WAREHOUSE LOAN AND SECURITY AGREEMENT
-------------------------------------
This Warehouse Loan and Security Agreement ("Agreement") is made and
entered into on this 29th day of August 2002 between Geneva Mortgage Corp. a
corporation with its principal place of business located at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇.,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ("Borrower"), and The Provident Bank, an Ohio banking
corporation with its principal place of business located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Provident").
WITNESSETH:
----------
WHEREAS, Borrower is engaged in the business of underwriting, processing,
originating, closing, funding, purchasing, servicing and selling mortgage loans
secured by first or second liens evidenced by mortgages on real property; and
WHEREAS, Borrower has requested and Provident has agreed to finance the
funding of mortgage loans by Borrower in connection with its origination thereof
subject to the terms, conditions and limitations set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the extension of credit
by Provident to Borrower, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Provident and Borrower agree
as follows:
1. DEFINITIONS. (a) When used in this Agreement, the following terms shall
have the following meanings and the terms defined elsewhere in this Agreement
shall have the meanings assigned to them (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Advance" shall mean any amount loaned by Provident to Borrower under
this Agreement.
"Affiliate" shall mean, in relation to any Person (in this definition
called "Affiliated Person"), any Person (i) which (directly or indirectly)
controls or is controlled by or is under common control with such Affiliated
Person; or (ii) which (directly or indirectly) owns or holds five percent (5%)
or more of any equity interest in Borrower; or (iii) five percent (5%) or more
of whose voting stock or other equity interest is directly or indirectly owned
or held by Borrower. For the purposes of this definition, the term "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession (directly or indirectly) of the power to direct or to cause the
direction o:f the management or the policies of such Person, whether through the
ownership of shares of any class in the capital or any other voting securities
of such Person or by contract or otherwise.
"Assignment of Mortgage" shall mean, with respect to any Mortgage, an
assignment of the Mortgage, notice of transfer or equivalent instrument, in
recordable form, sufficient under the laws of the jurisdiction in which the
related Mortgaged Property is located to reflect the assignment of the Mortgage.
"Business Day" shall mean a day other than Saturdays, Sundays,
holidays or other days on which the main office of Provident is not open for
business.
"Cash Collateral Account" shall mean the demand deposit account
comprising a portion of the Collateral and established and maintained by
Borrower with Provident pursuant to Section 5(d).
"Change of Control" shall mean the time at which (i) any Person
(including a Person's Affiliates and associates) or group (as that term is
understood under Section 13(d) of the Securities Exchange Act of 1934 and the
rules and regulations thereunder), other than Management Shareholders and
Affiliates thereof (the "Control Group") or a group controlled by the Control
Group, has become the beneficial owner of a percentage (based on voting power,
in the event
2
different classes of stock shall have different voting powers) of the voting
stock of Borrower equal to at least ten percent (10%), (ii) there shall be
consummated any consolidation or merger of Borrower pursuant to which Borrower's
common stock (or other capital stock) would be converted into cash, securities
or other property, other than a merger or consolidation of Borrower in which the
holders of such common stock (or such other capital stock) immediately prior to
the merger have the same proportionate ownership, directly or indirectly, of
common stock of the surviving corporation immediately after the merger as they
had of Borrower's common stock immediately prior to such merger, or (iii) all or
substantially all of Borrower's assets shall be sold, leased, conveyed or
otherwise disposed of as an entirety or substantially as an entirety to any
Person (including an Affiliate or associate of Borrower) in one or a series of
transactions.
"Closing Date" shall mean the date on which Borrower sells, transfers
or otherwise disposes of a Mortgage Loan funded and originated by Borrower with
an Advance made by Provident to Borrower under this Agreement.
"Collateral" shall have the meaning set forth in Section 5(a).
"Collections" shall mean, collectively, all Sale Proceeds, all Payment
Collections and all other collections and Proceeds on or in respect of the
Mortgage Loans.
"Cost and Fee Schedule" shall have the meaning set forth in Section
2(f).
"Credit File" shall mean, as to each Mortgage Loan, a copy of the
Mortgage and copies of all intervening assignments of mortgage, if any, with
evidence of recording thereon, showing a complete chain of title from the
originator to Borrower; the original attorney's opinion of title or the original
policy of title insurance, if not previously delivered to Provident; the
originals of all assumption, modification and extension agreements, if any; and
all applications, credit reports, salary or employment verifications,
appraisals, surveys, other underwriting and work papers, closing statements,
HUD-1 settlement statements and any addendums thereto, truth-in-lending
disclosures, right of recision notices, payment histories, and all other closing
documents and all other agreements, reports, certificates, documents and
instruments related thereto or obtained or prepared in connection therewith and
included or includable in Borrower's mortgage file relating to such Mortgage
Loan.
"Default Interest Rate" shall mean an annual rate of interest which
shall (to the extent permitted by applicable law) at all times be equal to four
percent (4%) above the Interest Rate.
"Demand For Payment" shall have the meaning set forth in Section 4(a).
"Document Custodian" shall mean Borrower, as custodian and bailee for
Provident, or any successor appointed by Provident at any time.
"Fees" shall have the meaning set forth in Section 2(f).
"Funding Date" shall mean the date on which an Advance is made by
Provident to Borrower under this Agreement.
"Initial Collateral Package" shall mean, as to each Mortgage Loan: (i)
the original Mortgage Note and the originals of all intervening endorsements, if
any, showing a complete chain of title from the originator of the Mortgage Loan
to Borrower, endorsed in blank (either on the Mortgage Note or a separate
allonge attached thereto); (ii) a certified copy of the original Mortgage and
copies of all intervening assignments of the Mortgage, if any; (iii) the
original Assignment of Mortgage in favor of Provident in recordable form for the
jurisdiction in which the Mortgaged Property is located; and (iv) the original
attorney's opinion of title or the original policy of title insurance (or if
such original policy of title insurance has not yet been received by Borrower, a
copy of such policy or a title insurance binder or commitment for the issuance
of such policy).
3
"Interest Rate" shall mean an annual rate of interest, which shall (to
the extent permitted by applicable law) at all times be equal to the One Month
Libor Rate plus the applicable margin determined by reference to the factors
applicable to such determination set forth in the Cost and Fee Schedule in
effect on an Interest Payment Date or Closing Date, as the case may be.
"Lien" shall mean any lien, mortgage, pledge, security interest,
charge or other encumbrance of any kind including any conditional sale or other
title retention agreement, any lease in the nature thereof, and any agreement to
give any security interest.
"Loan Documents" shall mean this Agreement, the Security Documents,
the Policies and Procedures, the Cost and Fee Schedule and any other instrument,
certificate or document executed in connection with or pursuant to this
Agreement whether concurrently herewith or subsequent hereto.
"Losses" shall have the meaning set forth in Section 11(b).
"Management Shareholders" shall mean those shareholders of Borrower
who are senior executive officers of Borrower on the date of this Agreement.
"Maturity Date" shall have the meaning set forth in Section 4(b).
"Mortgage" shall mean the mortgage, deed of trust or other instrument
creating a first or second Lien on an estate in fee simple interest in the
Mortgaged Property securing a Mortgage Loan.
"Mortgage Loan" shall mean any mortgage loan funded and originated by
Borrower with any Advance made by Provident to Borrower under this Agreement.
"Mortgage Loan Documents" shall mean, with respect to a Mortgage Loan,
the documents comprising the Initial Collateral Package and the Credit File for
such Mortgage Loan.
"Mortgage Note" shall mean, with respect to a Mortgage Loan, the
original note or other evidence of indebtedness pursuant to which the related
Mortgagor agrees to pay the indebtedness evidenced thereby and which is secured
by the related Mortgage.
"Mortgaged Property" shall mean the underlying real property,
including all improvements and additions thereon, securing a Mortgage Loan.
"Mortgagor" shall mean the obligor or obligors under a Mortgage Note.
"Other Obligations Secured Hereby" shall mean all of Borrower's debts,
obligations or liabilities of every kind, nature, class and description to
Provident (other than those under this Agreement and the other Loan Documents),
now due or to become due, direct or indirect, absolute or contingent, presently
existing or hereafter arising, joint or several, secured or unsecured, purchase
money or non-purchase money, related or unrelated, similar or dissimilar,
whether for payment or performance, regardless of how the same arise or by what
instrument, agreement or book account they may be evidenced, or whether
evidenced by any instrument, agreement or book account, including, without
limitation, all loans (including any loan by renewal or extension), and all
overdrafts, all guarantees, all bankers acceptances, all agreements, all letters
of credit issued by Provident for Borrower and the applications relating
thereto, all indebtedness of Borrower to Provident, all undertakings to take or
refrain from taking any action, and all indebtedness, liabilities and
obligations owing from Borrower to. others which Provident may obtain by
purchase, negotiation, discount, assignment or otherwise.
"Payment Collections" shall mean, collectively, all collections on the
Mortgage Loans attributed to the payment of the principal amount thereof,
accrued interest thereon or any fees, charges or other amounts payable
thereunder or in respect thereof.
4
"Person" shall mean an individual, a company, a limited liability
company, a corporation, an association, a partnership, a joint venture, an
unincorporated trade or business enterprise, a trust, an estate, or other legal
entity or a government (national, regional or local), court, arbitrator or any
agency, instrumentality or official of the foregoing.
"One Month Libor Rate" shall mean the rate of interest published from
time to time in the "Money Rates" column of The Wall Street Journal (Central
Edition) as the "one month libor rate" on the last business day of each month,
if such rate ceases to be so published, then such other rate as may be
substituted by Provident as the libor rate, which may be the rate of interest
announced by Provident from time to time as its libor rate. The One Month Libor
Rate shall change on the first business day of each month and be held for that
calendar month. The One Month Libor Rate on the last business day of the each
month will be held for that calendar month. The index will be set on each
advance at disbursement and held until settlement.
"Policies and Procedures" shall mean Provident's Policies and
Procedures for its Warehouse Division as of the date of this Agreement, as
amended, modified, restated or supplemented by Provident from time to time.
"Sale Proceeds" shall mean (i) any proceeds received or receivable by
Borrower with respect to or in respect of any sale, transfer or other
disposition of any Mortgage Loan and (ii) any proceeds received or receivable by
Borrower with respect to or in respect of any sale, transfer, disposition,
condemnation or casualty event and all other amounts from any disposition,
taking, damage or destruction of any Mortgaged Property acquired by Borrower
upon foreclosure (or deed in lieu of foreclosure) of any Mortgage Loan.
"Security Documents" shall have the meaning set forth in Section 5(b).
"Third Party Investor" shall mean any Person with whom Borrower has
contracted to sell any Mortgage Loan that has been funded and originated by
Borrower with any Advance made by Provident to Borrower under this Agreement.
Provident may itself be a Third Party Investor.
"UCC" shall mean the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of Ohio; provided, however, that in the
event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection, or priority of Provident's security interest in any of
the Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of Ohio, the term "UCC" shall mean the Uniform
Commercial Code as in effect in such other jurisdiction for purposes of the
provisions hereof relating to such attachment, perfection, or priority and for
purposes of definitions related to such provisions.
(b) All terms defined in the UCC and used in Section 5 of this
Agreement shall have the meanings assigned to such terms In the UCC.
(c) Where appropriate, words importing the singular only shall include
the plural and vice versa.
2. ADVANCES.
(a) Subject to the terms and conditions hereof and the Policies and
Procedures, which are hereby incorporated herein by this reference, Provident
may elect, in its sole discretion, to make Advances to Borrower from time to
time in such amounts as Borrower may request. Nothing herein shall be deemed or
construed as a commitment by Provident to make any Advance hereunder `and it is
expressly acknowledged and agreed by Borrower that the decision to make any
Advance hereunder is, and shall at all times be. wholly discretionary on the
part of Provident.
(b) In order to obtain Advances, Borrower shall comply with the
requirements set forth: in this Agreement and the Policies and Procedures and
shall furnish Provident with such requests and all other documents Provident may
request or require at any time in connection with any Advance. In addition, the
following conditions
5
precedent, unless waived in whole or in part by Provident, shall be satisfied
before Provident makes any Advance hereunder: (i) Provident, in its sole
discretion, shall have approved the underwriting of the Mortgage Loans to be
funded with any Advance; (ii) Borrower shall have provided Provident with an
insured closing letter, evidence of a current errors and omissions insurance
policy with limits of at least $1,000,000, an executed closing agent agreement
and wiring instructions for each closing agent used by Borrower to close the
Mortgage Loans funded with any Advance, each of which shall be acceptable to
Provident in its sole discretion; (iii) Borrower shall have furnished Provident
with an executed, recordable Power of Attorney covering the items set forth in
Section 5(e) hereof for each state in `which Borrower does business; and (iv)
Provident, or its agent, bailee or designee, shall have received the Initial
Collateral Package for each of the Mortgage Loans funded with any Advance. Each
request for an Advance by Borrower shall constitute a certification that each of
the representations and warranties made by Borrower to Provident in this
Agreement or the other Loan Document shall be true and correct in all material
respects on and as of the date when made and shall, for all purposes of this
Agreement; be deemed to be repeated on and as of each date an Advance is made by
Provident to Borrower hereunder and shall be true and correct in all material
respects on and as of each of such date, except as affected by the consummation
of the transactions contemplated by this Agreement and the other Loan Documents,
and Borrower shall have performed, complied with and observed all of its
covenants and agreements contained in this Agreement and the other Loan
Documents on and as of each date an Advance is made by Provident to Borrower
hereunder.
(c) Advances hereunder will be made by Provident on behalf of Borrower
to third parties in connection with the funding of the Mortgage Loans originated
by Borrower. All matters relating to the funding of any Mortgage Loan hereunder
shall be acceptable to Provident in its sole discretion.
(d) Borrower represents, warrants and covenants to Provident that all
proceeds of all Advances shall be used by it solely to fund Mortgage Loans
originated by Borrower in the ordinary course of its business and for no other
use or purpose.
(e) Advances for the funding of any Mortgage Loan originated by
Borrower shall not exceed one hundred percent (100%) of the original principal
amount of such Mortgage Loan.
(f) In connection with each Advance, Borrower agrees to pay Provident
the transaction fees charged by Provident with respect to the Mortgage Loans
funded and originated with such Advance ("Fees"). The amounts of Fees payable by
Borrower in connection with any Advance shall be determined by reference to the
Cost and Fee Schedule in effect on the Funding Date of such Advance (the "Cost
and Fee Schedule"). The Cost and Fee Schedule in effect on the date of this
Agreement is attached hereto as Schedule A. Any Cost and Fee Schedule shall
remain in effect until a new Cost and Fee Schedule is delivered to Borrower in
accordance with the requirements of Section 11(f).
3. INTEREST PAYABLE ON ADVANCES. Borrower promises to pay to Provident
interest in arrears on the unpaid amount of each Advance made by Provident to
Borrower pursuant to this Agreement and on the unpaid amount of any interest not
paid when due at a variable rate of interest per annum equal at all times to the
Interest Rate. Interest shall be calculated on the daily unpaid amount of each
Advance from its Funding Date. Interest with respect to each Advance hereunder
shall be payable: (i) commencing on the date that is sixty-one (61) days after
the Funding Date of the Advance and continuing on the same day of each
consecutive month thereafter; and (ii) on its Maturity Date. Payments of
interest shall be due and payable as set forth above until payment in fill of
all-Advances. All interest under this Agreement shall be calculated on the basis
of a year consisting of 360 days (comprised of twelve 30 day months) and paid
for actual days elapsed.
4. TERMINATION; MANDATORY REPAYMENTS OF ADVANCES PRIOR TO TERMINATION
(a) Provident may, at any time, for any reason upon 30 days written
notice, terminate this Agreement and demand that Borrower pay the aggregate
unpaid amount of all Advances made by Provident to Borrower pursuant to this
Agreement, all accrued and unpaid interest thereon as well as all Fees, charges
and other amounts payable hereunder and under the Loan Documents ("Demand For
Payment").
6
Following a Demand for Payment, the aggregate unpaid amount
of all Advances made by Provident to Borrower pursuant to this Agreement,
together with all accrued and unpaid interest thereon as well as all Fees,
charges and other amounts payable hereunder and under the other Loan Documents
shall be immediately due and payable in full and no future or additional
Advances will be made by Provident to Borrower hereunder.
(b) Prior to termination of this Agreement as provided for above,
Borrower shall repay to Provident the unpaid amount of each Advance made by
Provident to ]Borrower hereunder, all accrued and unpaid interest thereon and
all Fees, charges and other amounts payable hereunder, on the earlier to occur
of: (i) the Closing Date on which Borrower sells or otherwise disposes of the
Mortgage Loan(s) funded and originated with the Advance whether by sale to a
Third Party Investor or otherwise; or (ii) on or before the applicable number of
days after its Funding Date set forth in the Cost and Fee Schedule under the
heading entitled "Days Allowed for Purchase by Third Party Investor" (the
earlier to occur of (i) or (ii) being referred to herein as the "Maturity
Date").
5. GRANT OF SECURITY INTEREST.
(a) To secure the prompt payment of the Advances, interest and all
other amounts payable hereunder and under the other Loan Documents and, the due
and punctual performance and observance by Borrower of all of its other
covenants, obligations and liabilities under this Agreement and the other Loan
Documents and also to secure all of the Other Obligations Secured Hereby,
Borrower hereby grants to Provident a security interest in and to, and hereby
pledges and collaterally assigns to Provident, all of its rights, title,
interest and claims in, to and under all of the following property, wherever
located, whether now or hereafter owned, held or acquired, or hereafter existing
or arising (collectively, the "Collateral"):
(i) all Mortgage Loans;
(ii) all Mortgage Loan Documents including, without limitation,
all Mortgage Notes, Mortgages and Assignments of Mortgages relating to
the Mortgage Loans;
(iii) all rights to service or subservice the Mortgage Loans;
(iv) all certificates, notes and other securities of any kind
whatsoever, residual or otherwise, issued to Borrower or now or
hereafter owned, held or acquired by Borrower in connection with or
related to any mortgage loan securitization or any asset-back
transaction involving the Mortgage Loans;
(v) all of Borrower's rights under contracts or agreements to
which Borrower is party (but none of its covenants, obligations or
liabilities thereunder) in connection with the Mortgage Loans,
including all contracts or agreements with all Third Party Investors
and all attorney's opinions of title and title insurance policies;
(vi) the Cash Collateral Account and all funds in the Cash
Collateral Account; and
(vii) all Proceeds of any and all of the foregoing Collateral in
whatever form, including but not limited to, all payments made by
Mortgagors to Borrower in connection with the Mortgage Loans and all
premiums paid to Borrower by Third Party Investors in connection with
the sales of the Mortgage Loans.
(b) Borrower shall take all actions necessary or appropriate under all
applicable laws, or as requested by Provident, to perfect, maintain and
preserve, and to continue as perfected, Provident's first lien and security
interest in the Collateral. Borrower shall pay all costs of preparing, recording
and filing UCC Financing Statements (and any continuation or termination
statements with respect thereto) and any other documents, titles, statements,
assignments or the like reasonably required to create, maintain, preserve or
perfect the liens or security interests granted under the Loan Documents,
together with costs and expenses of any lien or UCC searches required by
Provident in connection with the making of any Advance. At Provident's request,
Borrower shall execute and deliver to Provident at any time and
7
from time to time hereafter, all supplemental documentation that Provident may
reasonably request to perfect, maintain, preserve or continue the security
interest and liens in the Collateral granted Provident hereby and under any of
the other Loan Documents (collectively, the "Security Documents"), in form and
substance acceptable to Lender, and pay the costs of preparing and recording or
filing of the same. Borrower agrees that a carbon, photographic, or other
reproduction of this Agreement or of a financing statement is sufficient as a
financing statement. Borrower shall promptly notify Provident concerning any
changes in its name, identity or structure, concerning any changes in the
address(es) of its chief executive office or other places of business cr
concerning any changes in its trade name(s) or name(s) under which it does
business.
(c) The Document Custodian shall maintain possession of each Credit
File and the Mortgage Loan Documents comprising each Credit File (other than the
Initial Collateral Package) for each Mortgage Loan. Promptly after Provident's
request therefor, Borrower, at its expense, shall cause the Credit Files held by
the Document Custodian to be delivered to Provident or its agent, bailee or
other designee.
(d) Borrower shall, at all times, maintain the Cash Collateral Account
with Provident. Borrower shall deposit or cause to be deposited all Collections
into the Cash Collateral Account when and as Collections are received or
receivable by Borrower. Withdrawals nay be made from the Cash Collateral Account
by Borrower in accordance with the Policies and Procedures. Provident is hereby
authorized to withdraw funds from the Cash Collateral Account from time to time,
either before or after Provident's Demand for Payment, and to apply such
withdrawals to the payment of the Advances, accrued and unpaid interest thereon
and Fees, charges and Other amounts payable hereunder or under the other Loan
Documents.
(e) Borrower hereby makes, constitutes and appoints Provident (by any
of its officers, employees or agents), its true and lawful agent and
attorney-in-fact and hereby gives and grants to Provident full power and
authority to do and perform each and every act whatsoever requisite, necessary
and proper (i) to endorse the related Mortgage Note to the Third Party Investor
that purchases anyMortgage Loan; (ii) to endorse any original Mortgage Note to
Provident or the purchaser thereof should Borrower default in its obligations
hereunder; (iii) to prepare, execute and record on behalf of Borrower any
Assignment of Mortgage; (iv) at the sole option of Provident, to prosecute, in
Borrower's or Provident's name, any and all claims or causes of action
collaterally assigned to Provident hereunder; and (v) to do and perform every
act necessary to place Provident in position to enforce the payment of any
Mortgage Loan.
6. BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants to Provident as follows as of the date hereof and as of each Funding
Date:
(a) Borrower is and shall at all times be, duly organized, validly
existing and in good standing under the laws of the State set forth in the first
paragraph of this Agreement and has, and shall at all times have, full power and
authority and legal right to engage in and carry on Borrower's business as now
being conducted, to undertake the borrowings contemplated hereby and to execute
and deliver each of the Loan Documents. Borrower is qualified and licensed in
each jurisdiction wherein the nature or conduct of its business make such
qualification necessary or advisable. Borrower is currently qualified and
licensed in good standing in each such jurisdiction. Borrower's name as set
forth in the caption of this Agreement and as set forth on the signature page of
this Agreement is Borrower's correct individual, partnership or corporate name,
as the case may be.
(b) Borrower has full power and authority arid legal right to enter
into this Agreement and each of the other Loan Documents, and to perform,
observe and comply with all of its agreements and obligations under each of such
documents, including without limitation, the making by Borrower of the
borrowings contemplated hereby and the granting by Borrower of the security
interest in the Collateral pursuant to Section 5.
(c) The execution and delivery by Borrower of this Agreement and the
other Loan Documents, the performance by Borrower of all of its agreements and
obligations hereunder and thereunder and the making by Borrower of the
borrowings contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of Borrower and do not and will not
constitute a breach, violation or event of default (or an event which would
8
become an event of default with the lapse of time or notice or both) under any
judgment, decree, note, agreement, indenture or other instrument to which
Borrower is a party or otherwise subject.
(d) Borrower owns or possesses all rights, licenses, permits,
franchises and the like necessary for the conduct of its business as presently
conducted and proposed to be conducted. All of the foregoing rights, licenses,
permits and franchises are in full force and effect, and Borrower is in
compliance with all of the foregoing. No event has occurred which permits, or
after notice or lapse of time or both would permit, the revocation or
termination of any such right, license, permit or franchise, or affects the
rights of Borrower thereunder.
(e) The balance sheets, statements of income and other financial
statements previously delivered to Provident present fairly the financial
condition and results of operations of Borrower as of the dates thereof and for
the fiscal periods then ended. There are no material liabilities or obligations,
secured and unsecured (whether accrued, absolute or actual, contingent or
otherwise), which were not reflected in the balance sheets of Borrower as of the
dates thereof.
(f) No changes have occurred in the assets, liabilities or financial
condition of Borrower from those reflected on the most recent balance sheet
delivered to Provident (the "Current Balance Sheet") which, individually or in
the aggregate, have been adverse. Since the date of the Current Balance Sheet,
there has been no adverse development in the business or in the operations or
prospects of Borrower.
(g) Borrower is the sole owner of and has good and marketable title to
the Collateral, free and clear of all Liens and encumbrances whatsoever, except
for the security interest granted by Borrower pursuant to Section 5. All
information furnished to Provident concerning the Collateral is and will be
complete, accurate and correct in all respects when furnished.
7. COVENANTS REGARDING THE BORROWER. Borrower covenants and agrees with
Provident as follows:
(a) Borrower shall deliver to Provident as soon as available and, in
any event, within thirty (30) days after the end of each calendar quarter,
quarterly unaudited financial statements of Borrower and within Ninety (90) days
after the end of each fiscal year of Borrower, annual financial statements of
Borrower which, in each case, shall include a balance sheet, statement of
income, statement of changes in financial position and notes to financial
statements. Provident reserves the right to require Borrower to deliver audited
annual financial statements.
Such financial statements shall be certified by the chief executive
officer of Borrower to the effect that such financial statements reflect, in his
opinion and in the opinion of senior management of Borrower, all adjustments
necessary to present fairly the financial position of Borrower as at the end of
such quarter or year, as the case may be, and the results of its operations for
the period then ended.
(b) Borrower shall deliver to Provident all information Provident may
reasonably request at any time and from time to time concerning its business,
financial condition, results of operations, the Mortgage Loans financed
hereunder or the other Collateral.
(c) Borrower covenants to keep the Credit File for each of the
Mortgage Loans financed hereunder at all times at Borrower's business premises
or at such other location or locations as Provident may approve in writing.
Borrower further covenants to deliver the Credit File(s) to Provident upon
demand by Provident, which demand may be made in Provident's sole and absolute
discretion.
9
(d) Borrower shall pay or cause to be paid all taxes, assessments and
other governmental charges imposed upon its properties or assets or in respect
of any of its franchises, business, income or profits before any penalty or
interest accrues thereon, and all claims (including, without limitation, claims
for labor, services, materials and supplies) for sums which have become due and
payable and which by law have or might become due and payable and which by law
have or might become a lien or charge upon any of its properties or assets,
provided that (unless any material item of property would be lost, forfeited or
materially damaged as a result thereof) no such charge or claim need be paid if
the amount, applicability or validity thereof is currently being contested in
good faith and if such reserve or other appropriate provision, if any, as shall
be required by generally accepted accounting principles shall have been made
therefor.
(e) At any time or times during Borrower's usual business hours,
Borrower shall permit Provident (by any of its officers, employees or agents) to
enter upon Borrower's business premises for any of the following reasons: (i) to
inspect the Collateral and any books or records related thereto (including
making copies of and extracts therefrom), (ii) to verify the amount, quality,
quantity, value or condition of, or any other matter relating to, the
Collateral, (iii) to examine all of the other books and records of Borrower
(including making copies of and' extracts therefrom), including those relating
to its tax records, payroll records and insurance records, and (iv) to discuss
the business, financial condition or results of operations with any of
Borrower's officers, employees, agents or accountants. Borrower covenants to pay
Provident a reasonable audit fee and reimburse Provident for its out-of-pocket
expenses for all inspections, audits and examinations conducted by Provident
other than regular monthly audits.
(f) Borrower covenants to comply with all federal, state and local
laws, rules, regulations and orders applicable to it and its business.
(g) Borrower agrees to notify Provident in writing within fifteen (15)
calendar days of any proposed Change of Control or any proposed, or completed,
change in the executive management of Borrower, including, but not limited to,
any management change in the office of president, or any change in the
management of Borrower's underwriting department. Borrower further agrees to
notify Provident in writing at least thirty (30) days in advance of any change
in the location of its principal place of business or of any proposed change in
the name of Borrower or the opening or closing of any office.
(h) Borrower shall not at any time create, assume, incur or permit to
exist, any Lien or other encumbrance in respect of any of the Collateral.
(i) Borrower agrees to give Provident prompt notice of any
development, financial or otherwise, which would materially adversely affect its
business, properties or affairs or the ability of Borrower to perform its
obligations under this Agreement.
8. COVENANTS REGARDING THE MORTGAGE LOANS. Borrower further covenants and
agrees with Provident as follows with respect to each Mortgage Loan to be
financed by Provident hereunder.
(a) As of its Funding Date, the Initial Collateral Package and Credit
File relating to the Mortgage Loan shall contain each of the documents and
instruments specified herein to be included therein.
(b) The related Mortgage shall be a valid and enforceable first or
second Lien of record on the Mortgaged Property subject, in the case of any
second Mortgage Loan, only to a first Lien on such Mortgaged Property and
subject in all cases to the exceptions to title set forth in the title insurance
policy or attorney's opinion of title with respect to the related Mortgage Loan,
which exceptions shall be acceptable to Provident.
(c) Borrower shall hold good, marketable and indefeasible title to,
and be the sole owner and holder of, the Mortgage Loan subject to no Liens or
rights of others.
(d) The Mortgage Loan shall not be subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor shall the
operation of any of the terms of the Mortgage Note or Mortgage, or
10
the exercise of any right thereunder, render either the Mortgage Note or 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 shall have
been asserted with respect thereto.
(e) The Mortgage Loan shall comply with, and shall at all times be
serviced in compliance with, in all material respects, applicable state and
federal laws and regulations, including, without limitation, usury, equal credit
opportunity, consumer credit, truth-in-lending and disclosure laws.
(f) With respect to the Mortgage Loan, either (i) a lender's title
insurance policy, issued in standard American Land Title Association or
California Land Title Association form, or other form acceptable in the
particular jurisdiction, by a title insurance company authorized to transact
business in the state in which the related Mortgaged Property is situated,
together with a condominium endorsement, if applicable, in an amount at least
equal to the original principal balance of such Mortgage Loan insuring the
mortgagee's interest under the related Mortgage Loan as the holder of a valid
first or second mortgage Lien of record on the Mortgaged Property described in
the Mortgage, subject only to the exceptions of the character referred to in
subsection (b) above, shall be valid and in full force and effect on the Funding
Date of the origination of such Mortgage Loan or (ii) an attorney's opinion of
title shall be prepared in connection with the origination of such Mortgage
Loan, Such mortgage title insurance policy or attorney's opinion of title shall
be issued in favor of Borrower and its successors and assigns. Borrower shall,
by act or omission, not have done anything that would impair the coverage of
such mortgage title insurance policy or attorney's opinion of title.
(g) The Mortgage Note and the related Mortgage shall have been-duly
and properly executed, constitute the legal, valid and binding obligation of the
related Mortgagor and shall be enforceable in accordance with their respective
terms, except only as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
considered in a proceeding or action in equity or at Law), and all parties to
the Mortgage Loan shall have had full legal capacity to execute all Mortgage
Loan Documents and to convey the estate therein purported to be conveyed.
(h) The terms of the Mortgage Note and the Mortgage shall not have
been or be impaired, altered or modified in any material respect, except by a
written instrument which shall have been recorded or is in the process of being
recorded, if necessary, to protect the interests of Borrower therein. The
original Mortgage shall be recorded, and all subsequent assignments of the
original Mortgage shall be recorded in the appropriate jurisdictions wherein
such recordation is necessary to perfect the Lien thereof as against creditors
of Borrower.
(i) No instrument of release or waiver shall have been executed in
connection with the Mortgage Loan, and no Mortgagor shall have been released
therefrom, in whole or in part.
(j) The proceeds of the Mortgage Loan shall have been fully disbursed,
and there shall be no obligation on the part of Borrower to make any future
advances thereunder. All costs, fees and expenses incurred in making or closing
or recording of the Mortgage Loan shall have been paid in full.
(k) The Mortgage Note shall not be secured by any collateral, pledged
account or other security except the lien of the corresponding Mortgage.
(1) There shall be no obligation on the part of Borrower or any other
person to make payments in respect of the Mortgage Loan in addition to those to
be made by the Mortgagor.
(m) All parties which have had any interest in the Mortgage Loan,
whether as originator, mortgagee, assignee, pledgee, servicer or otherwise, are
(or, during the period in which they held and disposed of such interest, were)
(i) in compliance with any and all applicable licensing; requirements of the
laws of the state wherein the Mortgaged Property is located, and (2)(A)
organized under the laws of such state, or (B) qualified to do business in such
state, or (C) federal savings and loan associations or national banks having
principal offices in such state, or (D) not doing business in such state so as
to require qualification or licensing.
11
(n) The Mortgage shall contain customary and enforceable provisions
which render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (ii) otherwise by judicial or non-judicial foreclosure.
(o) To the best of Borrower's knowledge, there shall not exist any
circumstances or conditions with respect to the Mortgage Loan, the Mortgaged
Property, the Mortgagor or the Mortgagor's credit standing that could be
reasonably expected to materially adversely affect the value or marketability of
the Mortgage Loan.
(p) Each of the documents and instruments included in the Credit File
shall have been duly executed and in due and proper form and each such document
or instrument shall be in a form generally acceptable to prudent institutional
mortgage lenders that regularly originate or purchase mortgage loans.
(q) The Borrower shall be in possession of the complete Credit File
and there shall be no custodial agreements in effect adversely affecting the
right or ability of Borrower to make the document deliveries required hereby.
(r) The Mortgage property shall not be damaged by fire, wind or other
cause or loss and there shall not be any condemnation proceedings pending. To
the best knowledge of Borrower, no improvement on any Mortgage property is in
violation of any applicable zoning law or regulation.
(s) All signatures, names and addresses, amounts and other statements
of fact, including descriptions of the property, appearing on the credit
application and other related documents relating to each Mortgage Loan shall be
true and correct and the Mortgagors named thereon will be, as of the date of
each such document upon which signatures appear, of majority age, and will have
the legal capacity to enter into the Mortgage.
(t) Borrower will have reviewed all of the Mortgage Loan Documents,
and all the related documents thereto, and will make such inquiries as it deems
necessary to make and confirm the accuracy of the representations set forth
herein and throughout this Agreement.
(u) Each Mortgage Loan which Borrower warrants is insured by a private
mortgage insurance company shall be so insured.
9. SALES OF MORTGAGE LOANS AND OTHER COLLATERAL. Until Provident shall have
made a Demand for Payment, Borrower shall be entitled to sell the Mortgage Loans
financed hereunder and the other Collateral in the ordinary course of Borrower's
business, but nothing herein shall be deemed to waive or release Provident's
security interest in any Proceeds of any Collateral. Upon the sale of any
Mortgage Loan financed hereunder, Borrower shall pay to Provident on its Closing
Date, the unpaid amount of the Advance with respect to such Mortgage Loan, all
accrued and unpaid interest thereon through and including such Closing Date and
all Fees, charges and other amounts payable hereunder. The sales of Mortgage
Loans to Third Party Investors shall be handled in accordance with the
requirements set forth in the Policies and Procedures. In addition, Borrower
agrees that Provident shall have the right, in its sole discretion, to (i)
impose additional requirements regarding the delivery of Mortgage Loan Documents
to any Third Party Investor; and (ii) return wire transfers received in
connection with the sale of any' Mortgage Loan to the originating bank if such
wire transfer does not'comply with the Policies and Procedures.
10. REMEDIES.
(a) After a Demand for Payment shall have been made by Provident, all
amounts owed to Provident hereunder shall thereupon be immediately due and
payable and no additional or future Advances will be made by Provident to
Borrower hereunder.
12
(b) From and after any Demand For Payment, Provident shall, in
addition to its other rights and remedies under applicable law, have the rights
and remedies of a secured party under the Uniform Commercial Code with respect
to the Collateral and all other security pursuant to any other Security
Documents between Provident and Borrower. In addition, Provident or its agents
or representatives may take possession of the Collateral and sell the same. For
such purpose, Provident may enter upon the premises where the Collateral shall
be located and remove the same to such other place as Provident shall determine.
Borrower shall immediately, upon Provident's demand, make the Credit Files
available to Provident at Provident's place of business.
(c) Any such taking of possession by Provident shall not affect
Provident's right, which hereby is confirmed, to retain all payments made prior
thereto by Borrower, and in the event of such taking of possession, Provident
may sell the Collateral at a public or private sale or any other commercially
reasonable manner permitted by law. The proceeds of any such sale or other
disposition shall be applied first to the actual and reasonable costs of such
sale, then to the actual and reasonable costs of retaking possession and storage
of such Collateral and then to the satisfaction of the unpaid balance of the
Advances. In the event the proceeds of any such sale are not sufficient to pay
such expenses and to satisfy all amounts due by acceleration or otherwise with
respect to all Advances made pursuant hereto, Borrower shall pay to Provident
any deficiency existing. Provident will give Borrower reasonable notice of the
time and place of any public sale of the Collateral or of the time after which
any private sales or other intended disposition thereof is to be made. Borrower
agrees that the requirement of reasonable notice shall be met if such notice is
mailed, postage prepaid, to the address of the Borrower listed in Section 11(f)
at least 10 days prior to the time of such sale or disposition. Borrower further
agrees and acknowledges that: (i) the Collateral is customarily sold in a
recognized market; (ii) Borrower regularly sells and Provident regularly
purchases mortgage loans similar to the Collateral; and (iii) Provident may be
the purchaser of the Collateral either in a public or private sale.
(d) From and after any Demand For Payment, Borrower shall pay, in
addition to interest on funds actually advanced, all costs incurred by Provident
in enforcing Provident's rights hereunder, including those incurred in
bankruptcy proceedings, expenses of locating the Collateral, all costs and
expenses actually incurred by Provident in connection with examination,
preservation and protection of the Collateral, examination of the Borrower's
books and records otherwise in connection with the financing pursuant hereto and
reasonable attorney's fees and legal expenses.
(e) If any payment of interest under Section, 3 or principal or
interest under Section 4 is not paid when due whether by demand or otherwise,
the unpaid amount of all Advances and all accrued and unpaid interest thereon as
well as any other charges and other amounts due Provident hereunder or under any
Loan Document shall bear interest, at Provident's option, at the Default
Interest Rate from the date on which such late payment shall have first become
due and payable to Provident. Interest will continue to accrue until the
obligations in respect of the payment are discharged (whether before or after
judgment).
(f) The rights and remedies of Provident hereunder shall be cumulative
and shall be in addition to every other right or remedy available to Provident
under applicable law.
11. GENERAL PROVISIONS.
(a) Borrower absolutely and unconditionally agrees to pay to Provident
upon demand by Provident at any time and as often as the occasion therefor may
require, whether or not all or any of the transactions contemplated by any of
the Loan Documents are ultimately consummated (i) all reasonable out-of-pocket
costs and expenses which shall at any time be incurred or sustained by Provident
or any of its directors, officers, employees or agents as a consequence of, on
account of, in relation to or any way in connection with the preparation,
negotiation, execution and delivery of the Loan Documents and the perfection and
continuation of the rights of Provident in connection with the Advances, as well
as the preparation, negotiation, execution, or delivery or in connection with
the amendment or modification of any of the Loan Documents or as a consequence
of, on account of, in relation to or any way in connection with the granting by
Provident of any consents, approvals or waivers under any of the Loan Documents
including, but not limited to, reasonable attorneys' fees and disbursements; and
(ii) all reasonable out-of-pocket costs and expenses which shall be incurred or
sustained by Provident or any of its directors, officers, employees or agents as
a consequence of, on account of, in relation to or any way in connection with
the exercise, protection or
13
enforcement (whether or not suit is instituted) of any of its rights, remedies,
powers or privileges under any of the Loan Documents or in connection with any
litigation, proceeding or dispute in any respect related to any of the Loan
Documents (including, but not limited to, all of the reasonable fees and
disbursements of consultants, legal advisers, accountants, experts and agents
for Provident, the reasonable travel and living expenses away from home of
employees, consultants, experts or agents of Provident, and the reasonable fees
cf agents, consultants and experts not in the full-time employ of Provident for
services rendered on behalf of Provident).
(b) Borrower shall absolutely and unconditionally indemnify and hold
harmless each other against any and all claims, demands, suits, actions, causes
of action, damages, losses, settlement payments, obligations, costs, expenses
(including, but not limited to, attorney's fees and other legal costs and
expenses) and all other liabilities whatsoever ("Losses") which shall at any
time or times be incurred or sustained by either party or by any of its
shareholders, directors, officers, employees, subsidiaries, Affiliates or agents
on account of, or in relation to, or in any way in connection with, any of the
arrangements or transactions contemplated by, associated with or ancillary to
this Agreement or any of the other Loan Documents, whether or not all or any of
the transactions contemplated by, associated with or ancillary to this Agreement
or any of such Loan Documents are ultimately consummated, including, but not
limited to, Losses arising from or in connection with, or related to, any of the
Mortgage Loans financed hereunder, whether arising from the underwriting,
processing, origination, closing, funding, purchase, servicing or sale of any
such Mortgage Loans.
(c) No amendment, supplement, modification, termination, waiver,
consent to departure or alteration of the terms hereof or any of the other Loan
Documents shall be binding or effective unless the same is in writing, dated
subsequent to the date hereof, and duly executed by Borrower and Provident, and
then such amendment, modification or waiver shall be effective only in the
specific instance and for the specific purpose for which given.
(d) All agreements, representations, obligations and warranties made
herein shall survive the execution and delivery of this Agreement, the making of
any Advance hereunder, the execution and delivery of any of the other Loan
Documents and payment in full of the Advances.
(e) This Agreement (including the Exhibits and Schedules hereto) and
the other Loan Documents (including the Security Documents) and any documents,
certificates and instruments referred to herein or delivered by the parties in
connection herewith constitute the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and verbal, between the parties with respect to the
subject matter of this Agreement and are not intended to confer upon any Person
other than the parties any rights or remedies.
(f) All notices and other communications pursuant to this Agreement
and under any of the other Loan Documents shall be in writing, either delivered
in hand or sent by first-class mail, registered or certified, return receipt
requested, or sent by telecopier or facsimile transmission, addressed as
follows:
If to Borrower, at: ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
14
If to Provident, at: The Provident Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Mail Stop: 265D
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this Section 11. Any notice or other communication pursuant to this Agreement
or any other Loan Document shall be deemed to have been duly given or made and
to have become effective when delivered in hand to the party to which it is
directed, or, if sent by first-class mail or by telecopier or facsimile
transmission, and properly addressed (i) when received by the addressee; or (ii)
if sent by first class mail, on the third (3rd) Business Day following the day
of the mailing thereof (unless actually received earlier).
(g) No delay or failure of Provident in exercising any right, power,
remedy or privilege hereunder or under any of the other Loan Documents on any
occasion shall affect such right, power, remedy or privilege or be construed as
a waiver or any requirement of this Agreement; nor shall any single or partial
exercise thereof or any abandonment or discontinuance of steps to enforce such a
right, power or privilege be prejudicial to any subsequent exercise of such
right, power or privilege. Provident's acceptance or approval of any request,
payment, document or instrument pertaining to any Advance made pursuant hereto
shall not constitute any representation or warranty, express or implied, by
Provident as to the validity or sufficiency of any such request, payment,
document or instrument. The rights and remedies of Provident hereunder are
cumulative and not exclusive. All remedies herein provided shall be in addition
to and not in substitution for any remedies otherwise available to Provident.
Any waiver, permit, consent or condition hereof, must be in writing and shall be
effective only to the extent set forth in such writing.
(h) This Agreement shall be binding upon and inure to the benefit of
Borrower and Provident and their respective successors and assigns, except that
Borrower may not assign or transfer any of its rights or obligations hereunder
to any Person or Persons without the express prior written consent of Provident.
If more than one Borrower shall sign this Agreement, the liability of each
hereunder shall be joint and several.
(i) This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio.
(j) It is hereby stipulated and agreed that T1ME IS OF THE ESSENCE
hereon and shall be of the essence as to each of the other Loan Documents.
(k) Any provision contained in any document which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of such document or affecting the validity or
enforceability of such provision in any other jurisdiction.
(1) This Agreement may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
and deliver shall be deemed to be an original and all of which taken together
shall constitute but one and the same Agreement.
12. WAIVER OF JURY TRIAL; JURISDICTION AND VENUE.
(a) AS A SPECIFICALLY BARGAINED INDUCEMENT FOR PROVIDENT TO EXTEND
CREDIT TO BORROWER, AND AFTER HAVING THE OPPORTUNITY TO CONSULT COUNSEL,
BORROWER AND, IF MORE THAN ONE, EACH OF THEM HEREBY EXPRESSLY WAIVES THE RIGHT
TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO THIS AGREEMENT OR
ARISING IN ANY WAY FROM ITS OBLIGATIONS HEREUNDER.
(b) BORROWER AND, IF MORE THAN ONE, EACH OF THEM HEREBY DESIGNATES ALL
COURTS OF RECORD SITTING IN ▇▇▇▇▇▇▇▇ COUNTY, OHIO AND HAVING JURISDICTION OVER
THE SUBJECT MATTER, STATE AND FEDERAL, AS FORUMS WHERE ANY ACTION, SUIT OR
PROCEEDING IN RESPECT OF OR ARISING FROM OR OUT OF THIS AGREEMENT, ITS MAKING,
VALIDITY, PERFORMANCE, INTERPRETATION OR ENFORCEMENT MAY BE LITIGATED AS TO ALL
PARTIES, THEIR SUCCESSORS AND ASSIGNS, AND BY THE FOREGOING DESIGNATION BORROWER
AND, IF MORE THAN ONE, EACH OF THEM HEREBY CONSENTS TO THE JURISDICTION AND
VENUE OF SUCH COURTS. BORROWER WAIVES ANY AND ALL RIGHTS UNDER THE LAWS OF ANY
OTHER STATE TO OBJECT TO JURISDICTION WITHIN THE STATE OF OHIO FOR THE PURPOSES
OF LITIGATION TO ENFORCE THE OBLIGATIONS UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, the undersigned have caused this Warehouse Loan
and Security Agreement to be signed by their duly authorized signatories on and
as of the date first above written.
Geneva Mortgage Corp.
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
TITLE: President
------------------------
THE PROVIDENT BANK
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
TITLE: Vice President
------------------------
