Mortgage Loan Purchase Agreement
Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of December 21, 2001 between ▇▇▇▇▇▇ Brothers Bank, FSB (the "Seller" or "▇▇▇▇▇▇
Bank") and ABN AMRO Mortgage Corporation (the "Purchaser").
Subject to the terms and conditions of this Agreement, the
Seller agrees to sell and the Purchaser agrees to purchase certain mortgage
loans (the "Mortgage Loans") as described herein and as identified on the
Mortgage Loan Schedule defined in Section 2 hereof. The Mortgage Loans were
purchased on a servicing retained basis by ▇▇▇▇▇▇ Bank from ABN AMRO Mortgage
Group, Inc. and the servicing rights as to the Mortgage Loans are not being
transferred under this Agreement.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
1. Purchase and Sale of the Mortgage Loans.
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(a) Pursuant to the terms hereof and upon satisfaction of the
conditions set forth herein, the Seller agrees to sell and the Purchaser agrees
to purchase, Mortgage Loans having the general characteristics set forth in this
Agreement and specifically identified on the Mortgage Loan Schedule, for the
Purchase Price set forth below in Section 3(a) hereof and having an aggregate
principal balance on and as of the date of such Mortgage Loan Schedule (the
"Cut-Off Date") of approximately $691,680,367 after deduction of principal
payments due on or before the Cut-Off Date (which amount may vary plus or minus
5% thereof), or such other aggregate principal balance 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 (as defined
below).
(b) Subject to mutual agreement between the Purchaser and the Seller,
the closing for the purchase and sale of the Mortgage Loans shall take place on
December 21, 2001 (the "Closing Date") at the office of Purchaser's counsel in
Chicago, Illinois or such other place as the parties shall agree.
2. Mortgage Loan Schedule. Attached to this Agreement as Schedule 1 is a listing
of the Mortgage Loans evidenced by promissory notes, mortgage notes or other
evidence of indebtedness (the "Mortgage Notes") evidencing the indebtedness of
an obligor (the "Mortgagor") under the mortgages, deeds of trust or other
instruments securing a Mortgage Loan (the "Mortgages") to be purchased by and
delivered to the Purchaser on the Closing Date (as such may be amended prior to
the Closing Date by mutual agreement of the parties) (the "Mortgage Loan
Schedule"). The "Mortgage Loan Schedule" as of the Closing Date shall refer to
the Mortgage Loan Schedule as delivered on the Cut-Off Date related to such
Mortgage Loans to be purchased by or on behalf of the Purchaser pursuant to the
terms of this Agreement. The Mortgage Loan Schedule shall contain as
to each Mortgage Loan listed thereon, at a minimum, the Mortgage Loan
information indicated on Schedule 2 hereto.
3. Purchase Price.
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(a) In exchange for the Mortgage Loans, on the Closing Date, the
Purchaser shall transfer to the Seller by wire transfer in immediately available
funds the purchase price (the "Purchase Price") which is equal to 101.210522% of
the principal balance thereof as of the Cut-Off Date plus any accrued and unpaid
interest thereon to such Cut-Off Date.
(b) The Purchaser shall be entitled to all scheduled payments of
principal and interest due with respect to the Mortgage Loans after the Cut-Off
Date, and all other recoveries of principal and interest collected after the
Cut-Off Date (other than in respect of principal and interest on the Mortgage
Loans due on or before the Cut-Off Date). The Seller shall be entitled to all
scheduled payments of principal and interest due with respect to the Mortgage
Loans on or before the Cut-Off Date, and all other recoveries of principal and
interest collected on or before the Cut-Off Date (other than in respect of
principal and interest on the Mortgage Loans due after the Cut-Off Date). The
principal balance of each Mortgage Loan as of the Cut-Off Date is determined
after deduction 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 date due following the Cut-Off Date shall not be deducted
from the principal balance as of the Cut-Off Date but such prepaid amounts shall
belong to and be promptly remitted to the Purchaser.
4. Examination of Mortgage Files.
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Prior to the Closing Date, the Seller will have made files for each
Mortgage Loan, that consist at least of the documents listed on Schedule 3
attached hereto (with respect to each Mortgage Loan, a "Mortgage File", and
collectively, the "Mortgage Files"), available to the Purchaser or its agents,
for examination at the Seller's offices or such other location as shall
otherwise be agreed upon by the Purchaser and the Seller. The Purchaser may
purchase all or part of the Mortgage Loans with or without conducting any
partial or complete examination. The fact that the Purchaser or its agents have
conducted or have failed to conduct any partial or complete examination of the
Mortgage Files shall not affect the Purchaser's rights under this Agreement,
including, but not limited to, the rights to demand repurchase, substitution or
other relief as provided in this Agreement.
5. Transfer of Mortgage Loans; Possession of Mortgage Files.
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(a) On the Closing Date, subject to the satisfaction of the terms and
conditions hereof, the Seller shall sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms of
this Agreement, all right, title and interest of the Seller in and to the
Mortgage Loans and all proceeds thereof, wherever located, including without
limitation, all amounts in respect of principal and interest received or
receivable with respect to Mortgage Loan
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payments due after the Cut-Off Date (and including scheduled payments of
principal and interest due after the Cut-Off Date but received by the Seller on
or before the Cut-Off Date, but not including payments of principal and interest
due on the Mortgage Loans on or before the Cut-Off Date), together with the
proceeds of any related mortgage insurance policies. Such transfer shall be made
directly to the Purchaser in accordance with the letter delivered to the Seller
by the Purchaser attached hereto as Exhibit A (the "Instruction Letter"). The
Seller's records will accurately reflect the sale of each Mortgage Loan to the
Purchaser.
(b) The ownership of each Mortgage Loan and the related Mortgage Note,
the Mortgage and the contents of the related Mortgage File shall be, upon
satisfaction of subsection 5(a) hereof, vested in the Purchaser and the
ownership of all records and documents with respect to such Mortgage Loan
prepared by or which come into the possession of the Seller shall immediately
vest in the Purchaser and shall be retained and maintained by the Seller at the
will and for the benefit of the Purchaser in a custodial capacity only. The
Seller shall deliver to the Purchaser or its agent in accordance with the
instructions set forth in Exhibit A, simultaneously with the execution and
delivery of this Agreement or prior to the Closing Date, all of the documents
pertaining to each Mortgage Loan.
(c) The transfer of the Mortgage Loans as described herein shall be
absolute and is intended by the parties to be a sale. In the event that a court
deems the conveyance set forth herein not to constitute a sale, the Seller shall
have granted to the Purchaser a first priority security interest in the Mortgage
Loans and in the proceeds thereof of any kind or nature whatsoever, and in the
proceeds of any related insurance policies, subject to the satisfaction or
waiver of the conditions set forth in Section 11 hereof, and shall take, or
shall cause to have been taken, all steps necessary prior to the Closing Date to
perfect such security interest in the Purchaser.
6. Books and Records.
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On the Closing Date, following the sale of the Mortgage Loans to the
Purchaser, title to each Mortgage and the related Mortgage Note shall be
transferred to the Purchaser or its assignee in accordance with this Agreement.
All rights arising out of the Mortgage Loans after the Cut-Off Date including,
but not limited to, any and all funds received on or in connection with a
Mortgage Loan and due after the Cut-Off Date shall be received and held by the
Seller in a custodial capacity for the benefit of the Purchaser or its assignee
as the owner of the Mortgage Loans in accordance herewith and shall be delivered
or caused to be delivered by the Seller to the Purchaser or its assignee on or
immediately following the Closing Date. Any funds received by the Seller, the
Purchaser or the Servicer (as defined in the Pooling and Servicing Agreement,
dated as of December 1, 2001 (the "Pooling and Servicing Agreement"), among the
Purchaser, as depositor, ABN AMRO Mortgage Group, Inc., as servicer, and
JPMorgan Chase Bank, as trustee) after the Cut-Off Date but due prior to the
Cut-Off Date shall remain the property of the Seller and shall be promptly
remitted to the Seller.
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7. Further Actions; Financing Statements.
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(a) In furtherance of the provisions of Section 5(c) hereof, the Seller
agrees to take or cause to be taken such further actions to execute, deliver and
file or cause to be executed, delivered and filed, such further documents and
instruments (including, without limitation, any UCC financing statements) as may
be necessary, or as the Purchaser may reasonably request, in order to perfect
and maintain the security interest created pursuant to said section and to
otherwise fully effectuate the purposes, terms and conditions of this Agreement,
and the Purchaser shall cooperate in any such action.
(b) The Seller shall: (i) promptly execute, deliver, and file any
financing statements, amendments, continuation statements, assignments,
certificates and other documents with respect to such security interest as may
be necessary to enable the Purchaser to perfect or to maintain the perfection of
such security interest, each in form and substance satisfactory to the
Purchaser; and the Seller hereby grants to the Purchaser, subject to the
satisfaction or waiver of the conditions set forth in Section 11 hereof, the
right, at the Purchaser's option, to file any or all such financing statements,
amendments, continuation statements, assignments, certificates and other
documents pursuant to the UCC and otherwise without its signature and hereby
irrevocably appoints the Purchaser, subject to the satisfaction or waiver of the
conditions set forth in Section 11 hereof, as its attorney-in-fact to execute,
deliver and file any such financing statements, amendments, continuation
statements, assignments, certificates and other documents in the Seller's name
and to perform all other acts which the Purchaser deems appropriate to perfect
or to maintain the perfection of the security interest; and (ii) notify the
Purchaser within five (5) days after the occurrence of any of the following: (A)
any change in the Seller's corporate name or any trade name; (B) any change in
the Seller's location of its chief executive office or principal place of
business; and (C) any merger or consolidation or other change in Seller's
identity or material change in its corporate structure.
8. Representations, Warranties and Agreements of Seller.
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(a) The Seller hereby represents and warrants to the Purchaser as of
the Closing Date (or such other date as is specified in the related
representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing
as a federal savings bank under the laws of the United States;
(ii) The execution and delivery of this Agreement by the
Seller and its performance of and compliance with the terms of this Agreement
will not violate the Seller's charter or by-laws or will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Seller is a party or by which the Seller or
to which any of the property or assets of the Seller is subject;
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(iii) This Agreement, assuming due authorization, execution
and delivery by the Purchaser, constitutes a valid and legally binding
obligation of the Seller, enforceable against the Seller in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles, regardless of whether such enforcement
is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Seller or its properties or might have consequences that would
affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit its entering into
this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer
for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by
the Seller pursuant to this Agreement is not subject to the bulk transfer or any
similar statutory provisions in effect in the State of New Jersey;
(viii) With respect to each Mortgage Loan:
(1) that the information set forth in the Mortgage
Loan Schedule appearing as an exhibit to this Agreement is true and correct in
all material respects at the date or dates respecting which such information is
furnished as specified therein;
(2) the Seller is the sole owner and holder of each
Mortgage Loan free and clear of all liens, pledges, charges or security
interests of any nature and has full right and authority, subject to no interest
or participation of, or agreement with, any other party, to sell and assign the
same;
(3) no payment of principal of or interest on or in
respect of any Mortgage Loan is 30 days or more past due from the Due Date of
such payment, other than with respect to 2.2% of the Mortgage Loans, as to which
no payment of principal of or interest on or in respect of any Mortgage Loan is
60 days or more past due from the Due Date of such payment;
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(4) to the best of the Seller's knowledge, as of the
date of the transfer of the Mortgage Loans to the Purchaser, there is no valid
offset, defense or counterclaim to any Mortgage Note or Mortgage;
(5) there is no proceeding pending, or to the best of
the Seller's knowledge, threatened for the total or partial condemnation of any
of the real property, together with any improvements thereto, securing the
indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged
Property") and the Mortgaged Property is free of material damage and is in good
repair and neither the Mortgaged Property nor any improvement located on or
being part of the Mortgaged Property is in violation of any applicable zoning
law or regulation;
(6) that each Mortgage Loan complies in all material
respects with applicable state or federal laws, regulations and other
requirements, pertaining to usury, equal credit opportunity and disclosure laws,
and each Mortgage Loan was not usurious at the time of origination;
(7) to the best of the Seller's knowledge, all
insurance premiums previously due and owing with respect to each Mortgaged
Property have been paid and all taxes and governmental assessments previously
due and owing, and which may become a lien against the Mortgaged Property, with
respect to the Mortgaged Property have been paid;
(8) that each Mortgage Note and the related Mortgage
are genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms except as such enforcement may
be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general equity
principles (regardless of whether such enforcement is considered in a proceeding
in equity or at law); all parties to the Mortgage Note and the Mortgage had
legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage
Note and Mortgage have been duly and properly executed by the Mortgagor;
(9) that each Mortgage is a valid and enforceable
first lien on the property securing the related Mortgage Note, and that each
Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other
form of policy or insurance generally acceptable to FNMA or FHLMC, issued by,
and is a valid and binding obligation of, a title insurer acceptable to FNMA or
FHLMC insuring the originator, its successor and assigns, as to the lien of the
Mortgage in the original principal amount of the Mortgage Loan subject only to
(a) the lien of current real property taxes and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record as of the date of recording of such Mortgage
acceptable to mortgage lending institutions in the area in which the Mortgaged
Property is located or specifically referred to in the appraisal performed in
connection with the origination of the related Mortgage Loan and (c) such other
matters to which like properties are commonly subject which do not individually,
or in the aggregate, materially interfere with the benefits of the security
intended to be provided by the Mortgage;
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(10) neither the Seller nor any prior holder
of any Mortgage has, except as the Mortgage File may reflect, modified the
Mortgage in any material respect; satisfied, cancelled or subordinated such
Mortgage in whole or in part; released such Mortgaged Property in whole or in
part from the lien of the Mortgage; or executed any instrument of release,
cancellation, modification or satisfaction;
(11) that each Mortgaged Property consists
of a fee simple estate or condominium form of ownership in real property;
(12) the condominium projects that include
the condominiums that are the subject of any condominium loan are generally
acceptable to FNMA or FHLMC;
(13) no foreclosure action is threatened or
has been commenced (except for the filing of any notice of default) with respect
to the Mortgage Loan; and except for payment delinquencies not in excess of 30
days, to the best of the Seller's knowledge, there is no default, breach,
violation or event of acceleration existing under the Mortgage or the related
Mortgage Note and no event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration; and the Seller has not waived any default,
breach, violation or event of acceleration;
(14) that each Mortgage Loan was originated
on FNMA or FHLMC uniform instruments for the state in which the Mortgaged
Property is located;
(15) that based upon a representation by
each Mortgagor at the time of origination or assumption of the applicable
Mortgage Loan, 95.40% of the Mortgage Loans measured by principal balance were
to be secured by primary residences and no more than 4.60% of the Mortgage Loans
measured by principal balance were to be secured by second homes;
(16) that an appraisal of each Mortgaged
Property was conducted at the time of origination of the related Mortgage Loan,
and that each such appraisal was conducted in accordance with FNMA or FHLMC
criteria, on FNMA or FHLMC forms and comparables on at least three properties
were obtained;
(17) that no Mortgage Loan had a
Loan-to-Value Ratio at origination in excess of 95%;
(18) the Mortgage Loans were not selected in
a manner to adversely affect the interests of the Purchaser and the Seller knows
of no conditions which reasonably would cause it to expect any Mortgage Loan to
become delinquent or otherwise lose value;
(19) each Mortgage Loan was either (A)
originated directly by or closed in the name of either: (i) a savings and loan
association, savings bank, commercial bank, credit union, insurance company, or
similar institution which is supervised and examined by a
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federal or state authority or (ii) a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act or (B) originated or underwritten by an entity employing
underwriting standards consistent with the underwriting standards of an
institution as described in subclause (A)(i) or (A)(ii) above;
(20) each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G of the Internal Revenue Code of
1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar
rule;
(21) each Mortgage Loan that has a
Loan-to-Value Ratio at origination in excess of 80% is covered by a primary
mortgage insurance policy; and
(22) that no Mortgage Loan permits negative
amortization or the deferral of accrued interest.
It is understood and agreed that the representations and
warranties set forth in this Section 8 shall survive the sale of the
Mortgage Loans to the Purchaser and shall inure to the benefit of the
Purchaser, notwithstanding any restrictive or qualified endorsement on
any Mortgage Note (or lost note affidavit and indemnity) or assignment
of Mortgage or the examination of any Mortgage File.
Upon discovery by either the Seller, the Purchaser or its
designees of a breach of any of the foregoing representations or
warranties of the Seller which materially and adversely affects (1) the
value of any of the Mortgage Loans actually delivered or (2) the
interests of the Purchaser therein, the party discovering such breach
shall give prompt written notice to the other. Within 90 (ninety) days
of its discovery or its receipt of notice of any such breach of a
representation or warranty, the Seller shall, with respect to the
Mortgage Loan(s) to which such breach relates, either (i) cure such
breach in all material respects (except for a breach of that portion of
the representation and warranty relating to any casualty from the
presence of hazardous waste or hazardous substances), (ii) repurchase
such Mortgage Loan or Mortgage Loans (or any property acquired in
respect thereof) from the Purchaser at par plus accrued interest up to
the date of purchase or (iii) within the 90 (ninety)-day period
following the Closing Date substitute another mortgage loan for such
Mortgage Loan. Such substitute mortgage loan shall on the date of
substitution, (a) have a principal balance not in excess of the
principal balance of the defective Mortgage Loan, (b) be accruing
interest at a rate of interest at least equal to that of the defective
Mortgage Loan, (c) have a remaining term to stated maturity not greater
than, and not more than two years less than, that of the Mortgage Loan
so substituted, (d) have an original loan-to-value ratio not higher
than that of the Mortgage Loan so substituted and a current
loan-to-value ratio not higher than that of the Mortgage Loan so
substituted, and (e) comply with all the representations and warranties
relating to Mortgage Loans set forth herein, as of the date of
substitution (such mortgage loan being referred to herein as a
"Qualifying Substitute Mortgage Loan"). Except as set forth in Section
12 hereof, it is understood and agreed that the obligations of the
Seller set forth in
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this Section 8 to cure, substitute for or repurchase a defective
Mortgage Loan constitute the sole remedies of the Purchaser respecting
a breach of the foregoing representations and warranties.
The Purchaser, upon receipt by it of the full amount of the
Purchase Price as adjusted for the then current principal balance for a
Mortgage Loan that is repurchased, or upon receipt of the Mortgage File
for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is
substituted or repurchased, shall release or cause to be released and
reassign to the Seller the related Mortgage File for the Mortgage Loan
that is substituted and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, representation,
or warranty, as shall be necessary to vest in the Seller or its
designee or assignee title to any such substituted Mortgage Loan
released pursuant hereto, free and clear of all security interests,
liens and other encumbrances created by this Agreement, which
instruments shall be prepared by the Seller at its expense and shall be
reasonably acceptable to the Purchaser, and the Purchaser shall have no
further responsibility with respect to the Mortgage File relating to
such Mortgage Loan that is substituted.
Any cause of action against the Seller or relating to or
arising out of the breach of any representations and warranties made in
this Section 8 shall accrue as to any Mortgage Loan upon (i) discovery
of such breach by the Purchaser or notice thereof by the Seller to the
Purchaser, (ii) failure by the Seller to cure such breach, repurchase
such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan
as specified above, and (iii) demand upon the Seller by the Purchaser
for all amounts payable in respect of such Mortgage Loan.
9. Representations, Warranties and Agreements of Purchaser.
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(a) The Purchaser hereby represents and warrants to the Seller, as of
the date hereof (or such other date as is specified in the related
representation or warranty) as follows:
(i) The Purchaser is a corporation duly formed and validly
existing under the laws of the State of Delaware;
(ii) The execution and delivery of this Agreement by the
Purchaser and its performance of and compliance with the terms of this Agreement
will not violate the Purchaser's corporate charter or by-laws or will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Purchaser is a
party or by which the Purchaser or to which any property or assets of the
Purchaser is subject;
(iii) This Agreement, assuming due authorization, execution
and delivery by the Seller, constitutes a valid and legally binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting creditors'
rights
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and to general equity principles, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(iv) The Purchaser is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which the Purchaser default might have
consequences that would materially and adversely affect the condition (financial
or other) or operations of the Purchaser or its properties or might have
consequences that would affect its performance hereunder; and
(v) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would prohibit its
entering into this Agreement or performing its obligations under this Agreement;
10. Purchaser's Conditions to Closing. The obligations of the Purchaser under
this Agreement shall be subject to the satisfaction, on or prior to the Closing
Date, of the following conditions:
(a) The obligations of the Seller required to be performed by it on or
prior to the Closing Date pursuant to the terms of this Agreement shall have
been duly performed and complied with and all of the representations and
warranties of the Seller under this Agreement shall be true and correct as of
the date hereof and as of the Closing Date, and no event shall have occurred
which, with notice or the passage of time, or both, would constitute a default
under this Agreement, and the Purchaser shall have received a certificate to
that effect signed by an Authorized Officer (as defined below) of the Seller.
(b) The Purchaser or the Purchaser's document custodian shall have
received, or the Purchaser's attorney shall have received in escrow, all of the
following closing documents, in such forms as are agreed upon and acceptable to
the Purchaser, duly executed by all signatories other than the Purchaser, as
required pursuant to the respective terms thereof:
(i) An assignment or assignments of the Mortgage Loans to the
Purchaser substantially in the form attached hereto as Exhibit B with such
changes as are required to adapt such assignment to the proper form in the
jurisdiction where the related Mortgage Property is located, if applicable, and
each original Mortgage Note (or lost note affidavit and indemnity), duly
endorsed originally or by facsimile, without recourse, to the Purchaser, in each
case in accordance with the instructions set forth in Exhibit A attached hereto,
which assignment or assignments and Mortgage Note (or lost note affidavit and
indemnity) shall be delivered to and held by the Purchaser or its agent on
behalf of the Purchaser;
(ii) The Mortgage Loan Schedule prepared by Purchaser dated
as of the related Closing Date and attached hereto;
(iii) A certificate signed by an officer, which officer may be
either a senior vice president, a vice president, an assistant vice president or
assistant secretary (an "Authorized
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Officer"), dated as of the Closing Date, substantially in the form attached
hereto as Exhibit C, to the parties hereto, and attached thereto copies of the
charter and by-laws and a Good Standing Certificate or a memorandum setting
forth the verbal assurances from the appropriate regulatory authorities with
respect to the Seller will be immediately forthcoming; and
(iv) An opinion of Seller's counsel in substantially the form
attached hereto as Exhibit D.
(v) A security release certification, in a form acceptable to
the Purchaser, executed by the appropriate mortgagee or secured party, 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.
(c) The Seller will furnish to the Purchaser such other certificates of
its officers or others and such other documents to evidence fulfillment of the
conditions set forth in this Agreement as the Purchaser and its attorney may
reasonably request.
11. Seller's Conditions to Closing. The obligations of the Seller under this
Agreement shall be subject to the satisfaction, on or prior to the Closing
Date, of the following conditions:
(a) The obligations of the Purchaser required to be performed by it on
or prior to the Closing Date pursuant to the terms of this Agreement shall have
been duly performed and complied with and all of the representations and
warranties of the Purchaser under this Agreement shall be true and correct as of
the date hereof and as of the Closing Date, and no event shall have occurred
which, with notice or the passage of time, or both, would constitute a default
under this Agreement, and the Seller shall have received a certificate to that
effect signed by an Authorized Officer of the Purchaser;
(b) The Seller shall have received, or the Seller's attorney shall have
received in escrow, a certificate signed by an Authorized Officer of the
Purchaser dated as of the Closing Date, in the form acceptable to the parties
hereto, and attached thereto the resolutions of the Purchaser authorizing the
transactions contemplated by this Agreement, together with copies of the
Articles of Association and by-laws as of a recent date with respect to the
Purchaser; and
(c) The Purchaser will furnish to the Seller such other certificates of
its officers or others and such other documents to evidence fulfillment of the
conditions set forth in this Agreement as the Seller and its attorney may
reasonably request.
12. Indemnification.
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(a) The Seller agrees to indemnify and hold harmless the Purchaser
against any and all losses, claims, expenses, damages or liabilities to which
Purchaser may become subject, insofar as such losses, claims, expenses, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any representation or warranty made by the Seller in Section 8(a)(i) through
Section
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8(a)(vii) hereof on which Purchaser has relied, being, or alleged to be,
materially untrue or incorrect. This indemnity will be in addition to any
liability which the Seller may otherwise have.
(b) The Purchaser agrees to indemnify and hold harmless the Seller
solely in its capacity as seller of the Mortgage Loans against any and all
losses, claims, expenses, damages or liabilities to which the Seller may become
subject, insofar as such losses, claims, expenses, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any representation or
warranty made by the Purchaser in Section 9 hereof on which the Seller has
relied, being, or alleged to be, materially untrue or incorrect (notwithstanding
the Purchaser's lack of knowledge with respect to the substance of any
representation or warranty to which Section 9 applies which is made to the best
of the Purchaser's knowledge). This indemnity will be in addition to any
liability which the Purchaser may otherwise have.
(c) Promptly after receipt by either the Purchasers or the Seller of
notice of the commencement of any action or proceeding in any way relating to or
arising from this Agreement, such party will notify the other party of the
commencement thereof; but the omission so to notify the party from whom
indemnification is sought (the "Indemnifying Party") will not relieve the
Indemnifying Party from any liability which it may have to the party seeking
indemnification (the "Indemnified Party") except to the extent that the
Indemnifying Party is adversely affected by the lack of notice. In case any such
action is brought against the Indemnified Party, and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled to participate in the defense (with the consent of the Indemnified
Party which shall not be unreasonably withheld) of such action at the
Indemnifying Party's expense.
13. 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. Notices to the Seller shall be directed to ▇▇▇▇▇▇ Brothers
Bank, FSB, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager,
Contract Finance; and notices to the Purchaser shall be directed to ABN AMRO
Mortgage Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ - First Vice President - ABN AMRO Mortgage
Operations, with a copy to ABN AMRO North America, Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇ - Associate General
Counsel; or such other addresses as may hereafter be furnished to the other
party by like notice.
14. Termination. This Agreement may be terminated (a) by the mutual consent of
the parties hereto, or (b) by the Purchaser if the conditions to the Purchaser's
obligations to closing set forth under Section 10 hereof are not fulfilled as
and when required to be fulfilled or (c) by the Seller if the Purchaser's
obligations under Section 11 hereof are not fulfilled as and when required. In
the event of a termination pursuant to Section 14(b), the Seller agrees that it
will pay the out-of-pocket fees and expenses of the Purchaser in connection with
the transactions contemplated by this Agreement and in the event of a
termination pursuant to Section 14(c), the Purchaser agrees that it will pay the
-12-
out-of-pocket fees and expenses of the Seller in connection with the
transactions contemplated by this Agreement.
15. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or in
certificates of officers of the Seller and the Purchaser submitted pursuant
hereto, shall remain operative and in full force and effect and shall survive
transfer and sale of the Mortgage Loans to the Purchaser.
16. Severability. If any provision of this Agreement shall be prohibited or
invalid under applicable law, the Agreement shall be ineffective only to such
extent, without invalidating the remainder of this Agreement.
17. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but both of which together shall constitute
one and the same agreement.
18. Governing Law. This Agreement shall be deemed to have been made in the State
of New York and shall be interpreted in accordance with the laws of such state
without regard to the principles of conflicts of law of such state.
19. Further Assurances. The Seller and the Purchaser agree to execute and
deliver such instruments and take such actions as the other party may, from time
to time, reasonably request in order to effectuate the purpose and to carry out
the terms of this Agreement.
20. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the Seller and the Purchaser and their
permitted successors and assigns. The Seller acknowledges and agrees that the
Purchaser may assign its rights under this Agreement. Any person into which the
Seller may be merged or consolidated (or any person resulting from any merger or
consolidation involving the Seller), or any person succeeding to the business of
the Seller shall be considered the "successor" of the Seller hereunder. Except
as provided in the two preceding sentences, this Agreement cannot be assigned,
pledged or hypothecated by any party hereto without the written consent of the
other party to this Agreement. Notwithstanding anything to the contrary in this
Section 20, the parties hereto agree that the Purchaser has the right to assign
its rights and interest in, to and under Section 8 hereof.
21. Amendments. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
-13-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
▇▇▇▇▇▇ Brothers Bank, FSB,
as Seller
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
▇▇▇▇▇▇ Brothers Bank Mortgage Loan Purchase Agreement
ABN AMRO Mortgage Corporation,
as Purchaser
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ Brothers Bank Mortgage Loan Purchase Agreement
SCHEDULE 1
MORTGAGE LOAN SCHEDULE
----------------------
PROVIDED UPON REQUEST
SCHEDULE 2
MORTGAGE LOAN SCHEDULE INFORMATION
----------------------------------
Each Mortgage Loan shall be identified by at least the following
details, among others, relating to each Mortgage Loan:
(i) the loan number of the Mortgage Loan and name of the
related Mortgagor;
(ii) the street address of the Mortgaged Property
including city, state and zip code;
(iii) the mortgage interest rate as of the Cut-Off Date;
(iv) the original term and maturity date of the related
Mortgage Note;
(v) the original principal balance;
(vi) the first payment date;
(vii) the monthly payment in effect as of the Cut-Off Date;
(viii) the date of the last paid installment of interest;
(ix) the unpaid principal balance as of the close of
business on the Cut-Off Date;
(x) the loan-to-value ratio at origination;
(xi) the type of property;
(xii) whether a primary mortgage insurance policy is in
effect as of the Cut-Off Date;
(xiii) the nature of occupancy at origination;
(xiv) the servicing fee;
(xv) the county in which the Mortgaged Property is
located, if available;
(xvi) the Loan Group (as such is defined in the Pooling
and Servicing Agreement); and
(xvii) the closing date.
SCHEDULE 3
MORTGAGE FILE INFORMATION
-------------------------
Each Mortgage File shall include at least the following documents,
among others, with respect to each Mortgage Loan transferred and assigned from
the Seller, or the Seller's agent, to the Purchaser, or its agent:
(i) the original Mortgage Note (or, if the original Mortgage Note
has been lost or destroyed, a lost note affidavit and
indemnity) bearing all intervening endorsements endorsed,
"Pay to the order of _________________ without recourse" and
signed in the name of the mortgagee at the request of the
Seller by an Authorized Officer showing an unbroken chain of
title from the originator thereof to the person endorsing;
(ii) (a) the original Mortgage with evidence of recording thereon,
and if the Mortgage was executed pursuant to a power of
attorney, a certified true copy of the power of attorney
certified by the recorder's office, with evidence of
recording thereon, or certified by a title insurance company
or escrow company to be a true copy thereof; provided, that
if such original Mortgage or power of attorney cannot be
delivered with evidence of recording thereon on or prior to
the Closing Date because of a delay caused by the public
recording office where such original Mortgage has been
delivered for recordation or because such original Mortgage
has been lost, the Seller shall deliver or cause to be
delivered to the Purchaser (with a copy to the Trustee (as
defined in the Pooling and Servicing Agreement)) a true and
correct copy of such Mortgage, together with (1) in the case
of a delay caused by the public recording office, a
certificate signed by an Authorized Officer of the Seller
stating that such original Mortgage has been dispatched to
the appropriate public recording official for recordation or
(2) in the case of an original Mortgage that has been lost, a
certificate by the appropriate county recording office where
such Mortgage is recorded or from a title insurance company
or escrow company indicating that such original was lost and
the copy of the original mortgage is a true and correct copy;
(b) the original assignment to "_____________________" which
assignment shall be in form and substance acceptable for
recording, or a copy certified by the Seller as a true and
correct copy of the original assignment which has been sent
for recordation. Subject to the foregoing, such assignments
may, if permitted by law, be by blanket assignments for
Mortgage Loans covering Mortgaged Properties situated within
the same county. If the assignment is in blanket form, a copy
of the assignment shall be included in the related individual
Mortgage File;
(iii) the originals of any and all instruments that modify the
terms and conditions of the Mortgage Note, including but not
limited to modification, consolidation, extension
and assumption agreements including any adjustable rate
mortgage (ARM) rider, if any;
(iv) the originals of all required intervening assignments, if
any, with evidence of recording thereon, and if such
assignment was executed pursuant to a power of attorney, a
certified true copy of the power of attorney certified by the
recorder's office, with evidence of recording thereon, or
certified by a title insurance company or escrow company to
be a true copy thereof; provided, that if such original
assignment or power of attorney cannot be delivered with
evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office
where such original assignment has been delivered for
recordation or because such original assignment has been
lost, the Seller shall deliver or cause to be delivered to
the Purchaser (with a copy to the Trustee (as defined in the
Pooling and Servicing Agreement)) a true and correct copy of
such assignment, together with (a) in the case of a delay
caused by the public recording office, a certificate signed
by an Authorized Officer of the Seller stating that such
original assignment has been dispatched to the appropriate
public recording official for recordation or (b) in the case
of an original assignment that has been lost, a certificate
by the appropriate county recording office where such
assignment is recorded or from a title insurance company or
escrow company indicating that such original was lost and the
copy of the original assignment is a true and correct copy;
(v) the original mortgagee policy of title insurance (including,
if applicable, the endorsement relating to the negative
amortization of the Mortgage Loans) or in the event such
original title policy is unavailable, any one of an original
title binder, an original preliminary title report or an
original title commitment or a copy thereof certified by the
title company with the original policy of title insurance to
follow within 180 days of the Closing Date;
(vi) the mortgage insurance certificate;
(vii) hazard insurance certificates and copies of the Hazard
Insurance Policy and, if applicable, flood insurance policy;
and
(viii) any and all other documents, opinions and certificates
executed and/or delivered by the related Mortgagor and/or its
counsel in connection with the origination of such Mortgage
Loan, which may include truth-in-lending statements and other
legal statements, and appraisal and a survey.
-2-
EXHIBIT A
INSTRUCTION LETTER
ABN AMRO Mortgage Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
December __, 2001
▇▇▇▇▇▇ Brothers Bank, FSB
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
Pursuant to the Mortgage Loan Purchase Agreement dated as of December
21, 2001 (the "Purchase Agreement") between you and us, we have agreed to
purchase from you certain Mortgage Loans. All capitalized terms used herein and
not otherwise defined shall have the meanings set forth in the Purchase
Agreement.
In order to facilitate these transactions, and for the purpose of
convenience only, we hereby authorize and direct you, or your agent, to:
Action Due Date
1. Endorse mortgage notes (or lost note affidavits one week prior to funding
and indemnities) to:
"Pay to the order of
-----------------
without recourse"
2. Assign mortgages to ___________________: one week prior to funding
3. Deliver to the Purchaser or its agent all Mortgage two business days after funding
Loan documents pertaining to each loan
4. Deliver to the Purchaser's servicer all Mortgage one week prior to Servicing transfer
Loan servicing documents pertaining to each loan date
5. Provide lost mortgage note affidavits, certified one week prior to funding
copies of all missing mortgages, and certified
recorded copies of missing intervening
assignments
6. Mortgage Loan Schedule generated by Purchaser one day prior to funding
and agreed to by Seller
Sincerely,
ABN AMRO Mortgage Corporation
By:
---------------------------------
Name:
-------------------------------
Title:
-------------------------------
-2-
EXHIBIT B
FORM OF ASSIGNMENT
------------------
▇▇▇▇▇▇ Brothers Bank, FSB, a federal savings bank (the "Seller"), in
exchange for $[__________] in hand paid and other good and valuable
consideration, hereby grants, bargains, sells, assigns, transfers, conveys, and
sets over to _______________________________________________________ (the
"Purchaser"), all of the Seller's right, title, and interest in, to, and under
the mortgage loans listed on Schedule 1 attached hereto, the mortgage notes
evidencing or relating to such mortgage loans, all mortgages, trust deeds, title
insurance policies, property insurance policies, chattel paper, loan guaranties,
loan accounts, surveys, instruments, certificates, and other documents
whatsoever evidencing or relating to such mortgage notes and mortgage loans, and
all books, ledgers, books of account, records, writings, data bases,
information, and computer software (and all documentation therefor or relating
thereto, and all licenses relating to or covering such computer software and/or
documentation), and all other property, rights, title, and interests whatsoever
relating to, used, or useful in connection with, or evidencing, embodying,
incorporating, or referring to, any of the foregoing (the "Mortgages"). The
Seller warrants to the Purchaser that the Seller is the owner of the Mortgages,
subject to no liens, claims, or encumbrances.
-1-
Dated: December __, 2001 ▇▇▇▇▇▇ Brothers Bank, FSB
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
-▇-
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ __________ __, 2001
ABN AMRO Mortgage Corporation
By:
--------------------------------
Name:
--------------------------
Title:
--------------------------
-3-
STATE OF ____________ )
)
COUNTY OF ____________ )
I, ______________, a Notary Public in and for the said County and
State, do hereby certify that ____________, personally known to me to be the
same person whose name is subscribed to the foregoing instrument as
_______________ of __________________, appeared before me this day in person
and, being first sworn, acknowledged that he signed and delivered the said
instrument as his own free and voluntary act, and as the free and voluntary act
of said Bank as the ___________ of ____________, a ____________, for the uses
and purposes therein set forth and that he was duly authorized to execute the
said instrument by the __________________ of said _________________.
Given under my hand and seal, this ____ day of ____________, 2001.
----------------------------------
Notary Public
My commission expires:______________
-4-
EXHIBIT C
---------
FORM OF OFFICER'S CERTIFICATE
-----------------------------
▇▇▇▇▇▇ Brothers Bank, FSB
I, ____________________, do hereby certify pursuant to Section 10(a)
and (b)(iii) of the Purchase Agreement (as hereinafter defined) that I am the
duly elected ____________________ of ▇▇▇▇▇▇ Brothers Bank, FSB ("▇▇▇▇▇▇ Brothers
Bank" ), a federal savings bank, and further certify as follows:
1. Attached hereto as Exhibit "A" is a true and correct copy of the
charter of ▇▇▇▇▇▇ Brothers Bank. There has been no amendment or other document
filed affecting the charter as of the date of this certification of ▇▇▇▇▇▇
Brothers Bank, and no such amendment has been authorized.
2. Attached hereto as Exhibit "B" is a true and correct copy of the
by-laws of ▇▇▇▇▇▇ Brothers Bank as in full force and effect as of the date of
this certification.
3. No proceedings looking toward merger, consolidation, liquidation,
or dissolution of ▇▇▇▇▇▇ Brothers Bank are pending or contemplated.
4. Each person who, as an officer or representative of ▇▇▇▇▇▇ Brothers
Bank, signed, or will sign (a) the Purchase Agreement, and (b) any other
document delivered pursuant thereto or on the date hereof in connection with the
Mortgage Loan Purchase Agreement, dated as of December __, 2001 between ▇▇▇▇▇▇
Brothers Bank, as seller, and ABN AMRO Mortgage Corporation, as Purchaser (the
"Purchase Agreement") was, at the respective times of such signing and delivery,
and is as of the date hereof 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.
5. Attached hereto as Exhibit "C" is a true, complete and correct copy
of the Resolutions of ▇▇▇▇▇▇ Brothers Bank's Board of Directors, which were duly
adopted as of _________ __, 2001, and such Resolutions have not been amended,
altered or repealed, and remain in full force and effect without modification on
the date hereof.
6. Attached hereto as Exhibit "D" is a Good Standing Certificate issued
by the Office of Thrift Supervision as of __________ __, 2001. A current Good
Standing Certificate has been requested from the Office of Thrift Supervision
and will be supplied when it is received.
7. ▇▇▇▇▇▇ Brothers Bank has performed all obligations and satisfied all
conditions on its part to be performed or satisfied under the Purchase Agreement
on or prior to the Closing Date and all of the representations and warranties of
the Seller under the Purchase Agreement are true and correct as of the date
hereof and as of the Closing Date, and no event has occurred which, with notice
or passage of time, or both, would constitute a default under the Purchase
Agreement.
All capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Purchase Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name.
Date: December __, 2001
▇▇▇▇▇▇ Brothers Bank, FSB
By:
-------------------------------
Name:
------------------------------
Title:
------------------------------
-2-
I, ____________________, a ________________ of ▇▇▇▇▇▇ Brothers Bank,
FSB, a federal savings bank, hereby certify that ____________________ is the
duly elected, qualified and acting ____________________ of ▇▇▇▇▇▇ Brothers Bank,
FSB and that the signature appearing on the preceding page is his/her genuine
signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Date: December __, 2001
▇▇▇▇▇▇ Brothers Bank, FSB
By:
----------------------------
Name:
--------------------------
Title:
--------------------------
-3-
[OPINION TO BE REVISED IN ACCORDANCE WITH
GENERAL COUNSEL'S FORM OF OPINION LETTER]
EXHIBIT D
---------
[OPINION OF SELLER'S IN-HOUSE COUNSEL
PURSUANT TO SECTION 10(b)(IV)]
-----------------
__________ __, 2001
ABN AMRO Mortgage Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ABN AMRO Mortgage Corporation Purchase of Mortgage Loans
--------------------------------------------------------
Ladies and Gentlemen:
As _______________ to ▇▇▇▇▇▇ Brothers Bank, FSB, a federal savings bank
("Seller"), I and attorneys working under my supervision have acted as counsel
to Seller in connection with the sale of Mortgage Loans by Seller to ABN AMRO
Mortgage Corporation (the "Purchaser") pursuant to a Mortgage Loan Purchase
Agreement, dated as of December __, 2001 (the "Purchase Agreement"), between the
Purchaser and Seller. This opinion is being delivered to the Purchaser pursuant
to Section 10(b)(iv) of the Purchase Agreement. All capitalized terms not
otherwise defined herein have the meanings given them in the Purchase Agreement.
In rendering the opinions set forth below, we have examined and relied
upon originals or copies, certified or otherwise identified to our satisfaction,
of the charter and by-laws of Seller, the Purchase Agreement and such corporate
records, agreements or other instruments of Seller, and such certificates,
records and other documents, agreements and instruments, including, among other
things, certain documents delivered on the Closing Date, as we have deemed
necessary and proper as the basis for our opinions. In connection with such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens, the conformity to executed original
documents of all documents submitted to us in draft and the accuracy of the
matters set forth in the documents we reviewed. We have also assumed that all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto. As to any facts material to such opinions that
we did not independently establish
ABN AMRO Mortgage Corporation
_________________ __, 200_
Page 2
or verify, we have relied upon statements and representations of officers and
other representatives of Seller as we have deemed necessary and proper as the
basis for our opinions, including, among other things, the representations and
warranties of Seller in the Purchase Agreement.
Based upon the foregoing, I am of the opinion that:
1. Seller is a federal savings bank, duly organized, validly existing
and in good standing under the laws of the United States and either is not
required to be qualified to do business under the laws of any states where such
qualification is necessary to transact the business contemplated by the Purchase
Agreement, or is qualified to do business under the laws of any states where
such qualification is necessary to transact the business contemplated by the
Purchase Agreement, and Seller is duly authorized and has full corporate power
and authority to transact the business contemplated by the Purchase Agreement.
2. The Purchase Agreement has been duly authorized, executed and
delivered by Seller and is a legal, valid and binding obligation of and is
enforceable against Seller in accordance with its terms, except that the
enforceability thereof may be subject to (A) bankruptcy, insolvency,
receivership, conservatorship, reorganization, moratorium or other laws, now or
hereafter in effect, relating to creditors' rights generally or the rights of
creditors of federal savings banks, (B) general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law) and (C)
limitations of public policy under applicable securities laws as to rights of
indemnity and contribution under the Purchase Agreement.
3. No consent, approval, authorization or order of any court or
supervisory, regulatory, administrative or governmental agency or body is
required for the execution, delivery and performance by Seller of or compliance
by Seller with the Purchase Agreement, the sale of the Mortgage Loans or the
consummation of the transactions contemplated by the Purchase Agreement.
4. Neither the execution and delivery by Seller of the Purchase
Agreement, nor the consummation by Seller of the transactions contemplated
therein, nor the compliance by Seller with the provisions thereof, will conflict
with or result in a breach of any of the terms, conditions or provisions of
Seller's charter or by-laws or board or shareholder's resolutions, or any
agreement or instrument to which Seller is now a party or by which it is bound,
or constitute a default or result in an acceleration under any of the foregoing,
or result in the violation of any law, rule, regulation, order, judgment or
decree to which Seller or its property is subject, which, in any of the above
cases, would materially and adversely affect Seller's ability to perform its
obligations under the Purchase Agreement.
ABN AMRO Mortgage Corporation
____________________ __, 200_
Page 3
5. There is no action, suit, proceeding or investigation pending, or,
to the best of my knowledge, threatened against Seller which, either in any one
instance or in the aggregate, would draw into question the validity of the
Purchase Agreement or the Mortgage Loans or of any action taken or to be taken
in connection with the obligations of Seller contemplated therein, or which
would be likely to materially impair the ability of Seller to perform under the
terms of the Purchase Agreement.
The Opinions expressed herein are limited to matters of federal and
[___________] law and do not purport to cover any matters as to which laws of
any other jurisdiction are applicable. Except as expressly provided herein, this
opinion is being furnished to you solely for your benefit in connection with the
purchase of the Mortgage Loans, and it is not to be used, circulated, quoted or
otherwise referred to for any purpose without my express written consent.
Sincerely,
▇▇▇▇▇▇ Brothers Bank, FSB
By:
--------------------------
Title: