Exhibit 10.10
BAY FINANCIAL SAVINGS BANK, F.S.B.
WHOLESALE MORTGAGE PROGRAM
MASTER AGREEMENT FOR SALE AND PURCHASE OF
MORTGAGES
BY AND BETWEEN
BAY FINANCIAL SAVINGS BANK, F.S.B.
AND
WESTMARK MORTGAGE CORPORATION
SELLER
INDEX
I. RECITALS................................................................................1
II. DEFINITIONS.............................................................................1
(A) Agreement......................................................................1
(B) Loan to Value Ratio............................................................1
(C) Loan...........................................................................1
(D) "Marked-Up"Title Insurance Policy, Binder or Certificate.......................1
(E) Mortgage.......................................................................1
(F) Essential Mortgage File Documents..............................................1
(G) Mortgage Loans.................................................................1
(H) Mortgaged Property or Subject Property.........................................2
(I) Mortgagor or Borrower..........................................................2
(J) Note...........................................................................2
(K) Purchase Price.................................................................2
(L) Related Assets.................................................................2
(M) Settlement Date................................................................2
(N) Underwriting Guidelines/Purchasing Guidelines..................................2
III. OFFER TO SELL AND ACCEPTANCE OF OFFER...................................................2
(A) Offer..........................................................................2
(B) Acceptance.....................................................................2
IV. PURCHASE AND SALE OF LOANS..............................................................2
(A) Delivery of Loans..............................................................2
(B) Purchase and Sale..............................................................3
(C) Purchase Price.................................................................3
(D) Payment of Purchase Price......................................................3
(E) Premium Rebate.................................................................3
V. REPRESENTATIONS AND WARRANTIES OF THE SELLER............................................4
(A) Representations and Warranties of the Seller - General.........................4
(B) Representations and Warranties of the Seller As to Each Loan...................5
VI. BREACH OF REPRESENTATION AND WARRANTIES.................................................7
(A) Remedy For Breach..............................................................7
(B) Reassignments..................................................................7
(C) "Buy-Back Price"...............................................................8
(D) Definition of "Loss"...........................................................8
(E) Remedy For Non-Delivery of Documents...........................................8
(F) Remedy For First Payment Default...............................................8
(G) Remedy to Insure Accuracy of Real Estate Appraisals............................8
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VII. REPRESENTATIONS AND WARRANTIES OF THE BUYER.............................................9
VIII. IDENTIFICATION..........................................................................9
IX. RELATIONSHIP OF THE PARTIES............................................................10
X. OPINION OF COUNSEL.....................................................................10
XI. CLOSING DOCUMENTS......................................................................10
XII. MISCELLANEOUS..........................................................................10
(A) Additional Covenants..........................................................10
(B) Survival of Covenants, Agreements, Representations
and Warranties-Successors and Assigns.........................................11
(C) Severability..................................................................11
(D) Attorneys'Fees................................................................11
(E) Waivers.......................................................................11
(F) Notice........................................................................11
(G) Insurance Prepayment..........................................................11
(H) Assignment....................................................................12
(I) Captions......................................................................12
(J) Entire Agreement..............................................................12
(K) Governing Law.................................................................12
(L) Termination...................................................................12
(M) Arbitration, Jurisdiction, and Venue..........................................12
(N) Endorsements..................................................................13
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MASTER AGREEMENT FOR SALE AND PURCHASE OF MORTGAGES
This Master Agreement for Sale and Purchase of Mortgages is made this
12th day of February, 1999 by and between Bay Financial Savings Bank, F.S.B.,
located at 5537 Sheldon Road, Tampa, FL 33615, a Corporation organized and
existing under the laws of the United States ("Buyer") and Westmark Mortgage
Corporation located at 8000 North Federal Highway, Boca Raton, Florida 33487, a
Corporation organized and existing under the laws of California ("Seller").
I. RECITALS
WHEREAS, the Seller desires from time to time to offer for
sale to the Buyer and the Buyer desires from time to time to purchase from the
Seller on the terms and subject to the conditions set forth herein certain Loans
owned by the Seller evidenced by notes and secured by mortgages of the
agreed-upon priority on real property owned by the borrowers ("Borrowers").
WHEREAS, the Buyer and the Seller desire to enter into this
agreement to govern the sale and purchase of said Loans.
NOW, THEREFORE, in consideration of the above recitals and the
mutual covenants contained herein, the parties hereto hereby agree as follows:
II. DEFINITIONS
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
(A) AGREEMENT: shall mean this Agreement as same may be
amended and supplemented from time to time. The parties agree that this
Agreement shall be used as the master sale and purchase agreement for those
loans purchased by Buyer from Seller in the future, unless otherwise agreed in
writing by the parties.
(B) LOAN TO VALUE RATIO: shall mean the sum of the original
principal amount of the Mortgage Loan and the outstanding principal balance of
the first Mortgage (the "first Mortgage"), if any, at the time of origination of
the Mortgage Loan divided by the lesser of the original purchase price of the
Mortgaged Property if Borrower purchased the Mortgaged Property within twelve
(12) months of the Mortgage Loan origination date or the appraised value of the
Mortgaged Property.
(C) LOAN: the Note, the related Mortgage and the Related
Assets are referred to as "Loan," and collectively as "Loans."
(D) "MARKED-UP" TITLE INSURANCE POLICY, BINDER OR CERTIFICATE:
a title insurance policy as further defined in Article V(B)9 of this Agreement
in which all liens, mortgages, claims, assessments, defects, encumbrances and
other exceptions affecting or against the Mortgaged Property have been removed
and are insured against in favor of Buyer by the title insurance company unless
otherwise agreed or approved by the Buyer in writing.
(E) MORTGAGE: the Note, bond, deed of trust, Mortgage,
mortgage warranty, extension agreement, assumption of indebtedness, assignment
and any other documents constituting the basic instruments for real estate
security on real property owned by the Borrower in the state in which the
Mortgaged Property is located.
(F) ESSENTIAL MORTGAGE FILE DOCUMENTS: as to each Mortgage
Loan, the original of the Note, Mortgage, title insurance policy including
endorsements or "marked-up" title commitment, Related Assets and the additional
documents as described in EXHIBIT "A,' attached hereto and made a part hereof,
as applicable.
(G) MORTGAGE LOANS: the Loans identified in the Purchase
Schedule (EXHIBIT "B1") as from time to time are subject to this Agreement.
(H) MORTGAGED PROPERTY OR SUBJECT PROPERTY: the residential
real property subject to the Mortgage which secures the Mortgage Loan.
(I) MORTGAGOR OR BORROWER: the obligor under a Mortgage Loan.
(J) NOTE: the original Note or bond or other evidence of
indebtedness evidencing the indebtedness of the Borrower/Mortgagor under a
Mortgage Loan.
(K) PURCHASE PRICE: the purchase price for the Loan(s)
described on each Purchase Schedule shall be an amount as of the Settlement Date
equal to the sum of the: (1) unpaid principal balances of the Note(s); (2) all
interest accrued (up to but not including the Settlement Date) but unpaid on the
Note(s) (prorated on a 30-day month - 360-day year); and (3) any premiums due
Seller, if applicable, in accordance with the Approval Advice or Purchase
Schedule; (4) less any discount due Buyer, if applicable, in accordance with the
Approval Advice or Purchase Schedule; and (5) less the fee for recordation of
assignments, if applicable.
(L) RELATED ASSETS: the documents as further defined in
Article IV(A)(iv) of this Agreement.
(M) SETTLEMENT DATE: the date of the funding or payment of
Purchase Price by the Buyer for Loans purchased pursuant to this Agreement. Each
Settlement shall be held at the offices of Bay Financial Savings Bank, F.S.B.,
5537 Sheldon Road, Tampa, FL 33615.
(N) UNDERWRITING GUIDELINES/PURCHASING GUIDELINES: EXHIBIT "C"
attached hereto and made a part hereof as may from time to time be amended by
Buyer.
III. OFFER TO SELL AND ACCEPTANCE OF OFFER
(A) OFFER: The Seller may offer from time to time to submit to
the Buyer a list of the Loans, along with the Essential Mortgage File Documents,
as defined herein, for each of the Loans, for the Buyer's review. The Buyer
shall then deliver to the Seller a Purchase Schedule on which the Buyer has
indicated which Loans, if any, the Buyer is offering to purchase from the Seller
and the Purchase Price for the Loans Buyer is willing to purchase.
(B) ACCEPTANCE: The Seller shall endorse the Notes and
Mortgages evidencing the Loan on which the Seller agrees to accept the Buyer's
offer to purchase. Such endorsement shall constitute the Seller's acceptance of
the Buyer's offer to purchase the indicated Loans pursuant to the terms and
conditions of this Agreement.
On occasion, Bayer may issue to Seller a written Approval
Advice in the form attached hereto, made a part hereto and marked EXHIBIT "D,"
to cover a specific Loan purchase by Buyer hereunder which is approved by Buyer
in advance of said specific Loan being made by Seller. Any purchase made
hereunder that is subject to an Approval Advice shall be governed first by the
terms of such Approval Advice and then by the terms of this Agreement, and to
the extent of a conflict between the Approval Advice and this Agreement, the
Approval Advice shall govern for that purchase and only that purchase.
Buyer shall have the absolute and sole discretion and option
to agree or decline to purchase any Loans(s) submitted by Seller for review.
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IV. PURCHASE AND SALE OF LOANS
(A) DELIVERY OF LOANS. On or before the business day
immediately preceding each Settlement Date, the Seller shall deliver to the
Buyer the following for each Loan purchased:
(i) Those Loans described by the Buyer on each
Purchase Schedule which are purchased by Buyer. pursuant to this Agreement.
(ii) The agreed-upon priority liens and/or Mortgages
on Subject Property.
(iii) The Note(s) and the Mortgage(s) endorsed by an
authorized Officer of Seller to the Buyer pursuant to the language set forth on
EXHIBIT "E," attached hereto and made a part hereof together with an executed
individual assignment to the Buyer, in recordable form and originals of all
intervening assignments, if any, of the Seller's beneficial interest in the
Mortgage, showing a complete chain of title from origination to the Seller,
including warehousing assignment, with evidence of recording thereon.
(iv) Any and all documents, instruments, collateral
agreements, and assignments and endorsements for all documents, instruments and
collateral agreements, referred to in the Notes and/or Mortgages or related
thereto, including, without limitation, current insurance policies (private
mortgage insurance, if applicable; flood insurance, if applicable; hazard
insurance; title insurance; and other applicable insurance policies) covering
the Subject Property or relating to the Notes and all files, books, papers,
ledger cards, reports and records including, without limitation, loan
applications, Borrower financial statements, separate assignment of rents, if
any credit reports and appraisals, relating to the Loans (the "Related Assets").
In all cases, the Related Assets shall be the original documents.
(v) The Essential Mortgage File Document List,
including all writings evidencing the Loan(s) purchased by Buyer. In all cases,
these documents shall be the original documents.
(vi) In the event that Seller cannot deliver to Buyer
a duly recorded assignment of Mortgage or any other document required to be
recorded under this Agreement on the Settlement Date solely because or a delay
caused by the public recording office when such document(s) has been delivered
for recordation, Seller shall deliver to the Buyer a certified copy of each such
document(s) with a statement thereon signed by an Officer of the Seller
certifying each to be a true and correct copy of document(s) delivered to the
appropriate public recording official for recordation. Seller shall deliver to
Buyer such recorded document(s) with evidence of recording indicated thereon no
later than 15 days after Seller receives such document, but in any event, no
later than 120 days from the Settlement Date.
(B) PURCHASE AND SALE. On each Settlement Date hereunder,
Seller shall sell, assign, transfer, convey and deliver to Buyer all of its
right, title and interest in and to the Loans, assets and documents as more
fully enumerated and set forth in Article IV (A)(i) through (vi) inclusive,
which is incorporated herein by reference.
(C) PURCHASE PRICE: The Purchase Price for the Loan described
on each Purchase Schedule shall be an amount as defined in Article II(K) above.
The Purchase Price shall be payable as set forth in Article IV(D) below.
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(D) PAYMENT OF PURCHASE PRICE: On each Settlement Date, the
Purchase Price shall be paid as follows: The Buyer shall deposit funds by wire
to the Seller's bank as outlined on the Wire Transfer Authorization (Exhibit
"F").
(E) PREMIUM REBATE: In the event that a premium is paid by the
Buyer to the Seller on a Loan and such Loan is prepaid in full by the Borrower,
other than by a refinancing by the Buyer or any of its subsidiaries or
affiliates, within twelve (12) months of Settlement Date, the Seller shall, upon
demand by the Buyer, refund to the Buyer the premium paid by the Buyer to the
Seller as follows: if prepayment in full is within one (1) month of the
Settlement Date, 12/12ths of the premium shall be refunded; if prepayment in
full is within two (2) months of the Settlement Date, 11/12ths of the premium
shall be refunded; if prepayment in full is within three (3) months of the
Settlement Date, 10/12ths of the premium shall be refunded; if prepayment in
full is within four (4) months of the Settlement Date, 9/12ths of the premium
shall be refunded; if prepayment in full is within five (5) months of the
Settlement Date, 8/12ths of the premium shall be refunded; if prepayment in full
is within six (6) months of the Settlement Date, 7/12ths of the premium shall be
refunded; if prepayment in full is within seven (7) months of the Settlement
Date, 6/12ths of the premium shall be refunded; if prepayment in full is within
eight (8) months of the Settlement Date, 5/12ths of the premium shall be
refunded; if prepayment in full is within nine (9) months of the Settlement
Date, 4/12ths of the premium shall be refunded; if prepayment in full is within
ten (10) months of the Settlement Date, 3/12ths of the premium shall be
refunded; if prepayment in full is within eleven (11) months of the Settlement
Date, 2/12ths of the premium shall be refunded; if prepayment in full is within
twelve (12) months of the Settlement Date, 1/12ths of the premium shall be
refunded. In the event any Loan is prepaid in full later than twelve (12) months
from the Settlement Date of such Loan, no refund shall be due. In the event the
Note carrier a prepayment penalty, the Buyer agrees first to recapture the
premium rebate from the proceeds of the prepayment penalty and them from the
Seller, if there is any deficient balance according to the refund calculation
specified above.
V. REPRESENTATIONS AND WARRANTIES OF THE SELLER
(A) REPRESENTATIONS AND WARRANTIES OF THE SELLER - GENERAL: It
is understood and agreed by Seller and Buyer that as a material inducement to
Buyer to enter into this Agreement the Seller hereby represents and warrants to
the Buyer as follows:
1. The Seller is an organization as set forth in the
introductory paragraph of this Agreement and is duly organized, validly existing
and in good standing under the laws of the state of its incorporation, and is
duly qualified as a foreign corporation in all jurisdictions wherein the
character of the property owned or leased or the nature of the business
transacted by it makes qualification as a foreign corporation necessary.
2. The execution and delivery of the Agreement by the
Seller and the performance by the Seller of the obligations to be performed by
it hereunder have been duly authorized by all necessary corporate or other
similar action. Prior to the first Settlement Date, the Seller shall deliver to
the Buyer certified copies of relevant corporate or similar resolutions and a
good standing certificate for the state of its incorporation and, as requested
by Buyer, for each state in which Seller is registered to do business. It is
within Buyer's discretion to periodically request good standing certificates for
all states in which Seller is registered to do business.
3. The execution and delivery of this Agreement by
the Seller and the performance by the Seller of the obligations to be performed
by it hereunder do not, and will not, violate any provision of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to the Seller or to the charter or
bylaws of the Seller. All parties which have had any interest in the Mortgages,
whether as a mortgagee, assignee (other than Buyer or assignee of Buyer) or
pledgee are (or during the period in which they held and disposed of such
interest, were) in compliance with all applicable licensing requirements of the
federal, state, and local government wherein the Subject Property is located.
4. The execution and delivery of this Agreement by
the Seller and the performance by the Seller of the obligations to be performed
by it hereunder do not and will not result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other agreement,
lease or instrument to which the Seller is a party or by which it or its
properties may be bound or affected.
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5. This Agreement constitutes, when duly executed and
delivered by the Seller, a legal, valid and binding obligation of the Seller
enforceable against the Seller according to its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium, or similar laws affecting creditors' rights in
general, including equitable remedies.
6. There are no actions, suits or proceedings pending
or, to the knowledge of the Seller, threatened against or affecting the Seller
or the properties of the Seller before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
which, if determined adversely to the Seller, would have a material adverse
effect on the financial condition, properties or operation of the Seller. Any
consent by the Buyer to purchase Loans pursuant to this Agreement shall
automatically terminate if: (a) a decree or order of a court or agency
supervisory authority having jurisdiction for the appointment of a conservator
or receiver or liquidator in any insolvency, adjustment of debt, marshaling of
assets and liabilities, bankruptcy proceeding or any similar proceedings, or for
the winding up or liquidation of its affairs, shall have been entered against
the Seller or a Borrower and such decree or order shall have remained in force
undischarged or unstated for a period of 60 days; or CO) the Seller or a
Borrower shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities, bankruptcy or similar proceedings relating to the Seller or
relating to all or substantially all of its property; or (c) the Seller or
Borrower shall admit in writing its inability to pay its debts as they become
due, file a petition to take advantage of any applicable insolvency,
reorganization or bankruptcy statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations.
(B) REPRESENTATIONS AND WARRANTIES OF THE SELLER AS TO EACH
LOAN: It is understood and agreed by Seller and Buyer that as a material
inducement to Buyer to enter into this Agreement the Seller hereby represents
and warrants to the Buyer as of each Settlement Date with respect to each Loan
purchased.
1. The Seller is a holder-in-due-course of each Note
within the meaning of the Uniform Commercial Code and is the sole owner of the
Loan and has the right to assign and transfer the Loan to the Buyer. The Seller
has not sold, assigned or otherwise transferred any right or interest in or to
the Loan and has not pledged the Loan as collateral for any loan or obligation
of Seller or other purpose. The assignment of the Loan by the Seller to Buyer
validly transfers such Loan to Buyer free and clear of any pledges, liens,
claims, encumbrances, Mortgages, charges, exceptions and/or security interests.
2. Except as expressly disclosed to and agreed to by
the Buyer in writing, each Loan conforms to: (a) Underwriting Guidelines of
Buyer, and (b) the conditions of the Approval Advice (if applicable).
3. All information set forth in any Purchase Schedule
is true and correct in all respects, and all other information furnished to
Buyer by Seller with respect to the Loan(s) purchased is true and correct as of
the Settlement Date.
4. Each Note and Mortgage and the Related Assets are
in every respect genuine,
are the valid instrument they purport on their face to be, are the legal, valid,
binding and enforceable obligation of the Borrower thereunder and not subject to
any discount, allowance, set off, counterclaim, presently pending bankruptcy or
other defenses; none of the Notes, Mortgages, or Related Assets are forged or
have affixed hereto any unauthorized signature or have been entered into by any
persons without the required legal capacity; and no foreclosure (including any
non-judicial foreclosure) or any other legal action has been brought by the
Seller or any senior lienholder in connection therewith.
5. No instruments other than those delivered herewith
are required under applicable law to evidence the indebtedness represented by
the Loan(s) or to perfect the lien of the Mortgage(s).
6. Except as has been disclosed to and agreed to by
the Buyer in writing, there is no agreement with the Borrower regarding any
variation of the interest rate and schedules of payment (except as described in
the Note and Mortgage) or other terms and conditions of the Loan, no Borrower
has been released from liability on the Note, and no property, has been released
from the Mortgage. If the Loan is a variable rate loan, the Seller represents
and warrants as of each Settlement Date that all applicable notices required by
law or regulation have been provided to the Borrower and that the right to
future changes in the interest rate and payment schedules has not been waived by
the Seller or any Previous holder of the Loan.
7. The Loan is secured by a valid Mortgage, of the
agreed-upon priority, on real property, and such Mortgage has been properly
received by the appropriate public recording official to be filed, recorded or
otherwise perfected in due course in accordance with applicable law in the
appropriate jurisdiction.
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8. There are no violations of any applicable federal
or state law or regulation, including, without limitation, Fair Credit Reporting
Act and Regulations, the Federal Truth-in-Lending Act and Regulation Z
(including but not limited to Section 32), the Federal Equal Credit Opportunity
Act and Regulation B, the Federal Real Estate Settlement Procedures Act and
Regulations, the Federal Debt Collection Practices Act, the Home Mortgage
Disclosure Act, and any federal or state usury laws and regulations. All
disclosures required by law, federal, state or local were properly made by the
Seller prior to the closing of the Loan.
9. The Seller holds a marked-up title policy or a
title insurance binder or title certificate which is in full force and effect;
which has an insurance limit at least as great as the outstanding principal
balance of the Loan; which names the Seller, its successors and assigns as the
insured party; and which is issued by a title insurer which has been approved by
the Buyer in writing and is qualified to do business in the jurisdiction where
the Subject Property is located. Said policy shall:
(i) Insure the absence of any lien of taxes and other
assessments;
(ii) Disclose whether all taxes and other assessments
due as of the date of the policy have been paid in full; and
(iii) Disclose all other matters to which like
properties are commonly subject.
If the Buyer purchases a Loan having relied on a
marked-up title insurance binder or title certificate rather than a title
insurance policy, the Seller shall have thirty (30) days to deliver to the Buyer
the title insurance policy.
10. As of the Settlement Date the Seller has
transferred to Buyer all of its right, title and interest in the Note(s),
Mortgage(s) and Related Assets for each Loan purchased free and clear of any
pledge, liens, claims, encumbrances, Mortgages, charges, exceptions or security
interests other than as is disclosed in the title insurance policy to each Loan,
together with an individual flood insurance policy (to the extent required by
the Flood Disaster Protection Act) and an individual current hazard insurance
policy (including fire and extended coverage and other matters as are customary
in the area of the Subject Property), or a blanket policy in lieu thereof, or a
certificate if the Buyer agrees in writing to accept a certificate, insuring the
Subject Property, with a loss payable clause in favor of the Seller, its
successors and assigns in an amount equal to the lower of: (a) the replacement
value of the Subject Property, or (b) the unpaid principal balance of the Loan
and the senior mortgage deed(s) of trust loan.
11. The Note and Mortgage contain customary, valid
legal and enforceable provisions such as to render the rights and remedies of
the holder thereof adequate for the realization against the Subject Property of
the benefits of the security created thereby.
12. The proceeds of the Loan have been fully
disbursed and any and all requirements as to completion of on-site and off-site
improvements and disbursement of any escrow funds therefore have been complied
with.
13. There are no mechanic's liens or similar liens or
claims which have been filed for work, labor or material affecting the Subject
Property which are or may be liens prior to or equal with the lien of the
Mortgage and senior Mortgage(s).
14. The Subject Property is free of material damage
and waste and is in good repair and there is no proceeding pending or threatened
for the total or partial condemnation of the Subject Property, and the Subject
Property is free and clear of all hazardous material.
15. All matured obligations pursuant to the Note and
Mortgage have been paid or performed and the Seller has not waived any defaults,
breach, violation or event of acceleration.
16. The Seller has no knowledge of any fact as to
such Loan which it has failed to disclose which would materially and adversely
affect the value or marketability of such Loans.
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17. The Seller has no knowledge of any impediments to
title that adversely affect the value, enjoyment or marketability of the Subject
Property.
18. Where required by state law, the Seller has filed
for record a request for notice of any action by a senior lienholder under a
senior lien, and the Seller has notified any superior lienholder in writing of
the existence of the Loan and requested notification of any action to be taken
against the Borrower by the superior lienholder. The Seller shall, upon request
of the Buyer, cooperate in recording a new request for action in favor of the
Buyer and in providing superior lienholders with written requests for
notification to the Buyer of action against the Borrower.
19. There is no default, breach, violation or event
of acceleration existing under any senior Mortgage which, with notice, and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration.
20. Each Note and Mortgage contains a 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.
21. All real estate appraisals made in connection
with each Loan shall have been performed in accordance with industry standards
in the appraising industry I n the area where the appraised property is located.
Any variances ascertained pursuant to Article VI(G) of this Agreement greater
than eight (8%) percent shall constitute conclusive evidence of a breach of this
warranty.
22. No hazardous or toxic materials or wastes or
products regulated by any law or ordinance or asbestos or asbestos products or
materials or polychlorinated biphenyls or urea formaldehyde insulation have been
used or employed in the construction, use or maintenance of the Subject Property
or have ever been stored, treated at or disposed of on the Subject Property.
23. There has not occurred nor has any person or
entity alleged that there has occurred, upon the Subject any spillage, leakage,
discharge or release into the air, soil or groundwater of any hazardous material
or regulated wastes.
24. The Seller has not, in connection with each Loan
purchased by Buyer, taken any action which might result in a claim against the
Buyer or an obligation by the Buyer to refund unearned finance charges, credit
life insurance premiums or any other fees in respect to the transactions between
Buyer and Seller as described in this Agreement. The Seller agrees to indemnify
and hold the Buyer harmless from and against any claims, liabilities, damages or
costs (including reasonable attorney fees) relating to any Borrower, insurer or
other party who claims to be due a refund of finance charges or insurance
premiums or any other fees in connection with transactions contemplated by this
Agreement.
25. The Seller has not, in connection with each Loan
purchased by Buyer, incurred any obligation, made any commitment or taken any
action which might result in a claim against the Buyer or an obligation by the
Buyer to pay a sales brokerage commission, finder's fee or similar fee in
respect to the transactions between Buyer and Seller as described in this
Agreement. The Seller agrees to indemnify and hold the Buyer harmless from and
against any claims, liabilities, damages or costs (including reasonable attorney
fees) relating to any broker, agent or finder or other person, who shall claim
to have dealt on behalf of the Seller in connection with the transactions
contemplated by this Agreement.
26. Seller agrees that for the time period of 36
months beginning from the applicable settlement date, not to take any action to
solicit Borrowers individually in order to effect the refinancing of any Loans
previously purchased by Buyer from Seller. In the event a Borrower elects to
refinance with Seller a Loan purchased by Buyer from Seller, and such Loan is
currently owned or serviced by Buyer or Buyer otherwise retains a financial
interest in the Loan, Buyer will have the right of first refusal on the purchase
of the refinancing.
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VI. BREACH OF REPRESENTATION AND WARRANTIES
(A) REMEDY FOR BREACH. In addition to any rights or remedies
the Buyer has at law or in equity, if at any time there is a breach of any
representation or warranty set forth herein by Seller, the Seller shall upon
demand of the Buyer and at the sole option and absolute discretion of Buyer: (1)
repurchase the Loan affected for the Buy-Back Price within ten (i0) days of
notification; or (2) if the Loan(s) has been sold by Buyer or the Subject
Property has been liquidated or sold by Buyer, the Seller shall, within ten (10)
days ¬ification, pay the Buyer the amount of loss, (as defined in Article
VI(D) below).
(B) REASSIGNMENTS. Upon receipt of the Buy-Back Price, in
full, in immediately available funds, the Buyer shall reassign the Loan affected
and any right it may have in the relevant Subject Property to the Seller free
and clear of all liens, encumbrances, claims, or interest of any person or
entity claiming by, through, or under the Buyer without recourse and shall
execute and deliver to the Seller in recordable form an assignment of the
Buyer's beneficial interest in the affected Mortgage, as well as other documents
necessary to reflect the reassignment of any title protection and insurance
policies.
(C) "BUY-BACK PRICE". The term "Buy-Back Price" shall mean the
sum total of: (1) the outstanding principal balance of the Loan, with accrued
interest thereon through the date the Loan is repurchased by Seller; (2) all
advances made by Buyer and all charges due from the Borrower; (3) the total
amount, including accrued interest and other expenses paid by the Buyer to any
senior lienholders, if any, to secure a priority lien position; (4) all
reasonable and necessary expenses, losses and damages paid or incurred by the
Buyer in connection with the Loan or an investigation of said Loan and/or the
related collateral, including but not limited to, property taxes, maintenance
costs, interest expense, insurance, appraisals, advertising, sales commissions,
reasonable attorney fees, expenses and costs, fines and penalties; and (5)
rebate of premium due Buyer, if applicable.
(D) DEFINITION OF "LOSS". The term "Loss" shall mean the
negative result, if any, of the following calculations: (a) the sum total of:
(i) the outstanding principal balance of the Loan, with accrued interest thereon
through the date the Loan is sold or date the collateral is liquidated; (ii) all
advances by Buyer and all charges due from the Borrower; (iii) the total amount
paid by the Buyer to any senior lienholders, if any, to secure a first lien
position; (iv) accrued interest on all Mortgage Loans purchased form senior
lienholders from the date such Mortgage Loans were purchased through the date
the Loan is sold or the date the collateral is liquidated; and (v) all other
reasonable and necessary expenses, losses and damages incurred by and/or paid by
the Buyer in connection with the Loan or an investigation of said Loan or the
sale or liquidation of the Loan and/or the related collateral, including, but
not limited to, reasonable attorney fees, expenses and costs, property taxes,
maintenance costs, insurance, appraisals, advertising, sales commissions, fines
and penalties; less the (b) net proceeds from the sale of the Loan or the sale
or liquidation of the Subject Property or the collateral.
(E) REMEDY FOR NON-DELIVERY OF DOCUMENTS. However, anything to
the contrary notwithstanding, in the event that the Seller is required to
deliver to the Buyer any documents related to a purchased Loan and the Seller
fails to deliver such document in the proper form on the date or within the time
period specified by the controlling section of this Agreement, Buyer shall
notify the Seller of the breach, and the Seller shall have thirty (30) days from
the date of notice to cure the breach. If the Seller has not cured the breach
within the thirty (30) day cure period, the Seller shall immediately repurchase
the Loan upon Buyer's demand. The Buy-Back Price shall be determined in
accordance with Article VI(C). Any Loan returned by the Buyer pursuant to this
paragraph shall be without recourse, representation or warranty.
(F) REMEDY FOR FIRST PAYMENT DEFAULT. However, anything to the
contrary notwithstanding, in the event the Borrower fails to make the first
payment due to the Buyer within thirty (30) days of the payment due date,
regardless of whether such payment is subsequently paid by the Borrower, the
Buyer, at its sole and absolute discretion, shall have the right to have Seller
repurchase said Loan(s) at the Buy-Back Price.
(G) REMEDY TO INSURE ACCURACY OF REAL ESTATE APPRAISALS. Buyer
may, at its own expense, in order to verify the accuracy of real property
appraisals prepared for Seller, order a reappraisal of the property secured by a
Mortgage. If the reappraisal obtained by Buyer indicates a fair market value
which is more than EIGHT (8%) less than the original appraisal value, then upon
receipt by Seller from Buyer of a signed copy of the reappraisal, Seller shall
repurchase the Loan at the Buy-Back Price (as defined in Article VI(C), above)
and reimburse Buyer for the cost of the appraisal subject to the following: If
Seller disputes the validity of the reappraisal prepared by Buyer's appraiser,
Seller may, at its own expense, request Buyer to obtain a third appraisal, and
8
only if such third appraisal is also more than EIGHT (8%) percent less than the
original appraisal value shall the Seller be required to repurchase the Loan at
the Buy-Back Price. Buyer shall choose the appraiser for the third appraisal
with Seller's approval, which shall not be unreasonably withheld, but such
appraiser must possess the minimum qualifications specified in Buyer's
Underwriting Guidelines. The appraisal must be performed in accordance with
industry standards for the appraising industry in the area in which the property
is located, and the appraiser must be independent with respect to both parties
unless otherwise agreed to by the parties. In determining the appropriate
appraisal value, the review appraiser must determine the appraised value as of
the original appraisal date using comparable sales that were available as of the
date of the original appraisal.
However, anything to the contrary notwithstanding, the Buyer
reserves the sole right not to request the Seller to repurchase the Loan should
the reappraisal cause the combined loan-to-value not to exceed the maximum
allowable combined loan-to-value of the loan class under which the loan was
purchased.
VII. REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Seller as
follows:
(A) The Buyer is an organization as set forth in the
introductory paragraphs and is duly organized, validly existing and in good
standing under laws applicable to its organization's existence.
(B) The execution and delivery of this Agreement by the Buyer
and the performance by the Buyer of the obligations by it to be performed
hereunder have been duly authorized by all necessary corporate resolutions.
(C) The execution and delivery of this Agreement by the Buyer
and the performance by the Buyer of the obligations by it to be performed
hereunder do not, and will not, violate any provision of any law, rule,
regulations, order writ, judgment, injunction, decree, determination or award
presently in effect having applicability to the Buyer or to the charter or
bylaws of the Buyer.
(D) The execution and delivery of this Agreement by the Buyer
and the performance by the Buyer of the obligations by it to be performed
hereunder do not and will not result in a breach of or constitute a default
under any indenture or loan or credit agreement or any other agreement, lease or
instrument to which the Buyer is a party or by which it or its properties may be
bound or affected.
(E) This Agreement constitutes, when duly executed and
delivered by the Buyer, a legal, valid and binding obligation of the Buyer
enforceable against the Buyer according to its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or similar laws affecting creditor's rights in general, including
equitable remedies.
(F) There are no actions, suits or proceedings pending or, to
the knowledge of the Buyer, threatened against or affecting the Buyer or the
properties of the Buyer before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, which if
determined adversely to the Buyer, would have a material adverse effect on the
financial condition, properties or operation of the Buyer.
(G) Buyer has the authority and legal right to make, deliver
and perform this Agreement and all transactions contemplated hereunder. No
consent of any other party and no consent, license, approval or authorization
of, or registration, or declaration with, any governmental authority, bureau or
agency is required in connection with the execution, delivery, validity or
enforceability of this Agreement or purchase of any Loan, which consent,
license, approval, authorization, registration or declaration has not been
obtained. Buyer shall make available to Seller copies of any required license
upon Seller's request.
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VIII. IDENTIFICATION
(A) Seller agrees to protect, indemnify, and hold Buyer and
its employees, officers, and directors, harmless against, and in respect of, any
and all losses, liabilities, costs and expenses (including reasonable attorney's
fee), judgments, damages, claims, counterclaims, demands, action or proceedings,
by whomsoever asserted, including but not limited to, the Borrowers, against any
person or persons who prosecute or defend any actions or proceedings as
representatives of or on behalf of a class or interested group, or any
governmental instrumentality, body, agency, department or commission, or any
administrative body or agency having jurisdiction pursuant to any applicable
statute, rule, regulation, order or decree, or the settlement or compromise of
any of the foregoing, providing, however, any of the foregoing arises out of, is
connected with or results from any breach of representations, covenants or
warranties made by Seller in relation to the Loans sold to Buyer hereunder.
(B) The waiver of any breach, term, provision or condition of
this Agreement shall not be construed to be a waiver of any other or subsequent
breach, term, provision or condition. All remedies afforded by this Agreement
for a breach hereof shall be cumulative; that is, in addition to all other
remedies provided for herein or at law or in equity.
(C) Provided further, in the event of any legal action,
including counterclaims, wherein the claim is based upon alleged facts that
would constitute a breach of any one or more of the warranties, covenants, and
representations made or assumed by Seller under the terms hereof, Seller shall
thereupon, at Buyer's option, repurchase without recourse such Loan at the
Buy-Back Price.
(D) The indemnification contained in (A) and (B) above is
applicable to any servicing of the Loans purchased hereunder which is performed
by the Seller.
IX. RELATIONSHIP OF THE PARTIES
It is agreed that the Seller and the Buyer are not partners or
joint venturers and that the Seller is not to act as an agent for the Buyer in
originating, administering or collecting any Loan, but shall have the status of
and shall act in all matters hereunder as an independent contractor.
X. OPINION OF COUNSEL
The Seller shall deliver to the Buyer in form and substance
satisfactory to the Buyer and its counsel on or before the first Settlement Date
hereunder, an opinion of the Seller's independent outside counsel pursuant to
"Exhibit "G", attached hereto and made a part hereof, opining on the provisions
of Articles V(A)I through V(A)6, inclusive and the Opinion of Counsel will cover
all Loans purchased by Buyer under this Agreement unless the opinion is
rescinded or revoked by the Law Firm rendering the Opinion.
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XI. CLOSING DOCUMENTS
The Seller shall have delivered to Buyer an officer's
certificate, attested to by the Secretary of the Seller, stating the names and
showing the facsimile signatures of the officers of Seller authorized to execute
and deliver this Agreement; endorse Note(s), Mortgage(s) and Assignment(s); and
authorize the bank accounts for Buyer to utilize for funding Loans (Exhibit
"H"). Seller shall deliver to Buyer a good standing certificate for its State of
Incorporation. It is within Buyer's discretion to periodically request good
standing certificates for all states in which Seller is registered to do
business. In addition, Seller shall provide Buyer copies of all applicable
lending licenses.
XII. MISCELLANEOUS
(A) ADDITIONAL COVENANTS.
1. Each party shall, from time to time, execute and
deliver or cause to be executed and delivered, such additional instruments,
assignments, endorsements, papers, and documents as the other party may at any
time reasonably request for the purpose of carrying out of this Agreement and
the transfers provided for herein.
2. The Seller shall, upon request of the Buyer, sign
a letter, in form to be approved by the Buyer .and in conformity with the terms
and conditions hereof, addressed to all the Borrowers on the loans, announcing
the sale evidenced hereby and instructing such Borrowers to recognize the Buyer
as the Seller's successor in interest to such Loans.
3. After any Settlement Date hereunder, the Seller
will hold in trust for the Buyer all sums received by the Seller from
Borrower(s) on any Loan purchased pursuant to this Agreement and pay them to the
Buyer within three (3) business days of the receipt of those sums.
4. Any and all decisions made by Buyer in good faith
to take action or to not take action relative to a Loan, including, but not
limited to, the sale or liquidation of a Loan, Subject Property or collateral
shall be final and conclusively binding upon Seller in the event Seller does not
repurchase a Loan within ten (10) days of notification by Buyer pursuant to
Section VI of this Agreement.
5. In order to enforce Buyer's rights under this
Agreement, Seller shall, upon the request of Buyer or its assigns, do and
perform or cause to be done and performed, every reasonable act and thing
necessary or advisable to put buyer or its assigns in position to enforce the
payment of the Loans and to carry out the intent of this Agreement, including
the execution of and, if necessary, the recordation of additional documents
including separate endorsements and assignments upon request of Buyer. In
addition, Seller hereby irrevocably appoints any officer or employee of Buyer
o/: its assigns its tree and lawful attorney to do and perform every act
necessary, requisite, proper, or advisable to be done to put Buyer or its
assigns in position to enforce the payment of the Loans. (Said Power of Attorney
is set forth as Exhibit "I").
(B) SURVIVAL OF COVENANTS, AGREEMENTS, REPRESENTATIONS AND
WARRANTIES-SUCCESSORS AND ASSIGNS. All warranties, representations and covenants
made by either party in this Agreement or in any other instrument delivered by
either party to the other, including those made by third parties for the benefit
of either party, shall be considered to have been relied upon by the other party
(unless otherwise agreed in writing by the parties) and shall survive the
termination of this Agreement. The Buyer reserves the right to proceed against
third parties to enforce any representations, warranties and covenants made by
them for the benefit of the Seller.
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(C) SEVERABILITY. If any provision, or part thereof, of this
Agreement is invalid or unenforceable under any law, such provision, or part
thereof, is and will be totally ineffective to that extent, but the remaining
provisions, or part thereof, will be unaffected.
(D) ATTORNEYS' FEES. However, anything to the contrary
notwithstanding, in the event of any action at law, in equity, arbitration or
otherwise between the parties in relation to this Agreement or any Loan or other
instrument or agreement required or purchased or sold hereunder, the
non-prevailing party, in addition to any other sums which such party shall be
required to pay pursuant to the terms and conditions of this Agreement, at law,
in equity, arbitration or otherwise shall also be required to pay to the
prevailing party all costs and expenses of such litigation, including reasonable
attorney fees.
(E) WAIVERS. No waiver of any term, provision or condition of
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such term, provision, or condition, or of any other term, provision, or
condition of this Agreement.
(F) NOTICE. Any notice or other communication in this
Agreement provided or permitted to be given by one party to the other must e in
writing and given by personal delivery or by depositing the same in the United
States mail (certified mail, return receipt requested), addressed to the other
party to be notified, postage prepaid. For purposes of notice, the addresses of
the parties shall be as follows:
BUYER:. BAY FINANCIAL SAVINGS BANK, F.S.B., 5537
Sheldon Road, Tampa, FL 33615
ATTENTION: John Liszka, Executive Vice President
SELLER: WESTMARK MORTGAGE CORPORATION, 8000 North
Federal Highway, Boca Raton, FL 33487
ATTENTION: Payton Story, III, President
The above address may be changed from time to time by written
notice from one party to the other.
(G) INSURANCE PREPAYMENT. Insurance refund or credits of any
kind whatsoever shall be the sole responsibility of the Seller in the event of
prepayment of any Loan, cancellation of insurance or any other event requiring
refunding or crediting of unearned insurance premiums. Upon the Buyer's demand,
Seller shall pay to the Buyer, from the Seller's own funds, any required
insurance premium rebate resulting from the prepayment, cancellation,
refinancing or other termination of any Mortgage Loan. Upon such payment, Buyer
shall assign in writing any rights it had to require that the insurer reimburse
Buyer for any rebate made to Borrower. No loan that is sold to Buyer shall be
the subject of the sale to Buyer of Life Insurance which premium has been
included in the Loan Amount, unless Buyer is made aware of same and approves
such Loan which shall then be governed by this paragraph.
(H) ASSIGNMENT. The Seller shall not, without the prior
written consent of the Buyer, assign any of its rights or obligations hereunder.
12
(I) CAPTIONS. Paragraph or other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(J) ENTIRE AGREEMENT. This Agreement and the Exhibits attached
hereto, and the documents referred to herein or executed concurrently herewith
constitute the entire agreement between the parties hereto with regard to the
subject matter hereof, and there are no prior agreements, understandings,
restrictions, warranties, or representations between the parties with respect
thereto.
(K) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. The provisions of
this paragraph shall not affect the provisions of any Note, Mortgage or Related
Assets which cause the laws of the United States or any other state to be
applicable. This Agreement shall be interpreted fairly in accordance with its
provisions and without regard to which party drafted it.
(L) TERMINATION. This Agreement is terminable by either the
Buyer or Seller upon ninety (90) days' written notice of termination to the
non-terminating party. Upon such termination, Buyer must honor any outstanding
commitments or Approval Advice's issues to Seller and purchase all Loans subject
to such commitment or Approval Advice in accordance with the terms of this
Agreement and the terms of the commitment or Approval Advice. Notwithstanding
the foregoing, Buyer has the option of terminating this Agreement immediately
upon notice of the Seller upon the Seller's breach of any of the Representations
and Warranties contained in Article V of this Agreement, and Buyer shall have no
obligation to honor any commitment or Approval Advice after such termination.
Seller may terminate this Agreement immediately upon written notice to the buyer
upon the breach of any of Buyer's representations and warranties contained in
Article VII of this Agreement.
(M) ARBITRATION, JURISDICTION, AND VENUE. With respect to any
controversy, argument or claim arising out of or relating to this Agreement, or
any breach thereof, (including, but not limited to, a request for emergency
relief, the parties hereby consent to the exclusive jurisdiction of the Court of
Common Pleas of Hillsboro County, Florida or the Federal District of Court for
the main Jurisdiction in Tampa Florida and waive personal service of any and all
process upon them and consent that all such service of process made by
registered or certified mail directed to them at the address stated herein and
service so made shall be deemed to be completed five (5) days after mailing. The
parties waive trial by jury and waive any objection to jurisdiction and venue of
any action instituted hereunder, agree not to assert any defense based on lack
or jurisdiction or venue and consent to the granting of such legal or equitable
relief as is deemed appropriate by the court, including, but not limited to, any
emergency relief, injunctive or otherwise.
However, anything to the contrary notwithstanding, except with
respect to emergency relief, Buyer shall have the sole and exclusive option and
discretion to have any controversy, argument or claim arising out of or relating
to this Agreement, or any breach thereof, settled in Tampa, Florida in
accordance with the Rules of the American Arbitration Association (as modified
below), and judgment upon the award may be entered in any Court having
jurisdiction thereof.
13
The arbitration panel shall be made up of three members which
shall be appointed: one by Buyer, one by Seller, and the third by the first tow
arbitrators. Each arbitrator shall be a lawyer experienced in matters relating
to real estate and mortgage banking. Discovery shall be permitted in connection
with the arbitration proceeding within the reasonable discretion of the
arbitration panel. The decision (award) shall be taken to a three-member
arbitration panel, the members of which shall be selected in accordance with the
above-described procedures, and the panel's review shall be limited to the
application of the statutory and decisional law of the State of Florida to the
facts of the dispute as determined in writing by the original arbitration panel.
(N) ENDORSEMENTS. In the event that the remedies or other
terms outlined in this Agreement conflict with the terms of any endorsement by
the Seller or any Note evidencing a Loan purchased by the Buyer from the Seller,
including, but not limited to, an endorsement stating that the assignment of the
Note without recourse, the remedies and terms of this Agreement shall govern and
control.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written:
BUYER: BAY FINANCIAL SAVINGS BANK, F.S.B.
By: /s/ John Liska
--------------------------------
JOHN LISZKA
TITLE: Executive Vice President
SELLER: WESTMARK MORTGAGE CORPORATION
By: /s/ Payton Story, III
--------------------------------
PAYTON STORY III
TITLE: President
14
EXHIBIT A
Essential Mortgage File Documents
The following documents must be included in the package when submitted
by the Seller to the Buyer for purchase:
1. Original Note.
2. Executed Endorsement or Assignment of the Note.
3. Disclosure Statement, Federal and State, i.e., Good Faith
Estimate, Servicing Transfer Letter, Information Booklet,
Preliminary Truth-in-Lending.
4. Note and Disclosure Riders, when applicable, i.e. Balloon
Rider.
5. Certified or True Copy of the Mortgage or Deed of Trust.
6. Original, Recordable Assignment of the Mortgage.
7. Truth-in-Lending, Itemization of Amount Financed, and HUD-1.
8. Recission Documents.
9. Loan Application (FNMA 1012 or 1003).
10. Fair Lending and Equal Credit Notices, Federal and State.
11. Verification of Employment and Income as expressed in the
"Product Descriptions."
12. Credit Reports as expressed in the "Product Descriptions."
13. Appraisal Report as expressed in Exhibit C and the "Product
Descriptions."
14. Preliminary Title Report and evidence that an ALTA policy has
been ordered.
15. Evidence of Hazard Insurance and documentation showing proper
coverage and loss payable endorsement has been ordered.
16. Evidence of Flood Insurance with loss payable endorsement in
effect or ordered. (Only if the Subject Property is in Flood
Zone "A.")
17. Authorization to Release Information.
18. If there is a prepayment penalty, Seller shall write "PPP" in
bold letters on outside front cover of the loan file.
1. Survey.
2. Termite Inspection.
3. Occupancy Permit.
EXHIBIT B
Purchase Schedule
Sample unavailable at the present time.
EXHIBIT E
Endorsement
Pay to the order of
Bay Financial Savings Bank, F.S.B.
without recourse.
----------------------------------
Officer Name and Title
Company Name
EXHIBIT F
REPETITIVE WIRE #_____________
WIRE TRANSFER AUTHORIZATION
Payee Name:
-------------------------------------------
Account Title:
-------------------------------------------
Account Number:
-------------------------------------------
Bank Name:
-------------------------------------------
ABA Number:
-------------------------------------------
Bank Address:
-------------------------------------------
FOR FURTHER CREDIT TO:
Bank Name:
-------------------------------------------
Account Number:
-------------------------------------------
Bank Address:
-------------------------------------------
FOR FURTHER CREDIT TO:
Account Title:
-------------------------------------------
Account Number:
-------------------------------------------
Payee Verification
-------------------------
Signature, Title
(Must also appear on
Officer's Certificate)
Funding Authorization
-----------------------
Signature, Title
Date:
------------------
Verified By
---------------------------------