: [Assistant] Secretary
EXHIBIT 1
Company's Officer's Certificate
Name Title Signature
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EXHIBIT 2
[FORM OF OPINION OF COUNSEL TO THE SELLER]
(date)
Xxxxxx Capital, a Division of
Xxxxxx Brothers Holdings Inc.
American Express Tower, 8th Floor
World Financial Center
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
You have requested my opinion, as First Vice President and Counsel to
First Nationwide Mortgage Corporation (the "Company"), with respect to certain
matters in connection with the sale by the Company of the Mortgage Loans
pursuant to that certain Purchase Agreement by and between the Company and
Xxxxxx Capital, a Division of Xxxxxx Brothers Holdings Inc. (the "Purchaser")
dated as of _______ , (the "Purchase Agreement") which sale is in the form of
whole Mortgage Loans delivered pursuant thereto, and to a Seller's Warranties
and Servicing Agreement, Group [1999-FN-01] dated as of ______, 1999 by and
between the Company and the Purchaser (the "Seller's Warranties and Servicing
Agreement") being executed contemporaneously with a Custodial Agreement by and
among the Company, the Purchaser and First Trust National Association (the
"Custodian") (the "Custodial Agreement"). Capitalized terms not otherwise
defined herein have the meanings set forth in the Purchase Agreement and the
Seller's Warranties and Servicing Agreement.
I have examined the following documents:
1. the Purchase Agreement;
2. the Seller's Warranties and Servicing Agreement;
3. the form of Assignment of Mortgage;
4. the form of endorsement of the Mortgage Notes; and
5. such other documents, records and papers as we have deemed
necessary and relevant as a basis for this opinion.
To the extent I have deemed necessary and proper, I have relied upon
the representations and warranties of thte Company contained in the Purchase
Agreement and in the Seller's Warranties and Servicing Agreement. 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.
Based upon the foregoing, it is my opinion that:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the state of Delaware and
is qualified to transact business in, and is in good standing
under, the laws of the state of Maryland.
2. The Company has the power to engage in the transactions
contemplated by the Purchase Agreement and the Seller's
Warranties and Servicing Agreement and all requisite power,
authority and legal right to execute and deliver the Purchase
Agreement, the Seller's Warranties and Servicing Agreement, the
Custodial Agreement, and to perform and observe the terms and
conditions of such instruments.
3. Each of the Purchase Agreement, the Seller's Warranties and
Servicing Agreement, and the Custodial Agreement has been duly
authorized, executed and delivered by the Company and is a
legal, valid and binding agreement enforceable in accordance
with its respective terms against the Company, subject to
bankruptcy laws and other similar laws of general application
affecting rights of creditors and subject to the application of
the rules of equity, including those respecting the availability
of specific performance, none of which will materially interfere
with the realization of the benefits provided thereunder or with
the Purchaser's ownership of the Mortgage Loans.
4. The Company has been duly authorized to allow its President to
execute any and all documents by original signature in order to
complete the transactions contemplated by the Purchase
Agreement, the Seller's Warranties and Servicing Agreement, and
the Custodial Agreement, and any of its officers, by original
[or facsimile] signature in order to execute the endorsements to
the Mortgage Notes and the Assignments of Mortgages, and the
original [or facsimile] signature of the officer at the Company
executing the endorsements to the Mortgage Notes and the
Assignments of Mortgages represents the legal and valid
signature of said officer of the Company.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Company of or
compliance by the Company with the Purchase Agreement, the
Seller's Warranties and Servicing Agreement, the Custodial
Agreement or the sale and delivery of the Mortgage Loans or the
consummation of the transactions contemplated by the Purchase
Agreement and the Seller's Warranties and Servicing Agreement;
or (ii) any required consent, approval, authorization or order
has been obtained by the Company.
6. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of, the Purchase Agreement, the
Seller's Warranties and Servicing Agreement, the Custodial
Agreement or the Mortgage Loans conflicts or will conflict with
or results or will result in a breach of or constitutes or will
constitute a default under the charter or by-laws of the
Company, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is
bound or to which it is subject, or violates any statute or
order, rule, regulations, writ, injunction or decree of any
court, governmental authority or regulatory body to which the
Company is subject or by which it is bound.
7. There is no action, suit, proceeding or investigation pending
or, to the best of my knowledge, threatened against the Company
which, in my judgment, either in any one instance or in the
aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets
of the Company or in any material impairment of the right or
ability of the Company to carry on its business substantially as
now conducted or in any material liability on the part of the
Company or which would draw into question the validity of the
Purchase Agreement, the Mortgage Loans, the Seller's Warranties
and Servicing Agreement, [the Custodial Agreement] or the
Mortgage Loans or of any action taken or to be taken in
connection with the transactions contemplated thereby, or which
would be likely to impair materially the ability of the Company
to perform under the terms of the Purchase Agreement, the
Mortgage Loans, the Custodial Agreement or the Seller's
Warranties and Servicing Agreement.
8. The sale of each Mortgage Note and Mortgage as and in the manner
contemplated by the Purchase Agreement and the Seller's
Warranties and Servicing Agreement is sufficient fully to
transfer to the Purchaser all right, title and interest of the
Company thereto as noteholder and mortgagee.
9. The Mortgages have been duly assigned and the Mortgage Notes
have been duly endorsed as provided in the Custodial Agreement.
The Assignments of Mortgage are in recordable form, except for
the insertion of the name of the assignee, and upon the name of
the assignee being inserted, are acceptable for recording under
the laws of the state where each related Mortgaged Property is
located. The endorsement of the Mortgage Notes, the delivery to
the Custodian of the Assignments of Mortgage, and the delivery
of the original endorsed Mortgage Notes to the Custodian are
sufficient to permit the Purchaser to avail itself of all
protection available under applicable law against the claims of
any present or future creditors of the Company, and are
sufficient to prevent any other sale, transfer, assignment,
pledge or hypothecation of the Mortgages and the Mortgage Notes
by the Company from being enforceable.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans as
contemplated in the Transaction Documents may rely on this opinion as if it
were addressed to them as of its date.
Very truly yours,
--------------------------------
Xxxxx X. Xxxxx
First Vice President and Counsel
EXHIBIT 3
SECURITY RELEASE CERTIFICATION
___________________, 199_
Federal Home Loan Bank of
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Attention: ---------------------------------------
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Re: Notice of Sale and Release of Collateral
Dear Sirs:
This letter serves as notice that First Nationwide Mortgage
Corporation, a [state] [federally] chartered savings and loan association [in
the state of ___________] (the "Association") has committed to sell to Xxxxxx
Capital, a Division of Xxxxxx Brothers Holdings Inc. ("LCC") under a Purchase
Agreement dated as of February __, 1999, certain mortgage loans originated by
the Association. The Association warrants that the mortgage loans to be sold to
LCC are in addition to and beyond any collateral required to secure advances
made by you to the Association.
The Association acknowledges that the mortgage loans to be sold to
LCC shall not be used as additional or substitute collateral for advances made
by you. LCC understands that the balance of the Association's mortgage loan
portfolio may be used as collateral or additional collateral for advances made
by you, and confirms that it has no interest therein.
Execution of this letter by the Federal Home Loan Bank of
_________________________ shall constitute a full and complete release of any
security interest, claim, or lien which the Federal Home Loan Bank of
_____________________ may have against the mortgage loans to be sold to LCC.
Very truly yours,
First Nationwide Mortgage Corporation
By:
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Name:
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Title:
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Date:
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Acknowledged and approved:
FEDERAL HOME LOAN BANK OF
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By:
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Name:
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Title:
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Date:
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EXHIBIT 4
SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and all right,
title and interest it may have in all Mortgage Loans to be purchased by Xxxxxx
Capital, a Division of Xxxxxx Brothers Holdings Inc. from the Company named
below pursuant to that certain Purchase Agreement, dated as of February __,
1999, and certifies that all notes, mortgages, assignments and other documents
in its possession relating to such Mortgage Loans have been delivered and
released to the Company named below or its designees, as of the date and time
of the sale of such Mortgage Loans to Xxxxxx Capital, a Division of Xxxxxx
Brothers Holdings Inc.
Name and Address of Financial Institution
(name)
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(Address)
By:
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II. Certification of Release
The Company named below hereby certifies to Xxxxxx Capital, a
Division of Xxxxxx Brothers Holdings Inc. that, as of the date and time of the
sale of the abovementioned Mortgage Loans to Xxxxxx Capital, a Division of
Xxxxxx Brothers Holdings Inc., the security interests in the Mortgage Loans
released by the abovenamed financial institution comprise all security
interests relating to or affecting any and all such Mortgage Loans. The Company
warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
First Nationwide Mortgage Corporation
By:
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Title:
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Date:
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EXHIBIT 5
SCHEDULE OF MORTGAGE LOANS
EXHIBIT 6
FIRST NATIONWIDE MORTGAGE CORPORATION
CERTIFICATE OF ASSISTANT SECRETARY
I, Xxxxx X. Xxxxx, do certify that:
1. I am a duly appointed, qualified and acting Assistant Secretary of
First Nationwide Mortgage Corporation (the "Corporation") and I am duly
empowered to execute this Certificate on behalf of the Corporation.
2. The Corporation is a wholly owned subsidiary of California Federal
Bank, a Federal Savings Bank ("Bank").
3. The Corporate Policy Manual adopted by the Bank at its Board of
Directors meeting on January 27, 1997 and by the Corporation on July 21, 1997
authorizes the Corporation's President engage in transactions for the purchase
and sale of whole loans in amounts up to $500,000,000 without further Board of
Directors approval and to execute any and all purchase and sale agreements and
other documents necessary to effectuate a transaction.
4. The persons listed below are duly appointed, qualified and acting
officers of the Corporation and hold the offices and titles listed opposite
their names.
Xxxxxx X. Xxxxx, Xx. President
IN WITNESS WHEREOF, I executed this Certificate and affixed the seal
of the Corporation on __________, 1999.
---------------------------------
Xxxxx X. Xxxxx
Assistant Secretary
