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EXHIBIT 6(d)
WHOLE LOAN PURCHASE AGREEMENT
"CORRESPONDENT FUNDING"
THIS AGREEMENT made and entered into this 17th day of March, 1998, by
and between Austin Funding Corp. a corporation duly organized under the laws of
the State of Texas and having its principal place of business in Austin, Texas
(hereinafter referred to as "Seller"), and EquiCredit Corporation of America, a
corporation duly organized under the laws of the State of Delaware and its
subsidiaries identified as signatories hereto (herein after referred to
collectively as "Buyer").
WHEREAS, Buyer wishes to purchase from time to time and Seller wishes
to sell from time to time all of Seller's right, title, and interest in and to
certain mortgage loans secured by mortgages, deeds of trust, and other forms of
security instruments on residential dwellings.
In consideration of the promises and the mutual covenants,
representations, warranties, and agreements contained herein, and in further
consideration of monies to be paid by Buyer to Seller, the parties hereto
mutually agree with each other as follows:
1. From time to time, Buyer desires to purchase and Seller desires to
sell the following described chooses in action, property and property rights:
a. All those certain loan borrowers' notes, promissory notes, promises
to pay and other obligations (all hereinafter called "Notes"), offered for sale
by Seller from time to time and purchased by Buyer from time to time including
the servicing rights associated therewith;
b. All those certain real estate mortgages, deeds of trust, other
instruments and property rights, and all similar and additional rights and
security of every kind and nature collateral to, securing or pertaining to the
Notes (all hereinafter called "Security Instruments");
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c. All those original borrower credit files and any and all original
documents of whatever name and nature which specifically relate to the Notes and
Security Instruments described herein. Whenever the terms, Notes and Security
Instruments are used herein, they shall, as the context so admits, refer also to
any and all of those documents referred to in this subparagraph of the
Agreement. The Notes, Security Instruments and the item described in this
paragraph shall be collectively referred to as the "Accounts."
2. All such Accounts shall be purchased by Buyers "without recourse"
only with respect to the Note obligor's obligation to repay the loan which
condition shall not affect the covenants, representations, warranties,
indemnifications, and agreements set forth herein.
3. Buyer retains the absolute right to reject any Account submitted for
purchase by Seller. In a like manner, Seller retains the absolute right to
either retain or sell any Account to other parties. Neither will the Buyer be
obligated to purchase nor will the Seller be obligated to sell any Account until
Buyer has issued a Conditional Approval in the form of Exhibit "A" attached
hereto. After issuance of the Conditional Approval, delivery by Seller shall be
mandatory. Buyer and Seller will mutually agree on periodic delivery schedules
for closed loans upon which a Conditional Approval has been delivered. At the
time of delivery and funding Seller will prepare a Confirmation of Proposed Sale
in the form of Exhibit "B" and a Mortgage Loan Schedule, a sample of which is
attached.
4. The purchase price and consideration herein established for the
Accounts to be sold, assigned, transferred and endorsed over to Buyer pursuant
to this Agreement shall be the unpaid principal balance of the Notes at the date
of purchase plus accrued interest and a premium or discount based upon the
premium schedule of Buyer in effect on the date of purchase as reflected in the
Conditional Approval.
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5. As a material inducement to Buyer to purchase the Accounts, Seller
represents, warrants and covenants to Buyer, and such representations,
warranties and covenants shall survive and be deemed to be continuing
representations, warranties and covenants during the term of the Agreement and
shall be deemed to be incorporated into and be part of each sale by Seller to
Buyer of Account(s) hereunder as follows:
a. Seller has been duly incorporated and organized, and is
validly existing and in good standing under the laws of its
state of incorporation; has the corporate power and authority
to conduct its business; is duly qualified and in good
standing as a foreign corporation in those jurisdictions where
the conduct of its business or the ownership of its properties
requires qualification and, to the best of Seller's knowledge,
has complied with all applicable statutes, laws, rules,
regulations, ordinances, pronouncements, orders, directives
and decrees of all federal, state, county and municipal
authorities, bodies, bureaus, commissions and agencies and any
other entity to whose jurisdiction or regulation Seller is
subject. Seller is licensed or exempt from licensing in all
states where Seller originates loans for which a license is
required.
b. The execution and performance of this Agreement will not
violate any law or the term of its incorporation documents or
bylaws, as amended, nor violate or result in a default or in
the creation or imposition of any lien or encumbrance upon any
of the Notes and Security Instruments sold to Buyer hereunder
(immediately, with the passage of time or with the giving of
notice or both) under any other
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contract, agreement or instrument to which Seller is a parry
or by which it is bound.
c. Seller has the corporate power and authority to enter into and
perform this Agreement and to sell the Accounts to Buyer, and
this Agreement and any document or instrument to be delivered
hereto have been duly authorized, executed and delivered and
the transactions contemplated herein have been duly
authorized.
d. This Agreement constitutes a valid and legally binding
obligation of Seller and is enforceable against Seller in
accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium and other,
similar laws relating to or affecting creditors' rights
generally or the application of equitable principles in any
proceeding, whether at law or in equity.
e. No representation, warranty or statement by Seller contained
herein or in any certificate or other document furnished or to
be furnished by Seller pursuant hereto contains or at the time
of delivery shall contain any untrue statement of material
fact, or omits, or shall omit at the time of delivery, to
state a material fact necessary to make it not misleading.
f. To the best of Seller's knowledge, no consent or approval of
any person, no waiver of any lien or other similar right, and
no consent, license, approval, authorization or declaration of
any governmental authority, body, commission, bureau or
agency is, or will be,
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required in connection with the execution, delivery,
performance, validity or enforcement of this Agreement or any
other agreement, instrument or document to be executed or
delivered in connection herewith or pursuant hereto.
g. To the best of Seller's knowledge, there is no litigation,
investigation, nor proceeding pending or threatened against or
otherwise affecting Seller's performance of its obligations
hereunder and/or the validity or enforceability of this
Agreement, and Seller has no knowledge of any circumstances
indicating that any such suit, investigation or proceeding is
likely or imminent.
6. Seller represents, warrants and covenants, and such representations,
warranties and covenants shall survive and be deemed to be continuing
representations, warranties and covenants during the term of each Account, that,
with respect to the Accounts sold to Buyer hereunder:
a. The information with respect to each Account set forth in the
Mortgage Loan Schedule is true and correct and accurately
reflects that the scheduled payments are current as of the
Sale date;
b. (i) Each Account is principally secured by the property
described in the Security Instrument. Each property is
improved by a one- to four-family residential dwelling, which,
to the best of Seller's knowledge, does not include
cooperatives or mobile homes other than a permanently affixed
mobile home which does not constitute other than real property
under state law, or manufactured housing units, as
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defined in the FNMA Selling Guide, and which does not
constitute other than real property under state law;
(ii) With respect to each Account involving property improved
by a manufactured or mobile home, the Seller has taken all
action necessary to create a valid and perfected first or
second priority (as reflected in the Mortgage Loan Schedule)
lien and security interest in such manufactured or mobile home
and the related Property, including, without limitation, the
filing of UCC financing statements or notations on
certificates of title if necessary, under applicable state
law.
c. The Mortgage Note related to each Mortgage Loan bears a fixed
or variable mortgage interest rate as applicable;
d. Each Note will provide for a schedule of substantially equal
monthly payments which are, if timely paid, sufficient to
fully amortize the principal balance of such Note on or before
its maturity date except for balloon loans, in which case all
balloon loans provide for monthly payments based on an
amortization schedule specified in the related Note and have a
final balloon payment no earlier than 60 months following
origination and no later than the end of the 15th year.
e. Each Security Instrument is a valid and subsisting first or
second lien on the property subject, in the case of any second
mortgage loan, only to a first lien on such property and
subject in all cases to the exceptions to the title set forth
in the title insurance policy with
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respect to the related Loan, which exceptions are generally
acceptable to second mortgage lending companies, and such
other exceptions to which similar properties are commonly
subject and which do not individually, or in the aggregate,
materially and adversely affect the benefits of the security
intended to be provided by such Security Instrument. If the
property is held in an Illinois Land Trust (a "Land Trust
Mortgage"), (i) a natural person is the beneficiary of such
Illinois Land Trust, and either is a party to the Note or is a
guarantor thereof, in either case, in an individual capacity,
and not in the capacity of trustee or otherwise, and, if a
party to the Note, is jointly and severally liable under the
Note; (ii) the Mortgagor is the trustee of such Illinois Land
Trust, is a party to the Note and is the mortgagor under the
Security Instrument in its capacity as such trustee and not
otherwise; (iii) a land trust trustee, duly qualified under
applicable law to serve as such, has been properly designated
and currently so serves and is named as such in the land trust
agreement and such trustee is named in the Security Instrument
as Mortgagor; (iv) all fees and expenses of the land trust
trustee which have previously become due or owing have been
paid and no such fees or expenses are or will become payable
by the Buyer; (v) the beneficiary is solely obligated to pay
any fees and expenses of the land trust trustee and the
priority of the lien of the land trust mortgage is not and
will not be subject or subordinate to any amounts owing to the
land trust trustee; (vi) the Property is occupied by the
beneficiary under the land (if owner occupied) trust agreement
and, if such land trust agreement terminates, the beneficiary
will become the owner of the property.
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f. Except with respect to liens released immediately prior to the
transfer herein contemplated, immediately prior to the
transfer and assignment herein contemplated, the Seller held
good and indefeasible title to, and was the sole owner of,
each Account conveyed by such Seller subject to no liens,
charges, mortgages, encumbrances or rights of others; and
immediately upon the transfer and assignment herein
contemplated, the Buyer will hold good and indefeasible title,
to, and be the sole owner of, each account subject to no
liens, charges, mortgages, encumbrances or rights of others;
g. To the best of such Seller's knowledge, (i) there is no
delinquent tax or assessment lien on any property and (ii)
each property is free of material damage and is in average
repair;
h. The Account is not subject to any right of rescission,
set-off, counterclaim or defense of whatever type or nature,
including, without limitation the defense of usury, nor will
the operation of any of the terms of the Note or the Security
Instrument, or the exercise of any right thereunder, render
either the Note or the Security Instrument unenforceable in
whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of
usury, and no such right of rescission, set-off, counterclaim
or defense has been asserted with respect thereto;
i. To the best of such Seller's knowledge, there is no mechanic's
lien of claim for work, labor or material affecting any
Property which is or
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may be a lien prior to, or equal with, the lien of such
Mortgage except those which are insured against by the title
insurance policy referred to in Section 6(k) below;
j. Each Account at the time it was made complied in all material
respects with applicable state and federal laws and
regulations, including, without limitation, usury, equal
credit opportunity and disclosure laws;
k. With respect to each Account, Seller has received a lender's
title insurance policy, issued in standard American Land Title
Association or California Land Title Association form, or
other form acceptable in a particular jurisdiction, by a title
insurance company acceptable to the Buyer and authorized to
transact business in the state in which the related Property
is situated, together with a condominium endorsement, if
applicable, in an amount at least equal to the original
principal balance of such Account insuring the mortgagee's
interest under the related Mortgage Loan as the holder of a
valid first or second mortgage lien of record on the real
property described in the Mortgage, subject only to exceptions
of the character referred to in Section 6(e) above;
l. The improvements upon each property are covered by a valid and
existing hazard insurance policy with a generally acceptable
carrier that provides for fire and extended coverage;
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m. A flood insurance policy is in effect with respect to each
Property with a generally acceptable carrier in an amount
representing coverage if and to the extent the Property is
located in an area designated other than A or C on the current
applicable flood map published by the Federal Emergency
Management Agency.
n. Each Security Instrument and Note is the legal, valid and
binding obligation of the maker thereof and is enforceable in
accordance with its terms, except only as such enforcement may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of
equity (whether considered in a proceeding or action in equity
or at law), and all parties to each Mortgage Loan had full
legal capacity to execute all documents and convey the estate
therein purported to be conveyed;
o. The Seller has performed any and all acts required to be
performed to preserve the rights and remedies of the Buyer in
any insurance policies applicable to the Accounts including,
without limitation, any necessary notifications of insurers,
assignments of policies or interests therein, and
establishments of co-insured, joint loss payee and mortgagee
rights in favor of the Buyer;
p. The terms of the Note and the Security Instrument have not
been impaired, altered or modified in any material respect,
except by a written instrument which has been recorded or is
in the process of being recorded, if necessary, to protect the
interests of the Buyer and
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which has been or will be delivered to the Buyer. The
substance of any such alteration or modification is reflected
on the Mortgage Loan Schedule. Each original Security
Instrument was recorded together with any intervening
assignment transferring the Security Instrument to Seller;
q. No instrument of release or waiver has been executed in
connection with the Account and no Mortgagor has been
released, in whole or in part;
r. To the best of Seller's knowledge, 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, or an escrow of funds has
been established in an amount sufficient to pay for every such
item which remains unpaid and which has been assessed but is
not yet due and payable. Except for payments in the nature of
escrow payments, including without limitation, taxes and
insurance payments, the Seller has not advanced funds, or
induced, 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 by the Note or Security
Instrument, except for interest accruing from the date of the
Note or date of disbursement of the mortgage proceeds,
whichever is greater, to the day which precedes by one month
the due date of the first installment of principal and
interest. With respect to properties that are the subject of a
ground lease, to the best of Seller's knowledge, all lease
rents, other payments or assessments that have
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become due have been paid and the Mortgagor is not in
material default under any other provisions of the lease and
the lease is valid, in good standing and in full force and
effect;
s. To the best of Seller's knowledge, there is no proceeding
pending or threatened for the total or partial condemnation of
the property, nor is such a proceeding currently occurring,
and such property is undamaged by waste, fire, earthquake or
earth movement, windstorm, flood, tornado or other casualty,
so as to affect adversely the value of the property as
security for the Account or the use for which the premises
were intended.
t. To the best of such Seller's knowledge, all of the
improvements which were included for the purpose of
determining the appraised value of the property lie wholly
within the boundaries and building restriction lines of such
property, and no improvements on adjoining properties encroach
upon the property;
u. To the best of such Seller's knowledge, no improvement located
on or being part of the property is in violation of any
applicable zoning law or regulation; and all inspections,
licenses and certificates required to be made or issued with
respect to all occupied portions of the property and, with
respect to the use and occupancy of the same, including but
not limited certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate
authorities and the property is lawfully occupied under
applicable law;
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v. The proceeds of the Account have been fully disbursed, and
there is no obligation on the part of the mortgagee to make
future advances thereunder. Any and all requirements as to
completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefore have been complied
with. All costs, fees and expenses incurred in making or
closing or recording the Accounts were paid;
w. The related Note is not and has not been secured by any
collateral, pledged account or other security except the lien
of the corresponding Security Instrument;
x. No Account was originated under a buydown plan;
y. There is no obligation on the part of the Seller or any other
party to make payments in addition to those made by the
borrower;
z. With respect to each Security Instrument constituting a deed
of trust, a trustee, duly qualified under applicable law to
serve as such, has been properly designated and currently so
serves and is named in such deed of trust, and no fees or
expenses are or will become payable by the Buyer to the
trustee under such deed of trust, except in connection with a
trustee's sale after default by the mortgagor.
aa. No Account has a shared appreciation feature, or other
contingent interest feature;
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bb. With respect to each Account secured by a second priority
lien, the related first lien requires equal monthly payments,
or if it bears an adjustable interest rate, the monthly
payments for the related first lien may be adjusted not more
frequently than once every six months;
cc. With respect to each Account secured by a second priority
lien, either (i) no consent for the Account is required by the
holder of the related first lien or (ii) such consent has
been obtained,
dd. The maturity date of each Account secured by a second priority
lien is prior to the maturity date of the related first lien
if such first lien provides for a balloon payment; and with
respect to any first lien that provides for negative
amortization or deferred interest, the balance of such first
lien used to calculate the combined loan-to-value ratio for
the Account is based on the maximum amount of negative
amortization possible under such first lien;
ee. All parties which have had any interest in the Account,
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 wherein the
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 or national banks
having principal offices in such state, or (D) not doing
business in such state so as to require qualification or
licensing;
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ff. The Security Instrument contains a customary provision for the
acceleration of the payment of the unpaid principal balance of
the Account in the event the related security for the Account
is sold without the prior consent of the mortgagee thereunder;
gg. Any future advances made prior to (and excluding) the purchase
date have been consolidated with the outstanding principal
amount secured by the Security Instrument, and the secured
principal amount, as consolidated, bears a single interest
rate and single repayment term reflected on the Mortgage Loan
Schedule. The consolidated principal amount does not exceed
the original principal amount of the Account. The Note does
not permit or obligate the holder to make future advances to
the mortgagor at the option of the mortgagor.
hh. The related Security instrument contains customary and
enforceable provisions which render the rights and remedies of
the holder thereof adequate for the realization against the
property of the benefits of the security, including, (i) in
the case of a Security Instrument designated as a deed of
trust, by trustee's sale, and (ii) otherwise by judicial or
non-judicial foreclosure. There is no homestead or other
exemption available to the mortgagor which would materially
interfere with the right to sell the property at a trustee's
sale or the right to foreclose the Security Instrument.
ii. To the best of Seller's knowledge, there is no default,
breach, violation or event of acceleration existing under the
Security Instrument or the related Note and no event which,
with the passage
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of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event
of acceleration; and Seller has not waived any default,
breach, violation or event of acceleration;
jj. All parties to the Note and the Security Instrument has legal
capacity to execute the Note and the Security Instrument and
each Note and Security Instrument have been duly and properly
executed by such parties;
kk. A full interior inspection appraisal by a licensed independent
appraiser was performed in connection with each property;
ll. If the property consists of a leasehold estate, the Security
Instrument covers property improvements and the mortgagor's
leasehold interest in the land upon which such improvements
are situated; at origination of the Account the term of the
leasehold estate was scheduled to last for at least ten years
beyond the maturity date of the Security Instrument or
provided for perpetual renewal covenants; the leasehold estate
is assignable by the mortgagee; and the lease is valid and in
full force and effect; and
mm. To the best of Seller's knowledge, all documents, used to
support the borrower's application including but not limited
to verifications or other records supporting the borrowers
income, employment or credit are true and genuine.
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In the event any of the representations or warranties contained herein
are untrue with respect to any loan notwithstanding Seller's knowledge, Seller
shall, at the request of Buyer, repurchase such Note and Mortgage at a purchase
price equal to (i) the outstanding principal balance thereon, together with
interest thereon at the interest rate shown on the Note, to date of repurchase,
and (ii) any premium paid by Buyer, provided however, that Buyer must make any
such request within ninety (90) days of the date on which Buyer has actual
knowledge of either (1) an affirmative assertion by maker(s) of the Note, the
insurance carriers, any governmental agency or authorities, or any other entity
other than Buyer or Seller or (2) through Buyer's own examination procedures, a
discovery is made that an Account does not comply with some of or all of the
requirements of subparagraphs (a) through (mm) of this Section 6. Any Note and
Security Instrument returned by Buyer shall be without recourse, representation
or warranty; provided, however, Buyer represents and warrants that no act or
failure to act by Buyer, its subsidiaries or affiliates, including agents and
employees thereof, has caused any such Account or related instrument to become
either invalid or unenforceable in whole or in part.
7. Seller agrees to indemnify and hold harmless Buyer, their respective
agents, successors, and assigns from and against any loss, including all costs
and attorneys fees, arising from a breach of any of the warranties, covenants
and representations made by Seller under the terms of this Agreement,
irrespective of the ownership of Accounts prior to the sale of Accounts by
Seller to Buyer hereunder including, but not limited to, any loss arising from
Seller's failure to properly and timely file and record all Security
Instruments, including real property mortgages and deeds of trust, in all
applicable jurisdictions or arising from any adversary claims, provided that
Seller shall have had the prior right to defend against any such claim. Security
Instruments, when used in this paragraph, refer only to real estate mortgages,
deeds of trust, deeds to secure debt, and other similar security instruments, as
well as fixture filings, lien disclosures on certificates of title on
manufactured housing units, and in certain jurisdictions, assignments of
beneficial interest in land trusts and related UCC financing statements.
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Seller further agrees to protect, indemnify and hold Buyer and its
employees, officers and directors, harmless against, and in respect to any and
all losses, liabilities, cost and expenses (including attorneys fees),
judgments, damages, claims, demands, actions or proceedings, by whosoever
asserted, including, but not limited to, the obligors with respect to the
Accounts sold hereunder, any person or persons who prosecute or defend any
actions or proceedings as representatives of or on behalf of a class or
interested group, or any government instrumentality, body, agency, department or
commission, or any administrative body or agency jurisdiction pursuant to any
applicable statue, rule, regulation, order or decree, arising out of, connected
with, or resulting from any breach of any covenant, representation or warranty
in relation to the Accounts sold to Buyer hereunder; provided that Seller shall
have had the prior right to defend against any such claims.
8. Seller or its agent shall timely remit to applicable insurance
companies any and all unremitted optional credit insurance premiums of any kind
whatsoever collected or received in connection with the Accounts conveyed under
this Agreement, unless such insurance is placed with an insurance company
designated by Buyer. Seller shall be solely responsible for the administration
of any and all credit insurance coverages written at the time of origination of
the Account including without limitation, the processing of any and all credit
insurance claims, and credit insurance premium rebates caused by prepayments or
cancellations. Buyer agrees to promptly advise Seller, in writing, of any and
all credit insurance claims, and prepayment of any Accounts which may
precipitate a credit insurance premium rebate or any cancellation of credit
insurance coverage by any such Account obligor.
9. Seller and Buyer represent and warrant to each other that neither
has engaged nor dealt with any broker or other person or entity who or which may
be entitled to any brokerage fee or commission or similar type fee in respect of
the execution of this Agreement or the performance of the transactions
contemplated hereby. Each of said parties hereby indemnifies and agrees to hold
the other harmless against any and all other claims, losses, liabilities or
expenses which may be asserted against the other as a result of any dealings,
arrangements or agreements with any such broker or other person.
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10. Seller will personally deliver or cause to be delivered to Buyer,
at its designated office, or at such other location as Buyer may designate, each
Account to be conveyed pursuant to the terms of this Agreement and all other
documents required of Seller to be delivered to, at the instruction of, Buyer
hereunder a list of documents required to be delivered at funding and documents
which may be delivered after funding is attached hereto as Exhibit "C". Upon
receipt of the documents required to be delivered at funding, Buyer will wire
the purchase price to Seller, or if the Account(s) are pledged as collateral
security to a warehousing facility, Seller will remit the Purchase Price to such
creditor as a credit against the outstanding balance thereof; provided however,
no such payment shall be tendered until Buyer has received written assurance
from the warehouse creditor that upon receipt of the Purchase Price, the
purchased Account(s) will be released free and clear as collateral security from
any and all warehousing facilities provided by or through such creditor.
11. Buyer shall review a credit package for each Account which shall be
submitted to Buyer by Seller prior to Buyer agreeing to purchase any Account. If
such review occurs prior to the closing of the loan by Seller, Seller agrees
that; in order to insure compliance with the requirements of the Equal Credit
Opportunity Act, Seller will notify the borrower of any adverse action taken on
his application for a loan when notified by Buyer that it has turned down the
loan application along with the specific reasons why such loan application was
turned down. Upon receipt of this information, Seller will notify the borrower
of the adverse action taken, the reason why it was taken, and any and all other
information required by the Equal Credit Opportunity Act and regulations
promulgated thereunder.
12. It is expressly agreed that the Buyer is only buying Accounts
hereunder, and unless otherwise specially provided for herein, Buyer does not
assume or incur any obligation or liability under any contract or lease,
employment, advertising, telephone listing or other contract, or any liability
whatsoever of the Seller, which is in any way involved, either directly or
indirectly with the operation by the Seller of its business or to which Seller
may become a party or liable by reason of its business.
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Nothing contained herein shall be deemed or construed as creating any
partnership or joint venture between Seller and Buyer.
13. Seller does hereby appoint Buyer as its representative and
attorney-in-fact to make, execute, sign, and record in the public records of
any jurisdiction, any and all instruments, documents, satisfactions, assignments
and endorsements relating to the Accounts, necessary, appropriate, or convenient
to vest Buyer with all right, title, and interest in and to the Accounts upon
purchase from Seller, and for the administration and servicing thereof and to
endorse and negotiate checks and drafts to be applied to the accounts. This
Power of Attorney is coupled with an interest and is irrevocable without Buyer's
consent. Such representative and attorney-in-fact shall not, however, have any
right, power or authority to amend or modify this Agreement when acting in such
capacities. Buyer agrees to indemnify and hold harmless Sellers, their
respective agents, successors and assigns (the "Indemnifies") from and against
any loss, including all costs and attorneys fees incurred by the Indemnifies,
arising out of the improper conduct and use by Buyers in their capacity as
representative and attorney-in-fact as set forth in this section.
14. Notices which are required to be given under this Agreement shall
be addressed to Seller and Buyer, postage prepaid, as follows:
TO SELLER: TO BUYER:
▇▇▇▇▇▇▇ ▇. Dell Legal Department
Austin Funding Corp. EquiCredit Corporation
▇.▇. ▇▇▇ ▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
15. This Agreement may be canceled at any time by either party by
giving the other party thirty (30) days prior written notice; however, such
cancellation shall not affect the rights, authorities, or obligations of either
the Seller or Buyer as set forth in this Agreement for those Accounts
21
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heretofore acquired by Buyer prior to the effective date of such cancellation,
with such rights, authorities, and obligations surviving said cancellation,
notwithstanding any other provision of this Agreement to the contrary. During
such thirty (30) day notice-to-cancel period, Buyer will not be obligated to
consider any new application packages submitted by Seller, but will be obligated
to purchase any Accounts on which it has issued a written conditional approval
provided all conditions for the extension of credit are satisfied and the loan
is closed within 30 days of the issuance of each respective written conditional
approval. In the event Buyer discovers, in its sole judgment, evidence of
material breach of warranty on any Account, Buyer is relieved of any obligation
to honor any written conditional approval or consider any new application
packages during this 30 day period, and this Agreement shall be immediately
canceled.
16. This Agreement constitutes the entire agreement between the parties
and supersedes and incorporates all representations, promises, statements, oral
or written, made in connection with the subject matter of this Agreement and the
negotiation hereof, and no such representation, promise or statement not
contained herein shall be binding on the parties. This Agreement may not be
varied or altered nor its provisions waived except by an agreement in writing
executed by duly authorized agents of both parties. No portion of this Agreement
shall be deemed or construed for the benefit of any third party. This Agreement
shall also be binding upon and inure to the benefit of the respective successors
and assigns of both parties hereto except it is understood and agreed that this
Agreement shall not be assignable by Seller without Buyer's written approval.
17. If any provision of this Agreement is deemed by a court of
competent jurisdiction to be in violation of any law, rule or regulation, that
provision shall be deemed modified to comply with applicable law, rule, or
regulation.
18. Seller shall within 120 days after the end of its fiscal year
furnish Buyers with a financial statement including at least a balance sheet and
income statement prepared in accordance with generally accepted accounting
principles and certified by an independent Certified Public Accountant.
22
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Seller shall also furnish Buyer with a Certificate of Insurance demonstrating
that the Seller maintains Fidelity Bond coverage in an amount of not less than
$100,000.00.
19. Seller covenants and agrees that it will not solicit directly or
indirectly by any means other than mass mailing or mass marketing efforts, any
borrower obligated on an account which has been sold hereunder to induce such
borrower to refinance or otherwise pay off the account for a period of
twenty-four months from the date Buyer purchases the Account. The parties
acknowledge that Buyer's damages resulting from a breach of this covenant may be
difficult to ascertain and therefore agree that injunctive relief is an
appropriate remedy for any breach of the covenant, provided, however, that such
remedy shall be non exclusive.
20. This Agreement shall be construed in accordance with the laws of
the State of Florida, and the obligations, rights and remedies of the parties
shall be determined in accordance with such laws.
21. If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of the Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
and through their authorized officers or representatives on the day first above
written.
Signed, sealed and delivered
in the presence of: --------------------------
-----------------------------
Witness By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (SEAL)
As To Seller Its: President
"SELLER"
23
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Signed, sealed and delivered EQUICREDIT CORPORATION OF AMERICA
in the presence of:
---------------------------- By:___________________(SEAL)
Witness Its: Vice President
As to Buyer "BUYER"
Signed, sealed and delivered EQUICREDIT CORPORATION OF IN.
in the presence of:
---------------------------- By:___________________(SEAL)
Witness Its: Vice President
As to Buyer "BUYER"
Signed, sealed and delivered EQUICREDIT CORPORATION OF SC.
in the presence of:
---------------------------- By:___________________(SEAL)
Witness Its: Vice President
As to Buyer "BUYER"
Signed, sealed and delivered EQUICREDIT CORPORATION OF PA.
in the presence of:
---------------------------- By:___________________(SEAL)
Witness Its: Vice President
As to Buyer "BUYER"
24
[EQUICREDIT CORPORATION LOGO]
EXHIBIT "A"
CONDITIONAL APPROVAL Wholesale Administrative Center
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇/LO Ext_____
TO: ▇▇▇-▇▇▇-▇▇▇▇ - Fax
---------------------------
FROM:
------------------------
RE:
--------------------------
DATE:
------------------------
EXPIRATION DATE:
-------------
LOAN AMOUNT $ DTI DTI CAP TERMS
------- ------ ------ ------
*BUY RATE % CLASS LTV: LTV CAP:
------ ------ ------ ------
ARMS: INITIAL BUY RATE % MARGIN INDEX
----- ----- ------
FULLY INDEXED RATE % MAXIMUM LIFETIME RATE %
----- -----
NOTE: ALL DUE DATES ON ARMS MUST BE 1ST OF THE MONTH
This loan is to be secured by a ___ 1st ___ 2nd deed of trust on the subject
property at
--------------------------------------------------------------------------------
Owner Occupied Non-Owner Occupied Condo Townhouse
---- ---- ---- ----
Single Family Residence 2-4 Family Mobile/Manufactured
---- ---- ----
This approval is contingent upon receipt of the items checked below, completed
to the satisfaction of EQUICREDIT CORPORATION.
APPRAISAL
Acceptable original appraisal of $______ with maximum 90 day age at
--- --- closing.
Interior photos required on C and D class loans (kitchen, bath, etc.)
--- ---
INCOME
Borrower: Original VOE $______ W2 $____________ Current Paystubs(2)
--- --- last 2 yrs 1040's averaged $_____________
Co-Borrower: Original VOE $______ W2 $____________ Current Paystubs(2)
--- --- but 2 yrs 1040's averaged $_____________
Rental Income: $______ Leases ___________ last years 1040's
--- ---
Social Security: Net/Gross $
--- --- -----------
Other Income: $ Source
--- --- ---------------- -----------------
$ Source
---------------- -----------------
MORTGAGE RATING: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ other
---- ---- ----
Maximum delinquency of in last 12 months
--------------------------
CB in file
--- ---
Original VOM
--- ---
12 Canceled Checks
--- ---
Verification 1st mtg. is fixed with maximum balance of $ and
escrowed if T & I not in DTI --------
Payoff Letter
--- ---
OTHER REQUIREMENTS
HUD I to reflect EQCC seasoning requirements are met
--- ---
Copy of Land Contract
--- ---
Copy of Deed
--- ---
Additional Credit bureau(s) to reflect same information as original
submission
Pay the following debts from proceeds:
--- --- ----------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PURCHASE MONEY GUIDELINES
Title commitment with 12 month chain of title
--- ---
Written verification of funds for down payment and closing costs
--- --- seasoned 90 days. Max 30 days of
BY:
----------------------------------
*BUY RATE QUOTED IS SUBJECT TO CORRECTION TO CONFORM WITH PREMIUM PRICING
SCHEDULE CURRENTLY IN EFFECT.
25
EXHIBIT "B"
EquiCredit Corporation of America
Attention:_______________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Confirmation of Proposed Sale under the
Whole Loan Purchase Agreement, dated
_________, 19___("the Agreement")
Ladies/Gentlemen:
This confirmation is being sent pursuant to the Agreement to confirm a
proposed Sale of Mortgage Loans under the Agreement on the following terms:
Purchase Date:
--------------------
Cut-Off Date:
--------------------
Aggregate Outstanding
Principal Amount of
Mortgage Loans as of the
Cut-Off Date to be
Purchased:
--------------------
Approximate Number of
Mortgage Loans to be
Purchased:
--------------------
Purchase Price:
--------------------
---------------------------------
(Seller)
By:
------------------------------
Name:
Title:
EQUICREDIT CORPORATION OF AMERICA
By:
------------------------------
Name:
Title:
26
SAMPLE
(Attachment to Exhibit B)
MORTGAGE LOAN SCHEDULE
LAST TOTAL INTEREST
NOTE# NAME PRINCIPAL INTEREST BASIS RATE PREMIUM
----- ---- --------- -------- ----- -------- -------
27
EXHIBIT "C"
I. FUNDING DOCUMENTS
1. Original Note endorsed to EquiCredit Corporation of America or as
designated
2. Federal Truth-in-Lending Disclosure
3. Itemization of Amount Financed
4. Notice of Right to Cancel
5. Copy of Mortgage, including any necessary riders, certified by closing
agent or recorder as delivered for recording
6. Executed Assignment of mortgage in recordable form, but not recorded
7. Security agreement and Notice of Lien for mobile homes
8. Credit underwriting documents & documents needed to satisfy underwriting
conditions
9. Title Insurance Commitment
10. Closing or title affidavit
11. Tax and Insurance Escrow not Available notice
12. Compliance Agreement
13. Photocopy of customer ID
14. Tax ID number Verification - Form 1098
15. Good Faith Estimate
16. HUD-1 or HUD-1A
17. Model Disclosure Statement
18. Notice of Transfer of Servicing Rights
19. Hazard Insurance binder or policy
20. Flood insurance binder or policy if applicable
21. Section 32 Disclosure if applicable
22. Anti-Coercion Disclosure (Florida only)
23. Fair Lending & Appraisal Notice (California only)
24. Disclosure concerning Absence of Lock-in Agreement, Right to Appraisal &
Right to Lawyer (Connecticut only)
25. Foreclosure Notice (Georgia only)
26. Predisclosure Statement, Consumer Repost Disclosure (New York only)
27. Mortgage Loan Commitment (New York, North Carolina, Maryland, Illinois
and New Jersey only)
28. Consumer Guide & Cost Work sheet (Massachusetts only)
29. Title Insurance agent's Choice Disclosure (Wisconsin & South Carolina only)
II. DOCUMENTS TO BE DELIVERED WITHIN 45 DAYS AFTER FUNDING
1. Original Recorded Mortgage
2. Final Title Insurance Policy
3. Hazard Insurance Policy if binder issued at closing
4. Flood Insurance Policy if binder issued at closing
