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EXHIBIT 10.14
MORTGAGE LOAN PURCHASE AGREEMENT
THIS Mortgage Loan Purchase Agreement (the "Agreement"), is made and
entered into as of May 1, 1998 by and between RealTrust Asset Corporation
("Purchaser") and CMG Funding Corp. ("Seller").
WITNESSETH
WHEREAS, Seller is engaged in the business of originating and selling
mortgage loans secured by real property; and
WHEREAS, Purchaser may desire to purchase from Seller from time to time
certain of those mortgage loans; and
WHEREAS, the parties intend hereby to set forth the terms and conditions
upon which the transactions will be effected.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual
agreements contained herein, the Purchaser and Seller agree as follows:
SECTION 1. Definitions. Whenever used herein, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
Acquisition Cost: Amount paid by Seller to acquire mortgage loans
whether from its customers through its wholesale production operation, either on
a flow or bulk basis or from Seller's retail operations.
Agreement: This Mortgage Loan Purchase Agreement and all
amendments hereof and supplements hereto.
Assignment of Security Instrument: Assignment of all Seller's
rights, title and interest in and to a Security Instrument for the benefit of
Purchaser, in a form acceptable to Purchaser, to be executed by Seller in
connection with each Mortgage Loan purchased hereunder, as applicable.
Custodian: Such nationally recognized bank or financial
institution as Purchaser may designate in writing from time to time.
Document Delivery Procedures: Procedures established by Purchaser
for the delivery of Loan Documents evidencing Loans to be purchased hereunder,
attached hereto as Exhibit "B", as may be amended from time to time by Purchaser
in its sole discretion.
Mortgage Loans: Each Mortgage Loan identified in the Schedule of
Loans Delivered that, from time to time, are subject to this Agreement.
Mortgage Loan Documents: For any Mortgage Loan, at least the
documents listed on Exhibit "B" hereto, as well as any other documents in
Seller's possession relating to the Mortgage Loan.
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Mortgaged Premises: The fee simple interest in real property for
each Mortgage Loan purchased which shall consist only of real property improved
by one-to-four family residences, covered by a Security Instrument and securing
an Obligor's indebtedness under the related Note.
Note: Instrument evidencing the indebtedness of the Obligor under
a Mortgage Loan.
Obligor: The borrower or borrowers under a Note, any other person
or entity who owes payments under a Note, or a subsequent owner of Mortgaged
Premises who has assumed the respective Security Instrument.
Purchase Date: The funding date for the purchase of Mortgage
Loans hereunder as agreed to by the parties in writing on the Schedule of Loans
Delivered.
Schedule of Loans Available: A list of Mortgage Loans available
for sale that at a minimum includes the loan number, borrower name, and loan
amount, and such other pertinent information that Purchaser deems reasonably
necessary in the circumstances, and that is also readily available to Seller.
Schedule of Loans Delivered: A listing of Mortgage Loans from
any Schedule of Loan Available to Purchaser desires to acquire.
Security Instrument: All deeds of trust, deeds to secure debt,
trust deeds or mortgages, as applicable securing repayment of the indebtedness
evidenced by a Note executed by an Obligor for a Mortgage Loan purchased
hereunder, as applicable.
Servicing Transfer Date: The date for the transfer of servicing
of Mortgage Loans from Seller to Purchaser as agreed to by the parties in
writing on the Schedule of Loans Delivered. Unless otherwise agreed to in
writing, the Servicing Transfer Date will be the Purchase Date.
SECTION 2. Right of First Refusal. Agreement to Sell and Purchase.
(a) During the term hereof, Seller agrees to offer to Purchaser
the right of first refusal to purchase any and all Mortgage Loans originated or
acquired by Seller, except those Mortgage Loans which Seller is obligated to
sell to ContiFinancial Corporation pursuant to that certain Investment Banking
Services Agreement dated as of December 17, 1996, as amended. Seller shall, not
less frequently than every two weeks, prepare and deliver to Purchaser a
Schedule of Loans Available setting forth all Mortgage Loans originated or
acquired by Seller and available for sale (or expected to be available for
sale). Upon receipt of any Schedule of Loans Available, Purchaser shall, within
10 business days, determine which, if any, of the Mortgage Loans thereon that
it desires to acquire. within such 10-day period Purchaser shall deliver a
completed Schedule of Loans Delivered identifying the desired Mortgage Loans.
If Purchaser does not deliver a Schedule of Loans Delivered within 10 days
after its receipt of a Schedule Loans Available, Seller shall be permitted to
sell such Mortgage Loans to third parties. The price of any Mortgage Loan
purchase shall be as set forth in subsection (c) below.
(b) Pursuant to the terms of this Agreement, Seller hereby agrees
to sell, transfer, assign, set over and convey to the Purchaser, subject to the
terms of this Agreement, all rights, title and interest of the Seller in and to
the Mortgage Loans and the Purchaser hereby agrees to purchase the Mortgage
Loans listed on the Schedule of Mortgage Loans Delivered.
(c) The Purchase Price paid by Purchaser to Seller for Mortgage
Loans shall be as follows:
The Acquisition Cost for the Mortgage Loans plus a
percentage of the unpaid principal balance of the Mortgage Loans delivered to
the Purchaser under this Agreement. Such percentage will be agreed to by an
officer of both Seller and Purchaser and may change based on the nature of
Mortgage Loans being purchased. The Purchase Price will be presented to the
Board of Directors of both Seller and Purchaser at their regularly scheduled
meetings for review and approval. Acquisition Cost for Mortgage Loans will be
determined by Seller and communicated at least weekly to Purchaser in writing
via its wholesale rate sheet. An officer of the Purchaser must approve any
variations to the Acquisition Cost as published in writing.
(d) Unless otherwise agreed to by the parties hereto, the sale of
Mortgage Loans hereof shall be made on a "servicing released" basis and shall
constitute a transfer by Seller to Purchaser of all rights of every kind with
respect to the servicing of each Mortgage Loan. Unless otherwise agreed to by
both parties hereto, this transfer of servicing rights to Purchaser will be
effective as of the Servicing Transfer Date.
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(e) Unless otherwise agreed to by the parties hereto, the amount
of Mortgage Loans to be acquired by Purchaser from Seller is limited to $1
billion annually.
SECTION 2.1. Assignment of Servicing. Seller hereby assigns and releases
all servicing rights and responsibilities including without limitation, all
rights to receive servicing fees and other servicing-related income and
benefits, with respect to each Mortgage Loan purchased under this Agreement to
and for the benefit of Purchaser, as of the Servicing Transfer Date.
SECTION 2.2. Interim Servicing. Notwithstanding anything to the contrary
contained in this Agreement, to the extent that the actual servicing of any
Mortgage Loan can not be transferred on the Purchase Date due to the
requirements governing the timing of notice of transfer of servicing under the
Real Estate Settlement Procedures Act and Regulation X thereunder, or as
otherwise agreed by the Seller and the Purchaser, Seller shall service such
Mortgage Loans as a subservicer on behalf and for the benefit of Purchaser
pursuant to the terms and conditions of this Section 2.2. Seller shall service
such Mortgage Loans from and after the Purchase Date until the Servicing
Transfer Date in compliance with reasonable and customary servicing practices
and procedures of prudent loan servicers that service Mortgage Loans similar to
the Mortgage Loans. Within three business days after the Servicing Transfer
Date, Seller shall remit to Purchaser, by wire, all amounts received by Seller
prior to and including the Servicing Transfer Date, (including without
limitation monies received or held in reserve for the payment of taxes,
insurance premiums or other charges in connection with the Mortgage Loan, plus
interest thereon) together with the following: (a) a summary of remittances; (b)
a trial balance of Mortgage Loans, (c) a monthly collection report, and (d) as
appropriate, arrears and prepayment reports.
SECTION 2.3. Relationship between Purchaser and Seller. Seller is acting
as an independent contractor and not as an agent of the Company for purposes of
purchasing Mortgage Loans and selling such Mortgage Loans to Purchaser.
Purchaser and Seller are not partners or joint venturers with each other and
nothing herein shall be construed to make them such partners or joint venturers
or impose any liability as such on either of them. In that regard, this
Agreement is not intended to be an exclusive arrangement. Unless otherwise
agreed to by both parties, nothing herein shall prevent Seller from engaging in
other businesses or from rendering other services of any kind to any other
person or entity, including the sale of its Mortgage Loans, or the servicing of
loans. In the event that Purchaser seeks a commitment from Seller to acquire all
of Seller's mortgage loan production for some period of time, Seller must
receive approval from it's Board of Directors and receive appropriate
compensation for such a commitment.
SECTION 2.4. Term of Agreement. This Agreement will automatically
terminate on December 31, 2003, unless both Purchaser and Seller agree in
writing to extend the Agreement, after receiving approval by their respective
Board of Directors.
SECTION 3. Delivery of Documents and Other Information. Seller will
deliver to the Custodian the Mortgage Loan Documents and upon receipt by Seller
of the Purchase Price, Seller will instruct the Custodian to release the
Mortgage Loan Documents to Purchaser.
SECTION 4. Representations and Warranties of the Seller with Respect to
Authority and Other Matters. Seller hereby makes as of the Purchase Date the
following representations and warranties:
(a) Seller has not dealt with any broker or agent or other
parties who might be entitled to a fee or commission in
connection with this transaction other than Purchaser or
its affiliates;
(b) Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware with full corporate power necessary to carry on
its business as now being conducted; Seller 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 (including all instruments of transfer to be
delivered
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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 all documents by the Seller pursuant to this
Agreement are not subject to the bulk transfer or any
similar statutory provision in effect in any applicable
jurisdiction;
(d) Neither the execution and delivery of this Agreement,
the sale of 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
Seller's charter or by-laws or any legal restriction or
any material agreement or instrument to which the Seller
is now a party or by which it is bound, or constitute a
default or result in an acceleration under any of the
foregoing, 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 ability
of the Purchaser to realize on the Mortgage Loans, or
impair the value of the Mortgage Loans;
(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,
properties or assets of the Seller, or in any material
impairment of the right or ability of the Seller to
carry on its business substantially as now conducted, or
in any material liability on the part of the Seller, or
that would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken
or to be taken in connection with the obligations of the
Seller contemplated herein, or that would be likely to
impair materially the ability of the Seller to perform
under the terms of this Agreement;
(f) No consent, approval, authorization or order of any
court or governmental agency is required for the
execution, delivery and performance by the Seller, or
compliance by the Seller, 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 Purchase Date. However, Seller's
participation in this Agreement will be approved by its
Board of Directors;
(g) Seller used no adverse selection procedures in selecting
the Mortgage Loans from among the outstanding mortgage
loans in its portfolio as to which representations and
warranties in this Section of the Agreement could be
made;
(h) Seller will treat the disposition of the Mortgage Loans
as a sale of assets for financial accounting and
reporting purposes;
(i) Seller is the sole owner of, and has the full right to
sell to the Purchaser, all rights with respect to the
servicing of the Mortgage Loans following the Purchase
Date;
(j) Seller will not solicit any of the borrowers listed on
the Schedule of Loans Delivered in order to refinance
their mortgage loan without prior written approval from
the Purchaser; and
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(k) Seller hereby warrants that it is compliance with all
applicable licensing requirements of federal, state, and
local governmental authorities, including, without
limitation, any such requirements in the jurisdictions
in which each Mortgaged Premises is located.
SECTION 4.1 Representations and Warranties of the Seller Regarding
Individual Mortgage Loans. Seller hereby represents and warrants to Purchaser
with respect to each Mortgage Loan that, as of the Purchase Date thereof:
(a) The information set forth on the Schedule of Loans
Delivered is complete, true and correct in all material
respects.
(b) All policies of title insurance, hazard insurance, and
flood insurance respecting such Mortgage Loan and the
related premises and improvements thereon are in full
force and effect, have been fully paid and have been
issued by sound and financially responsible insurance
companies, duly licensed and qualified to transact
business, and are in such amounts as are reasonably
required by Purchaser or as required by law. All such
policies insure Seller, among others, as loss payee
thereunder, in a form such that it may be endorsed to
Purchaser as loss payee as required hereunder, and there
are no facts or circumstances which could provide a
basis for revocation of any policies or defense to any
claims made thereon. If such Property is located in a
flood area identified by the Federal Emergency
Management Agency ("FEMA") pursuant to the National
Flood Insurance Act of 1968, as amended, (the "Act") a
flood insurance policy issued by FEMA, or one conforming
to the requirements of the Federal Housing
Administration, has been obtained and complies with this
Subsection (b) and the Act.
(c) The Mortgage Loan is secured by a valid, existing and
enforceable lien on the Mortgaged Premises, including
improvements with respect to the foregoing. The Security
Instrument is subject only to the lien of (a) current
real property taxes and assessments, (b) covenants,
conditions and restrictions, rights of way, easements
and other matters of public record as of the date of
recording acceptable to mortgage lending institutions
generally and specifically referred to in the title
insurance policy and which do not adversely affect the
appraised value of the Mortgaged Premises set forth in
such appraisal; and (c) other matters to which like
properties are commonly subject which do not materially
interfere with the benefits of the security intended to
be provided by the Security Instrument or the use,
enjoyment, value or marketability of the related
Mortgaged Premises;
(d) 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 the Note and the Security
Instrument have been duly and properly executed by such
parties;
(e) The terms of the Note and the Security 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 interest of the
Purchaser and which has been delivered to the Custodian.
The substance of any such waiver has been approved by
the issuer of any related Primary Mortgage Insurance
Policy and the title insurer, to the extent required by
the policy, and its terms are reflected on the Schedule
of Loans Delivered. No borrower has been released, in
whole or in part, except in connection with an
assumption agreement approved by the issuer of any
related Primary Mortgage Insurance Policy and the title
insurer, to the extent required by the policy, and which
assumption agreement is part of
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the Mortgage Loan Documents delivered to the Custodian
and the terms of which are reflected in the Schedule of
Loans Delivered.
(f) The Mortgage Loan is not subject to any right of
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 or the
Security Instrument, or the exercise of any right
thereunder, render either the Note or the Security
instrument unenforceable, in whole or in part, or
subject to any right of rescission, set-off,
counterclaim or defense, including without limitation
the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with
respect thereto;
(g) There are no defaults in complying with the terms of the
Security Instruments, and all taxes, governmental
assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or
an escrow of funds has been established in an amount
sufficient to pay for every such item which remains
unpaid and which has been assessed but is not yet due
and payable. 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;
(h) Requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending,
real estate settlement procedures, consumer credit
protection, equal credit opportunity or disclosure laws
applicable to the Mortgage Loan have been complied with
in all material respects;
(i) The Security Instrument has not been satisfied,
canceled, subordinated or rescinded in whole or in part,
and the Mortgaged Premises has 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;
(j) The proceeds of the Mortgage Loan have 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
disbursements of any escrow funds thereof have been
complied with. 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 amounts paid or due
under the Note or Security Instrument;
(k) Seller is the sole owner of the Mortgage Loan and there
has not been any other sale or assignment thereof. The
related Note and Security Instrument delivered to
Purchaser are the only executed copies thereof.
(l) There is no default, breach, violation or event of
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;
(m) There are no mechanics' liens or claims which have been
filed for work, labor or material affecting the
Mortgaged Premises which are or may be liens prior to or
equal to the lien of the related Security Instrument;
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(n) There is no proceeding pending for total or partial
condemnation of the related Mortgaged Premises or any
part thereof and such Mortgaged Premises are free of
material damage. No improvement encumbered by such
Mortgage Loan is in violation of any applicable zoning
law or regulation, building code or any valid
restrictive or protective covenant or setback line. No
improvement on such Mortgaged Premises is a mobile home
or manufactured home unless specifically approved by
Purchaser in writing prior to purchase;
(o) The Mortgage Loan was underwritten generally in
accordance with the underwriting guidelines of the
Seller as presented to the Purchaser;
(p) The related 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 related Mortgaged Premises of
the benefits of the security provided thereby,
including: (a) in the case of a Security Instrument
designated as a deed of trust, by trustee's sale; and
(b) otherwise by judicial foreclosure. In the event that
such Security Instrument constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so
serves, and is named in the Security Instrument or has
been substituted in accordance with applicable law and
no fees or expenses will become payable by Purchaser to
such trustee under the deed of trust, except in
connection with a trustee's sale after default by the
Obligor;
(q) The origination and collection practices used with
respect to the Mortgage Loan have been in all respects
legal, proper, prudent and customary in the mortgage
origination and servicing business, and have been in all
respects in compliance with all applicable laws and
regulations. With respect to escrow deposits and escrow
payments, all such payments are in the possession of the
Seller and there exist no deficiencies in connection
therewith for which customary arrangement for repayment
thereof have not been made. All escrow payments have
been calculated and collected in full compliance with
state and federal law;
(r) Such Mortgage Loan does not fall within the coverage of
Section 103(aa) of the Truth-in- Lending Act, as
amended, nor Section 226.32 of Federal Reserve Board Reg
Z, as amended, which govern certain mortgages commonly
known as "high cost mortgages" or "Section 32 loans";
(s) The Mortgage Premises is free from any and all toxic or
hazardous substances, and there exists no violation of
any local, state or federal environmental law, rule or
regulation; and
(t) No prepayment penalty, as set forth in the terms of the
Note and Security instrument, has been waived or limited
before or after an interest rate change date.
SECTION 5. Representations and Warranties of the Purchaser. The
Purchaser hereby makes as of the Purchase Date the following representations and
warranties:
(a) Purchaser is acquiring Mortgage Loans for its own
account only and not for any other person;
(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;
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(c) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Maryland with full corporate power 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 is 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
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 material 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 foregoing, or result in
the violation of any 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 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 result in any material liability on the
part of the Purchaser, or that would draw into question
the validity of this Agreement or the Mortgage Loans or
of any action taken or to be taken in connection with
the obligations of the 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 acquisition 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 Purchase Date. However,
Purchaser's participation in this Agreement will be
approved by its Board of Directors.
SECTION 6. Remedies. In the event that a party discovers a breach of a
representation and warranty set forth in Section 4, Section 4.1 or Section 5
that materially and adversely affects the value of any of the Mortgage Loans or
the interest of the Purchaser therein, such party shall give prompt notice to
the other parties hereto. The party in breach shall have 60 days, after receipt
of notice of such breach, in which to cure in all material respects such breach.
In the event that the Seller is unable to cure in all material respects a breach
of a representation and warranty set forth in Section 4 or Section 4.1 as to any
Mortgage Loans, then the Seller shall promptly repurchase each affected Mortgage
Loan at a price equal to the unpaid principal balance of such Mortgage Loan plus
accrued and unpaid interest thereon at the gross coupon rate through the date of
repurchase (the Repurchase Date). In the event that the Seller repurchases a
Mortgage Loan such Mortgage Loan will be returned to the Seller.
As an additional remedy, 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
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and expenses arising out of or resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, (a) a breach by the
Seller of any of its covenants, representation or warranties contained in this
Agreement or (b) the servicing of any Mortgage Loan prior to the transfer of
servicing.
The Purchaser shall indemnify the Seller and hold it harmless against
any losses, damages, penalties, fines, forfeiture, 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 or
grounded upon, or resulting from, (a) a breach by the Purchaser of any of its
covenants, representations or warranties contained in this Agreement or (b) the
servicing of any Mortgage Loan following the transfer of servicing.
SECTION 7. Successor and Assigns. This Agreement shall bind and inure to
the benefit of and be enforceable by the Seller and the Purchaser and the
respective successors and assigns of the Seller and the Purchaser. This
Agreement shall not be assigned, pledged or hypothecated by the Seller to a
third party without the consent of the Purchaser or the successors and assigns
of the Purchaser which shall not be unreasonably withheld or delayed.
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
Purchase Date are subject to the satisfaction of the following conditions:
(a) All representations and warranties of Seller and
Purchaser under this Agreement shall be true and correct
as of the Purchase 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 Loan Documents shall have been delivered to
the Custodian; and
(c) All other terms and conditions of this Agreement shall
have been complied with in all material respects.
Subject to the foregoing conditions, Purchaser shall pay the Purchase
Price to Seller on the Purchase Date by wire transfer of immediately available
funds to the account designated by Seller.
SECTION 9. Costs. Seller shall pay any commissions due its salesmen, the
legal fees and expenses of its attorneys, and fees incurred in connection with
the transfer of the Mortgage Loan Documents to the Custodian. Seller shall
prepare the Assignment of Security Instrument and pay all recording fees with
respect to the transfer of each Mortgage Loan to Purchaser or its designee.
SECTION 10. Notices. All demands, notices and communication hereunder
shall be in writing and shall be deemed to have been duly given when mailed by
registered or certified mail, return receipt requested at the address listed
below or at 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 follows: if to Purchaser: RealTrust Asset
Corporation, 0000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx
00000, Attn: Chairman, and if to Seller: CMG Funding Corp., 0000 Xxxx Xxxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000, Attn: President.
SECTION 11. Severability Clause. Any part, provision, representation or
warranty of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions.
SECTION 12. 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.
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SECTION 13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Utah.
SECTION 14. Waivers. 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 15. Exhibits. The exhibits to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
SECTION 16. Survival. This Agreement, and the representations and
warranties contained herein, shall survive the Purchase and shall not merge into
the purchase documents.
SECTION 17. Amendment. This Agreement may only be amended with the
written consent of both Seller and Purchaser.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the date first above written.
RealTrust Asset Corporation
By:______________________________________
Name:____________________________________
Title:___________________________________
CMG Funding Corp.
By:______________________________________
Name:____________________________________
Title:___________________________________
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EXHIBIT "B"
List of Mortgage Loan Documents
and Delivery Procedures
Required Mortgage Loan Documents
(1) Original Note bearing all intervening endorsements and (if applicable)
the original recorded assumption agreement, together with the original
of any surety agreement or guaranty agreement relating to the Note or
any such assumption agreement, endorsed in blank.
(2) Buy-down Agreement (if applicable)
(3) Security Instrument (including any required addenda and riders)
consisting of either the recorded original or a certified copy of the
original if the Security Instrument is unavailable because it is in the
process of being recorded or the original in a form suitable for
recording;
(4) Originals or certified copies of any intervening Assignment of the
Security Instrument;
(5) Original unrecorded Assignment of the Security Instrument in blank;
(6) An original Title Insurance Policy; if any such policy has not been
issued, a written commitment for such policy (or a copy thereof) issued
by the title insurance company or a binder or Preliminary Title Report
if the Mortgaged Premises is located in California.
(7) Credit file - the same file used by RealTrust during its underwriting of
the Mortgage Loan.
(8) Servicer file - to be delivered with the transfer of servicing.
Delivery Instructions
Mortgage Loans must be delivered to:
RealTrust Asset Corporation
0000 Xxxx Xxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
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