Mortgage Loan Purchase Agreement
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Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
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________ __, 1997, between [Standard Federal Bank](the "Seller") and ABN AMRO
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Mortgage Corp.(the "Purchaser").
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Subject to the terms and conditions of this Agreement, the Seller
agrees from time to time to sell and the Purchaser agrees from time to time to
purchase certain mortgage loans (the "Mortgage Loans") as described herein and
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as identified on the Mortgage Loan Schedule defined in Section 2 hereof [and the
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Seller agrees to retain servicing of the Mortgage Loans in accordance with an
agreement substantially in the form of the servicing agreement attached hereto
as Exhibit E].
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Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Purchase and Sale of the Mortgage Loans.
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(a) Pursuant to the terms hereof and upon the 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
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principal balance on and as of the date of each Mortgage Loan Schedule (each
such Date, a "Cut-Off Date") [of approximately $______________ after deduction
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of principal payments due on or before the Cut-Off Date (which amount may vary
plus or minus __% 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 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 no
later than once a week (each such date, a "Closing Date") [on _________, 1997
(the "Closing Date") at the office of Purchaser's counsel in Chicago, Illinois
or such other place as the parties shall agree].
SECTION 2. Mortgage Loan Schedule. Attached to this Agreement as Schedule
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1 is a listing of the Mortgage Loans evidenced by promissory notes, mortgage
notes or other evidence of indebtedness (the "Mortgage Notes") evidencing the
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indebtedness of an obligor (the "Mortgagor") under the mortgages, deeds of trust
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or other instruments securing a Mortgage Loan (the "Mortgages") to be purchased
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by and delivered to the Purchaser on
each [the] Closing Date (as such may be amended prior to each [the] Closing Date
by mutual agreement of the parties) (the "Mortgage Loan Schedule"). The
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"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 Loan Schedule
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.
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SECTION 3. Purchase Price.
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(a) In exchange for the Mortgage Loans, on each [the] Closing Date, the
Purchaser shall transfer to the Seller [by wire in immediately available funds]
an amount equal to the purchase price (the "Purchase Price") equal to the
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Purchase Price defined on the Mortgage Loan Schedule plus the applicable accrued
interest from the related Closing Date [or 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 related Cut-Off
Date, and all other recoveries of principal and interest collected after the
related 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.
SECTION 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
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attached hereto (with respect to each Mortgage Loan, a "Mortgage File", and
collectively, the "Mortgage Files"), available to the Purchaser or its agents,
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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
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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.
SECTION 5. Transfer of Mortgage Loans; Possession of Mortgage Files.
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(a) On each [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 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
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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
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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
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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
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set forth in Section 11 hereof, and shall take all steps necessary prior to the
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Closing Date to perfect such security interest in the Purchaser.
SECTION 6. Books and Records.
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On each [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.
SECTION 7. Further Actions; Financing Statements.
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(a) In furtherance of the provisions of Section 5(c) hereof, the Seller
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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
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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
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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
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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.
SECTION 8. Representations, Warranties and Agreements of Seller.
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(a) The Seller hereby represents and warrants to the Purchaser as of each
[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
[corporation] under the laws of the State of [ ];
(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 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 Seller is a party or by
which the Seller or to which any of the property or assets of the Seller is
subject;
(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 the Seller 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;
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(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
Illinois;
(viii) With respect to each Mortgage Loan:
(a) 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;
(b) 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;
(c) 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 Mortgage Loan;
(d) 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;
(e) there is no proceeding pending or 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;
(f) 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,
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and each Mortgage Loan was not usurious at the time of origination;
(g) all taxes, governmental assessments and insurance
premiums previously due and owing with respect to the Mortgaged
Property have been paid;
(h) 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;
(i) 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;
(j) 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
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whole or in part from the lien of the Mortgage; or executed any
instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple
estate, a leasehold estate condominium form of ownership in real
property or a share interest in a cooperative corporation in the case
of a Co-op Loan;
(l) [no more than __% of the Mortgage Loans consist of
[Mortgage Loans with [Limited Mortgage Documentation];]
(m) [no more than __% of the Mortgage Loans consist of [Buy-
down Mortgage Loans;]
(n) [no more than __% of the Mortgage Loans consist of
Mortgage Loans that accrue Deferred Interest;]
(o) the condominium projects that include the condominiums
that are the subject of any condominium loan or Co-op Loan are
generally acceptable to FNMA or FHLMC;
(p) 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 [__] days, 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 Depositor has not waived any default, breach, violation or event
of acceleration;
(q) each Mortgage Loan which can be converted from an
adjustable rate Mortgage Loan to a fixed rate Mortgage Loan gives the
Mortgagor the right at one or more times during the term of such
Mortgage Loan to elect to convert from one interest rate to another.
In the event of a conversion, the new rate of interest is determined
pursuant to the terms of the Mortgage Loan itself, which terms are
intended to approximate a market rate of interest for newly originated
mortgages at the time of conversion;
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(r) that each Mortgage Loan is in one of the forms contained
in Exhibit __ and each provision of the Mortgage Note, including,
without limitation, the interest rate and payment amount adjustments
of the Mortgage Note, are in conformity with and are being serviced in
conformity with Exhibit __;
(s) that based upon a representation by each Mortgagor at
the time of origination or assumption of the applicable Mortgage Loan,
____% of the Mortgage Loans measured by Principal Balance were to be
secured by a primary, owner-occupied residence and no more than ____%
of the Mortgage Loans measured by Principal Balance secured by non-
owner-occupied residences;
(t) 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;
(u) that no Mortgage Loan had a Loan-to-Value Ratio at
origination in excess of 125%;
(v) 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;
(w) 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 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; and
(x) [each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G of the Internal Revenue Code of 1986.]
It is understood and agreed that the representations and warranties
set forth in this
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Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and
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shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note 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 [thirty] [30] 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,
(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 the Purchase Price, or (iii) within the
[thirty] [30]-day period following the Closing Date substitute another
mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall
on the date of substitution, (i) have a principal balance not in excess of
the principal balance of the defective Mortgage Loan, (ii) be accruing
interest at a rate of interest at least equal to that of the defected
Mortgage Loan, (iii) 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, (iv) have an original loan-to-value ratio not higher than that
of the Mortgage Loan so substituted current loan-to-value ratio not higher
than ___%, and (v) 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
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Mortgage Loan")]. Except as set forth in Section 13 hereof, it is
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understood and agreed that the obligations of the Seller set forth in this
Section 8 to cure, substitute for or repurchase a defective Mortgage Loan
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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 for a Mortgage Loan that is substituted, or upon receipt of the
Mortgage File
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for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is
substituted, 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
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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.
SECTION 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 constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Seller is a party or
which may be applicable to the Seller or any of its assets;
(iii) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid,
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legal and binding obligation of the Purchaser, enforceable against it in
accordance with the terms hereof subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles of
equity, 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 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;
SECTION 10. Purchaser's Conditions to Closing. The obligations of the
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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 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 each Mortgage Loan to the
Purchaser substantially in the form attached hereto as Exhibit B with
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such changes as are required to adapt the assignment to the proper
form in the jurisdiction where the related Mortgage Property
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is located, and each original Mortgage Note, 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
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hereto, which assignment or assignments and Mortgage Note 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 vice president, an assistant vice president or assistant
secretary (an "Authorized Officer"), dated as of the Closing Date,
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substantially in the form attached hereto as Exhibit C to the parties
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hereto, and attached thereto the resolutions of the Seller authorizing
the transactions contemplated by this Agreement, together with copies
of the charter, by-laws and a Good Standing Certificate as of a recent
date with respect to the Seller;
(iv) An opinion of Seller's counsel in substantially the form
attached hereto as Exhibit D-1 and D-2;
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(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[; and]
(vi) A certificate or 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; and
(vii) A servicing agreement substantially in the form attached
hereto as Exhibit E executed by the Seller;
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(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.
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SECTION 11. Seller's Conditions to Closing. The obligations of the
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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 Seller.
(b) The Seller shall have received, or the Seller's attorney shall
have received in escrow, all of the following closing documents, in such forms
as are agreed upon and acceptable to the Seller, duly executed by all
signatories other than the Seller as required pursuant to the respective terms
thereof:
(i) A certificate signed by an Authorized Officer 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;
(ii) An opinion of Purchaser's counsel in a form acceptable to
the parties hereto;
(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.
SECTION 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 hereof on which
---------
Purchaser has relied, being, or alleged to be, untrue or incorrect. This
indemnity will be in addition to any liability which the Seller may otherwise
have.
-14-
(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, 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.
SECTION 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 _____________________, ______________________,
________________________, Attention: _______________, _____________________ with
a copy to the general counsel of the Seller of the same address; and notices to
the Purchaser shall be directed to ABN AMRO Mortgage Corporation, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ -
Director - ABN AMRO Mortgage Operations; or such other addresses as may
hereafter be furnished to the other party by like notice.
SECTION 14. Termination. This Agreement may be terminated (i) by the
-----------
mutual consent of the parties hereto, or (ii) by the Purchaser if the conditions
to the Purchaser's obligations to closing set forth under Section 10 hereof are
----------
not
-15-
fulfilled as and when required to be fulfilled or (iii) 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(ii), 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(iii), the Purchaser agrees that it will
---------------
pay the out-of-pocket fees and expenses of the Seller in connection with the
transactions contemplated by this Agreement.
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 18. Governing Law. This Agreement shall be deemed to have
-------------
been made in the State of Illinois and shall be interpreted in accordance with
the laws of such state without regard to the principles of conflicts of law of
such state.
SECTION 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.
SECTION 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
-16-
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.
---------
SECTION 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.
-17-
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.
[Seller Name],
as Seller
By:___________________________
Name:_________________________
Title:________________________
ABN AMRO Mortgage Corporation,
as Purchaser
By:___________________________
Name:_________________________
Title:________________________
-18-
SCHEDULE 1
MORTGAGE LOAN SCHEDULE
----------------------
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;
(iii) the initial mortgage rate;
(v) the original term and maturity date of the related Mortgage Note;
(vi) the original principal balance;
(vii) the first payment date;
(viii) the monthly payment in effect as of the Cut-Off Date;
(ix) the date of the last paid installment of interest;
(x) the unpaid principal balance as of the Cut-Off Date;
(xi) the loan-to-value ratio at origination and as of the Cut-Off
Date;
(xii) the type of property;
(xiii) the nature of occupancy at origination;
(xiv) the county in which Mortgaged Property is located;
(xv) the Purchase Price of the Mortgage Loan;
(xvi) the documentation type of the loan; 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 to the Purchaser, or its agent:
(i) the original Mortgage Loan Schedule;
(ii) the original Mortgage Note bearing all intervening endorsements
endorsed, "Pay to the order of ABN AMRO Mortgage Corporation, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, without
recourse" and signed in the name of the Seller by an Authorized
Officer showing an unbroken chain of title from the originator
thereof to the person endorsing;
(iii) 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 a true and correct copy of such Mortgage,
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 Mortgage has been dispatched
to the appropriate public recording official for recordation or
(b) 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;
(iv) 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;
(v) 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 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;
(vi) the original mortgage 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;
(vii) the original mortgage insurance certificate for conventional and
FHA Mortgages, and the original
-2-
loan guaranty certificate for VA Mortgages, if any;
(viii) hazard insurance certificates and copies of the Hazard Insurance
Policy and, if applicable, flood insurance policy; and
(ix) 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 specifically
including the [Mortgage Loan Commitment, Regulation 7 Truth-in-
Lending Statement and other legal statements, Appraisal and
Survey].
-3-
EXHIBIT A
---------
INSTRUCTION LETTER
ABN AMRO Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
________ __, 1997
___________________________
___________________________
___________________________
Dear Ladies and Gentleman:
Pursuant to the Mortgage Loan Purchase Agreement dated as of _________ __,
1997(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 to:
Action Due Date
1. Endorse mortgage notes to: one week prior to funding
"Pay to the order of
ABN AMRO Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
without recourse"
2. Assign mortgages in one week prior to funding
recordable form to:
"ABN AMRO Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇"
3. Deliver to the Purchaser or its two business days after funding
agent all Mortgage Loan documents
pertaining to each loan
4. Deliver to the Purchaser's servicer one week prior to Servicing
all Mortgage Loan servicing transfer date
documents pertaining to each loan
5. Provide lost mortgage note one week prior to funding
affidavits, certified copies of all
missing mortgages, and certified
recorded copies of missing
intervening assignments
6. Mortgage Loan Schedule generated by one day prior to funding
Purchaser and agreed to by Seller
Sincerely,
ABN AMRO Mortgage Corporation
By: ______________________________
Name:______________________________
Title:_____________________________
-2-
EXHIBIT B
---------
ASSIGNMENT
----------
__________________________, ________________________ [INSERT IDENTIFYING
DESCRIPTION] (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 ABN AMRO Mortgage Corporation, a Delaware
corporation (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 polices, 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.
Dated: _____________, 1997 [SELLER NAME]
By:_____________________________
Title:_______________________
ACKNOWLEDGED ON _________, 1997
ABN AMRO Mortgage Corporation
By:___________________________
Title:_____________________
-2-
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 corporation 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 ____________, 1997.
__________________________________
Notary Public
My commission expires:____________
EXHIBIT C
---------
OFFICER'S CERTIFICATE
[Insert Seller Name]
I, _________________, hereby certify that I am the duly elected Senior Vice
President and Assistant Secretary of ________________ ("_______________"), a
[insert description], and further certify as follows:
1. Attached hereto as Exhibit "A" is a true and correct copy of the
-----------
charter of ___________. There has been no amendment or other document
filed affecting the charter of ___________ since _______________, and no
such amendment has been authorized.
2. Attached hereto as Exhibit "B" is a true and correct copy of the
-----------
by-laws of _____________ as in full force and effect since ______________.
3. No proceedings looking toward merger, consolida tion,
liquidation, or dissolution of __________ are pending or contemplated.
4. Each person who, as an officer or representative of ____________,
signed (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 ________, between __________, 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 and correct copy of
-----------
resolutions adopted on ____________ by the Board of Directors of
____________ with respect to the authorization of ___________ to take such
actions and enter into such agreements as are necessary to enter into the
Purchase Agreement; said resolutions have not been amended, modified,
annulled or revoked and are in full force and effect.
6. Attached hereto as Exhibit "D" is a Good Standing Certificate
-----------
issued by the _____________ Secretary of State's office as of ___________,
199_.
7. ___________ 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 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.
Dated: ______________, 1997
___________________________
By:________________________
Title:_____________________
-2-
I, ___________________, Secretary of ____________________, a [insert
description], hereby certify that _________________ is the duly elected,
qualified and acting Senior Vice President and Assistant Secretary of
____________________ and that the signature appearing on the preceding page is
her genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:_________________, 1997
______________________________
By:___________________________
Title: Secretary
-3-
[Opinion to be revised in accordance with
general counsel's form of opinion letter]
Exhibit D-1
-----------
[Opinion of Seller's In-house Counsel
pursuant to Section 10(b)(iv)]
-----------------
_______________, 1997
ABN AMRO Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ABN AMRO Mortgage Corporation Purchase of Mortgage Loans
--------------------------------------------------------
Ladies and Gentlemen:
As General Counsel to ___________________, a _____________ ("Seller"), I
------
and attorneys working under my supervision have acted as counsel to
_____________ in connection with the sale of Mortgage Loans by _____________ to
ABN AMRO Mortgage Corporation (the "Purchaser") pursuant to a Mortgage Loan
---------
Purchase Agreement, dated as of _________________, 1997 (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
ABN AMRO Mortgage Corp.
____________, 1997
Page 2
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 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 [__________________________________], duly organized,
validly existing and in good standing under the laws of the State of Illinois
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, or the State of
_________________], 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 right 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.
ABN AMRO Mortgage Corp.
____________, 1997
Page 3
4. Neither the execution and delivery by _____________ of the Purchase
Agreement, nor the consummation by ______________ 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.
5. There is not an 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,
___________________________
By:
Title: General Counsel
Exhibit D-2
-----------
[Opinion of Seller's Outside Counsel
pursuant to Section 10(b)(iv)]
-----------------
_______________, 1997
ABN AMRO Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ABN AMRO Mortgage Corporation Purchase of Mortgage Loans
--------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to ____________________, a
___________________ ("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 __________, 1997 (the "Purchase
--------
Agreement"), between the Purchaser and Seller. This letter 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
copies, certified or otherwise identified to our satisfaction, of the Purchase
Agreement, the form of Assignment of Mortgage attached as Exhibit A hereto, the
---------
form of endorsement of the Mortgage Notes set forth in Exhibit A of the Purchase
---------
Agreement (the "Mortgage Note Endorsement"), and such certificates, records and
-------------------------
other documents, agreements and instruments, including, among other things, the
documents and opinions delivered on the Closing Date, as we have deemed
necessary 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 and the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens. We have also assumed that all
documents, agreements and instruments have been duly authorized, executed and
delivered, and the terms and provisions thereof will be complied with, by all
parties thereto. As to any facts material to such
ABN AMRO Mortgage Corp.
____________, 1997
Page 2
opinions that we did not independently establish or verify, we have relied upon
certificates of officers of Seller and the representations and warranties of
Seller in the Purchase Agreement.
In rendering the opinions below we do not express any opinion concerning
the laws of any jurisdiction other than the substantive laws of the State of
__________ and the federal laws of the United States of America. We have not
examined the Mortgage Notes, the Mortgages, the Assignments of Mortgages, the
Mortgage Note Endorsements or any other instruments, agreements or other
documents in any Mortgage File (collectively, "Mortgage Documents") and we
------------------
express no opinion as to the conformity of any such Mortgage Document to the
requirements of the Purchase Agreement.
For purposes of this letter, we have assumed that (i) each Mortgage Note
and each Mortgage was appropriately prepared and duly executed and delivered by
the related Mortgagor, each Mortgage was appropriately recorded in the
applicable jurisdiction, and any intervening endorsement of any Mortgage Note,
and any intervening assignment of any Mortgage and recording thereof which was
required in order to transfer to Seller ownership of the related Mortgage Loan,
was obtained and completed; (ii) the amount of the consideration to be paid by
the Purchaser to Seller for the Mortgage Loans constitutes value reasonably
equivalent to the value of the Mortgage Loans; (iii) Seller is not selling the
Mortgage Loans with any intent to hinder, delay or defraud any of its creditors;
(iv) neither Seller nor the Purchaser has been or will be a party to any fraud
or illegality affecting any of the Mortgage Loans; (v) no fraud or mistake on
the part of any party to the Agreement or any other agreement in connection with
the transactions contemplated thereby has occurred or will occur; (vi) no party
to the Purchase Agreement or any other agreement in connection with the
transactions contemplated thereby has taken or will take any action which is
unreasonable, arbitrary or capricious, or which is not taken in good faith or in
a commercially reasonable manner, affecting the Mortgage Loans in connection
with the transactions contemplated thereby; and (vii) the Trustee is not an
affiliate of Seller.
ABN AMRO Mortgage Corp.
____________, 1997
Page 3
Based upon the foregoing, we are of the opinion that:
1. The form of the Mortgage Note Endorsement, if properly incorporated on
a Mortgage Note and duly executed and delivered together with such Mortgage Note
against payment therefor, is sufficient to transfer the ownership of such
Mortgage Note to the transferee thereof.
2. The form of the Assignment of Mortgage, if duly executed, acknowledged
and delivered, is sufficient to assign the beneficial interest under each
Mortgage, if such Mortgage is properly described therein, to the transferee
thereof.
3. The sale of a Mortgage encumbering real estate located in
________________ will be effected under the laws of the State of
____________________ upon the last to occur of (a) the endorsement on the
original of the related Mortgage Note by (or at the direction of or otherwise
upon due authorization from) the transferor, as the owner of such Mortgage Note,
and delivery of same to the transferee, (b) the delivery of the original of such
Mortgage to the transferee, and (c) the due execution, acknowledgment and
delivery of the Assignment of Mortgage to the transferee by (or at the direction
or otherwise upon due authorization from) the transferor, as the owner and
record holder of such Mortgage, in favor of the transferee, contemporaneously
with the delivery of the original of the related Mortgage Notes.
We are furnishing this letter to you solely for your benefit. This letter
is not to be used, circulated, quoted or otherwise referred to for any other
purpose except as anticipated on the Closing Date.
Very truly yours,
[INSERT NAME OF FIRM]
By:___________________________
EXHIBIT E
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Servicing and Custodial Agreement