EXHIBIT 10.15
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement"), is entered into as of
February 19, 2004, by and among SUNSET FINANCIAL RESOURCES, INC., a Maryland
corporation, having its principal office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Buyer"), and SUNSET MORTGAGE COMPANY, LP, a
Pennsylvania limited partnership ("Seller"), having its principal offices at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, Seller has agreed to transfer the residential mortgage loans
described on Schedule 1 attached hereto (the "Loans") to the Buyer, and the
Buyer has agreed to acquire the Loans from Seller, on the terms and subject to
the conditions set forth in this Agreement.
NOW, THEREFORE, the Buyer and Seller hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used in this Agreement but
not otherwise defined herein shall have the meanings set forth on Exhibit A
attached hereto.
SECTION 2. PURCHASE AND SALE. (a) On the terms and subject to the
conditions set forth herein, Seller agrees to transfer, sell and convey to the
Buyer, and the Buyer agrees to acquire from Seller, on the Closing Date, the
entire right, title and interest of Seller in and to (i) all of the Loans being
conveyed by Seller and all Monthly Payments thereon due after the Cut-Off Date
and all other payments with respect to such Loans allocable to the period after
the Cut-Off Date and (ii) all Related Assets.
(b) Seller shall be entitled to all Monthly Payments on the
Loans being conveyed by it due on or before the Cut-Off Date.
(c) On the Closing Date, in consideration of the transfer by
Seller of the Loans as contemplated by Section 2(a) above, the Buyer shall pay
$7,580,126.71 (the "Purchase Price") to Seller in immediately available funds.
SECTION 3. [INTENTIONALLY OMITTED.]
SECTION 4. CLOSING.
(a) In connection with the transfer and sale contemplated by
this Agreement, on or before the Closing Date, Seller shall deliver to the Buyer
(or its designee, which may be a servicer) the following documents or
instruments with respect to each of its Loans:
(i) the original Underlying Note showing a complete
chain of endorsement from the originator to the current holder (if other than
the originator) and endorsed by the originator or current holder to the Buyer;
(ii) either: (A) the original Mortgage with evidence
of recording thereon, (B) with respect to a Loan for which the original Mortgage
was not returned after recordation, a copy of the Mortgage certified by the
appropriate recording officer to be true and accurate, or (C) with respect to a
Loan for which the original Mortgage has been sent to the
PURCHASE AGREEMENT - PAGE 1
appropriate public official for recording and with respect to which a certified
copy of the Mortgage is not available from such public official, a copy of the
Mortgage certified as a true copy by an Authorized Officer of the Issuer;
(iii) either: (A) the original executed assignments
of the Mortgage (which may be in the form of a blanket assignment in which case
Seller shall execute and deliver to the Buyer within thirty days of the Closing
Date, an original assignment of the Mortgage), showing a complete chain of
assignment from the originator to the current assignee (if other than the
originator) and acceptable for recording in the jurisdiction in which the
applicable Mortgaged Property is located, and from the originator or current
assignee;
(iv) the original of each assumption, modification,
written assurance or substitution agreement, if any;
(v) either (i) originals of any title insurance
policies relating to the Mortgaged Properties or (ii) copies of any title
insurance policies certified as true by Seller;
(vi) for all Loans, a blanket assignment of all
collateral securing the Loan, including without limitation, all rights under
applicable guarantees and insurance policies;
(b) The obligation of the Buyer to acquire the Loans and pay
the Purchase Price therefor on the Closing Date shall be subject to satisfaction
of each of the following conditions:
(i) all of the representations set forth in Section 5
of this Agreement shall be true and correct in all material respects on the
Closing Date;
(ii) Seller shall have performed or complied with all
of its obligations hereunder to have been performed or complied with on or
before the Closing Date;
(iii) Seller shall have delivered to the Buyer, or
its designee, the Loan Files for all of the Loans;
(iv) Seller shall have delivered to the Buyer, or its
designee, any and all proceeds of Loans which have been prepaid in full or in
part after the Cut-Off Date;
(v) Buyer shall have received any other agreements,
documents, instruments, certificates, resolutions or opinions as it shall
reasonably request; and
(vi) Buyer shall have closed the initial public
offering of its common stock.
(c) The Buyer, in its sole discretion waive any condition set
forth in Section 4(b).
PURCHASE AGREEMENT - PAGE 2
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to the Buyer that, as of the date hereof and as of the
Closing Date:
(a) Seller has been duly formed and is validly existing under
the laws of the state of its formation and is qualified to transact business as
presently conducted by it in each other jurisdiction in which failure to so
qualify would have a material adverse effect on its business or financial
condition or its ability to perform its obligations under this Agreement.
(b) Seller has the full power and authority to originate or
purchase and hold the Loans, to transfer, convey and contribute such Loans and
to execute and deliver this Agreement to enter into and consummate all
transactions contemplated by, and to perform its obligations under, this
Agreement and to conduct its business as presently conducted.
(c) Seller has duly and validly authorized the execution,
delivery and performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement constitutes the valid, legal and
binding agreement of Seller, enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization or
moratorium, or other similar laws affecting the enforcement of creditors' rights
in general, (ii) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law) or (iii) public
policy considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of this
Agreement or which purport to provide indemnification from securities laws
liabilities.
(d) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or court
is required, under federal laws, or the laws of any state, for the execution,
delivery and performance of or compliance by Seller with this Agreement or the
consummation by Seller of any other transaction contemplated hereby, except for
those such consents, approvals, authorizations, orders, registrations, filings
and notices which were obtained on or before the Closing Date.
(e) None of the origination of the Loans, the transfer and
contribution of the Loans to the Buyer or the execution, delivery or performance
of this Agreement, by Seller, conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default under (i) any
term or provision of the organizational documents or operating agreement of
Seller, or (ii) any material term or provision of any agreement, contract,
instrument or indenture of any nature whatsoever, to which Seller is a party or
is bound, or (iii) any law, rule, regulation, order, judgment, writ, injunction
or decree of any court or governmental authority having jurisdiction over Seller
or results or will result in the creation or imposition of any lien or security
interest upon the Loans or any documents or instrument evidencing or securing
the Loans.
(f) Seller (i) is not in violation of the laws of any
jurisdiction in which a Mortgaged Property is located, except for such
violations as would not, individually or in the aggregate, have a material
adverse effect on the business, assets, operations or condition, financial or
otherwise, of Seller or adversely affect the Loans or the Mortgages or the
transfer thereof to the Buyer or the enforceability of the Obligor's obligations
thereunder, and (ii) is not
PURCHASE AGREEMENT - PAGE 3
in default under any material provisions of any agreement, contract, instrument
or indenture of any nature whatsoever to which Seller is a party or by which it
is bound, nor has any event occurred which with notice or lapse of time or both
would constitute a default under any such agreement, contract, instrument or
indenture, which violation, event or default could have a material adverse
effect on the Loans, the performance by Seller of its obligations under this
Agreement or the transactions contemplated hereby.
(g) Seller has not dealt with any broker, investment banker,
agent or other person, except for the Buyer, who may be entitled to any
commission or compensation in connection with the transfer and contribution of
the Loans.
(h) There are no actions or proceedings against, or
investigations of, Seller currently pending or, to such Seller's knowledge,
threatened, which, if determined adversely to Seller, could affect (i) the
transfer of the Loans, (ii) the execution, delivery or enforceability of this
Agreement or the performance by Seller of its obligations hereunder or (iii)
materially and adversely, the financial condition of Seller.
(i) The assignment and conveyance of the Underlying Notes and
the Mortgages by Seller pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction.
(j) Seller (i) is a solvent entity and is paying its debts as
they become due and (ii) after giving effect to the transfer of the Loans, will
be a solvent entity and will have sufficient capital to pay its debts as they
become due.
(k) Neither the Loan Schedule nor any computer tape,
statement, notice, schedule, certificate, report or other document furnished by
or to the best of Seller's knowledge, on behalf of Seller pursuant to this
Agreement or in connection with the transactions contemplated hereby and upon
which the Buyer has reasonably relied contains any untrue statement of material
fact or omits to state a material fact necessary to make the statements
contained therein not misleading. Since the furnishing of such items, except as
set forth on the Loan Schedule, there has been no material change which would
render the information set forth in any of such items untrue or misleading in a
material respect.
(l) Immediately prior to transfer of the Loans to the Buyer,
Seller had good title to, and was the sole owner of, the Loans free and clear of
all liens, other than liens for which Seller has obtained an executed release of
lien. Except for the Buyer, no Person other than Seller has any interest in the
Mortgage, whether as mortgagee, assignee, pledgee or otherwise. Immediately upon
the transfer thereof, the Buyer will have good title to each of the Loans, free
and clear of all liens.
(m) All of the Loans were originated in the United States, in
a state where Seller is qualified to transact such business in the ordinary
course of its business, except to the extent that any failure to be so qualified
would not materially and adversely affect the Loans or the Mortgages or the
transfer thereof or the enforceability of the Obligor's obligations thereunder.
None of the Loans have been originated in, nor are such Loans subject to the
laws
PURCHASE AGREEMENT - PAGE 4
of, any jurisdiction under which the transfer and assignment of Loans to Buyer
would be unlawful, void or voidable.
(n) The information set forth in the Loan Schedule is true and
correct in all material respects.
(o) The terms of all of the Underlying Notes and the Mortgages
have not been impaired, waived, altered or modified in any respect, except by
written instruments, executed in accordance with the customary credit policies
of Seller, which are reflected on the Loan Schedule. No Obligor has been
released, in whole or in part, except pursuant to the terms of an assumption
agreement which is part of the related Loan File and the terms of which are
reflected in the Loan Schedule.
(p) None of the Underlying Notes or the related Mortgages by
their respective terms are subject to any right of rescission, setoff,
abatement, diminution, counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of the Underlying Notes or the
Mortgages, or the exercise of any right thereunder in accordance with the terms
thereof, render the Mortgages unenforceable, in whole or in part, or subject to
any right of rescission, setoff, abatement, diminution, counterclaim or defense,
including the defense of usury, and no such right of rescission, setoff,
abatement, diminution, counterclaim or defense has been asserted with respect
thereto.
(q) None of the Mortgages have been satisfied, canceled or
subordinated, in whole or in part, or rescinded, and, except as reflected on the
Loan Schedule, the Mortgaged Properties have not been released from the lien of
the Mortgages, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission.
(r) All of the Underlying Notes and the Mortgages delivered to
the Buyer, or its designee, are genuine originals (except where certified copies
of the Mortgages have been delivered in accordance with Section 4(a)(ii) hereof)
and each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms.
(s) There has been no fraud, dishonesty, misrepresentation or
negligence on the part of Seller or, to such Seller's knowledge, the originator
or Obligor in connection with the origination of any Loan or in connection with
the transfer and contribution of such Loan to the Buyer.
(t) There is no material default, breach, violation or event
of acceleration existing under any of the Mortgages or the Underlying Notes and
no event which, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute such a default, breach, violation or
event of acceleration, and since the Cut-Off Date Seller has not waived any
default, breach, violation or event of acceleration.
(u) All of the Underlying Notes and the Mortgages comply with
all requirements of applicable federal, state and local laws and regulations.
The origination and servicing of the Loans and contribution of the Loans comply
with any and all applicable requirements of any applicable federal, state or
local law, including, without limitation, usury,
PURCHASE AGREEMENT - PAGE 5
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity and disclosure laws. To such Seller's knowledge, each
Mortgaged Property is in compliance in all material respects with all applicable
laws, zoning ordinances, rules, covenants and restrictions affecting the
construction, occupancy, use, and operation of such Mortgaged Property. To such
Seller's knowledge, all inspections, licenses and certificates required,
including certificates of occupancy, whether by law, ordinance, regulation or
insurance standards to be made or issued with regard to each of the Mortgaged
Properties, have been obtained and are in full force and effect.
(v) No Loan is a 30-Day Delinquent Loan.
(w) Seller has not advanced funds or induced, solicited or
knowingly received any advance of funds from a party other than the owner of the
Mortgaged Property subject to each of the Mortgages, directly or indirectly, for
the payment of any amount required by the respective Loans.
(x) To Seller's knowledge, there are no delinquent taxes,
ground rents, water charges, sewer rents, assessments (including assessments
payable in future installments) or other outstanding charges affecting any of
the related Mortgaged Properties.
(y) All of the Mortgaged Properties are located in the state
indicated on the Loan Schedule, and, except as reflected on the Loan Schedule,
consist of a single parcel of real property. All of the Mortgaged Properties are
in good repair, are free of damage and waste that would materially and adversely
affect their value and such Mortgaged Properties have not been materially
damaged by fire, wind or other cause, which damage has not been fully repaired
or for which insurance proceeds have not been received or are not expected to be
received in an amount sufficient to pay for such repairs.
(z) All of the Mortgages are valid, subsisting and enforceable
first liens on the related Mortgaged Properties, including all buildings on the
Mortgaged Properties and all fixtures related thereto, and all additions,
alterations and replacements made at any time with respect to the foregoing,
except as reflected on the Loan Schedule. Such lien is subject only to (i) the
lien of current real property taxes and assessments not yet due and payable,
(ii) covenants, conditions and restrictions, rights-of-way, easements and other
matters of the public record as of the date of recording, none of which
individually or in the aggregate materially interfere with the benefits of the
security intended to be provided by the Mortgages or the operation and use of
the related Mortgaged Properties, and (iii) other matters to which like
properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Mortgages or the use,
enjoyment, value or marketability of the related Mortgaged Properties. Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest on
the property described therein, except as reflected on the Loan Schedule. Except
as reflected on the Loan Schedule, the Underlying Notes are not secured by any
collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred to in
this paragraph.
PURCHASE AGREEMENT - PAGE 6
(aa) Each of the Mortgages contain provisions for the
acceleration of the payment of the unpaid principal balance of the Loan in the
event the related Mortgaged Properties are sold without the prior consent of the
Mortgagees thereunder.
(bb) There is no proceeding pending for the total or partial
condemnation of any of the Mortgaged Properties.
(cc) Each of the Mortgages contain customary provisions such
as to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Properties of the benefits of the security
provided thereby, including, (i) in the case of a Mortgage designated as a deed
of trust, by trustee's sale and (ii) otherwise by judicial foreclosure or power
of sale.
(dd) In the event any of the Mortgages constitute 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 such Mortgage, and
no fees or expenses are or will become payable by the Buyer or its assignees to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Obligor.
(ee) Each of the Loans are Eligible Loans as of the Closing
Date.
(ff) The form of endorsement of each Underlying Note satisfies
the requirement, if any, of endorsement in order to transfer all right, title
and interest of the party so endorsing, as noteholder or assignee thereof, in
and to that Underlying Note, and each form of assignment will be in recordable
form and will be sufficient to effect the assignment of and to transfer to the
assignee thereof, all right, title and interest under each Mortgage to which
that assignment relates.
(gg) All escrow deposits, if any, and other payments relating
to each Loan have been delivered to the Buyer or applicable servicer or its
agent, and all amounts required to be deposited by Seller or the related Obligor
have been deposited with the Buyer or the applicable servicer or its agent and
there are no deficiencies with regard thereto.
(hh) To Seller's knowledge, each of the Obligors has good
title to the related Mortgaged Properties.
(ii) The lien of each Mortgage is insured by an ALTA lender's
title insurance policy (or a binding commitment) or its equivalent, as adopted
in the applicable jurisdiction. Except as reflected on the Loan Schedule, the
policy (or such binding commitment) insures the originator of such Loan, its
successors and assigns, as to the first-priority lien of the Mortgage in the
original principal amount after all advances of principal, subject only to
permitted encumbrances, none of which, individually or in the aggregate should
interfere with the current use of the Mortgaged Property or materially detract
from the benefit of the first-priority (except as reflected on the Loan
Schedule) lien of the Mortgage. The originator of such Loan (including its
successors and assigns) is the sole named insured of the policy (or such binding
commitment), and the policy (or such binding commitment) is assignable to the
trustee without the consent of or any notification to the insurer. No claims
have been made under such policy (or such binding
PURCHASE AGREEMENT - PAGE 7
commitment), and Seller has no knowledge of any matter that would impair or
diminish the coverage of such policy.
(jj) Each Mortgaged Property is covered by insurance policies
providing coverage against loss or damage sustained by (i) fire and extended
perils included within the classification "All Risk of Physical Loss" in an
amount sufficient to prevent the Obligor from being deemed a co-insurer, and to
provide coverage of replacement or actual cost, consistent with industry
standards; and the policies contain a standard mortgagee clause naming the
mortgagee and its successors as loss payees; (ii) flood insurance (if any
portion of the Mortgaged Property is located in an area identified by the
Federal Emergency Management Agency as having special hazards); and (iii)
comprehensive general liability insurance in amounts as are generally required
by commercial mortgage lenders. The insurance policies contain clauses providing
they are not terminable and may not be reduced without ten (10) days prior
written notice to the mortgagee, and all premiums due and payable through the
Closing Date have been made. No notice of termination or cancellation with
respect to any such policies has been received by Seller which remains
effective. Each of the Mortgages obligate the Obligor to maintain all such
insurance at its cost and expense, and on the Obligor's failure to do so,
authorizes the holder of each of the Mortgages to maintain such insurance and to
obtain reimbursement therefor from the Obligor.
SECTION 6. TAKEOUT OBLIGATION. (a) Seller and the Buyer shall give
written notice to each other promptly after discovery of (i) a breach of any of
the representations and warranties set forth in Section 5 or (ii) any defect in
any document or documents constituting a part of a Loan File. For purposes of
this Section 6, any Loan (or the related REO Property) with respect to which
either a breach of any representation or warranty set forth in Section 5 exists
or any defect in any document or documents constituting a part of the related
Loan File exists is referred to as a "Defective Loan."
(b) Within thirty (30) days of its discovery or its receipt of
notice of any breach or defect the Seller shall, at its option, (i) promptly
cure such defect or breach in all material respects, or (ii) purchase the
affected Loan at a price equal to the Takeout Price. If the breach or defect has
not been cured within thirty (30) days after such discovery or receipt of
notice, Seller must purchase the Defective Loan within one Business Day for an
amount equal to the Takeout Price.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF BUYER. The Buyer
represents and warrants to Seller as follows:
(a) The Buyer is a corporation duly organized and validly
existing under the laws of the State of Maryland and has full power to own its
property, to carry on its business as presently conducted, and to enter into and
perform its obligations under this Agreement.
(b) The execution and delivery by the Buyer of this Agreement
have been duly authorized by all necessary action on the part of the Buyer.
PURCHASE AGREEMENT - PAGE 8
(c) Neither the execution and delivery of this Agreement by
the Buyer, nor the consummation of the transactions herein contemplated, nor
compliance by the Buyer with the provisions hereof, will conflict with or result
in a breach of, or constitute a default under, any of the provisions of the
charter of the Buyer or conflict with, result in a breach or violation of or
constitute a default under, the terms of any indenture or other agreement or
instrument to which the Buyer is a party or by which the Buyer is bound, or any
statute, order or regulation applicable to the Buyer of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Buyer.
(d) The execution, delivery and performance by the Buyer of
this Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency.
(e) This Agreement has been duly executed and delivered by the
Buyer and, assuming due authorization, execution and delivery by Seller,
constitutes a legal, valid and binding obligation of the Buyer enforceable
against it in accordance with its terms (subject to applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally and general principles of equity).
SECTION 8. INDEMNIFICATION. (a) Seller agrees to indemnify and hold
harmless the Buyer and its officers, directors, affiliates, employees and agents
(the "Buyer Indemnified Persons") from and against any and all losses, claims,
expenses, damages or liabilities to which the Buyer Indemnified Persons may
become subject, under the U. S. federal securities laws, the Agreement, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended from time to time (42 U.S.C. Sections 9601 et seq.) or otherwise,
insofar as such losses, claims, expenses, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) the inaccuracy of any
representation or warranty made by Seller in Section 5 hereof, and (ii) will
reimburse Buyer Indemnified Persons for any legal or other expense reasonably
incurred by it in connection with investigating or defending against such loss,
claim, damage, liability or action.
(b) Promptly after receipt by an indemnified party under this
Agreement of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnitor under
this Agreement, notify the indemnitor of the commencement thereof. The omission
so to notify the indemnitor will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Agreement, except to the
extent the defense of any such action is prejudiced by the failure of the
indemnified party to provide notice. If any such action is brought against any
indemnified party, and it notifies the indemnitor of the commencement thereof,
the indemnifying party shall be entitled to participate in, and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (which counsel shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal or other expenses subsequently
incurred
PURCHASE AGREEMENT - PAGE 9
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
SECTION 9. NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be personally delivered, mailed by nationally
recognized express delivery service, or by registered mail, postage prepaid, or
transmitted by telecopy to the recipient at such recipient's Notice Address or
at such other addresses as the parties hereto may designate in writing to each
other party hereto. All such notices and other communications shall be in
writing and effective upon receipt, except when telecopied, in which case, such
communication shall be effective upon telecopy against receipt of answer back or
written confirmation thereof.
SECTION 10. SEVERABILITY OF PROVISIONS. If any provision of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
SECTION 11. FURTHER ASSURANCE. Seller agrees to execute and deliver
such agreements, instruments, documents and certificates, and to take such
actions, as the Buyer may reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
SECTION 12. SURVIVAL. Each of the representations and warranties
contained in Section 5 shall survive the Closing Date and shall continue in full
force and effect, notwithstanding that Buyer or any Person has conducted or has
failed to conduct any partial or complete examination of the Loan Files.
SECTION 13. GOVERNING LAW. THIS AGREEMENT IS TO BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS
OF LAWS.
SECTION 14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument.
SECTION 15. ASSIGNMENT; BENEFICIARIES. All provisions of this Agreement
(including the representations and warranties set forth in Section 5 hereof)
shall be continuing obligations of Seller and shall (i) be binding upon Seller
and its successors and assigns and (ii) inure to the benefit of and be
enforceable by the Buyer and its successors and assigns. Seller may not assign
its rights under this Agreement, or delegate any of its duties hereunder,
without the prior written consent of the Buyer.
SECTION 16. ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to
the subject matter hereof.
PURCHASE AGREEMENT - PAGE 10
SECTION 17. AMENDMENTS; WAIVERS. This Agreement may not be amended,
changed, waived, modified, discharged or terminated except pursuant to an
instrument in writing signed by the parties hereto
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PURCHASE AGREEMENT - PAGE 11
IN WITNESS WHEREOF, parties have caused their names to be signed to
this Agreement by their respective officers thereunto duly authorized as of the
date first above written.
SUNSET FINANCIAL RESOURCES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
President and Chief Executive Officer
SUNSET MORTGAGE COMPANY, LP
BY: AVONWOOD CAPITAL CORPORATION, ITS
GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: President and COO
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PURCHASE AGREEMENT - PAGE 12
EXHIBIT A
TO
PURCHASE AGREEMENT
DEFINITIONS
The following words and phrases shall have the following meanings:
"Business Day" means any day other than a Saturday or a Sunday or a day
on which banking institutions in Dallas, Texas are authorized or obligated by
law or executive order to be closed.
"Closing Date" means on or before March 31, 2004.
"Collections" means all payments including, without limitation, Monthly
Payments, Principal Prepayments, Liquidation Proceeds and insurance proceeds,
but excluding Prepayment Penalties received by or on behalf of the Servicers in
respect of the Loans.
"Cut-Off Date" means on or before March 31, 2004.
"Defective Loan" has the meaning set forth in Section 7(a) of the
Purchase Agreement.
"Eligible Loan" is a Loan that meets the following requirements as of
the date of its transfer by Seller:
(a) the Underlying Note provides for level monthly payments
except as set forth on the Loan Schedule;
(b) is payable in United States Dollars and is secured by a
Mortgage on real property located in the United States;
(c) the Underlying Note relating to such Loan, according to
its original or amended terms, provides that the amount payable thereunder will
be due not more than 360 months following the origination date of such Loan;
(d) is not payable by an obligor which is located within the
meaning of Section 9.103 of the Uniform Commercial Code as enacted in the State
of Texas, in any jurisdiction outside of the United States and is not the United
States of America or any state or agency, department or instrumentality of the
United States of America or any state thereof;
(e) is not more than thirty (30) days delinquent as of the
Cut-Off Date;
(f) is evidenced by one original executed copy of the
Underlying Note;
(g) the Loan documents are consistent with underwriting and
credit policies of Seller;
EXHIBIT A
DEFINITIONS - PAGE 1
(h) shall not have ever been more than sixty (60) days past
due as of the Cut-Off Date;
(i) has a FICO score of at least 630;
"Loan" means collectively, a loan to a Person originated by Seller or
one of its Affiliates or purchased by Seller or one of its Affiliates to finance
or refinance the acquisition, construction, development or renovation of real or
personal property by such Person, each of which is evidenced by an Underlying
Note and a Mortgage and which is listed in the aggregate with any other loans to
such Person on the Loan Schedule.
"Loan File" means, with respect to a Loan, the Loan file delivered to
Buyer and the Servicer Loan File, taken together.
"Loan Schedule" means the schedule of Loans attached as Schedule I to
the Purchase Agreement. The Loan Schedule specifies the aggregate Cut-Off Date
Principal Balance of the Loans and, with respect to each Loan: (i) the loan
number; (ii) the name and address of the Obligor and address of the Mortgaged
Property; (iii) the original principal balance; (iv) the current Loan Rate; (v)
the amount of the current Monthly Payment and any step-up in the Monthly
Payment; (vi) the scheduled maturity date; (vii) any waiver, impairment,
alteration or modification of the terms of the Underlying Note or Mortgage or
the release, in whole or in part of any Obligor or Mortgaged Property; (viii)
any Mortgage not constituting a first lien; (ix) whether such Loan is secured by
any property other than the primary real estate collateral; and (x) any material
changes that would render information previously provided to the Buyer untrue or
misleading in a material respect.
"Monthly Payment" means, with respect to any Loan, each scheduled
monthly payment of principal and interest on such Loan which is payable by a
Obligor from time to time under the related Underlying Note.
"Mortgage" means collectively, any and all mortgages, deeds of trust,
security agreements, assignments of leases and rents or other instruments given
as security for an Underlying Note, together with any and all riders, addenda,
written modifications and amendments thereto.
"Mortgaged Property" means all real property, including all buildings,
structures, improvements or fixtures thereon and all appurtenances, water
rights, privileges and benefits appertaining thereto, and all personal property
that is conveyed, pledged or mortgaged, or in which a security interest is
granted, under a Mortgage to secure the payment of all sums and the performance
of all covenants and obligations that are to be paid or performed by a Obligor
under the terms of such Obligor's Loan.
"Mortgagee" means the mortgagee or secured party under a Mortgage.
"Obligor" means any obligor on an Underlying Note or any Person that
has acquired a Mortgaged Property and assumed the obligations of the obligor
under the Underlying Note and the Mortgage.
EXHIBIT A
DEFINITIONS - PAGE 2
"Person" means an individual, corporation, partnership, trust,
unincorporated association, joint venture or government or any agency or
political subdivision thereto.
"Related Assets" means, with respect to a Loan, all documents in the
related Loan File, all other documents held by the Seller, the servicer or any
subservicer with respect to the Loan, and any other assets related to the Loan.
"Takeout Price" means, with respect to any Loan purchased hereunder, an
amount equal to the sum of (i) 100% of the Loan principal balance thereof as of
the date of purchase, (ii) accrued interest thereon at the applicable Loan Rate
or Loan Rates from the date to which interest was last paid by the Obligor to
the next date on which a Monthly Payment is due under the Mortgage following the
date of purchase, (iii) expenses reasonably incurred or to be incurred by the
Buyer in respect of the breach or defect giving rise to the purchase obligation,
including any expenses arising out of the enforcement of the purchase
obligation.
"30-Day Delinquent Loan" means a Loan on which any Monthly Payment is
more than thirty (30) days contractually past due.
"Underlying Note" means the promissory note, deed of trust note or
other evidence of indebtedness evidencing the indebtedness of an Obligor under a
Loan, including any modification or amendment thereto.
EXHIBIT A
DEFINITIONS - PAGE 3
AMENDMENT
TO
PURCHASE AGREEMENT
This AMENDMENT (this "Amendment") to the Purchase Agreement (the
"Agreement") by and among SUNSET FINANCIAL RESOURCES, INC., a Maryland
corporation, having its principal office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Buyer"), and SUNSET MORTGAGE COMPANY, LP, a
Pennsylvania limited partnership ("Seller"), having its principal offices at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, dated February 19,
2004, is entered into as of the 26th day of February, 2004. Capitalized terms
that are not defined herein shall have the meanings assigned to such respective
terms in the Agreement.
WHEREAS, the parties have decided to replace certain of the Loans in
the portfolio of assets to be sold by Seller to Buyer.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained in this Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. The Agreement is hereby amended by deleting Schedule 1 attached
thereto in its entirety and replacing it with the Amended and Restated Schedule
1 attached hereto.
2. Notwithstanding any contrary provisions of the Agreement, the
undersigned parties agree to be bound by the terms and provisions of the
Agreement as amended by this Amendment. In all other respects the Agreement is
hereby ratified and confirmed.
3. The Amendment may be executed in two or more counterparts, each of
which shall be an original, and all of which together shall constitute one and
the same instrument. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation on the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature page were an original
thereof.
4. The Amendment shall be governed and construed by the laws of the
State of Texas (without regard to conflicts of laws principles).
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first above written.
BUYER:
SUNSET FINANCIAL RESOURCES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: President and CEO
------------------------------------
SELLER:
SUNSET MORTGAGE COMPANY, LP
By: Avonwood Capital Corporation,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: Sr. Vice President
------------------------------------
AMENDED AND RESTATED
SCHEDULE 1
LOANS
[See attached]
SCHEDULE I
TO
PURCHASE AGREEMENT
LOAN SCHEDULE
LOAN SCHEDULE - PAGE 1
NO. FILENAME BORROWER RATE LOAN AMOUNT LTV TRW - B TU - B EQ - B TRW - CB TU - CB EQ - CB LOAN PROGRAM
1 10006409 ▇▇▇▇▇▇▇▇ 5.750 $72,000.00 35.644 732 727 741 739 736 730 20 YR FXD
2 10006474 ▇▇▇▇▇▇▇▇▇▇ 5.250 $99,999.00 38.168 809 789 689 15 YR FIXD
3 200300169 ▇▇▇▇▇ 5.875 $330,000.00 40.000 770 764 759 30 YEAR FIXED
4 20030156 ▇▇▇▇▇ 5.875 $260,000.00 56.522 776 771 781 30 YEAR FIXED
5 10006346 ▇▇▇▇▇▇▇ 5.500 $51,800.00 35.724 806 792 798 769 751 752 15 YR FIXD
6 10006371 ▇▇▇▇▇▇▇▇▇▇▇ 5.875 $118,300.00 65.179 790 781 790 766 763 760 30 YR FIXED
7 2004011403 SPOTAK 3.250 $310,000.00 66.381 769 745 763 763 680 743 3/1 ARM
8 10006502 Polant 5.875 $110,600.00 69.125 766 752 768 30 YEAR FIXED
9 10006210 Schaefgen 6.250 $286,500.00 74.416 729 720 702 30 YR FXD
10 10006503 LANDKOWSKI 3.500 $149,000.00 68.981 689 702 759 3/1 ARM
11 10006293 ▇▇▇▇▇▇ 5.875 $209,000.00 75.180 795 784 798 30 YEAR FIXED
12 10006512 ▇▇▇▇▇▇ 5.875 $120,000.00 80.000 747 764 759 30 yr fixed
13 2004011202 ▇▇▇▇▇ 5.625 $196,000.00 80.000 653 694 706 30 yr fixed
14 3050243 ▇▇▇ 5.250 $387,800.00 66.000 774 790 827 760 775 793 15 YR FIXED
15 10006585 ▇▇▇▇▇▇▇▇▇ 5.000 $70,500.00 21.364 710 809 0 0 796 797 15 YR FIXD
16 200300175 DRAKE 4.875 $260,000.00 34.667 753 774 809 753 762 777 15 YR FIXD
17 10006537 ▇▇▇▇▇▇▇▇ 5.750 $80,000.00 48.048 691 679 686 709 701 684 30 YR FXD
18 10006590 White 5.375 $51,500.00 59.884 823 782 792 827 782 799 15 YR FIXD
19 10006465 ▇▇▇▇▇ 5.750 $184,020.00 63.599 666 709 667 30 YR FXD
20 10006557 ▇▇▇▇▇▇ 5.875 $77,500.00 69.820 795 771 786 792 762 790 30 YR FXD
21 10006587 ▇▇▇▇▇▇ 5.250 $154,000.00 70.000 647 654 668 15 YR FIXD
22 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇ 3.875 $123,500.00 76.235 722 728 805 686 689 701 3/1 ARM
23 20030004 VERDES 6.875 $148,000.00 78.723 675 706 652
24 20030027 ▇▇▇▇ 4.750 $285,000.00 71.250 680 684 716 674 708 732 5/1 ARM
25 10006354 ▇▇▇▇▇▇ 5.375 $59,000.00 74.214 766 776 772 716 737 736 15 YR FIXD
26 10006296 ▇▇▇▇▇▇▇▇▇ 5.875 $128,000.00 67.368 772 781 757 30 YR FXD
27 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 5.750 $200,000.00 67.797 630 635 663 630 645 663 30 YEAR FIXED
28 10005272 Riccardo 6.250 $240,000.00 80.000 775 750 739 30 yr fixed
29 2004012712 ▇▇▇▇▇▇▇▇▇ 4.875 $100,000.00 20.000 775 780 801 754 792 820 15 YR FIXD
30 10006604 ▇▇▇▇▇▇▇ 5.625 $85,700.00 31.164 820 797 804 806 805 793 20 YR FXD
31 2004021107 ▇▇▇▇▇▇▇▇ 4.875 $140,000.00 37.333 771 791 792 773 787 806 10 YR FIXD
32 10006546 ▇▇▇▇ 5.625 $120,000.00 43.011 739 760 750 780 760 759 25YR FRM
33 10006611 ▇▇▇▇▇▇▇ 5.875 $84,000.00 45.405 737 772 780 30 YR FXD
34 10006549 ▇▇▇▇▇▇ 6.125 $105,000.00 52.500 659 680 660 30 YR NIV - OH
35 10006609 ▇▇▇▇▇ 6.500 $160,000.00 58.182 697 717 666 30 NO DOC - PL
36 10006629 ▇▇▇▇▇▇ 5.125 $150,000.00 58.708 697 769 752 15 YR FIXD
37 10006631 Grove 5.750 $199,000.00 63.175 831 737 795 794 780 802 30 YR FXD
38 10006545 ▇▇▇▇▇▇▇▇ 4.875 $200,000.00 63.492 652 603 638 629 629 602 15 YR FIXD
39 10006501 ▇▇▇▇▇▇ 5.625 $163,500.00 64.497 755 740 741
40 10006554 Ho 5.125 $200,000.00 65.118 794 764 762 768 692 749 15 YR FIXD
41 10006591 ▇▇▇▇▇ 4.875 $53,000.00 66.250 784 788 785 767 761 762 15 YR FIXD
42 2004012301 ▇▇▇▇▇▇ 4.625 $201,400.00 67.133 760 791 793 7/23 BALLOON
43 10006565 LOVE 6.875 $108,750.00 70.617 729 723 718 30 YR NINA - O
44 2004012806 TEODOROVICI 5.125 $123,000.00 70.690 617 638 675 611 639 675 15 YR FIXD
45 2004012605 ▇▇▇▇▇▇▇▇ 5.000 $234,000.00 71.125 790 804 790 784 828 769 15 YR FIXD OSB
46 10006526 D'ORAZIO 6.375 $97,500.00 75.000 757 729 754 30 YEAR FIXED
47 2004012103 ▇▇▇▇▇▇ 5.625 $165,000.00 75.000 803 814 834 30 YR FXD
48 10006610 ▇▇▇▇▇▇▇ 5.500 $136,000.00 78.161 665 667 700 657 655 689 30 YR FXD
49 2004012105 ▇▇▇▇ 4.750 $106,500.00 78.309 736 753 776 763 765 788 5/1 Arm
50 2004012206 ▇▇▇▇▇▇ 5.750 $224,000.00 78.322 645 671 682 30 YR FXD
51 10006623 ▇▇▇▇▇ ▇▇. 6.625 $195,735.00 79.653 727 663 659 794 756 800 30 YR ▇▇▇▇ - P
52 10006555 ▇▇▇▇▇▇▇▇▇▇ 4.125 $319,000.00 79.770 740 700 694 703 743 744 3/1 ARM
53 10006616 KINKA 5.875 $333,700.00 69.812 770 753 737 770 740 742 30 YR FXD
54 10006651 ▇▇▇▇▇▇▇▇ 5.875 $128,800.00 80.000 709 698 654 731 723 713 30 YR FXD
8,895,604.00
AVERAGES 62.532 738.315 739.167 728.593 715.600 738.067 749.000
NO. FILENAME BORROWER APPROVED STATUS OCCUPANCY LIEN STATE YR OF LOAN ORIG MATURITY DATE
1 10006409 ▇▇▇▇▇▇▇▇ ▇▇ A/E Primary First VA 12/01/2003
2 10006474 ▇▇▇▇▇▇▇▇▇▇ ▇▇ A+ Primary First VA 12/23/2003
3 200300169 ▇▇▇▇▇ DU A/E Primary First CA 12/05/2003
4 20030156 ▇▇▇▇▇ Primary First NY 11/03/2003
5 10006346 ▇▇▇▇▇▇▇ ▇▇ E/A+ Primary First NJ 12/31/2003
6 10006371 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ A/E Primary First PA 01/02/2004
7 2004011403 SPOTAK DU A/E Primary First IL 01/14/2004
8 10006502 Polant LP A/E Primary First VA 01/08/2004
9 10006210 ▇▇▇▇▇▇▇▇▇ ▇▇ ACCEPT Primary First MD 12/10/2003
10 10006503 LANDKOWSKI DU A/E Primary First WI 01/15/2004
11 10006293 ▇▇▇▇▇▇ ▇▇ A+ Primary First NY 11/17/2003
12 10006512 ▇▇▇▇▇▇ ▇▇ E/A PRIMARY FIRST NJ 2/5/2004 3/1/2034
13 2004011202 ▇▇▇▇▇ DU PRIMARY FIRST IL 2/6/2004 3/1/2034
14 3050243 ▇▇▇ DU PRIMARY FIRST NJ 2/6/2004 3/1/2019
15 10006585 ▇▇▇▇▇▇▇▇▇ ▇▇ A/E Primary First FL 01/21/2004
16 200300175 DRAKE DU A/E Primary First TN 12/08/2003
17 10006537 ▇▇▇▇▇▇▇▇ ▇▇ E/A Primary First TN 01/29/2004
18 10006590 White LP E/A+ Primary First VA 02/05/2004
19 10006465 ▇▇▇▇▇ Primary First PA 01/08/2004
20 10006557 ▇▇▇▇▇▇ ▇▇ E/A Investment First PA 02/02/2004
21 10006587 ▇▇▇▇▇▇ DU A/E Primary First NJ 01/20/2004
22 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇ DU A/E Primary First PA 01/23/2004
23 20030004 VERDES Primary First PA 10/10/2003
24 20030027 ▇▇▇▇ Primary First VA 11/06/2004
25 10006354 ▇▇▇▇▇▇ ▇▇ A+ Primary First TX 01/02/2004
26 10006296 ▇▇▇▇▇▇▇▇▇ DU A/E Primary First NJ 12/23/2003
27 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DU A/E Primary First VA 01/12/2004
28 10005272 Riccardo UNITED ONE PRIMARY FIRST PA 2/12/2004 3/1/2034
29 2004012712 ▇▇▇▇▇▇▇▇▇ DU AE Primary First CA 01/27/2004
30 10006604 ▇▇▇▇▇▇▇ ▇▇ E/A+ Primary First PA 02/09/2004
31 2004021107 ▇▇▇▇▇▇▇▇ DU A/E Primary First MA 02/11/2004
32 10006546 ▇▇▇▇ Primary First CT 01/30/2004
33 10006611 ▇▇▇▇▇▇▇ DU A/E Primary First FL 02/10/2004
34 10006549 ▇▇▇▇▇▇ OSB NIV Primary First MD 12/30/2003
35 10006609 ▇▇▇▇▇ PLAT NO DOC Primary First CA 02/10/2004
36 10006629 ▇▇▇▇▇▇ LPA+ Primary First FL 01/28/2004
37 10006631 Grove LP A+ Primary First PA 02/09/2004
38 10006545 ▇▇▇▇▇▇▇▇ ▇▇ E/A Primary First MA 01/30/2004
39 10006501 ▇▇▇▇▇▇ ▇▇ eligible/accept Primary First PA 12/23/2003
40 10006554 Ho LP A PLUS Primary First FL 02/02/2004
41 10006591 ▇▇▇▇▇ ▇▇ E/A Primary First PA 02/06/2004
42 2004012301 ▇▇▇▇▇▇ DU AE Primary First VA 01/23/2004
43 10006565 LOVE OSB NINA Investment First NJ 01/06/2004
44 2004012806 TEODOROVICI DU A/E Primary First MD 01/28/2004
45 2004012605 ▇▇▇▇▇▇▇▇ OSB APPR Primary First NC 01/26/2004
46 10006526 D'ORAZIO LP A/E Investment First PA 01/20/2004
47 2004012103 ▇▇▇▇▇▇ DU A/E Primary First NJ 01/21/2004
48 10006610 ▇▇▇▇▇▇▇ ▇▇ E/A Primary First FL 02/10/2004
49 2004012105 ▇▇▇▇ DU A/E Primary First PA 01/21/2004
50 2004012206 ▇▇▇▇▇▇ DU A/E Primary First VA 01/22/2004
51 10006623 ▇▇▇▇▇ ▇▇. PLAT ▇▇▇▇ Primary First PA 02/10/2004
52 10006555 ▇▇▇▇▇▇▇▇▇▇ ▇▇ E/A Primary First NV 02/02/2004
53 10006616 KINKA DU A/E Primary First PA 2/11/2004
54 10006651 ▇▇▇▇▇▇▇▇ DU A/E Primary First NJ 2/17/2004