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EXHIBIT 10.35
PURCHASE AGREEMENT
This is a purchase agreement (the "Purchase Agreement" or "Agreement"),
dated as of May 7, 1996, by and between WMF/XXXXXXX, XXXXX ASSOCIATES LIMITED, a
Delaware corporation whose principal place of business is in Edison, New Jersey
("Purchaser"), and AMERICAN CAPITAL RESOURCE, INC., a Delaware corporation whose
principal place of business is in Atlanta, Georgia ("Seller").
WHEREAS, Seller desires to sell, transfer, and assign to Purchaser and
Purchaser desires to purchase and acquire from Seller (a) all of Seller's right,
title, and interest in and to the servicing rights, obligations and benefits
(the "Servicing") relating to the mortgage loans set forth in SCHEDULE A which
is attached hereto and made an integral part hereof (the "Mortgage Loans"), (b)
all of Seller's beneficial ownership of and interests (including the right to
determine placement of balances) in the Escrow Accounts (as hereinafter defined)
related to each Mortgage Loan (the Servicing rights and obligations and the
rights to the Escrow Accounts being hereinafter sometimes collectively referred
to as the Servicing), (c) all of Seller's right, title and interest in and to
the Seller's pipeline of prospective mortgage loans currently being processed
for loan commitment by the Seller which are the subject of an engagement letter
between the Seller and the prospective borrower and which are intended for
mortgage insurance by the Federal Housing Administration ("FHA") ("FHA Loans"),
(the "Pipeline"), which Pipeline is set forth in SCHEDULE B which is attached
hereto and made an integral part hereof, (d) all of Seller's right, title and
interest in and to the Seller's pipeline of prospective mortgage loans currently
being processed for loan commitment by the Seller which are the subject of an
engagement letter between the Seller and the prospective borrower and which are
to be purchased by the Federal National Mortgage Association _("Xxxxxx Mae")
pursuant to the Xxxxxx Xxx Prior Approval Program ("Xxxxxx Mae Prior Approval
Loans"), which Xxxxxx Xxx Prior Approval Loans are set forth in SCHEDULE B1
which is attached hereto and made an integral part hereof, and (e) all of
Seller's right, title and interest in and to certain furniture, fixtures,
equipment and personal property as more specifically described and identified in
SCHEDULE C which is attached hereto and made an integral part hereof (the
"Assets");
WHEREAS, Purchaser desires to assume, in its sole discretion, the
obligations of the Seller pursuant to certain leases for offices (the "Leases")
in those cities listed in SCHEDULE D which is attached hereto and made an
integral part hereof, which offices are presently occupied by the Seller and
which the Purchaser desires to occupy;
WHEREAS, the Mortgage Loans listed on SCHEDULE A are to be performing loans
(as hereinafter defined) as of the Closing Date (as hereinafter defined);
WHEREAS, the parties acknowledge that each of the Mortgage Loans listed on
SCHEDULE A is either (i) held by Xxxxxx Mae pursuant to Xxxxxx Mae's Prior
Approval Program (the "Xxxxxx Mae Program"), (ii) held by a private investor as
indicated on SCHEDULE A as regards a specific Mortgage Loan (the "Investor"), or
(iii) held by the Seller and insured by FHA, and is the subject of a mortgage-
backed security guaranteed by the Government National Mortgage Association
("GNMA") and issued by the Seller, and that Seller is selling, and Purchaser is
purchasing, the Seller's mortgage servicing rights and obligations pursuant to
the Xxxxxx Xxx Program, or GNMA's or the Investor's requirements, respectively;
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WHEREAS, the parties understand that the Servicing cannot be transferred
until after certain consents have been obtained, and that such consents will not
be obtained on or before the Closing Date (as hereinafter defined), and the
parties wish to provide for the subservicing of the Servicing by the Purchaser
after the Closing Date; and
WHEREAS, the parties acknowledge that for the purposes of this Agreement,
(i) Xxxxxx Mae and the Investors may be hereinafter referred to collectively as
the "Holder", and (ii) "Escrow Accounts" shall mean, for each Mortgage Loan,
those accounts established and maintained by Seller or its predecessor in
accordance with the Holder's requirements for the deposit and retention of all
collections of taxes, assessments, ground rents, hazard and other escrowed items
on account of such Mortgage Loan.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties hereto
agree as follows:
1. SALE OF PROPERTY. Seller hereby agrees to sell, transfer, assign,
setover and convey to Purchaser and Purchaser agrees to purchase and acquire
from Seller, as provided in this Agreement, all of Seller's right, title,
benefits, detriments and interests, legal and equitable, in and to (i) the
Servicing, (ii) the Escrow Accounts, (iii) the Pipeline, (iv) the Xxxxxx Xxx
Prior Approval Loans and (v) the Assets, provided however, that certain Assets
specifically identified on SCHEDULE C are not owned, but are being leased, by
the Seller, and as to such leased Assets, Purchaser shall assume the obligations
of the Seller under the related leases as specifically disclosed on SCHEDULE C.
(The Servicing, the Escrow Accounts, the Pipeline, the Xxxxxx Mae Prior Approval
Loans and the Assets may be referred to hereinafter collectively as the
"Property".)
2. PURCHASE PRICE. The Purchase Price for the Property shall be paid as
follows:
(a) THE ASSETS: At the Closing (as hereinafter defined), Purchaser
shall pay to Seller an amount which is set forth on SCHEDULE C as the value of
the Assets as of April 30, 1996;
(b) THE SERVICING AND THE ESCROW ACCOUNTS:
(i) From time to time after the Closing during the term of this
Agreement, after all required consents for the transfer of the Servicing of any
Mortgage Loans have been obtained from the Holders or GNMA, as applicable, and
upon the transfer of all of the Seller's rights, title and interest in and to
the Servicing and the Escrow Accounts for such Mortgage Loan(s) to the Purchaser
(each such date thereof being a "Servicing Transfer Date"), Purchaser shall pay
on each Servicing Transfer Date as the purchase price for such Mortgage Loan(s)
to Seller (A) 1.25% of the unpaid principal balance as of the Servicing Transfer
Date of those Mortgage Loans listed in SCHEDULE A, which are performing loans as
of the Servicing Transfer Date, and which are identified on SCHEDULE A as
finally endorsed, FHA-insured, permanent mortgage loans, and (B) three (3) times
the annual servicing fee as to those Mortgage Loans listed in SCHEDULE A, which
are performing loans as of the Servicing Transfer Date, and which are Xxxxxx Xxx
-held loans. For purposes of this Agreement, a performing loan is a Mortgage
Loan which is not more than thirty (30) days delinquent or not affected by
pending or threatened litigation, including foreclosure or bankruptcy. The
Purchaser may elect, within thirty (30) days prior to the applicable Servicing
Transfer Date, not to purchase the Servicing for a Mortgage Loan, and Seller may
then offer and sell the Servicing for such Mortgage Loan to another person.
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(ii) As to those Mortgage Loans which are identified on SCHEDULE
A as FHA-insured construction loans, Purchaser shall have the right to purchase
the Servicing within thirty (30) days of final endorsement of each such Mortgage
Loan for mortgage insurance by FHA and which are performing loans as of the
Servicing Transfer Date. If the Purchaser elects to purchase the Servicing of
said Mortgage Loans, Purchaser shall pay on the Servicing Transfer Date as the
purchase price to Seller for the Servicing 1.25% of the unpaid principal balance
of each such Mortgage Loan as of the Servicing Transfer Date. If the Purchaser
does not elect to purchase the Servicing for a Mortgage Loan within thirty (30)
days of final endorsement, then Seller may offer and sell the Servicing for such
Mortgage Loan to another person. Purchaser's exercise of such right to purchase
shall be evidenced by a written offer from the Purchaser and a written
acceptance from the Seller, which offer and acceptance are sufficient to create,
prior to the expiration of such thirty (30) day period, a binding contract
between the Seller and the Purchaser for the purchase of the applicable
Servicing.
(iii) As to those Mortgage Loans which are identified on SCHEDULE
A as FHA Co-Insured Loans, and which are converted to full FHA insurance and are
performing loans as of the Servicing Transfer Date, Purchaser shall pay on the
Servicing Transfer Date as the purchase price to the Seller for the Servicing an
amount equal to two-thirds (2/3) of the value of the Servicing as fully insured
FHA mortgage loans, as valued by the Purchaser and the Seller at the time of
conversion from co-insurance to full insurance. If the Purchaser does not
exercise its right to purchase the Servicing within thirty (30) days of the
conversion of a performing loan from co-insurance to full insurance, then Seller
may offer and sell the Servicing of such loan to another person. Purchaser's
exercise of such right to purchase shall be evidenced by a written offer from
the Purchaser and a written acceptance from the Seller, which offer and
acceptance are sufficient to create, prior to the expiration of such thirty (30)
day period, a binding contract between the Seller and the Purchaser for the
purchase of the applicable Servicing.
(iv) As to the Mortgage Loans (except for those Mortgage Loans,
if any, identified on SCHEDULE A as being excluded from subservicing by the
Purchaser), the Purchaser and the Seller hereby agree to enter into a Sub-
Servicing Agreement, substantially in the form of Exhibit 1, which is attached
to this Agreement and made an integral part hereof, pursuant to which the
Purchaser shall subservice the Mortgage Loans for the period between the time
when the Holder or GNMA, as applicable, approves the subservicing of the
Mortgage Loans by the Purchaser and the Servicing Transfer Date, it being the
intention of the Purchaser and the Seller that the Purchaser shall subservice
the Mortgage Loans prior to the respective Servicing Transfer Dates all in
accordance with and subject to the terms and provisions of the Sub-Servicing
Agreement.
(c) THE PIPELINE (GOING CONCERN VALUE): At the Closing, Purchaser
shall pay to Seller TWO MILLION AND NO/100 DOLLARS ($2,000,000.00) in cash (the
"Closing Payment") for the FHA Loans in the Pipeline, and thereafter shall also
pay to the Seller (x) 2% of the first $200 Million of said FHA Loans actually
closed within 15 months after Closing, less the Closing Payment; (y) 1.5% of the
next $150 Million of said FHA Loans actually closed within 15 months after
Closing; and (z) 1% of the remaining amount of said FHA Loans actually closed
within 15 months after Closing. The phrase "within 15 months after Closing"
shall mean the period on or before the last day of the fifteenth (15th) full
calendar month following the Closing Date.
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(d) THE XXXXXX MAE PRIOR APPROVAL LOANS:
As to the Xxxxxx Xxx Prior Approval Loans, subject to any approvals
which may be required of Xxxxxx Mae as regards the assignment on the Xxxxxx Xxx
Prior Approval Loans to the Purchaser, the Purchaser shall pay the Seller for
the Servicing an amount equal to three (3) times the annual servicing fee
attributable to each such loan pursuant to the Xxxxxx Mae Program, which amount
shall be payable to the Seller at such time as each such loan is closed. The
Purchaser shall retain all fees payable by the borrower of each such loan to the
lender..
(e) DEFERRAL OF A PORTION OF THE PURCHASE PRICE:
(i) Purchaser's payment of a portion (as set forth in paragraph
2.(b) hereinabove) of the Purchase Price for, and the transfer from the Seller
to the Purchaser of, the Servicing and the Escrow Accounts shall be deferred
until after Closing until, from time to time, all Xxxxxx Xxx, FHA, GNMA or
Investor consents which are required to effectuate the transfer of Servicing
have been obtained.. Any such deferred portion of the Purchase Price shall be
paid by the Purchaser to the Seller as to the applicable Servicing after the
required consents have been obtained by the Seller for the transfer of such
Servicing and upon the transfer of such Servicing and the related Escrow
Accounts to the Purchaser, i.e., on the applicable Servicing Transfer Date;
(ii) On the Closing Date, and simultaneously with the
disbursement of the component of the Purchase Price to Seller at Closing, Seller
shall transfer to Purchaser all of the Assets, the Pipeline and the Xxxxxx Mae
Prior Approval Loans, and all of the Seller'' rights, title and interest therein
as provided in this Agreement.;
(iii) Notwithstanding anything in this Agreement to the contrary,
the amounts payable by the Purchaser for any installment of the Purchase Price
payable after Closing as provided in paragraph 2.(c) above may, as hereinafter
specifically provided, be adjusted and reduced by setting-off against the total
amount payable for each installment, in addition to any amounts otherwise
specifically provided for in this Agreement, that amount incurred by the
Purchaser after the Closing Date as actual damages arising from a breach of any
representation, warranty or covenant of the Seller made pursuant to this
Agreement. Purchaser immediately shall notify Seller of any claims in writing
promptly after receiving notice of any action, lawsuit, proceeding or other
claim. Seller shall have the right to contest the action, lawsuit, proceeding
or other claim and to assume the defense thereof. Each setoff, if any, made by
Purchaser shall be made against the amount of the Purchase Price payable to the
Seller pursuant to paragraph 2.(c) of this Agreement (the "Purchase Price
Installment"), and, as a condition precedent to making such setoff, must
accompanied by the Purchaser's reasonably detailed written explanation of the
basis for such setoff. During the period of time between the Closing Date and
the beginning of the 16th full calendar month thereafter, the Purchaser shall
provide the Seller monthly, on the 25th day of each month, with reports,
substantially in the form of SCHEDULE E, SCHEDULE E1 and SCHEDULE E2 which are
attached hereto and made an integral part of this Agreement (the "Monthly
Reports"). The Monthly Reports shall in the aggregate specify the amount, if
any, of the Purchase Price Installment due to the Seller at that time, and shall
specify the amount of any setoff being claimed by the Purchaser. Any Purchase
Price Installment due to the Seller at that time shall be paid by the Purchaser
when the Monthly Reports are delivered to the Seller. The Seller's acceptance,
or failure to object to, any Monthly Report shall not limit the Seller's rights
to dispute any setoff claimed by the Purchaser as disclosed on a Monthly Report.
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To the extent that the Monthly Report discloses that the Seller may owe
money to the Purchaser for the subject month (a "Deficit"), then such Deficit
shall accrue until the following Monthly Report at which time any adjustments of
monies payable by the parties hereto to the other shall be made. Any Deficit
shall be payable to the Purchaser on the first day of the thirteenth (13th)
calendar month after the Closing Date and, to the extent any Deficit exists
thereafter, on the first day of each month thereafter until the Deficit is paid
to the Purchaser.
In the event that the Seller disputes the amount of any setoff being
claimed by the Purchaser on a Monthly Report, and the Seller and the Purchaser
are unable to resolve the disagreement, then, notwithstanding anything in this
Agreement to the contrary, the Purchaser shall deposit the amount of the setoff
in escrow with its counsel, Krooth & Xxxxxx, as escrowee, for the benefit of the
Purchaser and the Seller, and the Seller and the Purchaser agree promptly to
submit the disagreement as to the amount of the setoff to binding arbitration in
Washington, D.C. pursuant to the rules and procedures of the American
Arbitration Association, provided that if the amount in dispute exceeds $300,000
then the matter shall be arbitrated by three (3) arbitrators. All costs,
including reasonable counsel fees, of any arbitration pursuant to this section
of this Agreement in which the issue being arbitrated relates to a party's right
of setoff shall be paid by the party which does not prevail in the arbitration.
In all other cases, each party shall pay its own costs, including reasonable
counsel fees, associated with the arbitration, and shall share equally any
mutual arbitration costs (e.g., the cost of multiple arbitrators). Any funds
escrowed pursuant to this paragraph shall be disbursed by escrowee in accordance
with such arbitration awards, except as the Purchaser and Seller may otherwise
agree in writing.
Notwithstanding anything in this Agreement to the contrary, the amount of
any setoff in a Monthly Report (and the amount of any damage claim) which is
attributable to any specific item of the Property shall not exceed the value of
that item as of the Closing Date.
This right of setoff in the Purchaser shall not limit, mitigate or be in
derogation of any and all other rights and remedies which the Purchaser may have
against the Seller as a result a breach by the Seller of any of its
representations, warranties and covenants under this Agreement, provided that
the immediately preceding sentence shall be controlling with respect to any
damage claims asserted by the Purchaser which relate to a specific item of
Property.
3. PAYMENT OF PURCHASE PRICE. On the Closing Date, Purchaser shall deliver
to the Seller or to its order by wire the requisite components of the Purchase
Price specified in paragraphs 2.(a) and 2.(c) of this Agreement (less TWENTY
THOUSAND AND NO/100 DOLLARS ($20,000.00) as an adjustment for certain expenses
of the Purchaser) in immediately available funds, pursuant to written
instructions from the Seller to the Purchaser. As to any Purchase Price
Installment payable by the Purchaser to the Seller after the Closing Date and
payments due on each Servicing Transfer Date, the Purchaser shall deliver to the
Seller or to its order by wire the required amount in immediately available
funds pursuant to written instructions from the Seller to the Purchaser.
4. CLOSING DATE; PAYMENT OF INITIAL INSTALLMENT OF PURCHASE PRICE. The
purchase and sale, and delivery, of the Pipeline, the Xxxxxx Mae Prior Approval
Loans and the Assets shall occur on or prior to May 15, 1996, pursuant to this
Agreement (the "Closing Date"), through a closing and settlement as described
herein, and shall be fully subject to the performance by Seller and Purchaser of
the applicable conditions contained in this Agreement. On the Closing Date, the
initial component of the Purchase Price, as described in paragraph 3 above
(without any setoff), shall be paid by Purchaser as described above in
immediately available funds by wire transfer.
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The Purchase Price attributable to the Servicing shall be paid from time to time
after the Closing Date on each Servicing Transfer Date as the Servicing
attributable to a Mortgage Loan or Loans is transferred to and accepted by the
Purchaser.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. Seller hereby
represents, warrants and covenants to Purchaser that as of the date of this
Agreement and as of the Closing Date:
(a) The information set forth in SCHEDULE A, SCHEDULE B, SCHEDULE B1,
SCHEDULE C, SCHEDULE D, SCHEDULE F and SCHEDULE G attached hereto is true and
correct (with the exception of a reduction in unpaid principal balance due to
receipt of regularly scheduled payments of principal), unless otherwise
disclosed to the Purchaser in writing at or prior to Closing, and each Mortgage
Loan, unless otherwise noted on SCHEDULE A, has been fully disbursed;
(b) Each Mortgage Loan listed in SCHEDULE A is a performing loan, under
the original or modified terms thereof, and is not materially in default except
as may be specifically disclosed in SCHEDULE A;
(c) The Mortgage Loans have been assigned to and accepted by the Holder
pursuant to the Holder's requirements, as indicated on SCHEDULE A. No act or
omission of the Seller would result in, and no facts or circumstances known to
the Seller exist which would result in, (1) the Mortgage Loans being ineligible
for purchase or investment by the respective Holder, or (2) the reassignment of
the Mortgage Loans to the Seller prior to the applicable Servicing Transfer
Date, or to the Purchaser after the applicable Servicing Transfer Date;
(d) The Mortgage Loans, all documents related thereto, and the Escrow
Accounts are in compliance with applicable requirements of the Holder, FHA or
GNMA as appropriate.
(e) Except as set forth on SCHEDULE F, no approvals, authorizations or
consents of any Holder are required in connection with the execution, delivery
and performance of this Agreement by the Seller.
(f) No advance or advances on behalf of the mortgagor are outstanding
other than disbursement of the proceeds of the Mortgage Loan;
(g) Seller (i) owns the Servicing and (ii) is maintaining in accordance
with the Holder's, FHA's and GNMA's requirements as appropriate the Escrow
Accounts, free of any liens, charges, or encumbrances, other than the rights of
the Holder and the mortgagor under the Mortgage Loan, and Seller has full right
to sell, assign, and transfer legal title to the Servicing and all of its rights
and interests in and to the Escrow Accounts pursuant to this Agreement;
(h) The mortgage, deed of trust, or deed to secure debt ("mortgage") is
a valid, subsisting, and enforceable first lien or, if approved by Holder or FHA
as appropriate, second lien, on the mortgaged property, including all buildings
on the mortgaged property; such lien is subject only to (i) the lien of the
current real property taxes and assessments not yet due and payable, and (ii)
covenants, conditions and restrictions, rights of way, easements, and other
matters of the public record which are acceptable to Holder or FHA as
appropriate and mortgage institutions generally, and which are specifically
referred to in the lender's title insurance policy delivered to the originator
of the Mortgage Loan and to FHA or the Holder as appropriate. The
representation
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and warranty set forth in this subsection is made solely in reliance on the
policy of title insurance issued in regard to the Mortgage Loan;
(i) To the best knowledge of Seller, any security agreement, chattel
mortgage, or equivalent document related to and delivered in connection with the
Mortgage Loan establishes and creates a valid, subsisting, and enforceable first
lien and first priority security interest on the property described therein and
no act or omission of the Seller has impaired or could impair the lien of such
security agreement, chattel mortgage or equivalent document. To the extent that
this representation and warranty shall be incorrect on the Closing Date, Seller
shall promptly take action to correct such deficiency; if such correction cannot
be accomplished through reasonably diligent efforts of Seller, then Seller shall
indemnify Purchaser as hereinafter provided in paragraph 14 of this Agreement;
(j) A valid policy of title insurance has been issued for each of the
Mortgage Loans in an amount not less than the Mortgage Loan amount, and is in
full force and effect;
(k) The mortgaged property is insured under customary property
insurance policies against insurable risks and hazards as required by Holder or
FHA as appropriate, and such insurance is in amounts which are not less than the
amount necessary to meet the requirements of Holder or FHA as appropriate, and
all premiums for such insurance have been paid as required by the policies
through the Closing Date, except as disclosed to and approved in writing by
Purchaser;
(l) Seller has serviced the Mortgage Loans, and will continue to
service the Mortgage Loans through the Closing Date, in accordance with sound
and prudent mortgage banking practice and the rules, regulations or requirements
of Holder or FHA as appropriate, and no termination fees, rights of first
refusal, or any other similar obligations under or relating to any servicing
agreement exist as to any of the Mortgage Loans which are enforceable, except as
are specifically disclosed on SCHEDULE A;
(m) Seller has not received notice of, and has no actual knowledge of,
any intention to prepay any Mortgage Loan, except as disclosed to Purchaser.
(n) The Escrow Accounts are subject to and have been administered in
accordance with the normal requirements of the Holder or FHA as appropriate, as
to where and in what form such Escrow Accounts need be maintained, and are not
subject to any agreements regarding investment except as has been expressly
disclosed in writing to the Purchaser;
(o) Seller has good and marketable title to the Assets owned by it and
described in SCHEDULE C, free and clear of all liens, claims, charges, security
interests and other encumbrances of any kind or nature;
(p) No consents by any third-party other than the Holders, FHA and GNMA
need be obtained by Seller in order for it to execute, deliver and perform its
obligations under the Purchase Agreement.
(q) Seller is the sole owner of the Servicing, the Pipeline, the Xxxxxx
Xxx Prior Approval Loans and the Assets, and is custodian of the Escrow
Accounts, and the transfer, assignment and delivery of the Servicing, the
Pipeline, the Xxxxxx Mae Prior Approval Loans and the Assets, and
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the Seller's rights and interests in the Escrow Accounts, in accordance with the
terms and conditions of this Purchase Agreement will vest in Purchaser all
rights therein as free and clear of any and all interests, liens, security
interests, claims, charges, defenses, offsets, and encumbrances of any kind or
nature whatsoever, including but not limited to those of Seller.
(r) As of the date hereof and as of the Closing Date, (i) Seller is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (ii) Seller has full authority to execute and
deliver this Purchase Agreement and all documents required pursuant hereto and
to perform all of the obligations set forth hereunder and thereunder; (iii) this
Purchase Agreement evidences the valid, binding and enforceable agreement of
Seller, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally, and by general equitable principles, whether
enforcement is sought by proceedings in equity or at law; (iv) Seller is duly
qualified as an FHA approved mortgagee, a GNMA Issuer and a Xxxxxx Xxx
Seller/Servicer; and (v) neither the execution of this Agreement nor the
consummation of the transactions described herein is a violation of the Seller's
articles of incorporation, by-laws or other organizational documents, or of any
agreement, contract, law, judgment, order, rule or regulation by which Seller is
bound.
(s) Seller has delivered to Purchaser the current financial statements
of Seller (including the notes relating thereto) (the "Financial Statements").
The Financial Statements have been prepared in accordance with generally
accepted accounting principles, fairly present the financial condition and
results of the operations of Seller, and are consistent with the books and
records of Seller. Since the date of the Financial Statements, there has been
no change which has had or could reasonably be expected to have, together with
all other changes, a material adverse effect in the business, financial
condition, results of operations or properties of Seller.
(t) Seller acknowledges that the sale of the Property to the Purchaser
under this Agreement constitutes a sale of substantially all of the assets of
the Seller, and represents, warrants and covenants to the Purchaser that (i)
such a sale will not constitute or be deemed to be a preference or fraudulent
conveyance to the Purchaser, and (ii) all legal requirements relating to a sale
of substantially all of its assets, including but not limited to all necessary
public filings, have been complied with by the Seller or shall be complied with
on or before the Closing Date.
(u) Between the date of this Agreement and the Closing Date, Seller
will afford Purchaser and its representatives (collectively, "Purchaser's
Advisors") full and free access to the Seller's personnel, properties,
contracts, books and records, and other documents and data, (b) furnish
Purchaser and Purchaser's Advisors with copies (at Purchaser's cost) of all such
contracts, books and records, and other existing documents and data as Purchaser
may reasonably request, and (c) furnish Purchaser and Purchaser's Advisors with
such additional financial, operating, and other data and information as
Purchaser may reasonably request, provided however that such material must
reasonably relate to the Property.
(v) Between the date of this Agreement and the Closing Date, Seller
will:
(i) conduct its business only in the ordinary course of
business; and
(ii) use its best efforts to preserve intact its current business
organization, keep available the services of its current officers, employees,
and agents, and maintain the relations
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and good will with suppliers, customers, landlords, creditors, employees,
agents, and others having business relationships with the Seller.
(w) Until such time, if any, as this Agreement is terminated, Seller
will not, directly or indirectly solicit, initiate, or encourage any inquiries
or proposals from, discuss or negotiate with, provide any non-public information
to, or consider the merits of any unsolicited inquiries or proposals from, any
person (other than Purchaser) relating to any transaction involving the sale of
its business or assets (other than in the ordinary course of business, and other
than assets which are not part of the Property), or any merger, consolidation,
business combination, or similar transaction involving the Seller.
(x) For the first six (6) months after the Closing Date, the Seller
shall refer exclusively to the Purchaser and its affiliates all applications
which the Seller receives for commercial or multifamily mortgage loans to be
made by the Seller. Seller agrees not to broker any multifamily or commercial
mortgage loans, or applications for such loans, after the first six (6) months
after the Closing Date.
(y) The Seller shall remain an FHA-approved mortgagee in good standing
for at least ninety (90) days after the later of (i) the Transfer Date relating
to the transfer to the Purchaser of the Servicing of the last FHA construction
loan identified on SCHEDULE A as to which Servicing is to be transferred to the
Purchaser or (ii) the Closing Date.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby represents
and warrants to Seller that as of the date of this Agreement and as of the
Closing Date:
(a) Purchaser, as of the date hereof and as of the Closing Date, (i) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (ii) has full authority to execute and deliver
this Purchase Agreement and all documents required pursuant hereto and to
perform all of the obligations set forth hereunder and thereunder; (iii) this
Purchase Agreement evidences the valid, binding and enforceable agreement of
Purchaser; (iv) Purchaser is duly qualified as an FHA approved mortgagee, a GNMA
Issuer and Xxxxxx Xxx Seller/Servicer; and (v) neither the execution of this
Agreement nor the consummation of the transactions described herein is a
violation of the Purchaser's articles of incorporation, bylaws or other
organization documents, or of any agreement, contract, law, judgment, order,
rule or regulation by which Purchaser is bound;
(b) Purchaser has sufficient funds available to it to purchase all of
the Property on the terms set forth herein, including but not limited to the
ability to pay the Purchase Price Installments;
(c) No consents need be obtained by the Purchaser from any third-party
in order for the Purchaser to execute, deliver and perform its obligations under
this Agreement, provided, however, that Purchaser makes no representation and
warranty as regards any consents which are necessary for the Seller to transfer
the subservicing and the Servicing of the Mortgage Loans; and
(d) No act or omission of the Purchaser would result in, and no facts
or circumstances known to the Purchaser exist which would result in, (i) the
Mortgage Loans being ineligible for purchase or investment by the respective
Holder, (ii) the reassignment of the Mortgage Loans to the Seller prior to the
applicable Servicing Transfer Date or to the Purchaser after the applicable
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Servicing Transfer Date, or (iii) any violation of any Mortgage Loans or the
Servicing Agreement (as defined in the Sub-Servicing Agreement).
7. MORTGAGE LOAN FILE AND ESCROW ACCOUNTS. Upon the commencement of the
subservicing of each Mortgage Loan by the Purchaser pursuant to the Sub-
Servicing Agreement, Seller shall deliver to Purchaser at Purchaser's offices in
Atlanta, Georgia the custodial file for each of the Mortgage Loans as it
becomes subject to the Sub-Servicing Agreement as more specifically provided and
required pursuant to the Sub-Servicing Agreement, and the Seller shall on that
same date transfer to the Purchaser as subservicer in immediately available
funds pursuant to written instructions from the Purchaser all funds, accounts or
investments related to the applicable Mortgage Loan and Escrow Accounts.
8. FUNDING DOCUMENTS.
(a) On or prior to the Closing Date, and as a specific condition to
Purchaser's obligation to close hereunder, Seller shall deliver to Purchaser the
following documents:
(i) Seller's Certificate, in the form of Exhibit A attached
hereto, with all attachments referenced therein;
(ii) a signed opinion of Seller's counsel substantially in the
form of Exhibit B attached hereto;
(iii) bills of sale and assignment, and other instruments of
conveyance, sale, transfer and assignment, in form reasonably acceptable to
Purchaser and its counsel effectively vesting in Purchaser good and marketable
title to the Assets free and clear of any liens or encumbrances;
(iv) UCC termination statements sufficient to satisfy and
terminate all security interests and other encumbrances on the Property;
(v) any consents and approvals required under this Agreement in
connection with the Closing, and evidence of compliance with all laws relating
to the sale of substantially all of the Seller's assets, if applicable; and
(vi) such other documents as Purchaser and its counsel may
reasonably request prior to the Closing Date.
(b) On or prior to the Closing Date, and as a specific condition to the
Seller's obligation to close hereunder, Purchaser shall deliver to Seller
assumption agreements pursuant to which Purchaser assumes the responsibilities
of the Seller associated with the Leases and the equipment leases, if any, along
with:
(i) Purchaser's Certificate, in the form of Exhibit C attached
hereto, with all attachments referenced therein;
(ii) a signed opinion of Purchaser's counsel substantially in the
form of Exhibit D attached hereto; and
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(iii) such other documents as the Seller and its counsel may
reasonably request prior to the Closing Date.
(c) On or prior to the Closing Date, and as a specific condition of the
obligations of the parties to close hereunder, the Seller and the Purchaser
shall sign and deliver the Sub-Servicing Agreement.
9. CONDITIONS OF CLOSING. The respective obligations of Purchaser and
Seller to complete the transactions contemplated hereby are subject to the
fulfillment on or prior to the Closing Date of each of the following conditions
(unless the context indicates that the condition is for the benefit of one of
the parties and the condition is specifically waived in writing by that party):
(a) PERFORMANCE. Seller and Purchaser shall each have performed all of
its covenants and agreements contained herein which are required to be performed
by it on or prior to the Closing Date;
(b) REPRESENTATIONS AND WARRANTIES. All representations and warranties
of Seller and Purchaser set forth in this Agreement shall be true on the Closing
Date and shall survive the Closing Date except as otherwise expressly set forth
herein;
(c) REGULATORY REQUIREMENTS; APPROVALS. Seller and Purchaser shall
have complied with each and every regulatory and other requirement of FHA, GNMA,
and each Holder necessary to transfer the Pipeline and the Xxxxxx Mae Prior
Approval Loans, and the Assets, and to have the Purchaser assume the Leases and
the leases of any equipment, and shall have obtained the approvals and consent
of FHA, GNMA, Xxxxxx Xxx and each Investor, and each landlord on the Leases, of
the transactions contemplated by this Agreement as may be necessary to
effectuate the Closing.
(d) LEASES. With the written consent of each respective landlord, the
Purchaser shall, as of the Closing Date, assume, or become the assignee of, the
obligations of, and total cost (including, but not limited to, the base rent and
operating expense and tax pass-throughs) to, the Seller or its agent pursuant to
each of the Leases, provided however, that as to the Atlanta Lease, the Seller
shall be liable to the Purchaser for thirty-three percent (33%) of the total
cost (including, but not limited to, the base rent and operating expense and tax
pass-throughs) of the Atlanta Lease, minus any payments from any sub-tenant in
the premises which are the subject of the Atlanta Lease (the "Leased Premises"),
minus the cost of 4000 square feet of the Leased Premises. At the end of the
16th month after the Closing Date, Purchaser and Seller shall determine the
financial liability of the Seller to the Purchaser pursuant to this paragraph
for the remainder of the term of the Atlanta Lease. Any monies payable by the
Seller to the Purchaser regarding the Atlanta Lease may be setoff by the Seller
against monies owed by it to the Purchaser, and any setoffs shall be accounted
for in the Monthly Report to the Seller. The Purchaser and the Seller agree
that the Seller's share of the total cost of the Atlanta Lease is payable by the
Seller as such costs accrue and are not to be determined, or payable at, the
Closing.
(e) TRANSFER AND ASSIGNMENT OF PIPELINE AND XXXXXX MAE PRIOR APPROVAL
LOANS. At Closing, Seller shall assign all of its rights, title and interest in
and to the Pipeline and the Xxxxxx Xxx Prior Approval Loans to the Purchaser,
and Purchaser shall process all Pipeline and Xxxxxx Mae Prior Approval Loan
applications, and upon issuance of an FHA Commitment, or
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approval of the mortgage loan by Xxxxxx Xxx, as applicable, the Purchaser shall
proceed to loan closing in the Purchaser's name as mortgagee of record.
Purchaser shall use its best efforts and allocate the necessary resources to
maximize the number of loans that may be processed and closed from the Pipeline.
Purchaser shall retain all fees payable to the mortgagee in connection with the
FHA Loans and the Xxxxxx Mae Prior Approval Loans, and Purchaser shall pay, upon
loan closing, all loan commissions and/or loan broker fees payable in connection
with the closed loan. Purchaser acknowledges that Seller has made certain
advances (the "Advances") to its loan officers. Purchaser is not purchasing the
Advances as part of the Assets. Purchaser and Seller agree that the Advances
will be offset first against any fees owed to the loan officers from the FHA
Loans and the Xxxxxx Xxx Prior Approval Loans which are closed and which were
originated by said loan officer, and the amount of such offset shall be paid,
concurrently with the applicable loan closing, to Seller by the Purchaser in
addition to the Purchase Price Installment attributable to the Pipeline. The
amount of any Advances, and the persons to whom they were made, are listed in
SCHEDULE G, which is attached hereto and made an integral part hereof. The
Seller represents and warrants to the Purchaser that SCHEDULE G is complete and
accurate, and that the Seller has notified each of the persons listed on
SCHEDULE G in writing that the amount of the respective Advance will be deducted
from any fees or commissions payable to such person by the Purchaser upon the
closing of any of the loans in the Pipeline.
(f) EMPLOYMENT OF CERTAIN PERSONS BY THE PURCHASER. Seller and
Purchaser agree that Purchaser's obligations under this Agreement are
specifically conditioned upon the employment by Purchaser, on terms satisfactory
to the Purchaser in its sole discretion and prior to the Closing Date, of those
persons listed on SCHEDULE H which is attached hereto and made an integral part
hereof.
(g) PRORATION OF CERTAIN EXPENSES. Seller and Purchaser agree that the
total rent payable pursuant to the Leases and telephone expenses attributable to
the applicable leased premises (and expenses attributable to such other items as
the Purchaser and Seller may mutually agree in writing on or before the Closing
Date) shall be prorated as of the Closing Date, and the Seller shall be
reimbursed for any of such costs occurring after the Closing Date which the
Seller paid prior to the Closing Date. The reimbursement to the Seller shall be
paid at the time of, and accounted for in, the July, 1996 Monthly Report.
10. SUB-SERVICING. To effect an orderly implementation of the Sub-Servicing
Agreement with respect to the Mortgage Loans, Seller shall work directly with
the Purchaser after the Closing, and shall execute all documentation and perform
all actions reasonably necessary for the Purchaser to commence the subservicing
of the Mortgage Loans pursuant to the Sub-Servicing Agreement. All Escrow
Accounts applicable to a Mortgage Loan being subserviced shall be paid to the
Purchaser in immediately available funds by wire transfer simultaneously with
the commencement of the subservicing, in accordance with the written
instructions provided to Seller at least two business days prior to the
commencement of the suservicing. Any amounts received by Seller with respect to
the servicing of the Mortgage Loans after the commencement of the subservicing
shall be held in trust for Purchaser and shall be remitted promptly by Seller to
the Purchaser. Any amounts received by Purchaser representing reimbursement for
any unreimbursed advance of escrow funds made by Seller prior to the
commencement of subservicing or representing other fees and amounts due to the
Seller with respect to the Servicing shall be remitted promptly by Purchaser to
Seller. All consents to the subservicing obtained by the Seller shall
acknowledge that the Purchaser is not obligated to make any advances of any
nature whatsoever in connection with the Mortgage Loans being subserviced
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pursuant to the Sub-Servicing Agreement. Servicing fees for each Mortgage Loan
shall be prorated as of the date of Purchaser's commencement of the subservicing
of such Mortgage Loan pursuant to the Sub-Servicing Agreement.
11. INTENTION OF THE PARTIES. It is the intention of the parties that
Seller is selling, and Purchaser is purchasing the Servicing and the Escrow
Accounts, the Pipeline and the Assets. Accordingly, Seller and Purchaser each
intend to treat the transaction for federal income tax purposes as a sale by
Seller and a purchase by Purchaser of the Seller's interest in the Property.
The parties to this Agreement agree to allocate the Purchase Price in accordance
with the allocation specified in SCHEDULE I which is attached hereto and made an
integral part of this Agreement, and to make their respective income tax filings
on a basis consistent with said SCHEDULE I.
12. GOVERNING LAW. This Purchase Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia.
13. BROKERAGE. Each party represents and warrants that it has not used the
services of a broker or any other intermediary, and Seller and Purchaser will
indemnify and hold the other harmless against all loss or damage relating to
claims to the contrary.
14. INDEMNITY.
(a) All of the Seller's and the Purchaser's statements, representations
and warranties shall be true as of the Closing Date and such other date as
specifically stated herein. Each party shall indemnify the other's costs, fees,
and expenses heretofore or hereafter resulting from any claim, demand, defense,
or assertion based on, grounded upon or resulting from, any untrue statement or
a breach of the warranties or representations of such party contained in this
Agreement.
(b) The Purchaser shall indemnify the Seller and hold the Seller
harmless against any losses, damages, reasonable legal fees and related costs,
judgments, and other costs, fees and expenses resulting from any claim, demand,
defense or assertion based on, grounded upon or resulting from any event, act or
omission by the Purchaser with respect to the FHA Loans and the Xxxxxx Xxx Prior
Approval Loans (including any liability to the prospective borrower for the
failure of the Purchase to close said loans) or the Assets occurring after the
Closing Date, and with respect to any (i) breach or alleged breach by the
Purchaser of any of its representations, warranties and agreements in this
Agreement, and (ii) any failure or alleged failure by the Purchaser to perform
any covenant, undertaking or obligation under this Agreement.
(c) The Seller shall indemnify the Purchaser and hold the Purchaser
harmless against any losses, damages, reasonable legal fees and related costs,
judgments, and other costs, fees and expenses resulting from any claim, demand,
defense or assertion based on, grounded upon or resulting from any event, act or
omission by the Seller with respect to the Property occurring prior to the
Closing Date, and with respect to any (i) breach or alleged breach by the Seller
of any of its representations, warranties and agreements in this Agreement, and
(ii) any failure or alleged failure by the Seller to perform any covenant,
undertaking or obligation under this Agreement.
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(d) The Purchaser immediately shall notify the Seller of any claim,
demand, defense or assertion in writing promptly after receiving notice of any
threatened or pending action, lawsuit, proceeding or other claim, including but
not limited to any claim or request for repurchase. Seller shall have the right
to contest such action, lawsuit, proceeding or other claim and to assume and
control the defense thereof, and the Purchaser shall not settle or compromise
such action, lawsuit, proceeding or other claim without the written consent of
the Seller.
15. SURVIVAL. All representations and warranties contained herein, the
indemnities described herein, and such other obligations hereunder which, by
their terms, are to be performed after the Closing Date shall survive the
Closing Date and any inspection, investigation, or determination made by, or on
behalf of, a party hereto, and shall be fully enforceable as to any claim made
under this Agreement for a period of eighteen (18) months from the Closing Date
by the aggrieved or indemnified party. For the purposes of this Agreement
generally, any claim by a party hereto upon the other must be in writing and
must conform to the Notice requirements of paragraph 26.(d) of this Agreement.
16. REFINANCING. Seller agrees that it will not directly solicit any owners
of the properties covered by the Mortgage Loans for the purpose of refinancing
any of said Mortgage Loans.
17. FURTHER COOPERATION. Each party will cooperate with the other to the
extent reasonably necessary to effect the transfer of the Property.
18. ENTIRE AGREEMENT. This Agreement, along with the Binding Provisions of
that Letter of Intent, dated April 11, 1996, between the Purchaser and the
Seller, constitutes the entire Agreement between the parties pertaining to the
subject matter hereof, and supersedes any and all prior agreements,
representations, and understandings of the parties, written or oral. No
addendum, supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by the parties hereto.
19. CONSTRUCTION. In this Agreement, the singular includes the plural; the
plural, the singular; and the paragraph headings of this Agreement are created
for convenience only, and do not in any manner limit or expand this Agreement
and do not constitute a part of this Agreement. References to any paragraph,
section, article, exhibit or schedule are to a paragraph, section, article,
exhibit or schedule of this Agreement unless otherwise specified herein.
20. SEVERABILITY CLAUSE. Any part, provision, representation or warranty of
this Agreement which is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any provision shall not invalidate or render unenforceable
such provision in any other jurisdiction. If the invalidity of any part,
provision, representation or warranty of this Agreement shall deprive any party
of the economic benefit intended to be conferred by this Agreement, the parties
shall negotiate in good faith to develop a structure the economic effect of
which is as nearly as possible the same as the economic effect of this Agreement
without regard to such invalidity.
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21. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts. Each counterpart shall be deemed to be an original and
all such counterparts shall constitute one and the same instrument.
22. [RESERVED]
23. NON-COMPETITION. As an inducement for the Purchaser to enter into this
Agreement and as additional consideration for the consideration to be paid to
Seller under this Agreement, Seller agrees that:
(a) For a period of five (5) years after the Closing:
(i) Seller will not, directly or indirectly, engage or invest
in, own, manage, operate, finance, control, or participate in the ownership,
management, operation, financing, or control of, lend Seller's name or any
similar name to, lend Seller's credit to, or render services or advice to, any
business whose products or activities compete in whole or in part with the
products or activities of the Purchaser, anywhere within the United States.
Seller agrees that this covenant is reasonable with respect to its duration,
geographical area and scope; and
(ii) Seller will not, directly or indirectly, either for itself
or any other person, solicit the business of any person known to Seller to be a
customer of the Purchaser, whether or not Seller had personal contact with such
person, with respect to products or activities which compete in whole or in part
with the products or activities of the Purchaser; and
(b) In the event of a breach by Seller of any covenant set forth in
this section of this Agreement, the term of such covenant will be extended by
the period of the duration of such breach.
24. REMEDIES. If either party to this Agreement breaches any of its
representations, warranties or covenants set forth in this Agreement, then the
other party will be entitled to the following remedies:
(a) Actual and direct damages and;
(b) Subject to the provisions of paragraph 2.(d)(iii) of this
Agreement, to offset against any and all amounts owing to the other party under
this Agreement any and all amounts which are equal to its actual and direct
damages.
The rights and remedies of the parties to this Agreement are cumulative and
not alternative.
In addition to its right to damages and any other rights it may have, the
Purchaser shall have the right to obtain injunctive or other equitable relief
against the Seller to restrain any breach or threatened breach or otherwise to
enforce by specific performance the provisions of paragraph 23 of this
Agreement, it being agreed that money damages alone would be inadequate to
compensate the Purchaser for, and would be an inadequate remedy for, a breach of
paragraph 23.
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25. TERMINATION. This Agreement may be terminated at any time prior to the
Closing:
(a) By mutual consent of the Purchaser and the Seller;
(b) By the Purchaser if (i) there has been a material
misrepresentation, breach of warranty or breach of covenant or obligation by the
Seller under this Agreement, or (ii) any of the Conditions of Closing set forth
in paragraph 9 or if the provisions of paragraph 8(a) of this Agreement have not
been met on the Closing Date, and, in each case, the Purchaser is not then in
material default of its obligations hereunder; or
(c) By the Seller if (i) there has been a material misrepresentation,
breach of warranty or breach of covenant or obligation by the Purchaser under
this Agreement, or (ii) any of the Conditions of Closing set forth in paragraph
9 or if the provisions of paragraph 8(b) of this Agreement have not been met on
the Closing Date, and, in each case, the Seller is not then in material default
of its obligations hereunder.
26. GENERAL PROVISIONS
(a) EXPENSES. Except as otherwise expressly provided in this
Agreement, each party to this Agreement will bear its respective expenses
incurred in connection with the preparation, execution, and performance of this
Agreement, including all fees and expenses of agents, representatives, counsel,
and accountants. In the event of termination of this Agreement, the obligation
of each party to pay its own expenses will be subject to any rights of such
party arising from a breach of this Agreement by another party.
(b) PUBLIC ANNOUNCEMENTS. Any public announcement or similar publicity
with respect to this Agreement will be issued, if at all, at such time and in
such manner as the Purchaser determines, subject to the last sentence of this
paragraph 26.(b). Unless consented to by the Purchaser in advance or required
by legal requirements, prior to the Closing Seller shall keep this Agreement
strictly confidential and may not make any disclosure of this Agreement to any
person, except as may be necessary to perform this Agreement. Seller and
Purchaser will reach agreement with each other concerning the means by which the
Seller's employees, customers, and suppliers and others having dealings with the
Seller will be informed of the sale of the Property, and Purchaser will have the
right to be present for any such communication.
(c) CONFIDENTIALITY. Between the date of this Agreement and the
Closing Date, Purchaser and Seller will maintain in confidence, and will cause
the directors, officers, employees, agents, and advisors of Purchaser and the
Seller to maintain in confidence, any written, oral, or other information
obtained in confidence from another party in connection with this Agreement,
unless (a) such information is already known to such party or such information
becomes publicly available through no fault of such party, (b) the use of such
information is necessary or appropriate in making any filing or obtaining any
consent or approval required for the consummation of the sale of the Property,
or (c) the furnishing or use of such information is required by or necessary or
appropriate in connection with legal proceedings. If the sale of the Property
is not consummated, each party will return or destroy as much of such written
information as the other party may reasonably request.
(d) NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (i) delivered by
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hand (with written confirmation of receipt), (ii) sent by telecopier (with
written confirmation of receipt), provided that a copy is mailed by registered
mail, return receipt requested, or (iii) when received by the addressee, if sent
by a nationally recognized overnight delivery service (receipt requested), in
each case to the appropriate addresses and telecopier numbers set forth below
(or to such other addresses and telecopier numbers as a party may designate by
notice to the other parties):
Seller: American Capital Resource, Inc.
c/o Amsted Corporation
1900 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Mr. Xxxx Xxxxxxx
Facsimile No.: 000-000-0000
with a copy to: Powell, Goldstein, Xxxxxxx & Xxxxxx
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
Purchaser: WMF/Xxxxxxx, Xxxxx Associates Limited
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: 000-000-0000
with a copy to: Krooth & Xxxxxx
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: 202-872-0145
(e) JURISDICTION, SERVICE OF PROCESS. Any action or proceeding seeking
to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the
Commonwealth of Virginia, County of Fairfax, or, if it has or can acquire
jurisdiction, in the United States District Court for the Eastern District of
Virginia, and each of the parties consents to the jurisdiction of such courts
(and of the appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein. Process in any action or proceeding
referred to in the preceding sentence may be served on any party anywhere in the
world.
(f) FURTHER ASSURANCES. The parties agree (i) to furnish upon request
to each other such further information, (ii) to execute and deliver to each
other such other documents, and (iii)
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to do such other acts and things, all as the other party may reasonably request
for the purpose of carrying out the intent of this Agreement and the documents
referred to in this Agreement.
(g) WAIVER. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by any
party in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (i) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (ii) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (iii) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement or the documents referred to in this Agreement.
(h) ASSIGNMENTS, SUCCESSORS, AND THIRD-PARTY RIGHTS. Neither party may
assign any of its rights under this Agreement without the prior consent of the
other party, except that the Purchaser may assign any of its rights under this
Agreement to Washington Mortgage Financial Group, Ltd. Subject to the preceding
sentence, this Agreement will apply to, be binding in all respects upon, and
inure to the benefit of the successors and permitted assigns of the parties.
Nothing expressed or referred to in this Agreement will be construed to give any
person other than the parties to this Agreement and their permitted assigns any
legal or equitable right, remedy, or claim under or with respect to this
Agreement or any provision of this Agreement. This Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of the parties
to this Agreement and their successors and permitted assigns.
(i) TIME OF THE ESSENCE. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
(j) TERM. Unless otherwise terminated pursuant to paragraph 25 of this
Agreement, this Agreement shall expire and terminate on the last day of the 18th
month after the Closing Date, provided however, that paragraph 14 shall survive
beyond such term to the extent a claim is made thereunder within 18 months of
the Closing Date, and paragraph 23 shall extend beyond such term in accordance
with its terms.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, Seller and Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
date first above written.
WMF/XXXXXXX, XXXXX ASSOCIATES LIMITED
By: Xxxxxx Xxxxxxxxxx
---------------------
Its Chairman
---------------------
AMERICAN CAPITAL RESOURCE, INC.
By: Xxxx Xxxxxxx
---------------------
Its Chairman
---------------------
SCHEDULE A - Mortgage Loans
SCHEDULE B - Pipeline
SCHEDULE B1 - Xxxxxx Xxx Prior Approval Loans
SCHEDULE C - Assets (including equipment leases)
SCHEDULE D - Leases
SCHEDULE E - Form of Monthly Report re Pipeline Closings
SCHEDULE E1 - Form of Monthly Report re post-Closing Payments
SCHEDULE E2 - Form of Monthly Report re Payments from Subservicer
SCHEDULE F - Required Approvals
SCHEDULE G - Advances to Seller's Employees
SCHEDULE H - List of Persons to be employed by Purchaser
SCHEDULE I - Allocation of Purchase Price
Exhibit 1 - Form of Sub-Servicing Agreement
Exhibit A - Form of Seller's Certificate
Exhibit B - Form of Seller's Counsel Opinion
Exhibit C - Form of Purchaser's Certificate
Exhibit D - Form of Purchaser's Counsel Opinion
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