SALE AND PURCHASE AGREEMENT
(Conventional - Flow)
THIS SALE & PURCHASE AGREEMENT (the "Agreement"), is made and entered into
as of March 25, 1995, by and between TMS Mortgage, Inc. the ("Purchaser"), and
Westmark Mortgage Corporation (the "Seller").
WITNESSETH
WHEREAS, Seller is engaged in the origination and sale of loans (as
hereinafter defined; and
WHEREAS, Seller desires to sell and Purchaser desires to purchase Loans
which were originated or purchased by Seller and which are the subject of this
Agreement; and
WHEREAS, Purchaser has agreed to purchase and Seller has agreed to sell
said Loans from time to time pursuant to the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements contained herein, the Purchaser and Seller each agree as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. All words and phrases defined in this Article I
(except as expressly provided otherwise herein or unless the context otherwise
requires) shall have the respective meanings specified in this Article I for all
purposes of this Agreement.
(a) "Agreement" means this Sale and Purchase Agreement entered into by and
between Purchaser and Seller, and all exhibits, amendments and supplements
attached hereto.
(b) "Assignment of Mortgage" means an assignment of all of a Seller's
right, title and interest in and to a Mortgage for the benefit of Purchaser, in
a form acceptable to Purchaser, to be executed by Seller in connection with each
Loan purchased hereunder, as applicable.
(c) "Business Day" means any day of the week other than Saturday, Sunday,
or a day which is a legal holiday in the states of ________ or New Jersey, or a
day on which national banking institutions are authorized or obligated by law or
executive order to close.
(d) "Debtor Relief Laws" means any applicable liquidation, conservatorship,
bankruptcy, insolvency, rearrangement, moratorium, reorganization, or similar
debtor relief laws affecting the rights of creditors generally from time to time
in effect in any state or under the Laws of the United States.
(e) "Delivery Date" means that date which is five(5) Business days prior to
the relevant Purchase Date and on which the Loan Documents for Loans purchased
hereunder are required to be delivered to Purchaser or its designated agent.
(f) "Document Delivery Procedures" means the procedures established by
Purchaser for the delivery of Loan Documents evidencing Loans to be purchased
hereunder, attached hereto as Exhibit "B", as may be amended from time to time
by Purchaser in its sole discretion.
(g) "Flood Insurance Policy" means a policy of insurance issued by the
Federal Emergency Management Agency pursuant to the National Flood Insurance Act
of 1968, as amended, or any other policy providing similar coverage against loss
sustained by floods conforming to Federal Housing Administration requirements.
(h) "Laws" means all applicable statutes, laws, ordinances, regulations,
orders, writs, injunctions or decrees of the United States or any agency
thereof, or any state, or political subdivision thereof, or any court of
competent jurisdiction thereof.
(i) "Loan" means those loans that have been originated by Seller to provide
financing for residential real estate, and that are the subject of Purchase
under this agreement, as more particularly described on Exhibit "A" entitled
"Mortgage Loan Schedule", attached hereto and made part hereof.
(j) "Loan Documents" means the Notes, Mortgages and all accompanying
instruments, insurance policies, if applicable, evidence of compliance with
applicable Laws and other writings that document, evidence or relate to the
Loans purchased hereunder which
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include, without limitation, all documents required to be delivered by Seller to
Purchaser pursuant to the terms of this Agreement and the Document Delivery
Procedures.
(k) "Loan File" means that set of Loan Documents relative to each Loan.
(l) "Mortgage" means the deed of trust, deed to secure debt, trust deed or
mortgage securing repayment of the debt evidenced by a Note executed by an
Obligor for each individual Loan purchased hereunder, as applicable.
(m) "Mortgage Loan Schedule" means that list of loans reflected on a
schedule substantially similar in form to Exhibit "A" attached hereto,
identifying those loans submitted by Seller to Purchaser for review and approval
for Purchase which, when executed by both parties, is incorporated herein and
made part of this Agreement.
(n) "Note" means an instrument evidencing the debt of an Obligor under a
Loan whether such instrument is a note, promissory note, retail installment
contract or obligation, bond, note secured by real estate, or otherwise
characterized.
(o) "Notice Address" means:
(i) Purchaser: Corporate Counsel
The Money Store
0000 Xxxxxx Xxxxxx
Xxxxx, Xxx Xxxxxx 00000
(000) 000-0000 (000) 000-0000 (FAX)
and Xxxxxxx Xxxxxx - Correspondent Lending
The Money Store
0000 X Xxxxxx, Xxxxx 000-X
Xxxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000 (000) 000-0000(FAX)
(ii) Seller: Westmark Mortgage Corp.
000 XX 0xx Xxx, Xxxxx 0
Xxxxxx Xxxxx, Xx 00000
Attention: X. Xxxxx
(p) "Obligor" means the obligor(s) on a Note, or a subsequent owner of a
Real Property who has assumed the respective Mortgage.
(q) "Permitted Encumbrances" means with respect to a Mortgage, those
liens, covenants, conditions, restrictions, rights-of-way, easements, and other
matters that are of public record as of the date of the recording of a Mortgage.
(r) "Pricing Schedule" means the pricing matrix set forth in Exhibit "C",
attached hereto and made part hereof.
(s) "Purchase" means the purchase of a Loan by Purchaser from Seller on the
Purchase Date, pursuant to the terms and conditions of this Agreement.
(t) "Purchase Date" means the funding date for the purchase of Loans
hereunder which shall be the fifteenth (15th), or the first preceding Business
Day thereto, and last Business Day of each calendar month, unless otherwise
agreed to in writing by the parties.
(u) "Real Property" means the underlying fee simple security for each Loan
which shall consist only of real property improved by one to four family
residences.
Section 1.2 Forms. All forms specified by the text hereof or by references
to exhibits attached hereto shall be as set forth herein, subject only to such
changes that do not alter the substantive rights of the parties hereto, or as
may be required by applicable Laws.
Section 1.3 Recitals, Titles and Headings. The terms and phrases used in
the recitals and the titles and headings of the articles and sections of this
Agreement have been included for convenience of reference only and the meaning,
construction and interpretation of such words and phrases for purposes of this
Agreement shall be determined solely by references to Section 1.1 hereof, shall
not be considered a part hereof, shall not in any way modify or restrict any of
the terms or provisions hereof and shall not be considered or given any effect
in construing this Agreement or any provision hereof or in ascertaining intent,
if any question of intent should arise.
Section 1.4 Interpretation. Unless the context requires otherwise, words of
the masculine gender shall be construed to include correlative words of the
feminine and neuter genders and vice versa, and words of the singular number
shall be construed to include correlative words of the plural number and vice
versa. This Agreement, and all the terms and provisions hereof, shall be
construed to effect the purposes set forth herein and to sustain the validity of
this Agreement.
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ARTICLE II
Representations, Warranties and Covenants
Section 2.1 Representations, Warranties and Covenants of Purchaser.
Purchaser makes the following representations, warranties, and covenant to
Seller:
(a) Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of its state of incorporation and possesses all
requisite authority, power, licenses, permits and franchises to conduct any and
all business contemplated by this Agreement and to execute, deliver and comply
with its obligations under the terms of this Agreement, the execution, delivery
and performance of which have been duly authorized by all necessary corporate
action.
(b) The execution and delivery of this Agreement by Purchaser in the manner
contemplated herein and the performance and compliance with the terms hereof by
it will not violate: (i) its certificate of incorporation or bylaws, or (ii)
any laws that could have a material adverse effect upon the validity,
performance or enforceability of any of the terms of this Agreement applicable
to Purchaser, and will not constitute a material default (or an event that, with
notice or lapse of time or both, would constitute a material default) under, or
result in the material breach of, any contract, agreement or other instrument to
which Purchaser is a party.
(c) The execution and delivery of this Agreement by Purchaser in the manner
contemplated herein and the performance and compliance with the terms hereof by
it do not require the consent or approval of any government authority, or if
such consent or approval is required, it has been obtained.
(d) This Agreement, and all documents and instruments contemplated hereby
that are executed and delivered by Purchaser shall constitute valid, legal and
binding obligations of Purchaser, enforceable in accordance with their
respective terms except as the enforcement thereof may be limited by applicable
Debtor Relief Laws.
Section 2.2 Representations, Warranties and Covenants of Seller. Seller
makes the following representations, warranties and covenants to Purchaser:
(a) Seller is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction governing its creation and existence
and is duly authorized and qualified to transact its business and is in good
standing in each jurisdiction in which its business, properties or the business
contemplated by this Agreement requires such authorization and qualification.
Seller possesses all requisite authority, power, licenses, permits and
franchises to conduct its business and to execute, deliver and comply with its
obligations under the terms of this Agreement and to sell Loans to Purchaser.
The execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate action.
(b) The execution and delivery of this Agreement by Seller in the manner
contemplated herein and the ongoing performance and compliance with the terms
hereof by Seller will not violate: (i) its certificate of incorporation and
bylaws or other governing documents as applicable, or (ii) any laws that could
have an adverse effect upon the validity, performance or enforceability of any
of the terms of this Agreement applicable to the Seller, and will not violate or
constitute a material default (or an event that, with notice or lapse of time or
both, would constitute a material default) under, or result in the breach of,
any contract, agreement or other instrument to which the Seller is a party.
(c) The execution and delivery of this Agreement by Seller in the manner
contemplated herein and the ongoing performance and compliance with the terms
hereof by it do not require the consent or approval of any governmental
authority or, if such consent or approval is required, it has been obtained.
(d) This Agreement and all documents and instruments contemplated hereby
which are executed and delivered by seller constitute valid, legal and binding
obligations of Seller, enforceable in accordance with their respective terms,
except as the enforcement hereof may be limited by applicable Debtor Relief
Laws.
(e) No information, certificate, statement, or written report delivered to
Purchaser or its agents in connection with this Agreement, or any other report
required hereunder, contains or shall contain any untrue statement of a material
face or omit to state a material fact necessary to make the information,
certificate, statement or report not misleading.
(f) The sale of each Loan shall be reflected on Seller's balance sheet and
other financial statements as a sale of assets by Seller. Seller will not take
any action or omit to take any action which would cause the transfer of the
Loans to Purchaser to be treated as anything other than a sale to Purchaser of
all of Seller's right, title and interest in and to each Loan.
(g) There is no litigation pending, or to Seller's knowledge which, if
determined adversely to Seller, would adversely affect the sale of the Loans,
the execution, delivery or enforceability of this Agreement, or which would
have a material adverse effect on the financial condition of Seller.
(h) The transfer, assignment and conveyance of Loans by Seller pursuant to
this Agreement are in the ordinary course of Sellers' business and are not
subject to the bulk transfer or any similar statutory provisions in effect in
any applicable jurisdiction. Seller is not transferring the Loans with an actual
intent to hinder, delay or defraud any of its creditors. Seller is solvent and
will not be rendered insolvent by the sale of any Loans.
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(i) The sale, transfer, assignment and conveyance of the Loans by Seller to
Purchaser pursuant to this Agreement does not and shall not violate any Law or
the terms of any license held by Seller.
(j) Seller has not employed or otherwise engaged any broker or finder in
connection with the negotiation or execution of this Agreement; nor has Seller
conducted the negotiations with respect to this Agreement nor with respect to
the transactions contemplated by this Agreement in such manner as to give rise
to any claims against Purchaser for any brokerage commission, finder's fee or
similar payment.
Section 2.3 Representations, Warranties and Covenants of Seller Relating to
Loans. With respect to each Loan, Seller makes the following representations,
warranties, and covenants to Purchaser, each of which shall be deemed to be made
anew by Seller at the time of delivery and of Purchase:
(a) Seller is fully familiar with the origination and underwriting
standards of Purchaser and warrants that all Loans have been originated in
accordance therewith. Furthermore, all Loans have been originated in full
accordance, and the form of the Note, Mortgage, and other Loan Documents comply,
with all applicable federal, state and local laws, rules regulations and
ordinance, including without limitation, the Federal Consumer Credit Protection
Act, as amended, the Federal Truth-In-Lending Act, as amended, and Regulation Z
thereunder, the Federal Equal Credit Opportunity Act, as amended, and Regulation
B thereunder, the National Flood Insurance Act, as amended, the Federal Flood
Disaster Protection Act, as amended, the Federal Fair Credit Reporting Act, as
amended, the rules of the Federal Trade Commission, as amended, all applicable
state statutes and regulations affecting Seller, and all applicable usury and
interest rate limitation laws. The originator of each Loan, whether Seller or
any other entity, was duly licensed to participate in the making of such loan
pursuant to any and all applicable federal, state or local laws, rules,
regulations and ordinances.
(b) The information set forth in the Mortgage Loan Schedule, attached
hereto as Exhibit "A", pertaining to each Loan delivered hereunder is true and
correct as of the date thereof. Seller has reviewed the Loan file pertaining to
each Loan and has examined and made such other inquiry, including without
limitation: (i) the circumstances surrounding the Obligor's application for the
Loan; and (ii) the documentation of such Loan, which is necessary in order to
confirm the accuracy of the representations, warranties and covenants made by
Seller in this Section 2.3. On the delivery Date, Seller will deliver possession
of each such Loan file to Purchaser or its designated agents, whether such
delivery is made directly by Seller or pursuant to Seller's instructions.
(c) All policies of title insurance, hazard insurance, and flood insurance
respecting the Loan or the Real Property or improvements thereon are in full
force and effect, have been fully paid and have been issued by sound and
financially responsible insurance companies, duly licensed and qualified to
transact business, and are in such amounts as are reasonably required by
Purchaser or as required by law. All such policies insure Seller, among others,
as loss payee thereunder, in a form such that it may be endorsed to Purchaser as
loss payee as required hereunder, and there are no facts or circumstances which
could provide a basis for revocation of any policies or defense to any claims
made thereon. With respect to any Loan secured by Real Property located in a
flood area identified by the Federal Emergency Management Agency pursuant to the
National Flood Insurance Act 0f 1968, as amended, a Flood Insurance Policy has
been obtained and complies with this Subsection (c).
(d) Each Loan is secured by a valid, enforceable lien on the fee simple
title to the Real Property, or on a household estate of a period at least five
years longer than the term of the Mortgage encumbering the Real Property,
subject only to the lien of current real property taxes and assessments and
Permitted Encumbrances.
(e) The terms, covenants and conditions of each Loan have not been waived,
altered, impaired or modified in any respect. The monthly payments of each Loan,
whether fixed or adjusted from time to time under the terms of the Note, are
sufficient to authorize the original principal balance over the original term
and to pay interest in arrears at the interest rate on the Note.
(f) There is no default, breach, violation or event of acceleration
existing under the terms and covenants of each Loan nor has any event occurred
which, upon the giving of notice or the lapse of time, or both, would constitute
a default, breach, violation or event of acceleration, nor has Seller waived any
of the foregoing. All requirements set forth in the Loan Documents and all
requirements of any applicable Laws have been fully met and complied with. No
payments shall be deliquent under each Loan as of the Purchase Date thereof. All
costs, fees and expenses incurred in making, closing and recording each Loan
have been paid and all proceeds of each Loan have been fully disbursed and
received by, or for the benefit of, the Obligor. There is no requirement or
obligation for future advances under each Loan. There is not outstanding any
advance of funds by Seller to or on behalf of the Obligor for the payment of any
monthly installment, principal, interest or other charges payable under any
Loan.
(g) The real Property is assessed separate and apart from any other
property for local tax purposes. there shall be no deliquent tax or delinquent
assessment liens against the Real Property as of the Purchase Date.
(h) The origination, servicing, recordkeeping and collection practices used
with respect to each Loan have been and are in all respects in accordance with
legal and prudent business requirements. Nothing has been done, or omitted to be
done, which creates, or would create, an offset, defense (including the defense
of usury), counterclaim or moratorium with respect to any Loan, and in
particular the obligation of the Obligor to pay the unpaid principal of, and
interest on, the Loan.
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(i) there is pending no proceeding for total or partial condemnation of
the Real Property or any put thereof and the Real Property is free of material
damage. No improvement encumbered by the Loan is in violation of any applicable
zoning law or regulation, building code or any valid restrictive or protective
covenant or setback line.
(j) If applicable, the Mortgage has been duly recorded or filed for record
in the proper public office in order to give constructive notice thereof to all
subsequent purchaser or encumbrances of the Real Property.
(k) As of the respective Purchase date, Seller was the sole owner of the
Loan and there has not been any other sale or assignment thereof.
(l) The Obligor, or any other grantor of the Mortgage, has not conveyed
such Obligor's or grantor's right, title or interest to or in the Real Property
to any party. The related Note is not, and has not been, secured by any
collateral except the lien of the related Mortgage, and the Mortgage was not
given as collateral or security for the performance of obligations of any person
other than the Obligor.
(m) The Mortgage contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for the
realization against the Real Property of the benefits of the security
provided thereby, including: (i) in the case of a Mortgage designated as a deed
of trust, by trustee's sale; and (ii) otherwise by judicial foreclosure. In the
event that the Mortgage constitutes a deed of trust, a trustee, duly qualified
under applicable law to serve as such, has been properly designated and
currently so serves, and is named in the Mortgage or has been substituted in
accordance with applicable law and no fees or expenses will become payable by
Purchaser to such trustee under the deed of trust, except in connection with a
trustee's sale after default by the Obligor.
(n) The Mortgage securing any Loan has been satisfied, released, canceled,
deferred or subordinated, in whole or in part, and the Real Property has not
been released from the lien of the Mortgage, in whole or in part, nor has any
instrument been executed that would affect any satisfaction, release,
cancellation, subordination, deferral or rescission.
(o) All parties to each Note and Mortgage, if applicable, had legal
capacity at the time to enter into the respective Loan and to execute and
deliver the Note and the Mortgage and no Obligor has been released in whole or
in part from any liability under the Note. The Note and the Mortgage have been
duly and properly executed by such parties, are genuine and each is the legal,
valid and binding obligation of the maker thereof, and enforceable in accordance
with its terms, except as enforceability may be limited by Debtor Relief Laws.
(p) Seller did not use any adverse selection procedures detrimental to
Purchaser in selecting the Loans from among the outstanding loans in Seller's
portfolio. Seller has no knowledge of any circumstances or conditions with
respect to any Loan, the relative Mortgage, Real Property, Obligor, or Obligor's
credit standing that can be reasonably expected to cause prudent private
investors in the secondary market to regard the Loan as an unacceptable
investment, increase the likelihood that the Loan will become delinquent, or
adversely affect the value or marketability of the Loan.
(q) Any applicable period during which the Obligor may rescind the Loan has
expired.
Section 2.4 Notice to Purchaser. if, at any time, any representation or
warranty of Seller set forth in this Agreement would not be true and correct in
all respects if made by Seller at such time (regardless of whether such
representation or warranty is actually made, deemed to be made, or required to
be made at such time), Seller shall immediately notify Purchaser of such fact
and provide a full and accurate explanation thereof.
ARTICLE III
Conditions Precedent
Section 3.1 Board of Directors Resolutions of Seller. Seller shall deliver
to Purchaser, concurrently with the execution of this Agreement, a copy of its
Board of Directors' resolution duly authorizing the execution of this Agreement
by Seller and the performance of the obligations of Seller under this Agreement,
and specifically authorizing the officers signing this Agreement, on behalf of
Seller, to do so.
Section 3.2 Opinion of counsel. Concurrently with the execution of this
Agreement, Seller shall submit to Purchaser a written opinion of Seller's
counsel, addressed to and for the benefit of Purchaser, in the form and
substance of Exhibit "D" attached hereto.
ARTICLE IV
Purchase of Loans
Section 4.1 Loan Delivery and Purchase.
(a) Purchase. Purchaser may, at its election, by the execution of a
Mortgage Loan Schedule (Exhibit "A"), purchase those Loans from time to time
offered by Seller for Purchase, on the terms and conditions set forth in this
Agreement and in the Mortgage Loan
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Schedule. Each Purchase shall include and cover only those Loans as are
delivered to and approved by Purchaser purchaser pursuant to this Section 4.1.
(b) Pre-Approval and Price Commitment. Prior to the delivery of Loans as
further described in this Section 4.1 Seller shall submit to Purchaser with
respect to each Loan delivered, a completed underwriting and transmittal summary
in the form required by Purchaser, a completed loan application and a credit
report, with explanations of credit, for each applicant. Upon receipt and review
of these items by Purchaser, Purchaser may, in its sole discretion, preapprove
the Loan(s) and issue a price commitment for each preapproved Loan. The Loan
must be closed and submitted to Purchaser in accordance with subsection (c)
below within the time specified in any price commitment issued by Purchaser in
order for the stated price to apply.
(c) Delivery. On or before each Delivery Date, the Seller shall deliver to
Purchaser a completed Mortgage Loan Schedule and, with respect to each Loan
offered for Purchase, the Loan Documents and a duly executed Assignment of
Mortgage in accordance with the Document Delivery Procedures. Seller
acknowledges that, as a condition to acceptance and Purchase of Loans, Loans
shall in addition to, and without limitation of, any other requirements set
forth herein, be paid current by the Obligor such that payments of principal and
interest are paid through the due date that is not more than one pay period
prior to the Purchase Date. Seller shall pay all costs of preparing and
furnishing to Purchaser the Loan Documents, including original or certified
copies of the respective Loan Documents and the Assignment of Mortgage.
(d) Review and Approval. Purchaser will review the Loan Documents and
Assignment of Mortgage with respect to each Loan offered in accordance its own
underwriting standards and shall approve or disapprove such Loan for Purchase
within its sole discretion. Purchaser shall have the right to inspect, or cause
to be inspected, the Real Property of any loan, to determine if the Real
Property is in conformity with Purchaser's requirements. The examination of a
Loan File and Loan Documents by Purchaser hereunder shall not constitute a
waiver of any warranty, representation or covenant by Seller, the Obligor or any
other party connected with the Loan, with respect to such Loan. Notwithstanding
the delivery procedures of this Section 4.1, Purchaser may, in its sole
discretion, accept Loan Documents which contain a certified copy of the Mortgage
in lieu of the original of same, and may approve the pertinent Loan for Purchase
without such original if the Loan Documents are otherwise complete, all other
Loan Documents are present, and the Loan otherwise qualifies for Purchase
hereunder. The Purchase of such Loan is subject in all respects to Section 4.2
hereof, and the original recorded Mortgage in a form acceptable to Purchaser
must be delivered to Purchaser within sixty (60) days after the Purchase Date.
(e) Purchase Price. The purchase price for each Purchase of Loans shall be
determined according to the Pricing Schedule (Exhibit "C"), subject to any
adjustments or change reflected on the Mortgage Loan schedule. The Pricing
Schedule is subject to change in the Purchaser's sole discretion upon five (5)
days prior written notice. Purchaser shall pay to Seller the purchase price of
each Loan upon the Purchase thereof.
(f) Recording and Other Acts. Purchaser will cause the proper filing or
recording of the Assignment of Mortgage for each Loan in all government and
other offices necessary to perfect Purchaser's lien, provided, however, that
seller shall be responsible for all costs associated with such filing and/or
recording. Seller shall perform any other action as Purchaser may reasonably
direct to consummate the Purchase. The Seller shall also provide to Purchaser
such reports or information regarding the Loans as any reasonably requested by
Purchaser.
(g) Transfer of Insurance. Seller shall advise any relevant insurance
carrier of the sale of each Loan and shall effect an assignment to the Purchaser
of the loss payee endorsement for hazard and flood insurance, and any and all
other insurance respecting the Real Property and/or the improvements located
thereon.
Section 4.2 Defects. (a) Following the Purchase of any Loan, and
notwithstanding the review of the Loan Documents by Purchaser, if: (i) any
document constituting a part of the Loan Documents, in the sole judgment of
Purchaser, is defective, inaccurate or incomplete in any respect, (ii) any
closing document shall not be valid and binding, or (iii) any representation,
warranty or covenant of Seller, in the sole judgment of Purchaser, is untrue or
incorrect in any respect, Seller shall cure such defect within a period of
thirty (30) days from the time it receives notice from Purchaser of the
existence of such Defect, or such shorter period as may be required by law or
this Agreement. Each condition described in (a)(i) through (iii) above shall
constitute a Defect for purposes of this Agreement. Seller hereby agrees that,
if any Defect is not cured within the thirty (30) day period or such shorter
period as applicable, seller will: (A) repurchase the related Loan from
Purchaser at a price equal to (i) one hundred percent (100%) of the unpaid
principal balance of such Loan, plus (ii) any accrued and unpaid interest at the
annual rate borne by the Note to the date of the repurchase, plus (iii) any fees
and expenses charged by third parties relating to the repurchase of the Loan,
plus (iv) the entire premium, if any, with respect to such Loan paid by
Purchaser to Seller over the principal balance of such Loan on the Purchase
Date, plus (v) all expenses incurred by Purchaser in connection with the
Purchase of the Loan; and (B) in all cases, whether or not the Loan has been
repaid or otherwise satisfied, indemnify, defend and hold harmless Purchaser and
its respective successors and assigns for any loss, damage, forfeiture, penalty
or expenses (including reasonable attorneys' fees and costs) incurred by any of
them in connection with the defective Loan in a form acceptable to Purchaser.
The entire purchase price of the defective Loan shall be remitted by Seller as
instructed by Purchaser, with notice to Purchaser
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of the amount of such remittance and the Loan concerned. Upon compliance with
all of the terms of this Section 4.2 by Seller, Purchaser shall assign and
deliver the related Loan Documents to Seller without recourse.
Seller hereby waives any statute of limitations or other Law that might
otherwise be raised in defense to any repurchase hereunder. If Seller fails to
repurchase a defective Loan at the time and in the manner provided in this
Section 4.2, Purchaser may immediately terminate all of Seller's right pursuant
to this Agreement and/or may pursue any and all other remedies available under
this Agreement or as otherwise provided by law.
Section 4.3 Grant of Power of Attorney. Seller hereby appoints Purchaser,
its agents, employees, successors and assigns, the true and lawful attorney in
fact of Seller with the full power of substitution for and in the place and
stead of Seller on behalf and for the benefit of Purchaser, to demand and
control any and all of the sums due on the Loans, and to enforce any and all
rights with respect thereto, and to endorse the name of Seller where Seller's
name is designated as the payee upon any notes, collateral, security,
acceptances, checks, drafts, money orders or other evidences of payment coming
into the hands of Purchaser in full or partial payment of any of the Loans, and
to make "satisfied" and to release or cause to be marked or relensed, all liens
and securities related thereto, when and if Purchaser may reasonably so
determine.
Section 4.4 expenses. Except as specifically provided to the contrary in
this Agreement, Purchaser and Seller shall each bear its own costs and expenses
in connection with the negotiation and preparation of this Agreement and the
performance by each of Purchaser and Seller of its respective obligations
arising under this Agreement.
ARTICLE V
Assignment of Servicing
Section 5.1 Seller to Assign Servicing. Seller hereby assigns and releases
all servicing rights and responsibilities including without limitation, all
rights to receive servicing fees and other servicing related income and
benefits, with respect to each Loan to and for the benefit of Purchaser, as of
the Purchase Date. Seller acknowledges and agrees that Purchaser shall enjoy
such servicing rights, all freely assignable, with no residual, contingent or
other claims thereon remaining in Seller, until only such time, if any, as
Seller repurchases any Loan from Purchaser pursuant to the terms of this
Agreement, and then only as to the Loans repurchased. Purchaser hereby agrees to
assume the servicing obligations of the assigned Loans at the time of Purchase
thereof; provided, however, that the obligations of Seller set forth in Section
4.2 hereof shall survive assignment as obligations of Seller. Seller will notify
Obligor of the transfer of servicing at Seller's cost and in accordance with
any applicable laws.
Section 5.2 Conditions to Assignment. In connection with the assignment of
servicing Loans hereunder, Seller shall have delivered to Purchaser any taxes,
insurance premiums and other funds collected with interest, if any, due Obligor
by Seller relative to any of the Loans.
ARTICLE VI
Termination
Section 6.1 Right to Terminate. Either Purchaser of Seller may terminate
this Agreement without cause on sixty (60) days prior written notice to the
other party. This Agreement shall continue in full force and effect until such
notice is given and sixty (60) calendar days then elapse, after which time this
Agreement shall be terminated for all purposes except as to unsatisfied
Purchases then outstanding and Loan thereafter delivered, substituted,
repurchased, etc. No such notice of termination shall affect Seller's
obligations as to repurchase of Loans, nor shall void any representation,
warranty to covenant of either party, nor preclude access by Purchaser to
Seller's books and records with respect to Loans previously purchased.
Notwithstanding anything to the contrary in this Section 6.1, Purchaser shall
have the right to immediately terminate this Agreement upon breach or default by
Seller of any of its obligations, representations, warranties or covenants under
this Agreement, including without limitation in the event Seller becomes or is
found to be disqualified or authorized to make Loans as contemplated by this
Agreement.
ARTICLE VII
Miscellaneous Provisions
Section 7.1 Entire Agreement, Modifications, Waivers. This Agreement
constitutes the entire agreement between the parties pertaining to the subject
matter hereof and supersedes all prior and contemporancous agreement,
representations and understanding of the parties. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing
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by both parties. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
Section 7.2 Governing Law. This Agreement shall be construed in accordance
with the Laws of the State of New Jersey, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
Laws.
Section 7.3 Notices. All notices, certificates or other communications
required to be made hereunder shall be in writing and deemed given when
delivered or five (5) Business Days after mailing by certified or registered
mail, postage prepaid, return receipt requested, addressed to the appropriate
Notice Address. Purchaser or Seller may, by notice given hereunder, designate
any further or different address to which subsequent notices, certificates and
other communications shall be sent.
Section 7.4 Severability. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof. Such invalid or unenforceable provision shall be amended, if possible,
in accordance with Section 7.1 hereof in order to accomplish to purposes of this
Agreement.
Section 7.5 Further Assurances and Corrective Instruments. To the extent
permitted by law, Purchaser and Seller agree that each will, from time to time,
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such supplements hereto and such further instruments as may
reasonably be required or appropriate to further express the intention, or to
facilitate the performance, of this Agreement during the term hereof.
Section 7.6 Limitation on Liability of Parties. Each party to this
Agreement shall be liable under this Agreement only to the extent that
obligations are imposed upon the party against whom enforcement is sought.
Section 7.7 Limitation of Liability of Directors, Officers, Employees and
Agents of a Party. No director, officer, employee or agent of any party of this
Agreement shall be individually liable to any other party for the taking of any
action, or for refraining to take any action, in good faith pursuant to this
Agreement.
Section 7.8 Survival of Obligations and Covenants. Notwithstanding anything
to the contrary expressed in this Agreement, the termination of this Agreement
shall not affect any obligations of Seller under this Agreement, including,
without limitation, obligations under Section 4.2 hereof. The representations,
warranties, covenants and indemnification of seller under Section 2.2, 2.3, 2.4
and 7.9 hereof shall continue without regard to any termination hereof. All of
the terms of this Agreement shall be binding upon and inure to the benefit of
Seller and Purchaser and their respective legal representatives, successors and
assigns.
Section 7.9 Indemnification. Seller agrees to any does hereby indemnify,
defend and hold harmless Purchaser, its directors, officers, employees and
agents, and its successors and assigns, against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, attorneys' fees, expenses and disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against any of such
indeminified parties, in any way related to, or arising out of this Agreement or
any of the transactions contemplated herein, to the extent that any of the same
results from or arises out of any breach of any representation or warranty made
by Seller in this Agreement or from any breach by Seller of any covenant or
obligation of Seller under this Agreement. The indemnities and covenants
contained in this Section 7.9 shall survive the termination of this Agreement.
Section 7.10 Assignment. Purchaser may assign this Agreement, in whole or
in part and at its sole discretion, to any subsidiary or affiliate entity
whether now existing or to be formed.
Section 7.11 Attorney's Fees. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default, claim or misrepresentation arising out of or in connection with
any of the provisions of this Agreement, the successful or prevailing party or
parties shall be entitled to recover its reasonable attorneys' fees and other
reasonable costs incurred in that action or proceeding, in addition to any other
relief to which it may be entitled.
Section 7.12 Counterparts. This Agreement may be executed in any number of
identical counterparts, each of which shall be an original; provided, however,
that all such counterparts shall together constitute one and the same
instrument.
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Section 7.13 Reports and Payments Due on Weekends and Holidays. Any report,
certificate, or payment required hereunder falling due on a Saturday, Sunday or
other day on which national banking institutions are authorized or obligated by
law or executive order to close shall be due on the next Business Day.
Section 7.14 No Third Party Beneficiary. No provision of this Agreement
shall be deemed or construed to be for the benefit of any third party.
Section 7.15 Inspection of Reports and Documents and On-Site Audit. Seller
shall provide Purchaser access for inspection of its books, documents and
records as Purchaser shall request from time to time. Purchaser will be allowed
to conduct, from time to time, financial and operational audits at Seller's
office during normal business hours.
IN WITNESS WHEREOF, This Sale and Purchase Agreement has been executed as
of the day and year first written above.
PURCHASER:
ATTEST: TMS Mortgage, Inc.
By: /s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxxx
---------------------- -------------------------
Asst. Corporate Counsel Name: Xxxx Xxxxxx
(Name and Title) Title: Vice President
SELLER:
ATTEST: Westmark Mortgage Corp.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
---------------------- -------------------------
Asst. Secretary Name: Xxxxx Xxxxxx
(Name and Title) Title: President
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