As of August 28, 2002
[Home Gold, Inc.]
Attention: Xxxxx Xxxx
Re: Purchase Price and Terms Agreement
Gentlemen:
IMPAC Mortgage Acceptance Corporation (the "Purchaser") hereby
confirms its agreement to purchase and [Home Gold, Inc.] (the "Seller") hereby
confirms its agreement to sell, on a mandatory delivery basis, four pools (each,
a "Pool") of fixed-rate and adjustable-rate, residential mortgage loans
described herein secured by first and second lien mortgages, deeds of trust or
other similar security instruments (the "Mortgage Loans") on a servicing
released basis, on the terms and conditions set forth below.
In addition to this Purchase Price and Terms Agreement, the
Mortgage Loan Purchase and Warranties Agreement, dated as of August 28,
2002 (the "Purchase Agreement"), between the Purchaser and the Seller, and the
Interim Servicing Agreement, dated as of August 28, 2002 (the "Interim
Servicing Agreement"), between the Purchaser and the Seller, as interim
servicer, each in form and substance satisfactory to the Purchaser, shall set
forth the terms and provisions with respect to the Mortgage Loans and the sale
and servicing thereof. Each Pool will be conveyed by the Seller to the Purchaser
pursuant to an Assignment and Conveyance (each, an "Assignment and Conveyance"),
executed by the Seller.
Ownership of the Mortgage Loans shall be evidenced by delivery
of the Mortgage Loans as whole loans pursuant to the Purchase Agreement and the
Interim Servicing Agreement.
1. Term of this Commitment
-----------------------
The first Pool of Mortgage Loans (the "First Closing Mortgage
Loans") shall be purchased by the Purchaser and sold by the Seller, subject to
the terms hereof, on September 30, 2002 or such date as shall be mutually agreed
upon by the parties hereto (the "First Closing Date"). The second Pool of
Mortgage Loans (the "Second Closing Mortgage Loans") shall be purchased by the
Purchaser and sold by the Seller, subject to the terms hereof, on October 30,
2002 or such date as shall be mutually agreed upon by the parties hereto (the
"Second Closing Date"). The third Pool of Mortgage Loans (the "Third Closing
Mortgage Loans") shall be purchased by the Purchaser and sold by the Seller,
subject to the terms hereof, on November 28, 2002 or such date as shall be
mutually agreed upon by the parties hereto (the "Third Closing Date"). The
fourth Pool of Mortgage Loans (the "Fourth Closing Mortgage Loans") shall be
purchased by the Purchaser and sold by the Seller, subject to the terms hereof,
on December 20, 2002 or such date as shall be mutually agreed upon by the
parties hereto (the "Fourth Closing Date" and together with the First Closing
Date, the Second Closing Date and the Third Closing Date, the "Closing Dates").
The obligation of the Purchaser to purchase the Mortgage Loans from the Seller
on any Closing Date is expressly contingent upon the satisfactory due diligence
review by the Purchaser to confirm that the Mortgage Loans conform to the terms
of this Purchase Price and Terms Agreement and conform materially to the
Underwriting Guidelines (as defined below).
2. Aggregate Amount of Mortgage Loans
----------------------------------
The aggregate outstanding principal balance of the Mortgage
Loans purchased on the Closing Dates shall be approximately $200,000,000
(approximately $50,000,000 on each Closing Date). Any Mortgage Loans that have
prepaid in full prior to the related Closing Date shall be excluded from the
aggregate outstanding principal balance of the Mortgage Loans in the related
Pool (the "Cut-off Date Balance") as of the first day in the month in which the
related Closing Date occurs (each, a "Cut-off Date") and shall not be purchased
by the Purchaser.
Each Closing Date shall consist of approximately $20 million
of conventional conforming FNMA eligible Mortgage Loans, and approximately $30
million of subprime Mortgage Loans.
The Purchaser will be under no obligation to purchase any
Mortgage Loans for which a complete Mortgage Loan File or Credit Information (as
defined below) is not made available for review and delivery to the Purchaser in
accordance with the Purchase Agreement.
3. Purchase Price
--------------
The purchase price for each Pool of Mortgage Loans (including
the servicing rights related thereto) (the "Purchase Price") sold to the
Purchaser on a Closing Date shall be equal to the (i) product of (x) the related
Purchase Price Percentage (as defined below) and (y) the related Cut-off Date
Balance, plus (ii) accrued and unpaid interest at the Weighted Average Mortgage
Interest Rate (as defined below) (net of the Servicing Fee) for the related
Mortgage Loans from the related Cut-off Date through the day prior to the
related Closing Date, inclusive.
The "Purchase Price Percentage" with respect to each of the
subprime Mortgage Loans shall be equal to 103.50%, subject to adjustment based
on the final pool characteristics and as described below.
The "Mortgage Interest Rate" with respect to any Mortgage Loan
is the interest rate borne by such Mortgage Loan as of the related Cut-off Date.
Notwithstanding the foregoing, (i) the Purchase Price
Percentage for any Pool shall be adjusted by increasing the Purchase Price
Percentage by 1.25 basis points (0.0125%) for every basis point (0.01%) by which
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the weighted average Mortgage Interest Rate of the subprime Mortgage Loans in
such Pool based on the outstanding principal balance of the subprime Mortgage
Loans in such Pool as of the related Cut-off Date (the "Weighted Average
Mortgage Interest Rate") exceeds the Base Rate for such Pool, (ii) the Purchase
Price Percentage for any Pool shall be adjusted by decreasing the Purchase Price
Percentage by 1.50 basis points (0.0150%) for every basis point (0.01%) by which
the Weighted Average Mortgage Interest Rate of the subprime Mortgage Loans in
such Pool falls below the Base Rate for such Pool, and (iii) the Purchase Price
Percentage for any Pool shall be adjusted by decreasing the Purchase Price
Percentage by 1 basis point (1%) for every 1 basis point (1%) by which the
weighted average loan-to-value ("LTV") of the subprime Mortgage Loans in such
Pool as of the related Cut-off Date (the "Weighted Average LTV") exceeds 80% LTV
for such Pool . If, as a result of the application of this paragraph, the
Purchase Price Percentage for any Pool is required to be adjusted by more than 1
basis point (1%), the Purchase Price with respect to such Pool determined in
accordance with this Section 3 shall not be applicable and shall be subject to
the parties mutual agreement.
The "Base Rate" with respect to any Pool of subprime Mortgage
Loans is a per annum rate equal to 9.250%.
In addition, in the event that the Purchaser's review of the
subprime Mortgage Loans pursuant to Section 8 hereof results in the Purchaser
rejecting certain of the subprime Mortgage Loans from the transaction
contemplated herein such that the characteristics of the subprime Mortgage Loans
to be purchased on the related Closing Date are, in the aggregate, materially
different from the characteristics set forth on Exhibit A hereto, the Purchase
Price with respect to such subprime Mortgage Loans shall be subject to the
parties mutual agreement.
The "Purchase Price Percentage" with respect to each of the
conventional conforming FNMA eligible Mortgage Loans
shall be equal to Purchaser's FNMA 30 day commitment less 8-32nds.
4. The Mortgage Loans
------------------
Subject to any changes in the composition of the Mortgage
Loans which may be agreed to by the Seller and the Purchaser, as of each Closing
Date, the Mortgage Loans will have the characteristics as set forth on Exhibit
A, attached hereto; provided that the Purchaser shall have the right to remove
from the mortgage loan schedule delivered on the related Closing Date (the
"Mortgage Loan Schedule") and from the terms of this Purchase Price and Terms
Agreement any Mortgage Loan with respect to which the Seller has received a
request for a pay-off letter or other notice of potential prepayment in full on
or prior to any Closing Date. In the event that (i) any Mortgage Loan purchased
by the Purchaser prepays in full on or prior to the related Closing Date or (ii)
any Mortgage Loan prepays in full during the 60-day period of time immediately
following the related Closing Date, the Seller shall promptly pay the Purchaser,
with respect to such Mortgage Loan, the difference between the Purchase Price
Percentage and par, multiplied by the then outstanding principal balance of such
Mortgage Loan. The provisions set forth in this paragraph shall survive each
Closing Date and shall not merge with any of the closing documents and shall be
enforceable by the Purchaser independently of this or any other agreement.
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The Seller shall make the representations and warranties set
forth in the Purchase Agreement with respect to the Mortgage Loans (the
"Representations") as of the related Closing Date, including, but not limited
to, the representation and warranty that the Mortgage Loans have the applicable
characteristics set forth on the Mortgage Loan Schedule and on Exhibit A hereto.
The Seller agrees to make such Representations without any qualifications based
on the Seller's knowledge unless it is stated as such in the Purchase Agreement.
Each Mortgage Loan shall have been underwritten in accordance
with, and each Mortgage Loan shall conform to, the underwriting guidelines (the
"Underwriting Guidelines") of Purchaser in effect at the time the Mortgage Loan
is originated, and such Underwriting Guidelines will be attached as an exhibit
to the related Assignment and Conveyance. In addition, as of the related Closing
Date (a) all Mortgage Loans shall be current with respect to payments due
thereunder as of the related Closing Date, (b) no Mortgage Loan shall have been
delinquent 30 or more days since its origination, and (c) the weighted average
FICO score of the Mortgage Loans in each Pool as established as of each related
Closing Date based on the Cut-off Date Balance of the Mortgage Loans in such
Pool, shall be no less than 600. In addition, the provisions set forth in the
preceding sentence shall survive each Closing Date and shall not merge with any
of the closing documents and shall be enforceable by the Purchaser independently
of this or any other agreement.
5. The Agreements
--------------
The Mortgage Loans will be sold and conveyed to the Purchaser
by the Seller pursuant to the Purchase Agreement.
The servicing rights (the "Servicing Rights") to the Mortgage
Loans shall be assigned and transferred to the Purchaser on the related Closing
Date. The Mortgage Loans shall be serviced by the Seller on behalf of the
Purchaser and its assignees pursuant to the Interim Servicing Agreement, from
and after the related Closing Date and until the transfer date or dates (each
such date, a "Transfer Date") on which the Purchaser removes some or all of the
Mortgage Loans from the terms and provisions of the Interim Servicing Agreement.
Notwithstanding the foregoing, the final Transfer Date with respect to the First
Closing Mortgage Loans shall be [October 30], 2002, the final Transfer Date with
respect to the Second Closing Mortgage Loans, shall be [November 30], 2002, the
final Transfer Date with respect to the Third Closing Mortgage Loans, shall be
[December 28], 2002, the final Transfer Date with respect to the Fourth Closing
Mortgage Loans, shall be [January 20], 2003, in each case unless otherwise
specified by the Purchaser in its sole discretion. The Seller hereby agrees to
cooperate fully with the Purchaser and any party the Purchaser designates as the
successor servicer in transferring the servicing to such successor servicer and
that any such transfer shall be at no cost to the Purchaser.
The Interim Servicing Agreement provides for servicing on an
"actual/actual" basis. Pursuant to the Interim Servicing Agreement, the Seller
will be entitled to a monthly fee (the "Servicing Fee") with respect to each
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Mortgage Loan equal to the product of the Servicing Fee Rate and the scheduled
principal balance of each Mortgage Loan before application of monthly payments
due during such month. The Servicing Fee with respect to any month and any
Mortgage Loan shall be paid from interest actually received on such Mortgage
Loan and shall be pro rated for any partial month serviced. The "Servicing Fee
Rate" is equal to [0.25]% per annum.
The Purchase Agreement sets forth the Representations with
respect to the Mortgage Loans and requires the Seller to, at the Purchaser's
option, (a) repurchase any Mortgage Loan with respect to which a material breach
of a representation or warranty which adversely affects the value of the
Mortgage Loans is discovered and cannot be cured (a "Loan in Breach") or (b)
substitute such Loan in Breach with a mortgage loan that meets the criteria,
satisfactory to the Purchaser, for a substitute mortgage loan set forth in the
Purchase Agreement (each, a "Substitute Mortgage Loan"), provided the Seller has
such mortgage loan available.
The representations and warranties to be made by the Seller in
connection with the sale by the Seller of the Mortgage Loans to the Purchaser
shall be made by the Seller as of the related Closing Date and shall survive the
purchase of the Mortgage Loans by the Purchaser. The Seller agrees that there
shall be no limitation with respect to the term of the representations and
warranties made as of the related Closing Date.
In addition to such repurchase remedy, the Seller shall
indemnify and hold the Purchaser harmless against all , liabilities,
obligations, damages, actions, judgments, liens, losses, expenses, fines,
charges, penalties, administrative and judicial proceedings and orders, arising
out of the breach of any representation or warranty made by the Seller.
Notwithstanding anything to the contrary contained in the
Purchase Agreement, if a breach of warranty or representation made by the Seller
in the Purchase Agreement with respect to any Mortgage Loan is discovered by the
Seller or notice of such breach is received by the Seller within twelve (12)
months following the related Closing Date (the "Premium Protection Period"), the
price for such repurchase (the "Premium Repurchase Price") shall be equal to the
product of (i) 100% plus an amount equal to (A) a fraction, whose numerator is
equal to 12 less the number of full calendar months since the Closing Date and
whose denominator is equal to 12, multiplied by (B) the Purchase Price
Percentage less 100%, multiplied by (ii) the then outstanding principal balance
of the Mortgage Loan to be repurchased as of the date of such repurchase, plus
accrued interest thereon at the Mortgage Interest Rate from the date on which
interest had last been paid through the date of such repurchase, plus the amount
of any outstanding advances owed to any servicer in respect of such repurchased
Mortgage Loan, together with all reasonable expenses incurred by Purchaser as a
result of such repurchase. For purposes of the prior sentence, a full calendar
month shall be construed to mean a 30-day period from the Closing Date, and each
30-day period thereafter shall constitute a "full calendar month". If such
breach is discovered or notice is received by the Seller after the termination
of the Premium Protection Period, the price for such repurchase (the "Par
Repurchase Price") shall be equal to the then outstanding principal balance of
the Mortgage Loan to be repurchased, plus accrued interest thereon at the
Mortgage Interest Rate from the date on which interest has last been paid and
distributed to the Purchaser to the date of repurchase, plus the amount of any
outstanding advances owed to any servicer in respect of such repurchased
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Mortgage Loan, together with all expenses incurred by Purchaser as a result of
such repurchase. The provisions set forth in this paragraph shall survive each
Closing Date and shall not merge with any of the closing documents and shall be
enforceable by the Purchaser independently of this or any other agreement.
The representations and warranties to be made by the Seller in
connection with the sale by the Seller of the Mortgage Loans to the Purchaser
shall be made by the Seller as of the related Closing Date and shall survive the
transfer of servicing of the Mortgage Loans.
In the event that the Purchaser resells any or all of the
Mortgage Loans to any subsequent purchaser (each a "Subsequent Purchaser") and
(i) the Seller is provided with notice of a breach of a representation or
warranty with respect to any Mortgage Loan during the Premium Protection Period,
(ii) such notice results in a repurchase by the Seller of such Mortgage Loan and
(iii) the Purchaser is required to remit to any Subsequent Purchaser a sum which
represents any or all of the excess over par paid by such Subsequent Purchaser
for such Mortgage Loan, then the Seller shall remit to the Purchaser within the
repurchase period defined in the Purchase Agreement , the difference between the
Purchase Price Percentage and par, multiplied by the then outstanding principal
balance of such Mortgage Loan. The foregoing provision shall survive each
Closing Date and shall not merge with the closing documents and shall be
enforceable by the Purchaser independently of this or any other agreement.
The Purchase Agreement provides that the Seller has not taken
or permitted or caused to be taken, and will not take any action or permit or
cause any action to be taken, without the prior written consent of the
Purchaser, by any of its agents or affiliates, or by any independent contractors
on the Seller's behalf, to personally, by telephone, mail or otherwise, solicit
the borrower or obligor under any Mortgage Loan to refinance a Mortgage Loan, in
whole or in part. Notwithstanding the foregoing, it is understood and agreed
that promotions undertaken by the Seller or any affiliate of the Seller which
are directed to the general public at large, including, without limitation, mass
mailing based on commercially acquired mailing lists, newspaper, radio and
television advertisements or solicitations indicated within the monthly
statements sent to borrowers (which statements are sent to all loans serviced
through Seller) shall not constitute solicitation under this Section 5.
The Purchase Agreement may be assigned, pledged or
hypothecated by the Purchaser without the prior consent of the Seller. There
shall be no limitation on the number of assignments or transfers allowable by
the Purchaser with respect to the Mortgage Loans, the Purchase Agreement, the
Interim Servicing Agreement or any other agreements which govern the Mortgage
Loans. The Purchase Agreement may not be assigned, pledged or hypothecated by
the Seller without the prior written consent of the Purchaser, which consent may
be withheld by the Purchaser in its sole discretion.
6. Tax Service Contracts and Flood Certification Contracts
-------------------------------------------------------
The Seller shall ensure that each of the Mortgage Loans shall
be covered by a paid-in-full, life-of-loan tax service contract with a provider
acceptable to the Purchaser (each, a "Tax Service Contract") and a paid-in-full,
life-of-loan flood certification contract with a provider acceptable to the
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Purchaser (each, a "Flood Certification Contract"), each of which shall be
assigned to the Purchaser or the Purchaser's designee at the Seller's expense.
The obligations set forth in this Section 6 shall survive the closing of the
transactions contemplated hereby, shall not merge with the closing documents and
shall be independently enforceable.
7. Delivery and Custody of Loan Documents
--------------------------------------
Pursuant to the terms of a bailee agreement, to be executed
among the Seller or its designee, Deutsche Bank National Trust Company (the
"Custodian") and the Purchaser (the "Bailee Agreement"), the Seller or its
designee shall deliver to the Custodian the original mortgage loan documents,
including an original promissory note with respect to each Mortgage Loan then
being sold (the "Mortgage Loan Files") on or before five (5) days prior to the
related Closing Date. Pursuant to the terms of the Custodial Agreement, dated as
of September 15, 2002 (the "Custodial Agreement"), between the Purchaser and
the Custodian, from and after the related Closing Date, the Custodian will hold
the Mortgage Loan Files in trust for the benefit of the Purchaser. The Purchaser
shall pay the costs and expenses of the Custodian incurred from and after the
related Closing Date. The Seller shall pay all recording fees, if any, for the
assignments of mortgage and any other fees or costs incurred in connection with
a one-time preparation and recordation of each assignment.
8. Review of Loan Files
--------------------
With respect to each Mortgage Loan, the Seller shall make the
credit and servicing files (including, without limitation, the related
mortgagor's payment history) (collectively, the "Credit Information") of such
Mortgage Loan available at its offices for review during normal business hours
at least 14 days prior to the related Closing Date. The Purchaser and the
Purchaser's designee may each review such files prior to the related Closing
Date for the purpose of ensuring conformity with the terms of this Purchase
Price and Terms Agreement and the Purchase Agreement. The Purchaser will be
under no obligation to purchase any Mortgage Loans for which Credit Information
is not made available for the Purchaser's review in accordance with the terms
hereof. If the Purchaser makes such examination prior to the related Closing
Date and identifies any Mortgage Loans which do not conform to the Purchaser's
reasonable requirements in all material respects, or if any Mortgage Loan has
been paid in full prior to the related Closing Date, such Mortgage Loans shall
be deleted from the Mortgage Loan Schedule to be delivered by the Seller to the
Purchaser on such Closing Date.
The Purchaser may, at its option and without notice to the
Seller, purchase all or part of the Mortgage Loans without conducting any
partial or complete examination thereof. The fact that the Purchaser or any
prospective purchaser of the Mortgage Loans has conducted or has failed to
conduct any partial or complete examination of the Mortgage Loan Files or Credit
Information shall not affect the Purchaser's (or any of its successors') rights
to demand repurchase, substitution or other relief as provided under the
Purchase Agreement.
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9. Reconstitution
--------------
With respect to the Mortgage Loans, the Seller and the
Purchaser acknowledge and agree that the Purchaser or any prospective purchaser
may sell or transfer from time to time some or all of the Mortgage Loans to (a)
one or more third-party purchasers, as part of a whole loan transfer (each, a
"Whole Loan Transfer") and/or (b) one or more trusts or other entities to be
formed as part of a publicly-issued and/or privately placed, rated or unrated,
securitization (each, a "Securitization") (a Whole Loan Transfer or
Securitization, each a "Transaction"). With respect to as many as two
Transactions, the Seller shall use its reasonable best efforts to assist the
Purchaser, and any prospective purchaser, if the Purchaser or such prospective
purchaser so requests, in securitizing the Mortgage Loans and selling undivided
interests in, or obligations secured by, such Mortgage Loans in a public
offering or private placement or selling participating interests in such
Mortgage Loans, which assistance shall include, but not be limited to, (i)
providing any information relating to the Mortgage Loans necessary to assist in
the preparation of any disclosure documents, and (ii) providing as of the date
of such Securitization representations and warranties as to the Seller, which
are consistent with the representations and warranties contained in the Purchase
Agreement, but modified, if necessary, to reflect changes since the related
Closing Date. However, if the Purchaser is concurrently assigning, selling or
transferring other loans to the third-party purchaser, then the representations
and warranties assigned to the third party purchaser (or reconstituted by the
Seller herein) which apply to the loans sold hereunder shall not be any more
stringent, restrictive or strict than those given by the Purchaser to the third
party purchaser. The Seller shall indemnify the Purchaser and hold it harmless
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that the Purchaser may sustain as a result of any incorrect information
given by the Seller and regarding the Seller, the Mortgage Loans or the
Underwriting Guidelines in connection with any Transaction. The Purchase
Agreement sets forth the foregoing reconstitution provisions.
10. GOVERNING LAW
-------------
THIS PURCHASE PRICE AND TERMS AGREEMENT SHALL BE DEEMED IN
EFFECT WHEN A FULLY EXECUTED COUNTERPART THEREOF IS RECEIVED BY THE PURCHASER IN
THE STATE OF CALIFORNIA AND SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF
CALIFORNIA. THE PURCHASE PRICE AND TERMS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES.
11. Closing
-------
Each closing for the purchase and sale of the Mortgage Loans
shall take place on the related Closing Date. Each closing shall be by
telephone, confirmed by letter or facsimile receipt confirmation transmission,
or conducted in person, at the Purchaser's option.
Each closing shall be subject to each of the following
conditions:
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(a) the Seller, the Guarantor and the Purchaser shall have executed
and delivered all closing documents as specified in Section 12 of
this Purchase Price and Terms Agreement, duly executed by all
signatories as required pursuant to the respective terms thereof;
(b) the Seller shall have received the Purchase Price pursuant to
Section 3 of this Purchase Price and Terms Agreement, by wire
transfer of immediately available federal funds to the account
designated by the Seller; and
(c) all other terms and conditions of this Purchase Price and Terms
Agreement shall have been complied with (unless mutually waived
by the Purchaser and the Seller).
12. Closing Documents
-----------------
The closing documents for each closing shall consist of the
following documents:
1. the Assignment and Conveyance (and all exhibits thereto), in
three counterparts;
2. the Bailee Agreement, in four counterparts;
3. this Purchase Price and Terms Agreement, in three counterparts
(to be executed and delivered only for the First Closing Date);
4. the Purchase Agreement, in four counterparts (to be executed and
delivered only for the First Closing Date);
5. the Interim Servicing Agreement, in three counterparts (to be
executed and delivered only for the First Closing Date);
6. the Guarantee, in three counterparts (to be executed and
delivered only for the First Closing Date); and
7. an Escrow Agreement, by and among the Seller, the Purchaser and
Cadwalader, Xxxxxxxxxx & Xxxx.
13. Costs
-----
The Purchaser shall pay the legal fees and expenses of its
attorneys. Except as otherwise specified herein, all other costs and expenses
incurred in connection with the transactions contemplated hereby, including
recording fees for the mortgage loan assignments, fees for title policy
endorsements and continuations, if applicable, and the Seller's attorney's fees,
shall be paid by the Seller.
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14. Confidential Information
------------------------
The Seller shall keep confidential and shall not divulge to
any party, without the Purchaser's written consent, the price paid by the
Purchaser for the Mortgage Loans, except to the extent that it is appropriate
for the Seller to do so in working with legal counsel, auditors, taxing
authorities or other governmental agencies or as otherwise required by law or
legal process. The rights and obligations set forth in this Section shall
survive each Closing Date and shall not merge with or into any of the closing
documents described herein, but instead shall be independently enforceable.
15. Brokerage Fees
--------------
Neither the Seller nor the Purchaser has employed or used a
broker in connection with the transactions contemplated herein, and to the
extent that a demand is made upon either the Seller or the Purchaser for
brokerage fees associated herewith, neither the Seller nor the Purchaser shall
be responsible for paying any brokerage fees of the other party. Each party
hereto shall indemnify and hold the other party harmless against all claims of
any brokers or other persons employed or used by the first party for brokers'
commissions relating thereto, which indemnification shall include all losses,
damages and expenses, including attorney's fees for settlement, litigation or
appearance and other costs for same, suffered by such other party in connection
with such claims. The rights and obligations set forth in the preceding sentence
shall survive each Closing Date and shall not merge with or into any of the
closing documents described herein, but instead shall be independently
enforceable.
16. Notices
-------
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or if by other means, when received by
the other party at the address shown on the first page hereof, or such other
address as may hereafter be furnished to the other party by like notice. Any
such demand, notice or communication hereunder shall be deemed to have been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted on
the return receipt).
17. Miscellaneous
-------------
This Purchase Price and Terms Agreement shall not be assigned,
pledged or hypothecated by the Seller without the prior written consent of the
Purchaser, which consent may be withheld by the Purchaser in its sole
discretion. For the purpose of facilitating the execution of this Purchase Price
and Terms Agreement as herein provided and for other purposes, this Purchase
Price and Terms Agreement may be executed simultaneously in any number of
counterparts (by manual or facsimile signature), each of which counterparts
shall be deemed to be an original, and all of which together shall constitute
and be one and the same instrument.
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18. Further Agreements
------------------
The Purchaser and the Seller each agree to execute and deliver to the
other such additional documents, instruments or agreements as may be reasonably
necessary or appropriate to effectuate the purposes of this Purchase Price and
Terms Agreement.
19. Entire Agreement and Amendments
-------------------------------
This Purchase Price and Terms Agreement contains the entire
agreement relating to the subject matter hereof between the Seller and the
Purchaser and supersedes any prior oral or written agreement between the Seller
and the Purchaser. This Purchase Price and Terms Agreement may only be amended
by a written document signed by both the Seller and the Purchaser.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
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Kindly acknowledge receipt of this confirmation by signing and
promptly returning the enclosed duplicate of this Purchase Price and Terms
Agreement to us on or before August 28, 2002. Your failure to return a
countersigned duplicate of this Purchase Price and Terms Agreement to us within
the time indicated shall give us the right, at our sole option, to declare the
oral agreement confirmed hereby null and void.
Very truly yours,
IMPAC MORTGAGE ACCEPTANCE CORPORATION
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: President
By:______________________________________________
Name: ___________________________________________
Title: __________________________________________
Receipt and affirmation of this agreement is hereby acknowledged:
[HOME GOLD, INC.]
By: /s/ Xxxxx Xxxx
--------------------------
Name: Xxxxx Xxxx
Title: Sr. Vice President, Structured Finance
Date: __________________________
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EXHIBIT A
MORTGAGE LOAN CHARACTERISTICS
