EXHIBIT 10.19
ANNEX I
SUPPLEMENTAL TERMS AND CONDITIONS
The MASTER REPURCHASE AGREEMENT between Bear Xxxxxxx Mortgage Capital
Corporation ("Buyer") and First Bank of Xxxxxxx Hills ("Seller") is amended and
supplemented as set forth below. All capitalized terms used herein which 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 inserting
in the second line after the word "securities" and before "or financial" the
following:
", loans secured by mortgages or deeds of trust on residential dwellings
together with all the rights, privileges and benefits under all sales agreements
pursuant to which Seller acquired the Loans and all servicing agreements
pursuant to which the loans are serviced (such loans together with such rights,
privileges and benefits, "Mortgage Loans" and such dwellings "Residential
Dwellings")",
2. Subparagraph 2(h) of the Master Repurchase Agreement is amended by
adding at the end thereof:
except that the Market Value of any Securities which are Mortgage
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Loans as of any date shall be the fair market value of such Mortgage
Loans on that date as determined by Bear, Xxxxxxx & Co. Inc., or an
affiliate of Bear, Xxxxxxx & Co. Inc., in its reasonable discretion,
and shall not include any Income on such Mortgage Loans paid to and
held by Seller pursuant to Paragraph 5 hereof;
3. Subparagraph 3(b) of the Master Repurchase Agreement is amended by
adding at the end of the first sentence of subparagraph 3(b):
In the case of Transactions involving Securities which are
Mortgage Loans, the Purchased Securities shall be identified on a
detailed listing to be provided by Seller to Buyer (a "Mortgage Loan
Schedule") and may be identified in the related Confirmation by
reference to the Mortgage Loan Schedule.
4. Subparagraph 3(c) of the Master Repurchase Agreement is amended by
adding at the end of the first sentence of subparagraph 3(c):
In the case of Transactions involving Securities which are
Mortgage Loans, such demand shall be made no later than the business
day prior to the business day on which such termination will be
effective.
5. 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 which are
Mortgage Loans, (i) the right of Buyer under subparagraph (a) of this
Paragraph to require the elimination of a Margin Deficit may be
exercised whenever such a Margin Deficit exists with respect to any
single such Transaction; (ii) the calculations required by
subparagraph (a) of this Paragraph to determine the existence of a
Margin Deficit shall be performed separately for each Transaction
involving Securities which are Mortgage Loans, without regard to any
other Transaction outstanding under this Agreement, and no Securities
or cash under any Transaction involving Purchased Securities which are
Mortgage Loans shall be included in the calculations required under
subparagraphs (a) and (b) of this Paragraph to determine the existence
of a Margin Deficit or Margin Excess with respect to any other
Transaction outstanding under this Agreement, (iii) the percentage
used in calculating the Buyer's Margin Amount for such Transaction
shall be as set forth in the Confirmation with respect to such
Transaction, (iv) in the event of a Margin Deficit, Seller must
transfer cash to Buyer and not any Purchased Securities, and (v) the
provisions of subparagraph (b) of this Paragraph shall apply only as
described in a Confirmation of a Transaction.
6. Paragraph 7 of the Master Repurchase Agreement is
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amended by adding the following at the end of the last sentence of Paragraph 7:
In the case of Transactions involving Securities which are
Mortgage Loans, transfer of such Mortgage Loans for the purposes of
this Paragraph 7 shall be accomplished as set forth in the agreement
(the "Custodial Agreement"), dated as of May 22, 1996, among the
Seller, the Buyer, Wilshire Credit Corporation and State Street Bank
and Trust Company of California, N.A. as Custodian (the "Custodian").
7. Paragraph 8 of the Master Repurchase Agreement is amended by deleting
the last sentence of Paragraph 8 and substituting the following:
Title to all Purchased Securities (except for Securities which
are Mortgage Loans) shall pass to Buyer. In the case of Purchased
Securities which 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 subparagraph
3(c) or Paragraph 11 of this Agreement, beneficial ownership of each
Mortgage Loan, including (i) each mortgage, deed of trust or other
instrument (the "Mortgage") creating a first lien on the underlying
property securing the Mortgage Loan (the "Mortgaged Property") and
(ii) each note or other evidence of indebtedness (the "Mortgage Note")
evidencing the indebtedness of an obligor thereon (each such obligor,
a "Mortgagor") under a Mortgage Loan shall be vested in the Buyer.
Upon transfer of the Mortgage Loans to Buyer as set forth in
subparagraph 3(a) of this Agreement and until termination of any
Transactions as set forth in subparagraph 3(c) or Paragraph 11 of this
Agreement, each Mortgage Note shall be endorsed in blank and an
assignment of each Mortgage in blank shall be retained by the
Custodian in trust, for the benefit of the Buyer. Unless otherwise
agreed by the Buyer 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 (i) relieve Buyer
of its obligations to transfer Purchased Securities to Seller pursuant
to Paragraphs 3, 4 or 11 hereof, or of Buyer's obligation to credit or
pay principal prepayments or Income it has received to, or
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apply principal prepayments or Income it has received to the
obligations of, Seller pursuant to Paragraph 5 hereof or (ii) affect
Seller's obligation to repurchase the Purchased Securities. In the
case of Transactions involving Securities which are Mortgage Loans,
the transfer and delivery of each specific Mortgage Loan identified on
the related Mortgage Loan Schedule to the Seller or its agent provided
for in subparagraph 3(c) and Paragraph 11 of this Agreement is
mandatory, it being specifically understood that each Mortgage Loan
identified thereon is unique and identifiable on the date hereof and
that an award of money damages would be insufficient to compensate the
Seller for the losses and damages incurred by Seller in the event of
Xxxxx's failure to transfer and deliver the Mortgage Loans as provided
in subparagraph 3(c) or Paragraph 11.
8. Paragraph 10 of the Master Repurchase Agreement is amended by the
addition of "(a)" at the beginning thereof and the following at the end of
sub-paragraph 10(a): :
Seller represents and warrants to Buyer that the transaction to which this
Master Repurchase Agreement relates was approved by the board of directors
of the Seller or its loan committee, which approval shall be reflected in
the minutes of said board or committee, and will be from the time of its
execution, retained as an official record of the Seller.
Paragraph 10 is further amended by the addition of the following after sub-
paragraph 10(a):
(b) In addition to the foregoing, in the case of Transactions
involving Securities which are Mortgage Loans, the Seller represents and
warrants to the Buyer that, as to each Mortgage Loan and the related
Mortgage:
(A) the information set forth on the related Mortgage Loan Schedule is
complete, true and correct;
(B) The Seller is sole owner of beneficial title and holder of the
Mortgage free and clear of any and all liens, claims, encumbrances,
participation interests, equities, pledges, charges or security interests
of any nature and has full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the same pursuant to this Agreement;
(C) the Mortgage is a valid and subsisting first lien
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on the Mortgaged Property therein described, and the Mortgaged Property is
free and clear of all encumbrances and liens having priority over the first
lien of the Mortgage except for liens for real estate taxes and special
assessments not yet due and payable. Any security agreement, chattel
mortgage or equivalent document related to the Mortgage establishes in the
Seller a valid and subsisting first lien on the property described therein
and Seller has full right to sell and assign the same pursuant to this
Agreement;
(D) The Seller has not impaired, altered or modified the Mortgage in
any respect, except by a written instrument which has been recorded (if
necessary to protect the interests of the Buyer) and delivered to the
Custodian. The substance of any such alteration or modification has been
reflected on the Mortgage Loan Schedule and has been approved by the
primary mortgage guaranty insurer, if any, and title insurer;
(E) Seller has not executed any instrument of release or waiver in
connection with the Mortgage Loan, and Seller has not released any
Mortgagor in whole or in part;
On the Purchase Date for any Transaction, Seller shall be deemed to repeat
all of the foregoing representations and warranties made by it in this
subparagraph 10(b).
9. Paragraph 11 of the Master Repurchase Agreement is amended by deleting
the "or" which appears before "(vi)" in the fifth line of the first sentence,
and inserting the following after the word "hereunder" in-the sixth line of the
first sentence:
(vii) Seller shall admit its intention not to perform or Seller
fails to perform in any material respect any of its obligations
relating to the Purchased Securities set forth herein, or in a
Confirmation, or (viii) any event or circumstance shall occur
which in the reasonable judgment of either party materially
impairs the creditworthiness of the other party.
10. Paragraph 15 of the Master Repurchase Agreement is amended by adding
to the end of the first sentence the phrase,
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"and any purported assignment in violation of this provision shall be void." and
by adding after the end of such sentence as modified the following:
Notwithstanding the foregoing, without the consent of Seller,
Buyer may assign this Agreement and all Transactions it has
entered into with Seller to any of its affiliates, which
assignment shall be evidenced by a confirmation of such
assignment being sent to Seller. Further, notwithstanding the
foregoing, without the consent of Buyer, in the event Seller
merges with Xxxxxx Savings Bank ("Xxxxxx"), Seller may assign
this Agreement and all transactions it has entered into with
Seller to Xxxxxx, which assignment shall be evidenced by a
confirmation of such assignment being sent to Buyer.
11. 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.
12. All of the covenants, stipulations, promises and agreements in this
Annex I shall bind and be for the benefit of the successors and assigns of the
parties hereto, whether expressed or not.
13. The Master Repurchase Agreement is further amended by adding the
following:
21. Counterparts. This Agreement may be executed in one or more
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counterparts and by the different parties hereto on separate
counterparts; such counterparts, together, shall constitute one and
the same Agreement.
14. 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
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instrument.
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15. This Annex I shall supersede any existing annex to or modification of
the Master Repurchase Agreement.
BEAR XXXXXXX MORTGAGE FIRST BANK OF XXXXXXX HILLS
CAPITAL CORPORATION
By: /s/ By: /s/
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Name: Xxxxxxx X. Xxxxxx Name: XXXXX X. XXXXXXXXXX
Title: President ---------------------------
Date: May 22 , 1996 Title: President & CEO
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Date: May 22, 1996
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ANNEX II
Names and Addresses for Communications Between Parties
If to the Seller:
First Bank of Xxxxxxx Hills
00000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Copy to: Xxxxx X. Xxxxxxxxxx, Esq.
Proskauer Xxxx Xxxxx & Xxxxxxxxxx, LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
If to the Buyer:
Bear Xxxxxxx Mortgage Capital
Corporation
c/o Bear Xxxxxxx & Co. Inc
Government Operations
0 Xxxxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Managing Director
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