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EXHIBIT 10.18
GMAC MORTGAGE CORPORATION SELLER'S AGREEMENT
RESIDENTIAL MORTGAGE LOANS
BETWEEN
E-LOAN, INC.
"SELLER"
AND
GMAC MORTGAGE CORPORATION
"PURCHASER"
DATED AS OF
JULY 1, 1998
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION Page
Definitions 1
ARTICLE II
SALE AND DELIVERY OF MORTGAGE LOANS
2.1 Offer 4
2.2 Acceptance 4
2.3 Exclusions 4
2.4 Closing 4
2.5 Computation; Adjustment 5
2.6 Refund of Premium 5
ARTICLE III
GENERAL REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 Due Organization and Good Standing 6
3.2 Authority and Capacity 6
3.3 Effective Agreement 6
3.4 Compliance with Contracts and Regulations 6
3.5 Sale Treatment 6
3.6 Litigation; Compliance with Laws 6
3.7 Statements Made 7
3.8 Bulk Sales 7
3.9 Compliance 7
3.10 Agency Approvals 7
3.11 Financial Statements 7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER RELATING TO MORTGAGE LOANS
4.1 Origination of Mortgage Loans 8
4.2 Information 8
4.3 Mortgage File 8
4.4 Ownership of Mortgage Loans 8
4.5 Compliance with Applicable Law 8
4.6 Right of Rescission 8
4.7 Enforceability; No Setoff 8
4.8 Enforceable Provisions 8
4.9 Lien Priority 9
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SECTION Page
4.10 Assignment of Mortgage 9
4.11 No Modifications 9
4.12 Mortgage In Effect 9
4.13 No Default 9
4.14 Trustee 9
4.15 Title Insurance 9
4.16 Hazard and Flood Insurance 10
4.17 Appraisals 10
4.18 No Condemnation 10
4.19 Property Condition 10
4.20 Senior Lienholders 10
4.21 Proceeds Disbursed 10
4.22 Mechanic's Liens 10
4.23 No Accrued Liabilities 11
4.24 No Adverse Selection 11
4.25 Acceptable Investment 11
4.26 Environmental Conditions 11
4.27 Fraud 11
4.28 Reverse Mortgages 11
4.29 Qualified Originator 11
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
5.1 Due Organization and Good Standing 12
5.2 Authority and Capacity 12
5.3 Effective Agreement 12
5.4 Litigation 12
5.5 Consent 12
5.6 Agency Approval 12
ARTICLE VI
COVENANTS
6.1 Further Assurances and Corrective Instruments 13
6.2 Transfer of Insurance 13
6.3 Insurance Prepayment 13
6.4 Post-closing Payments 13
6.5 No Solicitation 13
6.6 Use of Name 13
6.7 Limited Power of Attorney 13
6.8 Public Announcement 14
6.9 Certain Notifications 14
6.10 Post-closing Reporting 14
6.11 Ongoing Due Diligence Review 15
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SECTION Page
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
7.1 Representations 16
7.2 Compliance with this Agreement 16
7.3 Documentation and Files; Compliance 16
7.4 Corporate Resolution 16
7.5 Opinion 16
7.6 Officer's Certificate 16
7.7 Material Adverse Change 16
ARTICLE VIII
REMEDIES
8.1 Indemnification by Seller 17
8.2 Repurchase 17
8.3 Indemnification by Purchaser 18
8.4 Notice of Claim 18
8.5 Limitation of Liability 18
ARTICLE IX
TERMINATION
9.1 Termination without Cause 19
9.1 Termination without Cause 19
9.3 Seller's Termination for Cause 19
9.4 Effect of Termination 20
9.5 Survival of Obligations and Covenants 20
ARTICLE X
MISCELLANEOUS
10.1 Costs and Expenses 21
10.2 Confidentiality of Information 21
10.3 Broker's Fees 21
10.4 Survival 21
10.5 Notices 21
10.6 Applicable Law 22
10.7 Jurisdiction and Venue 22
10.8 Integration 22
10.9 Modification 22
10.10 Third Party Beneficiaries 22
10.11 Construction 22
10.12 Captions 22
10.13 Counterparts 22
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SECTION Page
10.14 Attorneys' Fees 23
10.15 Binding Effect and Assignment 23
10.16 Incorporation of Exhibits 23
EXHIBITS
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EXHIBIT A Mortgage Loan Schedule
EXHIBIT B Contents of Mortgage File
EXHIBIT C Purchaser's Guidelines
EXHIBIT D Form of Corporate Resolution
EXHIBIT E Form of Opinion of Counsel
EXHIBIT F Form of Officer's Certificate
EXHIBIT G GMAC Mortgage Servicing Released Delivery Transmittal
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GMAC MORTGAGE CORPORATION SELLER'S AGREEMENT
(MORTGAGE LOANS - FLOW DELIVERY)
GMAC MORTGAGE CORPORATION SELLER'S AGREEMENT (the "Agreement"), dated as
of June 29, 1998 by and between E-LOAN, INC. ("Seller"), a Massachusetts
corporation with its principal office located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and GMAC MORTGAGE CORPORATION ("Purchaser"), a
Pennsylvania corporation with its principal office located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS
1. Seller is engaged in the origination and sale of Mortgage Loans (as
hereinafter defined); and
2. Seller desires to sell on a servicing-released basis, from time to
time, and Purchaser desires to purchase, from time to time, all right, title,
and interest in and to Mortgage Loans originated by Seller in accordance with
the terms and conditions of this Agreement. This Agreement shall apply to every
sale transaction and transfer between Purchaser and Seller with respect to
Mortgage Loans, except as otherwise agreed by the parties.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
All words or phrases defined in this Article I (except as herein
otherwise expressly provided or unless the context otherwise requires) shall,
for the purposes of this Agreement, have the respective meanings specified in
this Article.
1.1 AFFILIATE means with respect to any party hereto, any person or
entity which controls, is controlled by, or is under common control with, such
party.
1.2 AGENCIES means The Federal National Mortgage Association and The
Federal Home Loan Mortgage Corporation, The Department of Housing and Urban
Development, and the Government National Mortgage Association or any successor
organizations thereto.
1.3 AGREEMENT means this GMAC Mortgage Corporation Seller's Agreement
and all exhibits, schedules, amendments and supplements attached hereto, and any
written amendments or modifications hereto signed by both Seller and Purchaser.
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1.4 APPLICABLE LAW means all applicable federal, state and local legal
and regulatory requirements (including statutes, rules, regulations and
ordinances), all other requirements and guidelines of each governmental agency,
board, commission, instrumentality and other governmental body or officer having
jurisdiction, and all applicable judicial and administrative judgments, orders,
stipulations, awards, writs and injunctions. Applicable Law includes without
limitation applicable provisions of the Equal Credit Opportunity Act, the
Truth-in-Lending Act, the Real Estate Settlement Procedures Act, the Flood
Disaster Protection Act, the Fair Credit Reporting Act, the Fair Housing Act,
the Home Mortgage Disclosure Act and regulations promulgated with respect
thereto.
1.5 ASSIGNMENT OF MORTGAGE means an assignment of all of Seller's right,
title and interest in and to a Mortgage, in a form acceptable to Purchaser, to
be executed by Seller in connection with each Mortgage Loan purchased hereunder.
1.6 BUSINESS DAY means a day of the week other than Saturday, Sunday, or
a day which is a legal holiday in the Commonwealth of Pennsylvania, or the State
of Florida.
1.7 CLOSING DATE means, with respect to each purchase of Mortgage Loans
hereunder, the date on which such purchase shall occur and the applicable
Purchase Price shall be paid, all as specified in the related Confirmation.
1.8 CONFIRMATION means a written confirmation letter delivered by
Purchaser to Seller which shall provide, with respect to a purchase of Mortgage
Loans hereunder, a Mortgage Loan Schedule, the Purchase Price to be paid by
Purchaser for each Eligible Mortgage Loan to be purchased, additional terms and
conditions pertaining to the purchase of Eligible Mortgage
Loans, and the scheduled Closing Date.
1.9 CUTOFF DATE means, with respect to a purchase of Mortgage Loans, the
date on which on which the unpaid principal balance of such Mortgage Loans shall
be fixed for the purpose of calculating the Purchase Price, all as specified in
the related Confirmation.
1.10 DEFECT means a determination by Purchaser, in its sole judgment,
that with respect to a Mortgage Loan (a) any representation or warranty made by
Seller herein is untrue or incorrect in any respect; (b) Seller has failed to
comply with any covenant herein contained; (c) any document constituting a part
of the Mortgage Loan Documents is defective, inaccurate or incomplete in any
respect, and/or (d) any closing document shall not be valid and binding.
1.11 ELIGIBLE MORTGAGE LOAN means a Mortgage Loan which complies, in all
material respects, with Purchaser's Guidelines.
1.12 MORTGAGE means a valid and enforceable mortgage, deed of trust, or
other security instrument creating a first or second lien, as the case may be,
upon described real property improved by a one-to-four family dwelling which
secures a Mortgage Note.
1.13 MORTGAGE FILE means the Mortgage Loan Documents, records and other
items referred to in Exhibit B attached hereto pertaining to a particular
Mortgage Loan. Except to the extent required by Applicable Law, the Mortgage
File may be retained in microfilm, microfiche, optical storage or magnetic media
in lieu of hard copy.
1.14 MORTGAGE LOAN means an individual mortgage loan or home equity line
of credit originated by Seller which is secured by an interest in residential (1
to 4 family) real estate, and which is the subject of a purchase under this
Agreement.
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1.15 MORTGAGE LOAN DOCUMENTS means the Mortgage Notes, Mortgages and all
accompanying instruments, insurance policies, if applicable, evidence of
compliance with Applicable Law, and other writings that document, evidence or
relate to the Mortgage Loans purchased hereunder which include, without
limitation, all documents required to be delivered by Seller to Purchaser
pursuant to the terms of this Agreement, the related Confirmation and
Purchaser's Guidelines.
1.16 MORTGAGE NOTE means a written promise by a Mortgagor to pay a sum
of money at a stated interest rate during a specified term that evidences a
Mortgage Loan.
1.17 MORTGAGE LOAN SCHEDULE means a list of Mortgage Loans to be
purchased by Purchaser, as may be supplemented or amended from time to time, the
form of which is attached hereto as Exhibit A.
1.18 MORTGAGED PROPERTY means the real property and improvements subject
to a Mortgage, constituting security for repayment of the debt evidenced by the
related Mortgage Note.
1.19 MORTGAGOR means the Mortgagor on a Mortgage Note.
1.20 PURCHASE PRICE means the purchase price to be paid with respect to
a Mortgage Loan, which shall be calculated, as of the related Closing Date, as
the sum of (a) the unpaid principal balance of the Mortgage Loan as of the
Cutoff Date, (b) any accrued and unpaid interest thereon, and (c) any purchase
premium or discount which shall be specified in the related Confirmation.
1.21 PURCHASER'S GUIDELINES means the Purchaser's written guidelines
attached as Exhibit C hereto with respect to loan terms, minimum loan amount,
underwriting criteria, sale criteria, and other matters relating to the
eligibility of loans for purchase by Purchaser, which shall include without
limitation applicable requirements of the Agencies, and which may be
supplemented or amended in writing from time to time.
1.22 REPURCHASE PRICE means the sum of (a) the unpaid principal balance
of a Mortgage Loan as of the date of repurchase, (b) all accrued and unpaid
interest thereon calculated at the Mortgage Note rate through the last day of
the month of repurchase, (c) any and all costs and expenses incurred by
Purchaser with respect to such Mortgage Loan, including without limitation
reasonable attorneys' fees and expenses incurred by Purchaser to secure a
priority lien position with respect to the Mortgage Loan, and (d) any premium
paid by Purchaser as part of the Purchase Price for such Mortgage Loan.
1.23 WIRE TRANSFER means (a) a bank wire transfer of immediately
available funds or (b) an ACH transaction resulting in availability of funds on
the same date as would have been the case had a bank wire transfer of
immediately available funds been employed.
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ARTICLE II
SALE AND DELIVERY OF MORTGAGE LOANS
2.1 OFFER. From time to time during the term of this Agreement, Seller
shall submit, for Purchaser's review and approval, (a) an offer to sell mortgage
loans having a specified aggregate unpaid principal balance on a
servicing-released basis under the terms of this Agreement, or (b) a proposed
Mortgage Loan Schedule containing information concerning one or more mortgage
loans offered by Seller for sale on a servicing-released basis under the terms
of this Agreement. Such information shall be furnished in accordance with the
requirements of Purchaser's Guidelines and in a format acceptable to Purchaser.
2.2 ACCEPTANCE. Upon receipt and review of any proposed Mortgage Loan
Schedule, and any related information requested by Purchaser, Purchaser shall,
in its absolute and sole discretion, approve or decline each loan for purchase.
Within a mutually agreeable period of time, Purchaser shall issue a Confirmation
with respect to the Eligible Mortgage Loans to be purchased by Purchaser, which
shall include, without limitation, a preliminary Mortgage Loan Schedule which
shall identify such Eligible Mortgage Loans, the Purchase Price to be paid for
each Eligible Mortgage Loan, Purchaser's delivery requirements, and the
scheduled Closing Date. The Confirmation shall also provide for liquidated
damages in the event that Seller should fail to deliver the required Mortgage
Loans. Only loans which are Eligible Mortgage Loans shall be accepted for
purchase by Purchaser. When executed by both parties, the Confirmation shall
constitute an acceptance of Seller's offer, and shall be incorporated herein and
made part of this Agreement. Notwithstanding anything to the contrary contained
in this Agreement, in the absence of a binding Confirmation issued by Purchaser
with respect to an Eligible Mortgage Loan and accepted by Seller in a timely
fashion, Purchaser shall have no obligation to purchase any loan offered by
Seller.
2.3 EXCLUSIONS. At any time prior to the Closing Date, either Seller or
Purchaser shall have the right to exclude from the related sale transaction any
loan subject to a Confirmation, in the event that either party should determine
that such loan will not be an Eligible Mortgage Loan as of the related Closing
Date.
2.4 CLOSING. On each Closing Date hereunder:
(a) No later than two (2) Business Days prior to such Closing Date,
Seller shall deliver to Purchaser a final Mortgage Loan Schedule acceptable to
Purchaser, and, with respect to each Mortgage Loan, and the related Mortgage
Loan Documents specified in Exhibit B hereto, including a duly executed
Assignment of Mortgage, Seller shall pay all costs of preparing and furnishing
to Purchaser all Mortgage Files, including original or certified copies of the
respective Mortgage Loan Documents and the Assignments of Mortgage.
(b) Subject to, and upon the terms and conditions of, this Agreement,
Seller shall sell, transfer, assign, transfer, convey and deliver to Purchaser,
and Purchaser shall purchase, all right, title and interest in and to the
Mortgage Loans.
(c) The Purchaser shall deposit funds in an amount equal to the Purchase
Price by Wire Transfer, (i) in accordance with the terms of any bailee letter
delivered to Purchaser by Seller, (ii) in the
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absence of any such bailee letter, to a bank account to be designated in writing
by Seller, or (iii) as otherwise agreed upon in writing by the parties.
(d) Upon payment of the Purchase Price, title to the Mortgage Loans,
Mortgage Loan Documents, and all rights, benefits, collateral, payments,
recoveries, proceeds and obligations arising from or in connection with the
Mortgage Loans shall vest in Purchaser.
2.5 COMPUTATION; ADJUSTMENT. It is understood and agreed that:
(a) All wiring instructions and Purchase Price information necessary to
effect payment of the Purchase Price shall be provided to Purchaser at least two
Business Days prior to the date of payment.
(b) If the principal balance of any of the Mortgage Loans used in
computing the payment of the Purchase Price shall be found to be incorrectly
computed, the Purchase Price shall be promptly and appropriately adjusted and
payment promptly made by the appropriate party.
2.6 REFUND OF PREMIUM. In the event that a purchase premium is paid by
the Purchaser to the Seller with respect to a Mortgage Loan and such Mortgage
Loan is prepaid in full, within a six month period following the related Closing
Date, by the related Mortgagor, other than through refinancing by Purchaser or
any Affiliate of Purchaser, Seller shall, upon demand by Purchaser, refund to
Purchaser such purchase premium.
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ARTICLE III
GENERAL REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Purchaser to enter into this Agreement, Seller
represents and warrants as follows, as of each Closing Date:
3.1 DUE ORGANIZATION AND GOOD STANDING. Seller is a corporation validly
existing and in good standing under the laws of the state of its incorporation
during the time of its activities with respect to the Mortgage Loans. To the
extent required by Applicable Law, Seller is properly licensed and qualified to
transact business in all appropriate jurisdictions and to conduct all activities
performed with respect to the origination of the Mortgage Loans.
3.2 AUTHORITY AND CAPACITY. Seller has all requisite corporate power,
authority and capacity to enter into this Agreement and to perform the
obligations required of it hereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have each
been duly and validly authorized by all necessary corporate action. This
Agreement constitutes the valid and legally binding agreement of Seller
enforceable in accordance with its terms, subject to bankruptcy laws and other
similar laws of general application affecting rights of creditors and subject to
the application of the rules of equity, including those respecting the
availability of specific performance.
3.3 EFFECTIVE AGREEMENT. The execution, delivery and performance of this
Agreement by Seller, its compliance with the terms hereof and consummation of
the transactions contemplated hereby (assuming receipt of the various consents
required pursuant to this Agreement) will not violate, conflict with, result in
a breach of, constitute a default under, be prohibited by or require any
additional approval under its certificate of incorporation, bylaws, or any
instrument or agreement to which it is a party or by which it is bound or which
affects the Mortgage Loan, or under Applicable Law.
3.4 COMPLIANCE WITH CONTRACTS AND REGULATIONS. Prior to each Closing
Date, Seller will have complied with all material obligations under all
contracts to which it was a party, and under Applicable Law, to the extent that
such obligations might affect any of the Mortgage Loans being purchased by
Purchaser hereunder. Seller has done and Seller will do, no act or thing which
may adversely affect the Mortgage Loans.
3.5 SALE TREATMENT. The sale of each Mortgage Loan shall be reflected on
Seller's balance sheet and other financial statements as a sale of assets by
Seller, Seller will not take any action or omit to take any action which would
cause the transfer of the Mortgage Loans to Purchaser to be treated as anything
other than a sale to Purchaser of all of Seller's right, title and interest in
and to each Mortgage Loan.
3.6 LITIGATION; COMPLIANCE WITH LAWS. There is no litigation, proceeding
or governmental investigation pending, or any order, injunction or decree
outstanding which might materially affect any of the Mortgage Loans.
Additionally, there is no litigation, proceeding or governmental investigation
existing or pending or, to the knowledge of Seller threatened, or any order,
injunction or decree outstanding against or relating to Seller, that has not
been disclosed by Seller to Purchaser or its counsel in writing prior to the
execution of this Agreement, which could have a material adverse effect upon the
Mortgage Loans, nor does Seller know of any basis for any such litigation,
proceeding, or governmental investigation. Seller has not violated any
applicable law, regulation, ordinance, order, injunction or decree, or any other
requirement
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of any governmental body or court, which may materially affect any of the
Mortgage Loans or the Servicing.
3.7 STATEMENTS MADE. No representation, warranty or written statement
made by Seller in this Agreement or in any exhibit, schedule, written statement
or certificate furnished to Purchaser in connection with the transactions
contemplated hereby by Seller contains or will contain any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
contained herein or therein not misleading.
3.8 BULK SALES. The transfer, assignment and conveyance of Mortgage
Loans by Seller pursuant to this Agreement are in the ordinary course of
Sellers' business and are not subject to the bulk transfer or any similar
statutory provisions in effect in any applicable jurisdiction. Seller is not
transferring the Mortgage Loans with an actual intent to hinder, delay or
defraud any of its creditors. Seller is solvent and will not be rendered
insolvent by the sale of any Mortgage Loans.
3.9 COMPLIANCE. The sale, transfer, assignment and conveyance of the
Mortgage Loans by Seller to Purchaser pursuant to this Agreement does not and
shall not violate Applicable
Law or the terms of any license held by Seller.
3.10 AGENCY APPROVAL. Seller is an approved seller/servicer for either
one or both of the Agencies in good standing and is a mortgagee approved by the
Secretary of the U.S. Department of Housing and Urban Development pursuant to
Section 203 of the National Housing
Act.
3.11 FINANCIAL STATEMENTS. Seller's financial statements furnished to
Purchaser were prepared in accordance with generally accepted accounting
principles consistently applied, and fully and fairly represent the financial
condition of Seller as of the respective dates thereof, and the results of
operations for the respective periods indicated therein, and there has been no
material adverse change in the financial condition or business of Seller since
the date of the last of such financial statements.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER RELATING TO MORTGAGE LOANS
As further inducement to Purchaser to enter into this Agreement, Seller
represents and warrants to Purchaser as of each Closing Date, with respect to
each Mortgage Loan sold and transferred to Purchaser thereon, as follows:
4.1 ORIGINATION OF MORTGAGE LOANS. Except as disclosed in writing to
Purchaser and accepted by Purchaser prior to the Closing Date, each Mortgage
Loan has been originated in accordance with applicable Purchaser's Guidelines
and the terms and conditions of the applicable Confirmation.
4.2 INFORMATION. All information set forth as to each Mortgage Loan in
each Mortgage Loan Schedule, is true and correct as of the date thereof. All
other information furnished to Purchaser in writing by Seller with respect to
the Mortgage Loan is true and correct.
4.3 MORTGAGE FILE. For each Mortgage Loan, the related Mortgage File
contains each of the documents and instruments specified to be included therein.
4.4 OWNERSHIP OF MORTGAGE LOANS. Except with respect to the liens of
certain warehouse lenders, as identified in Schedule 4.4 hereto, (a) Seller is
the sole owner of the Mortgage Loan and has good and marketable title thereto,
and has the right to assign, sell and transfer the Mortgage Loan to Purchaser
free and clear of any encumbrance, lien, pledge, charge, claim or security
interest, and (b) Seller has not sold, assigned or otherwise transferred any
right or interest in or to the Mortgage Loan and has not pledged the Mortgage
Loan as collateral for any debt or other purpose.
4.5 COMPLIANCE WITH APPLICABLE LAW. Each Mortgage Loan has been
originated and, where applicable, serviced, in accordance with Applicable Law.
Each Mortgage Loan meets or its exempt from Applicable Law and/or other
requirements pertaining to usury, and the Mortgage Loan is not usurious. The
forms of the related Mortgage Note, Mortgage, and other Mortgage Loan Documents
are acceptable to the Agencies and comply with Applicable Law. The originator of
each Mortgage Loan, whether Seller or any other entity, was duly licensed to
participate in the making of such loan to the extent required by Applicable Law.
4.6 RIGHT OF RESCISSION. Any applicable period during which the
Mortgagor may rescind the Mortgage Loan has expired.
4.7 ENFORCEABILITY; NO SETOFF. All parties to each Mortgage Note and
Mortgage had legal capacity to enter into the respective Mortgage Loan and to
execute and deliver the Mortgage Note and the Mortgage, and no Mortgagor has
been released in whole or in part from any liability under the Mortgage Note.
The Mortgage Note and the Mortgage have been duly and properly executed and
delivered by such parties, and are in every respect genuine and each is the
legal, valid and binding obligation of the maker thereof and is not subject to
any discount, allowance, setoff, counterclaim, presently pending bankruptcy, or
other defenses.
4.8 ENFORCEABLE PROVISIONS. The Mortgage Note and Mortgage contain
customary, valid, legal and enforceable provisions such as to render the rights
and remedies of the holder thereof adequate for the realization against the
mortgage property of the benefits of the security created thereby. The Mortgage
Note and Mortgage contain a provision for the acceleration of the payment of the
unpaid
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principal balance of the Mortgage Loan in the event that the related real
property is sold without the prior consent of the mortgage thereunder.
4.9 LIEN PRIORITY. Each Mortgage Loan is secured by a valid, enforceable
Mortgage lien, of the agreed-upon priority, on the fee simple title to the
related real property, and the Mortgage has been duly and properly filed,
recorded or otherwise perfected in accordance with Applicable Law in order to
give constructive notice thereof to all subsequent purchasers or encumbrances of
the Mortgaged Property.
4.10 ASSIGNMENT OF MORTGAGE. Each Assignment of Mortgage is in
recordable form and is acceptable for recording under Applicable Law. The
endorsement of each Mortgage Note and the delivery to Purchaser of the original
endorsed Mortgage Note and of the related Assignment of Mortgage are sufficient
to permit Purchaser to avail itself of all protection available under Applicable
Law against the claims of any present of future creditors of Seller, and are
sufficient to prevent any other sale, transfer, assignment, pledge or
hypothecation of the Mortgage and the Mortgage Note by the Seller from being
enforceable.
4.11 NO MODIFICATION. The terms, covenants and conditions of each
Mortgage Loan have not been waived, altered, impaired or modified in any
respect. The monthly payments of each Mortgage Loan, whether fixed or adjusted
from time to time under the terms of the Note, are sufficient to amortize the
original principal balance over the original term and to pay
interest in arrears at the interest rate on the Note.
4.12 MORTGAGE IN EFFECT. The Mortgage securing any Mortgage Loan has not
been satisfied, released, canceled, deferred or subordinated, in whole or in
part, and the Real Property has not been released from the lien of the Mortgage,
in whole or in part, nor has any instrument been executed that would affect any
satisfaction, release, cancellation, subordination, deferral or rescission.
4.13 NO DEFAULT. All payments required under the terms of the Mortgage
Note to have been made up to the Closing Date have been made. There is no
default, breach, violation or event of acceleration existing under the terms and
covenants of each Mortgage Loan nor has any event occurred which, upon the
giving of notice or the lapse of time, or both, would constitute a default,
breach, violation or event of acceleration, nor has Seller waived any of the
foregoing. All requirements set forth in the Mortgage Loan Documents and all
requirements of any applicable Laws have been fully met and complied with. All
costs, fees and expenses incurred in making, closing and recording each Mortgage
Loan have been paid and all proceeds of each Mortgage Loan have been fully
disbursed and received by, or for the benefit of, the Mortgagor. There is no
requirement or obligation for future advances under each Mortgage Loan. There is
not outstanding any advance of funds by Seller to or on behalf of the Mortgagor
to be used by the Mortgagor for the payment on any monthly installment,
principal, interest or other charges payable under any Mortgage Loan.
4.14 TRUSTEE. If the Mortgage is a deed of trust, a trustee, duly
qualified under Applicable Law to serve as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by Purchaser to such trustee, except in connection
with a trustee's sale after default by the related Mortgagor.
4.15 TITLE INSURANCE. Seller holds a title insurance policy issued by a
title insurer reasonably acceptable to Purchaser and qualified to do business in
the jurisdiction where the Mortgaged Property is located insuring the Mortgage
to be a lien of the agreed-upon priority upon the Mortgaged Property therein
described (except for agreed-upon senior mortgages, the lien of current real
property taxes and
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assessments not yet due and payable, other matters to which like properties are
commonly subject, and standard printed policy exceptions) having a liability
limit at least as great as the unpaid principal balance of the Mortgage Loan and
naming Seller and/or its successors and/or assigns as loss payee.
4.16 HAZARD AND FLOOD INSURANCE. The Mortgaged Property is insured
against loss by fire or other casualty under a standard hazard and casualty
insurance policy (including fire and extended coverage and other matters as are
customary in the area of the Mortgaged Property) with a standard mortgagee
clause naming Seller as loss payee "and/or its successors or assignees as their
interests may appear." The insurance policy must be for an amount not less than
the full replacement cost of the Mortgaged Property, and must be issued by an
insurer reasonably acceptable to Purchaser and qualified to do business in the
jurisdiction where the Mortgaged Property is located. The insurance policy must
be in a form such that it may be endorsed to Purchaser as loss payee as required
hereunder, and there are no facts or circumstances which could provide a basis
for revocation of any policies or defense to any claims made thereon. With
respect to any Mortgage Loan secured by Mortgaged Property located in a
federally designated flood hazard area, as identified by the Federal Emergency
Management Agency, such Mortgaged Property is insured by a flood insurance
policy which complies with Applicable Law, and where applicable provisions of
this Section 4.16 pertaining to hazard and casualty insurance policies.
4.17 APPRAISALS. All real estate appraisals made in connection with the
Mortgage Loan have been performed in accordance in all material respects with
industry standards in the appraising industry in the area where the appraised
property is located, and are completed
on forms acceptable to the Agencies.
4.18 NO CONDEMNATION. There is pending no proceeding for total or
partial condemnation of the Mortgaged Property or any part thereof and the
Mortgaged Property is free of material damage. No improvement encumbered by the
Mortgage Loan is in violation of any applicable zoning law or regulation,
building code or any valid restrictive or protective covenant or setback line.
No improvement on the Mortgaged Property is a mobile home or manufactured home
unless specifically approved by Purchaser in writing prior to purchase.
4.19 PROPERTY CONDITION. The Mortgaged Property is free of material
damage and waste and is in good repair.
4.20 SENIOR LIENHOLDERS. Where required or customary in the jurisdiction
in which the Mortgaged Property is located, Seller has filed for record a
request for notice of any action by a senior lienholder under a senior lien, and
Seller has notified any senior lienholder in writing of the existence of the
Mortgage Loan and requested notification of any action to be taken against the
Mortgagor by the senior lienholder. Seller shall, upon request of Purchaser,
cooperate in recording a new request for action in favor of Purchaser and in
providing senior lienholders with written requests for notification to Purchaser
of actions against the Mortgagor.
4.21 PROCEEDS DISBURSED. The proceeds of the Mortgage Loan, including
any escrows of such proceeds, have been fully disbursed, and any and all
requirements as to completion of on-site and off-site improvements and
disbursements of any escrow funds therefor have been
complied with.
4.22 MECHANIC'S LIENS. There are no mechanic's liens or similar liens or
claims which have been filed for work, labor or material affecting the Mortgaged
Property which are or may be liens prior to or equal with the lien of the
Mortgage.
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4.23 NO ACCRUED LIABILITIES. There are and shall be no accrued
liabilities, including any recording fees, of Seller with respect to the
Mortgage Loans, or circumstances which occurred prior to the Closing Date, which
could result in such accrued liabilities being asserted against Purchaser as
successor to Seller.
4.24 NO ADVERSE SELECTION. Seller did not use any adverse selection
procedures in selecting the Mortgage Loans from among the outstanding loans in
Seller's portfolio.
4.25 ACCEPTABLE INVESTMENT. Except as disclosed to Purchaser in writing
and as accepted by Purchaser, Seller has no knowledge of any circumstances or
conditions with respect to any Mortgage Loan, the relative Mortgage, real
property, Mortgagor, or Mortgagor's credit standing that can be reasonably
expected to cause the Agencies or prudent private investors in the secondary
market to regard the Mortgage Loan as an unacceptable investment, increase the
likelihood that the Mortgage Loan will become delinquent, or adversely affect
the value or marketability of the Mortgage Loan.
4.26 ENVIRONMENTAL CONDITIONS. Seller has not been advised, has received
no notice or report of, and has no knowledge that, any hazardous or toxic
materials, wastes, products regulated by Applicable Law, asbestos or asbestos
products or material, polychlorinated biphenyls or urea formaldehyde insulation
have been used or employed in the construction, use or maintenance of the
Mortgaged Property or have ever been stored, treated at, or disposed of on the
Mortgaged Property, or that there has occurred or that any person or entity has
alleged that there has occurred upon the Mortgaged Property any spillage,
leakage, discharge or release into the air, soil or groundwater of any hazardous
material or regulated wastes.
4.27 FRAUD. No fraud has taken place on the part of the Seller, any
Affiliate of the Seller, or any third-party originator in connection with the
origination of any Mortgage
Loan.
4.28 REVERSE MORTGAGES. None of the Mortgage Loans are reverse mortgage
loans.
4.29 QUALIFIED ORIGINATOR. Each Mortgage Loan was originated by the
Seller or, as identified on the Mortgage Loan Schedule, by a third-party
originator possessing all necessary licenses, qualifications and approvals for
the origination of mortgage loans in the jurisdiction in which the related
Mortgaged Property is located.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Agreement, Purchaser
represents and warrants as follows, as of each Closing Date:
5.1 DUE ORGANIZATION AND GOOD STANDING. Purchaser is a corporation
validly existing and in good standing under the laws of the state of its
incorporation. To the extent required by Applicable Law, Purchaser is properly
licensed and qualified to transact
business in all appropriate jurisdictions.
5.2 AUTHORITY AND CAPACITY. Purchaser has all requisite corporate power,
authority and capacity to enter into this Agreement and to perform the
obligations required of it hereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have each
been duly and validly authorized by all necessary corporate action. This
Agreement constitutes the valid and legally binding agreement of the Purchaser
enforceable in accordance with its terms, subject to bankruptcy laws and other
similar laws of general application affecting rights of creditors and subject to
the application of the rules of equity, including those respecting the
availability of specific performance.
5.3 EFFECTIVE AGREEMENT. The execution, delivery and performance of this
Agreement by Purchaser, its compliance with the terms hereof and the
consummation of the transactions contemplated hereby will not violate, conflict
with, result in a breach of, constitute a default under, be prohibited by or
require any additional approval under its certificate of incorporation, bylaws,
or any instrument or agreement to which it is a party or by which it is bound.
5.4 LITIGATION. There is no action, suit or proceeding or investigation
pending, or to Purchaser's knowledge, threatened, against Purchaser that, if
determined adversely to Purchaser, would adversely affect the sale of the
Mortgage Loans, the execution, delivery or
enforceability of this Agreement.
5.5 CONSENT. No consent, approval, authorization or order of any court
or governmental authority is required for the execution and delivery of this
Agreement by Purchaser or for the performance by Purchaser of its obligations
hereunder, other than such consent, approval, authorization or order as has been
or will be obtained prior to each Closing Date.
5.6 AGENCY APPROVAL. Purchaser is an approved seller/servicer for the
Agencies in good standing and is a mortgagee approved by the Secretary of the
U.S. Department of Housing and Urban Development pursuant to Section 203 of the
National Housing Act.
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ARTICLE VI
COVENANTS
6.1 FURTHER ASSURANCES AND CORRECTIVE INSTRUMENTS. To the extent
permitted by Applicable Law, Purchaser and Seller agree that they shall
cooperate and assist each other, as reasonably requested, in carrying out the
other's covenants, agreements, duties and responsibilities under this Agreement,
and, in connection therewith, shall from time to time, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such additional
instruments, assignments, endorsements, papers and documents as may reasonably
be required or appropriate to further express the intention, or to facilitate
the performance, of this Agreement during the term hereof.
6.2 TRANSFER OF INSURANCE. Seller shall advise any relevant insurance
carrier of the sale of each Mortgage Loan and shall effect an assignment to the
Purchaser of the loss payee endorsement for hazard and flood insurance, any
credit life and disability insurance, and any and all other insurance respecting
the Mortgaged Property and/or the improvements
located thereon.
6.3 INSURANCE PREPAYMENT. Insurance refunds or credits of any kind
whatsoever shall be the sole responsibility of Seller in the event of prepayment
of any Mortgage Loan, cancellation of insurance or any other event requiring
refunding or crediting of unearned insurance premiums. Upon Purchaser's demand,
Seller shall pay to Purchaser, from Seller's own funds, any required insurance
premium rebate resulting from the prepayment, cancellation, refinancing or other
termination of any Mortgage Loan. Upon any such payment and upon Seller's
request, Purchaser shall assign to Seller any rights of Purchaser against the
related insurer for any payment made to the Mortgagor.
6.4 POST-CLOSING PAYMENTS. All monies received by Seller after the
Closing Date relating to any Mortgage Loan shall be promptly turned over to
Purchaser, and until so remitted shall be held in trust for Purchaser and
segregated from all other assets of Seller.
6.5 NO SOLICITATION. Seller agrees that neither Seller nor any Affiliate
of Seller shall use information derived from the origination and/or sale of the
Mortgage Loans for the purpose of soliciting, or assisting in the solicitation,
directly or indirectly, for any purpose including without limitation refinance,
home equity or insurance, any of the Mortgage Loans. Seller further agrees to
use its best efforts to cause any third-party originator of the Mortgage Loans
to refrain from taking any action which is prohibited under this section with
respect to the Mortgage Loans and/or Mortgagors. Seller shall not provide a
listing of Mortgagors to any third party. Nothing contained in this Section 6.6
shall be construed to prohibit advertising or communications directed to the
general public. In the event that any Mortgagor contacts Seller with respect to
any new loan to be secured by Mortgaged Property which secures a Mortgage Loan,
Seller agrees that Purchaser shall have a right of first refusal with respect to
the purchase of such new loan.
6.6 USE OF NAME. Seller shall not engage in any form of advertising
whatsoever utilizing either the name of Purchaser or of any affiliate of
Purchaser unless specifically authorized by Purchaser in writing to do so.
6.7 LIMITED POWER OF ATTORNEY. Seller hereby appoints Purchaser, its
agents, employees, successors and assigns, the true and lawful attorney in fact
of Seller with the full power of substitution for and in the place and stead of
Seller on behalf and for the benefit of Purchaser, to demand and control
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any and all of the sums due on the Mortgage Loans, and to enforce any and all
rights with respect thereto, and to endorse the name of Seller where Seller's
name is designated as the payee upon any notes, collateral, security,
acceptances, checks, drafts, money orders or other evidences of payment coming
into the hands of Purchaser in full or partial payment of any of the Mortgage
Loans, and to make "satisfied" and to release or cause to be marked or release,
all liens and securities related thereto, when and if Purchaser may reasonably
so determine.
6.8 PUBLIC ANNOUNCEMENT. The timing and content of any press release or
other public announcement relating to the transactions contemplated by this
Agreement shall be subject to the approval of Seller and Purchaser.
6.9 CERTAIN NOTIFICATIONS.
(a) Seller shall promptly notify the Purchaser in writing of the
occurrence of any event which will or could reasonably be expected to result in
the failure to satisfy any of the conditions to the obligations of Purchaser
specified in Article VII of the Agreement.
(b) Seller shall immediately notify Purchaser should there by any
material and/or adverse change to Seller's financial condition, corporate
structure or senior management personnel, or to Seller's relationship with or
authority from any Agency. In addition, Seller shall immediately notify
Purchaser of any threatened or pending lawsuit or of any threatened or pending
administrative, judicial, governmental or agency hearing or proceeding involving
Seller or any of Seller's principals, the outcome of which may materially and/or
adversely affect Seller's ability to do business or to perform under the terms
and conditions of this Agreement.
6.10 POST-CLOSING REPORTING.
During the term of this Agreement, and any extension or renewal thereof,
Seller shall provide Purchaser with the following information:
(a) Audited financial statements for Seller shall be submitted
annually, within ninety (90) days after the end of Seller's fiscal year.
(b) A Uniform Standard Audit Program ("USAP") letter shall be
prepared by independent auditors with respect to mortgage loans serviced
by Seller. The USAP letter shall be submitted to Purchaser along with
Seller's audited financial statements.
(c) Unaudited quarterly financial statements for Seller shall be
submitted within forty-five (45) days after the end of each quarter, and
shall be certified as complete and accurate by an officer of Seller.
(d) Seller shall provide Purchaser with immediate written notice
of (i) the filing of a petition for relief under the U.S. Bankruptcy
Code on behalf of Seller, (ii) institution of any receivership or
conservatorship with respect to Seller, (iii) any material change in the
senior management of Seller, (iv) any change in material ownership of
Seller, (v) any event which effects a material, adverse change in
Seller's financial condition, and (vi) any change in Seller's Fidelity
Bond/E&O coverage.
(e) Evidence of Fidelity Bond/E&O coverage in conformity with
Investor requirements shall be submitted to Purchaser annually.
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6.11 ONGOING DUE DILIGENCE REVIEW.
From time to time during the term of this Agreement, Purchaser shall,
upon reasonable notice and during regular business hours, have access to
materials and facilities necessary to conduct an on-site or off-site due
diligence review. At Purchaser's option, the pertinent materials may be
delivered to Purchaser. In the absence of a material breach of any
representation, warranty and/or covenant contained in this Agreement, Purchaser
agrees that such reviews may be conducted no more frequently than four (4) times
in any calendar year during the term of this Agreement. Purchaser's ongoing due
diligence review will include its verification that:
(a) The books, records and accounts of Seller with respect to the
Mortgage Loans are in order pursuant to Applicable Law and Agency
requirements, and the information provided to Purchaser in
connection with the Mortgage Loans is true and correct; and
(b) The Mortgage Loans meet Purchaser's credit underwriting and
quality control standards, and Seller's origination practices are
satisfactory to Purchaser.
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ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser hereunder with respect to each purchase of
Mortgage Loans, shall be subject to satisfaction of each of the following
conditions:
7.1 REPRESENTATIONS. The representations and warranties made by Seller
in this Agreement are true and correct in all material respects and shall
continue to be true and correct in all material respects on each Closing Date.
7.2 COMPLIANCE WITH THIS AGREEMENT. All of the terms, covenants, and
conditions of this Agreement required to be complied with and performed by
Seller at or prior to each Closing Date shall have been duly complied with and
performed in all material respects.
7.3 DOCUMENTATION AND FILES; COMPLIANCE.
Prior to each Closing Date, Purchaser shall have determined that
(a) The books, records and accounts of Seller with respect to the
Mortgage Loans are in order pursuant to Applicable Law, and the
information provided to Purchaser in connection with the Mortgage
Loans is true and correct;
(b) The Mortgage Loans meet Purchaser's credit underwriting and
quality control standards, and Seller's origination practices are
satisfactory to Purchaser; and
(c) Any pending class action litigation against Seller, and any
settlement or consent decree entered into by Seller with respect
to class action litigation, will not have a material adverse
effect on the Servicing.
7.4 CORPORATE RESOLUTION. A certified copy of duly adopted board
resolutions, in the form attached as Exhibit D to this Agreement, shall be
delivered to Purchaser simultaneously with the execution and delivery of this
Agreement.
7.5 OPINION. An opinion of counsel of Seller in the form attached as
Exhibit E to this Agreement, shall be delivered to Purchaser simultaneously with
the execution and delivery of this Agreement.
7.6 OFFICER'S CERTIFICATE. An Officer's Certificate of a senior officer
of Seller in the form attached as Exhibit F to this Agreement, shall be
delivered to Purchaser simultaneously with the execution and delivery of this
Agreement.
7.7 MATERIAL ADVERSE CHANGE. There shall not have occurred, prior to any
Closing Date, any event which constitutes a change in the Mortgage Loans and/or
Seller's financial condition, which change, in the judgment of Purchaser,
materially and adversely affects Seller's ability to perform its obligations
under this Agreement, including without limitation Seller's obligation to
provide indemnification and/or repurchase pursuant to Article VIII.
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ARTICLE VIII
REMEDIES
8.1 INDEMNIFICATION BY SELLER. Seller shall indemnify and hold Purchaser
harmless from and shall reimburse Purchaser for any losses, damages,
deficiencies, claims, causes of action or expenses of any nature (including
reasonable attorneys' fees and expenses) incurred by Purchaser before or after
the Closing Date which arise out of, result from, or in any way relate to:
(a) Any breach of any representation and/or warranty of Seller contained
in this Agreement, or in any exhibit, schedule, statement or certificate
furnished by Seller pursuant to this Agreement;
(b) Any breach of any covenant or obligation of Seller contained in this
Agreement, or in any exhibit, schedule, statement or certificate
furnished by Seller pursuant to this Agreement;
(c) Any Defect in any Mortgage Loan existing as of the Closing Date
(including those Defects subsequently discovered), or as a result of any
act or omission of Seller prior thereto;
(d) Damage to any Mortgaged Property which is security for a Mortgage
Loan, from fire, earthquake, or other casualty, or environmental hazard,
or any similar circumstances or conditions occurring prior to the
Closing Date, which would cause any Mortgage Loan to become delinquent,
or adversely affect the value or marketability of the Mortgage Loan;
(e) Errors in originating any of the Mortgage prior to the Closing Date
or as a result of Seller's acts or omissions prior thereto. Such errors
may include improper action or failure to act when required to do so,
and
(f) Any litigation pending or threatened against Purchaser arising out
of events occurring on or prior to the Closing Date in connection with
the Seller's origination or sale of the Mortgage Loans.
8.2 REPURCHASE.
(a) Following the purchase of any Mortgage Loan, and notwithstanding the
review of the Mortgage Loan Documents by Purchaser, if there is a Defect
in any Mortgage Loan, Seller shall cure, to Purchaser's satisfaction,
such Defect within thirty (30) days from its receipt of notice of the
existence thereof, or such shorter period as may be required by
Applicable Law, or by Agency or investor requirements. If the Defect is
not cured within such thirty (30) day period, or such shorter period, if
applicable, Seller shall, not later than the expiration of the thirty
(30) day period or such shorter period, repurchase the related Mortgage
Loan or Mortgage Loans for the Repurchase Price.
(b) In the event that any Mortgagor fails to make the initial payment
due with respect to a Mortgage Loan more than thirty (30) days following
the related Closing Date, Purchaser may, at its option, require Seller
to repurchase such Mortgage Loan, upon demand, for the Repurchase Price.
(c) In the event of repurchase, Purchaser shall, upon receipt of the
Repurchase Price, assign and deliver the related Mortgage Documents to
Seller without recourse, representation or warranty.
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If Seller fails to repurchase a defective Mortgage Loan or Mortgage
Loans at the time and in the manner provided in this Section, Purchaser
shall have all other rights and remedies provided in this Agreement or
by law or equity.
8.3 INDEMNIFICATION BY PURCHASER. Purchaser shall indemnify and hold
Seller harmless from and shall reimburse Seller for any losses, damages,
deficiencies, claims, causes of action or expenses of any nature (including
reasonable attorneys' fees and expenses) incurred by Seller and arising after
the Closing Date which result from any breach of any representation, warranty or
covenant made by Purchaser under this Agreement.
8.4 NOTICE OF CLAIM. If any action is brought against any person
entitled to indemnification pursuant to Section 8.1 or Section 8.3 (a
"Claimant") in respect of a claim under Section 8.1 or Section 8.3, as
applicable (an "Indemnifiable Claim"), the Claimant shall promptly notify
Purchaser or Seller, as the case may be, in writing of the institution of such
action (but the failure so to notify shall not relieve Seller or Purchaser, as
the case may be (the "Indemnifying Party") from any liability the Indemnifying
Party may have except to the extent such failure materially prejudices the
Indemnifying Party). Unless otherwise agreed to by the Seller or Purchaser, as
the case may be, the Indemnifying Party shall assume and direct the defense of
such action, including the employment of counsel, and all fees, costs and
expenses incurred in connection with defending or settling the Indemnifiable
Claim shall be borne solely by the Indemnifying Party; provided, however, that
such counsel shall be satisfactory to the Claimant in the exercise of its
reasonable judgment and that the Indemnifying Party shall not compromise any
claim without the prior written consent of the Claimant, which consent shall not
be unreasonably withheld. If the Indemnifying Party shall undertake to
compromise or defend any such asserted liability, it shall promptly notify the
Claimant of its intention to do so, and the Claimant agrees to cooperate fully
with the Indemnifying Party and its counsel in the compromise of, defense
against, any such asserted liability. Notwithstanding an election by the
Indemnifying Party to assume the defense of such action or proceeding, the
Claimant shall have the right to employ separate counsel and to participate in
the defense of such action or proceeding, and the Indemnifying Party shall bear
the reasonable fees, costs and expenses of such separate counsel (and shall pay
such fees, costs and expenses at least quarterly), if (a) the use of counsel
chosen by the Indemnifying Party to represent the Claimant would present such
counsel with a conflict of interest; (b) the defendants in, or targets of, any
such action or proceeding include both a Claimant and the Indemnifying Party,
and the Claimant shall have reasonably concluded that there may be legal
defenses available to it or to other Claimants which are different from or
additional to those available to the Indemnifying Party (in which case the
Indemnifying Party shall not have the right to direct the defense of such action
or proceeding on behalf of the Claimant); or (c) the Indemnifying Party shall
authorize the Claimant to employ separate counsel at the expense of the
Indemnifying Party. All costs and expenses incurred in connection with a
Claimant's cooperation shall be borne by the Indemnifying Party. In any event,
the Claimant shall have the right at its own expense to participate in the
defense of such asserted liability.
8.5 LIMITATION OF LIABILITY. In no event will either Purchaser or Seller
be liable to the other party to this Agreement for incidental or consequential
damages, including, without limitation, loss of profit or loss of business or
business opportunity, regardless of the form of action whether in contract, tort
or otherwise.
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ARTICLE IX
TERMINATION
9.1 TERMINATION WITHOUT CAUSE. Either Purchaser or Seller may terminate
this Agreement without cause on thirty (30) days prior written notice (such
notice in compliance with Section 10.5 below) to the other party. Following the
effective date of such termination without cause, Purchaser will purchase
Mortgage Loans subject to the terms and conditions of any outstanding
Confirmation issued prior to such effective date.
9.2 PURCHASER'S TERMINATION FOR CAUSE. Notwithstanding anything to the
contrary contained herein, Purchaser shall have the right to immediately
terminate this Agreement for cause. For purposes of this section 9.2, "cause"
shall include any of the following:
(a) Seller's breach of any of the representations, warranties and/or
covenants contained in this Agreement; including without limitation its
obligations under Article VIII;
(b) the filing of a petition for relief by or against Seller, under the
U.S. Bankruptcy Code or any other applicable insolvency or
reorganization statute;
(c) institution of any receivership or conservatorship with respect to
Seller, including without limitation receivership or conservatorship
imposed by the FDIC;
(d) Seller's admission in writing of its inability to pay its debts
generally as they become due;
(e) termination of Seller's status as an approved Agency seller/servicer
or as an approved FHA mortgagee;
(f) any material change in the senior management or ownership of Seller;
and/or;
(g) any event which, in Purchaser's opinion, constitutes a material,
adverse change in Seller's financial condition.
9.3 SELLER'S TERMINATION FOR CAUSE. Notwithstanding anything to the
contrary contained herein, Seller shall have the right to immediately terminate
this Agreement for cause. For purposes of this section 9.3, "cause" shall
include any of the following:
(a) Purchaser's material, uncured breach of any of the representations,
warranties and/or covenants contained in this Agreement;
(b) the filing of a petition for relief by Purchaser, under the U.S.
Bankruptcy Code or any other applicable insolvency or reorganization
statute;
(c) institution of any receivership or conservatorship with respect to
Purchaser;
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(d) Purchaser's admission in writing of its inability to pay its debts
generally as they become due; or
(e) termination of Purchaser's status as an approved Agency
seller/servicer or as an approved FHA mortgagee;
9.4 EFFECT OF TERMINATION. Upon termination of this Agreement under
section 9.2 above, Purchaser shall have no further obligation to purchase, or
accept transfer of mortgage loan servicing from Seller, and this Agreement shall
be null and void and have no further force and effect except for those
provisions identified in Section 9.4 of this Agreement, which provisions shall
survive any such termination and continue in effect thereafter.
9.5 SURVIVAL OF OBLIGATIONS AND COVENANTS. Notwithstanding anything to
the contrary expressed in this Agreement, the termination of this Agreement
shall not affect any obligations of Seller under this Agreement. The
representations, warranties, covenants and indemnification of Seller under
Articles III, IV and VI hereof shall continue without regard
to any termination hereof.
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ARTICLE X
MISCELLANEOUS
10.1 COSTS AND EXPENSES. Except as specifically provided to the contrary
in this Agreement, Purchaser and Seller shall each bear its own accounting,
legal and related costs and expenses in connection with the negotiation and
preparation of this Agreement and the performance by each of Purchaser and
Seller of its respective obligations arising under this Agreement.
10.2 CONFIDENTIALITY OF INFORMATION. Seller and Purchaser and their
Affiliates shall, and shall cause their respective directors, officers,
employees and authorized representatives to, hold in strict confidence and not
use or disclose to any other party except their respective Affiliates without
the prior written consent of the other party all information concerning
customers or proprietary business procedures, servicing fees or prices, policies
or plans of the other party or any of its affiliates received by them from the
other party in connection with the transactions contemplated hereby.
10.3 BROKER'S FEES. Each party hereto represents and warrants to the
other that it has made no agreement to pay any agent, finder, or broker or any
other representative, any fee or commission in the nature of a finder's or
originator's fee arising out of or in connection with the subject matter of this
Agreement, and both the parties hereto covenant with each other and agree to
indemnify and hold each other harmless from and against any such obligation or
liability and any expense incurred in investigating or defending (including
reasonable attorneys' fees and expenses) any claim based upon the other party's
actions in connection with such obligation.
10.4 SURVIVAL. Each party hereto covenants and agrees that the
representations and warranties, covenants and obligations contained in Articles
III through VI, VIII, and Sections 10.2 through 10.4 of this Agreement, and in
any document delivered or to be delivered pursuant hereto, shall survive the
execution hereof, and the Closing Date, and any inspection, investigation, or
determination made by, or on behalf of, either party, and expiration or
termination of this Agreement.
10.5 NOTICES. All notices, requests, demands and other communications
which are required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been duly given if personally delivered,
sent by overnight courier, or mailed by certified mail, return receipt
requested, postage prepaid, or transmitted by facsimile and confirmed by a
similar mailed writing:
(a) If to the Purchaser, to:
GMAC Mortgage Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇
General Counsel
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GMAC Mortgage Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) If to Seller, to:
E-LOAN, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
or to such other address as Purchaser or Seller shall have specified in writing
to the other.
10.6 APPLICABLE LAW. The construction of this Agreement and the rights,
remedies, and obligations arising by, under, through, or on account of it shall
be governed by the internal laws of the Commonwealth of Pennsylvania (without
regard to its conflicts of laws principles) except to the extent the same are
preempted by the laws of the United States of
America.
10.7 JURISDICTION AND VENUE. Purchaser and Seller mutually agree that
any legal cause of action arising out of a dispute concerning this Agreement or
the enforceability of any part thereof shall be subject to the jurisdiction of
the United States District Court in and
for the Eastern District of Pennsylvania.
10.8 INTEGRATION. This Agreement constitutes a final and complete
integration of the Agreement of the parties respecting the subject matter
hereof, thereby superseding all previous oral or written agreements. There are
no contemporaneous oral agreements.
10.9 MODIFICATION. This Agreement may not be changed orally but only by
an agreement in writing, signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought. Subject to the foregoing,
any of the terms or conditions of this Agreement may be waived or modified at
any time by the party entitled to the benefit thereof, but no such waiver,
express or implied, shall affect or impair the right of the waiving party to
require observance, performance, or satisfaction of either (1) the same term or
condition as it applies on a subsequent or previous occasion or (2) any other
term or condition hereof.
10.10 THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto only. There shall be no third party beneficiaries
hereof.
10.11 CONSTRUCTION. In construing the words of this Agreement, plural
constructions shall include the singular, and singular constructions shall
include the plural. The words "herein", "hereof", and other similar compounds of
the word "here" shall mean and refer to this entire Agreement, not to any
particular provision, section, or subsection of it.
10.12 CAPTIONS. Paragraph captions in this Agreement are for ease of
reference only and shall be given no substantive or restrictive meaning or
significance whatsoever.
10.13 COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be an original regardless of whether all parties sign the
same document. Regardless of the number of counterparts, they shall constitute
only one agreement. It shall not be necessary in making proof of this Agreement
to produce or account for more than one
counterpart.
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10.14 ATTORNEYS' FEES. If any action of law or in equity, including an
action for declaratory relief, is brought to enforce or interpret the provisions
of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees from the other party. Such fees may be set by the court in the
trial of such action or may be enforced in a separate action brought for that
purpose. Such fees shall be in addition to any other relief that may be awarded.
10.15 BINDING EFFECT AND ASSIGNMENT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their successors and
assigns. Nothing in this Agreement, express or implied, is intended to confer on
any person other than the parties hereto and their successors and assigns, any
rights, obligations, remedies or liabilities. No party may, or shall have the
power to, assign this Agreement without the prior written consent of the other,
except that Purchaser may assign this Agreement to an affiliated entity having
all necessary resources to complete the transactions contemplated herein.
10.16 INCORPORATION OF EXHIBITS. Exhibits A through F attached hereto
shall be incorporated herein and shall be understood to be a part hereof as
though included in the body of this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, each of the undersigned parties to this GMAC
Mortgage Corporation Seller's Agreement has caused this GMAC Mortgage
Corporation Seller's Agreement to be duly executed in its corporate name by one
of its duly authorized officers, all as of the date first above written.
PURCHASER:
ATTEST: GMAC MORTGAGE CORPORATION
By: By: /s/ Signature Illegible
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
----------------------
SELLER:
ATTEST: E-LOAN, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: CEO
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EXHIBIT "B"
CONTENTS OF MORTGAGE FILES
Mortgage Files (where applicable, original microfiche files or hard copy files)
shall include, without limitation the following:
a) All origination documentation including:
- Transmittal Summary FNMA/FHLMC Form 1008
- Loan Application Form 1003 (initial and final signed
application)
- Credit Report
- Final Truth-in-Lending Disclosure Statement
- Verification of Employment
- IRS Form 4506 for self-employed borrowers (Request for
copy of Tax Form)
- Verification of Deposit
- HUD 1 on previous property, if applicable
- HUD 1/Settlement Statement on subject property
- Appraisal
- Satisfactory Completion Certificate Form 442, if
applicable
- Executed Sales Contract;
b) Original Note endorsed to GMAC Mortgage Corporation;
c) Original limited power of attorney, if applicable;
d) Original recorded Mortgage/Deed of Trust or copy of the original,
certified by the recording agency to be a true and exact copy of the recorded
document;
e) Original final Title Policy;
f) Original PMI Certificate (if applicable);
g) Original LGC/MIC (if applicable);
h) Original recorded intervening Assignment to GMAC Mortgage
Corporation;
i) Abstract of Title - in states where required other than those where
evidence exists indicating sent to borrower; and
j) Previous assumption information, if applicable.
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EXHIBIT "C"
PURCHASER'S GUIDELINES
----------------------
Conventional Loans: Must be eligible for sale to the Federal National Mortgage
Association
(FNMA) through it's Mortgage Backed Securities program and must have been
originated, underwritten and closed in conformity with the FNMA Seller's Guide.
Government Loans: Must be eligible for sale through the Government National
Mortgage
Association's Mortgage Backed Security program. All loans must have the required
insurance certificate from the VA or FHA as required.
Seller will be responsible for providing all documents necessary for initial and
final certification of the pools. All loans sold will not be 30 days or greater
delinquent prior to the receipt of the first payment.
All loan documents will be received in a timely manner.
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EXHIBIT "D"
FORM OF SECRETARY'S CERTIFICATE
-------------------------------
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EXHIBIT "E"
FORM OF OPINION OF COUNSEL
--------------------------
GMAC Mortgage Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
You have requested my opinion, as counsel to E-LOAN, INC., a Massachusetts
corporation (the "Seller"), with respect to certain matters in connection with
the sale by the Seller pursuant to that certain GMAC Mortgage Corporation
Seller's Agreement, dated as of ______, 199_ (the "Purchase and Sale Agreement")
between you and the Seller, of certain Mortgage Loans as defined in the Purchase
and Sale Agreement. Capitalized terms not otherwise defined herein have their
respective meanings set forth in the Purchase and Sale Agreement.
I have examined the following documents:
1. the Purchase and Sale Agreement; and
2. such other documents, records and papers as I have deemed necessary and
relevant as a basis for this opinion.
I have assumed that each party other than the Seller had the power and authority
to enter into and perform all obligations thereunder and, as to each such party,
I also have assumed the due authorization by all requisite corporate action, the
due execution and delivery and the validity and binding effect and
enforceability of such documents.
Based upon the foregoing, and subject to the qualification set forth at the end
of this letter, it is my opinion that:
1. The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida.
2. The Seller has the requisite power to engage in the transactions
contemplated by the Purchase and Sale Agreement and all requisite power,
authority and legal right to execute and deliver the Purchase and Sale
Agreement and to perform and observe the terms and conditions of such
instrument.
3. The Purchase and Sale Agreement has been duly authorized, executed and
delivered by the Seller and is a legal, valid and binding agreement
enforceable in accordance with its terms against the Seller, subject to
bankruptcy laws and other similar laws of general application affecting
rights of creditors and subject to the application of the rules of
equity, including those respecting the availability of specific
performance.
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4. No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or of compliance by the Seller with, the
Purchase and Sale Agreement, or the consummation of the transactions
contemplated by the Purchase and Sale Agreement.
5. Neither the consummation of the transactions contemplated by, nor the
fulfillment of the terms of the Purchase and Sale Agreement conflicts or
will conflict with or results or will result in a breach of or
constitutes or will constitute a default under the charter or by-laws of
the Seller, the terms of any material indenture or other material
agreement or instrument to which the Seller is a party or by which it is
bound or to which it is subject, or any statute or order, rule,
regulation, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Seller is subject or by which
it is bound.
6. There is no action, suit, proceeding or investigation pending or, to the
best of my knowledge, threatened against the Seller which, in my
judgment, either in any one instance or in the aggregate, may reasonably
be expected to result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller or
in any material impairment of the right or ability of the Seller to
carry on its business substantially as now conducted or in any material
liability on the part of the Seller or which would draw into question
the validity of the Purchase and Sale Agreement or of any action taken
or to be taken in connection with the transactions contemplated thereby,
or which would be likely to impair materially the ability of the Seller
to perform under the terms of the Purchase and Sale Agreement.
In rendering this opinion letter, I do not express any opinion concerning any
law other than the federal common law of the United States of America (excluding
federal securities law) and the law of the ____ of _____. Additionally, I do not
express any opinion on any issue not expressly addressed above.
I bring to your attention the fact that my legal opinions are an expression of
professional judgment and are not a guarantee of a result.
I do not undertake to advise you of matters which may come to my attention
subsequent to the date hereof which may affect my legal opinions expressed
herein.
This opinion is delivered to you solely for your use in connection with the
execution and delivery of the Purchase and Sale Agreement. This opinion is not
to be used, circulated, quoted or otherwise referred to for any other purpose,
or to or by any other person, with or without reference to my name, without my
prior express written consent.
Very truly yours,
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EXHIBIT "F"
FORM OF OFFICER'S CERTIFICATE
-----------------------------
OFFICER'S CERTIFICATE
I, ____________________ hereby certify that I am the duly elected
_______________ of E-LOAN, INC. (the "Company"), a corporation organized and
existing under the laws of the State of California, and further as follows:
1. Attached hereto is a true and correct copy of the Articles of
Incorporation and By-laws of the Company and a Certificate of Good
Standing for the Company, all of which are in full force and effect on
the date hereof.
2. There are no actions, suits or proceedings pending (nor are any
actions, suits or proceedings threatened) against or affecting the
Company which if adversely determined, individually or in the aggregate,
would adversely affect the Company's obligations under the GMAC Mortgage
Corporation Seller's Agreement (the "Purchase and Sale Agreement") dated
as of _______________, 199_, between the Company and GMAC Mortgage
Corporation.
3. Each person who, as an officer or representative of the Company,
signed (a) the Purchase and Sale Agreement, and (b) any other document
delivered prior hereto or on the date hereof in connection with the
transaction described in the Purchase and Sale Agreement was, at the
respective times of such signing and delivery duly elected or appointed,
qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents are their genuine
signatures.
4. Each of the Mortgage Loans referred to in the Purchase and Sale
Agreement was originated or acquired by the Company.
5. The Mortgage Loans referred to in the Purchase and Sale Agreement are
not subject to any security interest, pledge or hypothecation for the
benefit of any entity, institution or person.
6. Attached hereto is a certified true copy of the resolution of the
Board of Directors of the Company with respect to the transactions
governed by the Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name on behalf of the
Company.
Dated: ______, 199_
By: ____________________
Name:
Title:
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I, ________________, Secretary of E-LOAN, INC., 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 hereunto signed my name.
Dated: __________, 199_
By:__________________________
Name:
Title:
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