WAREHOUSE CREDIT AND SECURITY AGREEMENT
THIS WAREHOUSE CREDIT AND SECURITY AGREEMENT (this "Agreement"), dated
as of the Commencement Date set forth below is between NATIONAL MORTGAGE
WAREHOUSE, LLC, a Delaware Limited Liability Company (the "Lender") and the
Borrower identified below.
ARTICLE I
BASIC LOAN TERMS; OTHER DEFINED TERMS
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The following terms shall have the following definitions whenever used
in this Agreement.
1.1 Borrower Westmark Mortgage Corporation
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|X| Corporation State: California
___ __________
___ Limited Partnership State: __________
___ General Partnership State: __________
___ Proprietorship State: __________
___ Limited Liability Company State: __________
1.2 Borrower's 8000 N. Federal Highway
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Address: Boca Raton
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State: Florida Zip: 33487
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1.3 Guarantor: See Exhibit G
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1.4 Guarantor's
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Address: See Exhibit G
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1.5 Lender's 1020 Kings Hwy. North, Ste. 200
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Address: Cherry Hill, NJ 08034
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1.6 Basic Interest Rate: Prime Rate plus 1.5%
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1.7 Default Interest Rate: Basic Interest Rate plus 2.0%
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1.8 Commencement Date: October 4.1999
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1.9 Termination Date: One year from Commencement Date.
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1.10 Advance Repayment Period: Ninety (90) days from Origination
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1.11 Maximum Credit Availability $10,000,000
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Subject to the following sub-limits on Advances:
Not to exceed $ 350,000 per Mortgage Loan
Not to exceed an aggregate of $ 350,000 per Mortgagor.
Not to exceed two Mortgage Loans per Mortgagor outstanding at
any time.
(The above sub-limits shall apply unless prior approval to
exceed the same is obtained from the Lender).
Not to exceed 100% of Committed Purchase Price
Not to exceed 100% of Mortgage Loan as of Origination
Not to exceed 30% of Maximum Credit Availability, when
aggregated with all other Wet Advances outstanding.
1.12 Minimum Deposit: $5,000.00
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1.13 Facility Fees: $75. per Advance Request.
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1.14 Advance: An advancement of the proceeds of the Loan made available
to Borrower under this Agreement.
1.15 Advance Request: The written request for an Advance made by
Borrower to Lender in the form of Exhibit A accompanied by all of the following:
(a) Loan Purchase Commitment issued by an Approved Investor in
an amount sufficient to repay in full the Advance, together with interest
accrued thereon through the date of sale, and otherwise on terms and conditions
satisfactory to Lender in its sole discretion.
(b) An assignment of the Mortgage by the Borrower in
recordable form but for completion of the name and address of the assignee and,
if not yet available, Mortgage recordation information.
(c) Such other items as the Lender may from time to time
require.
1.16 Affiliate: Any Person or entity that, now or hereafter, directly
or indirectly through one or more intermediaries, controls, is controlled by or
is under common ownership or control with any Obligor. For purposes of this
definition, the terms "control," "controls" and "controlled" shall refer to the
power to determine the management or policies of a Person, whether resulting
from an official position or capacity with such Person, direct or indirect
beneficial ownership of at least twenty percent (20%) of the voting securities
or other equity interests of such Person, or otherwise.
1.17 Agency: FNMA, FHLMC or GNMA, as applicable (all as defined in the
list of Approved Investors attached).
1.18 Applicable Requirements: The requirements set forth in Lender's
Warehousing Guide together with all laws, rules, regulations and official
publications of any federal, state or local government and/or any agency,
department, bureau, board, commission or instrumentality of any of the foregoing
now existing or hereafter created including, without limitation: all
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federal, state, local and foreign laws, statutes, rules, regulations, licensing
requirements, ordinances, codes, rules, orders, opinions and directives that may
be applicable to the solicitation, origination, credit analysis, settlement,
transfer, assignment, servicing, administration, disposition and collection of
Mortgage Loans, and all amendments and supplements thereto in effect as of the
time of reference, including: (a) the Equal Credit Opportunity Act (including
Regulation B); the Fair Credit Reporting Act; (c) The Truth-in Lending Act
(including Regulation Z); (d) Real Estate Settlement Procedures Act (including
Regulation x); (e) the Fair Debt Collection Practice Act; (f) the Federal Trade
Commission Act and all applicable unfair trade practices acts; (c) the
Hart-Scott-Rodino Antitrust improvements Act; (h) Home Mortgage Disclosure Act;
(i) laws relating to consumer protection, loan and appraisal disclosure, usury,
fair housing, debt collection, unfair or deceptive acts or practices; (j)public
notice and recordation acts; (k) the Internal Revenue Code; (1) the National
Housing Act; and (m) the Serviceman's Readjustment Act. Also included are the
rules, regulations, directives and instructions of or concerning an Agency, HUD,
FHA or VA including, without limitation, the requirements of the Agency guides,
the Agency agreements, federal regulations promulgated by HUD under the National
Housing Act, federal regulations promulgated by the VA under the Serviceman's
Readjustment Act and handbooks, circulars, notices, bulletins and other
communications of any of the foregoing to the extent applicable as of the time
of reference.
1.19 Approved Investor: A Person identified in Exhibit B or such other
Person as Lender approves in writing after Lender's review of Financial
Statements and other information pertaining to the creditworthiness of the
Approved Investor as Lender may request.
1.20 Agreement: This agreement, together with all exhibits, amendments,
modifications and supplements hereto as may be in effect from time to time.
1.21 Bailee Letter: The letter setting forth the terms and conditions
under which Lender will permit Collateral Documents to be released to the
custody of Approved Investor for purposes of inspecting same to determine
conformance with the terms of the Loan Purchase Commitment. Lender's standard
form of Bailee Letter is attached as Exhibit C.
1.22 Borrower Authorization: The completed certification by Borrower in
the appropriate form (corporate, partnership or proprietorship, as the case may
be) attached as Exhibit D including all required attachments.
1.23 Business Day: Any day upon which Chase Manhattan Bank or other
depository for the Collection Account and Lender is open for business.
1.24 Collection Account: The cash collateral account maintained by
Lender with Chase Manhattan Bank, into which is received all remittances under
any Loan Purchase Commitment or any Collateral Documents, all of which must be
deposited directly into the Collection Account by electronic transfer of
immediately available funds as follows:
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Chase Manhattan Bank
New York, NY
ABA Routing #021000021
For further credit to:
NMW Collection Account
#230-199224
1.25 Collateral: Collectively, all of the following:
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(a) all Mortgage Loans originated in whole or in part by
Advances made under this Agreement or which otherwise are, or are required to
be, pledged or delivered to Lender under this Agreement, and all Collateral
Documents which are, or are required to be, pledged or delivered to Lender under
this Agreement including, in each case, without limitation: the original
Mortgage Note evidencing each Mortgage Loan and each Mortgage securing each
Mortgage Note;
(b) all Loan Purchase Commitments, all rights of Borrower to
enforce the Loan Purchase Commitments and all rights to receive payment for, or
other proceeds of the sale of; any Mortgage Loan under any Loan Purchase
Commitment or otherwise as a result of the sale, transfer or other assignment of
any Mortgage Loan, all proceeds of sales deposited in the Collection Account and
all funds in the Maintenance Account from whatever sources;
(c) all rights of Borrower to service any Mortgage Loan and to
receive any payment or compensation for the servicing of any Mortgage Loan and
all rights to receive any payments under any Mortgage Loan; and
(d) all accounts, contract rights, general intangibles, cash,
securities, certificates, documents, instruments, claims, demands, files,
databases, electronic and other information pertaining to any of the above
mentioned items and all proceeds of the foregoing.
1.26 Collateral Documents: Collectively, all of the following:
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(a) The original Mortgage Note evidencing the Mortgage Loan
endorsed in blank by Borrower;
(b) The original recorded Mortgage securing the Mortgage Note
(or, until the original recorded Mortgage is returned from recordation, a
photocopy of the original Mortgage, certified by the Settlement Agent to be a
true copy of the original instrument submitted for recording);
(c) Marked-up commitment of a title insurance company
satisfactory to Lender to issue an ALTA loan policy insuring the Mortgage as a
first or second priority lien;
(d) Certificates of casualty or hazard insurance naming
Borrower and Lender (as their interests may appear), as mortgagee and loss
payee;
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(e) Policies or certificates of private mortgage insurance;
(f) Credit report on the Mortgagor;
(g) Appraisal of the real property described in the Mortgage;
(h) HUD-1 or HUD-lA Settlement Sheet;
(i) Mortgage Loan application executed as of Origination;
(j) Copies of all statements (including disclosure
statements), certifications and other forms required under Applicable
Requirements; and
(k) Such other documents as are customarily desired for
inspection or transfer incidental to the purchase of a Mortgage Note by an
institutional investor and any additional documents which are customarily
executed by the seller of a Mortgage Note to an institutional investor and
maintained in the related Mortgage Loan file.
1.27 Committed Purchase Price: The purchase price which the Approved
Investor has agreed to pay for a Mortgage Loan under the terms of the applicable
Loan Purchase Commitment.
1.27.a Eligible Mortgage Loan:
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(1) No Mortgage Loan shall be considered to be an "Eligible
Mortgage Loan" under the Agreement unless it (a) complies in all
respects with the requirements set forth in Section 1.39 of the
Agreement, and (0) complies in all respects with following additional
requirements:
(i) It is secured by a residential 1-4 family
dwelling.
(ii) It is a first or second lien.
(iii) It has a maximum loan principal not in excess
of any limit or sub-limit as stated in Section 1.11, unless approved in advance
by the Lender.
(iv) It is deliverable to the Approved Investor which
issued the Loan Purchase Commitment within ninety (90) days of the Advance Date
or the time permitted by said Loan Purchase Commitment, whichever is shorter.
(2) In addition, a Mortgage Loan shall not qualify as an
"Eligible Mortgage Loan" if any of the following statements are true with regard
to such Mortgage Loan:
(a) It fails to meet any of the above requirements.
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(b) It is a Mortgage Loan to an officer, principal,
manager or Guarantor of the Borrower.
(c) It is a Mortgage Loan not generally saleable in
the secondary market.
(d) It is a Mortgage Loan which, at closing, requires
an escrow of any funds for any purpose, other than the following: immediate
payment of debts due, or for future payment of taxes, insurance or mortgage
insurance premiums, when same become due.
(e) It is a Mortgage Loan that, subsequent to
closing, requires any construction, reconstruction, rehabilitation or
remediation of the improvements, before said Mortgage Loan is salable in the
secondary market or deliverable and purchasable pursuant to the Loan Purchase
Commitment.
1.28 Encumbrance: Any mortgage, lien, pledge, adverse claim, charge,
security interest or other encumbrance in or on, or any interest or title of any
vendor, lessor, lender to, or other secured party of the Person under any
conditional sale or other title retention agreement or capital lease with
respect to, any property or asset of the Person.
1.29 Event of Default: An occurrence described in Article VIII of this
Agreement.
1.30 Financial Statements: True, correct and complete copies of the
balance sheet of the Person designated and related statement of income,
statement of cash flows and such other financial statements in such detail as
Lender may reasonably request, together with notes thereto, which: (a) present
fairly the financial position of the Person and the results of its operations as
of the end of the applicable period; (b)are in the form furnished by Lender or
is otherwise in form satisfactory to the Lender; and (c) unless otherwise
specified in this Agreement or otherwise approved by Lender in writing, are
prepared by an independent certified public accountant in accordance with
generally accepted accounting principles, and accompanied by the opinion,
satisfactory in form and substance to Lender, of an independent certified public
accountant satisfactory to Lender.
1.31 Financing Statements: The UCC- 1 Financing Statements to be
executed by Borrower for filing not later than the Commencement Date in the
appropriate filing offices of the State and County identified in Borrower's
Address or, if the address identified in Article I is not the principal place of
business of Borrower, or Borrower conducts its business in other names, or if
other filings are necessary or appropriate to perfect Lender's security interest
in the Collateral, then, such other offices as are identified in Schedule 1.31
attached to this Agreement.
1.32 Indebtedness: Any obligation for borrowed money, including (a) any
obligation owed for all or any part of the purchase price of property or other
assets or for the cost of property or other assets constructed or of
improvements thereto, other than accounts payable included in current
liabilities and incurred in respect of property purchased in the ordinary course
of business; (b) any capital lease obligation; and (c) any reimbursement
obligations and other
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obligations under any letter of credit, currency swap agreement, interest rate
swap, cap, collar or floor agreement or other interest rate management devise,
or any forward sale or purchase agreement for foreign currencies.
1.33 Judgment: A final judgment(s) or order(s), of any judicial
authority or governmental entity issued against Borrower or other Obligor or
which otherwise affects any of the Collateral.
1.34 Loan: The credit facility, in an amount not to exceed the Maximum
Credit Availability, being made available by Lender to Borrower under the terms
and conditions of this Agreement and the other Loan Documents.
1.35 Loan Documents: Collectively, this Agreement, the Promissory Note,
the Surety Agreement, the Financing Statements and all agreements, amendments,
certificates, financing statements, schedules, reports, notices, and exhibits
now or hereafter required by Lender to be executed or delivered in connection
with any of the foregoing, as may be in effect from time to time.
1.36 Loan Purchase Commitment: The valid, legally binding and
enforceable commitment of an Approved Investor to purchase the Mortgage Loan
which is, or is proposed to be, Collateral for an Advance for a Committed
Purchase Price and on other terms and conditions which are satisfactory to
Lender in its sole discretion. Subject to Lender's prior written approval, which
may be given or withheld at Lender's sole discretion, the commitment of another
Person as Approved Investor may be substituted for the original Loan Purchase
Commitment, as Collateral for the Loan, should the original Approved Investor
fail or refuse to perform under the Loan Purchase Commitment.
1.37 Maintenance Account: The demand deposit account in the name of
Borrower established at Chase Manhattan Bank as to which an authorized
representative of Lender shall be a signatory with power of withdrawal.
1.38 Mortgage: The mortgage, deed of trust or other security instrument
properly executed by all owners of the real property described in the Mortgage;
duly acknowledged by a notary public, or other official authorized to take
acknowledgments under Applicable Requirements; in appropriate form for
recordation, and in a form which complies with all Applicable Requirements, and
which creates a first or second mortgage lien on a fully completed 1-4 family
residential dwelling unit. The Mortgage shall include, as appropriate,
condominium, cooperative, or planned unit development riders and non-uniform
provisions appropriate for the state in which the real property described in the
Mortgage is located.
1.39 Mortgage Loan: A loan which (a)(i) has been or is proposed to be
originated by Borrower to a Person who is not an Obligor or an Affiliate of an
Obligor or (ii) has been or is proposed to be purchased by Borrower that has
been originated by a third party to a Person who is not an obligor or an
Affiliate of an Obligor not more than thirty (30) days before such proposed
purchase and (b) funded in whole or in part by the proceeds of an Advance; which
will be
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secured by a Mortgage upon Origination; which is fully funded at Origination;
which has been originated in full compliance with Applicable Requirements; which
is the subject of a Loan Purchase Commitment issued by an Approved Investor;
which satisfies all conditions of purchase under the Loan Purchase Commitment;
and which is an Eligible Mortgage Loan as defined in Section 1 .27a above.
1.40 Mortgage Note: The original mortgagor's note evidencing a Mortgage
Loan executed by all owners of the real property described in the Mortgage in a
form which complies with all Applicable Requirements and all conditions of
purchase under the Loan Purchase Commitment.
1.41 Mortgagor: Individually and collectively, any and all Persons
executing a Mortgage Note, Mortgage or other Collateral Documents securing a
Mortgage Loan.
1.42 Obligations: Collectively, all obligations of the Obligors:
(a) To pay the principal, interest, Facility Fees and any
other liabilities of Borrower to Lender under this Agreement and the other Loan
Documents in accordance with their respective terms;
(b) To satisfy all other direct or indirect liabilities of any
Obligor to Lender with respect to the Loan, the Loan Documents and the
Collateral whether now existing or hereafter incurred, whether or not evidenced
by any note or other instrument, matured or non-matured, direct, absolute or
contingent, joint or several, including any extensions, modifications, renewals
thereof and substitutions therefor;
(c) To repay Lender all amounts advanced by Lender hereunder
or otherwise on behalf of any Obligor under, or with respect to, any Loan
Document or any of the Collateral;
(d) To reimburse Lender, on demand, for all of Lender's
expenses and costs, including the reasonable fees and expenses of its counsel,
in connection with the administration, amendment, modification, or enforcement
of this Agreement; the negotiation, preparation, administration, amendment,
modification, or enforcement of any Loan Document, any Collateral Document or
any Loan Purchase Commitment, including all amounts payable under the
reimbursement and indemnity provisions set forth in Article D( of this
Agreement; and
(e) To pay all other liabilities and obligations to Lender.
1.43 Obligors: Collectively: Borrower, any one or more Persons
identified as a Guarantor, and any other Person who now, or hereafter, becomes
directly or indirectly liable under any Loan Document.
1.44 Origination: The date a Mortgage Loan is funded by an Advance.
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1.45 Person: Any individual, corporation, partnership, association,
limited liability company, joint-stock company, trust, unincorporated
organization, joint venture, court or governmental or political subdivision or
agency thereof or any other entity.
1.46 Prime Rate: The annual rate of interest published in the Wall
Street Journal from time to time as the "prime" rate of interest charged by
commercial banks from time to time as a reference rate (or a rate equivalent to
the foregoing) with the understanding that such rates may merely serve as a
basis upon which effective rates of interest are calculated for loans making
reference thereto and that such rates are not necessarily the lowest or best
rate at which such banks calculate interest or extend credit. The Prime Rate
shall change for purposes of this Agreement and the Promissory Note as such
announced or published rate changes.
1.47 Promissory Note: The promissory note of Borrower, (or replacements
or extensions thereof) in the form of Exhibit E attached to this Agreement,
properly executed and evidencing Borrower's Obligation to repay Borrower's
requested Advances together with interest thereon and such other amounts as
shall be due pursuant to this Agreement.
1.48 Settlement Agent: A title insurance company approved by Lender in
writing or, if authorized under a closing protection letter issued by an
approved title insurance company to Borrower, an attorney-at-law or other Person
identified by Borrower as the proposed Settlement Agent in the Advance Request
provided such Person has been approved by Lender in writing and authorized by
Lender under Lender's Settlement Instructions.
1.49 Settlement Instructions: The letter from Borrower to the
Settlement Agent setting forth the terms and conditions under which the
Settlement Agent is authorized to receive, hold and disburse the Advance to, or
for the benefit of Borrower, by funding the Mortgage Loan Origination and to act
as custodian of the Mortgage Note and other items for delivery to Lender the
next Business Day after Origination, or to return the Advance if not disbursed
within one Business Day of the Advance Date. The standard form of Settlement
Instructions is attached to this Agreement as Exhibit F.
1.50 Surety Agreement: The Guaranty and Surety Agreement dated as of
the Commencement Date and each and every Guaranty and Surety Agreement, or
reaffirmation of Guaranty and Surety Agreement, executed by Persons identified
as Guarantor and delivered to Lender's a condition of an Advance. Lender's
standard form of Surety Agreement is attached to this Agreement as Exhibit G.
1.51 Warehousing Guide: The manual issued by Lender and delivered to
Borrower containing procedures and requirements the Borrower must follow in
fulfilling its obligations (including the Obligations) to Lender under this
Agreement.
1.52 Wet Advance: An Advance made to Settlement Agent for disbursement
for the benefit of Borrower but, as to which, the Mortgage Note has not been
physically delivered to the custody of Lender. An Advance ceases to be a Wet
Advance upon delivery of the Mortgage Note to the custody of Lender.
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ARTICLE II
THE LOAN; LOAN ADVANCEMENT
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2.1 The Loan: Lender shall make the Loan available to Borrower upon the
terms and conditions of this Agreement and the other Loan Documents.
2.2 Request for Advance: Borrower shall make request for Advances by
submission to Lender at Lender's Address set forth in Article I, of a fully
completed Advance Request accompanied by the Loan Purchase Commitment and other
items required under the definition for Advance Request set forth in Article I.
2.3 Lender's Approval: Lender is not obligated to make an Advance as
requested in the Advance Request unless and until Lender has received, and found
satisfactory in all respects, all Loan Documents and all information pertaining
to the Collateral and the Collateral Documents, including without limitation,
the Loan Purchase Commitment. The aggregate amount of Advances outstanding at
any one time shall not exceed the Maximum Credit Availability set forth in
Article I and the amount of any Advance shall, unless approved in writing by
Lender, be subject to the sub-limits established under Article I and such other
limitations as may be imposed by Lender as a condition of making the Advance.
Advances when received by the Settlement Agent are funds of the Borrower to be
held in trust by the Settlement Agent for the limited purpose of closing the
specific Mortgage Loan for which the Advance was made or for return to the
Lender if the closing is postponed or cancelled for any reason. All risk of loss
of the Advance while in the possession of the Settlement Agent shall be borne by
the Borrower.
2.4 Interest: The outstanding principal balance of the Loan from time
to time shall bear interest at the per annum rate equal to the Basic Interest
Rate. If an Advance is not repaid in full, together with accrued interest
thereon, within the applicable Advance Repayment Period, the outstanding balance
of the Advance will thereafter bear interest at the Default Interest Rate. Upon
the occurrence of an Event of Default, or earlier upon the Termination Date, the
entire outstanding balance of the Loan will commence to bear interest at the
Default Interest Rate until Lender receives payment in full of all Obligations.
All computations of interest under this Agreement or any Promissory Note shall
be made by Lender on the basis of a year of 360 days but calculated for the
actual number of days elapsed.
2.5 Repayment of Advances: Each Advance, together with all accrued but
unpaid interest thereon, is due and payable in full, by electronic transfer of
immediately available funds to the Collection Account, on the earlier to occur
of: (a) the date the Committed Purchase Price is due and payable under the Loan
Purchase Commitment or, if earlier, the date payment is made; or (b) the
expiration of the Advance Repayment Period.
2.6 Pledge of Collection Account: Borrower irrevocably and
unconditionally assigns to Lender the right to direct payment of the entire
Committed Purchase Price to the Collection Account; assigns and pledges to
Lender a first priority, fully perfected security interest in the
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proceeds of sales of Mortgage Loans and other cash or non-cash items paid,
remitted or otherwise deposited with respect to Mortgage Loans or other
Collateral Documents whether in the Collection Account, the Maintenance Account
or otherwise; and grants to Lender the absolute and unconditional right of
set-off against, or otherwise withdraw from funds deposited with respect to
Borrower in the Collection Account or the Maintenance Account: (a) the amount of
the Advance or Advances with respect to which funds have been remitted to the
Collection Account; (b) Facility Fees owing with respect to such Advance or
Advances: (c) accrued but unpaid interest with respect to such Advances; and (d)
any other Obligations not paid as and when due to Lender. No funds deposited in
the Collection Account shall be subject to any Encumbrance except the security
interest of Lender. Payments (including proceeds realized from the sale or other
disposition of the Collateral) deposited into the Collection Account shall be
applied to interest, principal, Facility Fees and other Obligations under any
Loan Document in such order and amounts as are satisfactory to the Lender. Upon
satisfaction in full of all Obligations then due and owing to Lender, Lender
shall remit any remaining proceeds of remittances deposited into the Collection
Account by transfer to the Maintenance Account. No funds in the Maintenance
Account shall be commingled with any other funds of Borrower or any other
Person.
2.7 Voluntary Mandatory Prepayments: Borrower shall have the right to
prepay the Loan at any time, in whole or in part. if, at any time, the aggregate
amount of Borrower's outstanding Obligations exceeds the Maximum Credit
Availability or the amount of any Advance exceeds the sub-limits established for
such Advance under Article I, Borrower shall immediately repay to Lender the
amount of such excess.
2.8 Termination Date: The entire outstanding principal balance of the
Loan, all interest accrued but unpaid thereon, and any other Obligations due by
any Obligor to Lender shall be immediately due and payable in full on the
Termination Date. No further Advances are available to Borrower from and after
the Termination Date unless Borrower and Lender enter into a written amendment
of this Agreement extending the Termination Date.
ARTICLE III
SECURITY AGREEMENT; LOAN DOCUMENTATION
3.1 Grant of Security Interest: As security for the prompt payment,
performance, satisfaction and discharge as and when due of all Obligations,
Borrower hereby assigns, delivers, pledges and grants to Lender a first
priority, fully perfected lien upon, and security interest in and to, all of the
Collateral including, without limitation, the Mortgage Loans, the Collateral
Documents, the Loan Purchase Commitments, all rights of Borrower to funds in the
Collection Account or the Maintenance Account and all proceeds of the
Collateral.
3.2 Power of Attorney: Borrower hereby constitutes and appoints the
Lender as its true and lawful attorney, irrevocably, with full power to act,
require, demand, receive, compound and give acquittance for any and all monies
and claims for monies due or to become due under or arising out of the
Collateral, to endorse any checks or other instruments or orders in connection
therewith, to file any claims or take any action or institute any proceedings
which Lender may
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deem to be necessary or advisable to enforce Borrower's rights in, to or under
any of the Collateral, which appointment as attorney is coupled with an
interest. Upon request of Lender at any time, Borrower shall execute and deliver
such power or powers, duly executed by Borrower and in recordable form for the
jurisdictions in which Mortgage Assignments may be recorded, as may be necessary
or appropriate to exercise the rights and remedies of Lender under this
Agreement including the right to record individual Mortgage Assignments,
effectuate the sale under the Loan Purchase Commitment, or otherwise realize
upon the Collateral.
3.3 Loan Documentation Prior to Commencement Date: On or before the
Commencement Date, Borrower shall execute and deliver to Lender, or cause to be
executed and delivered to Lender, this Agreement, the Promissory Note, the
Surety Agreement, the Financing Statements and all other Loan Documents (each
document in form and substance satisfactory to Lender) and shall have delivered
to Lender satisfactory evidence of all of the following:
(a) Insurance: Certificates addressed to Lender evidencing
commercial general liability insurance and, if required under Applicable
Requirements, errors and omissions insurance, fidelity bonds and other insurance
in form and amounts satisfactory to Lender.
(b) Minimum Deposit: Establishment of the Maintenance Account
in an amount not less than the Minimum Deposit set forth in Article I of this
Agreement.
(c) Borrower Authorization: The Borrower Authorization
together with certificates evidencing the good standing of Borrower, the due
authorization and proper licensure of Borrower to enter into the Loan Documents
and to engage in the business of origination of Mortgage Loans in all
jurisdictions in which it engages in such business.
(d) Payments: Reimbursements: Payment in full of any costs and
expenses of Lender in connection with the negotiation and preparation of the
Loan Documents and making of the Loan including all filing and recording fees,
search, examination and certification fees and charges, attorneys fees, and
costs of reproduction and transmittal, unless waived by the Lender in writing.
3.4 Loan Documentation Prior to Each Advance: Prior to each Advance,
Borrower shall execute and deliver to Lender, or cause to be executed and
delivered to Lender, the Advance Request, the Loan Purchase Commitment and any
other Collateral, Collateral Documents or other information or documentation
required by Lender to be delivered as a condition of making the Advance. Funding
of each Advance shall be made by electronic transfer of funds to the account of
the Settlement Agent under the instructions delivered to Settlement Agent by
Borrower which shall include, among other things: (a) receipt by Settlement
Agent of the Mortgage Note, Mortgage and Collateral Documents required to be
delivered as conditions of funding of the Mortgage Loan under Borrower's
settlement instructions; (b) custody of the Mortgage Note for delivery to Lender
(together with the HUD-1 settlement sheet and other documentation required under
Borrower's Settlement Instructions) the next Business Day following Origination;
and (c) custody of the Mortgage for recordation in applicable recording offices
promptly after Origination. Borrower acknowledges that it's Settlement
Instructions
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require the Settlement Agent to return the Advance to Lender if Origination does
not occur within one Business Day after receipt of the Advance.
3.5 After Origination: Borrower shall do all things necessary or
appropriate to cause the Mortgage Loan to be purchased by Approved Investor for
the Committed Purchase Price not later than the expiration of the Advance
Repayment Period or, if earlier, the expiration of the Loan Purchase Commitment.
Lender agrees to cooperate with Borrower and Approved Investor by conditional
delivery of the Mortgage Note to Approved Investor, for purposes of inspection
only, under the terms and conditions of Lender's Bailee Letter.
(a) if ten (10) Business Days prior to the earlier to occur of
(i) expiration of the Loan Purchase Commitment for the Mortgage Loan; or (ii)
the date the first installment of principal and interest is due on the Mortgage
Loan, Borrower has not requested Lender to deliver the Mortgage Note to Approved
Investor for inspection; or Borrower has not delivered a complete package of
Collateral Documents (other than the Mortgage Note) to the Approved Investor for
inspection, Borrower shall notify Lender of the reason for the delay and the
steps Borrower will take to correct any deficiencies causing the delay. Upon
demand of Lender at any time prior to receipt of payment in full of the
Committed Purchase Price to the Collection Account, Borrower shall deliver, or
cause to be delivered, the Collateral Documents to Lender or, if so directed by
Lender, to an Approved Investor.
(b) Unless the Committed Purchase Price has been paid in full
to the Collection Account, the Mortgage Note delivered under Lender's Bailee
Letter must be returned to Lender, and the other Collateral Documents must be
returned to Borrower, prior to the earlier to occur of (i) the expiration of the
Advance Repayment Period; or (ii) twenty (20) calendar days after the date of
Lender's Bailee Letter. All costs and expenses incurred by Lender arising from
or related to the sale of the Mortgage Loan shall be borne by Borrower
including, without limitation, all express delivery charges to deliver
Collateral Documents to, or retrieve the same from, the Approved Investor.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
To induce Lender to execute and deliver this Agreement and to make the
Loan available to Borrower, Borrower represents and warrants to Lender that, as
of the date of this Agreement, the date of each Advance, and the date of any
renewal or extension (if any) of the Termination Date:
4.1 Good Standing; Authorization: The information pertaining to
Borrower's legal status set forth in Article I is true, correct and complete.
Borrower has all requisite power, and has obtained and maintains in full
compliance with Applicable Requirements, all licenses and approvals required to
originate Mortgage Loans in all jurisdictions in which it conducts such
business. The execution, delivery and performance of this Agreement, each
Promissory Note, the Loan Purchase Commitment, the Collateral Documents and any
other Loan Documents have been duly authorized by all requisite proceedings on
the part of Borrower.
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4.2 Compliance with Laws and Other Agreements: Borrower, the Mortgage
Loans and the Collateral Documents are in compliance with all Applicable
Requirements and all requirements of the Approved Investor. Borrower has not
received, and has no knowledge of; any order or notice of any violation or claim
of violation of any Applicable Requirement or any matter which would permit the
Approved Investor to decline to purchase the Mortgage Loan. Borrower has
received a copy of Lender's Warehousing Guide as of the Commencement Date and it
has complied, and will comply, in all material respects with the requirements of
the Warehousing Guide and other Applicable Requirements.
4.3 No Conflict; Governmental Approvals: The execution, delivery, and
performance of this Agreement, the Loan Purchase Commitment, the Collateral
Documents and each of the Loan Documents will not (a) conflict with, violate,
constitute a default under, or result in a breach of any Applicable Requirement;
or (b) conflict with or result in a breach of any provision of Loan Purchase
Commitment or other agreement or instrument binding upon the Borrower.
4.4 Financial Position: The Financial Statements delivered to Lender by
any Obligor are true, correct and complete as of the date of such Financial
Statements for the period covered thereby.
(a) Borrower has no Indebtedness other than as shown in the
most recent Financial Statements delivered to Lender.
(b) Borrower has no investment, whether by stock purchase,
capital contribution, loan advance, purchase of property or otherwise in any
Person, other than as shown in the most recent Financial Statements delivered to
Lender.
(c) Since the date of the most recent Financial Statements
delivered to Lender, there has not been any material adverse change in the
business, operations, properties or financial position of Borrower or the
Approved Investor under a Loan Purchase Commitment. Borrower does not know of
any fact (other than matters of a general economic or political nature) which
materially adversely affects or, so far as the Borrower can now reasonably
foresee, will materially adversely affect, the Origination or sale of any
Mortgage Loan or the business, operations, properties or financial position of
Borrower or the performance by Borrower of its obligations under this Agreement
and the other Loan Documents.
4.5 Encumbrances: All of the Collateral is owned by Borrower free and
clear of all Encumbrances except the Loan Documents.
4.6 Litigation: There are no actions, suits, proceedings or
investigations pending or, to the knowledge of Borrower, threatened against or
affecting Borrower before any court, arbitrator, or other governmental
authority.
4.7 Valid, Binding and Enforceable: This Agreement, the Loan Documents
and the Collateral Documents have been duly and validly executed and delivered
by the parties thereto (other than Lender) and constitute the valid and legally
binding obligations of such parties enforceable in accordance with their
respective terms. No default or event which, but for the
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giving of notice or passage of time, or both, would constitute an Event of
Default has occurred and is continuing uncured.
4.8 Priority of Security Interests: The county and state identified in
Borrower's Address in Article I is the location of the principal place of
business of Borrower and, unless otherwise specified, those locations are the
only locations in which the Financing Statements must be filed to perfect the
security interest granted to Lender in the Collateral. Unless otherwise
specified, Borrower does not do business under any other names. Upon the filing
of the Financing Statements in those locations, Lender will have a valid and
perfected first-priority security interest in all of the Collateral for all the
Obligations free and clear of all Encumbrances.
4.9 No Untrue Statements: Neither this Agreement, the Loan Documents
nor any other document, certificate or statement furnished or to be furnished by
Borrower or by any other party to Lender in connection herewith contains, or at
the time of delivery will contain, any untrue statement of a material fact, or
omits, or will omit to state a material fact necessary in order to make the
statements contained herein and therein, true and not misleading.
4.10 Warranties as to each Mortgage Loan: Each Mortgage Loan upon which
any Advance is made is an Eligible Loan and will remain such until the related
Advance is paid in full; is in full force and effect; has not been modified and
is not past due or otherwise in default; is not subject to defense or right of
set-off on the part of the maker or makers of the Mortgage Note; is secured by a
valid Mortgage on fee simple residential real estate, free from damage or
casualty; represents a bona fide transaction which has been carried out in
accordance with all applicable laws and regulations, including, but not limited
to, the making of all required disclosures correctly to all persons entitled to
receive them within the time specified under such laws or rules and regulations,
which shall include but not be limited to:
(a) Real Estate Settlement Procedures Act of 1974 and
Regulation X;
(b) Fair Credit Reporting Act;
(c) Equal Credit Opportunity Act and Regulation B;
(d) Truth-in-Lending Act, and Regulation Z, and applicable
regulations of all applicable federal and state banking and other governmental
authorities; and for which the total consideration to be advanced by a Lender
shall in fact have been advanced less closing and other fees and costs which may
customarily be deducted from the loan proceeds; and, if applicable, shall be the
subject of a valid and effective Loan Purchase. Commitment.
4.11 No Default: There has not been, and Borrower is not aware of any
circumstances which with the passage of time could reasonably be expected to
result in, an Event of Default or any material adverse effect on the Assets,
liabilities, property, financial condition or operating prospects of the
Borrower or its ability to repay the Obligations, and Borrower has no knowledge
of any default under any material term or provision or any agreement, instrument
or indenture to which it is a party or by which it is bound or to which any of
its property is subject, which default would have a material effect on
Borrower's creditworthiness.
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4.12 Subsidiaries: Except as previously described to Lender in writing,
Borrower has no subsidiaries or affiliates and is not a subsidiary or an
affiliate of any other Person.
4.13 Taxes: All tax returns required to be filed by Borrower in any
jurisdiction have in fact been filed (or a request for an extension has been
filed by Borrower with the appropriate governmental agency or department), and
all taxes, assessments, fees and other governmental charges upon Borrower, or
upon any of its respective property, income or franchises, which are shown to be
due and payable on such returns have been paid, except for those taxes being
contested in good faith with due diligence by appropriate proceedings for which
appropriate reserves have been maintained under generally accepted accounting
principles consistently applied. Borrower is not aware of any proposed
additional tax assessment or tax to be assessed against or applicable to
Borrower which would result in a material adverse effect on the assets,
liabilities, property, financial condition or operating prospects of Borrower or
its ability to repay the Obligations.
4.14 Mortgage Loans not Usurious: The Mortgage Loans are not usurious.
4.15 ERISA: As of the date hereof, no employee benefit plan (as defined
in Section 3(2) of the Employees Retirement Security Act of 1974, as amended),
other than a multi employer plan described in Section 3(37) of ERISA) maintained
by the Borrower or under which the Borrower could have any liability under ERISA
(a) has failed to meet the minimum funding standards established in Section 302
of ERISA, (b) has failed to comply in a material respect with all applicable
requirements of ERISA and the Internal Revenue Code, including all applicable
rulings and regulations thereunder, except as shown in Schedule 6 attached
hereto and made part hereof, (c) has engaged in or been involved in a prohibited
transaction under Section 406 or ERISA OR Section 4975 of the Internal Revenue
Code which would subject Borrower to any material liability, or (d) has been
terminated if such termination would subject Borrower to any material liability.
Borrower has not assumed, or received notice of a claim asserted against
Borrower for, withdrawal liability (as defined in Section 4207 of ERISA) with
respect to any multi employer pension plan. Borrower has timely made all
contributions when due with respect to any multi employer pension plan in which
it participates and no event has occurred triggering a claim against Borrower
for withdrawal liability with respect to any multi employer pension plan in
which Borrower participates. All Employee Benefit Plans and multi employer
pension plans to which Borrower participates is listed on Schedule 6.
4.16 Year 2000 Compliance: Borrower has reviewed the areas within its
business and operations which could be adversely affected by, and have developed
or are developing a program to address on a timely basis, the risk that certain
computer applications used by Borrower may be unable to recognize and perform
properly sensitive functions prior to and after December 31, 1999. The Year 2000
Problem is not reasonably expected to result in any materially and adversely
affect a Borrowers operations, financial conditions, property (including the
Collateral) or business. Such program is in compliance with all applicable
federal and state regulatory agency directives and other requirements.
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ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
Borrower hereby covenants and agrees that from the Commencement Date
and until satisfaction in full of the Obligations, unless Lender shall otherwise
consent in writing, Borrower shall do the following:
5.1 Use of Advance: Use the proceeds of each Advance only to fund the
Mortgage Loan described in the Advance Request submitted to Lender for such
Advance.
5.2 Financial Reporting: Furnish to Lender:
(a) Financial Statements of Borrower and each Person
identified as Guarantor within ninety (90) days after the end of each fiscal
year of Borrower or Guarantor, as the case may be. Financial Statements of
Guarantor need not be audited or prepared by an independent certified public
accountant, but must be certified by the Guarantor as true and correct.
(b) Such other information as is reasonably requested by
Lender to determine the financial condition of any Obligor or any Person
proposed to be an Approved Investor.
5.3 Maintenance Account: Maintain the Maintenance Account at all times
funded with the Minimum Deposit.
5.4 Collateral Documents: Originate each Mortgage Loan in full
compliance with Applicable Requirements. Cause the Settlement Agent to take
custody of the Mortgage Note and deliver same, along with other required
documents, to Lender on the next Business Day following the Origination.
Maintain custody of all other Collateral Documents in good condition and forward
same to Approved Investor for inspection under the Loan Purchase Commitment
promptly after Origination. Promptly after Origination, cause each Mortgage to
be properly recorded in the appropriate filing office of the jurisdiction in
which the real property described in the Mortgage is located. Do all things
necessary to fulfill each condition precedent to purchase under the Loan
Purchase Commitment. Cure any deficiencies in the Collateral Documents at
Borrower's sole cost and expense.
5.5 Minimum Net Worth: Maintain a minimum net worth (aggregated for
both Borrower and Guarantor) at all times not less than the greater of (a) such
amount, if any, as is required under Applicable Requirements; or (b) $250,000;
or (c) such higher amount required by the Lender.
5.6 Management: Maintain management and offices reasonably satisfactory
to Lender and furnish to Lender within five (5) days of any election or
appointment of directors, written notice of any change in the persons who from
time to time become directors of Borrower.
5.7 Servicing: Until such time as the Mortgage Loan is sold to the
Approved Investor, service the Mortgage Loan in accordance with all Applicable
Requirements, maintain tax and insurance escrows in accordance with Applicable
Requirements, and if required by Lender, remit
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all principal and interest received on account of the Mortgage Loan to Lender.
Deliver or cause to be delivered to Lender in accordance with the Warehousing
Guide, all post-closing documentation as and when required thereunder. Cause
insurance to be maintained as required under the Collateral Documents and the
Applicable Requirements naming Borrower and Lender (as their interests may
appear), as mortgagee.
5.8 Notices: Notify Lender of any default under the Loan Purchase
Commitment or any Collateral Documents; any Judgment against any Obligor or
affecting any Collateral; any bankruptcy or insolvency proceeding commenced by
or against any Obligor; any event or occurrence which would, if not cured within
the applicable notice or grace period, constitute an Event of Default under the
Loan Documents; or the Collateral Documents; or any other mortgage warehouse
loan agreement with any other Lender; and any change in the principal place of
business of Borrower.
5.9 Further Actions: Cooperate and join with Lender, at its own
expense, in taking all such further actions as Lender, in its sole judgment,
shall deem necessary to effectuate. the provisions of the Loan Documents and to
perfect or continue the perfected status of all Encumbrances granted to Lender
pursuant to the Loan Documents and the Collateral Documents, including, without
limitation, the execution, delivery and filing of financing statements,
amendments thereto and continuation statements, the delivery of chattel paper,
documents or instruments to Lender.
5.10 Enforcement of Mortgage Loan: Enforce payment and collection, at
Borrowers expense, of all Mortgage Loans, Mortgage Notes and other Collateral.
5.11 Compliance with Administrative Requests of Lender: Comply with
such reasonable administrative directions as Lender may give in order to provide
proper servicing of the Advances hereunder.
5.12 New Locations: Furnish Lender with the name and addresses of all
new offices and locations of Borrower, including relocations of existing
offices, and the relocation of Borrower's including relocations of existing
offices, and the relocation of Borrower's principal place of business/chief
executive office, each no later than thirty (30) Business Days prior to the date
Borrower commences occupation of said premises.
5.13 Compliance With Laws: Comply with all present and future laws,
rules and regulations applicable to it in the operation of its business
(including, without limitation, all environmental and ERISA laws and
regulations), and all material agreements to which it is subject.
5.14 Notice of Litigation: Give immediate notice to Lender of: (a) any
litigation in which it is a party if an adverse decision therein would require
it to pay more than Twenty Five Thousand Dollars ($25,000.) in such litigation
or in the aggregate for all such litigation or deliver assets the value of which
exceeds such sum (whether or not the claim is considered to be covered by
insurance); and (b) the institution of any other suit or any administrative
proceeding involving
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it that might materially and adversely affect its operations, financial
conditions, property or business.
5.15 ERISA: (a) Fund all its employee benefit plans in accordance with
no less than the minimum funding standards of Section 302 of ERISA; (b) promptly
advise Lender of the occurrence of any material Reportable Event or Prohibited
Transaction (as each such term is defined by ERISA) with respect to any such
employee benefit plan(s) and the action which Borrower proposes to take with
respect thereto; and (c) promptly advise Lender of any claim for withdrawal
liability made against it or a member of its Controlled Group (as such term is
defined by ERISA).
5.16 Year 2000: Take all action necessary to assure that at all times
the computer based systems utilized by Borrower and each of its subsidiaries, if
any, are able to effectively interpret, process and manipulate data, including
dates before, on and after December 31, 1999. At Lender's request, Borrower
shall provide to Lender information regarding its efforts to ensure that the
computer-based Systems utilized by Borrower and each of its subsidiaries, if
any, are able to recognize and perform, without error, functions involving dates
before, on and after December 31, 1999.
5.17 Landlord's Acknowledgment: Obtain from the landlord of each
premises leased by Borrower a waiver of all rights in or to the Collateral and
an agreement that Lender may have access to such premises. Lender's standard
form of Landlord Acknowledgment is attached to this Agreement as Exhibit H.
ARTICLE VI
NEGATIVE COVENANTS
------------------
Borrower hereby covenants and agrees that from the Commencement Date
until satisfaction in full of the Obligations, it will not do any one or more of
the following without first obtaining the written consent of Lender:
6.1 Identity: Change its name, enter into or effect any merger,
consolidation, share exchange, division, conversion, reclassification,
reorganization or re-capitalization, or other transaction of like effect, or
dissolve or sell all or substantially all of its assets.
6.2 Transfer: Sell or transfer any of the Collateral (except to the
Approved Investor upon payment of the Committed Purchase Price to the Collection
Account) or permit or suffer any Encumbrance (other than the Loan Documents)
upon the Collateral.
6.3 Agreements: Modify, terminate or fail to enforce the Loan Purchase
Commitment or any Collateral Documents.
6.4 Collection Account: Ask, demand, receive or take any payment under
any Loan Purchase Commitment or otherwise with respect to the sale or transfer
of any Mortgage Loan except by direct payment of the full Committed Purchase
Price to the Collection Account.
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6.5 Affiliates: Pay to any Obligor or Affiliate of any Obligor any
fees, compensation, or other sums from proceeds of any Advance or any Mortgage
Loan except pursuant to a written agreement approved in writing by Lender.
6.6 No Compromise of Collateral: Make in any compromise, adjustment or
settlement in respect of any of the Collateral or accept anything other than
cash in payment of the Collateral.
6.7 Improper Use of Proceeds: Use the proceeds of the Loan, or permit
them to be used, for any purpose other than to purchase or originate Eligible
Mortgage Loans pursuant to the terms of this Agreement.
6.8 No Change in Ownership: Permit or suffer any change in the
shareholders, partners or members, as applicable, of Borrower.
ARTICLE VII
EVENTS OF DEFAULT
-----------------
An event of default ("Event of Default") under this Agreement shall be
deemed to exist if any one or more of the following events occurs and is
continuing, whatever the reason therefor:
7.1 Failure to Pay: Any principal, interest, fees or other Obligations
requiring payment or deposit of money under this Agreement or any of the Loan
Documents is not paid or deposited as and when due, whether upon the expiration
of the Advance Repayment Period, the Termination Date, acceleration, or
otherwise.
7.2 Invalidity: The validity, binding nature of; or enforceability of
any material term or provision of any of the Loan Documents, any Collateral
Documents or the Loan Purchase Commitment is disputed by, on behalf of; or in
the right or name of any Person or any material term or provision of any such
document is found or declared to be terminated, invalid, avoidable, or
non-enforceable by any court of competent jurisdiction.
7.3 False Warranties; Breach of Representations: Any warranty or
representation made by any Obligor in this Agreement or any other Loan Document
or in any Advance Request or other writing delivered under or pursuant t6 this
Agreement or any other Loan Document, or in connection with any provision of
this Agreement or related to the transactions contemplated hereby shall prove to
have been false or incorrect or breached in any material respect on the date as
of which made.
7.4 Judgments: Issuance of a Judgment; (a) affecting any of the
Collateral; or (b) against any Obligor which, when aggregated with any other
Judgments, exceeds Fifty Thousand Dollars ($50,000.00) outstanding at any one
time; or (c) which in the sole judgment of the Lender, would have a material
adverse effect upon the ability of any Obligor to meet the Obligations to the
Lender under this Agreement, regardless of amount.
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7.5 Bankruptcy; Insolvency; Liquidation; Death:
(a) Any Obligor becomes insolvent, or generally fails to pay,
or is generally unable to pay, or admits in writing its inability to pay its
debts as they become due, or applies for, consents to, or acquiesces in, the
appointment of a trustee, receiver or other custodian for such Obligor, or a
substantial part: of its property, or makes a general assignment for the benefit
of creditors.
(b) Any Obligor commences any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any state or federal bankruptcy
or insolvency law, or any dissolution or liquidation proceeding.
(c) Any bankruptcy, reorganization, debt arrangement, or other
case or proceeding under any state or federal bankruptcy or insolvency law, or
any dissolution or liquidation proceeding, is involuntarily commenced against or
in respect of any Obligor, or an order for relief is entered in any such
proceeding.
(d) A trustee, receiver, or other custodian is appointed for
any Obligor or a substantial part of such Obligor's property.
(e) The death of any obligor, provided however, Borrower shall
have 15 days subsequent to said death to advise Lender of that fact and to
submit to Lender the name of a substitute Guarantor (and said substitute's
personal financial statement), or to propose another Guaranty arrangement for
consideration by the Lender. Lender shall have a reasonable time to consider
such suggestions, and during such time, the event of the death of the Guarantor
shall not be considered an Event of Default. Nothing in the foregoing paragraph
shall prevent the Lender from declaring an Event of Default based on the death
of the Guarantor, if Lender, in its sole discretion, determines that delaying
such declaration creates an unreasonable risk to the Collateral or to Borrowers
ability to perform it obligations under the Agreement.
7.6 Breach of Covenants or Conditions: If and to the extent not
included in any of the occurrences listed above, any Obligor fails to perform or
observe any term, covenant, agreement or condition in this Agreement or any of
the other Loan Documents or is in violation of or non-compliance with any
provision of this Agreement or any of the Loan Documents, and has not remedied
and fully cured such non-performance, non-observance, violation of or
noncompliance within fifteen (15) days upon the earlier of (a) Lender has given
written notice thereof to such Obligor or (b) Borrower becoming aware of such
failure, violation or noncompliance; provided, however, that during such fifteen
(15) day period Lender's obligations to make Advances to Borrower shall be
suspended.
7.7 Material Adverse Change: The occurrence of any material adverse
change in the business', or financial or operating condition of the Borrower.
7.8 Loss of Certification: The loss by Borrower for any reason of any
presently held or later obtained FNMA and/or FHLMC certification.
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7.9 Other Defaults: The default by Borrower under the terms and
conditions of any other loan or credit agreement or other material agreement
with Lender or any third party.
7.10 Guarantor Defaults: The default by a Guarantor under the terms and
conditions of a Surety Agreement.
ARTICLE VIII
REMEDIES
--------
Upon the occurrence of an Event of Default, Lender shall have the
right, in its sole discretion, to pursue any one or more of the following rights
and remedies, without notice to any Obligor:
8.1 Further Advances: Refuse to make any further Advances.
8.2 Acceleration: Declare immediately due and payable the entire unpaid
principal balance of the Loan, all interest and fees accrued and unpaid thereon,
and all other amounts and Obligations payable by Borrower under this Agreement
and the other Loan Documents, all without protest, presentment, demand, or
further notice of any kind to Borrower, all of which are expressly waived by
Borrower.
8.3 Set-Off: Apply to the then unpaid balance of the Obligations any
items or funds held by Lender, any funds of Borrower in the Collection Account
or the Maintenance Account and any and all deposits (whether general or special,
time or demand, matured or non-matured, fixed or contingent, liquidated or
non-liquidated) now or hereafter maintained by Borrower with Lender, and any
other indebtedness at any time held or owing by Lender to or for the credit or
the account of Borrower. Lender is hereby authorized to charge any such account
or indebtedness for any amounts due to Lender. Such right of set-off shall exist
whether or not Lender shall have made any demand under this Agreement, any
Promissory Note or any other Loan Document and whether or not the Loan and the
other Obligations are matured or non-matured. Borrower hereby confirms Lender's
lien on such accounts and right of set-off and nothing in this Agreement shall
be deemed any waiver or prohibition of such lien and right of set-off.
8.4 UCC Remedies: Transfer the Mortgage Loan to Lender's name by
recordation of the Mortgage assignment; sell the Mortgage Loan and the
Collateral Documents to any one or more Persons on commercially reasonable terms
acceptable to Lender at one or more public or private sales; and otherwise
exercise all rights of a secured party under the Uniform Commercial Code then in
effect in the jurisdiction in which the Collateral is located.
8.5 Other Remedies: Enforce the Loan Purchase Commitment, collect
payments under the Collateral Documents, and otherwise proceed to protect and
enforce its rights under this Agreement and the other Loan Documents by
exercising such remedies as are available to Lender in respect thereof under
applicable law, either by suit in equity or by action at law, or both, whether
for specific performance of any provision contained in this Agreement or any of
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the other Loan Documents or in aid of the exercise of any power granted in this
Agreement or any of the other Loan Documents.
ARTICLE IX
MISCELLANEOUS
9.1 Remedies Cumulative; No Waiver: The rights, powers and remedies of
Lender provided in this Agreement and the other Loan Documents are cumulative
and not exclusive of any right, power or remedy provided by law or equity, and
no failure or delay on the part of Lender in the exercise of any right, power,
or remedy shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power, or remedy preclude other or further exercise
thereof; or the exercise of any other right, power or remedy.
9.2 Notices: Every notice and communication under this Agreement or any
of the other Loan Documents shall be in writing and shall be given by neither
(a) hand-delivery, (b) first class mail (postage prep aid), (c) nationally
recognized overnight commercial courier, or (d) telecopy or other means of
electronic transmission, if confirmed promptly by any of the methods specified
in clauses (a),(b) and (c) of this sentence, to Borrower's Address or Lender's
Address, as the case may be, set forth in Article I. Notice given by telecopy or
other means of electronic transmission shall be deemed to have been given and
received when sent. Notice by overnight courier shall be deemed to have been
given and received on the date scheduled for delivery. Notice by mail shall be
deemed to have been given and received three (3) calendar days after the date
first deposited in the United States Mail. Notice by hand delivery shall be
deemed to have been given and received upon delivery. A party may change its
address by giving written notice to the other party as specified herein.
9.3 Costs Expenses and Attorneys' Fees: Whether or not the transactions
contemplated by this Agreement and the other Loan Documents are fully
consummated, Borrower shall promptly pay (or reimburse, as Lender may elect) all
costs and expenses which Lender has incurred or may hereafter incur in
connection with the negotiation, preparation, reproduction, interpretation and
enforcement of this Agreement, the other Loan Documents or the Collateral
Documents, the collection of all amounts due hereunder and thereunder, and any
amendment, modification, consent or waiver which may be hereafter requested by
Borrower or otherwise required. Such costs and expenses shall include, without
limitation, the fees and disbursements of counsel to Lender, the costs of
appraisal fees, searches of public records, costs of filing and recording
documents with public offices, and similar costs and expenses incurred by
Lender. Upon the occurrence of an Event of Default, such costs shall also
include the fees of any accountants, consultants or other professionals retained
by Lender. Borrower's reimbursement obligations under this section shall Survive
any termination of this Agreement.
9.4 Survival of Covenants: This Agreement and all covenants,
agreements, representations and warranties made herein and in any certificates
delivered pursuant hereto shall Survive the making of the Loan and the execution
and delivery of each Promissory Note and,
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subject to other provisions of this Article IX, shall continue in full force and
effect until all of the Obligations have been fully paid, performed, satisfied
and discharged.
9.5 Counterparts: Effectiveness: This Agreement may be executed in any
number of counterparts and by the different parties on separate counterparts.
Each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement Signature on
the Loan Documents by facsimile shall bind the parties thereto.
9.6 Headings: The headings of sections have been included herein for
convenience only and shall not be considered in interpreting this Agreement.
9.7 Payment Due On A Day Other Than A Business Day: If any payment due
or action to be taken under this Agreement or any Loan Document falls due or is
required to be taken on a day which is not a Business Day, such payment or
action shall be made or taken on the next succeeding Business Day and such
extended time shall be included in the computation of interest.
9.8 Judicial Proceedings: Each party to this Agreement agrees that any
suit, action or proceeding, whether claim or counterclaim, brought or instituted
by any party hereto or any successor or assign of any party, on or with respect
to this Agreement or any of the other Loan Documents or the dealings of the
parties with respect hereto, or thereto, shall be tried only by a court and not
by a jury. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. Further, each
party waives any right it may have to claim or recover, in any such suit, action
or proceeding, any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. BORROWER ACKNOWLEDGES AND
AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND
THAT LENDER WOULD NOT EXTEND CREDIT TO BORROWER IF THE WAIVERS SET FORTH IN THIS
SECTION WERE NOT A PART OF THIS AGREEMENT.
9.9 Governing Law: This Agreement shall be construed in accordance with
and governed by the internal laws of the State of New Jersey. Neither this
Agreement nor any Promissory Note shall be construed to require payment of
interest in an amount, which exceeds the maximum interest rate permitted under
applicable laws.
9.10 Integration: This Agreement and the other Loan Documents
constitute the sole agreement of the parties with respect to the subject matter
hereof and thereof and supersede all oral negotiations and prior writings with
respect to the subject matter hereof and thereof.
9.11 Amendment and Waiver: No amendment of this Agreement, and no
waiver of any one or more of the provisions hereof shall be effective unless set
forth in writing and signed by the parties hereto.
24
<PAGE>
9.12 Successors and Assigns: This Agreement (a) shall be binding upon
Borrower and Lender and their respective successors and assigns, and (b) shall
inure to the benefit of Borrower and Lender and their respective successors and
assigns, provided, however, that Borrower may not assign its rights hereunder or
any interest herein without the prior written consent of Lender, and any such
assignment or attempted assignment by Borrower shall be void and of no effect
with respect to Lender.
9.13 Severabilitv of Provisions: Any provision in this Agreement that
is held to be inoperative, unenforceable, voidable, or invalid in any
jurisdiction shall, as to that jurisdiction, be ineffective, unenforceable, void
or invalid without affecting the remaining provisions in any other jurisdiction,
and to this end the provisions of this Agreement are declared to be severable.
9.14 Consent to Jurisdiction and Service of Process: Borrower
irrevocably appoints each and every officer of Borrower as its attorneys upon
whom may be served, by regular or certified mail at the address for notices
furnished under this Article IX, any notice, process or pleading in any action
or proceeding against it arising out of or in connection with this Agreement or
any of the other Loan Documents. Borrower hereby (a) consents that any action or
proceeding against it be commenced and maintained in any state or federal court
within Camden County, State New Jersey by service of process on any such
officer; (1,)agrees that the courts of the State of New Jersey and the United
States District Court for the District of New Jersey shall have jurisdiction
with respect to the subject matter hereof and the person of Borrower and the
Collateral; and (c) waives any objection that such Borrower may now or hereafter
have as to the venue of any such suit, action or proceeding brought in such a
court or that such court is an inconvenient forum. Notwithstanding the
foregoing, Lender, in its absolute discretion, may also initiate proceedings in
the courts of any other jurisdiction in which Borrower may be found or in which
any of its properties or the Collateral may be located.
9.15 Surrender: If, after receipt of any payment of all or any part of
the Obligations, Lender is compelled to surrender such payment to any Person or
entity for any reason (including, without limitation, a determination that such
payment is void or voidable as a preference or fraudulent conveyance, an
impermissible setoff; or a diversion of trust funds), then this Agreement and
the other Loan Documents shall continue in full force and effect, and Borrower
shall be liable for, and shall indemnify, defend and hold harmless Lender with
respect to the full amount so surrendered including Lender's costs and expenses
under the indemnity set forth in Section 9.16 below.
9.16 Indemnification: Borrower shall indemnify, defend and hold
harmless Lender and its officers, directors, employees and agents with respect
to any and all claims, expenses, demands, losses, costs, fines or liabilities of
any kind, including reasonable attorneys' fees and costs, arising from or in any
way related to (a) the acts or omissions of Borrower or any Obligor under,
pursuant to, or related to this Agreement and the other Loan Documents; (b) any
Obligor's breach or violation of any representation, warranty, covenant or
undertaking contained in this Agreement or the other Loan Documents; (c) any
Obligor's failure to comply with all Applicable Requirements; and (d) any claims
arising from or related to the Collateral.
25
<PAGE>
9.17 Survival: Any reimbursement or indemnification obligation
contained in this or any other Loan Document shall survive termination of this
Agreement or payment in full of the Loan. Without limiting the foregoing, the
provisions of Sections 9.3, 9.15 and 9.16 of this Agreement shall survive the
termination of this Agreement and the other Loan Documents and shall be and
remain effective notwithstanding the payment of the Obligations, the
cancellation of any Promissory Note, the release of any Encumbrance securing the
Obligations or any other action which Lender may have taken in reliance upon its
receipt of such payment. Any cancellation of any Promissory Note, release of any
Encumbrance or other such action shall be deemed to have been conditioned upon
any payment of the Obligations having become final and irrevocable.
26
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their duly authorized representatives and delivered as of the
Commencement Date.
NATIONAL MORTGAGE WAREHOUSE, LLC
By: /s/ Joseph F. Doyle
-----------------------
Executive VP
Westmark Mortgage Corporation
By: /s/ Payton Story, III
-----------------------
President
Attest: /s/ Joan DeLuca
-----------------------
Assistant Secretary
Corporate Seal
27
<PAGE>
EXHIBIT LIST
------------
EXHIBIT A = Advance Request
--------- ---------------
EXHIBIT B = Approved Investors
--------- ------------------
EXHIBIT C = Standard Form of Bailee Letter
--------- ------------------------------
EXHIBIT D-1 = Borrower Authorization (Corporate)
----------- ----------------------------------
EXHIBIT D-2 = Borrower Authorization (Limited Liability Company)
----------- --------------------------------------------------
EXHIBIT E = Promissory Note
--------- ---------------
EXHIBIT F = Settlement Instructions
--------- -----------------------
EXHIBIT H = Landlord Acknowledgment
--------- -----------------------
28
<PAGE>
EXHIBIT "B"
APPROVED INVESTORS
(List here the name, address, Phone number and contact person for all
investors to whom you will be selling loans you expect to fund with your line of
credit)
29
<PAGE>
EXHIBIT "C"
STANDARD FORM OF BAILEE LETTER
BAILEE LETTER
----------
----------
Attention:
Re: [Insert Name of Borrower] (the "Originator")
Gentlemen:
National Mortgage Warehouse, LLC. ("National") is the holder of a
security interest in the enclosed original mortgage note and other mortgage loan
documents (collectively, the "Collateral") now or hereafter delivered to you by
Originator or National for your inspection prior to purchase of the Collateral
by you pursuant to a certain loan purchase commitment (the "Loan Purchase
Commitment") between you and the Originator.
National delivers the Collateral to you to be held by you as bailee
and, by your receipt of the Collateral, you agree to hold the Collateral as
bailee, for the benefit of National as secured party pursuant to applicable
provisions of the Uniform Commercial Code and the terms of this Bailee Letter.
Your obligations as bailee with respect to the Collateral shall
terminate without further action on the part of National at the time you
purchase the Collateral by remitting in full the purchase price specified in the
Loan Purchase Commitment (the "Committed Purchase Price") by wire transfer of
immediately available funds to our account specified below and such funds have
been received in such account or, if earlier, upon your re-delivery of the
Collateral to us at the address set forth below or such other address as you are
notified by National in writing. Until the Committed Purchase Price is received
by National, the Collateral remains subject to the liens and security interests
granted by the Originator to National. You are not authorized to deliver or
release the Collateral to any other person (including, without limitation, the
Originator) other than National.
INSTRUCTIONS FOR WIRE TRANSFER OF FUNDS:
Chase Manhattan Bank New York, NY
ABA Routing #021000021
for further credit to:
NMW Collection Account
# 230-199224
INSTRUCTIONS FOR RE-DELIVERY OF COLLATERAL
30
<PAGE>
National Mortgage Warehouse, LLC
1020 N. Kings Highway, Suite 200
Cherry Hill, N. 3.08034
Until receipt of the Committed Purchase Price, National reserves the
right at any time, upon written notice to you, to require immediate delivery and
return of the Collateral to us at the address set forth above. In any event,
unless the Committed Purchase Price has been received, you agree to re-deliver
and return the Collateral to National no later than the date which is twenty
(20) calendar days after the date of this letter without any notice, demand or
other action by us.
National also holds an assignment of, and security interest in,
Originator's rights under the Loan Purchase Commitment including, without
limitation, the right to receive payment of the Committed Purchase Price and the
right of prior approval of any adjustment in the Committed Purchase Price.
If you are in agreement with the foregoing, please have the enclosed
copy of this letter executed by your authorized officer and return it to the
address of National set forth above. In the event that the foregoing is not
acceptable to you, please deliver and return to us immediately the Collateral at
the address of National set forth above by overnight courier delivery. If
National does not receive a copy of this letter executed by you, then you shall
be deemed to have accepted possession of the Collateral as bailee for National,
the secured party, effective the date first written above.
Very truly yours,
NATIONAL MORTGAGE WAREHOUSE, LLC
By:
----------------------------
Agreed to and accepted as of
the date set forth above:
--------------
By:
----------------------------
Name:
Title:
31
<PAGE>
Form 2
2. Endorsement of Mortgage Note and/or execution of Assignment of
Mortgage.
Number of signatures required
---------------
<TABLE>
<CAPTION>
<S> <C> <C>
----------------------------- ---------------------- ---------------------------------
Authorized signature Title Typed or printed name
----------------------------- ---------------------- ---------------------------------
Authorized signature Title Typed or printed name
----------------------------- ---------------------- ---------------------------------
Authorized signature Title Typed or printed name
----------------------------- ---------------------- ---------------------------------
Authorized signature Title Typed or printed name
</TABLE>
The signatures contained above are the original and personal signature of the
person so signing and shall bind the company in the context of the form or
document to which said signature is endorsed. This form will be amended in
writing to add or delete any signature and such amendment will be effective from
the date and time delivered to NMW, LLC.
Westmark Mortgage Corporation
By: Date:
--------------------------------- ----------------
32
<PAGE>
Form 2
AUTHORIZED SIGNATURES
Westmark Mortgage Corporation
To: National Mortgage Warehouse, LLC
This form contains a complete list and original signatures of those persons who
are authorized by the undersigned company to execute the items referred to below
in its dealings with NMW, LLC. Execution of the respective form or document by
the person or persons listed shall constitute execution by the undersigned
company and fully bind the company in the context of the form or document so
executed.
Indicate if more than one signature is required.
1. Advance Request Letter (Exhibit A).
Number of signatures required
------------------
<TABLE>
<CAPTION>
<S> <C> <C>
----------------------------- ---------------------- ---------------------------------
Authorized signature Title Typed or printed name
----------------------------- ---------------------- ---------------------------------
Authorized signature Title Typed or printed name
----------------------------- ---------------------- ---------------------------------
Authorized signature Title Typed or printed name
----------------------------- ---------------------- ---------------------------------
Authorized signature Title Typed or printed name
</TABLE>
33
<PAGE>
EXHIBIT "D-1"
BORROWER AUTHORIZATION (CORPORATE)
(Disregard if Borrower is not a corporation)
I, the undersigned secretary of Westmark Mortgage Corporation, a
California corporation ("Borrower") do hereby certify that I am the Secretary of
Borrower and that, as such, I am authorized to execute this Certificate on
behalf of Borrower, and I further certify that at a meeting of the Board of
Directors of Borrower, duly and regularly called and held, a quorum being
present throughout, the following resolutions were unanimously adopted and
recorded in the minute books of Borrower, kept by me, and are in accord with and
pursuant to the Articles of Incorporation and by-laws of Borrower, true copies
of which are attached hereto as, respectively, Exhibits "A" and "B", and such
Articles of Incorporation and by-laws are now in fill force and effect. I
further certify that attached hereto as Exhibit "C" is a certification issued by
the authorized officer of the state in which the Borrower is incorporated
attesting to the subsistence and good standing of Borrower.
RESOLVED, that Borrower is hereby authorized and directed to enter into
a warehouse credit and security transaction in the amount of ten million dollars
($ 10,000,000) (the "Loan") with National Mortgage Warehouse, LLC. ("Lender") as
set forth in the Warehouse Credit and Security Agreement attached hereto, and do
all things necessary or appropriate to enter into and perform its obligations
thereunder.
FURTHER RESOLVED, that the President, any Vice-President or other
proper officer of Borrower are authorized and directed to execute and deliver in
the name of Borrower and on its behalf all documents required to be delivered by
Borrower in connection with the Loan and do all other acts in the name of
Borrower and in its behalf, as are necessary or proper in order for the
transactions contemplated in the Commitment to be consummated in accordance with
their respective terms.
FURTHER RESOLVED, that any officer shall be authorized to execute on
behalf of the corporation an Incumbency Certificate in a form satisfactory to
the Lender, containing the names and original signatures of those officers and
employees or agents of the corporation who shall be authorized to execute
certain documents and other items on behalf of the corporation, which execution
shall be filly effective and bind the corporation in the context thereof. Said
Incumbency Certificate may be changed or modified at any time and shall be filly
effective if signed on behalf of the corporation by any officer. Any Incumbency
Certificate previously executed by this corporation is hereby ratified and shall
remain in fill force and effect until changed or modified.
I further certify that each of the following persons has been duly
elected and qualified to hold and currently holds the office set forth opposite
his name below and that the signature of each such person appearing opposite his
name below in his own true signature:
34
<PAGE>
<TABLE>
<CAPTION>
Name Office Signature
---- ------ ---------
<S> <C> <C>
----------------------------- ---------------------- ---------------------------------
----------------------------- ---------------------- ---------------------------------
----------------------------- ---------------------- ---------------------------------
</TABLE>
IN WITNESS WHEREOF, I have hereunto set my hand and cause the seal of
Borrower to be affixed as of _______________.
-----------------------------
(Corporate Seal)
35
<PAGE>
Promissory Note Exhibit E
--------------- ---------
$10,000,000 October 4, 1999
FOR VALUE RECEIVED, the undersigned Westmark Mortgage Corporation, a California
corporation ("Borrower"), hereby promises to pay to the order of National
Mortgage Warehouse, LLC, a Delaware Limited Liability Company (Hereinafter
called the "Lender", or together with its successors and assigns, the "Holder")
at such place as the Holder may designate from time to time, the principal sum
of ten Million Dollars ($10,000,000) or so much thereof as may be outstanding
from time to time as evidenced by the books and records of the Lender, pursuant
to the Warehouse Credit and Security Agreement ("Agreement") described below,
and to pay interest on said principal sum or such Part thereof as shall remain
unpaid from time to time, from the date of each Advance until repaid in full,
and all other fees and charges due under the Agreement, at the rate and at the
times set forth in the Agreement. All payments hereunder shall be made in lawful
money of the United States and in immediately available funds.
This Note is given to evidence an actual warehouse line of credit in the above
amount and is the Promissory Note referred to in the Agreement dated the date
hereof between the Borrower and the Lender, as the same may be amended or
supplemented from time to time, and is entitled to the benefits thereof.
Reference is made to the Agreement (which is incorporated herein by reference as
fully and with the same effect as if set forth herein at length) for a
description of the Collateral, a statement of the covenants and agreements, a
statement of the rights and remedies and securities afforded thereby and other
matters contained therein. Capitalized terms used herein shall have the same
meaning given to them in the Agreement, unless otherwise defined herein.
This Note may be prep aid in whole or in part at any time without premium or
penalty.
Should this Note be placed in the hands of an attorney for collection, the
Borrower agrees to pay, in addition to principal and interest, fees and charges
due under the Agreement, and all costs of collecting this Note, including
reasonable attorney's fees and expenses.
The Borrower hereby waives demand, notice, protest and presentment.
This Note shall be construed and enforced in accordance with the laws of the
State of New Jersey, without reference to its principles of conflicts of law.
36
<PAGE>
IN WITNESS WHEREOF, the Borrower has executed this Note as of the day and year
first above written.
Westmark Mortgage Corporation
-----------------------------
By:
-----------------------------
State of Florida
ss
County of
-----------------------------
On the 4th day of October ,1999, before me, a Notary Public or other person
authorized by law to take acknowledgments, personally appeared Mark Schaftlein,
the President of Westmark Mortgage Corporation, a California corporation, being
known to me or proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her authorized capacity, and that by such
signature on the instrument, the person or entity upon behalf of which the
person acted, executed the instrument.
Witness my hand and official seal.
-----------------------------
Notary Public
My Commission expires:
37
