EXHIBIT 10(Q)
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXX XXXXX XXXXXXXX XXXX
XX
XXXXX XXXXXXXX
________________________________________________________________________________
MORTGAGE LOAN SELLER/SERVICER AGREEMENT
________________________________________________________________________________
================================================================================
FUNB ___________________________________________________________________________
This MORTGAGE LOAN SELLER/SERVICER AGREEMENT (this "Agreement") dated
as of_________, 199_, is between FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, a national banking association (the "Purchaser"), and the seller
and/or servicer named below (the "Company").
PRELIMINARY STATEMENT
WHEREAS, in reliance upon the representations and warranties of the
Company contained or incorporated by reference herein and in the
Seller/Servicer Application attached hereto as Exhibit A, the Purchaser has
agreed to purchase from the Company from time to time, and the Company has
agreed to sell to the Purchaser from time to time, certain residential
whole mortgage loans meeting the criteria set forth in the FUNB Seller
Guide as hereinafter defined; and
WHEREAS, the Company may retain the servicing of such mortgage loans,
in which instance the Company and the Purchaser desire to prescribe the
terms and conditions of such servicing as set forth in the FUNB Servicing
Guide as hereinafter defined;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Company
agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, the
-----------
capitalized terms used herein shall have the meanings set forth in the
Guides. Whenever used herein, the following words and phrases shall have
the following meanings:
Agreement: This Mortgage Loan Seller/Servicer Agreement,
---------
including the Guides, the Commitment Confirmation Letters and all exhibits
hereto and thereto, all of which are incorporated herein by reference and
made a part hereof and are an integral part of this Agreement, and all
amendments hereof and thereof and supplements or addendums hereto and
thereto.
Amendment: As defined in Section 4 hereof.
---------
Commitment Confirmation Letter: One or more letters from the
------------------------------
Purchaser to the Company setting forth certain terms and conditions
relating to the sale by the Company to Purchaser of Mortgage Loans.
Effective Date: The date of this Agreement.
--------------
FUNB Seller Guide: The First Union National Bank of North
-----------------
Carolina Mortgage Loan Conduit Seller Guide in effect on the Effective
Date, as amended, modified or restated by Purchaser from time to time in
accordance with Section 4 hereof.
FUNB Servicer Guide: The First Union National Bank of North
-------------------
Carolina Servicer Guide in effect on the Effective Date, as amended,
modified or restated by Purchaser from time to time in accordance with
Section 4 hereof.
Guides: The FUNB Seller Guide and the FUNB Servicer Guide.
------
Mortgage Loan: Any mortgage loan sold by the Company to the
-------------
Purchaser pursuant to the terms of this Agreement.
FUNB __________________________________________________________________________
Page 1 September 20, 1996
FUNB ___________________________________________________________________________
Officers' Certificate: Certificates in substantially the form of
---------------------
Exhibit B, signed by authorized officers of the Company.
Opinion of Counsel: A written opinion of counsel in substantially
------------------
the form of Exhibit C.
Purchase Date: Each date that the Company sells one or more
-------------
Mortgage Loans to the Purchaser in accordance with the terms of this
Agreement and the applicable Commitment Confirmation Letter.
Purchase Price: For each Mortgage Loan purchased hereunder, an
--------------
amount determined in accordance with the applicable Commitment Confirmation
Letter and the FUNB Seller Guide.
Seller/Servicer Application: The Seller/Servicer Application in
---------------------------
the form attached hereto as Exhibit A.
Servicing Released Fee: For each Mortgage Loan purchased
----------------------
Servicing Released hereunder, an amount, if any, determined by the
applicable Commitment Confirmation Letter.
SECTION 2. DELIVERY OF THE GUIDES. The Purchaser has provided to
----------------------
the Company and the Company has received and reviewed the Guides, which are
incorporated by reference in their entirety into this Agreement. The
Company has had the opportunity to ask questions of the Purchaser
concerning the Guides. The Company understands and agrees that the
Purchaser's interpretation of the Guides shall be final and binding on the
Company in all respects.
SECTION 3. SALE AND CONVEYANCE OF MORTGAGE LOANS: POSSESSION OF
----------------------------------------------------
MORTGAGE FILES.
--------------
(a) Regarding the purchase of each Mortgage Loan or Loans,
the Purchaser shall issue a Commitment Confirmation Letter, which shall
constitute conclusive evidence of the agreed terms for such purchase,
unless specific objection with respect to the Commitment Confirmation
Letter is made in writing and received by the Purchaser before 4:00 p.m.
Eastern Time on the Business Day following the issuance of the Commitment
Confirmation Letter.
(b) On each Purchase Date, the Company, upon the receipt of
the requisite consideration therefor, does hereby sell, transfer, assign,
set over and convey to the Purchaser, without recourse, but subject to the
terms and provisions of this Agreement, all the right, title, and interest
of the Company in and to one or more Mortgage Loans meeting the
requirements of this Agreement. In full consideration for the sale of each
of the Mortgage Loans by the Company to Purchaser pursuant to this
Agreement, on each Purchase Date the Purchaser shall pay to the Company the
Purchase Price, as adjusted as set forth in the FUNB Seller Guide, and
Servicing Released Fee, if any, for the Mortgage Loans purchased on such
Purchase Date.
(c) The Company will deliver the following items to the
Purchaser on the Effective Date:
(i) an executed original of this Agreement;
(ii) the Seller/Servicer Application, which shall be
acceptable to the Purchaser in its sole discretion;
(iii) the Officers' Certificate;
(iv) the Opinion of Counsel, which shall be acceptable
to the Purchaser in its sole discretion;
FUNB ___________________________________________________________________________
Page 2 September 20, 1996
FUNB ___________________________________________________________________________
(v) a certificate or other evidence of merger or change of
name, signed or stamped by the applicable regulatory authority, if any
of the Mortgage Loans were acquired through merger or originated by
the Company while conducting business under a name other than its
present name;
(vi) the written approval of any receiver, conservator or
trustee that is (or may be) necessary for consummation of the
transactions contemplated by this Agreement, which written approval
shall be dated no more that twenty (20) days prior to the Effective
Date; and
(vii) any consents or approvals required by Law or pursuant
to contract to consummate the transactions contemplated hereby.
(d) Upon payment for the related Mortgage Loan pursuant to this
Section, the beneficial ownership of each Mortgage Note, each Mortgage, and
each of the other documents comprising the Mortgage File with respect to
each Mortgage Loan is hereby vested in the Purchaser, and the ownership of
all records and documents with respect to each Mortgage Loan prepared by or
which come into the possession of the Company is hereby immediately vested
in the Purchaser and shall be held and maintained, in trust, by the Company
at the will of the Purchaser in such custodial capacity only.
SECTION 4. APPLICATION AND AMENDMENT OF THE GUIDES: COMMITMENT
---------------------------- ----------------------
CONFIRMATION LETTER.
-------------------
(a) The interpretation of the Purchaser of the Guides shall be
final and binding on the parties hereto in all respects. Regardless of
whether specifically identified as such, each requirement, standard,
instruction or statement in the Guides, the Seller/Servicer Application,
this Agreement and any Commitment Confirmation Letter shall be deemed to be
a representation and warranty by the Company to the Purchaser. The
Purchaser may amend, alter, modify, supplement, replace or restate the
Guides (an "Amendment") at any time and from time to time in its sole
discretion without the consent of the Company. The Purchaser shall give
written notice of an Amendment to the Company, and the Amendment shall
become effective immediately upon receipt of such notice by the Company or
as specifically provided therein; provided, however, no Amendment of the
FUNB Seller Guide shall be effective with respect to an outstanding
Commitment Confirmation Letter unless consented to by the Company. In the
event of any inconsistencies between the provisions of this Agreement and
the Guides, this Agreement shall control. The parties acknowledge and agree
that as of the Effective Date, the FUNB Servicing Guide shall consist of
the Federal National Mortgage Association Servicing Guide; provided,
however, consistent with the terms of this Section 4, the Purchaser may
replace such Guide at any time and from time to time with a proprietary
FUNB Servicing Guide.
(b) In the event of any inconsistencies between the provisions
of this Agreement (including the Guides) and the Commitment Confirmation
Letter, the Commitment Confirmation Letter shall control.
SECTION 5. REPRESENTATIONS. WARRANTIES AND COVENANTS OF THE
------------------------------------------------
COMPANY.
-------
The Company hereby makes to the Purchaser as of the Effective Date all
of the Company's representations, and warranties set forth in the Guides
(other than those representations and warranties that relate only to
individual Mortgage Loans, which are made or effective as set forth in the
FUNB Seller Guide) and grants to the Purchaser the remedies set forth
hereunder and in the Guides with respect to a breach of such
representations and warranties. The Company also hereby covenants with the
Purchaser that the Company shall continue to comply with all of the
Company's representations, warranties and covenants set forth in the
Guides, each Commitment Confirmation Letter and this Agreement.
FUNB ___________________________________________________________________________
Page 3 September 20, 1996
FUNB __________________________________________________________________________
SECTION 6. COSTS AND EXPENSES: RIGHT OF SETOFF.
-----------------------------------
(a) The Company shall pay all fees and expenses incurred in
connection with the transactions contemplated by this Agreement, including
without limitation transfer fees, recording fees, fees for title policy
endorsements and continuations, attorneys' fees and costs associated with
the physical delivery and insured shipment of the Mortgage Files to
Purchaser and/or Purchaser's document custodian(s).
(b) The Purchaser and its successors and assigns shall be
entitled to setoff against any amount to be paid by it to the Company for
such amounts as may be due from the Company under this Agreement.
SECTION 7. NO SOLICITATION RIGHTS.
----------------------
Subject to the provisions set forth in this Section 7, from and after
the date hereof, neither the Company, nor any of its Affiliates shall
solicit, by means of direct mail, or telephonic or personal solicitation,
the Mortgagors of any Mortgage Loans for purposes of prepayment of such
Mortgage Loans. Solicitations undertaken by the Company or any Affiliate of
the Company that are directed to the general public at large (as opposed to
directed specifically at the Mortgagors), including without limitation mass
mailings based on commercially acquired mailing lists, and newspaper, radio
and television advertisements, shall not constitute solicitation under this
Section 7.
SECTION 8. CONDITIONS TO PURCHASE.
----------------------
The obligations of Purchaser to purchase any Mortgage Loans are
subject to the satisfaction prior to or on each applicable Purchase Date
(or on such other date as expressly provided for herein) of the following
conditions, any one or more of which may be waived in writing by Purchaser:
(a) All of the representations and warranties of the
Company set forth in the Guides shall be true and correct as of the
applicable Purchase Date, and no event shall have occurred which, with
notice or the passage of time, would constitute a Default or breach under
this Agreement or under the Guides.
(b) On each Purchase Date, Purchaser shall have received
the documents and instruments required to be delivered to Purchaser on or
before such Purchase Date pursuant to the Guides, duly executed by all
signatories other than Purchaser as required pursuant to the respective
terms thereof.
(c) All other terms and conditions to be performed on or
prior to the applicable Purchase Date (or such other date as expressly
provided for herein) by the Company shall have been duly complied with and
performed in all respects pursuant to this Agreement, the applicable
Commitment Confirmation Letter and the Guides.
SECTION 9. TERMINATION OF SUSPENSION UPON DEFAULT.
--------------------------------------
Upon the occurrence of a Default under either of the Guides,
Purchaser shall have the right, at its option and in its sole discretion,
to suspend the selling privileges of the Company or to terminate this
Agreement, in addition to whatever rights Purchaser may have at law or in
equity to damages, including injunctive relief and specific performance.
Purchaser shall also have the right to terminate this Agreement without
cause by giving thirty (30) days prior written notice to the Company. In
the event Purchaser terminates this Agreement, the Company shall not be
relieved of its servicing obligations, if any, unless expressly terminated
in accordance with the FUNB Servicer Guide. Purchaser may terminate this
Agreement after a suspension. A termination of this Agreement or suspension
of the selling privileges of the Company due to a Default shall terminate
or suspend any outstanding obligations of Purchaser to purchase mortgage
loans from the Company; provided however, a termination of this Agreement
without cause upon
FUNB __________________________________________________________________________
Page 4 September 20, 1996
FUNB ___________________________________________________________________________
the giving of notice as set forth herein shall not terminate any
outstanding obligations of Purchaser to purchase mortgage loans from the
Company. Purchaser may waive any Default, and upon any waiver, such Default
shall cease to exist. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereto except to the extent
expressly waived.
SECTION 10. MISCELLANEOUS PROVISIONS.
------------------------
(a) Amendment. Except as provided in Section 4 concerning
---------
the Guides and Section 3 concerning the Commitment Confirmation Letters,
this Agreement may be amended from time to time by the Company and the
Purchaser solely by written agreement signed by the Company and the
Purchaser.
(b) Governing Law. This Agreement shall be governed by,
-------------
construed and interpreted in accordance with the laws of the State of North
Carolina.
(c) Consent to Jurisdiction. The parties agree that all
-----------------------
legal actions and proceedings arising out of or related to this Agreement,
or the transactions contemplated hereby, shall be brought in the United
States District Court for the Western District of North Carolina or the
Mecklenburg County Superior Court, and the parties hereby waive any
objections to summons, service of process, jurisdiction over the person or
subject matter, or the venuse of the courts listed above.
(d) Reproduction of Documents. This Agreement and all
-------------------------
documents relating hereto, including without limitation (i) consents,
waivers, and modifications which may hereafter be executed, (ii) documents
received by any party at the closing, and (iii) financial statements,
certificates, and other information previously or hereafter furnished, may
be reproduced by any photographic, facsimile transmission, photostatic,
microfilm, microcard, miniature photographic, or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as
the original itself in any judicial or administrative proceeding, whether
or not the original is in existence and whether or not such reproduction
was made by a party in the regular course of business, and that any
enlargement, facsimile, or further reproduction of such reproduction shall
likewise be admissible in evidence.
(e) Notices. All demands, notices and communications
-------
hereunder shall be in writing and shall be deemed to have been duly given
if personally delivered at or mailed by registered mail, postage prepaid,
or by a nationally recognized overnight courier service, to the following:
If to the Company:
EMB Mortgage Corporation
---------------------------------------------------
0000 Xxxxxxx Xxxxxx 8th Floor
---------------------------------------------------
Xxxxx Xxxx, XX 00000
---------------------------------------------------
or such other address as may hereafter be furnished to the Purchaser in
writing by the Company, and
If to the Purchaser:
First Union National Bank of North Carolina
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000-0000
Attention: ______________________________
or such other address as may hereafter be furnished to the Company by the
Purchaser in writing.
FUNB ___________________________________________________________________________
Page 5 September20, 1996
FUNB __________________________________________________________________________
(f) Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions, or terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions, or terms of this Agreement and shall in
no way affect the validity or enforceability of the other covenants,
agreements, provisions, or terms of this Agreement or the rights of the
Purchaser hereunder.
(g) Counterparts: Successors and Assigns. This Agreement
------------------------------------
may be executed in one or more counterparts and by the different parties
hereto on separate counterparts, each of which, when so executed, shall be
deemed to be an original; such counterparts, together, shall constitute one
and the same agreement. This Agreement shall inure to the benefit of and be
binding upon the Company and the Purchaser and their respective successors
and assigns; provided, however that the Company may not, in whole or in
part, assign or otherwise transfer, sell, subcontract, pledge or grant a
security interest in any of its rights or delegate any of its duties
hereunder without the prior written consent of the Purchaser. Any such
purported or attempted transfer without the prior written consent of the
Purchaser shall be null and void. The Purchaser may sell, assign, convey,
hypothecate, pledge or in any way transfer, in whole or in part, without
restriction, its rights hereunder, including but not limited to an
assignment whereby this Agreement remains in effect between the Purchaser
and the Company as to certain Mortgage Loans but is assigned to a third
party or parties as to other Mortgage Loans.
(h) Other Agreements Superseded. This Agreement supersedes
---------------------------
all prior agreements and understandings relating to the subject matter
hereof.
(i) No Partnership. --Nothing herein contained shall be
--------------
deemed or construed to create a partnership or joint venture between the
parties hereto, and at all times the Company shall act and represent itself
solely as an independent contractor of the Purchaser.
(j) Authorized Representatives. The Purchaser shall be
--------------------------
entitled to rely without investigation that any Person holding themselves
out to be a representative of the Company for purposes of signing this
Agreement or any other document delivered in connection with this Agreement
or taking other action pursuant to the Agreement including but not limited
to oral discussions was, at the respective times of such signing or
actions, a duly elected or appointed, qualified and authorized
representative of the Company, and the execution or deliver of the
Agreement or any document pursuant to the Agreement and the taking of any
other actions, including but not limited to oral discussions, shall be
conclusive evidence of such authorization.
FUNB __________________________________________________________________________
Page 6 September 20, 1996
FUNB __________________________________________________________________________
IN WITNESS WHEREOF, the Company and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
First Union National Bank of North Carolina
By:__________________________________________
Name: Xxxxxx X. Brick
Title: President
_____________________
By:__________________________________________
Name:
Title:
FUNB __________________________________________________________________________
Page 7 September 20, 1996
FUNB __________________________________________________________________________
EXHIBITS
EXHIBIT A - SELLER/SERVICER APPLICATION
EXHIBIT B - FORM OF OFFICERS' CERTIFICATE
EXHIBIT C - FORM OF OPINION OF COUNSEL TO THE COMPANY
FUNB __________________________________________________________________________
Page 8 September 20, 1996
FUNB __________________________________________________________________________
EXHIBIT A
SELLER/SERVICER APPLICATION
__________________________________________________________________________
Instructions: Please complete the following information and return to First
Union within 90 days. Please note that your institution is referred to as
the "Company" throughout this Application. Please type all information. If
the information requested cannot be completed in the space allowed, please
use an attachment indicating that it is part of this Application and the
item it addresses.
1) SERVICER INFORMATION
A) Company Name: EMB Mortgage Corporation
---------------------------------------------------
B) Home Office Address: 0000 Xxxxxxx Xxxxxx 8th Floor
-------------------------------------------
Xxxxx Xxxx, XX 00000
-------------------------------------------
C) Mailing Address: SAME
-----------------------------------------------
_______________________________________________
D) Telephone: (714)437--0700
---------------------------------------------------
E) Tax ID#: 33--0581713
-------------------------------------------------------
F) Please attach a list of all branch offices
________________________________________________________________________________
2) TYPE OF INSTITUTION 01
-----------
01 Mortgage Company 06 State Chartered Savings Bank 11 State Credit Union
02 Federal Savings & Loan 07 Federally Chartered Commercial Bank 12 Investment Bank
03 State Savings & Loan 08 State Chartered Commercial Bank 13 Finance Company
04 Insurance Company 09 Mutual Savings Bank 14 Other - Explain
05 Federally Chartered Savings 10 Federal Credit Union
Bank
________________________________________________________________________________
3) RELATED MORTGAGE SERVICING APPROVALS
A) FNMA (Conv.)SELLER/SERVICER
Yes[_] No[X]
If Yes, #___________________________________
Date Approved:___________________________________
FUNB __________________________________________________________________________
Page 1 September 20, 1996
FUNB __________________________________________________________________________
B) FHLMC SELLER/SERVICER
Yes [_] No[X][X]
If Yes, #__________________________________
Date Approved:_____________________________
C) GNMA SELLER/SERVICER
Yes [_] No[X][X]
If Yes, #__________________________________
Date Approved:_____________________________
D) OTHER CONDUITS
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
________________________________________________________________________________
4) PRINCIPAL OFFICERS
List the top ten principal officers of the Company including those
responsible for origination and servicing.
Name Title & Responsibilities
---- ------------------------
1) Xxxxxx X. Brick President
---------------------------- -----------------------------------
2) Xxxxxxx X. Xxxxx CEO
---------------------------- -----------------------------------
3) Xxx Xxxxxxx Xx. Vice President, National
---------------------------- -----------------------------------
Operations Manager
-----------------------------------
4) Xxx Xxxxxx Vice President-Wholesale Manager
---------------------------- -----------------------------------
5) Xxxxx Xxxxxx Executive Vice President-Market
---------------------------- -----------------------------------
6) Xxxxxx Xxxxxx Manager of Servicing
---------------------------- -----------------------------------
7) Xxxxx Xxxxxxx Manager of Processing/Funding
---------------------------- -----------------------------------
8) Xxxxxxxx Xxxxxxxx Manager of Retail
---------------------------- -----------------------------------
9) Xxx Xxxxx Co-Manager of the Credit Union
---------------------------- -----------------------------------
10) Xxxxx Xxxxxxxxxxx Co-Manager of the Credit Union
---------------------------- -----------------------------------
________________________________________________________________________________
FUNB __________________________________________________________________________
Page 2 September 20, 1996
FUNB ___________________________________________________________________________
5) KEY CONTACTS: Name Phone # Fax II #
---- ------- --------
A) l) Selling Manager: Xxxxxxxx Xxxxxxxx 714--424--7741
----------------- -------------- _______________
2) Servicing Manager: _________________ ______________ _______________
3) Secondary Marketing Xxxxxx Xxxxxx 714--424--7750 714--825--0595
----------------- -------------- ---------------
Manager:
4) Underwriting Manager: C--MAC #36702--000 714--424--7726
------------------ -------------- _______________
5) Accounting Manager: Xxxx Xxxxxxx 714--424--7709 714--825--0291
------------------ -------------- --------------
B) Number of origination employees: 17
-----------------------
C) Number of loan administration employees: 6
---------------
________________________________________________________________________________
6) ORGANIZATIONAL CHANGES
Describe any major organizational changes which the Company has undergone,
are contemplated or are pending such as mergers, sales, acquisitions,
divestitures or restructuring? If none, indicate "not applicable".
NONE
-----------------------------------------------------------------
_________________________________________________________________
_________________________________________________________________
________________________________________________________________________________
7) List names of affiliated companies, their relationship, and their
institutional type, (i.e., mortgage banker, savings and loan or savings and
loan holding company, commercial bank holding company, savings, bank,
insurance company, investment bank, credit union builder, realtor or
diversified financial servicing conglomerate, etc.) and its (their)
relationship to the Company.
EMB Corporation is 100% owner of EMB Mortgage Corporation
-----------------------------------------------------------------
_________________________________________________________________
_________________________________________________________________
________________________________________________________________________________
8) INSURANCE
A) Fidelity Insurance Coverage: $ 300, 000 Name of Carrier: Reliance Insurance Company
-------- --------------------------
Deductible: $10,000 Renewal Date: 10/7/97 Policy Number: B274-6133
------ ------- ---------
Type(s): A,B,C Blanket Bond:______ Individual:_____ Direct Surety: ______ Other: ________
-----
B) Errors and Omissions Coverage: $1,000,000 Name of Carrier: American International Spec.
---------
Lines Insurance Company
Deductible: $10,000 Renewal Date: 9/20/97 Policy Number: 000-00-00
------ ------- ---------
Provides for coverage per mortgage________________________ Per Loss________________________
FUNB ___________________________________________________________________________
Page 3 September 20, 1996
FUNB ___________________________________________________________________________
C) Is a mortgage impairment, mortgagee interest or similar blanket policy
maintained?
Yes [X] No[_]
Name of Carrier: CMAC Deductible:$________________
-----------------
Renewal Date: 9/29/97 Policy Number: 36702-000
-------------------- --------------------
If no, please explain: _______________________________________________
D) Have there been any changes, reductions, or cancellations of the above
prior policies in the past twelve months?
Yes [_] No [X]
If yes,please explain: ______________________________________________
E) Do the foregoing policies protect First Union and its successors and
assigns as investor, against losses to First Union and its successors
and assigns resulting from dishonesty or fraud committed by any
partner, sole proprietor or major shareholder of the service?
Yes [_] No[_]
F) Does the policy name First Union and its successors and assigns as
investor as loss payee on payments for losses to First Union from acts
by the insured? Yes [_] No [_]
G) Does the insurance coverage listed meet all First Union's
requirements? Yes [_] No [_]
________________________________________________________________________________
9) LEGAL STATUS
List on an attachment any pending or threatened litigation; any taxes
assessed or proposed; any injunctions, consent decrees, court orders,
settlement agreements or other similar obligations; any other contingent or
accrued liabilities.
________________________________________________________________________________
10) AUDIT REQUIREMENTS
A) Attach the Company's year-end audited financial statements for the
prior two fiscal years. If such statements are not currently
available, the Company will deliver them to First Union or before
_____________________________________
B) Please provide copies of the most recent of the following items:
- Examination Report in conformity with the Uniform Single Audit
Program for Mortgage Bankers
- Parent company's most recent audited financial statement (if
applicable)
- Most recent audit letters/reviews of agencies (FHLMC, FNMA, HUD &
other)
C) In the past twelve months have any of the Company's selling or
servicing contracts been suspended or terminated? Yes [_] No [X]
If yes, please explain: ______________________________________________
FUNB ___________________________________________________________________________
Page 4 September 20, 1996
FUNB ___________________________________________________________________________
D) In the past twelve months has the Company transferred any servicing
(including any transfers to affiliate(s))? Yes [_] No[_]
If yes, please explain:_______________________________________________
E) List name and address of any subservicer(s) that the Company is
currently using or contemplates using to perform servicing for First
Union.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
________________________________________________________________________________
11) QUALITY CONTROL PLAN
Attach a current copy of the Company's Quality Control Plan
________________________________________________________________________________
12) WAREHOUSE LINE
A) List the name of the bank(s) providing the Company's warehouse
line(s). Please list the contact names at the banks involved.
Bank Contact Phone #
---- ------- -------
ICI Xxx Xxxxxx 800--329--3038
-------------- --------------- ----------------
______________ _______________ ________________
______________ _______________ ________________
B) Total amount of the warehouse line(s): $______________
________________________________________________________________________________
13) ORIGINATION VOLUME
Total originations ($ volume) for previous fiscal year:
Xxxxxxxxxx/
0-Xxxx 0-0 Xxxx Xxxxxxxxxxx XXXXX
Xx-XX/XX ________ __________ ____________ __________
Conventional 73,892,884 1,685,000 75,577,884.00
---------- __________ ------------ -------------
Total ________ __________ ____________ __________
________________________________________________________________________________
14) SERVICING PORTFOLIO
Mortgage Servicing Portfolio as of: 0 $(____________)
----------
FUNB ___________________________________________________________________________
Page 5 September 20, 1996
FUNB ___________________________________________________________________________
Fixed Rate ARMs Total
---------- ---- -----
$ Volume # Loans # Volume # Loans $ Volume # Loans
-------- ------- -------- ------- -------- -------
FNMA
FHLMC
GNMA
Held in
Portfolio
Affiliate
First Union
Largest Private
2nd Largest
Private
3rd Largest
Private
Other Private
Total -------- ------- -------- ------- -------- -------
Please attach a list of the 10 largest concentrations by state, in terms of
dollar volume and number of loans.
________________________________________________________________________________
15) DELINQUENCIES AND FORECLOSURES
Please indicate the most recent delinquency and foreclosure ratios on your
total servicing portfolio for all investors excluding loans held in
portfolio, as of___________________________
BY PERCENT OF TOTAL NUMBER OF LOANS:
FHA/VA CONVENTIONAL TOTAL
DELINQUENCIES
-------------
60 days ________________
90 days
Total
FUNB ___________________________________________________________________________
Page 6 September 20, 1996
FUNB ___________________________________________________________________________
FORECLOSURES ___________ ___________ None
--------
BY PERCENT OF TOTAL DOLLAR VOLUME OF LOANS:
FHA/VA CONVENTIONAL TOTAL
DELINQUENCIES
-------------
60 days ___________ ___________ ___________
90 days ___________ ___________ ___________
Total ___________ ___________ ___________
FORECLOSURES 0
----------- ___________ ___________
________________________________________________________________________________
16) BANK ACCOUNTS
A) As described in the attachment, please verify each account number and
depository institution established to maintain monies for First Union
loans.
B) Are there any exceptions? Yes [_] No [_]
If yes, please list the exceptions on an attachment.
________________________________________________________________________________
As an officer of the Company, I certify that all the above statements and
any attachments and explanatory material provided are true, correct and
complete as of the date hereof.
OFFICER SIGNATURE: ____________________________
OFFICER NAME: Xxxxxx Brick
----------------------------
TITLE: President
----------------------------
DATE: ____________________________
FUNB ___________________________________________________________________________
Page 7 September 20, 1996
FUNB ___________________________________________________________________________
EXHIBIT B
OFFICERS' CERTIFICATE
SEPTEMBER ,1997
----------- -
I, Xxxxxx Brick, hereby certify to First Union National Bank of North
------------
Carolina (the "Purchaser"), that I am the duly elected President of EMB
--------- ---
Mortgage Corp. (the "Company") and further certify as follows:
-------------
1. Set forth below is a true and correct copy of resolutions
authorizing the Company to sell and/or service the Mortgage Loans
subject to the Mortgage Loan Seller/Servicing Agreement between
the Company and the Purchaser (the "Agreement") and the FUNB
Seller Guide and the FUNB Servicer Guide, as the case may be:
The Company is hereby authorized to sell Mortgage Loans
to First Union National Bank of North Carolina ("Purchaser") from
time to time on a servicing released or servicing retained basis
pursuant to the terms of the Mortgage Loan Seller/Servicer
Agreement (the "Agreement"), all as more fully set forth in the
Agreement; and further the president, any vice president, any
assistant vice president, secretary or assistant secretary of the
Company are hereby authorized in the name of and on behalf of the
Company to enter into, execute, deliver and perform the
agreement, and the execution of the Agreement shall be conclusive
evidence that the Agreement is acceptable to and binding on the
Company; and further that the president, any vice president, any
assistant vice president, secretary or assistant secretary of the
Company are authorized to execute and deliver such further
certificates, documents, instruments and agreements or take such
other actions as are reasonably necessary and appropriate to
carry out the foregoing resolutions.
2. Each of the following persons who as an officer or representative
of the Company, signed the Agreement and any other document
delivered in connection with the Agreement, was, at the
respective times of such signing and delivery, and is now duly
elected or appointed, qualified, and acting as such officer or
representative, and the signature of such person, as set forth
below opposite his or her name, is his or her genuine signature.
3. Each person described in Section 10(j) of the Agreement,
including but not limited to the following persons, are the
authorized Representatives (as defined in the guide) of the
Company:
Name Title Signature
---- ----- ---------
Xxxxxx Brick President
---------------- ------------- _________________
Xxxxxxx X. Xxxxx CEO
---------------- ------------- _________________
---------------- ------------- _________________
---------------- ------------- _________________
4. The sale and delivery of the Mortgage Loans from the Company to
the Purchaser is being made in good faith and without intent to
hinder, delay, or defraud present or future creditors of the
Company or to prefer one creditor of the Company to another.
5. As a result of the sale and delivery of the Mortgage Loans by the
Company to the Purchaser, the Company has neither committed an
act of insolvency nor will it be insolvent, and the Company has
no intent or belief that it will incur debts beyond its ability
to pay such debts as they mature.
6. The Company is not engaged or about to be engaged in business or
a transaction from which the property remaining with the Company
is unreasonably small capital.
7. There exists no default or breach under the Agreement on the
date hereof.
Capitalized terms used herein and not otherwise defined are, unless
the context otherwise requires, used as defined in the Agreement.
FUNB ___________________________________________________________________________
Page 1 September 20, 1996
FUNB ___________________________________________________________________________
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
executed by its duly authorized officer as of the day and year first above
written.
By: __________________________
Name:______________________
Title:_____________________
I, ____________________, _____________________ of ____________________
______________________________________________________________ (the "Company")
hereby certify that ________________________________________ is the duly
elected, qualified and acting _____________________ of the Company and that the
signature appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunder signed my name as of the day and
year first above written.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
FUNB ___________________________________________________________________________
Page 2 September 20, 1996
FUNB ___________________________________________________________________________
EXHIBIT C
FORM OF OPINION OF COUNSEL TO THE COMPANY
The opinion of counsel to the Company called for by the Agreement
shall be dated the Effective Date, shall be addressed to First Union
National Bank of North Carolina, shall be satisfactory in form and
substance to First Union National Bank of North Carolina and its counsel,
and together with appropriate assumptions and limitations shall be to the
effect that:
1. The Company has been duly organized under the laws of the State
of_________________ and is validly existing and in good standing under such
laws as of the date hereof. The Company has the necessary power and
authority and the legal right to own its.properties and assets and to
transact the business in which it is presently engaged and to own, transfer
and convey mortgage loans to the Purchaser.
2. The Company has the necessary power and authority and approvals
and is duly authorized to execute, deliver and perform the Agreement and
all other agreements or instruments contemplated thereby (the "Transfer
Documents") to which it is a party and to perform the obligations
contemplated thereby.
3. Neither the execution and delivery of the Transfer Documents to
which the Company is a party, nor the consummation of the transactions
contemplated by the Transfer Documents, (i) will violate, result in a
breach of, constitute a default under or conflict with any law, rule,
regulation, judgment, license, order, decree, injunction or permit, or any
indenture, loan agreement, mortgage, deed of trust, or other agreement or
instrument to which the Company is a party or by which the Company or its
assets may be bound or to which the Company may be subject, or (ii) violate
any provision of the Company's articles of incorporation or bylaws or (iii)
result in the imposition of any lien, charge or encumbrance upon the
Company's assets or upon the Mortgage Loans. No consent, approval,
authorization, license or order of any court, governmental authority or
third party is required in connection with the execution and delivery by
the Company of the Transfer Documents to which it is a party, or for the
consummation of the transactions contemplated thereby.
4. The Transfer Documents to which the Company is a party have been
duly and validly authorized, executed and delivered by the Company and are
the legal, valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting the enforcement of creditors' rights generally and by applicable
laws and principles of equity that may affect the availability of remedies
(whether such enforcement is considered in a proceeding in equity or at
law).
5. There are no actions, suits or legal, equitable, arbitration or
administrative proceedings pending, or threatened or expected, against the
Company or any of its officers or directors, which (i) seek to limit,
restrict, or prevent the consummation of the transactions contemplated in
the Transfer Documents, (ii) seek to prevent the sale of the Mortgage Loans
or the consummation of any of the other transactions contemplated by the
Transaction Documents or (iii) either in any one instance or in the
aggregate are likely to result in a material adverse change in the
business, operations, financial condition, properties, or assets of the
Company, or in any material impairment of the right or ability of the
Company to carry on its business substantially as now conducted, or in any
material liability on the part of the Company.
FUNB ___________________________________________________________________________
Page 1 September 20, 1996
FUNB ___________________________________________________________________________
6. Immediately upon the transfer and assignment of the Mortgage
Loans to the Purchaser by the Company in the manner contemplated in the
FUNB Seller Guide, the Purchaser shall have good and indefeasible title to,
and the Purchaser shall be the sole owner of, and shall obtain all right,
title and interest of the Company in and to the Mortgage Loans, free and
clear of any claim, lien, charge, mortgage, encumbrance or rights of the
Company, creditors of the Company or others, subject to the proper
recordation of assignments of mortgages securing the Mortgage Loans.
7. The sale of the Mortgage Loans as and in the manner contemplated
in the Agreement is sufficient fully to transfer to the Purchaser all
right, title and interest of the Company as note holder and mortgagee.
FUNB ___________________________________________________________________________
Page 2 September 20, 1996
