Exhibit 2.2
MORTGAGE SERVICING
PURCHASE AND SALE AGREEMENT
BETWEEN
STERLING BANK
AND
STERLING CAPITAL MORTGAGE COMPANY
DATED: JULY 16, 2003
MORTGAGE SERVICING
PURCHASE AND SALE AGREEMENT
THIS MORTGAGE SERVICING PURCHASE AND SALE AGREEMENT (the "Sale
Agreement") is dated as of July 16, 2003, by and between STERLING CAPITAL
MORTGAGE COMPANY, a Texas corporation, with offices located at 00000 Xxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("Seller") and STERLING BANK, a Texas
banking association, with offices at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxx, 00000 ("Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser desires to purchase and Seller desires to sell all
right, title and interest in and to the Servicing (as defined herein below) of
the Mortgage Loans in accordance with the terms and conditions of this Sale
Agreement; and
WHEREAS, all necessary approvals have been obtained regarding, and FNMA
has consented to, the assumption of the Servicing by Purchaser and to Seller's
transfer and assignment of the Servicing to Purchaser as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants made herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Sale Agreement, the words and phrases set forth below
shall have the following meanings:
"AFFILIATES": Any person or entity that directly, or indirectly through
one or more intermediaries, controls, is controlled by or is under common
control with such person or entity.
"AGENCY": FNMA.
"AGENCY REQUIREMENTS": The applicable rules, regulations,
announcements, notices, directives and instructions of an Agency, including,
without limitation, (i) the FNMA Guide; (ii) the FNMA Pool purchase contracts or
master commitments; and (iii) all exhibits, schedules, amendments and
supplements to (i) and (ii).
"BORROWER": The obligor on a Note or the mortgagor on the Mortgage, as
applicable.
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"ESCROW FUNDS": With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire hazard and flood insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Borrower with the mortgagee pursuant to the requirements of applicable law,
the Mortgage and any other document.
"FNMA": The Federal National Mortgage Association, or any successor
thereto.
"FNMA GUIDE": The FNMA Selling Guide and the FNMA Servicing Guide, and
any amendments or additions thereto.
"FNMA MBS": A mortgage backed security issued by FNMA, which represents
an undivided ownership interest in a Pool.
"MORTGAGE": The security instrument, mortgage, deed of trust, deed to
secure debt or other instrument securing a Note, which creates a first position
lien on an estate in fee simple or leasehold estate, if permitted by the
relevant Agency, in real property securing the Note.
"MORTGAGE LOAN[S]" OR "LOANS[S]": Those Mortgage Loans described in the
recitals hereof, which Mortgage Loans may be included in Pools, the Servicing to
which is the subject of this Sale Agreement. The term "Mortgage Loan[s]" shall
not include property management functions in connection with REO properties, or
the properties themselves.
"NOTE": The note or other evidence of the indebtedness of a Borrower
secured by a Mortgage.
"POOL": A group of Mortgage Loans, such as those which back the
issuance of a FNMA MBS, and is otherwise considered segregated on the basis of
the applicable Agency Requirements, and which is considered to be aggregated for
the purposes of servicing.
"PURCHASER": The legal entity defined in the first paragraph of this
Sale Agreement, or its successors in interest or assigns.
"PURCHASE PRICE": The amount to be paid by Purchaser to Seller in
exchange for the Servicing Rights for each Mortgage Loan or Pool in accordance
with Article III of this Sale Agreement.
"REO": Real property acquired by Seller on behalf of an Agency through
foreclosure or by acceptance of a deed-in-lieu of foreclosure and commonly
referred to as "real estate owned."
"SALE AGREEMENT": This Mortgage Servicing Purchase and Sale Agreement
as defined in the first paragraph of this agreement, and as used herein shall
also be deemed to refer to and incorporate all exhibits attached hereto.
"SALE DATE": The date on which all ownership rights, title and interest
in the applicable Servicing is transferred from Seller to Purchaser which date
shall be July 16, 2003.
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"SELLER": The legal entity defined in the first paragraph of this Sale
Agreement, or its successors in interest and assigns.
"SERVICER RESPONSIBILITY": The rights and responsibilities associated
with the Mortgage Loans, including without limitation, servicer responsibility
as defined in the Agency Requirements.
"SERVICING": The Servicing Rights and the Servicer Responsibility.
"SERVICING FILE": With respect to each Mortgage Loan, a file containing
all documents and information including the origination and underwriting
information, necessary to properly service the Mortgage Loans in accordance with
Agency Requirements.
"SERVICING RIGHTS": With respect to each Mortgage Loan, any of the
following: (a) all rights to service the Mortgage Loans; (b) any payments or
monies payable or received or receivable for servicing the Mortgage Loans, (c)
any late fees, assumption fees, penalties or similar payments with respect to
Mortgage Loans; (d) all agreements or documents creating, defining or evidencing
any such servicing rights and all rights of the Seller thereunder; (e) escrow
payments or other similar payments with respect to the Mortgage Loans and any
amounts actually collected with respect thereto; (f) all accounts and other
rights to payment related to any of the property described in this paragraph;
(g) 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; (h) all rights and benefits relating to the direct SOLICITATION
of the related Mortgagors and attendant right, title and interest in and to the
list of such Mortgagors and data relating to their Mortgages; PROVIDED THAT FOR
PURPOSES OF THE PRECEDING CLAUSE, "SOLICITATION" SHALL MEAN SOLICITATION OF A
REFINANCE OF A MORTGAGE LOAN AND DIRECT SOLICITATION SHALL NOT BE DEEMED TO
INCLUDE SOLICITING OR MARKETING REFINANCING OF MORTGAGE LOANS TO THE GENERAL
PUBLIC, INCLUDING BUT NOT LIMITED TO, ADVERTISEMENTS, SOLICITATIONS, OR
MARKETING THROUGH THE USE OF DIRECT MAIL, INTERNET, BILLBOARDS, BROCHURES,
RADIO, TELEVISION, NEWSPAPERS, MAGAZINES, OR OTHER PERIODICAL, AND ANY OTHER
SUCH ADVERTISEMENT, SOLICITATION OR MARKETING EFFORT THAT IS NOT SPECIFICALLY
TARGETED TO THE MORTGAGORS and (i) all rights, powers and privileges incident to
any of the forgoing.
"SUBSERVICING AGREEMENT": That certain agreement setting forth the
terms and provisions pursuant to which Seller will subservice the Mortgage
Loans, on behalf of Purchaser, during the Subservicing Period.
"SUBSERVICING PERIOD": From and after the Sale Date until the Servicing
is transferred to a successor servicer, which shall be no later than November 3,
2003.
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ARTICLE II
SALE AND TRANSFER OF SERVICING
2.1. SALE DATE. On the applicable Sale Date, Seller shall, as
hereinafter provided, sell, transfer and assign, set over and convey to
Purchaser and Purchaser shall acquire from Seller all right, title and interest
of Seller in, to and under the Servicing (including but not limited to the
Servicing Files) for all Mortgage Loans eligible for purchase from Seller on
such Sale Date.
2.2. SERVICING DUTIES. Income derived from the Servicing Rights
following the Sale Date shall be paid to Purchaser after the Sale Date. Seller
shall be entitled to the benefits and obligations of all Escrow Funds and
principal and interest custodial funds during the Subservicing Period. From and
after the date hereof, Seller shall not take any action that is inconsistent
with the sale of the Servicing accomplished hereby.
During the Subservicing Period, Seller shall maintain its servicing capacity
and:
(a) Subservice the Mortgage Loans pursuant to the terms
of the Mortgage Loan Subservicing Agreement; and
(b) Not assign or attempt to assign the responsibilities
for servicing the Mortgage Loans, except as set forth herein and except with
respect to an Affiliate.
2.3. ACTIONS REQUIRED PRIOR TO THE SALE DATE. As of the Sale Date,
Seller shall obtain all necessary agency approvals to sell the Servicing from
Seller to Purchaser on the Sale Date. Seller shall provide Purchaser with
evidence of all such approvals no later than the Sale Date.
2.4. COOPERATION. To the extent reasonably possible, the parties
hereto shall cooperate with and assist each other, as requested, in carrying out
the other's covenants, agreements, duties and responsibilities under this Sale
Agreement and in connection herewith shall execute and deliver all such
documents and instruments as shall be necessary and appropriate in the
furtherance thereof. After the Sale Date, Seller will be deemed to be holding
all sums received by it in respect of any Mortgage Loan in trust on Purchaser's
behalf. Seller shall pay over all such sums to Purchaser and provide information
detailing when the payments were received. In addition, Seller will hold for
Purchaser all communications, inquiries, legal instruments and other documents
received by it with respect to the Mortgage Loans and shall promptly forward
same to Purchaser upon the request of Purchaser.
ARTICLE III
CONSIDERATION
3.1. PURCHASE PRICE. In full consideration for the sale of the
Servicing upon the terms
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and conditions of this Sale Agreement, Purchaser shall pay to Seller the
Purchase Price of $15,480,180.
3.2. PAYMENT. The Purchase Price shall be paid by Purchaser to
Seller by wire transfer of immediately available funds, in accordance with the
Seller's wiring instructions. One hundred percent (100%) of the Purchase Price
will be paid on the Sale Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Sale Agreement, Purchaser
represents and warrants that the following are true as of the execution of this
Sale:
4.1. DUE INCORPORATION AND GOOD STANDING. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation. Purchaser is qualified to transact business
in each jurisdiction in which such qualification is necessary, except where the
failure to be so qualified will not have a material adverse effect on Seller,
Purchaser or the Servicing.
4.2. AUTHORITY AND CAPACITY. Purchaser has all requisite corporate
power, authority and capacity to enter into this Sale Agreement and to perform
the obligations required of it hereunder. The execution and delivery of this
Sale Agreement and the consummation of the transactions contemplated hereby have
each been duly and validly authorized by all necessary corporate action. This
Sale Agreement constitutes a valid and legally binding agreement of Purchaser
enforceable in accordance with its terms except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization and similar laws,
and by equitable principles, affecting the enforceability of the rights of
creditors.
4.3. EFFECTIVE AGREEMENT. The execution, delivery and performance
of this Sale Agreement by Purchaser, its compliance with the terms hereof and
the consummation of the transactions contemplated hereby (assuming receipt of
the approvals required pursuant to this Sale Agreement) will not violate,
conflict with, result in a breach of, constitute a default under, be prohibited
by or require any additional approval under the certificate of incorporation,
bylaws, or any instrument or agreement to which it is a party or by which it is
bound or which affects the Servicing, or any state or federal law, rule or
regulation or any judicial or administrative decree, order, ruling or regulation
applicable to it or to the Servicing.
4.4. COMPLIANCE WITH REGULATIONS. Purchaser shall comply with all
material obligations under all contracts to which it is a party, and with all
applicable federal, state and local laws and regulations, with respect to and
which affect any of the Servicing being purchased by Purchaser hereunder. The
laws and regulations which Purchaser shall comply with include but are not
limited to all applicable Agency Requirements. Purchaser will do no act or thing
which will materially adversely affect the Servicing or the Mortgage Loans.
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4.5. GOOD STANDING. Purchaser is a mortgage lender and servicer in
good standing with all appropriate regulatory authorities, including, without
limitation, the Agency, except where the failure to be in good standing with any
such regulatory authority will not have a material adverse effect on Seller,
Purchaser or the Servicing.
4.6. LITIGATION; COMPLIANCE WITH LAWS. As of the Sale Date, there
is and shall be no litigation, proceeding or governmental investigation pending,
or, to Purchaser's knowledge, threatened, or any order, injunction, settlement
or decree outstanding against or involving Purchaser which materially adversely
affects any of the Servicing. Additionally, as of the Sale Date, there is and
shall be no litigation, proceeding or governmental investigation existing or
pending or to the knowledge of Purchaser threatened, or any order, injunction or
decree outstanding against or relating to Purchaser that has not been disclosed
by Purchaser to Seller in writing which could have a material adverse effect
upon the Servicing, nor does Purchaser know of any basis for any such
litigation, proceeding, or governmental investigation. As of the Sale Date,
Purchaser has not violated and will not violate any applicable law, regulation,
ordinance, order, injunction or decree, or any other requirement of any
governmental body or court, which may materially adversely affect any of the
Servicing. For purposes of this Section 4.6, "litigation" shall include a suit
for damages alone and shall not require that a specific performance remedy or
injunction impacting the transfer of the Servicing be pending.
4.7. ABILITY TO PERFORM. Purchaser does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Sale Agreement, nor does Purchaser have any actual
knowledge of any intent on the part of any Agency not to consent to the
transaction contemplated hereby or to consent only with a reduction or
limitation of the rights or compensation of the servicer under the applicable
Agency requirements.
4.8 STATEMENTS MADE. As of the Sale Date, no representation,
warranty or statement made by Purchaser, or document that is within the control
of Purchaser, in connection with this Sale Agreement, or any exhibit, schedule,
data tape, statement or certificate furnished to Seller by Purchaser, in
connection with the transactions contemplated hereby by Purchaser contains or
will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary to make the statements contained herein or
therein not misleading. Each document delivered to Seller represents an executed
original or is a certified true and correct copy of the original and in either
case represents true, correct and complete copies of the same. Each such
document is in full force and effect and has not been amended, modified or
altered except as the same shall have been provided to Seller.
ARTICLE V
COVENANTS
5.1. NOTICE OF SIGNIFICANT EVENTS. During the Subservicing Period,
Seller will promptly notify Purchaser of the occurrence of the entry of any
court judgment or regulatory
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order in which Seller is or may be required to pay a claim or claims which, in
Seller's opinion, could have a material adverse effect on Seller's financial
condition.
ARTICLE VI
CLOSING DOCUMENTS
The Closing Documents shall consist of fully executed originals of the
following documents:
6.1. SALE AGREEMENT. This Sale Agreement; and
6.2. SUBSERVICING AGREEMENT. The Subservicing Agreement dated as of
the same date.
ARTICLE VII
7.1. SUPPLEMENTARY INFORMATION. From time to time, upon reasonable
notice, prior to and after the Sale Date, Seller shall furnish Purchaser such
incidental information, which is reasonably available to Seller, supplementary
to the information regarding the servicing or the Mortgage Loans contained in
the Exhibits, documents and schedules delivered pursuant hereto, as Purchaser
may reasonably request.
7.2. ACCESS TO INFORMATION. Upon advance notice, Seller shall give
to Purchaser and its counsel, accountants and other representatives, reasonable
access during normal business hours throughout the Subservicing Period, to all
of Seller's files, books and records relating to the Servicing.
7.3. CONFIDENTIALITY OF INFORMATION/PUBLICITY. Except as otherwise
required by law, Seller and Purchaser and their affiliates shall, and shall
cause their respective directors, officers, employees and authorized
representatives to, hold in strict confidence and not disclose to anyone without
the prior written consent of the other party all information concerning
customers or proprietary business procedures, servicing fees or prices,
including the Purchase Price paid by the Purchaser for the Servicing, policies
or plans of the other party or any of its affiliates received by them from the
other party in connection with the transactions contemplated hereby.
Purchaser and Seller agree to consult with each other and to coordinate
the issuance of any press release or similar public announcement or
communication containing the other's name and relating to the execution or
performance of this Sale Agreement and the transactions contemplated hereby;
provided, however, that no party shall be restrained, after consultation with
the other party, from making such disclosure as it shall be advised by counsel
is required by law or by the applicable regulations of any regulatory body or
securities exchange to be made.
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7.4. NOTICES. All notices, requests, demands and other communications
which are required or may be given under this Sale Agreement shall be in
writing, shall be given to the intended recipient at the address specified below
and shall be effective upon personal delivery, overnight delivery, upon
transmission by facsimile or if sent by registered or certified mail, postage
prepaid then five (5) days following the day placed in the mail or, if sent
otherwise, then only upon receipt:
(a) If to Purchaser, to:
Sterling Bank
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: X. Xxxxxx Bridgwater
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx X. Xxxxxxx, Xx.
Sterling Bancshares, Inc.
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
and
Xxxxxx X. Xxxx
Xxxxx Liddell & Xxxx LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
(b) If to Seller, to:
Sterling Capital Mortgage Company
00000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx
Facsimile:
with a copy (which shall not constitute notice) to:
Xxx Xxxxxxx.
Xxxxxxx & Associates, P.C.
00000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
0
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
or to such other address or person as Purchaser or Seller shall have specified
in writing to the other.
7.5. WAIVERS. Either Purchaser or Seller may, by written notice to
the other:
(a) Extend the time for the performance of any of the
obligations or other transactions of the other except the Sale Date; and
(b) Waive compliance with any of the terms, conditions or
covenants required to be complied with by the other hereunder.
The waiver by any party hereto of a breach of any provision of this
Sale Agreement shall not operate or be construed as a waiver of any other
subsequent breach.
7.6. ENTIRE AGREEMENT; AMENDMENT. This Sale Agreement constitutes
the entire agreement between the parties with respect to the sale of the
Servicing and supersedes all prior agreements with respect thereto. This Sale
Agreement may be amended and any provision hereof waived, but only in writing
signed by the party against whom such amendment or waiver is sought to be
enforced.
7.7. BINDING EFFECT. This Sale Agreement shall inure to the benefit
of and be binding upon the parties hereto and their successors and assigns.
Nothing in this Sale Agreement, express or implied, is intended to confer on any
person other than the parties hereto and their successors and assigns, any
rights, obligations, remedies or liabilities.
7.8. HEADINGS. Headings on the Articles and Sections in this Sale
Agreement are for reference purposes only and shall not be deemed to have any
substantive effect.
7.9. APPLICABLE LAWS. This Sale Agreement shall be construed in
accordance with the laws of the State of Texas and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with the
laws of the State of Texas applicable to agreements made and to be performed
therein, except to the extent preempted by federal law.
7.10. INCORPORATION OF EXHIBITS. All exhibits attached hereto shall
be incorporated herein and shall be understood to be a part hereof as though
included in the body of this Sale Agreement.
7.11. COUNTERPARTS. This Sale Agreement may be executed in
counterparts, each of which, when so executed and delivered, shall be deemed to
be in original and all of which, taken together, shall constitute one and the
same agreement.
7.12. SEVERABILITY CLAUSE. Any part, provision, representation or
warranty of this Sale Agreement which is prohibited or which is held to be void
or unenforceable shall be ineffective
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to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty of
this Sale Agreement which is prohibited or unenforceable or is held to be void
or unenforceable in any jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Sale Agreement shall deprive any party of the economic benefit
intended to be conferred by this Sale Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is as close as
possible to the economic effect of this Sale Agreement without regard to such
invalidity.
7.13. FURTHER AGREEMENTS. Seller and Purchaser each agree to execute
and deliver to the other such reasonable and appropriate additional documents,
instruments or agreements as may be necessary or appropriate to effectuate the
purposes of this Sale Agreement (including but not limited to updates of
Exhibits and schedules to be attached hereto and incorporated herein).
7.14. INTENTION OF THE PARTIES. It is the intention of the parties
that Seller is selling, and Purchaser is purchasing, only the Servicing Rights
to the Mortgage Loans. Accordingly, the parties hereby acknowledge that as of
the Sale Date, the applicable Agency shall be the sole and absolute owner of its
Mortgage Loans.
7.15. TRANSFER AND ASSIGNMENT. Neither Seller nor Purchaser shall
have the right to sell, assign, delegate or otherwise transfer its rights or
obligations under this Sale Agreement or the Subservicing Agreement to a third
party without obtaining the prior written consent of the other party, which
consent may be withheld in that party's discretion; provided further, the
financial condition, reputation and status as a competitor, of Seller's or
Purchaser's assignee shall be reasonably acceptable to the other party.
7.16. GENERAL INTERPRETIVE PRINCIPLES. For purposes of this Sale
Agreement, except as otherwise expressly provided or unless the context
otherwise requires the terms defined in this Sale Agreement have the meanings
assigned to them in this Sale Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the other
gender; accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with generally accepted accounting principles.
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IN WITNESS WHEREOF, each of the undersigned parties to this Sale
Agreement has caused this Sale Agreement to be duly executed in its corporate
name by one of its duly authorized officers, all as of the date first above
written.
PURCHASER:
ATTEST: By: /s/ X. Xxxxxx Bridgwater
------------------------------------
/s/ Xxxxx X. Xxxxxxx, Xx. Name: X. Xxxxxx Bridgwater
----------------------------- Title: President & Chief Executive Officer
Date: July 16, 2003
SELLER:
ATTEST: By: /s/ Xxxxxxxx X. Xxxxxxxxxx
------------------------------------
/s/ Xxx Xxxxxxx Name: Xxxxxxxx X. Xxxxxxxxxx
------------------------------ Title: President & Chief Executive Officer
Date: July 16, 2003
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