EXHIBIT 10.6
PURCHASE AGREEMENT
PURCHASE AGREEMENT dated as of July 20, 2000 by and between
NEW CENTURY MORTGAGE CORPORATION (the "Seller"), a California corporation, and
U.S. BANK NATIONAL ASSOCIATION (the "Purchaser"), a national banking
association.
The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following respective meanings (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined):
"ADVERSE CLAIM": a lien, security interest, charge, encumbrance or
other right or claim of any Person claiming a superior or equal interest to that
of the Purchaser.
"BUSINESS DAY": any day other than Saturday, Sunday or public holiday
or equivalent for banks in Minneapolis, Minnesota.
"CLOSING DATE": with respect to the Purchased Receivables described in
any Purchase Request, the date specified therein for the purchase of such
Purchased Receivables.
"COLLECTIONS": with respect to any Receivable, all cash payments of
principal, interest, fees and other sums due under such Receivable and all other
cash collections, insurance proceeds and other cash proceeds of such Receivable,
including, without limitation, all cash proceeds of Related Assets.
"EFFECTIVE PERIOD": the period from July 20, 2000 through but excluding
the date either the Seller or the Purchaser notifies the other in writing that
it desires to terminate this Agreement.
"ELIGIBLE RECEIVABLE": a Receivable with respect to which all of the
representations and warranties set forth in Sections 4.01(g) - (p) are true and
correct as of the applicable closing date.
"EVENT OF INSOLVENCY": the Seller shall not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Seller seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial
part of its property.
"FORECLOSURE ADVANCE": a recoverable advance made by Seller for T&I
Payments or the costs of repair or enforcement in connection with the
foreclosure or other enforcement of a Mortgage Loan which is part of a pool of
Mortgage Loans backing a mortgage-backed security being serviced by the Seller
under a Servicing Contract.
"FORECLOSURE ADVANCE RECEIVABLE": on a date of determination, a
valid, readily enforceable claim of the Seller to retain amounts received or
to be received from an obligor, or out of the foreclosure proceeds, under a
Mortgage Loan serviced by the Seller to reimburse the Seller for a
Foreclosure Advance.
"MORTGAGE": a mortgage or deed of trust on real property which has been
improved by a completed single family (i.e., one to four family units) dwelling
unit (i.e., a detached house, townhouse or condominium).
"MORTGAGE LOAN": a Mortgage Note and the related Mortgage.
"MORTGAGE NOTE": a promissory note which has a term not exceeding 30
years evidencing a loan or advance which is secured by a Mortgage.
"OBLIGATIONS": any and all indebtedness, obligations and liabilities of
the Seller to the Purchaser (whether now existing or hereafter arising,
voluntary or involuntary, whether or not jointly owed with others, direct or
indirect, absolute or contingent, liquidated or unliquidated, and whether or not
from time to time decreased or extinguished and later increased, created or
incurred) arising out of or related to the Purchase Documents.
"OBLIGOR": with respect to a Receivable, the Person obligated on such
Receivable.
"OUTSTANDING BALANCE": with respect to any Receivable, the unpaid
principal balance thereof.
"PERSON": any natural person, corporation, partnership, joint venture,
firm, association, trust, unincorporated organization, government or
governmental agency or political subdivision or any other entity, whether acting
in an individual, fiduciary or other capacity.
"POOL P&I PAYMENT": a recoverable payment of delinquent principal or
interest on a Mortgage Loan (other than a Mortgage Loan which is in bankruptcy
or in the process of foreclosure) which is part of a pool of Mortgage Loans
backing a mortgage-backed security and which payment the Seller is obligated to
fund under a Servicing Contract.
"POOL P&I PAYMENT RECEIVABLE": on a date of determination, a valid,
readily enforceable claim of the Seller to retain amounts received or to be
received from an obligor
under a Mortgage Loan serviced by the Seller that is currently due from such
obligor to reimburse the Seller for a Pool P&I Payment.
"PURCHASE DOCUMENTS": this Agreement and each other document,
instrument or agreement executed by the Seller in connection with the transfer
or servicing of the Receivables hereunder, as any of the same may be amended,
restated, renewed or replaced from time to time.
"PURCHASE PRICE": as such term is defined in Section 2.02 hereof.
"PURCHASE REQUEST": the request in the form of Exhibit A hereto.
"PURCHASED RECEIVABLES": Receivables purchased by the Purchaser, and
not repurchased by the Seller, thereunder.
"RECEIVABLE": a Pool P&I Payment Receivable, a T&I Payment
Receivable or a Foreclosure Advance Receivable.
"RELATED ASSETS": with respect to any Receivable, the following:
(a) any agreement, document or instrument evidencing
or securing such Receivable, pursuant to which such Receivable arose,
by which such Receivable is governed, or relating to such Receivable.
(b) all guaranties related to such Receivable;
(c) all personal property, contract rights, accounts,
general intangibles, or other proceeds, amounts or payments relating to
such Receivable;
(d) all right, title and interest of the Seller in
and to all Mortgage Loans in connection with which such Receivable
arose, and all Mortgage Notes, Mortgages, title opinions or title
insurance policies, escrow accounts, documents, instruments, files,
surveys, certificates, correspondence, appraisals, computer programs,
tapes, discs, cards, accounting records (including all information,
records, tapes, data, programs, discs and cards necessary or helpful in
the administration or servicing of such Mortgage Loans) and other
information and data of the Seller relating to such Mortgage Loans; and
(e) all additions to, modifications of, replacements
for, payments in respect of, and proceeds of the foregoing.
"SERVICER": as such term is defined in Section 8.01 hereof.
"SERVICING CONTRACT": a contract or agreement purchased by the Seller
or entered into by the Seller for its own account (and not as nominee or
subservicer), whether now existing or hereafter purchased or entered into,
pursuant to which the Seller services Mortgage Loans or Mortgage Loan pools for
others.
"SUBORDINATED LOAN AGREEMENT": the Subordinated Loan Agreement dated as
of April 30, 2000 between the Seller and the Purchaser, as the same may be
amended, supplemented, restated or otherwise modified.
"T&I PAYMENT": a recoverable payment of real estate taxes or insurance
premiums in respect of a Mortgage Loan (other than a Mortgage Loan that is in
bankruptcy or in the process of foreclosure) which is serviced by the Seller and
which the Seller is obligated to fund under a Servicing Contract.
"T&I PAYMENT RECEIVABLE": on any date of determination, a valid,
readily enforceable claim against any obligor on any Mortgage Loan (other than a
Mortgage Loan that is in bankruptcy or in the process of foreclosure) and the
accounts of such obligor for repayment of any T&I Payment made by the Seller
that is currently due from such obligor to reimburse the Seller for a T&I
Payment.
"TERMINATION EVENT": an "Event of Default" shall occur under the
Subordinated Loan Agreement; or an Event of Insolvency shall occur.
"WAREHOUSING AGREEMENT": The Fourth Amended and Restated Credit
Agreement dated as of May 26, 1999 by and among the Borrower, the Lenders party
thereto and the Agent, as the same has been and may hereafter be amended,
supplemented, restated or otherwise modified.
Section 1.02 ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles.
Section 1.03 COMPUTATION OF TIME PERIODS. Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word "from" means "from and including" and the words
"to" and "until" mean "to but excluding".
ARTICLE II
TERMS OF PURCHASE
Section 2.01 THE PURCHASES. From time to time during the Effective
Period, the Seller may request that the Purchaser purchase from the Seller
Eligible Receivables, together with the Related Assets with respect thereto, by
delivery to the Purchaser of a properly completed Purchase Request. The
Purchaser shall advise the Seller within five Business Days whether it wishes in
its sole discretion to buy all of such Eligible Receivables, together with the
Related Assets, on the terms set forth in such Purchase Request. This Agreement
and the Purchase Requests shall evidence the terms and understanding of the
parties with respect to any such purchase of Eligible Receivables, together with
the Related Assets. All income, gains, profits, and losses with respect to each
Eligible Receivable purchased hereunder shall be the property of the Purchaser.
Section 2.02 PURCHASE PRICE. The purchase price (the "Purchase Price")
for each pool of Eligible Receivables, together with the Related Assets,
purchased hereunder shall be equal to a percentage of the Outstanding Balance
thereof or a fixed dollar amount, as set forth in the related Purchase Request.
Section 2.03 PAYMENT OF THE PURCHASE PRICE. On the applicable Closing
Date, the Purchaser will pay the Seller the Purchase Price for the pool of
Eligible Receivables purchased hereunder on such date by deposit in lawful money
of the United States of America in same day funds to Seller's account number
1731-0097-1378 maintained with U.S. Bank National Association.
Section 2.04 PURCHASE FEE. If the Purchaser agrees, in its sole
discretion, to purchase any Receivables hereunder, the Seller shall pay to the
Purchaser a fee (the "Purchase Fee") in the amount of $100,000. The first half
of the Purchase Fee shall be payable on the date of, and out of the Purchase
Price otherwise payable to the Seller for, the initial purchase of Receivables
hereunder. The second half of the Purchase Fee shall be payable on the date of,
and out of the Purchase Price otherwise payable to the Seller for, the second
purchase of Receivables hereunder. The Purchase Fee shall be fully earned when
paid, and the Seller shall have no right to any refund of any portion of the
Purchase Fee once it has been paid.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01 CONDITIONS TO PURCHASE. The Purchaser shall not be
obligated to purchase any Receivable hereunder until each of the following
conditions shall have been satisfied:
(a) the Purchaser shall have received a copy of the
resolutions of the Board of Directors of the Seller approving this
Agreement and the other documents to be delivered by it hereunder and
the transactions contemplated hereby;
(b) the Purchaser shall have received a certificate
of the Secretary or an Assistant Secretary of the Seller certifying the
names and true signatures of the officers authorized on its behalf to
sign this Agreement and the other documents to be delivered by it
hereunder;
(c) the Purchaser shall have received UCC-1 financing
statements, executed by the Seller, naming the Seller as assignor of
the Purchased Receivable and Related Assets and the Purchaser as the
transferee and assignee thereof and such other similar instruments and
documents as in the opinion of the Purchaser may be necessary or
desirable under applicable law to perfect the Purchaser's interest in
all the Purchased Receivables and Related Assets;
(d) the representations and warranties contained in
Section 4.01 hereof shall be true and correct as of such Closing Date;
(e) no Termination Event shall have occurred;
(f) the Purchaser shall have received a favorable
written opinion of Xxxxxxxx Xxxxxxxxxxx, counsel to the Seller, as to
the matters and to the effect set forth in Sections 4.01(a), (b), (c),
(d), (e) and (f) hereof, subject to such qualifications, exceptions and
assumptions as are acceptable to the Purchaser; and
(g) the Purchaser shall have received such additional
agreements, documents and instruments as it may request, in its sole
discretion, from the Seller.
Section 3.02 WAIVER OF CONDITIONS. The Purchaser may waive any of the
conditions set forth in Section 3.01 hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants as follows:
(a) the Seller is a California corporation duly
incorporated, validly existing and in good standing under the laws of
the State of California and is duly qualified to do business and is in
good standing in every jurisdiction where the failure to preserve and
maintain such existence, rights, franchises, privileges and
qualification would materially adversely affect the interests of the
Purchaser hereunder or in the Purchased Receivables and Related Assets
or the ability of the Seller to perform its obligations hereunder;
(b) the execution, delivery and performance by the
Seller of this Agreement and all other instruments and documents to be
delivered by it hereunder, and the transactions contemplated hereby and
thereby are within the Seller's corporate powers, and have been duly
authorized by all necessary corporate action (including any necessary
shareholder action) which authorization is reflected in the official
records of the Seller;
(c) no authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by the Seller of this Agreement or any other document or
instrument to be delivered hereunder;
(d) this Agreement constitutes the legal, valid and
binding obligation of the Seller enforceable against the Seller in
accordance with its terms;
(e) except as disclosed by the Seller in writing to
the Purchaser, there are no actions, suits or proceedings pending, or
to the knowledge of the Seller threatened,
against or affecting the Seller or any of its subsidiaries, or the
property of the Seller or of any of its subsidiaries, in any court, or
before any arbitrator of any kind, or before or by any governmental
body, which, if adversely determined, would materially adversely affect
the ability of the Seller to perform its obligations under this
Agreement; the Seller is not in default with respect to any order of
any court, arbitrator or governmental body except for defaults with
respect to orders of governmental agencies which do not materially
adversely affect the ability of the Seller to perform its obligations
under this Agreement;
(f) The execution, delivery and performance by the
Seller of each Purchase Document and the carrying out of the
transactions contemplated thereby does not and will not (i) violate any
provision of law applicable to it, its articles or articles of
incorporation or bylaws or any order, judgment or decree of any court
or other agency of government binding on it, (ii) conflict with, result
in a breach of or constitute (with due notice or lapse of time or both)
a default under any of its contractual obligations, (iii) result in or
require the creation or imposition of any Adverse Claim of any nature
whatsoever upon any of its properties or assets or (iv) require any
approval of shareholders or any approval or consent of any Person under
any of its contractual obligations other than approvals or consents
which have been obtained.
(g) each Receivable offered for sale to the Purchaser
hereunder constitutes an Eligible Receivable on the Closing Date
applicable thereto, is owned by the Seller free and clear of any
Adverse Claim, and upon payment of the purchase thereof by the
Purchaser, the Purchaser shall acquire a valid ownership interest in
such Receivable and Related Assets free and clear of any Adverse Claim;
(h) no information furnished by the Seller to the
Purchaser with respect to any Purchased Receivable is inaccurate in any
material respect as of the date furnished to the Purchaser;
(i) on each Closing Date, the representations and
warranties set forth in the Warehousing Agreement, the "Loan Documents"
(as defined therein) and the Subordinated Loan Agreement are all true
and correct as if made on such Closing Date;
(j) the Purchased Receivables and contracts included
in the Related Assets are legal, valid and binding obligations of the
applicable Obligor, enforceable in accordance with their terms, except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(k) the terms of the Purchased Receivables have not
been waived, modified, altered, satisfied, impaired, cancelled,
subordinated or rescinded; no instrument of subordination, waiver,
alteration or modification has been executed, and the related Obligor
has not been released, in whole or in part, except in connection with a
written assumption agreement approved in writing by and delivered to
the Purchaser;
(l) the representations and warranties made by the
Seller and the related Obligor in each contract included in the Related
Assets are true and correct in all material respects;
(m) no event has occurred that would, with the
passage of time or with notice and the expiration of any grace or cure
period, constitute a default, breach, violation or event of
acceleration under any obligation of the Seller to the Obligor on any
Purchased Receivable have not waived any such default, breach,
violation or event of acceleration;
(n) the Seller is in possession of a complete set of
the agreements contained in the Related Assets, except for such
documents that have been delivered to the Purchaser;
(o) each Purchased Receivable is a valid, enforceable
right to retain payments on the related Mortgage Loan(s) or proceeds of
the foreclosure of the related Mortgages, senior to the right of any
other Person, and no condition exists as to any receivable that will
impair or materially delay payment thereof; and
(p) no consent of any Person is required for the
assignment of the Purchased Receivables to the Purchaser.
ARTICLE V
COVENANTS
The Seller hereby covenants and agrees that, so long as any Purchased
Receivable is outstanding or there remain any Obligations to be paid or
performed under this Agreement or under any other Purchase Document, the Seller
shall:
Section 5.01 PAYMENT OF OBLIGATION. Punctually pay or cause to be paid
all Obligations payable hereunder in accordance with the terms hereof.
Section 5.02 FINANCIAL STATEMENTS AND OTHER REPORTS. Deliver to the
Purchaser:
(a) All financial statements and other reports
required under the Subordinated Loan Agreement or the Warehousing
Agreement (whether or not the same remain in effect).
(b) Reports in respect of the Purchased Receivables,
Collections and Related Assets, in such detail and at such times as the
Purchaser in its discretion may reasonably request at any time or from
time to time.
(c) From time to time, with reasonable promptness,
such further information regarding the business, operations, properties
or financial condition of the Seller as the Purchaser may reasonably
request.
Section 5.03 MAINTENANCE OF EXISTENCE; CONDUCT OF BUSINESS. Preserve
and maintain its corporate existence in good standing and all of its rights,
privileges, licenses and franchises necessary or desirable in the normal
conduct of its business, including, without limitation, its eligibility as
lender, seller/servicer and issuer described in the Warehousing Agreement;
conduct its business in an orderly and efficient manner; maintain a net worth
of acceptable assets as required for maintaining the Seller's eligibility as
lender, seller/servicer and issuer described under the Warehousing Agreement;
and make no material change in the nature or character of its business.
Section 5.04 COMPLIANCE WITH APPLICABLE LAWS. Comply with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority, a breach of which could materially adversely affect
its business, operations, assets, or financial condition, except where
contested in good faith and by appropriate proceedings.
Section 5.05 INSPECTION, VISITATION, ETC. The Seller will permit and
will cause its subsidiaries to permit, any Person designated by the Purchaser
in writing, at the Purchaser's expense, to visit and inspect any of the
properties, corporate books and financial records of the Seller or such
subsidiaries and discuss its affairs and finances with the principal officers
of the Seller or such Subsidiaries and their independent public accountants,
all at such times as the Purchaser shall reasonably request.
Section 5.06 NOTICE. Give prompt Notice to the Purchaser of (a) any
action, suit or proceeding instituted by or against the Seller or any of its
Subsidiaries in any federal or state court or before any commission or other
regulatory body (federal, state or local, domestic or foreign) which action,
suit or proceeding has at issue in excess of Five Hundred Thousand Dollars
($500,000), or any such proceedings threatened against the Seller or any of
its Subsidiaries in a writing containing the details thereof, (b) the filing,
recording or assessment of any federal, state or local tax Lien against the
Seller, or any of its assets or any of its Subsidiaries, (c) the occurrence
of any Termination Event or event that could, with the passage of time, the
giving of notice or both, become a Termination Event, and (d) any other
action, event or condition of any nature which may lead to or result in a
material adverse effect upon the business, operations, assets, or financial
condition of the Seller and its Subsidiaries or which, with or without notice
or lapse of time or both, would constitute a default under any other
agreement, instrument or indenture to which the Seller or any of its
Subsidiaries is a party or to which the Seller or any of its Subsidiaries,
their properties or assets, may be subject.
Section 5.07 COVENANTS IN CREDIT AGREEMENTS. Perform all of the
covenants set forth in the Subordinated Loan Agreement and the Warehousing
Agreement (whether or not the same remain in effect).
Section 5.08 SPECIAL COVENANTS CONCERNING PURCHASED RECEIVABLES AND
RELATED ASSETS.
(a) Warrant and defend the right, title and interest
of the Purchaser in and to the Purchased Receivables, Collections and
Related Assets against the claims and demands of all Persons
whomsoever.
(b) Execute and deliver to the Purchaser such Uniform
Commercial Code financing statements with respect to the Purchased
Receivables, Collections and Related Assets as the Purchaser may
request. The Seller shall also execute and deliver to the Purchaser
such further instruments of sale, assignment or transfer, and such
powers of attorney, as required by the Purchaser, and shall do and
perform all matters and things necessary or desirable to be done or
observed, for the purpose of effectively creating, maintaining and
preserving the benefits intended to be afforded the Purchaser under
this Agreement.
(c) Maintain and, upon request, make available to the
Purchaser the originals, or copies in any case where the originals have
been delivered to the Purchaser, of its agreements included in the
Related Assets, all files, surveys, certificates, correspondence,
appraisals, computer programs, tapes, discs, cards, accounting records
and other information and data relating to the Purchased Receivables,
Collections and Related Assets.
(d) Not amend or modify, or waive any of the terms
and conditions of, or settle or compromise any claim in respect of, any
Purchased Receivable or document included in the Related Assets.
(e) Not make any compromise, adjustment or settlement
in respect of any Purchased Receivable, Collections or Related Assets
or accept other than cash in payment or liquidation of the Purchased
Receivables or Related Assets.
ARTICLE VI
SELLER'S REIMBURSEMENT AND INDEMNIFICATION OBLIGATIONS
Section 6.01 REIMBURSEMENT OF EXPENSES. The Seller shall: (a)
pay all out-of-pocket costs and expenses of the Purchaser, including, without
limitation, reasonable fees and service charges of Xxxxxx & Xxxxxxx LLP, counsel
to the Purchaser, in connection with the preparation, negotiation,
documentation, enforcement and administration of this Agreement and the other
Purchase Documents; (b) pay all out-of-pocket costs and expenses of the
Purchaser in connection with any amendment to, and all out-of-pocket expenses of
the Purchaser in connection with the administration of, this Agreement and the
other Purchase Documents; (c) pay all out-of-pocket expenses of the Purchaser in
connection with the enforcement of this Agreement, the other Purchase Documents
and the Purchased Receivables; and (d) indemnify, pay, and hold harmless the
Purchaser from and against any and all present and future stamp, documentary and
other similar taxes with respect to the foregoing matters and save the Purchaser
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission to pay such taxes.
Section 6.02 INDEMNITIES BY THE SELLER. Without limiting any
other rights which the Purchaser may have hereunder or under applicable law, the
Seller shall indemnify and hold harmless the Purchaser and any of its officers,
directors, employees, agents, successors or assigns (collectively called the
"Indemnitees") from and against any and all liabilities, obligations, losses,
damages, penalties, judgments, suits, costs, expenses and disbursements of any
kind or nature whatsoever (including without limitation, the reasonable fees and
disbursements of counsel of the Indemnitees (including allocated costs of
internal counsel) in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a party
thereto) which may be imposed upon, incurred by or asserted against such
Indemnitees in any manner relating to or arising out of this Agreement or any
other Purchase Document or any of the transactions contemplated hereby or
thereby (the "Indemnified Liabilities"); provided, however, that the Seller
shall have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities arising solely from (i) the gross negligence or willful misconduct
of such Indemnitee; (ii) except as otherwise specifically provided in this
Agreement, losses, costs and expenses relating to uncollectible Purchased
Receivables, or (iii) any income taxes incurred by an Indemnitee arising out of
or as a result of this Agreement and the other Purchase Documents. Without
limiting or being limited by the foregoing, the Seller shall pay on demand to
each Indemnified Party any and all amounts necessary to indemnify such
Indemnitee from and against any and all Indemnified Liabilities relating to or
resulting from:
(a) the transfer of any Receivable which on the
applicable Closing Date did not constitute an Eligible Receivable;
(b) reliance on any representation or warranty by the
Seller contained in this Agreement, which shall have been false or
incorrect in any material respect when made;
(c) the failure by the Seller at any time prior to,
on or, for as long as Seller remains the Servicer, after the applicable
Closing Date to comply with any applicable law, rule or regulation with
respect to any Purchased Receivable or the nonconformity of any
Purchased Receivable with any such applicable law, rule or regulation;
(d) the failure to vest in the Purchaser on the
applicable Closing Date an undivided ownership interest in any
Purchased Receivable or Related Asset, free and clear of any Adverse
Claim, or any action by the Seller which the Purchaser has requested in
writing that the Seller not take or any inaction which the Purchaser
has requested in writing that the Seller take and which action or
inaction either (i) divests the Purchaser of an undivided ownership
interest therein, or (ii) subjects any Purchased Receivable or Related
Asset with respect thereto to any Adverse Claim whether existing at
such Closing Date or at any subsequent time;
(e) the failure by the Seller to comply with any
covenant or agreement set forth in this Agreement or any other Purchase
Document;
(f) the failure to have recorded or filed, or any
delay in recording or filing of, financing statements or other similar
instruments or documents under the laws of any applicable jurisdiction
or other applicable laws with respect to any Purchased Receivables,
Collections and Related Assets;
(g) any investigation, litigation or proceeding
related to this Agreement or the ownership of any Purchased
Receivables, Collections and Related Assets other than an
investigation, litigation or proceeding resulting form the gross
negligence or willful misconduct of such Indemnitee;
(h) any investigation, litigation or proceeding
resulting from the claim of the Seller, any Obligor or any other Person
that the Purchaser, by virtue of its purchase of Purchased Receivables,
Collections and Related Assets or otherwise, has undertaken any
obligations of the Seller with respect to any agreements contained in
the Related Assets;
(i) any action or inaction on the part of the Seller
in servicing any Purchased Receivables, or any failure of the Seller to
service any Receivables in accordance with the requirements of this
Agreement; and
(j) a determination that any claim, offset or defense
(other than discharge in bankruptcy of the Obligor) of the Obligor to
the payment of any Purchased Receivable is valid as of the applicable
Closing Date (including, without limitation, a defense based on such
Purchased Receivable not being a legal, valid and binding obligation of
such Obligor enforceable against it in accordance with its terms).
Section 6.03 CONTRIBUTION. To the extent that the
undertaking to indemnify, pay and hold harmless as set forth in this
Agreement may be unenforceable because it is violative of any law or public
policy, the indemnifying party shall contribute the maximum portion which it
is permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all Indemnified Liabilities incurred by the Indemnitees or
any of them. Attorneys' fees and disbursements incurred in enforcing, or on
appeal from, a judgment pursuant hereto shall be recoverable separately from
and in addition to any other amount included in such judgment, and this
clause is intended to be severable from the other provisions of this
Agreement and to survive and not be merged into such judgment.
Section 6.04 SURVIVAL. The undertakings of the Seller and the
Purchaser set forth in this Article VI shall survive the termination of this
Agreement.
ARTICLE VII
SELLER'S REPURCHASE OPTION
Section 7.01 SELLER'S REPURCHASE OPTION. The Seller may, on
the Repurchase Option Date set forth in the applicable Purchase Request,
repurchase 100% of the Outstanding Balance of all Purchased Receivables
described in such Purchase Request by paying to the Purchaser the Repurchase
Price therefor on such Repurchase Option Date (the "Repurchase
Date"), which shall be no less than two Business Days after the Purchaser's
receipt of the Seller's notice of exercise of option to repurchase such
Purchased Receivable.
Section 7.02 REPURCHASE PRICE. In the case of any repurchase
by the Seller of any Purchased Receivable pursuant to the provisions of Section
7.01 hereof, the Seller shall, on the applicable Repurchase Date, pay to the
Purchaser an amount (the "Repurchase Price") equal to a percentage of the
Outstanding Balance thereof or a fixed dollar amount, as set forth in the
related Purchase Request, less the aggregate amount collected by the Servicer
and remitted to the Purchaser in respect of such Purchased Receivables. The
Seller shall have no right to rescind its option to repurchase any Purchased
Receivable once notice of exercise has been given to the Purchaser.
ARTICLE VIII
ADMINISTRATION AND COLLECTION
Section 8.01 DESIGNATION OF SERVICER. The servicing,
administering and collection of the Purchased Receivables shall be conducted by
such Person (the "Servicer") so designated by the Purchaser from time to time in
accordance with this Section 8.01. The Seller is hereby designated as, and
hereby agrees to perform the duties and obligations of, the Servicer pursuant to
the terms hereof without charge to the Purchaser. The Purchaser agrees to
provide the Seller with five Business Days' prior notice (a "Successor Notice")
of a designation of a new Servicer. The Seller agrees that it will terminate its
activities hereunder as Servicer on the Business Day following the date
specified in the Successor Notice as the effective date of the designation of
the new Servicer. At any time following the termination of Seller's activities
as Servicer as described in this Section 8.01, the Purchaser may at any time
designate as Servicer any Person (including itself) to succeed Seller or any
successor Servicer, on the condition in each case that any such Person so
designated shall agree to perform the duties and obligations of the Servicer
pursuant to the terms hereof.
Section 8.02 DUTIES OF SERVICER. The Servicer shall take or
cause to be taken all such actions as may be necessary or advisable to collect
each Purchased Receivable from time to time, all in accordance with applicable
laws, rules and regulations, with reasonable care and diligence. The Purchaser
hereby appoints as its agent the Servicer, from time to time designated pursuant
to Section 8.01 hereof, to enforce its rights and interests in and under the
Purchased Receivables and the Related Assets. The Servicer shall hold in trust
for the Purchaser all documents, instruments and records (including, without
limitation, computer tapes or disks) which evidence or relate to Purchased
Receivables.
Section 8.03 REMITTANCE OF COLLECTIONS AND PROCEEDS. The
Servicer shall receive all payments on the Purchased Receivables, including the
proceeds of any collection, as agent for the benefit of the Purchaser. The
Servicer shall hold such payments in trust, for the benefit of the Purchaser,
and shall remit to the Purchaser the full amount of each such payment on the
first Business Day of the week after the week in which such payment is received
or, if sooner, on the related Repurchase Date. Following such remittances, the
Purchaser shall xxxx its records to
reflect such remittances, which notations shall be presumed to be accurate
until the contrary is established.
Section 8.04 LIMITATION ON SERVICER'S AUTHORITY.
Notwithstanding anything to the contrary herein contained, the Servicer shall
not, without the prior written consent of the Purchaser:
(1) forgive or reduce any principal or interest due
under any Purchased Receivable;
(2) extend the due date of any Purchased Receivable;
(3) release any Obligor; or
(4) agree to any amendments, modifications or waivers
of any Purchased Receivable.
Section 8.05 STANDARD OF CARE. The standard of care to be
exercised by the Servicer in the performance of its duties under this Agreement
shall not be less than the standard of care the Servicer exercises in
administering and servicing other similar rights to payment held entirely for
the Servicer's own account. While performing its duties under this Agreement,
the Servicer shall be acting as a fiduciary for the Purchaser, responsible to
protect the rights and interests of the Purchaser with respect to the Purchased
Receivables, the Collections and the Related Assets. During the period of any
ownership of any improved real property owned by the Servicer (on behalf of the
Purchaser) after the foreclosure, or acceptance of a deed or other conveyance in
lieu of foreclosure, on the property securing any Mortgage Loan that is a
Related Asset, the Seller shall take such actions as the Purchaser may direct
with respect to the management, completion of construction (if required),
maintenance, repair or improvement of such real property, and as to any sale,
transfer, or other disposition thereof. On a weekly basis, the Servicer shall
provide advice to the Purchaser of the date and amount of all Collections in
respect of Purchased Receivables received by the Servicer for such week. Within
two (2) Business Days after receiving a request from the Purchaser, the Servicer
will furnish to the Purchaser a statement, certified by the Servicer to be true
and correct, setting forth for each Purchased Receivable the Outstanding Balance
thereof. The Servicer will from time to time deliver to the Purchaser such other
information, materials and advice as the Purchaser may reasonable request. The
Servicer shall not assign, subcontract, or delegate all or any portion of its
responsibility for servicing any Purchased Receivable without the prior written
consent of the Purchaser.
ARTICLE IX
REMEDIES
Section 9.01 REMEDIES.
(a) Upon the occurrence of any Event of Insolvency,
the amount of all Obligations shall automatically become due and
payable, without presentment, demand or other requirements of any kind,
all of which are hereby expressly waived by the Seller.
(b) Upon the occurrence of any other Termination
Event, the Purchaser may, by notice to the Seller, declare all
Obligations to be immediately due and payable, whereupon the same shall
forthwith become due and payable.
(c) Upon the occurrence of any Termination Event, the
Purchaser may also do any of the following:
(1) Notify all obligors in respect of the
Purchased Receivables and Related Assets that all payments
thereon are to be made directly to the Purchaser or such other
party as may be designated by the Purchaser; settle,
compromise, or release, in whole or in part, any amounts owing
on any Receivables or Related Assets, any such Obligor or any
portion of any Purchased Receivables or Related Assets, on
terms acceptable to the Purchaser; and enforce payment and
prosecute any action or proceeding with respect to any
Purchased Receivables or Related Assets.
(2) Require the Seller to assemble the
Related Assets and/or books and records relating thereto and
make such available to the Purchaser or a third party
designated by the Purchaser at a place to be designated by the
Purchaser or such designee.
(3) Enter onto property where any
agreements, documents or instruments related to any Purchased
Receivables, Collections and Related Assets or books and
records relating thereto are located and take possession
thereof with or without judicial process.
(4) Prepare any Purchased Receivables or
Related Assets for disposition in any manner and to the extent
the Purchaser deems appropriate.
(5) Retain all Collections and all
proceeds of any sale or other disposition of any Purchased
Receivables or Related Assets as provided herein.
(d) The Purchaser may, but shall not be obligated to,
advance any sums or do any act or thing necessary to uphold and enforce
any Purchased Receivables. All advances, charges, costs and expenses,
including reasonable attorneys' fees and disbursements, incurred or
paid by the Purchaser in exercising any right, power or remedy
conferred by this Agreement, or in the enforcement hereof, together
with interest thereon, at a per annum interest rate equal to sixteen
percent (16.00%) per annum, from the time of payment until repaid,
shall be payable by the Seller to the Purchaser hereunder and
recoverable by the Seller.
(e) No failure on the part of the Purchaser to
exercise, and no delay in exercising, any right, power or remedy
provided hereunder, at law or in equity shall operate as a waiver
thereof; nor shall any single or partial exercise by the Purchaser of
any right, power or remedy provided hereunder, at law or in equity
preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. Without intending to limit the foregoing,
all defenses based on the statute of limitations are hereby waived by
the Seller to the extent permitted by law. The remedies herein provided
are cumulative and are not exclusive of any remedies provided at law or
in equity.
Section 9.02 RIGHT OF SET-OFF. If the Seller shall default in
the payment of the Obligation when due, the Purchaser, shall have the right, at
any time and from time to time, without notice, to set-off and to appropriate or
apply any and all property or indebtedness of any kind at any time held or owing
by the Purchaser to or for the credit or the account of the Seller (against and
on account of the Obligations of the Seller), irrespective of whether or not the
Purchaser shall have made any demand hereunder and whether or not said
Obligations shall have matured.
ARTICLE X
MISCELLANEOUS
Section 10.01 AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement nor consent to any departure by any party therefrom,
shall in any event be effective unless the same shall be in writing and signed
by (i) the Seller and the Purchaser (with respect to an amendment) or (ii) the
Purchaser (with respect to a waiver or consent by it) or (iii) the Seller (with
respect to a waiver or consent by it), as the case may be, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
Section 10.02 NOTICES, ETC. Except when telephonic notice is
expressly authorized by this Agreement, any notice or other communication to any
party in connection with this Agreement shall be in writing and shall be sent by
manual delivery, telegram, telex, facsimile transmission, overnight courier or
United States mail (postage prepaid) addressed to such party at the address
specified on the signature page hereof, or at such other address as such party
shall have specified to the other party hereto in writing. All periods of notice
shall be measured from the date of delivery thereof if manually delivered, from
the date of sending thereof if sent by telegram, telex or facsimile
transmission, from the first Business Day after the date of sending if sent by
overnight courier, or from four days after the date of mailing if mailed;
PROVIDED, HOWEVER, that any notice to the Purchaser under Article II hereof
shall be deemed to have been given only when received by the Purchaser.
Section 10.03 ATTORNEY-IN-FACT. The Seller appoints the
Purchaser as the Seller's attorney-in-fact, with full power of substitution, to
perform any act which the Seller herein has agreed to perform but has failed to
do so, which appointment is irrevocable and coupled with an interest.
Section 10.04 NO WAIVER; REMEDIES. No failure on the part of
the Purchaser or the Seller to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
Section 10.05 TERMS BINDING UPON SUCCESSORS; SURVIVAL OF
REPRESENTATIONS. The terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and, subject to Section 10.06 hereof, assigns. All
representations, warranties, covenants and agreements herein contained on the
part of the Seller shall survive the sale of the Purchased Receivables,
Collections and Related Assets and shall be effective so long as any Purchased
Receivable is outstanding or there remain any Obligations to be paid or
performed.
Section 10.06 ASSIGNMENT; SALE OF PURCHASED MORTGAGE LOANS.
This Agreement may not be assigned by the Seller. The Purchaser may, at any time
in its sole and absolute discretion, sell any Purchased Receivable and its
related rights hereunder to any Person. Any such assignee shall have all of the
rights of the Purchaser hereunder with respect to such Purchased Receivables
purchased hereunder and the related Collections and Related Assets. The Seller
authorizes the Purchaser to disclose to any assignee, participant or prospective
assignee or participant any and all information in the Purchaser's possession
concerning the Seller, this Agreement or the affected Purchased Receivables.
Section 10.07 INTEGRATION. All exhibits to this Agreement
shall be deemed to be part of this Agreement. This Agreement and the exhibits
hereto embody the entire agreement and understanding between the Seller and the
Purchaser with respect to the subject matter hereof and thereof and supersede
all prior agreements and understandings between the Seller and the Purchaser
with respect to the subject matter hereof and thereof.
Section 10.08 GOVERNING LAW. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Minnesota.
Section 10.09 CONSENT TO JURISDICTION. AT THE OPTION OF THE
PURCHASER, THIS AGREEMENT AND THE OTHER PURCHASE DOCUMENTS MAY BE ENFORCED IN
ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING IN HENNEPIN COUNTY,
MINNESOTA; AND THE SELLER CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH
COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN
THE EVENT THE SELLER COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER
ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP
CREATED BY THIS AGREEMENT, THE PURCHASER AT ITS OPTION SHALL BE ENTITLED TO HAVE
THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR
IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE
DISMISSED WITHOUT PREJUDICE.
Section 10.10 WAIVER OF JURY TRIAL. THE SELLER AND THE
PURCHASER IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER PURCHASE
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 10.11 TAXES. The Seller shall pay any and all excise,
stamp, sales and other taxes and fees payable or determined to be payable by the
Seller under the laws of the State of Minnesota in connection with the
execution, delivery, filing and recording of this Agreement, the other documents
to be delivered hereunder or any amendments thereto, or the acquisition of
ownership of the Purchased Receivables and the Related Assets.
Section 10.12 EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
NEW CENTURY MORTGAGE CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Its CFO
-----------------------------
00000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, EVP/CFO
Fax: 000-000-0000
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxxxx
-----------------------------
Its Senior Vice President
-----------------------------
U.S. Bank National Association
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx,
Senior Vice President
Fax: 000-000-0000
[Signature Page to Purchase Agreement]
S-1
[LETTERHEAD]
EXHIBIT A
U.S. Bank National Association
X.X. Xxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Eligible Receivables described on the attached list are requested to be
purchased by U.S. Bank National Association (the "Purchaser") on July 21,
2000 pursuant to the Purchase Agreement dated as of July 20, 2000 between the
Purchaser and the undersigned. Capitalized terms used herein are as defined
in said Purchase Agreement.
Purchase Price: $5,000,000.00
Repurchase Option Date: July 24, 0000
Xxxxxxxxxx Price: $5,000,000
Please credit NCMC Account 1731-0097-1378. Thank you.
Sincerely,
NEW CENTURY MORTGAGE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Its: CFO
-----------------------------
Accepted:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Its: Senior Vice President
-----------------------------
