MASTER AGREEMENT FOR
SALE AND PURCHASE OF MORTGAGE LOANS
This Master Agreement for Sale and Purchase of Mortgage Loans is made
this 31st day of August, 1999, between BankBoston, N.A., having its principal
office and place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 ("Buyer"),
and Westmark Mortgage Corporation, a corporation with its principal office and
place of business at 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxx Xxxxx, XX 00000
("Seller").
PRELIMINARY STATEMENT
WHEREAS, Seller desires to sell, from time to time, to Buyer, and Buyer
desires to purchase, from time to time, from Seller, certain residential first
and second mortgage loans as described herein on a servicing-released basis, and
which shall be delivered in groups of whole loans on various dates as provided
herein (each a "Settlement Date"); and
WHEREAS, Buyer and Seller desire to prescribe the manner, terms and
conditions of the sale and conveyance of the Mortgage Loans.
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller agree as follows:
ARTICLE 1. DEFINITIONS
1.1 Definitions. Whenever used in this Agreement, the following words
and phrases, unless the context otherwise requires, shall have the following
meanings:
Agreement: This Agreement, including all Schedules and Exhibits hereto,
as the same may be amended and supplemented from time to time.
Appraisal: A written statement independently and impartially prepared
by a qualified appraiser setting forth an opinion as to the market value of the
Mortgaged Property in accordance with the Financial Institutions Reform,
Recovery and Enforcement Act of 1989 and the regulations thereunder.
Approval Advice: See Section 2.3 of this Agreement.
Assignment of Mortgage: An individual assignment of a Mortgage, notice
of transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
give record notice of and effect to the sale of the Mortgage to Buyer.
Xxxx of Sale and Assignment: A Xxxx of Sale and Assignment in the form
of Exhibit C hereto.
Business Day: Any day other than a Saturday or Sunday, or a day on
which banking institutions in the state in which Buyer maintains its principal
office are authorized or obligated by law or executive order to be closed.
Confirmatory Memorandum: See Section 2.2 of this Agreement.
FHLMC: Federal Home Loan Mortgage Corporation or any successor thereto.
FNMA: Federal National Mortgage Association or any successor thereto.
HELOC: A Mortgage Loan that is a home equity line of credit or any
other arrangement under which the Mortgagor has the right to demand further
advances from the mortgagee.
Loan Documents: As to each Mortgage Loan, all agreements, records and
documents in Seller's files with respect to a Mortgage Loan, including at a
minimum but not limited to the documents specified in Exhibit A hereto.
Loan to Value Ratio or LTV: The sum of the original principal amount of
the Mortgage Loan (or, if the Mortgage Loan is a HELOC, the Maximum Loan Amount
of the Mortgage Loan) and the outstanding principal balance of the Permitted
Prior Encumbrance, if any, at the time of origination of the Mortgage Loan,
divided by the lesser of (i) the original purchase price of the Mortgaged
Property if Mortgagor purchased the Mortgaged Property within twelve months of
the Mortgage Loan origination date or (ii) the fair market value of the
Mortgaged Property as set forth in the Appraisal as of a date within 45 days
before the Mortgage Loan origination date.
Maximum Loan Amount: With respect to each Mortgage Loan that is a
HELOC, the maximum principal amount that may be outstanding at any time under
the terms of the related Loan Documents.
Mortgage: The mortgage, deed of trust, and any other document
constituting the basic instruments creating a first or second lien on the real
property owned by the Mortgagor and securing the Note.
Mortgage Loan: An individual residential mortgage loan offered or sold
by Seller to Buyer pursuant to this Agreement, including but not limited to, all
right, title and interest in, to and under all documents, agreements,
instruments and records in respect thereof and all rights, benefits, collateral,
payments, recoveries, proceeds and obligations arising therefrom or in
connection therewith. The Mortgage Loans sold, assigned and transferred to Buyer
under this Agreement shall be identified as provided in Section 3.1 hereof.
Mortgage Loan Schedule: The schedule of Mortgage Loans to be delivered
to Buyer on each Settlement Date as provided in Section 3.1 hereof, which shall
specify each Mortgage Loan purchased by Buyer on that Settlement Date and, as to
each such Mortgage Loan, shall contain the information specified in Exhibit B
hereto.
Mortgaged Property: The real property subject to the Mortgage which
secures a Mortgage Loan.
Mortgagor: The obligor or obligors under a Mortgage Loan.
Note: The original Note or other instrument or agreement evidencing the
indebtedness of the Mortgagor under a Mortgage Loan.
Permitted Prior Encumbrance: With respect to each Mortgage Loan, a
single recorded mortgage, deed of trust or similar lien instrument having lien
priority over the Mortgage and securing indebtedness not exceeding the amount
specified in the Mortgage Loan Schedule as to such Mortgage Loan.
Preliminary Mortgage Loan Schedule: The listing of loans, in the form
of a Mortgage Loan Schedule, which is to be provided to Buyer pursuant to
Section 2.1 hereof on which Seller identifies the Mortgage Loans offered for
sale to Buyer.
Premium: The premium, if any, included in the Purchase Price of a
Mortgage Loan, expressed as a percentage of the unpaid principal balance of the
Mortgage Loan on the Settlement Date, as specified in the Confirmatory
Memorandum as to that Mortgage Loan.
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Purchase Price: The purchase price for each Mortgage Loan shall be an
amount as of the Settlement Date equal to the sum of the: (1) unpaid principal
balances of the Note; (2) accrued interest which is due and not yet paid or
capitalized, calculated in accordance with the terms of the Note, up to but not
including the Settlement Date; and (3) any Premium in accordance with the
Confirmatory Memorandum; less (4) any discount due Buyer in accordance with the
Confirmatory Memorandum.
Repurchase Price: The sum total of: (1) the outstanding principal
balance of the Mortgage Loan, with accrued interest thereon which is due and not
yet paid, through the date the Mortgage Loan is repurchased by Seller; (2) all
advances made by Buyer and all charges due from the Mortgagor; (3) the total
amount, including accrued interest and other expenses paid by Buyer to any
senior lienholders to secure a priority lien position; (4) all reasonable and
necessary expenses, losses and damages paid or incurred by Buyer in connection
with the Mortgage Loan or an investigation of said Mortgage Loan and/or the
related collateral, including, but not limited to, property taxes, maintenance
costs, interest expense, insurance, appraisals, advertising, sales commissions,
reasonable attorney fees, expenses and costs, fines and penalties; and (5) if
the demand for repurchase was made within one year after the Settlement Date,
the Premium, if any, paid by Buyer in respect of the repurchased Mortgage Loan.
Settlement Date: Each date of the funding or payment of the Purchase
Price by Buyer for Mortgage Loans purchased pursuant to this Agreement.
Title Insurance Policy: A mortgagee's title insurance policy, in
standard ALTA loan policy form, which has been validly issued by a title insurer
duly qualified in the jurisdiction in which the Mortgaged Property is located,
which is in full force and effect, which is in an amount at least as great as
the outstanding principal balance of the Mortgage Loan, and which names Seller,
its successors and assigns as the insured party.
Underwriting Guidelines: The BankBoston Wholesale Seller's Manual
heretofore delivered to Seller as may from time to time be amended by Buyer.
ARTICLE 2. OFFER TO SELL AND ACCEPTANCE OF OFFER
2.1 Offer. Subject to the terms and conditions of this Agreement,
during the term of this Agreement, Seller shall offer to sell Mortgage Loans to
Buyer by submitting to Buyer from time to time, for Buyer's review, a
Preliminary Mortgage Loan Schedule together with originals or copies of the Loan
Documents for each of the Mortgage Loans so offered to Buyer. Each such
Preliminary Mortgage Loan Schedule shall include or be accompanied by Seller's
proposed rating of each of the Mortgage Loans therein, in accordance with the
pricing standards attached hereto as Exhibit D, sufficient to identify the
Purchase Price (including any Premium or discount to be used in computing the
Purchase Price) that Seller proposes for each of such Mortgage Loans.
2.2 Acceptance. (a) Buyer may accept Mortgage Loans offered by Seller
by delivering to Seller, within three Business Days after Buyer's receipt of the
Preliminary Mortgage Loan Schedule and Loan Documents, Buyer's confirmatory
memorandum (the "Confirmatory Memorandum") specifying the Mortgage Loans on the
Preliminary Mortgage Loan Schedule that Buyer will purchase and the Purchase
Price (specifying any Premium or discount to be used in computing the Purchase
Price) for each such Mortgage Loan.
(b) Buyer and Seller shall use reasonable efforts to resolve
any difference as to the rating or applicable Purchase Price in respect of any
Mortgage Loan before Buyer delivers its Confirmatory Memorandum. If the
Confirmatory Memorandum specifies a rating or applicable Purchase Price for any
Mortgage Loan that is different from that proposed or previously agreed by
Seller and to which Seller objects, Seller may by prompt notice to Buyer
withdraw the offer of that Mortgage Loan.
(c) If any submission to Buyer under Section 2.1 shall be
incomplete and Buyer shall require completion of the Preliminary Mortgage Loan
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Schedule or Loan Documents to complete Buyer's review, Buyer shall so notify
Seller within three Business Days after Buyer's receipt of such incomplete
information or documents. Buyer shall have an additional three Business Days
after receipt of the complete Preliminary Loan Schedule and Loan Documents in
which to accept such Mortgage Loans by delivery of a Confirmatory Memorandum.
Buyer shall promptly return to Seller the originals and copies of all Loan
Documents with respect to any Mortgage Loan that Buyer does not accept for
purchase.
2.3 Approval Advice. On occasion, Buyer may deliver to Seller a written
Approval Advice whereby Buyer shall agree, in advance of the origination of a
specific Mortgage Loan, to purchase that Mortgage Loan from Seller after
origination.
2.4 Buyer's Discretion. Except as to Mortgage Loans that Buyer shall
have committed to purchase by an Approval Advice, Buyer shall be under no
obligation to purchase any Mortgage Loan offered by Seller and shall have the
absolute and sole discretion and option to agree or decline to purchase any
Mortgage Loan submitted by Seller for Buyer's review.
ARTICLE 3. PURCHASE AND SALE OF MORTGAGE LOANS
3.1 Purchase and Sale. (a) The purchase and sale of all Mortgage Loans
accepted by Buyer shall be completed on the Settlement Date for those Mortgage
Loans, which shall be the third Business Day after Buyer's delivery of its
Confirmatory Memorandum or such other date as to which the parties shall
mutually agree.
(a) On each Settlement Date hereunder, Seller shall sell,
assign, transfer, convey and deliver to Buyer each of the Mortgage Loans that
Buyer has accepted pursuant to the related Confirmatory Memorandum, which sale
shall be confirmed by Seller's execution and delivery to Buyer of a Xxxx of Sale
and Assignment dated as of the Settlement Date, together with a Mortgage Loan
Schedule listing all of the Mortgage Loans purchased by Buyer on that Settlement
and including the information specified in Exhibit B hereto to be included in a
Mortgage Loan Schedule.
(b) On each Settlement Date, the Purchase Price for the
Mortgage Loans purchased on that Settlement shall be paid by Buyer by wire
transfer to an account designated by Seller.
3.2 Delivery of Loan Documents. (a) On or before the Business Day
immediately preceding each Settlement Date, Seller shall deliver to Buyer the
following for each Mortgage Loan to be purchased on that Settlement Date:
(1) The original Note bearing all intervening endorsements,
endorsed "Pay to the order of BankBoston, N.A., without
recourse" and signed in the name of Seller by an authorized
officer;
(2) The original Mortgage with evidence of recording thereon;
(3) The originals of all intervening assignments of the Mortgage
with evidence of recording thereon showing an unbroken chain
of title from the originator of the Mortgage Loan to Seller;
(4) The original Assignment of Mortgage for each Mortgage Loan, in
recordable form, in blank;
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(5) The Title Insurance Policy or, in lieu thereof, the title
insurer's binder or commitment to issue the Title Insurance
Policy with a statement by the title insurer or its authorized
agent on such commitment or binder that the priority of the
lien of the Mortgage as of the date of the origination of the
Mortgage Loan is insured; provided, however, that if a binder
or commitment shall be delivered in lieu of the Title
Insurance Policy, the Title Insurance Policy in conformity
with the binder or commitment shall be delivered to Buyer
within sixty (60) days after the Settlement Date;
(6) If the Mortgage Loan has at any time been subject to any
security interest, pledge or hypothecation for the benefit of
any person, Seller shall deliver to Buyer, inform satisfactory
to Buyer, a certification by the former secured party that
such security interest has been released.
(b) In the event that Seller cannot deliver to Buyer a duly
recorded Mortgage or assignment of Mortgage or any other document required to be
recorded under this Agreement when required above solely because of a delay
caused by the public recording office when such document(s) has been delivered
for recordation, Seller shall deliver to Buyer a certified copy of each such
document(s) with a statement thereon signed by an officer of the title insurer,
the closing agent or the closing attorney certifying each to be a true and
correct copy of document(s) delivered to the appropriate public recording
official for recordation. Seller shall deliver to Buyer such recorded
document(s) with evidence of recording indicated thereon no later than 15 days
after Seller receives such document, but in any event, no later that 120 days
from the Settlement Date. In the event that missing documents are not received
by Buyer within the above-stated time period strictly as a result of delay
caused by the public recording office(s), Buyer may by written consent extend
the time for delivery of the missing documents if in Buyer's sole discretion
Seller is using prudent and diligent follow-up efforts to obtain and deliver the
missing documents. In the event that missing documents are not received by Buyer
within the above-stated time period or any extension thereof to which Buyer
shall have agreed in Buyer's discretion, Buyer may, at any time thereafter
before Buyer's receipt of such missing original documents, exercise any of the
remedies provided in Article 5 hereof.
(c) Within three Business Days following the Settlement Date,
Seller shall deliver to Buyer all other Loan Documents not theretofore delivered
or required to have been delivered to Buyer.
3.3 Conditions of Settlement. Buyer's obligations to purchase Mortgage
Loans on each Settlement Date shall be subject to Seller's satisfaction or
Buyer's waiver of each of the following conditions:
(a) All of Seller's representations and warranties under this
Agreement shall be true and correct as of the related Settlement Date and no
event shall have occurred which, with notice or the passage of time, would
constitute a breach of Seller's representations, warranties or obligations under
this Agreement;
(b) Buyer shall have received all documents as specified
herein, in such forms as are agreed upon and acceptable to Buyer, duly executed
by all signatories;
(c) Seller shall have delivered to Buyer before the first
Settlement Date, in form and substance satisfactory to Buyer, an opinion of
Seller's counsel as to the matters in Sections 4.1(a) through (f), inclusive.
(d) Seller shall have delivered to Buyer a certificate of
Seller's Secretary or Clerk, including a true and correct copy of resolutions of
Seller's Board or Directors or other authorization for Seller's execution,
delivery and performance of this Agreement and designating the officers or other
representatives of Seller authorized to execute and deliver this Agreement, to
endorse and deliver Notes, to execute and deliver instruments of assignments and
to act for Seller in respect of transactions under this Agreement.
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(e) All other terms and conditions of this Agreement shall
have been complied with.
3.4 Title and Possession of Loan Files. Upon payment of the Purchase
Price on the Settlement Date, title to the Mortgage Loans, all Loan Documents
and all rights, benefits, collateral, payments, recoveries, proceeds and
obligations arising therefrom or in connection therewith, shall vest in Buyer.
All rights arising out of the Mortgage Loans, including but not limited to all
funds received on or in connection with the Mortgage Loans and all records or
documents with respect to the Mortgage Loans prepared by or which come into the
possession of Seller on or after the Settlement Date, shall be received and held
by Seller in trust for the benefit of Buyer as the owner of the Mortgage Loans
and shall promptly be paid and delivered to Buyer.
3.5 Additional Title Documents. Seller agrees at any time, and from
time to time, upon the request of Buyer on and after the applicable Settlement
Date hereof to use its best efforts to execute and deliver such further
instruments and documents of conveyance as are presented to Seller by or on
behalf of Buyer as shall be reasonably necessary to vest or confirm in Buyer
legal or equitable title in and to the Mortgage Loans and the Loan Documents.
3.6 Adjustments. In the event that within sixty days after any
Settlement Date either party discovers any error or omission with respect to any
payment made by a party pursuant to this Agreement, Seller and Buyer shall
consult with each other and use their best efforts to agree to the proper
calculation or amount and to pay any appropriate cash adjustments therefor.
Neither the correction of any error nor the payment of a cash adjustment in
connection therewith shall be deemed a waiver or cure of any breach of a
representation or warranty contained in Article 5 hereof unless Buyer waives
such breach in writing.
3.7 Advances. From and after the applicable Settlement Date, Buyer
shall make all advances required to be made under any Mortgage Loan that is a
HELOC.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF SELLER
4.1 General Representations and Warranties of Seller. Seller hereby
represents and warrants to Buyer as of the date of this Agreement and as of each
Settlement Date as follows:
(a) Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Florida and has all required
powers and all material governmental licenses, authorization, consents and
approvals required to carry on its business as now conducted. In particular,
Seller is licensed and qualified to transact a mortgage origination business in
and is in good standing under the laws of each state where a Mortgaged Property
is located or is otherwise not required under applicable law to effect such
licensing and qualification, and no demand for such licensing or qualification
has been made upon Seller by any state where a Mortgaged Property is located.
(b) Seller has the full power and authority to hold and sell
the Mortgage Loans, and to execute, deliver and perform, and to enter into and
consummate all transactions contemplated by, this Agreement.
(c) The execution, delivery and performance of this Agreement
has been duly authorized by all required action on the part of Seller, and this
Agreement constitutes the legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws relating to or affecting the rights of
creditors generally, and by general equity principles.
(d) The execution and delivery of this Agreement by Seller and
the performance by Seller of the obligations to be performed by Seller hereunder
do not, and will not, violate any provision of law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award presently in effect
having applicability to Seller or to the corporate charter or by-laws of Seller
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and will not result in a breach of or constitute a default under any indenture
or loan or credit agreement or any other agreement, lease or instrument to which
Seller is a party or by which Seller or any of Seller's properties may be bound
or affected.
(e) No litigation or administrative, investigative or
arbitration proceeding is pending or, to the best of Seller's knowledge,
threatened against Seller, which if determined adversely to Seller would
adversely affect the sale of the Mortgage Loans to Buyer, the execution,
delivery or enforceability of this Agreement or which would have a material
adverse effect on the financial condition of Seller.
(f) No consent, approval, authorization, exemption or order
of, or notice to or registration or filing with, any court or governmental
agency, authority or administrative or regulatory body is required for the
execution, delivery and performance by Seller of or compliance by Seller with
this Agreement, the delivery of the Loan Documents to Buyer the sale of the
Mortgage Loans to Buyer or the consummation of the transactions contemplated by
this Agreement.
(g) Seller has not incurred any obligation, made any
commitment or taken any action which might result in a claim against Buyer or an
obligation by Buyer to pay a sales brokerage commission, finder's fee or similar
fee in respect to the transactions between Buyer and Seller as described in this
Agreement.
4.2 Financial Statements. Seller represents and warrants to Buyer that
Seller's financial statements furnished by Seller to Buyer were prepared in
accordance with generally accepted accounting principles consistently applied,
and fully and fairly present the financial condition of Seller as of the
respective dates thereof and the results of operations for the respective
periods indicated therein, and there has been no material adverse change in the
financial condition or business of Seller since the date of the last of such
financial statements. During the term of this Agreement, Seller shall deliver to
Buyer:
(a) Within 90 days after the last day of each fiscal year of
Seller, a copy of Seller's annual financial statement with the report thereon of
independent certified public accountants in form generally regarded as
unqualified;
(b) Within 45 days after the end of each fiscal quarter,
Seller's internally prepared financial statements for the fiscal quarter and for
the fiscal year-to-date prepared by Seller in accordance with generally accepted
accounting principles consistently applied;
(c) A copy of any statement or report filed by Seller with any
regulatory authority having jurisdiction over Seller, as and when the same shall
be filed with the regulatory authority;
(d) A copy of any notice received by Seller from any Federal
regulatory authority, or any regulatory authority of any state in which Seller
conducts business, that asserts a claim or matter which if adversely determined
would have a material effect on Seller's business or any Mortgage Loans.
(e) Promptly, such other financial information with respect to
Seller and its affiliates as Buyer may reasonably request from time to time.
4.3 Representations and Warranties of Seller As to Each Mortgage Loan.
Seller hereby represents and warrants to Buyer that as of each Settlement Date
with respect to each Mortgage Loan purchased:
(a) All information set forth as to the Mortgage Loan in any
Mortgage Loan Schedule is complete, true and correct; all other information
furnished to Buyer in writing by Seller with respect to the Mortgage Loan is
true and correct; the Loan Documents delivered by Seller to Buyer include all of
Seller's records and documents with respect to the Mortgage Loan; and the
Mortgage Loan conforms to the Underwriting Guidelines and the conditions of any
applicable Approval Advice.
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(b) All payments required under the terms of the Note to have
been made up to 30 days prior to the Settlement Date have been made, and the
first scheduled payment following the Settlement Date shall be made to the
Buyer.
(c) The Note and the Mortgage have not been assigned or
pledged, and Seller has good and marketable title thereto and is the sole owner
thereof and has full right to transfer and sell the Mortgage Loan to Buyer free
and clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest; and the Assignment of Mortgage has been duly executed by Seller and is
in form acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located.
(d) All parties to the Note and the Mortgage had legal
capacity to enter into the Mortgage Loan and to execute and deliver the Note and
the Mortgage; the Note and the Mortgage have been duly and properly executed and
delivered by such parties; the Note and Mortgage are in every respect genuine
and are the legal, valid, binding and enforceable obligations of the Mortgagor;
and the Note and Mortgage contain customary, valid, legal and enforceable
provisions such as to render the fights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security created thereby.
(e) The proceeds of the Mortgage Loan, including any escrows
of such proceeds, have been fully disbursed; the Note and the Mortgage are not
subject to any right of rescission, set-off, counterclaim or defense, including
the defense of usury, nor will the operation of any of the terms of the Note or
the Mortgage, or the exercise of any right thereunder, render the Note or the
Mortgage unenforceable, or subject to any fight of rescission, set-off,
counterclaim or defense, including the defense of usury; and no such fight of
rescission, set-off, counterclaim or defense has been asserted with respect
thereto.
(f) There is no agreement with the Mortgagor regarding any
variation of the interest rate or schedules of payment (except as set forth in
the Note) or other terms and conditions of the Mortgage Loan; no Mortgagor has
been released from liability on the Note; and no property has been released from
the Mortgage.
(g) Any and all 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 and the transfer thereof
hereunder (including notice of transfer of servicing to Buyer) have been
complied with in the origination, servicing and collection of the Mortgage Loan.
(h) The Mortgagor has executed a statement to the effect that
the Mortgagor has received all disclosure materials including the notice of the
right of cancellation or rescission required by applicable law with respect to
the making of the Mortgage Loan and any waiver of any right of cancellation or
rescission exercised by the Mortgagor was in accordance with applicable law and
is binding on the Mortgagor.
(i) The Mortgage was recorded in the appropriate public office
of land evidence records concurrently with the origination of the Mortgage Loan
so as to perfect the lien of the Mortgage under the law of the jurisdiction in
which the Mortgaged Property is located; and the Mortgage is a valid, subsisting
and enforceable lien on the Mortgaged Property, including all improvements on
the Mortgaged Property securing all advances made through the Settlement Date,
subject only to (a) the Permitted Prior Encumbrance, (b) the lien of current
real property taxes and assessments not yet due and payable, (c) covenants,
conditions and restrictions, rights of way, easements and other matters of the
public record as of the date of recording acceptable to mortgage lending
institutions generally and which do not adversely affect the use, value or
marketability of the Mortgaged Property, and (d) other matters to which like
properties are commonly subject which do not materially interfere with or
adversely affect the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the related Mortgaged
Property.
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(j) Seller has not received notice of: (1) any proceeding for
the total or partial condemnation of the Mortgaged Property, (2) any subsequent,
intervening mortgage, lien, attachment, lis pendens or other encumbrance
affecting the Mortgaged Property or (3) or any default under any mortgage, lien
or other encumbrance senior to the Mortgage.
(k) No Mortgagor in respect of the Mortgage Loan is deceased;
there is no proceeding pending for relief by or against any such Mortgagor under
the Federal Bankruptcy Code or any state insolvency law; and there are no
circumstances or conditions with respect to the Mortgaged Property or any such
Mortgagor that can reasonably be expected to cause the Mortgage Loan to become
delinquent or to affect adversely the value or marketability of the Mortgaged
Property.
(l) Where required or customary in the jurisdiction in which
the Mortgaged Property is located, Seller has filed for record a request for
notice of any action by a senior lienholder under a senior lien, and Seller has
notified any senior lienholder in writing of the existence of the Mortgage Loan
and requested notification of any action to be taken against the Mortgagor by
the senior lienholder.
(m) All taxes, ground rents, water charges, sewer rents,
assessments, insurance premiums, leasehold payments, including assessments
payable in future installments or other outstanding charges affecting the
Mortgaged Property are current.
(n) The Appraisal made in connection with the Mortgage Loan
was performed by a qualified appraiser in accordance with the requirements of
the Financial Institutions Reform, Recovery and Enforcement Act of 1989
applicable to federally related mortgage loans.
(o) Seller has not been advised, has received no notice or
report and has no knowledge that any hazardous or toxic materials or wastes or
products regulated by any law or ordinance or asbestos or asbestos products or
materials or polychlorinated biphenyls or urea formaldehyde insulation have been
used or employed in the construction, use or maintenance of the Mortgaged
Property or have ever been stored, treated at or disposed of on the Mortgaged
Property, or that there has occurred or that any person or entity has alleged
that there has occurred, upon the Mortgaged Property any spillage, leakage,
discharge or release into the air, soil or groundwater of any hazardous material
or regulated wastes.
(p) All buildings upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are customary in the area where the Mortgaged Property
is located, pursuant to insurance policies conforming to the requirements of
FNMA and FHLMC. All such insurance policies contain a standard mortgagee clause
naming Seller, its successors and assigns as mortgagee and all premiums thereon
have been paid. If upon origination of the Mortgage Loan, the Mortgaged Property
was in an area identified on a Flood Hazard Map or Flood Insurance Rate Map
issued by the Federal Emergency management Agency as having special flood
hazards (and such flood insurance has been made available) a flood insurance
policy meeting the requirements of the current guidelines of the Federal
Insurance Administration is in effect which policy conforms to the requirements
of FNMA and FHLMC. The Mortgage obligates the Mortgagor thereunder to maintain
all such insurance at the Mortgagor's cost and expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to maintain such
insurance at Mortgagor's cost and expense and to seek reimbursement therefor
from the Mortgagor.
(q) All improvements which were considered in determining the
Appraised Value of the Mortgaged Property lay wholly within the boundaries and
building restriction lines of the Mortgaged Property, and no improvements on
adjoining properties encroach upon the Mortgaged Property.
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(r) If the Mortgage is a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by Buyer to the trustee under the deed of trust,
except in connection with a trustee's sale after default by the Mortgagor.
(s) Each Note and Mortgage contains a provision for the
acceleration of the payment of the unpaid principal balance of the Mortgage Loan
in the event the related Mortgaged Property is sold without the prior consent of
the mortgagee thereunder, unless prohibited by the law of the jurisdiction in
which the Mortgaged Property is located.
(t) The Mortgage Loan contains no provisions pursuant to which
monthly payments are paid or partially paid with funds deposited in any separate
account established by Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, or are paid by any source other than the Mortgagor; the Mortgage Loan
contains no other similar provisions which may constitute a "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; and
the Mortgage Loan was not made in connection with the construction or
rehabilitation of a Mortgaged Property or facilitating the trade-in or exchange
of a Mortgaged Property.
(u) The Mortgaged Property consists of real property with a
single family residence erected thereon, or a two to four family dwelling, or an
individual condominium unit, or an individual unit in a planned unit development
none of which is a cooperative apartment, and is lawfully occupied under
applicable law; and all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy, have been made or obtained from the
appropriate authorities.
(v) If the Mortgage Loan is a HELOC, the Mortgage is in form
and contains terms sufficient to be an "open-end" mortgage under the laws of the
jurisdiction in which the Mortgaged Property is located so as to secure advances
made after the initial recording of the Mortgage up to the Maximum Loan Amount
with the same priority as advances secured thereby that have been made at the
time of recording of the Mortgage.
4.4 Fair Lending Laws. Without limiting and in addition to the above,
Seller acknowledges and understands that Buyer is committed to full compliance
with any and all applicable laws, rules, regulations and orders relating to fair
lending (the "Fair Lending Laws"). In connection with such commitment, Seller
represents, warrants and covenants that it shall not engage in any practice or
transaction relating to a Mortgage Loan which would directly or indirectly have
the effect of discriminating against any Mortgage Loan applicant on the basis of
race, color, religion, national origin, sex, marital status or age (provided
that the applicant has the legal capacity to contract), the fact that all or
part of the applicant's income derives from any public assistance program, or
the fact that the applicant has in good faith exercised any rights under the
Consumer Credit Protection Act. Buyer and Seller shall cooperate to develop and
implement underwriting criteria and other Mortgage Loan practices which (a) are
consistent with safe and sound banking practices and Co) are consistent and
comply with the Fair Lending Laws.
ARTICLE 5. BREACH OF REPRESENTATION AND WARRANTIES
5.1 Survival of Representations and Warranties. It is understood and
agreed that the representations and warranties set forth in Article 4 shall
survive the sale of the Mortgage Loans and the delivery of the Loan Documents to
Buyer and shall inure to the benefit of Buyer, its successors and assigns,
notwithstanding any restrictive or qualified endorsement or statement on any
Note or Assignment of Mortgage or the examination of any documents by Buyer.
5.2 Repurchase. (a.) Upon discovery by either Seller or Buyer of a
breach of any of the representations and warranties set forth in Article 4 above
or if Seller fails to timely deliver a material Loan Document as required
10
hereunder, the party discovering such breach shall give prompt written notice to
the other. If Seller shall not correct or cure any such breach within thirty
days of its discovery or its receipt of notice of such breach, Seller shall upon
demand of Buyer and at the sole option and absolute discretion of Buyer: (1)
repurchase the Mortgage Loan(s) affected for the Repurchase Price within thirty
days of receipt of written notification; or (2) if the Mortgage Loan(s) has been
sold by Buyer or the Mortgaged Property(ties) has been liquidated or sold by
Buyer, Seller shall, within thirty days of written notification, pay Buyer the
Repurchase Price (including the costs of the liquidation or sale), less the net
proceeds from the sale of the Mortgage Loan or the sale or liquidation of the
Mortgaged Property. (b.) If the first scheduled payment after the Settlement
Date for the Mortgage Loan shall not be made by the Mortgagor to the Buyer
within the grace period specified in the applicable Note, the seller shall
repurchase that Mortgage Loan for the Repurchase Price within thirty days after
written demand from Buyer.
5.3 Reassignment. Upon receipt of the Repurchase Price, in immediately
available funds, Buyer shall reassign the Mortgage Loan affected and any right
Buyer may have in the relevant Mortgaged Property to Seller free and clear of
all liens, encumbrances, claims, or interest of any person or entity claiming
by, through, or under Buyer without recourse and shall execute and deliver to
Seller in recordable from and assignment of Buyer's beneficial interest in the
affected Mortgage, as well as other documents necessary to reflect the
reassignment of any title protection and insurance policies.
5.4 Buyer's Right to Liquidate. In the event that Seller does not
repurchase a Mortgage Loan within thirty days of notification by Buyer as
required by Section 5.2 above, any action taken by Buyer to sell or liquidate a
Mortgage Loan or Mortgaged Property in good faith and in a commercially
reasonable manner shall be final and conclusively binding upon Seller in
determining the amount payable by Seller to Buyer under Section 5.2 above.
5.5 Indemnification by Seller. In addition to the foregoing obligations
under this Article, Seller shall indemnify Buyer and hold Buyer and its parent,
subsidiaries, affiliates, directors, officers and employees harmless against any
claim, action, demand, proceeding and suit, whether or not groundless, and
against every liability, cost or damage (including reasonable legal fees and
related costs), arising out of or directly or indirectly from: (i) any material
breach of Seller's representations and warranties contained in Article 4, (ii)
any other breach of this Agreement by Seller or its agents, officers or
employees, unless such breach arises out of an act or omission of Buyer, and
(iii) any other act or omission by Seller or its agents, officers or employees
with respect to any Mortgage Loan up to and including the Settlement Date as to
such Mortgage Loan.
5.6 Indemnification by Buyer. Buyer shall indemnify Seller and hold
Seller and its parent, subsidiaries, affiliates, directors, officers and
employees harmless against any claim, action, demand, proceeding and suit,
whether or not groundless, and against every liability, cost or damage
(including reasonable legal fees and related costs), arising out of or directly
or indirectly from any act or omission by Buyer or its agents, officers or
employees with respect to any Mortgage Loan after the Settlement Date unless
such act or omission arises from Seller's breach of its obligations.
5.7 Indemnification Generally. (a) A claim for indemnification pursuant
to this Article shall be made, if at all, within five (5) years after the
applicable Settlement Date notwithstanding any statute of limitations that may
specify a shorter period, the provisions of which are hereby waived.
(b) As a condition of any claim for indemnification under this
Article, the indemnifying party shall be given timely notice of any claim or
demand as to which indemnification may be claimed and shall have the right,
together with the indemnified party, to participate in the defense, compromise
or settlement thereof through the indemnifying party's own attorney and at the
indemnifying party's expense.
ARTICLE 6. REFINANCINGS AND PREPAYMENTS
6.1 Non-Solicitation of Mortgagors. For three (3) years from and after
the Settlement Date as to any Mortgage Loan, Seller nor any officer, employee,
agent or representative of Seller shall knowingly solicit any Mortgagor in
11
respect of that Mortgage Loan, either singly or as part of a group, on behalf of
Seller or any other entity in any manner that would encourage prepayment of any
Mortgage Loan, except that Seller may continue to make general solicitations to
the public and may advertise, sell and provide all financial services offered by
Seller.
6.2 Refinancings by Seller sold to Buyer. In the event a Mortgagor
refinances a Mortgage Loan with Seller or any affiliate of Seller, and such
refinanced Mortgage Loan is then owned or serviced by Buyer or Buyer otherwise
retains a financial interest in the Mortgage Loan, Seller will offer Buyer the
right of first refusal to purchase the refinancing loan. If Buyer purchases the
refinancing loan, Buyer will pay to Seller the normal premium percentage on the
refinancing loan.
6.3 Prepayments. If any Mortgage Loan is prepaid by the Mortgagor,
other than by a refinancing by Buyer or any of its subsidiaries or affiliates,
Seller shall pay to Buyer, upon demand by Buyer, the appropriate percentage
specified below of the Premium, if any, initially paid by Buyer to Seller with
respect to the prepaid Mortgage Loan:
(a) If the Mortgage Loan is prepaid within twelve months after
the Settlement Date of such Mortgage Loan, the entire Premium less one twelfth
(1/12th) of the Premium for each month from the Settlement Date of such Mortgage
Loan to the date of prepayment; or
(b) If the Mortgage Loan is prepaid more than twelve months
after the Settlement Date of such Mortgage Loan, none of the Premium.
Any premium rebate by Seller hereunder shall be offset by any prepayment premium
specified in the Loan Documents to the extent such prepayment premium is
collected by Buyer, provided that Buyer shall use reasonable efforts to collect
the prepayment premium except where there is a substantial question as to the
enforceability of the prepayment premium.
6.4 Insurance Prepayment. Insurance refund or credits of any kind
whatsoever shall be the sole responsibility of Seller in the event of prepayment
of any Mortgage Loan, cancellation of insurance or any other event requiring
refunding or crediting of unearned insurance premiums. Upon Buyer's demand,
Seller shall pay to Buyer, from the Seller's own funds, any required insurance
premium rebate resulting from the prepayment, cancellation, refinancing or other
termination of any Mortgage Loan. Upon any such payment, Buyer shall assign
Seller any rights of Buyer against the insurer for any rebate made to Mortgagor.
ARTICLE 7. MISCELLANEOUS
7.1 Termination. This Agreement shall terminate upon the earliest to
occur of the following:
(a) The first anniversary of the date of this Agreement,
provided that the term of this Agreement shall thereafter be extended from
year-to-year unless terminated by either party by written notice to the other
not less than thirty days before the end of the then current term; or
(b) The termination date specified by either party by written
notice to the other, which shall not be less than thirty days after the date of
such notice.
The representations and warranties made by Seller as to any Mortgage Loan
purchased by Buyer during the term of this Agreement and the obligations of the
parties hereunder in respect of such Mortgage Loans shall survive the
termination of this Agreement.
7.2 Entire Agreement. This Agreement constitutes the entire agreement
and supersedes all other prior agreements and understanding, both written and
oral, between Buyer and Seller with respect to the subject matter hereof.
12
7.3 Headings. The headings and subheadings of Articles and Sections
contained in this Agreement, except the terms identified for definition in
Article 1 and elsewhere in this Agreement are inserted for convenience only and
shall not affect the meaning or interpretation of this Agreement or any
provision thereof.
7.4 Governing Law. This Agreement and the rights and obligations
hereunder shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, without regard to principles of conflicts of law.
7.5 Public Announcements. Neither Buyer nor Seller shall make any
public announcement or disclosure concerning this Agreement without the consent
of the other party, except as may be required by law.
7.6 Successors and Assigns. All terms and conditions of this Agreement
shall be binding on the successors and assigns of Seller and Buyer. Seller shall
not, without the prior written consent of Buyer, assign any of its rights or
obligations hereunder.
7.7 Parties in Interest. Nothing in this Agreement, express or implied,
is intended to or shall confer upon any person other than Buyer and Seller any
legal or equitable rights, benefits, claims or remedies of any nature whatsoever
or by reason of this Agreement or any provisions contained herein, it being the
intention of the parties hereto that this Agreement, the obligations and
statements of responsibilities hereunder, and all other conditions and
provisions hereof are for the sole and exclusive benefit of Seller and Buyer,
and their successors and permitted assigns, and for the benefit of no other
person.
7.8 Modification. No amendment or other modification of this Agreement
shall be effective except pursuant to a written agreement executed by the duly
authorized representatives of Buyer and Seller.
7.9 No Agency or Partnership. This is an agreement of purchase and
sale; no partnership or joint venture is created by this Agreement. Neither
party is constituted or appointed as the agent or representative of the other
party, and neither party is authorized or empowered to enter into any agreement
or incur any obligation on the other party's behalf or commit the other party in
any manner or thing whatsoever.
7.10 Notices. Any notice, request, demand, consent, approval or other
communication to any party hereto shall be effective when received and shall be
given in writing, and delivered in person against receipt therefor, or sent by
certified mail, postage prepaid, or courier service or confirmed facsimile at
this address set forth below or at such other address as it shall hereafter
furnish in writing to the others. Where any provision of this Agreement directs
a method of communication or notification, such method must be used for such
communication or notification. All such notices and other communications shall
be deemed given on the date received by the addressee.
If to Seller, to:
Westmark Mortgage Corporation
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxxx Story, III
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
13
If to Buyer, to:
BankBoston, N.A.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxxx III, Director of Consumer Asset
Finance
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
7.11 Waiver. Seller and Buyer may waive their respective fights, powers
or privileges under this Agreement; provided, that such waiver shall be in
writing; and further provided, that no failure or delay on the part of Seller or
Buyer to exercise any of its respective rights, powers or privileges under this
Agreement will operate as a waiver thereof, nor will any single or partial
exercise of any right, power or privilege under this Agreement preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege by Seller or Buyer under the terms of this Agreement.
7.12 Costs, Fees and Expenses. (a) If any legal proceeding is
instituted by either party against the other under this Agreement or in respect
to any Mortgage Loan, the non-prevailing party shall also be required to pay the
prevailing party's costs and expenses of such litigation, including reasonable
attorney fees.
(b) Except as otherwise provided in this Agreement, each party
agrees to pay all costs, fees and expenses which it has incurred in connection
with or incidental to the matters contained in this Agreement, including without
limitation any fees and disbursements to its accountants and counsel.
7.13 Severability. If any provision of this Agreement is invalid or
unenforceable, then, to the extent such invalidity or unenforceability shall not
deprive either party of any material benefit intended to be provided by this
Agreement, all of the remaining provisions of this Agreement shall remain in
full force and effect and shall be binding upon the parties hereto.
7.14 Remedies. The parties agree that immediate and irreparable damage
would occur in the event any of the provisions of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
7.15 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, Seller and Buyer each has caused this Agreement to
be executed on its behalf by its duly authorized representative, all as of the
date first above written,
Seller: Westmark Mortgage Corporation
By: /s/ Xxxxxx Story, III
-----------------------------
Name: Xxxxxx Story, III
-----------------------------
Title: President and Chief Operating
Officer
-----------------------------
Buyer: BankBoston, N.A.
By: /s/ Xxxx X. Xxxxxxxxxxx III
-----------------------------
Name: Xxxx X. Xxxxxxxxxxx III
-----------------------------
Title: Director, Consumer Asset Finance
-----------------------------
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EXHIBIT A
LOAN DOCUMENTS
(1) The Note;
(2) The Mortgage;
(3) All intervening assignments of the Mortgage with evidence of recording
thereon showing an unbroken chain of title from the originator of the
Mortgage Loan to Seller;
(4) The Assignment of Mortgage;
(5) The Title Insurance Policy;
(6) Federal and state Fair Lending and Equal Credit Notices including the
truth-in-lending statement and rescission notices;
(7) The Appraisal and, if the Mortgaged Property had been purchased by the
Mortgagor within 12 months prior to the origination of the Mortgage, a
copy of the settlement sheet or other evidence as to the purchase price
paid for the Mortgaged Property; and
(8) The Mortgagor's loan application;
(9) Credit reports with respect to the Mortgagor obtained in connection
with the Mortgagor's application;
(10) All written communications and memoranda of oral communications with
the Mortgagor in respect of the Mortgage Loan;
(11) All records of disbursements made and payments received in respect of
the Mortgage Loan;
(12) All insurance policies, binders, and certificates in respect of the
Mortgage Property.
15
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(1) Loan number
(2) Mortgagor's name
(3) Street Address of Mortgaged Property, including city, state and zip
code
(4) Principal Amount
(5) Interest Rate
(6) Maturity Date
(7) Next payment due date
(8) Appraised Value
(9) Prior Encumbrance Holder
(8) Prior Encumbrance Amount Secured
(9) LTV
(10) Prepayment Premium
(11) Maximum Loan Amount
EXHIBIT C
XXXX OF SALE AND ASSIGNMENT
XXXX OF SALE AND ASSIGNMENT, dated ____________________________ from
_____________________________________________ ("Seller") to BankBoston
("Buyer").
FOR VALUE RECEIVED, pursuant to the Master Agreement for Sale and
Purchase of Mortgage Loans dated as of by and between the Seller and the Buyer
(the "Agreement"), the Seller does hereby sell, assign, transfer and convey unto
Buyer, its successors and assigns, all of the undersigned Seller's right, title
and interest in, to and under each and every Mortgage Loan (the "Mortgage
Loans") identified on the Mortgage Loan Schedule appended hereto, together with
all right, title and interest in, to and under all documents, agreements,
instruments and records in respect thereof and all rights, benefits, collateral,
payments, recoveries, proceeds and obligations arising therefrom or in
connection therewith.
And Seller hereby represents, warrants and confirms to Buyer that all
of Seller's representations and warranties made in or pursuant to the Agreement
are true and correct as of the date hereof and no event has occurred which, with
notice or the passage of time, would constitute a breach of Seller's
representations, warranties or obligations under the Agreement.
And Seller hereby grants to Buyer a power of attorney, with full power
of substitution, to execute in Seller's name and on Seller's behalf such
notices, endorsements (including, without limitation, endorsements of the
Notes), consents, Assignment of Mortgages, and other instruments and documents
which may be necessary in Buyer's judgment to evidence the assignment of the
Mortgage Loans or to record or otherwise perfect Buyer's interest therein, or
which may be otherwise consistent with the sale and assignment of the Mortgage
Loans effected under the Agreement. This power of attorney is coupled with an
interest and is irrevocable.
All terms used herein and not otherwise defined shall have the meeting
set forth in the Agreement.
This Xxxx of Sale and Assignment is made WITHOUT RECOURSE OR WARRANTY
to the Seller, except to the extent specifically provided for in the Agreement.
IN WITNESS WHEREOF, the undersigned Seller has caused this Xxxx of Sale
and Assignment to be executed on its behalf by its duly authorized officer, this
_______ day of ______________________.
Seller:
By:________________________
Print Name:________________
Title:_____________________
[NOTARIAL ACKNOWLEDGMENT]
EXHIBIT D
MORTGAGE LOAN PRICING
A. The Premium for fixed rate Mortgage Loans shall be calculated as
follows:
The Premium (expressed in points) for each Mortgage Loan will be equal
to:
Loan Interest Rate - Buy Rate
-----------------------------
40 basis points
Where the Buy Rate and the Loan Interest Rate are expressed in basis
points, and the Buy Rate is as defined in the Wholesale Pricing Matrix
as periodically amended. Buyer will not purchase any loan where the
Loan Interest Rate exceeds the Buy Rate by more than 400 basis points.
B. The Premium for variable rate Mortgage Loans based on an index rate,
such as 6-month LIBOR, shall be calculated as follows:
The Premium (expressed in points) for each Mortgage Loan will be equal
to:
Loan Margin - Buy Rate Margin
-----------------------------
35 basis points
Where the Loan Margin is defined as the Loan Interest Rate less the
index rate applicable to the loan, all expressed in basis points. Buy
Rate Margin is as defined in the Wholesale Pricing Matrix as
periodically amended. Buyer will not pay a Premium that exceeds 5
points.
C. The Premium for HELOCs shall be calculated as follows:
The Premium (expressed in points) for each HELOC will be equal to:
Loan Margin - Buy Rate Margin
-----------------------------
25 basis points
Where the Loan Margin is defined as the Loan Interest Rate less the
index rate applicable to the loan, all expressed in basis points. Buy
Rate Margin is as defined in the Wholesale Pricing Matrix as
periodically amended. The Premium will be paid only on the Loan balance
outstanding at the time of purchase. Buyer will not pay a Premium that
exceeds 4 points.
D. The following terms apply to the Mortgage Loans:
1) Buy-downs will not be accepted.
2) The above terms may change at any time subject to the Buyer's
discretion.
