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THIRD AMENDMENT TO
WAREHOUSING CREDIT AND SECURITY AGREEMENT
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THIRD AMENDMENT TO WAREHOUSING CREDIT AND SECURITY AGREEMENT (this "AMENDMENT")
dated as of September 27, 2004, between MORTGAGEIT, INC., a New York corporation
("BORROWER") and RESIDENTIAL FUNDING CORPORATION, a Delaware corporation
("LENDER").
A. Borrower and Lender have entered into a revolving mortgage warehousing
facility with a present Warehousing Commitment Amount of $100,000,000 which
is evidenced by a Promissory Note dated August 1, 2003 (the "NOTE"), and by
a Warehousing Credit and Security Agreement dated as of August 1, 2003 (as
the same may have been and may be amended or supplemented, the
"AGREEMENT").
B. Borrower has requested that Lender amend certain terms of the Agreement,
and Lender has agreed to such amendments, subject to the terms and
conditions of this Amendment.
NOW, THEREFORE, the parties to this Amendment agree as follows:
1. Subject to Borrower's satisfaction of the conditions set forth in Section
7), the effective date of this Amendment is September 30, 2004 ("EFFECTIVE
DATE").
2. Unless otherwise defined in this Amendment, all capitalized terms have the
meanings given to those terms in the Agreement. Defined terms may be used
in the singular or the plural, as the context requires. The words
"include," "includes" and "including" are deemed to be followed by the
phrase "without limitation." Unless the context in which it is used
otherwise clearly requires, the word "or" has the inclusive meaning
represented by the phrase "and/or." References to Sections and Exhibits are
to Sections and Exhibits of this Amendment unless otherwise expressly
provided.
3. ARTICLE 8 of the Agreement is amended and restated in its entirety as set
forth in ARTICLE 8 attached to this Amendment. All references in the
Agreement and other Loan Documents to ARTICLE 8 (including each and every
Section in ARTICLE 8) are deemed to refer to the new ARTICLE 8.
4. EXHIBIT E to the Agreement is amended and restated in its entirety as set
forth in EXHIBIT E to this Amendment. All references in the Agreement and
the other Loan Documents to EXHIBIT E are deemed to refer to the new
EXHIBIT E.
5. EXHIBIT H to the Agreement is amended and restated in its entirety as set
forth in EXHIBIT H to this Amendment. All references in the Agreement and
the other Loan Documents to EXHIBIT H are deemed to refer to the new
EXHIBIT H.
6. Borrower has failed to comply with Section 8.8 of the Agreement for failing
to comply with the Leverage Ratio covenant for the fiscal month ended July
31, 2004. Failure to comply with this covenant constitutes an Event of
Default pursuant to Section 10.1(c) of the Agreement.
Borrower has requested that Lender waive its rights and remedies with
respect to the above-described Event of Default. Lender agrees to waive its
rights and remedies with respect to the above-described Event of Default;
PROVIDED, HOWEVER, that this waiver is limited to the specific Event of
Default described above and is not intended and will not be construed to be
a waiver of any future Default or Event of Default of Section 8.8 of the
Agreement or any existing or future Default or Event of Default under any
other provision of the Agreement.
Borrower represents, warrants and agrees that (a) there exists no other
Event of Default under the Loan Documents, (b) the Loan Documents continue
to be the legal, valid and binding agreements and obligations of Borrower
enforceable in accordance with their terms, as modified herein, (c) Lender
is not in default under the Agreement or any of the Loan Documents and
Borrower has no offset or defense to its performance or obligations under
the Agreement or any of the Loan Documents, (d) the representations
contained in the Agreement and Loan Documents remain true and accurate in
all respects, (e) the Agreement and Loan Documents are unchanged and remain
in full force and effect and (f) there has been no material adverse change
in Borrower's financial condition from the date of the Agreement to the
Effective Date.
BORROWER IS NOTIFIED THROUGH THIS AMENDMENT THAT LENDER REQUIRES STRICT
COMPLIANCE BY BORROWER OF ALL TERMS, CONDITIONS AND PROVISIONS OF THE
AGREEMENT AND LOAN DOCUMENTS.
The waiver of Lender under this Amendment may not be construed as
establishing a course of conduct on the part of Lender upon which Borrower
may rely at any time in the future, and Borrower expressly waives any right
to assert any claim to such effect at any time.
7. Borrower must deliver to Lender (a) two executed copies of this Amendment,
and (b) a $350 document production fee.
8. Except as expressly modified, the Agreement is unchanged and remains in
full force and effect, and Borrower ratifies and reaffirms all of its
obligations under the Agreement and the other Loan Documents.
9. This Amendment may be executed in any number of counterparts, each of which
will be deemed an original, but all of which shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, Borrower and 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.
MORTGAGEIT, INC.,
a New York corporation
By: /S/ XXXX X. XXXX
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Its: SECRETARY AND GENERAL COUNSEL
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RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By: /S/ XXXXX XXXXXXXX
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Its: DIRECTOR
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[LOGO]
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WAREHOUSING CREDIT AND SECURITY AGREEMENT
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BETWEEN
MORTGAGEIT, INC.,
A NEW YORK CORPORATION
AND
RESIDENTIAL FUNDING CORPORATION,
A DELAWARE CORPORATION
DATED AS OF AUGUST 1, 2003
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TABLE OF CONTENTS
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1. THE CREDIT............................................................................1-1
1.1. The Warehousing Commitment...................................................1-1
1.2. Expiration of Warehousing Commitment.........................................1-1
1.3. Warehousing Note.............................................................1-1
2. PROCEDURES FOR OBTAINING ADVANCES.....................................................2-1
2.1. Warehousing Advances.........................................................2-1
3. INTEREST, PRINCIPAL AND FEES..........................................................3-1
3.1. Interest.....................................................................3-1
3.2. Interest Limitation..........................................................3-2
3.3. Principal Payments...........................................................3-2
3.4. Buydowns.....................................................................3-4
3.5. Warehousing Commitment Fees..................................................3-5
3.6. Loan Package Fees, Wire Fees, Warehousing Fees...............................3-5
3.7. Miscellaneous Fees and Charges...............................................3-5
3.8. Overdraft Advances...........................................................3-5
3.9. Method of Making Payments....................................................3-6
4. COLLATERAL............................................................................4-1
4.1. Grant of Security Interest...................................................4-1
4.2. Maintenance of Collateral Records............................................4-2
4.3. Release of Security Interest in Pledged Loans and Pledged Securities.........4-2
4.4. Collection and Servicing Rights..............................................4-3
4.5. Return of Collateral at End of Warehousing Commitment........................4-4
4.6. Delivery of Collateral Documents.............................................4-4
5. CONDITIONS PRECEDENT..................................................................5-1
5.1. Initial Advance..............................................................5-1
5.2. Each Advance.................................................................5-2
5.3. Force Majeure................................................................5-3
6. GENERAL REPRESENTATIONS AND WARRANTIES................................................6-1
6.1. Place of Business............................................................6-1
6.2. Organization; Good Standing; Subsidiaries....................................6-1
6.3. Authorization and Enforceability.............................................6-1
6.4. Approvals....................................................................6-1
6.5. Financial Condition..........................................................6-2
6.6. Litigation...................................................................6-2
6.7. Compliance with Laws.........................................................6-2
6.8. Regulation U.................................................................6-2
6.9. Investment Company Act.......................................................6-2
6.10. Payment of Taxes.............................................................6-3
6.11. Agreements...................................................................6-3
6.12. Title to Properties..........................................................6-3
6.13. ERISA 6-3
6.14. No Retiree Benefits..........................................................6-4
6.15. Assumed Names................................................................6-4
6.16. Servicing....................................................................6-4
7. AFFIRMATIVE COVENANTS.................................................................7-1
7.1. Payment of Obligations.......................................................7-1
7.2. Financial Statements.........................................................7-1
7.3. Other Borrower Reports.......................................................7-1
7.4. Maintenance of Existence; Conduct of Business................................7-2
7.5. Compliance with Applicable Laws..............................................7-2
7.6. Inspection of Properties and Books; Operational Reviews......................7-3
7.7. Notice 7-3
7.8. Payment of Debt, Taxes and Other Obligations.................................7-3
7.9. Insurance....................................................................7-3
7.10. Closing Instructions.........................................................7-4
7.11. Subordination of Certain Indebtedness........................................7-4
7.12. Other Loan Obligations.......................................................7-4
7.13. ERISA 7-4
7.14. Use of Proceeds of Warehousing Advances......................................7-5
8. NEGATIVE COVENANTS....................................................................8-1
8.1. Contingent Liabilities.......................................................8-1
8.2. Pledge of Servicing Contracts................................................8-1
8.3. Restrictions on Fundamental Changes..........................................8-1
8.4. Subsidiaries.................................................................8-1
8.5. Deferral of Subordinated Debt................................................8-2
8.6. Loss of Eligibility..........................................................8-2
8.7. Accounting Changes...........................................................8-2
8.8. Leverage Ratio...............................................................8-2
8.9. Minimum Tangible Net Worth...................................................8-2
8.10. Minimum Liquid Assets........................................................8-2
8.11. Operating Losses.............................................................8-2
8.12. Distributions to Shareholders................................................8-2
8.13. Transactions with Affiliates.................................................8-2
8.14. Recourse Servicing Contracts.................................................8-3
9. SPECIAL REPRESENTATIONS, WARRANTIES AND COVENANTS CONCERNING COLLATERAL...............9-1
9.1. Special Representations and Warranties Concerning Eligibility as Seller/Ser
Mortgage Loans........................................................9-1
9.2. Special Representations and Warranties Concerning Warehousing Collateral.....9-1
9.3. Special Affirmative Covenants Concerning Warehousing Collateral..............9-3
9.4. Special Negative Covenants Concerning Warehousing Collateral.................9-4
10. DEFAULTS; REMEDIES...................................................................10-1
10.1. Events of Default...........................................................10-1
10.2. Remedies....................................................................10-2
10.3. Application of Proceeds.....................................................10-5
10.4. Lender Appointed Attorney-in-Fact...........................................10-5
10.5. Right of Set-Off............................................................10-5
11. MISCELLANEOUS........................................................................11-1
11.1. Notices.....................................................................11-1
11.2. Reimbursement Of Expenses; Indemnity........................................11-1
11.3. Financial Information.......................................................11-2
11.4. Terms Binding Upon Successors; Survival of Representations..................11-2
11.5. Assignment..................................................................11-2
11.6. Amendments..................................................................11-3
11.7. Governing Law...............................................................11-3
11.8. Participations..............................................................11-3
11.9. Relationship of the Parties.................................................11-3
11.10. Severability................................................................11-3
11.11. Consent to Credit References................................................11-4
11.12. Counterparts................................................................11-4
11.13. Headings/Captions...........................................................11-4
11.14. Entire Agreement............................................................11-4
11.15. Consent to Jurisdiction.....................................................11-4
11.16. Waiver of Jury Trial........................................................11-4
11.17. Waiver of Punitive, Consequential, Special or Indirect Damages..............11-5
12. DEFINITIONS..........................................................................12-1
12.1. Defined Terms...............................................................12-1
12.2. Other Definitional Provisions; Terms of Construction.......................12-11
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EXHIBITS
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EXHIBIT A Request for Advance Against Eligible Loans
EXHIBIT B Procedures and Documentation for Warehousing Mortgage Loans
EXHIBIT C Schedule of Servicing Portfolio
EXHIBIT D Subsidiaries
EXHIBIT E Compliance Certificate
EXHIBIT F Schedule of Lines of Credit
EXHIBIT G Assumed Names
EXHIBIT H Eligible Loans and Other Assets
EXHIBIT I Collateral Operations Fee Schedule
EXHIBIT J Commitment Summary Report
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WAREHOUSING CREDIT AND SECURITY AGREEMENT
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WAREHOUSING CREDIT AND SECURITY AGREEMENT, dated as of August 1, 2003 between
MORTGAGEIT, INC., a New York corporation ("BORROWER"), and RESIDENTIAL FUNDING
CORPORATION, a Delaware corporation ("LENDER").
A. Borrower has requested certain financing from Lender.
B. Lender has agreed to provide that financing to Borrower subject to the
terms and conditions of this Agreement.
C. Subject to Borrower's satisfaction of the conditions set forth in
Article 5, the "CLOSING DATE" for the transactions contemplated by
this Agreement is the date set forth as the Closing Date on the
signature page to this Agreement.
NOW, THEREFORE, the parties to this Agreement agree as follows:
1. THE CREDIT
1.1. THE WAREHOUSING COMMITMENT
On the terms and subject to the conditions and limitations of this Agreement,
including EXHIBIT H, Lender agrees to make Warehousing Advances to Borrower from
the Closing Date to the Business Day immediately preceding the Warehousing
Maturity Date, during which period Borrower may borrow, repay and reborrow in
accordance with the provisions of this Agreement. Lender has no obligation to
make Warehousing Advances in excess of the Warehousing Commitment Amount. While
a Default or Event of Default exists, Lender may refuse to make any additional
Warehousing Advances to Borrower. All Warehousing Advances under this Agreement
constitute a single indebtedness, and all of the Collateral is security for the
Warehousing Note and for the performance of all of the Obligations. If the
initial Warehousing Advance has not been made within 90 days after the Closing
Date, the Warehousing Commitment and Lender's obligation to make Warehousing
Advances to Borrower under this Agreement will automatically terminate, and all
Obligations (including any Obligations arising under Section 11.2) will
automatically become due and payable, without presentment, demand or other
Notice or requirements of any kinds, all of which Borrower expressly waives.
1.2. EXPIRATION OF WAREHOUSING COMMITMENT
The Warehousing Commitment expires on the earlier of ("WAREHOUSING MATURITY
DATE"): (a) January 15, 2005, as such date may be extended in writing by Lender,
in its sole discretion, on which date the Warehousing Commitment will expire of
its own term and the Warehousing Advances will become due and payable without
the necessity of Notice or action by Lender; and (b) the date the Warehousing
Commitment is terminated and the Warehousing Advances become due and payable
under Section 10.2.
1.3. WAREHOUSING NOTE
Warehousing Advances are evidenced by Borrower's promissory note, payable to
Lender on the form prescribed by Lender ("WAREHOUSING NOTE"). The term
"Warehousing Note" as used in this
Page 1-1
Agreement includes all amendments, restatements, renewals or replacements of the
original Warehousing Note and all substitutions for it. All terms and provisions
of the Warehousing Note are incorporated into this Agreement.
END OF ARTICLE 1
Page 1-2
2. PROCEDURES FOR OBTAINING ADVANCES
2.1. WAREHOUSING ADVANCES
To obtain a Warehousing Advance under this Agreement, Borrower must deliver to
Lender either a completed and signed request for a Warehousing Advance on the
then current form approved by Lender, or an Electronic Advance Request, together
with a list of the Mortgage Loans for which the request is being made and a
signed RFConnects Pledge Agreement sent by facsimile ("WAREHOUSING ADVANCE
REQUEST"), not later than (i) in the case of Electronic Advance Requests, 2:30
p.m. on the Business Day, and (ii) in all other cases, 1 Business Day before the
Business Day on which Borrower desires the Warehousing Advance. Subject to the
delivery of a Warehousing Advance Request and the satisfaction of the conditions
set forth in Sections 5.1 and 5.2, Borrower may obtain a Warehousing Advance
under this Agreement upon compliance with the procedures set forth in this
Section and in the applicable EXHIBIT B, including delivery to Lender of all
required Collateral Documents. Lender's current form of Warehousing Advance
Request is set forth in EXHIBIT A. Upon not less than 3 Business Days' prior
Notice to Borrower, Lender may modify its form of Warehousing Advance Request,
RFConnects Pledge Agreement and any other Exhibit or document referred to in
this Section to conform to current legal requirements or Lender practices and,
as so modified, those Exhibits and documents will become part of this Agreement.
END OF ARTICLE 2
Page 2-1
3. INTEREST, PRINCIPAL AND FEES
3.1. INTEREST
3.1 (a) Except as otherwise provided in this Section, Borrower must pay
interest on the unpaid amount of each Warehousing Advance from the
date the Warehousing Advance is made until it is paid in full at the
Interest Rate specified in EXHIBIT H.
3.1 (b) As long as no Default or Event of Default exists, Borrower 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 Borrower 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 will be used first and any Earnings Credit will
be used second as a credit against Miscellaneous Fees and Charges
(including Designated Bank Charges), Warehousing Fees, Wire Fees,
Warehousing Commitment Fees, Loan Package Fees, and any other fees
payable under this Agreement, and may be used, at Lender's option, to
reduce accrued interest. Any Earnings Allowance not used during the
month in which the benefit was received will be accumulated and must
be used within 6 months of the month in which the benefit was
received. As long as no Default or Event of Default exists, any
Earnings Credit not used during the month in which the benefit was
received will be used to provide a cash benefit to Borrower. Any
Earnings Credit retained by Lender as a result of a Default or Event
of Default will be applied to the payment of Borrower's Obligations in
the order Lender determines in its sole discretion. The Earnings
Credit and the Earnings Allowance for any month will be determined by
Lender in its sole discretion and Lender's determination of those
amounts is conclusive and binding absent manifest error. In no event
will the benefit received by Borrower exceed the Depository Benefit.
Either party to this Agreement may terminate the benefits provided for
in this Section effective immediately upon Notice to the other party,
if the terminating party determines (which determination is conclusive
and binding on the other party, absent manifest error) at any time
that any applicable law, rule, regulation, order or decree or any
interpretation or administration of such law, rule, regulation, order
or decree by any governmental authority charged with its
interpretation or administration, or compliance by such party with any
request or directive (whether or not having the force of law) of any
such authority, makes it unlawful or impossible for the party sending
the Notice to continue to offer or receive the benefits provided for
in this Section. No Notice is required for a termination of benefits
as a result of a Default or Event of Default.
3.1 (c) Lender computes interest on the basis of the actual number of days
in each month and a year of 360 days ("ACCRUAL BASIS"). Borrower must
pay interest monthly in arrears, not later than 9 days after the date
of Lender's invoice or, if applicable, 2 days after the date of
Lender's account analysis statement, commencing with the first month
following the Closing Date and on the Warehousing Maturity Date.
3.1 (d) If, for any reason Borrower repays a Warehousing Advance on the
same day that it was made by Lender, Borrower agrees to pay to Lender
an administrative fee equal to 1 day of interest on that Warehousing
Advance at the Interest Rate that would otherwise be applicable under
EXHIBIT H. Borrower must pay all administrative fees within 9 days
after the date of Lender's invoice or, if applicable, within 2 days
after the date of Lender's account analysis statement.
Page 3-1
3.1 (e) After an Event of Default occurs and upon Notice to Borrower by
Lender, the unpaid amount of each Warehousing Advance will bear
interest at the Default Rate until paid in full.
3.1 (f) Lender will adjust the rates of interest provided for in this
Agreement as of the effective date of each change in the applicable
index. Lender's determination of such rates of interest as of any date
of determination are conclusive and binding, absent manifest error.
3.2. INTEREST LIMITATION
Lender does not intend, by reason of this Agreement, the Warehousing Note or any
other Loan Document, to receive interest in excess of the amount permitted by
applicable law. If Lender receives any interest in excess of the amount
permitted by applicable law, whether by reason of acceleration of the maturity
of this Agreement, the Warehousing Note or otherwise, Lender will apply the
excess to the unpaid principal balance of the Warehousing Advances and not to
the payment of interest. If all Warehousing Advances have been paid in full and
the Warehousing Commitment has expired or has been terminated, Lender will remit
any excess to Borrower. This Section controls every other provision of all
agreements between Borrower and Lender and is binding upon and available to any
subsequent holder of the Warehousing Note.
3.3. PRINCIPAL PAYMENTS
3.3 (a) Borrower must pay Lender the outstanding principal amount of all
Warehousing Advances on the Warehousing Maturity Date.
3.3 (b) Except as otherwise provided in Section 3.1, Borrower may prepay
any portion of the Warehousing Advances without premium or penalty at
any time.
3.3 (c) Borrower must pay to Lender, without the necessity of prior demand
or Notice from Lender, and Borrower authorizes Lender to cause the
Funding Bank to charge Borrower's Operating Account for, the amount of
any outstanding Warehousing Advance against a specific Pledged Asset
upon the earliest occurrence of any of the following events:
(1) One (1) Business Day elapses from the date a Warehousing
Advance was made if the Pledged Loan to be funded by that
Warehousing Advance is not closed and funded.
(2) Ten (10) Business Days elapse without the return of a
Collateral Document delivered by Lender to Borrower under a
Trust Receipt for correction or completion.
(3) On the date on which a Pledged Loan is determined to have been
originated based on untrue, incomplete or inaccurate
information or otherwise to be subject to fraud, whether or
not Borrower had knowledge of the misrepresentation,
incomplete or incorrect information or fraud, on the date on
which Borrower knows, has reason to know, or receives Notice
from Lender, that (A) one or more of the representations and
warranties set forth in Article 9 were inaccurate or
incomplete in any material respect on any date when made or
deemed made, or (B) Borrower has failed to perform or comply
with any covenant, term or condition set forth in Article 9.
Page 3-2
(4) On the date the Pledged Loan or a Lien prior to the Mortgage
securing repayment of the Pledged Loan is defaulted and
remains in default for a period of 60 days or more.
(5) Upon the sale, other disposition or prepayment of any Pledged
Asset or, with respect to a Pledged Loan included in an
Eligible Mortgage Pool, upon the sale or other disposition of
the related Agency Security.
(6) One (1) Business Day immediately preceding the date scheduled
for the foreclosure or trustee sale of the premises securing a
Pledged Loan.
(7) If the outstanding Warehousing Advances against Pledged Loans
of a specific type of Eligible Loan exceed the aggregate
Purchase Commitments for that type of Eligible Loan.
3.3 (d) Upon telephonic or written Notice to Borrower by Lender, Borrower
must pay to Lender, and Borrower authorizes Lender to cause the
Funding Bank to charge Borrower's Operating Account for, the amount of
any outstanding Warehousing Advance against a specific Pledged Asset
upon the earliest occurrence of any of the following events:
(1) For any Pledged Loan, other than an Aged Mortgage Loan, the
Standard Warehouse Period elapses and, for any Aged Mortgage
Loan, the Aged Warehouse Period elapses.
(2) Forty-five (45) days elapse from the date a Pledged Loan was
delivered to an Investor or Approved Custodian for examination
and purchase or for inclusion in a Mortgage Pool, without the
purchase being made or an Eligible Mortgage Pool being
initially certified, or upon rejection of a Pledged Loan as
unsatisfactory by an Investor or Approved Custodian.
(3) Seven (7) Business Days elapse from the date a Wet Settlement
Advance was made against a Pledged Loan without receipt by
Lender of all Collateral Documents relating to the Pledged
Loan.
(4) Three (3) Business Days after the mandatory delivery date of
the related Purchase Commitment if the specific Pledged Loan
or the Pledged Security backed by that Pledged Loan has not
been delivered under the Purchase Commitment prior to such
mandatory delivery date, or on the date the related Purchase
Commitment expires or is terminated, unless, in each case,
the Pledged Loan or Pledged Security is eligible for delivery
to another Investor under a comparable Purchase Commitment.
(5) With respect to any Pledged Loan, any of the Collateral
Documents, upon examination by Lender, are found not to be in
compliance with the requirements of this Agreement or the
related Purchase Commitment.
3.3 (e) In addition to the payments required by Sections 3.3(a), 3.3(c)
and 3.3(d), if the principal amount of any Pledged Loan is prepaid in
whole or in part while a Warehousing Advance is outstanding against
the Pledged Loan, Borrower must pay to Lender, without the necessity
of prior demand or Notice from Lender, and Borrower authorizes Lender
to cause the Funding Bank to charge Borrower's Operating Account for,
the amount of the prepayment, to be applied against the Warehousing
Advance.
Page 3-3
3.3 (f) The proceeds of the sale or other disposition of Pledged Assets must
be paid directly by the Investor to the Cash Collateral Account.
Borrower must give Notice to Lender in writing or by telephone or by
RFConnects Delivery to Lender (and if by telephone, followed promptly
by written Notice) of the Pledged Assets for which proceeds have been
received. Upon receipt of Borrower's Notice, Lender will apply any
proceeds deposited into the Cash Collateral Account to the payment of
the Warehousing Advances related to the Pledged Assets identified by
Borrower in its Notice, and those Pledged Assets will be considered to
have been redeemed from pledge. Lender is entitled to rely upon
Borrower's affirmation that deposits in the Cash Collateral Account
represent payments from Investors for the purchase of the Pledged
Assets specified by Borrower in its Notice. If the payment from an
Investor for the purchase of Pledged Assets is less than the
outstanding Warehousing Advances against the Pledged Assets identified
by Borrower in its Notice, Borrower must pay to Lender, and Borrower
authorizes Lender to cause the Funding Bank to charge Borrower's
Operating Account in, an amount equal to that deficiency. As long as
no Default or Event of Default exists, Lender will return to Borrower
any excess payment from an Investor for Pledged Assets.
3.3 (g) Lender reserves the right to revalue any Pledged Loan. Borrower
must pay to Lender, without the necessity of prior demand or Notice
from Lender, and Borrower authorizes Lender to cause the Funding Bank
to charge Borrower's Operating Account for, any amount required after
any such revaluation to reduce the principal amount of the Warehousing
Advance outstanding against the revalued Pledged Loan to an amount
equal to the Advance Rate for the applicable type of Eligible Loan
multiplied by the Fair Market Value of the Mortgage Loan.
3.4. BUYDOWNS
Borrower may prepay a portion of the Warehousing Advances outstanding against
Prime Mortgage Loans (a "BUYDOWN") upon Notice to Lender not later than (a) 1:00
p.m. on the Business Day immediately preceding the Business Day on which
Borrower desires to make a Buydown in the amount of $10,000,000 or more or (b)
1:00 p.m. on the Business Day on which Borrower desires to make a Buydown in an
amount less than $10,000,000. Each Buydown must be in an amount not less than
$5,000, and Buydowns may not exceed the aggregate principal balance of the
Warehousing Advances outstanding against Prime Mortgage Loans. A Buydown is a
reduction in the aggregate amount of the Warehousing Advances outstanding
against Prime Mortgage Loans, but does not represent the prepayment of any
particular Warehousing Advance, and does not entitle Borrower to the release of
any Collateral. Lender may apply Buydowns to reduce interest payable by Borrower
on outstanding Warehousing Advances in any order that Lender determines in its
sole discretion. Unless a Default or Event of Default exists, Borrower may
reborrow all or any portion of a Buydown upon Notice to Lender not later than
(m) 1:00 p.m. on the Business Day immediately preceding the Busines Day on which
borrower desires to reborrow $10,000,000 or more or (n) 1:00 p.m. on the
Business Day that Borrower desires to reborrow an amount less than $10,000,000.
If Lender receives Buydowns or a combination of Buydowns and payments of
Warehousing Advances that exceed the aggregate principal balance of the
Warehousing Advances outstanding against Prime Mortgage Loans (an "EXCESS
BUYDOWN"), as long as no Default or Event of Default exists, Borrower may
reborrow all or any portion of an Excess Buydown upon Notice to Lender not later
than (y) 1:00 p.m. on the Business Day immediately preceding the Business Day on
which Borrower desires to reborrow $10,000,000 or more or (z) 1:00 p.m. on the
Business Day that Borrower desires to reborrow an amount less than $10,000,000.
Alternatively, Lender may, in its sole discretion, re-advance to Borrower all or
any portion of an Excess Buydown by causing the Funding Bank to credit the
Operating Account in that amount. Lender has no obligation to pay or otherwise
provide to Borrower any interest, dividends or other benefits on an Excess
Buydown.
Page 3-4
3.5. WAREHOUSING COMMITMENT FEES
Borrower must pay Lender a fee ("WAREHOUSING COMMITMENT FEE") in the amount set
forth in EXHIBIT I. The Warehousing Commitment Fee is payable quarterly in
advance. On the Closing Date, Borrower must pay the prorated portion of the
Warehousing Commitment Fee due from the Closing Date to the last day of the
current Calendar Quarter. After the Closing Date, Borrower must pay the
Warehousing Commitment Fee within 9 days after the date of Lender's invoice or,
if applicable, within 2 days after the date of Lender's account analysis
statement. If the date set forth in clause (a) of the definition of Warehousing
Maturity Date occurs on a day other than the last day of a Calendar Quarter,
Borrower must pay the prorated portion of the Warehousing Commitment Fee due
from the beginning of the then current Calendar Quarter to and including that
date. Borrower is not entitled to a reduction in the amount of the Warehousing
Commitment Fee if (a) the Warehousing Commitment Amount is reduced or (b) the
Warehousing Commitment is terminated at the request of Borrower or as a result
of an Event of Default. If the Warehousing Commitment terminates at the request
of Borrower or as a result of an Event of Default, Borrower must pay, on the
date of termination, a Warehousing Commitment Fee on the Warehousing Commitment
Amount in effect immediately prior to termination, for the period from the date
of termination to and including the date set forth in clause (a) of the
definition of Warehousing Maturity Date on the date of such termination.
Lender's determination of the Warehousing Commitment Fee for any period is
conclusive and binding, absent manifest error.
3.6. LOAN PACKAGE FEES, WIRE FEES, WAREHOUSING FEES
At the time of each Warehousing Advance against an Eligible Loan, Borrower will
incur a loan package fee ("LOAN PACKAGE FEE") and a wire fee ("WIRE FEE"). Loan
Package Fees and Wire Fees may, at Lender's discretion, be billed separately or
combined into a single warehousing fee ("WAREHOUSING FEE"). Borrower must pay
all Loan Package Fees, Wire Fees or Warehousing Fees in the amount set forth in
EXHIBIT I within 9 days after the date of Lender's invoice or, if applicable,
within 2 days after the date of Lender's account analysis statement.
3.7. MISCELLANEOUS FEES AND CHARGES
Borrower must reimburse Lender for all Miscellaneous Fees and Charges. Borrower
must pay all Miscellaneous Fees and Charges within 9 days after the date of
Lender's invoice or, if applicable, within 2 days after the date of Lender's
account analysis statement.
3.8. OVERDRAFT ADVANCES
If, under the authorization given by Borrower in the Funding Bank Agreement or
pursuant to this Agreement, Lender debits Borrower's Operating Account or
directs the Funding Bank to honor an item presented against the Operating
Account or against the Check Disbursement Account, and that debit or direction
results in an overdraft, Lender may make an additional Warehousing Advance to
fund that overdraft ("OVERDRAFT ADVANCE"). Borrower must pay (a) the outstanding
amount of any Overdraft Advance, within 1 Business Day after the date of the
Overdraft Advance, and (b) interest on the amount of the Overdraft Advance, at a
rate per annum equal to the Bank One Prime Rate plus 2%, within 9 days after the
date of Lender's invoice or, if applicable, within 2 days after the date of
Lender's account analysis statement.
Page 3-5
3.9. METHOD OF MAKING PAYMENTS
3.9 (a) Unless otherwise specified in this Agreement, Borrower must make
all payments under this Agreement to Lender by the close of business
on the date when due unless the date is not a Business Day. If the due
date is not a Business Day, payment is due on, and interest will
accrue to, the next Business Day. Borrower must make all payments in
United States dollars in immediately available funds transferred by
wire to accounts designated by Lender.
3.9 (b) Borrower authorizes Lender to cause the Funding Bank to charge
Borrower's Operating Account for any interest or fees due and payable
to Lender on or after the 9th day after the date of Lender's invoice
or, if applicable, on or after the 2nd day after the date of Lender's
account analysis statement, without the necessity of prior demand or
Notice from Lender.
3.9 (c) While a Default or Event of Default exists, Borrower authorizes
Lender to cause the Funding Bank to charge Borrower's Operating
Account for any Obligations due and payable to Lender, without the
necessity of prior demand or Notice from Lender.
END OF ARTICLE 3
Page 3-6
4. COLLATERAL
4.1. GRANT OF SECURITY INTEREST
As security for the payment of the Warehousing Note and for the performance of
all of Borrower's Obligations, Borrower grants a security interest to Lender in
all of Borrower's right, title and interest in and to the following described
property ("COLLATERAL"):
4.1 (a) All amounts advanced by Lender to or for the account of Borrower
under this Agreement to fund a Mortgage Loan until that Mortgage Loan
is closed and those funds disbursed.
4.1 (b) All Mortgage Loans, including all Mortgage Notes, Mortgages and
Security Agreements evidencing or securing those Mortgage Loans, that
are delivered or caused to be delivered to Lender (including delivery
to a third party on behalf of Lender), or that otherwise come into the
possession, custody or control of Lender (including the possession,
custody or control of a third party on behalf of Lender) for the
purpose of pledge or in respect of which Lender has made a Warehousing
Advance under this Agreement (collectively, "PLEDGED LOANS").
4.1 (c) All Mortgage-backed Securities that are created in whole or in part on
the basis of Pledged Loans or that are delivered or caused to be
delivered to Lender (including delivery to a third party on behalf of
Lender), or that otherwise come into the possession, custody or
control of Lender (including the possession, custody or control of a
third party on behalf of Lender) or that are registered by book-entry
in the name of Lender (including registration in the name of a third
party on behalf of Lender), in each case for the purpose of pledge, or
in respect of which a Warehousing Advance has been made by Lender
under this Agreement (collectively, "PLEDGED SECURITIES").
4.1 (d) All private mortgage insurance and all commitments issued by the VA or
FHA to insure or guarantee any Mortgage Loans included in the Pledged
Loans; all Purchase Commitments held by Borrower covering Pledged
Loans or Pledged Securities, and all proceeds from the sale of Pledged
Loans or Pledged Securities to Investors pursuant to those Purchase
Commitments; and all personal property, contract rights, servicing
rights or contracts and servicing fees and income or other proceeds,
amounts and payments payable to Borrower as compensation or
reimbursement, accounts, payments, intangibles and general intangibles
of every kind relating to Pledged Loans, Pledged Securities, Purchase
Commitments, VA commitments or guaranties, FHA commitments, private
mortgage insurance and commitments, and all other documents or
instruments relating to Pledged Loans and Pledged Securities,
including any interest of Borrower 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
Pledged Loans.
4.1 (e) All escrow accounts, documents, instruments, files, surveys,
certificates, correspondence, appraisals, computer programs, tapes,
discs, cards, accounting records (including all information, records,
tapes, data, programs, discs and cards necessary or helpful in the
administration or servicing of the Collateral) and other information
and data of Borrower relating to the Collateral.
4.1 (f) All cash, whether now existing or acquired after the date of this
Agreement, delivered to or otherwise in the possession of Lender, the
Funding Bank or Lender's agent, bailee or custodian or designated on
the books and records of Borrower as assigned and pledged
Page 4-1
to Lender, including all cash deposited in the Cash Collateral
Account, the Check Disbursement Account and the Wire Disbursement
Account.
4.1 (g) All Hedging Arrangements related to the Collateral ("PLEDGED
HEDGING ARRANGEMENTS") and Borrower's accounts in which those Hedging
Arrangements are held ("PLEDGED HEDGING ACCOUNTS"), including all
rights to payment arising under the Pledged Hedging Arrangements and
the Pledged Hedging Accounts, except that Lender's security interest
in the Pledged Hedging Arrangements and Pledged Hedging Accounts
applies only to benefits, including rights to payment, related to the
Collateral.
4.1 (h) All cash and non-cash proceeds of the Collateral, including all
dividends, distributions and other rights in connection with, and all
additions to, modifications of and replacements for, the Collateral,
and all products and proceeds of the Collateral, together with
whatever is receivable or received when the Collateral or proceeds of
Collateral are sold, collected, exchanged or otherwise disposed of,
whether such disposition is voluntary or involuntary, including all
rights to payment with respect to any cause of action affecting or
relating to the Collateral or proceeds of Collateral.
4.2. MAINTENANCE OF COLLATERAL RECORDS
As long as the Warehousing Commitment is outstanding or there remain any
Obligations to be paid or performed under this Agreement or under any other Loan
Document, Borrower must preserve and maintain, at its chief executive office and
principal place of business or in a regional office approved by Lender, or in
the office of a computer service bureau engaged by Borrower and approved by
Lender and, upon request, make available to Lender the originals, or copies in
any case where the originals have been delivered to Lender or to an Investor, of
the Mortgage Notes, Mortgages and Security Agreements included in Pledged Loans,
Mortgage-backed Securities delivered to Lender as Pledged Securities, Purchase
Commitments, and all related Mortgage Loan documents and instruments, and all
files, surveys, certificates, correspondence, appraisals, computer programs,
tapes, discs, cards, accounting records and other information and data relating
to the Collateral.
4.3. RELEASE OF SECURITY INTEREST IN PLEDGED LOANS AND PLEDGED SECURITIES
4.3 (a) Except as provided in Section 4.3(b), Lender will release its security
interest in the Pledged Loans only against payment to Lender of the
Release Amount in connection with those Pledged Loans. If Pledged
Loans are transferred to a pool custodian or an Investor for inclusion
in a Mortgage Pool and Lender's security interest in the Pledged Loans
included in the Mortgage Pool is not released before the issuance of
the related Mortgage-backed Security, then that Mortgage-backed
Security, when issued, is a Pledged Security, Lender's security
interest continues in the Pledged Loans backing that Pledged Security
and Lender is entitled to possession of the Pledged Security in the
manner provided in this Agreement.
4.3 (b) If Pledged Loans are transferred to an Approved Custodian and
included in an Eligible Mortgage Pool, Lender's security interest in
the Pledged Loans included in the Eligible Mortgage Pool will be
released upon the delivery of the Agency Security to Lender (including
delivery to or registration in the name of a third party on behalf of
Lender) and that Agency Security is a Pledged Security. Lender's
security interest in that Pledged Security will be released only
against payment to Lender of the Release Amount in connection with the
Mortgage Loans backing that Pledged Security.
4.3 (c) Lender has the exclusive right to possession of all Pledged Securities
or, if Pledged Securities are issued in book-entry form or issued in
certificated form and delivered to a
Page 4-2
34
clearing corporation (as that term is defined in the Uniform
Commercial Code of Minnesota) or its nominee, Lender has the right to
have the Pledged Securities registered in the name of a securities
intermediary (as that term is defined in the Uniform Commercial Code
of Minnesota) in an account containing only customer securities and
credited to an account of Lender. Lender has no duty or obligation to
deliver Pledged Securities to an Investor or to credit Pledged
Securities to the account of an Investor or an Investor's designee
except against payment for those Pledged Securities. Borrower
acknowledges that Lender may enter into one or more standing
arrangements with securities intermediaries with respect to Pledged
Securities issued in book entry form or issued in certificated form
and delivered to a clearing corporation or its designee, under which
the Pledged Securities are registered in the name of the securities
intermediary, and Borrower agrees, upon request of Lender, to execute
and deliver to those securities intermediaries Borrower's written
concurrence in any such standing arrangements.
4.3 (d) If no Default or Event of Default occurs, Borrower may redeem a
Pledged Loan or Pledged Security from Lender's security interest by
notifying Lender of its intention to redeem the Pledged Loan or
Pledged Security from pledge and either (1) paying, or causing an
Investor to pay, to Lender, for application as a prepayment on the
principal balance of the Warehousing Note, the Release Amount in
connection with the Pledged Loan or the Pledged Loans backing that
Pledged Security, or (2) delivering substitute Collateral that, in
addition to being acceptable to Lender in its sole discretion, will,
when included with the remaining Collateral, result in a Warehousing
Collateral Value of all Collateral held by Lender that is at least
equal to the aggregate outstanding Warehousing Advances.
4.3 (e) After a Default or Event of Default occurs, Lender may, with no
liability to Borrower or any Person, continue to release its security
interest in any Pledged Loan or Pledged Security against payment of
the Release Amount for that Pledged Loan or for the Pledged Loans
backing that Pledged Security.
4.3 (f) The amount to be paid by Borrower to obtain the release of Lender's
security interest in a Pledged Loan ("RELEASE AMOUNT") will be (1) in
connection with the sale of a Pledged Loan by Borrower, the payment
required in any bailee letter pursuant to which Lender ships that
Pledged Loan to an Investor, Approved Custodian, pool custodian or
other party, (2) in connection with the sale of a Pledged Loan by
Lender while an Event of Default exists, the amount paid to Lender in
a commercially reasonable disposition of that Pledged Loan and (3)
otherwise, until an Event of Default occurs, the principal amount of
the Warehousing Advance outstanding against the Pledged Loan.
4.4. COLLECTION AND SERVICING RIGHTS
4.4 (a) If no Event of Default exists, Borrower may service and receive
and collect directly all sums payable to Borrower in respect of the
Collateral other than proceeds of any Purchase Commitment or proceeds
of the sale of any Collateral. All proceeds of any Purchase Commitment
or any other sale of Collateral must be paid directly to the Cash
Collateral Account for application as provided in this Agreement.
4.4 (b) After an Event of Default, Lender or its designee is entitled to
service and receive and collect all sums payable to Borrower in
respect of the Collateral, and in such case (1) Lender or its designee
in its discretion may, in its own name, in the name of Borrower or
otherwise, demand, xxx for, collect or receive any money or property
at any time payable or receivable on account of or in exchange for any
of the Collateral, but Lender has no obligation to do so, (2) Borrower
must, if Lender requests it to do so, hold in trust for the benefit of
Lender and immediately pay to Lender at its office designated
Page 4-3
by Notice, all amounts received by Borrower upon or in respect of any
of the Collateral, advising Lender as to the source of those funds and
(3) all amounts so received and collected by Lender will be held by it
as part of the Collateral.
4.5. RETURN OF COLLATERAL AT END OF WAREHOUSING COMMITMENT
If (a) the Warehousing Commitment has expired or been terminated, and (b) no
Warehousing Advances, interest or other Obligations are outstanding and unpaid,
Lender will release its security interest and will deliver all Collateral in its
possession to Borrower at Borrower's expense. Borrower's acknowledgement or
receipt for any Collateral released or delivered to Borrower under any provision
of this Agreement is a complete and full acquittance for the Collateral so
returned, and Lender is discharged from any liability or responsibility for that
Collateral.
4.6. DELIVERY OF COLLATERAL DOCUMENTS
4.6 (a) Lender may deliver documents relating to the Collateral to
Borrower for correction or completion under a Trust Receipt.
4.6 (b) If no Default or Event of Default exists, upon delivery by
Borrower to Lender of shipping instructions pursuant to the applicable
EXHIBIT B, Lender will deliver the Mortgage Notes evidencing Pledged
Loans or Pledged Securities, together with all related loan documents
and pool documents previously received by Lender under the
requirements of the applicable EXHIBIT B, to the designated Investor
or Approved Custodian or to another party designated by Borrower and
acceptable to Lender in its sole discretion.
4.6 (c) If a Default or Event of Default exists, Lender may, without
liability to Borrower or any other Person, continue to deliver Pledged
Loans or Pledged Securities, together with all related loan documents
and pool documents in Lender's possession, to the applicable Investor,
or Approved Custodian or to another party acceptable to Lender in its
sole discretion.
END OF ARTICLE 4
Page 4-4
5. CONDITIONS PRECEDENT
5.1. INITIAL ADVANCE
Lender's obligation to make the initial Warehousing Advance, is subject to the
satisfaction, in the sole discretion of Lender, of the following conditions
precedent:
5.1 (a) Lender must receive the following, all of which must be satisfactory
in form and content to Lender, in its sole discretion:
(1) The Warehousing Note and this Agreement duly executed by
Borrower.
(2) Borrower's articles or certificate of incorporation, together
with all amendments, as certified by the Secretary of State of
New York, Borrower's bylaws, together with all amendments,
certified by the corporate secretary or assistant secretary of
Borrower, and certificates of good standing dated within 60
days of the date of this Agreement, together with a
certification from the Franchise Tax Board or other state tax
authority stating that Borrower is in good standing with the
Franchise Tax Board or such state tax authority, if
applicable.
(3) A resolution of the board of directors of Borrower authorizing
the execution, delivery and performance of this Agreement and
the other Loan Documents, each Warehousing Advance Request and
all other agreements, instruments or documents to be delivered
by Borrower under this Agreement.
(4) A certificate as to the incumbency and authenticity of the
signatures of the officers of Borrower executing this
Agreement and the other Loan Documents.
(5) Assumed Name Certificates dated within 30 days of the date of
this Agreement for any assumed name used by Borrower in the
conduct of its business.
(6) Fiscal year-end financial statements of Borrower (and, if
applicable, Borrower's Subsidiaries, on a consolidated basis)
containing a balance sheet as of December 31, 2002 and related
statements of income, changes in stockholders' equity and cash
flows for the period ended on that date, all in reasonable
detail and prepared in accordance with GAAP applied on a basis
consistent with prior periods and accompanied by (A) an
opinion as to those financial statements in form and substance
satisfactory to Lender and prepared by independent certified
public accountants of recognized standing acceptable to Lender
and (B) any management letters, management reports or other
supplementary comments or reports delivered by those
accountants to Borrower or its board of directors.
(7) Interim financial statements of Borrower (and, if applicable,
Borrower's Subsidiaries, on a consolidated basis) containing a
balance sheet as of March 31, 2003, and a related statement of
income, for the period ended on that date prepared in
accordance with GAAP applied on a basis consistent with
Borrower's most recent audited financial statements.
(8) A favorable written opinion of counsel to Borrower, addressed
to Lender and dated as of the date of this Agreement, covering
such matters as Lender may reasonably request.
Page 5-1
(9) Uniform Commercial Code, tax lien and judgment searches of the
appropriate public records for Borrower that do not disclose the
existence of any prior Lien on the Collateral other than in favor of
Lender or as permitted under this Agreement.
(10) Copies of the certificates, documents or other written instruments
that evidence Borrower's eligibility described in Section 9.1, all in
form and substance satisfactory to Lender.
(11) Copies of Borrower's errors and omissions insurance policy or mortgage
impairment insurance policy, and blanket bond coverage policy, or
certificates in lieu of policies, showing compliance by Borrower as of
the date of this Agreement with the provisions of Section 7.9.
(12) A fully-executed Funding Bank Agreement and evidence that all accounts
into which Warehousing Advances will be funded have been established
at the Funding Bank.
(13) One or more agreements among Borrower, Lender and Xxxxxx Mae in which
Xxxxxx Xxx agrees to send all cash proceeds of Mortgage Loans sold by
Borrower to Xxxxxx Mae to the Cash Collateral Account, each in form
and substance satisfactory to Lender.
(14) Receipt by Lender of any fees due on the date of this Agreement.
5.1 (b) If, as of the date of this Agreement, Borrower has any indebtedness
for borrowed money to any of its directors, officers, shareholders or
Affiliates, which indebtedness has a term of more than 1 year or is in
excess of $25,000, the Person to whom Borrower is indebted must have
executed a Subordination of Debt Agreement, on the form prescribed by
Lender; and Lender must have received an executed copy of that
Subordination of Debt Agreement, certified by the corporate secretary
or assistant secretary of Borrower to be true and complete and in full
force and effect as of the date of the Warehousing Advance.
5.1 (c) Borrower must not have incurred any material liabilities, direct or
contingent, other than in the ordinary course of its business, since
the Audited Statement Date.
5.2. EACH ADVANCE
Lender's obligation to make the initial and each subsequent Warehousing Advance
is subject to the satisfaction, in the sole discretion of Lender, as of the date
of each Warehousing Advance, of the following additional conditions precedent:
5.2 (a) Borrower must have delivered to Lender the Warehousing Advance
Request and Collateral Documents required by, and must have satisfied
the procedures set forth in, Article 2 and the Exhibits described in
that Article. All items delivered to Lender must be satisfactory to
Lender in form and content, and Lender may reject any item that does
not satisfy the requirements of this Agreement or of the related
Purchase Commitment.
5.2 (b) Lender must have received evidence satisfactory to it as to the
making or continuation of any book entry or the due filing and
recording in all appropriate offices of all financing statements and
other instruments necessary to perfect the security interest of Lender
in the Collateral under the Uniform Commercial Code or other
applicable law.
Page 5-2
5.2 (c) The representations and warranties of Borrower contained in Article 6
and Article 9 must be accurate and complete in all material respects
as if made on and as of the date of each Warehousing Advance.
5.2 (d) Borrower must have performed all agreements to be performed by it
under this Agreement, and after giving effect to the requested
Warehousing Advance, no Default or Event of Default will exist under
this Agreement.
Delivery of a Warehousing Advance Request by Borrower will be deemed a
representation by Borrower that all conditions set forth in this
Section have been satisfied as of the date of the Warehousing Advance.
5.3. FORCE MAJEURE
Notwithstanding Borrower's satisfaction of the conditions set forth in this
Agreement, Lender has no obligation to make a Warehousing Advance if Lender is
prevented from obtaining the funds necessary to make a Warehousing Advance, or
is otherwise prevented from making a Warehousing Advance as a result of any fire
or other casualty, failure of power, strike, lockout or other labor trouble,
banking moratorium, embargo, sabotage, confiscation, condemnation, riot, civil
disturbance, insurrection, act of terrorism, war or other activity of armed
forces, act of God or other similar reason beyond the control of Lender. Lender
will make the requested Warehousing Advance as soon as reasonably possible
following the occurrence of such an event.
END OF ARTICLE 5
Page 5-3
6. GENERAL REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender, as of the date of this Agreement and
as of the date of each Warehousing Advance Request and the making of each
Warehousing Advance, that:
6.1. PLACE OF BUSINESS
Borrower's chief executive office and principal place of business is 00 Xxxxxx
Xxxx, Xxx Xxxx, XX, 00000.
6.2. ORGANIZATION; GOOD STANDING; SUBSIDIARIES
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of New York, and has the full legal power and
authority to own its property and to carry on its business as currently
conducted. Borrower is duly qualified as a foreign corporation to do business
and is in good standing in each jurisdiction in which the transaction of its
business makes qualification necessary, except in jurisdictions, if any, where a
failure to be in good standing has no material adverse effect on Borrower's
business, operations, assets or financial condition as a whole. For the purposes
of this Agreement, good standing includes qualification for all licenses and
payment of all taxes required in the jurisdiction of its incorporation and in
each jurisdiction in which Borrower transacts business. Borrower has no
Subsidiaries except as set forth on EXHIBIT D, which sets forth with respect to
each Subsidiary, its name, address, jurisdiction of organization, each state in
which it is qualified to do business, and the percentage ownership of its
capital stock by Borrower. Each of Borrower's Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, and has the full legal power and authority to own its property and
to carry on its business as currently conducted.
6.3. AUTHORIZATION AND ENFORCEABILITY
Borrower has the power and authority to execute, deliver and perform this
Agreement, the Warehousing Note and other Loan Documents to which Borrower is
party and to make the borrowings under this Agreement. The execution, delivery
and performance by Borrower of this Agreement, the Warehousing Note and the
other Loan Documents to which Borrower is party and the making of the borrowings
under this Agreement, and the Warehousing Note, have been duly and validly
authorized by all necessary corporate action on the part of Borrower (none of
which actions has been modified or rescinded, and all of which actions are in
full force and effect) and do not and will not (a) conflict with or violate any
provision of law, of any judgments binding upon Borrower, or of the articles of
incorporation or by-laws of Borrower, or (b) conflict with or result in a breach
of, constitute a default or require any consent under, or result in or require
the acceleration of any indebtedness of Borrower under any agreement, instrument
or indenture to which Borrower is a party or by which Borrower or its property
may be bound or affected, or result in the creation of any Lien upon any
property or assets of Borrower (other than the Lien on the Collateral granted
under this Agreement). This Agreement, the Warehousing Note and the other Loan
Documents constitute the legal, valid and binding obligations of Borrower,
enforceable in accordance with their respective terms, except as limited by
bankruptcy, insolvency or other such laws affecting the enforcement of
creditors' rights.
6.4. APPROVALS
The execution and delivery of this Agreement, the Warehousing Note and the other
Loan Documents and the performance of Borrower's obligations under this
Agreement, the Warehousing Note and the other Loan Documents and the validity
and enforceability of this
Page 6-1
Agreement, the Warehousing Note and the other Loan Documents do not require any
license, consent, approval or other action of any state or federal agency or
governmental or regulatory authority other than those that have been obtained
and remain in full force and effect.
6.5. FINANCIAL CONDITION
The balance sheet of Borrower (and, if applicable, Borrower's Subsidiaries, on a
consolidated basis) as of each Statement Date, and the related statements of
income, cash flows and changes in stockholders' equity for the fiscal period
ended on each Statement Date, furnished to Lender, fairly present the financial
condition of Borrower (and, if applicable, Borrower's Subsidiaries) as at that
Statement Date and the results of its operations for the fiscal period ended on
that Statement Date. Borrower had, on each Statement Date, no known material
liabilities, direct or indirect, fixed or contingent, matured or unmatured, or
liabilities for taxes, long-term leases or unusual forward or long-term
commitments not disclosed by, or reserved against in, those financial
statements, and at the present time there are no material unrealized or
anticipated losses from any loans, advances or other commitments of Borrower
except as previously disclosed to Lender in writing. Those financial statements
were prepared in accordance with GAAP applied on a consistent basis throughout
the periods involved. Since the Audited Statement Date, there has been no
material adverse change in the business, operations, assets or financial
condition of Borrower (and, if applicable, Borrower's Subsidiaries), nor is
Borrower aware of any state of facts that (with or without notice or lapse of
time or both) would or could result in any such material adverse change.
6.6. LITIGATION
There are no actions, claims, suits or proceedings pending or, to Borrower's
knowledge, threatened or reasonably anticipated against or affecting Borrower or
any Subsidiary of Borrower in any court or before any arbitrator or before any
government commission, board, bureau or other administrative agency that, if
adversely determined, may reasonably be expected to result in a material adverse
change in Borrower's business, operations, assets or financial condition as a
whole, or that would affect the validity or enforceability of this Agreement,
the Warehousing Note or any other Loan Document.
6.7. COMPLIANCE WITH LAWS
Neither Borrower nor any Subsidiary of Borrower is in violation of any provision
of any law, or of any judgment, award, rule, regulation, order, decree, writ or
injunction of any court or public regulatory body or authority that could result
in a material adverse change in Borrower's business, operations, assets or
financial condition as a whole or that would affect the validity or
enforceability of this Agreement, the Warehousing Note or any other Loan
Document.
6.8. REGULATION U
Borrower is not engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock, and no part of the proceeds of any Warehousing Advance made under
this Agreement will be used to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock.
6.9. INVESTMENT COMPANY ACT
Borrower is not an "investment company" or controlled by an "investment company"
within the meaning of the Investment Company Act.
Page 6-2
6.10. PAYMENT OF TAXES
Borrower and each of its Subsidiaries has filed or caused to be filed all
federal, state and local income, excise, property and other tax returns that are
required to be filed with respect to the operations of Borrower and its
Subsidiaries, all such returns are true and correct and Borrower and each of its
Subsidiaries has paid or caused to be paid all taxes shown on those returns or
on any assessment, to the extent that those taxes have become due, including all
FICA payments and withholding taxes, if appropriate. The amounts reserved as a
liability for income and other taxes payable in the financial statements
described in Section 6.6 are sufficient for payment of all unpaid federal, state
and local income, excise, property and other taxes, whether or not disputed, of
Borrower and its Subsidiaries accrued for or applicable to the period and on the
dates of those financial statements and all years and periods prior to those
financial statements and for which Borrower and its Subsidiaries may be liable
in their own right or as transferee of the assets of, or as successor to, any
other Person. No tax Liens have been filed and no material claims are being
asserted against Borrower, any Subsidiary of Borrower or any property of
Borrower or any Subsidiary of Borrower with respect to any taxes, fees or
charges.
6.11. AGREEMENTS
Neither Borrower nor any Subsidiary of Borrower is a party to any agreement,
instrument or indenture or subject to any restriction materially and adversely
affecting its business, operations, assets or financial condition, except as
disclosed in the financial statements described in Section 6.6. Neither Borrower
nor any Subsidiary of Borrower is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
agreement, instrument, or indenture which default could result in a material
adverse change in Borrower's business, operations, properties or financial
condition as a whole. No holder of any indebtedness of Borrower or of any of its
Subsidiaries has given notice of any asserted default under that indebtedness,
and no liquidation or dissolution of Borrower or of any of its Subsidiaries and
no receivership, insolvency, bankruptcy, reorganization or other similar
proceedings relative to Borrower or of any of its Subsidiaries or any of its or
their properties is pending, or to the knowledge of Borrower, threatened.
6.12. TITLE TO PROPERTIES
Borrower and each Subsidiary of Borrower has good, valid, insurable and (in the
case of real property) marketable title to all of its properties and assets
(whether real or personal, tangible or intangible) reflected on the financial
statements described in Section 6.6, except for those properties and assets that
Borrower has disposed of since the date of those financial statements either in
the ordinary course of business or because they were no longer used or useful in
the conduct of Borrower's or the Subsidiary's business. All of Borrower's
properties and assets are free and clear of all Liens except as disclosed in
Borrower's financial statements.
6.13. ERISA
Each Plan is in compliance with all applicable requirements of ERISA and the
Internal Revenue Code and with all material applicable rulings and regulations
issued under the provisions of ERISA and the Internal Revenue Code setting forth
those requirements, except where any failure to comply would not result in a
material loss to Borrower or any ERISA Affiliate. All of the minimum funding
standards or other contribution obligations applicable to each Plan have been
satisfied. No Plan is a defined-benefit pension plan subject to Title IV of
ERISA, and there is no Multiemployer Plan.
Page 6-3
6.14. NO RETIREE BENEFITS
Except as required under Section 4980B of the Internal Revenue Code, Section 601
of ERISA or applicable state law, neither Borrower nor, if applicable, any
Subsidiary is obligated to provide post-retirement medical or insurance benefits
with respect to employees or former employees.
6.15. ASSUMED NAMES
Borrower does not originate Mortgage Loans or otherwise conduct business under
any names other than its legal name and the assumed names set forth on EXHIBIT
G. Borrower has made all filings and taken all other action as may be required
under the laws of any jurisdiction in which it originates Mortgage Loans or
otherwise conducts business under any assumed name. Borrower's use of the
assumed names set forth on EXHIBIT G does not conflict with any other Person's
legal rights to any such name, nor otherwise give rise to any liability by
Borrower to any other Person. Borrower may amend EXHIBIT G to add or delete any
assumed names used by Borrower to conduct business. An amendment to EXHIBIT G to
add an assumed name is not effective until Borrower has delivered to Lender an
assumed name certificate in the jurisdictions in which the assumed name is to be
used, which must be satisfactory in form and content to Lender, in its sole
discretion. In connection with any amendment to delete a name from EXHIBIT G,
Borrower represents and warrants that it has ceased using that assumed name in
all jurisdictions.
6.16. SERVICING
EXHIBIT C is a true and complete list of Borrower's Servicing Portfolio. All of
Borrower's Servicing Contracts are in full force and effect, and are
unencumbered by Liens other than Liens disclosed in EXHIBIT C. No default or
event that, with notice or lapse of time or both, would become a default, exists
under any of Borrower's Servicing Contracts.
END OF ARTICLE 6
Page 6-4
7. AFFIRMATIVE COVENANTS
As long as the Warehousing Commitment is outstanding or there remain any
Obligations to be paid or performed under this Agreement or under any other Loan
Document, Borrower must:
7.1. PAYMENT OF OBLIGATIONS
Punctually pay or cause to be paid all Obligations, including the Obligations
payable under this Agreement and under the Warehousing Note, in accordance with
their terms.
7.2. FINANCIAL STATEMENTS
Deliver to Lender:
7.2 (a) As soon as available and in any event within 30 days after the end
of each month, including the last month of Borrower's fiscal year, an
interim statement of income of Borrower (and, if applicable,
Borrower's Subsidiaries, on a consolidated basis) for the immediately
preceding month and for the period from the beginning of the fiscal
year to the end of that month, and the related balance sheet as at the
end of the immediately preceding month, all in reasonable detail,
subject, however, to year-end audit adjustments.
7.2 (b) As soon as available and in any event within 90 days after the end of
each fiscal year of Borrower, fiscal year-end statements of income,
changes in stockholders' equity and cash flow of Borrower (and, if
applicable, Borrower's Subsidiaries, on a consolidated basis) for that
year, and the related balance sheet as of the end of that year
(setting forth in comparative form the corresponding figures for the
preceding fiscal year), all in reasonable detail and accompanied by
(1) an opinion as to those financial statements in form and substance
satisfactory to Lender and prepared by independent certified public
accountants of recognized standing acceptable to Lender and (2) any
management letters, management reports or other supplementary comments
or reports delivered by those accountants to Borrower or its board of
directors.
7.2 (c) Together with each delivery of financial statements required by this
Section, a Compliance Certificate substantially in the form of EXHIBIT
E.
7.2 (d) Copies of all regular or periodic financial and other reports that
Borrower files with the Securities and Exchange Commission or any
successor governmental agency or other entity.
7.3. OTHER BORROWER REPORTS
Deliver to Lender:
7.3 (a) If Borrower has a Servicing Portfolio, then as soon as available and
in any event within 30 days after the end of each month, a
consolidated report ("SERVICING PORTFOLIO REPORT") as of the end of
the month, as to all Mortgage Loans the servicing rights to which are
owned by Borrower (specified by investor type, recourse and
non-recourse) regardless of whether the Mortgage Loans are Pledged
Loans. The Servicing Portfolio Report must indicate which Mortgage
Loans (1) are current and in good standing, (2) are more than 30, 60
or 90 days past due, (3) are the subject of pending bankruptcy or
foreclosure
Page 7-1
proceedings, or (4) have been converted (through foreclosure or other
proceedings in lieu of foreclosure) into real estate owned by
Borrower.
7.3 (b) As soon as available and in any event within 30 days after the end
of each month, a consolidated loan production report as of the end of
that month, presenting the total dollar volume and the number of
Mortgage Loans originated and closed or purchased during that month
and for the fiscal year-to-date, specified by property type and loan
type.
7.3 (c) As soon as available and in any event within 30 days after the end of
each month, a commitment summary and pipeline report, substantially in the form
of EXHIBIT J, as of the end of that month.
7.3 (d) Unless the Funding Bank has previously provided Lender with a copy
of the Funding Bank's monthly statement for the Check Disbursement
Account, as soon as available and in any event within 30 days after
the end of each month, a copy of that monthly statement.
7.3 (e) Within 30 days after the end of each month, a report as of the end
of that month detailing all requests that Borrower repurchase Mortgage
Loans from an Investor or out of an Eligible Mortgage Pool for which
Borrower has determined it is legally obligated to honor pursuant to
the applicable written agreements between Borrower and the requesting
party, including the status of each such request and any
indemnification or similar agreement to which Borrower is a party in
connection with any such request.
7.3 (f) Other reports in respect of Pledged Assets, including copies of
purchase confirmations issued by Investors purchasing Pledged Loans
from Borrower, in such detail and at such times as Lender in its
discretion may reasonably request.
7.3 (g) With reasonable promptness, all further information regarding the
business, operations, properties or financial condition of Borrower as
Lender may reasonably request, including copies of any audits
completed by HUD, Xxxxxx Xxx, Xxxxxx Xxx or Xxxxxxx Mac.
7.4. MAINTENANCE OF EXISTENCE; CONDUCT OF BUSINESS
Preserve and maintain its corporate existence in good standing and all of its
rights, privileges, licenses and franchises necessary or desirable in the normal
conduct of its business, including its eligibility as lender, seller/servicer
and issuer described under Section 9.1; conduct its business in an orderly and
efficient manner; maintain a net worth of acceptable assets as required for
maintaining Borrower's eligibility as lender, seller/servicer and issuer
described under Section 9.1; and make no material change in the nature or
character of its business or engage in any business in which it was not engaged
on the date of this Agreement.
7.5. COMPLIANCE WITH APPLICABLE LAWS
Comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, a breach of which could result in a
material adverse change in Borrower's business, operations, assets, or financial
condition as a whole or on the enforceability of this Agreement, the Warehousing
Note, any other Loan Document or any Collateral, except where contested in good
faith and by appropriate proceedings.
Page 7-2
7.6. INSPECTION OF PROPERTIES AND BOOKS; OPERATIONAL REVIEWS
Permit Lender or any Participant (and their authorized representatives) to
discuss the business, operations, assets and financial condition of Borrower and
its Subsidiaries with Borrower's officers, agents and employees, and to examine
and make copies or extracts of Borrower's and its Subsidiaries' books of
account, all at such reasonable times as Lender or any Participant may request.
Provide its accountants with a copy of this Agreement promptly after its
execution and authorize and instruct them to answer candidly all questions that
the officers of Lender or any Participant or any authorized representatives of
Lender or any Participant may address to them in reference to the financial
condition or affairs of Borrower and its Subsidiaries. Borrower may have its
representatives in attendance at any meetings held between the officers or other
representatives of Lender or any Participant and Borrower's accountants under
this authorization. Permit Lender or any Participant (and their authorized
representatives) access to Borrower's premises and records for the purpose of
conducting a review of Borrower's general mortgage business methods, policies
and procedures, auditing its loan files and reviewing the financial and
operational aspects of Borrower's business.
7.7. NOTICE
Give prompt Notice to Lender of (a) any action, suit or proceeding instituted by
or against Borrower or any of its Subsidiaries in any federal or state court or
before any commission or other regulatory body (federal, state or local,
domestic or foreign), which action, suit or proceeding has at issue in excess of
$250,000, or any such proceedings threatened against Borrower or any of its
Subsidiaries in writing containing the details of that action, suit or
proceeding; (b) the filing, recording or assessment of any federal, state or
local tax Lien against Borrower, or any of its assets or any of its
Subsidiaries; (c) an Event of Default; (d) a Default that continues for more
than 4 days; (e) the suspension, revocation or termination of Borrower's
eligibility, in any respect, as lender, seller/servicer or issuer as described
under Section 9.1; (f) the transfer, loss, nonrenewal or termination of any
Servicing Contracts to which Borrower is a party, or which is held for the
benefit of Borrower, and the reason for that transfer, loss, nonrenewal or
termination; (g) any Prohibited Transaction with respect to any Plan, specifying
the nature of the Prohibited Transaction and what action Borrower proposes to
take with respect to it; and (h) any other action, event or condition of any
nature that could lead to or result in a material adverse change in the
business, operations, assets or financial condition of Borrower or any of its
Subsidiaries.
7.8. PAYMENT OF DEBT, TAXES AND OTHER OBLIGATIONS
Pay, perform and discharge, or cause to be paid, performed and discharged, all
of the obligations and indebtedness of Borrower and its Subsidiaries, all taxes,
assessments and governmental charges or levies imposed upon Borrower or its
Subsidiaries or upon their respective income, receipts or properties before
those taxes, assessments and governmental charges or levies become past due, and
all lawful claims for labor, materials and supplies or otherwise that, if
unpaid, could become a Lien or charge upon any of their respective properties or
assets. Borrower and its Subsidiaries are not required to pay, however, any
taxes, assessments and governmental charges or levies or claims for labor,
materials or supplies for which Borrower or its Subsidiaries have obtained an
adequate bond or insurance or that are being contested in good faith and by
proper proceedings that are being reasonably and diligently pursued and for
which proper reserves have been created.
7.9. INSURANCE
Maintain blanket bond coverage and errors and omissions insurance or mortgage
impairment insurance, with such companies and in such amounts as satisfy
prevailing requirements
Page 7-3
applicable to a lender, seller/servicer and issuer described under Section 9.1,
and liability insurance and fire and other hazard insurance on its properties,
in each case with responsible insurance companies acceptable to Lender, in such
amounts and against such risks as is customarily carried by similar businesses
operating in the same location. Within 30 days after Notice from Lender, obtain
such additional insurance as Lender may reasonably require, all at the sole
expense of Borrower. Copies of such policies must be furnished to Lender without
charge upon request of Lender.
7.10. CLOSING INSTRUCTIONS
Indemnify and hold Lender harmless from and against any loss, including
reasonable attorneys' fees and costs, attributable to the failure of any title
insurance company, agent or attorney to comply with Borrower's disbursement or
instruction letter relating to any Mortgage Loan. Lender has the right to
pre-approve Borrower's choice of title insurance company, agent or attorney and
Borrower's disbursement or instruction letter to them in any case in which
Borrower intends to obtain a Warehousing Advance against the Mortgage Loan to be
created at settlement or to pledge that Mortgage Loan as Collateral under this
Agreement. In any event, Borrower's disbursement or instruction letter must
include the following language:
A warehouse lender has a security interest in any amounts advanced by it to
fund this mortgage loan and in the mortgage loan funded with those amounts.
You must promptly return any amounts advanced by the warehouse lender and
not used to fund this mortgage loan. If the mortgage loan does not close
and disburse within 24 hours of receipt of funds, the closing agent must
contact MIT Lending and return the wire to the warehouse lender from whom
funds were delivered. All funds wired are to be held in trust until such
time as the corresponding mortgage loan is recorded and funds are
disbursed.
7.11. SUBORDINATION OF CERTAIN INDEBTEDNESS
Cause any indebtedness of Borrower for borrowed money to any shareholder,
director, officer or Affiliate of Borrower, which indebtedness has a term of
more than 1 year or is in excess of $25,000, to be subordinated to the
Obligations by the execution and delivery to Lender of a Subordination of Debt
Agreement, on the form prescribed by Lender, certified by the corporate
secretary of Borrower to be true and complete and in full force and effect.
7.12. OTHER LOAN OBLIGATIONS
Perform all material obligations under the terms of each loan agreement, note,
mortgage, security agreement or debt instrument by which Borrower is bound or to
which any of its property is subject which involves obligations, in the
aggregate, in excess of $250,000, and promptly notify Lender in writing of a
declared default under or the termination, cancellation, reduction or nonrenewal
of any of its other lines of credit or agreements with any other lender. EXHIBIT
F is a true and complete list of all such lines of credit or agreements as of
the date of this Agreement. Borrower must give Lender at least 30 days Notice
before entering into any additional lines of credit or agreements with a
commitment of $1,000,000 or more.
7.13. ERISA
Maintain (and, if applicable, cause each ERISA Affiliate to maintain) each Plan
in compliance with all material applicable requirements of ERISA and of the
Internal Revenue Code and with all applicable rulings and regulations issued
under the provisions of ERISA and of the Internal Revenue Code, and not (and, if
applicable, not permit any ERISA Affiliate to), (a) engage in any transaction in
connection with which Borrower or any ERISA Affiliate would be subject to either
a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed by
Section 4975 of
Page 7-4
the Internal Revenue Code, in either case in an amount exceeding $25,000 or (b)
fail to make full payment when due of all amounts that, under the provisions of
any Plan, Borrower or any ERISA Affiliate is required to pay as contributions to
that Plan, or permit to exist any accumulated funding deficiency (as such term
is defined in Section 302 of ERISA and Section 412 of the Internal Revenue
Code), whether or not waived, with respect to any Plan in an aggregate amount
exceeding $25,000.
7.14. USE OF PROCEEDS OF WAREHOUSING ADVANCES
Use the proceeds of each Warehousing Advance solely for the purpose of funding
Eligible Loans and against the pledge of those Eligible Loans as Collateral.
END OF ARTICLE 7
Page 7-5
8. NEGATIVE COVENANTS
As long as the Warehousing Commitment is outstanding or there remain any
Obligations to be paid or performed, Borrower must not, either directly or
indirectly, without the prior written consent of Lender:
8.1. CONTINGENT LIABILITIES
Assume, guarantee, endorse or otherwise become contingently liable for the
obligation of any Person except by endorsement of negotiable instruments for
deposit or collection in the ordinary course of business, and except for
obligations arising in connection with the sale of Mortgage Loans with recourse
in the ordinary course of Borrower's business.
8.2. PLEDGE OF SERVICING CONTRACTS
Pledge or grant a security interest in any existing or future Servicing
Contracts of Borrower other than to Lender, or omit to take any action required
to keep all of Borrower's Servicing Contracts in full force and effect.
8.3. RESTRICTIONS ON FUNDAMENTAL CHANGES
8.3 (a) Consolidate, merge or enter into any analogous reorganization or
transaction with any Person.
8.3 (b) Amend or otherwise modify Borrower's articles of incorporation or
by-laws.
8.3 (c) Liquidate, wind up or dissolve (or suffer any liquidation or
dissolution).
8.3 (d) Cease actively to engage in the business of originating or
acquiring Mortgage Loans or make any other material change in the
nature or scope of the business in which Borrower engages as of the
date of this Agreement.
8.3 (e) Sell, assign, lease, convey, transfer or otherwise dispose of
(whether in one transaction or a series of transactions) all or any
substantial part of Borrower's business or assets, whether now owned
or acquired after the Closing Date, other than, in the ordinary course
of business and to the extent not otherwise prohibited by this
Agreement, sales of (1) Mortgage Loans, (2) Mortgage-backed Securities
and (3) Servicing Contracts.
8.3 (f) Acquire by purchase or in any other transaction all or substantially
all of the business or property of, or stock or other ownership
interests of, any Person.
8.3 (g) Permit any Subsidiary of Borrower to do or take any of the foregoing
actions.
8.4. SUBSIDIARIES
Form or acquire, or permit any Subsidiary of Borrower to form or acquire, any
Person that would thereby become a Subsidiary.
Page 8-1
8.5. DEFERRAL OF SUBORDINATED DEBT
Pay any Subordinated Debt of Borrower in advance of its stated maturity or,
after a Default or Event of Default under this Agreement has occurred, make any
payment of any kind on any Subordinated Debt of Borrower until all of the
Obligations have been paid and performed in full and any applicable preference
period has expired.
8.6. LOSS OF ELIGIBILITY
Take any action that would cause Borrower to lose all or any part of its status
as an eligible lender, seller/servicer or issuer as described under Section 9.1.
8.7. ACCOUNTING CHANGES
Make, or permit any Subsidiary of Borrower to make, any significant change in
accounting treatment or reporting practices, except as required by GAAP, or
change its fiscal year or the fiscal year of any Subsidiary of Borrower.
8.8. LEVERAGE RATIO
Permit Borrower's Leverage Ratio at any time to exceed 25 to 1.
8.9. MINIMUM TANGIBLE NET WORTH
Permit Borrower's Tangible Net Worth at any time to be less than $25,000,000.
8.10. MINIMUM LIQUID ASSETS
Permit Borrower's Liquid Assets at any time to be less than $2,000,000.
8.11. OPERATING LOSSES
Permit Borrower (and its Subsidiaries, on a consolidated basis) to have any
calendar quarter of net operating losses.
8.12. DISTRIBUTIONS TO SHAREHOLDERS
Declare or pay any dividends or otherwise declare or make any distribution to
Borrower's shareholders (including any purchase or redemption of stock) if a
Default or Event of Default exists or would occur as a result of the dividend or
distribution.
8.13. TRANSACTIONS WITH AFFILIATES
Excluding Permitted Affiliate Transactions, directly or indirectly (a) make any
loan, advance, extension of credit or capital contribution to any of Borrower's
Affiliates, (b) sell, transfer, pledge or assign any of its assets to or on
behalf of those Affiliates, (c) merge or consolidate with or purchase or acquire
assets from those Affiliates, or (d) pay management fees to or on behalf of
those Affiliates.
Page 8-2
8.14. RECOURSE SERVICING CONTRACTS
Acquire or enter into Servicing Contracts under which Borrower must repurchase
or indemnify the holder of the Mortgage Loans as a result of defaults on the
Mortgage Loans at any time during the term of those Mortgage Loans.
END OF ARTICLE 8
Page 8-3
9. SPECIAL REPRESENTATIONS, WARRANTIES AND COVENANTS CONCERNING
COLLATERAL
9.1. SPECIAL REPRESENTATIONS AND WARRANTIES CONCERNING ELIGIBILITY AS
SELLER/SERVICER OF MORTGAGE LOANS
Borrower represents and warrants to Lender, as of the date of this Agreement and
as of the date of each Warehousing Advance Request and the making of each
Warehousing Advance, that Borrower is approved and qualified and in good
standing as a lender, seller/servicer or issuer, as set forth below, and meets
all requirements applicable to its status as:
9.1 (a) A HUD-approved mortgagee, eligible to originate, purchase, hold, sell
and service FHA fully insured Mortgage Loans.
9.1 (b) A Xxxxxx Xxx-approved seller/servicer of Mortgage Loans, eligible to
originate, purchase, hold, sell and service Mortgage Loans to be sold
to Xxxxxx Mae.
9.1 (c) A Xxxxxxx Mac-approved seller of Mortgage Loans, eligible to
originate, purchase, hold and sell Mortgage Loans to be sold to
Xxxxxxx Mac.
9.1 (d) A VA-approved mortgagee and a lender in good-standing under the VA
loan guarantee program, eligible to originate, purchase, hold, sell
and service VA-guaranteed Mortgage Loans.
9.1 (e) A Lender-approved seller/servicer of Mortgage Loans, eligible to
originate, purchase, hold, sell and service Mortgage Loans to be sold
to Lender.
9.2. SPECIAL REPRESENTATIONS AND WARRANTIES CONCERNING WAREHOUSING
COLLATERAL
Borrower represents and warrants to Lender, as of the date of this Agreement and
as of the date of each Warehousing Advance Request and the making of each
Warehousing Advance, that:
9.2 (a) Borrower has not selected the Collateral in a manner so as to affect
adversely Lender's interests.
9.2 (b) Borrower is the legal and equitable owner and holder, free and
clear of all Liens (other than Liens granted under this Agreement), of
the Pledged Loans and the Pledged Securities. All Pledged Loans,
Pledged Securities and related Purchase Commitments have been duly
authorized and validly issued to Borrower, and all of the foregoing
items of Collateral comply with all of the requirements of this
Agreement, and have been and will continue to be validly pledged or
assigned to Lender, subject to no other Liens.
9.2 (c) Borrower has, and will continue to have, the full right, power and
authority to pledge the Collateral pledged and to be pledged by it
under this Agreement.
9.2 (d) Each Mortgage Loan and each related document included in the
Pledged Loans (1) has been duly executed and delivered by the parties
to that Mortgage Loan and that related document, (2) has been made in
compliance with all applicable laws, rules and regulations (including
all laws, rules and regulations relating to usury), (3) is and will
continue to be a legal, valid and binding obligation, enforceable in
accordance with its
Page 9-1
terms, without setoff, counterclaim or defense in favor of the
mortgagor under the Mortgage Loan or any other obligor on the Mortgage
Note and (4) has not been modified, amended or any requirements of
which waived, except in writing that is part of the Collateral
Documents.
9.2 (e) Each Pledged Loan is secured by a Mortgage on real property and
improvements located in one of the states of the United States or the
District of Columbia.
9.2 (f) Unless Third Party Originated Loans are permitted, each Pledged Loan
has been closed or will be closed and funded with the Warehousing
Advance made against it.
9.2 (g) Except for open-ended Second Mortgage Loans, each Mortgage Loan has
been fully advanced in the face amount of its Mortgage Note.
9.2 (h) Each First Mortgage Loan is secured by a First Mortgage on the real
property and improvements described in or covered by that Mortgage.
9.2 (i) Each First Mortgage Loan has or will have a title insurance
policy, in ALTA form or equivalent, from a recognized title insurance
company, insuring the priority of the Lien of the Mortgage and meeting
the usual requirements of Investors purchasing those Mortgage Loans.
9.2 (j) Each Second Mortgage Loan is secured by a Second Mortgage on the real
property and improvements described in or covered by that Mortgage.
9.2 (k) To the extent required by the related Purchase Commitment or by
Investors generally for similar Mortgage Loans, each Second Mortgage
Loan has or will have a title insurance policy, in ALTA form or
equivalent, from a recognized title insurance company, insuring the
priority of the Lien of the Mortgage and meeting the usual
requirements of Investors purchasing those Mortgage Loans.
9.2 (l) Each Mortgage Loan has been evaluated or appraised in accordance with
Title XI of FIRREA.
9.2 (m) The Mortgage Note for each Pledged Loan is (1) payable or endorsed
to the order of Borrower, (2) an "instrument" within the meaning of
Article 9 of the Uniform Commercial Code of all applicable
jurisdictions and (3) is denominated and payable in United States
dollars.
9.2 (n) No default has existed for 60 days or more under any Mortgage Loan
included in the Pledged Loans.
9.2 (o) No party to a Mortgage Loan or any related document is in
violation of any applicable law, rule or regulation that would impair
the collectibility of the Mortgage Loan or the performance by the
mortgagor or any other obligor of its obligations under the Mortgage
Note or any related document.
9.2 (p) All fire and casualty policies covering the real property and
improvements encumbered by each Mortgage included in the Pledged Loans
(1) name and will continue to name Borrower and its successors and
assigns as the insured under a standard mortgagee clause, (2) are and
will continue to be in full force and effect and (3) afford and will
continue to afford insurance against fire and such other risks as are
usually insured against in the broad form of extended coverage
insurance generally available.
Page 9-2
9.2 (q) Pledged Loans secured by real property and improvements located in
a special flood hazard area designated as such by the Director of the
Federal Emergency Management Agency are and will continue to be
covered by special flood insurance under the National Flood Insurance
Program.
9.2 (r) Each Pledged Loan against which a Warehousing Advance is made on
the basis of a Purchase Commitment meets all of the requirements of
that Purchase Commitment, and each Pledged Security against which a
Warehousing Advance is outstanding meets all of the requirements of
the related Purchase Commitment.
9.2 (s) Pledged Loans that are intended to be exchanged for Agency
Securities comply or, prior to the issuance of the Agency Securities
will comply, with the requirements of any governmental
instrumentality, department or agency issuing or guaranteeing the
Agency Securities.
9.2 (t) Pledged Loans that are intended to be used in the formation of
Mortgage-backed Securities (other than Agency Securities) comply with
the requirements of the issuer of the Mortgage-backed Securities (or
its sponsor) and of the Rating Agencies.
9.2 (u) The original assignments of Mortgage delivered to Lender for each
Pledged Loan are in recordable form and comply with all applicable
laws and regulations governing the filing and recording of such
documents.
9.2 (v) None of the mortgagors, guarantors or other obligors of any
Pledged Loan is a Person named in any Restriction List and to whom the
provision of financial services is prohibited or otherwise restricted
by applicable law.
9.2 (w) No Pledged Loan delivered to Lender is a Discontinued Loan.
9.2 (x) Each Pledged Loan secured by real property to which a Manufactured
Home is affixed will create a valid Lien on that Manufactured Home
that will have priority over any other Lien on the Manufactured Home,
whether or not arising under applicable real property law.
9.3. SPECIAL AFFIRMATIVE COVENANTS CONCERNING WAREHOUSING COLLATERAL
As long as the Warehousing Commitment is outstanding or there remain any
Obligations to be paid or performed under this Agreement or under any other Loan
Document, Borrower must:
9.3 (a) Warrant and defend the right, title and interest of Lender in and to
the Collateral against the claims and demands of all Persons.
9.3 (b) Service or cause to be serviced all Pledged Loans in accordance with
the standard requirements of the issuers of Purchase Commitments
covering them and all applicable HUD, Xxxxxx Xxx and Xxxxxxx Mac
requirements, including taking all actions necessary to enforce the
obligations of the obligors under such Mortgage Loans. 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 them. Hold all escrow
funds collected in respect of Pledged Loans and Mortgage Loans backing
Pledged Securities in trust, without commingling the same with
non-custodial funds, and apply them for the purposes for which those
funds were collected.
Page 9-3
9.3 (c) Execute and deliver to Lender with respect to the Collateral those
further instruments of sale, pledge, assignment or transfer, and those
powers of attorney, as required by Lender, and do and perform all
matters and things necessary or desirable to be done or observed, for
the purpose of effectively creating, maintaining and preserving the
security and benefits intended to be afforded Lender under this
Agreement.
9.3 (d) Notify Lender within 2 Business Days of any default under, or of
the termination of, any Purchase Commitment relating to any Pledged
Loan, Eligible Mortgage Pool, or Pledged Security.
9.3 (e) Promptly comply in all respects with the terms and conditions of
all Purchase Commitments, and all extensions, renewals and
modifications or substitutions of or to all Purchase Commitments.
Deliver or cause to be delivered to the Investor the Pledged Loans and
Pledged Securities to be sold under each Purchase Commitment not later
than the mandatory delivery date of the Pledged Loans or Pledged
Securities under the Purchase Commitment.
9.3 (f) Compare the names of every mortgagor, guarantor and other obligor
of every Mortgage Loan, together with appropriate identifying
information concerning those Persons obtained by Borrower, against
every Restriction List, and make certain that none of the mortgagors,
guarantors or other obligors of any Mortgage Loan is a Person named in
any Restriction List and to whom the provision of financial services
is prohibited or otherwise restricted by applicable law.
9.3 (g) Prior to the origination by Borrower of any Mortgage Loans for
sale to Xxxxxx Xxx, enter into an agreement among Borrower, Lender and
Xxxxxx Mae, pursuant to which Xxxxxx Xxx agrees to send all cash
proceeds of Mortgage Loans sold by Borrower to Xxxxxx Mae to the Cash
Collateral Account.
9.3 (h) Prior to the origination by Borrower of any Mortgage Loan to be
registered on the MERS system, obtain the approval of Lender and enter
into an Electronic Tracking Agreement.
9.4. SPECIAL NEGATIVE COVENANTS CONCERNING WAREHOUSING COLLATERAL
As long as the Warehousing Commitment is outstanding or there remain any
Obligations to be paid or performed, Borrower must not, either directly or
indirectly, without the prior written consent of Lender:
9.4 (a) Amend or modify, or waive any of the terms and conditions of, or
settle or compromise any claim in respect of, any Pledged Loans or
Pledged Securities.
9.4 (b) Sell, transfer or assign, or grant any option with respect to, or
pledge (except under this Agreement and, with respect to each Pledged
Loan or Pledged Security, the related Purchase Commitment) any of the
Collateral or any interest in any of the Collateral.
9.4 (c) Make any compromise, adjustment or settlement in respect of any of the
Collateral or accept other than cash in payment or liquidation of the
Collateral.
END OF ARTICLE 9
Page 9-4
10. DEFAULTS; REMEDIES
10.1. EVENTS OF DEFAULT
The occurrence of any of the following is an event of default ("EVENT OF
DEFAULT"):
10.1 (a) Borrower fails to pay the principal of any Warehousing Advance
when due, whether at stated maturity, by acceleration, or otherwise;
or fails to pay any installment of interest on any Warehousing Advance
within 9 days after the date of Lender's invoice or, if applicable,
within 2 days after the date of Lender's account analysis statement;
or fails to pay, within any applicable grace period, any other amount
due under this Agreement or any other Obligation of Borrower to
Lender.
10.1 (b) Borrower or any of its Subsidiaries fails to pay, or defaults in
the payment of any principal or interest on, any other indebtedness or
any contingent obligation within any applicable grace period; breaches
or defaults with respect to any other material term of any other
indebtedness or of any loan agreement, mortgage, indenture or other
agreement relating to that indebtedness, if the effect of that breach
or default is to cause, or to permit the holder or holders of that
indebtedness (or a trustee on behalf of such holder or holders) to
cause, indebtedness of Borrower or its Subsidiaries in the aggregate
amount of $50,000 or more to become or be declared due before its
stated maturity (upon the giving or receiving of notice, lapse of
time, both, or otherwise).
10.1 (c) Borrower fails to perform or comply with any term or condition
applicable to it contained in Sections 7.4 or 7.14 or in any Section
of Article 8.
10.1 (d) Any representation or warranty made or deemed made by Borrower
under this Agreement, in any other Loan Document or in any written
statement or certificate at any time given by Borrower, other than the
representations and warranties set forth in Article 9 with respect to
specific Pledged Loans, is inaccurate or incomplete in any material
respect on the date as of which it is made or deemed made.
10.1 (e) Borrower defaults in the performance of or compliance with any
term contained in this Agreement or any other Loan Document other than
those referred to in Sections 10.1(a), 10.1(c) or 10.1(d) and such
default has not been remedied or waived within 30 days after the
earliest of (1) receipt by Borrower of Notice from Lender of that
default, (2) receipt by Lender of Notice from Borrower of that default
or (3) the date Borrower should have notified Lender of that default
under Section 7.7(c) or 7.7(d).
10.1 (f) An "event of default" (however defined) occurs under any agreement
between Borrower and Lender other than this Agreement and the other
Loan Documents.
10.1 (g) A case (whether voluntary or involuntary) is filed by or against
Borrower or any Subsidiary of Borrower under any applicable
bankruptcy, insolvency or other similar federal or state law; or a
court of competent jurisdiction appoints a receiver (interim or
permanent), liquidator, sequestrator, trustee, custodian or other
officer having similar powers over Borrower or any Subsidiary of
Borrower, or over all or a substantial part of their respective
properties or assets; or Borrower or any Subsidiary of Borrower (1)
consents to the appointment of or possession by a receiver (interim or
permanent), liquidator, sequestrator, trustee, custodian or other
officer having similar powers over Borrower or any Subsidiary of
Borrower, or over all or a substantial part of their
10-1
respectiveproperties or assets, (2) makes an assignment for the
benefit of creditors, or (3) fails, or admits in writing its
inability, to pay its debts as those debts become due.
10.1 (h) Borrower fails to repurchase Mortgage Loans for which Borrower has
determined it is legally obligated to repurchase pursuant to the
applicable written agreements with respect to any such Mortgage Loans,
if such obligations in the aggregate exceed $500,000.
10.1 (i) Any money judgment, writ or warrant of attachment or similar
process involving an amount in excess of $250,000 is entered or filed
against Borrower or any of its Subsidiaries or any of their respective
assets and remains undischarged, unvacated, unbonded or unstayed for a
period of 30 days or 5 days before the date of any proposed sale under
that money judgment, writ or warrant of attachment or similar process.
10.1 (j) Any order, judgment or decree decreeing the dissolution of
Borrower is entered and remains undischarged or unstayed for a period
of 20 days.
10.1 (k) Borrower purports to disavow the Obligations or contests the
validity or enforceability of any Loan Document.
10.1 (l) Lender's security interest on any portion of the Collateral
becomes unenforceable or otherwise impaired.
10.1 (m) A material adverse change occurs in Borrower's financial
condition, business, properties, operations or prospects, or in
Borrower's ability to repay the Obligations.
10.1 (n) Any Lien for any taxes, assessments or other governmental charges
(1) is filed against Borrower or any of its property, or is otherwise
enforced against Borrower or any of its property, or (2) obtains
priority that is equal to or greater than the priority of Lender's
security interest in any of the Collateral.
10.1 (o) Xxxxx Xxxxx ceases to be the Chief Operating Officer of Borrower,
unless a successor acceptable to Lender in its sole discretion has been
appointed Chief Operating Officer of Borrower within 60 days of the
date on which Xxxxx Xxxxx ceases to be the Chief Operating Officer of
Borrower.
10.2. REMEDIES
10.2 (a) If an Event of Default described in Section 10.1(g) occurs with
respect to Borrower, the Warehousing Commitment will automatically
terminate and the unpaid principal amount of and accrued interest on
the Warehousing Note and all other Obligations will automatically
become due and payable, without presentment, demand or other Notice or
requirements of any kind, all of which Borrower expressly waives.
10.2 (b) If any other Event of Default occurs, Lender may, by Notice to
Borrower, terminate the Warehousing Commitment and declare the
Obligations to be immediately due and payable.
10.2 (c) If any Event of Default occurs, Lender may also take any of the
following actions:
(1) Foreclose upon or otherwise enforce its security interest in
any Lien on the Collateral to secure all payments and
performance of the Obligations in any manner permitted by law
or provided for in the Loan Documents.
Page 10-2
(2) Notify all obligors under any of the Collateral that the
Collateral has been assigned to Lender (or to another Person
designated by Lender) and that all payments on that Collateral
are to be made directly to Lender (or such other Person);
settle, compromise or release, in whole or in part, any
amounts any obligor or Investor owes on any of the Collateral
on terms acceptable to Lender; enforce payment and prosecute
any action or proceeding involving any of the Collateral; and
where any Collateral is in default, foreclose on and enforce
any Liens securing that Collateral in any manner permitted by
law and sell any property acquired as a result of those
enforcement actions.
(3) Prepare and submit for filing Uniform Commercial Code
amendment statements evidencing the assignment to Lender or
its designee of any Uniform Commercial Code financing
statement filed in connection with any item of Collateral.
(4) Act, or contract with a third party to act, at Borrower's
expense, as servicer or subservicer of Collateral requiring
servicing, and perform all obligations required under any
Collateral, including Servicing Contracts and Purchase
Commitments.
(5) Require Borrower to assemble and make available to Lender the
Collateral and all related books and records at a place
designated by Lender.
(6) Enter onto property where any Collateral or related books and
records are located and take possession of those items with or
without judicial process; and obtain access to Borrower's data
processing equipment, computer hardware and software relating
to the Collateral and use all of the foregoing and the
information contained in the foregoing in any manner Lender
deems necessary for the purpose of effectuating its rights
under this Agreement and any other Loan Document.
(7) Before the disposition of the Collateral, prepare it for
disposition in any manner and to the extent Lender deems
appropriate.
(8) Exercise all rights and remedies of a secured creditor under
the Uniform Commercial Code of Minnesota or other applicable
law, including selling or otherwise disposing of all or any
portion of the Collateral at one or more public or private
sales, whether or not the Collateral is present at the place
of sale, for cash or credit or future delivery, on terms and
conditions and in the manner as Lender may determine,
including sale under any applicable Purchase Commitment.
Borrower waives any right it may have to prior notice of the
sale of all or any portion of the Collateral to the extent
allowed by applicable law. If notice is required under
applicable law, Lender will give Borrower not less than 10
days' notice of any public sale or of the date after which any
private sale may be held. Borrower agrees that 10 days' notice
is reasonable notice. Lender may, without notice or
publication, adjourn any public or private sale one or more
times by announcement at the time and place fixed for the
sale, and the sale may be held at any time or place announced
at the adjournment. In the case of a sale of all or any
portion of the Collateral on credit or for future delivery,
the Collateral sold on those terms may be retained by Lender
until the purchaser pays the selling price or takes possession
of the Collateral. Lender has no liability to Borrower if a
purchaser fails to pay for or take possession of Collateral
sold on those terms, and in the case of any such failure,
Lender may sell the Collateral again upon notice complying
with this Section.
Page 10-3
(9) Instead of or in conjunction with exercising the power of sale
authorized by Section 10.2(c)(8), Lender may proceed by suit
at law or in equity to collect all amounts due on the
Collateral, or to foreclose Lender's Lien on and sell all or
any portion of the Collateral pursuant to a judgment or decree
of a court of competent jurisdiction.
(10) Proceed against Borrower on the Warehousing Note.
(11) Retain all excess proceeds from the sale or other disposition
of the Collateral, and apply them to the payment of the
Obligations under Section 10.3.
10.2 (d) Lender will incur no liability as a result of the commercially
reasonable sale or other disposition of all or any portion of the
Collateral at any public or private sale or other disposition.
Borrower waives (to the extent permitted by law) any claims it may
have against Lender arising by reason of the fact that the price at
which the Collateral may have been sold at a private sale was less
than the price that Lender might have obtained at a public sale, or
was less than the aggregate amount of the outstanding Warehousing
Advances, accrued and unpaid interest on those Warehousing Advances,
and unpaid fees, even if Lender accepts the first offer received and
does not offer the Collateral to more than one offeree. Borrower
agrees that any sale of Collateral under the terms of a Purchase
Commitment, or any other disposition of Collateral arranged by
Borrower, whether before or after the occurrence of an Event of
Default, will be deemed to have been made in a commercially reasonable
manner.
10.2 (e) Borrower acknowledges that Mortgage Loans are collateral of a type
that is the subject of widely distributed standard price quotations
and that Mortgage-backed Securities are collateral of a type that is
customarily sold on a recognized market. Borrower waives any right it
may have to prior notice of the sale of Pledged Securities, and agrees
that Lender may purchase Pledged Loans and Pledged Securities at a
private sale of such Collateral.
10.2 (f) Borrower specifically waives and releases (to the extent permitted
by law) any equity or right of redemption, stay or appraisal that
Borrower has or may have under any rule of law or statute now existing
or adopted after the date of this Agreement, and any right to require
Lender to (1) proceed against any Person, (2) proceed against or
exhaust any of the Collateral or pursue its rights and remedies
against the Collateral in any particular order, or (3) pursue any
other remedy within its power. Lender is not required to take any
action to preserve any rights of Borrower against holders of mortgages
having priority to the Lien of any Mortgage or Security Agreement
included in the Collateral or to preserve Borrower's rights against
other prior parties.
10.2 (g) Lender may, but is not obligated to, advance any sums or do any
act or thing necessary to uphold or enforce the Lien and priority of,
or the security intended to be afforded by, any Mortgage or Security
Agreement included in the Collateral, including payment of delinquent
taxes or assessments and insurance premiums. All advances, charges,
costs and expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by Lender in exercising any right,
power or remedy conferred by this Agreement, or in the enforcement of
this Agreement, together with interest on those amounts at the Default
Rate, from the time paid by Lender until repaid by Borrower, are
deemed to be principal outstanding under this Agreement and the
Warehousing Note.
10.2 (h) No failure or delay on the part of Lender to exercise any right,
power or remedy provided in this Agreement or under any other Loan
Document, at law or in equity, will operate as a waiver of that right,
power or remedy. No single or partial exercise by Lender of any
Page 10-4
right, power or remedy provided under this Agreement or any other Loan
Document, at law or in equity, precludes any other or further exercise
of that right, power, or remedy by Lender, or Lender's exercise of any
other right, power or remedy. Without limiting the foregoing, Borrower
waives all defenses based on the statute of limitations to the extent
permitted by law. The remedies provided in this Agreement and the
other Loan Documents are cumulative and are not exclusive of any
remedies provided at law or in equity.
10.2 (i) Borrower grants Lender a license or other right to use, without
charge, Borrower's computer programs, other programs, labels, patents,
copyrights, rights of use of any name, trade secrets, trade names,
trademarks, service marks and advertising matter, or any property of a
similar nature, as it pertains to the Collateral, in advertising for
sale and selling any of the Collateral and Borrower's rights under all
licenses and all other agreements related to the foregoing inure to
Lender's benefit until the Obligations are paid in full.
10.3. APPLICATION OF PROCEEDS
Lender may apply the proceeds of any sale, disposition or other enforcement of
Lender's Lien on all or any portion of the Collateral to the payment of the
Obligations in the order Lender determines in its sole discretion. From and
after the indefeasible payment to Lender of all of the Obligations, any
remaining proceeds of the Collateral will be paid to Borrower, or to its
successors or assigns, or as a court of competent jurisdiction may direct. If
the proceeds of any sale, disposition or other enforcement of the Collateral are
insufficient to cover the costs and expenses of that sale, disposition or other
enforcement and payment in full of all Obligations, Borrower is liable for the
deficiency.
10.4. LENDER APPOINTED ATTORNEY-IN-FACT
Borrower appoints Lender its attorney-in-fact, with full power of substitution,
for the purpose of carrying out the provisions of this Agreement, the
Warehousing Note and the other Loan Documents and taking any action and
executing any instruments that Lender deems necessary or advisable to accomplish
that purpose. Borrower's appointment of Lender as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, Lender may give notice of its Lien on the Collateral to any Person,
either in Borrower's name or in its own name, endorse all Pledged Loans or
Pledged Securities payable to the order of Borrower, change or cause to be
changed the book-entry registration or name of subscriber or Investor on any
Pledged Security, prepare and submit for filing Uniform Commercial Code
amendment statements with respect to any Uniform Commercial Code financing
statements filed in connection with any item of Collateral or receive, endorse
and collect all checks made payable to the order of Borrower representing
payment on account of the principal of or interest on, or the proceeds of sale
of, any of the Pledged Loans or Pledged Securities and give full discharge for
those transactions.
10.5. RIGHT OF SET-OFF
If Borrower defaults in the payment of any Obligation or in the performance of
any of its duties under the Loan Documents, Lender may, without Notice to or
demand on Borrower (which Notice or demand Borrower expressly waives), set-off,
appropriate or apply any property of Borrower held at any time by Lender, or any
indebtedness at any time owed by Lender to or for the account of Borrower,
against the Obligations, whether or not those Obligations have matured.
Page 10-5
END OF ARTICLE 10
Page 10-6
1. MISCELLANEOUS
11.1. NOTICES
Except where telephonic or facsimile notice is expressly authorized by this
Agreement, all communications required or permitted to be given or made under
this Agreement ("NOTICES") must be in writing and must be sent by manual
delivery, overnight courier or United States mail (postage prepaid), addressed
as follows (or at such other address as may be designated by it in a Notice to
the other):
If to Borrower: MORTGAGEIT, INC.
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Chief Operating Officer
Facsimile: (000) 000-0000
If to Lender: Residential Funding Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Director
Facsimile: (000) 000-0000
All periods of Notice will be measured from the date of delivery if delivered
manually or by facsimile, from the first Business Day after the date of sending
if sent by overnight courier or from 4 days after the date of mailing if sent by
United States mail, except that Notices to Lender under Article 2 and Section
3.3(f) shall be deemed to have been given only when actually received by Lender.
Borrower authorizes Lender to accept Borrower's bailee pledge agreements,
Warehousing Advance Requests, shipping requests, wire transfer instructions and
security delivery instructions transmitted to Lender by facsimile or RFConnects
Delivery, and those documents, when transmitted to Lender by facsimile or by
RFConnects Delivery, have the same force and effect as the originals.
11.2. REIMBURSEMENT OF EXPENSES; INDEMNITY
Borrower must: (a) pay Lender a document production fee in connection with the
preparation and negotiation of this Agreement in an aggregate amount not to
exceed $25,000 at any time; (b) pay such additional documentation production
fees as Lender may require and all out-of-pocket costs and expenses of Lender,
including reasonable fees, service charges and disbursements of counsel to
Lender (including allocated costs of internal counsel), in connection with the
amendment, enforcement and administration of this Agreement, the Warehousing
Note, and other Loan Documents, the making, repayment and payment of interest on
the Warehousing Advances and the payment of all other Obligations under Loan
Documents; (c) indemnify, pay, and hold harmless Lender and any other holder of
the Warehousing Note from and against, all present and future stamp, documentary
and other similar taxes with respect to the foregoing matters and save Lender
and any other holder of the Warehousing Note harmless from and against all
liabilities with respect to or resulting from any delay or omission to pay such
taxes; and (d) indemnify, pay and hold harmless Lender and all of its
Affiliates, officers, directors, employees or agents and any subsequent holder
of the Warehousing Note (collectively called the "INDEMNITEES") from and against
all liabilities, obligations, losses, damages, penalties, judgments, suits,
costs, expenses and disbursements of every kind or nature (including the
reasonable fees and disbursements of counsel to the Indemnitees (including
allocated costs of internal counsel) in connection with any investigative,
administrative or judicial proceeding, whether or not the
Page 11-1
Indemnitees have been designated as parties to such proceeding) that may be
imposed upon, incurred by or asserted against such Indemnitees in any manner
relating to or arising out of this Agreement, the Warehousing Note, or any other
Loan Document or any of the transactions contemplated by this Agreement, the
Warehousing Note and the other Loan Documents, including against all
liabilities, obligations, losses, damages, penalties, judgments, suits, costs,
expenses and disbursements of every kind or nature (including the reasonable
fees and disbursements of counsel to the Indemnitees (including allocated costs
of internal counsel) in connection with any investigative, administrative or
judicial proceeding, whether or not the Indemnitees have been designated as
parties to such proceeding) arising from any breach of Sections 9.2(v) or 9.3(f)
or the making of any Mortgage Loan in which any mortgagor, guarantor or other
obligor is a Person named in any Restriction List and to whom the provision of
financial services is prohibited or otherwise restricted by applicable law
("INDEMNIFIED LIABILITIES"), except that Borrower has no obligation under this
Agreement with respect to Indemnified Liabilities arising from the gross
negligence or willful misconduct of any such Indemnitees. To the extent that the
undertaking to indemnify, pay and hold harmless as set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, Borrower must contribute the maximum portion that it is permitted to pay
and satisfy under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by the Indemnitees or any of them. The
agreement of Borrower contained in this Article survives the expiration or
termination of this Agreement and the payment in full of the Warehousing Note.
Attorneys' fees and disbursements incurred in enforcing, or on appeal from, a
judgment under this Agreement are recoverable separately from and in addition to
any other amount included in such judgment, and this clause is intended to be
severable from the other provisions of this Agreement and to survive and not be
merged into such judgment.
11.3. FINANCIAL INFORMATION
All financial statements and reports furnished to Lender under this Agreement
must be prepared in accordance with GAAP, applied on a basis consistent with
that applied in preparing the financial statements as at the end of and for
Borrower's most recent fiscal year (except to the extent otherwise required to
conform to good accounting practice).
11.4. TERMS BINDING UPON SUCCESSORS; SURVIVAL OF REPRESENTATIONS
The terms and provisions of this Agreement are binding upon and inure to the
benefit of Borrower, Lender and their respective successors and assigns. All of
Borrower's representations, warranties, covenants and agreements survive the
making of any Warehousing Advance, and except where a longer period is set forth
in this Agreement, remain effective for as long as the Warehousing Commitment is
outstanding or there remain any Obligations to be paid or performed.
11.5. ASSIGNMENT
Borrower cannot assign this Agreement. Lender may at any time, without Notice to
or the consent of Borrower, transfer or assign, in whole or in part, its
interest in this Agreement and the Warehousing Note along with Lender's security
interest in any of the Collateral, and any assignee of Lender may enforce this
Agreement, the Warehousing Note and its security interest in the Collateral
assigned.
Page 11-2
11.6. AMENDMENTS
Except as otherwise provided in this Agreement, this Agreement may not be
amended, modified or supplemented unless the amendment, modification or
supplement is set forth in writing signed by both Borrower and Lender.
11.7. GOVERNING LAW
This Agreement and the other Loan Documents are governed by the laws of the
State of Minnesota, without reference to its principles of conflicts of laws.
11.8. PARTICIPATIONS
Lender may at any time sell, assign or grant participations in, or otherwise
transfer to any other Person ("PARTICIPANT"), all or part of the Obligations.
Without limiting Lender's exclusive right to collect and enforce the
Obligations, Borrower agrees that each participation will give rise to a
debtor-creditor relationship between Borrower and the Participant, and Borrower
authorizes each Participant, upon the occurrence of an Event of Default, to
proceed directly by right of setoff, banker's lien, or otherwise, against any
assets of Borrower that may be held by that Participant. Borrower authorizes
Lender to disclose to prospective and actual Participants all information in
Lender's possession concerning Borrower, this Agreement and the Collateral.
11.9. RELATIONSHIP OF THE PARTIES
This Agreement provides for the making and repayment of Warehousing Advances by
Lender (in its capacity as a lender) and Borrower (in its capacity as a
borrower), for the payment of interest on those Warehousing Advances and for the
payment of certain fees by Borrower to Lender. The relationship between Lender
and Borrower is limited to that of creditor and secured party on the part of
Lender and of debtor on the part of Borrower. The provisions of this Agreement
and the other Loan Documents for compliance with financial covenants and the
delivery of financial statements and other operating reports are intended solely
for the benefit of Lender to protect its interest as a creditor and secured
party. Nothing in this Agreement creates or may be construed as permitting or
obligating Lender to act as a financial or business advisor or consultant to
Borrower, as permitting or obligating Lender to control Borrower or to conduct
Borrower's operations, as creating any fiduciary obligation on the part of
Lender to Borrower, or as creating any joint venture, agency, partnership or
other relationship between Lender and Borrower other than as explicitly and
specifically stated in the Loan Documents. Borrower acknowledges that it has had
the opportunity to obtain the advice of experienced counsel of its own choice in
connection with the negotiation and execution of the Loan Documents and to
obtain the advice of that counsel with respect to all matters contained in the
Loan Documents, including the waivers of jury trial and of punitive,
consequential, special or indirect damages contained in Sections 11.16 and
11.17, respectively. Borrower further acknowledges that it is experienced with
respect to financial and credit matters and has made its own independent
decisions to apply to Lender for credit and to execute and deliver this
Agreement.
11.10. SEVERABILITY
If any provision of this Agreement is declared to be illegal or unenforceable in
any respect, that provision is null and void and of no force and effect to the
extent of the illegality or unenforceability, and does not affect the validity
or enforceability of any other provision of the Agreement.
Page 11-3
11.11. CONSENT TO CREDIT REFERENCES
Borrower consents to the disclosure of information regarding Borrower and its
Subsidiaries and their relationships with Lender to Persons making credit
inquiries to Lender. This consent is revocable by Borrower at any time upon
Notice to Lender as provided in Section 11.1.
11.12. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which will
be deemed an original, but all of which together constitute but one and the same
instrument.
11.13. HEADINGS/CAPTIONS
The captions or headings in this Agreement and the other Loan Documents are for
convenience only and in no way define, limit or describe the scope or intent of
any provision of this Agreement or any other Loan Document.
11.14. ENTIRE AGREEMENT
This Agreement, the Warehousing Note and the other Loan Documents represent the
final agreement among the parties with respect to their subject matter, and may
not be contradicted by evidence of prior or contemporaneous oral agreements
among the parties. There are no oral agreements among the parties with respect
to the subject matter of this Agreement, the Warehousing Note and the other Loan
Documents.
11.15. CONSENT TO JURISDICTION
AT THE OPTION OF LENDER, THIS AGREEMENT, THE WAREHOUSING NOTE AND THE OTHER LOAN
DOCUMENTS MAY BE ENFORCED IN ANY STATE OR FEDERAL COURT WITHIN THE STATE OF
MINNESOTA. BORROWER CONSENTS TO THE JURISDICTION AND VENUE OF THOSE COURTS, AND
WAIVES ANY OBJECTION TO THE JURISDICTION OR VENUE OF THOSE COURTS, INCLUDING THE
OBJECTION THAT VENUE IN THOSE COURTS IS NOT CONVENIENT. ANY SUCH SUIT, ACTION OR
PROCEEDING MAY BE COMMENCED AND INSTITUTED BY SERVICE OF PROCESS UPON BORROWER
BY FIRST CLASS REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED
TO BORROWER AT ITS ADDRESS LAST KNOWN TO LENDER. BORROWER'S CONSENT AND
AGREEMENT UNDER THIS SECTION DOES NOT AFFECT LENDER'S RIGHT TO ACCOMPLISH
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWER IN ANY OTHER JURISDICTION OR
COURT. IN THE EVENT BORROWER COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR
VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE
RELATIONSHIP CREATED BY THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, LENDER AT
ITS OPTION MAY HAVE THE CASE TRANSFERRED TO A STATE OR FEDERAL COURT WITHIN THE
STATE OF MINNESOTA OR, IF A TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE
LAW, MAY HAVE BORROWER'S ACTION DISMISSED WITHOUT PREJUDICE.
11.16. WAIVER OF JURY TRIAL
BORROWER AND LENDER EACH PROMISES AND AGREES NOT TO ELECT A TRIAL BY JURY OF ANY
ISSUE TRIABLE OF RIGHT BY A JURY, AND FULLY WAIVES ANY RIGHT TO TRIAL BY JURY TO
THE EXTENT THAT ANY SUCH RIGHT NOW EXISTS OR ARISES AFTER THE DATE OF THIS
AGREEMENT. THIS WAIVER OF THE RIGHT TO TRIAL BY JURY IS
Page 11-4
SEPARATELY GIVEN, KNOWINGLY AND VOLUNTARILY, BY BORROWER AND LENDER, AND IS
INTENDED TO ENCOMPASS EACH INSTANCE AND EACH ISSUE FOR WHICH THE RIGHT TO TRIAL
BY JURY WOULD OTHERWISE APPLY. LENDER AND BORROWER ARE EACH AUTHORIZED AND
DIRECTED TO SUBMIT THIS AGREEMENT TO ANY COURT HAVING JURISDICTION OVER THE
SUBJECT MATTER AND THE PARTIES TO THIS AGREEMENT AS CONCLUSIVE EVIDENCE OF THIS
WAIVER OF THE RIGHT TO TRIAL BY JURY. FURTHER, BORROWER AND LENDER EACH
CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE OTHER PARTY, INCLUDING THE
OTHER PARTY'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO ANY OF ITS
REPRESENTATIVES OR AGENTS THAT THE OTHER PARTY WILL NOT SEEK TO ENFORCE THIS
WAIVER OF RIGHT TO TRIAL BY JURY.
11.17. WAIVER OF PUNITIVE, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES
BORROWER WAIVES ANY RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL
OR INDIRECT DAMAGES FROM LENDER OR ANY OF LENDER'S AFFILIATES, OFFICERS,
DIRECTORS, EMPLOYEES OR AGENTS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN
ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY BORROWER AGAINST LENDER
OR ANY OF LENDER'S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS WITH
RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT. THIS WAIVER OF THE RIGHT TO SEEK PUNITIVE, CONSEQUENTIAL,
SPECIAL OR INDIRECT DAMAGES IS KNOWINGLY AND VOLUNTARILY GIVEN BY BORROWER, AND
IS INTENDED TO ENCOMPASS EACH INSTANCE AND EACH ISSUE FOR WHICH THE RIGHT TO
SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES WOULD OTHERWISE APPLY.
LENDER IS AUTHORIZED AND DIRECTED TO SUBMIT THIS AGREEMENT TO ANY COURT HAVING
JURISDICTION OVER THE SUBJECT MATTER AND THE PARTIES TO THIS AGREEMENT AS
CONCLUSIVE EVIDENCE OF THIS WAIVER OF THE RIGHT TO SEEK PUNITIVE, CONSEQUENTIAL,
SPECIAL OR INDIRECT DAMAGES.
END OF ARTICLE 11
Page 11-5
2. DEFINITIONS
12.1. DEFINED TERMS
Capitalized terms defined below or elsewhere in this Agreement have the
following meanings or, as applicable, the meanings given to those terms in
Exhibits to this Agreement:
"ACCRUAL BASIS" has the meaning set forth in Section 3.1(c).
"ADVANCE RATE" means, with respect to any Eligible Loan, the Advance Rate set
forth in EXHIBIT H for that type of Eligible Loan.
"AFFILIATE" means, when used with reference to any Person, (a) each Person that,
directly or indirectly, controls, is controlled by or is under common control
with, the Person referred to, (b) each Person that beneficially owns or holds,
directly or indirectly, 5% or more of any class of voting Equity Interests of
the Person referred to, (c) each Person, 5% or more of the voting Equity
Interests of which is beneficially owned or held, directly or indirectly, by the
Person referred to, and (d) each of such Person's officers, directors, joint
venturers and partners. For these purposes, the term "control" (including the
terms "controlled by" and "under common control with") means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of the Person in question.
"AGED MORTGAGE LOANS" means Mortgage Loans against which a Warehousing Advance
has been outstanding for longer than the Standard Warehouse Period, provided
that Aged Mortgage Loans are permitted for such type of Mortgage Loan.
"AGED WAREHOUSE PERIOD" means the maximum number of days a Warehouse Advance
against Aged Mortgage Loans of a particular type may remain outstanding as set
forth in EXHIBIT H.
"AGENCY SECURITY" means a Mortgage-backed Security issued or guaranteed by
Xxxxxx Xxx, Xxxxxxx Mac or Xxxxxx Mae.
"AGREEMENT" means this Warehousing Credit and Security Agreement, either as
originally executed or as it may be amended, restated, renewed or replaced.
"APPRAISED PROPERTY VALUE" means with respect to an interest in real property,
the then current fair market value of the real property and any improvements on
it as of recent date determined in accordance with Title XI of FIRREA by a
qualified appraiser who is a member of the American Institute of Real Estate
Appraisers or other group of professional appraisers.
"APPROVED CUSTODIAN" means a pool custodian or other Person that Lender deems
acceptable, in its sole discretion, to hold Mortgage Loans for inclusion in a
Mortgage Pool or to hold Mortgage Loans as agent for an Investor that has issued
a Purchase Commitment for those Mortgage Loans.
"AUDITED STATEMENT DATE" means the date of Borrower's most recent audited
financial statements (and, if applicable, Borrower's Subsidiaries, on a
consolidated basis) delivered to Lender under this Agreement.
"BANK ONE" means Bank One, National Association, or any successor bank.
Page 12-1
"BANK ONE PRIME RATE" means, as of any date of determination, the highest prime
rate quoted by Bank One and most recently published by Bloomberg L.P. If the
prime rate for Bank One is not quoted or published for any period, then during
that period the term "Bank One Prime Rate" means the highest prime rate
published in the most recent edition of The Wall Street Journal in its regular
column entitled "Money Rates."
"BORROWER" has the meaning set forth in the first paragraph of this Agreement.
"BUSINESS DAY" means any day other than Saturday, Sunday or any other day on
which national banking associations are closed for business.
"BUYDOWN" has the meaning set forth in Section 3.4.
"CALENDAR QUARTER" means the 3 month period beginning on each January 1, April
1, July 1 or October 1.
"CASH COLLATERAL ACCOUNT" means a demand deposit account maintained at the
Funding Bank in Lender's name and designated for receipt of the proceeds of the
sale or other disposition of Collateral.
"CHECK DISBURSEMENT ACCOUNT" means a demand deposit account maintained at the
Funding Bank in Borrower's name and under the control of Lender for clearing
checks written by Borrower to fund Mortgage Loans funded by Warehousing
Advances.
"CLOSING DATE" has the meaning set forth in the Recitals to this Agreement.
"COLLATERAL" has the meaning set forth in Section 4.1.
"COLLATERAL DOCUMENTS" means, with respect to each Mortgage Loan, (a) the
Mortgage Note, the Mortgage and all other documents including, if applicable,
any Security Agreement, executed in connection with or relating to the Mortgage
Loan; (b) as applicable, the original lender's ALTA Policy of Title Insurance or
its equivalent, documents evidencing the FHA Commitment to Insure, the VA
Guaranty or private mortgage insurance, the appraisal, the Regulation Z
statement, the environmental assessment, the engineering report, certificates of
casualty or hazard insurance, credit information on the maker of the Mortgage
Note, the HUD-1 or corresponding purchase advice; (c) any other document listed
in EXHIBIT B; and (d) any other document that is customarily desired for
inspection or transfer incidental to the purchase of any Mortgage Note by an
Investor or that is customarily executed by the seller of a Mortgage Note to an
Investor.
"COMMITTED PURCHASE PRICE" means for an Eligible Loan (a) the dollar price as
set forth in the Purchase Commitment or, if the price is not expressed in
dollars, the product of the Mortgage Note Amount multiplied by the price
(expressed as a percentage) as set forth in the Purchase Commitment for the
Eligible Loan, or (b) if the Eligible Loan is to be used to back an Agency
Security, an amount equal to the product of the Mortgage Note Amount multiplied
by the price (expressed as a percentage) as set forth in the Purchase Commitment
for the Agency Security.
"COMPLIANCE CERTIFICATE" means a certificate executed on behalf of Borrower by
its chief financial officer or its treasurer or by another officer approved by
Lender, substantially in the form of Exhibit E.
"CREDIT SCORE" means a mortgagor's overall consumer credit rating, represented
by a single numeric credit score using the Fair, Xxxxx consumer credit scoring
system, provided by a credit repository acceptable to Lender and the Investor
that issued the Purchase Commitment covering the related Mortgage Loan (if a
Purchase Commitment is required by EXHIBIT H).
Page 12-2
"DEBT" means (a) all indebtedness or other obligations of a Person (and, if
applicable, that Person's Subsidiaries, on a consolidated basis) that, in
accordance with GAAP, would be included in determining total liabilities as
shown on the liabilities side of a balance sheet of that Person on the date of
determination, plus (b) all indebtedness or other obligations of that Person
(and, if applicable, that Person's Subsidiaries, on a consolidated basis) for
borrowed money or for the deferred purchase price of property or services. For
purposes of calculating a Person's Debt, Subordinated Debt due more than 6
months after the Warehousing Maturity Date may be excluded from that Person's
indebtedness.
"DEFAULT" means the occurrence of any event or existence of any condition that,
but for the giving of Notice or the lapse of time, would constitute an Event of
Default.
"DEFAULT RATE" means, for any Warehousing Advance, the Interest Rate applicable
to that Warehousing Advance plus 4% per annum. If no Interest Rate is applicable
to a Warehousing Advance, "Default Rate" means, for that Warehousing Advance,
the highest Interest Rate then applicable to any outstanding Warehousing Advance
plus 4% per annum.
"DEPOSITORY BENEFIT" means the compensation received by Lender, directly or
indirectly, as a result of Borrower's maintenance of Eligible Balances with a
Designated Bank.
"DESIGNATED BANK" means any bank designated by Lender as a Designated Bank, but
only for as long as Lender has an agreement under which Lender receives
Depository Benefits from that bank.
"DESIGNATED BANK CHARGES" means any fees, interest or other charges that would
otherwise be payable to a Designated Bank in connection with Eligible Balances
maintained at the Designated Bank, including deposit insurance premiums, service
charges and any other charges that may be imposed by governmental authorities
from time to time.
"DISCONTINUED LOAN" has the meaning set forth in the GMAC-RFC Client Guide.
"EARNINGS ALLOWANCE" has the meaning set forth in Section 3.1(b).
"EARNINGS CREDIT" has the meaning set forth in Section 3.1(b).
"ELECTRONIC ADVANCE REQUEST" means an electronic transmission through RFConnects
Delivery containing the same information as EXHIBIT A to this Agreement.
"ELECTRONIC TRACKING AGREEMENT" means an Electronic Tracking Agreement, on the
form prescribed by Lender, among Borrower, Lender, MERS and MERSCORP, Inc.
"ELIGIBLE BALANCES" means all funds of or maintained by Borrower (and, if
applicable, Borrower's Subsidiaries) in demand deposit or time deposit accounts
at a Designated Bank, minus balances to support float, reserve requirements and
any other reductions that may be imposed by governmental authorities from time
to time.
"ELIGIBLE LOAN" means a Single Family Mortgage Loan that satisfies the
conditions and requirements set forth in EXHIBIT H.
"ELIGIBLE MORTGAGE POOL" means a Mortgage Pool for which (a) an Approved
Custodian has issued its initial certification, (b) there exists a Purchase
Commitment covering the Agency Security to be issued on the basis of that
certification and (c) the Agency Security will be delivered to Lender.
Page 12-3
"EQUITY INTERESTS" means all shares, interests, participations or other
equivalents, however, designated, of or in a Person (other than a natural
person), whether or not voting, including common stock, membership interests,
warrants, preferred stock, convertible debentures and all agreements,
instruments and documents convertible, in whole or in part, into any one or more
of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974 and all rules
and regulations promulgated under that statute, as amended, and any successor
statute, rules, and regulations.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated) that
is a member of a group of which Borrower is a member and that is treated as a
single employer under Section 414 of the Internal Revenue Code.
"EVENT OF DEFAULT" means any of the conditions or events set forth in Section
10.1.
"EXCESS BUYDOWN" has the meaning set forth in Section 3.4.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and all rules and
regulations promulgated under that statute, as amended, and any successor
statute, rules, and regulations.
"EXHIBIT B" means EXHIBIT B, as applicable to the type of Eligible Loan against
which a Warehousing Advance is to be made.
"FAIR MARKET VALUE" means, at any time for an Eligible Loan or a related Agency
Security (if the Eligible Loan is to be used to back an Agency Security) as of
any date of determination, (a) the Committed Purchase Price if the Eligible Loan
is covered by a Purchase Commitment from Xxxxxx Xxx or Xxxxxxx Mac or the
Eligible Loan is to be exchanged for an Agency Security and that Agency Security
is covered by a Purchase Commitment from an Investor, or (b) otherwise, the
market price for such Eligible Loan or Agency Security, determined by Lender
based on market data for similar Mortgage Loans or Agency Securities and such
other criteria as Lender deems appropriate in its sole discretion.
"XXXXXX MAE" means Xxxxxx Xxx, a corporation created under the laws of the
United States, and any successor corporation or other entity.
"FHA" means the Federal Housing Administration and any successor agency or other
entity.
"FHA MORTGAGE LOAN" means an FHA-insured Mortgage Loan included in the Pledged
Loans.
"FICA" means the Federal Insurance Contributions Act and all rules and
regulations promulgated under that statute, as amended, and any successor
statute, rules and regulations.
"FIRREA" means the Financial Institutions Reform, Recovery and Enforcement Act
of 1989 and all rules and regulations promulgated under that statute, as
amended, and any successor statute, rules, and regulations.
"FIRST MORTGAGE" means a Mortgage that constitutes a first Lien on the real
property and improvements described in or covered by that Mortgage.
"FIRST MORTGAGE LOAN" means a Mortgage Loan secured by a First Mortgage.
"XXXXXXX MAC" means the Federal Home Loan Mortgage Corporation, a corporation
created under the laws of the United States, and any successor corporation or
other entity.
Page 12-4
"FUNDING BANK" means Bank One or any other bank designated by Lender as a
Funding Bank.
"FUNDING BANK AGREEMENT" means a letter agreement on the form prescribed by
Lender between the Funding Bank and Borrower authorizing Lender's access to the
Operating Account and the Check Disbursement Account.
"GAAP" means generally accepted accounting principles set forth in opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and in statements and pronouncements of the
Financial Accounting Standards Board, or in opinions, statements or
pronouncements of any other entity approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the date
of determination.
"XXXXXX XXX" means the Government National Mortgage Association, an agency of
the United States government, and any successor agency or other entity.
"GMAC-RFC CLIENT GUIDE" means the applicable loan purchase guide issued by
Lender, as the same may be amended or replaced.
"GOVERNMENT MORTGAGE LOAN" means a closed-end First Mortgage Loan that is either
HUD/FHA insured (other than a HUD 203(K) Mortgage Loan or a Title I Mortgage
Loan) or VA guaranteed.
"HEDGING ARRANGEMENTS" means, with respect to any Person, any agreements or
other arrangements (including interest rate swap agreements, interest rate cap
agreements and forward sale agreements) entered into to protect that Person
against changes in interest rates or the market value of assets.
"HIGH LTV MORTGAGE LOAN" has the meaning set forth in EXHIBIT H.
"HUD" means the Department of Housing and Urban Development, and any successor
agency or other entity.
"HUD 203(K) MORTGAGE LOAN" means an FHA-insured closed-end First Mortgage Loan
to an individual obligor the proceeds of which will be used for the purpose of
rehabilitating and repairing the related single family property, and which
satisfies the definition of "rehabilitation loan" in 24 C.F.R. 203.50(a).
"INDEMNIFIED LIABILITIES" has the meaning set forth in Section 11.2.
"INDEMNITEES" has the meaning set forth in Section 11.2.
"INTEREST RATE" means, for any Warehousing Advance, the floating rate of
interest specified for that Warehousing Advance in EXHIBIT H.
"INTERIM STATEMENT DATE" means the date of the most recent unaudited financial
statements of Borrower (and, if applicable, Borrower's Subsidiaries, on a
consolidated basis) delivered to Lender under this Agreement.
Page 12-5
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, Title 26 of the
United States Code, and all rules, regulations and interpretations issued under
those statutory provisions, as amended, and any subsequent or successor federal
income tax law or laws, rules, regulations and interpretations.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940 and all rules
and regulations promulgated under that statute, as amended, and any successor
statute, rules, and regulations.
"INVESTOR" means Xxxxxx Mae, Xxxxxxx Mac or a financially responsible private
institution that Lender deems acceptable, in its sole discretion, to issue
Purchase Commitments with respect to a particular category of Eligible Loans.
"LENDER" has the meaning set forth in the first paragraph of this Agreement.
"LEVERAGE RATIO" means the ratio of a Person's Debt to Tangible Net Worth. For
purposes of calculating a Person's Leverage Ratio, Debt arising under Hedging
Arrangements, to the extent of assets arising under those Hedging Arrangements,
may be excluded from that Person's Debt.
"LIBOR" means, for each week, the rate of interest per annum that is equal to
the arithmetic mean of the U.S. Dollar London Interbank Offered Rates for 1
month periods of certain U.S. banks as of 11:00 a.m. (London time) on the first
Business Day of each week on which the London Interbank market is open, as
published by Bloomberg L.P. If those interest rates are not offered or published
for any period, then during that period LIBOR means the London Interbank Offered
Rate for 1 month periods as published in The Wall Street Journal in its regular
column entitled "Money Rates" on the first Business Day of each week on which
the London Interbank market is open.
"LIEN" means any lien, mortgage, deed of trust, pledge, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature of such an agreement and any
agreement to give any security interest).
"LIQUID ASSETS" means the following assets owned by a Person (and, if
applicable, that Person's Subsidiaries, on a consolidated basis) as of any date
of determination: (a) unrestricted and unencumbered cash, (b) funds on deposit
in accounts with any bank located in the United States (net of the aggregate
amount payable under all outstanding and unpaid checks, drafts and similar items
drawn by a Person against those accounts), (c) investment grade commercial
paper, (d) money market funds, and (e) marketable securities, plus, in the case
of Borrower and in the absence of a Default or Event of Default, (f) the amount
of any Buydowns and Excess Buydowns.
"LOAN DOCUMENTS" means this Agreement, the Warehousing Note, any agreement of
Borrower relating to Subordinated Debt, and each other document, instrument or
agreement executed by Borrower in connection with any of those documents,
instruments and agreements, as originally executed or as any of the same may be
amended, restated, renewed or replaced.
"LOAN PACKAGE FEE " has the meaning set forth in Section 3.6.
"LOAN-TO-VALUE RATIO" means, for any Mortgage Loan, the ratio of (a) the maximum
amount that may be borrowed under the Mortgage Loan (whether or not borrowed) at
the time of origination, plus the Mortgage Note Amounts of all other Mortgage
Loans secured by senior or pari passu Liens on the related property, to (b) the
Appraised Property Value of the related property.
"MANUFACTURED HOME" means a structure that is built on a permanent chassis
(steel frame) with the wheel assembly necessary for transportation in one or
more sections to a permanent site or semi-permanent site.
"MARGIN STOCK" has the meaning assigned to that term in Regulation U of the
Board of Governors of the Federal Reserve System, as amended.
Page 12-6
"MERS" means Mortgage Electronic Registrations Systems, Inc. and any successor
entity.
"MISCELLANEOUS FEES AND CHARGES" means the Collateral Operations Fees set forth
on Lender's fee schedule attached as EXHIBIT I and all miscellaneous
disbursements, charges and expenses incurred by or on behalf of Lender for the
handling and administration of Warehousing Advances and Collateral, including
costs for Uniform Commercial Code, tax lien and judgment searches conducted by
Lender, filing fees, charges for wire transfers and check processing charges,
charges for security delivery fees, charges for overnight delivery of Collateral
to Investors, recording fees, Funding Bank service fees and overdraft charges
and Designated Bank Charges. Upon not less than 3 Business Days' prior Notice to
Borrower, Lender may modify the Collateral Operations Fees set forth in EXHIBIT
I to conform to current Lender practices and, as so modified, the revised
EXHIBIT I will become part of this Agreement.
"MORTGAGE" means a mortgage or deed of trust on real property that is improved
and substantially completed (including real property to which a Manufactured
Home has been affixed in a manner such that the Lien of a mortgage or deed of
trust would attach to the Manufactured Home under applicable real property law).
"MORTGAGE-BACKED SECURITIES" means securities that are secured or otherwise
backed by Mortgage Loans.
"MORTGAGE LOAN" means any loan evidenced by a Mortgage Note and secured by a
Mortgage and, if applicable, a Security Agreement.
"MORTGAGE NOTE" means a promissory note secured by one or more Mortgages and, if
applicable, one or more Security Agreements.
"MORTGAGE NOTE AMOUNT" means, as of any date of determination, the then
outstanding and unpaid principal amount of a Mortgage Note (whether or not an
additional amount is available to be drawn under that Mortgage Note).
"MORTGAGE POOL" means a pool of one or more Pledged Loans on the basis of which
a Mortgage-backed Security is to be issued.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA, to which either Borrower or any ERISA Affiliate of Borrower
has any obligation with respect to its employees.
"NOTICES" has the meaning set forth in Section 11.1.
"OBLIGATIONS" means all indebtedness, obligations and liabilities of Borrower to
Lender and Lender's Subsidiaries (whether now existing or arising after the date
of this Agreement, voluntary or involuntary, joint or several, direct or
indirect, absolute or contingent, liquidated or unliquidated, or decreased or
extinguished and later increased and however created or incurred), including
Borrower's obligations and liabilities to Lender under the Loan Documents and
disbursements made by Lender for Borrower's account.
"OPERATING ACCOUNT" means a demand deposit account maintained at the Funding
Bank in Borrower's name and designated for funding that portion of each Eligible
Loan not funded by a Warehousing Advance made against that Eligible Loan and for
returning any excess payment from an Investor for a Pledged Loan or Pledged
Security.
"OVERDRAFT ADVANCE" has the meaning set forth in Section 3.8.
Page 12-7
"PARTICIPANT" has the meaning set forth in Section 11.8.
"PERMITTED AFFILIATE TRANSACTIONS" means, subject to all terms, conditions and
provisions of this Agreement, transactions between Borrower and its Affiliates
in connection with (i) the securitization, sale, hypothecation or pledge of
certain assets of Borrower (other than any item of Collateral) or its
Affiliates, (ii) hedging activities involving Borrower and certain of its
Affiliates, and/or the origination, and (iii) acquisition of Mortgage Loans,
Mortgage Notes, Mortgages, Security Agreements and all other documents,
agreements and instruments related thereto.
"PERSON" means and includes natural persons, corporations, limited liability
companies, limited liability partnerships, limited partnerships, general
partnerships, joint stock companies, joint ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions of those governments.
"PLAN" means each employee benefit plan (whether in existence on the date of
this Agreement or established after that date), as that term is defined in
Section 3 of ERISA, maintained for the benefit of directors, officers or
employees of Borrower or any ERISA Affiliate.
"PLEDGED ASSETS" means, collectively, Pledged Loans and Pledged Securities.
"PLEDGED HEDGING ACCOUNTS" has the meaning set forth in Section 4.1 (g).
"PLEDGED HEDGING ARRANGEMENTS" has the meaning set forth in Section 4.1 (g).
"PLEDGED LOANS" has the meaning set forth in Section 4.1(b).
"PLEDGED SECURITIES" has the meaning set forth in Section 4.1(c).
"PRIME MORTGAGE LOAN" has the meaning set forth in EXHIBIT H.
"PROHIBITED TRANSACTION" has the meanings set forth for such term in Section
4975 of the Internal Revenue Code and Section 406 of ERISA.
"PURCHASE COMMITMENT" means a written commitment, in form and substance
satisfactory to Lender, issued in favor of Borrower by an Investor under which
that Investor commits to purchase Mortgage Loans or Mortgage-backed Securities.
"RATING AGENCY" means any nationally recognized statistical rating organization
that in the ordinary course of its business rates Mortgage-backed Securities.
"RELEASE AMOUNT" has the meaning set forth in Section 4.3(f).
"RESTRICTION LIST" and "RESTRICTION LISTS" means each and every list of Persons
to whom the Government of the United States prohibits or otherwise restricts the
provision of financial services. For the purposes of this Agreement, Restriction
Lists include the list of Specifically Designated Nationals and Blocked Persons
established pursuant to Executive Order 13224 (September 23, 2001) and
maintained by the Office of Foreign Assets Control, U.S. Department of the
Treasury, current as of the day the Restriction List is used for purposes of
comparison in accordance with the requirements of this Agreement.
"RFC MORTGAGE LOAN" means a Mortgage Loan covered by a Purchase Commitment
issued by Lender.
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"RFCONNECTS DELIVERY" means Lender's proprietary service to support the
electronic exchange of information between Lender and Borrower, including
Warehousing Advance Requests, shipping requests, payoff requests, wire transfer
instructions, security delivery instructions, activity reports and exception
reports.
"RFCONNECTS PLEDGE AGREEMENT" means an agreement (on the then current form
prescribed by Lender) granting Lender a security interest in Mortgage Loans for
which Borrower has requested Warehousing Advances using RFConnects Delivery.
"SECOND MORTGAGE" means a Mortgage that constitutes a second Lien on the real
property and improvements described in or covered by that Mortgage.
"SECOND MORTGAGE LOAN" means a Mortgage Loan secured by a Second Mortgage.
"SECURITY AGREEMENT" means a security agreement or other agreement that creates
a Lien on personal property, including furniture, fixtures and equipment, to
secure repayment of a Mortgage Loan.
"SERVICING CONTRACT" means, with respect to any Person, the arrangement, whether
or not in writing, under which that Person has the right to service Mortgage
Loans.
"SERVICING PORTFOLIO" means, as to any Person, the unpaid principal balance of
Mortgage Loans serviced by that Person under Servicing Contracts, minus the
principal balance of all Mortgage Loans that are serviced by that Person for
others under subservicing arrangements.
"SERVICING PORTFOLIO REPORT" has the meaning set forth in Section 7.3(a).
"SINGLE FAMILY MORTGAGE LOAN" means a Mortgage Loan secured by a Mortgage on
improved real property on which is located a 1-to-4 family residence.
"STANDARD WAREHOUSE PERIOD" means, for any Mortgage Loan, the maximum number of
days a Warehousing Advance against that type of Mortgage Loan, other than
against an Aged Mortgage Loan, may remain outstanding, as set forth in EXHIBIT
H.
"STATEMENT DATE" means the Audited Statement Date or the Interim Statement Date,
as applicable.
"SUBLIMIT" means the aggregate amount of Warehousing Advances (expressed as a
dollar amount or as a percentage of the Warehousing Commitment Amount) that is
permitted to be outstanding at any one time against a specific type of Eligible
Loan.
"SUBORDINATED DEBT" means (a) all indebtedness of Borrower for borrowed money
that is effectively subordinated in right of payment to all present and future
Obligations either (1) under a Subordination of Debt Agreement on the form
prescribed by Lender or (2) otherwise on terms acceptable to Lender, and (b)
solely for purposes of Section 8.5, all indebtedness of Borrower that is
required to be subordinated by Sections 5.1(b) and 7.11.
"SUBPRIME MORTGAGE LOAN" has the meaning set forth in EXHIBIT H.
"SUBSIDIARY" means any corporation, partnership, association or other business
entity in which more than 50% of the shares of stock or other ownership
interests having voting power for the election of directors, managers, trustees
or other Persons performing similar functions is at the time owned or controlled
by any Person either directly or indirectly through one or more Subsidiaries of
that Person.
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"TANGIBLE NET WORTH" means the excess of a Person's (and, if applicable, that
Person's Subsidiaries, on a consolidated basis) total assets over total
liabilities as of the date of determination, each determined in accordance with
GAAP applied in a manner consistent with the financial statements referred to in
Section 5.1 (a)(6), plus that portion of Subordinated Debt due more than 6
months after the Warehousing Maturity Date. For purposes of calculating a
Person's Tangible Net Worth, advances or loans to shareholders, directors,
officers, employees or Affiliates, investments in Affiliates, assets pledged to
secure any liabilities not included in the Debt of that Person, intangible
assets, those other assets that would be deemed by HUD to be non-acceptable in
calculating adjusted net worth in accordance with its requirements in effect as
of that date, as those requirements appear in the "Consolidated Audit Guide for
Audits of HUD Programs," and other assets Lender deems unacceptable, in its sole
discretion, must be excluded from that Person's total assets.
"THIRD PARTY ORIGINATED LOAN" means a Mortgage Loan originated and funded by a
third party (other than with funds provided by Borrower at closing to purchase
the Mortgage Loan) and subsequently purchased by Borrower.
"TITLE I MORTGAGE LOAN" means an FHA co-insured closed-end First Mortgage Loan
or Second Mortgage Loan that is underwritten in accordance with HUD underwriting
standards for the Title I Property Improvement Program set forth in, and that 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 related to that statute.
"TRUST RECEIPT" means a trust receipt in a form approved by and under which
Lender may deliver any document relating to the Collateral to Borrower for
correction or completion.
"WAREHOUSING ADVANCE" means a disbursement by Lender under Section 1.1.
"WAREHOUSING ADVANCE REQUEST" has the meaning set forth in Section 2.1.
"WAREHOUSING COLLATERAL VALUE" means, as of any date of determination, (a) with
respect to any Eligible Loan, the lesser of (1) the amount of any Warehousing
Advance made, or that could be made, against such Eligible Loan under EXHIBIT H
or (2) an amount equal to the Advance Rate for the applicable type of Eligible
Loan multiplied by the Fair Market Value of such Eligible Loan; (b) if Eligible
Loans have been exchanged for Agency Securities, the lesser of (1) the amount of
any Warehousing Advances outstanding against the Eligible Loans backing the
Agency Securities or (2) an amount equal to the Advance Rates for the applicable
types of Eligible Loans backing the Agency Securities multiplied by the Fair
Market Value of the Agency Securities; and (c) with respect to cash, the amount
of the cash.
"WAREHOUSING COMMITMENT" means the obligation of Lender to make Warehousing
Advances to Borrower under Section 1.1.
"WAREHOUSING COMMITMENT AMOUNT" means $100,000,000
"WAREHOUSING COMMITMENT FEE" has the meaning set forth in Section 3.5.
"WAREHOUSING FEE" has the meaning set forth in Section 3.6.
"WAREHOUSING MATURITY DATE" has the meaning set forth in Section 1.2.
"WAREHOUSING NOTE" has the meaning set forth in Section 1.3.
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"WEIGHTED AVERAGE COMMITTED PURCHASE PRICE" means the weighted average of the
Committed Purchase Prices of the unfilled Purchase Commitments (expressed as a
percentage) for Mortgage Loans or Mortgage-backed Securities of the same type,
interest rate and term.
"WET SETTLEMENT ADVANCE" means with respect to any Warehousing Advance, the time
from the date the Warehousing Advance is made until the date of Lender's receipt
of the Collateral Documents required by Article 2 and the Exhibits and documents
referenced in that Article.
"WIRE DISBURSEMENT ACCOUNT" means a demand deposit account maintained at the
Funding Bank in Lender's name for clearing wire transfers requested by Borrower
to fund Warehousing Advances.
"WIRE FEE" has the meaning set forth in Section 3.6.
12.2. OTHER DEFINITIONAL PROVISIONS; TERMS OF CONSTRUCTION
12.2 (a) Accounting terms not otherwise defined in this Agreement have the
meanings given to those terms under GAAP.
12.2 (b) Defined terms may be used in the singular or the plural, as the
context requires.
12.2 (c) All references to time of day mean the then applicable time in
Chicago, Illinois, unless otherwise expressly provided.
12.2 (d) References to Sections, Exhibits, Schedules and like references
are to Sections, Exhibits, Schedules and the like of this Agreement
unless otherwise expressly provided.
12.2 (e) The words "include," "includes" and "including" are deemed to be
followed by the phrase "without limitation."
12.2 (f) Unless the context in which it is used otherwise clearly requires,
the word "or" has the inclusive meaning represented by the phrase
"and/or."
12.2 (g) All incorporations by reference of provisions from other
agreements are incorporated as if such provisions were fully set forth
into this Agreement, and include all necessary definitions and related
provisions from those other agreements. All provisions from other
agreements incorporated into this Agreement by reference survive any
termination of those other agreements until the Obligations of
Borrower under this Agreement and the Warehousing Note are irrevocably
paid in full and the Warehousing Commitment is terminated.
12.2 (h) All references to the Uniform Commercial Code shall be deemed to
be references to the Uniform Commercial Code in effect on the date of
this Agreement in the applicable jurisdiction.
12.2 (i) Unless the context in which it is used otherwise clearly requires,
all references to days, weeks and months mean calendar days, weeks and
months.
END OF ARTICLE 12
END OF DOCUMENT
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