EXHIBIT 10.72
MORTGAGE LOAN PURCHASE AGREEMENT
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This is a Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
May 28 1997, by and between SAXON MORTGAGE, INC., a Virginia corporation,
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("Saxon" or the "Purchaser"), and PAN AMERICAN BANK, FSB (the "Seller").
RECITALS
1. The Seller desires to sell certain mortgage loans (the "Mortgage Loans")
to the Purchaser and the Purchaser desires to purchase such Mortgage Loans from
the Seller.
2. The parties intend hereby to set forth the terms and conditions upon
which the transaction will be effected.
AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties hereto agree as follows:
SECTION 1. Definitions. Whenever used herein, the following words and
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phrases, unless the context otherwise requires, shall have the following
meanings.
Borrower: Each person liable as maker of the Note evidencing the related
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Mortgage Loan or executing the Mortgage securing such Loan.
Certified Copy: A photocopy bearing a certificate signed by an officer of
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Seller, or, in the case of recorded documents, signed by the title company or
the escrow/settlement agent responsible for recording such document, certifying
that such copy represents a true and correct reproduction of the original of
such document and, in the case of any recorded document, that such original has
been sent for recordation in the appropriate jurisdiction.
Closing Date: May 28, 1997, (or, if no different date has been specified
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the preceding blank space, the date of this Agreement) or as soon thereafter as
the conditions to payment of the Purchase Price contained in this Agreement can
be met; the actual date of payment of the Purchase Price shall be deemed to be
the Closing Date.
Cut-off Balance: As to each Mortgage Loan, the scheduled unpaid principal
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balance thereof as of the close of business on the Cut-off Date after
application of (i)
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scheduled payments of principal due on or before the Cut-off Date, whether or
not collected, and (ii) all other recoveries of principal collected on or before
the Cut-off Date.
Cut-off Date: The first day of the month in which the Closing Date occurs.
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FHLMC: The Federal Home Mortgage Corporation, or any successor thereto.
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FNMA: The Federal National Mortgage Association, or any successor thereto.
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Mortgage or Security Instrument: A valid mortgage, deed of trust, or other
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form of security instrument customary under the laws and practices of the
Property State for the purpose of creating a voluntary lien on residential real
estate.
Mortgage Loan or Loans: The mortgage loans to be delivered to the Purchaser
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pursuant to this Agreement, as more particularly described in the schedule of
Mortgage Loans attached to this Agreement as Exhibit 3, and the documents
relating to each such loan required to be delivered pursuant to the Saxon
Shipping Manual.
Mortgage File: As to each Mortgage Loan, a file containing all of the
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documents relating to each such Mortgage Loan required to be delivered pursuant
to this Agreement.
Mortgage Note: The note evidencing each Mortgage Loan indebtedness.
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Mortgaged Premises: The property described in the Mortgage as securing the
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Mortgage Loan.
Originator: The Seller, or, as to a Mortgage Loan originated by an entity
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other than the Seller, such other originator.
Property State: The jurisdiction in which the Mortgaged Premises are
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located.
Purchase Price:Purchase Price Percentage: See Section 2(b) hereof.
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Saxon Shipping Manual. The manual setting forth Saxon's general document
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shipping requirements entitled the "Saxon Shipping Manual" as provided to Seller
on or before the date of this Agreement .
Servicing Transfer Effective Date: If the Closing Date occurs 16 or more
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days prior to the end of a calendar month, the Servicing Transfer Effective Date
shall be the FIRST day of the month immediately following the month in which the
Closing Date occurs; if the Closing Date occurs fewer than 16 days prior to the
end of a calendar month, the Servicing Transfer Effective Date shall be the
first day of the SECOND month following the month in which the Closing Date
occurs.
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SECTION 2. AGREEMENT TO SELL AND PURCHASE.
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(a) Pursuant to the terms of this Agreement, the Purchaser agrees to
purchase and the Seller hereby agrees to sell, transfer, assign set over and
convey to the Purchaser, without recourse but subject to the terms of this
Agreement, all right, title and interest of the Seller in and to the Mortgage
Loans.
(b) The purchase price for the Mortgage Loans (the "Purchase Price") shall
be equal to the Cut-off Balance of each Mortgage Loan, multiplied by the
percentage of par (the "Purchase Price Percentage") agreed upon by the parties
pursuant to that certain Commitment Letter to the Seller from the Purchaser,
dated as of May 22, 1997 (the "Commitment Letter") a copy of which is attached
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hereto as Exhibit 1, plus accrued interest on each Mortgage Loan at the interest
rate provided in each related Mortgage Note from the Cut-off Date through the
day prior to the Closing Date.
The Purchaser shall be entitled to (1) all principal and interest due after
the Cut-off Date, (2) all other recoveries of principal collected after the
Cut-off Date, provided, however, that all scheduled payments of principal due on
or before the Cut-off Date and collected thereafter shall belong to the Seller.
(c) This sale of the Mortgage Loans shall be made on a "servicing released"
basis and shall constitute a transfer by the Seller to the Purchaser of all
rights of every kind with respect to the servicing of each Mortgage Loan. This
transfer of the servicing rights to the Purchaser will be effective as of the
Servicing Transfer Effective Date. In the interim between the Closing Date and
the Servicing Transfer Effective Date, the Seller will service the Mortgage
Loans in accordance with FNMAI/FHLMC guidelines. Seller shall deliver to each
Borrower the notice of transfer of servicing required by law (commonly known as
the "goodbye letter") no fewer than 15 days prior to the Servicing Transfer
Effective Date.
(d) Upon request of Saxon, Seller agrees to refund to Saxon any above-par
portion of the Purchase Price of any Mortgage Loan which refinances for any
reason within six (6) months of sale by Seller to Saxon, provided, however, that
the amount of the above-par portion to be refunded shall be offset by the amount
of any prepayment penalty received by Saxon respecting such loan.
SECTION 3. TRANSFER AND DELIVERY OF DOCUMENTS AND OTHER INFORMATION.
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A. Ownership of each Mortgage Loan, and the related Mortgage File, shall be
transferred to Purchaser upon payment of the Purchase Price. Seller shall also
provide a schedule setting forth the following information with respect to each
Mortgage Loan: (1) Mortgage Loan number, (2) Borrower name and address, (3)
occupancy type, (4) Mortgage Loan purpose, (5) first payment date, (6) original
loan-to-value (LTV) ratio, (7) original balance, (8) Cut-off Balance, (9)
documentation type, (10) date through which
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the Loan is paid, (11) original term to maturity, and (12) the Note interest
rate as of the Cut-off Date.
Each Mortgage File shall contain the following documents for the related
Mortgage Loan provided, however, that if the original of any document specified
in Paragraphs 2, 3, or 4 of this Section has been sent for recording and not yet
returned, a Certified Copy thereof shall be delivered at closing. Seller shall
cause the original of each such document to be delivered to the Purchaser as
soon as it is available bearing evidence of such recordation, but in any event
on or before six (6) months after the closing of this sale, or upon demand of
Purchaser, repurchase the Mortgage Loan at the Repurchase Price calculated
pursuant to Section 6(b) hereof:
1. Original executed Note, together with the original of any surety
agreement or guaranty agreement relating to the Note or any such assumption
agreement, endorsed without recourse to the order of "Texas Commerce Bank
National Association, as Custodian," which acts as custodian for the Purchaser,
together with the original of any and all of the following which exist with
respect to the Note:
. Conversion option agreement
. Buydown Agreement
. Modification agreement or any other agreement affecting Note terms
. Surety or guarantee agreement
. Any power of attorney used in executing the Note.
2. An original Mortgage creating a valid lien upon the Mortgage Premises to
secure the Mortgage Note, and bearing evidence that such Mortgage has been duly
recorded in the appropriate public records depository for the jurisdiction in
which the Mortgaged Premises are located (the "Appropriate Recording Location");
3. An "original Mortgage assignment", assigning the Mortgage to the
Purchaser's custodian, "Texas Commerce Bank National Association, as the
Custodian", bearing evidence of recordation in the Appropriate Recording
Location and which has been prepared and executed in accordance with the laws in
effect in such Location. Additionally, the Seller shall deliver to the Purchaser
original or Certified Copies of any intervening mortgage assignments, bearing
such evidence of recordation, which establish a complete chain of title from the
originator of the Mortgage to the Seller;
4. If any power of attorney was used in connection with the Mortgage, the
recorded original of such power attorney. If any assumption agreement,
modification agreement, or other agreement affecting terms of the Mortgage
exists in connection with the Mortgage Loan, the recorded original of such
agreement;
5. As to each Mortgage Loan, a lender's title insurance policy satisfying
the requirements of Section 4(23) of this Agreement, or if all conditions for
issuance of such
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a policy have been met, but the policy has not been issued, a written commitment
binder, or other form of preliminary documentation for such a policy as
customarily issued by title insurers and relied upon by institutional mortgage
lenders in the Property State. Seller shall either deliver the original lender's
title insurance policy to the Purchaser on or before 90 days after the closing
of this sale, or upon demand of Purchaser repurchase the Mortgage Loan;
6. As to each Mortgage Loan on which a mortgage insurance policy was
required at origination, the original mortgage insurance policy, issued by the
applicable insurer;
7. A hazard insurance policy satisfying the requirements of Section 4(10)
and 4(12) of this Agreement or a certificate of insurance issued by the insurer
certifying that a such a hazard insurance policy is in effect as to the
Mortgaged Premises;
8. If the Mortgaged Premises are located is a Special Flood Hazard Area
participating in a flood insurance program, a certificate of insurance issued by
the insurer certifying that a flood insurance policy meeting FNMA guidelines is
in effect as to the Mortgaged Premises in the lesser of the amount of the
Mortgage Loan or the maximum available amount under such insurance program;
otherwise; evidence of a "life-of-loan" flood hazard tracking service or other
documents as necessary to enable compliance with applicable laws relating to
flood insurance;
9. An original report of appraisal of the Mortgaged Premises, or a Certified
Copy of the original;
10. An original settlement statement, on the form approved by the Department
of Housing and Urban Development ("HUD") executed in connection with the
Mortgage Loan in the manner required by HUD-administered laws and regulations,
or, if the original thereof is not available or if any such statement is not
signed by any required party, a Certified Copy thereof;
11. All other Mortgage Loan documents relating to the Mortgage Loan required
to be delivered pursuant to the Saxon Shipping Manual.
B. As to any Mortgage Loan on which one or more payments have been received,
Seller shall deliver complete payment histories, escrow/impound account records,
copies of any written communications with or on behalf of the borrower, and all
other servicing records reasonably requested by Purchaser to evaluate or perform
such servicing.
SECTION 4. REPRESENTATION AND WARRANTIES OF SELLER.
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As a material inducement to the Purchaser to enter into this Agreement, the
Seller makes the following representations and warranties to the Purchaser and
to Purchaser's
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successors and assigns, each of which shall survive closing of this sale, and
shall not be merged into the documents executed at such closing:
Company Representation and Warranties.
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The Seller represents and warrants to the Purchaser that as the Closing Date:
(a) The Seller has not dealt with any broker or agent or anyone else who
might be entitled to a fee or commission in connection with such sale other
that the Purchaser or any of its affiliates;
(b) The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State set forth in the Seller's Officer's
Certificate attached hereto as Exhibit B, with file corporate power necessary
to carry on its business as now being conducted; the Seller has the file
corporate power and authority to execute and deliver this Agreement and to
perform in accordance herewith; the execution, delivery and performance of 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; this Agreement
evidences the valid, binding and enforceable obligation of the Seller; and all
requisite corporate action has been taken by the Seller to make this Agreement
valid and binding upon the Seller in accordance with its terms;
(c) The consummation of the transactions contemplated by this Agreement is
in the ordinary course of business of the Seller, and the transfer, assignment
and conveyance of the Notes and the Security Instruments by the Seller pursuant
to this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(d) Neither the execution and delivery of this Agreement, the sale of any
Mortgage Loan to the Purchaser, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any provision of the Seller's charter or by-laws or any legal restriction or
any material agreement to which the Seller is now a party or by which it is
bound, or result in the violation of any law, rule, regulation, order, judgment
or decree to which the Seller or its property is subject, or impair the value of
any such Loan;
(e) There is no action, suit, proceeding or investigation pending or to the
Seller's knowledge threatened against the Seller that, either in any one
instance or in the aggregate, may result in any material adverse change in the
business, operations, financial condition, 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 that would draw into question the validity of this
Agreement or any Mortgage Loan or of any action taken or to be taken in
connection
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with the obligations of the Seller contemplated herein, or that would be likely
to impair materially the ability of the Seller to perform under the terms of
this Agreement;
(f) The Seller is the sole owner of each Mortgage Loan, free and clear of
any adverse claim or security interest, and has the full right to sell each
Mortgage Loan to the Purchaser, together with any rights with respect to the
servicing of each Mortgage Loan following the closing date sold pursuant to this
Agreement;
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement or
the sale of each Mortgage Loan as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such approval has
been obtained prior to the closing date;
(h) The Seller used no selection procedures adverse to the interests of
Purchaser in selecting each Mortgage Loan from among the outstanding residential
mortgage loans in its portfolio as to which the representations and warranties
in this Agreement could be made;
(i) The Seller will treat the disposition of each and all Mortgage Loans as
sales of assets for financial accounting and reporting purposes;
(j) The Seller is an experienced seller/servicer of residential mortgage
loans, with the facilities, procedures, and experienced personnel necessary to
service each Mortgage Loan in accordance with industry standards. In the event
any Mortgage Loan is required by the terms of the Commitment Letter to conform
origination guidelines of FNMA or FHLMC (each an "Agency"), Seller is approved
and is in good standing, to sell and service mortgage loans for such Agency, and
no event has occurred, including but not limited to a change in insurance
coverage, which would make the Seller unable to comply with such Agency's
eligibility requirements or which would require notification to such Agency;
(k) The Seller does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in this
Agreement;
(l) To the best of Seller's knowledge, neither this Agreement nor any
statement, report or other document furnished or to be furnished pursuant to
this Agreement or in connection with the sale of any Loan or Loans to Saxon
contains any materially untrue statement of fact or omits to state a fact
necessary to make the statements contained therein not misleading;
(m) Each of Seller's financial statements delivered to the Purchaser fairly
present the pertinent results of operations and have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods
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involved, except as set forth in the notes thereto. There has been no change in
the business, operations, financial condition, properties or assets of the
Seller since the date of the Seller's financial statements that would have a
material adverse effect on its ability to perform its obligations under this
Agreement;
(n) The consideration received by the Seller upon the sale of each Mortgage
Loan under this Agreement constitutes fair consideration and reasonably
equivalent value for the Mortgage Loans;
(o) Seller is solvent, and the sale of the Mortgage Loans individually and
in the aggregate, will not cause the Seller to become insolvent. No sale of the
Mortgage Loans to Saxon is undertaken with the intent to hinder, delay or
defraud any of the Seller's creditors.
Seller Representations and Warranties Regarding Individual Mortgage Loans.
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As to each Mortgage Loan, the Seller hereby represents and warrants to the
Purchaser that, as of the Closing Date:
(1) Mortgage Loans as Described. The information set forth in the schedule
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of Mortgage Loans, if any, attached hereto or to any Bulk Purchase Agreement
between the parties is complete, true and correct in all material respects. Any
photocopy delivered to Saxon purporting to be a copy of a Note or other Mortgage
Loan document is certified by Seller to be a true copy of the document
represented therein;
(2) Note Calculations and Terms. The Note related to the Mortgage Loan is
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payable on the first day of each month in equal monthly installments of
principal and interest, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date,
over an original term from commencement of amortization of not more than 30
years. If the Mortgage Loan provides for an adjustable rate of interest, all
blank spaces in the Note relating to change dates, calculation of changes, and
limits on interest rate changes have been correctly filled in; and the index is
correctly defined. Any blank space in the Note relating to the late change for
overdue payments has been correctly filled in;
(3) Payment Status. All payments required to be made prior to the
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Closing Date for the Mortgage Loan under the terms of the Note have been made,
and no payment has been 30 days delinquent more than once in the past 12 months;
(4) No Defaults. There is no default, breach, violation or event of
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acceleration existing under the Security Instrument or the 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 neither the Seller nor its predecessors have waived any
default, breach, violation or event of acceleration;
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(5) No Outstanding Charges. There are no defaults in complying with the
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terms of the Security Instrument, and all taxes, governmental assessments,
insurance premiums, leasehold payments or ground rents which previously became
due and owing have been paid, or an escrow of funds has been established and
delivered to Saxon 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. The
Seller has not advanced funds or induced, solicited or knowingly received any
advance of funds by a party other than the Borrower, directly or indirectly, for
the payment of any amount required under the Mortgage Loan, except for interest
accruing from the date of the Note or date of disbursement of the Mortgage Loan
proceeds, whichever is later, to the day which precedes by one month the due
date of the first installment of principal and interest;
(6) Original Terms Unmodified. The terms of the Note and Security
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Instrument have not been impaired, waived, altered or modified in any respect,
except by a written instrument which has been recorded, if necessary to protect
the interests of the Purchaser, and which is contained in the Mortgage File for
each Mortgage Loan to be delivered to Saxon. The substance of any such waiver,
alteration or modification has been approved by the issuer of any related
mortgage insurance policy and the title insurer, to the extent required by such
policies, and its terms have been disclosed to Saxon. No Borrower has been
released, in whole or in part, except in connection with an assumption agreement
approved by the issuer of any related mortgage insurance policy and the title
insurer, to the extent required by such policies, and which assumption agreement
is part of the related Mortgage File delivered to Saxon. Any prepayment penalty
set forth in the terms of the Note has not been waived or limited and remains in
force according to its terms;
(7) No Fraud in Origination. The Seller has not, and no borrower, appraiser,
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broker, or person verifying income, assets, or employment of any borrower has
made any false or intentionally misleading statement of material fact, or
intentionally withheld information necessary to prevent any such statement from
being misleading, in connection with the approval or origination of the Mortgage
Loan. Seller has not failed to disclose to Saxon any material fact known to
Seller in connection with the Mortgage Loan;
(8) No Defenses. The Mortgage Loan is not subject to any right of
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rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Note of 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 without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto. Seller has no
knowledge that any mortgagor intends to assert any such defense; and Seller has
no knowledge that any person liable on the Mortgage Loan was a debtor under any
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bankruptcy or insolvency law at the time the Mortgage Loan was originated, or
has become such a debtor since origination;
(9) Authority and Licensing. At all relevant times the originator of the
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Mortgage Loan was duly organized, validly existing and in good standing in its
state of incorporation, and fully authorized to do business in the State in
which the mortgage premises are located under any applicable state law regarding
doing business. The Mortgage Loan was originated in compliance with any
applicable state or local law regarding doing business, and the licensing of
mortgage brokers and/or lenders. At all relevant times all acts of officers
acting or purporting to act on behalf of the Seller and the originator, if
different from the Seller, in the origination of the Mortgage Loan, the
execution of documents, and the performance of any other act pursuant to this
Agreement have been duly and validly authorized, and shall be deemed to have
been expressly ratified and confirmed;
(10) Hazard Insurance. All buildings or other, improvements upon the
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Mortgaged Premises are insured against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where the Mortgaged
Premises is located pursuant to insurance policies issued by insurers having a
current rating by Best's Insurance Reports of BIVI or better, and providing for
no deductible in excess of the lesser of $1,000 or 1% of the applicable amount
of coverage;
(11) Flood Insurance. If upon origination of the Mortgage Loan, the
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Mortgaged Premises were 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 in the Mortgaged Premises' jurisdiction,
a flood insurance policy meeting FNMA guidelines in effect at the time of
origination is in effect. If at such time the Mortgaged Premises was not located
in such an area, Seller has obtained a life-of-loan flood certification with
respect to the Mortgaged Premises and has delivered the documentation related
thereto with each Mortgage Loan;
(12) Hazard and Flood Policies. All individual insurance policies contain a
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standard mortgagee clause naming the Seller and its successors and assigns as
Mortgagee, and all premiums thereon have been paid. The Security Instrument
obligates the borrower thereunder to maintain the insurance policy at the
borrower's cost and expense, and on the borrower's failure to do so, authorizes
the holder of the Security Instrument to obtain and maintain such insurance at
such borrower's cost and expense, and to seek reimbursement therefor from the
borrower. The Seller has not engaged in, and has no knowledge of the borrower's
or any services' having engaged in, any act or omission which would impair the
coverage of any such policy. Seller is not affiliated with any insurance agent
or broker which received compensation in connection with any such policy, and
Seller has not and will not receive any payment or thing of value in connection
with the issuance of any such policy;
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(13) Appraisal. Seller has delivered to Purchaser an appraisal of the
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Mortgaged Premises signed prior to the approval of the Mortgage Loan application
by a qualified appraiser, duly appointed by the Seller, who had no interest,
direct or indirect in the Mortgaged Premises or in any loan made on the
security thereof; and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan. The determination of value of the Mortgaged
Premises contained in such appraisal was determined in substantial compliance,
in all material respects, with Uniform Standards of Professional Appraisal
Practice;
(14) ARM Disclosure. If the Mortgage Loan provides for an adjustable rate of
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interest, an adjustable rate mortgage disclosure ("ARM Disclosure") has been
provided to the borrower as required by the federal truth-in-lending laws
("TILA") and a copy of the ARM Disclosure is contained in the Mortgage File for
each Mortgage Loan to be delivered to Saxon. All material terms of the Arm
Disclosure are correct and consistent with the Note;
(15) No Satisfaction of Security Instrument. The Security Instrument has not
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been satisfied, canceled, subordinated or rescinded, in whole or in part, and
the Mortgaged Premises have not been released from the lien of the Security
Instrument, in whole or in part, nor has any instrument been executed that would
effect any such release, cancellation, subordination or rescission;
(16) Location and Type of Mortgage Property. The Mortgage Loan is secured by
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real property improved with a detached single family residence, other dwelling,
or a two-to-four-family dwelling constituting an eligible type of Mortgaged
Premises under Saxon's Underwriting guidelines. If the Mortgage Loan is secured
premises containing a manufactured home, such Loan is identified as such in the
Mortgage Loan Schedule. No portion of the Mortgage Premises is used for
commercial purposes;
(17) Valid Lien. The Security Instrument is a valid and enforceable lien on
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the Mortgaged Premises, including all improvements thereon, subject only to the
lien of current real property taxes, assessments not yet due and payable, and to
covenants, conditions and restrictions, rights of way, easements and other
matters acceptable to mortgage lending institutions generally and specifically
referred to in the lender's title insurance policy which do not adversely affect
the appraised value of the Mortgaged Premises; do not materially interfere with
the residential use, enjoyment, value, or marketability of the related Mortgaged
Premises; and are not identified in Saxon's underwriting guidelines as
unacceptable title exceptions.
If the Loan has been expressly offered to and accepted by Saxon as a second
lien Mortgage Loan, then the Security Instrument is subject to only to only one
prior mortgage lien; otherwise the Loan is not subject to any other mortgages,
deeds of trust, or similar liens. To the best of the Seller's knowledge, as of
the date of origination of the Mortgage Loan, the Mortgaged Preniises were not
subject to any lien subordinate to the
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lien of the Security Instrument, except as specifically set forth in the related
title insurance policy or binder;
(18) Mortgage Documents and Execution. If the Mortgage Loan is an adjustable
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interest mortgage ("ARM"), the Note is of a form identical to that prescribed by
Purchaser for the applicable ARM program. If the Mortgage Loan is a fixed rate
loan, the Note is of FNMA/FHLMC Form 3200 or other form acceptable to those
agencies. The Security Instrument is of a form acceptable to FNMA and FHLMC for
first liens (or, if the Loan has been expressly offered to and accepted by Saxon
as a second lien Mortgage Loan, the form is acceptable to FNMA and FHLMC for
second liens). The Note and the Security Instrument are genuine, and each is the
legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms subject to bankruptcy, reorganization or other similar
laws. All parties to the Note and the Security Instrument had legal capacity to
enter into the Mortgage Loan and to execute and deliver the Note and the
Security Instrument, and no party was induced to do so by fraud, duress, or
undue influence;
(19) Full Disbursement of Proceeds. The proceeds of the Mortgage Loan have
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been fully disbursed, and there is no requirement for future advances
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. Any advances of proceeds prior to the Cut-Off Date have been
consolidated with the outstanding principal amount secured by the Security
Instrument. All costs, fees and expenses incurred in making or closing the
Mortgage Loan and the recording of the Security Instrument were paid, and the
Borrower is not entitled to any refund of any amount paid or due under the
Note or Security Instrument;
(20) Ownership: Third Party Interests. Immediately prior to the sale of the
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Mortgage Loan to the Purchaser, the Seller will be the sole owner of, and will
have good and marketable title to, the Mortgage Loan, subject to no prior lien,
mortgage, security interest, participation interest, pledge, claim, charge or
other encumbrance. On the date of sale to Saxon, the Mortgage Loan will be duly
and validly assigned, and the related Notes will be endorsed, in the manner
required by Saxon's published shipping instructions. The Mortgage Loan is not
subject to any servicing or subservicing agreement with any third party as of
the Closing Date;
(21) Doing Business. All parties which have had any interest in the Mortgage
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Loan, whether as mortgagee, assignee, pledgee, Seller or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (a) in
compliance with any and all applicable licensing requirements of the laws of the
state and locality in which the Mortgaged Premises is located, and (b) either
organized under the laws of such state, or in compliance with any applicable
laws of such state related to qualification to do business in such state;
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(22) LTV: Primary Mortgage Insurance Policy. No Mortgage Loan has an LTV
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equal to or greater than 95%. Either the original LTV of the Mortgage Loan was
not more than 80% or the excess over 75% is and will be insured as to payment
defaults by a mortgage insurance policy until the LTV of such Mortgage Loan
reduced to 80%. All provisions of any such mortgage insurance policy have been
and are being complied with, if the Mortgage Loan documents purport to show that
such insurance policy is in force, then such policy is in full force and effect,
and all premiums due thereunder have been paid. Any Mortgage Loan subject to a
mortgage insurance policy obligates the mortgagor thereunder to maintain the
mortgage insurance policy and to pay all premiums and charges in connection
therewith. The note rate for the Mortgage Loan is net of any such insurance
premium.
If the Loan has been expressly offered to and accepted by Saxon as a second
lien Mortgage Loan, then the cumulative LTV with respect to total of the first
lien loan and the Mortgage Loan is not equal to or greater than 95%;
(23) Title Insurance. The Mortgage Loan is insured by an ALTA-form lender's
---------------
title insurance policy, or other form of policy of insurance acceptable to FNMA
or FHLMC, issued by a title insurer acceptable to FNMA or FHLMC and qualified to
do business in the jurisdiction in which the Mortgaged Premises are located,
insuring the Seller, its successors and assigns, in the original principal
amount of the Mortgage Loan, subject only to the exceptions permitted under the
terms of this Agreement and Saxon's Underwriting guidelines. The Seller is the
sole insured of such title insurance policy, and no prior holder of the Security
Instrument, including the Seller, has done, by act of omissions, anything which
would impair the coverage of such policy. (If the mortgaged premises are located
in the state of Iowa, an attorney's opinion of title of a form acceptable to
FNMA or FHLMC may be substituted for such title policy; however the aforesaid
standards for acceptable title exceptions nevertheless apply);
If the Loan has been expressly offered to and accepted by Saxon as a second
lien Mortgage Loan, then the Mortgage Loan is insured by a title insurance
policy meeting the requirements contained in Saxon's Underwriting guidelines;
(24) No Mechanics' Liens. No mechanics' or similar liens or claims relating
-------------------
to work, labor or material have been filed, and no rights are outstanding that
under applicable law could give rise to any such liens, affecting the Mortgaged
Premises which are or may be liens prior to, or of equal priority with the lien
of the Security Instrument;
(25) [Reserved];
(26) Location of Improvements: No Encroachments. All improvements which were
------------------------------------------
considered in determining the appraised value of the Mortgaged Premises lie
wholly within the boundaries and building restriction lines of the Mortgaged
Premises, and no improvements on adjoining properties encroach upon the
Mortgaged Premises. No improvement located or being part of the Mortgaged
Premises is in material violation of any applicable zoning law or regulation;
13
(27) Approved Originator. The Mortgage Loan was originated (in some cases
-------------------
within the meaning contemplated by "no action" letters issued by the Securities
Exchange Commission) by (i) a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203, and 211 of the National Housing Act
or by a Supervised Depository Institution; or (ii) by a savings and loan
association, bank, credit union, or other depository institution or insurance
company supervised as such by a federal or state supervisory agency having
jurisdiction over such depository institution or insurance company;
(28) Customary Provisions. The Security Instrument contains customary and
--------------------
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgage Property of the
benefits of the security provided thereby, including, (i) in the case of a
Security Instrument designated as a deed of trust or security deed, by
trustee's sale, and (ii) otherwise by judicial foreclosure. There is no
homestead or other exemptions available to a mortgagor which would interfere
with the right to sell the Mortgaged Premises at a trustee's sale or the right
to foreclose the Security Instrument;
(29) Conformance with Seller's Underwriting and Documents. Although
----------------------------------------------------
Purchaser may re-underwrite the Mortgage Loan under Purchaser's guidelines,
Seller represents and warrants that the Mortgage Loan substantially meets the
underwriting guideline of the Seller in effect at the time the Mortgage Loan was
originated;
(30) Occupancy of the Mortgaged Premises. As of the closing date, the
-----------------------------------
Mortgaged Premises are not unlawfully occupied. All inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Premises 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;
(31) No Additional Collateral. The Note is not and has not been secured by
------------------------
any collateral except the lien of the corresponding Security Instrument and such
collateral deemed to be included therein under applicable law;
(32) Deed of Trust Trustees. In the event the Security Instrument is a deed
----------------------
of trust, the trustee named in the deed of trust is fully qualified under
applicable law to serve as such, has been properly designated and currently so
serves, and no fees or expense are or will become payable by the Purchaser to
the trustee under the deed of trust, except as expressly provided in the deed of
trust or under applicable law in connection with a trustee's sale following
default;
(33) Acceptable Investment. The Seller has no knowledge of any circumstances
---------------------
or conditions with respect to the Security Instrument, the Mortgaged
14
Premises, the Borrower or the Borrower's credit standing that can reasonably be
expected to cause the Mortgage Loan to become delinquent, or adversely affect
the value or marketability of the Mortgage Loan;
(34) Assignment. All assignments of the Security Instrument necessary to
----------
establish a chain of title from the originator of the Mortgage Loan through
Seller to Saxon, or its servicer or custodian as required by Saxon's published
guidelines, and meeting the requirements of the jurisdiction in which the
Mortgaged Premises are located, have been duly executed and recorded, and
customary evidence of such recordation has been delivered to Purchaser;
(35) Due on Sale. The Note and the Security Instrument contain identical
-----------
customary provisions for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan in the event that the Mortgaged Premises is sold or
transferred without the prior written consent of the Mortgagee thereunder;
(36) Assumability. The Mortgage Loan is assumable in accordance with the
------------
terms thereof, if such terms so provide;
(37) No Buydown Provisions; No Graduated Payments or Contingent Interests.
--------------------------------------------------------------------
The Mortgage Loan does not contain provisions pursuant to which monthly payments
are paid or partially paid with funds deposited in any separate account
established by the Seller, the Borrower or anyone on behalf of the Borrower, or
paid by any source other than the Borrower nor does it contain any other similar
provisions currently in effect which may constitute a "buydown" or "temporary
buydown" provision. The Mortgage Loan is not a graduated payment mortgage loan,
and the Mortgage Loan does not have a shared appreciation or other contingent
interest feature;
(38) No Negative Amortization. The Mortgage Loan does not provide for
------------------------
negative amortization of the indebtedness in any circumstances;
(39) Mortgaged Premises Undamaged; No Condemnation. The Mortgaged
---------------------------------------------
Premises are undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty so as to materially affect adversely the value
of the Mortgaged Premises as security for the Mortgage Loan or for the use of
the premises as a residence. There is no proceeding pending or threatened for
the total or partial condemnation of the Mortgaged Premises;
(40) Origination Fees. The fees collected and procedures employed at
----------------
origination of the Mortgage Loan were reasonable, customary, and in compliance
with all applicable laws. Neither Seller nor any other lender or broker
participating in the origination had, at the time of origination, any ownership
interest in or revenue sharing agreement with any appraiser, credit reporter,
title or escrow company, or other
15
settlement service provider involved in the origination or settlement of the
loan, except as disclosed to and accepted by the borrower in accordance with
applicable law;
(41) Escrow Accounts. Any escrow or impound payments have been calculated,
---------------
collected, and administered in compliance with all applicable laws. Any escrow
or impound account is in Seller's possession as set forth in the mortgage loan
documents and records, in an amount sufficient to pay for every item provided
for by such account, without, however exceeding any maximum balance allowed by
law. No escrow payments or other charges or payments due the Seller have been
capitalized, and there exist no deficiencies in connection therewith. Any
interest required by law or contract to be paid on any escrow account has been
fully paid or appropriately credited;
(42) Compliance with Applicable Laws. Requirements of all federal, state and
-------------------------------
local law including, without limitation, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity, or
usury, applicable to the Mortgagee Loan have been complied with. Any evidence of
such compliance requested by Purchaser to be included in the Mortgage Loan file
has been included, and Seller will maintain in its files and deliver to
Purchaser upon demand any additional evidence of such compliance;
(43) Soldiers' and Sailors' Relief Act. The Borrower has not notified the
---------------------------------
Seller, and the Seller has no knowledge of any relief requested or allowed to
Borrower under the Soldiers' and Sailors' Civil Relief Act of 1940;
(44) Environmental Matters. The Mortgaged Premises are sufficiently free
---------------------
from any and all toxic or hazardous substances so as to be in compliance with
all applicable local, state or federal environmental laws, rules or regulations;
(45) Legal Proceedings. As of the date hereof; no property securing a
-----------------
Mortgage Loan is subject to foreclosure, litigation, bankruptcy or insolvency
proceedings or any work out or foreclosure agreement, and, to the best of the
Seller's knowledge, the filing of a bankruptcy or insolvency proceeding that
would result in such Mortgage Loan becoming subject to bankruptcy or insolvency
proceedings is not imminent;
(46) Servicing. Any servicing of the Mortgage Loan since origination has
---------
been in accordance with FNMA/FHLMC guidelines. In the event any servicing has
been performed, all servicing and collection practices used with respect to the
Mortgage Loan have been reasonable, customary, and in compliance with all
applicable laws;
(47) No Convertibility. The Mortgage Loan is not subject to conversion from
-----------------
an adjustable to a fixed rate of interest;
16
(48) No Section 32 Loans. The Mortgage Loan is not a "High Rate, High Cost"
-------------------
loan (commonly known as a Section 32 loan) according to Regulation Z of the
Truth in Lending Act, as amended;
(49) No Consumer Credit Loans. The Mortgage Loan is not a "purchase money
------------------------
loan" for the purchase of non-real estate consumer goods, or "a consumer credit
contract" for the purchase of non-real estate consumer goods, as those terms are
defined in the regulations of the Federal Trade Commission relating to
preservation of consumer's claims and defenses as set forth in 16 C.F.R. Part
433 or as amended or recodified.
SECTION 5. Representations and Warranties of the Purchaser. The
-----------------------------------------------
Purchaser makes the following representations and warranties to the Seller and
to Seller's successors and assigns, each of which shall survive closing of this
sale, and shall not be merged into the documents executed at such closing:
(a) The Purchaser is acquiring the Mortgage Loans for its own account and
not as agent for any other person or entity;
(b) The Purchaser considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans;
(c) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Virginia and has all
licenses necessary to carry on its business as now being conducted; the
Purchaser has the full corporate power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery and
performance of this Agreement by the Purchaser and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Agreement evidences the valid, binding and enforceable obligation of the
Purchaser; and all requisite corporate action has been taken by the Purchaser to
make this Agreement valid and binding upon the Purchaser in accordance with its
terms;
(d) The consummation of the transactions contemplated by this Agreement are
in the ordinary course of business of the Purchaser;
(e) Neither the execution and delivery of this Agreement, the acquisition of
the Mortgage Loans by the Purchaser, the sale of the Mortgage Loans to the
Purchaser or the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement, will conflict with
or result in a breach of any of the terms, conditions or provisions of the
Purchaser's charter or by-laws or any legal restriction or any agreement or
instrument to which the Purchaser is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the
17
foregoing, or result in the violation of an law, rule, regulation, order,
judgment or decree to which the Purchaser or its property is subject;
(f) There is no action, suit, proceeding or investigation pending or, to the
best of Purchaser's knowledge, threatened against the Purchaser that, 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
Purchaser, or in any material impairment of the right or ability of the
Purchaser to carry on its business substantially as now conducted, or in any
material liability on the part of the Purchaser, or that would draw into
question the validity of this Agreement or of any action taken or to be taken in
connection with the obligations of the Purchaser contemplated herein, or that
would be likely to impair materially the ability of the Purchaser to perform
under the terms of this Agreement; and
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Purchaser of or compliance by the Purchaser with this
Agreement or the sale of the Mortgage Loans as evidenced by the consummation of
the transactions contemplated by this Agreement, or if required, such approval
has been obtained prior to the Closing Date.
SECTION 6. Remedies Upon Breach of Representation or Warranty; Repurchase
--------------------------------------------------------------
Obligations.
-----------
(a) Seller agrees that each of the representations, warranties and
covenants made herein have been relied upon by Purchaser notwithstanding any
examination of Mortgage Loans heretofore or hereafter made by Purchaser or the
Custodian on its behalf; and that such representations, warranties and covenants
shall survive payment of the Purchase Price and the delivery of the Mortgage
Loans, and shall remain in full force and effect until such time as all of the
Mortgage Loans have been paid in full, foreclosed or otherwise retired,
notwithstanding any applicable statute of limitations, which Seller hereby
expressly waives.
(b) Upon discovery by either party of a breach of a representation and
warranty of Seller set forth in this Agreement, and upon further discovery that
such breach materially and adversely affects any Mortgage Loan or the interest
of the Purchaser therein, such party shall give prompt notice to the other
party. Purchaser may also give such notice relating to any failure by Seller to
deliver final documents as required under Section 3 of this Agreement. Seller
shall have 60 days after receipt of such notice in which to cure in all material
respects such breach. In the event that the Seller is unable to effect such cure
within such time, then upon written demand by Purchaser the Seller shall within
10 days of such demand repurchase each affected Mortgage Loan at a price equal
to the unpaid principal balance of such Mortgage Loan multiplied by the Purchase
Price Percentage, plus accrued and unpaid interest thereon at the gross coupon
rate through the date of repurchase (the "Repurchase Price"). Upon
18
payment of the repurchase price, Purchaser shall promptly return the Mortgage
File relating to the repurchased Mortgage Loan to the Seller.
(c) In addition, the Seller shall indemnify the 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 arising out of or resulting from any claim, demand, defense or
assertion based on, related to, or arising from (a) a breach by the Seller of
any of its convenants, representations or warranties contained in this Agreement
or (b) the servicing of any Mortgage Loan prior to the transfer of servicing to
Purchaser or its designated servicer.
(d) Any cause of action relating to or arising out of the breach of any
covenant, representation, or warranty of Seller made herein shall be deemed to
accrue as to any Mortgage Loan upon the last to occur of (i) discovery of such
breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii)
failure by the Seller to cure such breach upon and in accordance with the demand
of Purchaser made in accordance with this Agreement.
(e) The remedies described in this Section 6 shall be cumulative and in
addition to any other remedies available under applicable law.
SECTION 7. Successors and Assigns; Assignment of Agreement.
-----------------------------------------------
A. This Agreement shall bind and inure to the benefit of and be enforceable
by the Seller and the Purchaser and their respective successors and assigns.
This Agreement shall not be assigned, pledged or hypothecated by either party
without the consent of the other party or its successors or assigns, which
consent shall not be unreasonably withheld or delayed. Failure or delay by a
prospective assignee of either party in executing upon request a written
assumption of this Agreement and all convenants, representations, and warranties
contained herein shall be reasonable grounds for withholding consent to
assignment to such prospective assignee.
B. The foregoing limitations on assignments notwithstanding, the Purchaser
may, at the Purchaser's sole option, effect one or more assignments of this
Agreement or sales of some or all of the Mortgage Loans (a) to a trustee as part
of one or more rated or unrated public or private pass-through transactions; (b)
to one or more third party purchasers in one or more whole loan or participation
pools; or (c) in connection with other secondary market or securitization
transactions provided, however, that Purchaser shall not effect any such sale in
any manner that would (i) impose an obligation on the Seller or the Purchaser to
register under the Securities Act of 1933 or (ii) otherwise result in the
violation of any applicable securities laws or regulations. The Seller shall
cooperate with reasonable requests of the Purchaser to provide the information
necessary to facilitate any assignment of the Agreement pursuant to this
paragraph. In addition, Seller agrees to execute, upon request of Purchaser,
reconstitution agreements in
19
connection with such transactions, subject to the following conditions: (i)
Seller shall have an opportunity to review such documents and negotiate in good
faith regarding the terms thereof; (ii) Seller shall upon request restate all of
the representators or warranties contained in this Agreement, but any such
restated representations and warranties shall be made as of the Closing Date;
and (iii) Purchaser shall reimburse Seller for any out-of-pocket expenses
incurred in connection with complying with this Section 7(B).
SECTION 8. Conditions to Closing. The obligations of the Seller and the
---------------------
Purchaser to consummate the sale and purchase of the Mortgage Loans on the
Closing Date are subject to the satisfaction of the following conditions:
(a) all of the representations and warranties of the Seller and the
Purchaser under this Agreement shall be true and correct as of the Closing Date,
and no event shall have occurred that, with notice or the passage of time, would
constitute a default under this Agreement;
(b) all Mortgage Files shall have been delivered to the Purchaser as
provided by this Agreement; and
(c) all other terms and conditions of this Agreement shall have been
complied with in all material respects.
SECTION 9. Closing; Delivery of Mortgage Loans. The closing of the
-----------------------------------
purchase and sale of the Mortgage Loans and the delivery of the Mortgage Loans
shall take place on the Closing Date. At the Purchaser's option, the closing
shall be either: by telephone, confirmed by letter or wire as the parties shall
agree; or conducted in person, at such place as the parties shall agree. The
Closing Documents shall consist of fully executed originals of the following
documents:
(a) this Agreement, which may be executed in counterparts;
(b) the schedule of Mortgage Loans, to be attached to each counterpart of
this Agreement; and
(c) an Officer's Certificate in the form of Exhibit 2 hereto, including all
attachments thereto.
Subject to the conditions to closing set forth herein, the Purchaser shall
pay the Purchase Price to the Seller on the Closing date by wire transfer of
immediately available funds to the account designated by the Seller.
SECTION 10. Certain Costs to be Paid by Seller. The Seller shall pay any
----------------------------------
commissions due to any broker or agent in connection with this transaction on
any Mortgage Loan. In addition, Seller will pay any legal fees and expenses of
its attorneys,
20
and fees incurred in connection with the transfer and delivery of the Mortgage
Loans, including preparation and recording of Assignments.
SECTION 11. Protection of Confidential Information. The Seller shall keep
--------------------------------------
confidential and shall not divulge to any party, without the Purchaser's written
consent, the price paid by the Purchaser for the Mortgage Loans, except to the
extent required by law or to the extent that it is appropriate for the Seller to
do so in working with legal counsel, auditors, contract service providers,
taxing authorities or other governmental agencies.
SECTION 12. No Solicitation. From and after the effective date of this
---------------
Agreement, the Seller shall not directly or indirectly solicit, and the Seller
shall exercise reasonable efforts to prevent any of its affiliates from directly
or indirectly soliciting, by means of direct mail, or telephonic or personal
solicitation, any Borrower of any of the Mortgage Loans for purposes of
prepayment or refinance or modification of such Loans; it being understood and
agreed that all rights and benefits relating to the direct solicitation of such
Borrowers and all attendant rights, title and interest in and to the list of
such Loans shall be included among the Mortgage Loan assets transferred to the
Purchaser pursuant hereto. Provided that the transaction contemplated by this
Agreement is consummated, the benefits of such transfer shall inure to the
Purchaser from and after the effective date of this Agreement, and the Seller
and its affiliates shall take no action after the date hereof to adversely
affect such rights and benefits. It is understood and agreed that (i) promotions
undertaken by the Seller or any affiliate of the Seller which are directed to
the general public at large, including without limitation mass mailings based on
commercially acquired mailing lists, newspaper, radio and television
advertisements, and (ii) unsolicited requests made by customers to any retail
branches or offices of the Seller or its affiliates shall not constitute
solicitation under this Section 12.
SECTION 13. Indulgences, Not Waivers. Any failure or delay by either party
------------------------
in enforcing any provision this Agreement shall not constitute a waiver of such
party's right to enforce such provision subsequently with respect to the same or
subsequent circumstances.
SECTION 14. Notices. All demands, notices and communications hereunder
-------
shall be in writing and shall be deemed to have been duly given on the earlier
of (a) three business days after being mailed by registered or certified mail,
return receipt requested and (b) otherwise when received by the other party at
the address shown below in this Section or such other address as may hereafter
be furnished to the other party by like notice. Any such demand, notice or
communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee as
21
follows: if to the Purchaser: Saxon Mortgage, Inc., 0000 Xxx Xxxx, Xxxx Xxxxx,
Xxxxxxxx 00000, Attn.: Senior Vice President, and if to the Seller, Pan American
Bank, FSB, at: 0000 Xxxxx Xx Xxxxxx Xxxx, 0xx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx
-----------------------------------------------------------
94402. Attn.: Mr. Xxxxx Xxxxx, or if no other address is specified in the
-----------------------------
preceding blank space, to the officer of Seller executing this Agreement at the
address of such officer on file with Purchaser.
SECTION 15. Severability. Any determination by a court of competent
------------
jurisdiction that any provision of this Agreement is void or unenforceable shall
not affect the validity and enforceability the remaining provisions hereof.
SECTION 16. Counterparts. This Agreement may be executed simultaneously
------------
in any number of counterparts. Each counterpart shall be deemed to be an
original, and all such counterparts shall constitute one and the same
instrument.
SECTION 17. Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the Commonwealth of Virginia, without
giving effect to any choice of law provisions thereof.
SECTION 18. Waivers: Modifications. No term or provision of this Agreement
----------------------
may be waived or modified unless such waiver or modification is in writing and
signed by the party against whom such waiver or modification is sought to be
enforced.
SECTION 19. Exhibits. The exhibits to this Agreement are hereby
--------
incorporated and made a part hereof and are an integral part of this Agreement.
SECTION 20. Survival. This Agreement, and all covenants, representations,
--------
and warranties set forth herein, shall survive the Closing and shall not merge
into the Closing documents. Without limiting the foregoing, proceeding with
Closing shall not constitute any waiver of Purchaser's right too require any
missing or incorrect document required to be delivered hereunder, even if
Purchaser was afforded an opportunity to review such Mortgage Loan prior to
Closing.
IN WITNESS WHEREOF the parties have caused this document to be
executed by their respective authorized officers as of the date first written
above:
SELLER: PAN AMERICAN BANK, FSB
By: /s/ XXXXXXXX X. GRILL
-------------------------------------
Name: Xxxxxxxx X. Grill
Its: President
22
PURCHASER: SAXON MORTGAGE, INC.
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: President
