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EXHIBIT 10.11
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT (the "Agreement") is hereby made as of the 11th day
of August, 1998, by and between CREDIT DEPOT CORPORATION (the "Mortgage
Originator"), with an address of 000 XXXXXXXX XXXXXX XXXXXXXXXXX, XX 00000, and
STERLING BANK AND TRUST, FSB (the "Participant"), with an address of Xxx Xxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
WITNESSETH
The Mortgage Originator is the holder from time to time of various mortgage
loans evidenced by notes and secured by conventional, FHA-insured or
VA-guaranteed first or second mortgages, as the case may be, on improved one- to
four-family residential real properties (the "Mortgage Loans"). The Mortgage
Loans will be eligible for purchase in the secondary market by FNMA or FHLMC or
other investors, or are eligible to serve as collateral for mortgage-backed
securities issued by GNMA. The Mortgage Originator desires to sell a senior
participation interest (each a "Participation") in each of one or more pools
(the "Mortgage Pools") containing certain of the Mortgage Loans from time to
time to the Participant, and the Participant is willing to purchase such
Participations under the terms and conditions hereof
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, it is agreed:
1. Purchase of Participations. The Participant agrees to purchase from time to
time from the Mortgage Originator, but only in accordance with the terms and
conditions hereof, one or more loan participation certificates (the
"Participation Certificates"), substantially in the form of Exhibit A hereto,
each of which represents the Participant's Participation in a Mortgage Pool
created by the Mortgage Originator. The principal balance of each Participation
(the "Participation Principal Balance") shall be set out in the related
Participation Certificate and may be increased or decreased from time to time as
Mortgage Loans are added to or removed from the related Mortgage Pool or
transferred between Mortgage Pools and as any portion of the principal
collections with respect to the Mortgage Loans are paid to the Participant. The
principal terms relating to the purchase of each Participation, including but
not limited to the maximum participation percentage, the purchase price and the
interest rate on the Participation Principal Balance may be set out in the terms
addendum attached hereto as Exhibit B, as the same may be amended from time to
time (the "Terms Addendum"). Each Participation shall bear interest on the
related Participation Principal Balance at the rate specified as the "Interest
Rate" on the Terms Addendum; provided, however, that from the date on which any
Event of Default (defined below) shall be deemed to have occurred until the date
on which the Participation is paid in full, the Participation shall bear
interest at the Default Rate set forth on the Terms Addendum. The aggregate
outstanding principal balance of all Participations on any day shall not exceed
the amount specified as the "Maximum Participation Amount" on the Terms
Addendum,
2. The Mortgage Pools. The Mortgage Loans in a given Mortgage Pool from time to
time shall be listed on Schedule I to the related Participation Certificate (the
"Mortgage Loan Schedule"). The Mortgage Originator shall be responsible for
delivering a new Mortgage Loan Schedule upon each addition to or withdrawal from
each Mortgage Pool. Mortgage Loans may be added to or withdrawn from any
Mortgage Pool as described below:
(a) From time to time prior to the termination of this Agreement, the
Mortgage Originator may add one or more Mortgage Loans to a Mortgage Pool by
delivering a mortgage pool addition certificate, substantially in the form of
Exhibit C hereto (each, a "Mortgage Pool Addition Certificate"), to the
Participant for acknowledgment. If no Event of Default exists or no event that
with the passage of time would become an Event of Default, the Participant, in
its sole discretion, may accept the related Mortgage Loans by executing the
acknowledgment on the related Mortgage Pool Addition Certificate. If there is
more than one Participation outstanding at any time, the Participant shall
inform the
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Mortgage Originator as to which Mortgage Pool the addition of a Mortgage Loan
should be made. Upon the acceptance of a Mortgage Loan for inclusion in a
Mortgage Pool in accordance with this Paragraph 2, the Participation Principal
Balance for the related Participation shall be increased by the amount specified
in the related Mortgage Pool Addition Certificate and the Participant shall pay
the Mortgage Originator or, on behalf of the Mortgage Originator, a settlement
agent, in the Participant's sole discretion, an amount equal to such increase.
(b) From time to time prior to the termination of this Agreement, the
Mortgage Originator may request removal of any of the Mortgage Loans from a
Mortgage Pool by (i) delivering a mortgage pool withdrawal certificate,
substantially in the form of EXHIBIT D hereto (each, a "Mortgage Pool Withdrawal
Certificate"), to the Participant for acknowledgment and (ii) tendering to the
Participant the related "Withdrawal Amount" for each such Mortgage Loan (as such
term is defined in the Mortgage Pool Withdrawal Certificate). The Mortgage Pool
Withdrawal Certificate shall specify that a Mortgage Loan is being removed for
one of the following reasons: (A) the Mortgage Loan has been paid in full; (B)
the Mortgage Loan is being sold pursuant to a Takeout Commitment; (C) the
Mortgage Loan has been in the Mortgage Pool for more than la days; (D) a
representation or warranty contained in Paragraph 9 of this Agreement has been
breached; (E) the Mortgage Loan has become more than 30 days delinquent; or (F)
foreclosure proceedings are being started with respect to the Mortgage Loan. If
the Participant permits such withdrawal, upon receipt of the Withdrawal Amount,
(1) the Participant shall return to the Mortgage Originator (or such other party
as the Mortgage Originator may direct) the related note, mortgage and assignment
of mortgage, to the extent such documents were delivered to the Participant and
have not previously been resumed to the Mortgage Originator, and (11) the
Participation Principal Balance for the related Participation shall be reduced
by an amount equal to the Withdrawal Amount.
(c) From time to time the Participant in its sole discretion may
require the Mortgage Originator to transfer any Mortgage Loan from one Mortgage
Pool to another Mortgage Pool.
3. Restrictions on Transfer by Mortgage Originator. The Mortgage Originator
shall not sell, transfer or assign its retained interest in the Mortgage Loans
or any Mortgage Pool without the prior written consent of the Participant.
4. Required Withdrawals from the Mortgage Pool. The Participant, in its sole
discretion, may require the Mortgage Originator to withdraw from the Mortgage
Pool, in accordance with Paragraph 2(b) above, (i) any Mortgage Loan that
becomes more than 30 days delinquent or which has been in the Mortgage Pool for
a period of more than 90 days and (ii) any other Mortgage Loan.
5. Applications of Unscheduled Payments and Takeout Proceeds. If a Mortgage Loan
is foreclosed upon or is otherwise liquidated or if the Mortgage Loan is
withdrawn from a Mortgage Pool to be sold to a takeout investor, the related
Participation shall be repaid in full, together with any accrued interest
thereon, from the proceeds of such liquidation, foreclosure or takeout sale
prior to the payment of any amount to the Mortgage Originator with respect to
such Mortgage Loan.
6. Servicing. In consideration of the Participant! s agreement to purchase
Participations from the Mortgage Originator, the Mortgage Originator hereby
agrees to act as the servicer of the Mortgage Loans in each Mortgage Pool. So
long as any indebtedness remains outstanding on any of the Mortgage Loans, the
Mortgage Originator shall service such Mortgage Loans until all payments due
with respect to the related Participation are paid in full, and to that end
will, by way of illustration only and without limitation:
(a) Proceed with reasonable diligence to collect all payments
on the Mortgage Loans as and when they shall become due and payable, exercising
the same standard of care and using the same methods that the Mortgage
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Originator would use in servicing mortgage loans held in its portfolio or, if
higher, the standard of care and methods used in the mortgage loan servicing
industry for the servicing of loans held by others;
(b) At the direction of the Participant, remit to the Participant on or
before the tenth day of each month (i) the Participant's pro rata. share of the
amount of principal collected on each of the outstanding Mortgage Loans during
the previous month and (ii) accrued interest on the outstanding Participation
Principal Balance for each Participation as set forth in Paragraph I above;
provided, however that if any collections on a Mortgage Loan are due to
foreclosure or other liquidation of the Mortgage Loan, then such collections
shall be applied in accordance with Paragraph 5 above;
(c) Cause the related mortgagor to maintain hazard insurance policies,
including but not limited to policies of flood insurance if required, covering
the mortgaged premises in an amount at least equal to the outstanding mortgage
balance;
(d) Keep records pertaining to each mortgage note and the collections
thereon and permit the Participant to examine these and other records pertaining
to each of the Mortgage Loans at such times as the Participant may elect during
the Mortgage Originator's business hours; and
(e) Cause the taxes on the mortgaged premises securing each Mortgage
Loan to be examined annually and report any delinquent taxes to the Participant.
7. Servicing Compensation. The Mortgage Originator shall be entitled to retain,
as its sole compensation for servicing the Mortgage Loans subject to
Participations hereunder, all late charges payable and collected under the terms
of the Mortgage Loans. The Mortgage Originator shall not be entitled to any
additional fees for the performance of its duties as servicer of any Mortgage
Loan.
8. Representations and Warranties with Respect to Mortgage Loans. The Mortgage
Originator represents and warrants to the Participant as to each Mortgage Loan
as of the date of addition of such Mortgage Loan to a Mortgage Pool that:
(a) proceeds equal to the note amount have been disbursed to or for the
account of the mortgagor;
(b) it holds a mortgagee title insurance policy or a valid first or
second lien letter, as the case may be, from a title insurance company
acceptable to Participant with an insured closing letter from the underwriter,
showing the related mortgage to be a first or second mortgage lien, as the case
may be, on the mortgaged premises subject only to such easements, restrictions,
title irregularities and similar matters which do not have any adverse effect on
the ownership, appraised value or use of the mortgaged premises;
(c) the note and mortgage are genuine instruments binding and
enforceable against the mortgagor and subject to no defenses of any kind or
nature;
(d) there are no defaults existing under the note or mortgage;
(e) the mortgage has been duly recorded or has been forwarded to the
proper governmental office (and is in the proper form and accompanied by
appropriate fees) for recording;
(f) the principal balance remaining unpaid is the amount shown on the
Mortgage Loan Schedule the related Participation Certificate;
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(g) it holds a policy of insurance covering the mortgaged premises
insuring against loss or damage by fire and other hazards not less extensive
than extended coverage insurance, with an appropriate mortgagee loss payable
endorsement in favor of the Mortgage Originator and its assigns as mortgagee;
(h) at the time of closing each Mortgage Loan there was compliance by
the relevant parties with all of the applicable provisions of applicable federal
and state law and regulations;
(i) all information provided to the Participant with respect to each
Mortgage Loan is true, complete and accurate in all material respects and no
person or entity involved in the origination or servicing of the Mortgage Loan
has made any false representation or has failed to provide information that is
true, complete and accurate in connection with such transaction;
(j) the mortgage or deed of trust securing the Mortgage Loan is a
valid, existing and enforceable first or second lien on the mortgaged property,
as the case may be;
(k) the Mortgage Originator has no knowledge of any circumstances or
condition with respect to the Mortgage Loan or the related mortgagor's credit
standing that can reasonably be expected to cause the Mortgage Loan to become an
unacceptable investment or delinquent or to adversely affect the value of any
Participation;
(1) the Mortgage Originator is the sole owner and holder of the
Mortgage Loan, the Mortgage Originator has not assigned or pledged the Mortgage
Loan to secure any obligation other than the related Participation and the
Mortgage Originator has good and marketable title to the Mortgage Loan;
(m) the Mortgage Loan is subject to a contractual arrangement between
the Mortgage Originator and a takeout investor, the arrangement and takeout
investor both being acceptable to the Participant (including an agency of the
United States government, a seller-servicer approved by an agency of the United
States government or any other institutional investor) pursuant to which such
purchaser agrees to purchase such Mortgage Loan or guarantee another party's
purchase of the Mortgage Loan (a "Takeout Commitment");
(n) the Mortgage Loan has been underwritten in accordance with standard
underwriting requirements as specified by the Participant or the related takeout
investor, whichever are more stringent;
(o) the Mortgage Loan complies with all requirements set forth in the
Participant's seller-servicer guide as amended from time to time; and
(p) the Mortgage Loan is not subject to any right of rescission,
setoff, recoupment, abatement, counterclaim or defense (including the defense of
usury), other than any such rights provided under applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or hereafter
in effect, affecting the enforcement of creditors rights in general and general
principles of equity, and none of the Homebuyer or takeout investor has asserted
or manifested an intention to assert any right of rescission, setoff,
recoupment, counterclaim or defense, affecting any Mortgage Loan or Takeout
Commitment which is related to the Participation. The Mortgage Originator
covenants that it shall notify the Participant if it receives notice that any
Homebuyer or takeout investor asserts or manifests any intention to assert any
such right.
9. Further Assurances. The Mortgage Originator agrees to make such further
representations and warranties with respect to each Mortgage Loan and to take
such actions in connection with each Mortgage Loan (including the reaffirmation
of the representations and warranties contained herein) as the Participant may
require from time to time in connection with the financing of the
Participations.
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10. Delivery of Documents. Simultaneously with the purchase of any Participation
or the delivery of any Mortgage Pool Addition Certificate, the Mortgage
Originator shall deliver to the Participant, with respect to each Mortgage Loan
which is to become a part of or be added to the related Mortgage Pool, the
following documents:
(a) The original, fully executed mortgage note for such Mortgage Loan,
endorsed in blank without recourse, which note is hereby pledged to the
Participant to secure the performance of all of the Mortgage Originator's
obligations to the Participant incurred hereunder. The Participant will from
time to time, at the request of the Mortgage Originator and in accordance with
Paragraph 2(b), return to the Mortgage Originator such notes as have been paid
by the mortgagor or are otherwise needed by the Mort-age Originator to
facilitate the servicing of the Mortgage Loans.
(b) The mortgage or deed of trust with respect to such Mortgage Loan,
with evidence of recording thereon, or, if such document has not been returned
by the applicable recording office, a certified true and complete copy of such
document.
(c) an assignment of mortgage in recordable form of the individual
mortgage or deed of trust which secures the Mortgage Loan. Assignments delivered
under this Agreement may be recorded by the Participant at any time in the sole
discretion of the Participant.
(d) A copy of the Takeout Commitment relating to such Mortgage Loan,
which Takeout Commitment is hereby assigned to the Participant.
11. Events of Default. The Mortgage Originator shall be in default upon the
occurrence of any one or more of the following events (each, an "Event of
Default"):
(a) The Mortgage Originator shall fail to remit to the Participant any
principal or interest on a Participation as such amounts become due and payable
under the terms of this Agreement;
(b) The Mortgage Originator shall default in the performance of any
other agreement herein contained and such default continues for thirty (30) days
after written notice thereof shall be given the Mortgage Originator by the
Participant; or
(c) The Mortgage Originator shall become insolvent, bankrupt or make an
assignment for the benefit of its creditors, or a receiver or trustee is
appointed for the Mortgage Originator, or if bankruptcy, reorganization or
liquidation proceedings are instituted by or against the Mortgage Originator.
12. Remedies. Upon the occurrence of an Event of Default by the Mortgage
Originator:
(a) The Participant's commitment to increase the Participation
Principal Balance for any Participation in connection with the addition of a
Mortgage Loan to the related Mortgage Pool under this Agreement shall cease to
be in effect.
(b) The Participant shall take record title to each Mortgage Loan, may
endorse the notes in its favor, may record the assignments of mortgage and shall
have the right to service each of the Mortgage Loans. For such purposes, the
Mortgage Originator agrees that upon demand by the Participant, it will turn
over to the Participant all of its records pertaining to the Mortgage Loans and
all documents pertaining thereto, including, but not limited to, title insurance
policies, hazard insurance policies, mortgages, surveys and related papers. In
addition, the Mortgage Originator hereby grants full power and authority to the
Participant, acting in its name alone, or in its name as attorney-in-fact for
the
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Mortgage Originator, to do and perform any and all of the undertakings of the
Mortgage Originator hereunder, and in addition hereto, the power and authority
to demand, collect, xxx for all monies due or to become due on any of the
Mortgage Loans, to foreclose any of the Mortgage Loans by exercise of the power
of sale or by court action, and to exercise any and all other powers and rights
that the Mortgage Originator may now have or hereafter acquire with respect to
any of the Mortgage Loans. This power is declared to be coupled with an interest
and is irrevocable so long as the Participant shall have any interest in a
Participation hereunder.
(c) The Participant shall be entitled, at the Participant's option, to
require the Mortgage Originator to repurchase the Participation Certificate
relating to any Participation at an amount equal to the related Participation
Principal Balance as of the date of repurchase plus (i) any accrued and unpaid
interest on such Participation Principal Balance, (ii) any accrued and unpaid
fees owed to the Participant, and (iii) any out-of-pocket expenses paid by the
Participant for which the Participant is entitled to be reimbursed under the
terms of this Agreement.
13. Guaranty and Security. The Mortgage Originator's obligations hereunder shall
be guarantied and secured in a manner satisfactory to the Participant; provided
that any guaranty shall be deemed satisfactory if substantially in the form of
EXHIBIT E.
14. Servicing by Participant. When the Participant is servicing the Mortgage
Loans or exercising the power and authority granted by Paragraph 12 above, it
shall be entitled to receive the late charges referred to in Paragraph 7 above.
15. Fees and Expenses. Upon the addition of a Mortgage Loan to, or the removal
of a Mortgage Loan from, any Mortgage Pool, the Mortgage Originator shall pay to
the Participant the fees and expenses set forth in the Terms Addendum.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
17. Entire Agreement: Severability. This Agreement shall supersede any existing
agreement and shall constitute the entire agreement between the parties relating
to the subject matter hereof Each provision and agreement herein shall be
treated as separate and independent from any other provision or agreement herein
and shall be enforceable notwithstanding the unenforceability of any such other
provision or agreement.
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18. Notices and Other Communications. Any and all notices, statements, demands
or other communications hereunder may be given by a party to the other by mail,
facsimile, telegraph, messenger or otherwise to the address listed below, or
such other address as may be specified in a notice of change of address
hereafter received by the other:
MORTGAGE ORIGINATOR: Credit Depot Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
PARTICIPANT: Sterling Bank and Trust, FSB
Xxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
All notices, demands and requests hereunder may be made orally, to be confirmed
promptly in writing, or by other communication as specified in the preceding
sentence.
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19. Waiver: Amendment. No express or implied waiver of any Event of Default by
either party shall constitute a waiver of any other Event of Default and no
exercise of any remedy hereunder by any party shall constitute a waiver of its
right to exercise any other remedy hereunder. No modification or waiver of any
provision of this Agreement and no consent by any party to a departure herefrom
shall be effective unless in writing and duly executed by both of the parties
hereto.
20. Termination of Agreement. This Agreement shall terminate 90 days from the
date hereof, provided, however, that the Mortgage Originator's obligations shall
not be terminated until the Participant has received all amounts due with
respect to all Participations. Notwithstanding the foregoing, if the Mortgage
Originator shall not be entitled to add any Mortgage Loans to a Mortgage Pool
after the date f termination specified in such notice.
IN WITNESS WHEREOF, the parties hereto have caused this Participation Agreement
to be duly executed by their authorized officers the day and year first above
written.
Credit Depot Corporation
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as "Mortgage Originator"
by: /s/ Xxxxxxx Xxxxxxxx
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its: Vice-President
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Sterling Bank and Trust, FSB
as "Participant"
by: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
its: Executive Director of Mortgage Banking
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