TABLE OF CONTENTS
MORTGAGE WAREHOUSE LOAN AND SECURITY AGREEMENT
BETWEEN
CONTIMORTGAGE CORPORATION
AND
MORTGAGE PLUS EQUITY AND LOAN CORP.
1. DEFINITIONS.
2. ADVANCES.
3. SALE OF MORTGAGE LOANS ADVANCED UNDER THE AGREEMENT.
4. CONDITIONS PRECEDENT TO ADVANCES.
5. REPRESENTATIONS AND WARRANTIES.
6. INTEREST, FEES AND OTHER PAYMENTS.
7. REPAYMENT OF ADVANCES.
8. SECURITY.
9. COVENANTS OF BORROWER.
10. EVENTS OF DEFAULT AND REMEDIES.
11. INDEMNIFICATIONS.
12. NOTICES.
13. ACCESS TO BORROWER DOCUMENTS AND INFORMATION.
14. TERMINATION.
15. MISCELLANEOUS PROVISIONS.
EXHIBIT A- PROMISSORY NOTE
EXHIBIT B- ESSENTIAL MORTGAGE FILE DOCUMENTS
EXHIBIT C- FORM OF REQUEST FOR BORROWING
EXHIBIT D- GENERAL UNDERWRITING GUIDELINES AND
PRODUCT DESCRIPTIONS
EXHIBIT E- CLOSING AGENT INSTRUCTION LETTER
EXHIBIT F- GUARANTEE AGREEMENT
EXHIBIT G- LISTING OF OTHER CREDIT FACILITIES OF
BORROWER
EXHIBIT H- OFFICER'S CERTIFICATE
EXHIBIT I- WIRING INSTRUCTIONS
EXHIBIT J- LISTING OF QUALIFIED INVESTORS
EXHIBIT K- UCC-1 SCHEDULE A
EXHIBIT 10.12
MORTGAGE WAREHOUSE LOAN AND SECURITY AGREEMENT
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THIS MORTGAGE WAREHOUSE LOAN AND SECURITY AGREEMENT made this 20TH
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day of MARCH, 1998 by and between CONTIMORTGAGE CORPORATION, a Delaware
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corporation, with its principal address at One ContiPark, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ("Lender") and MORTGAGE PLUS EQUITY AND LOAN CORP.,
a New York corporation, with its principal address at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Borrower").
RECITALS
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WHEREAS, Lender wishes to lend, and Borrower wishes to borrow,
subject to the terms and conditions stated below, money in connection with a
mortgage warehouse funding facility for certain mortgage loans originated by
Borrower.
WHEREAS, Borrower expects to use this mortgage warehouse facility to
fund the origination of certain mortgage loans and Lender expects to fund such
activities of Borrower through advances of money under this Agreement.
WHEREAS, Lender expects repayment of such advances made under this
Agreement from the subsequent sale by Borrower of the mortgage loans originated
by Borrower.
PROVISIONS
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NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, and in consideration of the premises and of the covenants and agreements
hereinafter contained, agree as follows:
1. DEFINITIONS.
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1.1. Whenever used in this Agreement the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
Advance: Any advance of money by Lender to Borrower made
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under this Agreement.
Advance Date: Any Business Day on which Lender makes on
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Advance, which shall be no earlier than one (1) Business Day prior to the date
on which the proceeds of the Mortgage Loan for which such funds are to be
advanced is required to be disbursed under the terms of the Mortgage Loan and
applicable law.
Advance Repayment Date: The date not later than thirty
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(30) calendar days following an Advance Date, or the next Business Day after
such date if such date does not fall on a Business Day.
Agreement: This Mortgage Warehouse Loan and Security
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Agreement, including all exhibits and schedules attached or delivered pursuant
hereto, and as the same may be amended, extended and supplemented from time to
time.
Approved Title Underwriter: Any title underwriter that is
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authorized to issue title policies in the state where the subject Mortgage Loan
is to be originated and is either (a) expressly approved by Lender in writing,
or (b) currently rated by LACE Title Rating Corporation as C+ or better with
assets in excess of $10 million, unless such title underwriter is expressly
disapproved by Lender in writing.
Business Day: Any day that is not a Saturday, Sunday or
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other day on which commercial banking institutions in the City of New York are
authorized or obligated by law to be closed.
Closing Agent: Any party other than the Borrower, or an
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entity controlled by or affiliated with Borrower, approved by Lender to receive
Advances on behalf of Borrower.
Closing Agent Instruction Letter: A letter agreement in
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the form of Exhibit "E" attached hereto to be executed and delivered in
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accordance with Section 4.2(c) of this Agreement for each Mortgage Loan that is
not subject to a recision period under applicable law.
Collateral: The property described in Section 8.1 below.
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Commitment Amount: The total amount of Advances that may be
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outstanding at any time under this Agreement, which amount shall be $5,000,000
or such lesser amount as provided for below. Notwithstanding the foregoing to
the contrary, in the event that Borrower fails to borrow at least 125% of the
then applicable Commitment Amount in each of any two consecutive calendar
months, the then applicable Commitment Amount may be unilaterally reduced by
Lender, in its sole discretion and upon written notice to Borrower, to a new
Commitment Amount which shall be equal to 80% of the average amount of all
borrowings made by Borrower during the subject two consecutive calendar months.
ContiMortgage Qualified Mortgage Loan: A Mortgage Loan
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meeting that portion of the Underwriting Guidelines designated as the
"ContiMortgage Underwriting Guidelines".
Core Documents: As to each Mortgage Loan:
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(a) the original Note, endorsed in blank;
(b) either (i) the original Mortgage with official evidence
of recording, or (ii) a copy of the original Mortgage, certified to Lender as a
true and correct copy by an officer of Borrower or by the Closing Agent;
(c) an original executed assignment of mortgage (as well as
all intervening assignments, if any) assigning in blank the Mortgage, which
assignment(s) of mortgage shall be in form and substance acceptable for
recording in the State in which the Mortgaged Property is located;
(d) a title insurance policy, including all required
endorsement, or a "marked-up" title commitment, underwritten by an Approved
Title Underwriter, insuring the lien of the Mortgage has the appropriate lien
priority, with the insured identified as the Borrower and its successors and
assigns as their interests may appear; and
(e) if applicable, the Closing Agent Instruction Letter
signed by an authorized representative of the Closing Agent.
Essential Mortgage File Documents: As to each Mortgage
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Loan, the (a) the Core Documents, (b) the Related Assets, and (c) the additional
documents described on Exhibit "B" attached hereto as are applicable.
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Event of Default: Any event of default set forth in Section
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10.1 below.
Facility Expiration Date: That date which is the earlier to
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occur of (a) the effective date of a termination of this facility under Section
14 below, and (b) the occurrence of an Event of Default under Section 10.1
below.
Final Payment Date: That date defined as the "Final Payment
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Date" in Section 7.1 below.
Guarantee: The Guarantee as defined in Section 4.1(g)
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below.
Guarantors: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and ▇▇▇ ▇▇▇▇▇
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Interest Penalty: The "Interest Penalty" rate defined in
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Section 6.1 below.
Interest Rate: The base "Interest Rate" as defined in
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Section 6.1 below.
Late Fee: The "Late Fee" defined in Section 6.3(c) below.
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Mortgage: The deed of trust, mortgage, mortgage warranty,
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extension agreement, assumption of indebtedness, assignment and any other
documents constituting the basic instruments for obtaining a lien upon, or
interest, in real property to secure an obligation owed by the Mortgagor in the
State in which the Mortgaged Property is located.
Mortgage Loan: A loan originated by Borrower for which an
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Advance is made hereunder, which loans shall meet all of the qualifications and
requirements of Lender set forth in the Underwriting Guidelines and which shall
be evidenced by a Note and secured by a Mortgage and the Related Assets;
Mortgage Loans shall include those loans set forth on Schedule 1 of each Request
for Borrowing.
Mortgaged Property: The residential real property subject
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to the Mortgage which secures the Mortgage Loan.
Mortgagor: The obligor/mortgagor under a Mortgage Loan.
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Note: The original Note, bond or other evidence of the
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repayment obligation of the Mortgagor to repay the Mortgage Loan.
Prime Rate: The domestic prime rate of interest as
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published in THE WALL STREET JOURNAL effective for the first Business Day of the
applicable month.
Promissory Note: The promissory note in the form of Exhibit
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"A" attached hereto to be executed and delivered by Borrower.
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Qualified Investor: Any party preapproved in writing by
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Lender to whom Borrower intends to sell Mortgage Loans; provided, however, that
Lender may rescind such approval for any or no reason upon 45 days advance
notice to Borrower, or immediately in the case of the insolvency of the intended
purchaser or the failure of the intended purchaser to honor any purchase
commitment. All parties included on Exhibit "J" hereto are hereby approved by
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Lender.
Related Assets: For each Mortgage Loan, any and all
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documents, instruments, collateral agreements, and any assignments and
endorsements for all documents, instruments and collateral agreements, referred
to in the Notes and/or Mortgages or related thereto, including, without
limitation, current insurance policies (private mortgage insurance, if
applicable; flood insurance, if applicable; hazard insurance; title insurance
and other applicable insurance policies) covering or related to the Mortgaged
Property or the Mortgage Loan, the Notes, and all files, books, papers, ledger
cards, reports and records including, without limitation, loan applications,
Borrower financial statements, separate assignment of rents, if any, credit
reports and appraisals. In all cases, the Related Assets shall be the original
documents.
Request for Borrowing: A written request, substantially in
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the form of Exhibit "C" hereto, executed by Borrower and delivered to Lender in
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accordance with Section 4.2(a) hereto.
Underwriting Guidelines: Those underwriting guidelines set
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forth on Exhibit "D" attached hereto as may from time to time be amended by
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Lender.
Uniform Commercial Code: The Pennsylvania Commercial Code,
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Title 13, Pennsylvania Consolidated Statutes, 1979, November 1, P.L. 255, Act
No. 86, as codified at 13 Pa. C.S.A. e1101, et. seq., as the same may be amended
from time to time.
2. ADVANCES.
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2.1. Subject to the terms and conditions set forth in this Agreement,
including without limitation that no Event of Default exists and that the terms
of Section 4 below have been met, Lender hereby agrees to make Advances under
Section 2.2 below from time to time to Borrower, and Borrower hereby agrees to
borrow Advances from Lender, in accordance with the terms of the Promissory Note
and this Agreement; provided, however, that:
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(a) the amount of an Advance shall be 100% of the unpaid
principal balance of a ContiMortgage Qualified Mortgage Loan and, to the extent
non-ContiMortgage Qualified Loans are permitted under this Agreement (including
the applicable Underwriting Guidelines on Exhibit "D"), 95% of the unpaid
principal balance of a Mortgage Loan that is not a ContiMortgage Qualified
Mortgage Loan;
(b) within the limits of the Commitment Amount, as the same may
change from time to time, Borrower may borrow, repay and reborrow pursuant to
this Section 2.1; and
(c) no Advance will be made on or after the Facility Expiration
Date.
2.2. Subject to Section 2.1 above and the other applicable terms and
conditions of this Agreement, Lender shall make Advances to Borrower on each
Advance Date. All Advances shall be made by wire transfer in immediately
available funds to the pre-approved Closing Agent.
3. SALE OF MORTGAGE LOANS ADVANCED UNDER THE AGREEMENT.
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3.1. Borrower may sell any Mortgage Loan for which Advances are made
hereunder; provided that Borrower instructs the purchaser in writing to wire
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transfer the sale proceeds directly to the Lender's account as designated on
Exhibit "I" attached hereto for the repayment of the Advance received from
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Lender to fund such Mortgage Loan.
4. CONDITIONS PRECEDENT TO ADVANCES.
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4.1. Initial Advance. The Lender's obligation to make the initial
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Advance hereunder shall be subject to the fulfillment of the following
conditions precedent:
(a) Delivery of Promissory Note. Borrower shall have
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executed and delivered Borrower's Promissory Note to Lender.
(b) Corporate Proceedings. Borrower and each corporate
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Guarantor, if any, shall have furnished to Lender a copy, certified by a
secretary or an assistant secretary of Borrower and each Guarantor, of the
resolution of the Board of Directors of Borrower and each corporate Guarantor
authorizing the execution, delivery and performance by each Guarantor of its
Guarantee and by Borrower of this Agreement, the Promissory Note and the other
matters contemplated hereby.
(c) Representation and Warranties. The representations and
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warranties contained in Section 5 hereof shall be true and correct as of the
date of this Agreement and the initial Advance.
(d) Financing Statements and Financing Statement Searches.
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(i) Borrower shall have executed and
delivered to Lender, in the form appropriate for filing with the appropriate
state and local governmental authorities designated by Lender, Uniform
Commercial Code financing statements, including any continuation statements, as
are necessary and appropriate, describing the Collateral as security for
Advances in order to create a first priority security interest in favor of
Lender in such Collateral. The description of the Collateral shall be in form of
Exhibit "K" attached hereto and made a part hereof.
(ii) Borrower shall provide to Lender satisfactory
searches of all Uniform Commercial Code financing statement filing offices
required by Lender showing no financing statements filed against Borrower, as
debtor, for collateral which is part of the Collateral.
(e) Corporation's Designation of Authorized Corporate
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Officers. The Borrower shall have delivered to Lender an officer's certificate,
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attested to by the secretary or an assistant secretary of the Borrower, stating
the names, titles and showing the facsimile signatures of the officers of
Borrower authorized to execute and deliver this Agreement, the Promissory Note,
Requests for Borrowing and any other documents, agreements or certificates
contemplated hereby in the form attached hereto as Exhibit "H". Lender may
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conclusively rely on such a certificate until Lender receives a further
certificate executed by the secretary or an assistant secretary of Borrower
amending or superseding the prior certificate. Additionally, each corporate
Guarantor, if any, shall deliver to Lender an officer's certificate, attested by
the secretary or assistant secretary of each Guarantor, stating the names,
titles and showing the facsimile signatures of the officers of each Guarantor
authorized to execute and deliver the Guarantee.
(f) Legal Matters. All other instruments and legal and
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corporate proceedings in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to Lender and its counsel,
and Lender shall have received copies of all documents which it may have
requested in connection herewith.
(g) Guarantees. The Guarantor(s) shall have each delivered
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their joint and several Guarantee Agreement (the "Guarantee") in the form of
Exhibit "F" hereto, which shall "guarantee" the Borrower's obligations under the
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Promissory Note and this Agreement, including repayment of interest, fees and
other sums as set forth in Section 6 and of Advances as set forth in Section 7.
(h) Corporation's Articles of Incorporation/Good Standing
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Certificate/Authorization to do Business. Borrower and each corporate Guarantor,
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if any, shall have delivered to Lender (i) each of their articles of
incorporation, certified as true and correct by the Secretaries of State for the
states of their incorporation, (ii) current good standing certificates issued by
the Secretaries of State for the states of their incorporation, and (iii) good
standing certificates and/or qualifications to do business in each other state
in which Borrower does business and is required under the laws of such state to
be qualified to do business as a foreign corporation.
(i) Licenses. Borrower shall have delivered to Lender all
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governmental licenses, permits and approvals required to be obtained or
maintained by Borrower by any governmental authorities to solicit, document,
originate, close and fund Mortgage Loans.
4.2. The Lender's obligation to make each Advance (including the
initial Advance) hereunder shall be subject to the fulfillment of the following
additional conditions precedent:
(a) Delivery of Request for Borrowing to Lender. Borrower
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shall have delivered to Lender in accordance with the notice provision in
Section 12.2 below, a complete and duly executed Request for Borrowing no later
than one (1) Business Day prior to the requested Advance Date;
(b) Commitment from Qualified Investor. Borrower shall have
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delivered to Lender a firm, binding commitment from a Qualified Investor, pre-
approved by Lender, to purchase the Mortgage Loan if the Mortgage Loan is not a
ContiMortgage Qualified Mortgage Loan;
(c) No Event of Default. No Event of Default exists;
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(d) Delivery of Mortgage Loan Documents and Files. Borrower
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shall have delivered, or caused to be delivered, to Lender the Core Documents
(including without limitation the sole, original Note) with respect to each
Mortgage Loan for which an Advance is to be made by Lender; provided, however,
if a Mortgage Loan is not subject to a rescission period under applicable law,
then:
(i) Borrower shall initially deliver to Lender, in
place of the executed Core Documents, copies of the Core Documents which are to
be executed at the Mortgage Loan settlement, and
(ii) Borrower shall provide Lender with a copy of the
Closing Agent Instruction Letter in the form of Exhibit "E" attached hereto
executed by an authorized representative of the Closing Agent and shall
cooperate fully with Lender in assuring the Closing Agent's compliance with
same.
Lender, at its sole discretion, may require the
delivery of all the Essential Mortgage File Documents prior to making any
Advance and may require that Borrower deliver to Lender all of the Essential
Mortgage File Documents related to any outstanding Advances within two business
days of Lender's written request for delivery of such Essential Mortgage File
Documents.
(e) Representations and Warranties. The representations and
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warranties contained in Section 5 below remain true and correct.
(f) Approval of Closing Agent. Lender shall have approved
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the Closing Agent to be used by Borrower to receive the Advance and/or to
disburse funds for the Mortgage Loan.
5. REPRESENTATIONS AND WARRANTIES.
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5.1. Representations and Warranties of the Borrower and, if
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Applicable, Guarantors - General. It is understood and agreed by Borrower that
--------------------------------
as a material inducement to Lender to enter into this Agreement and to make
Advances, Borrower hereby represents and warrants to Lender the accuracy of each
of the following as of the date of this Agreement and as of each Advance Date:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation,
and is duly qualified as a foreign corporation in all jurisdictions wherein the
character of the property owned or leased, or the nature of the business
transacted by it, makes qualification as a foreign corporation necessary ;
(b) The execution and delivery of this Agreement, the
Promissory Note and all other documents contemplated hereby by Borrower and the
performance by Borrower of the obligations to be performed by it hereunder and
thereunder have been duly authorized by all necessary corporation or other
similar action;
(c) The execution and delivery of this Agreement, the
Promissory Note and the other documents contemplated hereby by Borrower and the
performance by Borrower of the obligations to be performed by it hereunder and
thereunder do not, and will not, violate any provision of any law, rule,
regulation, agreement, order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to Borrower or to the charter,
bylaws, certificate of organization or formation, operating agreement, or other
organizational, governing or operational documents of the Borrower;
(d) Borrower, and all other parties which have had any
interest in the Mortgage Loans, whether as mortgagee, assignee (other than
Lender or assignee of Lender) or pledgee are (or during the period in which they
held and disposed of such interest, were) in compliance with all applicable
licensing requirements of the federal, state and local governments wherein the
Mortgage Property is located or originated;
(e) The execution and delivery of this Agreement, the
Promissory Note and the other documents contemplated hereby by Borrower and the
performance by Borrower of the obligations to be performed by it hereunder and
thereunder do not, and will not, result in a breach of or constitute a default
under any indenture
or loan or credit agreement or any other agreement, lease or instrument to which
Borrower is a party or by which it or its properties may be bound or affected;
(f) This Agreement, the Promissory Note and the other
documents contemplated hereby constitute, when duly executed and delivered by
Borrower, the legal, valid and binding obligation of Borrower, enforceable
against Borrower according to their respective terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or similar laws affecting creditors' rights in general, including
equitable remedies;
(g) There are no actions, suits or proceedings pending or,
to the knowledge of Borrower, threatened against or affecting Borrower or the
properties of Borrower or the Collateral before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, which, if determined adversely to Borrower, would have a material
adverse effect on the financial condition, properties or operations of Borrower;
(h) Borrower has no other credit facilities, including
other mortgage warehousing loan facilities, except as disclosed on Exhibit "G"
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attached hereto;
(i) Borrower has made no other assignments or pledges of,
or granted security interests, in the Collateral;
(j) Borrower's "chief executive office", as defined in the
Uniform Commercial Code, is at its address set forth in Section 12.3 below;
(k) Borrower trades under no tradename or fictitious names
other than as disclosed or identified in the first paragraph of this Agreement;
and
(l) Borrower has no setoffs, defenses or counterclaims to
any of its obligations hereunder under the Promissory Note.
5.2. Representations and Warranties of the Borrower As to Each
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Mortgage Loan. It is understood and agreed by Borrower that as a material
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inducement to Lender to make each Advance, the Borrower represents and warrants
to the Lender as of each Advance Date with respect to each Mortgage Loan the
accuracy of each of the following:
(a) The Note is a "negotiable instrument" as defined in the
Uniform Commercial Code, the Borrower is a "holder-in-due-course" of each Note
as defined in the Uniform Commercial Code, the Borrower is the sole owner of the
Mortgage Loan and has the right to pledge, assign and transfer the Mortgage Loan
and its related Collateral to the Lender. The Note, Mortgage and other documents
executed by the Mortgagor relating to the Mortgage Loans were complete when so
executed, with all blanks and missing information inserted and, if applicable,
any completions after execution were authorized by the Mortgagor. The Borrower
has not sold, assigned or otherwise transferred any right or interest in or to
the Mortgage Loan or any of the Collateral and has not pledged the Mortgage Loan
or any of the Collateral as collateral for any loan or obligation of Borrower or
other purpose, except pursuant to this Agreement. The pledge of the Mortgage
Loan and Collateral by the Borrower to Lender validly pledges such Mortgage Loan
and Collateral to Lender free and clear of any pledges, liens, claims,
encumbrances, mortgages, charges, exceptions and/or security interests of any
third parties;
(b) Except as expressly disclosed to and agreed by the
Lender in writing prior to making the relevant Advance, the Mortgage Loan
conforms to: (i) the Underwriting Guidelines and the other applicable terms and
conditions of this Agreement; and (ii) the conditions of any written investor
approval advice which modifies or requires additional conditions (if
applicable);
(c) All information set forth in the Request for Borrowing
and attached schedules provided to Lender is true and correct in all respects,
and all other information furnished to Lender by Borrower with respect to the
Mortgage Loan is true and correct;
(d) The Note and Mortgage and the other Essential Mortgage
File Documents are in every respect genuine, are the valid instrument they
purport on their face to be, are the legal, valid, binding and enforceable
obligation of the Mortgagor thereunder and not subject to any discount,
allowance, setoff, counterclaim, presently pending bankruptcy or other defense;
the Note, Mortgage and other Essential Mortgage File Documents are not forged or
have affixed thereto any unauthorized signature or have been entered into by any
persons without the required legal capacity; and no foreclosure (including any
non-judicial foreclosure) or any other legal action has been brought by the
Borrower or any senior lienholder in connection therewith;
(e) No instruments other than those delivered herewith to
Lender are required under applicable law to evidence the indebtedness
represented by the Mortgage Loan or to perfect the lien of the Mortgage;
(f) Except as has been disclosed to and agreed to by the
Lender in writing, there is no agreement with the Mortgagor regarding any
variation of the interest rate and schedules of payment (except as described in
the Note and Mortgage) or other terms and conditions of the Mortgage Loan, the
Mortgagor has not been released from liability on the Note, and the Mortgaged
Property has not been released from the Mortgage. If the Mortgage Loan is a
variable rate loan, the Borrower represents and warrants as of the Advance Date
that all applicable notices required by law or regulation have been provided to
the Mortgagor and that the right to future changes in the interest rate and
payment schedules has not been waived by the Borrower or any previous holder of
the Mortgage Loan;
(g) The Mortgage Loan is secured by a valid Mortgage, of
the agreed-upon priority, on real property, and such Mortgage has been properly
received by the appropriate public recording official to be filed, recorded or
otherwise perfected in due course in accordance with applicable law in the
appropriate jurisdiction;
(h) The origination, solicitation, documentation,
execution, delivery, closing, servicing, funding and other aspects of the
Mortgage Loan were not and are not in violations of any applicable federal or
state laws or regulations, including, without limitation, Fair Credit Reporting
Act and its Regulations, the Federal Truth-in-Lending Act and Regulation Z, the
Federal Equal Credit Opportunity Act and Regulation B, the Federal Real Estate
Settlement Procedures Act and Regulation X, the Federal Debt Collection
Practices Act, and any federal or state consumer protection and/or usury laws
and regulations. All disclosures for the Mortgage Loan required to be given to
Mortgagor with law, federal, state or local, were properly made by the Borrower,
or its predecessor in interest, when and as required by such federal, state and
local laws. At all times relevant, Borrower, or its predecessor in interest as
mortgagee, if any, maintained all necessary governmental permits, approvals and
licenses necessary to solicit, originate, document, close and fund the Mortgage
Loan;
(i) The Borrower, or the Closing Agent, holds a title
insurance policy or a marked-up title commitment, title insurance binder or
title certificate which is in full force and effect; which has an insurance
limit at least as great as the outstanding principal balance of the Mortgage
Loan; which names the Borrower, its successors and assigns, as the insured party
and which is issued by an Approved Title Underwriter that is qualified to do
business in the jurisdiction where the Mortgaged Property is located. Said
policy shall:
(i) Insure the lien of the Mortgage consistent with
the agreed-upon lien priority;
(ii) Insure the absence of any prior lien of taxes or
other assessments;
(iii) Disclose whether all taxes and other lienable
assessments due as of the date of the policy have been paid-in-full; and
(iv) Disclose all other matters to which the Mortgaged
Property is subject.
(j) The Note and Mortgage contain customary, valid, legal
and enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property of
the benefits of the security created thereby;
(k) The proceeds of the Mortgage Loan have been fully
disbursed, or will be fully disbursed, in accordance with the terms of the
Mortgage Loan and applicable law within one (1) Business Day of the Advance
Date, and any and all requirements as to completion of on-site and off-site
improvements and disbursement of any escrow funds therefore have been complied
with or will be complied with prior to the disbursement of the Mortgage Loan
proceeds;
(l) There are no mechanic's lien or similar liens or claims
which have been or can be filed for work, labor or material affecting the
Mortgaged Property which are or may be liens prior to or equal with the lien
priority of the Mortgage and any senior mortgage(s);
(m) The Mortgaged Property is free of material damage and
waste and is in good repair and there is no proceeding pending or, to Borrower's
knowledge, threatened for the total or partial condemnation of the Mortgaged
Property;
(n) All matured obligations pursuant to the Note and
Mortgage have been paid or performed and the Borrower has not waived any
defaults, breach, violation or event of acceleration;
(o) The Borrower has no knowledge of any fact as to the
Mortgage Loan, the other Collateral or Mortgaged Property which it has failed to
disclose in writing to Lender which would materially and adversely affect the
value or marketability of the Mortgage Loans, the other Collateral or the
Mortgaged Property, as the case may be;
(p) The Borrower has no knowledge of any impediments to
title that adversely affect the value, use or marketability of the Mortgage Loan
or the Mortgaged Property;
(q) Where permitted or required by state law, the Borrower
has filed of record a request for notice of action by a senior lienholder under
a senior lien, and the Borrower has notified any senior lienholder in writing of
the existence of the Mortgage Loan and requested notification of any action to
be taken against the Borrower or Lender by the senior lienholder. The Borrower
shall, upon request of the Lender, cooperate in recording a new request for
action in favor of the Lender and in providing superior lienholders with written
requests for notification to the Lender of action against the Mortgagor;
(r) Where permitted or required by local state law, the
proper "Notice of Settlement" or other similar notice has been filed of record
putting third parties on notice of the closing of the Mortgage Loan;
(s) There is no default, breach, violation or event of
acceleration existing under any senior mortgage which, with notice, and the
expiration of any grace or cure period, constitutes a default, breach, violation
or event of acceleration;
(t) The Note and Mortgage contain provisions for the
acceleration of the payment of the unpaid principal balance of the Mortgage Loan
in the event the Mortgaged Property is sold without the prior consent of the
mortgagee thereunder;
(u) The real estate appraisals made in connection with the
Mortgage Loan have been performed in accordance with industry standards in the
appraising industry in the area where the appraised property is located;
(v) To the best of Borrower's knowledge, no hazardous or
toxic materials or wastes or products regulated by law or ordinance, asbestos or
asbestos products or materials, polychlorinated biphenyls, lead
or urea formaldehyde insulation have ever been used or employed in the
construction, use or maintenance of the Mortgaged Property, or have ever been
stored, treated at or disposed of in, on or about the Mortgaged Property;
(w) To the best of Borrower's knowledge, there has not
occurred nor has any person or entity alleged that there has occurred, upon the
Mortgaged Property any spillage, leakage, discharge or release into the air,
soil or groundwater of any hazardous materials, contaminants or regulated
wastes;
(x) A hazard insurance policy covering the Mortgaged
Property in an amount not less than the amount of the Mortgage Loan, plus any
senior liens, is in full-force and is not scheduled to expire within forty-five
(45) days of the Advance Date;
(y) If the Mortgage Loan has not been or is not being
closed directly by an officer of Approved Title Underwriter, the Mortgage Loan
has been or will be closed under a valid and binding insured closing protection
letter, or other applicable protection letter, benefiting Lender from an
Approved Title Underwriter. However, if the issuance of such protection letters
are specifically prohibited by state law, the Closing Agent is covered for a
minimum of $500,000 per occurrence in fidelity coverage either through insurance
or a bond issued by an acceptable underwriter;
(z) The Note is the only original Note evidencing the
Mortgage Loan to which it relates and all other copies thereof have been marked
or stamped "COPY".
5.3. Survival. To induce Lender to provide each Advance, Borrower
--------
makes the representations and warranties set forth in Sections 5.1 and 5.2, each
and all of which shall: (i) survive the execution and delivery of this Agreement
and the making of each Advance; (ii) inure to the benefit of Lender, and its
successor and assigns; and (iii) be deemed to have been relied upon in making
each Advance hereunder regardless in each case of any investigation or review
Lender may have or shall hereafter make.
6. INTEREST, FEES AND OTHER PAYMENTS.
---------------------------------
6.1. Interest on Advances. Except as otherwise provided herein or in
--------------------
the Promissory Note, Borrower shall pay to Lender interest on all Advances
outstanding during each calendar month at the rate of 1.0% per annum in excess
of the Prime Rate ("Interest Rate"); provided, however, in the event any Advance
is not repaid on or before the Advance Repayment Date, the interest payable to
Lender on such Advance in accordance with this Section 6.1 shall instead be
calculated at the rate of 5.0% per annum in excess of the Prime Rate,
retroactive to the beginning of the monthly billing period for which interest on
the Advance is being invoiced ("Interest Penalty").
6.2. Computation of Interest. Interest shall be computed on the basis
-----------------------
of a 360-day year and the actual number of days elapsed in the period during
which it accrues. In computing the interest on each Advance, the date of making
the Advance shall be included and the date of repayment shall be excluded;
provided, if an Advance is repaid on the same day on which it is made, one day's
interest shall be paid on that Advance.
6.3. Fees. Borrower shall pay Lender the following fees:
----
(a) Funding Fee. For each Advance made under this
-----------
Agreement, Borrower shall pay Lender a transaction fee of $50.00.
(b) Shipping Fee. For each Advance that is repaid by the
------------
Borrower other than through the purchase of the related Mortgage Loan by Lender,
Borrower shall pay Lender a fee of $50.00.
(c) Late Fee. For each Advance that is not repaid by the
--------
Final Payment Date, Borrower shall pay a late fee ("Late Fee") of .50% of the
----------
outstanding amount of such Advance, and said Late Fee shall be reassessed on
each monthly anniversary of the Final Payment Date that the Advance remains
outstanding.
(d) Audit Fee. Borrower shall pay Lender an Audit Fee of
---------
$1,200 annually, payable in twelve (12) equal installment of $100.
(e) Setup Fee. Borrower shall pay Lender a Setup Fee of
---------
$1,000. This fee is a one time charge payable at signing of contract.
6.4 Payment of Interest and Fees: Borrower shall pay Lender for all
----------------------------
interest and fees provided for under this Section 6 within ten (10) business
days of the date of Lender's monthly invoice, or as otherwise provided for in
the Promissory Note.
6.5. Automatic Waiver of Late Fees and Interest Penalty on Delinquent
----------------------------------------------------------------
Advances In Certain Limited Circumstances: Notwithstanding the terms of Section
-----------------------------------------
6.1 pertaining to the Interest Penalty on delinquent Advances and of Section
6.3(c) pertaining to Late Fees, the Interest Penalty and Late Fees shall be
waived automatically for any Advance that is repaid within fifteen (15) calendar
days of the Advance Repayment Date, provided that the Final Payment Date has not
otherwise occurred under Sections 7.1(b), (c) or (d) below, and further provided
that during the calendar month for which such fees and interest are being
calculated, the total amount of Advances that were not repaid by the Advance
Repayment Date did not exceed twenty percent (20%) of the then outstanding
Commitment Amount.
7. REPAYMENT OF ADVANCES.
---------------------
7.1. Repayment of Advances. Borrower shall repay the full amount of
---------------------
each outstanding Advance made under this Agreement, without notice, demand,
offset or counterclaim, on the earlier to occur of (the "Final Payment Date"):
(a) The Advance Repayment Date for each Advance made under
this Agreement;
(b) The date the related Mortgage Loan is sold by the
Borrower;
(c) If the Mortgage Loan does not disburse by the date
required under the terms of the Note and applicable law, then that day which is
no later than the next succeeding Business Day after which the proceeds of such
Mortgage Loan should have disbursed to or on behalf of the Mortgagor; or
(d) One (1) Business Day after any event that results in
the cancellation, payoff or other liquidation of the related Mortgage Loan .
Such repayment shall be paid to Lender by wire transfer, to
Lender's account designated on Exhibit "I" attached hereto, in immediately
available funds, on the Final Payment Date.
8. SECURITY.
--------
8.1. Grant of Security Interest. To secure the repayment of Advances
--------------------------
and the performance of Borrower's obligations hereunder, under the Promissory
Note and under any other documents executed and delivered in connection
herewith, Borrower hereby assigns, transfers and pledges to Lender, and grants
Lender a security interest in, all of Borrower's right, title and interest,
powers, privileges and other benefits under, in and to the following (the
"Collateral") wherever located and whether now existing or hereafter acquired,
together with all of the proceeds thereof:
(a) All Mortgage Loans, Mortgages, Notes, the remaining
portion of the Essential Mortgage File Documents for all Mortgage Loans and any
other documents and property as shall be deposited with, or held by, or come
into the possession of Lender pursuant to this Agreement;
(b) All payments and prepayments of principal, interest,
penalties and other income due or to become due on all Mortgages Loans,
Mortgages and Notes referred to in Section 8.1(a) above; all the right, title
and
interest of every nature whatsoever of Borrower in and to the Collateral
described in Sections 8.1(a) and (b) and all property used in connection
therewith (subject to Borrower's revocable license granted under this Agreement
to collect certain payments so long as no Event of Default shall have occurred
and be continuing) including, without limitation, the following:
(i) All rights, liens and security interests existing
with respect to, or as security for, all such Mortgage Loans;
(ii) All hazard insurance policies, title insurance
policies or, private mortgage insurance policies, condemnation proceeds with
respect to each such Mortgage Loan;
(iii) All insurance and guaranties provided by the FHA
or VA, as the case may be, with respect to each such Mortgage Loan; and
(iv) All private mortgage insurance policies with
respect to each such Mortgage Loan; and
(c) All files, surveys, certificates, correspondence,
appraisals, computer programs, tapes, discs, cards, accounting records and other
records and data of Borrower related to the Mortgage Loans.
8.2. Revocable License to Collect Debt Service Payments. So long as
--------------------------------------------------
no Event of Default shall have occurred and is continuing, Borrower shall have
the revocable license right to collect for its own account all regularly
--------- -------
scheduled payments of principal and interest, as well as penalties and other
amounts due or to become due on Mortgage Loans and pledged under this Agreement
(but not proceeds from the sale of the Mortgage Loans).
8.3. Lender Appointed Attorney-in-Fact. Borrower hereby appoints any
---------------------------------
officer, employee or other person so designated by Lender from time to time as
Borrower's attorney-in- fact, with full power of substitution, for the purpose
of taking such action, and executing such documents, in the name of Borrower or
otherwise, as Lender may deem necessary or advisable to accomplish the purposes
of this Agreement, which appointment is coupled with an interest and is
irrevocable. The foregoing power shall include the power to endorse Notes,
execute and deliver assignments of mortgages, endorse checks from Mortgagors in
payment of principal, interest or other sums due under the Mortgage Loans and to
effect dispositions and transfers of the Collateral.
9. COVENANTS OF BORROWER.
---------------------
9.1. So long as the Promissory Note remains unpaid or Borrower has
any obligations under this Agreement, unless Lender otherwise consents in
writing, Borrower agrees as follows:
(a) Use of Advances. Advances will only be used by Borrower
---------------
to originate Mortgage Loans which meet the Underwriting Guidelines and the other
terms and conditions of this Agreement.
(b) Encumbrances. Borrower shall not create, incur, assume
------------
or suffer to exist, any mortgage, pledge, lien or other encumbrance of any kind
upon, or any security interest in, any of the Mortgage Loans and other
Collateral.
(c) Compliance with Laws. Borrower shall comply in all
--------------------
material respects with all laws and regulations applicable to it in the
operation of its business, including without limitation, its solicitation,
origination, documentation, closing and servicing of the Mortgage Loans.
(d) Other Mortgage Warehouse Borrowing. Borrower shall not
----------------------------------
borrow on any other mortgage warehousing lending facility or other similar lines
of credit beyond those set forth on Exhibit "G" or as may hereafter be approved
-----------
in writing by Lender.
(e) Reports of Default of Mortgage Loans. Borrower shall
------------------------------------
furnish to Lender as soon as possible, and in any event within two (2) Business
Days after Borrower becomes aware of, the occurrence of a default under any
Mortgage Loan for which an Advance has been made and remains outstanding.
(f) Additional Documents or Actions. If at any time Lender
-------------------------------
shall deem or shall be advised that any further instruments, documents or acts
or things are necessary or desirable to vest or confirm any right or remedy
herein granted or required, Borrower will execute or cause to be executed and
deliver any such instruments or documents and do or cause to be done any act or
thing deemed necessary or desirable by Lender for such purpose.
(g) Tradenames. Borrower shall not trade under any
----------
tradename or fictitious names except as otherwise stated in this Agreement.
(h) Updated Information. Upon the request of Lender,
-------------------
Borrower shall deliver to Lender updated good standing certificates/subsistence
certificates/qualifications to do business, licenses, permits and approvals
applicable to Borrower's business activities.
(i) Actions To Maintain Representations And Warranties As
-----------------------------------------------------
Accurate. Borrower shall promptly, and completely, take all actions necessary so
--------
that the representations and warranties given by Borrower in Section 5 remain
true and correct at all times.
10. EVENTS OF DEFAULT AND REMEDIES.
------------------------------
10.1. Event of Default. The occurrence of any of the following
----------------
conditions or events shall constitute an "Event of Default" hereunder and under
the Promissory Note:
(a) Failure to Make Payments When Due. Failure to pay any
---------------------------------
sum due hereunder or under the Promissory Note when and as due, taking into
account any extension of an Advance Repayment Date granted by Lender; or
(b) Default in Other Agreements. The failure of Borrower to
---------------------------
pay any indebtedness for borrowed money due to any third person, or the
existence of any other "event of default" under any loan, security agreement,
mortgage or other agreement pertaining thereto binding Borrower, after the
expiration of any notice and/or grace periods permitted in such documents if the
effect of such failure, default or breach 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 in the aggregate amount of $10,000 or
more to become or be declared due prior to its stated maturity (upon the giving
or receiving of notice, lapse of time, both, or otherwise); or
(c) Breach of Warranty. Any representations or warranties
------------------
made herein by Borrower or any Guarantor, or in any statement or certificate at
any time given by Borrower to Lender pursuant hereto or in connection herewith,
shall be false or incomplete in any material respect on the date it is made; or
(d) Unsatisfactory Audit. The Borrower's annual financial
--------------------
statements are not given an unqualified opinion by a Certified Public
Accountant, or results of the Lender's audit of Borrower's books and records
reveal irregularities or material control weaknesses unacceptable to Lender; or
(e) Other Defaults. Borrower shall fail to perform or
--------------
comply with any of the terms contained in this Agreement, which default is not
otherwise an Event of Default provided for in this Section 10.1, by the date or
within the time period for performance specified in this Agreement. In all other
situations when a date or time period for performance is not specified in this
Agreement, and which is not otherwise an Event of Default provided for in this
Section 10.1, Borrower shall fail to perform or comply with such terms contained
in this Agreement and such failure to perform or comply has not been cured by
Borrower, or waived by Lender, within fifteen (15) days after Borrower's receipt
of a written notice of default from Lender; or
(f) Bankruptcy; Appointment of Receiver, etc. The
----------------------------------------
adjudication of Borrower or any Guarantor as a bankrupt or insolvent, or the
entry of an Order for Relief against Borrower or any Guarantor or the entry of
an order appointing a receiver or trustee for Borrower or any Guarantor of any
of their respective properties or approving a petition seeking reorganization or
other similar relief under the bankruptcy or other similar laws of the United
States or any state or any other competent jurisdiction; or
(g) Voluntary Bankruptcy; Appointment of Receiver, etc. A
--------------------------------------------------
proceeding under any bankruptcy, reorganization, arrangement of debt,
insolvency, readjustment of debt or receivership law is filed by or against
Borrower or any Guarantor or Borrower or any Guarantor makes an assignment for
the benefit of creditors, or Borrower or any Guarantor takes any action to
authorize any of the foregoing; or
(h) Judgments and Attachments. The entry of a judgment for
-------------------------
the payment of money against Borrower or any Guarantor which, within ten (10)
days after such entry, shall not have been discharged or execution thereof
stayed pending appeal or shall not have been discharged within five (5) days
after the expiration of any such stay; or
(i) Dissolution; Liquidation. Borrower or any Guarantor
------------------------
voluntarily or involuntarily dissolves or is dissolved, terminates or is
terminated; or
(j) Suspension of Operations; Inability To pay Debts; Debt
------------------------------------------------------
Restructuring. The suspension of the operation of Borrower's present business,
-------------
or Borrower becoming unable to meet its debts as they mature, or the admission
in writing by Borrower to such effect, or Borrower calling any meeting of all or
any material portion of its creditors for the purpose of debt restructure; or
(k) Seizure of Assets. All or any part of the Collateral or
-----------------
the assets of Borrower are attached, seized, subjected to a writ or distress
warrant, or levied upon, or come within the possession or control of any
receiver, trustee, custodian or assignee for the benefit of creditors; or
(l) Injunctions. Borrower is enjoined, restrained, or in
any way prevented by the order of any court or any administrative or regulatory
agency, the effect of which order restricts Borrower from conducting all or any
material part of its business; or
(m) Loss of Licenses. The loss, suspension, revocation or
----------------
failure to renew any license or permit now held or hereafter acquired by
Borrower, which loss, suspension, revocation or failure to renew might have a
material adverse effect on the business profits, assets or financial condition
of Borrower or makes the solicitation, documentation, closing or funding of
Mortgage Loans by Borrower illegal.
10.2. Remedies
--------
(a) Upon the occurrence of any Event of Default, the unpaid
principal amount of all outstanding Advances, and the accrued interest thereon,
and all fees and costs, payable or otherwise outstanding hereunder or under the
Promissory Note shall automatically become due and payable in full, without
notice, presentment, demand or other requirements of any kind, all of which are
hereby expressly waived by Borrower, and the obligation of Lender to make
Advances under this Agreement shall terminate.
(b) Upon the occurrence of any Event of Default, and in
addition to any other rights, remedies or privileges which are or may be
available to Lender under the Promissory Note and under any applicable rule or
law, Lender may exercise any and all rights and remedies available under the
Uniform Commercial Code, and Lender shall also have the following rights,
remedies and privileges:
(i) Lender may: (A) revoke Borrower's revocable license
to collect sums due under the Mortgage Loans and notify all Mortgagors and other
obligors of Collateral that the Collateral has been assigned to Lender and that
all payments thereon are to be made directly to Lender or to such other party as
may be designated by Lender; (B) settle, extend, modify, compromise or release,
in whole or in part, any amounts outstanding or to become due under the Notes
and Mortgages, as well as any other portion of the Collateral; (C)
enforce payment and prosecute any action or proceeding with respect to any and
all Mortgage Loans; and (D) where any such Mortgagor is in default, foreclose
on, and enforce security interests in, granted pursuant to the Mortgage Loans by
any available judicial procedure or without judicial process and sell property
acquired as a result of any such foreclosure.
(ii) If notice is given of the public sale of any of
the Collateral, it is agreed that notice shall be satisfactorily given for all
purposes if such notice is published at least once in a newspaper of general
circular in the vicinity of Borrower and in the regional edition of THE WALL
STREET JOURNAL, not less than ten (10) Business Days prior to such sale. A sale
of the Collateral in accordance with such notice shall be deemed a disposal of
the Collateral in a commercially reasonable manner.
(iii) Take possession of all or any portion of the
Collateral that is not already in possession of Lender and Borrower agrees to
assemble and make available the Collateral to Lender, at a place designed by
Lender, which is reasonably convenient to Lender and Borrower.
(iv) Require Borrower to transfer to Lender all prepaid
interest, escrowed sums and other sums held by Borrower under any Mortgage
Loans.
(c) All remedies may be exercised cumulatively,
concurrently and in such order as Lender shall determine. Any failure on the
part of Lender to exercise or any delay in exercising any right or remedy
hereunder shall not operate as a waiver thereof, nor shall any single or partial
exercise by Lender of any right or remedy hereunder preclude any other exercise
thereof or the exercise of any other right.
10.3. Application of Proceeds. Any money collected by Lender pursuant
-----------------------
to this Section 10 shall be applied by Lender as follows, unless otherwise
required by provisions of applicable law:
(a) First, to the payment of all expenses incurred by
Lender under this Agreement or under the Promissory Note in enforcing its rights
hereunder or thereunder, including all costs and expenses of collection,
attorneys' fees, court costs, foreclosure expenses, and Collateral liquidation
costs;
(b) Next, to the payment of all interest and principal on
Advances payable under the Promissory Note or hereunder in such order and in
such amounts as Lender shall determine; and
(c) Next, if available, to Borrower.
11. INDEMNIFICATIONS.
----------------
11.1 Borrower Indemnification:
(a) Borrower hereby agrees to protect, indemnify, defend
and hold harmless Lender, its subsidiaries, affiliates, successors and assigns,
and all of their respective agents, employees, officers, shareholders and
directors (collectively the "Lender Indemnitees") from and against any and all
liabilities, costs, expenses, judgments, damages, losses, claims, demands,
offsets, defenses, counterclaims, actions, or proceedings, by whomsoever
asserted, arising from, connected with, or resulting from any Event of Default
or due to any act of Borrower or omission by Borrower where Borrower has a duty
to act; provided, however, that Borrower's obligation to indemnify pursuant to
this Section 11.1(a) shall not extend to any liability arising from the gross
negligence or willful misconduct of any Lender Indemnitee.
(b) If any legal proceeding shall be instituted, or any
claim asserted with respect to which a Lender Indemnitee may seek
indemnification from Borrower, the Lender Indemnitee shall have the right to be
represented by counsel of its choice and to defend against, negotiate, settle,
or otherwise deal with such proceeding or claim.
11.2 Lender Indemnification:
(a) Lender hereby agrees to protect, indemnify, defend and
hold harmless Borrower, its subsidiaries, affiliates, successors and assigns,
and all of their respective agents, employees, officers, shareholders and
directors (collectively, the "Borrower Indemnitees") from and against any and
all liabilities, costs, expenses, judgments, damages, losses, claims, demands,
offsets, defenses, counterclaims, actions, or proceedings, by whomsoever
asserted, arising from, connected with, or resulting from any breach by Lender
of any agreement, covenant, representation, or warranty contained herein or any
act of Lender or omission by Lender where Lender has a duty to act; provided,
however, that Lender's obligation to indemnify pursuant to this Section 11.2(a)
shall not extend to any liability arising from the gross negligence or willful
misconduct of any Borrower Indemnitee.
(b) If any legal proceeding shall be instituted, or any
claim asserted with respect to which a Borrower Indemnitee may seek
indemnification from Lender, the Borrower Indemnitee shall have the right to be
represented by counsel of its choice and to defend against, negotiate, settle,
or otherwise deal with such proceeding or claim.
12. NOTICES.
-------
12.1. General Notices and Communications. All notices or other
----------------------------------
communications provided for herein (but specifically excluding Requests for
---------
Borrowing) shall be in writing to the addresses set forth in Section 12.3 below
(or to such other addresses as may hereafter be designated by the parties hereto
by prior written notice properly given hereunder) by Certified Mail, Return
Receipt Requested, postage prepaid. Such notices and other communications shall
be deemed effective when received by the recipient.
12.2. Requests for Borrowing. All Requests for Borrowing shall be
----------------------
sent to Lender at the telefacsimile number set forth in Section 12.3 below (or
to such other telefacsimile number as may hereafter be designated by Lender to
Borrower by a notice given under Section 12.1 above) by telefacsimile
transmission only. Requests for Borrowing given by telefacsimile transmissions
shall only be effective when received by Lender (against evidence of a full and
clear transmission and receipt) between 9:00 A.M. and 3:00 P.M. prevailing time
in Philadelphia, Pennsylvania on a Business Day; otherwise, the receipt of the
Request for Borrowing shall not be effective or deemed received by Lender until
the next succeeding Business Day.
12.3. Addressees, etc. The addressees and telefacsimile number of the
---------------
parties are:
Lender: Request for Borrowing:
------ ---------------------
Telefax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Warehouse Lending Group
All Other Notices:
-----------------
ContiMortgage Corporation
One ContiPark
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
and Treasurer
Borrower: Mortgage Plus Equity and Loan Corp.
-------- ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
13. ACCESS TO BORROWER DOCUMENTS AND INFORMATION.
--------------------------------------------
13.1. Borrower will maintain the books of record and account in which
full, correct and current entries in accordance with Generally Accepted
Accounting Principles (GAAP) will be made of all of its dealings, business and
affairs, and Borrower will deliver to Lender the following:
(a) Annual Audited Financial Statements. As soon as
-----------------------------------
available, and in any event within ninety (90) days after the end of each fiscal
year of Borrower, Borrower shall provide to Lender its annual audited financial
statements, prepared in accordance with GAAP, for the preceding fiscal year of
Borrower, all in reasonable detail and including all supporting schedules and
comments; and
(b) Quarterly Statements. As soon as available, and in any
--------------------
event within forty five (45) days after the close of each fiscal quarter of
Borrower, Borrower shall provide to Lender its quarterly unaudited financial
statements, balance sheet, income statement and statement of retained earnings,
prepared in accordance with GAAP, for the preceding fiscal quarter and certified
as true and correct by the chief financial officer of Borrower.
Borrower shall provide to Lender, and its appointed agents,
employees, or designees access to documentation and information related to the
Collateral and the Borrower as Lender may request, including, but not limited
to, the Mortgage Loans and any and all accounting records and financial
statements of Borrower, such access being afforded without charge upon
reasonable request and during normal business hours at the offices of the
Borrower designated by it.
14. TERMINATION.
-----------
Lender may terminate its obligations under this Agreement in its sole
discretion, and for any or no reason whatsoever, upon thirty (30) days prior
written notice to the Borrower. Upon such termination, or upon a termination
under Section 10.2(a) above, Lender's obligation to make Advances under this
Agreement shall cease. In the case of termination due to an Event of Default,
all outstanding Advances, interest and fees under the Promissory Note and this
Agreement shall become immediately due and payable as provided for in Section
10.2(a) above. In the case of termination under this Section 14, and absent an
Event of Default, all outstanding Advances, to the accrued and unpaid interest
therein and fees, shall be due and payable as otherwise provided in this
Agreement and the Promissory Note.
15. MISCELLANEOUS PROVISIONS.
------------------------
15.1. Costs and Expenses. Except as explicitly provided herein,
------------------
Borrower and Lender shall each fulfill its obligations pursuant hereto at its
own cost and expense.
15.2. Agency; Joint Venture. Neither this Agreement nor any action
---------------------
taken pursuant hereto shall make either party an agent or representative of the
other or be deemed to create a partnership or joint venture between Borrower and
Lender.
15.3. Approval of Qualified Investors, Closing Agents, Third-Party
------------------------------------------------------------
Originators and Quality Control Procedures. Lender's approval, and any
------------------------------------------
subsequent revocation of an approval, of Qualified Investors, Closing Agents,
third-party Mortgage Loan originators and Borrower's quality control procedures
shall be at Lender's sole and absolute discretion.
15.4. Complete Agreement; Modification; Assignment. This Agreement,
--------------------------------------------
and the documents attached hereto or executed in connection herewith, constitute
the complete agreement between Borrower and Lender with respect to the subject
matter hereof and shall not be modified, altered, or amended except by a writing
signed by both Borrower and Lender. Borrower shall not assign or transfer any of
its rights or obligations hereunder to a third party except with the written
consent of Lender and any attempt to do so shall be null and void and of no
effect. Lender may, without notice to or the consent of Borrower or any
Guarantor, assign, sell, transfer, convey, pledge or encumber, to another
lender, or to any other third party, any or all of Lender's interest in the
Promissory Note, the Guaranty, the Collateral and any or all of the rights,
remedies and benefits of Lender hereunder or thereunder or under the other
documents executed and delivered in connection with this Agreement.
15.5. No Waiver. No undertaking, agreement, covenant, representation
---------
or warranty of Borrower contained herein shall be deemed to have been waived by
Lender, unless such waiver is by an instrument in writing signed by Lender. Any
such waiver by Lender shall not be deemed to be waiver of any other undertaking,
agreement, covenant, representation or warranty. Lender's failure, at any time,
to require strict performance of any provision hereof shall not waive, affect or
diminish any right of Lender thereafter to demand strict compliance therewith or
performance thereof.
15.6. Parties. Subject to the terms of Section 15.4 above, this
-------
Agreement shall be binding upon, and inure to the benefit of, the successors and
assigns of Borrower and Lender.
15.7. Governing Law. This Agreement shall, in all respects, be
-------------
governed by, and construed in accordance with, the laws of the Commonwealth of
Pennsylvania applicable to contracts made and performed in such state without
regard to the conflict of laws provisions of such jurisdiction and the laws of
the United States of America.
15.8. Severability; Section Headings. Any invalidity of any provision
------------------------------
of Promissory Note or this Agreement shall not affect the validity of any other
provision hereof. The section headings contained herein shall be without
substantive meaning and shall not be deemed to be a part of this Agreement.
15.9. Construction. Wherever from the context it appears appropriate,
------------
each term stated in either the singular or plural shall include the singular and
plural, and pronouns stated in the masculine, feminine, or neuter gender shall
include the masculine, feminine, and the neuter. The words "herein," "hereof,"
"hereto," "hereby," and other words of similar import shall be deemed to refer
to this Agreement as a whole and not to any particular section, subsection, or
clause of this Agreement.
15.10. Litigation.
----------
(a) Borrower consents to the in personam jurisdiction of
the courts of the Commonwealth of Pennsylvania and the United States District
Court for the Eastern District of Pennsylvania in connection with any claim or
dispute arising under or in connection with this Agreement, the Promissory Note,
the Guarantee or any other instrument or document delivered hereunder. If any
action in connection with any such claim is commenced by Lender against Borrower
in any such court Borrower also agree that service or process may be made on
Borrower by certified or registered mail addressed to Borrower at its address
specified in Section 12(c) above.
(b) Borrower waives trial by jury and the right to
interpose any defense based on any statute of limitations or claim of laches in
any action by or against Borrower in connection with any claim or dispute
arising under or in connection with this Agreement, the Promissory Note, or the
Guarantee.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the parties intending to be legally bound hereby, as of the date
first written above.
ATTEST: CONTIMORTGAGE CORPORATION
________________________________ BY:_______________________________
Name: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Title: Vice President and Treasurer
ATTEST/WITNESS: MORTGAGE PLUS EQUITY AND LOAN CORP.
/s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- -------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Officers Title: Chief Operating Officer Officers Title: President/CEO
FORM OF PROMISSORY NOTE
$5,000,000
Syosset, NY
March 20, 1998
FOR VALUE RECEIVED, Mortgage Plus Equity and Loan Corp., a
corporation, having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Borrower"), hereby promises to pay to the order of
ContiMortgage Corporation ("Lender") the lesser of the principal sum of
$5,000,000 or the unpaid principal amount of all Advances made by Lender to
Borrower under the terms of that certain Mortgage Warehouse Loan and Security
Agreement dated as of March 20, 1998, among Borrower and Lender (as the same may
be extended and amended from time to time, the "Loan Agreement"), together with
interest on the unpaid balance thereof at the rates and at the times and in the
amounts and manner provided in the Loan Agreement.
This Note is issued pursuant to and entitled to the benefits of the
Loan Agreement and the security interests granted therein, to which reference is
hereby made, and the terms of which are hereby incorporated by reference, for a
more complete statement of the terms and conditions under which the Advances
evidenced hereby are made and are to be repaid. Capitalized terms used herein
without definition shall have the meanings set forth in the Loan Agreement.
Reference is made to the Loan Agreement for provisions as to payment, interest,
Collateral, defaults, remedies and acceleration. In the event any of the terms
of this Note are inconsistent with the terms of the Loan Agreement, the terms of
the Loan Agreement shall control.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America, in immediately
available funds, at the office of Lender located at One ContiPark, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place as shall be
designated in writing for such purpose in accordance with the terms of the Loan
Agreement. Until notified in writing of the transfer of this Note, Borrower
shall be entitled to deem Lender, or such other person who has been so
identified by the transferor in writing to Borrower as the holder of this Note,
as the owner and holder of this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
The Agreement and this Note shall be governed by, and shall be
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania.
Upon occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note shall become due and payable in full in the
manner, upon the conditions and with the effect provided in the Loan Agreement,
and the Lender shall have the rights, remedies and privileges set forth in the
Loan Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Loan Agreement.
No reference herein to the Loan Agreement, and no provision of this
Note or the Loan Agreement, shall alter or impair the obligation of Borrower,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency herein
prescribed.
Borrower promises to pay all costs and expenses, including reasonable
attorneys' fees, incurred in the collection and enforcement of this Note.
Borrower and endorsers of this Note hereby consent to renewals and extensions of
time.
From the occurrence of an Event of Default until final payment of all
sums evidenced hereby interest payable hereunder on the outstanding principal
balance and all other sums due hereunder or under the Loan Agreement shall bear
interest at the Interest Penalty rate set forth in Section 6.1 of the Loan
Agreement. Notwithstanding the provisions of any applicable law to the contrary,
the Interest Penalty rate shall apply to all sums evidenced hereby after an
Event of Default and also after entry of a judgment or judgments against
Borrower. Said judgment(s) shall bear interest at the Interest Penalty rate
until it is satisfied in full.
Borrower waives presentment for payment, protest and demand, notice
of protest, demand and dishonor and non-payment of this Note, and all other
notices in connection with the delivery, acceptance, performance, default or
enforcement of the payment of this Note, and agrees that its liability shall be
unconditional, without regard to any extension of time, renewal, waiver or
modification granted or consented to by Lender. No extension of the time for the
payment of this Note or any installment hereof made by agreement with any person
or entity now or hereafter liable for the payment of this Note shall operate to
release, discharge, modify, change or effect the original liability under this
Note, either in whole or in part, of any person or entity not a party to such
agreement. Lender shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by Lender, and then only to the extent specifically set forth
in writing. A waiver of one event shall not be construed as continuing or as a
bar to our waiver of any right or remedy to a subsequent event.
The use of the words "Borrower" and "Lender" shall be deemed to
include the successors and assigns of the party or parties, the use of any
gender shall include all genders, the singular number shall include the plural,
or the plural, the singular, as the context may require; and if there shall be
more than one Borrower or party constituting the Borrower, the obligation of
each shall be joint and several.
WITNESS/ATTEST: MORTGAGE PLUS EQUITY AND LOAN CORP.
/s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Officer's Title: Chief Operating Officer Officer's Title: President/CEO
EXHIBIT 10.12
EXHIBIT "A"
PROMISSORY NOTE
5,000,000
Syosset, NY
March 20, 1998
FOR VALUE RECEIVED, Mortgage Plus Equity and Loan Corp., a
corporation, having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Borrower"), hereby promises to pay to the order of
ContiMortgage Corporation ("Lender") the lesser of the principal sum of
$5,000,000 or the unpaid principal amount of all Advances made by Lender to
Borrower under the terms of that certain Mortgage Warehouse Loan and Security
Agreement dated as of March 20, 1998, among Borrower and Lender (as the same may
be extended and amended from time to time, the "Loan Agreement"), together with
interest on the unpaid balance thereof at the rates and at the times and in the
amounts and manner provided in the Loan Agreement.
This Note is issued pursuant to and entitled to the benefits of the
Loan Agreement and the security interests granted therein, to which reference is
hereby made, and the terms of which are hereby incorporated by reference, for a
more complete statement of the terms and conditions under which the Advances
evidenced hereby are made and are to be repaid. Capitalized terms used herein
without definition shall have the meanings set forth in the Loan Agreement.
Reference is made to the Loan Agreement for provisions as to payment, interest,
Collateral, defaults, remedies and acceleration. In the event any of the terms
of this Note are inconsistent with the terms of the Loan Agreement, the terms of
the Loan Agreement shall control.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America, in immediately
available funds, at the office of Lender located at One ContiPark, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place as shall be
designated in writing for such purpose in accordance with the terms of the Loan
Agreement. Until notified in writing of the transfer of this Note, Borrower
shall be entitled to deem Lender, or such other person who has been so
identified by the transferor in writing to Borrower as the holder of this Note,
as the owner and holder of this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
The Agreement and this Note shall be governed by, and shall be
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania.
Upon occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note shall become due and payable in full in the
manner, upon the conditions and with the effect provided in the Loan Agreement,
and the Lender shall have the rights, remedies and privileges set forth in the
Loan Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Loan Agreement.
No reference herein to the Loan Agreement, and no provision of this
Note or the Loan Agreement, shall alter or impair the obligation of Borrower,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency herein
prescribed.
Borrower promises to pay all costs and expenses, including reasonable
attorneys' fees, incurred in the collection and enforcement of this Note.
Borrower and endorsers of this Note hereby consent to renewals and extensions of
time.
From the occurrence of an Event of Default until final payment of all
sums evidenced hereby interest payable hereunder on the outstanding principal
balance and all other sums due hereunder or under the Loan Agreement shall bear
interest at the Interest Penalty rate set forth in Section 6.1 of the Loan
Agreement. Notwithstanding the provisions of any applicable law to the contrary,
the Interest Penalty rate shall apply to all sums evidenced hereby after an
Event of Default and also after entry of a judgment or judgments against
Borrower. Said judgment(s) shall bear interest at the Interest Penalty rate
until it is satisfied in full.
Borrower waives presentment for payment, protest and demand, notice
of protest, demand and dishonor and non-payment of this Note, and all other
notices in connection with the delivery, acceptance, performance, default or
enforcement of the payment of this Note, and agrees that its liability shall be
unconditional, without regard to any extension of time, renewal, waiver or
modification granted or consented to by Lender. No extension of the time for the
payment of this Note or any installment hereof made by agreement with any person
or entity now or hereafter liable for the payment of this Note shall operate to
release, discharge, modify, change or effect the original liability under this
Note, either in whole or in part, of any person or entity not a party to such
agreement. Lender shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by Lender, and then only to the extent specifically set forth
in writing. A waiver of one event shall not be construed as continuing or as a
bar to our waiver of any right or remedy to a subsequent event.
The use of the words "Borrower" and "Lender" shall be deemed to
include the successors and assigns of the party or parties, the use of any
gender shall include all genders, the singular number shall include the plural,
or the plural, the singular, as the context may require; and if there shall be
more than one Borrower or party constituting the Borrower, the obligation of
each shall be joint and several.
WITNESS/ATTEST: MORTGAGE PLUS EQUITY AND LOAN CORP.
/s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Officer's Title: Chief Operating Officer Officer's Title: President/CEO
ACKNOWLEDGEMENT
STATE OF NEW YORK :
------------------
: SS.
COUNTY OF NASSAU :
------------------
On this 20th day of March, 1998, before me, a Notary Public,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ who acknowledged himself/herself to be the
President of Mortgage Plus, executed the foregoing instrument for the purposes
therein contained by signing the name of the _____________ by himself/herself as
such __________________________.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Notary Public
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NOTARY PUBLIC STATE OF NEW YORK
NO.01FO6023296
QUALIFIED IN NASSAU COUNTY
COMMISSION EXPIRES JANUARY 31, 2000
EXHIBIT 10.12
EXHIBIT "B"
ESSENTIAL MORTGAGE FILE DOCUMENTS
---------------------------------
1. Original Mortgage Note.
2. Executed endorsement in blank of the Note.
3. Loan Application.
4. Verification of Employment and Income as expressed in the
"Product Descriptions."
5. Credit Reports as expressed in the "Product Descriptions."
6. Appraisal Report.
7. All necessary and legally required disclosure Statement,
Federal and State.
8. Rescission Documents, if applicable.
9. Fair Lending and Equal Credit Notices, Federal and State.
10. Note and Disclosure Riders, when applicable.
11. Certified Copy of the Mortgage or Deed of Trust.
12. Original, recordable Assignment of the Mortgage.
13. Preliminary Title Report and evidence that an ALTA
policy has been ordered.
14. Evidence of Hazard Insurance and documentation
showing proper coverage and loss payable
endorsement has been ordered.
15. Evidence of Flood Insurance with loss payable
endorsement in effect or ordered. (Only if the
Subject Property is in Flood Zone "A".)
16. Authorization to Release Information.
17. Balloon Rider, if applicable.
EXHIBIT 10.12
EXHIBIT "C"
FORM OF REQUEST FOR BORROWING
-----------------------------
Telefax No. __________________
ContiMortgage Corporation
One ContiPark
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ___________________
Ladies and Gentlemen:
This letter constitutes our request to borrow on [Date] , $ [amount]
under the terms of the Mortgage Warehouse Loan and Security Agreement dated as
of ____, 19__ (the "Loan Agreement") among ContiMortgage Corporation ("Lender")
and [ Borrower ]. Such borrowing shall bear interest at the Interest Rate as
set forth in the Loan Agreement.
The proceeds of the borrowing are to be disbursed by Lender for each
designated Mortgage Loan in accordance with the applicable terms of the Loan
Agreement.
The undersigned officer of Borrower certifies that: (i) the representations and
warranties of Borrower contained in the Loan Agreement are true, correct and
complete in all material respects on and as of the date hereof to the same
extent as though made on and as of the date hereof; (ii) no Event of Default has
occurred and is continuing under the Loan Agreement or will result from the
proposed borrowing; (iii) the principal amount of the proposed borrowing, when
added to the principal amount of the Advances outstanding as of this date, does
not exceed Commitment Amount set forth in the Loan Agreement; and (iv) Borrower
has performed in all material respects all agreements and satisfied all
conditions under the Loan Agreement required to be performed by it on or before
the date hereof. After application of the proceeds of the Borrowing requested
hereunder, the amount outstanding under the Loan Agreement will be $ _________.
The Mortgage Loans, which are being funded by this request, are as set forth in
Schedule 1 hereto.
Any capitalized terms used herein shall the meanings set forth in the Agreement.
Very truly yours,
[BORROWER]
BY:_______________________________
NAME:_____________________________
OFFICER'S TITLE:__________________
SCHEDULE 1 TO REQUEST FOR BORROWING
SCHEDULE OF MORTGAGE LOANS
Attached
EXHIBIT 10.12
EXHIBIT "D"
UNDERWRITING GUIDELINES
-----------------------
Underwriting Guidelines attached:
. ContiMortgage Underwriting Guidelines
a) General Underwriting Guidelines - 17 Pages
. Other acceptable Underwriting Guidelines - NOT APPLICABLE
EXHIBIT 10.12
EXHIBIT "E"
FORM OF CLOSING AGENT INSTRUCTION LETTER
----------------------------------------
Re: _____________________________
[Account Name and Number]
_____________________________
[description of loan]
[Name/Address of Closing Agent]
---------------------------------
---------------------------------
---------------------------------
Dear _______________:
This Letter Agreement shall set forth the responsibilities of [Name of Closing
Agent], as agent for closing purposes of [Name of Borrower] in connection with
the funding of certain [Borrower's] loans.
With regard to the above described mortgage loan, ContiMortgage Corporation
("CMC") will wire transfer to your account ______% of the mortgage loan, with
[Borrower] supplying you the remainder of the funds necessary to fund the
subject mortgage loan. You will oversee disbursement of the mortgage loan
proceeds and will take control of the documentation executed at the mortgage
loan closing, ensuring that only one set of original documents is signed by the
mortgagor and that any duplicates are clearly labeled "Copy." YOU WILL FORWARD
THE ORIGINAL DOCUMENTATION VIA OVERNIGHT MAIL DIRECTLY TO CMC, TO BE RECEIVED BY
CMC NO LATER THAN ONE (1) BUSINESS DAY AFTER THE CLOSING. Simultaneous with the
loan closing, you will transmit via facsimile to CMC a copy of this Closing
Agent Instruction Letter signed by an officer, a copy of the original fully
executed note endorsed in blank, a copy of the original mortgage marked by you
as a true and correct copy, a copy of the executed assignment of mortgage and
marked-up title commitment. In the event the loan does not disburse, you will
notify CMC immediately, and you will return the funds by wire transfer to CMC
within twenty-four (24) hours unless instructed in writing to do otherwise by
CMC.
In the event that our funds are mishandled or misappropriated, CMC will look to
you and or the title company insuring the closing for protection and
reimbursement. You will also be liable to CMC for the mishandling or
misappropriation of the original loan documents.
By executing and returning this Closing Agent Instruction Letter to CMC, as
required below, you agree to be the "bailee" of CMC and will hold and possess
the note, mortgage and other documents executed in connection with the loan in
trust for and on behalf of CMC as CMC has an assignment of, and security
interest in the Loan and its documents.
The mailing address for CMC is:
ContiMortgage Corporation
One ContiPark
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Warehouse Lending Group
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
ACCEPTED AND AGREED, WITH THE INTENT TO BE LEGALLY BOUND, THIS DAY OF
--------
, 19__.
-----------
[Name of Closing Agent]
By: ______________________________
Name: ____________________________
Officer's Title:
EXHIBIT 10.12
EXHIBIT "F"
FORM OF GUARANTEE AGREEMENT
THIS GUARANTEE made this 20th day of March, 1998 by and between
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇ (hereinafter
called the "Guarantor(s)") and ContiMortgage Corporation, a Corporation having
its principal place of business at One ContiPark, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter called the "Company").
WITNESSETH:
----------
WHEREAS, the Company and Mortgage Plus Equity and Loan Corp.
(hereinafter referred to as "Borrower") propose to enter into a Mortgage
Warehouse Loan and Security Agreement as of the date hereof (as the same may be
extended and amended from time to time, the "Loan Agreement"), pursuant to which
the Company will provide a revolving mortgage warehouse loan facility to
Borrower for advances of funds to be used by Borrower to originate or purchase
certain Mortgage Loans, and
WHEREAS, the Borrower will issue to the Company a promissory note (as
the same may be extended and amended from time to time, the "Promissory Note")
to evidence the obligation of Borrower to repay advances, and the interest
accrued thereon, under the warehouse facility in accordance with the terms of
the Loan Agreement, and
WHEREAS, the Guarantors are affiliated with or related to the
Borrower and are desirous of having the Company enter into the Loan Agreement
with Borrower and offers to guarantee the obligations of Borrower, and
WHEREAS, the Company is willing to accept Promissory Note and enter
into the Loan Agreement only if the Guarantors, jointly and severally, guarantee
the full, prompt, faithful and complete performance of the terms and conditions
thereof.
NOW, THEREFORE, in consideration of the sum of $1.00 paid by the
Company to the Guarantors, the receipt and sufficiency of which is hereby
acknowledged, the execution of said Agreement by the Company, and intending to
be legally bound hereby, the Guarantors do hereby agree as follows:
1. The Guarantors do, jointly and severally, hereby
absolutely and unconditionally guarantee to Lender the full, prompt, faithful
and complete performance and satisfaction by Borrower when due of the
obligations of Borrower under the Promissory Note as well as all of the terms,
covenants, warranties and conditions of the Loan Agreement, including all sums
that may become due to the Company from Borrower pursuant to the terms and
conditions of Promissory Note and the Loan Agreement.
2. This Guarantee is not limited to any particular period
of time but shall continue, and shall not be revoked, until all of the terms,
covenants, warranties and conditions of Promissory Note and the Loan Agreement
have been fully and completely performed by Borrower or otherwise discharged by
the Company in writing, and the Guarantors shall not be released of any
obligation or liability hereunder so long as there is any claim of the Company
against the Borrower arising out of Promissory Note or the Loan Agreement that
has not been settled or discharged in full in writing.
3. Payment by Guarantors is due upon demand by the Company
and is payable in immediately available lawful Funds of the United States of
America.
4. The Guarantors hereby waive notice of acceptance of this
Guarantee.
5. This Guarantee shall be enforceable by the Company
without regard to, and without the necessity of the Company resorting to, any
property or property interest therein held by Company at any time or from time
to time as security for the performance of any of the terms, covenants,
warranties and/or conditions of Promissory Note or the Loan Agreement guaranteed
hereby, without regard to and without necessity for resorting to Borrower or any
other guarantors for the full, prompt and complete performance by Borrower of
all the terms, covenants, warranties, and conditions of Promissory Note and the
Loan Agreement.
6. Guarantors unconditionally consent to, and waive as a
defense to liability hereunder, each of the following: (a) any waiver, inaction,
delay or lack of diligence by Company in enforcing its rights against Borrower,
any other guarantor of the obligations of Borrower, or in any property, or the
unenforceability of any such rights, including any failure to perfect, protect
or preserve any lien or security interest which may be intended directly or
indirectly to secure any of the obligations of Borrower, and the absence of
notice thereof to any Guarantors, (b) any action, and the absence of notice
thereof to any Guarantors, taken by Company with respect to any of the
obligations of Borrower, including any release, subordination or substitution of
any collateral or release, termination, compromise, modification or amendment of
any instrument executed by or applicable to Borrower or of any claim, right or
remedy against any Borrower or any property, (c) any impairment of Guarantors
right to reimbursement by way of subrogation, indemnification or contribution,
(d) any other action taken or omitted by Company in good faith with respect to
the obligations of Borrower, (e) the absence or inadequacy of any formalities of
every kind in connection with enforcement of the obligations of Borrower,
including presentment, demand, notice and protest, (f) the waiver of any rights
of Company under or any action taken or omitted by Company with respect to any
other guaranty of the obligations of Borrower, and (g) all defenses arising out
of suretyship. Without limiting the generality of the foregoing, each Guarantors
hereby (a) waive all notices of the present existence or future incurrence of
obligations of Borrower, the amount thereof, terms and conditions thereof, and
any default thereon, and (b) waive all right to stay of execution and exemption
of property in any action to enforce the each Guarantor's liability hereunder.
7. Guarantors agree that there shall be no requirement that
Company document its acceptance of this Guarantee, evidence its reliance
thereon, or that Company take any action against any person or any property
prior to taking action against any Guarantors. Guarantors further agree that
Company's rights and remedies hereunder shall not be impaired or subject to any
stay, suspension or other delay as a result of Borrower's, or other guarantor's
insolvency, or as a result of any proceeding applicable to Borrower, other
guarantor or their respective property under any bankruptcy or insolvency law.
Each Guarantors also agree that payments and other reductions on the obligations
of Borrower may be applied to such of the obligations of Borrower and in such
order as Company may elect.
8. Guarantors will not exercise any rights with respect to
Company or Borrower related to or acquired in connection with or as a result of
its making of this Guarantee which it may acquire by way of subrogation,
indemnification or contribution, by reason of payment made by it hereunder or
otherwise, until after the date on which all of the obligations of Borrower
shall have been satisfied in full. Until such time any such rights against the
Borrower shall be fully subordinate in lien and payment to any claim in
connection with the obligations of Borrower which Company now or hereafter has
against the Borrower.
9. The provisions of this Guarantee are cumulative and
concurrent with Company's rights and remedies against Guarantors and Borrower.
If Company holds any other guaranty or surety agreement applicable to any of the
obligations of Borrower, the liability of each Guarantors hereunder shall be
joint and several with each party obligated on such other guaranty or surety
agreement, unless otherwise agreed by Company in writing.
10. Guarantors represent and warrant that this Guarantee
was not given for a "consumer credit transaction" (a credit transaction in which
the party to whom credit is offered or extended is a natural person and this
money is primarily for personal, family or household purposes). Guarantors
represent and warrant that the representations and warranties made in Section 5
of the Loan Agreement applicable to the Guarantors are true and correct.
11. No amendment of any provision of this Guarantee shall
be effective unless it is in writing and signed by each Guarantors and Company,
and no waiver of any provisions of this Guaranty, and no waiver or consent to
any departure by the Guarantors therefrom, shall be effective unless it is in
writing and signed by Company, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
12. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction.
13. The obligations of Guarantors hereunder, if more than
one, shall be joint and several and shall not be subject to any counterclaim,
setoff, deduction or defense based upon any related or unrelated claim which
Guarantors may now or hereafter have against Company or Borrower, except payment
of the obligations of Borrower, and shall not be affected by any change in
Borrower's legal status or ownership or by any change in corporate, partnership
or other organizational structure applicable to Borrower.
14. This Guarantee: (i) shall be binding upon the
Guarantors, their heirs, personal representatives, successors and assigns; (ii)
shall inure to the benefit of the Company, its successors and assigns; and (iii)
shall be governed by and construed and in accordance with the laws of the
Commonwealth of Pennsylvania and all judicial proceedings among the parties to
this guarantee agreement shall be brought only in a court of competent
jurisdiction in the Commonwealth of Pennsylvania.
15. Guarantors hereby represent and warrant to the Company
the truth and accuracy of each of the following:
(a) The Guarantors are adults and legally competent;
(b) The execution and delivery of this Guarantee by
Guarantors and the performance hereunder does not, and will not, violate any
provision of any law, rule, regulation, agreement, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to the Guarantors;
(c) The execution and delivery of this Guarantee by
Guarantors and the performance by Guarantors of the obligations to be performed
hereunder do not, and will not, result in a breach of or constitute a default
under any indenture or loan or credit agreement or any other agreement, lease or
instrument to which Guarantors are a party or by which their properties may be
bound or affected;
(d) This Guarantee, when duly executed and delivered by
Guarantors, constitutes the legal, valid and binding obligation of Guarantors,
enforceable against Guarantors according to its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or similar laws affecting creditors' rights in general,
including equitable remedies;
(e) There are no actions, suits or proceedings pending
or, to the knowledge of Guarantors, threatened against or affecting Guarantors
or the properties of Guarantors before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
which, if determined adversely to Guarantors, would have a material adverse
effect on the financial condition, properties or operations of Guarantors; and
(f) Guarantors have no setoffs, defenses or
counterclaims to any of their obligations hereunder under this Guarantee.
16. Consent To Jurisdiction And Venue. In any legal
---------------------------------
proceeding involving, directly or indirectly, any matter arising out of or
related to this Guarantee or the relationship evidenced hereby, Guarantors
hereby irrevocably submit to the in personam jurisdiction of Courts of the
Commonwealth of Pennsylvania and the Federal District Court for the Eastern
District of Pennsylvania and agrees not to raise any objection to such
jurisdiction or to the laying or maintaining of the venue of any such proceeding
in such county. Guarantors agree that service or process in any such proceeding
may be duly effected upon Guarantors by mailing a copy thereof, by certified or
registered mail, processed to Guarantors at the address noted below.
WAIVER OF JURY TRIAL. GUARANTORS HEREBY WAIVE TRIAL BY JURY AND THE
--------------------
RIGHT TO INTERPOSE ANY DEFENSE BASED ON ANY STATUTE OF LIMITATIONS OR CLAIM OF
LACHES IN ANY ACTION BY OR AGAINST GUARANTORS IN ANY WAY ARISING OUT OF OR
RELATED TO THIS GUARANTEE OR THE RELATIONSHIP EVIDENCED HEREBY.
IN WITNESS WHEREOF, the undersigned have executed and delivered the
Guarantee the day and year first above written.
WITNESS: INDIVIDUAL GUARANTORS
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- --------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
In his or her individual capacity
Address of Guarantors: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------
WITNESS: INDIVIDUAL GUARANTORS
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------- --------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
In his or her individual capacity
Address of Guarantors: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------
WITNESS: INDIVIDUAL GUARANTORS
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------- --------------------------
Name: ▇▇▇ ▇▇▇▇▇
In his or her individual capacity
Address of Guarantors: ▇ ▇▇▇▇▇▇ ▇▇.
-----------------------
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------
GUARANTEE AGREEMENT
-------------------
THIS GUARANTEE made this 20th day of March, 1998 by and between
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇ (hereinafter
called the "Guarantor") and ContiMortgage Corporation, a Corporation having its
principal place of business at One ContiPark, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter called the "Company").
WITNESSETH:
WHEREAS, the Company and Mortgage Plus Equity and Loan Corp.
(hereinafter referred to as "Borrower") propose to enter into a Mortgage
Warehouse Loan and Security Agreement as of the date hereof (as the same may be
extended and amended from time to time, the "Loan Agreement"), pursuant to which
the Company will provide a revolving mortgage warehouse loan facility to
Borrower for advances of funds to be used by Borrower to originate or purchase
certain Mortgage Loans, and
WHEREAS, the Borrower will issue to the Company a promissory note (as
the same may be extended and amended from time to time, the "Promissory Note")
to evidence the obligation of Borrower to repay advances, and the interest
accrued thereon, under the warehouse facility in accordance with the terms of
the Loan Agreement, and
WHEREAS, the Guarantors are affiliated with or related to the
Borrower and are desirous of having the Company enter into the Loan Agreement
with Borrower and offers to guarantee the obligations of Borrower, and
WHEREAS, the Company is willing to accept Promissory Note and enter
into the Loan Agreement only if the Guarantors, jointly and severally, guarantee
the full, prompt, faithful and complete performance of the terms and conditions
thereof.
NOW, THEREFORE, in consideration of the sum of $1.00 paid by the
Company to the Guarantors, the receipt and sufficiency of which is hereby
acknowledged, the execution of said Agreement by the Company, and intending to
be legally bound hereby, the Guarantors do hereby agree as follows:
1. The Guarantors do, jointly and severally, hereby
absolutely and unconditionally guarantee to Lender the full, prompt, faithful
and complete performance and satisfaction by Borrower when due of the
obligations of Borrower under the Promissory Note as well as all of the terms,
covenants, warranties and conditions of the Loan Agreement, including all sums
that may become due to the Company from Borrower pursuant to the terms and
conditions of Promissory Note and the Loan Agreement.
2. This Guarantee is not limited to any particular period
of time but shall continue, and shall not be revoked, until all of the terms,
covenants, warranties and conditions of Promissory Note and the Loan Agreement
have been fully and completely performed by Borrower or otherwise discharged by
the Company in writing, and the Guarantors shall not be released of any
obligation or liability hereunder so long as there is any claim of the Company
against the Borrower arising out of Promissory Note or the Loan Agreement that
has not been settled or discharged in full in writing.
3. Payment by Guarantors is due upon demand by the Company
and is payable in immediately available lawful Funds of the United States of
America.
4. The Guarantors hereby waive notice of acceptance of this
Guarantee.
5. This Guarantee shall be enforceable by the Company
without regard to, and without the necessity of the Company resorting to, any
property or property interest therein held by Company at any time or from time
to time as security for the performance of any of the terms, covenants,
warranties and/or conditions of Promissory Note or the Loan Agreement guaranteed
hereby, without regard to and without necessity for resorting to Borrower or any
other guarantors for the full, prompt and complete performance by Borrower of
all the terms, covenants, warranties, and conditions of Promissory Note and the
Loan Agreement.
6. Guarantors unconditionally consent to, and waive as a
defense to liability hereunder, each of the following: (a) any waiver, inaction,
delay or lack of diligence by Company in enforcing its rights against Borrower,
any other guarantor of the obligations of Borrower, or in any property, or the
unenforceability of any such rights, including any failure to perfect, protect
or preserve any lien or security interest which may be intended directly or
indirectly to secure any of the obligations of Borrower, and the absence of
notice thereof to any Guarantors, (b) any action, and the absence of notice
thereof to any Guarantors, taken by Company with respect to any of the
obligations of Borrower, including any release, subordination or substitution of
any collateral or release, termination, compromise, modification or amendment of
any instrument executed by or applicable to Borrower or of any claim, right or
remedy against any Borrower or any property, (c) any impairment of Guarantors
right to reimbursement by way of subrogation, indemnification or contribution,
(d) any other action taken or omitted by Company in good faith with respect to
the obligations of Borrower, (e) the absence or inadequacy of any formalities of
every kind in connection with enforcement of the obligations of Borrower,
including presentment, demand, notice and protest, (f) the waiver of any rights
of Company under or any action taken or omitted by Company with respect to any
other guaranty of the obligations of Borrower, and (g) all defenses arising out
of suretyship. Without limiting the generality of the foregoing, each Guarantors
hereby (a) waive all notices of the present existence or future incurrence of
obligations of Borrower, the amount thereof, terms and conditions thereof, and
any default thereon, and (b) waive all right to stay of execution and exemption
of property in any action to enforce the each Guarantors's liability hereunder.
7. Guarantors agree that there shall be no requirement that
Company document its acceptance of this Guarantee, evidence its reliance
thereon, or that Company take any action against any person or any property
prior to taking action against any Guarantors. Guarantors further agree that
Company's rights and remedies hereunder shall not be impaired or subject to any
stay, suspension or other delay as a result of Borrower's, or other guarantor's
insolvency, or as a result of any proceeding applicable to Borrower, other
guarantor or their respective property under any bankruptcy or insolvency law.
Each Guarantors also agree that payments and other reductions on the obligations
of Borrower may be applied to such of the obligations of Borrower and in such
order as Company may elect.
8. Guarantors will not exercise any rights with respect to
Company or Borrower related to or acquired in connection with or as a result of
its making of this Guarantee which it may acquire by way of subrogation,
indemnification or contribution, by reason of payment made by it hereunder or
otherwise, until after the date on which all of the obligations of Borrower
shall have been satisfied in full. Until such time any such rights against the
Borrower shall be fully subordinate in lien and payment to any claim in
connection with the obligations of Borrower which Company now or hereafter has
against the Borrower.
9. The provisions of this Guarantee are cumulative and
concurrent with Company's rights and remedies against Guarantors and Borrower.
If Company holds any other guaranty or surety agreement applicable to any of the
obligations of Borrower, the liability of each Guarantors hereunder shall be
joint and several with each party obligated on such other guaranty or surety
agreement, unless otherwise agreed by Company in writing.
10. Guarantors represent and warrant that this Guarantee
was not given for a "consumer credit transaction" (a credit transaction in which
the party to whom credit is offered or extended is a natural person and this
money is primarily for personal, family or household purposes). Guarantors
represent and warrant that the representations and warranties made in Section 5
of the Loan Agreement applicable to the Guarantors are true and correct.
11. No amendment of any provision of this Guarantee shall
be effective unless it is in writing and signed by each Guarantors and Company,
and no waiver of any provisions of this Guaranty, and no waiver or consent to
any departure by the Guarantors therefrom, shall be effective unless it is in
writing and signed by Company, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
12. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction.
13. The obligations of Guarantors hereunder, if more than
one, shall be joint and several and shall not be subject to any counterclaim,
setoff, deduction or defense based upon any related or unrelated claim which
Guarantors may now or hereafter have against Company or Borrower, except payment
of the obligations of Borrower, and shall not be affected by any change in
Borrower's legal status or ownership or by any change in corporate, partnership
or other organizational structure applicable to Borrower.
14. This Guarantee: (i) shall be binding upon the
Guarantors, their heirs, personal representatives, successors and assigns; (ii)
shall inure to the benefit of the Company, its successors and assigns; and (iii)
shall be governed by and construed and in accordance with the laws of the
Commonwealth of Pennsylvania and all judicial proceedings among the parties to
this guarantee agreement shall be brought only in a court of competent
jurisdiction in the Commonwealth of Pennsylvania.
15. Guarantors hereby represent and warrant to the Company
the truth and accuracy of each of the following:
(a) The Guarantors are adults and legally competent;
(b) The execution and delivery of this Guarantee by
Guarantors and the performance hereunder does not, and will not, violate any
provision of any law, rule, regulation, agreement, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to the Guarantors;
(c) The execution and delivery of this Guarantee by
Guarantors and the performance by Guarantors of the obligations to be performed
hereunder do not, and will not, result in a breach of or constitute a default
under any indenture or loan or credit agreement or any other agreement, lease or
instrument to which Guarantors are a party or by which their properties may be
bound or affected;
(d) This Guarantee, when duly executed and delivered by
Guarantors, constitutes the legal, valid and binding obligation of Guarantors,
enforceable against Guarantors according to its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or similar laws affecting creditors' rights in general,
including equitable remedies;
(e) There are no actions, suits or proceedings pending
or, to the knowledge of Guarantors, threatened against or affecting Guarantors
or the properties of Guarantors before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
which, if determined adversely to Guarantors, would have a material adverse
effect on the financial condition, properties or operations of Guarantors; and
(f) Guarantors have no setoffs, defenses or
counterclaims to any of their obligations hereunder under this Guarantee.
16. Consent To Jurisdiction And Venue. In any legal
---------------------------------
proceeding involving, directly or indirectly, any matter arising out of or
related to this Guarantee or the relationship evidenced hereby, Guarantors
hereby irrevocably submit to the in personam jurisdiction of Courts of the
Commonwealth of Pennsylvania and the Federal District Court for the Eastern
District of Pennsylvania and agrees not to raise any objection to such
jurisdiction or to the laying or maintaining of the venue of any such proceeding
in such county. Guarantors agree that service or process in any such proceeding
may be duly effected upon Guarantors by mailing a copy thereof, by certified or
registered mail, processed to Guarantors at the address noted below.
WAIVER OF JURY TRIAL. GUARANTORS HEREBY WAIVE TRIAL BY JURY AND THE
--------------------
RIGHT TO INTERPOSE ANY DEFENSE BASED ON ANY STATUTE OF LIMITATIONS OR CLAIM OF
LACHES IN ANY ACTION BY OR AGAINST GUARANTORS IN ANY WAY ARISING OUT OF OR
RELATED TO THIS GUARANTEE OR THE RELATIONSHIP EVIDENCED HEREBY.
IN WITNESS WHEREOF, the undersigned have executed and delivered the
Guarantee the day and year first above written.
WITNESS: INDIVIDUAL GUARANTORS
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- --------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
In his or her individual capacity
Address of Guarantors: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------
WITNESS: INDIVIDUAL GUARANTORS
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------- --------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
In his or her individual capacity
Address of Guarantors: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------
WITNESS: INDIVIDUAL GUARANTORS
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------- --------------------------
Name: ▇▇▇ ▇▇▇▇▇
In his or her individual capacity
Address of Guarantors: ▇ ▇▇▇▇▇▇ ▇▇.
-----------------------
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------
INDIVIDUAL ACKNOWLEDGEMENT
STATE OF NEW YORK :
---------------
COUNTY OF NASSAU :
---------------
On this 2Oth day of March, 1998, I state that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ of
Smithtown, an individual of the State of New York, appeared before me, a Notary
Public for the State of New York, and is/are known to me (satisfactory proven)
to be the person(s) whose name(s) is/are subscribed to the within Guarantee
Agreement and acknowledged that he/she/they executed the same for the purposes
therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and seal.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
NOTARY PUBLIC
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NOTARY PUBLIC STATE OF NEW YORK
NO.01FO6023296
QUALIFIED IN NASSAU COUNTY
COMMISSION EXPIRES JANUARY 31, 2000
INDIVIDUAL ACKNOWLEDGEMENT
STATE OF NEW YORK :
-------------
COUNTY OF NASSAU :
------------
On this 20 day of March, 1998, I state that ▇▇▇▇ ▇▇▇▇▇ of Woodbury,
an individual of the State of New York, appeared before me, a Notary Public for
the State of New York, and is/are known to me (satisfactory proven) to be the
person(s) whose name(s) is/are subscribed to the within Guarantee Agreement and
acknowledged that he/she/they executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and seal.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
NOTARY PUBLIC
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NOTARY PUBLIC STATE OF NEW YORK
NO.01FO6023296
QUALIFIED IN NASSAU COUNTY
COMMISSION EXPIRES JANUARY 31, 2000
INDIVIDUAL ACKNOWLEDGEMENT
STATE OF NEW JERSEY :
--------------
COUNTY OF ESSEX :
-------------
On this 23rd day of March, 1998, I state that ▇▇▇ ▇. ▇▇▇▇▇ of West
Orange, an individual of the State of New Jersey , appeared before me, a Notary
Public for the State of New Jersey, and is/are known to me (satisfactory proven)
to be the person(s) whose name(s) is/are subscribed to the within Guarantee
Agreement and acknowledged that he/she/they executed the same for the purposes
therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and seal.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
NOTARY PUBLIC
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
NOTARY PUBLIC OF NEW JERSEY
MY COMMISSION EXPIRES MARCH 1, 2001
INDIVIDUAL ACKNOWLEDGEMENT
STATE OF :
--------------
COUNTY OF :
-------------
On this _________ day of _____________, 19__, I state that ________
of ____, an individual of the State of _______ , appeared before me, a Notary
Public for the State of _______ , and is/are known to me (satisfactory proven)
to be the person(s) whose name(s) is/are subscribed to the within Guarantee
Agreement and acknowledged that he/she/they executed the same for the purposes
therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and seal.
____________________________
NOTARY PUBLIC
EXHIBIT 10.12
EXHIBIT "G"
LISTING OF OTHER CREDIT FACILITIES OF BORROWER
----------------------------------------------
1.) THE SUMMIT TRUST COMPANY $12,000,000.00
EXHIBIT 10.12
EXHIBIT "H"
OFFICER'S CERTIFICATE
---------------------
The undersigned, Secretary [title] of Mortgage Plus Equity and Loan Corp., a
corporation ("Borrower"), hereby certifies in connection with that certain
Mortgage Warehouse Loan and Security Agreement dated March 20, 1998 (the "Loan
and Security Agreement") by and between ContiMortgage Corporation, a Delaware
corporation, and Borrower that the following individuals are authorized on
behalf of Borrower to execute and deliver Requests for Borrowing, endorse Notes,
assign Mortgages, and execute and deliver other documents binding Borrower.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: President/CEO
-------------------------------------
Facsimile Signature: /s/ ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇
-----------------------
Authority Levels: *
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Title: Chief Operating Officer
-------------------------------------
Facsimile Signature: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------
Authority Levels: *
--------------------------
Name: ▇▇▇ ▇▇▇▇▇
--------------------------------------
Title: Chief Operating Officer of B/C
-------------------------------------
Facsimile Signature: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Authority Levels: Chief Operating Officer, Home Equity Servicer*
----------------------------------------------
*List all authorized activities for each individual by the following
code numbers: Authorized to: 1 = Execute the Loan and Security Agreement, the
Promissory Note, the UCC-1 Financing Statements and any other documents
necessary to effectuate the terms of the Loan and Security Agreement; 2 =
Endorse Notes; 3 = Assign Mortgages; 4 = Designate Controlled Disbursement
Accounts; 5 = Execute Requests for Borrower; 6 = [other - specify ]
IN WITNESS WHEREOF, the undersigned has executed this certificate,
this 20th day of March, 1998.
Mortgage Plus Equity and Loan Corp.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
------------------------------
Title: Chief Operating Officer
-----------------------------
EXHIBIT 10.12
EXHIBIT "I"
WIRING INSTRUCTIONS
-------------------
LENDER'S WIRING INSTRUCTIONS:
Bank: Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇
ABA/Routing # ▇▇▇▇▇▇▇▇▇
Account Name ContiMortgage Corporation Warehouse Advance
Recovery Account
Account # 304-100323
EXHIBIT 10.12
EXHIBIT "J"
LISTING OF QUALIFIED INVESTORS
------------------------------
1.) CONTIMORTGAGE CORPORATION
2.) BENEFICIAL MORTGAGE CORPORATION
3.) INDUSTRY MORTGAGE
4.) THE C.I.T. GROUP
5.) FIRSTCITY CAPITAL CORPORATION
6.) G.E. CAPITAL
7.) DELTA FUNDING CORPORATION
8.) THE ASSOCIATES
EXHIBIT 10.12
EXHIBIT "K"
SCHEDULE "A"
------------
(To UCC-1)
ContiMortgage Corporation, a Delaware corporation, is the "Secured
Party" in its capacity as lender under that certain Mortgage Warehouse Loan And
Security Agreement, dated 3/20/98 (as the same may be extended, amended and
renewed from time to time, the "Agreement"), by and between ContiMortgage
Corporation and Mortgage Plus Equity and Loan Corp., as borrower (the
"Borrower").
COLLATERAL
Borrower hereby assigns, transfers and pledges to ContiMortgage
Corporation, and grants ContiMortgage Corporation a security interest in, all of
Borrower's right, title and interest, powers, privileges and other benefits
under, in and to the following (the "Collateral") wherever located and whether
now existing or hereafter acquired, together with all of the proceeds thereof:
(a) All Mortgage Loans, Mortgages, Notes, the remaining portion of
the Essential Mortgage File Documents for all Mortgage Loans and any other
documents and property as shall be deposited with, or held by, or come into the
possession of ContiMortgage Corporation pursuant to the Agreement;
(b) All payments and prepayments of principal, interest, penalties
and other income due or to become due on all Mortgage Loans, Mortgages and Notes
referred to in paragraph (a) above; all the right, title and interest of every
nature whatsoever of Borrower in and to the Collateral described in paragraph
(a) above and this paragraph (b) and all property used in connection therewith
including, without limitation, the following:
(i) All rights, liens and security interests existing
with respect to, or as security for, all such Mortgage Loans;
(ii) All hazard insurance policies, title insurance
policies or, private mortgage insurance policies, condemnation proceeds with
respect to each such Mortgage Loan;
(iii) All insurance and guaranties provided by the FHA or
VA, as the case may be, with respect to each such Mortgage Loan; and
(iv) All private mortgage insurance policies with respect
to each such Mortgage Loan; and
(c) All files, surveys, certificates, correspondence, appraisals,
computer programs, tapes, discs, cards, accounting records and other records and
data of Borrower related to the Mortgage Loans.
All defined terms used herein not otherwise defined in this
description of the Collateral shall have the meanings given in the Agreement.
Copies of the Agreement are on file with ContiMortgage Corporation as
Secured Party.