EXHIBIT 10.11.3
IMPAC WAREHOUSE LENDING GROUP
Initial Purchaser
and
HOMEGOLD, INC.
Seller
SELLER'S WARRANTIES AGREEMENT
Dated as of JULY 6, 2001
Mortgage Loans
This is a Seller's Warranties Agreement, dated and effective as of JULY
6,2001 and is executed between IMPAC WAREHOUSE LENDING GROUP. a CALIFORNIA
corporation. as the initial purchaser ("Initial Purchaser"), and HOMEGOLD, INC.
as the seller ("Seller").
PRELIMINARY STATEMENTS
From time to time, the Initial Purchaser will be purchasing from the
Seller pursuant to a Master Repurchase Agreement dated as of the Closing Date
between the Seller and the Initial Purchaser (the "Master Repurchase Agreement")
the mortgage loans which are subject to this Agreement, and the Sel1er has
agreed to make certain representations and warranties with respect thereto.
In consideration of the premises and the mutual agreements hereinafter
set forth, the Initial Purchaser and the Seller agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Capitalized terms not defined herein shall have the meanings given to them
in the Master Repurchase Agreement. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings specified in this Article:
"Agreement": This Seller's Warranties Agreement including all exhibits
hereto, amendments hereof and supplements hereto.
"Appraised Value": With respect to any Mortgage Loan, the value of the
related Mortgaged Property based upon the appraisal made for the originator at
the time of origination of the Mortgage Loan or the sales price of the Mortgaged
Property at such time of origination, whichever is less; provided, however, that
in the case of a Refinanced Mortgage Loan, such value is based solely upon the
appraisal made at the time of origination of such Refinanced Mortgage Loan.
"Assignment": An individual assignment of the Mortgage, notice of transfer
or equivalent instrument, sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect of record the sale or
transfer of the Mortgage Loan.
"Business Day": Any day other than (i) a Saturday or Sunday, or (i1) a
legal holiday in the State of CALIFORNIA, or (iii) a day on which banking
institutions in the State of CALIFORNIA are authorized or obligated by law or
executive order to be closed.
"Closing Date": The date on which the Initial Purchaser funds any purchase
pursuant to the Master Repurchase Agreement.
"Cut-off Date": The first day of the month in which the related Purchase
Date occurs.
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"Due Date": The date of each month on which each Monthly Payment is due on
a Mortgage Loan, exclusive of any days of grace.
"Escrow Account": An account maintained by the Seller for the deposit of
Escrow Payments received in respect of one or more Mortgage Loans.
"Escrow Payments": The amounts constituting ground rents, taxes,
assessments, water rates, common charges in condominiums and planned unit
developments, mortgage insurance premiums, fire and hazard insurance premiums
and other payments which have been escrowed by the Mortgagor with the mortgagee
pursuant to any Mortgage Loan.
"FHA": The Federal Housing Administration or any successor thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation or any successor
organization.
"FNMA": The Federal National Mortgage Association or any successor
organization. "Initial Purchaser": Impac Warehouse Lending Group
"Interim Period": The period of time from the Closing Date to the Servicing
Transfer Date, during which period the Seller shall service the Mortgage Loans
on behalf of the Purchaser.
"Loan-to-Value Ratio" or "LTV": With respect to any Mortgage Loan, the
original principal balance of such Mortgage Loan divided by the Appraised Value
of the related Mortgaged Property.
"Master Repurchase Agreement": As defined in the Preliminary Statement
hereto.
"Monthly Payment": The scheduled monthly payment of principal and interest
on a Mortgage Loan which is payable by a Mortgagor under the related Mortgage
Note.
"Mortgage": The mortgage, deed of trust or other instrument creating a lien
on real property securing the Mortgage Note.
"Mortgage File": The mortgage documents pertaining to a particular Mortgage
Loan which are specified in Exhibit A hereto.
"Mortgage Interest Rate": The annual rate at which interest accrues on any
Mortgage Loan.
"Mortgage Loan": An individual Mortgage Loan, including but not limited to,
all documents included in the Mortgage File, the Monthly Payments) principal
prepayments, cash liquidations, primary insurance proceeds, other insurance
proceeds, condemnation proceeds, liquidation proceeds, and any and all rights,
benefits, proceeds and obligations arising therefrom or in connection therewith,
which is sold by the Seller to the Initial Purchaser and which is the subject of
this Agreement. The Mortgage Loans originally subject to this Agreement are
identified on the Mortgage Loan Schedule.
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"Mortgage Loan Schedule": The list of Mortgage Loans subject to this
Agreement and identified on the schedule attached to the related Certificate of
Seller, which list shall set forth the following information with respect to
each Mortgage Loan:
(i) the loan number;
(ii) the Mortgagor's name;
(iii)the street address of the Mortgaged Property, including city,
state and zip code;
(iv) the Mortgage Interest Rate as of the Cut-off Date;
(v) the original term;
(vi) the original principal balance;
(vii)the first payment date;
(viii) the remaining term to amortized maturity and the stated
maturity date;
(ix) the Monthly Payment as of the Cut-off Date;
(x) the outstanding principal balance as of the Cut-off Date, after
giving effect to all payments of principal received on or before
such date;
(xi) the Loan-to-Value Ratio at origination;
(xii)a code indicating whether the Mortgaged Property is occupied by
owner,
(xiii) a code indicating the lien priority of the related Mortgage;
(xiv) a code indicating the type of residential dwelling;
(xv) a code indicating the credit grade of the related Mortgagor;
(xvi) with respect to each adjustable rate Mortgage Loan, the index;
(xvii) with respect to each adjustable rate Mortgage Loan, the margin;
(xviii) with respect to each adjustable rate Mortgage Loan, the
Mortgage Interest Rate at origination; and
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(xix)with respect to each adjustable rate Mortgage Loan, the Monthly
Payment at origination.
Such schedule shall also set forth the weighted average of the amounts set forth
in (iv) and (viii) above and the total of the amounts described under (x) above
for all of the Mortgage Loans. Such list may be in the form of more than one
list, col1ectively setting forth all of the information required.
"Mortgage Note": The note of a Mortgagor secured by a Mortgage.
"Mortgaged Property": The underlying real property securing repayment of a
Mortgage Note.
"Mortgagor": The obligor on a Mortgage Note.
"Purchaser": Impac Warehouse Lending Group as Initial Purchaser and holder
of the Mortgage Loans and any subsequent holder or holders of the Mortgage
Loans.
"Refinanced Mortgage Loan": A Mortgage Loan which was made to a Mortgagor
who owned the Mortgaged Property prior to the origination of such Mortgage Loan
and the proceeds of which were used in whole or part to satisfy an existing
mortgage.
"Related Documents": The documents, other than this Agreement, entered into
between the Seller and the Initial Purchaser with respect to the Mortgage Loans,
which documents consist of (a) each Confirmation, (b) the Master Repurchase
Agreement, (c) the Servicing Agreement, and (d) the Custody Agreement.
"Seller": HOMEGOLD, INC. or its successor in interest or any successor
under this Agreement appointed as herein provided.
"Servicing Agreement": The Servicing Agreement dated JULY 6, 2001 between
the Purchaser and the Seller.
"Underwriting Guidelines": The underwriting guidelines used by the Seller
in connection with the origination of the Mortgage Loans and, if applicable,
which have been submitted to and approved by the Initial Purchaser.
"VA": The United States Department of Veterans Affairs or any successor
thereto.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER;
REPURCHASE AND SUBSTITUTION;
REVIEW OF MORTGAGE LOANS
Section 2.01 Representations and Warranties of the Seller.
The Seller represents and warrants to the Purchaser that as of the Closing
Date and as of each date thereafter on which the Master Repurchase Agreement is
in effect:
(i) The Seller is duly organized, validly existing and in good standing
under the laws of SOUTH CAROLINA and is qualified to transact business in and is
in good standing under the laws of each state where a Mortgaged Property is
located or is otherwise exempt under applicable law from such qualification or
is otherwise not required under applicable 1aw to effect such qualification; no
demand for such qualification has been made upon the Seller by any state having
jurisdiction; and in any event the Seller is or will be in compliance with the
laws of any such state to the extent necessary to insure the enforceability of
each Mortgage Loan and the servicing of the Mortgage Loans in accordance with
the terms of the Servicing Agreement;
(ii) The Seller has the full power and authority to hold each Mortgage
Loan, to sell each Mortgage Loan and to execute, deliver and perform, and to
enter into and consummate, all transactions contemplated by this Agreement and
each Related Document. The Seller has duly authorized the execution, de1ivery
and performance of this Agreement and the Related Documents, has duly executed
and delivered this Agreement, and this Agreement and the Related Documents,
assuming due authorization, execution and delivery by the Initial Purchaser each
constitutes a 1egal, valid and binding obligation of the Seller, enforceable
against it in accordance with its terms;
(iii) Neither the execution and delivery of this Agreement and the Related
Documents, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Initial Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement and the Related Documents, will conflict
with or result in a breach of any of the terms, conditions or provisions of the
Seller's charter or by-laws or any legal restriction or any agreement or
instrument to which the Seller is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject;
(iv) There is no litigation pending or, to the Seller's knowledge,
threatened, which if determined adversely to the Seller would adversely affect
the sale of the Mortgage Loans to the Initial Purchaser, the execution, delivery
or enforceability of this Agreement or any Related Document, or the ability of
the Seller to service the Mortgage Loans or which would have a material adverse
effect on the financial condition of the Seller;
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(v) 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 compliance by the Seller with this Agreement and
the Related Documents, the delivery of the Mortgage Files to the Purchaser for
the benefit of the Purchaser, the sale of the Mortgage Loans to the Initial
Purchaser or the consummation of the transactions contemplated by this Agreement
and the Related Documents;
(vi) The consummation of the transactions contemplated by this Agreement
and the Related Documents are in the ordinary course of business of the Seller,
and the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Seller as contemplated by this Agreement and the Related
Documents are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(vii) The Seller used no adverse selection procedures in selecting the
Mortgage Loans from among the outstanding home mortgage loans in the Seller's
portfolio at the Closing Date as to which the representations and warranties set
forth in Section 2.02 could be made and had outstanding principal balances on
the Cut-off Date of at least $10,000;
(viii) The Seller has good and marketable title to, and is the sole owner
of, the Mortgage Loan, free and clear of any lien, charge or encumbrance or any
ownership or participation interest in favor of any other person, and the
mortgage note has not been assigned, pledged, hypothecated or otherwise
transferred to any person; and
(ix) Neither this Agreement nor any statement, report or other document
prepared and furnished by or on behalf of the Seller pursuant to this Agreement
or any Related Document or in connection with the transactions contemplated
hereby contains any untrue statement of fact or omits to state a fact necessary
to make the statements contained therein not misleading.
Section 2.02 Representations and Warranties as to Individual Mortgage
Loans.
The Seller hereby represents and warrants to the Purchaser that, as to each
Mortgage Loan, as of the related Purchase Date and each date thereafter up to
the related Repurchase Date:
(i) The information set forth in the Mortgage Loan Schedule is complete,
true and correct as of the Closing Date;
(ii) All payments required to be made for such Mortgage Loan under the
terms of the Mortgage have been made; the 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 the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage Loan, except
for interest accruing from the date of the mortgage note or date of disbursement
of the Mortgage Loan proceeds, whichever is greater, to the day that precedes by
one month the due date of the first installment of principal and interest; and
there has been no delinquency of more than thirty days in any payment by the
Mortgagor thereunder at any time since the origination of the Mortgage Loan;
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(iii) There are no delinquent taxes ground rents, water charges, sewer
rents or assessments, including assessments payable in future insta11ments, or
other outstanding charges affecting the related Mortgaged Property;
(iv) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments, the substance of which waiver, alteration or modification has been
approved by the primary mortgage guaranty insurer, if any, and is reflected on
the Mortgage Loan Schedule. No instrument of waiver, alteration or modification
has been executed, and no Mortgagor has been released, in whole or in part,
except in connection with an assumption agreement approved by the primary
mortgage insurer, if any, and which assumption agreement is part of the Mortgage
File and the terms of which are reflected in the Mortgage Loan Schedule;
(v) The Mortgage Note and the Mortgage are not subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of the Mortgage Note and the
Mortgage, or the exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury and no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
(vi) All buildings upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and such
other hazards as are customary in the area where the Mortgaged Property is
located, pursuant to insurance policies conforming to the requirements imposed
by FNMA for similar mortgage loans which are serviced under its MBS program in
an amount at least equal to the outstanding principal balance of the applicable
Mortgage Loan (without coinsurance). If the Mortgaged Property is in an area
identified on a Flood Hazard Map or Flood Insurance Rate Map issued by the
Federal Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect which policy conforms to the requirements of FNMA and FHLMC. All
such insurance policies (collectively, the "hazard insurance policy") contain a
standard mortgagee clause naming the Seller, its successors and assigns as
mortgagee and all premiums thereon have been paid. The Mortgage obligates the
Mortgagor thereunder to maintain all such insurance at Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(vii) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth in lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws applicable to the Mortgage Loan have been complied with in all material
respects;
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(viii) The Mortgage has not been satisfied, canceled or subordinated, in
whole, or rescinded, and the Mortgaged Property has not been released from the
lien of the Mortgage, in whole or in part, nor has any instrument been executed
that would effect any such release, cancellation, subordination or rescission;
(ix) The Mortgage is a valid, subsisting and enforceable lien on the
Mortgaged Property, inc1uding all improvements on the Mortgaged Property subject
only to (a) the lien of any prior mortgage, (b) the lien of current real
property taxes and assessments not yet due and payable, (c) covenants,
conditions and restrictions, rights of way, easements and other matters of the
public record as of the date of recording being acceptable to mortgage lending
institutions generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan and which do
not adversely affect the Appraised Value of the Mortgaged Property, and (d)
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 Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
estab1ishes and creates a valid, subsisting and enforceable first or second lien
and first or second priority security interest on the property described
therein;
(x) The Mortgage Note and the Mortgage are genuine, and each is the legal,
valid and binding obligation of the maker thereof enforceable in accordance with
its terms. The mortgage note is on a form acceptable to FNMA and FHLMC. The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the mortgaged property is located;
(xi) All parties to the Mortgage Note and the Mortgage had legal capacity
to enter into the Mortgage Loan and to execute and deliver the Mortgage Note and
the Mortgage, and the Mortgage Note and the Mortgage have been duly and properly
executed by such parties. The Mortgagor under the Mortgage Note is a natural
person. The debt of the Mortgage Loan is evidenced by one mortgage note only;
(xii) The proceeds of the Mortgage Loan have been fully disbursed and there
is no requirement for future advances thereunder, and any and all requirements
as to completion of any on-site or off-site improvements and as to disbursements
of any escrow funds therefor have been complied with. All costs, fees and
expenses incurred in making or closing the Mortgage Loan and the recording of
the mortgage were paid, and the mortgagor is not entitled to any refund of any
amounts paid or due under the mortgage note or mortgage. Any future advance made
prior to the date such Mortgage Loan was delivered to Custodian have been
conso1idated with the outstanding principal amount secured by the Mortgage, and
the secured principal amount, as consolidated, bears a single interest rate and
single repayment term. The consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan.
(xiii) The Mortgage Note and the Mortgage have not been assigned
or pledged, and the Seller has good and marketable title thereto, and the Seller
is the so1e owner thereof and has full
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right to transfer and sell the Mortgage Loan to the Initial Purchaser free and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest;
(xiv) All parties which have had any interest in the Mortgage, whether as
mortgagee, assignee, pledgee or otherwise, are (or, during the period in which
they held and disposed of such interest, were) in compliance with any and all
applicable licensing and "doing business" requirements of the laws of the state
wherein the Mortgaged Property is located;
(xv) The Mortgage Loan is covered by an ALTA lender's title insurance
policy acceptable to FNMA or FHLMC, issued by a title insurer acceptable to FNMA
and FHLMC and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring (subject to the exceptions contained in (ix)(a)
through (d) above) the Seller, its successors and assigns as to the first
priority lien of the Mortgage in the original principal amount of the Mortgage
Loan. Additionally, such lender's title insurance policy affirmatively insures
ingress and egress, and against encroachments by or upon the Mortgaged Property
or any interest therein. The Seller is the sole insured of such lender's title
insurance policy, and such lender's title insurance policy is in full force and
effect and will be in fun force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made under such
lender's title insurance policy, and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which would impair
the coverage of such lender's title insurance policy;
(xvi) There is no default, breach, violation or event of acceleration
existing under the Mortgage or the Mortgage Note and no event which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration, and the
Seller has not waived any default, breach, violation or event of acceleration;
(xvii) There are no mechanics' or similar liens or claims which have been
filed for work, labor or material (and no rights are outstanding that under law
could give rise to such lien) affecting the related Mortgaged Property which are
or may be liens prior to, or equal or coordinate with, the lien of the related
Mortgage;
(xviii) All improvements which were considered in determining the Appraised
Value of the related Mortgaged Property lay wholly within the boundaries and
building restriction lines of the Mortgaged Property, and no improvements on
adjoining properties encroach upon the Mortgaged Property. No improvement
located on or being part of the mortgaged property is in violation of any
applicable zoning law or regulation. The Mortgaged Property is lawfully occupied
under applicable law, and all inspections, licenses and certificates required to
be made or issued with respect to all occupied portions of such mortgaged
property and, with respect to the use and occupancy of the same, inc1uding but
not limited to, certificates of occupancy, have been made or obtained from the
appropriate authorities;
(xix) The Mortgage Loan was originated by the Seller or a savings
association, a savings bank, a commercial bank or similar banking institution
which is supervised and examined by a federal or state authority or by a
mortgagee approved by the Secretary of Housing and Urban
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Development pursuant to Section 203 of the National Housing Act. With respect to
adjustable rate Mortgage Loans, the Mortgage Interest Rate is adjusted on each
interest rate adjustment date to equal the index plus the gross margin, rounded
up or down to the nearest 1/8%, subject to the mortgage interest rate cap. With
respect to fixed rate Mortgage Loans, the mortgage note is payable in equal
monthly installments of principal and interest which are sufficient to amortize
the principal balance of the Mortgage Loan over its term and pay interest at the
Mortgage Interest Rate. With respect to adjustable rate Mortgage Loans,
installments of interest are subject to change due to the adjustments to the
Mortgage Interest Rate on each interest rate adjustment date, with interest
calculated and payable in arrears, sufficient to amortize the Mortgage Loan
fully by the stated maturity date, over an original term of not more than thirty
years from commencement of amortization. No Mortgage Loan is an interest only
mortgage loan. No Mortgage Note provides for negative amortization, No
adjustable rate Mortgage Loan is convertible to a fixed interest rate mortgage
loan. Interest on each Mortgage Loan is calculated on the basis of a 360-day
year consisting of twelve 30-day months;
(xx) The Mortgage contains the usual and customary "due-on-sale" clause or
other similar provision for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan in the event the related Mortgaged
Property is sold without the prior consent of the mortgagee thereunder;
(xxi) The Mortgaged Property is free of damage and waste and there is no
proceeding pending for the total or partial condemnation thereof. The mortgaged
property is in good repair and undamaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty so as to affect adversely
the value of the mortgaged property as security for the Mortgage Loan or the use
for which the premises were intended;
(xxii) The Mortgage contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, inc1uding, (a) in the case of a Mortgage designated as a deed
of trust, by trustee's sale, and (b) otherwise by judicial foreclosure. There is
no other exemption available to the Mortgagor which would interfere with the
right to sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage. The Mortgaged Property is not currently subject to any
bankruptcy proceeding or foreclosure proceeding and the Mortgagor is not
currently seeking protection under applicable bankruptcy laws. There is no
homestead or other exemption available to the Mortgagor which would interfere
with the right to sell the Mortgaged Property at a trustee's sale or the right
to foreclose the mortgage. No Mortgagor has requested relief under the Soldiers
and Sailors Civil Relief Act of 1940
(xxiii) The Mortgage Loan was originated in accordance with the
Underwriting Guidelines. The documents, instruments and agreements submitted for
loan underwriting were not falsified and contain no untrue statement of material
fact or omit to state a material fact required to be stated therein or necessary
to make the information and statements therein not misleading;
(xxiv) The Mortgage Note is not and has not been secured by any collateral
except
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the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in (ix) above;
(xxv) The Mortgage File contains an appraisal of the related Mortgaged
Property, on a form acceptable to FNMA or FHLMC signed prior to the approval of
the Mortgage Loan application by a qualified appraiser, duly appointed by the
Seller, who had no interest, direct or indirect, in the Mortgaged Property or in
any loan made on the security thereof, and whose compensation is not affected by
the approval or disapproval of the Mortgage Loan, and such appraisal met the
requirements of applicable laws and regulations governing the originator thereof
at the time of origination of the Mortgage Loan, and the appraisal satisfies the
requirements of Title XI of the Federal Institutions Reform, Recovery, and
Enforcement Act of 1989 and the regulations promulgated thereunder, all as in
effect on the date the Mortgage Loan was originated. The determination of the
Appraised Value of the Mortgaged Property was based on sales of comparable
properties;
(xxvi) In the event the Mortgage constitutes 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 the Purchaser to the trustee under the
deed of trust, except in connection with a trustee's sale after default by the
Mortgagor;
(xxvii) No Mortgage Loan contains provisions pursuant to which Monthly
Payments are (a) paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, (b) paid by any source other than the Mortgagor or (c) contains any
other similar provisions which may constitute a "buydown" provision. No Mortgage
Loan is a graduated payment mortgage loan or growing equity mortgage Loan;
(xxviii) The Mortgagor has executed a statement to the effect that the
Mortgagor has received all disclosure materials required by applicable law with
respect thereto. Such statement is included in the Mortgage File;
(xxix) [Intentionally Omitted]
(xxx) No Mortgage Loan was made in connection with (a) the construction or
rehabilitation of a Mortgaged Property or (b) facilitating the sale or exchange
of a Mortgaged Property by the lender;
(xxxi) No error, omission, misrepresentation, negligence, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the part of any
person, including without limitation the Mortgagor, any appraiser, any builder
or developer, or any other party involved in the origination of the Mortgage
Loan or in the application of any insurance in relation to such Mortgage Loan;
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(xxxii) The Seller has no knowledge of any circumstances or condition with
respect to the Mortgage, the Mortgaged Property, the Mortgagor or the
Mortgagor's credit standing that can reasonably be expected to cause private
institutional investors to regard the Mortgage Loan as an unacceptable in
vestment, cause the Mortgage Loan to become delinquent, or adversely affect the
value or marketability of the Mortgage Loan;
(xxxiii) The Mortgaged Property is located in the state indicated on the
Mortgage Loan Schedule, and consists of a single parcel of real property with a
detached single family residence erected thereon, or a two to four family
dwelling, or an individual condominium unit in a low-rise condominium, or an
individual unit in a planned unit development as defined by FNMA, none of which
is a mobile home;
(xxxiv) The original LTV of the Mortgage Loan was not more than 100%;
(xxxv) With respect to each Mortgage Loan which is subject to the
provisions of the Homeownership and Equity Protection Act of 1994; the Mortgage
Loan is identified as such on the Mortgage Loan Schedule, the related Mortgage
File contains a notice from the originator, and a copy of a notice to each
entity which was a purchaser or assignee of the Mortgage Loan, satisfying the
provisions of such Act and the regulations issued thereunder, to the effect that
the Mortgage Loan is subject to special truth in lending rules.
(xxxvi) All Escrow Accounts are maintained with Seller and have been
maintained in accordance with applicable law and the terms of the Mortgage
Loans. The Escrow Payments required by the Mortgages which have been paid to the
Seller for the account of the Borrower are on deposit in the appropriate Escrow
Account. No escrow deposits or Escrow Payments or other charges or payments due
the Seller have been capitalized under any Mortgage or the related Mortgage
Note;
(xxxvii) Except for such documents that are held by the Custodian or a
servicer of the related Mortgage Loan, the Seller is in possession of a complete
mortgage file (including a copy of the survey of the mortgaged property, if any;
an original hazard insurance policy and, if required by law, flood insurance
policy, with extended coverage of the hazard insurance policy; a Mortgage Loan
closing statement; a Mortgage Loan application; verification of employment and
income, if any; evidence of source and amount of downpayment; credit report on
the mortgagor; an appraisal report; a photograph of the mortgaged property; an
executed Truth-in-Lending disclosure statement and rescission rights waiver and
a copy of all other materials required by law to be delivered to the mortgagor;
a contract of sale, if any, and any other documents customarily consented or
created, and retained, in connection with the origination of mortgage loans).
Seller has delivered, or caused to be delivered, to the Buyer or Custodian as
directed by Buyer, each document required to be so delivered under the Custody
Agreement;
(xxxviii) All funds received by the Seller in connection with the Mortgage
Loans, including, without limitation, foreclosure proceeds, fire insurance
proceeds from fire losses, condemnation proceeds and principal reductions, have
been applied to reduce the principal balance
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of the Mortgage Loans in question or deposited in the Escrow Account, or for
reimbursement of repairs to the Mortgaged Property or as otherwise required by
applicable law;
(xxxix) The Seller and any current or prior mortgagee or servicer of the
Mortgage Loans have complied in all respects material to the value of the
Servicing Rights with every applicable federal, state, or local law, statute,
and ordinance, and any rule, regulation, or order issued thereunder including,
without limitation, the fair housing, anti-redlining, equal credit opportunity,
truth-in-lending, real estate settlement procedures, fair credit reporting, and
every other prohibition against unlawful discrimination in residential lending
or governing consumer credit, and also including, without limitation, the
Consumer Credit Reporting Act, Equal Credit Opportunity Act of 1975 and
Regulation B, Fair Credit Reporting Act, Truth-in-Lending Law, in particular,
Regulation Z as amended, the Flood Disaster Protection Act of 1973, the Real
Estate Settlement Procedures Act of 1974 as amended, and state and local
consumer credit codes and Laws, and the origination, collection and all other
practices of the originator, the Seller and an prior servicers in connection
with the origination or servicing of each Mortgage and Mortgage Note are and
have been in all respects legal, proper, prudent and customary in the mortgage
origination and servicing business. All mortgage interest rate adjustments have
been made in strict compliance with state and federal law and the terms of the
related mortgage note. Any interest required to be paid pursuant to state and
local law has been properly paid and credited; and
(xl) Neither the Seller nor any of its agents or affiliates has contacted
or shall contact any Mortgagor for the purpose of inducing or encouraging the
early prepayment or refinancing of the related Mortgage Loan, nor has the Seller
or any of its agents or affiliates utilized, nor shall they utilize, any
information held or acquired by the Seller or such agency or affiliates in their
capacity as mortgagees or servicers of the Mortgage Loans to derive any other
incidental income or benefit from the servicing thereof, nor has the Seller or
such agents or affiliates given, nor will they give, a list of Mortgagors to any
person for such purpose or to derive any other incidental income or benefit from
the servicing thereof; provided, however that the foregoing shall not be
construed to limit or impair other activities of the Seller in its capacities
other than as servicer of the Mortgage Loans, including, without limitation, the
provision of banking and related services to customers (which may include the
Mortgagors under the Mortgage Loans other than in their capacity as such) in the
ordinary course and any general solicitation or encouragement of such customers
to prepay or refinance existing mortgages or to purchase or renew insurance in
connection therewith so long as the provisions of such services and any such
solicitation or encouragement does not result in the refinancing of a Mortgage
Loan by the Seller or any affiliate of the Seller.
Section 2.03 Breach of Representation or Warranty.
It is understood and agreed that the representations and warranties set
forth in Sections 2.01 and 2.02 shall survive the sale of the Mortgage Loans to
the Purchaser and shall inure to the benefit of the Purchaser and its successors
and assigns, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or Assignment or the examination of any Mortgage File and without
regard to any applicable statute of limitations. Upon discovery by Seller of a
breach of any
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of the foregoing representations and warranties which materially and adversely
affects the value of the Mortgage Loans or the interest of the Purchaser in any
Mortgage Loan, the Seller shall give prompt written notice to the Purchaser.
The Seller shall indemnify the Purchaser and hold it or them harmless
against any loss, damages, penalties, fines, forfeitures, legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from a breach of
the Seller's representations and warranties contained in this Agreement. It is
understood and agreed that the obligations of the Seller set forth in this
Section 2.03 to indemnify the Purchaser as provided in this Section 2.03 are in
addition to any other remedies of the Purchaser respecting a breach of the
foregoing representations and warranties.
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ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01 Amendment.
This Agreement may be amended from time to time by the Purchaser and the
Seller only by written agreement signed by the Purchaser and the Seller.
Section 3.02 Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of CALIFORNIA except to the extent preempted by Federal law.
Section 3.03 Notices.
Any notices or other communications permitted or required hereunder shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or transmitted by telex. telegraph or telecopier and confirmed by a
similar mailed writing. if (i) in the case of the Seller and HOMEGOLD, INC.
Attention: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ or such other address as may hereafter be furnished
to the Purchaser in writing by the Seller and (ii) in the case of the Purchaser,
Impac Warehouse Lending Group ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or such other address as may be furnished to the
Seller in writing by the Purchaser.
Section 3.04 Severability Provisions.
If anyone or more of the covenants, agreements, provisions or terms of this
Agreement shall be for any reason whatsoever held invalid, the invalidity of any
such covenant, agreement, provision or term of this Agreement shall in no way
affect the validity or enforceability of the other provisions of this Agreement,
provided, however, that if the invalidity of any covenant, agreement or
provision shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is as nearly as possible the
same as the economic effect of this Agreement.
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Section 3.05 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section 3.06 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned to them
in this Agreement and include the plural as well as the singular, and the use of
any gender herein shall be deemed to include the other gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(iv) a reference to a Subsection without further reference to a Section is
a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v) the words "herein", "hereof', "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular provision;
and
(vi) the term "include" or "including" shall mean without limitation by
reason of enumeration.
Section 3.07 Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (i) consents, waivers and modifications which may hereafter be
executed, (ii) documents received by any party at the closing, and (iii)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
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Section 3.08 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall be deemed to
be one instrument. It shall not be necessary in making proof of this Agreement
or any counterpart thereof to produce or account for any other counterpart.
Section 3.09 Entire Agreement. Successors and Assigns.
Except as otherwise provided herein, this Agreement together with the
Related Documents constitutes the entire agreement between the parties hereto
and supersedes all rights and prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter hereof.
This Agreement shall not be assignable in whole or in part by the Seller. The
Purchaser may assign this Agreement, in whole or in part. The Purchaser shall
give the Seller prompt written notice of any such assignment, provided, however,
that any failure to give such notice shall not be deemed to condition, qualify
or affect any obligation of the Seller hereunder. This Agreement and any rights,
remedies, obligations or liabilities under or by reason of the Agreement shall
inure to the benefit of and be binding on the parties hereto or their respective
successors and permitted assigns.
IN WITNESS WHEREOF the Seller and the Initial Purchaser have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
IMPAC WAREHOUSE LENDING GROUP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: EVP, CFO
HOMEGOLD, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
STATE OF CALIFORNIA)
) SS.
COUNTY OF )
On the 11th day of March, 2002 before me, a Notary Public in and for said
State, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ known to me to be EVP. CFO of
Impac Warehouse Lending Group, the corporation that executed the within
instrument and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my official
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Notary Public
My Commission expires: August 21, 2004
STATE OF )
) SS.
COUNTY OF )
On the 3O day of July 2001 before me, a Notary Public in and for said
State, personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, known to me to be a President of and
HOMEGOLD, INC. a corporation that executed the within instrument, and a1so known
to me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my official seal
the day and year in this certificate first above written.
/s/
---------------------------------------
My Commission expires: 3/22/2009
EXHIBIT A
CONTENTS OF MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each
of the following items, which shal1 be available for inspection by the
Purchaser.
1 The original note or other evidence of indebtedness (the "Mortgage Note")
of the obligor thereon (each such obligor, a "Mortgagor"), endorsed to the
order of or assigned to Seller by the holder/payee thereof, without
recourse, and endorsed by Seller, without recourse, in blank.
2 The original mortgage, deed of trust or other instrument (the "Mortgage")
creating a first lien on the underlying property securing the Mortgage Loan
(the "Mortgaged Property"), naming Seller as the "mortgagee" or
"beneficiary" thereof, and bearing on the face thereof the address of
Seller, or, if the Mortgage does not name Seller as the
mortgagee/beneficiary, the Mortgage, together with an instrument of
assignment assigning the Mortgage, individually or together with other
Mortgages, to Seller and bearing on the face thereof the address of Seller,
and, in either case, bearing evidence that such instruments have been
recorded in the appropriate jurisdiction where the Mortgaged Property is
located (or, in lieu of the original of the Mortgage or the assignment
thereof, a duplicate or conformed copy of the Mortgage or the instrument of
assignment, if any, together with a certificate of either the closing
attorney or an officer of the title insurer that issued the related title
insurance policy, or a certificate of receipt from the recording office,
certifying that such copy or copies represent true and correct copy(ies) of
the original(s) and that such original(s) have been or are currently
submitted to be recorded in the appropriate governmental recording office
of the jurisdiction where the Mortgaged Property is located).
3 An original assignment of Mortgage, in blank, which assignment shall be in
form and substance acceptable for recording and, in the event that the
Seller acquired the Mortgage Loan in a merger, the assignment must be by
"[Seller], successor by merger to [name of predecessor]"
4 Any intervening assignment of the Mortgage not included in (ii) above,
including any warehousing assignment.
5 Any assumption, modification, extension or guaranty agreement.
6 The Lender's title insurance policy, or, if such policy has not been
issued, a written commitment or interim binder issued by the title
insurance company evidencing that the required title insurance coverage is
in effect and unconditionally guaranteeing the holder of the Mortgage Loan
that the lender's title insurance policy will be issued.
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7 Any instrument necessary to complete identification of any exception set
forth in the exception schedule in the title insurance policy (e.g., map or
plat, restrictions, easements" sewer agreements, home association
declarations, etc.).
8 A survey of the Mortgaged Property.
9 Any hazard insurance policy or flood Insurance policy, with extended
coverage of the hazard insurance policy.
10 The Mortgage Loan closing statement (Form HUD-l) and any other
truth-in-lending, real estate settlement procedure forms or other
disclosure statements required by law.
11 The residential loan application, if applicable.
12 Any verification of employment and income.
13 Any verification of acceptable evidence of source and amount of
downpayment.
14 Any credit report on the borrower under the Mortgage Loan.
15 Each residential appraisal report.
16 A photograph of the Mortgaged Property.
17 If the Mortgage Note or Mortgage or any other material document or
instrument relating to the Mortgage Loan has been signed by a person on
behalf of the Mortgagor, the power of attorney or other instrument that
authorized and empowered such person to sign with recording information
thereon.
18 Any policy or certificate of primary mortgage guaranty insurance.
19 Any tax receipts, insurance premiums, ledger sheets, payment records,
insurance claim files and correspondence, current and historical
computerized data files, underwriting standards used for origination and
all other papers and records developed or originated by the Seller, any
servicer or others, required to document the Mortgage Loan or to service
the Mortgage Loan.
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20 With respect to FHA insured Mortgage Loans, the original FHA Insurance
Contract, together with a completed HUD Form 92080 "Mortgagee Record
Change" with the Purchaser's name left blank.
21 With respect to VA guaranteed Mortgage Loans, the original VA Guaranty
Certificate.
