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EXHIBIT 10.2
SECOND AMENDMENT TO FIRST AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING CREDIT
AND SECURITY AGREEMENT (this "Amendment") is entered into as of this 29th
day of August 1996, by and between U.S. HOME MORTGAGE CORPORATION, a
Florida corporation (the "Company") and RESIDENTIAL FUNDING CORPORATION, a
Delaware corporation (the "Lender").
WHEREAS, the Company and the Lender have entered into a single family
revolving warehouse facility with a present Commitment Amount of Forty-Five
Million Dollars ($45,000,000), to finance the origination and acquisition
of Mortgage Loans as evidenced by a Warehousing Promissory Note in the
principal sum of Forty-Five Million Dollars ($45,000,000), dated as of
December 27, 1995, a Sublimit Promissory Note in the principal sum of
Fifteen Million Dollars ($15,000,000), dated as of December 27, 1995, (the
"Notes"), and by a First Amended and Restated Warehousing Credit and
Security Agreement dated as of August 31, 1995, as the same may have been
amended or supplemented (the "Agreement");
WHEREAS, the Company has requested the Lender extend the period for
which the Commitment under the Agreement has been made and to amend the
Agreement to allow for the warehousing of FmHA Mortgage Loans and the
Lender has agreed to such extension and amendment subject to the terms and
conditions of this Amendment;
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants, agreements and conditions hereinafter set forth and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise defined shall
have their respective meanings set forth in the Agreement.
2. The effective date ("Effective Date") of this Amendment shall be,
the date on which the Company has complied with all the terms and
conditions of this Amendment.
3. Section 1.1 of the Agreement shall be amended by adding the
following definitions in the appropriate alphabetical order:
"FmHA" means the Farmers Home Administration and any successor
thereto.
"FmHA Mortgage Loan" means a Mortgage Loan secured by a First
Mortgage and with respect to which ninety percent (90%) of the
principal amount of each Mortgage Loan is guaranteed by FmHA.
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"HUD 203(K) Mortgage Loan" means an FHA insured Mortgage Loan
secured by a First Mortgage, a portion of which will be used for the
purpose of rehabilitating and/or repairing the related single family
property, and which satisfies the definition of "rehabilitation loan"
under 24 C.F.R. Section 203.50(a).
"RFC Mortgage Loan" means a Mortgage Loan covered by a Purchase
Commitment issued by RFC.
"Second Mortgage Loan" means a closed-end Mortgage Loan secured
by a Second Mortgage.
"Title I Mortgage Loan" means an FHA co-insured Mortgage Loan
secured by a Mortgage which is underwritten in accordance with HUD
underwriting standards for the Title I Property Improvement Program as
set forth in and which is reported for insurance under the Mortgage
Insurance Program authorized and administered under Title I of the
National Housing Act of 1934, as amended and the regulations
promulgated thereunder.
4. Section 1.1 of the Agreement shall be amended to delete the
definitions of "Adjusted Tangible Net Worth," "Approved Custodian,"
"Collateral Value," "Conforming Mortgage Loan," "Conventional Mortgage
Loan," "Debt," "Fair Market Value," "Nonconforming Mortgage Loan" and
"Operating Account" in their entirety, replacing them with the following
definitions:
"Adjusted Tangible Net Worth" means with respect to any Person at
any date, the Tangible Net Worth of such Person at such date,
excluding capitalized excess servicing fees and capitalized servicing
rights, plus one percent (1%) of the Adjusted Servicing Portfolio, and
plus deferred taxes arising from capitalized excess servicing fees and
capitalized servicing rights.
"Approved Custodian" means a pool custodian or other Person which
is deemed acceptable to the Lender from time to time in its sole
discretion to hold a Mortgage Loan for inclusion in a Mortgage Pool or
to hold a Mortgage Loan as agent for an Investor who has issued a
Purchase Commitment for such Mortgage Loan.
"Collateral Value" means (a) with respect to any Mortgage Loan as
of the date of determination, the lesser of (i) the amount of any
Advance made against such Mortgage Loan under Section 2.1(c) hereof;
or (ii) the Fair Market Value of such Mortgage Loan; or (b) in the
event Pledged Mortgages have been exchanged for Pledged Securities,
the Fair Market Value of such Pledged Securities; or (c) with respect
to cash, the amount of such cash.
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"Conforming Mortgage Loan" means a First Mortgage Loan which is
either (a) an FHA insured (other than a Title I Mortgage Loan or HUD
203(K) Mortgage Loan) or VA guaranteed Mortgage Loan or (b) a
Conventional Mortgage Loan which is underwritten substantially in
accordance with FNMA or FHLMC underwriting standards, and the
principal amount of which is less than or equal to the maximum amount
eligible for purchase by FNMA or FHLMC.
"Conventional Mortgage Loan" means a First Mortgage Loan, other
than an FHA insured, VA guaranteed Mortgage Loan or FmHA guaranteed
Mortgage Loan.
"Debt" means, with respect to any Person, at any date (a) all
indebtedness or other obligations of such Person which, in accordance
with GAAP, would be included in determining total liabilities as shown
on the liabilities side of a balance sheet of such Person at such
date; and (b) all indebtedness or other obligations of such Person for
borrowed money or for the deferred purchase price of property or
services; provided that for purposes of this Agreement, there shall be
excluded from Debt at any date loan loss reserves, Subordinated Debt
not due within one year of such date, and deferred taxes arising from
capitalized excess servicing fees and capitalized servicing rights.
"Fair Market Value" means at any time for a Mortgage Loan or the
related Mortgage-backed Security (if such Mortgage Loan is to be used
to back a Mortgage-backed Security), (a) if such Mortgage Loan or the
related Mortgage-backed Security is covered by a Purchase Commitment,
the Committed Purchase Price, or (b) otherwise, the market price for
such Mortgage Loan or Mortgage-backed Security, determined by the
Lender
based on market data for similar Mortgage Loans or Mortgage-backed
Securities and such other criteria as the Lender deems appropriate.
"Nonconforming Mortgage Loan" means a Conventional Mortgage Loan
which is not a Conforming Mortgage Loan or a Jumbo Mortgage Loan,
which has a credit risk rating C- or better (determined using the
underwriting standards of the Investor to which such Mortgage Loan is
to be sold under a Purchase Commitment, provided such underwriting
standards comply with industry standards in the sole judgment of the
Lender), and which is underwritten and approved for purchase by an
Investor prior to funding if its original principal amount exceeds Six
Hundred Thousand Dollars ($600,000).
"Operating Account" means a demand deposit account maintained at
the Funding Bank in the name of the Company and designated for funding
that portion of each Mortgage Loan not funded by an Advance made
against such Mortgage Loan and for returning any excess payment from
an Investor for a Pledged Mortgage or Pledged Security.
5. The definition of "Maturity Date" in Section 1.1 of the Agreement
shall be amended by inserting the date "August 31, 1997" in place of
"August 31, 1996" wherever it appears in such definition.
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6. Section 2.1(b) (3) of the Agreement shall be deleted in its
entirety and the following is substituted in lieu thereof:
(3) No Advance shall be made against a Home Equity
Loan, a Title I Mortgage Loan or a HUD 203(K) Mortgage Loan.
7. Section 2.1(c) (1) of the Agreement shall be deleted in its
entirety and the following shall be substituted in lieu thereof:
(1) For a Conforming Mortgage Loan, a Jumbo
Mortgage Loan or an FmHA Mortgage Loan pledged
hereunder, other than an RFC Mortgage Loan,
ninety-eight percent (98%) of the lesser of (A)
the Mortgage Note Amount or (B) the product of the
weekly Weighted Average Purchase Commitment Price
at the time of the Advance multiplied by the
Mortgage Note Amount.
8. Section 2.1(c) of the Agreement shall be further amended by adding
the following Section 2.1(c)(5) at the end thereof:
(5) For an RFC Mortgage Loan pledged hereunder, one
hundred percent (100%) of the lesser of (i) the Mortgage
Note Amount or (ii) the Committed Purchase Price.
9. Sections 2.2(d) and 2.2(e) of the Agreement shall be deleted in
their entirety and the following shall be substituted in lieu thereof:
2.2(d) The Company shall hold in trust for the Lender, and the
Company shall deliver to the Lender promptly upon request, or within
one hundred twenty (120) days from the date an Advance was made
against such Pledged Mortgage and the Pledged Mortgage is not being
held by an Investor for purchase or has not been redeemed from pledge,
the following: (1) the originals of the Collateral Documents for which
copies are required to be delivered to the Lender pursuant to Exhibit
D-SF, Exhibit D-SF/CONSTRUCTION or Exhibit D-UNI, (2) the original
lender's ALTA Policy of Title Insurance or an equivalent thereto, and
(3) any other documents relating to a Pledged Mortgage which the
Lender may request, including, without limitation, documentation
evidencing the FHA Commitment to Insure or the FmHA Guaranty or VA
Guaranty of any Pledged Mortgage which is either FHA insured, FmHA
guaranteed or VA guaranteed, the appraisal, Private Mortgage Insurance
Certificate, if applicable, the Regulation Z Statement, certificates
of casualty or hazard insurance, credit information on the maker of
each such Mortgage Note, a copy of a HUD-1 or corresponding purchase
advice and other documents of all kinds which are customarily desired
for inspection or transfer incidental to the purchase of any Mortgage
Note by an Investor and any additional documents which are customarily
executed by the seller of a Mortgage Note to an Investor.
2.2(e) To make an Advance, the Lender shall cause the Funding
Bank to credit an account of the Company with the Funding Bank, which
account shall be under the exclusive control of the Lender, upon
compliance by the Company with the terms of this Agreement. The Lender
shall determine in its sole discretion the method by which an Advance
is made.
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10. Section 2.3 of the Agreement shall be deleted in its entirety and
the following shall be substituted in lieu thereof:
2.3 Notes. The Company's Obligations in respect of Ordinary
Warehousing Advances and Nonconforming Advances shall be evidenced by
a Warehousing Promissory Note of the Company substantially in the form
of Exhibit A-1 attached hereto, and the Company's Obligations in
respect of Construction Advances, Unimproved Advances and Advances
made against FmHA Mortgage Loans shall be evidenced by a Sublimit
Promissory Note of the Company substantially in the form of Exhibit
A-2 attached hereto, each note dated as of the date hereof
(Warehousing Promissory Note and Sublimit Promissory Note are
collectively referred to as the "Notes"). The terms "Warehousing
Promissory Note", "Sublimit Promissory Note," "Note" or "Notes" shall
include all extensions, renewals and modifications of the Notes and
all substitutions therefor. All terms and provisions of the Notes are
hereby incorporated herein.
11. Section 2.4 of the Agreement shall be deleted in its entirety and
the following shall be substituted in lieu thereof:
2.4 Interest.
2.4(a) Except as otherwise provided in Section 2.4(g) hereof, the
unpaid amount of each Ordinary Warehousing Advance and each Advance
against an FmHA Mortgage Loan (net of applicable Buydown) shall bear
interest, from the date of such Ordinary Warehousing Advance, until
paid in full, at the Ordinary Warehousing Rate.
2.4(b) Except as otherwise provided in Section 2.4(g) hereof, the
unpaid amount of each Nonconforming Advance (net of applicable
Buydown) shall bear interest, from the date of such Nonconforming
Advance, until paid in full, at the Nonconforming Rate.
2.4(c) Prior to the occurrence of an Event of Default, the unpaid
amount of (i) each Construction Advance (net of applicable Buydown)
shall bear interest, from the date of such Construction Advance until
paid in full, at the Construction Rate, and (ii) each Unimproved
Advance (net of applicable Buydown) shall bear interest, from the date
of such Unimproved Advance until paid in full, at the Unimproved Rate.
2.4(d) The Company is entitled to receive a benefit in the form
of an "Earnings Credit" on the portion of the Eligible Balances
maintained in time deposit accounts with a Designated Bank, and the
Company is entitled to receive a benefit in the form of an "Earnings
Allowance" on the portion of the Eligible Balances maintained in
demand deposit accounts with a Designated Bank. Any Earnings Allowance
shall be used first and any Earnings Credit shall be used second as a
credit against accrued Miscellaneous Charges and fees, including, but
not limited to Commitment Fees, Usage Fees and Warehousing Fees, and
may be used, at the Lender's option, to reduce accrued interest. Any
Earnings Allowance not used during the month in which the benefit was
received shall be accumulated for use and must be used during the
calendar year in which the benefit was received. Any Earnings Credit
42
not used during the month in which the benefit was received shall be
used to provide a cash benefit to the Company. The Lender's
determination of the Earnings Credit and the Earnings Allowance for
any month shall be determined by the Lender in its sole discretion and
shall be conclusive and binding absent manifest error. In no event
shall the benefit received by the Company exceed the Depository
Benefit.
Either party hereto may terminate the benefits provided for in
this Section effective immediately upon Notice to the other party, if
the terminating party shall have determined (which determination shall
be conclusive and binding absent manifest error) at any time that any
applicable law, rule, regulation, order or decree or any
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or
compliance by such party with any request or directive (whether or not
having the force of law) of any such authority, shall make it unlawful
or impossible for such party to continue to offer or receive the
benefits provided for in this Section.
2.4(e) Interest shall be computed on the basis of a 360-day year
and applied to the actual number of days elapsed in each interest
calculation period and shall be payable monthly in arrears, on the
first day of each month, commencing with the first month following the
Closing Date and on the Maturity Date.
2.4(f) If, for any reason, no interest is due on an Advance, the
Company agrees to pay to the Lender an administrative fee equal to one
day of interest on such Advance at the rate applicable to such
Advances under the applicable section hereof, as in effect on the date
of such Advance. Administrative and other fees shall be due and
payable in the same manner as interest is due and payable hereunder.
2.4(g) Upon demand of the Lender and upon Notice to the Company,
after the occurrence and during the continuation of an Event of
Default the unpaid amount of each Advance shall bear interest until
paid in full at a per annum rate of interest (the "Default Rate")
equal to four percent (4%) in excess of the rate of interest otherwise
applicable to such Advance pursuant to any other subsection of this
Section 2.4 or, if no rate is applicable, the highest rate then
applicable to any outstanding Advance.
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12. Section 2.5(d)(6) of the Agreement shall be deleted in its
entirety and the following shall be substituted in lieu thereof:
(6) On the date on which a Pledged Mortgage is determined to
have been originated based on untrue, incomplete or inaccurate
information, whether or not the Company had knowledge of such
misrepresentation or incorrect information, or the Pledged
Mortgage is (i) in the case of an Unimproved Mortgage Loan,
delinquent (without giving effect to any grace period) and
remains delinquent for a period of thirty (30) days or more, and
(ii) in all other cases, defaulted and remains in default for a
period of sixty (60) days or more.
13. Section 2.8(a) of the Agreement shall be deleted in its entirety
and the following shall be substituted in lieu thereof:
2.8(a) The Company agrees to pay to the Lender a Commitment Fee
in the amount of one-tenth of one percent (1/10%) per annum of the
lesser of Fifteen Million Dollars ($15,000,000) or the Commitment
Amount, which Commitment Fee may be paid quarterly in advance and
shall be computed on the basis of a 365-day year and applied to the
actual number of days elapsed in such calendar quarter. The Company
shall make quarterly payments of the Commitment Fee on the first (1st)
day of each calendar quarter. If the Maturity Date is other than the
last day of a calendar quarter, the Company shall pay the prorated
portion of the quarterly Commitment Fee due from the beginning of the
then current calendar quarter to and including the Maturity Date. For
the purposes hereof, calendar quarters shall be defined as the three
(3) month periods beginning on each April 1, July 1, October 1 and
January 1. The Company shall not be entitled to a reduction in the
amount of the Commitment Fee, in the event the Commitment Amount is
reduced or in the event that the Commitment is terminated at the
request of the Company or as a result of an Event of Default. If the
Commitment terminates at the request of the Company or as a result of
an Event of Default, the unpaid balance of the Commitment Fee shall be
due and payable in full on the date of such termination.
14. Section 2.10 of the Agreement shall be deleted in its entirety and
the following shall be substituted in lieu thereof:
2.10 Miscellaneous Charges. The Company agrees to reimburse the
Lender for miscellaneous charges and expenses (collectively,
"Miscellaneous Charges") incurred by or on behalf of the Lender in
connection with the handling and administration of Advances, and to
reimburse the Lender for Miscellaneous Charges incurred by or on
behalf of the Lender in connection with the handling and
administration of the Collateral. For the purposes hereof,
Miscellaneous Charges shall include, but not be limited to, charges
for wire transfers, check processing charges, charges for security
delivery fees, charges for overnight delivery of Collateral to
Investors, Funding Bank's service charges and Designated Bank's
service charges. Miscellaneous Charges are due when incurred, but
shall not be delinquent if paid within fifteen (15) days after receipt
of an invoice or an account analysis statement from the Lender.
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15. Section 3.1(c) of the Agreement shall be deleted in its entirety
and the following shall be substituted in lieu thereof:
3.1(c) All private mortgage insurance and all commitments issued
by the FHA, FmHA or VA to insure or guarantee any Mortgage Loans
included in the Pledged Mortgages; all Purchase Commitments held by
the Company covering the Pledged Mortgages or the Pledged Securities
and all proceeds resulting from the sale thereof to Investors pursuant
thereto; and all personal property, contract rights, servicing and
servicing fees and income or other proceeds, amounts and payments
payable to the Company as compensation or reimbursement, accounts and
general intangibles of whatsoever kind relating to the Pledged
Mortgages, the Pledged Securities, said FHA commitments, FmHA
commitments or VA commitments and the Purchase Commitments, and all
other documents or instruments relating to the Pledged Mortgages and
the Pledged Securities, including, without limitation, any interest of
the Company in any fire, casualty or hazard insurance policies and any
awards made by any public body or decreed by any court of competent
jurisdiction for a taking or for degradation of value in any eminent
domain proceeding as the same relate to the Pledged Mortgages.
16. Section 5.13 of the Agreement shall be amended to add the following
Section 5.13(f) at the end thereof:
5.13(f) Lender in good standing under the FmHA loan guarantee
program eligible to originate, purchase, hold, sell and service
FmHA-guaranteed Mortgage Loans.
17. Section 5.15(e) of the Agreement shall be deleted in its entirety
and the following shall be substituted in lieu thereof:
5.15(e) The Company has complied and will continue to comply with
all laws, rules and regulations in respect of the FHA insurance, FmHA
guaranty or VA guaranty of each Mortgage Loan included in the Pledged
Mortgages designated by the Company as an FHA insured, FmHA guaranteed
Mortgage Loan or VA guaranteed Mortgage Loan, and such insurance or
guarantee is and will continue to be in full force and effect. All
such FHA insured, FmHA guaranteed Mortgage Loans and VA guaranteed
Mortgage Loans comply and will continue to comply in all respects with
all applicable requirements for purchase under the FNMA standard form
of selling contract for FHA insured, FmHA guaranteed loans and VA
guaranteed loans and any supplement thereto then in effect.
18. Section 6.13(b) of the Agreement shall be deleted in its entirety
and the following shall be substituted in lieu thereof:
6.13(b) Service or cause to be serviced all Mortgage Loans in
accordance with the standard requirements of the issuers of Purchase
Commitments covering the same and all applicable FHA, FmHA and VA
requirements, including without limitation taking all actions
necessary to enforce the obligations of the obligors under such
Mortgage Loans. The Company shall service or cause to be serviced all
Mortgage Loans backing Pledged Securities in accordance with
applicable governmental requirements and requirements of issuers of
Purchase Commitments covering the same. The Company shall hold all
escrow funds collected in respect of Pledged Mortgages and Mortgage
Loans backing Pledged Securities in trust, without commingling the
same with non-custodial funds, and apply the same for the purposes for
which such funds were collected.
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19. Upon execution of this Amendment, the Company agrees to pay to the
Lender the pro rata Commitment Fee on the Commitment Amount for the month
of September 1996.
20. The Sublimit Promissory Note is amended and restated in its
entirety as set forth in the First Amended and Restated Sublimit Promissory
Note, in the form of Exhibit A-2 attached to this Amendment. All references
in this Amendment and in the Agreement to the Sublimit Promissory Note
shall be deemed to refer to the First Amended and Restated Sublimit
Promissory Note delivered in connection with this Amendment.
21. Exhibits C-SF and D-SF to the Agreement are hereby deleted in
their entirety and replaced with the new Exhibits C-SF and D-SF attached to
this Amendment. All references in the Agreement to Exhibits C-SF and D-SF
shall be deemed to refer to the new Exhibits C-SF and D-SF.
22. Exhibit I-SF to the Agreement is deleted in its entirety and
replaced with the new Exhibit I-SF attached to this Amendment. All
references in this Amendment and the Agreement to Exhibit I-SF shall be
deemed to refer to the new Exhibit I-SF.
23. The Company shall deliver to the Lender (a) an executed original
of this Amendment; (b) an executed First Amended and Restated Sublimit
Promissory Note; (c) an executed Certificate of Secretary with corporate
resolutions; (d) executed UCC-3 financing statements; (e) a current
certified tax, lien and judgment search of the appropriate public records
for the Company, including a search of Uniform Commercial Code financing
statements, which search shall not have disclosed the existence of any
prior Lien on the Collateral other than in favor of the Lender or as
permitted hereunder; (f) current Certificates of Good Standing of the
Company; (g) current insurance information; and (h) a Two Hundred Fifty
Dollar ($250) document production fee.
24. The Company represents, warrants and agrees that (a) there exists
no Default or Event of Default under the Loan Documents, except for
Defaults with respect to the JRH ▇▇▇▇▇▇▇▇▇ Partners Mortgage Loan and the
Paradise Valley Partners, LLC Mortgage Loan which have been disclosed to
the Lender, (b) the Loan Documents continue to be the legal, valid and
binding agreements and obligations of the Company enforceable in accordance
with their terms, as modified herein, (c) the Lender is not in default
under any of the Loan Documents and the Company has no offset or defense to
its performance or obligations under any of the Loan Documents, (d) the
representations contained in the Loan Documents remain true and accurate in
all respects, and (e) there has been no material adverse change in the
financial condition of the Company from the date of the Agreement to the
date of this Amendment.
25. Except as hereby expressly modified, the Agreement shall otherwise
be unchanged and shall remain in full force and effect, and the Company
ratifies and reaffirms all of its obligations thereunder.
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26. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Lender have caused this
Amendment to be duly executed on their behalf by their duly authorized
officers as of the day and year above written.
U.S. HOME MORTGAGE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Its: Director
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ )
) ss
COUNTY OF ▇▇▇▇▇▇)
On August 30, 1996, before me, a Notary Public, personally appeared
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the Vice President of U.S. HOME MORTGAGE CORPORATION,
a Florida corporation, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public
(SEAL) My Commission Expires: ▇-▇-▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ )
) ss
COUNTY OF Breward )
On, September 4, 1996, before me, a Notary Public, personally
appeared ▇▇▇▇▇ ▇. ▇▇▇▇, the Director of RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(SEAL) Notary Public
My Commission Expires: 9-15-98
48
EXHIBIT A-2
FIRST AMENDED AND RESTATED SUBLIMIT PROMISSORY NOTE
$45,000,000 Date: August 29, 1996
FOR VALUE RECEIVED, the undersigned, U.S. HOME MORTGAGE CORPORATION, a
Florida corporation (herein called the "Company"), hereby promises to pay
to the order of RESIDENTIAL FUNDING CORPORATION, a Delaware corporation
(the "Lender" or, together with its successors and assigns, the "Holder")
whose principal place of business is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the Holder may
designate from time to time, the principal sum of Forty-Five Million
Dollars ($45,000,000) or so much thereof as may be outstanding from time to
time pursuant to the Agreement described below, and to pay interest on said
principal sum or such part thereof as shall remain unpaid from time to
time, from the date of each Advance until repaid in full, and all other
fees and charges due under the Agreement, at the rate and at the times set
forth in the Agreement. All payments hereunder shall be made in lawful
money of the United States and in immediately available funds.
This Note is given to evidence an actual warehouse facility in the
above amount and is the Sublimit Promissory Note referred to in that
certain First Amended and Restated Warehousing Credit and Security
Agreement (the "Agreement") dated August 31, 1995, between the Company and
the Lender, as the same may be amended or supplemented from time to time,
and is entitled to the benefits thereof. Reference is hereby made to the
Agreement (which is incorporated herein by reference as fully and with the
same effect as if set forth herein at length) for a description of the
Collateral, a statement of the covenants and agreements, a statement of the
rights and remedies and securities afforded thereby and other matters
contained therein. Capitalized terms used herein, unless otherwise defined
herein, shall have the meanings given them in the Agreement. Without
limiting the generality of the foregoing, this Note, together with the
Sublimit Promissory Note, evidences a single line of credit, and the Lender
has not committed to make Advances with an aggregate principal amount
exceeding the Commitment Amount, notwithstanding the fact that the sum of
the principal amount of the Notes may exceed the Commitment Amount.
This Note is given in replacement for, and not in satisfaction of,
that certain Sublimit Promissory Note dated December 27, 1995, and issued
by the Company to evidence its Obligations under the Agreement (the
"Existing Note"). All amounts owed by the Company under the Existing Note
(including, without limitation, the unpaid principal thereunder, interest
accrued thereon and fees accrued under the Agreement, whether or not yet
due and owing) as of the date hereof, shall be owed hereunder.
49
This Note may be prepaid in whole or in part at any time without
premium or penalty.
Should this Note be placed in the hands of attorneys for collection,
the Company agrees to pay, in addition to principal and interest, fees and
charges due under the Agreement, any and all costs of collecting this Note,
including reasonable attorneys' fees and expenses.
The Company hereby waives demand, notice, protest and presentment.
This Note shall be construed and enforced in accordance with the laws
of the State of Minnesota, without reference to its principles of conflicts
of law.
IN WITNESS WHEREOF, the Company has executed this Note as of the day
and year first above written.
U.S. HOME MORTGAGE CORPORATION,
a Florida corporation
By:
Its:
STATE OF _______________ )
) ss
COUNTY OF ______________ )
On , 1996, before me, a Notary Public,
personally appeared , the
of U.S. HOME MORTGAGE CORPORATION, a Florida corporation,
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public
(SEAL) My Commission Expires:
50
EXHIBIT I-SF
OFFICER'S CERTIFICATE
Reference is made to that certain First Amended and Restated
Warehousing Credit and Security Agreement (Single Family Mortgage Loans)
between U.S. HOME MORTGAGE CORPORATION, a Florida corporation (the
"Company"), and RESIDENTIAL FUNDING CORPORATION, a Delaware corporation
(the "Lender"), dated as of August 31, 1995 (as the same may be amended,
modified, supplemented, renewed or restated from time to time, the
"Agreement"). All capitalized terms used herein and all Section numbers
given herein refer to those terms and Sections set forth in the Agreement.
This Officer's Certificate is submitted to the Lender pursuant to Section
6.2(c) of the Agreement.
The undersigned hereby certifies to the Lender that as of the close of
business on , 19 ("Statement Date",) and with respect to the Company and
its Subsidiaries on a consolidated basis:
1. As illustrated in the attached calculations supporting this Officer's
Certificate, the Company met the covenants set forth in Sections 7.6
and 7.7, or if the Company did not meet any of such covenants, a
detailed explanation is attached setting forth the nature and period
of the existence of the Default and the action the Company has taken,
is taking, and proposes to take with respect thereto.
2. No Servicing Contracts have been sold or pledged by the Company except
as permitted under the terms of the Agreement.
3. No recourse Servicing Contracts have been acquired by the Company.
4. No payments in advance of the scheduled maturity date have been made
with respect to any Subordinated Debt. The Company has incurred no
Debt required to be subordinated pursuant to Section 6.10.
5. The Company was in compliance with the applicable HUD, GNMA or
Investor net worth requirements, and in good standing with FmHA, VA,
HUD, GNMA and each Investor.
6. I have reviewed the terms of the Agreement and have made, or caused to
be made under my supervision, a review in reasonable detail of the
transactions and conditions of the Company (and, if applicable, its
Subsidiaries) and such review has not disclosed the existence, and I
have no knowledge of the existence, of any Default or Event of Default,
or if any Default or Event of Default existed or exists, a detailed
explanation is attached specifying the nature and period of the
existence of the Default and the action the Company has taken, is
taking and proposes to take with respect thereto.
51
7. Pursuant to Section 6.2 of the Agreement, enclosed are the financial
statements of the Company as of the Statement Date. The financial
statements for the period ending on the Statement Date fairly present
the financial condition and results of operations of the Company (and,
if applicable, its Subsidiaries) as at the Statement Date.
Dated:
U.S. HOME MORTGAGE CORPORATION
By:
Its:
52
CALCULATIONS SUPPORTING OFFICER'S CERTIFICATE
Company Name: U.S. HOME MORTGAGE CORPORATION and its Subsidiaries
Statement Date:
All financial calculations set forth herein are as of the Statement Date.
I. TANGIBLE NET WORTH
A. Tangible Net Worth of the Company is:
Excess of total assets over total liabilities:$ ________________
Plus: Loan loss reserves: $ ________________
Plus: Subordinated Debt not due within
one year of the Statement Date
(or any portion thereof): $ ________________
Minus: Advances to owners, officers or
Affiliates: $ ________________
Minus: Investments in Affiliates: $ ________________
Minus: Assets pledged to secure liabilities
not included in Debt: $ ________________
Minus: Intangible assets: $ ________________
Minus: Any other HUD nonacceptable assets: $ ________________
Minus: Other assets unacceptable to the
Lender: $ ________________
TANGIBLE NET WORTH $ ______________
B. Requirements of Section 7.7 of the Agreement:
MINIMUM TANGIBLE NET WORTH OF $6,000,000.
C. Covenant Satisfied:____ Covenant Not Satisfied:____
II. DEBT OF THE COMPANY
Total liabilities $ ________________
Minus: Loan loss reserves: $ ________________
Minus: Subordinated Debt not due within one year
of the Statement Date (or any portion
thereof): $ ________________
Minus: Deferred taxes arising from
capitalized excess servicing fees
and capitalized servicing rights: $ ________________
DEBT $ _________________
53
III. RATIO OF DEBT TO TANGIBLE NET WORTH
A. The ratio of Debt to Tangible Net Worth (IV to I.A) is:
____________ to 1
B. Requirements of Section 7.6 of the Agreement:
The ratio of Debt to Tangible Net Worth shall not exceed 10 to 1.
C. Covenant Satisfied:____ Covenant Not Satisfied:____
54
EXHIBIT D-SF
PROCEDURES AND DOCUMENTATION FOR WAREHOUSING
SINGLE FAMILY MORTGAGE LOANS
The following procedures and documentation requirements must be
observed in all respects by the Company. All documents must be satisfactory
to the Lender in its sole discretion. Terms used below, which are not
otherwise defined, shall have the meanings given them in the Agreement. The
HUD, FNMA and FHLMC form numbers referred to herein are for convenience
only and the Company shall use the equivalent forms required at the time of
delivery of the Mortgage Loans or Mortgage-backed Securities. All Requests
for Advance and Collateral Documents, should be submitted to the Lender in
a top tabbed, legal size manila file folder, hole-punched and acco-fastened
in the order specified in the Request for Advance. Each folder should be
labelled with the mortgagor name(s), Company loan number and Company name.
If a Wet Settlement Advance is being requested, the Request for Advance and
required Collateral Documents should be submitted in accordance with the
above instructions. The remaining Collateral Documents should be submitted
with a cover letter identifying the mortgagor name(s) and Company loan
number.
I. Prior to making a Wet Settlement Advance, the Lender must
receive the following:
(1) Estimate of the amount of the requested Advance one (1) Business
Day prior to such Advance.
(2) Copy of settlement or funding check issued to the escrow/title
company, if applicable.
(3) Original Request for Advance against Single Family Mortgage Loans
(Exhibit C-SF) and one (1) copy of same.
(4) Copy of the Purchase Commitment or satisfactory evidence thereof.
(5) Bailee Pledge Agreement (only required for Wet Settlement Advance)
(Exhibit M).
(6) A copy of the HUD-1 Settlement Statement or equivalent (Home
Equity Loans and Title I Mortgage Loans only).
(7) A copy of HUD 203(K) Maximum Mortgage Worksheet (HUD 203(K)
Mortgage Loans only).
The following must be received by the Lender within five (5) Business
Days of the date of the Wet Settlement Advance:
(8) Original signed Mortgage Note, endorsed by the Company in blank
with corresponding interim endorsements, if applicable, and one
copy of same.
55
(9) Copy of the Mortgage certified true by the escrow/title company.
(10) Copies of all interim assignments of the Mortgage certified true
by the escrow/title company (recorded or sent for recordation).
Mortgage Note must bear corresponding endorsements.
(11) An assignment of the Mortgage to the Lender in recordable form
but unrecorded.
(12) Completed Company Worksheet Concerning Applicability of Section
32 of Regulation Z (12 CFR Section 226.32) and, if Section 32
applies, copies of the disclosure and other related documentation
delivered to the mortgagor, or executed by the mortgagor,
evidencing compliance with Section 32 (if applicable).
II. Prior to the making of an Advance (other than a Wet Settlement Advance),
the Lender must receive all of the Collateral Documents listed in
Section I above.
III. The Lender exclusively shall deliver the Mortgage Notes and other
original Collateral Documents evidencing Pledged Mortgages or Pledged
Securities and related pool documents to the Investor or pool
custodian, unless otherwise agreed in
writing.
A. The following procedures are to be followed for deliveries of Pledged
Mortgages:
No later than one (1) Business Day prior to the requested shipment
date and no later than one (1) Business Day prior to the expiration
date of the Purchase Commitment, the Lender must receive the
following:
(1) Signed shipping instructions for the delivery of the Pledged
Mortgages including the following:
(a) Name and address of the office of the Investor to which the
loan documents are to be shipped, the desired shipping date
and the preferred method of delivery;
(b) Instructions for endorsement of the Mortgage Note;
(c) Names of mortgagor(s), Mortgage Note Amounts of Pledged
Mortgages to be shipped and the Company's loan number; and
(d) Commitment number and expiration date of the Purchase
Commitment.
(2) For deliveries of Pledged Mortgages to FNMA for cash purchase,
the following additional documents are required:
(a) Copy of Loan Schedule (FNMA Form 1068 or 1069) showing the
Lender's designated FNMA payee code as recipient of the loan
purchase proceeds.
56
(3) For deliveries of Pledged Mortgages to FHLMC for cash purchase,
the following additional documents are required:
(a) Original completed Warehouse Lender Release of Security
Interest (FHLMC Form 996) to be executed by the Lender,
designating the Lender as the Warehouse Lender and showing
the Cash Collateral Account designated by the Lender as the
receiving account for loan purchase proceeds.
(b) Copy of Wire Transfer Authorization for a Cash Warehouse
Delivery (FHLMC Form 987), designating the Lender as the
Warehouse Lender and showing the Cash Collateral Account
designated by the Lender as the receiving account for loan
purchase proceeds.
B. In the event Pledged Mortgages are delivered to a pool custodian,
other than an Approved Custodian, payment of the related Advance is
required within two (2) Business Days of shipment.
The following procedures are to be followed for deliveries of Pledged
Mortgages to Approved Custodians:
No later than one (1) Business Day prior to the requested shipment
date and no later than one (1) Business Day prior to required delivery
date to the Approved Custodian, the Lender must receive the following:
(1) Signed shipping instructions for the delivery of the Pledged
Mortgages to the Approved Custodian including the following:
(a) Name and address of the office of the Approved Custodian to
which the loan documents are to be shipped, the desired
shipping date and the preferred method of delivery;
(b) Instructions for endorsement of the Mortgage Note;
(c) Names of mortgagor(s) and Mortgage Note Amounts of Pledged
Mortgages to be shipped and the Company's loan number; and
(d) Commitment number and expiration date of the Purchase
Commitment for the Pledged Securities.
(2) For FNMA Mortgage-backed Securities issuance, the following
additional documents are required:
(a) Copy of Schedule of Mortgages (FNMA Form 2005 or 2025).
(b) Copy of Delivery Schedule (FNMA Form 2014), instructing FNMA
to issue the Mortgage-backed Securities in the name of the
Company with the Lender as pledgee and to deliver the
Mortgage-backed Securities to the Lender's custody account
at The Chase Manhattan Bank (CHASE NYC/GEOCUST/▇▇▇▇▇▇▇▇▇)
and bearing the following instructions: "These instructions
may not be changed without the prior written consent of
Residential Funding Corporation, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Director or ▇▇▇▇▇ ▇▇▇▇▇, Director."
57
(3) For FHLMC Mortgage-backed Securities issuance, the following
additional documents are required:
(a) Copy of Settlement Information and Delivery Authorization
(FHLMC Form 939), designating the Lender as the Warehouse
Lender and instructing FHLMC to deliver the Mortgage-backed
Securities to the Lender's custody account at The Chase
Manhattan Bank (CHASE NYC/GEOCUST/▇▇▇▇▇▇▇▇▇).
(b) Original Warehouse Lender Release of Security Interest
(FHLMC Form 996) to be executed by the Lender, designating
the Lender as the Warehouse Lender and instructing FHLMC to
deliver the Mortgage-backed Securities to the Lender's
custody account at The Chase Manhattan Bank (CHASE
NYC/GEOCUST/▇▇▇▇▇▇▇▇▇).
(4) For GNMA Mortgage-backed Securities issuance, the following
additional documents are required:
(a) Signed original Schedule of Mortgages (HUD Form 11706).
(b) Signed original Schedule of Subscribers (HUD Form 11705)
instructing GNMA to issue the Mortgage-backed Securities in
the name of the Company and designating The Chase Manhattan
Bank as Agent for the Lender as the subscriber, using the
following language: THE CHASE MANHATTAN BANK AS AGENT FOR
RESIDENTIAL FUNDING CORPORATION SEG ACCT MANUF/CUST/▇▇▇▇▇▇▇▇▇).
The following instructions must also be included on the form:
"These instructions may not be changed without the prior
written consent of Residential Funding Corporation, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Director or ▇▇▇▇▇ ▇▇▇▇▇, Director."
(c) Completed original Release of Security Interest (HUD Form
11711A) to be executed by the Lender.
(5) No later than two (2) Business Days prior to the Settlement Date
for the Mortgage-backed Securities, the Lender must receive
signed Securities Delivery Instructions form attached hereto as
Schedule I.
Upon instruction by the Company, the Lender will complete the endorsement
of the Mortgage Note and make arrangements for the delivery of the original
Collateral Documents evidencing Pledged Mortgages or Pledged Securities and
related original pool documents with the appropriate bailee letter to the
Investor, Approved
Custodian, or other pool custodian. Upon receipt of Mortgage-backed
Securities, the Lender will cause such Mortgage-backed Securities to be
delivered to the Investor which issued the Purchase Commitment.
Mortgage-backed Securities will be released to the Investor only upon
payment of the purchase proceeds to the Lender. Cash proceeds of sales of
Pledged Mortgages and Pledged Securities shall be applied to related
Advances outstanding under the Commitment. Provided no Default exists, the
Lender shall return any excess proceeds of the sale of Mortgage Loans or
Mortgage-backed Securities to the Company, unless otherwise instructed in
writing.
58
SCHEDULE I
RESIDENTIAL FUNDING CORPORATION
WAREHOUSING LENDING DIVISION
Security Delivery Instructions
INSTRUCTIONS MUST BE RECEIVED TWO (2) BUSINESS DAYS IN ADVANCE OF
PICK-UP/DELIVERY
BOOK-ENTRY DATE: ______________________ SETTLEMENT DATE:
ISSUER:________________________________ SECURITY: $
NO. OF CERTIFICATES: __________________ 1)
2)
3)
CUSIP #______________
Pool #_______________ MI#______________ Coupon Rate:
Issue Date:(M/D/Y) _________________________ Maturity Date:(M/D/Y)
POOL TYPE (circle one):
GNMA: GNMA I GNMA II
FHLMC: FIXED ARM DISCOUNT NOTE
FNMA: FIXED ARM DISCOUNT NOTE DEBENTURES REMIC
----------------------------------------------------------------------------
DELIVER TO:_______________________________ ( ) Versus Payment
_______________________________ DVP AMT. $
_______________________________ ( ) Free Delivery
DELIVER TO:_______________________________ ( ) Versus Payment
_______________________________ DVP AMT. $
_______________________________ ( ) Free Delivery
DELIVER TO:_______________________________ ( ) Versus Payment
_______________________________ DVP AMT. $
_______________________________ ( ) Free Delivery
----------------------------------------------------------------------------
AUTHORIZED SIGNATURE:
TITLE:
