MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
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This Agreement dated as of March 13, 2000, by and between WESTMARK
MORTGAGE CORPORATION located at 0000 X. Xxxxxxx Xxx., Xxxx Xxxxx, Xxxxxxx and
incorporated under the laws of the state of California (herein, the "Seller")
and EquiCredit Corporation of America, a corporation duly organized under the
laws of the state of Delaware, having an office at 00000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (therein and herein, the "Purchaser"),
WITNESSETH:
Recitals
WHEREAS, the Seller desires from time to time to offer for sale to
Purchaser, and Purchaser is willing to purchase from the Seller in accordance
with the terms and conditions of this Agreement certain Mortgage Loans.
WHEREAS, Purchaser and Seller desire to enter into this Agreement to
govern the purchase and sale of Mortgage Loans.
NOW THEREFORE, in consideration of the mutual agreement contained
herein, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the meanings assigned to them in this section:
Adjustable Rate Mortgage Loan: A Mortgage Loan having
provisions for adjustment of interest rate or payment amount purchased pursuant
to the terms of this Agreement.
Adjustment Date: As to each Mortgage Loan, the date on which
the Mortgage Interest Rate is scheduled to be next adjusted in accordance with
the terms of the related Mortgage Note and Mortgage.
Appraised Value: With respect to any Mortgaged Property, the
lesser of (i) the value thereof as determined by an appraisal made for the
originator of the Mortgage Loan at the time of origination of the Mortgage Loan
by an appraiser who is duly licensed or certified and who then met the minimum
requirements of FNMA or FHLMC, and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, that in the case of a refinanced Mortgage Loan, such value of
the Mortgaged Property is based solely upon the value determined by an appraisal
made for the originator of such refinanced Mortgage Loan at the time of
origination of such refinanced Mortgage Loan by an appraiser who then met the
minimum requirements of FNMA or FHLMC.
Assignment of Mortgage: An assignment of mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to Purchaser.
Balloon Mortgage Loan: Any individual Mortgage Loan purchased
pursuant to this Agreement wherein the Mortgage Note matures after five years
requiring a final and accelerated payment of principal prior to full
amortization.
Business Day: Any day other than Saturday, Sunday, or a day
which is a legal holiday in either Florida or the state where Seller's corporate
headquarters is located.
Closing Date: The dates on which Purchaser purchases and
Seller sells the Mortgage Loans listed on the related Mortgage Loan Schedule.
Closing Dates shall occur periodically as specified in the Commitment Letter.
Closing Documents: The documents required to be delivered on
the Closing Date pursuant to Section 23.
Credit Grade: The credit grade assigned by the Seller to each
Mortgage Loan pursuant to the standards set forth in the Underwriting
Guidelines.
Cut-off Date: The first day of the month in which the related
Closing Date occurs.
Deleted Mortgage Loan: A Mortgage Loan repurchased or replaced
or to be replaced with a Qualified Substitute Mortgage Loan.
Due Date: The day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Escrow Funds: Any and all monies held in escrow for the
payment of taxes, insurance, and any other purpose in connection with the
Mortgage Loans.
Fixed Rate Mortgage Loan: Any individual Mortgage Loan
purchased pursuant to this Agreement wherein the Mortgage Interest Rate set
forth in the Mortgage Note is fixed for the term of such Mortgage Loan.
FNMA: The Federal National Mortgage Association.
FHMLC: The Federal Home Loan Mortgage Corporation.
Index: The index set forth in the Mortgage Note which will
call for periodic changes in the interest rate based on a corresponding change
in the Index. The index plus the amount of the margin noted in the Note will
equal the Mortgage Interest Rate. The Index will be assumed to be the London
Inter Bank Offering Rate, as quoted on the appropriate Bloomberg screen on the
relevant Adjustment Date.
Initial Reset Cap: As to each Adjustable Mortgage Loan, the
maximum initial increase or decrease in the Mortgage Interest Rate on the first
Adjustment Date, which shall be equal to the percentage, if any, specified on
the Mortgage Loan Schedule.
Interim Servicing Agreement: Shall mean the agreement between
Seller and Purchaser pursuant to which Seller or its designee agrees to service
the Mortgage Loans from the Closing Date until the Transfer Date.
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Lifetime Rate Cap: As to each Adjustable Mortgage Loan, the
maximum Mortgage Interest Rate which shall be a certain number of basis points
above the initial Mortgage Interest Rate, all as specified in the Mortgage Loan
Schedule.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan,
the ratio of the outstanding principal amount of the Mortgage Loan, plus the
outstanding principal balance of any loan that is senior to the Mortgage Loan as
of the date of determination to the Appraised Value of the related Mortgaged
Property.
Mandatory Forward Commitment Letter: A letter agreement
between the Seller and Purchaser whereby Seller and Purchaser agree to pricing
terms for the sale of Mortgage Loans hereunder. The form of the Mandatory
Forward Commitment Letter to be used is attached hereto as Exhibit 1.
Monthly Payment: The scheduled monthly payment of principal
and interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust, or other instrument
securing a Mortgage Note, which creates a lien on an unsubordinated estate in
fee simple in real property securing the Mortgage Note or a lien upon a
leasehold estate of the Mortgagor, as the case may be.
Mortgage File: The items pertaining to a particular Mortgage
Loan referred to in Exhibit 3 annexed hereto, and any additional documents
required to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: With respect to each Mortgage Loan,
the annual rate at which interest accrues on such Mortgage Loan in accordance
with the provisions of the related Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is sold and
serviced pursuant to this Agreement. Each Mortgage Loan originally sold and
subject to this Agreement is identified on the related Mortgage Loan Schedule,
which Mortgage Loan includes without limitation the Mortgage File, the Monthly
Payments, and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan.
Mortgage Loan Documents: The following documents pertaining to
any Mortgage Loan:
(a) The original Mortgage Note bearing all
intervening endorsements, endorsed in blank, without recourse and signed in the
name of Seller by an authorized officer.
(b) The original Assignment of Mortgage for each
Mortgage Loan in blank.
(c) The original of any guarantee executed in
connection with the Mortgage.
(d) The original Mortgage with evidence of recording
thereon. If in connection with any Mortgage Loan, Seller has not delivered or
caused to be delivered the original Mortgage with evidence of recording thereon
prior to the Closing Date because of a delay caused by the public recording
office where such Mortgage has been delivered for
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recordation or because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, Seller shall deliver or
cause to be delivered to Purchaser: (i) in the case of a delay caused by the
public recording office, a copy of such Mortgage certified by Seller to be a
true and complete copy of the original recorded Mortgage and (ii) in the case
where a public recording office retains the original recorded Mortgage or in the
case where a Mortgage is lost after recordation in a public recording office, a
copy of such Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage.
(e) The originals of all assumption, modification,
consolidation or extension agreements, with evidence of recording thereon, or if
any such documents has not been returned from the applicable recording office or
has been lost or if such public recording office retains the original recorded
documents, Seller shall deliver or cause to be delivered to Purchaser or
Purchaser's designee (i) in the case of a delay caused by the public recording
office, a copy of such documents certified by Seller to be a true and complete
copy of the original recorded documents and (ii) in the case where a public
recording office retains the original recorded documents or in the case where a
document is lost after recordation in a public recording office, a copy of such
documents certified by such public recording office to be a true and complete
copy of the original recorded documents.
(f) The originals of all intervening assignments of
mortgage with evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording office or has
been lost or if such public recording office retains the original recorded
assignments of mortgage, Seller shall deliver or cause to be delivered to
Purchaser or Purchaser's designee (i) in the case of a delay caused by the
public recording office, a copy of such intervening assignment of mortgage
certified by Seller to be a true and complete copy of the original recorded
intervening assignment of mortgage and (ii) in the case where a public recording
office retains the original recorded intervening assignment or in the case where
an intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public recording
office to be a true and complete copy of the original recorded intervening
assignment.
(g) The original mortgagee title insurance policy. If
the policy has not yet been issued, such title insurance policy shall be
delivered to Purchaser or its designee promptly upon receipt thereof by Seller
but in no event later than the time specified in Exhibit 3.
Mortgage Loan Pool: A group of specified Mortgage Loans as
identified on a Mortgage Loan Schedule which will be the subject of a
transaction under the terms described in this Agreement.
Mortgage Loan Schedule: The Schedule of Mortgage Loans
provided by Seller to Purchaser in respect of each Mortgage Loan Pool, setting
forth the following information with respect to each Mortgage Loan: (1) Seller's
Mortgage Loan identifying number; (2) the Mortgagor's name; (3) the street
address of the Mortgaged Property including the city, state and zip code; (4) a
code indicating whether the Mortgaged Property is owner-occupied; (5) the type
of residential units constituting the Mortgaged Property (i.e., detached single
family, two-to-four-family, condominium units, etc.); (6) the date on which the
current monthly payment is now due and the original months to maturity or the
remaining months to maturity from the Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity expressed in the
same manner but based on the actual amortization schedule; (7) the Appraised
Value of the Mortgaged Property and the Loan-to-Value Ratio at origination; (8)
the
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Mortgage Interest Rate as of the Cut-off Date; (9) the date on which the initial
Monthly Payment was due on the Mortgage Loan; (10) the stated maturity date;
(11) the amount of the Monthly Payment as of the Cut-off Date; (12) the original
principal amount of the Mortgage Loan; (13) the actual principal balance of the
Mortgage Loan as of the close of business on the Cut-off Date; (14) with respect
to any Adjustable Rate Mortgage Loans, the interest adjustment date; (15) with
respect to any Adjustable Rate Mortgage Loans, the Index and the gross margin;
(16) a code indicating the purpose of the loan (i.e., purchase, rate and term
refinance, equity take-out refinance); (17) with respect to any Adjustable Rate
Mortgage Loans, the maximum Mortgage Interest Rate under the terms of the
Mortgage Note; (18) with respect to any Adjustable Rate Mortgage Loans, the
Periodic Rate Cap and Lifetime Rate Cap; (19) the name of any third party
originator; (20) a code indicating the documentation style (i.e., full,
alternative. reduced or streamlined); (21) a code indicating whether the
Mortgage Loan is secured by the Mortgagor's primary residence; (22) the lien
priority of the Mortgage Loan and in the event the Mortgage Loan is a second
lien, the amount of the balance outstanding on the senior Mortgage Loan; (23) a
code indicating the amount of any prepayment penalty applicable to the Mortgage
Loan, with respect to the Mortgage Loans in the aggregate; (24) a code
indicating whether there are any Servicing Advances; (25) the Mortgagor's
debt-to-income ratio; (26) the Mortgagor's FICO score. The Mortgage Loan
Schedule shall set forth the following information, as of the Cut-off Date: (1)
the number of Mortgage Loans; (2) the current principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage Loans;
and (4) the weighted average maturity of the Mortgage Loans. Such schedule may
be delivered in hard copy form or via any electronic medium acceptable to
Purchaser or any combination thereof.
Mortgage Note: The original, executed note or other evidence
of the indebtedness of a Mortgagor secured by a Mortgage.
Mortgaged Property: The Mortgagor's real property securing
repayment of a related Mortgage Note, consisting of a fee simple interest or
leasehold estate in single or multiple parcels of real property improved by a
Residential Dwelling.
Mortgage: The mortgagee or beneficiary named in the Mortgage
and the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note, who is an owner of
the Mortgaged Property and the grantor or mortgagor named in the Mortgage and
such grantor's or mortgagor's successors in title to the Mortgaged Property.
Pass Through Transfer: The sale or transfer of some or all of
the Mortgage Loans on one or more dates by the Purchaser or an affiliate of the
Purchaser to a trust or trusts to be formed as part of a privately placed
mortgage-backed securities transaction or a public markets securitization
transaction.
Payment Adjustment Date: As to each Mortgage Loan, the date on
which an adjustment to the Monthly Payment on a Mortgage Note becomes effective.
Periodic Rate Cap: As to each Adjustable Mortgage Loan, the
maximum increase or decrease in the Mortgage Interest Rate, Adjustment Date
which shall equal a specified number of basis points above or below the Mortgage
Interest Rate in effect during the immediately preceding period, all as
specified in the Mortgage Loan Schedule.
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Power of Attorney: An authorization given by the Seller to
Purchaser to perform certain acts with respect to the Mortgage Loan. A form of
Power of Attorney is attached as Exhibit 2.
Purchase Premium: The amount Purchaser pays to the Seller in
excess of par, expressed as percentage of the principal balance of Mortgage Loan
as reflected in the Commitment Letter.
Purchase Price: The price paid on the related Closing Date by
Purchaser to Seller in exchange for the Mortgage Loans purchased on such Closing
Date.
Qualified Substitute Mortgage Loan: A Mortgage Loan eligible
to be substituted by Seller for a Deleted Mortgage Loan which must, on the date
of such substitution, (i) have an unpaid principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one (I) mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the unpaid principal balance of
the Deleted Mortgage Loan (the amount of any shortfall will be deposited in the
custodial account by Seller in the month of substitution); (ii) have a Mortgage
Interest Rate not less than, and not more than 1% greater than, the Mortgage
Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term to
maturity not greater than and not more than one year less than, the maturity
date of the Deleted Mortgage Loan; (iv) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in Section 5 hereof;
(v) shall be the same type of Mortgage Loan; (vi) have the same credit
classification as determined by Purchaser as the Deleted Mortgage Loan.
Reconstitution Agreement: One or more documents entered into
after the Closing Date between Purchaser, as transferor, and a third party which
evidences either a Whole Loan Transfer or Pass-Through Transfer.
Repurchase Price: With respect to any Mortgage Loan, a price
equal to (i) the stated principal balance of the Mortgage Loan plus (ii)
interest on such stated principal balance from the last date through which
interest has been paid and distributed to Purchaser to the date of repurchase,
plus the Purchase Premium.
Residential Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a condominium project, (iv) a one-family dwelling in
a planned unit development, or (v) a mobile or manufactured home.
Servicing Advance: An amount paid by Seller on behalf of a
Mortgagor to an insurance company or taxing authority to cover the Mortgagor's
obligation under the mortgage to pay taxes and insurance.
Servicing File: Will mean the documents, files and other items
pertaining to a particular Mortgage Loan and the servicing of such Mortgage that
are in the possession of the Seller on the Closing Date.
Servicing Rights: With respect to each Mortgage Loan, any and
all of the following: (a) all rights to service the Mortgage Loan; (b) any
payments or monies payable or received for servicing the Mortgage Loans; (c) any
late fees, assumption fees, penalties or similar payments with respect to the
Mortgage Loans; (d) all agreements or documents
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creating, defining or evidencing any such Servicing Rights and all rights of the
Seller thereunder, including, but not limited to, any clean up calls and
termination options; (e) all accounts and other rights to payment related to any
of the property described in this paragraph; (f) possession and use of any and
all Servicing Files pertaining to the Mortgage Loans or pertaining to the past,
present or prospective servicing of the Mortgage Loans; and (h) all rights,
powers, and privileges incident to any of the foregoing.
Transfer Date: The date on which Seller transfers to Purchaser
the servicing responsibility with respect to the Mortgage Loans.
Underwriting Guidelines: Will mean the Seller manual as
updated through the date hereof.
Whole Loan Transfer: An assignment of a legal or beneficial
ownership interest in one or more of the Mortgage Loans by the Purchaser to any
other person other than as a Pass Through Transfer.
2. Agreement to Purchase
2.1 Subject to the terms and conditions of this Agreement,
Seller may offer to sell Mortgage Loans and Purchaser may purchase Mortgage
Loans at the Purchase Price and other terms set forth from time to time in the
applicable Commitment Letter. The terms of the applicable Commitment Letter
shall be incorporated in and become a part of this Agreement.
2.2 Seller shall deliver the Mortgage Loan Schedule to
Purchaser not less than five (5) business days prior to the anticipated Closing
Date, as specified in the applicable Commitment Letter. The Mortgage Loans shall
comply with the representations and warranties set forth in this Agreement, and
shall have an aggregate outstanding principal balance as of the close of
business on the Cut-off Date after giving effect to any payments on or before
such date as shown in the Mortgage Loan Schedule. The sale of the Mortgage Loans
shall take place on the Closing Date as agreed to between the parties at such
place as specified by Purchaser. Purchaser shall upon completion of its due
diligence determine which Mortgage Loans on the Mortgage Loan Schedule that it
desires to purchase and shall forward to Seller a Xxxx of Sale containing the
relevant terms of purchase including without limitation Purchase Price, Purchase
Premium, if any, Closing Date and any other terms applicable to such purchase.
The Purchase Price for each Mortgage Loan shall be determined in accordance with
the applicable Commitment Letter. The Purchase Price shall be set forth in the
proposed Xxxx of Sale to purchase Mortgage Loans.
2.3 If the Purchase Price contains a Purchase Premium and the
Mortgage Loan is paid off other than by Purchaser within twelve months (one
year) of the related Closing Date, Seller shall rebate to Purchaser a portion of
the Purchase Premium paid by Purchaser to Seller, calculated by applying a
percentage to such Purchase Premium the numerator of which will be the number of
full months remaining in the one year period following the Closing Date and the
denominator of which is twelve. If the Mortgage Loan prepaid contains a
prepayment penalty clause or addendum, the Purchase Premium rebate shall be
reduced by the amount of the prepayment penalty collected from the Mortgagor.
Purchaser shall provide Seller with a monthly report showing payoff figures for
the previous month including Purchase Premium rebates, if any owing to
Purchaser. At Purchaser's option, it may net the amount of Purchase Premium
recapture owing to Purchaser under this Section 2.3, together with any and all
other sums to Purchaser hereunder from the amount of the Purchase Price.
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2.4 It is the intention of the parties that the Purchaser is
purchasing, and the Seller is selling, the Mortgage Loans and not a debt
instrument of the Seller or another security. Accordingly, the parties hereto
each intend to treat the transaction for federal income tax purposes as a sale
by the Seller, and a purchase by the Purchaser, of the Mortgage Loans. The
Purchaser shall have the right to review the Mortgage Loans and the related
Mortgage Files to determine the characteristics of the Mortgage Loans which
shall affect the federal income tax consequences of owning the Mortgage Loans
and the Seller shall cooperate with all reasonable requests made by the
Purchaser in the course of such review.
2.5 In addition to any rights granted to the Purchaser
hereunder to underwrite the Mortgage Loans and review the Mortgage Loan
Documents prior to the Closing Date, the Seller shall, prior to the Closing
Date, make the Mortgage Files available to the Purchaser for examination at the
Seller's offices. Such examination may be made by the Purchaser or its designee,
at its expense, at any reasonable time before the Closing Date. Such
underwriting by the Purchaser shall not impair or diminish the rights of the
Purchaser or its designee under this Agreement with respect to a breach of the
representations and warranties or any other Purchaser rights contained in this
Agreement. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files shall not affect the
Purchaser's (or any of its successors') rights to demand repurchase or other
relief or remedy provided for in this Agreement.
If any Mortgage Loan identified on the Mortgage Loan Schedule
does not conform either with respect to the Mortgage File, the Mortgage Loan
Documents or the Underwriting Guidelines, then such Mortgage Loan shall be
deleted from the Mortgage Loan Schedule and shall not be eligible for sale
hereunder.
In addition to the foregoing examination of the Mortgage Files
and related documents, the Seller agrees to allow the Purchaser, or its
designee, or any representative of any nationally recognized statistical rating
agency rating the Certificates issued as part of any Pass-Through Transfer (a
"Rating Agency"), to examine and audit all books, records and files pertaining
to the Mortgage Loans, the Seller's underwriting procedures and the Seller's
ability to perform or observe all of the terms, covenants and conditions of this
Agreement. Such examinations and audits shall take place at one or more offices
of the Seller during normal business hours and in the course of such
examinations and audits, the Seller will make available to the Purchaser, or its
designee, adequate facilities, as well as the assistance of a sufficient number
of knowledgeable and responsible individuals who are familiar with any such
review in all respects. The Seller agrees to provide the Purchaser, its designee
and any representative of a Rating Agency with all material information
regarding the Seller (including its financial condition), and to provide access
to knowledgeable financial or account officers for the purpose of answering
questions with respect to the Seller's financial condition, financial statements
or other developments affecting the Seller. The Purchaser shall, upon reasonable
prior notice, also have the right to perform such examinations and audits or to
obtain such material information regarding the Seller's financial condition and
access to the officers described above following the Closing Date.
The Seller understands and agrees that any information as to
the loss and delinquency experience of loans originated or acquired by the
Seller, obtained in the examination and review described in the foregoing
paragraph may be disclosed in an offering circular.
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2.6 Purchaser shall have the right to transfer to any person
all or a portion of its right, title and interest in and to each Mortgage Loan
and other rights and obligations under this Agreement as part of one or more
Whole Loan Transfers or Pass Through Transfers and the transferee thereof shall
succeed to each such right, title and interest and rights and obligations
hereunder of the Purchaser. With respect to any Mortgage Loan or related
interest that has been so transferred, all reference herein to the Purchaser
shall be deemed to refer to the related transferee.
2.7 The Purchase Price for the Mortgage Loans is the price set
forth in the relevant Commitment Letter. In addition to the Purchase Price, the
Purchaser shall pay to the Seller, at Closing, accrued interest on the Principal
Balance of each Mortgage Loan as of the applicable Cut-off Date at its Mortgage
Interest Rate from such Cut-off Date through the day prior to the Closing Date.
both inclusive. Such payment shall be made to Seller by wire transfer of
immediately available funds.
3. Closing
3.1 The Seller agrees to transfer, assign, set over and convey
to Purchaser, without recourse but subject to the terms of this Agreement, on
the Closing Date and as of the Cut-off Date, all rights, title and interest of
the Seller in and to the Mortgage Loans including all of the following:
(i) All right, title and interest of Seller in and to
amounts collected on such Mortgage Loans after the Cut-off
Date;
(ii) All liens created by each Mortgage Loan
instrument;
(iii) All of Seller's rights to any insurance
proceeds;
(iv) All Mortgage Loan instruments and Mortgage Files
pertaining to each Mortgage Loan;
(v) All proceeds derived from any of the foregoing;
(vi) All rights of Seller to service the Mortgage
Loans and to enforce any of the foregoing;
(vii) If Seller did not originate any Mortgage Loan,
all of Seller's rights as purchaser under any documents
pursuant to which Seller acquired each Mortgage Loan, to the
extent such rights may be assigned;
(viii) All Servicing Rights and all Servicing Files.
3.2 Seller shall deliver on the Closing Date the Mortgage
Files and the Mortgage Loan Documents. Seller shall deliver the Servicing Files
on or before the Transfer Date.
3.3 The Seller shall, promptly upon receipt thereof, deliver
to Purchaser or its designee the original Mortgage or Assignment of Mortgage as
the case may be with evidence of recording indicated thereon. In the event the
Seller cannot deliver any original recorded Mortgage or Assignment of Mortgage
to Purchaser for any reason, the Seller shall deliver or
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cause to be delivered to Purchaser or its assignee a photocopy of such Mortgage
or Assignment as the case may be certified by the appropriate county recorder's
office to be a true and correct copy of the original thereof recorded in such
recorder's office. In the event that any Assignment of Mortgage is lost or
returned unrecorded because of a defect therein, the Seller shall prepare a
substitute Assignment of Mortgage or cure such defect and deliver such cured or
substitute Assignment to Purchaser or its designee and Purchaser shall, at the
expense of Seller, record such Assignment of Mortgage.
3.4 In the event payment of any of the Mortgage Loans
purchased hereunder is made to Seller on or after the Transfer Date, such
payment shall be deemed to have and shall have been received by Seller in trust
for the account of Purchaser and shall be immediately paid over to Purchaser.
3.5 Any sales, use, income, transfer, stamp or other taxes
applicable to the sale of Mortgage Loans shall be paid by the Seller.
4. Seller's Covenants
4.1 Seller covenants that on the Transfer Date it shall
transfer the actual servicing of the Mortgage Loans to the Purchaser, all in
accordance with the terms of the Interim Servicing Agreement.
4.2 Seller covenants that none of the Mortgage Loans contain
related escrow accounts and that, to the extent any identified on the Mortgage
Loan Schedule do so contain an escrow account, Seller will have effected a
closure of each escrow account so that on the relevant Transfer Date, Purchaser
shall have no obligations relating to Escrow Funds or related matters.
4.3 The execution of this Agreement and the carrying out of
its terms does not and will not make the Seller and Purchaser partners or joint
ventures, nor is the Seller to act as an agent of the Purchaser in originating,
administering or collecting any loan except as set forth in the Agreement.
4.4 Seller covenants that, except as otherwise disclosed and
itemized on the Mortgage Loan Schedule, there are no Servicing Advances with
respect to any Mortgage Loan. In no event will Servicing Advances occur on more
than .5% of the Mortgage Loans measured by number of Mortgage Loans on the
Transfer Date.
5. Representations and Warranties. With respect to each Mortgage Loan
which is subject to this Agreement, the Seller makes the following
representations and warranties:
5.1 Representations and Warranties Respecting Seller. Seller
represents, warrants and covenants to Purchaser that, as of the Closing Dates:
(a) The Seller is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
___________________, has all licenses necessary to carry on its business as now
being conducted, and is licensed, qualified and in good standing in each
Mortgaged Property state if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the Seller
and perform its obligations hereunder; the Seller has the power and authority to
execute and deliver this Agreement and to perform in accordance herewith,' the
execution, delivery and performance of
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this Agreement (including all instruments of transfer to be delivered pursuant
to this Agreement) by the Seller and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action; this Agreement evidences the valid, binding and enforceable obligation
of the Seller; and all requisite action has been taken by the Seller to make
this Agreement valid, binding and enforceable upon the 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;
(b) All actions, approvals, consents, waivers,
exemptions, variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be, by or from
any federal, state or other governmental authority or agency, that are necessary
in connection with the purchase and sale of the Mortgage Loans and the execution
and delivery by the Seller of the documents to which it is a party, have been
duly taken, given or obtained, as the case may be. arc in full force and effect
on the date hereof, are not subject to any pending proceedings or appeals
(administrative, judicial or otherwise) and either the time within which any
appeal therefrom may be taken or review thereof may be obtained has expired or
no review thereof may be obtained or appeal therefrom taken, and are adequate to
authorize the consummation of the transactions contemplated by this Agreement
and the other documents on the part of the Seller and the performance by the
Seller of its obligations under this Agreement and such of the other documents
to which it is a party;
(c) The consummation of the transactions contemplated
by this Agreement will not result in the breach of any terms or provisions of
the charter or by-laws of the Seller or result in the breach of any term or
provision of; or conflict with or constitute a default under or result in the
acceleration of any obligation under, any material agreement, indenture or loan
or credit agreement or other material instrument to which the Seller or its
property is subject, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Seller or its property is subject;
(d) There is no action, suit, proceeding or
investigation pending or, to the best of the Seller's knowledge, threatened
against the Seller which, either in any one instance or in the aggregate, may
result in any material adverse change in the business, operations, financial
condition, properties or assets of the Seller or in any material impairment of
the right or ability of the Seller to carry on its business substantially as now
conducted, or in any material liability on the part of the Seller or which would
draw into question the validity of this Agreement or the Mortgage Loans or of
any action taken or to be taken in connection with the obligations of the Seller
contemplated herein, or which would be likely to impair materially the ability
of the Seller to perform under the terms of this Agreement;
(e) The Seller is not in default with respect to any
order or decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or other) or
operations of the Seller or its properties or might have consequences that would
materially and adversely affect its performance hereunder;
(f) Upon the receipt of each Mortgage File by the
Purchaser under this Agreement, the Purchaser will have good title to each
Mortgage Loan free and clear of any lien (other than liens which will be
simultaneously released);
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(g) The transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer laws or any similar statutory provisions in
effect in any applicable jurisdiction;
(h) The origination and collection practices used by
Interim Servicer with respect to each Mortgage Note and Mortgage have been in
all material respects legal, proper, prudent and customary in the non-conforming
mortgage origination and servicing business.
5.2 Representations and Warranties Regarding Individual
Mortgage Loans. Seller represents and warrants to Purchaser that, as to each
Mortgage Loan, as of the Closing Date for such Mortgage Loan:
(a) The information contained in the Mortgage Loan
Schedule and any other information furnished by the Seller is complete, true and
correct;
(b) All payments required to be made up to, and
including, the related Cutoff Date for such Mortgage Loan under the terms of the
Mortgage Note have been made; neither the originator nor Seller has advanced
funds, or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage Loan. No
Mortgage Loan is, as of the Cut-off Date, more than thirty (30) days past due.
(c) There are no delinquent taxes, ground rents,
water charges, sewer rents, assessments, insurance premiums, leasehold payments,
or other outstanding charges affecting the related Mortgaged Property;
(d) The Mortgage Note and the Mortgage are not
subject to any right of rescission, set-off, counterclaim or defense nor will
the operation of any of the terms of the Mortgage Note and the Mortgage, or the
exercise of any right thereunder, render the Mortgage unenforceable, in whole or
in part, or subject to any right of rescission, set-off, counterclaim or
defense;
(e) All buildings upon the Mortgaged Property are
insured against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located.
All insurance policies contain a standard mortgagee clause naming Seller or the
originator, its successors and assigns as mortgagee and all premiums thereon
have been paid. If upon origination of the Mortgage Loan, the Mortgaged Property
was in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards (and such flood insurance has
been made available), a flood insurance policy meeting the requirements of the
current Guidelines of the Federal Insurance Administration (or any successor
thereto) is in effect. The Mortgage obligates the Mortgagor thereunder to
maintain all such insurance at Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at Mortgagor's cost and expense and to seek reimbursement
therefore from the Mortgagor;
(f) Any and all requirements of any federal, state or
local law including, without limitation, usury, truth-in-lending, Soldiers and
Sailors' Relief Act, real estate settlement procedures, consumer credit
protection, equal credit opportunity, fair lending, privacy
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or disclosure laws applicable to the Mortgage Loan have been complied with in
all material respects;
(g) The Mortgage has not been modified, satisfied,
canceled, subordinated, or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such
modification, release, cancellation, subordination or rescission;
(h) The Mortgage is a valid, existing and enforceable
first or second lien on the Mortgaged Property, including all improvements on
the Mortgaged Property subject only to (i) the lien of current real property
taxes and assessments not yet due and payable, (ii) covenants, conditions and
restrictions, rights of way, easements and other matters of the public record as
of the date of recording being acceptable to mortgage lending institutions
generally and specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and which do not adversely
affect the Appraised Value of the Mortgaged Property, and (iii) other matters to
which like properties are commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the Mortgage or the
use, enjoyment, value or marketability of the related Mortgaged Property. Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
existing and enforceable lien and security interest on the property described
therein and the Seller has the lull right to sell and assign the same to the
Purchaser;
(i) The Mortgage Note and the related Mortgage are
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms except as enforceability may
be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights of
creditors and (ii) general principles of equity, whether enforcement is sought
in a proceeding in equity or at law.
(j) All parties to the Mortgage Note and the Mortgage
had legal capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have
been duly and properly executed by such parties;
(k) The proceeds of the Mortgage Loan have been fully
disbursed to or for the account of the Mortgagor and there is no obligation for
the Mortgagee to advance additional funds thereunder and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage have been paid, and the Mortgagor is not entitled to
any refund of any amounts paid or due to the Mortgagee pursuant to the Mortgage
Note or Mortgage;
(l) Seller is the sole owner and holder of the
Mortgage Loan. The Mortgage Loan is not assigned or pledged. Seller has full
right to transfer and sell the Mortgage Loan to Purchaser free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security interest;
(m) All parties which have had any interest in the
Mortgage, whether as mortgagee, assignee, pledgees or otherwise, are (or, during
the period in which they held
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and dispose of such interest, were) (i) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (ii) (a) organized under the laws of such state, or (b)
qualified to do business in such state, or (c) a federal savings and loan
association or national bank, or (d) not deemed to be doing business in such
state under applicable law;
(n) Except for second lien Mortgage Loans having an
original principal balance of less than Fifty Thousand Dollars ($50,000.00) for
which a lien search has been provided; the Mortgage Loan is covered by an
American Land Title Association lender's title insurance policy or equivalent
(which, if the Mortgage Loan is an Adjustable Mortgage Loan, includes an
adjustable rate mortgage endorsement substantially in the form of ALTA Form 6.0
or 6.1), acceptable to FNMA or FHLMC, issued by a title insurer acceptable to
FNMA or FHLMC and qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring (subject to the exceptions contained in
(h)(i) and (ii) above) the Seller, its successors and assigns as to the first or
second priority lien of the Mortgage in the original principal amount of the
Mortgage Loan. The Seller is the sole insured of such lender's title insurance
policy, and such lender's title insurance policy is in full force and effect and
will be in full force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender's
title insurance policy, and neither the Seller nor the prior holder of the
related Mortgage has done, by act or omission, anything which would impair the
coverage of such lender's title insurance policy;
(o) There is no default, breach, violation or event
of acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage 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;
(p) There are no mechanics or similar liens or claims
which have been filed for work, labor or material (and no rights are outstanding
that under law could give rise to such lien) affecting the related Mortgaged
Property which are or may be liens prior to, or equal or coordinate with, the
lien of the related Mortgage;
(q) All improvements which were considered in
determining the Appraised Value of the related Mortgaged Property lay wholly
within the boundaries and building restriction lines of the Mortgaged Property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property;
(r) The Mortgaged Property is free of material damage
and waste and there is no proceeding pending for the total or partial
condemnation thereof;
(s) The Mortgage and related Mortgage Note contain
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (ii)
otherwise by judicial foreclosure. The Mortgaged Property has not been subject
to any bankruptcy proceeding or foreclosure proceeding and the Mortgagor has not
filed for protection under applicable bankruptcy laws. There is no homestead or
other exemption or right available to the Mortgagor or any other person which
would interfere with the right to sell the Mortgaged Property at a trustee's
sale or the right to foreclose the Mortgage; the Mortgagor
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has not notified Seller and Seller has no knowledge of any relief requested by
the Mortgagor under the Soldiers and Sailors Civil Relief Act of 1940;
(t) The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by an appraiser who is duly certified or licensed in the state where
the property is located, duly appointed by the originator, who had no interest,
direct or indirect, in the Mortgaged Property or in any loan made on the
security thereof, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan;
(u) In the event the Mortgage constitutes a deed of
trust, a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the Mortgage, and no
fees or expenses are or will become payable by Purchaser to the trustee under
the deed of trust, except in connection with a trustee's sale after default by
the Mortgagor;
(v) The Assignment of Mortgage is in recordable form
and is acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(w) The Mortgage Note and Mortgage are on forms
acceptable to Purchaser;
(x) All documents used to support the borrowers
application, including, but not limited to, verifications or other records
supporting the borrowers income, employment or credit are true and genuine;
(y) The terms of the Mortgage Note and the Mortgage
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 interest of the Purchaser and which has
been or will be delivered to the Purchaser. The substance of any such alteration
or modification is reflected on the Mortgage Loan Schedule. Each original
Mortgage was recorded, and all subsequent assignments of the original Mortgage
have been recorded in the appropriate jurisdictions wherein such recordation is
necessary to perfect the lien thereof as against creditors of the Seller (or are
in the process of being recorded);
(z) Each Mortgage Loan was originated or acquired by
Seller. Each Mortgage Loan acquired by the Seller was originated by an approved
correspondent lender in conformity with the Seller's underwriting guidelines;
(aa) No Mortgage Loan provides for primary mortgage
insurance, or has any obligation to pay taxes or insurance on behalf of
Mortgagor out of an escrow account or otherwise;
(bb) Neither an action of foreclosure has been
initiated against, nor has judgment of foreclosure been rendered against any of
the Mortgaged Properties; and, to the best of Seller's knowledge, none of the
Mortgaged Properties are the subject of pending hazard or flood insurance
claims;
(cc) None of the Mortgage Loans is a "high cost"
mortgage under Regulation Z 12 CFR 226.32, or a graduated payment mortgage loan
or include a shared
15
appreciation or other contingent interest feature, or contains a "buydown"
provision which is currently in effect;
(dd) The Mortgagor has received all disclosure
materials required by applicable law with respect to the making of mortgage
loans of the same type as the Mortgage Loan and rescission materials required by
applicable law if the Mortgage Loan is a refinanced mortgage loan;
(ee) The Seller has collected all data required by
and filed all reports necessary under the Home Mortgage Disclosure Act;
(ff) To the best of Seller's knowledge as of the date
of origination of the Mortgage Loan, the Mortgaged Property is lawfully occupied
under applicable law, all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy, have been made or obtained from the
appropriate authorities and no improvement located on or part of the Mortgaged
Property is in violation of any zoning law or regulation;
(gg) With respect to each Mortgage Loan, the Seller
has transferred to the Purchaser a complete Mortgage File except for the
documents which have been submitted for recording and not yet returned;
(hh) Any future advances made prior to the Cut-off
Date have been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term. The lien of the Mortgage securing the
consolidated principal amount is expressly insured as having a first or second
lien priority by a title insurance policy, an endorsement to the policy insuring
the mortgagee's consolidated interest or by other title evidence acceptable to
FNMA and FHLMC. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(ii) The Mortgage Loan was underwritten in accordance
with the Underwriting Guidelines;
(jj) The Mortgage contains an enforceable provision
for the acceleration of the payment of the unpaid principal balance of the
Mortgage Loan in the event that the Mortgaged Property is sold or transferred
without the prior written consent of the Mortgagee thereunder;
(kk) The Mortgaged Property is located in the state
identified in the Mortgage Loan Schedule and consists of a parcel of real
property with a detached single family residence erected thereon, or a two- to
four-family dwelling, or an individual condominium unit, or an individual unit
in a planned unit development; provided, however, that any condominium project
or planned unit development generally conforms with the Underwriting Guidelines
regarding such dwellings;
(ll) The Seller used no adverse selection procedures
in selecting the Mortgage Loan from among the outstanding first or second lien
residential mortgage loans owned by it which were available for inclusion in the
sale to the Purchaser;
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(mm) No fraud was committed by the Seller in
connection with the origination or servicing of the Mortgage Loan and no fraud
with respect to a Mortgage Loan has taken place on the part of any person
involved in the origination of the Mortgage Loan;
(nn) If the Mortgage Loan Schedule indicates that the
Mortgage Loan is subject to a prepayment penalty, the prepayment penalty
provision contained in the Mortgage Note or rider is sufficient to enable the
Mortgagor to enforce such prepayment penalty;
(oo) Except for the criteria for eligible Mortgagors
set forth in the Seller's Underwriting Guidelines, the Seller knows of nothing
involving any Mortgage File, Mortgaged Property or Mortgagor's credit standing
that could reasonably be expected (1) to cause private institutional investors
to regard the Mortgage Loan as an unacceptable investment, (2) to cause the
Mortgage Loan to become delinquent, or (3) to affect adversely the value or
marketability of the Mortgage Loan;
(pp) There are no Servicing Advances with respect to
any Mortgage Loan, except to the extent specifically disclosed on the Mortgage
Loan Schedule.
(qq) The date of the Mortgage Note will be no more
than ninety (90) days from the Cut-off Date.
5.3 Remedies for Breach of Representations and Warranties. The
representations and warranties set forth in Sections 5.1 and 5.2 shall survive
the sale of the Mortgage Loans to Purchaser and shall inure to the benefit of
Purchaser, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or Assignment of Mortgage or the examination or failure to examine
any Mortgage File. Upon discovery by either Seller or Purchaser of a breach of
any of the foregoing representations and warranties which materially and
adversely affects the value of one or more of the Mortgage Loans, the party
discovering such breach shall give prompt written notice to the other.
Seller shall have a period of thirty (30) days from the
earlier of the discovery of a breach or the receipt by Seller of notice of a
breach within which to correct or cure such breach. If any such breach cannot be
corrected or cured within such thirty (30) day period, Seller shall, at
Purchaser's option and not later than thirty (30) days after its discovery or
its receipt of notice of such breach, repurchase such Mortgage Loan at the
Repurchase Price. In the event that a breach shall involve any representation or
warranty set forth in Section 5.1 and such breach cannot be cured within thirty
(30) days of the earlier of either discovery by or notice to Seller of such
breach; all of the Mortgage Loans shall, at Purchaser's option, be repurchased
by Seller at the Repurchase Price. However. if the breach shall involve a
representation or warranty set forth in Section 5.2 and Seller discovers or
receives notice of any such breach within one hundred and twenty (120) days of
the Closing Date, Seller may, with the consent of Purchaser and provided that
Seller has a Qualified Substitute Mortgage Loan (or Loans), rather than
repurchase the Mortgage Loan as provided above, remove such Mortgage Loan and
substitute in its place a Qualified Substitute Mortgage Loan or Loans. In the
event a Mortgagor shall fail to make the scheduled monthly payment due in the
calendar month following the Closing Date or the Transfer Date, whichever is
later, Seller shall, upon written demand of the Purchaser, repurchase such
Mortgage Loan. If Seller has no Qualified Substitute Mortgage Loan it shall
repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage Loan(s)
pursuant to the foregoing provisions of this Section 5.3 shall be accomplished
by wire transfer of immediately available funds on the repurchase date to an
account designated by Purchaser.
17
At the time of repurchase or substitution, Purchaser and
Seller shall arrange for the reassignment of the Deleted Mortgage Loan to Seller
and the delivery to Seller of any documents held by Purchaser relating to the
Deleted Mortgage Loan. In connection with any substitution, Seller shall be
deemed to have made as to such Qualified Substitution Mortgage Loan the
representations and warranties set forth in this Agreement except that all such
representations and warranties set forth in this Agreement shall be deemed made
as of the date of such substitution. Seller shall effect such substitution by
delivering to Purchaser the Mortgage Loan Documents for such Qualified
Substitute Mortgage Loan.
If Seller substitutes a Qualified Substitute Mortgage Loan for
a Deleted Mortgage Loan, Seller shall determine the amount (if any) by which the
aggregate principal balance of all Qualified Substitute Mortgage Loans as of the
date of substitution is less than the aggregate Stated Principal Balance of all
Deleted Mortgage Loans (after application of scheduled principal payments due in
the month of substitution). The amount of such shortfall shall be remitted by
wire `transfer in immediately available funds.
In addition to such repurchase or substitution obligation,
Seller shall indemnify Purchaser and hold it harmless against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from, a
breach of Seller's representations and warranties contained in this Section 5.
Any cause of action against Seller relating to or arising out of the breach of
any representations and warranties made in Sections 5.1 or 5.2 shall accrue as
to any Mortgage Loan upon (i) the discovery of such breach by Purchaser or
notice thereof by Seller to Purchaser, (ii) failure by Seller to cure such
breach or repurchase such Mortgage Loan as specified above, and (iii) demand
upon Seller by Purchaser for compliance with the relevant provisions of this
Agreement.
5.4 Remedy to Insure Accuracy of Real Estate Appraisals.
Purchaser may, at its own expense, in order to verify the accuracy of real
property appraisals prepared for Seller, order a re-appraisal of the property
secured by a Mortgage. If the reappraisal obtained by Purchaser indicates a fair
market value which is more than ten (10) percent less than the original
appraisal value, then upon receipt by the Seller from Purchaser of a signed copy
of the reappraisal, Purchaser may, at its sole discretion, require Seller to
repurchase the loan at the Repurchase Price and reimburse Purchaser for the cost
of the appraisal subject to the following: If Seller disputes the validity of
the reappraisal prepared by Purchaser's appraiser, Seller may, at its own
expense, request Purchaser to obtain a third appraisal, and only if such third
appraisal is also more than ten (10) percent less than the original appraisal
value shall the Seller be required to repurchase the Loan at the Repurchase
Price. Purchaser shall choose the appraiser for the third appraisal with the
Seller's approval, which shall not be unreasonably withheld. The appraisal must
be performed in accordance with industry standards for the appraising industry
in the area in which the property is located, and the appraiser must be
independent with respect to both parties unless otherwise agreed on by the
parties. In determining the appropriate appraisal value, the review appraiser
must determine the fair market appraised value as of the original appraisal date
using comparable sales that were available as of the date of the original
appraisal. The original reappraisal must be ordered within one (1) year of
Purchaser's purchase of the Loan from the Seller.
18
6. Credit Insurance.
6.1 Transfer of Seller's Rights Relating to Credit Insurance.
If any Mortgage Loan includes credit life insurance, credit accident and health
insurance or other similar insurance product as part of the original principal
balance, Seller agrees to all of the conditions set forth in this Section 6.
Seller represents that substantially all of the policies or certificates of
credit life, credit disability and property insurance are issued by insurance
companies that are qualified to do business where and as required and whose
policies and certificates have been approved in the various states where such
credit insurance is sold in connection with the Mortgage Loans. Seller hereby
sells, transfers, assigns, sets over and delivers to Purchaser all of Seller's
right, title and interest in and to each of said policies or certificates of
insurance, and similar policies or certificates issued by insurance companies on
any of the Mortgage Loans, as a creditor beneficiary, and hereby constitutes and
appoints Purchaser the true and lawful attorney of the Seller but for and on
behalf of and for the benefit of Purchaser, to file such proofs of loss and to
process all claims thereon when and if a loss occurs thereunder and to receive
payment of all insurance benefits thereon. The Seller further agrees to notify
the insurance companies of the sale and transfer of the Mortgage Loans to the
Purchaser promptly following the date of this Agreement, and agrees to cooperate
with Purchaser in processing any claims or proof of loss in connection with such
insurance policies or certificates, all as may be required.
6.2 Insurance Cancellation. The parties agree that, in the
event of any cancellation or termination of any policies of insurance by reason
of prepayment, renewal or otherwise, as a result of which a rebate of the
prepaid insurance premium is required to be made, Purchaser will thereupon make
the rebate of such premium from its own funds and credit the principal balance
of the Mortgage Loan and thereafter will xxxx the Seller for such rebate, which
xxxx will be provided in a format agreeable between Purchaser and Seller. Seller
shall promptly, upon receipt of such xxxx, reimburse and pay Purchaser for said
rebate.
7. Additional Covenants.
(a) Each party shall, from time to time, execute and
deliver or cause to be executed and delivered, such additional instruments,
assignments, and documents as the other party may at any time reasonably request
for the purpose of carrying out the terms of this Agreement and the transfers
provided for herein
(b) In order to enforce the Purchaser's right under
this Agreement, Seller shall, upon the request of Purchaser or its assigns, do
and perform or cause to be done and performed, every reasonable act and thing
necessary or advisable to put Purchaser or its assigns in position to enforce
the payment of the Loans and to carry out the intent of this Agreement,
including the execution of, and, if necessary, the recordation of additional
documents including separate endorsements and assignments upon request of
Purchaser. In addition, Seller hereby irrevocably appoints any officer or
employee of Purchaser or its assigns its true and lawful attorney to do and
perform every act necessary, requisite, proper, or advisable to be done to the
Purchaser or its assigns in position to enforce the payment of the loans, its
right under this Agreement, and to carry out the intent of this Agreement,
including, but not limited to the right to sign, execute, endorse and/or assign,
and deliver to Purchaser or assigns on behalf of Seller a Mortgage Note,
Mortgage, or any other loan documents and also any other writing of any kind or
nature whatsoever which may be used in connection therewith to evidence any
obligation of Seller or any Mortgagor to Purchaser or its assigns, pursuant to
this Agreement and to endorse any check or other instruments for the payment
thereof. This
19
Power of Attorney is conferred upon Purchaser or its assigns hereby together
with the right to appoint any other person to execute the said power.
(c) Seller agrees that it will not solicit directly
or indirectly any Mortgagor to refinance or otherwise pay the Mortgage Loan for
a period of twenty-four months from the related Closing Date. Further, Seller
will take no action directly or indirectly to undermine Purchaser's sole
enjoyment of the Mortgage Loans. This covenant shall not apply to mass mailing
or mass market efforts not specifically targeted to the borrowers on Mortgage
Loans.
(d) Purchaser and Seller agree that, except as
provided herein and as may be required by applicable law or regulation, neither
party shall disclose in advertising, publicity, promotion, or otherwise the name
of the other party, the existence or contents of this Agreement or any terms or
conditions hereof without the prior written consent of the other party, unless
such disclosure is required pursuant to law or regulation.
8. Survival of Covenants, Agreement, Representations and Warranties;
Successors and Assigns. All warranties, representations and covenants made by
the parties in this Agreement or in any other instrument delivered by either
party under this Agreement, shall be considered to have been relied upon by the
other party hereto and shall survive the delivery to Purchaser of any Mortgage
Loan after purchase of the Mortgage Loans (i) regardless of any investigation
made by either party or on its behalf and (ii) notwithstanding any restrictions
or qualified endorsements on any Note or other evidence indebtedness and (iii)
notwithstanding any subsequent transfer of a Mortgage Loan to any third party.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto, their respective successors and assigns, and shall supersede and cancel
any prior oral agreements between the parties. This Agreement may not be
assigned by Seller without Purchaser's prior written consent.
9. Severability. If any provision, or part thereof, of this Agreement
is invalid or unenforceable under any law, such provision or part thereof, is
and will be totally ineffective to that extent, but the remaining provisions, or
part thereof will be unaffected.
10. Attorneys' Fees. Anything to contrary notwithstanding, in the event
of any action at law, in equity or otherwise between the parties in relation to
this Agreement or any Mortgage Loan or other instrument or agreement required or
purchased or sold thereunder, the non-prevailing party, in addition to any other
sum which such party shall be required to pay pursuant to the terms and
conditions of this Agreement, at law in equity, arbitration or otherwise shall
also be required to pay to the prevailing party all costs and expenses of such
litigation, including reasonable attorney's fees.
11. Waivers. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instance, shall
be deemed to be, or construed as a further or continuing waiver of any such
term, provision or condition, or of any other term, provision or condition of
this Agreement.
12. Notice. Any notice or other communication in this Agreement
provided or permitted to be given by one party to the other must be in writing
and given by personal delivery or by depositing the same in the United States
mail (certified mail, return receipt requested), addressed to the other party to
be notified, postage prepaid. A notice or other communication shall be effective
when delivered to the proper address. For purposes of notice, the addresses of
the parties shall be as follows:
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Purchaser EquiCredit Corporation of America
00000 Xxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, President
With a copy to:
NationsCredit
000 X. Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxx. Senior Vice President
Seller:
With a copy to the attention of:
The above address may be changed from time to time by written
notice from one party to the other.
13. Assignment. The Seller shall not, without the prior written consent
of Purchaser, assign any of its rights or obligations hereunder.
14. Captions. Paragraph or other headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida. The provisions of this
paragraph shall not affect the provisions of any Mortgage Note, Mortgage or
other related loan document which cause the laws of the United States or other
state to be applicable. Each party hereto is sophisticated and represented by
legal counsel. Accordingly, this Agreement shall be interpreted fairly in
accordance with its provisions and without regard to which party drafted it.
16. Termination. Purchaser may terminate this Agreement, including any
obligation to purchase Mortgage Loans under the Mandatory Forward Commitment
Letter, in the event that Seller breaches any of its agreements, covenants,
representations and warranties hereunder, provided, that Seller shall have
thirty (30) days following written notice of such breach describing the breach
with reasonable specificity, in which to cure any non-monetary default and five
(5) days in which to cure any monetary default.
17. Arbitration. Except for emergency relief, injunctive or otherwise,
any controversies or arguments arising out of or relation to this Agreement or
beach thereof shall be settled by arbitration in Jacksonville, Florida, in
accordance with the rules then existing of the American Arbitration Association
and judgment under the Award rendered may be entered in any court having
jurisdiction thereof. For emergency relief, injunctive or otherwise, the parties
hereby consent to the jurisdiction of the Circuit Court of Xxxxx County, Florida
subject to the rights of removal if applicable, to Federal Jurisdiction. The
parties hereby waive any objection to jurisdiction and venue of any action
instituted hereunder, agree not to assert any defense
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based on lack of jurisdiction or venue and consent to the granting of such legal
or equitable relief as is deemed appropriate by the Court.
18. Entire Agreement. This Agreement constitutes the entire agreement
between the parties. No prior or contemporaneous representations, whether oral
or written not contained herein, shall be of any effect. This Agreement shall
not be modified, changed or altered in any respect, except in writing, executed
by both parties.
19. Duplicate Originals. This Agreement may be executed in one or more
counterparts, each of which shall be deemed a duplicate original, and all of
them shall constitute one and the same Agreement; provided that it shall only be
necessary to produce' one duplicate of the Agreement for proof.
20. Removal of Mortgage Loans from Inclusion Under the Agreement Upon
Pass-Through Transfer or Whole Loan Transfer or One or More Reconstitution Date.
The Purchaser and the Seller agree that with respect to some or all of the
Mortgage Loans, from time to time the Purchaser may effect a Pass-Through
Transfer or Whole Loan Transfer.
The Seller shall, at the expense of the Purchaser (which shall
be limited to the reimbursement of the Seller's reasonable out-of-pocket
expenses) cooperate with the Purchaser in connection with any Pass-Through
Transfer or Whole Loan Transfer contemplated by the Purchase pursuant to this
Section 20. In that connection, the Seller shall provide to Purchaser any and
all information and appropriate verification of information which may be
reasonably available to Seller, whether through letter or its auditors and
counsel, certificates of public officials or officers of the Seller, or
otherwise, as the Purchaser shall reasonably request for use in any disclosure
document, and as are customary, in connection with residential mortgage
securitization transactions or whole loan transactions, as the case maybe.
Notwithstanding anything set forth in this Section, the
Purchaser may, in its sole discretion, effect one or more Pass-Through Transfers
or Whole Loan Transfers, without retaining the Seller as servicer thereunder. In
such instance, the Seller shall comply with all of the other applicable
requirements set forth in this Section, provided that, the Seller shall have no
servicing rights or origination under any Reconstitution Agreement.
21. Miscellaneous. The rights and obligations of the Seller under this
Agreement shall not be assigned by the Seller without the prior written consent
of the Purchaser. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part to an affiliate or, to any person as may be
required to effect any Whole Loan Transfer or Pass-Through Transfer, by written
notice to Seller, without the consent of Seller, and the related assignee shall
thereupon succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
This Agreement supersedes all prior agreements and understandings relating to
the subject matter hereof. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by the Seller to the Purchaser as provided in
Section 2 hereof be, and be construed as, a sale of the Mortgage Loans by the
Seller to the Purchaser and not as a pledge of the Mortgage Loans by the Seller
to the Purchaser to secure a debt or other obligation of the Seller.
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However, in the event that, notwithstanding the aforementioned intent of the
parties, the Mortgage Loans are held to be property of the Seller, then (a) it
is the express intent of the parties that such conveyance be deemed a pledge of
the Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller and (b) (I) this Agreement shall also be deemed to be a
security instrument within the meaning of Articles 8 and 9 of the applicable
Uniform Commercial Code; (2) the conveyance provided for in Section 3 of this
Agreement shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in or lien on all of the Seller's right, title and interest in
and to the Mortgage Loans and all amounts payable to the holders of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property; (3) the possession by the Purchaser or its agent of mortgage
notes, the related mortgages and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-305 of the applicable Uniform Commercial Code;
and (4) notifications to persons holding such property, and acknowledgment,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgment, receipt or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser for the
purpose of perfecting such security interest of lien under applicable law. Any
assignment of the interest of the Purchaser, pursuant to this Agreement shall
also be deemed to be an assignment of any security interest created hereby. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in or lien on the Mortgage Loans, such
security interest or lien would be deemed to be a perfected security interest or
lien of first priority under applicable law and will be maintained as such
throughout the term of the Agreement.
22. Closing Conditions. The closing for the purchase and sale of the
Mortgage Loans shall take place on the Closing Date. The closing shall be by
telephone, confirmed by letter or wire as the parties shall agree.
The closing for the Mortgage Loans to be purchased on the
Closing Date shall be subject to each of the following conditions:
(a) all of the representations and warranties of the
Seller under this Agreement shall be true and correct as of the Closing Date;
(b) the Purchaser shall have received, or the
Purchaser's attorneys shall have received in escrow, all Closing Documents as
specified in Section 23, in such forms as are agreed upon and acceptable to the
Purchaser, duly executed by all signatories as required pursuant to the terms
hereof;
(c) all other terms and conditions of this Agreement
shall have been complied with;
(d) The result of the examination and audit performed
by the Purchaser pursuant to Section 2.5 hereof shall be satisfactory to the
Purchaser in its sole determination;
(e) All other terms and conditions of this Agreement
required to be complied with on or before the Closing Date shall have been
complied with and the Seller and
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the Purchaser shall have the ability to comply with a]l terms and conditions and
perform all duties and obligations required to be complied with or performed
after the Closing Date; and
(f) The Purchaser shall receive from the warehouse
lender the Mortgage File and Mortgage Loan Documents related to each Mortgage
Loan listed on the Mortgage Loan Schedule for the Closing Date.
23. Closing Documents
23.1 On the first Closing Date, the Seller shall deliver to
EquiCredit Corporation of America, Attention: Xxxxxx Hanapel, Senior Vice
President, in escrow fully executed originals of:
(a) this Agreement, executed by the Seller in four
counterparts; and
(b) an Officer's Certificate, in the form of Exhibit
4 hereto, including all attachments thereto.
(c) A Power of Attorney, in the form of Exhibit 2
hereto.
(d) A cross receipt dated the Closing Date
substantially in the form of Exhibit 5 duly executed by Purchaser and Seller.
(e) An Interim Servicing Agreement, in the form of
Exhibit 6.
(f) All deliverables as set forth in Section 3.2.
(g) A bailee letter substantially in the form of
Exhibit 7.
23.2 On each subsequent Closing Date, Seller shall deliver a
letter agreement confirming that such sale of the Mortgage Loan Pool described
in such related Mortgage Loan Schedule is subject to the terms of this
Agreement, together with a Xxxx of Sale, and the items referenced in Sections
23.1(1,), 23.1(c), 23.1(d), 23.1(f) and 23.1(g).
24. Costs. The Seller shall pay any commissions due its salesmen, the
legal fees and expenses of its attorneys, all document shipping fees and
expenses, and the cost of preparing endorsements and assignments with respect to
the Mortgage Loans. The Purchaser shall pay for the legal fees and expenses of
its attorneys and for Purchaser's custodial fees and expenses.
25. Confidentiality. Each of the Purchaser and the Seller shall employ
proper procedures and standards designed to maintain the confidential nature of
the terms of this Agreement, except to the extent: (a) the disclosure of which
is reasonably believed by such party to be required in connection with
regulatory requirements or other legal requirements relating to its affairs;
(1,) disclosed to any one or more of such party's employees, officers,
directors, agents, attorneys or accountants who would have access to the
contents of this Agreement and such data and information in the normal course of
the performance of such person's duties for such party, to the extent such party
has procedures in effect to inform such person of the confidential nature
thereof; (c) that is disclosed to any person in connection with the resale or
proposed resale of all or a portion of the Mortgage Loans by such party in
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accordance with the terms of this Agreement; and (d) that is reasonably believed
by such party to be necessary for the enforcement of such party's rights under
this Agreement.
26. Servicing. The Seller hereby represents to the Purchaser that the
Mortgage Loans are serviced by the Seller or subject to servicing agreements
with third parties which may be terminated without cause, and it is understood
and agreed between the Seller and the Purchaser that the Mortgage Loans are to
be delivered to the Purchaser on the Transfer Date free and clear of any
servicing agreements with third party servicers. Seller covenants to Purchaser
that it will service the Mortgage Loans in accordance with the Interim Servicing
Agreement. Seller represents and warrants that it or its third party servicer
has serviced the Mortgage Loans in compliance with the requirements of all
federal, state and local laws, and has observed those mortgage servicing
practices of prudent mortgage lending institutions which service mortgage loans
of the same type as the Mortgage Loans in the jurisdiction where the related
Mortgaged Property is located, with a view towards the maximization of timely
recovery of principal and interest for each Mortgage Loan and to the best
interests of the owner thereof.
27. No Broker. Seller covenants that there has been no broker or agent
involved in this transaction, and that to the extent there is any compensation
owing to any broker, dealer or agent, that Seller shall be responsible for
paying such fees.
28. Acquisition by Affiliate. Purchaser may designate that certain
Mortgage Loans acquired under this Agreement be acquired in the name of its
affiliate NationsCredit Home Equity Services, Inc. ("NationsCredit"). With
respect to any Mortgage Loans which have been so designated and acquired; the
full benefits of this Agreement shall insure to NationsCredit as if it were a
party thereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
Westmark Mortgage Corporation
By: /s/ Xxxxxx Story, III
----------------------------
Its: President/COO
----------------------------
EQUICREDIT CORPORATION OF AMERICA
By:
----------------------------
Its:
----------------------------
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Addendum to Existing Mortgage Loan Sale Agreement (1st Payment)
March 13, 2000
Company Name: Westmark Mortgage Corporation
Officer Name: Xxxxxx Story III
Address: 0000 Xxxxx Xxxxxxx Xxx.
Xxxx, Xxxxx Xxx: Xxxx Xxxxx, XX 00000
Effective with loans which are purchased after March 1, 2000,
EquiCredit Corporation of America ("EquiCredit") will require Westmark Mortgage
Corporation ("Seller") to repurchase any loan for which the mortgagor shall fail
to make the scheduled monthly payment due in the calendar month following the
date in which the loan is purchased. EquiCredit will notify Seller of any loans
for which repurchase is required within sixty days of the occurrence giving rise
to a repurchase obligation. Repurchase shall be completed within thirty days.
The repurchase price shall be equal to the original purchase price of the loan,
including any premium together with accrued unpaid interest at the note rate to
the date of repurchase.
This letter shall be deemed to amend and be a part of the existing
agreement for purchase and sale of Mortgage loans between the parties. In order
to prevent any delay in funding sales, please acknowledge your acceptance of the
foregoing by returning a countersigned copy of this letter by March 1, 2000.
Sincerely,
hereby accepts and agrees to the terms of this letter this 13th day of
------------------------- March, 2000.
(Lender's name)
-------------------------
Name:
Title:
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EXHIBIT 2
POWER OF ATTORNEY
Reference is made to Mortgage Loan Purchase and Sale Agreement
("Agreement") executed and delivered on March 13, 2000, by and between Westmark
Mortgage Corporation. a California corporation, which is located at 0000 Xxxxx
Xxxxxxx Xxx. Xxxx Xxxxx, XX 00000 ("Seller") and EquiCredit Corporation of
America, a Delaware corporation, which is located at 00000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Purchaser").
In accordance with the Agreement, Seller hereby constitutes Purchaser,
its successors and assigns, as Seller's Attorney-in-Fact, to endorse and collect
any checks or other forms of payment received from Mortgagor, or any other
Persons under the Mortgage Loans sold by Seller to Purchaser under the
Agreement; and to endorse and sign any documents necessary to assign, transfer,
extend, release or otherwise carry out the intent of the Agreement with respect
to notes, mortgages, or other instruments related to a Mortgage Loan.
The foregoing authority is automatically revoked with respect to any
Mortgage Loan that Seller has repurchased from Purchaser effective upon the date
of such repurchase.
Except as set forth herein, the foregoing powers are irrevocable
notwithstanding any reason whatever, including, without limitation, Seller's
dissolution, merger, consolidation or any other change in Seller.
The capitalized terms shall have same meaning as in the Agreement.
In Witness Whereof, Seller has caused its name to be subscribed hereto
by its President this 13th day of March, 2000.
ATTEST: By:
---------------------------- ------------------------
Its:
-----------------------
(a) this person signed, sealed and delivered the attached
document as President of the corporation named in
this document;
(b) the proper corporate seal was affixed; and
(c) this document was signed and made by the corporation
as its voluntary act and deed by virtue of authority
from its Board of Directors.
----------------------------
SEAL NOTARY PUBLIC
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EXHIBIT 4
FORM OF SELLER'S OFFICER'S CERTIFICATE
I, Xxxxxx Story III, hereby certify that I am a duly elected President
and Chairman of Westmark Mortgage Corporation, a California corporation (the
"Seller"), and further certify, on behalf of the Seller as follows:
1. Attached hereto as Attachment I are a true and correct copy of the
Certificate of Incorporation and by-laws of the Seller as are in full force and
effect on the date hereof. No event has occurred which has affected the good
standing of the Seller under the laws of the state of its incorporation.
2. No proceedings bolting toward liquidation, dissolution or bankruptcy
of the Seller or a merger pursuant to which the Seller would not be the
surviving entity are pending or contemplated.
3. Each person who, as an officer or attorney-in- fact of the Seller,
signed (a) the Mortgage Loan Sale Agreement (the "Sale Agreement"), dated March
13, 2000, by and between the Seller and EquiCredit Corporation of America, as
Purchaser, and (b) any other document delivered prior hereto or on the date
hereof in connection with the sale and servicing of the Mortgage Loans in
accordance with the Sale Agreement was, at the respective times of such signing
and delivery, and is, as of the date hereof, duly elected or appointed,
qualified and acting as such officer or attorney-in-fact, and the signatures of
such persons appearing on such documents are their genuine signatures.
4. All of the representations and warranties of the Seller contained in
Subsections 5.1 and 5.2 of the Sale Agreement were true and correct in all
material respects as of the date of the Sale Agreement and are true and correct
in all material respects as of the date hereof.
5. The Seller has performed all of its duties and has satisfied all the
material conditions on its part to be performed or satisfied prior to the
Closing Date pursuant to the Sale Agreement.
All capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Sale Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Seller.
Dated: March 13, 2000
Westmark Mortgage Corporation
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I, __________________. a notary of Palm Beach County hereby certify
that ________________________ is a duly elected, qualified and acting President
of the Seller and that the signature appearing above is such person's genuine
signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:
----------------------------
[Seal]
----------------------------
By:
-------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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