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FIRST AMENDMENT TO FIRST AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING
CREDIT AND SECURITY AGREEMENT (this "Amendment") is entered into as
of this 27th day of December, 1995 by and between U.S. HOME MORTGAGE
CORPORATION, a Florida corporation (the "Company") and RESIDENTIAL
FUNDING CORPORATION, a Delaware corporation (the "Lender").
WHEREAS, the Company and the Lender have entered into a single
family revolving warehouse facility with a present Commitment
Amount of Thirty-Five Million Dollars ($35,000,000), to finance the
origination and acquisition of Mortgage Loans as evidenced by a
Warehousing Promissory Note in the principal sum of Thirty-Five
Million Dollars ($35,000,000), and a Construction Promissory Note
in the principal sum of Five Million Dollars ($5,000,000), each
dated as of August 31, 1995 (the "Notes"), and by a First Amended
and Restated Warehousing Credit and Security Agreement dated as of
August 31, 1995, as the same may have been amended or supplemented
(the "Agreement"); and
WHEREAS, the Company has requested the Lender to amend the
Agreement to provide for the warehousing of commercial mortgage
loans and to increase the Commitment Amount, and the Lender has
agreed to such amendment of the Agreement and increase of the
Commitment subject to the terms and conditions of this Amendment.
NOW, THEREFORE, for and in consideration of the foregoing and
of the mutual covenants, agreements and conditions hereinafter set
forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise
defined shall have their respective meanings set forth in the
Agreement.
2. The effective date ("Effective Date") of this Amendment
shall be 12/27/95, the date on which the Company has complied
with all the terms and conditions of this Amendment.
3. Section 1.1 of the Agreement shall be amended by adding
the following definitions in the appropriate alphabetical order:
"First Mortgage" means a Mortgage which constitutes a
first Lien on the property covered thereby.
"First Mortgage Loan" means a Mortgage Loan secured by a
First Mortgage.
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"Unimproved Advance" means an Advance made against an
Unimproved Mortgage Loan and readvances of funds previously
advanced to the Company and repaid to the Lender.
"Unimproved Mortgage Loans" means a Mortgage Loan secured
by a First Mortgage on unimproved real property intended for
commercial or residential development and used by the
mortgagor to finance the acquisition of such real property.
"Unimproved Rate" means a floating rate of interest per
annum equal to two and one-half percent (2.50%) over LIBOR.
The Unimproved Rate shall be adjusted on and as of the
effective date of each weekly change in LIBOR. The Lender's
determination of the Unimproved Rate as of any date of
determination shall be conclusive and binding, absent manifest
error.
4. Section 1.1 of the Agreement is hereby amended to delete
the definition of "Commitment Amount" in its entirety and to
substitute the following in lieu thereof:
"Commitment Amount" means Forty-Five Million Dollars
($45,000,000).
5. Sections 2.1(b)(1) - (7) of the Agreement shall be
deleted in their entirety and the following shall be substituted in
lieu thereof:
(1) No Advance shall be made against a
Mortgage Loan other than a Single-family Mortgage
Loan, a Construction/Perm Mortgage Loan or an
Unimproved Mortgage Loan, no Construction Advance
shall be made against a Construction/Perm Mortgage
Loan which is not secured by a single-family
detached dwelling and no Unimproved Advance shall
be made against any Unimproved Mortgage Loan
without the prior approval of the Lender, which may
be given or withheld in its sole and absolute
discretion.
(2) No Advance shall be made against a
Mortgage Loan, other than an Unimproved Mortgage
Loan, which is not covered by a Purchase
Commitment.
(3) No Advance shall be made against a Home
Equity Mortgage Loan.
(4) The aggregate amount of Wet Settlement
Advances outstanding at any one time shall not
exceed thirty-five percent (35%) of the Commitment
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Amount. No Wet Settlement Advance shall be made
against an Unimproved Mortgage Loan.
(5) The aggregate amount of Construction
Advances outstanding at any one time shall not
exceed Five Million Dollars ($5,000,000).
(6) The aggregate amount of Nonconforming
Advances outstanding at any one time shall not
exceed One Million Dollars ($1,000,000).
(6) The aggregate amount of Unimproved
Advances outstanding at any one time shall not
exceed Ten Million Dollars ($10,000,000).
(7) No Advance (other than a Construction
Advance or an Unimproved Advance) shall be made
against any Mortgage Loan which was closed more
than ninety (90) days prior to the date of the
requested Advance.
(8) No Advance shall be made against an
Unimproved Mortgage Loan (i) if the original
principal amount of such Unimproved Mortgage Loan
exceeded eighty percent (80%) of the purchase price
paid by the mortgage for the property securing such
Unimproved Mortgage Loan, (ii) in the case of an
Unimproved Mortgage Loan secured by property
intended for commercial development, if the
Mortgage Note Amount exceeds eighty percent (80%)
of the fair market value of such property as
determined by the Lender, in its reasonable
judgment, or (iii) unless all payments which were
due and payable under the related Unimproved
Mortgage Loan on or prior to the date of such
Advance have been made.
6. Section 2.1(c) of the Agreement is hereby amended by
adding the following Section immediately after Section 2.1(c)(3):
(4) For an Unimproved Mortgage Loan pledged
hereunder, seventy-five percent (75%) of the
Mortgage Note Amount.
7. Sections 2.2(a) or 2.2(d) of the Agreement shall be
deleted in their entirety and the following shall be substituted in
lieu thereof:
(a) The Company may obtain an Advance hereunder,
subject to the satisfaction of the conditions set forth
in Sections 4.1 and 4.2 hereof, upon compliance with the
procedures set forth in this Section 2.2 and in
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Exhibit D-SF with respect to Ordinary Warehousing
Advances and Nonconforming Advances, Exhibit
D/CONSTRUCTION with respect to Construction Advances, and
Exhibit D-UNI with respect to Unimproved Advances,
attached hereto and made a part hereof including the
delivery of all documents listed in Exhibit D-SF, Exhibit
D-SF/CONSTRUCTION or Exhibit D-UNI (the "Collateral
Documents") to the Lender. Requests for Advances (other
than Construction Advances and Unimproved Advances) shall
be initiated by the Company by delivering to the Lender,
no later than one (1) Business Day prior to any Business
Day that the Company desires to borrow hereunder, a
completed and signed request for an Advance (an "Advance
Request") on the then current form approved by the
Lender. Requests for Construction Advances shall be
initiated by the Company by delivering to the Lender, no
later than two (2) Business Days prior to any Business
Day that the Company desires to borrower hereunder, a
completed and signed request for a Construction Advance
(a "Construction Advance Request"). Requests for
Unimproved Advances shall be initiated by the Company by
delivering to the Lender, no later than (i) in the case
of the initial Unimproved Advances, one (1) Business Day,
and (ii) in the case of all subsequent Unimproved
Advances, five (5) Business Days, prior to any Business
Day that the Company desires to borrow hereunder, a
completed and signed request for an Unimproved Advance
(an "Unimproved Advance Request"). The current forms in
use by the Lender are Exhibit C-SF for Ordinary
Warehousing Advances and Nonconforming Advances, Exhibit
C-SF/CONSTRUCTION for Construction Advances and Exhibit
C-UNI for Unimproved Advances, attached hereto and made
a part hereof. The Lender shall have the right, on not
less than three (3) Business Days' prior Notice to the
Company, to modify any of said Exhibits to conform to
current legal requirements or Lender practices, and, as
so modified, said Exhibits shall be deemed a part hereof.
2.2(d) The Company shall hold in trust for the
Lender, and the Company shall deliver to the Lender
promptly upon request, or within one hundred twenty (120)
days from the date an Advance was made against such
Pledged Mortgage and the Pledged Mortgage is not being
held by an Investor for purchase or has not been redeemed
from pledge, the following: (1) the originals of the
Collateral Documents for which copies are required to be
delivered to the Lender pursuant to Exhibit D-SF, Exhibit
D-SF/CONSTRUCTION or Exhibit D-UNI, as the case may be,
(2) the original lender's ALTA Policy of Title Insurance
or an equivalent thereto, and (3) any other documents
relating to a Pledged Mortgage which the Lender may
request, including, without limitation, documentation
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evidencing the following, if applicable: the FHA
Commitment to Insure or the VA Guaranty of any Pledged
Mortgage which is either FHA insured or VA guaranteed,
the appraisal, Private Mortgage Insurance Certificate,
the Regulation Z Statement, certificates of casualty or
hazard insurance, credit information on the maker of each
such Mortgage Note, a copy of a HUD-1 or corresponding
purchase advice and other documents of all kinds which are
customarily desired for inspection or transfer incidental
to the purchase of any Mortgage Note by an Investor and
any additional documents which are customarily executed
by the seller of a Mortgage Note to an Investor.
8. Section 2.3 of the Agreement shall be deleted in its
entirety and the following shall be substituted in lieu thereof:
2.3 Notes. The Company's Obligations in respect of
Ordinary Warehousing Advances and Nonconforming Advances shall
be evidenced by a Warehousing Promissory Note of the Company,
and the Company's Obligations in respect of Construction
Advances and Unimproved Advances shall be evidenced by a
Sublimit Promissory Note of the Company. Each note is dated
as of the date hereof (the Warehousing Promissory Note and
Sublimit Promissory Note are collectively referred to as the
"Notes"). The terms "Warehousing Promissory Note", "Sublimit
Promissory Note," "Note" or "Notes" shall include all
extensions, renewals and modifications of the Notes and all
substitutions therefor. All terms and provisions of the Notes
are hereby incorporated herein.
9. Section 2.4(c) of the Agreement shall be deleted in its
entirety and the following shall be substituted in lieu thereof:
(c) Prior to the occurrence of an Event of Default,
the unpaid amount of (i) each Construction Advance (net
of applicable Buydown) shall bear interest, from the date
of such Construction Advance until paid in full, at the
Construction Rate, and (ii) each Unimproved Advance (net
of applicable Buydown) shall bear interest, from the date
of such Unimproved Advance until paid in full, at the
Unimproved Rate.
10. Sections 2.5(d)(1), (6), (8) and (9) of the Agreement
shall be deleted in their entirety and the following shall be
substituted in lieu thereof:
(1) For a Mortgage Loan, other than a
Construction/Perm Mortgage Loan or an Unimproved
Mortgage Loan, one hundred twenty (120) days elapse
from the date of the initial Advance made by the
Lender against such Pledged Mortgage, whether or
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not such Pledged Mortgage is included in an
Eligible Mortgage Pool.
(6) The Mortgage Loan is (i) in the case of
an Unimproved Mortgage Loan, delinquent (without
giving effect to any grace period) and remains
delinquent for a period of thirty (30) days or
more, and (ii) in all other cases, defaulted and
remains in default for a period of sixty (60) days
or more.
(8) If the outstanding Advances against
Pledged Mortgages of a specific Mortgage Loan type
(other than Unimproved Mortgage Loan) exceed the
aggregate Purchase Commitments for such Mortgage
Loan type.
(9) For a Mortgage Loan, other than a
Unimproved Mortgage Loan, three (3) Business Days
after the mandatory delivery date of the related
Purchase Commitment and the specific Pledged
Mortgage was not delivered under the Purchase
Commitment prior to such mandatory delivery date,
or the Purchase Commitment is terminated; unless in
each case, such Pledged Mortgage is eligible for
delivery to an Investor under a comparable Purchase
Commitment acceptable to the Lender.
11. Sections 2.5(f) and (h) of the Agreement shall be deleted
in their entirety and the following shall be substituted in lieu
thereof:
(f) In addition to the payments required pursuant
to Section 2.5(d), the Company shall be obligated to pay
to the Lender, without the necessity of prior demand or
notice from the Lender, and the Company authorizes the
Lender to cause the Funding Bank to charge the Company's
account if the principal amount of (i) any Unimproved
Mortgage Loan is paid or prepaid, or (ii) any other
Pledged Mortgage is prepaid, in either case in whole or
in part, while an Advance is outstanding against such
Pledged Mortgage, for the amount of such payment or
prepayment, to be applied to such Advance.
(h) The Company may, from time to time, prepay a
portion of the Advances pursuant to this Section 2.5(h)
(any such prepayment is hereafter referred to as a
"Buydown"). A Buydown shall not, except as set forth
below, be deemed a prepayment of any particular Advances,
and shall not entitle the Company to the release of any
Collateral. If a Default or an Event of Default has
occurred and is continuing, the Lender shall be entitled
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to retain as additional Collateral any portion of the
Buydown which has been funded by the Company. Any portion
of the Buydown which has been funded to the Company by its
Parent and/or Affiliates shall be refunded to and at the
direction of the Company. All or any portion of a Buydown
may be reborrowed hereunder, provided no Default or Event
of Default has occurred and is continuing, upon written
notice to the Lender no later than 9:30 a.m. on the
Business Day that the Company desires to reborrow such
amount. The Lender shall use its best efforts to apply
Buydown to reduce the interest on Advances in the
following order: first, Unimproved Advances; second,
Construction Advances; third, Nonconforming Advances; and
fourth, Ordinary Warehousing Advances; provided, however,
that no portion of any Buydown may be or remain applied
to Unimproved Advances unless, after giving effect to
such application, the outstanding principal balance of
the Unimproved Advances (net of the portion of the
Buydown applied thereto) would be greater than or equal
to Two Million Five Hundred Thousand Dollars
($2,500,000). In the event the Lender receives a payment
of Advances that would, as a result of the Buydown,
reduce the outstanding principal balance of the
Unimproved Advances to an amount less than Two Million
Five Hundred Thousand Dollars ($2,500,000), or the
outstanding principal balance of the other Advances to an
amount less than zero, unless an Event of Default shall
have occurred, and be continuing, the Buydowns, or a
portion thereof equal to such excess, shall be readvanced
to the Company.
12. Section 2.9 of the Agreement shall be deleted in its
entirety and the following shall be substituted in lieu thereof:
2.9 Warehousing Fees. The Company agrees, at the time
of each Advance, to pay to the Lender a Warehousing Fee in the
amount of (i) Ten Dollars ($10.00) for each Mortgage Loan
(other than an Unimproved Mortgage Loan) pledged as Collateral
for such Advance, and (ii) One Hundred Dollars ($100.00) for
each Unimproved Mortgage Loan pledged as Collateral for such
Advance. Notwithstanding the foregoing, if the arithmetic
daily average of the Advances (net of Buydown) outstanding in
any month exceeds Fifteen Million Dollars ($15,000,000), no
Warehousing Fee shall be payable for such month, except with
respect to Unimproved Mortgage Loans. Warehousing Fees are
due when incurred, but shall not be delinquent if paid within
fifteen (15) days after receipt of an invoice or an account
analysis statement from the Lender.
13. Section 3.2(g) of the Agreement shall be deleted in its
entirety and the following shall be substituted in lieu thereof:
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3.2(g) The Release Amount in connection with any
Pledged Mortgage shall be (i) prior to the occurrence of
an Event of Default, the principal amount of the Advances
made against such Pledged Mortgage, and (ii) from and
after the occurrence and during the continuance of an
Event of Default, the Committed Purchase Price of such
Pledged Mortgage or, if there is no Purchase Commitment
therefor, the amount paid to the Lender in a commercially
reasonable disposition thereof or in connection with a
commercially reasonable disposition of the property
securing an Unimproved Mortgage Loan or other defaulted
Pledged Mortgage.
14. Sections 3.3 and 3.5 of the Agreement shall be deleted in
their entirety and the following shall be substituted in lieu
thereof:
3.3 Delivery of Additional Collateral or Mandatory
Prepayment. At any time that the aggregate Collateral Value
of the Pledged Mortgages (other than Unimproved Mortgage
Loans) and Pledged Securities then pledged hereunder is less
than the aggregate amount of the Advances (other than
Unimproved Advances) then outstanding hereunder, the Lender
may request, and the Company shall within two (2) Business
Days after Notice by the Lender (a) deliver to the Lender for
pledge hereunder additional Mortgage Loans (other than
Unimproved Mortgage Loans) and/or cash, with a Collateral
Value sufficient to cover the difference between the
Collateral Value of the Pledged Mortgages (other than
Unimproved Mortgage Loans) and Pledged Securities pledged and
the aggregate amount of Advances (other than Unimproved
Advances) outstanding hereunder, or (b) repay the Advances
(other than Unimproved Advances) in an amount sufficient to
reduce the aggregate balance thereof outstanding to or below
the Collateral Value of the Pledged Mortgages (other than
Unimproved Mortgage Loans) and Pledged Securities pledged
hereunder.
3.5 Collection and Servicing Rights. So long as no
Event of Default shall have occurred and be continuing, the
Company shall be entitled to service and receive and collect
directly all sums payable to the Company in respect of the
Collateral other than (a) proceeds of any Purchase Commitment
or proceeds of the sale of any Collateral and (b) payments and
prepayments on Pledged Mortgages required to be applied to
prepay Advances under Section 2.5(f) hereof. Following the
occurrence of any Event of Default, the Lender or its designee
shall thereafter be entitled to service and receive and
collect all sums payable to the Company in respect of the
Collateral, and in such case (a) the Lender or its designee in
its discretion may, in its own name, in the name of the
Company or otherwise, demand, xxx for, collect or receive any
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money or property at any time payable or receivable on account
of or in exchange for any of the Collateral, but shall be
under no obligation to do so, (b) the Company shall, if the
Lender so requests, hold in trust for the benefit of the
Lender and forthwith pay to the Lender at its office
designated by Notice hereunder, all amounts thereafter
received by the Company upon or in respect of any of the
Collateral, advising the Lender as to the source of such
funds, and (c) all amounts so received and collected by the
Lender shall be held by it as part of the Collateral.
15. Sections 5.15(c) and (d) of the Agreement shall be
deleted in their entirety and the following shall be substituted in
lieu thereof:
5.15(c) Any Mortgage Loan and any related document
included in the Pledged Mortgages (1) other than a
Construction/Perm Mortgage Loan or an Unimproved Mortgage
Loan, has been duly executed and delivered by the parties
thereto at a closing held not more than ninety (90) days
prior to the date of the Advance Request for an Advance
against such Mortgage Loan, (2) has been made in
compliance with all applicable requirements of the Real
Estate Settlement Procedures Act, Equal Credit
Opportunity Act, the federal Truth-In-Lending Act and all
other applicable laws and regulations, (3) is and will
continue to be valid and enforceable in accordance with
its terms, without defense or offset, (4) has not been
modified or amended except in writing, which writing is
part of the Collateral Documents, nor any requirements
thereof waived, (5) other than an Unimproved Mortgage
Loan, has been evaluated or appraised in accordance with
Title XI of FIRREA, and (6) complies and will continue to
comply with the terms of this Agreement and, if
applicable, with the related Purchase Commitment held by
the Company. Each Mortgage Loan, other than a
Construction/Perm Mortgage Loan, has been fully advanced
in the face amount thereof and each First Mortgage is a
first Lien on the premises described therein, and has or
will have a title insurance policy, in American Land
Title Association form or equivalent thereof, from a
recognized title insurance company, insuring the priority
of the Lien of the Mortgage and meeting the usual
requirements of Investors purchasing such Mortgage Loans.
5.15(d) No default has occurred and is continuing
for more than (i) in the case of an Unimproved Mortgage
Loan included in the Pledged Mortgages, thirty (30) days,
or (ii) in the case of any other Mortgage Loan included
in the Pledged Mortgages, sixty (60) days, without the
Advance against such Pledged Mortgage having been repaid
in accordance with Section 2.5(d)(6) hereof, provided,
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however, that with respect to Pledged Mortgages which
have already been pledged as Collateral hereunder, if any
default has occurred, the Company will promptly notify
the Lender.
16. Section 6.13(d) of the Agreement shall be deleted in its
entirety and the following shall be substituted in lieu thereof:
6.13(d) Notify the Lender within (i) two (2)
Business Days of any default under, or of the termination
of, any Purchase Commitment relating to any Pledged
Mortgage, Eligible Mortgage Pool or Pledged Security, or
(ii) two (2) Business Days of any default (after expiration
of any grace period) under any Unimproved Mortgage Loan.
17. Section 7.7 of the Agreement shall be deleted in its
entirety and the following shall be substituted in lieu thereof:
7.7 Minimum Tangible Net Worth. Permit Tangible
Net Worth of the Company (and its Subsidiaries, on a
consolidated basis) at any time to be less than Six
Million Dollars ($6,000,000).
18. The Warehousing Promissory Note is amended and restated
in its entirety as set forth in the First Amended and Restated
Warehousing Promissory Note, in the form of Exhibit A-1 attached
to this Amendment. The Construction Promissory Note is amended and
restated in its entirety as set forth in the Sublimit Promissory
Note, in the form of Exhibit A-2 attached to this Amendment. All
references in this Amendment and in the Agreement to the Warehousing
Promissory Note and the Construction Promissory Note shall be deemed
to refer to the First Amended and Restated Warehousing Promissory
Note and the Sublimit Promissory Note, respectively, delivered in
connection with this Amendment.
19. New Exhibits C-UNI and D-UNI in the forms attached to
this Amendment are hereby added to the Agreement.
20. The Company shall deliver to the Lender (a) an executed
original of this Amendment; (b) executed originals of the First
Amended and Restated Warehousing Promissory Note and the Sublimit
Promissory Note; and (c) a Seven Hundred Fifty Dollar ($750) document
production fee.
21. The Company represents, warrants and agrees that (a)
there exists no Default or Event of Default under the Loan
Documents, (b) the Loan Documents continue to be the legal, valid
and binding agreements and obligations of the Company enforceable
in accordance with their terms, as modified herein, (c) the Lender
is not in default under any of the Loan Documents and the Company
has no offset or defense to its performance or obligations under
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any of the Loan Documents, (d) the representations contained in the
Loan Documents remain true and accurate in all respects, and (e)
there has been no material adverse change in the financial
condition of the Company from the date of the Agreement to the date
of this Amendment.
22. Except as hereby expressly modified, the Agreement shall
otherwise be unchanged and shall remain in full force and effect,
and the Company ratifies and reaffirms all of its obligations
thereunder.
23. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be
an original, but all of which shall together constitute one and the
same instrument.
IN WITNESS WHEREOF, the Company and the Lender have caused
this Amendment to be duly executed on their behalf by their duly
authorized officers as of the day and year above written.
U.S. HOME MORTGAGE CORPORATION
By: /s/ X.X. XXXXXX
----------------------------
Its: Vice President
---------------------------
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By: /s/ XXXXX X. XXXX
----------------------------
Its: Vice President
---------------------------
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STATE OF TEXAS )
) ss
COUNTY OF XXXXXX )
On December 27, 1995, before me, a Notary Public, personally
appeared Xxxxxx X. Xxxxxx, the Vice President of U.S. HOME MORTGAGE
CORPORATION, a Florida corporation, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her authorized capacity, and
that by his/her signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ XXXXXX XXXXXX
----------------------
Notary Public
(SEAL) My Commission Expires: 0-0-00
XXXXX XX XXXXXXX )
) ss
COUNTY OF BROWARD )
On December 28, 1995, before me, a Notary Public, personally
appeared Xxxxx X. Xxxx, the Vice President of RESIDENTIAL FUNDING
CORPORATION, a Delaware corporation, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the
instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ XXXXXX X. XXXXXX
----------------------
Notary Public
(SEAL) My Commission Expires: 9-15-98
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EXHIBIT A-1
WAREHOUSING PROMISSORY NOTE
$45,000,000 Date: December 27, 1995
FOR VALUE RECEIVED, the undersigned, U.S. HOME MORTGAGE CORPORATION, a
Florida corporation, (herein called the "Company"), hereby promises to pay to
the order of RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender" or, together with its successors and assigns, the "Holder") whose
principal place of business is 0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxx 00000, or at such other place as the Holder may
designate from time to time, the principal sum of Forty-Five Million Dollars
($45,000,000) or so much thereof as may be outstanding from time to time
pursuant to the Warehousing Credit and Security Agreement described below, and
to pay interest on said principal sum or such part thereof as shall remain
unpaid from time to time, from the date of each Advance until repaid in full,
and all other fees and charges due under the Agreement, at the rate and at the
times set forth in the Agreement. All payments hereunder shall be made in
lawful money of the United States and in immediately available funds.
This Note is given to evidence an actual warehouse line of credit in
the above amount and is the Warehousing Promissory Note referred to in that
certain First Amended and Restated Warehousing Credit and Security Agreement
(as the same may have been and may hereafter be amended or supplemented from
time to time, the "Agreement") dated as of August 31, 1995, between the Company
and the Lender, and is entitled to the benefits thereof. Reference is hereby
made to the Agreement (which is incorporated herein by reference as fully and
with the same effect as if set forth herein at length) for a description of the
Collateral, a statement of the covenants and agreements, a statement of the
rights and remedies and securities afforded thereby and other matters contained
therein. Capitalized terms used herein, unless otherwise defined herein, shall
have the meanings given them in the Agreement. Without limiting the generality
of the foregoing, this Note, together with the Sublimit Promissory Note,
evidences a single line of credit, and the Lender has not committed to make
Advances with an aggregate principal amount exceeding the Commitment Amount,
notwithstanding the fact that the sum of the principal amount of the Notes may
exceed the Commitment Amount.
This Note is given in replacement for, and not in satisfaction of,
that certain Warehousing Promissory Note dated August 31, 1995, and issued by
the Company to evidence its obligations under the Agreement (the Existing
Note"). All amounts owed by the Company
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under the Existing Note (including, without limitation, the unpaid principal
thereunder, interest accrued thereon and fees accrued under the Agreement,
whether or not yet due and owing) as of the date hereof, shall be owed
hereunder.
This Note may be prepaid in whole or in part at any time without
premium or penalty.
Should this Note be placed in the hands of attorneys for collection,
the Company agrees to pay, in addition to principal and interest, fees and
charges due under the Agreement, any and all costs of collecting this Note,
including reasonable attorneys' fees and expenses.
The Company hereby waives demand, notice, protest and presentment.
This Note shall be construed and enforced in accordance with the laws
of the State of Minnesota, without reference to its principles of conflicts of
law.
IN WITNESS WHEREOF, the Company has executed this Note as of the day
and year first above written.
U.S. HOME MORTGAGE CORPORATION
By:
-------------------------------
Its:
------------------------------
STATE OF )
----------- ) ss
COUNTY OF )
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On , 1995, before me, a Notary Public, personally appeared
, the of U.S. HOME MORTGAGE CORPORATION, a
Florida corporation, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
[SEAL] ------------------------------
Notary Public
My Commission Expires:
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EXHIBIT A-2
SUBLIMIT PROMISSORY NOTE
$15,000,000 Date: December 27, 1995
FOR VALUE RECEIVED, the undersigned, U.S. HOME MORTGAGE
CORPORATION, a Florida corporation, (herein called the "Company"),
hereby promises to pay to the order of RESIDENTIAL FUNDING
CORPORATION, a Delaware corporation (the "Lender" or, together with
its successors and assigns, the "Holder") whose principal place of
business is 0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx 00000, or at such other place as the Holder may
designate from time to time, the principal sum of Fifteen Million
Dollars ($15,000,000) or so much thereof as may be outstanding from
time to time pursuant to the Warehousing Credit and Security
Agreement described below, and to pay interest on said principal
sum or such part thereof as shall remain unpaid from time to time,
from the date of each Advance until repaid in full, and all other
fees and charges due under the Agreement, at the rate and at the
times set forth in the Agreement. All payments hereunder shall be
made in lawful money of the United States and in immediately
available funds.
This Note is given to evidence an actual warehouse facility in
the above amount and is the Sublimit Promissory Note referred to in
that certain First Amended and Restated Warehousing Credit and
Security Agreement (as the same may have been and may hereafter be
amended or supplemented from time to time, the "Agreement") dated as
of August 31, 1995, between the Company and the Lender, and is
entitled to the benefits thereof. Reference is hereby made to the
Agreement (which is incorporated herein by reference as fully and
with the same effect as if set forth herein at length) for a
description of the Collateral, a statement of the covenants and
agreements, a statement of the rights and remedies and securities
afforded thereby and other matters contained therein. Capitalized
terms used herein, unless otherwise defined herein, shall have the
meanings given them in the Agreement. Without limiting the generality
of the foregoing, this Note, together with the Warehousing Promissory
Note, evidences a single line of credit, and the Lender has not
committed to make Advances with an aggregate principal amount
exceeding the Commitment Amount, notwithstanding the fact that the
sum of the principal amount of the Notes may exceed the Commitment
Amount.
This Note is given in replacement for, and not in satisfaction
of, that certain Construction Promissory Note dated August 31,
1995, and issued by the Company to evidence its obligations under
the Agreement (the "Existing Note"). All amounts owed by the
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Company under the Existing Note (including, without limitation, the
unpaid principal thereunder, interest accrued thereon and fees
accrued under the Agreement, whether or not yet due and owing) as
of the date hereof, shall be owed hereunder.
This Note may be prepaid in whole or in part at any time
without premium or penalty.
Should this Note be placed in the hands of attorneys for
collection, the Company agrees to pay, in addition to principal and
interest, fees and charges due under the Agreement, any and all
costs of collecting this Note, including reasonable attorneys' fees
and expenses.
The Company hereby waives demand, notice, protest and
presentment.
This Note shall be construed and enforced in accordance with
the laws of the State of Minnesota, without reference to its
principles of conflicts of law.
IN WITNESS WHEREOF, the Company has executed this Note as of
the day and year first above written.
U.S. HOME MORTGAGE CORPORATION
By:
---------------------------
Its:
--------------------------
STATE OF )
) ss
COUNTY OF )
On , 1995, before me, a Notary Public, personally
appeared , the of U.S. HOME MORTGAGE
CORPORATION, a Florida corporation, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her authorized capacity, and
that by his/her signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------
Notary Public
(SEAL) My Commission Expires:
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EXHIBIT C-SF/UNI
REQUEST FOR ADVANCE UNIMPROVED MORTGAGE LOAN
Mortgage Company: U.S. HOME MORTGAGE CORPORATION
Mortgagor:___________________ Loan Number: _______________________________
___________________ Reviewed By: _______________________________
Address: ___________________ Warehouse Date:_______________________________
___________________
Property Type: Residential ____________________
Commercial ____________________
Original Mortgage Note Amount: _____________ Interest Rate: ________________
Mortgage Note Date: ________________________ Approved Warehouse Amt: _______
Current Mortgage Note Amount: ______________ Title Company: ________________
Purchase Price for Property: _______________
Company Valuation of Property:* ____________
METHOD OF ADVANCE
( ) Check Funding/Disbursement
Check No: ___________________________ Amount: __________________________
Checking Account No: ________________
( ) Wire Transfer
Amount of Wire: _____________________ Date of Wire: ____________________
Credit Acct. No. ____________________ Credit Acct. Name:________________
ABA No.: ____________________________ Bank Name: _______________________
Account to Debit: ___________________ City & State: ____________________
Ref: _____________ Advise: ___________________ Phone: __________________
REQUIRED DOCUMENTATION
Attached please find the following documents in connection with the above
request (Please check attached documents below):
Right
( ) Original and one copy of Mortgage Note
( ) Certified copy of Mortgage or Deed of Trust
Left
( ) Request for Advance (original and one (1) copy)
( ) Recorded assignment of Mortgage or Deed of Trust, or Certified True Copy
of assignment sent for recording
( ) Recordable assignments of Security Agreement/financing statement; if any
( ) Certified copies of interim assignments of Mortgage (if applicable)
Authorized Signature:
==============================================================================
FOR RFC INTERNAL USE ONLY
Repetitive Code:____________________ Date:_________________________
Wire Initiator's Initials:__________ Wire Verifier's Initials:_____
==============================================================================
*Unimproved Mortgage Loans secured by property intended for commercial
development only.
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EXHIBIT D/UNI
PROCEDURES AND DOCUMENTATION FOR WAREHOUSING
UNIMPROVED MORTGAGE LOANS
The following procedures and documentation requirements must be observed
in all respects by the Company. All documents must be satisfactory to the
Lender in its sole discretion. Terms used below, which are not otherwise
defined, shall have the meanings given them in the Agreement. All Requests for
Advance and Collateral Documents, should be submitted to the Lender in a top
tabbed, legal size manila file folder, hole-punched and acco-fastened in the
order specified in the Request for Advance. Each folder should be labelled
with the mortgagor name(s), Company loan number and Company name.
I. AT LEAST FIVE (5) BUSINESS DAYS PRIOR TO THE ADVANCE DATE
(except in the initial Unimproved Advances, in which case the following
documents must be received at least one (1) Business Days prior to the
Advance Date):
The Lender must receive a letter signed by the Company providing the
following information on the Pledged Mortgage:
(1) Mortgagor's name;
(2) Company's case/loan number;
(3) Expected Advance date;
(4) Original Mortgage Note Amount;
(5) Current Mortgage Note Amount;
(6) Purchase Price for Related Property;
(7) Estimation of Fair Market Value of Related Property, Prepared by the
Company (Properties Intended for Commercial Development only); and
(8) Original signed Request for Advance (Exhibit C-UNI).
II. AT LEAST ONE (1) BUSINESS DAY PRIOR TO THE DATE OF AN ADVANCE:
The Lender must receive the following:
(1) The original Mortgage Note, endorsed by the Company in blank and
without recourse. If the Company is not the named holder of the
Mortgage Note, the Mortgage Note must bear an endorsement from the
holder to the Company.
(2) If the Company is not the mortgagee on the Mortgage, a copy of the
assignment of Mortgage by the mortgagee to the Company which was sent
for recordation on or before the date of the Advance.
(3) Original recorded assignment of the Mortgage to the Lender or
certified true copy of assignment of the
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Mortgage sent for recording;
(4) Original assignment of the security agreement, if any, to the Lender
in recordable form but unrecorded;
(5) Original assignment of the UCC financing statements, if any, to the
Lender in recordable form but unrecorded;
(6) A copy of the title insurance commitment to issue a policy of title
insurance marked to show the final policy exceptions or, if
available, a copy of the title insurance policy; and
(7) Check payable to the Lender for the Warehousing Fee.
III. The Lender exclusively shall deliver the Mortgage Notes and
other original Collateral Documents in connection with any sale,
refinancing, foreclosure or other satisfaction of any Pledged Mortgage.
Such deliveries shall be made in accordance with procedures specified from
time to time by the Lender.
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