Westmark Mortgage Corporation
-----------------------------
Seller
and
MorCap, Inc.
Buyer
CONTINUING AGREEMENT FOR SALE
AND PURCHASE OF MORTGAGES - SERVICING RELEASED
February 6, 1997
----------------
Fixed and Adjustable First and Second Lien Residential Mortgage Loans
CONTINUING AGREEMENT FOR SALE AND PURCHASE OF MORTGAGES
This CONTINUING AGREEMENT FOR SALE AND PURCHASE OF MORTGAGES is made this 6th
day of February, 1997, by and between MorCap, Inc. located at 0000 Xxxxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 a Delaware corporation ("Buyer") and
Westmark Mortgage Corporation, located at 000 X.X. 0xx Xxxxxx Xxxxx 0, Xxxxxx
Xxxxx, XX, a corporation organized and existing under the laws of the state of
California ("Seller").
WHEREAS, the Seller desires from time to time to offer for sale to the Buyer and
the Buyer desires from time to time to purchase from the Seller of the terms and
subject to the conditions set forth herein and subject to Buyer's review and
acceptance certain closed-end single-family residential Loans owned by the
Seller evidenced by notes and secured by mortgages of the agreed-upon (first or
second) priority on real property owned by the borrowers ("Borrowers"), and
WHEREAS, the Buyer and the Seller desire to enter into this agreement to govern
the sale and purchase of said Loans.
NOW, THEREFORE, in consideration of the above recitals and mutual covenants
contained herein, the parties hereto hereby agree as follows:
Section 1. Definitions
Whenever used in this Agreement the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Acceptance Seller's acceptance of Buyer's Offer.
Agreement: This Agreement as same may be amended and supplemented from time
to time. The parties agree that this Agreement shall be used as the continuing
sale and purchase agreement for those Loans purchased by Buyer from Seller in
the future and identified on each Schedule of Mortgage Loans, unless otherwise
agreed in writing by the parties.
Appraised Value: The value of the Mortgage Property as determined by an
appraisal made for the Seller at the time of origination of the Loan by an
appraiser.
Appraiser: An appraiser who satisfies the requirements of the Financial
Institutions Reform Recovery and Enforcement Act of 1989, is licensed by the
state in which the appraiser does business and is on the Buyer's approved
appraiser list.
Assignment of Mortgage. An assignment of the Mortgage, notice of transfer
or equivalent instrument, in recordable form, which when recorded is sufficient
under the laws of the jurisdiction where the related Mortgaged Property is
located to reflect of record the sale of the Mortgage to Buyer, or its assignee.
Xxxx of Sale: Each xxxx of sale and assignment in the form attached hereto
as Exhibit A, which evidences the sale and acquisition of a portfolio of Loans
and to which Seller shall attach, as Schedule 1, the Schedule of Mortgage Loans,
listing the loans to be purchased pursuant to such Xxxx of Sale.
Buy-Back Price: As defined in Section 4(c)
Credit File: The file containing those items listed in Exhibit B attached
hereto, and any additional documents required to be added thereto pursuant to
this Agreement.
Essential Mortgage File Documents: As to each Mortgage Loan, the original
Note and Mortgage, or in the event the original Mortgage is out for recordation,
a certified true copy thereof, title insurance policy including endorsements or
"Marked-up" title commitment. Related Assets and the additional documents as
described in Exhibit "A", attached hereto and made a part hereof, as applicable.
Loan: The Note, the related Mortgage and the Related Assets are referred to
as "Loan," and collectively as "Loans" and which term shall include Mortgage
Loans.
Loan to Value Ratio: The sum of the original principal amount of the
Mortgage Loan and the outstanding principal balance of any first Mortgage (the
"First Mortgage") with priority over the Mortgage securing the Loan at the time
of origination of the Mortgage Loan divided by the lesser of the original
purchase price of the Mortgaged Property if Borrower purchased the Mortgaged
Property within twelve (12) months of the Mortgage Loan origination date or the
Appraised Value of the Mortgaged Property.
"Marked-Up" Title Insurance Policy, Binder or Certificate. A title
insurance policy as further defined in Section 4(b)(9) of this Agreement in
which all liens, mortgages, claims, assessments, defects, encumbrances and other
exceptions affecting or against the
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Mortgaged Property have been removed and are insured against in favor of Buyer
by the title insurance company unless otherwise agreed or approved by the Buyer
in writing.
Mortgage: Any Note, bond, deed or trust, mortgage, mortgage warranty,
extension agreement, assumption of indebtedness, assignment and any other
documents constituting the basic instruments of real estate security on real
property owned by the Borrower in the state in which the Mortgaged Property is
located.
Mortgage Loans: The Loans identified in the Schedule of Loans
delivered as from time to time are subject to this Agreement.
Mortgaged Property or Mortgaged Property: The residential real property
subject to the Mortgage which secures the Mortgage Loan.
Mortgagor or Borrower: The obligor under a Mortgage Loan.
Note: The original Note, bond or other evidence of indebtedness
evidencing the indebtedness of the Borrower/Mortgagor under a Mortgage Loan.
Purchase Price: The purchase price for the Loan(s) described on each
Schedule of Loans delivered shall be an amount as of the Settlement Date equal
to the sum of the: (1) unpaid principal balances of the Note(s); (2) all
interest accrued (up to but not including the Settlement Date) but unpaid on the
Note(s) (prorated on a 360-day year); and (3) any premiums due Seller, if
applicable in accordance with the Approval Advice or Schedule of Loans
delivered; (4) less any discount due Buyer, if applicable, in accordance with
the Approval Advice or Schedule of Loans delivered.
Related Assets: The documents as further defined in Section 3(a)(iv) of
this Agreement.
Settlement Date: The date of the funding or payment or Purchase Price by
the Buyer for Loans purchased pursuant to this Agreement. Each Settlement shall
be held at the offices of Buyer located at 0000 Xxxxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000.
Underwriting Guidelines/Product Descriptions: These certain written
guides as provided by Buyer to Seller which may from time to time be amended by
Buyer. Such guidelines include, but are not limited to, underwriting guidelines,
appraisal guidelines, credit and income documentation and loan programs.
Section 2. Purchase and Sale of Loans
(a) Delivery of Loans
On or before the business day immediately preceding each Settlement Date, the
Seller shall deliver to the Buyer the following for each Loan purchased:
(i) Those Loans described by the Buyer on each Schedule of Loans
delivered which are purchased by Buyer pursuant to this Agreement.
(ii) The agree-upon priority liens and/or Mortgages, or a true
certified copy thereof, on Mortgaged Property.
(iii) The original Note(s) and the Mortgage(s), or a true certified
copy of the Mortgage, endorsed by an authorized officer of Seller to the
Buyer as following: "Pay to the Order of MorCap, Inc., Without Recourse"
(unless otherwise notified in writing by Buyer); together with an
individual Assignment of Mortgage to Buyer and original of all
interviewing assignments, if any of the Seller's beneficial interest in
the Mortgage, showing a complete chain of title of the Loan from
origination to the Seller, including warehouse assignment, with
evidencing of recording thereon, or a release of any intervening
assignee's interest, if any, to the extent that such assignment was not
recorded.
(iv) Any and all documents, instruments, collateral agreements, and
assignments and endorsements for all documents, instruments and
collateral agreements, referred to in the Notes and/or Mortgages or
related thereto, including, without limitation, current insurance
policies (private mortgage insurance, if applicable; flood insurance, if
applicable; hazard insurance; title insurance; and other applicable
insurance policies) covering the Mortgaged Property or relating to the
Notes and all files, books, papers, ledger cards, reports and records
including, without limitation, loan application. Borrower financial
statements, separate assignment of rents, if any, credit reports and
appraisals, relating to the Loans (the "Related Assets"). In all cases,
the Related Assets shall be in the original documents.
(v) The Credit Files. In all cases, these documents shall be the
original documents.
(vi) In the event that Seller cannot deliver to Buyer a duly recorded
assignment of Mortgage or any other document required to be recorded
under this Agreement on the Settlement Date solely because of a delay
caused by the public recording office when such document(s) has been
delivered for recordation, Seller shall deliver to the Buyer a certified
copy of each document(s) with a statement thereon signed by an Officer
of the Seller certifying each to be a true and correct copy of
document(s) delivered to the appropriate public recording official for
recordation. Seller shall deliver to Buyer such recorded document(s)
with evidence of recording indicated thereon no later than 15 days after
Seller receives such document, but in any event, no later than 120 days
from the Settlement Date. In the event that missing documents are not
received by the Buyer within the above-stated time frame, strictly as a
result of a delay caused by the public recording office(s), Buyer may
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Rider 3A
In the event of the prepayment of a Loan (other than by a refinancing by
the Buyer of any of its subsidiaries or affiliates or a refinancing by Seller
which is repurchased by the Buyer) made pursuant to this Agreement with respect
to which a premium was paid to the Seller, the Seller shall refund to Buyer a
portion of the premium paid by the Buyer on the Loan determined on the following
basis.
The amount refunded to Buyer shall equal the premium paid to the Seller
by Buyer multiplied times the number of months remaining in the standard
prepayment period (the "Prepayment Period") and divided by the full Prepayment
Period. The total number of months remaining in a Prepayment Period will include
the month in which the Loan prepays.
Premium Refund = premium paid by Buyer x number of months remaining in
Prepayment Period
-----------------------------------------------------
12 month total Prepayment Period
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the Loans to the Buyer or the consummation of the transactions
contemplated by this Agreement, or if required, such approval has been
obtained prior to each Statement Date.
(vi) This Agreement constitutes, when duly executed and delivered by
the Seller, a legal, valid and binding obligation of the Seller
enforceable against the Seller according to its terms.
(vii) There are no actions, suits or proceedings pending or, to the
knowledge of the Seller, threatened against or affecting the Seller or
the properties of the Seller before any court or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which if determined adversely to the Seller, would
have a material adverse effect on the financial condition, properties or
operation of the Seller. Any acceptance, agreement or consent by the
Buyer to purchase pursuant to this Agreement will automatically
terminate if: (a) a decree or order of a court or agency supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, bankruptcy proceeding or any
similar proceedings, or for the winding up or liquidation of its
affairs, shall have been entered against the Seller or a Borrower and
such decree or order shall have remained in force undischarged or
unstated for a period of 60 days; or (b) the Seller or a Borrower shall
consent to the appointment of a conservator or receiver or liquidator in
any solvency, readjustment of debt, marshalling of assets and
liabilities bankruptcy or similar proceedings relating to the Seller or
relating to all or substantially all of its creditors, or voluntarily
suspend payment of its obligations.
(viii) Neither this Agreement, nor any statement, report, or other
document furnished or to be furnished pursuant to this Agreement, or in
connection with this transaction contemplated hereby, contains any
untrue statement of fact by Seller, or omits to state a material fact
necessary to make the statements of Seller contained therein not
misleading.
(ix) Upon request, Seller will deliver to Buyer a true and correct
copy of Seller's fidelity bond an Seller's errors and omissions policy,
and/or certificates evidencing the same as currently in effect, the
amounts and coverages of both of which will be acceptable to Buyer.
Seller shall, at it own expense, maintain a fidelity bond and an errors
and omissions policy, in amounts at least as great as, and with the
coverages at least as broad as, those currently in effect. Seller,
shall, upon request, furnish proof of such coverage at or before the
first Settlement and, upon request, annually thereafter.
(x) Seller has not dealt with any broker or agent or other Person who
might be entitled to a fee, commission or compensation in connection
with this transaction other than the Buyer except as Seller has
previously disclosed to Buyer in writing.
(b) Representations and Warranties of the Seller as to Each Loan. It is
understood and agreed by Seller and Buyer that as a material inducement to Buyer
to enter into this Agreement the Seller hereby represents and warrants to the
buyer as of each Settlement Date with respect to each Loan purchased:
(i) The Seller is the Payee and Holder of each note within the
meaning of the Uniform Commercial Code and is the sole owner of the Loan
and has the right to assign and transfer the Loan to the Buyer. The
Seller has not sold, assigned or otherwise transferred any right or
interest in or to the Loan and has not pledged the Loan as collateral
for any Loan or obligation of Seller or other purpose. The assignment of
the Loan by the Seller to Buyer validly transfers such Loan to Buyer
free and clear of any pledges, liens, claims, encumbrances, Mortgages,
charges, exceptions and/or security interests.
(ii) Except as expressly disclosed to and agreed to by the Buyer in
writing, each Loan conforms to: (a) Underwriting guidelines/Products
Descriptions of Buyer, and (b) the conditions of the Approval Advice (if
applicable).
(iii) All information set forth in the Schedule of Loans is true and
correct in all respects, and all other information furnished to Buyer by
Seller with respect to the Loan(s) purchased is true and correct as of
the Settlement Date. Neither the Schedule of Loans nor the Mortgage File
nor any other documents furnished in connection with this transaction
contains any untrue statement of material fact by Seller or its
Affiliates, or omits to state a fact, necessary to make the statements
of Seller or its Affiliates contained therein not materially misleading.
(iv) Each Note and Mortgage and the Related Assets are din every
respect genuine, contain genuine signatures, are the valid instrument
they purport on their face to be, are the legal, valid, binding and
enforceable obligation of the Borrower thereunder and not subject to any
discount, allowance, setoff, counterclaim, presently pending bankruptcy
or other defenses, none of the Notes, Mortgages, or Related Assets are
forged or have affixed thereto any unauthorized signature or have been
entered into by any persons without the required legal capacity and no
foreclosure (including any non-judicial foreclosure) or any other legal
action has been brought by the Seller or any senior lienholder in
connection therewith.
(v) No instruments other than those delivered therewith are required
under applicable law to evidence the indebtedness represented by the
Loan(s) or to perfect the lien of the Mortgage(s).
(vi) Except as has been disclosed to and agreed to by the Buyer in
writing, there is no agreement with the Borrower regarding any variation
of the interest rate and schedules of payment (except as described in
the Note and Mortgage) or other terms and conditions of the Loan, no
Borrower has been released from liability on the Note, and no property
has been released from the Mortgage. If the Loan is a variable rate
loan, the Seller represents and warrants as of each Settlement Date that
all applicable notices required by law or regulation have been provided
to the borrower and that the right to future changes in the interest
rate and payment schedule has not been waived by the Seller or any
previous holder of the Loan.
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(vii) The Loan is secured by a valid Mortgaged/Deed of Trust, of the
agreed-upon priority on real property, and such Mortgage has been
properly received by the appropriate public recording official, in
recordable form, to be filed, recorded or otherwise perfected in due
course in accordance with applicable law in the appropriate
jurisdiction. The Note is not secured by any other collateral other than
the Mortgaged Property.
(viii) There are no violations of any applicable federal or state law
or regulation, including, without limitation, Fair Credit Reporting Act
and Regulations, the Federal Truth-In-Lending Act and Regulation Z, the
Federal Equal Credit Opportunity Act and Regulation B, the Federal Real
Estate Settlement Procedures Act and Regulations, the Federal Debt
Collection Practices Act and any federal or state usury laws and
regulations. All disclosures required by law, federal, state or local,
were properly made by the Seller prior to the closing of the Loan.
(ix) The Seller holds a Marked Up title policy or title insurance
binder or title certificate which is in full force and effect; which has
an issuance limit at least as great as the outstanding principal balance
of the Loan; which names the Seller, its successors and assigns as the
insured party and which is issued by a title insurer which has been
approved by the Buyer in writing and is qualified to do business in the
jurisdiction where the Mortgaged Property is located. Said policy shall:
(A) insure the absence of any lien for taxes and other assessments
which are due and payable;
(B) disclose whether all taxes and other assessments due as of the
date of the policy have been paid in full; and
(C) disclose all other matters to which like properties are commonly
subject.
If the Buyer purchases a Loan having relied on a Marked-Up title
insurance binder or title certificate rather than a title insurance policy, the
Seller shall have thirty (30) days to deliver to the Buyer the title insurance
policy.
(x) As of the Settlement Date the Seller has transferred to Buyer all
of its right, title and interest in the Note(s), Mortgage(s) and Related
Assets for each Loan purchased free and clear of any pledge, liens,
claims, encumbrances, Mortgages, charges, exceptions or security
interests other than as is disclosed in the title insurance policy to
each Loan, together with an individual flood insurance policy (to the
extent required by the Flood Disaster Protection Act) and an individual
current hazard insurance policy (including fire and extended coverage
and other manners as are customary in the area of the Mortgaged
Property), or a blanket policy in lieu thereof, or a certificate if the
Buyer agrees in writing to accept a certificate, insuring the Mortgaged
Property, with a loss payable clause in favor of the Seller, its
successors and assigns in an amount equal to the lower of: (a) the
replacement value of the Mortgaged Property, or (b) the unpaid principal
balance of the Loan and any senior mortgage loan; provided, however,
that the amount is sufficient to protect the insured and mortgage from
co-insurers in the event of a partial loss.
(xi) The Note and Mortgage contain customary, valid, legal and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security created thereby.
(xii) The proceeds of the Loan have been fully disbursed and any and
all requirements as to completion of on-site and off-site improvements
and disbursement of any escrow funds therefor have been complied with.
(xiii) There are no mechanic's liens or similar liens or claims which
have been filed for work, labor or material affecting the Mortgaged
Property which are or may be liens prior to or equal with the lien of
the Mortgage and senior mortgage loans.
(xiv) The Mortgaged Property is free of material damage and waste and
is in average repair and there is no proceeding pending or threatened
for the total or partial condemnation of the Mortgaged Property, and the
Mortgaged Property is free and clear of all hazardous material.
(xv) All matured obligations pursuant to the Note and Mortgage have
been paid or performed and the Seller has not waived any defaults,
breach, violation or event of acceleration nor has the Seller released
any portion of the Mortgaged Property from the lien of the Mortgage.
(xvi) The Seller has no knowledge of any facts as to such Loan which
it has failed to disclose which would materially and adversely affect
the value of marketability of such Loan; and all information set forth
in any application for such Loan together with all matters continuing
and/or verifying faces contained in the file relating to such Loan are
genuine, true and correct in all material respects.
(xvii) The Seller has no knowledge of any impediments to ride that
adversely affect the value, enjoyment or marketability of the Mortgaged
Property.
(xviii) Where required by state law, the Seller has filed for record
a request for notice of any action by a senior lienholder under a senior
lien, and the Seller has notified any superior lienholder in writing of
the existence of the Loan and requested notification of any action to be
taken against the Borrower by the Superior lienholder. The Seller shall,
upon request of the Buyer, cooperate in recording a new request for
action in favor of the Buyer and in providing superior lienholders with
written requests for notification by the Buyer of action against the
Borrower.
(xix) There is no default, breach, violation or event of acceleration
existing under any senior mortgage loan which, with notice, and the
expiration of any grace or cure period, would constitute a default,
breach violation or event of acceleration.
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(xx) Each Note and Mortgage contains a provision for the acceleration
of the payment of the unpaid principal balance of the Mortgage Loan in
the event the related Mortgaged Property is sold without the prior
consent of the mortgagee thereunder, or applicable by state law.
(xxi) All real estate appraisals made in connection with each Loan
shall have been performed in accordance with industry standards in the
appraising industry in the area where the appraised property is located
and have been performed by an Appraiser.
(xxii) To the best of Seller's knowledge, no hazardous or toxic
materials or wastes products regulated by any law or ordinance or
asbestos or asbestos products or materials or polychlorinated biphenyls
or urca formaldehyde insulation have been used or employed in the
construction, use or maintenance of the Mortgaged Property or have ever
been stored, treated at or disposed of on the Mortgaged Property.
However, in the event it has been determined that asbestos or asbestos
products or asbestos materials have been used or employed in
construction, use, or maintenance in the Mortgaged Property, a duly
qualified Appraise or engineer must state that the material is in good
repair or removed.
(xxiii) To the best of Seller's knowledge, there has not nor has any
person or entity alleged that there has occurred, upon the Mortgaged
Property any spillage, leakage, discharge or release into the air, soil
or groundwater of any hazardous material or regulated wastes.
(xxiv) The Seller has not, in connection with each Loan purchased by
Buyer, incurred any obligation, made any commitment or taken any action
which might result in a claim against the Buyer or an obligation by the
Buyer to pay a sales brokerage commission, finder's fee or similar fee
in respect to the transactions between Buyer and Seller as described in
this Agreement. The Seller agrees to indemnify and hold the Buyer
harmless from and against any claims, liabilites, damages or costs
(including reasonable attorney fees) relating to any broker, agent or
finder or other person, who shall claim to have dealt on behalf of the
Seller in connection with the transactions contemplated by this
Agreement.
(xxv) Seller agrees not to take any action nor to permit or to cause
any action to be taken by any of its agents or independent contractors
on Seller's behalf to solicit Borrowers individually in order to affect
the refinancing of any Loans previously purchased by Buyer from Seller
or to sell any other products to the Borrowers. In the event a Borrower
elects to refinance with Seller a Loan purchased by Buyer from Seller,
the provisions of Section 3(e) shall apply. General advertising to the
public, not utilizing a list of Borrowers, not to be deemed to violate
this non-solicitation provision.
(xxvi) As of the Settlement Date, no loan is 30 or more days
delinquent (determined on a contractual basis), no Loan will have been
30 or more days delinquent (determined on a contractual basis) more than
once during the 12 months preceding the Settlement Date, and the first
Monthly Payment has been made, or shall be made, as the case may be,
with respect to the loan on its Due Date.
(xxvii) There are no defaults in complying with the terms of the
Mortgage. As of the closing of the Loan, all taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges,
leasehold payments or ground rents which previously became due and owing
have been paid. Seller has not advanced funds, or induced or solicited
or knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount
required under the Loan, except for interest accruing from the date of
the Note or date of disbursement of the Loan proceeds, whichever
occurred later, to the day which precedes by one month the Due Date of
the first Monthly Payment.
(xxviii) Neither the Mortgage nor the Note has been satisfied,
canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage,
in whole or in part, nor has any instrument has been executed that would
affect any such release, cancellation, subordination or rescission.
Seller has not waived the performance by the Mortgagor of any action, if
the Mortgagor's failure to perform such action would cause the Loan to
be in default, nor has Seller waived any default resulting from any
action or inaction by the Mortgagor.
(xxix) The Mortgaged Property consists of a parcel of real property
with a single family residence erected thereon, or a two to four-family
dwelling, or an individual condominium unit in a low-rise or high-rise
condominium project, or an individual unit in a planned unit
development. The Mortgaged Property is either a fee simple estate or a
long-term residential lease. If the Loan is secured by a long-term
residential lease, (A) the terms of such lease expressly permit the
mortgaging of the leasehold estate, the assignment of the lease without
the lessor's consent (or the lessor's has been obtained and such consent
is in the Mortgage File) and the acquisition by the holder of the
Mortgage with substantially similar protection; (B) the terms of such
lease do not (i) allow the termination thereof upon the lessee's default
without the holder of the Mortgage being entitled to receive written
notice of, and opportunity to cure, such default (ii) allow the
termination of the lease is not less than 15 years; (D) the term of such
lease does not terminate earlier than five years after the maturity the
maturity date of the Note; and (E) the Mortgaged Property is located in
a jurisdiction in which the use of leasehold estates for residential
properties is a widely accepted practice.
(xxx) All parties which have had any interest in the Loan, whether as
mortgagee, assignee, pledgee or otherwise, are (or, during the period in
which they held and disposed of such interest, were) (1) in compliance
with any and all applicable licensing requirements of the laws of the
state where the Mortgaged Property is located, and (2)(a) organized
under the laws of such state, or (b) qualified to do business in such
state, or (c) federal savings and loan associations, savings banks, or
national banks having principal offices in such state, or (d) not doing
business in such state, or not required to qualify to do business in
such state.
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(xxxi) All improvements which were considered in determining the
Appraised Value of the Mortgaged Property lay wholly within the
boundaries and building restriction lines of the Mortgaged Property and
no improvements on adjoining properties encroach upon the Mortgaged
Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
provided, that in no event shall a legal non-conforming use of the
Mortgaged Property be considered a violation of any such zoning law or
regulation.
(xxxii) The Mortgagor has not notified Seller and Seller has no
knowledge of any relief requested or allowed to the Mortgagor under the
Soldier's and Sailor's Civil Relief Act of 1940.
(xxxiii) The Mortgagor has executed a statement to the effect that
the Mortgagor has received all disclosure materials required by
applicable law with respect to the making of adjustable rate mortgage
loans. Seller shall maintain or cause to be maintained such statement in
the Credit File.
It is understood and agreed that the covenants, representations and warranties
set forth in this Agreement shall survive delivery and release of the Mortgage
Files to Buyer for a period of ten (10) years from the date on which such
covenant, representation, or warranty is made or the date that the breach or
misrepresentation was discovered, whichever is later. it is further understood
that the covenants, representations and warranties set forth in this Agreement
shall inure to the benefit of Buyer, its successors and assigns, or any holder
of any endorsement of any Note or any assignment of the Loan Documents.
Section 4. Breach of Representation and Warranties
(a) Remedy for Breach. In addition to any rights or remedies the Buyer has at
law or in equity, if at any time there is a breach of any representation or
warranty set forth herein by Seller, the Buyer shall give written notice thereof
to Seller. If after thirty (30) days following Seller's receipt of such notice
the breach has not been cured by Seller, the Seller shall upon demand of the
Buyer and at the sole option and absolute discretion of Buyer, immediately
repurchase the Loan affected for the Buy-Back Price (as defined in subsection
(c) below). If the Loan has been sold by Buyer or the Mortgaged has been
liquidated or sold by Buyer, the Seller shall, within thirty (30) days of the
aforementioned notification, pay the Buyer the amount of Loss (as defined in
subsection(d) below). It is understood and agreed that once the first Monthly
payment on a Loan is 30 days or more delinquent, Section 4(b)(xxvi) shall be
breached.
(b) Reassignments. Upon receipt of the Buy-Back Price, in full, in immediately
available funds, the buyer shall reassign the Loan affected and any right it may
have in the relevant Mortgaged Property, as well as other documents necessary to
reflect the assignment of any title protection and insurance policies.
(c) Buy-Back Price. The term "Buy-Back Price" shall mean the sum of: (1) the
outstanding principal balance of the Loan, with accrued interest thereon through
the date the Loan is repurchased by Seller; (2) all advances made by Buyer or
the New Servicer on behalf of Buyer and all charges due from the Borrower; (3)
the total amount, including accrued interest and other expenses paid by the
Buyer to any senior lienholders, if any, to secure a priority lien position; (4)
all reasonable and necessary expenses, losses and damages paid or incurred by
the Buyer in connection with the Loan or an investigation of said Loan and/or
the related collateral, including but not limited to, property taxes,
maintenance costs, interest expense, insurance appraisals, advertising, sales
commissions, reasonable attorney fees, expenses, and costs, fines and penalties;
and (5) rebate of premium due Buyer, if applicable.
(d) Definition of "Loss"; The Term "Loss" shall mean the negative result, if
any, of the following calculations: (a) the sum total of: (i) the outstanding
principal balance of the Loan, with accrued interest thereon and not paid
through the date the Loan is sold or date the collateral is liquidated; (ii) all
advances by Buyer and all charges due from the Borrower; (iii) the total amount
paid by the Buyer to any senior lienholders, if any, to secure a first lien
position: (iv) accrued interest on all Mortgage Loans purchased from senior
lienholders from the date such Mortgage Loans were purchased through the date
the Loan is sold or the date the collateral is liquidated; and (v) all other
reasonable and necessary expenses, losses and damages incurred by and/or the
related collateral, including, but not limited to, reasonable attorneys fees,
expenses and costs, property taxes, maintenance costs, insurance, appraisals,
advertising, sales commissions, fines and penalties; less the (b) net proceeds
from the sale of the Loan or the sale or liquidation of the Mortgaged Property
or the collateral.
(e) Remedy for Non-Delivery of Documents. However, anything to the contrary
notwithstanding, in the event that the Seller is required to deliver to the
Buyer any documents related to a purchased Loan and the Seller fails to deliver
such document in the proper form on the date or within the time period specified
by the controlling section of this Agreement, Buyer shall notify the Seller of
the breach and the Seller shall have thirty (30) days from the date of notice to
cure the breach. If the Seller has not cured the breach within the thirty (30)
day cure period, the Seller shall immediately repurchase the Loan upon the
Buyer's demand. The Buy-Back Price shall be determined in accordance with
subsection (c). Any loan returned by the Buyer pursuant to this paragraph shall
be without recourse, representation or warranty; however, Buyer represents and
warrants to Seller, that Buyer, its affiliates, subsidiaries, servicers, or
employees have done nothing to cause the Loan to become uncollectible in whole
or in part.
7
(f) Indemnity, Seller hereby agrees, in addition to any other remedy available
to Seller hereunder, to indemnify and hold harmless, Buyer, its officers,
directors, employees, agents and affiliates (the "Indemnified Parties") from any
damages, losses, demands, offsets, defenses, counterclaims, actions or
proceedings, and costs of defense, including reasonable attorney's fees arising
from or in any way relating to (i) any breach of any of Seller's
representations, warranties or covenants hereunder, and/or (ii) any claim
brought by any third party against any Indemnified party based upon any
allegation which, if true, would constitute a breach of any of Seller's
representations, warranties or covenants hereunder.
Section 5. Relationship of the Parties
The execution of this Agreement and the carrying out of its terms does not and
will not make the Seller and the Buyer partners or joint tenants, nor is the
Seller to act as an agent of the Buyer in originating, administering or
collecting any Loan, but shall have the status of and shall be in all matters
hereunder as an independent contractor.
Section 6. Opinion of Counsel
The Seller shall deliver to the Buyer in form and substance satisfactory to the
Buyer and its counsel on or before the first Settlement Date hereunder an
opinion of the Seller's independent outside counsel generally to the affect of
Section 3(a)(i)-(vi).
Section 7. Designation of Authorized Officers
The Seller shall have delivered to Buyer an officer's certificate, attested to
by the Secretary of the Seller, stating the names and showing the facsimile
signatures of the officers of Seller authorized to execute and deliver this
Agreement; endorse Note(s), Mortgage(s) and Assignment(s); and authorize the
bank accounts for Buyer to utilize for funding Loans.
Section 8. Miscellaneous
(a) Additional Covenants.
(i) Each party shall, from time to time, execute and deliver or
cause to be executed and delivered, such additional instruments,
assignments, endorsements, papers, and documents as the other party may at
any time reasonably request for the purpose of carrying out the terms of
this Agreement and the transfers provided for herein.
(ii) The Seller shall, upon request of the Buyer, sign a letter in
form to approved by the Buyer and in conformity with the terms and
conditions hereof, addressed to all the borrowers on the loans, announcing
the sale evidenced hereby and instructing such Borrowers to recognize the
Buyer as the Seller's successor in interest to such Loans.
(iii) After any Settlement Date hereunder, the Seller will hold in
trust for the Buyer all sums received by the Seller from Borrower(s) on
any Loan purchased pursuant to this Agreement and pay them to the Buyer
within three (3) business days of the receipt of those sums.
(iv) Any and all decisions made by Buyer in good faith to take
action or not take action relative to a Loan, including, but not limited
to, the sale or liquidation in a commercially reasonable manner of a Loan,
Mortgaged Property or collateral shall be final and conclusively binding
upon Seller in the event Seller does not repurchase a Loan within ten(10)
days of notification by Buyer pursuant to Section 4 of this Agreement.
(v) In order to enforce Buyer's rights under this Agreement, Seller
shall, upon the request of Buyer or is assigns, do and perform or cause to
be done and performed, every reasonable act and thing necessary or
advisable to put Buyer or its assigns in position to enforce the payment
of the Loans and to carry out the intent of this Agreement, including the
execution of and, if necessary, the recordation of additional documents
including separate endorsements and assignments upon request of Buyer. In
addition, Seller hereby irrevocably appoints any officer or employee of
Buyer or its assigns its true and lawful attorney to do and perform every
act necessary, requisite, proper, or advisable to be done to put Buyer or
its assigns in position to enforce the payment of the Loans, its rights
under this Agreement, and to carry out the intent of this Agreement,
including, but not limited to, the right to sign, execute, endorse/and or
assign and deliver to Buyer or its assigns on behalf of Seller any
Mortgage Note, Mortgage, security interest, and any other Loan document
and also any other writing of any other kind or nature whatsoever which
may be used in connection therewith to evidence any obligation of Seller
or any Borrower to Buyer or its assigns, pursuant to this Agreement and to
endorse any check or other instrument for the payment thereof. This power
of attorney is coupled with an interest and Seller does hereby forever
renounce all rights to revoke this power of attorney or any of the above
conferred upon buyer or its assigns hereby or to appoint any other person
to execute the said power.
8
(vi) Each January 1 during the term of this Agreement, commencing
January 1, 1998. Seller shall provide to Buyer copies of all current
licenses that the Seller then maintains with any state relating to the
Seller's mortgage lending business. Each March 1 during the term of this
Agreement, commencing March 1, 1998. Seller shall also provide to buyer
audited financial statements for the year ended on the immediately
preceding December 31.
(b) survival of Covenants, Agreements, Representations and Warranties;
successors and assigns. all warranties, representations and covenants made by
either party in this Agreement or in any other instrument delivered by either
party to the other, including those made by third parties for the benefit of
either party, shall be considered to have been relied upon by the other party
(unless otherwise agreed in writing by the parties) and shall survive the
termination of this Agreement, as set forth in Section 3. The Buyer reserve the
right to proceed against third parties to enforce any representations,
warranties and covenants made by them for the benefit of the Seller.
(c) Severability. If any provision or part thereof, of this Agreement is invalid
or unenforceable under any law, such provision, or part thereof, is and will be
totally ineffective to the extent, but the remaining provisions, or part
thereof, will be unaffected.
(d) Attorney's Fees. However, anything to the contrary notwithstanding, in the
event of any action of law, in equity, arbitration or otherwise between the
parties in relation to this Agreement or any Loan or other instrument or
agreement required or purchased or sold hereunder, the non-prevailing party, in
addition to any other sums which such party shall be required to pay pursuant to
the terms and conditions of this Agreement, at law, in equity, arbitration or
otherwise shall also be required to pay to the prevailing party all costs and
expenses of such litigation, including reasonable attorneys fees.
(e) Waivers. No waivers of any term, provision or condition of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
to be, or construed as a further or continuing waiver of any such term,
provision or condition, or of any other term, provision or condition of this
Agreement.
Buyer: MorCap, Inc.
000 Xxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Seller: Westmark Mortgage Corporation
000 X.X. 0xx Xxxxxx, xxxxx 0
Xxxxxx Xxxxx, Xx 00000
Attention: Xxxx Xxxxxxxxxx
the above address may be changed from time to time by written notice from one
party to the other.
(g) Insurance Prepayment. Insurance refund or credits of any kind whatsoever,
for insurance of any kind sold by Seller (or Seller's originating source,
whether a loan Broker or correspondent) in conjunction with the Loan, shall be
the sole responsibility of the Seller in the event of prepayment of any Loan,
cancellation of insurance or any other event requiring refunding or crediting of
unearned insurance premiums. Upon the Buyer's demand, Seller shall pay to the
Buyer, from the Seller's own funds, any required insurance premium rebate
resulting from the prepayment, cancellation, refinancing or other termination of
any Mortgage Loan. Upon such payment, Buyer shall assign in writing any rights
it had to require that the insurer reimburse user for any rebate made to
Borrower.
(h) Assignment. The seller shall not, without the prior written consent of the
Buyer, assign any of its right or obligations hereunder.
(i) captions. Paragraph or other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(j) Entire Agreement. This Agreement and the Exhibits attached hereto, and the
documents referred to herein or executed concurrently herewith regard to the
subject matter hereof, and there are no prior agreements. Understanding,
restrictions, warranties or representations between the parties with respect
thereto.
(k) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia. This provisions of this
paragraph shall not affect the provisions of any Note, Mortgage or Related
Assets which cause the laws of the United States or other state to be
applicable. Each party hereto is sophisticated and represented by legal counsel.
Accordingly, this Agreement shall be interpreted fairly in accordance with it
provisions and without regard to which party drafted it.
(l) Termination. Buyer has the option of terminating its obligations to purchase
Loans hereunder immediately upon notice to the Seller upon the seller's breach
of any of the Representations and Warranties contained in Section 3 of this
Agreement; however, subject
9
to the rights to cure as outlined in Section 4. Buyer shall have no
obligation to honor any commitment of Approval Advice after such termination.
(m) Arbitration, Jurisdiction and Venue. with respect to any controversy,
argument or claim arising out of or relating to this Agreement, or any breach
thereof (including, but not limited to a request for emergency relief), the
parties hereby consent to the exclusive jurisdiction of the state and federal
courts having juridiction over Buyer at the time any such controversy, argument
or claim arises, and waive personal service of any and all process upon them and
consent that all such service of process made by registered or certified mail
directed to them at the address stated herein and service so made shall be
deemed to be completed five (5) days after mailing. The parties waive trial by
jury and waive any objection to jurisdiction and venue of any action instituted
hereunder, agree not so assert any defense based on lack of jurisdiction or
venue and consent to the granting of such legal or equitable relief as is deemed
appropriate by the court, including, but not limited to, any emergency relief,
injunctive or otherwise.
However, anything to the contrary notwithstanding, except with respect to
emergency relief. buyer shall have the sole and exclusive option and discretion
to have any controversy, argument or claim arising out of or relating to this
Agreement, or any breach thereof, settled in the county and state of Buyer's
principal office, in accordance with the rules of the American Arbitration
Association (as modified below), and judgment upon the award may be entered in
any Court having jurisdiction thereof.
The arbitration panel shall be made up of three members which shall be
appointed: one by Buyer, one by Seller and a third by the first two arbitrators.
Each arbitrator shall be a lawyer experienced in matters relating to real estate
and mortgage banking. discovery shall be permitted in connection with the
arbitration proceeding within the reasonable discretion of the arbitration
panel. The decision (award) shall be in writing and shall set forth the
rationale and legal basis therefor, and such decision may be appealed by either
party if the party believes that the written decision (award) is based upon an
error of law. The facts determined by the original panel will be final and no
appear of such findings may be made. Such appeal shall be taken to a three
member arbitration panel, the members of which shall be selected in accordance
with the above-described procedures, and the panel's review shall be limited to
the application of the statutory and decision law of the State of Georgia (as
modified by (k) above) to the facts of the dispute as determined in writing by
the original arbitration panel.
(n) Endorsements. In the event that the remedies or other terms outlined in this
Agreement conflict with the terms of any endorsement by the Seller of any Note
evidencing a Loan Purchased by the Buyer from the Seller, including, but not
limited to, and endorsement stating that the assignment of the Note is without
recourse, the remedies and terms of this Agreement shall govern and control.
(o) Indemnification (Holder in due course). In the event Buyer purchase a Loan
purchases a Loan from seller in which all or part of the proceeds of such Loan
were paid to a home improvement or building contractor (including if proceed
checks were made payable to the Borrower and the contractor jointly) for the
purpose of repairs or improvements to the subject property. Seller agrees to
indemnify Buyer against any loss, damages, forefeitures, legal fees and other
cases resulting from any demand, defense or assertion based, grounded upon or
arising from Borrower' rights, claimed or granted, to withhold payment of the
Loan due to the incompletion or unsatisfactory completion of said repairs or
improvements.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written:
Seller: Westmark Mortgage Corporation Buyer: MORCAP, INC.
By: /s/ Xxxx Xxxxxxxxxx By:
---------------------------------- ------------------------------
Name: Xxxx Xxxxxxxxxx Name :----------------------------
Title: President Title:----------------------------
10
EXHIBIT A
Form of Xxxx of sale and Assignment
-----------------------------------
Westmark Mortgage Corp, California Corporation ("Grantor"), for good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereunder, does hereby
absolutely sell, transfer, assign, setover and convey to Mor Cap, Inc., a
Delaware corporation ("Grantee"), its successors and assigns, without recourse,
(i) all of Grantor's right, title and interest in the loans described on the
list attached hereto as Schedule 1 (the "Loans"), including all principal,
interest, or other proceeds of any kind with respect to the Loans: and 9i) all
of Grantor's right, title and interest on and to all escrow deposits held in
connection with such Loans. In addition, Grantor further conveys/assigns to
Grantee, its successors and assigns, Grantor's right (i) to assign each Loan on
a servicing-released basis, and (ii) to collect any servicing fee in connection
with such Loan.
This Xxxx of sale and Assignment is being executed and delivered pursuant to the
terms of the Continuing Agreement for the Purchase and Sale of Mortgages dated
as of February 6, 1997 (the "Agreement"), between MorCap, Inc. and Westmark
Mortgage which is hereby incorporated herein by reference. this Xxxx of sale and
assignment shall be governed by the laws of the State of Georgia without regard
to the conflicts of law rules thereof. Grantee shall have the right to assign
its rights hereunder. The Grantor hereby reaffirms to Buyer the representations
and warranties contained in Section 3 of the Agreement.
GRANTOR:
Westmark Mortgage Corporation
Dated: February 6, 1997 By: /s/ Xxxx Xxxxxxxxxx
------------------------
Name: Xxxx Xxxxxxxxxx
Title: President
(Schedule of Mortgage Loan - Attached hereto)
11
EXHIBIT B
CONTENTS OF CREDIT FILE
-----------------------
With respect to each Loan, the Credit File shall include each of the following
items, which shall be delivered to Buyer.
1. A copy of the original Note, bearing all intervening endorsements,
endorsed, "Pay to the order of Mor-Cap, Inc., without recourse or warranty
except as provided for in that certain Continuing Loan Purchase Agreement
and between Mor-Cap, Inc. and Westmark Mortgage dated February 7 1997" and
signed in the name of Seller by an authorized officer or by facsimile
signature.
2. A copy of either: (i) the original recorded Mortgage with recording
information thereof, together with a certified true copy of the original
power-of-attorney showing the recording information thereon if the Mortgage
was executed by an attorney-in-fact, (ii) a certified true copy of the
Mortgage and of the power-of-attorney (if applicable) the originals of
which have been transmitted for recording, until such time as the originals
are returned by the public recording office: or (iii) a copy of the
Mortgage certified by the public recording office in those instances where
the public recording office retains the original or the original is lost,
together with a duplicate original mortgagee's certificate of tide if the
Mortgage is registered under the Torrens System.
3. A copy of the original Assignment of Mortgage for each Loan, in blank,
in form and substance acceptable to Buyer and its counsel, and for
recording but not recorded; provided, however, that certain recording
information will not be available if, as of the Settlement Date, Seller has
not received the related recorded Mortgage from the recording office.
4. A copy of the original mortgage policy of title insurance (or, if such
policy has not yet been issued by the insurer, the preliminary title
report).
5. A copy of all intervening assignments, if any, with evidence of
recording thereon, or certified true copies with evidence that the
originals have been transmitted for recording until such times as the
originals are returned by the public recording office, or a copy of each
such assignment certified by the public recording office if such office
retains the original, or if such original is lost.
6. A copy of all assumption, modification, consolidation or extension
agreements, if any.
7. A survey or plat of the Mortgaged Property (except if the Mortgaged
Property is a condominium unit), unless the title insurance contains a 116
or "no survey" endorsement.
8. Original hazard insurance policy (or certificate of insurance for a
condominium or planned unit development unit) and certificate or original
policy of flood insurance, if applicable. In lieu of an insurance policy
for each Loan, Seller may carry a Mortgage Impairment Policy meeting the
requirements of FNMA or FHLMC).
9. Loan closing statement or a copy thereof.
10. Residential loan application.
11. Verification of employment and income (if applicable).
12. Verification of evidence of source and amount of down payment (if
applicable).
13. Credit report on the Obligor.
14. Residential appraisal report.
15. Photograph of the Mortgaged Property.
16. a. Payment records and current and historical computerized data files;
and
b. tax receipts, insurance premium receipts, ledger sheets,
correspondence, insurance claim files and correspondence, and all
other papers and records developed or originated by Seller or
others, required to document the Loan or to Service the Loan
provided, however, that these items may be provided no later than 15
days after the Service Transfer Date.
17. A copy of the guarantee(s), if any.
18. Copies of each security agreement, (?) Mortgage or equivalent, executed
in connection with the Mortgage, if any.
19. Copy of each instrument necessary to complete identification of any
exception set forth in the title policy, if any.
20. All required disclosure statements, including a copy of the HUD good
faith estimate, HUD-1 settlement statement and TILA disclosure statement
prepared in connection with the Loan indicating that the Obligor has
received all disclosures required by RESPA and TILA.
1
21. Termite reports, structural engineer's report, water portability and
septic certification, if any.
22. Sales contract, if any.
23. If the Mortgaged Property is a leasehold estate, a copy of the lease
with evidence of recording thereon (or, if such recorded copy has not yet
been returned to Seller by the applicable recording office, a copy thereof
certified by Seller to be a true, correct and complete copy of such lease
sent for recording).
24. Any and all documents, agreements or instruments related to the Loan or
the Note and Seller's right and benefits therein; all documents related to
the making and closing of the Loan; and any other documents, agreements, or
instruments related to the Loan or required by Buyer, in order to enable
Buyer to sell the Loan to a private investor or as part of a securitization
or other financing vehicle.
25. A statement showing the account number, customer name, unpaid principal
balance of the Loan, the amount of periodic installments and the date(s) to
which principal, interest and any escrows have been paid, the accrued but
unpaid interest up to and including the Settlement Date provided, however,
that this information may be provided in a trial balance; and, if required
by Buyer, a ledger card or ledger history reflecting all receipts and
disbursements, provided, however, that these items may be provided no later
than 15 days after the Servicing Transfer Date.
26. The original Primary Insurance Policy or certificate, if any is
specified on the Loan Schedule.
27. The federal and State Fair Lending and Equal Credit Notices, including
the truth-in-lending statement and recession notices.
2
SCHEDULE 2.1
CONTENTS OF LOAN SCHEDULE
With respect to each Loan Package, the Loan Schedule shall include each of
the following items, if applicable, with respect to each Loan in the Loan
Package:
1. the Seller's Loan identifying number;
2. the Obligor's first and last name;
3. the street address of the Mortgaged Property;
4. the state in which the Mortgaged Property is located;
5. the city in which the Mortgaged Property is located;
6. the five digit zip code in which the Mortgaged Property is located;
7. a code indicating whether the Mortgaged Property is occupied as the owner's
primary residence or as a second home or is an investment property;
8. the original months to maturity;
9. the original principal amount of the Loan;
10. the Loan-to-Value Ratio at origination of the Loan being sold to the Buyer;
11. the Mortgage Interest Rate at origination;
12. the date on which the first Monthly Payment was due on the Loan;
13. the stated maturity date;
14. the amount of the Monthly Payment at origination;
15. the original closing date of the Mortgage (origination date);
16. with respect to each Adjustable Rate Loan, the next Rate Adjustment Date;
17. with respect to each Adjustable Rate Loan, the period between resets,
stated in months;
18. with respect to each Adjustable Rate Loan, the Gross Margin;
19. with respect to each Adjustable Rate Loan, the number of days prior to the
Adjustment Date on which the value of Index is determined, ie., the
look-back;
20. with respect to each Adjustable Rate Loan, a code indicating the rounding
factor, if any, applied to the Mortgage Interest Rate, e.g. the nearest
1/8%, or up to the nearest 1/8%;
21. with respect to each Adjustable Rate Loan, the Maximum Mortgage Interest
Rate under the terms of the Note;
22. with respect to each Adjustable Rate Loan, the Minimum Mortgage Interest
Rate under the terms of the Note;
23. with respect to each Adjustable Rate Loan, the Periodic rate Cap (if the
initial periodic cap is different from the subsequent Periodic caps, this
field should state the initial periodic cap);
24. a code indicating if the Loan is a Convertible Mortgage Loan;
25. a code indicating if the Loan is an assumable Mortgage Loan;
26. the Appraised Value of the Mortgaged Property at origination;
27. the sale price of the Mortgage Property, if applicable;
28. a code indicating the Mortgage Loan Program pursuant to which the Loan was
delivered to the Buyer, e.g., whether the Mortgage Loan is a fixed rate,
or one of the Adjustable Rate Loans;
29. a code indicating if the Loan is a balloon mortgage;
30. a code indicating if the Loan has a prepayment penalty;
31. with respect to each Loan that is not a first lien, the principal balance
of the senior lien on the Mortgaged Property at the time the Loan being
sold to the Buyer is originated; $0 will be entered for first lien Loans
sold to the Buyer;
32. the principal balance of any liens subordinate to the Loan being sold to
the Buyer, at the time the Loan is originated;
33. a code indicating the lien position of the Loan; and
34. a code indicating which, if any, primary mortgage insurance company has
insured the Loan.
