Public Securities Association
00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000 PSA
Telephone (000) 000-0000
MASTER REPURCHASE AGREEMENT
Dated as of: FEBRUARY 28,
2000
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Between:
IMPAC WAREHOUSE LENDING GROUP, INC.
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and
PMCC FINANCIAL CORPORATION AND PMCC MORTGAGE
CORPORATION
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1. Applicability
From time to time the parties hereto may enter into transactions in which
one party ("Seller") agrees to transfer to the other ("Buyer") securities or
financial instruments ("Securities") against the transfer of funds by Buyer,
with a simultaneous agreement by Buyer to transfer to Seller such Securities at
a date certain or on demand, against the transfer of funds by Seller. Each such
transaction shall be referred to herein as a "Transaction" and shall be governed
by this Agreement, including any supplemental terms or conditions contained in
Annex I hereto, unless otherwise agreed in writing.
2. Definitions
(a) "Act of Insolvency", with respect to any party, (i) the commencement by
such party as debtor of any case or proceeding under any bankruptcy, Insolvency,
reorganization, liquidation, dissolution or similar law, or such party seeking
the appointment of a receiver, trustee, custodian or similar official for such
party or any substantial part of its property, or (ii) the commencement of any
such case or proceeding against such party, or another seeking such an
appointment, or the filing against a party of an application for a protective
decree under the provisions of the Securities Investor Protection Act of 1970,
which (A) is consented to or not timely contested by such party, (B) results in
the entry of an order for relief, such an appointment, the issuance of such a
protective decree or the entry of an order having a similar effect, or (C) is
not dismissed within 15 days, (iii) the making by a party of a general
assignment for the benefit of creditors, or (iv) the admission in writing by a
party of such party's inability to pay such party's debts as they become due;
(b) "Additional Purchased Securities", Securities provided by Seller to
Buyer pursuant to Paragraph 4(a) hereof;
(c) "Buyer's Margin Amount", with respect to any Transaction as of any
date, the amount obtained by application of a percentage (which may be equal to
the percentage that is agreed to as the Seller's Margin Amount under
subparagraph (q) of this Paragraph), agreed to by Buyer and Seller prior to
entering into the Transaction, to the Repurchase Price for such Transaction as
of such date;
(d) "Confirmation", the meaning specified in Paragraph 3(b) hereof;
(e) "Income", with respect to any Security at any time, an principal
thereof then payable and all interest, dividends or other distributions thereon;
(f) "Margin Deficit", the meaning specified in Paragraph 4(a) hereof;
(g) "Margin Excess", the meaning specified in Paragraph 4(b) hereof;
(h) "Market Value", With respect to any Securities as of any date, the
price for such Securities on such date obtained from a generally recognized
source agreed to by the parties or the most recent closing bid quotation from
such a source, plus accrued Income to the extent not included therein (other
than any Income credited or transferred to, or applied to the obligations of,
Seller pursuant to Paragraph 5 hereof) as of such date (unless contrary to
market practice for such Securities);
(i) "Price Differential", with respect to any transaction hereunder as of
any date, the aggregate amount obtained by daily application of the Pricing Rate
for such Transaction to the Purchase Price for such Transaction on a 360 day per
year basis for the actual number of days during the period commencing on (and
including) the Purchase Date for such Transaction and ending on (but excluding)
the date of determination (reduced by any amount of such Price Differential
previously paid by Seller to Buyer with respect to such Transaction);
(j) "Pricing Rate", the per annum percentage rate for determination of the
Price Differential;
(k) "Prime Rate", the prime rate of U.S. money center commercial banks as
published in The Wall Street Journal;
(l) "Purchase Date", the date on which Purchased Securities are transferred
by Seller to Buyer;
(m) "Purchase Price", (i) on the Purchase Date, the price at which
Purchased Securities are transferred by Seller to Buyer, and (ii) thereafter,
such price increased by the amount of any cash transferred by Buyer to Seller
pursuant to Paragraph 4(b) hereof and decreased by the amount of any cash
transferred by Seller to Buyer pursuant to Paragraph 4(a) hereof or applied to
reduce Seller's obligations under clause (ii) of Paragraph 5 hereof;
(n) "Purchased Securities", the Securities transferred by Seller to Buyer
in a Transaction hereunder, and any Securities substituted therefor in
accordance with Paragraph 9 hereof. The term "Purchased Securities" to Paragraph
4(a) and shall exclude Securities returned pursuant to Paragraph 4(b);
(o) "Repurchase Date", the date on which Seller is to repurchase the
Purchased Securities from Buyer, including any date determined by application o
the provisions of Paragraphs 3(c) or 11 hereof;
(p) "Repurchase Price", the price at which Purchased Securities are to be
transferred from Buyer to Seller upon termination of a Transaction, which will
be determined in each case (including Transactions. terminable upon demand) as
to the sum of the Purchase Price and the Price Differential as of the date of
such determination, increased by any amount determined by the application of the
provisions of Paragraph 11 hereof;
(q) "Seller's Margin Amount", with respect to any Transaction as of any
date, the amount obtained by application of a percentage (which may be equal to
the percentage that is agreed to as the Buyer's Margin Amount under subparagraph
(c) of this Paragraph), agreed to by Buyer arid Seller prior to entering Into
the Transaction, to the Repurchase Price for such Transaction as of such date.
3. Initiation; Confirmation; Termination
(a) An agreement to enter into a Transaction may be orally or in writing at
the initiation of eithe Buyer or Seller. On the Purchase Date for the
Transaction, the Purchased Securities shall be transferred to Buyer or its agent
against the transfer of the Purchase price to an account of Seller.
(b) Upon agreeing to enter into a Transaction hereunder, Buyer or Seller
(or both), as shall be agreed, shall promptly deliver to the other party a
written confirmation of each Transaction (a "Confirmation"). The Confirmation
shall describe the Purchased Securities (including CUSIP number, if any),
identify Buyer and Seller and set forth (i) the Purchase Date, (ii) the Purchase
Price, (iii) the Repurchase Date, unless the Transaction is to be terminable on
demand, (iv) the Pricing Rate or Repurchase Price applicable to the Transaction,
and (v) any additional terms or conditions of the Transaction not inconsistent
with this Agreement. The Confirmation, together with this Agreement, shall
constitute conclusive evidence of the terms agreed between the Buyer and Seller
with respect to the Transaction to which the Confirmation relates, unless with
respect to the Confirmation specific objection is made promptly after receipt
thereof. In the event of any conflict between the terms of such Confirmation and
this Agreement, this Agreement shall prevail.
(c) In the case of transactions terminable upon demand, such demand shall
be made by Buyer to Seller, no later than such time as is customary in
accordance with the market practice, by telephone or otherwise on or prior to
the business day on which such termination will be effective. On the date
specified in such demand, or on the date fixed for termination in the case of
Transactions having a fixed term, termination of the Transaction will be
effected by transfer to Seller or its agent of the purchased Securities and any
Income in respect thereof received by Buyer (and not previously credited or
transferred to, or applied to the obligations of, Seller pursuant to Paragraph 5
hereof) against the transfer of the Repurchase Price to an account of Buyer.
4. Margin Maintenance
(a) If at any time the aggregate Market Value of all Purchased Securities
subject to all Transactions in which, a particular party hereto is acting as
Buyer is less than the aggregate Buyers Margin Amount for all such Transactions
(a "Margin Deficit"), the Buyer may by notice to Seller require in such
Transactions, at Seller's option, to transfer to Buyer cash or additional
Securities reasonably acceptable to Buyer ("Additional Purchased Securities"),
so that the cash and aggregate Market Value of the Purchased Securities,
including any such Additional Purchased Securities, will thereupon equal or
exceed such aggregate Buyer's Margin Amount (decreased by the amount of any
Margin Deficit as of such date arising from any Transaction in which such Buyer
is acting as Seller). (b) If at any time the aggregate Market Value of all
Purchased Securities subject to all Transactions in which a particular party
hereto is acting as Seller exceeds the aggregate Seller's Margin Amount for all
such Transactions at such time (a "Margin Excess"), then Seller may by notice to
Buyer require Buyer in such Transactions, at Buyer's option to transfer cash or
Purchased Securities to Seller, so that the aggregate Market Value of the
Purchased Securities, after deduction of any such cash or any Purchased
Securities so transferred, will thereupon not exceed such aggregate Seller's
Margin Amount (increased by the amount of any Margin Excess as of such date
arising from any Transactions in which such Seller is acting as Buyer).
(c) Any cash transferred pursuant to this Paragraph shall be attributed to
such Transactions as shall be agreed upon by Buyer and Seller.
(d) Seller and Buyer may agree, with respect to any or all Transactions
hereunder, that the respective rights of Buyer or Seller (or both) under
subparagraphs (a) and (b) of this Paragraph may be exercised only where a Margin
Deficit or Margin Excess exceeds a specified dollar amount or a specified
percentage of the Repurchase Prices for such Transactions (which amount or
percentage shall be agreed to by Buyer and Seller prior to entering into any
such Transactions).
(e) Seller and Buyer may agree, with respect to any or all Transactions
hereunder, that the respective rights of Buyer and Seller under subparagraphs
(a) and (b) of this Paragraph to require the elimination of a Margin Deficit or
a Margin Excess, as the case may be, may be exercised whenever such a Margin
Deficit or Margin Excess exists with respect to any single Transaction hereunder
(calculated without regard to any other Transaction outstanding under this
Agreement).
5. Income Payments
Where a particular Transaction's term extends over an Income payment date
on the Securities subject to that Transaction, Buyer shall, as the parties may
agree with respect to such Transaction (or, in the absence of any agreement, as
Buyer shall reasonably determine in its discretion), on the date such Income is
payable either (i) transfer to or credit to the account of Seller an amount
equal to such Income payment or payments with respect to any Purchased
Securities subject to such Transaction or (ii) apply the Income payment or
payments to reduce the amount to be transferred to Buyer by Seller upon
termination of the Transaction. Buyer shall not be obligated to take any action
pursuant to the preceding sentence to the extent that such action would result
in the creation of a Margin Deficit, unless prior thereto or simultaneously
therewith Seller transfers to Buyer cash or Additional Purchased Securities
sufficient to eliminate such Margin Deficit.
6. Security Interest
Although the parties intend that all transactions hereunder be sales and
purchases and not loans, in the event any such Transactions are deemed to be
loans, Seller shall be deemed to have pledged to Buyer as security for the
performance by Seller of its obligations under each such Transaction, and shall
be deemed to have granted to Buyer a security interest in, all of the Purchased
Securities with respect to all Transactions hereunder and all proceeds thereof.
7. Payment and Transfer
Unless otherwise mutually agreed, all transfers of funds hereunder shall be
in immediately available funds. All Securities transferred by one party hereto
to the other Party (i) shall be in suitable form for transfer or shall be
accompanied by duly executed instruments of transfer or assignment in blank and
such other documentation as the party receiving possessions may reasonably
request, (ii) shall be transferred on the book-entry system of a Federal Reserve
Bank, or (iii) shall be transferred by any other method mutually acceptable to
Seller and Buyer. As used herein with respect to Securities, "transfer" is
intended to have the same meaning as when used in Section 8-313 of the New York
Uniform Commercial Code or, where applicable, in any federal regulation
governing transfers of the Securities.
8. Segregation of Purchased Securities
To the extent required by applicable law, all Purchased Securities in the
possession of Seller shall be segregated from other securities in its possession
and shall be identified as subject to this Agreement. Segregation may be
accomplished by appropriate identification on the books and records of the
holder, including a financial intermediary or a clearing corporation. Title to
all Purchased Securities shall pass to Buyer an, unless otherwise agreed by
Buyer and Seller, nothing in this Agreement shall preclude Buyer from engaging
in repurchase transactions with the Purchased Securities or otherwise pledging
or hypothecating the Purchased Securities, but no such transaction shall relieve
Buyer of its obligations to transfer Purchased Securities to Seller pursuant to
Paragraphs 3, 4, or 11 hereof, or of Buyer's obligation to credit or pay Income
to, or apply Income to the obligations of, Seller pursuant to Paragraph 5
hereof.
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Required Disclosure for Transactions in Which Seller Retains Custody of the
Purchased Securities
Seller is not permitted to substitute other securities for those to this
Agreement and therefore must keep Buyer's securities segregated at all times,
unless in this Agreement Buyer grants seller the right to substitute other
securities. If the Buyer grants the right to substitute, this means that Buyer's
securities will likely be commingled with Seller's own securities during the
trading day. Buyer is advised that, during the trading day that Buyer's
securities are commingled with the Seller's securities, the [will]* [may]** be
subjected to liens granted by Seller to [its clearing bank]* [third parties]**
and may be used by Seller for deliveries on other securities transactions.
Whenever the securities are commingled, Seller's ability to resegregate
substitute securities for Buyer will be subject to satisfy [the clearing]*
[any]** lien or to obtain substitute securities.
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* Language to be used under 17 C.F.R. ss.403.4(c) if Seller is a government
securities broker or dealer other than a financial institution.
** Language to be used under 17 C.F.R.ss.403.4(d) if Seller is a financial
institution.
9. Substitution
(a) Seller may, subject to agreement with and acceptance by Buyer,
substitute other Securities for any Purchased Securities. Such substitution
shall be made by transfer to Buyer of such other Securities and transfer to
Seller of such Purchased Securities. After substitution, the substituted
Securities shall be deemed to be Purchased Securities.
(b) In Transactions in which the Seller retains custody of Purchased
Securities, the parties expressly agree that Buyer shall be deemed, for purposes
of subparagraph (a) of this Paragraph, to have agreed to and accepted in this
Agreement substitution by Seller of other Securities for Purchased Securities;
provided, however, that such other Securities shall have a Market Value at least
equal to the Market Value of the Purchased Securities for which they are
substituted.
10. Representations
Each of Buyer and Seller represents and warrants to the other that (i) it
is duly authorized to execute and deliver this Agreement, to enter into the
Transactions contemplated hereunder and to perform its obligations hereunder and
has taken all necessary action to authorize such execution, delivery and
performance, (ii) it will engage in such Transactions as principal (or, if
agreed in writing in advance of any Transaction by the other party hereto, as
agent for a disclosed principal),(iii) the person signing this Agreement on its
behalf is duly authorized to do so on its behalf (or on behalf of any such
disclosed principal), (iv) it has obtained all authorizations of any
governmental body required in connection with this Agreement and the
Transactions hereunder and such authorizations are in full force and effect and
(v) the execution, delivery and performance of this Agreement and the
Transactions hereunder will not violate any law, ordinance, charter, by-law or
rule applicable to it or any agreement by which it is bound or by which any of
its assets are affected. On the Purchase Date for any Transaction Buyer and
Seller shall each be deemed to repeat all the foregoing representations made by
it.
11. Events of Default
In the event that (i) Seller fails to repurchase or Buyer fails to transfer
Purchased Securities upon the applicable Repurchase Date, (ii) Seller or Buyer
fails, after one business day's notice, to comply with Paragraph 4 hereof, (iii)
Buyer fails to comply with Paragraph 5 hereof, (iv) an Act of Insolvency occurs
with respect to Seller or Buyer, (v) any representation made by Seller or Buyer
shall have been incorrect or untrue in any material respect when made or
repeated or deemed to have been made or repeated, or (vi) Seller or Buyer shall
admit to the other its inability to, or its intention not to, perform any of its
obligations hereunder (each an "Event of Default"):
(a) At the option of the nondefaulting party, exercised by written notice
to the defaulting party (which option shall be deemed to have been exercised,
even if no notice is given, immediately upon the occurrence of an Act of
Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed
immediately to occur.
(b) In all Transactions in which the defaulting party is acting as Seller,
if the nondefaulting party exercises or is deemed to have exercised the option
referred to in subparagraph (a) of the Paragraph, (i) the defaulting party's
obligations hereunder to repurchase all Purchased Securities in such
Transactions shall thereupon become immediately due and payable, (ii) to the
extent permitted by applicable law, the Repurchase Price with respect to each
such Transaction shall be increased by the aggregate amount obtained by daily
application of (x) the greater of the Pricing Rate for such Transaction or the
Prime Rate to (y) the Repurchase Price for such Transaction as of, the
Repurchase Date as determined pursuant to subparagraph (a) of this Paragraph
(decreased as of any day by (A) any amounts retained by the nondefaulting party
with respect to such Repurchase Price pursuant to clause (iii) of the
subparagraph, (B) any proceeds from the sale of Purchased Securities pursuant to
subparagraph (d)(l) of this Paragraph, and (C) any amounts credited to the
account of the defaulting party pursuant to subparagraph (e) of the Paragraph)
on a 360 clay per year basis for the actual number of days during the period
from and including the date of the Event of Default giving rise to such option
to but excluding the date of payment of the Repurchase Price as so increased,
(iii) all Income paid after such exercise or deemed exercise shall be retained
by the nondefaulting party and applied to the aggregate unpaid Repurchase Prices
owed by the defaulting party, and (iv) the defaulting party shall immediately
deliver to the nondefaulting party any Purchased Securities subject to such
Transactions then in the defaulting party's possession.
(c) In all Transactions in which the defaulting party is acting as Buyer,
upon tender by the nondefaulting party of payment of the aggregate Repurchase
Prices for all such Transactions, the defaulting party's right, title and
interest in all Purchased Securities subject to such Transactions shall be
deemed transferred to the nondefaulting party, and the defaulting party shall
deliver all such Purchased Securities to the non defaulting party.
(d) After one business day's notice to the defaulting party (which notice
need not be given if an Act of Insolvency shall have occurred, and which may be
the notice given under subparagraph (a) of this Paragraph or the notice referred
to in clause (ii) of the first sentence of this Paragraph), the nondefaulting
party may:
(i) as to Transactions in which the defaulting .party is acting as
Seller, (A) immediately sell, in a recognized market at such price or
prices as the nondefaulting party may reasonably deem satisfactory, any or
all Purchased Securities subject to such Transactions and apply the
proceeds thereof to the aggregate
unpaid Repurchase Prices and any other amounts owing by the defaulting
party hereunder or (B) in its sole discretion elect, in lieu of selling all
or a portion of such Purchased Securities, to give the defaulting party
credit for such Purchased Securities in an amount equal to the price
therefor on such date, obtained from a generally recognized source or the
most recent closing bid quotation from such a source, against the aggregate
unpaid Repurchase Prices and any other amounts owing by the defaulting
party hereunder; and
(ii) as to, the Transactions in which the defaulting party is acting
as Buyer, (A) purchase securities ("Replacement Securities") of the same
class and amount as any Purchased Securities that are not delivered by the
defaulting party to the nondefaulting party as required hereunder or (B) in
its sole discretion elect, in lieu of purchasing Replacement Securities, to
be deemed to have purchased Replacement Securities at the price therefor on
such date, obtained from a generally recognized source or the most recent
closing bid quotation from such a source.
(e) As to Transactions in which the defaulting party is acting as Buyer,
the defaulting party shall be liable to the nondefaulting party (i) with respect
to Purchased Securities (other than Additional Purchased Securities), for any
excess of the price paid (or deemed paid) by the nondefaulting party for
Replacement Securities therefor over the Repurchase Price for such Purchased
Securities and (ii) with respect to Additional Purchased Securities, for the
price paid (or deemed paid) by the nondefaulting party for the Replacement
Securities therefor. In addition, the defaulting party shall be liable to the
nondefaulting party for interest on such remaining liability with respect to
each such purchase (or deemed purchase) of Replacement Securities from the date
of such purchase (or deemed purchase until paid in full by Buyer. Such interest
shall be, at a rate equal to the greater of the Pricing Rate for such
Transaction or the Prime Rate.
(f) For purposes of this Paragraph 11, the Repurchase Price for each
Transaction hereunder in respect of which the defaulting party is acting as
Buyer shall not increase above the amount of such Repurchase Price for such
Transaction determined as of the date of the exercise or deemed exercise by the
nondefaulting party of its option under subparagraph (a) of this Paragraph.
(g) The defaulting party shall be liable to the nondefaulting party for the
amount of all reasonable legal or other expenses incurred by the nondefaulting
party in connection with or as a consequence of an Event of Default, together
with interest thereon at a rate equal to the greater of the Pricing Rate for the
relevant Transaction or the Prime Rate.
(h) The nondefaulting party shall have, in addition to its rights
hereunder, any rights otherwise available to it under an other agreement or
applicable law.
12. Single Agreement
Buyer and Seller acknowledge that and have entered hereunto and will enter
into each Transaction hereunder in consideration of and in reliance upon the
fact that, all Transactions hereunder constitute a single business and
contractual relationship and have been made in consideration of each other.
Accordingly, each of Buyer and Seller agrees (i) to perform all of its
obligations in respect of each Transaction hereunder, and that a default in the
performance of any such obligations shall constitute a default by it in respect
of all Transactions hereunder, (ii) that each of them shall be entitled to set
off claims and apply properly held by them in respect of any Transaction against
obligations owing to them in respect of any other Transactions hereunder and
(iii) that payments, deliveries and other transfers made by either of them in
respect of any Transaction shall be deemed to have been made in consideration of
payments, deliveries and other transfers in respect of any other Transactions
hereunder, and the obligations to make any such payments, deliveries and other
transfers may be applied against each other and netted.
13. Notices and Other Communications
Unless another address is specified in writing by the respective party to
whom any notice or other communication is to be given hereunder, all such
notices or communications shall be in writing or confirmed in writing and
delivered at the respective addresses set forth in Annex II hereto.
14. Entire Agreement; Severability
This agreement shall supersede any existing agreements between the parties
containing general terms and conditions for repurchase transactions. 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.
15. Non-assignability; Termination
The rights and obligations of the parties under this Agreement arid under
any Transaction shall not be assigned by either party without the prior written
consent of the other party. Subject to the foregoing, this Agreement and any
Transactions shall be binding upon and shall inure to the benefit of the parties
and their respective successors and assigns. This Agreement may be cancelled by
either party upon giving written notice to the other, except that this Agreement
shall, notwithstanding such notice, remain applicable to any Transactions then
outstanding
16. Governing Law
This Agreement shall be governed by the laws of the State of New York
without giving effect to the conflict of law principles thereof.
17. No Waivers, Etc.
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. No modification or waiver of any provision of this agreement and no
consent by any party to a departure herefrom shall be effective unless and until
such shall be in writing and duly executed by both of the parties hereto.
Without limitation on any of the foregoing, the failure to give a notice
pursuant to subparagraphs 4(a) or 4(b) hereof will not constitute a waiver of
any right to do so at a later date.
18. Use of Employee Plan Assets
(a) If assets of an employee benefit plan subject to any provision of the
Employee Retirement Income. Security Act of 1974 ("ERISA") are intended to be
used by either party hereto (the "Plan Party") in a Transaction, the Plan Party
shall so notify the other party prior, to the Transaction. The Plan Party shall
represent in writing to the other party that the Transaction does not constitute
a prohibited transaction under ERISA or is otherwise exempt therefrom, and the
other party may proceed in reliance thereon but shall not be required so to
proceed.
(b) Subject to the last sentence of subparagraph (a) of this Paragraph, any
such Transaction shall proceed only if Seller furnishes or has furnished to
Buyer its most recent available audited statement of its financial condition and
its most recent subsequent unaudited statement of its financial condition.
(c) By entering into a Transaction pursuant to this Paragraph, Seller shall
be, deemed (i) to represent to Buyer that since the date of Seller's latest such
financial statements, there has been no material adverse change in Seller's
financial condition which Seller has not disclosed to Buyer, and (ii) to agree
to provide Buyer with future audited and unaudited statements of its financial
condition as the y are issued, so long as it is a Seller in any outstanding
transaction involving a Plan Party.
19. Intent
(a) The parties recognize that each Transaction is a "repurchase agreement"
as that term is defined In Section 101 of Title 11 of the United States Code, as
amended (except insofar as the type of Securities subject to such Transaction or
the term of such Transaction would render such definition inapplicable), and a
"securities contract" as that term is defined in Section 741 of Title 11 of the
United States Code, as amended.
(b) It is understood that either party's right to liquidate Securities
delivered to it in connection with Transactions hereunder or to exercise any
other remedies pursuant to Paragraph 11 hereof, is a contractual right to
liquidate such Transaction as described in Sections 555 and 559 of Title 11 of
the United States Code, as amended.
20. Disclosure Relating to Certain Federal Protections
The parties acknowledge that they have been advised that:
(a) in the case of Transactions in which one of the parties is a broker or
dealer registered with the Securities and Exchange Commission ("SEC") under
Section 15 of the Securities Exchange Act of 1934 ("1934 Act"), the Securities
Investor Protection Corporation has taken the position that the provisions of
the Securities Investor Protection Act of 1970 ("SIPA") do not protect the other
party with respect to any Transaction hereunder;
(b) in the case of Transactions in which one of the parties is a government
securities broker or a government securities dealer registered with the SEC
under Section 15C of the 1934 Act, SIPA will not provide protection to the other
party with respect to any Transaction hereunder; and
(c) in the case of Transactions in which one of the parties is a financial
institution, funds held by the financial Institution pursuant to a Transaction
hereunder are not a deposit and therefore are not insured by the Federal Deposit
Insurance Corporation, the Federal Savings and Loan Insurance Corporation or the
National Credit Union Share Insurance Fund, as applicable.
IMPAC WAREHOUSING LENDING GROUP, INC. PMCC FINANCIAL CORPORATION AND PMCC
MORTGAGE CORPORATION
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxx
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Title Vice President Title CEO
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Date 3/6/00 Date 3/3/00
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ANNEX I
Supplemental Terms and Conditions
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ANNEX 1
SUPPLEMENTAL TERMS AND CONDITIONS
The Master Repurchase Agreement between Impac Warehouse Lending Group, Inc.
("Buyer") and PMCC FINANCIAL CORPORATION AND PMCC MORTGAGE CORPORATION
("Seller"), dated as of FEBRUARY 28, 2000 is amended and supplemented as set
forth below. All capitalized terms used herein that are defined in the Master
Repurchase Agreement are used herein as defined therein except to the extent
such terms are amended or supplemented herein.
1. Paragraph 1 of the Master Repurchase Agreement is amended by adding the
following after the word "instruments" and before the parenthetical
"("Securities")" in the second line thereof:
"or whole mortgage loans or any interests in any whole mortgage loans,
including, without limitation, mortgage participation certificates and
mortgage pass-through certificates".
2. Subparagraph 2(a) of the Master Repurchase Agreement is amended by
adding the following after the word "any" and before the word "bankruptcy" in
the second line thereof:
"conservatorship or receivership (within the meaning of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989)".
3. Subparagraph 2(a) of thee Master Repurchase Agreement is further amended
by adding the following after the word "a" and before the word "receiver" in the
third line thereof:
"conservator,".
4. Subparagraph 2(h) of the Master Repurchase Agreement is amended by
deleting the defined term "Market Value" and replacing it with the defined term
"Assumed Repurchase Value", and the term Market Value throughout the Master
Repurchase Agreement shall be deemed to denote the Assumed Repurchase Value.
5. Subparagraph 2(h) of the Master Repurchase Agreement is amended by
adding at the end thereof:
"except that the Assumed Repurchase Value of any Securities that are
loans secured by mortgages or deeds of trust on residential dwellings (such
loans, "Mortgage Loans") as of any date shall be the dollar amount ascribed
to such Mortgage Loans on that date by Buyer in its reasonable and sole
discretion, and shall not include any Income on such Mortgage Loans paid to
and held by Seller pursuant to Paragraph 5 hereof, and the Assumed
Repurchase Value of any Additional
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Purchased Securities shall be the fair market value thereof as determined by
Buyer in its reasonable and sole discretion"
6. Subparagraph 3(b) of the Master Repurchase Agreement is amended by
adding at the end of the first sentence of Paragraph 3(b):
"In the case of Transactions involving Securities that are
Mortgage Loans, (a) the Purchased Securities shall be identified on a
detailed listing to be provided by Seller to Buyer (a "Mortgage Loan
Schedule") attached to a Certificate of Seller in the form attached
hereto, (b) the Confirmation shall be sent by Seller to Buyer, (c) the
documents contained in the Mortgage File (as defined in Paragraph 7)
shall be delivered at the option of the Buyer to the Buyer, or the
Custodian, and held by the Custodian pursuant to the terms of a
Custody Agreement, dated of even date herewith (the "Custody
Agreement"), among Seller, Buyer and Custodian pursuant to which
Custodian shall, among other things, issue Trust Receipts, as defined
therein (the "Trust Receipts"), and (d) the Mortgage Loans shall be
serviced for Buyer by Seller pursuant to the Servicing Agreement,
dated of even date herewith (the "Servicing Agreement"), between
Seller and Buyer."
7. Paragraph 3(b) of the Master Repurchase Agreement is further amended by
deleting the last sentence and replacing it with the following:
"In the event of any conflict between the terms of such Confirmation
and this Agreement, the terms of such Confirmation shall prevail."
8. Subparagraph 3(c) of the Master Repurchase Agreement is amended by
adding at the end of the first sentence of Paragraph 3(c);
"In the case of Transactions involving Securities that are Mortgage
Loans, (i) which meet the requirements of the Seller's Warranties
Agreement, such demand by Buyer may not be made prior to 30 days following
the date of the Transaction in which the Securities were originally
conveyed to Buyer. provided no event of default has occurred, (ii) which do
not meet the requirements of the Seller's Warranties Agreement in all
material respects, such demand by Buyer may be made at any time; or (iii)
Seller may repurchase at any time, irrespective of whether the particular
Mortgage Loans(s) meets the requirements of the Seller's Warranties
Agreement. However, Buyer agrees not to terminate any transaction on demand
if there is a breach as to any particular loan (at any given time) and if
Seller repurchases that loan within one business day of receiving notice
thereof. In any case, such demand either by Buyer or by Seller shall be for
a repurchase of all Purchased Securities subject to the related Transaction
and such demand shall be made no later than 5:00 p.m. New York City time on
the business day preceding the day on which such termination will be
effective, which termination shall also be on a business day.
- 3 -
Upon receipt of the Repurchase Price in immediately available funds, Buyer
shall deliver the Trust Receipt for such Transaction to Custodian for
further disposition in accordance with the terms of the Custody Agreement."
9. Paragraph 4 of the Master Repurchase Agreement is amended by adding a
new subparagraph (f) as follows:
"(f) In the case of Transactions involving Securities that are
Mortgage Loans, (i) the percentage Used in calculating Buyer's Margin
Amount for such Transaction shall be the percentage specified in the
Confirmation and (ii) Additional Purchased Securities shall be limited to
obligations issued by the United States government or mortgaged-backed
securities issued by the Federal National Mortgage Association ("FNMA") or
guaranteed by the Governmental National Mortgage Association ("GNMA") and
otherwise acceptable to Buyer in its sole discretion, (iii) the provisions
of subparagraphs (b), (d) and (e) of this Paragraph shall not apply and
(iv) any cash transferred with respect to Transactions involving Securities
that are Mortgage Loans pursuant to Paragraph 4 or the last sentence of
Paragraph 5 shall be attributed to such transactions."
10. Paragraph 5 of the Master Repurchase Agreement is amended by adding the
following at the end of the last sentence of Paragraph 5:
"Notwithstanding the foregoing and except as "provided in Paragraph 11
of this Agreement, in the case of Transactions involving Securities that
are Mortgage Loans, Seller shall be deemed to hold for the benefit of, and
in trust for, Buyer all Income, including without limitation all scheduled
and unscheduled principal and interest payments, received by Seller with
respect to such Mortgage Loans. Seller shall service the Mortgage Loans, or
supervise the servicing of the Mortgage Loans, for the benefit of Buyer in
accordance with the terms of the Servicing Addendum. Seller will provide
Buyer with monthly pay-histories by the 7th day of each month with respect
to all Mortgage Loans then involved in any Transaction hereunder. Within
three business days of its receipt of each such report, Buyer either (i)
shall determine that a Margin Deficit has occurred and direct Seller to pay
to Buyer all income received in the period covered by such report to the
extent of such Margin Deficit, in which case Buyer shall be deemed to have
released any excess Income to Seller, or (ii) shall determine that a Margin
Deficit has not occurred, in which case Buyer shall be deemed to have
released all such Income to Seller."
11. Paragraph 6 of the Master Repurchase Agreement is amended by adding the
following after the word "the" and before the words "Purchased Securities" in
the fourth line thereof:
"Seller's right (including the power to convey title thereto), title
and interest in and to the".
- 4 -
12. Paragraph 6 of the Master Repurchase Agreement is amended by
adding the following after the words "Purchased Securities" and before the
word "with" in the fourth line thereof:
", the contractual right to receive payments, including the right to
payments of principal and interest and the right to enforce such payments,
arising from or under any of the Purchased Securities, the contractual
right to service each Mortgage Loan, any sub-servicing agreements within
respect to each Mortgage Loan, and all documents in each Mortgage File,".
13. Paragraph 6 of the Master Repurchase Agreement is amended by
adding the following after the word "all" and before the word "proceeds" in
the fifth line thereof:
"income, payments, products and".
14. Paragraph 6 of the Master Repurchase Agreement is amended by
adding the following after the word "thereof" and before the period in the
fifth line thereof:
"(the "Collateral")".
15. Paragraph 6 of the Master Repurchase Agreement is amended by
adding the following at the end of Paragraph 6:
"In such event, the parties hereto intend to create for the benefit of
Buyer, as secured party, a legally valid and enforceable first priority
perfected security interest in the Collateral. On or prior to the initial
Purchase Date, Seller shall cause to be filed in the appropriate filing offices
of the jurisdiction in which Seller maintains its place of business, or its
chief executive office if Seller has more than one place of business, in
accordance with applicable law, Uniform Commercial Code financing statements
naming Seller as debtor, Buyer as secured party, and the Collateral as
collateral."
16. Paragraph 7 of the Master Repurchase Agreement is amended by adding the
following at the end of the last sentence of Paragraph 7:
"In the case of Transactions involving Securities that are Mortgage
Loans, the transfer, of such Mortgage Loans for the purposes of this
Paragraph 7 shall include the delivery to the Buyer or Custodian, as
directed by the Buyer, of the following documents (the "Mortgage File")
with respect to each Mortgage Loan, as set forth in the Custody Agreement:
subject, however to the paragraph immediately following clause (xii)
below;"
(i) the original note or other evidence of indebtedness (the "Mortgage
- 5 -
Note") of the obligor thereon (each such obligor, a "Mortgagor"), endorsed
to the order of or assigned to Seller by the holder/payee thereof, without
recourse, and endorsed by Seller, without recourse, in blank;
(ii) the original mortgage, deed of trust or other instrument (the
"Mortgage") creating a first lien on the underlying property securing the
Mortgage Loan (the "Mortgaged Property"), naming Seller as the "mortgagee"
or "beneficiary" thereof, and bearing on the face thereof the address of
Seller as provided in Paragraph 13 of this Agreement, or, if the Mortgage
does not name Seller as the mortgagee/beneficiary, the Mortgage, together
with an instrument of assignment assigning the Mortgage, individually or
together with other Mortgages, to Seller and bearing on the face thereof
the address of Seller as provided in Paragraph 13 of this Agreement, and,
in either case, bearing evidence that such instruments have been recorded
in the appropriate jurisdiction where the Mortgaged Property is located
(or, in lieu of the original of the Mortgage or the assignment thereof, a
duplicate or conformed copy of the Mortgage or the instrument of
assignment, if any, together with a certificate of either the closing
attorney or an officer of the title insurer that issued the related title
insurance policy, or a certificate of receipt from the recording office,
certifying that such copy or copies represent true and correct copy(ies) of
the original(s) and that such original(s) have been or are currently
submitted to be recorded in the appropriate governmental recording office
of the jurisdiction where the Mortgaged Property is located);
(iii) an original assignment of Mortgage, in blank, which assignment
shall be in form and substance acceptable for recording and, in the event
that the Seller acquired the Mortgage Loan in a merger, the assignment must
be by "[Seller], successor by merger to [name of predecessor]";
(iv) any intervening assignment of the Mortgage not included in (ii)
above, including any warehousing assignment;
(v) any assumption, modification, extension or guaranty agreement;
(vi) the Lender's title insurance policy, or, if such policy has not
been issued, a written commitment or interim binder issued by the title
insurance company evidencing that the title insurance coverage is in effect
which commitment obligates the insurer to issue the lender's title
insurance policy;
(vii) if applicable, any policy or certificate of primary mortgage
guaranty insurance;
(viii) if the Mortgage Note or Mortgage or any other material document
or instrument relating to the Mortgage Loan has been signed by a person on
behalf of the Mortgagor, the power of attorney or other instrument that
authorized and
- 6 -
empowered such person to sign with recording information hereon;
(ix) with respect to FHA insured Mortgage Loans, the original FHA
Insurance Contract, together with a completed HUD Form 92080 "Mortgagee
Record Change" with the Purchasing Mortgagees name left b1ank;
(x) with respect to VA guaranteed Mortgage Loans, the original VA Loan
Guaranty Certificate; and
(xi) with respect to each Mortgage Loan which is subject to the
provisions of the Homeownership and Equity Protection Act of 1994, a copy
of a notice to each entity which was a purchaser or assignee of the
Mortgage Loan, satisfying the provisions of such Act and the regulations
issued thereunder, to the effect that the Mortgage Loan is subject to
special truth in lending rules; and
(xii) any other document as may be reasonably requested by Buyer.
"Notwithstanding the above, Seller shall, at least one Business Day prior
to the related Purchase Date, deliver to or cause to be delivered to Buyer
or Custodian, as directed by Buyer, originals or true copies of such
documents contained in the Mortgage File; and within 4 calendar days after
such purchase date Seller shall deliver or cause to be delivered to Buyer
or Custodian, as directed by Buyer, executed copies of such documents and
then within five business days after such purchase date, the Seller shall
deliver the originals (to the extent not previously delivered) of all such
documents in the Mortgage File, said documents will come directly from
Closing Agent. Failure by Seller to deliver or cause to be delivered such
documents within such the periods specified in the immediately preceding
sentence shall constitute an Event of Default under the Master Repurchase
Agreement. Seller shall cause each closing agent to hold any originals of
such documents in the Mortgage File held by such closing agent prior to
delivery thereof to Buyer or Custodian, as directed by Buyer, in trust and
as bailee for Buyer.
In addition to the documents contained in the Mortgage File, Seller shall
deliver to buyer on or prior to the Purchase Date for such Transaction a
security release certification acceptable to Buyer, certifying the release
of any security interest of a third party which may have existed with
respect to any of the Mortgage Loans subject to such Transaction during the
45-day period prior to the related Purchase Date.
Seller shall include on each Mortgage Loan Schedule a code indicating
whether the Mortgage Loan is subject to the Homeownership Act of 1994."
- 7 -
Seller shall cause to be maintained a servicing file ("Servicing File")
with respect to each Mortgage Loan that shall contain the following documents:
(a) copies of all the documents contained in the Mortgage File;
(b) any instrument necessary to complete identification of any exception
set forth in the exception schedule in the title insurance policy
(e.g., map or plat, restrictions, easements, sewer agreements, home
association declarations, etc.);
(c) a survey of the Mortgaged Property;
(d) any hazard insurance policy or flood insurance policy, with extended
coverage of the hazard insurance policy;
(e) the Mortgage Loan closing statement (Form HUD-1) and any other
truth-in-lending, real estate settlement procedure forms or other
disclosure statements required by law;
(f) the residential loan application, if applicable;
(g) any verification of employment and income;
(h) if applicable, any verification of acceptable evidence of source and
amount of downpayment;
(i) any credit report on the borrower under the Mortgage Loan;
(j) each residential appraisal report;
(k) a photograph of the Mortgaged Property;
(l) any tax receipts, insurance premiums, ledger sheets, payment records,
insurance claim files and correspondence, current and historical
computerized data files, underwriting standards used for origination
and all other papers and records developed or originated by the
Seller, any servicer or others, required to document the Mortgage Loan
or to service the Mortgage Loan; and
(m) any other document as may be requested by Buyer.
Seller shall cause to be delivered to Buyer each Servicing File upon Event of
Default by Seller
- 8 -
under the Master Repurchase Agreement.
17. Paragraph 8 of the Master Repurchase Agreement is amended by deleting
the last sentence of Paragraph 8 and substituting the following:
"Title to all Purchased Securities (except for Securities that are Mortgage
Loans) shall pass to Buyer. In the case of Purchased Securities that are
Mortgage Loans, upon transfer of the Mortgage Loans to Buyer as set forth
in Paragraph 3(a) of this Agreement and until termination of any
Transactions as set forth in Paragraphs 3(c) or 11 of this Agreement,
ownership of each Mortgage Loan, including each document in the related
Mortgage File, is vested in Buyer. Upon transfer of the Mortgage Loans to
Buyer as set forth in Paragraph 3(a) of this Agreement and until
termination of any Transactions as set forth in Paragraphs 3(c) or 11 of
this Agreement, record title in the name of Seller to each Mortgage shall
be retained by Seller in trust, for the benefit of Buyer, for the sole
purpose of facilitating the servicing and the supervision of the servicing
of the Mortgage Loans pursuant to the Servicing Agreement. Unless otherwise
agreed by Buyer and Seller, nothing in this Agreement shall preclude Buyer
from engaging in repurchase transactions with the Purchased Securities or
otherwise pledging or hypothecating the Purchased Securities, but no such
transaction shall relieve Buyer of its obligations to transfer Purchased
Securities (and, with respect to the Mortgage Loans, not substitutes
therefor) to Seller pursuant to Paragraphs 3, 4 or 11 hereof. Buyer, hereby
grants to Seller, to the maximum extent allowed by law, the right to
perform in Buyer's stead under any repurchase, reverse repurchase or
similar transaction in which Buyer has sold, loaned or otherwise
transferred the Mortgage Loans in the event that Buyer has defaulted on its
obligation to repurchase or accept redelivery of such Mortgage Loans in
conformity with the terms of any such transaction and Seller is not in
default in this Agreement. Upon termination of any Transactions as set
forth in Paragraph 3(c) of this Agreement, Buyer agrees to execute promptly
endorsements of the Mortgage Notes, assignments of the Mortgages and UCC-3
assignments, to the extent that such documents are prepared by Seller for
Buyer*s execution, are delivered to Buyer by Seller and are necessary to
reconvey, without recourse, to Seller and perfect title of like tenor to
that conveyed to Buyer to the related Mortgage Loans. Buyer agrees to
cooperate with Seller to identify documents that may be required to effect
such reconveyance and perfection of title to Seller."
18. Subparagraph 9(b) of the Master Repurchase Agreement is amended by
adding the following after the word "substituted" and before the period in
the fifth line thereof:
"; provided, further, that, in the case of Transactions involving
Securities that are Mortgage Loans, the retention by Seller of custody of
any document in any Mortgage File or otherwise shall be held by Seller in
trust Buyer for purposes of
- 9 -
servicing or supervising the servicing of the related Mortgage Loan and
shall not be deemed to constitute Seller's retention of custody of the
Purchased Securities for purposes of this subparagraph".
19. Paragraph 10 of the Master Repurchase Agreement is amended by
adding the following clauses at the end of the first sentence of Paragraph
10 after the word "affected" and before the period:
",(vi) Seller and Buyer have entered into the Transaction described in
each Confirmation contemporaneously with the sale of the Purchased
Securities by Seller to Buyer and the transfer of the Purchase Price by
Buyer to Seller, or, in the event that the Transaction is deemed to
constitute a loan, contemporaneously with the grant of the security
interest in the Collateral by Seller to Buyer pursuant to Paragraph 6
hereof and the transfer of the consideration therefor, consisting of the
extension of the Purchase Price, which represents the loan proceeds, by
Buyer to Seller, (vii) the board of directors of Seller has approved the
form of Confirmation and, the Master Repurchase Agreement, and such
approval is reflected in the minutes of said board, and (viii) each
Confirmation, the Master Repurchase Agreement, the Custody Agreement and
the Servicing Agreement have been and shall be, continuously, from the time
of their execution a corporate record of Seller."
20. Paragraph 11 is amended by inserting the words ", other than any
representation made by Seller as to a particular Mortgage Loan," after the
words "made by Seller or Buyer" on the fourth line thereof.
21. Paragraph 11 is further amended by deleting the word "or"
immediately preceding clause (vi) and by adding at the end of such clause,
immediately preceding the parenthesis, the following:
(vii)Either party hereto shall have reasonably determined that the
other party is or will be unable to meet its commitments under
this agreement, the Custody Agreement, the Guaranty, the Sellers
Warranties Agreement, the Servicing Agreement and any other
related agreement such agreements, the "Transaction Documents")
and shall have notified the other party of such determination and
such other party shall not haveresponded with appropriate
information to the contrary to the satisfaction of the notifying
party within 24 hours;
(viii) The Master Repurchase Agreement shall for any reason cease to
create a valid, first priority security interest in any of the
Purchased Securities purported to be covered thereby;
(ix) A final judgment by any competent court in the United States of
America for
- 10 -
the payment of money in an amount of at least $150,000 is
rendered against Seller, and the same remains undischarged or
unpaid for a period of 30 days during which execution of such
judgment is not effectively stayed;
(x) Seller shall fail to observe or perform any of the covenants or
agreements under any Transaction Document, which failure
materially and adversely affects the rights of the Buyer;
(xi) Any event of default or any event which with notice, the passage
of time or both shall constitute an event of default shall occur
and be continuing under any repurchase or other financing
agreement for borrowed funds or indenture for borrowed funds by
which Seller is bound or affected shall occur and be continuing;
provided, however, that Buyer hereby waives the exercise of its
rights for the defaults arising under any other agreement to
which the Seller is a party by reason of the prior arrest of Xxx
Xxxxxxxx and a loan officer employed by the Seller on charges of
allowing false qualifications to be included in applications for
FHA-backed mortgage loans (including, but not limited to, any
defaults arising from the removal of Xxx Xxxxxxxx as president
and chief executive officer of the Seller); provided, further,
that such waiver will not apply to the extent that such defaults
are cured by the Seller and subsequently reoccur;
(xii)In the good faith judgment of Buyer, a material adverse change
shall have occurred in the business, operations, properties,
prospects or condition (financial or otherwise) of Seller;
(xiii) Seller shall request written assurances as to the financial
well-being of Buyer and such assurances shall not have been
provided within 72 hours of such request;
(xiv)Seller shall be in default with respect to any nominal and
customary covenants under any debt contract or agreement, any
servicing agreement or any lease to which it is a party, which
default could materially and adversely affect the financial
condition of Seller (which covenants include, but are not limited
to, an Act of Insolvency of Seller or the failure of Seller to
make required payments under such contract or agreement as they
become due).
(xv) Any representation or warranty made by Seller in any Transaction
Document shall have been incorrect or untrue in any material
respect (to the extent that such representation or warranty does
not incorporate a materiality limitation in its terms) when made
or repeated or when deemed to have been made or repeated;
(xvi)Seller shall fail to promptly notify Buyer of (i) the
acceleration of any debt
- 11 -
obligation or the termination of any credit facility of Seller,
respectively; (ii) the amount and maturity of any such debt
assumed after the date hereof; (iii) any adverse developments
with respect to pending or future litigation involving Seller,
respectively; and (iv) any other developments which might
materially and adversely affect the financial condition of
Seller;
(xvii) Seller's audited annual financial statements or the notes
thereto or other opinions or conclusions stated therein shall be
qualified or limited by reference to Seller's status as a "going
concern";
(vxiii) Seller shall fail to maintain a tangible net worth of no less
than $10,000,000. The term "tangible net worth" shall mean the
excess of all of the Seller's assets (excluding any value for
goodwill, trademarks, patents, copyrights, organization expense
and other similar intangible items) over all its liabilities as
completed and determined in accordance with generally accepted
accounting principles consistently applied.
(xx) Seller shall fail to deliver to Buyer or Custodian as directed by
Buyer the documents in the Mortgage File within the time period
specified in Paragraph 7 of the Master Repurchase Agreement.
22. Subparagraph 11(d) of the Master Repurchase Agreement is amended by
deleting the words that precede Subparagraph 11(d)(i) and replacing them with
the words "The non-defaulting party may with concurrent notice to the defaulting
party:",
23. Subparagraph 11(d)(i) of the Master Repurchase Agreement is amended by
inserting the words "or in any other commercially reasonable manner" after the
word "market" and before the word "at", on the second line thereof.
24. Subparagraph 11(d)(i) of the Master Repurchase Agreement is amended by
adding the following after the word "hereunder" and before the semi-colon:
"and in either case upon the determination and receipt by Buyer, in a
manner deemed final and complete by Buyer in its sole discretion, of the
aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting
party, including, without limitation, any unpaid fees, expenses or other amounts
owing to the Custodian under the Custody Agreement, or to which Buyer is
otherwise entitled hereunder, Buyer shall transfer the portion of the Purchased
Securities and proceeds thereof, including without limitation, any proceeds of a
sale of the servicing rights to the Mortgage Loans, held by Buyer following such
receipt to either (i) Seller, if in
- 12 -
Buyer's sole discretion Seller is legally entitled thereto, (ii) such other
party or person as is in Buyer's reasonable judgment is legally entitled
thereto, or (iii) if Buyer cannot determine in its reasonable judgment the
person or party entitled thereto, a court of competent jurisdiction."
25. Paragraph 11 of the Master Repurchase Agreement is amended by adding a
new Subparagraph (j) as follows:
"(j) Each party acknowledges that any delay in the ability of the other
party to exercise its remedies pursuant to Paragraph 11 hereof shall
result in irreparable injury to such other party."
26. Paragraph 13 of the Master Repurchase Agreement is amended by deleting
the text thereof and replacing it with the following:
"Any notice or communication in respect of this Agreement will be
sufficiently given to a party if in writing and delivered in person, sent
by certified or registered mail, return receipt requested, or by overnight
courier or given by facsimile transfer at the following address or
facsimile number:
If to [BUYER]:
Impac Warehouse Lending Group, Inc.
0000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
If to [SELLER]:
PMCC FINANCIAL CORPORATION AND
PMCC MORTGAGE CORPORATION
0 XXXXXXXXXX XXXXX
XXXXXX XXXXXXX, XX 00000
Attention: XXXXX XXXXXXX
Facsimile Number: (000) 000-0000
A notice or communication will be effective:
(i) if delivered by hand or sent by overnight courier, on the
day and time it is delivered;
- 13 -
(ii) If sent by facsimile transfer, on the day it is sent so long
as the transmitting machine has provided an electronic
confirmation of such transmission; or
(iii)if sent by certified or registered mail, return receipt
requested, three days after dispatch.
Either party may by notice to the other change the address or
facsimile number at which notices or communications are to be
given to it."
27. Paragraph 14 of the Master Repurchase Agreement is amended by
inserting the words "with respect to Securities that consist of mortgage
loans" after the word "transactions" and before the period on the second
line thereof.
28. Intentionally Omitted
29. Intentionally Omitted
30. Subparagraph 20(c) is amended by deleting the words "the Federal
Savings and Loan Insurance Corporation" in the third line thereof and
substituting therefor the following:
"through either the Bank Insurance Fund or the Savings Association
Insurance Fund,".
31. This Annex I is executed and shall be construed as an agreement
supplemental to the Master Repurchase Agreement and, as provided in the
Master Repurchase Agreement, this Annex I forms a part thereof.
32. All of the covenants, stipulations, promises and agreements in
this Annex I shall bind the successors and assigns of the parties hereto,
whether expressed or not.
33. This Annex I may be executed in any number of counterparts, each
of which shall be an original but such counterparts shall together
constitute but one and the same instrument.
34. Seller shall promptly provide such further assurances or
agreements as Buyer may reasonably request in order to effect the purposes
of this Master Repurchase Agreement, including without limitation, the
delivery of any further documents to ensure that Buyer maintains a first
priority perfected security interest in the Collateral pursuant to
Paragraph 6 hereof and to carry into effect the purpose, of the Transaction
Documents.
35. Buyer is hereby appointed the attorney-in-fact of Seller for the
purpose of carrying out the provisions of this Agreement and taking any
action and executing or endorsing any instruments that Buyer may deem
necessary or advisable to accomplish the purposes hereof, including,
without limitation, completing or correcting any endorsement of a Mortgage
Note or assignment of a Mortgage, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality
of the foregoing, Buyer shall have the right and power
- 14 -
during the occurrence and continuation of any Event of Default to receive,
endorse and collect all checks made payable to the order of Seller
representing any payment on account of the principal of or interest on any
of the Collateral and to give full discharge for the same.
36. Seller shall promptly pay as and when payment is due all, and
Buyer shall not be liable for any, expenses, fees and charges incurred by
Buyer or Seller (other than the salaries and overhead of Buyer and its
affiliates) arising out of or related in any way, to the administration and
enforcement of this Agreement or the Custody Agreement ("Costs"),
including, without limitation, reasonable out-of-pocket legal expenses, the
fees and expenses of the Custodian, recording and filing fees and any costs
associated with reconveyance of the Purchased Securities and, in the event
that any Costs are incurred by Buyer, Seller shall reimburse Buyer on
demand of Buyer accompanied by a statement describing the circumstances and
the nature of the Cost, by wire transfer of immediately available federal
funds.
- 15 -
37. Seller and Buyer contemplate that all Mortgage Loans purchased by
Buyer and subject to repurchase pursuant to this Master Repurchase
Agreement shall have an average daily balance (in principal amount) of
$10,000,000 (the "Minimum Usage Amount"). If, within forty-five (45) days
of the date hereof, Seller shall not have sold any Mortgage Loans to Buyer
pursuant to this Master Repurchase Agreement, Seller shall promptly pay
Buyer $1,500. If at any time after (45) days after the Seller shall have
commenced selling Mortgage Loans to Buyer, pursuant to this Master
Repurchase Agreement but the average daily balance (in principal amount) of
all Mortgage Loans held by Buyer is less than the Minimum Usage Amount,
Seller shall pay Buyer a fee to be determined by Buyer in its sole
discretion, provided, however such fee shall not exceed $1,500 during any
thirty (30) day period.
38. This Annex I shall supersede any existing annex to or modification
of the Master Repurchase Agreement.
[BUYER] [SELLER]
IMPAC WAREHOUSE LENDING PMCC FINANCIAL CORPORATION AND PMCC
GROUP, INC. MORTGAGE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------ ---------------------------
Name: XXXXX X. XXXXXXX Name: XXXXX X. XXXXXXX
---------------------- -------------------------
Title: Vice President Title: CEO
--------------------- -------------------------
Date: 3/6/00 Date: 3/3/00
-------------------- -------------------------
CERTIFICATE OF SELLER
I, XXXXX X. XXXXXXX , hereby certify that I am the duly appointed CEO of
---------------- ---
PMCC MORTGAGE CORP. , a CORPORATION (The "Seller"). The undersigned hereby
------------------ -----------
represents, warrants and covenants on behalf of the Seller as follows:
1. Pursuant to the sale of the mortgage loans set forth on Annex 1 hereto
(the "Mortgage Loans") by the Seller to Impac Warehouse Lending Group ("Impac")
pursuant to a Master Repurchase Agreement, dated as of FEBRUARY 28, 2000 between
the Seller and Impac, the Seller hereby sells, transfers, assigns, sets over and
otherwise conveys to Impac all of its right (including the power to convey title
thereto), title and interest in and to each document, including, without
limitation, those documents set forth on Exhibit A hereto, held by or on behalf
of the Seller with respect to each Mortgage Loan.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: 3/3/00
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By: /s/ Xxxxx X. Xxxxxxx
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Name: XXXXX X. XXXXXXX
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Title: CEO
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ANNEX II
Names and Addresses for Communications Between Parties
CONFIRMATION TERMS OF TRANSACTIONS
(CERTIFICATE OF SELLER)
Impac Warehouse Lending Group, Inc.
0000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Gentlemen:
Reference is made to the Master Purchase Agreement (the "Master
Repurchase Agreement") dated as of February 28, 2000, between Impac Warehouse
Lending Group, Inc. (the "Buyer") PMCC FINANCIAL CORPORATION AND PMCC MORTGAGE
CORPORATION (the "Seller"). Capitalized terms used but not defined herein shall
have the respective meanings given to such terms in the Master Repurchase
Agreement. The Buyer and Seller hereby confirm the Buyer's purchase from the
Seller from time to time under the Master Repurchase Agreement of Purchased
Securities consisting of whole mortgage loans to be listed on Mortgage Loan
Schedules which will be transmitted from Seller to Buyer agrees to provide to
Buyer a Mortgage Loan Schedule in the form of "Exhibit A" hereto which must be
approved by Buyer before each transaction is completed. Upon the submission of a
Mortgage Loan Schedule, Seller agrees that the sale of the mortgage loans listed
thereon shall be under the terms and conditions of the Master Repurchase
Agreement and all modifications and addendums thereto.
As to each Mortgage Loan listed on the Mortgage Loan Schedules submitted
hereafter, the following pricing terms and conditions apply:
Purchase Price of Par
If Impac Funding Corporation executes a takeout
Commitment ("Takeout")
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then 98% of Par, or unless Second Mortgage,
then 96% of Par.
Transaction Fee: $60.00
To be paid by Seller within 30 days to Buyer.
Repurchase Date: On demand on the terms set forth
in Subparagraph 3 (c) of the Master Repurchase Agreement.
Pricing Rate: A per annum rate equal to the sum of
(i) the rate per annum publicly announced by the Bank of America
N.A. as its "Prime Rate" as such rate shall change from time to
time, plus (ii) 50 basis points. Upon the occurrence of an Event
of Default of the Seller, the number of basis points if (ii)
shall be increase to 300 but in no event shall the amount of
interest to be charged in the event of a default be less than two
times the transaction fee set forth above. The Pricing rate shall
be calculated on the basis of a 360-day year for the actual
number of days elapsed.
Buyer's Margin Amount Percentage: see above
Seller Account Deposit: $5,000.00
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For auditing or other purposes of the Buyer, the Seller may
receive a computer-generated trade confirmation with respect to each Transaction
that does not provide for countersignature thereof by the Seller. It is
understood and agreed that such confirmation shall be null and void and of no
force and effect with respect to this Transaction.
Pursuant to the sale of the mortgage loans set forth on each
Mortgage Loan Schedule (the "Mortgage Loans" ) by the Seller to Impac Warehouse
Lending Group, Inc. ("Impac") pursuant to the Master Repurchase Agreement, the
Seller hereby sells, transfers, assigns, sets over and otherwise conveys to
Buyer all of its right (including the power to convey title thereto), title and
interest in and to each Mortgage Loan, including, without limitation, those
mortgage loans to be listed on the Mortgage Loan Schedules submitted hereafter.
Kindly acknowledge your agreement to the foregoing by
signing and returning the enclosed extra copy of this letter.
PMCC FINANCIAL CORPORATION AND PMCC
MORTGAGE CORPORATION
Sincerely,
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: CEO
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Acknowledged and Agreed to:
IMPAC WAREHOUSE LENDING GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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