AGREEMENT FOR PURCHASE AND SALE OF SERVICING BY AND BETWEEN HOMEFEDERAL BANK SELLER AND EVERBANK PURCHASER DATED AS OF NOVEMBER 30, 2006
Exhibit
10.1
AGREEMENT
FOR PURCHASE AND SALE OF SERVICING
BY
AND
BETWEEN
HOMEFEDERAL
BANK
SELLER
AND
EVERBANK
PURCHASER
DATED
AS
OF
NOVEMBER
30, 2006
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TABLE
OF CONTENTS
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1.
DEFINITIONS……………………………………….……………………….………..........
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1
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2. SALE
AND TRANSFER OF SERVICING…………………………………………………
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5
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2.1
Sale……………………………………………………………………...………..…
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5
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2.2 Investor
Approval……………………………………………………………………
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5
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2.3 Transfer
Documents…………………………………………………................
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5
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3.
CONSIDERATION………………………………………….......................................
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5
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3.1 Purchase
Price……………………………………………………………………….
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5
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3.2 Accounts
Receivable………………………………………………………………...
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6
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3.3 Payment of the Purchase Price;
Holdback…………………………………………..
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6
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3.4 Adjustments to Purchase
Price………………………………………………………
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6
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4.
COVENANTS OF PURCHASER…………………………………………………………...
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7
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5.
COVENANTS OF SELLER…………………………………………………………………
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7
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6.
POST CLOSING REQUIREMENTS………………………………………………………..
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10
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7.
REPRESENTATIONS AND WARRANTIES OF
SELLER………………………………..
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10
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7.1 Due Incorporation and Good
Standing……………………………………………....
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11
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7.2 Authority and
Capacity……………………………………………………………...
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11
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7.3 Effective
Agreement………………………………………………………………...
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11
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7.4
Conflict…………………………………………………………………………..
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11
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7.5 Approvals and
Compliance………………………………………………………….
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11
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7.6 Filing of
Reports…………………………………………………………………….
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11
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7.7 Related Escrow
Accounts…………………………………………………………...
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12
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7.8 Accounts
Receivable………………………………………………………………...
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12
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7.9 The Mortgage
Loans………………………………………………………………...
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12
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7.10
Insurance…………………………………………………………………………….
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15
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7.11
Litigation…………………………………………………………………………….
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15
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7.12 No Accrued
Liabilities………………………………………………………………
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15
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7.13 Offering
Information………………………………………………………………...
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15
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7.14 Statements
Made…………………………………………………………………….
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15
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7.15 No Cooperative
Loans………………………………………………………………
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15
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7.16 No Recourse
Loans………………………………………………………………….
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15
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8.
REPRESENTATIONS AND WARRANTIES OF
PURCHASER...................................
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15
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8.1
Due Incorporation and Good
Standing……………………………………………...
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16
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8.2 Authority and
Capacity……………………………………………………………...
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16
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8.3
Enforceability………………………………………………………………………..
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16
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8.4 Effective
Agreement………………………………………………………………...
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16
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8.5 Statements
Made…………………………………………………………………….
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16
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8.6 Investor Good
Standing……………………………………………………………..
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16
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8.7 Litigation; Compliance
withLaws………………………………………………….
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16
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9.
CONDITIONS PRECEDENT TO OBLIGATIONS OF
PURCHASER……………………
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17
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9.1 Correctness of Representations and
Warranties……………………………………..
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17
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9.2 Compliance with
Conditions……………………………………………………...
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17
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9.3 Opinion of Counsel for
Seller……………………………………………………….
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17
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9.4 Corporate
Resolution………………………………………………………………..
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17
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10.
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER………………………….
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17
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10.1 Correctness of Representations and
Warranties……………………………………..
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17
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10.2 Compliance with
Conditions………………………………………………………...
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18
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10.3 Opinion of Counsel for
Purchaser…………………………………………………...
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18
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11.
SCHEDULE OF SERVICING………………………………………………………………
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18
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12.
INDEMNIFICATION OF PURCHASER AND SELLER…………………………………..
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18
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12.1 Indemnification of
Purchaser………………………………………………………..
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18
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12.2 Repurchase of Mortgage Loans and
Servicing……………………………………...
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19
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12.3 Indemnification of
Seller……………………………………………………………
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20
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13.
MISCELLANEOUS………………………………………………………………………
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20
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13.1 Notification of
Transfer……………………………………………………………...
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20
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13.2 Supplementary
Information………………………………………………………….
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20
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13.3 Further
Assurances…………………………………………………………………..
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20
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13.4 Access to
Information……………………………………………………………….
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21
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13.5 Broker’s
Fees………………………………………………………………………..
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21
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13.6 Survival of Covenants, Agreements,
Representations and
Warranties……………...
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21
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13.7 Form of Payment to be
Made………………………………………………………..
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21
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13.8
Notices……………………………………………………………………………….
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21
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13.9
Waivers……………………………………………………………………………
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22
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13.10 Entire
Agreement…………………………………………………………………….
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22
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13.11 Binding
Effect……………………………………………………………………….
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22
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13.12
Headings…………………………………………………………………………….
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22
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13.13 Applicable
Laws…………………………………………………………………….
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22
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13.14 Transfer
Instructions………………………………………………………………...
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23
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13.15
Severability………………………………………………………………………….
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23
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13.16 Written
Agreement…………………………………………………………………..
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23
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13.17 Default by
Seller…………………………………………………………………….
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23
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13.18 Default by
Purchaser………………………………………………………………...
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23
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13.19 Dispute
Resolution…………………………………………………………………..
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23
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13.20 Wire
Instructions…………………………………………………………………
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24
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13.21 Counterparts
Execution……………………………………………………………..
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24
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OF
SERVICING
THIS
AGREEMENT FOR PURCHASE AND SALE OF SERVICING
(this
“Agreement”) is dated as of the 30th
day of
November, 2006, between EVERBANK, a federal savings association (“Purchaser”),
whose address is 0000 Xxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000, and HOMEFEDERAL
BANK,
an
Indiana commercial bank (“Seller”), whose mailing address is 0000 Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxx 00000. All defined terms utilized herein shall have the
meaning assigned thereto in the Definitions below.
R
E C I T A L S :
WHEREAS,
Seller
is the owner of the Servicing for the Mortgage Loans; and
WHEREAS,
Seller
desires to sell, transfer and assign to Purchaser all of its right, title and
interest in and to the Servicing for the Mortgage Loans and Purchaser desires
to
acquire and assume all right, title and interest in and to the Servicing from
Seller; and
WHEREAS,
Purchaser was the successful bidder for the purchase of the Servicing in the
offering conducted by Broker.
NOW,
THEREFORE,
in
consideration of the mutual promises, covenants and conditions, and upon the
terms and subject to the conditions set forth herein, the parties hereto agree
as follows:
1. DEFINITIONS.
For
purposes of this Agreement, the following terms shall have the following
meanings when used herein. The terms defined herein include the plural as well
as the singular and the singular as well as the plural.
“Accounts
Receivable”.
Amounts
due Seller by virtue of documented advances made prior to the Sale and Transfer
Date in connection with the Servicing of the Mortgage Loans in accordance with
Investor Guidelines or FHA/VA regulations, as applicable and which are deemed
recoverable by Purchaser.
“Agreement”.
This
Agreement and all attachments hereto, as the same may from time to time be
amended or supplemented by one or more instruments executed by Seller and
Purchaser.
“Ancillary
Income”.
Late
Mortgagor payment charges, charges for dishonored checks (NSF Fees), pay off
fees, assumption fees, commissions and administrative fees on insurance and
similar fees and charges collected from or assessed against the
Mortgagor.
“Applicable
Requirements”
means
and includes, as of the time of reference, with respect to the Mortgage Loans
and the Servicing, all of the following: (i) all contractual obligations of
Seller and any prior originator or servicers, including without limitation
those
contractual obligations contained herein or in the Mortgage Loan documents
for
which Seller or the servicer is responsible or at any time was responsible;
(ii)
all applicable federal, state and local legal and regulatory requirements
(including statutes, rules, regulations and ordinances) binding upon Seller
and/or the servicer or any prior servicer; (iii) all other applicable
requirements and guidelines of each governmental agency, board, commission,
instrumentality and other governmental body or office having jurisdiction over
the Mortgage Loans; (iv)
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all
other
applicable judicial and administrative judgments, orders, stipulations, awards,
writs and injunctions; and (v) the reasonable and customary mortgage servicing
practices of prudent mortgage lending institutions which service mortgage loans
of the same type as the Mortgage Loans in the jurisdiction in which the related
mortgaged properties are located.
“Bankruptcy”.
The
Mortgagor under a Mortgage Loan has sought protection under or is subject to
proceedings under the bankruptcy or insolvency laws of the United States or
any
other similar laws of general application for the relief of
debtors.
“Bid
Letter”.
The
letter from Purchaser to Broker dated September 29, 2006, wherein Purchaser
offered to purchase the Servicing from Seller.
“Broker”.
Sandler
X’Xxxxx Mortgage Finance L.P.
“Business
Day”.
Any
day
other than (i) a Saturday or Sunday, or (ii) a day on which national banking
institutions are authorized or obligated by law or executive order to be closed.
“Buy-Down
Funds”.
The
remaining amount of funds collected at the closing of a Mortgage Loan to cover
a
portion of the mortgage payment for a stated term and which are held by or
on
behalf of Seller.
“Closing
Documents”.
This
Agreement, the Assignment of the Servicing of the Mortgage Loans attached hereto
as Appendix II and the Transfer of Servicing attached hereto as Appendix
III.
“Xxxxxx
Mae”.
Federal
National Mortgage Association.
“FHA”.
Federal
Housing Administration.
“Foreclosure”.
A
Mortgage Loan where payment has been accelerated and the Mortgage Loan has
been
referred to an attorney for collection and enforcement proceedings or is in
the
process of liquidation after the foreclosure sale.
“Xxxxxxx
Mac”.
Federal
Home Loan Mortgage Corporation.
“Holdback”.
Ten
percent (10%) of the Purchase Price, less any sums deducted therefrom pursuant
to this Agreement.
“Insurer”.
Any
insurer under any applicable hazard insurance policy, any federal flood
insurance policy, or any title insurance policy.
“Investor”.
The
beneficial owner of the Mortgage Loans and more particularly described in the
Mortgage Loan Schedule.
“Investor
Approval”.
The
written acknowledgment provided by an Investor to Purchaser unconditionally
approving the purchase and sale of the Servicing.
“Investor
Guidelines”.
Rules
and
regulations set forth by each Investor, as outlined in their respective Selling
and Servicing Guides or other published or written rules and regulations, and
as
amended from time to time, including project guidelines, setting forth the
manner in which Mortgage Loans shall be originated, underwritten, sold or
serviced, excluding any special commitments.
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“Litigation”.
A
legal
action in foreclosure of a Mortgage Loan, or for a deficiency thereunder, in
which the sale of the mortgaged property in foreclosure (whether by action,
power of sale, or otherwise) has been delayed by reason of the defense of such
action by the Mortgagor, or any other action commenced or pending which involves
the Mortgage Loan (excluding class actions), and which action materially and
adversely, in Purchaser’s reasonable opinion, affects the Mortgagor’s obligation
to make payments under the Mortgage Loan or the enforceability or priority
of
the Mortgage or results in a material increase in the cost to service the
Mortgage Loan.
“Mortgage”.
A
security instrument, including without limitation a mortgage or deed of trust,
creating a first lien on real property securing the payment of a Mortgage
Note.
“Mortgage
File”.
The
file
containing the photostatic copies of mortgage loan documents with respect to
a
Mortgage Loan, as well as the credit and closing packages, disclosures,
custodial documents, and all other files, books, records and documents, all
as
called for pursuant to the Transfer Instructions at Appendix IV to this
Agreement.
“Mortgage
Loan”.
Any
loan,
evidenced by a Mortgage Note and secured by a Mortgage, described in the
Mortgage Loan Schedule and thereby subject to this Agreement.
“Mortgage
Loan Schedule”.
The
schedule of Mortgage Loans attached hereto as Appendix I, which has been
prepared as of the close of business on each Sale and Transfer
Date.
“Mortgage
Note”.
The
evidence of indebtedness from a Mortgagor to a lender which is secured by a
Mortgage.
“Mortgagor”.
The
obligor on a Mortgage Note.
“Offering
Information”.
The
information, data, tapes and statements provided to Purchaser by Seller or
Broker in the preparation of Purchaser’s Bid Letter with respect to the
Servicing.
“Offering
Memorandum”.
The
offering memorandum prepared by Broker, acting as broker for Seller, and
identified as Offering No. SEP2006-1.
“Prepaid
Mortgage Loans”.
Mortgage
Loans which are prepaid in full on or before three (3) months after the Sale
and
Transfer Date, excluding any Mortgage Loans refinanced by Purchaser. The date
on
which the Mortgage Loan is considered prepaid with respect to Prepaid Mortgage
Loans shall be (a) the date of the payoff check from the settlement agent or
(b)
the date the payoff is received via wire transfer of federal funds.
“Purchase
Price”.
The
amount paid by Purchaser to Seller for the Servicing of the Mortgage Loans,
as
provided in Paragraph 3 hereof, and as subsequently adjusted pursuant to this
Agreement.
“Purchaser’s
Indemnified Matters”.
As
defined in subparagraph 12.3 of this Agreement.
“Recorded
Assignments”.
All
assignments of the Mortgage Loans required to legally vest title to the Mortgage
Loans in Purchaser (unless previously recorded in the name of the Investor
or
MERS®), which assignments shall be properly recorded, individually or as blanket
assignments, where permitted by the applicable recorder’s office.
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“Recourse
Obligation”.
Any
obligation with respect to any Mortgage Loan in any master commitment or pool
purchase contract, whether described as a limited or full repurchase
requirement, limited or full recourse, credit support reimbursement or other
obligation, indemnification, loss sharing arrangement or otherwise which would
subject the servicer of such Mortgage Loan to losses on the liquidation of
such
Mortgage Loan or which would entitle the Investor to demand the repurchase
of a
Mortgage Loan for any reason, except for standard repurchase requirements in
accordance with Investor Guidelines as a result of origination errors and/or
servicing errors occurring prior to the Sale and Transfer Date. The fact that
any of the Mortgage Loans may have been classified by an Investor as
“non-recourse” because of the existence of any pool insurance policy shall not,
for purposes of this Agreement, remove any such Mortgage Loan from the
definition of Recourse Obligation.
“Related
Escrow Accounts”.
Segregated
trust accounts maintained by Seller in accordance with Investor Guidelines
and
established to hold funds for principal and interest, taxes and insurance in
escrow pursuant to the terms of the Mortgage Loans.
“Sale
and Transfer Date”.
The
date
on which the ownership of the Servicing and other assets specified herein are
transferred to Purchaser, which shall be the close of business on December
29,
2006 for the Xxxxxx Mae Mortgage Loans and Investors with month-end cutoff
dates
and December 15, 2006 for the Xxxxxxx Xxx Mortgage Loans and Investors with
mid-month cutoff dates, unless extended in writing by Seller and
Purchaser.
“Seller’s
Indemnified Matters”.
As
defined in subparagraph 12.1.
“Servicing”.
With
respect to the Mortgage Loans (a) the management of operational functions
related to servicing each Mortgage Loan including without limitation (i) the
collection and disbursement of funds being held in escrow to pay taxes,
insurance and other items as they become due, (ii) the collection and remittance
of principal and interest payments in accordance with Investor Guidelines,
and
(iii) the resolution of defaulted loans in accordance with Investor Guidelines,
(b) the right to all service fees, Ancillary Income, the value of Related Escrow
Accounts, the right to solicit the Mortgagors for other services and all other
customary rights related to servicing the Mortgage Loans, and (c) the title
to
all Mortgage Files and other related records.
“Sixty
(60) Days Delinquent”.
With
respect to a Mortgage Loan, when two (2) regularly scheduled monthly Mortgage
Loan payments are due and unpaid. By way of example: A Mortgage Loan due and
unpaid for the November 2006 payment as of the Sale and Transfer
Date.
“Tax
Identification Number”.
The
number used by the Internal Revenue Service to identify a taxpayer for income
tax reporting purposes.
“Third
Party Originated Loans”.
Mortgage
Loans originated by a lender other than Seller.
“Transferred
Assets”.
Collectively,
the Servicing, Accounts Receivable, Mortgage Files and rights as custodian
with
respect to the Buy-Down Funds and Related Escrow Accounts.
“VA”.
Veteran’s
Administration, or any successor thereto.
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2. SALE
AND TRANSFER OF SERVICING
2.1 Sale
Subject
to, and upon the terms and conditions of this Agreement, Seller shall, on the
Sale and Transfer Date, sell, convey, transfer, assign and deliver to Purchaser
and Purchaser shall purchase, assume and accept all right, title and interest
of
Seller, as of the Sale and Transfer Date, in and to the Transferred Assets
and
all obligations of Seller with respect to servicing the Transferred Assets
from
and after the Sale and Transfer Date.
Purchaser
will assume only those contractual duties, obligations and liabilities of Seller
which prospectively and directly relate to Purchaser’s acquisition, ownership
and performance of the Servicing, and Purchaser will not assume or otherwise
be
responsible for, in any way whatsoever, any other duties, obligations and
liabilities of, or claims against, Seller or its shareholders (or any of their
respective, agents, officers, directors, trustee, or affiliates), with respect
to the Servicing or otherwise.
2.2 Investor
Approval.
The
purchase and sale of the Servicing are subject to Investor Approval. If Seller
fails, for whatever reason, to obtain written approval from any Investor by
no
later than the Business Day prior to the Sale and Transfer Date, Purchaser
shall
have the option to terminate this Agreement, by written notice to Seller, within
five (5) Business Days following Seller’s failure to deliver to Purchaser proof
of Investor Approval. If Purchaser terminates this Agreement as provided above
after the Sale and Transfer Date, Seller shall immediately refund to Purchaser
any portion of the Purchase Price received by Seller, if any, and Purchaser
shall re-convey any portion of the Transferred Assets delivered to Purchaser
from Seller immediately upon termination. Thereafter, subject to the continuing
obligations of the parties pursuant to Paragraph 12, the parties shall have
no
further obligation to one another.
2.3 Transfer
Documents.
On or
prior to the Sale and Transfer Date, Seller shall execute and deliver to
Purchaser (a) the Assignment of the Servicing of the Mortgage Loans attached
hereto and made a part hereof as Appendix II, and (b) the Transfer of Servicing
attached hereto and made a part hereof as Appendix III. Prior to the Sale and
Transfer Date, Purchaser and Seller shall execute and deliver any documents
required by the Investors in connection with the transfer of the Transferred
Assets hereunder, in form and substance reasonably satisfactory to Purchaser
and
Seller, and shall execute and deliver such other instruments or documents as
Purchaser and Seller shall reasonably determine are necessary to consummate
the
transactions contemplated hereby.
3. CONSIDERATION.
3.1 Purchase
Price.
In full
consideration for the sale of the Transferred Assets and upon the terms and
conditions of this Agreement, Purchaser shall pay to Seller (in accordance
with
subparagraph 3.3), an amount equal to the following:
(a) As
to
Mortgage Loans which are current or less than Sixty (60) Days Delinquent and
Mortgage Loans which are not (i) in Bankruptcy, (ii) in Litigation or (iii)
in
Foreclosure, the aggregate outstanding principal balance of such Mortgage Loans,
as of the close of business on the Sale and Transfer Date, multiplied by 0.875%
(0.00875). All of the above determinations shall be made based upon the status
of each Mortgage Loan on the Sale and Transfer Date.
(b) As
to
Mortgage Loans as which are Sixty (60) Days Delinquent which are not (i) in
Bankruptcy, (ii) in Litigation or (iii) in Foreclosure, the aggregate
outstanding principal balance of such Mortgage Loans, as of the close of
business on the Sale Date, multiplied by 0.4375% (0.004375). All of the above
determinations shall be made based upon the status of each Mortgage Loan on
the
Sale Date.
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3.2 Accounts
Receivable.
Within
five (5) Business Days after Purchaser receives documentation which is
reasonably satisfactory to it as to Accounts Receivable on the Mortgage Loans
transferred to Purchaser, Purchaser shall pay such documented amount to Seller.
Accounts Receivable which are not considered by Purchaser to be recoverable,
will be paid to Seller by Purchaser only if and when recovered by
Purchaser.
3.3 Payment
of the Purchase Price; Holdback.
Subject
to the conditions precedent set forth in Paragraph 9 of this Agreement, the
Purchase Price shall be due and payable as follows:
(a) On
the
Sale and Transfer Date, Purchaser shall pay to Seller a sum equal to twenty
percent (20%) of the Purchase Price.
(b) Within
three (3) Business Days after the Sale and Transfer Date, Purchaser shall pay
to
Seller a sum equal to ninety percent (90%) of the Purchase Price, less the
payment made in accordance with subparagraph (a) above.
(c) The
balance of the Purchase Price, which is represented by the Holdback, shall
be
paid as herein provided, (i) fifty percent (50%) of the Holdback shall be paid
to Seller upon Seller’s completion in all material respects of the delivery
requirements set forth in the Transfer Instructions and Purchaser’s receipt of
seventy-five percent (75%) of the Recorded Assignments, (ii) an additional
twenty-five percent (25%) of the Holdback will be paid to Seller upon
Purchaser’s receipt of ninety-five percent (95%) of the Recorded Assignments,
and (iii) the balance of the Holdback will be paid to Seller upon Seller’s
completion of all delivery requirements set forth in this Agreement.
Notwithstanding the foregoing, Purchaser may elect to withhold such portion
of
the Holdback as Purchaser determines, in good faith, is equivalent to the
out-of-pocket damages and expenses it reasonably expects to sustain if any
of
Seller’s representations and warranties are found to be untrue in any material
respect or if Seller has otherwise materially defaulted under this Agreement
and
Seller has been placed on notice for such default or misrepresentation, and
as
of the date such payment of the Holdback is due, such default or defaults have
not been cured to the reasonable satisfaction of Purchaser. Provided, however,
Purchaser shall fund the Holdback or such portion thereof as is due to Seller
at
such time as the misrepresentations or defaults have been cured.
(d) Any
amounts owed to Purchaser by Seller due to Buy-Down Funds or Related Escrow
Accounts shall be transferred to Purchaser by Seller by wire transfer of federal
funds within two (2) Business Days after the Sale and Transfer Date, based
upon
the schedule delivered by Seller to Purchaser as provided in paragraph 11
herein.
(e) If,
subsequent to the payment of the Purchase Price or the payment of any amounts
due hereunder to either party, the outstanding principal balance of any of
the
Mortgage Loans is found to be in error, or if for any reason the Purchase Price
or such other amounts is found to be in error, the party benefiting from the
error shall pay an amount sufficient to correct and reconcile the Purchase
Price
or such other amounts and shall provide a reconciliation statement and other
such documentation to reasonably satisfy the other party concerning the accuracy
of such reconciliation. Such amounts shall be paid by the proper party within
ten (10) Business Days from receipt of satisfactory written verification of
amounts due.
3.4 Adjustments
to Purchase Price
(a) In
the
event an Investor does not approve the transfer of its Mortgage Loans as
contemplated in this Agreement and if Purchaser does not terminate the Agreement
as provided in
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subparagraph
2.2, then Seller shall repurchase the Servicing of the affected Mortgage Loans
in accordance with subparagraph 12.2; provided, however, that if the net average
service fee of the remaining Mortgage Loans is less than 0.2516%, the Purchase
Price will be reduced by multiplying 3.478 times the true net servicing fee
(e.g. net service fee of 0.25% times 3.478 equals a purchase price of 0.87%,
a
.05 basis point reduction).
(b) In
the
event of the termination of the Servicing by an Investor as to any of the
Mortgage Loans, through no fault of Purchaser, within eighteen (18) months
from
the Sale and Transfer Date (the date of the notice from the Investor shall
be
considered the termination date for the purpose of this subparagraph) and for
which a termination fee is not paid or is less than the Purchase Price paid
for
such Mortgage Loans, then Seller agrees to reimburse Purchaser for the Purchase
Price paid for the Servicing with respect to such Mortgage Loans, less any
termination fees paid to Purchaser, in relation to such Servicing as
follows:
(i) Months
1
- 12: 100%
(ii) Months
13
- 18: 75%
4. COVENANTS
OF PURCHASER.
Purchaser shall, subject to the terms and conditions of this Agreement, pay,
perform and discharge or cause to be paid, performed, and discharged all of
the
obligations relating to the Servicing, Buy-Down Funds and Related Escrow
Accounts assigned to Purchaser from and after the Sale and Transfer Date.
Purchaser further agrees to accept and assume such obligations relating to
the
Servicing and the Mortgage Loans as shall be required by the Investors and
as
provided in the agreements and documents executed by the parties pursuant to
subparagraph 2.3 of this Agreement.
5. COVENANTS
OF SELLER.
Seller
covenants and agrees with Purchaser as follows:
(a) Remaining
Obligations.
Seller
shall pay, perform or discharge all of its liabilities and obligations accruing
before the Sale and Transfer Date relating to the Servicing, the Related Escrow
Accounts and the Mortgage Loans, to the extent the same are unpaid or
unfulfilled on the Sale and Transfer Date and except as expressly assumed by
Purchaser pursuant to the terms hereof.
(b) Servicing
Income.
All
monies received by Seller after the Sale and Transfer Date relating to the
Mortgage Loans and the Accounts Receivable shall be promptly turned over to
Purchaser and all servicing fees and Ancillary Income accruing after the Sale
and Transfer Date with respect to the Servicing shall inure to the benefit
of
Purchaser.
(c) Correction
of Material Errors.
Seller
shall, at the request of Purchaser, make a good faith effort and diligently
pursue the correction of any material errors or deficiencies in any of the
Mortgage Loans or related loan documentation. For purposes of this provision,
material shall refer to errors or deficiencies which are required to be
corrected by the Investors.
(d) Assignment
and Transfer.
Unless
previously recorded in the Investor’s name or MERS®, as evidenced of record in
the Mortgage Loan file, Seller shall, at its expense, cause to be prepared,
executed, and, where applicable, recorded all documents necessary to legally
transfer and assign all right, title and interest in and to the Servicing of
the
Mortgage Loans from Seller to Purchaser including, without limitation, the
Mortgage Note endorsements, assignments in recordable form from Purchaser to
blank (if required by Investor Guidelines) and the Recorded Assignments. Seller
shall provide a special purpose resolution authorizing those officers of
Purchaser to sign such documents on Seller’s behalf. Seller shall be responsible
for obtaining and shall pay the cost of securing the approval of the Investors,
including payment of any investor fees, sub-servicer fees or transfer fees
due.
In addition,
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Seller
shall pay any costs related to (i) obtaining the release of the Mortgage File
and related Mortgage Loan documents from the custodian of the Mortgage Loans,
(ii) the cost of shipping the Mortgage File and related Mortgage Loan
documentation to Purchaser or a custodian designated by Purchaser, and (iii)
obtaining and delivering complete master file tape information and any other
electronically stored information.
(e) Tax
Payments.
Provided the tax xxxx has been released by the taxing authority prior to the
Sale and Transfer Date, Seller shall pay to Purchaser any penalty charges or
the
amount of any discounts lost as a result of a failure to pay tax bills with
respect to Mortgage Loans as to which a Related Escrow Account is maintained,
which are due and payable on or before the Sale and Transfer Date or thirty
(30)
days subsequent thereto, which are subsequently incurred by
Purchaser.
(f) Defects.
If any
Mortgage Loan, including the Related Escrow Account for such Mortgage Loan,
is
found defective or deficient as a result of acts or omissions prior to the
Sale
and Transfer Date in accordance with Investor Guidelines or such defect or
deficiency limits the Purchaser’s ability to properly service the Mortgage Loan,
other than as a result of a servicing error by Purchaser after the Sale and
Transfer Date, Seller shall upon written notification by Purchaser (i) correct
or cure the defect (or defend the asserted defect to the Investor in good faith
to the reasonable satisfaction of the Purchaser) to the reasonable satisfaction
of Purchaser and/or Investor within thirty (30) days or such time period allowed
by the Investors, or if such defect cannot be cured within such time period,
(ii) repurchase the Servicing with respect to the affected Mortgage Loan from
Purchaser and repurchase the Mortgage Loan from Purchaser if Purchaser is
required to purchase such Mortgage Loan from the Investor, as provided in
subparagraph 12.2 of this Agreement, and (iii) hold harmless and indemnify
Purchaser from any and all claims, demands, liabilities or losses incidental
thereto including reasonable attorney’s fees and costs.
(g) Casualty
Loss.
Seller
shall be liable for any loss incurred by Purchaser as the result of a casualty
loss to any property subject to a Mortgage Loan where the loss occurs either
prior to or on the Sale and Transfer Date for such Mortgage Loan, if such loss
is the direct result of the expiration of any such insurance policies prior
to
the Sale and Transfer Date or is due to the insufficiency (in accordance with
Investor Guidelines) of any such insurance coverage. Further, if any insurance
coverage is insufficient in accordance with Investor Guidelines, Seller warrants
to Purchaser that the costs incurred for providing such insurance are secured
by
the Mortgage Loan and payable by the Mortgagor under the Mortgage Loan. In
the
event there is no evidence of insurance coverage on any Mortgage Loan as of
the
Sale and Transfer Date for such Mortgage Loan, Seller shall provide such
evidence within five (5) days of written request by Purchaser or shall be
responsible for the cost of Purchaser’s obtaining the necessary insurance
coverage to the extent such costs are not otherwise due, collectible, and
payable by the Mortgagor under the Mortgage Loan.
(h) No
Solicitation or Refinancing.
After
the Sale and Transfer Date, neither Seller nor any affiliate, parent,
subsidiary, sub-servicer, or agent of Seller (the “Related Parties”) shall,
during the remaining term of any of the Mortgage Loans, (a) use information
derived from the origination, sale, or servicing of the Mortgage Loans to
refinance any Mortgage Loan, or (b) solicit in any manner any of the Mortgagors
of the Mortgage Loans for the purpose of refinancing or the sale of any other
products. For purposes of this subparagraph, advertising directed to i) the
general public, (ii) generic statement stuffers to Seller’s banking customers,
(iii) general mailings to all Seller’s banking customers, and (iv) mailings to
parties whose names were obtained through commercially available mailing lists
shall not be deemed to be a prohibited solicitation. Seller shall not direct
any
promotion or creation of a mass mailing list nor shall Seller use a mass mailing
list prepared where such mailing list is structured to target Mortgagors of
the
Mortgage Loans.
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In
the
event Seller or the Related Parties violate the above covenant, Seller shall,
upon demand by Purchaser, pay to Purchaser a sum equal to the Purchase Price
paid by Purchaser for the Servicing with respect to each Mortgage Loan which
Seller or Related Parties has refinanced for a period of time three (3) months
before the violation and three (3) months after the violation. Provided that
such violation is within three (3) months of the Sale and Transfer Date,
Purchaser shall receive a full six (6) months protection from the Seller as
to
any violation.
(i) Prepaid
Mortgage Loans.
Seller
shall reimburse Purchaser upon demand for the Purchase Price paid for any
Servicing with respect to Prepaid Mortgage Loans. In the event the Sale and
Transfer Date is extended by the Seller, the number of days during which
Purchaser will be entitled to prepayment protection from Seller, as contemplated
herein, shall be extended for a like number of days.
(j) Compliance
with Obligations.
Prior
to the Sale and Transfer Date, Seller shall comply in all material respects
with
all of its obligations under all contracts to which it is a party and with
all
applicable laws, regulations and other guidelines of the Investors which might
affect any of the Servicing of the Mortgage Loans being purchased by Purchaser
hereunder and Seller will do no act or thing which may cause the cancellation
of
or otherwise materially and adversely affect any of the Servicing.
(k) Investor
Reports/Remittances.
Seller
has filed or timely will file all reports and remittances required by Investor
Guidelines. As of the Sale and Transfer Date, Seller will be in compliance
with
all applicable federal, state and municipal laws, regulations and ordinances
affecting the Servicing of the Mortgage Loans. Seller shall report the interest
payments of the Mortgagors under the Mortgage Loans and other related payments
and disbursements made during the period prior to the Sale and Transfer Date,
during which period Seller serviced or sub-serviced the Mortgage Loans. Seller
shall be responsible for providing Purchaser with accurate Tax Identification
Numbers on all of the Mortgagors of the Mortgage Loans and shall reimburse
Purchaser or successfully contest the Internal Revenue Service for any Internal
Revenue Service penalties incurred by Purchaser for any tax years prior to
the
Sale and Transfer Date as to Tax Identification Number errors in the Mortgage
Loan data base.
(l) Investor
Approval.
The
sale and assignment of Servicing under this Agreement is subject to the consent
and approval of the Investors. Seller agrees to (i) pay all costs and fees
relating to obtaining such approval, and (ii) use due diligence to obtain such
approval. Purchaser will assist Seller and complete any documentation and supply
any information reasonably required in order to obtain the approval of the
Investors. If the unconditional consent of an Investor is not received by the
Business Day prior to the Sale and Transfer Date or within such later date
as
Purchaser may approve in writing, or if such consent is given only upon terms
which are not reasonably acceptable to Purchaser, then Purchaser may elect
to
terminate this Agreement as provided in subparagraph 2.2, or to exclude the
Mortgage Loans for which Investor Approval was not obtained with a commensurate
reduction in the Purchase Price. In the event Purchaser elects to terminate
this
Agreement as provided above, Purchaser will provide written notice to Seller.
Within three (3) Business Days after notice of termination is given by
Purchaser, Seller shall immediately refund to Purchaser any portion of the
Purchase Price received by Seller, if any, and Purchaser shall re-convey any
portion of the Transferred Assets delivered to Purchaser from Seller immediately
upon termination. In the event Investor consent is not granted due to the acts,
errors or omissions of a party hereto, then such party shall reimburse the
party
not at fault for its unreimbursed costs and expenses associated with this
Agreement, including its reasonable attorney’s fees and costs.
(m) Optional
Insurance Premiums.
If, at
any time after the Sale and Transfer Date, Purchaser determines that Seller
received unearned optional insurance premiums from any Mortgagor(s), Seller
shall, upon demand from Purchaser reimburse Purchaser therefor within ten (10)
days of Purchaser’s written request for such reimbursement. Additionally, Seller
shall indemnify and hold
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Purchaser
harmless from any and all other claims and demands of the Mortgagors relating
to
optional insurance policies and premiums collected in connection therewith
prior
to the Sale and Transfer Date.
(n) Tax
and Flood Reporting Service.
Seller
shall, at its expense, provide Purchaser with transferable full service lifetime
flood servicing contracts on all Mortgage Loans. Seller shall pay all costs,
if
any, associated with transferring such contracts to Purchaser. Seller shall
provide to Purchaser, in electronic format, tax parcel numbers. Purchaser shall
be responsible for the cost and procurement of tax servicing
contracts.
(o) Master
Commitments.
Subject
to Purchaser’s agreement to treat such information as confidential and subject
to Seller’s right to withhold or redact any information as it deems reasonably
necessary to comply with applicable law or Investor Guidelines, Seller shall
provide to Purchaser upon request copies of all commitments under which the
Mortgage Loans were sold to the Investors.
(p) ARM
Adjustments.
Seller
shall make all appropriate rate and payment adjustments, as applicable, in
accordance with each adjustable rate Mortgage Note prior to the Sale and
Transfer Date.
(q) Custodial
Account Adjustments.
On or
before the Sale and Transfer Date, Seller shall correct and fund all cash and
collateral deficiencies with respect to the custodial accounts as required
by
Investor Guidelines. In the event such adjustments are not made promptly and
the
funds paid to Purchaser, then Purchaser may deduct the amounts which it
calculates to be due and payable from the Holdback.
(r) Mortgage
Loans in Litigation.
On or
before ten (10) Business Days prior to the Sale and Transfer Date, Seller shall
disclose to Purchaser, in writing, all Litigation relating to any Mortgage
Loan.
Purchaser shall have the right to exclude any such Mortgage Loan from this
Agreement.
6. POST
CLOSING REQUIREMENTS.
The
Seller and Purchaser agree to complete the following subsequent to the Sale
and
Transfer Date:
(a) Assignments.
As
provided for in subparagraph 5(d), Seller shall be responsible for preparing
and
delivering all documents necessary to legally transfer and assign all right,
title and interest in and to the Servicing of the Mortgage Loans, including
the
Recorded Assignments. Seller shall send the Recorded Assignments for recording
on the Sale and Transfer Date. Seller shall diligently pursue obtaining the
Recorded Assignments and shall deliver same to Purchaser immediately upon
receipt.
(b) Seller
shall diligently pursue obtaining all documentation required for the due
transfer of the Servicing to Purchaser and for delivering such documentation
to
Purchaser within the prescribed time limits set forth in the Investor
Guidelines.
(c) Seller
shall deliver, or cause to be delivered to Purchaser within two (2) Business
Days after the Sale and Transfer Date, all Mortgage Files.
(d) Purchaser
shall report the interest payments of the Mortgagors of the Mortgage Loans
and
other related payments and disbursements received and applied, which are
required to be reported, for the period from and after the Sale and Transfer
Date.
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7. REPRESENTATIONS
AND WARRANTIES OF SELLER.
The
representations and warranties of Seller contained in this Agreement shall
continue and survive the purchase of the Servicing and the delivery and
assignment to Purchaser of such Servicing and shall inure to the benefit of
Purchaser, its successors and assigns. Purchaser is purchasing, and any
subsequent transferee or assignee will assume or purchase, the Servicing in
reliance on the truth and accuracy of each such representation or warranty.
In
addition to representations and warranties made elsewhere in this Agreement,
Seller represents and warrants to Purchaser, as of the Sale and Transfer Date,
as follows:
7.1 Due
Incorporation and Good Standing.
Seller
is
a commercial bank, duly organized and validly existing under the laws of the
State of Indiana. Seller has in full force and effect (without notice of
possible suspension, revocation or impairment) all required qualifications,
permits, approvals, licenses, and registrations (or is exempt from same) to
conduct all activities in all states in which its activities with respect to
the
Mortgage Loans or the Servicing require it to be qualified or
licensed.
7.2 Authority
and Capacity.
Seller
has all requisite corporate power, authority and capacity to execute and deliver
this Agreement and to perform all of its obligations hereunder and thereunder.
Seller does not believe, nor does it have any cause or reason to believe, that
it cannot perform each and every covenant contained in this
Agreement.
7.3 Effective
Agreement.
The
execution, delivery and performance of this Agreement by Seller and consummation
of the transactions contemplated hereby and thereby have been or will be duly
and validly authorized by all necessary corporate, shareholder or other action.
This Agreement has been duly and validly executed and delivered by Seller,
and
this Agreement is a valid and legally binding agreement of Seller enforceable
against Seller in accordance with its terms, subject to applicable insolvency,
bankruptcy, reorganization, moratorium, or similar laws and principles of
equity. Any requisite consents or approvals of third parties (including the
Investors and any other applicable regulatory authorities) to the execution
and
delivery of this Agreement or the performance of the transactions contemplated
hereby and thereby by Seller have been or will be obtained prior to the Sale
and
Transfer Date or such other earlier date as expressly provided
herein.
7.4 No
Conflict.
Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby and thereby, nor compliance with its terms
and
conditions, shall (a) violate, conflict with, result in a material breach of,
constitute a default under any of the terms, conditions or provisions of the
Articles of Incorporation or By Laws or any similar corporate or organizational
documents of Seller, or other agreement or instrument to which Seller is now
a
party or by which Seller is bound, or of any law, ordinance, rule or regulation
of any governmental authority applicable to Seller, or of any order, judgment
or
decree of any court or governmental authority applicable to Seller, or (b)
result in the creation or imposition of any lien, charge or encumbrance of
any
nature upon, the Servicing or any of the Mortgage Loans or the properties or
assets of Seller.
7.5 Approvals
and Compliance.
Seller
is approved and in good standing with the Investors. Seller is not in default
with respect to Seller’s obligations under Investor Guidelines, and Seller is in
compliance in all material respects with all applicable laws, regulations,
rules
and requirements (including, without limitation, the rules, regulations and
requirements of the Investors, to the extent applicable) relating to the
Servicing.
7.6 Filing
of Reports.
Seller
has filed all reports required by the Investors with respect to the Mortgage
Loans and the Servicing, and Seller has complied in all material respects with
federal, state and
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municipal
laws, regulations and ordinances affecting the Mortgage Loans and the Servicing.
Seller has filed all IRS Forms, as appropriate, which are required to be filed
with respect to the Servicing.
7.7 Related
Escrow Accounts.
All
Related Escrow Accounts required to be maintained by Seller have been
established and continuously maintained in accordance with Applicable
Requirements. Except as to payments which are past due under the Mortgage Loans,
all Related Escrow Account balances required by the Mortgage Loans and paid
to
Seller for the account of the Mortgagors under the Mortgage Loans are on deposit
in the appropriate Related Escrow Accounts. Within the last twelve (12) months,
Seller has analyzed the payments required to be deposited into the Related
Escrow Account, other than with respect to Mortgage Loans in Bankruptcy or
in
Foreclosure, and adjusted the payment thereto in order to eliminate any
deficiency it may have discovered.
7.8 Accounts
Receivable.
The
Accounts Receivable are valid and subsisting accounts owing to Seller, are
carried on the books of Seller at values determined in accordance with generally
accepted accounting principles and are not subject to any set offs or claims
of
the account debtor arising from acts or omissions of, or otherwise known to,
Seller.
7.9 The
Mortgage Loans.
(a) Investor
Requirements.
Each
Mortgage Loan conforms in all material respects to the requirements and
specifications of the Investors.
(b) Enforceability
of Mortgage Loan.
The
Mortgage Note and the related Mortgage Loan are genuine and each is the legal,
valid and binding obligation of the maker thereof, enforceable in accordance
with its terms. All parties to the Mortgage Note and the Mortgage Loan had
legal
capacity to execute the Mortgage Note and the Mortgage Loan and each Mortgage
Note and Mortgage Loan have been duly and properly executed by such parties.
None of the Mortgage Loans are 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 Mortgage Note or the Mortgage Loan, or the exercise
of any right thereunder, render either the Mortgage Note or the Mortgage Loan
unenforceable, in whole or in part, or subject to any right of rescission,
set
off, counterclaim or defense, including the defense of usury, and no such right
of rescission, set off, counterclaim or defense has been asserted with respect
thereto.
(c) Disbursement.
The
full original principal amount of each Mortgage Loan (net of any discounts)
has
been fully advanced or disbursed to the Mortgagor named therein, there is no
requirement for future advances and any and all requirements as to completion
of
any on site or off site improvements and as to disbursements of any escrow
funds
therefor have been satisfied. All costs, fees and expenses incurred in making,
closing or recording the Mortgage Loan were paid. There is no obligation on
the
part of Seller, or of any other party, to make supplemental payments in addition
to those made by the Mortgagor.
(d) Priority
of Lien.
Each
Mortgage Loan has been duly acknowledged and recorded and is a valid and
subsisting first lien and the mortgaged property is free and clear of all
encumbrances and liens having priority over the lien of the Mortgage Loan,
except for (i) liens for real estate taxes and special assessments not yet
due
and payable, (ii) 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 (iii) other matters
to
which like properties are commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the Mortgage Loan
or the use, enjoyment, value or marketability of the related mortgaged property.
There are no mechanics or similar liens or claims which have been filed for
work, labor or material (and no rights are outstanding that under law could
give
rise to such lien) affecting the mortgaged property which are or may be
liens
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prior
to, or equal or coordinate with, the lien of the Mortgage Loan. A valid
mortgagee’s title policy or attorney’s opinion letter which meets Investor
Guidelines has been issued and is and shall remain in full force and effect
for
each such Mortgage Loan in an amount not less than the original principal amount
of such Mortgage Loan, which title policy insures that the related Mortgage
Loan
is a valid first lien on the mortgaged property therein described and that
the
mortgaged property is free and clear of all encumbrances and liens having
priority over the lien of the Mortgage Loan, subject to the exceptions set
forth
in this subparagraph, and otherwise in compliance with the requirements of
the
Investors and the applicable insurer. All tax identifications and property
descriptions are legally sufficient; tax segregation, where required, has been
completed. The failure of Seller or any servicer to have recorded intervening
assignments of the Mortgage Loan will not cause a delay in the subsequent
release of any Mortgage Loan or otherwise subject Purchaser to any liabilities
or costs.
(e) No
Default/No Waiver.
There
is no default, breach, violation or event of acceleration (except as disclosed
by Seller to Purchaser prior to the Sale and Transfer Date) existing under
any
Mortgage Loan, and no event has occurred which, with the passage of time or
with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration; and Seller has not waived
any default, breach, violation or event of acceleration. The terms of the
Mortgage Loan have in no way been waived, impaired, changed or modified, except
by written instrument which has been recorded, if necessary, and approved by
the
Investors. Seller has not advanced its funds to cure a default or delinquency
with respect to any such Mortgage Loans, except for advances made to pay for
items subject to the escrow for the Mortgage Loans.
(f) Application
of Funds.
All
payments received by Seller or any prior servicer with respect to any Mortgage
Loans have been remitted and properly accounted for as required by Applicable
Requirements. All funds received by Seller or any prior servicer in connection
with the satisfaction of Mortgage Loans, including but not limited to
foreclosure proceeds and insurance proceeds from hazard losses, have been
deposited in the appropriate principal and interest account or taxes and
insurance account included among the Related Escrow Accounts, and all such
funds
have been applied to reduce the principal balance of the Mortgage Loans in
question, or for reimbursement of repairs to the mortgaged property or as
otherwise required by Applicable Requirements or are and will be in one of
the
Related Escrow Accounts on the Sale and Transfer Date. The unpaid balances
of
the Mortgage Loans are as stated in the Mortgage Files to be delivered to
Purchaser.
(g) Compliance
with Laws.
Seller
and any other party originally named as payee under the Mortgage Notes have
complied, and Seller will continue to comply through the Sale and Transfer
Date,
with every applicable federal, state, or local law, statute, and ordinance,
and
any rule, regulation, or order issued thereunder, pertaining to the subject
matter of this Agreement, including, without limitation, real estate settlement
procedures, anti-predator laws, fair credit reporting, and every other
prohibition against unlawful discrimination or governing consumer credit, and
also including, without limitation, the Consumer Credit Reporting Act, Equal
Credit Opportunity Act of 1975 and Regulation B, Fair Credit Reporting Act,
Truth in Lending Law, in particular, Regulation Z as amended, the Flood Disaster
Protection Act of 1973, and state consumer credit codes and laws. Each party
originally named as payee under the Mortgage Notes and as mortgagee under the
related Mortgage Loan was qualified to do business, and had all requisite
licenses, permits and approvals, in the state in which the applicable mortgaged
properties are located as well as the states in which such notes or mortgages
were executed.
(h) Taxes.
All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments, ground rents relating to the Mortgage Loans
required to be paid by Seller have been paid as required pursuant to Applicable
Requirements and as herein provided.
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(i) Insurance.
All
mortgaged properties are currently insured against loss by fire, hazards or
extended coverage insurance policies in accordance with Applicable Requirements
and in an amount at least equal to the outstanding principal balance of the
applicable Mortgage Loans or, where applicable, carry a sufficient amount of
guaranteed replacement cost coverage unless prohibited by applicable state
law.
If required by the Flood Disaster Protection Act of 1973, each such property
is
covered by a flood insurance policy in an amount not less than the lesser of
(i)
the outstanding principal balance of the applicable Mortgage Loan, or (in)
the
maximum amount of insurance that is available under such Act. All such insurance
policies are in full force and effect, and all premiums with respect to such
policies have been paid.
(j) Damage;
Condemnation.
As of
the Sale and Transfer Date, to the best of the Seller’s knowledge, there exists
no physical damage to the mortgaged property from fire, flood, windstorm,
earthquake, tornado, hurricane or any other similar casualty, which physical
damage would cause any Mortgage Loan to become delinquent or adversely affect
the value or marketability of any Mortgage Loan, the Servicing or the mortgaged
property or the eligibility of the Mortgage Loan for insurance benefits, or
the
amount of insurance benefits, by any Insurer. To the best of Seller’s knowledge,
there is no proceeding pending for the total or partial condemnation of, or
eminent domain with respect to, the mortgaged property.
(k) Pools.
All
pools relating to the Mortgage Loans have been initially certified, finally
certified and/or re-certified in accordance with Applicable Requirements and
Investor Guidelines. All Pools relating to the Mortgage Loans shall be, when
transferred to Purchaser, eligible for recertification by Purchaser’s custodian,
and Seller will be responsible for curing any deficiencies, unless caused by
Purchaser, that must be cured in order for Purchaser to obtain such
recertification. The principal balance outstanding and owing on the Mortgage
Loans in each pool equals or exceeds the amount owing to the corresponding
security holder of such pool.
(l) Mortgage
File.
The
Mortgage File contains each of the documents and instruments specified to be
included therein and required to be maintained by the Investors, duly executed
and in due and proper form. Each such document or instrument is genuine and
in
form acceptable to the Investors and the information contained therein is true,
accurate and complete in all material respects.
(m) Good
Title.
The
sale, transfer and assignment by Seller to Purchaser of the Servicing, and
the
instruments required to be executed by Seller and delivered to Purchaser
pursuant to Investor Guidelines or other contractual provisions, are, or will
be
on the Sale and Transfer Date, valid and enforceable in accordance with their
terms and will effectively vest in Purchaser good and marketable title to the
Servicing, free and clear of any and all liens, claims, or encumbrances, except
for those encumbrances required by Investor Guidelines. Seller has not
previously assigned, transferred or encumbered the Servicing. There are no
contracts affecting the Servicing for the Mortgage Loans to which Purchaser
will
be bound and no other party has any interest in the Servicing except as required
or permitted under Investor Guidelines.
(n) Origination,
Sale and Collection Practices.
The
origination, sale and collection practices used by Seller or any prior
originator or servicer with respect to each Mortgage Loan have been in all
material respects legal, proper, prudent and customary in the mortgage lending
business and consistent with Applicable Requirements. With respect to escrow
deposits and payments in those instances where such were required, there exist
no deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made, and no escrow deposits or payments or
other charges or prepayments due to the Mortgagor have been capitalized under
any Mortgage Loan or the related Mortgage Note.
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(o) Hazardous
Material.
To the
best of Seller’s knowledge, no hazardous material, including oil and asbestos,
is present on, in, at or under the mortgaged property securing a Mortgage Loan
such that (a) the value of such mortgaged property is materially and adversely
affected, or (b) under applicable federal, state or local law, (i) such
hazardous material would be required to be eliminated before such mortgaged
property could be altered, renovated, demolished or transferred or (ii) the
presence of such hazardous material would (upon action by the appropriate
governmental authorities) subject the owner of such mortgaged property, or
the
holder of a security interest therein, to liability for the cost of eliminating
such hazardous material or the hazard created thereby.
7.10 Insurance.
Error
and omissions and fidelity insurance coverage, in amounts as required by the
Investors, is in effect with respect to Seller and will be maintained until
the
transactions contemplated by this Agreement have been consummated in accordance
with the terms hereof and thereof.
7.11 Litigation.
There
is no litigation, claim, demand, proceeding or governmental investigation
existing or pending, or to the knowledge of Seller, threatened, or any order,
injunction or decree outstanding, against or relating to Seller that could
have
a material adverse effect upon the Servicing being purchased by Purchaser
hereunder with respect to any Mortgage Loan or the performance by Seller of
its
obligations under Investor Guidelines, or result in loss or liability to
Purchaser, nor does Seller know of any basis for any such litigation, claim,
demand, proceeding, or governmental investigation.
7.12 No
Accrued Liabilities.
There
are no accrued or contingent liabilities of Seller with respect to the Mortgage
Loans or Servicing or circumstances under which such accrued or contingent
liabilities will arise against Purchaser, with respect to occurrences prior
to
the Sale and Transfer Date. In the event any termination or transfer fee
relating to the Servicing may be outstanding on the Sale and Transfer Date,
Seller assumes full responsibility for any such fee.
7.13 Offering
Information.
The
Offering Information was true and correct in every material respect as of the
date such materials were furnished to Purchaser. The trial balances utilized
in
the computation of the payments of the Purchase Price are true and correct
in
all material respects.
7.14 Statements
Made.
All of
the representations and warranties of Seller in this Agreement or furnished
to
Purchaser in any instrument or document in connection herewith, including,
without limitation, the Offering Information and the Offering Memorandum, (which
instruments or documents shall be deemed to be a part of this Agreement) are
true in all material respects as of the date of this Agreement and will be
true
in all material respects as of the Sale and Transfer Date. None of the written
representations, information or documentation furnished or to be furnished
by
Seller to Purchaser in this Agreement or in the transactions contemplated hereby
has materially changed since it was made or furnished, nor is it or will it
become materially false or misleading, nor does it or will it contain any
material misstatement of fact or omit to state a material fact necessary in
order to make the statements in light of the circumstances in which they are
made not misleading.
7.15 No
Cooperative Loans.
None of
the Mortgage Loans are secured by liens or security interests on cooperative
properties.
7.16 No
Recourse Loans.
None of
the Mortgage Loans have Recourse Obligations, except as described on Appendix
V
attached hereto.
8. REPRESENTATIONS
AND WARRANTIES OF PURCHASER.
The
representations and warranties of Purchaser contained in this Agreement shall
continue and survive the purchase of the Servicing and the delivery and
assignment to Purchaser of such Servicing and
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shall
inure to the benefit of Seller, its successors and assigns. In addition to
representations and warranties made elsewhere in this Agreement, Purchaser
represents and warrants to Seller, as of the Sale and Transfer Date, as
follows:
8.1 Due
Incorporation and Good Standing.
Purchaser is a federal savings association and validly existing under the laws
of the United States. Purchaser has in full force and effect (without notice
of
possible suspension, revocation or impairment) all required qualifications,
permits, approvals, licenses, and registrations (or is exempt from same) to
conduct all activities in all states in which its activities with respect to
the
Mortgage Loans or the Servicing require it to be qualified or
licensed.
8.2 Authority
and Capacity.
Purchaser has all requisite corporate power, authority, and capacity to enter
into this Agreement and, subject to appropriate regulatory approval, to perform
the obligations required of it hereunder.
8.3 Enforceability.
This
Agreement constitutes a legal, valid and binding obligation of Purchaser,
enforceable against Purchaser, subject to applicable insolvency, bankruptcy,
reorganization, moratorium, or similar laws and principles of
equity.
8.4 Effective
Agreement.
The
execution, delivery and performance of this Agreement by Purchaser and
consummation of the transaction contemplated hereby and thereby have been or
will be duly and validly authorized by all necessary corporate, shareholder
or
other action. This Agreement has been duly and validly executed and delivered
by
Purchaser. Any requisite consents or approvals of third parties (including
applicable regulatory authorities) to the execution and delivery of this
Agreement or the performance of the transactions contemplated hereby and thereby
by Purchaser have been or will be obtained prior to the Sale and Transfer Date
or such other earlier date as expressly provided herein. The execution and
performance of this Agreement by Purchaser, its compliance with the terms hereof
and the consummation of the transaction contemplated (assuming receipt of the
various consents required to be obtained by Seller pursuant to this Agreement)
will not violate any provision of law applicable to it and will not conflict
with the terms or provisions of its charter or by-laws, or any other instrument
relating to the conduct of its business or the ownership of its property, or
any
other agreement , order, decree or judgment to which Purchaser is a party or
subject, or by which it or its assets are bound.
8.5 Statements
Made.
No
representation, warranty, or statement made by Purchaser in this Agreement
or in
any document referred to herein or in any schedule, statement, or certificate
hereafter furnished pursuant to this Agreement or in connection with the
transactions between Seller and Purchaser provided for in this Agreement,
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make such statements not
misleading.
8.6 Investor
Good Standing.
Purchaser is an approved Investor servicer and is in good standing with the
Investors as required in order to perform the Servicing.
8.7 Litigation;
Compliance with Laws.
There
is no litigation, proceeding or governmental investigation pending or, to the
knowledge of Purchaser, threatened, or any order, injunction or decree
outstanding, against or relating to Purchaser which would materially and
adversely affect the ability of Purchaser to execute, deliver, and perform
the
terms of this Agreement, nor does Purchaser know of any basis for any such
litigation, proceeding, or governmental investigation. Purchaser has not
violated any applicable state or federal law governing mortgage lending,
including but not limited to, the Real Estate Settlement Procedures Act,
Truth-in-Lending Act, Fair Credit Reporting Act, Equal Credit Opportunity Act,
usury laws, or any other regulation, ordinance, order, or decree, or any other
requirement of any governmental body or court, which would materially and
adversely affect the ability of Purchaser to execute, deliver, and perform
the
terms of this Agreement.
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9. CONDITIONS
PRECEDENT TO OBLIGATIONS OF PURCHASER.
The
obligations of Purchaser under this Agreement are subject to Purchaser’s
satisfaction as to each of the following conditions (unless waived in writing
by
Purchaser):
9.1 Correctness
of Representations and Warranties.
The
representations and warranties made by Seller in this Agreement shall be true
and correct in all material respects on the Sale and Transfer Date. All such
representations and warranties are continuing and shall survive closing and
funding pursuant to this Agreement.
9.2 Compliance
with Conditions.
All of
the terms, covenants and conditions of this Agreement required to be complied
with and performed by Seller at or prior to the Sale and Transfer Date shall
have been duly complied with and performed to the reasonable satisfaction of
Purchaser.
9.3 Opinion
of Counsel for Seller.
Seller
shall cause to be delivered to Purchaser, prior to the Sale and Transfer Date,
opinion from counsel to Seller, in form and substance reasonably satisfactory
to
counsel to Purchaser, to the effect that: (i) Seller has been duly organized
and
is validly existing in the jurisdiction of its organization; (ii) Seller has
full corporate power and authority under its organizational documents to enter
into and deliver the Closing Documents and to perform the obligations required
of it thereunder, in particular, the power and authority to transfer all right,
title, and interest in the Transferred Assets and the Accounts Receivable,
(iii)
the Closing Documents have been duly authorized, executed and delivered by
Seller and do not and will not conflict with any of the terms of Seller’s
organizational documents or any other corporate governing instruments and will
not conflict with any material agreement, indenture, or other instruments which
are binding on Seller, (iv) other than Foreclosure actions in which Seller
is
the plaintiff, there is no litigation, proceeding, or governmental investigation
existing, pending, or threatened, or any order, injunction, or decree
outstanding, against or relating to Seller, which is expected to have a material
adverse effect upon (a) the rights being transferred to Purchaser hereunder
after the Sale and Transfer Date, or (b) the obligations of Seller under the
Closing Documents which has not been disclosed by Seller to Purchaser or its
counsel in writing, (v) the Closing Documents constitute a legal, valid and
binding obligation of Seller, subject to applicable insolvency, bankruptcy
reorganization, moratorium or similar laws and principles of
equity.
9.4 Corporate
Resolution.
Purchaser shall have received a duly executed Secretary’s Certificate certifying
that (i) the Board of Directors of Seller has specifically approved the sale
of
Servicing pursuant to this Agreement, (ii) such approval is reflected in the
minutes of the meetings of Seller’s Board of Directors and (iii) Seller’s Board
of Directors has authorized certain officers (as listed in an incumbency
certificate to be provided to Purchaser) to execute this Agreement and all
other
documents necessary to consummate the transactions contemplated herein. A copy
of such Board resolution shall be attached to the Secretary’s Certificate. In
addition, Seller shall have provided to Purchasers the special purpose
resolution required under subparagraph 5(d) of the Agreement.
10. CONDITIONS
PRECEDENT TO OBLIGATIONS OF SELLER.
The
obligations of Seller under this Agreement are subject, at Seller’s option, to
the satisfaction, at or prior to the Sale and Transfer Date, of each of the
following conditions:
10.1 Correctness
of Representations and Warranties.
The
representations and warranties made by Purchaser in this Agreement are true
and
correct in all material respects and shall continue to be true and correct
in
all material respects on the Sale and Transfer Date.
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10.2 Compliance
with Conditions.
All of
the terms, conditions, and covenants of this Agreement required to be complied
with and performed by Purchaser at or prior to the Sale and Transfer Date shall
have been duly complied with and performed.
10.3 Opinion
of Counsel for Purchaser.
Seller
shall have received an opinion from counsel to Purchaser in connection with
this
transaction, prior to or on the Sale and Transfer Date, in form and substance
reasonably satisfactory to counsel to Seller, to the effect that: (i) Purchaser
is a federal savings bank under the laws of the United States and its status
is
active, (ii) Purchaser has full corporate power and authority under its
organizational documents to enter into and deliver this Agreement and to perform
the obligations required of it hereunder, (iii) the execution, delivery, and
performance of this Agreement by Purchaser has been duly authorized and does
not
and will not conflict with any of the terms of Purchaser’s organizational
documents, and (iv) this Agreement constitutes legal, valid, and binding
obligations of Purchaser enforceable under applicable law, provided however,
such statement shall not be construed as an opinion as to the enforceability
of
any specific provision of this Agreement.
11. SCHEDULE
OF SERVICING.
Within
two (2) Business Days following the Sale Date, Seller shall deliver to Purchaser
via email to xxxxxxx.xxxxx@xxxxxxxxxxxxxxxx.xxx an electronic schedule of the
Mortgage Loans in Excel format reflecting the information as of the close of
business on the Sale Date. The schedule shall contain the following information
with respect to each Mortgage Loan: (i) Investor name, (ii) loan number, (iii)
the Mortgagor’s name, (iv) address of mortgaged property, (v) unpaid principal
balance, (vi) the interest rate provided in the Mortgage Note, (vii) next date
on which the mortgage payment is due, (viii) type of loan, (ix) amount held
in
escrow for the account of the Mortgagor, (x) monthly principal and interest
installment, (xi) monthly escrow installment, (xii) Accounts Receivable, (xiii)
net Servicing fee, (xiv) Bankruptcy code, as applicable, and (xv) Foreclosure
code, as applicable.
12. INDEMNIFICATION
OF PURCHASER AND SELLER.
12.1 Indemnification
of Purchaser.
Without
regard to any knowledge qualifier, Seller shall indemnify and hold Purchaser
harmless from, and will reimburse Purchaser for any and all liabilities, losses,
damages, deficiencies, claims, penalties, fines, costs or expenses, including
without limitation reasonable attorneys’ fees and court costs in preparation for
or at trial, on appeal or in bankruptcy (“Seller’s Indemnified Matters”)
incurred by Purchaser after the Sale and Transfer Date to the extent that
Seller’s Indemnified Matters result from:
(a) any
written misrepresentations made by Seller in this Agreement or in any schedule,
statement, Appendix, or certificate furnished pursuant to this Agreement, the
Offering Information, the Offering Memorandum or in connection with any of
the
foregoing;
(b) any
breach of a representation or warranty by Seller, or the non-fulfillment of
any
covenant of Seller contained in this Agreement or in any schedule, statement,
Appendix, or certificate furnished pursuant hereto;
(c) any
defect in any Mortgage Loan existing as of the Sale and Transfer Date (including
those defects subsequently discovered by Purchaser) which adversely affects
the
Mortgage Loans, the value of the Servicing, or which is required to be cured
pursuant to Investor Guidelines;
(d) acts
or
omissions of Seller, any originator of Third Party Originated Loans or any
prior
servicer with respect to issuer, originator, or lender responsibilities pursuant
to Investor Guidelines, or Applicable Requirements, or acts or omissions by
any
of the foregoing relating to the Servicing prior to the Sale and Transfer Date,
including, but not limited to, compliance with all applicable
Investor
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Guidelines,
incomplete or erroneous loan documentation, fraud at origination by any party,
unapproved assumptions, data base errors and omissions, inaccurate Tax
Identification Numbers on the Mortgagors of the Mortgage Loans, improper escrow
disbursements, unrecoverable Accounts Receivable, misquoted payoffs, misapplied
payments, failure to file timely notice of default or failure to pay or to
provide evidence of payment of taxes, insurance or other charges, including
penalties and interest, or hazard insurance claims not covered by
insurance;
(e) the
failure or inability of Seller to produce the payment history on any Mortgage
Loan from the date of origination thereof;
(f) any
Recourse Obligation; or
(g) any
litigation, including without limitation, class action lawsuits due to acts
or
omissions prior to the Sale and Transfer Date.
Purchaser
agrees to promptly notify Seller in writing of the existence of any fact known
to Purchaser giving rise to any obligations of Seller under this Paragraph
12
and, in the case of any claim or any litigation brought by a third party which
may give rise to any such obligations, Purchaser agrees to promptly notify
Seller of the making of such claim or the commencement of such action by a
third
party as and when the same become known to Purchaser. Purchaser shall have
the
right to settle any claim for $5,000 or less; provided that each such settlement
shall be made in good faith and provided further that the aggregate amount
of
claims so settled in accordance with this sentence without Seller’s consent
shall not exceed $25,000. Seller shall be entitled to participate in the defense
of any action brought by a third party against Purchaser which may give rise
to
an obligation of Seller and, at its election, to direct the defense thereof
at
its own expense if the claim exceeds $5,000.
All
indemnifications, representations, and warranties under this Agreement shall
survive termination and/or consummation of this Agreement and may be assigned
by
Purchaser to any subsequent purchaser of the Servicing.
12.2 Repurchase
of Mortgage Loans and Servicing.
In the
event Purchaser discovers that any of the representations and warranties made
in
this Agreement by Seller were not accurate in any material respect at the time
they were made by Seller, or if there exists a basis to demand indemnification
under subparagraph 12.1 hereof and subject to the cure provision in subparagraph
5(f) herein, in addition to any other rights and remedies it may have hereunder,
at law or in equity, Purchaser, subject to any limitations of the Investors,
may
demand that Seller repurchase from Purchaser either (i) the Servicing as to
those Mortgage Loans which are affected by the inaccurate representation and
warranty, or (ii) in the event the Investor demands the repurchase of the
Mortgage Loan, such Mortgage Loan or the related mortgaged property. The
repurchase price under this subparagraph for any repurchased Servicing shall
equal the sum of (w) purchase percentage paid in accordance with subparagraph
3.1 herein times the unpaid principal balance at the time of repurchase, (x)
if
the repurchase includes the Mortgage Loan, the aggregate unpaid principal
balance at the time of repurchase of the Mortgage Loan and all accrued and
unpaid interest thereon at the time of repurchase by Seller, (y) all sums paid
by Purchaser as to such Mortgage Loan for the related Accounts Receivables
to
the extent Purchaser has not been reimbursed for such Accounts Receivables
by
the respective Mortgagors or otherwise, and (z) all other reasonable and
customary unreimbursed out-of-pocket costs, expenses and advances incurred
by
Purchaser in connection with such Mortgage Loan after the Sale and Transfer
Date. After the Seller has the opportunity to cure such defect or deficiency
in
accordance with subparagraph 5(f) herein and such defect or deficiency cannot
be
cured and Seller is required to either purchase a Mortgage Loan or repurchase
Servicing related to a Mortgage Loan from Purchaser, such purchase or repurchase
shall be accomplished within fifteen (15) Business Days following receipt from
Purchaser of written demand pursuant hereto. If Seller fails for any reason
to
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purchase
or repurchase within the time period required under this Agreement, an
additional penalty of $1,000.00 will be assessed for each additional fifteen
(15) day period until such purchase or repurchase payment is received by
Purchaser. Upon completion of such purchase or repurchase by Seller, Purchaser
shall forward to Seller all servicing records and all documents relating to
such
repurchased Servicing or purchased Mortgage Loan.
12.3 Indemnification
of Seller.
Purchaser shall indemnify and hold Seller harmless from and will reimburse
Seller for any losses, damages, deficiencies, claims, penalties, fines, costs
or
expenses, including reasonable attorney’s fees and court costs at trial or on
appeal (“Purchaser’s Indemnified Matters”), incurred by Seller after the Sale
and Transfer Date to the extent that Purchaser’s Indemnified Matters result
from:
(a) Any
written misrepresentation made by Purchaser in this Agreement or in any
schedule, statement, Appendix, or certificate furnished pursuant to this
Agreement or in connection with any of the foregoing;
(b) Any
breach of representation or warranty by Purchaser, or the non-fulfillment of
any
covenant of Purchaser contained in this Agreement or in any schedule, statement,
Appendix, or certificate furnished pursuant hereto;
(c) Acts
or
omissions of Purchaser relating to the Servicing subsequent to the Sale and
Transfer Date; or
(d) Any
litigation, including, without limitation, class action lawsuits affecting
the
Servicing of the Mortgage Loans due to acts or omissions of
Purchaser.
13. MISCELLANEOUS.
13.1 Notification
of Transfer.
In
accordance with Investor Guidelines and state laws, Seller shall transmit to
the
Mortgagors of the Mortgage Loans, the requisite taxing authorities, insurance
companies and/or agents, Insurers and the banks at which escrow deposits are
maintained, notification of the assignment of the Transferred Assets and
instructions to deliver all payments, notices, tax bills, insurance statements,
and escrow account statements, as the case may be, to Purchaser from and after
such date. Seller shall use a mutually agreeable form of letter to the
Mortgagors and Seller shall deliver the completed form of the letter to
Purchaser ten (10) Business Days prior to mailing. Purchaser shall, using
reasonable discretion, approve or disapprove the completed letter within three
(3) Business Days after receipt.
13.2 Supplementary
Information.
Subsequent to the Sale and Transfer Date, Seller shall furnish Purchaser such
information supplementary to the information contained in the documents and
schedules delivered pursuant hereto as Purchaser may reasonably request. Seller
will timely issue all appropriate IRS tax forms or reports on all Mortgage
Loans
reflecting Seller’s servicing activities during the time these loans were
serviced or sub-serviced by Seller. In addition, Seller shall be responsible
for
any reporting on the Mortgage Loans required under the Home Mortgage Disclosure
Act (HMDA) for periods prior to the Sale and Transfer Date.
13.3 Further
Assurances.
Seller
and Purchaser will each, at the request of the other, execute and deliver to
each other all such other instruments that either may reasonably request in
order to perfect the conveyance, transfer, assignment, and delivery to Purchaser
of the rights to be conveyed, transferred, assigned, and delivered
hereunder.
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13.4 Access
to Information.
Seller
shall provide Purchaser and its counsel, accountants, and other representatives,
reasonable access during normal business hours throughout the period prior
to
the Sale and Transfer Date to all of Seller’s files, books, and records relating
to the Servicing rights being conveyed, transferred, assigned, and delivered
to
Purchaser pursuant hereto. If the transactions contemplated by this Agreement
are not consummated, Purchaser and its representatives and affiliates shall
treat all information obtained in such investigation, not otherwise in the
public domain, as confidential and Purchaser shall return, or at Seller’s
option, destroy, all documents and information obtained from Seller in
conjunction with the proposed transaction. Purchaser shall provide Seller and
its counsel, accountants, and other representatives, reasonable access during
normal business hours to all of Purchaser’s files, books, and records relating
to the collection of Accounts Receivable and in connection with all matters
pertaining to any claim of Purchaser for indemnification by Seller.
13.5 Broker’s
Fees.
Seller
represents and warrants to Purchaser that, except for Broker, there are no
brokers, finders or originators due a fee in this transaction. Seller agrees
to
pay any brokerage fees due Broker, and hereby indemnifies and agrees to defend
and hold Purchaser harmless from and against any claim, demand, liability,
loss
or damage arising from any claim made (including reasonable attorneys’ fees and
court costs at trial or on appeal) by Broker and any other broker, finder,
or
originator arising out of Seller’s actions. Purchaser hereby agrees to indemnify
and hold Seller harmless from and against any loss or damage arising from any
claim made (including reasonable attorneys’ fees and court costs) by Broker and
any other broker, finder, or originator who asserts a claim based upon an
engagement by Purchaser.
13.6 Survival
of Covenants, Agreements, Representations and
Warranties.
Each
party hereto covenants and agrees that its covenants, agreements,
representations and warranties in this Agreement and in any document delivered
or to be delivered pursuant hereto, shall survive the consummation of this
Agreement. Each Appendix attached to this Agreement shall be executed by the
parties hereto simultaneously with the execution of this Agreement and shall
survive the Consummation of this Agreement.
13.7 Form
of Payment to be Made.
All
payments to be made hereunder shall be made by wire transfer in immediately
available federal funds, unless otherwise directed in writing by the
recipient.
13.8 Notices.
All
notices, requests, demands, and other communications which are required or
permitted to be given under this Agreement shall be in writing and shall be
given to the party at its address or facsimile number set forth below. Each
notice shall be deemed to have been duly given and received: (a) as of the
date
and time the same are personally delivered with a receipted copy, (b) if given
by facsimile, when the facsimile is transmitted to the party’s facsimile number
specified below and confirmation of complete receipt is received by that
transmitting party during normal business hours or the next Business Day if
not
confirmed during normal business hours; (c) if delivered by U. S. Mail, within
three (3) days after depositing with the United States Postal Service, postage
prepaid by certified mail, return receipt requested, or (d) if given by a
nationally recognized or reputable overnight delivery service within one (1)
day
after deposit with such delivery service.
(a) If
to
Purchaser,
to:
Xx.
Xxxxxxx Xxxxx
Senior
Vice President
EverBank
0000
Xxxxxxx Xxx
Xxxxxxxxxxxx,
XX 00000
Facsimile
No. (000) 000-0000
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With a copy to:
Xx.
Xxx
Xxxxx
Senior
Vice President
EverBank
0000
Xxxxxxx Xxx
Xxxxxxxxxxxx,
XX 00000
Facsimile
No. (000) 000-0000
(b) If
to
Seller,
to:
Xx.
Xxxx
Xxxxxx
Chief
Financial Officer
HomeFederal
Bank
0000
Xxxxxx Xxxxx
Xxxxxxxx,
Xxxxxxx 00000
Facsimile
No. (000) 000-0000
With a copy to:
Xx.
Xxxx
Xxxxxxxxxx
Senior
Vice President
HomeFederal
Bank
0000
Xxxxxx Xxxxx
Xxxxxxxx,
Xxxxxxx 00000
Facsimile
No. (000) 000-0000
or
to
such other address or facsimile number as Purchaser or Seller shall have
specified in writing to the other.
13.9 Waivers.
Either
Purchaser or Seller may, by written notice to the other:
(a) Extend
the time for the performance of any of the obligations or other transactions
of
the other;
(b) Waive
compliance with any of the terms, conditions or covenants required to be
complied with by the other hereunder; and
(c) Waive
or
modify performance of any of the obligations of the other
hereunder.
The
waiver of any party hereto or a breach of any provisions of this Agreement
shall
not operate or be construed as a waiver of any other or subsequent
breach.
13.10 Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof and supersedes all other agreements between the
parties.
13.11 Binding
Effect.
This
Agreement shall inure to the benefit of and bind the parties hereto and their
successors and assigns. Nothing in this Agreement, express or implied, is
intended to confer on any person other than the parties hereto and their
successors and assigns, any rights, obligations, remedies or liabilities.
Nothing contained herein shall prevent Purchaser from selling the Servicing
to a
third party subsequent to the Sale and Transfer Date.
13.12 Headings.
Headings of the paragraphs in this Agreement are for reference purposes only
and
shall not be deemed to have any substantive effect.
13.13 Applicable
Laws.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida.
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13.14 Transfer
Instructions.
Seller
agrees to abide by all the terms and conditions of Purchaser’s Transfer
Instructions attached on Appendix IV and made a part hereof. If Purchaser finds
that Seller has not followed the Transfer Instructions after the Servicing
has
been transferred to Purchaser, Seller agrees to reimburse Purchaser for any
and
all reasonable costs incurred by Purchaser to comply with the Transfer
Instructions.
13.15 Severability.
If any
provision of this Agreement or the application thereof to any person or
circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected thereby but
rather shall be enforced to the greatest extent permitted by law.
13.16 Written
Agreement.
This
Agreement, the Appendices attached hereto and applicable Investor Guidelines
constitute the “written agreement” governing Seller’s sale of Servicing to
Purchaser and Seller shall continuously maintain all components of such “written
agreement” as an official record of Seller. If any of the Appendices are on
magnetic media format, Seller agrees that either the magnetic media version
or a
physical, printed version that may be hereafter produced constitute a part
of
the “written agreement”, which Seller shall continuously maintain as provided
above.
13.17 Default
by Seller.
Any
breach or default by Seller under this Agreement shall entitle Purchaser to
recover from Seller any sums due hereunder, including damages, and to pursue
any
rights and remedies it may have at law or in equity under the laws of the State
of Florida.
13.18 Default
by Purchaser.
Any
breach or default by Purchaser under this Agreement shall entitle Seller to
recover from Purchaser any sums due hereunder, including damages, and to pursue
any rights and remedies it may have at law or in equity under the laws of the
State of Florida.
13.19 Dispute
Resolution.
Each
party covenants and agrees that any dispute, controversy or claim arising out
of
or relating to this Agreement, or the breach thereof, will be resolved by
binding arbitration in accordance with the then current Commercial Arbitration
Rules of the American Arbitration Association (“AAA”).
In
the
event of any dispute or claim of any kind or nature, the prevailing party in
such dispute shall be entitled to recover from the nonprevailing party all
fees
and costs associated with any arbitration, together with all of its reasonable
costs, fees, and expenses, including, but not limited to, witness fees, expert
fees, consultant fees, attorney (in-house and outside counsel), paralegal and
legal assistant fees, costs, and expenses and other professional fees, costs,
and expenses whether suit be brought or not, and whether at trial or on appeal,
arising from or relating to:
(a) Any
arbitration proceedings, in which event the arbitrators shall have the power
to
enter such an award; and/or
(b) Any
court, or other judicial or administrative proceedings (including, without
limitation, proceedings in bankruptcy, proceedings to enforce this subparagraph
13.19,
and
proceedings in the nature of an appeal), in which event the court or governing
body having jurisdiction thereover shall have the power to enter such an
award.
Arbitration
pursuant to this subparagraph
13.19
may be
initiated by either party to this Agreement by making a written demand for
arbitration and giving written notice to the other party of such demand for
arbitration, which written notice shall specify the provisions of this Agreement
alleged to be in dispute or in breach. The dispute shall be submitted to three
arbitrators chosen from a list provided by the AAA, one arbitrator being
selected by Seller, one arbitrator being selected by Purchaser, and within
ten
(10)
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23
-
days
after the selection of the second arbitrator, the two selected arbitrators
shall
select a third arbitrator. No individual who is, or has at any time been, an
officer, employee, representative, attorney or consultant of Seller or Purchaser
or any affiliate of either may serve as an arbitrator without the express
written consent of Seller and Purchaser. All arbitration hearings and
proceedings shall be held in Atlanta, Georgia. Each of the parties shall submit
to discovery and produce documents reasonably required by the arbitrators during
arbitration and in accordance with the then current Commercial Arbitration
Rules
of the AAA. Judgment of the arbitrators shall be final and binding, and may
be
enforced in any court having jurisdiction. During the pendency of any
arbitration proceeding, either party may retain any payments that may relate
to
the matter in dispute provided that such amounts do not exceed the amount
subject to dispute.
13.20 Wire
Instructions. The
parties wire transfer instructions are as follows:
If
to
Seller:
Bank:
Home XX Xxxxxxx IN
Name
of
Account: Home Federal
ABA
No.:
Account
No.:
Attn:
Xxxx Xxxxxx/Xxxx Xxxxxxxxxx
(Sender’s
name must be referenced on wire.)
If
to
Purchaser:
Bank:
EverBank
Name
of
Account: EverBank GOA
ABA
No.:
Account
No.:
(Sender’s
name and purpose of wire must be referenced on wire.)
13.21 Counterparts
Execution.
This
Agreement may be executed in counterparts, each of which will constitute an
original, but all of which taken together will constitute one and the same
agreement. A facsimile signature shall be deemed an original for purposes of
execution and delivery of this Agreement in the absence of the original ink
signature of a party.
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24
-
IN
WITNESS WHEREOF,
each of
the parties to this Agreement has caused this Agreement to be duly executed
in
its corporate name by one of its duly authorized officers, all as of the date
first above written.
Witnesses:
EVERBANK
/s/
Xxxxxx Xxxxxxxx
By: /s/
Xxxxxxx X. Xxxxx
Its: Senior Vice President
/s/
Xxxx Xxxxxxxx
(CORPORATE
SEAL)
HOMEFEDERAL BANK
/s/
Xxxx X. Xxxxxxxx
By: /s/
Xxxx X. Xxxxxx
Its: Executive Vice President and CFO
/s/
Xxxxx X. Xxxxxx
(CORPORATE
SEAL)
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