EXHIBIT 10.1
MASTER PARTICIPATION AND SERVICING AGREEMENT
As amended and restated as of October 20, 2004
PFGI Capital Corporation
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Ladies and Gentlemen:
This Master Participation and Servicing Agreement (this "Agreement")
contains the terms and conditions pursuant to which we will transfer to you
interests in loans and other assets as contributions to your capital or as a
result of purchases thereof. For purposes of this Agreement, (a) "Assets" shall
consist of (i) commercial and other mortgage loans (each, a "Mortgage Loan")
secured by real property, and other loans secured by property other than real
property or unsecured (each, a "Non-qualified Loan"), each evidenced by
promissory notes payable to our order or endorsed over to us (each a "Note")
and, where applicable, the related "Mortgage" and (ii) participations in
commercial and other Mortgage Loans, and in Non-qualified Loans, evidenced by
promissory notes payable to other lenders (each a "Lender") purchased by us
pursuant to participation agreements (each a "Participation Agreement") and (b)
Participations (as defined below) shall consist of a ninety-five percent (95%)
undivided interest (each a "Pro Rata Share") in each of the Assets.
1. Contributions. We are simultaneously herewith contributing the
undivided interests in the Assets listed on the attached Schedule III to you as
a contribution to your capital in exchange for all of your common stock
("Initial Contributed Participations"). The information set forth on Schedule
III is complete, true and correct in all material respects as of the date
indicated thereon. In addition, we may, from time to time hereafter, contribute
undivided interests in additional Assets (each an "Additional Participation"
and, together with the Initial Contributed Participations, a "Participation") to
you as capital. All Participations contributed to you as capital, including, but
not limited to, the Initial Contributed Participations, shall be treated as
Participations for all purposes under this Agreement.
2. Offer Procedure. From time to time, we may, but shall not be obligated
to, offer to sell you, without recourse, Participations. We agree that you shall
be considered for all purposes as the legal and equitable owner of each
Participation (together with the Asset to which it relates) and that this
Agreement shall not be construed as an extension of credit by us to you.
3. Acceptance Procedure. By executing this Agreement, you hereby accept
our contribution to you of the Initial Contributed Participations. To accept any
future offer by us to sell you a Participation in a specified Asset you shall
either (a) make payment to us of the purchase price for that Participation (the
"Purchase Price") on its Value Date, in United States dollars and in same day
funds, or (b) instruct us, in writing or by telephone (and promptly confirmed in
writing), to debit your Demand Deposit Account at The Provident Bank, in the
amount of the Purchase Price for that Participation on its Value Date. The
"Value Date" for each Participation offered and sold hereunder shall be the date
on which the Purchase Price for that Participation is due and payable. We
represent and warrant to you that each Participation contributed or sold by us
to you hereunder shall be contributed or sold by us to you at its fair market
value on and as of its related Value Date.
4. Participation Certificates. Upon your acceptance of any contribution of
a Participation in specified Assets under this Agreement or any offer by us to
sell you a Participation in specified Assets under this Agreement, we will
promptly send you a participation certificate in substantially the form of
Schedule I attached hereto (a "Participation Certificate"), confirming and
evidencing the Participation contributed or sold and transferred to you under
this Agreement. Terms defined in the Participation Certificate for each
Participation shall have the same meaning when used in this Agreement in
connection with that Participation.
5. Application of Payments. We will pay over to you, in United States
dollars and in the kind of funds received or applied by us, on the 15th day of
each calendar month, or the first Business Day (as hereinafter defined)
immediately thereafter if the 15th day is not a Business Day, your Pro Rata
Share of every payment of principal, interest or other amount, including any
liquidation or insurance proceeds, or every application of funds, in connection
with any Asset (including, without limitation, any payment or application from
any property or deposit held or taken by us in connection with any Asset,
whether as collateral or otherwise) received by us during the preceding calendar
month.
"Business Day" as used herein shall mean any day other than a Saturday, a
Sunday, or a day on which commercial banks are authorized or obligated by law,
regulation or executive order to close in Ohio or Nevada.
6. Adjustment of Payments. If, for any reason, we make any payment to you
before we have received or applied the corresponding payment on an Asset (it
being understood that we are under no obligation to do so), and we do not
receive or apply the corresponding payment within five business days of our
payment to you, you will, at our request, promptly return that payment to us
(together with interest on that payment at the overnight rate for Federal funds
transactions between member banks of the Federal Reserve System, as published by
the Federal Reserve Bank of New York, for each day from the making of that
payment to you until its return to us). If, after we have paid you your Pro Rata
Share of any payment received or applied by us in respect of any Asset, that
payment or application is rescinded or must otherwise be returned or paid over
by us, whether pursuant to any bankruptcy or insolvency law, the sharing of
payments clause of any loan agreement or otherwise, you will, at our request,
promptly return your Pro Rata Share of that payment or application to us,
together with your Pro Rata Share of any interest or other amount required to be
paid by us with respect to that payment or application.
7. Representations, Warranties and Covenants. We represent and warrant to
you that, as of the date of any contribution or sale of a Participation to you
and with respect to each Participation and Asset;
(a) DUE ORGANIZATION AND AUTHORITY; ENFORCEABILITY. We are an Ohio
banking corporation duly organized, validly existing and in good standing under
the laws of the State of Ohio and have all licenses necessary to carry on our
business as now being conducted and are licensed, qualified and in good standing
in each state wherein we own or lease any material properties or where a
property securing an Asset ("Mortgaged Property"), or other collateral securing
an Asset, is located, if the laws of such state require licensing or
qualification in order for us to conduct business of the type conducted by us,
and in any event we are in compliance with the laws of any such state to the
extent necessary to ensure the enforceability of the related Asset in accordance
with the terms of this Agreement; we have the full corporate power, authority
and legal right to hold, transfer and convey the Participations and to execute
and
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deliver this Agreement and to perform our obligations hereunder; the
execution, delivery and performance of this Agreement (including all
Participation Certificates to be delivered pursuant to this Agreement) by us and
the consummation of the transactions contemplated hereby have been duly and
validly authorized; this Agreement and all agreements contemplated hereby have
been duly executed and delivered and constitute our valid, legal, binding and
enforceable obligations subject to insolvency laws and other similar laws of
general application affecting rights of creditors and subject to the application
of the rules of equity, including those respecting the availability of specific
performance, none of which will materially interfere with the realization of the
benefits provided thereunder, regardless of whether such enforcement is sought
in a proceeding in equity or at law; and all requisite corporate action has been
taken by us to make this Agreement and all agreements contemplated hereby valid
and binding upon us in accordance with their terms.
(b) ORDINARY COURSE OF BUSINESS. The consummation of the
transactions contemplated by this Agreement are in our ordinary course of
business, and the transfer, assignment and conveyance of the Participations
pursuant to this Agreement are not subject to the bulk transfer or any similar
statutory provisions in effect in any applicable jurisdiction.
(c) NO CONFLICTS. Neither the execution and delivery of this
Agreement, the contribution or sale of the Participations to you, the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement, will conflict with
or result in a breach of any of the terms, conditions or provisions of our
articles of incorporation or code of regulations or any legal restriction or any
agreement or instrument to which we are now a party or by which we are bound, or
constitute a default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which we or our property is subject, or result in the creation or imposition
of any lien, charge or encumbrance that would have an adverse effect upon any of
our properties pursuant to the terms of any mortgage, contract, deed of trust or
other instrument or impair your ability to realize on the Participations, impair
the value of the Participations or impair our ability to perform our obligations
hereunder.
(d) ABILITY TO PERFORM; SOLVENCY. We do not believe, nor do we have
any reason or cause to believe, that we cannot perform each and every covenant
contained in this Agreement. We are solvent and the sale of the Participations
will not cause us to become insolvent. None of the contributions or sales of the
Participations is being undertaken with the intent to hinder, delay or defraud
any of our creditors.
(e) NO LITIGATION PENDING. There is no action, suit, proceeding or
investigation pending or threatened against us before any court, administrative
agency or other tribunal asserting the invalidity of this Agreement, seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or which, either in any one instance or in the aggregate, could result
in any material adverse change in our business, operations, financial condition,
properties or assets, or in any material impairment of the right or ability to
carry on our business substantially as now conducted, or which would draw into
question the validity of this Agreement or any Participations or of any action
taken or to be taken in connection with our obligations contemplated herein, or
which would be likely to impair materially our ability to perform under the
terms of this Agreement.
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(f) NO CONSENT REQUIRED. No consent, approval, authorization or
order of, or registration or filing with, or notice to any court or governmental
agency or body is required for the execution, delivery and performance by us of
or compliance by us with this Agreement or the consummation of the transactions
contemplated by this Agreement, or if required, such approval has been obtained
prior to each date on which a Participation shall be contributed or sold to you
under this Agreement.
(g) SELECTION PROCESS. The Participations were selected from among
the outstanding Mortgage Loans and Non-qualified Loans in our portfolio as of
the date of any contribution or sale of a Participation as to which the
representations and warranties set forth herein could be made and such selection
was not made in a manner so as to affect adversely your interests.
(h) INITIAL PORTFOLIO. The aggregate characteristics of the
Participations initially contributed or sold to you are as set forth under the
heading "BUSINESS - General Description of Mortgage Assets and Other Authorized
Investments; Investment Policy" in the Prospectus dated June 6, 2002 relating to
the PRIDES to which this Agreement relates.
(i) NO UNTRUE INFORMATION. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or in connection with
the transactions contemplated hereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein not misleading.
(j) NO BROKERS. We have not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Participations.
(k) PAYMENTS CURRENT; STATUS. All payments required to be made under
the terms of the Notes have been made and credited. No payment required under a
Note is delinquent by 30 days or more.
(l) ORIGINAL TERMS UNMODIFIED. The terms of each Note and Mortgage
have not been impaired, waived, altered or modified in any respect, from the
date of its origination except as contained in the loan file related to such
Note ("Loan File"). Such waiver, alteration or modification has not and will not
affect the priority of the related Mortgage. No mortgagor has been released, in
whole or in part, except in connection with an assumption agreement, which
assumption agreement is part of the Loan File.
(m) NO DEFENSES. The Asset is not subject to any right of set-off,
counterclaim or defense, including without limitation the defense of usury, nor
will the operation of any of the terms of the Note or the Mortgage, or the
exercise of any right thereunder, render either the Note or the Mortgage
unenforceable, in whole or in part and no such right of set-off, counterclaim or
defense has been asserted with respect thereto, and no Mortgagor or debtor is
now or was, at the time of origination of the related Mortgage Loan or
Non-qualified Loan, a debtor in any state or Federal bankruptcy or insolvency
proceeding.
(n) COMPLIANCE WITH APPLICABLE LAWS. Any and all requirements of any
federal, state or local law including, without limitation, usury, fair housing,
equal credit opportunity and disclosure laws, if any, applicable to the Asset
have been complied with in all
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material respects, the consummation of the transactions contemplated hereby will
not involve the violation of any such laws or regulations, and we shall maintain
in our possession, available for your inspection, and shall deliver to you upon
demand, evidence of compliance with all such requirements.
(o) NO SATISFACTION OF MORTGAGE. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. We have not waived the
performance by the mortgagor of any action, if the mortgagor's failure to
perform such action would cause the Asset to be in default, nor have we waived
any default resulting from any action or inaction by the mortgagor.
(p) VALID LIEN. The Mortgage is a valid, subsisting, enforceable and
perfected lien on the Mortgaged Property, including all buildings, improvements
and fixtures on the Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems located in or annexed
to such buildings, and all additions, alterations and replacements made at any
time with respect to the foregoing as set forth in each Mortgage. The lien of
the Mortgage is subject only to:
(1) the lien of current real property taxes and assessments not
yet due and payable;
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the
date of recording acceptable to prudent mortgage lending
institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of
the Asset and (a) specifically referred to or otherwise
considered in the appraisal made for the originator of the
Asset or (b) which do not adversely affect the Appraised Value
of the Mortgaged Property set forth in such appraisal; and
(3) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged
Property.
Any security agreement, chattel mortgage or equivalent document related to
and delivered in connection with the Asset establishes and creates a valid,
subsisting, enforceable and perfected lien and security interest on the property
described therein. The Mortgaged Property was not, as of the date of origination
of the Asset, subject to a mortgage, deed of trust, deed to secure debt or other
security instrument creating a lien subordinate to the lien of the Mortgage
(except any such subordinate loan which was created in connection with the
origination of the related Asset details of which are contained in the related
Loan File).
(q) VALIDITY OF MORTGAGE DOCUMENTS. The Note and the Mortgage and
any other agreement executed and delivered by a mortgagor in connection with an
Asset are genuine, and each is the legal, valid and binding obligation of the
maker thereof enforceable in accordance with its terms. To the best of our
knowledge, all parties to the Note, the Mortgage and any other such related
agreement had legal capacity to enter into the Mortgage Loan and to execute and
deliver the Note,
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the Mortgage and any such agreement, and the Note, the Mortgage and any other
such related agreement have been duly and properly executed by such parties. To
the best of our knowledge, no fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to an Asset has taken place on the
part of any person, including without limitation, the Mortgagor, any appraiser,
any builder or developer, or any other party involved in the origination of the
Asset.
(r) FULL DISBURSEMENT OF PROCEEDS. The Asset has been closed and the
proceeds of the Note have been fully disbursed and there is no requirement for
future advances thereunder, and any and all requirements as to completion of any
on-site or off-site improvement and as to disbursements of any escrow funds
therefore have been complied with. All costs, fees and expenses incurred in
making or closing the Asset and the recording of the Mortgage were paid, and the
Mortgagor is not entitled to any refund of any amounts paid or due under the
Note or Mortgage.
(s) OWNERSHIP. We are the sole owner of record and holder of the
Asset and the indebtedness evidenced by each Note. The Asset is not assigned or
pledged, and we have good and indefeasible title thereto, and have full right to
transfer and sell the Participation to you free and clear of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and have full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Participation pursuant to this Agreement and following the sale of each
Participation, you will own such Participation free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest except as created by you. After the date hereof, we will have
no right to modify or alter the terms of the sale of any Participation and we
will have no obligation or right to repurchase such Participation or substitute
another Participation therefore, except as provided in this Agreement.
(t) TITLE INSURANCE. The Mortgage is covered by an ALTA lender's
title insurance policy and each such title insurance policy is issued by a title
insurer acceptable to us and qualified to do business in the jurisdiction where
the Mortgaged Property is located, insuring us and our successors and assigns,
as to the first priority lien of the Mortgage in the original principal amount
of the Note, subject only to the exceptions contained in clauses (1), (2) and
(3) of paragraph (p) of this Section, and against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions of the
Mortgage providing for adjustment to the interest rate and monthly payment.
Where required by state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. We and our successor and assigns, are the sole insureds of
such lender's title insurance policy, and such lender's title insurance policy
is valid and remains in full force and effect and will be in force and effect
upon the consummation of the transactions contemplated by this Agreement. No
claims have been made under such lender's title insurance policy and, neither us
nor, to the best of our knowledge, any other prior holder of the related
Mortgage, has done, by act or omission, anything which would impair the coverage
of such lender's title insurance policy, including without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller.
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(u) NO DEFAULTS. There is no default, breach, violation or event
which would permit acceleration existing under the Mortgage or the Note and no
event which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event
which would permit acceleration, and we have not waived any default, breach,
violation or event which would permit acceleration.
(v) NO MECHANICS' LIENS. To the best of our knowledge, there is no
mechanics' or similar liens or claims filed for work, labor or material (and no
rights are outstanding that under law could give rise to such liens) affecting
the Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage.
(w) LOCATION OF IMPROVEMENTS; NO ENCROACHMENTS. With respect to each
Asset, to the best of our knowledge, all improvements which were considered in
determining the appraised value of the Mortgaged Property lay wholly within the
boundaries and building restriction lines of the Mortgaged Property, and no
improvements on adjoining properties encroach upon the Mortgaged Property. To
the best of our knowledge, no improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or regulation.
(x) ORIGINATION: PAYMENT TERMS. To the best of our knowledge, the
documents, instruments and agreements submitted for loan underwriting were not
falsified and contain no untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the information
and statements therein not misleading. Principal payments on the Note commenced
no more than sixty (60) days after funds were disbursed in connection with the
Note. The Note is payable each month in equal monthly installments of principal
and interest, which installments of interest are subject to change if the Note
provides for adjustments to the interest rate.
(y) CUSTOMARY PROVISIONS. The Mortgage contains customary 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 provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. For Assets secured by Mortgaged Property located in
California, there is no homestead or other exemption available to a Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law.
(z) CONFORMANCE WITH UNDERWRITING STANDARDS. The Mortgage Loan or
Non-qualified Loan, where applicable, was underwritten and documented in
accordance with our underwriting standards in effect at the time the Asset was
originated, certain aspects of which are described on Schedule II attached
hereto. The Note and Mortgage are on our customary forms, and we have not made
any representations to a mortgagor that are inconsistent with the Mortgage and
the Note.
(aa) OCCUPANCY OF THE MORTGAGED PROPERTY. To the best of our
knowledge, all inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of
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the same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities.
(bb) DEEDS OF TRUST. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Mortgagor.
(cc) VALUE AND MARKETABILITY. We have no actual knowledge of any
circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, the debtor or the debtor's credit standing that can reasonably be
expected to cause the Asset to become delinquent, or adversely affect the value
or marketability of the Asset.
(dd) ASSUMABILITY. Each Mortgage contains a "due-on-sale" provision
which prevents the assumption of the Mortgage Loan by a proposed transferee and
accelerates the payment of the outstanding principal balance of such Mortgage
Loan.
(ee) MORTGAGED PROPERTY UNDAMAGED; NO CONDEMNATION PROCEEDINGS. To
the best of our knowledge, there is no proceeding pending or threatened for the
total or partial condemnation of the Mortgaged Property. To the best of our
knowledge, the Mortgaged Property is undamaged by waste, fire, earthquake or
earth movement, windstorm, flood, tornado or other casualty so as to affect
adversely the value of the Mortgaged Property as security for the Asset or the
use for which the premises were intended and each Mortgaged Property is in good
repair.
(ff) COLLECTION PRACTICES; ESCROW DEPOSITS. The origination and
collection practices used by us with respect to the Asset have been in all
material respects in compliance with accepted servicing practices, applicable
laws and regulations, and have been in all material respects legal and proper.
(gg) NO VIOLATION OF ENVIRONMENTAL LAWS. To the best of our
knowledge, there is no pending action or proceeding directly involving the
Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue, there is no violation of any environmental law, rule or
regulation with respect to the Mortgaged Property, and nothing further remains
to be done to satisfy in full all requirements of each such law, rule or
regulation constituting a prerequisite to use and enjoyment of said property.
(hh) SOLDIERS' AND SAILORS' CIVIL RELIEF ACT. No Mortgagor has
notified us and we have no knowledge of any relief requested or allowed to the
Mortgagor under the Soldiers' and Sailors' Civil Relief Act of 1940.
(ii) APPRAISAL. The Loan File contains an appraisal of the related
Mortgaged Property signed prior to the approval of the Asset by a qualified
appraiser who had no interest, direct or indirect in the Mortgaged Property or
in any loan made on the security thereof, and whose compensation is not affected
by the approval or disapproval of the Mortgage Loan.
(jj) REAL ESTATE ASSET. Each Participation in a Mortgage Loan shall
constitute a "real estate asset" within the meaning of Section 856 of the
Internal Revenue Code of 1986, as amended.
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(kk) PRIOR SERVICING. Each Asset has been serviced in all material
respects in compliance with accepted servicing practices; provided that, in the
event of any breach of the representation and warranty set forth in this
Subsection (kk), we shall not be required to repurchase any such Asset unless
such breach had, and continues to have, a material and adverse effect on the
value of the related Asset or the Participation.
(ll) QUALIFYING INTEREST. Each Participation in a Mortgage Loan
shall constitute a "mortgage or other lien on or an interest in real estate"
within the meaning of Section 3(c)(5)(C) of the Investment Company Act of 1940,
as amended. (mm) FLOOD INSURANCE. If required by the Flood Disaster Protection
Act of 1973, as amended, the Mortgaged Property is covered by a flood insurance
policy meeting the requirements of the current guidelines of the Federal
Insurance Administration.
It is understood and agreed that the representations and warranties set
forth herein shall survive each contribution or sale of the Participations to
you and shall inure to your benefit. Upon discovery by either us or you of a
breach of any of the foregoing representations and warranties which materially
and adversely affects your interests in the related Participation, the party
discovering such breach shall give prompt written notice to the other.
We, promptly after discovery of a breach of any such representation or
warranty, shall notify you of such breach and the details thereof. Within sixty
(60) days of the earlier of (i) notice by us pursuant to the immediately
preceding sentence or (ii) notice by you to us of any breach of a representation
or warranty with respect to a Participation, we shall use our best efforts
promptly to cure such breach in all material respects. If such breach can
ultimately be cured but is not reasonably expected to be cured within the 60 day
period, we shall have such additional time as is reasonably determined by you
(not to exceed 120 days) to cure or correct such breach provided we have
commenced curing or correcting such breach and are diligently pursuing same. If
such breach cannot be or has not been cured, we shall, upon the expiration of
the cure period described above, at your option and subject to the provisions of
this Section, repurchase such Participation at the outstanding principal balance
of the Participation plus all accrued interest on such Participation.
In addition to such repurchase obligation, we shall indemnify you and hold
you harmless against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and other
costs and expenses (but excluding any consequential, indirect, special,
exemplary or punitive damages ("Special Damages"), except for such Special
Damages which the Purchaser is required by law to pay to a third party)
resulting from any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the Seller representations and warranties
contained in this Agreement. It is understood and agreed that our obligations to
cure or repurchase a defective Participation and to indemnify you as provided in
this Section constitute your sole remedies respecting a breach of the foregoing
representations and warranties.
Any cause of action against us relating to or arising out of the breach of
any representations and warranties made in this Section shall accrue as to any
Participation upon (i) discovery of such breach by you or notice thereof by us
to you, (ii) failure by us to cure such breach or repurchase such Participation
as specified above, and (iii) demand upon us by you for compliance with this
Agreement.
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We will furnish you, promptly upon your request, with copies of the
publicly available financial statements and other publicly available documents,
and (subject to any duty of confidentiality to which we are subject) other
documents, that we shall receive from any Borrower or Lender in connection with
any Asset.
We agree to give you prompt notice of the occurrence of any event of
default relating to any Asset (as the term event of default is defined in the
loan documents evidencing the Asset to which each Participation relates) of
which we shall have actual knowledge.
8. Your Agreements. You acknowledge that you will, independently and
without reliance upon us and based on such financial statements and other
documents and information as you deem appropriate, make your own credit analysis
and decision in connection with each Participation accepted by you under this
Agreement and continue to make your own credit decisions with respect to each
Participation accepted by you under this Agreement.
9. Servicing of the Assets. We will service the Assets to which each
Participation relates with the same degree of care as we exercise with respect
to similar loans and participations held by us for our own account, provided,
that, we will not be liable for any error of judgment or for any action taken or
omitted to be taken by us, except for gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, we (a) may consult with
legal counsel, including counsel for any Borrower, Lender or guarantor of any
Asset ("Guarantor"), independent public accountants or experts, and shall not be
liable for any action taken in good faith or omitted to be taken in good faith
by us in accordance with the advice of such counsel, accountants or experts, (b)
make no warranty or representation and shall not be responsible for any
statement, warranty or representation made by any Borrower, Lender or Guarantor
in connection with any Asset or in or in connection with any document relating
to any Asset or for the financial condition of any Borrower, Lender or Guarantor
or for the value of any collateral, (c) shall not be responsible for the
performance or observance by any Borrower, Lender or Guarantor of any of the
terms, covenants or conditions of any loan or other document evidencing or
relating to any Asset and shall not have any duty to inspect the property
(including the books and records) of any Borrower, Lender or Guarantor, (d) make
no warranty or representation and shall not be responsible for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
collectability of any loan or other document evidencing or relating to any Asset
or any collateral for any Asset, (e) make no representation or warranty
concerning the value or existence of any collateral or the perfection or
enforceability of any security interests, and (f) shall incur no liability in
respect of any Asset or under any loan or other document evidencing or relating
to any Asset or in respect of any collateral for any Asset by acting upon any
notice, consent, certificate or other instrument or writing believed by us to be
genuine and signed or sent by the proper party.
We shall not, without your prior written consent, agree to the
modification or waiver of any of the terms of any loan or other document
evidencing or relating to any Asset, consent to any action or failure to act by
any Borrower, Lender or Guarantor, or exercise any rights which we may have in
respect of any Asset or under any loan or other document evidencing or relating
to any Asset or with respect to any collateral for any Asset, if the exercise of
any of such rights would (i) waive any payment default; (ii) forgive any of the
principal amount of or reduce the principal amount of, or rate of interest on,
any Asset in excess of thirty (30) days with respect to interest and ninety (90)
days with respect to principal; (iii) postpone any date fixed for any payment of
principal of or interest on any Asset; (iv) release any guaranty or collateral
except as otherwise contemplated
10
in any loan or other document evidencing or relating to any Asset; (v) extend
the maturity date of any Asset; (vi) increase the lending formulas or advance
rates on any Asset; or (vii) amend or modify the financial covenants contained
in the loan or other documents evidencing any Asset in any way that would make
such financial covenants any less restrictive.
Notwithstanding the foregoing, in the event: (i) of any default of any of
the Borrowers, which default shall be continuing for more than 30 days, (ii) the
Asset is placed in a non-performing status, or (iii) any other development
occurs that adversely affects the value of the collateral securing an Asset, the
Borrower's financial condition or its ability to repay the Note in accordance
with its terms, including any renegotiation of loan terms due to the financial
deterioration of the Borrower, we shall promptly give you written notice of such
event. We shall thereafter take such action as you may deem necessary to protect
the interests of both us and you, including, but not limited to, commencement of
foreclosure actions or the acceptance of deeds in lieu of foreclosure. In the
event we shall fail to timely take any such action as directed by you, you may
directly take any and all actions you deem necessary to protect your interests
in the Participations, including, but not limited to, the enforcement of
collections, the commencement of foreclosure actions, the acceptance of deeds in
lieu of foreclosure, or the disposition of any Asset. At your direction, and on
your behalf, we may deal with any of the Borrowers or Guarantors for the purpose
of entering into forbearance agreements, moratoriums, and general work-out plans
designed to allow the Borrowers or Guarantors to cure the default and restore
the Asset to good standing; provided, you may, in your discretion, deal directly
with any of the Borrowers or Guarantors in the event you determine that we are
not satisfactorily following your directions as if you were the direct holder of
the Asset and, notwithstanding anything in this Agreement to the contrary, we
shall, at all times, only take action or inaction that is consistent with
guidelines established by you or otherwise only with your consent. Prior to
commencing any foreclosure action in connection with any Participation, we
agree, following receipt of a written request from you, to offer to purchase
such Participation from you at fair market value less estimated selling costs
for the collateral securing the Asset. We will bear all costs associated with
such repurchased Participation after the date of repurchase.
We shall at all times keep proper books and records in accordance with
generally accepted accounting principles consistently applied, reflecting all
transactions in connection with the Assets. All such records shall be accessible
for inspection by you at all reasonable times during our business hours. We
shall use our best efforts to provide the following information to you within a
reasonable time after such information becomes available to us: (a) the accrual
status of the Assets; (b) the status of principal and interest payments; and (c)
financial statements of the Borrowers.
10. Servicing Fee. As compensation for servicing the Assets subject to
this Agreement, we shall be entitled to receive a monthly servicing fee equal to
1/12 multiplied by 0.125% multiplied by the average daily outstanding principal
balance of the Assets during each such calendar month. Such servicing fee shall
be payable on the 15th day of each month, or the first Business Day immediately
thereafter if the 15th day is not a Business Day, for the preceding calendar
month. In addition, as further compensation for such services, we shall be
entitled to retain all income derived from the Assets other than principal,
interest or commitment or facility fees, including, but not limited to, all late
charges, fees received with respect to checks or bank drafts returned by the
related bank for non-sufficient funds, assumption fees, deferment fees,
modification fees, optional insurance fees, administrative fees, and all other
incidental fees and charges.
11
11. Reimbursement of Expenses. You will on demand reimburse us to the
extent of your Pro Rata Share in any Asset for any and all reasonable costs,
expenses and disbursements which may be incurred or made by us in connection
with that Asset, and any action which may be taken by us to collect that Asset,
for which we are not reimbursed at any time by or on behalf of the Borrower,
Lender or Guarantor with respect to that Asset. We shall promptly repay your Pro
Rata Share of any of such amounts subsequently received from the Borrower.
12. Other Property, Deposits and Indebtedness. We and our affiliates may
accept deposits from, lend money to, act as trustee under indentures and
generally engage in any kind of business with any Borrower, Lender or Guarantor
without any duty to account therefore to you except as set forth in this
paragraph. You expressly waive any conflict of interest that we may have as a
result of such relationships with any Borrower, Lender or Guarantor. If any
property is taken by us as collateral for any other loans or extensions of
credit made by us to or for any Borrower, Lender or Guarantor, or any property
is in our possession or control, or any deposit is held or other indebtedness is
owing by us, and that property, deposit or indebtedness, or the proceeds
thereof, may be or become collateral for or otherwise available for payment in
connection with any Asset by reason of the general description of secured
obligations contained in any security agreement or other agreement or instrument
held by us or by reason of the right of set-off, counterclaim or otherwise, you
shall have no interest in that property, deposit or indebtedness, or the
proceeds thereof, except that if that property, deposit or indebtedness, or the
proceeds thereof, shall be applied in reduction of amounts outstanding in
connection with any Asset, then you shall be entitled to your Pro Rata Share
thereof. If you have received any payment as described in this paragraph in
excess of your Pro Rata Share thereof, you shall forthwith purchase from us such
additional Participation in such Asset as shall be necessary to cause us to
ratably share such payment with you in proportion to our Pro Rata Share;
provided, however, that if all or any portion of such payment is thereafter
recovered from you, such purchase from us shall be rescinded and we shall repay
to you our Pro Rata Share of such recovery together with an amount equal to our
Pro Rata Share of any interest or other amount paid or payable by you in respect
of the total amount so recovered.
13. Taxes. All taxes due and payable on any payments to be made to you
under this Agreement or under any Participation Certificate shall be your sole
responsibility. All such payments shall be made to you net of and after
deduction for any taxes, charges, levies or withholdings which are imposed by
means of withholding by the country of incorporation of the Borrower, the United
States of America and any other applicable taxing authority. You agree to
provide to us, from time to time, completed and signed copies of any forms that
may be required by the United States Internal Revenue Service in order to
certify your exemption from United States withholding taxes with respect to
payment to be made to you under this Agreement or under any Participation
Certificate.
14. Notices and Payments. All notices and other communications provided
for under this Agreement shall be in writing (including telegraphic, telex or
cable communications), unless otherwise specified, and shall be sent to you at
the address set forth above or to us at the address set forth below (or such
other address as you or we may designate in writing).
15. Termination. This Agreement may be terminated by either party upon one
day's written notice to the other party, provided, however, that any such
termination shall not affect the rights and obligations of the parties with
respect to any Participations contributed to or purchased by you prior to such
termination.
12
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
17. Arbitration. Any controversy or claim arising out of or relating to
this agreement, or the breach thereof, shall be settled by arbitration in
Cincinnati, Ohio in accordance with the commercial arbitration rules of the
American Arbitration Association, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
Please confirm your agreement with the provisions of this Agreement by
executing the enclosed copy of this Agreement and returning it to us.
Very truly yours,
THE PROVIDENT BANK
By:
-----------------------------------
Title:
---------------------------------
Address:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
AGREED AND ACCEPTED:
As of October 20, 2004
PFGI CAPITAL CORPORATION
By:
--------------------------------
Title:
----------------------------
Address: Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,Xxxx 00000
13
SCHEDULE I
PARTICIPATION CERTIFICATE
THE PROVIDENT BANK HEREBY CONFIRMS THAT WE HAVE CONTRIBUTED OR SOLD AND
TRANSFERRED TO YOU, AND THAT YOU HAVE ACCEPTED SUCH CONTRIBUTION OR PURCHASED
FROM US, WITHOUT RECOURSE, AN UNDIVIDED PARTICIPATION IN AND TO EACH AND ALL OF
THE ASSETS DESCRIBED BELOW TO THE EXTENT OF THE APPLICABLE PERCENTAGE AND WITH
THE TERMS SET FORTH BELOW AND AS SET FORTH IN THAT CERTAIN MASTER PARTICIPATION
AND SERVICING AGREEMENT AS AMENDED AND RESTATED AS OF OCTOBER 20, 2004:
APPLICABLE PERCENTAGE: 95%
MAXIMUM PARTICIPATION AMOUNT: $
BORROWER:
ASSET: All of the Assets described on the attached Exhibit "A".
PARTICIPATION RATE: Participant shall receive its Pro Rata Share of
principal, interest and other amounts paid by Borrower
to The Provident Bank with respect to the Assets.
PURCHASE PRICE: $
VALUE DATE: , 200
---------- ---------
Regards,
THE PROVIDENT BANK
By:
Title:
AGREED AND ACCEPTED:
PFGI CAPITAL CORPORATION
By:
Title:
Exhibit A
Assets
2
SCHEDULE II
THE PROVIDENT BANK
UNDERWRITING POLICIES AND GUIDELINES
It is the policy of Provident Bank to make commercial mortgage loans
primarily in the geographic areas in which Provident Bank is doing business,
normally a 100-mile radius of Cincinnati, Dayton, Columbus and Cleveland, Ohio;
Indianapolis, Indiana; Pittsburgh, Pennsylvania; and Sarasota, Florida. However,
Provident Bank may lend in geographic areas beyond these areas, provided the
mortgage loans otherwise comply with Provident Bank's investment policies.
Further, Provident Bank avoids transactions perceived to have unacceptably high
risk, as well as excessive industry, type of collateral and other
concentrations. Finally, it is the policy of Provident Bank that no more than
two-thirds of Provident Bank's commercial mortgage loans cover properties that
are not stabilized at any one time.
Some of the Corporation's assets will be participating interests in
loans acquired by Provident Bank in connection with its acquisition of other
financial institutions. With respect to such loans, Provident Bank has performed
due diligence procedures to, among other things, assess the overall quality of
the target institution's loan portfolio prior to acquiring any financial
institution. These procedures have included the examination of underwriting
standards used in the origination of loan products by the target institution,
the review of loan documents and the contents of selected loan files, and the
verification of the past due status and payment histories of selected borrowers.
Through its due diligence procedures, Provident Bank has obtained a sufficient
level of comfort pertaining to the underwriting standards used by the target
institution and their influence on the quality of the portfolio. Even though
Provident Bank does not warrant those standards, Provident Bank has found them
acceptable in comparison to its own underwriting standards in cases where
Provident Bank has made a favorable decision to acquire the institution as a
whole.
The underwriting standards imposed by Provident Bank in connection
with the origination of the commercial mortgage loans underlying the assets to
be acquired by the Corporation shall include careful consideration of the
borrower's overall creditworthiness and capacity to service debt independent of
the income generated from the underlying property. In most instances, cash
equity is required in each commercial mortgage loan transaction to reduce debt
to a level where the income of the property can comfortably service that debt.
In other instances where income from the underlying property does not provide
adequate debt service coverage margins, additional collateral shall be required
to offset any perceived deficiency. In the case of properties where the
stability of the income stream may be in question, such as construction and
development situations, Provident Bank shall require the borrower to have met
the pre-leasing and pre-sale standard designated by Provident Bank for the type
of property.
The underwriting procedures and guidelines to be taken into account
by Provident Bank shall include such factors as:
- demographic factors, including population and employment trends;
- current and projected vacancy, construction and absorption rates;
- current and projected lease terms, rental rates and sales prices,
including concessions;
- economic indicators, including trends and diversification of the
lending area;
- valuation trends, including discount and direct capitalization
rates;
- amount and credit rating of additional collateral;
- the net worth and credit rating of the borrower, as well as its
operating and liquidity ratios;
- the existence of a guarantee;
- the management ability of the borrower, including its business
experience and financial soundness;
- the characteristics of the specific project financed; and
- such other economic, demographic, or other factors as in the
judgment of Provident Bank might affect the value of the collateral
and the ability of the borrower to service the loan.
Generally, Assets which the Corporation purchases or acquires from
Provident Bank or its affiliates shall be participation interests in loans that
are:
- performing, meaning they have no more than two payments past due, if
any,
- in accruing status,
- secured by real property such that they are REIT qualifying, and
- not have been previously sold, securitized or charged-off either in
whole or in part.
Commercial mortgage loans are not required to be fully amortizing.
Additionally, apart from Provident Bank's commercial mortgage loan origination
guidelines, there is no requirement regarding the percentage of any commercial
real estate
property that must be leased at the time the Corporation acquires a
participation interest in a commercial mortgage loan secured by such property
nor shall commercial mortgage loans be required to have third party guarantees.
At least 95% of the participation interests in commercial mortgage
loans acquired in the future will represent a first lien position and shall have
been originated by Provident Bank, one of its affiliates or an unaffiliated
third party in the ordinary course of its real estate lending activities based
on the underwriting standards generally applied by or substantially similar to
those applied by Provident Bank at the time of origination for its own account.
All financial dealings between Provident Bank and the Corporation
shall be fair to all parties and consistent with market terms.
SCHEDULE III
INITIAL CONTRIBUTED PARTICIPATIONS
