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EXHIBIT K
LOAN PURCHASE AGREEMENT
This is a Loan Purchase Agreement for mortgage loan(s), dated and
effective as of , 1999, and is executed between Franklin Credit Management
Corporation, a Delaware corporation as Seller (the "Seller") and Xxxx Capital
Corporation as Purchaser (the "Purchaser").
W I T N E S S E TH
WHEREAS, Seller is the present holder of the Note(s), Mortgage(s) and
attendant Loan Documents (the "Mortgage Loan"), described in the attached
Exhibit "A", the Mortgage Loan Schedule which affects the Mortgaged Property
commonly known by the street address 000 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000.
WHEREAS, the Mortgagors are in default under the Mortgage Loan;
WHEREAS, Purchaser desires to purchase the Mortgage Loan from Seller.
NOW, THEREFORE, for other good and valuable consideration, the Purchaser
and the Seller, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Agreement: This Loan Purchase Agreement , together with all exhibits and
schedules appended hereto, as well as all amendments hereof and supplements
hereto.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer
or equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located for the absolute
transfer of the Mortgage.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day
on which federal savings banks are authorized or obligated by law or executive
order to be closed.
Closing Date: ____________________ , 1999, or a Business Day prior thereto
as may hereafter be agreed upon by the Purchaser and the Seller.
Collateral Agreements: With respect to Mortgage Loans, any Assignments of
Leases, Rents, Management Agreements or similar collateral agreement providing
security for the Mortgage Loan, including all assignments of mortgage to Seller
or Seller"s predecessor.
Loan Schedule: A schedule of Mortgage Loans annexed hereto as Exhibit A.
Mortgage: The Mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a lien on an estate in fee simple with real
property securing the Mortgage Note.
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Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgagor: The obligor on a Mortgage and Mortgage Note.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Loan.
Purchase Price: The amount to be paid in certified funds or bank check to
the Seller by the Purchaser as provided herein.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
FILE; PRICE; BOOKS AND RECORDS
1. Purchase Price.
Purchaser shall remit the sum of THIRTY THOUSAND 00/100 ($30,000.00)
DOLLARS upon execution of this Agreement, to be held in escrow by the attorney
for the Seller in a non-interest bearing account. Before 5:00 p.m., Eastern
Standard Time on the Closing Date, the Purchaser shall pay to the Seller by
certified check or money order or bank check the sum of: TWO HUNDRED SEVENTY
THOUSAND 00/100 ($270,000.00) DOLLARS.
2. Closing Date.
The closing date shall be no later than , 1999 at 10:00 A.M. Closing shall
be conducted at the offices of the Seller, at 0 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or such other location as is mutually acceptable to Seller
and Purchaser.
3. Release of Documents. Immediately upon receipt of the full Purchase
Price, the Seller shall assign and deliver to Purchaser the Note, Mortgage, all
underlying assignments in Seller"s possession, and all rights of the Seller
pursuant to those documents.
4. Recording Fees, Title Policy Endorsements and Continuations.
The Purchaser shall be responsible for recording all Deeds, assignments,
and other instruments, including any assignment of any UCC financing statements
included in the Mortgage Loan Files. All recording fees incurred shall be paid
by the Purchaser. The Purchaser shall pay any real estate transfer taxes
required for the conveyance of each Real Estate Property. The Seller shall
prepare and execute any appropriate UCC Form 3 with respect to collateral
securing any Mortgage Loan (when applicable).
5. Terms of Sale to Purchaser. The parties hereto agree that the sale of
the Mortgage Loan referenced hereunder is made, without recourse to Seller,
without representations by or warranties of Seller except as expressly provided
in this Agreement herein.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES AND BREACH
1. Representations and Warranties.
The Seller represents and warrants to the Purchaser that as of the date
hereof and, as of the Closing Date, the following shall be true, complete and
correct:
(a) Duly Organized; Good Standing; Duly Licensed and Qualified. The Seller
is a Delaware corporation, duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization;
(b) Due Authority and Binding Obligation. The Seller has the full power
and authority to execute and deliver this Agreement and has been duly
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) No Conflicts. The execution and delivery of this Agreement or
compliance with the terms and conditions of this Agreement will not materially
conflict with or result in a material breach of any of the terms, conditions or
provisions of the Seller"s articles, charter or bylaws , or violate the terms of
any contract, agreement or other instrument to which the Seller or any of its
assets may be subject.
(d) Ability to Perform. As of the date hereof, the Seller knows of no
reasons as to why it may not be able to fully perform each and every covenant
contained in this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the Seller"s knowledge, threatened against the
Seller which shall adversely affect the Mortgage Loans and Real Estate, the
execution, delivery or enforceability of this Agreement, or which may hereafter
have a materially adverse effect on the financial condition of the Seller ; and
(f) No Consent Required. 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.
(g) No Bulk Sale. The transfer, assignment and conveyance of the Mortgage
Loans and Real Estate Property by the Seller pursuant to this Agreement are in
the ordinary course of the Seller"s business and are not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction. Seller is not transferring the Mortgage Loans and/or Real Estate
Property with an intent to hinder, delay or defraud any of its creditors. Seller
is solvent and will not be rendered insolvent by the sale of any of the Mortgage
Loans or Real Estate Property.
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(h) No Broker. The Seller and Purchaser mutually represent and warrant to
each other that no broker, finder or intermediary other than (NONE) has brought
about this transaction. The Purchaser agrees to pay the fees due pursuant to a
separate agreement. In the event any claim is made by any other broker, finder
or intermediary for a commission or fee as a result of acts or actions of either
the Seller or the Purchaser with respect to the within transaction, such party
shall indemnify and hold the other safe and harmless from any and all such
costs, claims or expense arising therefrom. These representations shall survive
the Closing.
(i) Representations as to the Mortgage Loan.
(i) Seller is the sole owner of the Mortgage Loan and has the right
to convey same to Purchaser;
(ii) The information set forth in the Mortgage Loan Schedule is true
and correct as of the Closing Date;
(iii) The terms of the note or other evidence of indebtedness of the
related mortgage secured by the mortgaged property have not been altered or
modified in any respect, except by written instruments, if required by law in
the jurisdiction where the Mortgaged Property is located;
(iv) The Mortgage Loan is valid and enforceable in accordance with
its terms and conditions and during the period during which the Seller serviced
the Mortgage Loan, and such Mortgage Loan was serviced in accordance with all
applicable laws and regulations.
The representations and warranties of this Section shall survive the
execution of this Agreement and any subsequent transfers of each Mortgage Loan.
2. No Representation as to Encumbrances. It is expressly agreed and
understood between the parties that by its execution and delivery to Purchaser
of the Assignment of Mortgage, the Seller shall transfer and convey to Purchaser
all of Seller"s right, title and interest to each Mortgage Loan subject to any
and all liens, claims, taxes, encumbrances or security interests of any kind or
nature whatsoever, of which Seller has written notice, including any junior or
subordinated liens or encumbrances which may have priority over the Mortgage
Loan or may encumber the Mortgaged Property. Purchaser agrees to purchase the
Mortgage Loan subject to such liens, claims, taxes, encumbrances and security
interests of any kind or nature whatsoever, and shall have no recourse against
Seller with respect to such liens, claims, taxes, encumbrances and security
interest which may have priority over the Mortgage Loan or may encumber the
Mortgaged Property.
ARTICLE IV
CLOSING
1. Closing Documents. The closing documents (the "Closing Documents")
shall consist of the following for the Closing Date:
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(a) two (2) fully executed copies of this Agreement;
(b) all original Mortgage Loan Documents, including the Mortgage or Deed
of Trust, Promissory Note, Assignments, Collateral Assignments and other related
loan documentation, including but not limited to, if applicable, Assignment of
Leases and Rents;
(c) all other documentation presently contained in the Mortgage Loan file;
(d) a Xxxx of Sale for the Mortgage Loan in the form attached hereto as
Exhibit "B";
(e) a statement of amounts due under the Mortgage Loan;
(f) Consent to Change of Attorney, if applicable;
(g) Assignment of Claim/Cause of Action in foreclosure suit, if
applicable.
2. Costs. Each party shall pay any commissions it has incurred and the
fees of its attorneys in fact with the negotiations for, documenting of and
closing of the transactions contemplated by this Agreement. Purchaser shall, be
solely responsible for, and shall bear all fees, taxes and expenses related to
the transfer of this Mortgage Loan, including the recordation of Assignment of
Mortgage from Seller to Purchaser.
ARTICLE V
MISCELLANEOUS PROVISIONS
1. Governing Law; Consent to Jurisdiction. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to any
principles of conflict of laws. The Purchaser and the Seller each hereby agree
that any LEGAL ACTION OR PROCEEDING AGAINST IT WITH RESPECT TO THIS AGREEMENT,
OR ANY OF THE AGREEMENTS, DOCUMENTS OR INSTRUMENTS DELIVERED IN CONNECTION WITH
THIS AGREEMENT MAY ONLY BE BROUGHT IN THE SUPREME COURT OF THE STATE OF NEW
YORK, NEW YORK COUNTY OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, located in the County of New York, and, by execution and
delivery hereof, the Purchaser and the Seller each accepts and consents to, for
itself and in respect to its property, generally and unconditionally, the
jurisdiction of the aforesaid courts with respect to any action or proceeding
brought by the Purchaser and/or Seller against one another.
2. Notices. All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when sent to the intended
recipient, in writing within three (3) business days after same is deposited in
the U.S. Mail (certified mail, return receipt requested), or delivered to the
premises of the addressee, or other address as may hereafter be furnished in
writing by one party to the other party to this Agreement:
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(a) if to the Seller:
Franklin Credit Management Corp.
0 Xxxxxxxx Xx. -0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxx
(b) if to the Purchaser:
Xxxx Capital Corporation
0 Xxxxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
3. Severability of Provisions: If any provision, or part thereof of this
Agreement is invalid or unenforceable under any law such provision, or part
thereof , shall be deemed severable from the remaining provisions or terms of
this Agreement and shall in no way affect the validity or enforceability of the
other provisions of this Agreement.
4. Successors and Assigns: This Agreement, and the representations and
warranties contained herein shall be binding upon and shall inure to the benefit
of the parties hereto, their successors and assigns with respect to this
Agreement, as well as each Mortgage Loan. This Agreement may not be assigned by
the Seller or the Purchaser, provided, however, that the Purchaser may, with the
Seller"s consent (not to be unreasonably withheld) collaterally assign this
Agreement to a lender if required to finance the purchase of the Mortgage Loans.
5. Execution. This Agreement may be executed in one or more counterparts
and by the different parties hereto on separate counterparts, each of which,
when so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same agreement.
6. Servicing. On and subsequent to the Closing Date, Seller shall continue
to provide all servicing responsibilities related to the Mortgage Loan. The
Purchaser agrees to assume all costs and expenses incurred by Seller in Seller's
servicing of the Mortgage Loan. The Purchaser agrees to exonerate, hold
harmless, protect and indemnify the Seller from and against any and all losses,
damages, claims, actions or suits, judgments and costs that may arise or grow
out or attributable to Seller's continued servicing responsibilities related to
the Mortgage Loan.
7. Entire Agreement This Agreement, together with the schedules and
exhibits attached hereto and the documents referred to herein, including any
amendments thereto, or executed concurrently herewith, constitute the entire
Agreement between the parties hereto with regard to the subject matter hereof;
and there are no prior agreements, understandings, restrictions, warranties or
representations between the parties with respect thereto.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names
to be signed hereto as of the day and year first above written.
SELLER:
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FRANKLIN CREDIT MANAGEMENT
CORPORATION
By: ______________________
Date:___________________ Title: ___________________
PURCHASER:
Date: XXXX CAPITAL CORPORATION
By: ______________________
Title: ___________________
ACKNOWLEDGMENTS
STATE OF ______________ }
}ss:
COUNTY OF _____________ }
On this _______ day of ________ , 199 , before me, a notary public,
personally appeared ____________________________ who acknowledged
himself/herself to be the _______________________ of ________________________ ,
and that he/she as such officer, being authorized to do so, executed the
foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
STATE OF ______________ }
}ss:
COUNTY OF _____________ }
On this _________ day of _____________ , 199 , before me, a notary public,
personally appeared _________________________________ who acknowledged
himself/herself to be the __________________________ of ______________________ ,
and that he/she as such officer, being authorized to do so, executed the
foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
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MORTGAGE LOAN SCHEDULE
Note originally made and subscribed by and between Xxxxxxxxxxx X. Xxxxxxx, Xxxx
X. Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxx and Xxxx Xxxxx to Xxxxxxxx Federal
Savings and Loan Association, dated August 11, 1989 in the original principal
sum of $228,000.00, which Note was secured by that certain Mortgage of even date
therewith, covering those certain premises known by the street address 000 00xx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, and recorded on September 6, 1989, in the
Kings County Clerk"s Office, State of New York, Book/Liber/Reel 2443, Page 2453.
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XXXX OF SALE
XXXX OF SALE, dated ____________ , 199_____ , from Franklin Credit
Management Corporation, ("Seller") to Xxxxxx Xxxxxxxxxx ("Purchaser").
WHEREAS, pursuant to the Loan and Real Estate Purchase Agreement, dated as
of , 199 , by and between the Purchaser and the Seller (the "Agreement"), the
Seller agreed to grant, sell, assign, convey, transfer and deliver to the
Purchaser, servicing released, all right, title and interest in and to the
mortgage loan identified in the Mortgage Loan Schedule attached hereto as
Exhibit "A".
NOW, THEREFORE, in consideration of the payment of $ 300,000.00 and other
valuable consideration, the receipt of which is hereby acknowledged, and
intending to be legally bound hereby, the Seller by these presents does hereby
sell, convey, transfer, assign, set over to, and vest in, the Purchaser, its
successors and assigns, all of the Seller"s right, title and interest, legal or
equitable, in and to the documents described in the Mortgage Loan Schedule. The
terms of this Xxxx of Sale shall not supersede the terms of the Agreement.
IN WITNESS WHEREOF, the Seller has caused this Xxxx of Sale to be executed
as of the date first written above.
FRANKLIN CREDIT MANAGEMENT CORPORATION
______________________________________
By: __________________________________
Title: _______________________________
