EXHIBIT 4.2 PROPOSED FORM OF LOAN SALE AGREEMENT
MASTER LOAN SALE AGREEMENT
between
[SELLER]
and
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
dated as of
[Date]
TABLE OF CONTENTS
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 5
SECTION 2. SALE AND PURCHASE OF LOANS 7
2.1 Agreement to Sell and Purchase 7
2.2 Conveyance of Qualified Loans 7
2.3 Conveyance of Mortgage Servicing Documents 9
2.4 Delivery of Payment; Place of Closing 10
SECTION 3. CONDITIONS PRECEDENT 10
3.1 Conditions Precedent to Obligations of Parties 10
3.2 Conditions Precedent to Obligations of Seller 10
3.3 Conditions Precedent to Obligations of Farmer Mac 11
SECTION 4. REPRESENTATIONS AND WARRANTIES 11
4.1 Representations and Warranties of Farmer Mac 11
4.2 Representations and Warranties of the Seller 12
4.3 Replacement of Defective Loans 18
4.4 Absolute and Unconditional Obligations 18
SECTION 5. COVENANTS 19
5.1 Affirmative Covenants of the Seller 19
SECTION 6. INDEMNIFICATION 20
6.1 General 20
6.2 Breaches of Representations and Warranties 20
SECTION 7. MISCELLANEOUS 21
7.1 Loan Sale Supplements 21
7.2 No Waiver; Cumulative Remedies 21
7.3 Counterparts 21
7.4 Governing Laws 21
7.5 Notices 21
7.6 Survival and Termination of Agreement 22
7.7 Entire Agreement 22
7.8 Waiver of Jury Trial 22
7.9 Severability 22
7.10 Assignability 22
7.11 Third Party Beneficiaries 22
(i)
EXHIBITS
LOAN SALE SUPPLEMENT Exhibit A
SECRETARY'S CERTIFICATE OF FARMER MAC Exhibit B
SECRETARY'S CERTIFICATE OF SELLER Exhibit C
FORM OF OPINION OF COUNSEL TO WESTERN FARM CREDIT BANK Exhibit D
(ii)
MASTER LOAN SALE AGREEMENT
MASTER LOAN SALE AGREEMENT, dated as of June 1, 1996 (this
"Agreement"), between [Seller] (the "Seller") and the Federal
Agricultural Mortgage Corporation, a federally chartered
institution of the Farm Credit System ("Farmer Mac").
W I T N E S S E T H:
WHEREAS, the Seller owns or will own certain agricultural
real estate mortgage loans (the "Qualified Loans") to be
identified on the Schedule of Qualified Loans (as hereinafter
defined) attached to each Loan Sale Supplement.
WHEREAS, the Seller desires to sell and Farmer Mac desires to
purchase the Qualified Loans upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties to this Agreement
hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms defined in
the caption or in the recitals hereto shall have the meanings set forth
therein, and the following terms shall have the following meanings:
"Act": Title VIII of the Farm Credit Act of 1971, as amended.
"Additional Collateral Documents": As to any Qualified Loan,
any security documents (including any UCC-1, UCC-2 or UCC-3
Financing Statement) other than those listed in clauses (i)
through (v) of Section 2.2(b), that are delivered to Farmer Mac or
its designee and evidence rights or interests in the related
Mortgaged Property.
"Agricultural Real Estate": As defined in the Act and the Securities
Guide.
"Appraisal Standards": The appraisal standards established
by Farmer Mac and set forth in the Securities Guide.
"Appraised Value": The appraised value of a Mortgaged
Property, which is the appraised value based upon the appraisal
conducted in accordance with the Appraisal Standards less than six
months prior to the Seller's approval for purchase or the Seller's
origination of the Qualified Loan, which approval or origination
shall have occurred not more than six months prior to the Cut-Off
Date.
"Assignment": An assignment of a Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale of the Mortgage
to Farmer Mac or its designee.
"Borrower": The obligor under a Qualified Loan.
"Business Day": Any other day than (i) a Saturday or a
Sunday, (ii) a day on which banking institutions in the States of
Minnesota, New York or [Seller's jurisdiction] are required or
authorized by law to be closed, (iii) a day on which the wire
transfer system of the Federal Reserve Bank of New York is closed
or (iv) a day on which Farmer Mac is closed.
"Closing Date": As defined in the Loan Sale Supplement.
"Collection Period": As defined in the Loan Sale Supplement.
"Contractual Obligations": As to any Person, any provision
of any security issued by such person or of any agreement,
instrument or undertaking to which such person is a party or by
which it or any of the property owned by it is bound.
"Custodian": First Trust National Association or its
successor in interest, including any corporation, association or
bank that purchases substantially all of the corporate trust
business of the Custodian, or its permitted successor as custodian
for Farmer Mac or its designee.
"Cut-Off Date": As defined in the Loan Sale Supplement.
"Cut-Off Date Principal Balance": As to any Qualified Loan
other than an Eligible Substitute Qualified Loan, the unpaid
principal balance thereof at the Cut-Off Date after giving effect
to all installments of principal due on or prior thereto, whether
or not received. As to any Eligible Substitute Qualified Loan, the
unpaid principal balance thereof as of the beginning of the
Collection Period during which such Eligible Substitute Qualified
Loan was assigned to Farmer Mac or its designee.
"Defective Qualified Loan": A Qualified Loan as to which a
representation or warranty made by the Seller under Section 4.2
has been breached and that consequently is required to be replaced
with an Eligible Substitute Qualified Loan by such Seller or
repurchased by such Seller pursuant to Section 2.2 (g) or 4.3.
"Due Date": As to any Qualified Loan, any date upon which a
scheduled installment of principal and interest on such Qualified
Loan is due in accordance with the terms of the related Mortgage
Note.
"Eligible Substitute Qualified Loan": A Qualified Loan that
is substituted for a Defective Qualified Loan pursuant to Section
2.2 (g) or 4.3 and that has characteristics that are acceptable to
Farmer Mac, in its sole discretion.
"Environmental Statute": Any Federal, state or local law,
ordinance, rule or regulation including, but not limited to, the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended; the Hazardous Materials Transportation
Act, as amended; the Resource Conservation and Recovery Act, as
amended; and any regulations adopted and publications promulgated
pursuant to each of the foregoing.
"Farmer Mac": The Federal Agricultural Mortgage Corporation,
a federally chartered institution of the Farm Credit System and
instrumentality of the United States, or any successor corporation
or entity. The term Farmer Mac, when used to refer to the entity
purchasing or holding the Qualified Loans, shall also include any
entity designated by Farmer Mac to be the holder of the Qualified
Loans.
"Governmental Authority": Any nation or government, any
state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Hazardous Materials": Any flammable explosives, radioactive
materials or any other materials, wastes or substances defined as
hazardous materials, hazardous wastes or hazardous or toxic
substances by any Environmental Statute or by any Federal, state
or local governmental authority having or claiming jurisdiction
over the Mortgaged Property.
"Installment Payment": As to any Qualified Loan and any Due
Date, any payment of principal and/or interest thereon in
accordance with the amortization schedule of such Qualified Loan
(after adjustment for any curtailments occurring prior to the Due
Date but before any adjustment to such amortization schedule by
reason of any bankruptcy or similar proceeding or any moratorium
or similar waiver or grace period).
"Loan Sale Supplement": An instrument substantially in the
form of Exhibit A hereto executed by Farmer Mac and the Seller
pursuant to Section 2.2 hereof which supplements this Master Loan
Sale Agreement and identifies the Qualified Loans being sold to
Farmer Mac by the Seller on the Closing Date identified therein
and sets forth the terms of the sale.
"Loan-to-Value Ratio": As of any date, the fraction,
expressed as a percentage, the numerator of which is the principal
balance of the related Qualified Loan at the date of determination
and the denominator of which is the Appraised Value of the related
Mortgaged Property as of the date of the appraisal performed in
accordance with the Appraisal Standards.
"Mortgage": A mortgage, deed of trust or other instrument
that constitutes a first lien on an interest in real property
securing a Mortgage Note.
"Mortgage File": The mortgage documents listed in subsection
2.2(b) pertaining to the particular Qualified Loan.
"Mortgage Note": The originally executed note or other
evidence of indebtedness evidencing the indebtedness of a Borrower
under a Qualified Loan.
"Mortgage Rate": As to any Qualified Loan, the rate of
interest borne by the related Mortgage Note.
"Mortgaged Property": The property securing a Qualified
Loan.
"Mortgage Servicing Documents": The custodial documents,
servicing documents, escrow documents, if any, the original
appraisal, including any updates thereto, which was the basis for
the Appraised Value, and all other documents, records, and tapes
necessary for prudent servicing in accordance with the Seller's
standards for mortgage loan servicing, and such other papers and
documents, tax receipts, insurance policies, insurance premium
receipts, water stock certificates, ledger sheets, payment
records, insurance claim files and correspondence, foreclosure
files and correspondence, current and historical computerized data
files and other papers and records of whatever kind or
description, whether developed or originated by the Seller.
"Officers' Certificate": As to any Person, a certificate
signed by the Chairman of the Board, the Vice Chairman of the
Board, the President, any Executive Vice President, Senior Vice
President, Vice President or Second Vice President, and any of the
Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of such Person delivered pursuant to this
Agreement.
"Opinion of Counsel": A written opinion of counsel
acceptable to Farmer Mac.
"Person": An individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or any other entity of
whatever nature.
"Qualified Loans": As defined in the recitals.
"Purchase Price": As specified in the Loan Sale Supplement.
"Repurchase Price": With respect to any Qualified Loan
required to be purchased on any date pursuant to Section 4.2, an
amount equal to the sum of (i) 100% of the unpaid principal
balance thereof as shown on the Schedule of Qualified Loans less
any principal payments made in respect of such Qualified Loan and
(ii) the unpaid accrued interest at the Net Mortgage Rate on the
unpaid principal balance thereof from the Due Date to which
interest was last paid by the Borrower to the next Due Date for
such Qualified Loan; and (iii) if the date of repurchase by the
Seller occurs after the Qualified Loan has been securitized, any
Yield Maintenance Amount that would be payable under the terms of
the related Mortgage Note as if a Principal Prepayment in Full
were made on the date of repurchase by the Seller and such Yield
Maintenance Amount were calculated based on interest accruing at
the Net Mortgage Rate less the sum of (x) the Guarantee Fee Rate
and (y) the Trustee Fee Rate (each of the Guarantee Fee Rate and
the Trustee Fee Rate having the meaning given such term in the
applicable securitization documents).
"Schedule of Qualified Loans": The list of Qualified Loans
transferred to Farmer Mac or its designee on the Closing Date and
attached to and made part of the Loan Sale Supplement in the form
and containing the information set forth in Attachment I thereto,
which list may be amended pursuant to Section 4.3 upon conveyance
of an Eligible Substitute Qualified Loan. Such schedule, which
shall be in hard copy and in machine readable format to Farmer Mac
and the Custodian, may consist of multiple reports that
collectively set forth all of the information requested.
"Scheduled Principal Balance": As to any Qualified Loan and
any Due Date, the principal balance of such Qualified Loan as of
such Due Date, as specified in the amortization schedule at the
time relating thereto (after adjustments for curtailments
occurring prior to such Due Date but before any adjustment to such
amortization schedule by reason of any bankruptcy or similar
proceeding or any moratorium or similar waiver or grace period)
after giving effect to the payment of principal due prior to such
Due Date, whether or not received from the related Borrower.
"Securities Guide": The publication entitled "Federal
Agricultural Mortgage Corporation Securities Guide," release dated
April 10, 1992, as modified by any guide update or bulletin or as
replaced by any other publication of Farmer Mac identified by
Farmer Mac as a "Selling Guide" or as a "Servicing Guide."
"Servicing Officer": Any officer of the Seller involved in,
or responsible for, the administration and servicing of the
Qualified Loans whose name and specimen signature appears on a
list of servicing officers furnished to Farmer Mac or its designee
by the Seller on the applicable Closing Date, as such list may
from time to time be amended by delivery of written notice by an
existing Servicing Officer.
"Substitution Adjustment Principal Amount": As of any date
of substitution, the amount, if any, by which the unpaid principal
balance of any Defective Qualified Loan for which one or more
Eligible Substitute Qualified Loans are substituted on such date
of substitution exceeds the aggregate Scheduled Principal Balances
of the related Eligible Substitute Qualified Loans.
1.2 Other Definitional Provisions
(a) The words "hereof", "herein" and "hereunder" and
words of similar import when used herein shall refer to this
Agreement as a whole and not to any particular provision of
this Agreement, and section, subsection, attachment, schedule
and exhibit references are to this Agreement unless otherwise
specified.
(b) The meaning given to terms defined herein shall be
equally applicable to the singular and plural forms of such
terms.
(c) Capitalized terms not otherwise defined herein
shall have the meanings assigned to such terms in the
Securities Guide.
SECTION 2. SALE AND PURCHASE OF LOANS
2.1 Agreement to Sell and Purchase. Upon the basis of the
representations, warranties and agreements herein contained and
upon the terms and subject to the conditions set forth herein,
Seller agrees to sell to Farmer Mac and Farmer Mac agrees to
purchase from Seller on each Closing Date, the Qualified Loans
identified in the related Schedule of Qualified Loans for the
applicable Purchase Price.
2.2 Conveyance of Qualified Loans.
(a) On each Closing Date, concurrently with the
execution and delivery of each Loan Sale Supplement and the
payment to the Seller of the Purchase Price, the Seller shall
sell, transfer, assign, set-over and convey to Farmer Mac or
its designee (as Farmer Mac shall designate in writing prior
to such Closing Date) all the right, title and interest of
the Seller in and to the Qualified Loans. The parties hereto
agree that the delivery to the Custodian of any Assignment as
contemplated in paragraph (b)(iii) shall be deemed to have
taken place immediately after the vesting of title in and to
the Qualified Loans in the Custodian on behalf of Farmer Mac,
which vesting will have occurred by virtue of the execution
by Seller and Farmer Mac of the Loan Sale Supplement, dated
the Closing Date, and the delivery of the Mortgage Notes
endorsed as described in paragraph (b)(i).
(b) In connection with such transfer and assignment
described in clause (a) above, Seller will deliver to, or
deposit with, the Custodian on behalf of Farmer Mac, the
following documents or instruments with respect to each
Qualified Loan so assigned:
(i) The Mortgage Note, endorsed in the following
form: "Pay to the order of First Trust National
Association, as Custodian/Trustee without recourse" and
showing an unbroken chain of endorsements from the
original lender thereof to the Person endorsing it to
the Custodian;
(ii) The Mortgage with evidence of recording
indicated thereon or, if (x) the public recording
office retains the original of the Mortgage or (y) the
Custodian receives a certificate of a Servicing
Officer certifying that the original of the Mortgage is
lost, missing or destroyed, a copy of the Mortgage
certified by the public recording office in which such
Mortgage has been recorded to be a true and complete
copy of the original Mortgage;
(iii) A copy of the original Assignment in the
form "First Trust National Association, as
Custodian/Trustee" which assignment or equivalent
instrument may be in the form of one or more blanket
assignments covering Mortgages secured by Mortgaged
Properties located in the same county, if permitted by
law and accompanied by an Opinion of Counsel to that
effect (a copy of such blanket assignment to be
delivered in each applicable Mortgage File) and any
intervening assignments in original recorded form
evidencing an unbroken chain of assignments from the
initial assignor to the Custodian. If the Assignment
is not complete due to the lack of necessary recording
information for insertion in the Assignment as of the
applicable Closing Date, the original Assignment shall
be retained by the Seller until such time as the
necessary information becomes available, at which time
the Seller shall promptly complete the Assignment and
forward it to the appropriate office for recordation.
Upon completion of recordation, the Seller will forward
the original documents (or cause the original documents
to be forwarded) to the Custodian;
(iv) Evidence of title to the Mortgaged Property
(either in the form of an original opinion from an
attorney or firm of attorneys or an original or
certified copy of a lender's title insurance policy or
binding title insurance commitment issued by a title
insurance company);
(v) Either (1) the original of each modification
agreement and each assumption agreement, if any,
relating to such Qualified Loan or, if (x) the public
recording office retains the original of the
modification or assumption agreement or (y) the
Custodian receives a certificate of a Servicing Officer
certifying that the original of the modification or
assumption agreement is lost, missing or destroyed, a
copy of the modification (with respect to the Mortgage)
or assumption agreement certified by the public
recording office in which such Mortgage was recorded to
be a true and complete copy of the original
modification or assumption agreement, or (2) a signed
statement of the Seller that there is no modification
agreement or assumption agreement relating to such
Qualified Loan (such statement may be part of a list of
Qualified Loans as to which no modification agreement
or assumption agreement exists); and
(vi) Any Additional Collateral Documents
relating to such Qualified Loan or a signed statement
of the Seller that there is no Additional Collateral
Document relating to such Qualified Loan (such
statement may be part of a list of Qualified Loans as
to which no Additional Collateral Document exists).
(c) (i) The Seller acknowledges and understands that
ownership of each document comprising a Mortgage File
subsequent to the Closing Date is vested in the
Custodian on behalf of Farmer Mac. The Seller hereby
agrees not to take any action inconsistent with such
ownership.
(ii) In the event that, in connection with any
Qualified Loan, the Seller cannot deliver or cause the
delivery of the Mortgage or any modification or
assumption agreement with evidence of recording thereon
solely because of a delay caused by the public
recording office where such Mortgage or modification or
assumption agreement has been delivered for
recordation, the Seller shall deliver or cause to be
delivered to the Custodian a photocopy, certified to be
true and correct, of such Mortgage or modification or
assumption agreement, as the case may be. The Seller
shall promptly deliver or cause to be delivered to the
Seller such Mortgage or modification or assumption
agreement, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from
the public recording official.
(d) Documents taken as security instruments relating
to any of the Qualified Loans and not delivered to the
Custodian as part of the Mortgage File shall be held by the
Seller in trust for the benefit of Farmer Mac.
(e) In the event that, in connection with any
Qualified Loan, the Seller cannot deliver or cause to be
delivered the Assignment (or blanket Assignment, if
applicable) or intervening assignment with evidence of
recording indicated thereon, the Seller shall deliver or
cause to be delivered to the Custodian a photocopy,
certified to be true and correct, of such Assignment. The
Seller shall deliver or cause to be delivered to the
Custodian such Assignment or intervening assignment with
evidence of recording indicated thereon promptly upon
receipt thereof from the public recording official or, in
the event the original recorded Assignment or intervening
assignment is retained by the public recording office or, if
the Seller certifies that the original recorded Assignment
or intervening assignment, as applicable, is lost, a copy of
such recorded Assignment or intervening assignment, as
applicable, certified by the public recording office.
(f) The Seller shall execute, acknowledge and deliver
all other documents furnished it by Farmer Mac as may be
necessary to effectuate the transfer to Farmer Mac or its
designee of all right, title and interest in and to the
Qualified Loans and the Mortgages.
(g) If the Custodian finds any document or documents
constituting a part of a Mortgage File to be missing,
mutilated, torn, damaged or defective on its face, the
Custodian shall notify the Seller in writing. The Seller
shall then correct or cure such omission or defect or cause
such omission or defect to be corrected or cured within 90
days from the date of such notification. If (x) the Seller
does not correct or cure such omission or defect or cause
such omission or defect to be corrected or cured within such
period and (y) such omission or defect relates to any
document identified in Section 2.2(b), the Seller shall
either (A) replace the related Qualified Loan or cause the
related Qualified Loan to be replaced with one or more
Eligible Substitute Qualified Loans in the manner and
subject to the conditions set forth in Section 4.3 or (B)
purchase such Qualified from Farmer Mac by remitting the
Repurchase Price with respect to such Qualified Loan to
Farmer Mac on date of such purchase. Upon receipt of such
Repurchase Price or Eligible Substitute Qualified Loan,
Farmer Mac shall promptly release to the Seller or its
designee or assignee the related Mortgage File, and shall
also execute and deliver such instruments of transfer or
assignment prepared or caused to be prepared by the Seller,
in each case without recourse, as shall be necessary to vest
in the Seller or its designee any Qualified Loan released
pursuant thereto. The foregoing remedy shall not be deemed
to restrict or limit any right available to Farmer Mac
against the Seller or the Originator of the related
Qualified Loan.
2.3 Conveyance of Mortgage Servicing Documents. In
connection with the transfer and assignment described in Section
2.2 (a) above and the delivery described in Section 2.2 (b) above,
the Seller does hereby agree to deliver to, or deposit with,
Farmer Mac or its designee, all of the Mortgage Servicing
Documents on or before each applicable Closing Date.
2.4 Delivery and Payment; Place of Closing. Subject to
satisfaction of the conditions precedent set forth in Section 3
hereof, on each Closing Date, the Seller shall deliver to Farmer
Mac or its designee, all of the documents referred to in Section
2.2 (b), together with all interest and principal received on or
with respect to the Qualified Loans from and after the Cut-Off
Date (other than payments due on such Qualified Loans on or before
the Cut-Off Date and other than that portion of any payment of
interest received after the Cut-Off Date that represents interest
accruing on or prior to the Cut-Off Date). Such delivery shall be
made against payment by Farmer Mac of the cash portion, if any, of
the Purchase Price to the Seller on the Closing Date by wire
transfer in immediately available funds to an account designated
by the Seller or by delivery to the Seller of any securities to be
received by the Seller.
SECTION 3. CONDITIONS PRECEDENT
3.1 Conditions Precedent to Obligations of Parties.
The respective obligations of Farmer Mac and the Seller hereunder
are subject to the satisfaction, at or prior to each Closing Date,
of the following conditions:
(a) No Injunction, etc. No preliminary or permanent
injunction or other order issued by any Federal or state
court of competent jurisdiction in the United States or by
any United States Federal or state governmental or regulatory
body nor any statute, rule, regulation or executive order
promulgated or enacted by any Governmental Authority which
restrains, enjoins or otherwise prohibits the transactions
contemplated hereby shall be in effect.
(b) No Proceeding or Litigation. No suit, action or
governmental proceeding before any court or any Governmental
Authority shall have been commenced and be pending by any
Governmental Authority against Farmer Mac, the Seller or any
of their respective affiliates, associates, officers,
directors or agents seeking to restrain, prevent or change,
in any material respect, the transactions contemplated hereby
or seeking damages in any amount material to such
transactions.
3.2 Conditions Precedent to Obligation of Seller. The
obligation of the Seller to consummate the transactions
contemplated by this Agreement is subject to the satisfaction at
or prior to each Closing Date of the following additional
conditions:
(a) Accuracy of Representations and Warranties. The
representations and warranties of Farmer Mac contained herein
shall be true and correct in all material respects at and as
of the Closing Date, with the same force and effect as though
made at and as of the Closing Date, except for changes
permitted or contemplated by this Agreement and except to the
extent that any representation or warranty is made as of a
specified date, in which case such representation or warranty
shall be true and correct in all material respects as of such
date.
(b) Secretary's Certificate. At or prior to the first
Closing Date under this Agreement (the "initial Closing
Date"), the Seller shall have received from Farmer Mac a
certificate, dated the initial Closing Date, of Farmer Mac's
Secretary, in the form of Exhibit B, certifying the
incumbency of those officers of Farmer Mac executing this
Agreement, the Loan Sale Supplement or any closing documents
delivered hereunder or thereunder, together with certified
copies of the resolutions of the Board of Directors of Farmer
Mac authorizing the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated herein.
3.3 Conditions Precedent to Obligation of Farmer Mac.
The obligation of Farmer Mac to consummate the transactions
contemplated by this Agreement is subject to the satisfaction at
or prior to each Closing Date of the following additional
conditions:
(a) Accuracy of Representation and Warranties. The
representations and warranties of the Seller contained herein
shall be true and correct in all material respects at and as
of the Closing Date, with the same force and effect as though
made at and as of the Closing Date, except for changes
permitted or contemplated by this Agreement and except to the
extent that any representation or warranty is made as of a
specified date, in which case such representation or warranty
shall be true and correct in all material respects as of such
date.
(b) Performance of Agreements. The Seller shall have
performed and complied with, in all material respects, all
obligations, agreements and covenants contained in this
Agreement to be performed or complied with by it prior to or
at the Closing Date.
(c) Secretary's Certificate. At or prior to the
initial Closing Date, Farmer Mac shall have received from the
Seller a Certificate of Authority, dated the initial Closing
Date, of the Seller's Secretary, in the form of Exhibit C,
certifying the incumbency of those officers of the Seller
executing this Agreement, the Loan Sale Supplement or any
closing documents delivered hereunder or thereunder, and
certifying that the Seller is authorized to execute, deliver
and perform this Agreement this Agreement and the
consummation of the transactions contemplated herein.
(d) Opinions of Counsel. Prior to the initial Closing
Date, Farmer Mac shall have received Opinions of Counsel from
counsel to the Seller, covering the matters set forth in
Exhibit D.
(e) Payment of Fees and Expenses. If specified
therein, the Seller shall have made all payments of fees and
expenses to Farmer Mac as set forth in the Loan Sale
Supplement.
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Farmer Mac.
Farmer Mac represents and warrants to the Seller as follows:
(a) Farmer Mac is a federally chartered
instrumentality of the United States duly organized, validly
existing and in good standing under the laws governing its
creation and existence and with corporate power and
authority to conduct its business as it is currently being
conducted; Farmer Mac holds all licenses, certificates and
permits necessary for the conduct of its business as it is
currently being conducted.
(b) Farmer Mac has the requisite power and authority to
execute and deliver this Agreement and the related Loan Sale
Supplement, to accept the transfer, assignment and delivery
of all of the Qualified Loans and to take all other actions
and execute and deliver all other documents which are
requisite or pertinent to the transactions described in this
Agreement and the Loan Sale Supplement; the persons signing
such documents and taking such actions on behalf of Farmer
Mac have been duly authorized to do so and such documents and
actions are valid, legally binding and enforceable against
Farmer Mac in accordance with their terms.
(c) No action, suit or proceeding is pending or, to the
best of Farmer Mac's knowledge, threatened against Farmer Mac
that would prohibit its entering into this Agreement or
performing its obligations under this Agreement and the Loan
Sale Supplement.
4.2 Representations and Warranties of the Seller. The
Seller hereby represents and warrants to Farmer Mac as follows:
(a) It is a federally chartered instrumentality of the
United States duly organized, validly existing and in good
standing under the laws governing its creation and existence
and with corporate power and authority to conduct its
business as it is currently being conducted; the Seller holds
all licenses, certificates and permits necessary for the
conduct of its business as it is currently being conducted.
(b) It has the requisite power and authority to execute
and deliver this Agreement and the Loan Sale Supplement, to
transfer, assign and deliver all the Qualified Loans to
Farmer Mac and to take all other actions and execute and
deliver all other documents which are requisite or pertinent
to the transactions described in this Agreement and the Loan
Sale Supplement. The persons signing such documents and
taking such actions on behalf of the Seller have been duly
authorized to do so and such documents and actions are valid,
legally binding and enforceable against the Seller in
accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally
or the rights of creditors of an institution of the Farm
Credit System and by general principles of equity (regardless
of whether such enforcement is considered in a proceeding in
equity or at law).
(c) No action, suit or proceeding is pending or, to the
best of its knowledge, threatened against it that would
prohibit its entering into this Agreement or performing its
obligations under this Agreement and the Loan Sale
Supplement.
(d) The Seller hereby represents and warrants to Farmer
Mac that as of each Closing Date (or, if otherwise specified
below, as of the date so specified) with respect to the
Qualified Loans:
(i) The information set forth in the Schedule of Qualified
Loans is true and correct.
(ii) Each Mortgage File contains the documents required by
Section 2.2(b) of this Agreement.
(iii) Each Qualified Loan conforms in all material respects
to the provisions of the Securities Guide, including, but not by way of
limitation, the following:
(A) Each Qualified Loan was originated by an
"Originator" as that term is defined in the Securities
Guide.
(B) The Borrowers under each Qualified Loan
are "Eligible Borrowers" as that term is defined in the
Securities Guide.
(C) Except as otherwise identified in writing
by the Seller, none of the Borrowers under any Qualified
Loan are "Related Borrowers" as that term is defined in
the Securities Guide with respect to any Borrowers under
any other Qualified Loan sold by the Seller pursuant to
this Agreement.
(D) Each Qualified Loan is a "Qualified Loan"
as that term is defined in the Securities Guide.
(iv) The Qualified Loan:
(A) is principally secured by real property
(i.e., had a loan-to-value ratio at origination not in
excess of 125% and, as of the Cut-Off Date, the Loan-to-
Value Ratio is not in excess of 70%); and
(B) is not secured by any collateral having
material value other than the Mortgage and any
Additional Collateral Documents that evidence rights or
interests in the Mortgaged Property.
(v) (A) Any security agreement, chattel mortgage or
equivalent document that is related to the Mortgage has been
delivered to Farmer Mac or its designee and is a valid and
subsisting lien on the property described in such document.
(B) The related Mortgage is a valid first
lien on the fee title to the related Mortgaged Property.
The Mortgaged Property is free and clear of all
mechanics' liens, materialmen's liens or similar types
of liens. There are no rights outstanding that could
result in any of such liens being imposed on the
Mortgaged Property.
(C) Appropriate UCC filing statements on
fixtures and personal property have been filed and a UCC
search has been conducted indicating a security interest
in such fixtures and personal property.
(vi) In connection with the origination of the Qualified
Loan, a lender's title insurance policy was issued by a title
insurance company acceptable to Farmer Mac, or, if such policy
is unavailable, an opinion of counsel was delivered by an attorney
or firm of attorneys rated at least "BV" by Martindale-Hubbell
(or approved by Farmer Mac if no such rating is available). The
title insurance insures (or the title opinion assures) that a lien
of the priority described in clause (v)(B) of this subsection
secures the Mortgage Note, and that the property is not subject to
encumbrances except those taken into account in the appraisal which
established the Appraised Value or which are customarily
acceptable to lenders in the area and do not materially impair the
value of the property.
(vii) Each of the Mortgage Note and Mortgage (including any
amendments or modifications to either such document) and each
additional security document that evidences rights or interests in
the Mortgaged Property has been properly signed, and is the legal,
valid and binding obligation of the Borrower, enforceable by
Farmer Mac and its successors and assigns in accordance with its
terms.
(viii) The Mortgage contains customary and enforceable
provisions that permit the holder of the Mortgage to obtain
marketable title to the Mortgaged Property upon the Borrower's
default under the Mortgage Loan. There is no exemption available
to the Borrower that would interfere with the right to sell the
Mortgaged Property or to foreclose the Mortgage, except for state
statutes or regulations respecting rights of redemption or
mediation or rights to cure defaults or require restructuring of
loans, moratoria on foreclosures or payments, rights of first
refusal or homestead rights; provided that no homestead rights
exempt from foreclosure any portion of the Mortgaged Property if
the value of the remainder of such property would result in a
loan-to-value ratio of more than 70% at the Cut-Off Date.
(ix) The Mortgage contains a provision for the acceleration of
the payment of the unpaid principal balance of the Qualified Loan
in the event that the Mortgaged Property is sold or transferred
without the prior written consent of the mortgagee thereunder.
(x) The Mortgage Note is payable in monthly, quarterly,
semi-annual or annual installments (as specified in the Schedule
of Qualified Loans), so as to result in complete amortization
(after a final payment of principal that may be substantially
disproportionate to the other scheduled payments of principal) of
the Mortgage Loan over the stated or calculated term. The Qualified
Loans do not provide for negative amortization of interest.
(xi) Neither the Mortgage nor the Mortgage Note is usurious
and each meets or is exempt from any applicable usury laws or
regulations.
(xii) All relevant material requirements of federal, state
and local laws, rules and regulations then applicable to the
making, servicing and assigning of the Qualified Loan were complied
with, including, without limitation, equal credit opportunity,
disclosure and truth-in-lending laws.
(xiii) There are no tax or insurance escrow deposits or escrow
payments relating to the Qualified Loan.
(xiv) The Mortgage provides that the holder may make advances
under the Mortgage to protect the holder's interest in the Mortgaged
Property and to protect the Mortgaged Property from loss. Repayment
of such advances (including reasonable costs and attorney's fees)
plus interest at a default rate of interest is an obligation of the
Borrower, secured by the Mortgage.
(xv) The Mortgage Note provides either that: (i) any Installment
Payment not received by the fifteenth day of the month in which it is
due shall accrue interest at a default rate; or (ii) a late charge
equal to a percentage of the delinquent Installment Payment must
be paid as a penalty if such Installment Payment is not received
by the fifteenth day of the month in which it is due.
(xvi) The Qualified Loan is not subject to any right of
rescission, set-off, counterclaim or defense.
(xvii) The Mortgage has not been satisfied, canceled or
subordinated. There have been no material modifications or
amendments to the Mortgage or other principal mortgage documents
except as contained in the Mortgage File delivered to Farmer Mac
or its designee.
(xviii) There are no defaults under the Mortgage or Mortgage
Note and all taxes, governmental assessments, insurance premiums,
water, sewer, and municipal charges relating to the Mortgaged
Property that previously became due and owing have been paid.
(xix) The Qualified Loan has been either not more than:
(x) 30 days delinquent in payment of principal or interest during
the twelve months preceding the Cut-Off Date or (y) 60 days
delinquent in payment of principal or interest during the three
years preceding the Cut-Off Date; and
(xx) The Seller has not advanced funds to, or induced,
solicited or knowingly received any advance of funds (nor will the
Seller advance funds, or induce, solicit or knowingly receive any
advance of funds) from a party other than the Borrower, directly or
indirectly, for the payment of any amount required under the
Qualified Loan other than short term loans made in the ordinary
course of business.
(xxi) An appraisal to establish the Appraised Value of the
related Mortgaged Property has been conducted in accordance with
the Appraisal Standards.
(xxii) All of the improvements on the Mortgaged Property
that were included for the purpose of determining the Appraised
Value are within the boundaries and building restriction lines of
such property, and no improvements on adjoining properties encroach
upon the Mortgaged Property.
(xxiii) The structures included in the appraisal establishing
the Appraised Value of the Mortgaged Property are free of material
damage and are in good repair.
(xxiv) All improvements on the Mortgaged Property included in
the Appraised Value are insured against loss by a Standard Hazard
Insurance Policy that conforms to the requirements of the Securities
Guide.
(xxv) Any applicable zoning laws or regulations or any
inspections, licenses or certificates required with respect to the
use and occupancy of the related Mortgaged Property were complied
with, duly made or issued, as the case may be.
(xxvi) The Seller or its agent has physically inspected the
related Mortgaged Property and observed its main activities within
180 days prior to the Cut-Off Date and has observed that activities
on such Mortgaged Property appeared to have been conducted in a
manner conforming to sound environmental practices as currently
understood and, to the best of Seller's knowledge:
(A) the Borrower has handled on the property
only Hazardous Materials customarily used in the
operation of a farm or ranch, including ordinary
cleaning fluids, fuel oil, fertilizers and pesticides,
and only in accordance with any applicable Environmental
Statute;
(B) the Borrower has not otherwise produced
or disposed of Hazardous Materials on the Mortgaged
Property;
(C) there has been no discharge of Hazardous
Materials into waters on or adjacent to the Mortgaged
Property, or onto lands from which such substances might
seep, flow or drain into such waters in a manner which
violates any Environmental Statute; and
(D) there has been no event that could give
rise to a claim under any Environmental Statute or under
common law, pertaining to Hazardous Materials on or
originating from the Mortgaged Property or any other
real property owned or occupied by the Borrower or
arising out of the conduct of the Borrower, including
pursuant to any Environmental Statute.
(xxvii) There is no proceeding pending, currently
occurring or, to the best of Seller's knowledge threatened,
for the total or partial condemnation of the Mortgaged
Property.
(xxviii) The Seller knows of nothing involving the
Mortgage, the Mortgaged Property, the Borrower, or the
Borrower's credit standing that can reasonably be expected
to: (a) cause private institutional investors to regard the
Mortgage as an unacceptable investment (b) cause the Mortgage
to become delinquent or (c) adversely affect the Mortgage's
value or marketability.
(xxix) The Qualified Loan is not cross-collateralized
with any other mortgaged properties not subject to this
Agreement and there are no lenders who own a participation
interest in the Qualified Loan.
(xxx) To the extent necessary to preserve the value of the
Mortgaged Property, a security interest has been properly perfected
in any water rights and entitlements associated with the Mortgaged
Property and such documentation has been obtained as may be
necessary to insure the delivery of water to the Mortgaged
Property.
(xxxi) The Mortgaged Property is contiguous to a public
thoroughfare, or includes such rights-of-way or easements so that
a public thoroughfare provides for reasonable ingress and egress
to such property.
(xxxii) The proceeds of the Qualified Loan have been fully
disbursed, there is no requirement for future advances thereunder
and any and all requirements as to completion of any on-site or
off-site improvements and as to disbursement of any escrow funds
therefor have been complied with. All costs, fees, transfer taxes,
and expenses incurred in making, closing or recording the Qualified
Loan have been paid.
Upon discovery by either the Seller or Farmer Mac (including
a designee of Farmer Mac) of a breach of any of the representations and
warranties set forth in this section 4.2 (b), the Person discovering such
breach shall give prompt written notice to the other party. Within 90 days
of its discovery or its receipt of notice of any such breach, the Seller
shall either (i) cure such breach in all material respects, (ii) purchase
the related loan from Farmer Mac by the deposit of the Repurchase Price into
an account designated by Farmer Mac, or (iii) replace such Qualified Loan
with one or more Eligible Substitute Qualified Loans (but only if such
replacement will not have adverse tax or other economic consequences to
Farmer Mac or its assignee) in the manner and subject to the conditions set
forth in Section 4.3.
It is understood and agreed by the parties hereto that the
representations and warranties set forth in this subsection 4.2
shall survive delivery of the respective Mortgage Files to Farmer
Mac, and delivery thereof by Farmer Mac to its designee, and that
all representations and warranties are made by Seller for the
express benefit of Farmer Mac and its designee, and that such
parties are expressly authorized by Seller to rely on such
representations and warranties.
4.3 Replacement of Defective Loans. If the Seller elects to
replace a Defective Qualified Loan pursuant to Section 2.2(g) or
the penultimate paragraph of Section 4.2, the Seller shall on the
date of substitution:
(a) convey one or more Eligible Substitute Qualified
Loans and deliver the related Mortgage Files to Farmer Mac or
its designee as provided in subsection 2.2; and
(b) deposit or cause to be deposited in an account
designated by Farmer Mac no later than the date of
substitution the related Substitution Adjustment Principal
Amount, if any, plus (i) interest on such Substitution
Adjustment Principal Amount at the Mortgage Rate of the
related Defective Qualified Loan from the previous Due Date
for such Defective Qualified Loan (or, if there has been no
Due Date for such Defective Qualified Loan subsequent to the
Cut-Off Date, from the Cut-Off Date) to the date of
substitution and (ii) interest on the unpaid principal
balance of the related Defective Qualified Loan at the
Mortgage Rate thereof from the Cut-Off Date or any Due Date
as to which the related Installment Payment had been made to
any Due Date prior to the date of substitution as to which
the related Installment Payment remains delinquent as of the
date of substitution; and
(c) deliver to Farmer Mac an Officer's Certificate
certifying that the requirements of this Agreement with
respect to the replacement of Defective Qualified Loans have
been met.
4.4 Absolute and Unconditional Obligation. The Seller
agrees that its obligation to cure, repurchase or substitute a
Qualified Loan pursuant to Section 4.2 is absolute and
unconditional and that it will make any such cure, repurchase or
substitution irrespective of any defense, claim, set-off,
recoupment, abatement or other right that it may have against
Farmer Mac or any other Person, or of any amendment, supplement,
waiver or other circumstance, whether similar or dissimilar, which
in any manner would constitute a legal or equitable excuse for non-
performance by it of such obligation to cure, purchase or
substitute.
SECTION 5. COVENANTS
5.1 Affirmative Covenants of the Seller.
(a) Further Assurances. The Seller agrees, from time
to time, at its expense, to execute and deliver promptly to
Farmer Mac all further instruments and documents, and take
all further action, that may be reasonably necessary, or that
Farmer Mac may reasonably request, in order to effectuate the
purposes of this Agreement or the Loan Sale Supplement.
(b) Access to Documentation. Upon the prior written
request of Farmer Mac received reasonably in advance, the
Seller shall provide representatives of Farmer Mac reasonable
access to documentation regarding the Qualified Loans during
normal business hours at the offices of the Seller designated
by it. The Seller shall permit such representatives to
photocopy any such documentation and shall provide equipment
for that purpose.
SECTION 6. INDEMNIFICATION
6.1 General. Each party agrees to pay the reasonable costs
of the other party if such other party prevails in an action to
enforce or remedy the breach or violation of this Agreement by
such party.
6.2 Breaches of representations and warranties. The remedy
set forth in Section 4.2 with respect to breaches of
representations and warranties by the Seller shall not be deemed
to restrict or limit any right available to Farmer Mac against the
Seller with respect to the Qualified Loans. The Seller agrees to
hold Farmer Mac and any assignee of Farmer Mac harmless against
any loss or expense (including any incidental or indirect cost)
incurred (or to be incurred, as such costs are incurred) to the
extent that such loss or expense can reasonably be determined by
Farmer Mac to have been (or to be) the result of such breach.
SECTION 7. MISCELLANEOUS
7.1 Loan Sale Supplements. A Loan Sale Supplement
identifying the Qualified Loans to be sold to Farmer Mac by the
Seller on each Closing Date and establishing the terms of such
sale shall be substantially in the form annexed hereto as Exhibit
A (with such changes thereto as Farmer Mac and the Seller shall
agree to), shall have attached thereto a Schedule of Qualified
Loans dated as of the date thereof and shall be executed by
Farmer Mac and the Seller as of the related Closing Date. Each
Loan Sale Supplement shall identify and relate to the particular
Qualified Loans. Such Schedule of Qualified Loans shall list all
Qualified Loans sold to Famer mac by Seller on the related Closing
Date and shall show as to each Qualified Loan the information
provided for in Exhibit 2 to the Loan Sale Supplement. The Loan
Sale Supplement together with this Master Loan Sale Agreement
shall constitute the Loan Sale Agreement with respect to the
related Qualified Loans.
7.2 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of Farmer Mac, any right,
remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive or any rights, remedies,
powers or privileges provided by law.
7.3 Counterparts. This Agreement may be executed in any
number of separate counterparts and all of such counterparts taken
together shall be deemed to constitute one and the same
instrument.
7.4 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, FEDERAL LAW. TO THE
EXTENT FEDERAL LAW INCORPORATES STATE LAW, THAT STATE LAW SHALL BE
THE LAWS OF THE STATE OF NEW YORK.
7.5 Notices. All notices, requests, demands, waivers and
other communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) two business days after
it is mailed, certified or registered, return receipt requested,
with postage prepaid, (c) when sent by telex, telegram or telecopy
(with receipt confirmed) or (d) one business day after it is sent
by Express Mail, FedEx or other express delivery service, as
follows:
(a) if to the Seller, to it at:
[Seller]
[Address]
Attention:
Telecopy Number:
(b) if to Farmer Mac, to it at:
Federal Agricultural Mortgage Corporation
919 Eighteenth St., N.W.
Suite 200
Washington, DC 20006
Attention: Vice President - Mortgage-Backed
Securities
Telecopy Number: 202-872-7713
or to such other persons, addresses and telecopier numbers as a
party shall specify as to itself by notice in writing to the other
party.
7.6 Survival and Termination of Agreement. All covenants,
agreements, representations and warranties made herein and in any
certificate, document or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of
this Agreement until the later of the receipt by Farmer Mac or its
assignee of payment in full in respect of all Qualified Loans and
the satisfaction of all of the Mortgages.
7.7 Entire Agreement. This Agreement (which, for this
purpose, includes the Loan Sale Supplement) sets forth the entire
agreement of the parties hereto with respect to its subject
matter, and supersedes all previous understandings, written or
oral, with respect thereto.
7.8 Waiver of Jury Trial. The Seller and Farmer Mac hereby
irrevocably and unconditionally waive trial by jury in any legal
action or preceding relating to this Agreement or the Loan Sale
Supplement.
7.9 Severability. Any provision of this Agreement or the
Loan Sale Supplement which is prohibited, unenforceable or not
authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability or
non-authorization without invalidating the remaining provisions
hereof or thereof or affecting the validity, enforceability or
legality of any such provision in any other jurisdiction.
7.10 Assignability. Except as herein contemplated, neither
this Agreement nor the Loan Sale Supplement shall be assigned by
either of the parties hereto without the prior written consent of
the other party; provided, however, that Farmer Mac may assign
this Agreement to any affiliate of Farmer Mac without prior notice
or consent of the Seller.
7.11 Third Party Beneficiaries. Any assignee or designee of
Farmer Mac, including an assignee holding the Qualified Loans for
the benefit of holders of securities guaranteed by Farmer Mac, is
a third party beneficiary to this Agreement or the Loan Sale
Supplement entitled to enforce the representations and warranties,
indemnities and obligations of the parties hereto. Except as
otherwise provided, the parties to this Agreement hereby manifest
their intent that no third party other than such assignee or
designee, including an assignee for the benefit of such holders of
securities, shall be deemed a third party beneficiary of this
Agreement or the Loan Sale Supplement, and specifically that the
Borrowers are not third party beneficiaries of this Agreement or
the Loan Sale Supplement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
[SELLER]
By: _____________________________________________
Name:
Title:
FEDERAL AGRICULTURAL MORTGAGE CORPORATION,
By:______________________________________________
Name: Henry D. Edelman
Title: President and Chief Executive Officer
EXHIBIT A
LOAN SALE SUPPLEMENT
between
[SELLER]
and
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
dated as of
June 1, 1996
EXHIBIT B
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
Secretary's Certificate of Farmer Mac
I, Michael T. Bennett, hereby certify that I am the duly
elected or appointed Secretary of the Federal Agricultural
Mortgage Corporation ("Farmer Mac"), and further certify as
follows:
1. Attached hereto as Exhibits A, B and C, respectively,
are true and correct copies of the Charter and Bylaws of
Farmer Mac and the resolutions of the Board of Directors of
Farmer Mac authorizing the execution, performance and
delivery of the Master Loan Sale Agreement dated as of June
1, 1996 (the "Master Loan Sale Agreement") and the Loan Sale
Supplement dated as of June 1, 1996 (the "Loan Sale
Supplement"), each between [Seller] ("[Seller]"), as seller
and Farmer Mac, each of which is in full force and effect on
the date hereof.
2. Each person purporting to execute, either manually or
by facsimile signature, on behalf of Farmer Mac (a) the
Master Loan Sale Agreement and the Loan Sale Supplement and
(b) any other document delivered in connection with the sale
and purchase of the Qualified Loans and the closing related
thereto was, at the respective times of such signing and
delivery, and is, as of the date hereof, duly appointed,
qualified and acting as such officer, and was and is duly
authorized to accept the duties and make the statements
provided for in such documents. The signature of each such
person as it appears on any such document is the genuine
signature of such person.
3. Farmer Mac has the full power and authority to enter
into and consummate all transactions contemplated by the
Master Loan Sale Agreement and the Loan Sale Supplement, has
duly authorized the execution, delivery and performance of
the Master Loan Sale Agreement and the Loan Sale Supplement
and has duly executed and delivered the Master Loan Sale
Agreement and the Loan Sale Supplement.
4. At the date hereof, each of the Master Loan Sale
Agreement and the Loan Sale Supplement is in full force and
effect as regards Farmer Mac, and the representations and
warranties of Farmer Mac set forth in Section 4.1 of the
Master Loan Sale Agreement are accurate and complete.
Capitalized terms used and not otherwise defined herein
shall have the meanings specified in the Master Loan Sale
Agreement and the Loan Sale Supplement.
IN WITNESS WHEREOF, I have hereunto signed my name on behalf
Farmer Mac on and as of this 6th day of June, 1996.
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
By:_________________________________________
Name: Michael T. Bennett
Title: Secretary
I, Christopher A. Dunn, a Vice President of the Federal
Agricultural Mortgage Corporation, hereby certify that
Michael T. Bennett is the duly appointed, qualified and
acting Secretary of the Federal Agricultural Mortgage
Corporation and that the signature appearing above is his
genuine signature.
By: ___________________________________________
Name: Christopher A. Dunn
Title: Vice President-Mortgage-Backed Securities
EXHIBIT C
[SELLER]
Secretary's Certificate of Seller
I, [ ], hereby certify that I am the duly
elected or appointed Secretary of [Seller], and further
certify as follows:
1. Attached hereto as Exhibits A and B, respectively, are
true and correct copies of the Charter and Bylaws of
[Seller] each of which is in full force and effect on the
date hereof.
2. Each person purporting to execute, either manually or
by facsimile signature, on behalf of [Seller] (a) the Master
Loan Sale Agreement dated as of June 1, 1996 (the "Master
Loan Sale Agreement") and the Loan Sale Supplement dated as
of June 1, 1996 (the "Loan Sale Supplement"), each between
[Seller], as seller, and the Federal Agricultural Mortgage
Corporation, as purchaser, and (b) any other document
delivered in connection with the sale and purchase of the
Qualified Loans and the closing related thereto was, at the
respective times of such signing and delivery, and is, as of
the date hereof, duly appointed, qualified and acting as
such officer, and was and is duly authorized to accept the
duties and make the statements provided for in such
documents. The signature of each such person as it appears
on any such document is the genuine signature of such
person.
3. [Seller] has the full power and authority to enter into
and consummate all transactions contemplated by the Master
Loan Sale Agreement and the Loan Sale Supplement, has duly
authorized the execution, delivery and performance of the
Master Loan Sale Agreement and the Loan Sale Supplement and
has duly executed and delivered the Master Loan Sale
Agreement and the Loan Sale Supplement.
4. At the date hereof, each of the Master Loan Sale
Agreement and the Loan Sale Supplement is in full force and
effect as regards [Seller], and the representations and
warranties of [Seller] set forth in Section 4.2 of the
Master Loan Sale Agreement are accurate and complete.
Capitalized terms used and not otherwise defined herein
shall have the meanings specified in the Master Loan Sale
Agreement and the Loan Sale Supplement.
IN WITNESS WHEREOF, I have hereunto signed my name on behalf
[Seller] on and as of this _th day of ____, 199_.
[SELLER]
By:________________________________
Name:
Title: Secretary
I, , a
of [Seller, hereby certify that_________________________________
is the duly appointed, qualified and acting Secretary of
[Seller] and that the signature appearing above is [his/her]
genuine signature.
By:______________________________
Name:
Title:
EXHIBIT D
[FORM OF OPINION OF COUNSEL TO THE SELLER]
[Letterhead of [ ]Esq.]
, 1996
Federal Agricultural Mortgage Corporation
919 18th Street, N.W.
Suite 200
Washington, DC 20006
Re: Sale of Qualified Loans
Dear Sir or Madam:
I have acted as counsel to [Seller], a [
] (the "Seller") in connection with the sale of Qualified
Loans (the "Qualified Loans") to Farmer Mac pursuant to the
Master Loan Sale Agreement dated as of June 1, 1996 (the
"Master Loan Sale Agreement") and the Loan Sale Supplement
dated as of June 1, 1996, each between [the Seller], as
Seller and Farmer Mac. Unless indicated otherwise, all
capitalized terms used herein shall have the meanings
assigned to them in the Loan Sale Supplement.
In that connection, I have examined originals, or
copies certified or otherwise identified to my satisfaction,
of such documents, corporate records and other instruments
as I have deemed necessary or appropriate for the purposes
of this opinion.
As to matters of fact, I have examined and relied upon
representations of the parties contained in each of the
Master Loan Sale Agreement and the Loan Sale Supplement and,
where I have deemed appropriate, representations or
certifications of officers of [Seller] or public officials.
I have assumed the authenticity of all documents submitted
to me as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the
originals of all documents submitted to me as copies. I
have assumed that all parties, except for [Seller], had the
corporate power and authority to enter into and perform all
obligations under such documents, and, as to such parties, I
also have assumed the due authorization by all requisite
corporate action, the due execution and delivery and the
validity, binding effect and enforceability of such
documents. I have further assumed the conformity of the
Qualified Loans and related documents to the requirements of
each of the Master Loan Sale Agreement and the Loan Sale
Supplement.
In rendering this opinion letter, I do not express any
opinion concerning the securities laws of any jurisdiction.
I do not express any opinion on any issue not expressly
addressed below.
Based upon the foregoing, I am of the opinion that:
(a) [Seller] is an instrumentality duly
organized, validly existing and in good standing
under the laws of the United States, with
corporate power and authority to conduct its
business as it is currently being conducted.
(b) [Seller] has the requisite power and
authority to execute and deliver each of the
Master Loan Sale Agreement and the Loan Sale
Supplement and to perform its obligations under
such Agreements.
(c) Each of the Master Loan Sale Agreement and
the Loan Sale Supplement has been duly authorized,
executed and delivered by [Seller] and constitutes
a valid and binding agreement of [Seller],
enforceable against [Seller] in accordance with
its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium and other
similar laws affecting creditors' rights generally
and (ii) general principles of equity (regardless
of whether enforcement is sought in a proceeding
in equity or at law).
(d) There are no actions, proceedings or
investigations pending, or to the best of my
knowledge, threatened against [Seller] before any
court, administrative agency or other tribunal (a)
asserting the invalidity of either of the Master
Loan Sale Agreement or the Loan Sale Supplement,
(b) seeking to prevent the consummation of any of
the transactions contemplated by the Master Loan
Sale Agreement and the Loan Sale Supplement, or
(c) that might reasonably be expected to
materially and adversely affect the performance by
[Seller] of its obligations under, or the validity
or enforceability of, either of the Master Loan
Sale Agreement or the Loan Sale Supplement.
(e) Neither the consummation of any
other of the transactions contemplated by the
Master Loan Sale Agreement and the Loan Sale
Supplement nor the compliance by [Seller] with any
of the provisions thereof will conflict with,
constitute a default under or violate any
applicable [Seller's state] or federal laws or
regulations.
(f) No consent, approval, authorization or order
of any court, regulatory or supervisory authority
or governmental agency or body is required for the
consummation by [the Seller] of the transactions
contemplated in each of the Master Loan Sale
Agreement and the Loan Sale Supplement or for the
performance by [the Seller] of the transactions or
obligations contemplated in therein.
(h) [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, county
or municipal agency, which default might have
consequences that would materially and adversely
affect its condition (financial or other),
operations or properties or might have
consequences that would materially and adversely
affect its performance under each of the Master
Loan Sale Agreement and the Loan Sale Supplement.
I am a member of the bar of the State of [ ]
and express no opinion as to the laws of any jurisdiction
other than those of the State of [ ]
and the laws of the United States of America.
I am furnishing this opinion letter to you solely for your
benefit. This opinion is not to be used, circulated, quoted
or otherwise referred to for any other purpose.
Very truly yours,