WHOLE SALE LOAN AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of in the
State of Georgia, by and between WESTMARK MORTGAGE CORPORATION, a corporation
organized and existing under the laws of the State of California, (herein called
"Client"), and Great Eastern Funding, LLC, a limited liability company organized
and existing under the laws of the State of Georgia (herein called "Buyer") for
and in consideration of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged.
This Agreement establishes terms of a Line of Credit not to exceed the
amount described in Schedule A, Facility Amount, at any one time in total
principal amount outstanding. The obligation of the Buyer to make advances
hereunder up to such limit is hereinafter referred to as the "Commitment."
Within the Commitment, the Client may borrow, repay and re-borrow. All Advances
under this Agreement shall constitute a single indebtedness, and all Collateral
shall be security for the Facility Amount as described in schedule A and for the
performance of all obligations of the Client to the Buyer. Advances under this
Agreement shall be used by the Client solely for the purpose of purchasing
Mortgage Loans and in no circumstances shall closed loans be purchased by Client
to be sold to Buyer. Funding shall be made in the manner hereinafter defined.
This Agreement expires one (1) year from the date listed above. Upon expiration,
all terms and conditions are subject to re-negotiation, with no guarantee of
renewal.
RECITALS
A. From time to time, Client may offer to sell and Buyer may
agree to buy from Client certain loans evidenced by promissory
notes and secured by deeds to secure debt, mortgages or other
appropriate security instruments conveying interests in real
estate (hereinafter "Mortgage Loans").
B. Each Mortgage Loan will be evidenced, among other documents,
by a promissory note under which Client is the payee
("Mortgage Note"), and a first priority deed to secure debt,
mortgage or similar security instrument securing payment of
the Mortgage Note ("Mortgage Deed" or "Mortgage").
C. Client and Buyer wish to set forth the terms and conditions
under which each Mortgage Loan will be acquired by Buyer from
Client.
I. Client represents and warrants to Buyer, and covenants and agrees with
Buyer, as follows:
A. Client is a corporation duly organized, validly existing and
in good standing under the laws of the State of California ,
and it possesses the requisite corporate authority to enter
into this Agreement and to consummate all the transactions
contemplated hereby.
B. The execution, delivery and performance of this Agreement has
been duly authorized by Client and all corporate proceedings
necessary to consummate all the transactions contemplated by
this Agreement have been taken by Client.
C. Client is fully licensed, qualified to do business and in good
standing in each state in which it does business and in which
the real property securing any Mortgage offered by Client to
Buyer hereunder is located.
D. The execution and delivery of this Agreement and sale of any
and all Mortgages hereunder are not and will not be a breach,
violation or event of default (or an event which would become
an event of default with the lapse of time or notice or both)
under any judgement, decree, note, agreement, indenture or
other instrument to which Client is a party or otherwise
subject.
E. Neither the making of each Mortgage Loan nor the consummation
of the transactions contemplated by this Agreement will result
in a violation of any applicable federal, state or local law,
rule or regulation.
F. This Agreement and every instrument provided for herein to be
executed by Client are and will be the legal, valid and
binding obligations of Client enforceable by Buyer in
accordance with their respective terms.
G. As of the date of this Agreement, there is no pending or
threatened litigation, adverse claim, action or proceeding of
any kind or nature against client which, if adversely
determined would reasonably be expected to result in any
material and adverse change in the business, operations,
assets or financial conditions of client.
H. Each Mortgage sold to Buyer hereunder shall constitute a
valid, genuine and enforceable first or second lien against
the real property conveyed thereunder, subject only to
exceptions which are acceptable to the Buyer and Third Party
Investor, if applicable (each such Investor shall herein be
called a "Third Party Investor") for such Mortgage and which
do not materially impair the priority of the lien thereof or
the quality of title, will have been duly executed,
acknowledged and filed for recording or recorded prior to the
date of sale to Buyer, and is and will continue to be free
from claims, defenses, set-offs, and counterclaims.
I. At the time of the transfer of each Mortgage to Buyer, the
property covered by each Mortgage (the "Mortgaged Property")
shall consist of land and one or more buildings thereon which
are completed and ready for occupancy.
J. Client shall have, at the time of the transfer of each
Mortgage to Buyer, the sole, full and complete title to each
Mortgage and each instrument and document relating thereto,
which Mortgage and any other interest conveyed by Client to
Buyer shall be free and clear of all claims of any other
person or entity, and Client has and shall have full power and
authority to sell, transfer and assign the same on the terms
herein set forth, there having been no prior assignment, sale
or hypothecation thereof by Client.
K. With respect to each Mortgage and the Mortgage Loan evidenced
and secured thereby: (i) each Mortgage will have been duly and
validly executed, issued and delivered by the mortgagor
thereunder and will constitute the valid and legally binding
obligation of such mortgagor, enforceable in accordance with
its terms; (ii) compliance by the mortgagor with such Mortgage
will not violate any law, or any other instrument or agreement
binding upon the mortgagor; and (iii) all requirements of all
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laws, rules, orders and regulations of any governmental
authority having jurisdiction over such Mortgage and mortgagor
will have been fully satisfied and complied with.
L. The full principal amount of each Mortgage sold hereunder will
have been advanced to the mortgagor, either by payment made
directly to mortgagor or by payment made on mortgagor's
request or approval; the original unpaid principal balance
outstanding under each Mortgage shall be as stated in the
applicable loan documents; all costs, fees, and expenses
incurred in making, closing and recording the Mortgage shall
have been paid; neither the Mortgaged Property, nor any
portion thereof, shall have been released from the Mortgage;
the terms of the Mortgage shall have in no way been changed,
amended or modified; and the Mortgage shall be current and not
in default.
M. All signatures, names and addresses, amounts and other
statements of fact, including descriptions of property,
appearing on the credit application and other documents
relating to each Mortgage shall be true and correct and each
mortgagor named thereon shall be, as of the date of each such
document upon which signatures appear, of majority age, and
have the legal capacity to enter into the Mortgage.
N. Client will have paid or caused to be paid when due any and
all applicable taxes or fees to any governmental entity
arising out of the making, acquisition, collection, holding or
assignment of such Mortgage or the underlying property (except
taxes measured by Buyer's net income).
O. Each Mortgage which Client represents as being insured by a
private mortgage insurance company shall be so insured.
P. Each Mortgage classified as an "F.H.A. Mortgage" will be a
Mortgage fully insured by or for which a Commitment to Insure
has been issued by, the Federal Housing Administration under
the National Housing Act, as amended, and the Mortgage and all
other instruments and documents evidencing the Mortgage Loan
and the transactions from which it arose will comply with all
applicable requirements of the F.H.A.
Q. Each Mortgage classified as a "V.A. Mortgage" will be either
guaranteed or entitled to be guaranteed immediately by the
Veteran's Administration (V.A.) Under the Service Men's
Readjustment Act of 1944, as amended, or other applicable
statute, or will be entitled to be immediately so guaranteed
pursuant to a V.A. Commitment to Guarantee; each such
Guarantee or Commitment to Guarantee will be in the maximum
amount permitted by law; and the Mortgage and all other
instruments and documents evidencing the Mortgage Loan and the
transactions from which it arose will comply with all
applicable requirements of the V.A.
R. In connection with each Mortgage sold hereunder and the
Mortgage Loan evidenced or secured thereby, all applicable
federal and state laws statutes and regulations including, but
not limited to the Equal Credit opportunity Act, Real Estate
Settlement Procedures Act, Truth-In-Lending Act, Fair Credit
Reporting Act, and any other federal or state consumer
protection act, rule or regulation will have been fully
satisfied and complied with.
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S. Each Mortgage sold hereunder shall be accompanied by all
documentation required. under all applicable federal and state
laws and regulations regarding loans purchased by insured
financial institutions.
T. Each Mortgage Loan evidenced by a Mortgage and Mortgage Note
conveyed hereunder shall have been closed by an attorney who
is an approved attorney of an American Land Title Association
("ALTA") Company or by an authorized and insured Title
Company.
U. The building or buildings on the Mortgaged Property will be
kept continuously insured at all times by insurance companies
with a Class V or better rating as determined by A.M. Best's
key rating guide for property casualty companies against fire
and extended coverage hazards under policies, binders,
letters, or certificates of insurance with a standard
mortgagee clause in favor of Client and its assigns, and
providing coverage under each such policy in an amount at
least equal to the lesser of (i) the maximum insurable value
of the improvements, or (ii) the original principal amount of
the Mortgage, without reduction by reason of any co-insurance,
reduced rate contribution, or similar clause.
V. Client has previously furnished Buyer with copies of its
financial statements for the previous fiscal year (the
"Financial Statements"). Client represents and warrants that
the Financial Statements were prepared in accordance with
generally accepted accounting principles and accurately
portray its financial condition as of the date thereof and of
this Agreement. Client will, within sixty (60) days of the
conclusion of each of its fiscal year end furnish Buyer with a
copy of its annual financial statements, each in form and
substance satisfactory to Buyer. The annual financial
statements will be audited by independent public accountants
if required by the State where Client is organized, twill
conform to generally accepted accounting standards and will be
furnished directly to Buyer by Client's independent public
accountants.
W. There is not now an event of default hereunder, or any
circumstances which, with notice or lapse of time or both,
could become an event of default hereunder, and each future
request by the Client to sell a Mortgage hereunder shall
constitute a reaffirmation of the foregoing representation and
warranty.
All these warranties, representations and covenants shall survive the term of
this Agreement and shall continue until the final pay-off of the last Mortgage
Loan purchased hereunder remaining outstanding.
II. Client shall do all acts necessary to perfect title to each Mortgage
sold hereunder, and shall sell, assign, and deliver to Buyer with
respect to the purchase of each such Mortgage, the following documents,
all subject to the approval of Buyer as to proper form and execution:
A. The original Mortgage Note properly and satisfactorily
endorsed in blank by Client to Buyer.
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B. A photocopy of the Mortgage Deed, together with the original
of a transfer and assignment in blank of such Mortgage Deed in
recordable form, accompanied by those documents and
instruments necessary to record and perfect ownership.
C. Mortgagee title insurance commitment and policy satisfying the
requirements of Section I.H. hereof, with any and all
exceptions set forth therein being subject to the approval of
Buyer, and a satisfactory assignment or endorsement of such
commitment or policy in the event a mortgage assignment is
being placed on record.
D. Copy of a survey of the Mortgaged Property identifying such
property by address and legal description.
E. Copies of hazard insurance policies meeting the requirements
set forth in Section I.U. hereof.
F. If the Mortgage is a V.A. Mortgage: The Certificate of
Reasonable Value, the V.A. Commitment to Guarantee, or the
V.A. Loan Guaranty Certificate, and the V.A. Certification of
Loan Disbursement, or the future substantial equivalents of
the same.
G. If the Mortgage is an F.H.A. Mortgage: F.H.A. Commitment to
Insure or Insurance Certificate, or the future substantial
equivalents of the same.
H. A complete copy of the loan application package for each
Mortgage meeting normal current market/investor conditions
together with all disclosure statements and all settlement
statements executed in connection with the Mortgage
transaction.
I. Copy of an appraisal of the real estate securing each Mortgage
Note, which appraisal shall meet requirements established by
the Federal Deposit Insurance Corporation, the office of
Thrift Supervision, the Department of Banking and Finance of
the State in which subject real property is located.
J. Insured closing letter issued by an ALTA company insuring the
attorney(s) selected and approved in accordance with Section
I.T. hereof.
K. Copy of Mortgage payment notification or transfer of
servicing.
L. Any other document required by Buyer.
The documents identified in Schedule A, Funding Request Documents, shall be
delivered to Buyer for review and approval by Client not less Than forty eight
(48) hours prior to the anticipated date of funding disbursement of the Mortgage
Loan to which such documents pertain. The documents identified in Schedule A,
Closing Documents, shall be delivered to Buyer within two (2) business day(s)
after closing of the Mortgage Loan by the closing agent.
III. Advances
All Mortgage Loans shall be secured by 1-4 family residential real
property, subject to terms specified by Section I. above. These Mortgage Loans
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shall be rated as "A", "B", "C" or "D", consistent with traditional standards
imposed by Third Party Investors, relevant to rating agencies and insurers for
classification as "A", "B", "C" or "D" Mortgage Loans. Loans will be accepted
either as "Flow" (defined as individual loans to be sold separately) or "Pool"
(defined as several loans to be sold together). All Mortgage Loans accepted by
Buyer will be funded at the percentage as defined in Schedule A., Funding
Percentages, of the Collateral Value-defined above, subject to the following:
A. All "A" Mortgage Loans must have a purchase commitment from a
Third Party Investor.
B. Mortgage Loans rated as "B", "C" or "D" with a purchase
commitment from a Third Party Investor or Underwriter/officer
employed by Client and delegated by Investor shall have no
additional constraints unless otherwise stated in Schedule "A"
of this Agreement.
IV. The procedures for the handling and funding of each Mortgage shall be
as follows:
A. Upon the funding of each Mortgage by Buyer, as described in
Section III above, Buyer shall retain a fee as defined in
Schedule A, Fees and Charges or such other amount as may
hereafter be agreed upon in writing by Buyer and Client (the
"Handling Fee"). From and after the date of such funding
through the date the appropriate Third Party Investor delivers
all funds to Buyer, Client shall pay Buyer interest on the
amount so funded by Buyer at a per annum rate as defined in
Schedule A, Fees and Charges. Unless otherwise agreed in
writing by and between the parties hereto, Client shall pay
all accrued interest on the amount so funded on those dates
which the respective mortgagor is required, under said
mortgagor's loan documents, to pay interest to the holder
thereof.
B. Buyer shall conduct an independent evaluation of the
creditworthiness of the borrower prior to committing to
purchase the mortgage note. The note will be purchased at face
value by Buyer, and is made in anticipation of Client's
commitment to make the loan to the mortgagor. After approval
by Buyer and the respective Third Party Investor, if
applicable, of each Mortgage submitted for funding, each such
Mortgage Loan shall be closed by an attorney at law who is an
approved attorney of an American Land Title Association
("ALTA") company, or an authorized and insured Title Company
selected by Client and approved by Buyer, which approval shall
not be unreasonably withheld or denied, in the name of Client.
Subsequent to such approvals being obtained by Client, and
after Client provides notice of such closing to Buyer, which
notice shall be given no less than forty eight (48) hours
prior to such closing, Buyer shall provide closing funds (the
"Closing Funds") upon receipt of the documents required under
Section II. hereof, as defined in Schedule A, Funds
Disbursement.
C. At closing and contemporaneously with the funding of each
Mortgage hereunder, Client shall endorse the Mortgage Note to
Buyer in blank and execute the transfers and assignments in
blank described in Section II. hereof.
D. Buyer, upon receipt of notice from Client and Client's
satisfaction of its obligations under this Agreement, and
provided that Client is not in default under the terms of this
Agreement or under the terms of any other agreement with
Buyer, shall endorse or leave blank each Mortgage Note, to the
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appropriate Third Party Investor. Buyer shall deliver the
original Mortgage Note to the Third Party Investor with a
Bailee Letter instructing that such investor is to hold such
Note and assignment in trust for Buyer until full payment for
such Mortgage has been received by Buyer. Buyer reserves the
option, at its sole and absolute discretion, to require a
master trust agreement from each Third Party Investor whereby
such investors agree to hold all Notes, assignments and
Mortgage documents presented thereto in trust for Buyer until
full payment is made therefor, and Client hereby agrees to
assist Buyer in obtaining such trust agreements from such
Third Party Investors. Funding by the Third Party Investor
which has pre-approved each such Mortgage shall be made to
Buyer by wire transfer to an account established by Buyer and
described to Third Party Investor in above described Bailee
Letter, at the time the Third Party Investor purchases each
such Mortgage. Upon receipt of funds, and the satisfaction of
all Client's obligations to Buyer, Buyer shall remit any
surplus to Client.
V. Promptly upon demand of Buyer, Client shall repurchase at the
Repurchase Price (as hereinafter defined), without recourse, any
Mortgage with respect to which:
A. Any representation or warranty of Client contained in this
Agreement shall prove at any time to be incorrect in any
material respect; or,
B. Any contention shall have been raised by mortgagor, or on
behalf of mortgagor or a Third Party Investor, that there has
been a violation of, or failure to comply with, any federal or
state law or regulation which would give rise to a right of a
mortgagor to refuse to make further payments under the
Mortgage and/or seek a refund of amounts previously paid
and/or claim penalty of any kind or nature; or,
C. The expiration of forty-eight (48) hours from the date a Wet
Settlement Advance was made without receipt of all Collateral
Documents relating to such Mortgage Loan, or such Collateral
Documents, upon examination by Buyer are found not to be in
compliance with the requirements of this Agreement.
D. The expiration of ten (1O) Business Days from the date a
Collateral Document in connection with such Mortgage Loan was
delivered to Client for correction or completion without being
resumed to Buyer corrected or completed.
E. The expiration of the allowed number of days outstanding as
described in Schedule A, Loan Term.
F. The expiration of ten (1O) Business Days from the date a
Collateral Document in connection with such Mortgage Loan was
delivered to the Third Party Investor for purchase without the
purchase money received by Buyer, or the Collateral Document
returned to Buyer with all appropriate endorsement and
assignment corrections.
VI. Client agrees to fulfill its obligation to repurchase any Mortgage Loan
described above in Section V. hereof by paying to Buyer the Repurchase
Price, which shall equal the total principal of the Mortgage Note less
any pay down credits toward mortgage loan to Buyer, including earned
interest and fees as described in Schedule A, Fees and Charges, and
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other accrued charges, and penalties plus all costs and expenses,
including without limitation, reasonable attorney's fees and expenses,
and collection, foreclosure and resale expenses, if any, theretofore
incurred by Buyer in enforcing its rights in such Mortgage or in
enforcing its rights pursuant to this Agreement ("Repurchase Price").
Buyer's prior knowledge of any relevant fact, prior to or at the time
of purchase of the Mortgage, or at any time thereafter, or any delay by
Buyer in making demand hereunder, shall not constitute a waiver of
Buyer's rights hereunder.
VII. Upon receipt of the Repurchase Price from Client pursuant to Section
VI. hereof, Buyer shall transfer to Client the Mortgage and Buyer's
right, title and interest in the Mortgaged Property by separate written
endorsements and assignments, which shall be without recourse to Client
and without any representations or warranties, expressed or implied.
Until such time as Buyer has received such payment in full, Buyer may
continue to liquidate the Mortgage, and Client shall remain liable for
any deficiency, including all of Buyer's expenses.
VIII. Client agrees, as trustee for Buyer and without compensation by Buyer,
to service all Mortgages and to use its best efforts to effect
collection of all amounts payable thereunder as they become due. Upon
demand by Buyer, Client shall notify each Mortgagor of the transfer and
assignment to Buyer of the Mortgage under which he is obligated,
including in such notice instructions that the Mortgagor shall make all
payments on the Mortgage to Client as trustee for Buyer until further
notice, or directly to Buyer, as Buyer shall direct. In the event
Client so notifies any Mortgagor of the transfer and assignment to
Buyer of the Mortgage under which he is obligated, upon request by
Client, Buyer shall notify any such Mortgagor of any reassignment of
such Mortgage to Client made pursuant to the terms of this Agreement by
Buyer.
IX. The following shall constitute events of default hereunder:
A. If Client should violate or breach, or should fail fully and
completely to observe, perform, satisfy or comply with, any of
the terms, covenants or conditions set forth in this Agreement
or in any other instrument, document, agreement, letter other
writing now or hereafter evidencing or securing, or
heretofore, concurrently herewith or in the future executed by
Client in favor of Buyer in connection with any transaction
consummated hereunder.
B. If any certificate, representation or warranty, or any
statement or other writing made herein or furnished to Buyer
by or on behalf of Client in connection with this Agreement or
any transaction consummated hereunder should be false, untrue,
incomplete or misleading in any respect as of the date made.
C. If Client becomes insolvent as defined in the Georgia Uniform
Commercial Code or makes an assignment for the benefit of
creditors; or if any action is brought by Client seeking its
dissolution or liquidation of its assets or seeking the
appointment of a trustee, interim trustee, receiver or other
custodian for any of its property; or if Client commences a
voluntary case under the Federal Bankruptcy Code; or if any
reorganization or arrangement proceeding is instituted by
Client for the settlement, readjustment, composition or
extension of any of its debts upon any terms; or if any action
for similar relief is commenced alleging that Client is
insolvent or unable to pay its debts as they mature; or if any
action is brought against Client seeking its dissolution or
liquidation of any of its assets, or seeking the appointment
of a trustee, interim trustee, receiver or other custodian for
any of its property, and such action is consented to or
acquiesced in by Client and is not dismissed within thirty
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(30) days after the date upon which it was instituted; or if
any proceeding under the Federal Bankruptcy Code is instituted
against Client and (i) order for relief is entered in such
proceeding or (ii) such proceeding is consented to or
acquiesced in by Client is not dismissed within thirty (30)
days after the date upon which it was instituted; or if any
reorganization or arrangement proceeding is instituted against
Client for the settlement, readjustment, composition or
extension of any of its debts upon any terms, and such
proceeding is consented to or acquiesced in by Client and is
not dismissed within thirty (30) days after the date upon
which it was instituted; or if any action or petition is
other-wise brought against Client seeking similar relief or
alleging that it is insolvent, unable to pay its debts as they
mature or generally not paying its debts as they become due,
and such action or petition is consented to or acquiesced in
by Client or is not dismissed within thirty (30) days after
the date upon which it was brought.
D. If any judgment should be rendered against Client and such
judgement should not be paid in full and satisfied, or
appealed from within the time allowed for appeals and be paid
in full and satisfied whets it becomes final
E. Should Client be liquidated or dissolved or its articles of
incorporation expire or be revoked.
F. Should Client default under any other agreement or other
document entered into with Buyer.
G. Should Client default under any other agreement with any
person or company and such default by Client results in any
acceleration of the debt evidenced thereby. Upon the
occurrence of any event of default hereunder, Buyer may
exercise all rights and remedies contained in this Agreement
or in any other instrument, document, agreement or other
writing executed in connection with this Agreement or any
transaction consummated hereunder, or otherwise available to
it in law or in equity.
X. Buyer may, by notice to Client by return receipt to Great Eastern
Funding, LLC., terminate this Agreement as to Mortgages being purchased
if:
A. Client shall be in default hereunder as described in Section
IX. above; or,
B. Client assigns or attempts to assign its rights and
obligations hereunder, without written consent of Buyer; or,
C. Buyer, in its sole discretion, determines that because of
regulatory considerations, due to business practices of
Client, or for any other reason. that it is in the Buyer's
best interest to terminate this Agreement.
XI. Buyer may, at its option, suspend the Commitment from further use by
Client, if, at any time any of the terms of this Agreement are
violated, or if Buyer, in its sole discretion, determines that it is in
the Buyer's best interest to suspend the Commitment. In addition, the
following penalties may apply:
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61st Day The Handling Fee, as stated in the
attached Schedule A, will be paid, in full,
by Client. Buyer may request a written
explanation from the Third Party Investor,
as to why the loan has not been purchased.
76th Day Interest rate, as described in Schedule A,
Fees and Charges, shall be adjusted to a per
annum rate equal to five (5%) percentage
points over Prime, plus an additional
handling fee of $250 per loan will be paid,
in full, by Client.
91st Day Buyer may request a Purchase Commitment
Letter, clear of all slips and conditions,
unless otherwise agreed to in writing by
Buyer, from the appropriate Third Party
Investor. An additional handling fee equal
to the original handling fee as stated in
Fees and Charges in the attached Schedule A
of this Agreement will be charged. In
addition, Client shall make prepayments of
the principal in an amount equal to five
percent (5%) of the original principal
advanced for such Mortgage Loan, and all
accrued interest will immediately be paid by
Client to Buyer.
Unless otherwise agreed to in writing by and between the parties
hereto, on the ninety-first (91st) day after the original disbursement
of any Mortgage by Buyer and at the end of each thirty (30) day period
thereafter until such Mortgage has been purchased by a Third Party
Investor or repurchased by Client from Buyer in accordance with this
Agreement, Client shall pay to Buyer, in addition to all accrued
interest on the amount so funded by Buyer, such additional Handling Fee
and principal prepayments as specified above. Buyer may also invoke the
right to sell the loan to any Investor as to recover any funds and
costs associated with the loan transaction at any time during which the
loan exceeds the allowed number of days outstanding on the line, as
stated in Loan Term in the attached Schedule A of this Agreement.
XII. Client agrees to indemnify and hold Buyer harmless from, and on demand
by Buyer, pay Buyer for, any damages, losses, costs and expenses
resulting from any and all actions, suits, proceedings, demands,
assessments, judgments, or claims, including reasonable legal and other
expenses actually incurred and paid incident to any claim by any third
party or parties in connection with Mortgages purchased by the Buyer
hereunder, including, without limitation, (i) any claim for taxes
(other than income taxes payable by Buyer), by any state of the United
States, territory or political subdivision thereof or (ii) any claim
arising out of the noncompliance of any Mortgage with all applicable
laws, rules and regulations and any governmental authority, including,
but not limited to, usury laws, Regulation Z of the Board of Governors
of the Federal Reserve System and any similar state statute or
regulation, the Real Estate Settlement Procedures Act of 1974, as
amended (and Regulation X promulgated thereunder), and any other
federal or state consumer protection act, rule or regulation.
XIII. This Agreement may be terminated as to the future acceptance of
Mortgages by either party at any time upon giving thirty (30) days
written notice of termination to the other party, and such termination
shall not in any respect change or modify the obligation of Client with
respect to the Mortgages already purchased hereunder.
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XIV. This Agreement shall be liberally, not restrictively, construed so as
to give the greatest latitude to Buyer.
XV. This Agreement shall be construed in accordance with the laws of the
State of Georgia except that the provisions of this Agreement with
respect to remedies regarding the Mortgages are intended to comply with
the laws of the jurisdiction where such Mortgages are recorded, and any
provisions hereof, or of the Mortgages, not so complying shall be
deemed to be modified accordingly in the manner and to the extent which
shall best effect the intentions and purposes reflected in and
contemplated by this Agreement. The validity or enforceability of any
provision or provisions of the Mortgages or this Agreement shall not
affect the validity or enforceability of any other provision thereof or
hereof.
XVI. This Agreement shall bind and benefit the respective successors and
assigns of Client and Buyer. No other person or entity is intended to
be benefited hereby. Notwithstanding the foregoing, Client shall have
no power or right to assign this Agreement or any of its rights or
obligations hereunder and any attempt to do so, without the prior
written consent of Buyer, shall be voidable by Buyer at its option.
XVII. Buyer's omission or delay in the exercise of any of its optional or
absolute rights to remedy under this Agreement shall not constitute a
waiver by Buyer, nor operate to bar Buyer from the exercise of any such
rights. Any waiver by Buyer and any default shall not operate as a
waiver of any other subsequent default. All rights and remedies
provided to Buyer herein are not exclusive of any other remedies at law
or equity, are cumulative and not alternative, and may be exercised by
Buyer simultaneously or in such order as Buyer deems to be in its best
interest.
XVIII. Client hereby irrevocably appoints Buyer as its attorney in fact, with
all power of substitution, for and on behalf and in the name of Client
to take any or all of the following actions in the event Client shall
fail or refuse to no so; to endorse and deliver to Buyer or any other
person any checks, instruments or other papers coming into Buyer's
possession representing payments made on Mortgages or in respect of the
Mortgages; to prepare, complete, execute and deliver and recover in the
name of Client an assignment of any Mortgage Deed to Buyer or to any
other person; to endorse ahead deliver in the name of Client any
Mortgage Note; to do every other thing necessary or desirable to effect
transfer of a Mortgage to Buyer or to any other person; to take all
necessary and appropriate action in the name of Client with respect to
Mortgage Loans and the servicing of Mortgages, to commence, prosecute,
settle, discontinue, defend, or otherwise dispose of any claim relating
to any Mortgage or Third Party Investor commitment; and to sign
Client's name whenever appropriate to effect the performance of this
Agreement. This Section shall be liberally, not restrictively,
construed so as to give the greatest latitude to Buyer's power, as
attorney, to collect, sell, and deliver Mortgages and all documents
relating thereto.
XIX. This document contains the entire agreement between the parties hereto
and cannot be modified in any respect except by an amendment in writing
signed by both parties.
IN WITNESS WHEREOF, each party has caused its corporate seal to be
affixed hereto and this instrument to be signed in its corporate name on its
behalf by its proper officials duly authorized.
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This ______28th_________ day of MAY, 1999.
CLIENT: WESTMARK MORTGAGE CORPORATION
By: ______________________________________
Its: XXXXXX STORY, III PRESIDENT
Attest: ______________________________________
By:
Its: XXXX XXXXXX, VICE PRESIDENT
BUYER: GREAT EASTERN FUNDING, L.L.C.
By: ______________________________________
Its: ______________________________________
Attest: ______________________________________
By: ______________________________________
Its: ______________________________________
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