EXHIBIT 10.11.2
ANNEX I
SUPPLEMENTAL TERMS AND CONDITIONS
The Master Repurchase Agreement between Impac Warehouse Lending Group
("Buyer") and HOMEGOLD, INC. ("Seller"), dated as of JULY 6, 2001 is amended and
supplemented as set forth below. All capitalized terms used herein that are
defined in the Master Repurchase Agreement are used herein as defined therein
except to the extent such terms are amended or supplemented herein.
1. Paragraph 1 of the Master Repurchase Agreement is amended by adding the
following after the word "instruments" and before the parenthetica1
"("Securities")" in the second line thereof:
"or whole mortgage loans or any interests in any whole mortgage loans,
including, without limitation, mortgage participation certificates and
mortgage passthrough certificates".
2. Subparagraph 2(a) of the Master Repurchase Agreement is amended by
adding the following after the word "any" and before the word "bankruptcy" in
the second line thereof:
"conservatorship or receivership (within the meaning of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989),".
3. Subparagraph 2(a) of the Master Repurchase Agreement is further amended
by adding the following after the word "a" and before the word "receiver" in the
third line thereof:
"conservator,".
4. Subparagraph 2(h) of the Master Repurchase Agreement is amended by
deleting the defined term "Market Value" and replacing it with the defined term
"Assumed Repurchase Value", and the term Market Value throughout the Master
Repurchase Agreement shall be deemed to denote the Assumed Repurchase Value.
5. Subparagraph 2(h) of the Master Repurchase Agreement is amended by
adding at the end thereof:
"except that the Assumed Repurchase Value of any Securities that are
loans secured by mortgages or deeds of trust on residential dwellings (such
loans, "Mortgage Loans") as of any date shall be the dollar amount ascribed
to such Mortgage Loans on that date by Buyer in its reasonable and sole
discretion, and shall not include any Income on such Mortgage Loans paid to
and held by Seller pursuant to Paragraph 5 hereof, and the Assumed
Repurchase Value of any Additional Purchased Securities shall be the fair
market value thereof as determined by Buyer in its reasonable and sole
discretion"
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6. Subparagraph 3(b) of the Master Repurchase Agreement is amended by
adding at the end of the first sentence of Paragraph 3(b):
"In the case of Transactions involving Securities that are Mortgage
Loans, (a) the Purchased Securities shall be identified on a detailed
listing to be provided by Seller to Buyer (a "Mortgage Loan Schedule")
attached to a Certificate of Seller in the form attached hereto, (b) the
Confirmation shall be sent by Seller to Buyer, (c) the documents contained
in the Mortgage File (as defined in Paragraph 7) shall be delivered at the
option of the Buyer to the Buyer, or the Custodian, and held by the
Custodian pursuant to the terms of a Custody Agreement, dated of even date
herewith (the "Custody Agreement"), among Seller, Buyer and Custodian
pursuant to which Custodian shall, among other things, issue Trust
Receipts, as defined therein (the "Trust Receipts"), and (d) the Mortgage
Loans shall be serviced for Buyer by Seller pursuant to the Servicing
Agreement, dated of even date herewith (the "Servicing Agreement"), between
Seller and Buyer."
7. Paragraph 3(b) of the Master Repurchase Agreement is further amended by
deleting the last sentence and replacing it with the following:
"In the event of any conflict between the terms of such Confirmation
and this Agreement, the terms of such Confirmation shall prevail."
8. Subparagraph 3(c) of the Master Repurchase Agreement is amended by
adding at the end of the first sentence of Paragraph 3(c);
"In the case of Transactions involving Securities that are Mortgage
Loans, (i) which meet the requirements of the Seller's Warranties
Agreement, such demand by Buyer may not be made prior to 30 days following
the date of the Transaction in which the Securities were originally
conveyed to Buyer provided no event of default has occurred; (ii) which do
not meet the requirements of the Seller's Warranties Agreement in all
material respects, such demand by Buyer may be made at any time; or (iii)
Seller may repurchase at any time, irrespective of whether the particular
Mortgage Loans(s) meets the requirements of the Seller's Warranties
Agreement. In any case, such demand either by Buyer or by Seller shall be
for a repurchase of all purchased Securities subject to the related
Transaction and such demand shall be made no later than 5:00 p.m. New York
City time on the business day preceding the day on which such termination
will be effective, which termination shall also be on a business day. Upon
receipt of the Repurchase Price in immediately available funds, Buyer shall
deliver the Trust Receipt for such Transaction to Custodian for further
disposition in accordance with the terms of the Custody Agreement."
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9. Paragraph 4 of the Master Repurchase Agreement is amended by adding a
new subparagraph (f) as follows:
"(f) In the case of Transactions involving Securities that are
Mortgage Loans (i) the percentage used in calculating Buyer's Margin
Amount for such Transaction shall be the percentage specified in the
Confirmation and (ii) Additional Purchased Securities shall be limited to
obligations issued by the United States government or mortgaged-backed
securities issued by the Federal National Mortgage Association ("FNMA") or
guaranteed by the Government National Mortgage Association ("GNMA") and
otherwise acceptable to Buyer in its sole discretion, (iii) the provisions
of subparagraphs (b), (d) and (e) of this Paragraph shall not apply".
10. Paragraph 5 of the Master Repurchase Agreement is amended by adding the
following at the end of the last sentence of Paragraph 5:
"Notwithstanding the foregoing and except as provided in Paragraph 11
of this Agreement, in the case of Transactions involving Securities that
are Mortgage Loans, Seller shall be deemed to hold for the benefit of, and
in trust for, Buyer all Income, including without limitation a11 scheduled
and unscheduled principal and interest payments, received by Seller with
respect to such Mortgage Loans. Seller shall service the Mortgage Loans, or
supervise the servicing of the Mortgage Loans, for the benefit of Buyer in
accordance with the terms of the Servicing Agreement. On the 10th day of
each month, Seller will provide Buyer with reports substantially identical
in form to FNMA's form 2010 remittance report with respect to a1l Mortgage
Loans then involved in any Transaction hereunder. Within three business
days of its receipt of each such report, Buyer either (i) shall determine
that a Margin Deficit has occurred and direct Seller to pay to Buyer all
Income received in the period covered by such report to the extent of such
Margin Deficit, in which case Buyer shall be deemed to have released any
excess Income to Seller, or (ii) shall determine that a Margin Deficit has
not occurred, in which case Buyer shall be deemed to have released all such
Income to Seller."
11. Paragraph 6 of the Master Repurchase Agreement is amended by adding the
following after the word "the" and before the words "Purchased Securities" in
the fourth line thereof:
"Seller's right (including the power to convey title thereto), title
and interest in and to the".
12. Paragraph 6 of the Master Repurchase Agreement is amended by adding the
following after the words "Purchased Securities" and before the word "with" in
the fourth line thereof:
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", the contractual right to receive payments, including the right to
payments of principal and interest and the right to enforce such payments,
arising from or under any of the Purchased Securities, the contractual
right to service each Mortgage Loan, any sub-servicing agreements with
respect to each Mortgage Loan, and all documents in each Mortgage File,".
13. Paragraph 6 of the Master Repurchase Agreement is amended by adding the
following after the word "all" and before the word "proceeds" in the fifth line
thereof:
"income, payments, products and".
14. Paragraph 6 of the Master Repurchase Agreement is amended by adding the
following after the word "thereof" and before the period in the fifth line
thereof:
"(the "Collateral")".
15. Paragraph 6 of the Master Repurchase Agreement is amended by adding the
following at the end of the last sentence of Paragraph 6:
"In such event, the parties hereto intend to create for the benefit of
Buyer, as secured party, a legally valid and enforceable first priority
perfected security interest in the Collatera1. On or prior to each Purchase
Date, Seller shall cause to be filed in the appropriate filing offices of
the jurisdiction in which Seller maintains its place of business, or its
chief executive office if Seller has more than one place of business, in
accordance with applicable law, Uniform Commercial Code financing
statements naming Seller as debtor, Buyer as secured party, and the
Collateral as collateral."
16. Paragraph 7 of the Master Repurchase Agreement is amended by adding the
following at the end of the last sentence of Paragraph 7:
"In the case of Transactions involving Securities that are Mortgage
Loans, the transfer of such Mortgage Loans for the purposes of this
Paragraph 7 shall include the delivery to the Buyer or Custodian, as
directed by the Buyer, the following documents (the "Mortgage File") with
respect to each Mortgage Loan, as set forth in the Custody Agreement:
subject, however, to the paragraph immediately following clause (xii)
below;"
(i) the original note or other evidence of indebtedness (the "Mortgage
Note") of the obligor thereon (each such obligor, a "Mortgagor"), endorsed
to the order of or assigned to Seller by the holder/payee thereof, without
recourse, and endorsed by Seller, without recourse, in blank;
(ii) the original mortgage, deed of trust or other instrument
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(the "Mortgage") creating a first lien on the underlying property securing
the Mortgage Loan (the "Mortgaged Property"), naming Seller as the
"mortgagee" or "beneficiary" thereof, and bearing on the face thereof the
address of Seller as provided in Paragraph 13 of this Agreement, or, if the
Mortgage does not name Seller as the mortgagee/beneficiary, the Mortgage,
together with an instrument of assignment assigning the Mortgage,
individually or together with other Mortgages, to Seller and bearing on the
face thereof the address of Seller as provided in Paragraph 13 of this
Agreement, and, in either case, bearing evidence that such instruments have
been recorded in the appropriate jurisdiction where the Mortgaged Property
is located (or, in lieu of the original of the Mortgage or the assignment
thereof, a duplicate or conformed copy of the Mortgage or the instrument of
assignment, if any, together with a certificate of either the closing
attorney or an officer of the title insurer that issued the related title
insurance policy, or a certificate of receipt from the recording office,
certifying that such copy or copies represent true and correct copy(ies) of
the original(s) and that such original(s) have been or are currently
submitted to be recorded in the appropriate governmental recording office
of the jurisdiction where the Mortgaged Property is located);
(iii) an original assignment of Mortgage, in blank, which assignment
shall be in form and substance acceptable for recording and, in the event
that the Seller acquired the Mortgage Loan in a merger, the assignment must
be by "[Seller], successor by merger to [name of predecessor]" ;
(iv) any intervening assignment of the Mortgage not included in (ii)
above, including any warehousing assignment; (v) any assumption,
modification, extension or guaranty agreement;
(vi) the Lender's title insurance policy, or, if such policy has not
been issued, a written commitment or interim binder issued by the title
insurance company evidencing that the required title insurance coverage is
in effect and unconditionally guaranteeing the holder of the Mortgage Loan
that the lender's title insurance policy will be issued;
(vii) insurance; if applicable, any policy or certificate of primary
mortgage guaranty
(viii) if the Mortgage Note or Mortgage or any other material document
or instrument relating to the Mortgage Loan has been signed by a person on
behalf of the Mortgagor, the power of attorney or other instrument that
authorized and empowered such person to sign with recording information
thereon;
(ix) with respect to FHA insured Mortgage Loans, the original FHA
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Insurance Contract, together with a completed HUD Form 92080 "Mortgagee
Record Change" with the Purchasing Mortgagees name left blank;
(x) with respect to VA guaranteed Mortgage Loans, the original VA Loan
Guaranty Certificate;
(xi) with respect to each Mortgage Loan which is subject to the
provisions of the Homeownership and Equity Protection Act of
1994, a copy of a notice to each entity which was a purchaser or
assignee of the Mortgage Loan, satisfying the provisions of such
Act and the regulations issued thereunder, to the effect that the
Mortgage Loan is subject to special truth in lending rules; and
(xii) any other document as may be requested by Xxxxx.
"Notwithstanding the above, Seller shall, at least one Business Day
prior to the related Purchase Date, deliver to or cause to be delivered to
Buyer or Custodian, as directed by Xxxxx, originals or true copies of such
documents contained in the Mortgage File; and within forty eight (48) hours
after such purchase date Seller shall deliver or cause to be delivered to
Buyer or Custodian, as directed by Xxxxx, the originals (to the extent not
previously delivered) of all such documents in the Mortgage File. Failure
by Seller to de1iver or cause to be delivered such documents within such
time periods specified in the immediately preceding sentence shall
constitute an Event of Default under the Master Repurchase Agreement.
Seller shall cause each closing agent to hold any originals of such
documents in the Mortgage File held by such closing agent prior to delivery
thereof to Buyer or Custodian, as directed by Xxxxx, in trust and as bailee
for Buyer.
In addition to the documents contained in the Mortgage File, Seller
shall deliver to buyer on or prior to the Purchase Date for such
Transaction a security release certification acceptable to Buyer,
certifying the release of any security interest of a third party which may
have existed with respect to any of the Mortgage Loans subject to such
Transaction during the 45-day period prior to the related Purchase Date.
Seller shall include on each Mortgage Loan Schedule a code indicating
whether the Mortgage Loan is subject to the Homeownership and Equity Protection
Act of 1994."
Seller shall cause to be maintained a servicing file (" Servicing File")
with respect to each Mortgage Loan that shall contain the following documents:
(a) copies of all the documents contained in the Mortgage File;
(b) any instrument necessary to complete identification of any
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exception set forth in the exception schedule in the title
insurance policy (e.g., map or plat, restrictions, easements,
sewer agreements, home association declarations, etc.);
(c) a survey of the Mortgaged Property;
(d) any hazard insurance policy or flood insurance policy, with
extended coverage of the hazard insurance policy;
(e) the Mortgage Loan closing statement (Form HUD-l) and any other
truth-in-lending, real estate settlement procedure forms or other
disclosure statements required by law;
(f) the residential loan application, if applicable;
(g) any verification of employment and income;
(h) if applicable, any verification of acceptable evidence of source
and amount of downpayment;
(i) any credit report on the borrower under the Mortgage Loan;
(j) each residential appraisal report;
(k) a photograph of the Mortgaged Property;
(1) any tax receipts, insurance premiums, ledger sheets, payment
records, insurance claim files and correspondence, current and
historical computerized data files, underwriting standards used
for origination and all other papers and records developed or
originated by the Seller, any servicer or others, required to
document the Mortgage Loan or to service the Mortgage Loan; and
(m) any other document as may be requested by Xxxxx. Seller shall
cause to be delivered to Buyer each Servicing File upon Event of
Default by Seller under the Master Repurchase Agreement.
17. Paragraph 8 of the Master Repurchase Agreement is amended by deleting
the last sentence of Paragraph 8 and substituting the following:
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"Title to all Purchased Securities (except for Securities that are
Mortgage Loans) shall pass to Buyer. In the case of Purchased Securities
that are Mortgage Loans, upon transfer of the Mortgage Loans to Buyer as
set forth in Paragraph 3(a) of this Agreement and until termination of any
Transactions as set forth in Paragraphs 3(c) or 11 of this Agreement,
ownership of each Mortgage Loan, including each document in the related
Mortgage File, is vested in Buyer. Upon transfer of the Mortgage Loans to
Buyer as set forth in Paragraph 3(a) of this Agreement and until
termination of any Transactions as set forth in Paragraphs 3(c) or 11 of
this Agreement, record title in the name of Seller to each Mortgage shall
be retained by Seller in trust, for the benefit of Buyer, for the sole
purpose of facilitating the servicing and the supervision of the servicing
of the Mortgage Loans pursuant to the Servicing Agreement. Unless otherwise
agreed by Xxxxx and Seller, nothing in this Agreement shall preclude Buyer
from engaging in repurchase transactions with the Purchased Securities or
otherwise pledging or hypothecating the Purchased Securities, but no such
transaction shall relieve Buyer of its obligations to transfer Purchased
Securities (and, with respect to the Mortgage Loans, not substitutes
therefor) to Seller pursuant to Paragraphs 3, 4 or 11 hereof. Upon
termination of any Transactions as set forth in Paragraph 3(c) of this
Agreement, Xxxxx agrees to execute promptly endorsements of the Mortgage
Notes, assignments of the Mortgages and UCC-3 assignments, to the extent
that such documents are prepared by Seller for Buyer's execution, are
delivered to Buyer by Seller and are necessary to reconvey, without
recourse, to Seller and perfect title of like tenor to that conveyed to
Buyer to the related Mortgage Loans. Xxxxx agrees to cooperate with Seller
to identify documents that may be required to effect such reconveyance and
perfection of title to Seller."
18. Subparagraph 9(b) of the Master Repurchase Agreement is amended by
adding the following after the word "substituted" and before the period in the
fifth line thereof:
"; provided, further, that, in the case of Transactions involving
Securities that are Mortgage Loans, the retention by Seller of custody of
any document in any Mortgage File or otherwise shall be held by Seller in
trust Buyer for purposes of servicing or supervising the servicing of the
related Mortgage Loan and shall not be deemed to constitute Seller's
retention of custody of the Purchased Securities for purposes of this
subparagraph".
19. Paragraph 10 of the Master Repurchase Agreement is amended by adding
the following clauses at the end of the first sentence of Paragraph 10 after the
word "affected" and before the period:
", (vi) Seller and Buyer have entered into the Transaction described
in each Confirmation contemporaneously with the sale of the Purchased
Securities by Seller to Buyer and the transfer of the Purchase Price by
Buyer to Seller, or, in the event that the Transaction is deemed to
constitute a loan, contemporaneously with the
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grant of the security interest in the Collateral by Sel1er to Buyer
pursuant to Paragraph 6 hereof and the transfer of the consideration
therefor, consisting of the extension of the Purchase Price, which
represents the loan proceeds, by Buyer to Seller, (vii) the board of
directors of Seller has approved the form of Confirmation and the Master
Repurchase Agreement, and such approval is reflected in the minutes of said
board, and (viii) each Confirmation, the Master Repurchase Agreement, the
Custody Agreement and the Servicing Agreement have been and shall be,
continuously, from the time of their execution, a corporate record of
Seller."
20. Paragraph 11 is amended by inserting the words ", other than any
representation made by Seller as to a particular Mortgage Loan," after the words
"made by Seller or Buyer" on the fourth line thereof.
21. Paragraph 11 is further amended by deleting the word "or" immediately
preceding clause (vi) and by adding at the end of such clause, immediately
preceding the parenthesis, the following:
(vii)Buyer shall have reasonably determined that Seller is or wil1 be
unable to meet its commitments under this Agreement, the Custody
Agreement, the Guaranty, the Sellers Warranties Agreement, the
Servicing Agreement and any other related agreement (such agreements,
the "Transaction Documents") and shall have notified Seller of such
determination and such other party shall not have responded with
appropriate information to the contrary to the satisfaction of the
notifying party within 24 hours;
(viii) The Master Repurchase Agreement shall for any reason cease to create
a valid, first priority security interest in any of the Purchased
Securities purported to be covered thereby;
(ix) A final judgment by any competent court in the United States of
America for the payment of money in an amount of at least $100,000 is
rendered against Seller, and the same remains undischarged for a
period of 30 days during which execution of such judgment is not
effectively stayed;
(x) Seller shall fail to observe or perform any of the covenants or
agreements under any Transaction Document, which failure materially
and adversely affects the rights of the Buyer;
(xi) Any event of default or any event which with notice, the passage of
time or both shall constitute an event of default shall occur and be
continuing under any repurchase or other financing agreement for
borrowed funds or indenture for borrowed funds by which Seller is
bound or affected shall occur and be continuing;
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(xii)In the good faith judgment of Xxxxx, a material adverse change shall
have occurred in the business, operations, properties, prospects or
condition (financial or otherwise) of Seller;
(xiii) Seller shall request written assurances as to the financial
well-being of Buyer and such assurances shall not have been provided
within 24 hours of such request;
(xiv)Seller shall be in default with respect to any normal and customary
covenants under any debt contract or agreement, any servicing
agreement or any lease to which it is a party, which default could
materially and adversely affect the financial condition of Seller
(which covenants include, but are not limited to, an Act of Insolvency
of Seller or the failure of Seller to make required payments under
such contract or agreement as they become due).
(xv) Any representation or warranty made by Seller in any Transaction
Document shall have been incorrect or untrue in any material respect
(to the extent that such representation or warranty does not
incorporate a materiality limitation in its terms) when made or
repeated or when deemed to have been made or repeated;
(xvi)Seller shall fail to promptly notify Buyer of (i) the acceleration of
any debt obligation or the termination of any credit facility of
Seller, respectively; (ii) the amount and maturity of any such debt
assumed after the date hereof; (iii) any adverse developments with
respect to pending or future litigation involving Seller,
respectively; and (iv) any other developments which might materially
and adversely affect the financial condition of Seller;
(xvii) Seller's audited annual financial statements or the notes thereto or
other opinions or conclusions stated therein shall be qualified or
limited by, reference to Seller's status as a "going concern";
(vxiii) Seller shall fail to maintain a tangible net worth of no less than
$ 55,000,000. The term "tangible net worth" shall mean the excess of
all of the Seller's assets (excluding any value for goodwill,
trademarks, patents, copyrights, organization expense and other
similar intangible items) over all its liabilities as completed and
determined in accordance with generally accepted accounting principles
consistently applied.
(xx) Seller shall fail to deliver to Buyer or Custodian as directed by
Xxxxx the
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documents in the Mortgage File within the time period specified in 1
Paragraph 7 of the Master Repurchase Agreement.
22. Subparagraph 11(d} of the Master Repurchase Agreement is amended by
deleting the words that precede Subparagraph 11 (d)(i) and replacing them with
the words "The non-defaulting party may with concurrent notice to the defaulting
party:".
23. Subparagraph 11(d)(i) of the Master Repurchase Agreement is amended by
inserting the words "or in any other commercially reasonable manner" after the
word "market" and before the word" at", on the second line thereof.
24. Subparagraph 11(d)(i) of the Master Repurchase Agreement is amended by
adding the following after the word "hereunder" and before the semi-colon:
"and in either case upon the determination and receipt by Xxxxx, in a
manner deemed final and complete by Buyer in its sole discretion, of the
aggregate unpaid Repurchase Prices and any other amounts owing by the
defaulting party, including, without limitation, any unpaid fees, expenses
or other amounts owing to the Custodian under the Custody Agreement, or to
which Buyer is otherwise entitled hereunder, Buyer shall transfer the
portion of the Purchased Securities and proceeds thereof, including without
limitation, any proceeds of a sale of the servicing rights to the Mortgage
Loans, held by Buyer following such receipt to either (i) Seller, if in
Buyer's sole discretion Seller is legally entitled thereto, (ii) such other
party or person as is in Buyer's reasonable judgment is legally entitled
thereto, or (iii) if Buyer cannot determine in its reasonable judgment the
person or party entitled thereto, a court of competent jurisdiction."
25. Paragraph 11 of the Master Repurchase Agreement is amended by adding a
new Subparagraph (j) as follows:
"(j) Seller acknowledges that any delay in the ability of Buyer to
exercise its remedies pursuant to Paragraph 11 hereof shall result in
irreparable injury to Buyer."
26. Paragraph 13 of the Master Repurchase Agreement is amended by deleting
the text thereof and replacing it with the following:
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"Any notice or communication in respect of this Agreement will be
sufficiently given to a party if in writing and delivered in person, sent by
certified or registered mail, return receipt requested, or by overnight courier
or given by facsimile transfer at the following address or facsimile number:
If to [BUYER]:
Impac Warehouse Lending Group
0000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
If to [SELLER]:
HOMEGOLD, INC.
000 XXXX XXXXXX XXXXXXXXX, XX 00000
Attention: XXXXXXX X. XXXXXXX
Xxxxxxxxx Number:
A notice or communication will be effective:
(i) if delivered by hand or sent by overnight courier, on the day and
time it is delivered;
(ii) If sent by facsimile transfer, on the day it is sent; or
(iii)if sent by certified or registered mail, return receipt
requested, three days after dispatch. Either party may by notice
to the other change the address or facsimile number at which
notices or communications are to be given to it."
27. Paragraph 14 of the Master Repurchase Agreement is amended by inserting
the words "with respect to Securities that consist of mortgage loans" after the
word "transactions" and before the period on the second line thereof.
28. Paragraph 15 of the Master Repurchase Agreement is amended by adding
the following at the end of the last sentence of Paragraph 15: "Upon
cancellation of this Agreement pursuant to this Paragraph 15, provided that
Seller has not committed any Event of Default as set forth in Paragraph 11 of
this Agreement, Seller may earn a Performance Fee (the "Performance Fee") which
shall be reduced by any and all amounts necessary to compensate Buyer for any
Margin Deficit as set forth in Paragraph 4 of this Agreement, as well as for any
other losses, costs or expenses incurred by Buyer in connection with any Events
of Default by Seller as set forth in Paragraph 11 of this Agreement, or any
other losses, costs or expenses incurred by Buyer in connection with Paragraph
36 or 37 of this Agreement (the "Net Performance Fee"). The Net Performance Fee,
if any, may thereafter be rebated to Seller as soon as practical after Xxxxx has
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been completely compensated pursuant to this Paragraph 15."
29. Intentionally Omitted
30. Subparagraph 20(c) is amended by deleting the words "the Federal
Savings and Loan Insurance Corporation" in the third line thereof and
substituting therefor the following:
"through either the Bank Insurance Fund or the Savings Association
Insurance Fund,".
31. This Annex I is executed and shall be construed as an agreement
supplemental to the Master Repurchase Agreement and, as provided in the Master
Repurchase Agreement, this Annex I forms a part thereof.
32. All of the covenants, stipulations, promises and agreements in this
Annex I shall bind the successors and assigns of the parties hereto, whether
expressed or not.
33. This Annex I may be executed in any number of counterparts, each of
which shall be an original but such counterparts shall together constitute but
one and the same instrument.
34. Seller shall promptly provide such further assurances or agreements as
Buyer may request in order to effect the purposes of this Master Repurchase
Agreement, inducting without limitation, the delivery of any further documents
to ensure that Buyer maintains a first priority perfected security interest in
the Collateral pursuant to Paragraph 6 hereof and to carry into effect the
purpose, of the Transaction Documents.
35. Xxxxx is hereby appointed the attorney-in-fact of Seller for the
purpose of carrying out the provisions of this Agreement and taking any action
and executing or endorsing any instruments that Buyer may deem necessary or
advisable to accomplish the purposes hereof, including, without limitation,
completing or correcting any endorsement of a Mortgage Note or assignment of a
Mortgage, which appointment as attorney-in-fact is irrevocable and coupled with
an interest. Without limiting the generality of the foregoing, Buyer shall have
the right and power during the occurrence and continuation of any Event of
Default to receive, endorse and collect all checks made payable to the order of
Seller representing any payment on account of the principal of or interest on
any of the Collateral and to give full discharge for the same.
36. Seller shall promptly pay as and when payment is due all, and Buyer
shall not be liable for any, expenses, fees and charges incurred by Buyer or
Seller (other than the salaries and overhead of Buyer and its affiliates)
arising out of or related in any way to the administration and enforcement of
this Agreement or the Custody Agreement ("Costs"), including, without
limitation, legal expenses, the fees and expenses of the Custodian, recording
and filing fees and any costs associated with reconveyance of the Purchased
Securities and, in the event that any Costs are incurred by Xxxxx, Seller shall
reimburse Buyer on demand of Buyer accompanied by a statement describing the
circumstances and the nature of the Cost, by wire transfer of immediately
available federal funds.
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37. Seller and Xxxxx contemplate that all Mortgage Loans purchased by Xxxxx
and subject to repurchase pursuant to this Master Repurchase Agreement shall
have an average daily balance (in principal amount) of $ 5,000,000 (the "Minimum
Usage Amount"). If, within forty-five (45) days of the date hereof, Seller shall
not have sold any Mortgage Loans to Buyer pursuant to this Master Repurchase
Agreement, Seller shall promptly pay Buyer $1,500. If at any time after
forty-five (45) days after the Seller shall have commenced selling Mortgage
Loans to Buyer, pursuant to this Master Repurchase Agreement but the average
daily balance (in principal amount) of all Mortgage Loans held by Buyer is less
than the Minimum Usage Amount, Seller shall pay Buyer a fee to be determined by
Buyer in its sole discretion, provided, however such fee shall not exceed $1,500
during any thirty (30) day period.
38. This Annex I shall supersede any existing annex to or modification of
the Master Repurchase Agreement.
[BUYER]
IMPAC WAREHOUSE LENDING GROUP
BY: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: EVP, CFO
Date: 3-11-02
[SELLER]
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Date: 7/30/01
-15-
CERTIFICATE OF SELLER
I, Xxxxxxx Xxxxxxx, hereby certify that I am the duly appointed President
of HomeGold, a SC Corp. (the "Seller"). The undersigned hereby represents,
warrants and covenants on behalf of the Seller as follows:
1. Pursuant to the sale of the mortgage loans set forth on Annex 1 hereto
(the "Mortgage Loans ") by the Seller to Impac Warehouse Lending Group ("Impac
") pursuant to a Master Repurchase Agreement, dated as of JULY 6, 2001 between
the Company and Impac, the Company hereby sells, transfers, assigns, sets over
and otherwise conveys to Impac all of its right (including the power to convey
title thereto), title and interest in and to each document, including, without
limitation, those documents set forth on Exhibit A hereto, held by or on behalf
of the Company with respect to each Mortgage Loan.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: 7/30/01
--------------
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
