Exhibit 10.103
WAREHOUSE SECURITY AGREEMENT
WAREHOUSE SECURITY AGREEMENT, dated as of June 24, 1998, between E-LOAN,
INC., a California corporation (the "Assignor"), and GE CAPITAL MORTGAGE
SERVICES, INC., a Now Jersey corporation, as security agent (the "Security
Agent") for the benefit of Xxxxxx River Funding Inc. (the "Lender") as the
landlord under the Warehouse Credit Agreement, dated as of June 19, 1998, among
the Assignor, the Lender and GB Capital Mortgage Services, Inc., as Agent (as
the same may from time to time be amended or supplemented, the "Warehouse Credit
Agreement"). Capitalized terms used herein and not defined herein shall have the
meanings specified in the Warehouse Credit Agreement.
W I T N E S S E T H:
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WHEREAS, the Assignor desires to receive Advances under the Warehouse
Credit Agreement;
WHEREAS, the Lender has agreed to provide the Advances to the Assignor on
the terms and conditions specified in the Warehouse Credit Agreement; and
WHEREAS, it is a condition precedent to the effectiveness of the Warehouse
Credit Agreement and the making of the Advances that the Assignor shall have
executed and delivered this Warehouse Security Agreement to the Security Agent;
NOW, THEREFORE, in consideration of the benefits to the Assignor the
receipt and sufficiency of which am hereby acknowledged, the Assignor hereby
makes the following representations and warranties to the Security Agent and
hereby covenants and agrees with the Security Agent as follows:
1. SECURITY INTERESTS. As security for the Prompt and complete payment
and Performance when due of all of the Obligations, the Assignor does hereby
sell, pledge, assign, hypothecate, transfer and grant unto the Security Agent,
for the benefit of the Lender, a continuing security interest of first priority
in all of the right, title and interest of the Assignor in, to and under all of
the following, whether now existing or hereafter from time to time acquired (all
of the following, collectively, the "Collateral"):
(i) all Mortgage Loans which from time to time are, or are
required to be, pledged or delivered to the Security Agent hereunder or
pursuant to the Warehouse Credit Agreement, and all Mortgage Loans as to
which any Collateral Document is, or is required to be, pledged or
delivered to the Security Agent hereunder or pursuant to the Warehouse
Credit Agreement, in each case including, without limitation, each Mortgage
Note evidencing each such Mortgage Loan and each Mortgage securing each
such Mortgage Note;
(ii) all Mortgage-backed Securities which from time to time are,
or an required to be, pledged or delivered to, or registered by book-entry
in the name of, the
Exhibit 10.103
Security Agent or any designee thereof or agent therefor hereunder or
pursuant to the Warehouse Credit Agreement;
(iii) all Liquid Assets which am from time to time pledged or
delivered to, or registered by book-entry in the name of, the Security
Agent or any designee thereof or agent therefor hereunder and pursuant to
the Warehouse Credit Agreement and all instruments or certificates
evidencing any such Liquid Assets;
(iv) all General Intangibles, Instruments and Chattel Paper
evidencing, securing, supporting or relating to Mortgage Loan or
Mortgage-backed Securities described in clauses (i) or (ii) above,
including, without limitation, causes of action, foreclosure suits and any
judgments therein, relating thereto;
(v) all Receivables, Contracts, and Contract Rights relating to
Mortgage Loans or Mortgage-backed Securities described in clause (i) or
(ii) above and pursuant to the Warehouse Credit Agreement, including,
without limitation, (A) all Purchase Commitments, (B) all Master
Commitments, (C) all commitments to insure or guarantee and all guarantees,
(D) all insurance policies and any claims thereunder, (E) rights to
maintain any escrows, (F) rights under any agreement pursuant to which any
Mortgage Loan or Mortgage-backed Security described in clauses (i) or (ii)
above was purchased or issued, as the case may be, and (G) all escrow
accounts and all monies, securities and instruments deposited or required
to be deposited in the escrow accounts;
(vi) (vi) all rights of the Assignor to service any Mortgage Loan
described in clause (i) above and to receive any payment or compensation
for the. servicing of any such Mortgage Loan, and all rights to receive
from any mortgagor on whose behalf the Assignor has advanced funds, and
whose Mortgage Loan is described in clause (i) above or whose Mortgage Loan
secures a Mortgage-backed Security described in clause (ii) above, payment
or reimbursement of the amount so advanced;
(vii) all Collateral Documents and all other documents,
instruments, certificates, forms, statements, surveys, appraisals,
correspondence, files, tapes, discs, cards, computer programs, accounting
records and other information and data relating to any or all of the
foregoing;
(viii) all Interest Rate Hedging Contracts with respect to the
Mortgage Loan described in clause (i) above; and
(ix) any proceeds of any and all of the foregoing.
2. POWER OF ATTORNEY. The Assignor hereby constitutes and appoints each
of the Security Agent and the Lender its true and lawful attorney, irrevocably,
with fun power after the occurrence of a Default(in the name of such Assignor or
otherwise) to act, require, demand, receive, compound and give acquittance for
any and all monies and claims for monies due or to become due to the Assignor
under or arising out of the Collateral, to execute and deliver any consents,
approvals, powers of attorney, assignments of mortgages, purchase contracts or
any other documents related to the Collateral, to endorse any check or other
instruments or orders in connection therewith and to file any claims or take any
action or institute any proceedings which
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Exhibit 10.103
the Security Agent or the Lender may deem to be necessary or advisable in the
promises, which appointment as attorney is coupled with an interest.
3. PAYMENTS ON THE COLLATERAL. If, while this Security Agreement is in
effect, the Assignor shall become entitled to receive or shall receive any
principal or interest or any other payment in respect of the Collateral, the
Assignor agrees to accept the same as the Security Agent's agent and to hold the
same in trust on behalf of the Security Agent, and, if required to do so
pursuant to the terms of the Warehouse Credit Agreement, to deliver the same
forthwith to the Security Agent. All sums of money so paid in respect of the
Collateral which are received by the Assignor and paid to the Security Agent
shall be credited against the Obligations. So long as no Default or Event of
Default has occurred and is continuing, any amounts received by the Security
Agent in respect of the stated interest on any Collateral in excess of the
amounts then owing to the Lender pursuant to the Warehouse Credit Agreement and
the Note shall, upon request of the Assignor, be remitted to the Assignor
subject to the deduction therefrom by the Security Agent of such amount as the
Agent shall reasonably designate as a reserve for application to any fees or
accrued interest payable by the Assignor with respect to the calendar month in
which such amounts are received by the Security Agent.
4. RELEASE OF COLLATERAL; SUBSTITUTION. (a) So long as no Default or
Event of Default has occurred and is continuing or would result therefrom, upon
the Assignor's request therefor and a prepayment by the Assignor of Advances in
an amount sufficient to cause the amount of Advances outstanding to be less than
or equal to the Borrowing Base (calculated without reference to any Collateral
which the Assignor requests be released from the Lien granted pursuant hereto)
and a deposit by the Assignor of such amount as the Agent shall reasonably
designate as a reserve for application to any fees or accrued interest payable
under the Warehouse Credit Agreement with respect to the calendar mouth in which
such prepayment occurs, the Security Agent shall, within one Business Day after
the later of the receipt of such request or such prepayment and deposit, release
from the Lien granted pursuant hereto and deliver to the Assignor (i) the
Collateral corresponding to such Mortgage Loan(s) or Mortgage-backed
Security(ies) and (ii) the Collateral Documents pertaining thereto.
(b) So long as no Default or Event of Default has occurred and is
continuing, in lieu of any required prepayment of principal pursuant to Section
4.02 of the Warehouse Credit Agreement, the Assignor may, subject to the terms
and conditions of the Warehouse Credit Agreement and the consent of the Agent,
substitute and pledge additional Eligible Mortgage Loans and/or Eligible
Nonconforming Mortgage Loans (together with all required Collateral Documents
with respect thereto) having a Collateral Value in an amount such that
immediately after giving effect to such substitution or addition, such
prepayment is no longer required.
(c) In the event that the Security Agent shall be required to release
any Collateral pursuant to the provisions of Sections 4.03 or 4.04 of the
Warehouse Credit Agreement, the Security Agent shall release any such Collateral
consisting of Mortgage Loans under the following circumstances:
(i) To an Investor (or its custodian) under a bailee agreement
in the form of either Schedule I or Schedule II attached hereto (a "Bailee
Agreement"), as and to the extant required hereunder, for its examination
and purchase, which Bailee
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Exhibit 10.103
Agreement shall provide instructions to such investor (or its custodian) to
remit payment directly to the Security Agent (but in no event shall such amounts
be paid to the Security Agent later than the date of settlement) or to return
the Collateral to the Security Agent within 21 days, in accordance with the
Security Agent's instructions, and subject to the following:
(A) such delivery may be made upon the receipt by the
Security Agent of a written request from the Assignor at least one
Business Day before such delivery is to be made. provided that such
delivery is in compliance with the terms of the applicable Purchase
Commitment:
(B) before the Security Agent shall deliver any Collateral
to GNMA, FHLMC, FNMA or any other Investor or to any custodian for
such Investor, the Assignor shall have delivered to the Security Agent
copies of all necessary or appropriate forms, schedules and/or other
documents requested by the Security Agent to effect delivery and
payment thereof in accordance with instructions to be provided by
Security Agent; and
(C) the forms described In the preceding clause (B) shall
be delivered to GNMA, FNMA, FHLMC or such other Investor, or to a
custodian for any thereof, as the case may be, in connection with the
delivery of the Collateral.
(ii) If a pledged Collateral Document requires correction, to the
Assignor under cover of a bailee letter requiring the document to be
returned to the Security Agent within 14 days as set forth hereunder,
(d) In the event that the Security Agent shall be required to release
any Collateral pursuant to the provisions of Section 4.03 or 4.04 of the
Warehouse Credit Agreement, the Security Agent shall release any such Collateral
consisting of Mortgage-backed Securities to the Investor under the related
Purchase Commitment on the settlement date specified in such Purchase Commitment
by book-entry transfer of such Mortgage-backed securities to the account of such
Investor against the wire transfer to the account of the Security Agent of the
full purchase price specified in such Purchase Commitment; provided that the
Security Agent shall have received from the Investor or the Assignor appropriate
instructions with respect to such delivery, transfer and payment.
(e) Notwithstanding anything in the foregoing to the contrary, the
Security Agent shall not be obligated to take any action in respect of any
release of any Collateral which would adversely affect any possessory lien in
favor of the Leader in such Collateral unless such release, is for the purpose
of terminating such possessory lien.
5. RIGHTS OF THE SECURITY AGENT. The Security Agent shall not be liable
for failure, to collect under or realize upon any Collateral or any part
thereof, or for any delay in to doing nor shall it be under any obligation to
take any action whatsoever with regard thereto. If an Event of Default or
Default has occurred and is continuing, the Security Agent may thereafter,
without notice, exercise all rights, privileges or options pertaining to any
Collateral as if it were the absolute owner thereof, upon such terms and
conditions as it may determine, all without liability
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Exhibit 10.103
except to account for property actually received by it, but the Security Agent
shall have no duty to exercise, any of the aforesaid rights, privileges or
options and shall not be responsible for any failure to do so or delay in so
doing.
6. REMEDIES. The Assignor agrees that, if any Event of Default shall have
occurred and be continuing, then and in every such case, subject only to any
mandatory requirements of applicable law then in effect, the Security Agent, in
addition to any rights now or hereafter existing under applicable law, shall
have all rights of a secured creditor under the Uniform Commercial Code in all
relevant jurisdictions and may:
(a) Instruct the obligor or obligors on any agreement, instrument or
other obligation constituting the Collateral to make any payment required by the
terms of such instrument, agreement or obligation directly to the Security Agent
and, in connection therewith, complete and deliver to such obligors the
notification letters from the Assignor delivered to the Security Agent pursuant
to Section 10(c) hereof; and
(b) Sell, assign or otherwise liquidate, or direct the Assignor to
sell, assign or otherwise liquidate, any or all of the Collateral or any part
thereof, on a servicing released basis or otherwise, and take possession of the
proceeds of any such see, assignment or liquidation. Any Collateral may be sold,
assigned, or otherwise disposed of under one or more contracts or as an
entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at
such place or places and on such terms as the Security Agent may, in compliance
with any mandatory requirements of applicable law, determine to be commercially
reasonable. To the extent permitted by any such requirement of law, the Security
Agent on behalf of the Lender and/or the holder of the Note may bid for and
become the purchaser of the Collateral, or any item thereof, offered for sale in
accordance with this Section 6 without accountability to the Assignor (except to
the extent of surplus money received as Provided in Section 8). The Security
Agent need give the Assignor only such notice of disposition as shall be
required under the provisions of applicable law.
7. WAIVER OF CLAIMS. (a) Except as otherwise provided in this Agreement,
THE ASSIGNOR hereby waives, TO THE EXTENT PERmitTED BY APPLICABLE LAW, NOTICE
AND JUDICIAL HEARINg IN connection with the security agent's DISPOSITION OF ANY
OF THE COllATERAL., INCLUDING, WITHOUT LimitATION, ANY AND ALL PRIOR NOTICE AND
heARING FOR any prejudgment remedy or remedies AND ANY SUCH RIGHT WHICH the
ASSIGNOR WOUld OtheRWISe HAVE UNDER the CONSTITUTION or any statutes of the
united states or of any state, and the Assignor hereby further waives, to the
extent permitted by law:
(i) All requirements as to the time, place and terms of sale or
other requirements with respect to the enforcement of the Security Agent's
rights hereunder; and
(ii) All rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable law
In order to prevent or delay the enforcement of this Agreement or the
absolute sale of the Collateral or any
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Exhibit 10.103
portion thereof, and the Assignor, for itself and all who may claim under
it, insofar as it now or hereafter lawfully may, hereby waives the benefit
of all such laws.
Any sale of, or the grant of options to purchase, or xxx other realization upon,
any Collateral shall operate to divest all right, fide, interest, claim and
demand, either at law or in equity, of the Assignor therein and thereto, and
shall be a perpetual bar both at law and in equity against the Assignor and
against any and all Persons claiming or attempting g to claim the Collateral so
sold, optioned or realized upon, or any part thereof, from, through and under
the Assignor.
(b) The Assignor hereby waives any Claims for damages or otherwise
which it may have against the Security Agent for any acts the Security Agent may
take as Security Agent hereunder pursuant to the direction of the Lender, the
Agent or the Collateral Agent. In the event that a dispute should arise over
whether any item of the Collateral is subject to the rights of a third party,
the Security Agent agrees, at the request of the Lender, the Agent or the
Collateral Agent, to deliver such Collateral to the Lender, the Agent or the
Collateral Agent, as the case may be, or its designee, and the Assignor agrees,
to hold the Security Agent harmless in respect of claim of such third parties
arising from such delivery.
8. APPLICATION OF PROCEEDS. The proceeds of any Collateral disposed of
pursuant to Section 6 shall be applied as follows:
(a) To the payment of any and all expenses and fees (including
reasonable attorneys' fees) incurred by the Security Agent in disposing of
Collateral and my and all amounts incurred by the Security Agent in connection
therewith;
(b) Next, any surplus then remaining to the payment of the
Obligations it the following order of priority:
(i) all interest accrued and unpaid on the Advances made;
(ii) the principal amount owing on the Advances made;
(iii) the Fees then owing to the Lender and the Security Agent;
and
(iv) all other Obligations then owing.
(c) (c) If the Commitment is then terminated, and no other Obligation
is outstanding, any surplus then remaining shall be paid to the Assignor,
subject, however, to the rights of the holder of any then existing Lien of
which, the Security Agent has actual notice (without investigation); it being
understood that the Assignor shall remain liable to the extent of any deficiency
between the amount of the proceeds of the Collateral and the aggregate amount of
the sums referred to in clauses (a) and (b) of this Section 8 with respect to
the Assignor.
9. DISCONTINUANCE OF PROCEEDINGS. In case the Security Agent shall have
instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Security Agent, then and in every such case the Assignor, the
Security Agent and each holder of any of the Obligations shall be restored
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Exhibit 10.103
to their former positions and rights hereunder with respect to the Collateral
subject to the security interest created under this Agreement and all rights,
remedies and powers of the Security Agent shall continue as it no such
proceeding had been instituted.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ASSIGNOR. The
Assignor represents and warrants on the date hereof, on each date on which any
Advance is made and on each date on which any Mortgage Loans or Mortgage-backed
Securities are delivered to the Security Agent for the purposes of pledge
hereunder, and covenants that:
(a) NECESSARY FILINGS. All filings, registrations and recordings
necessary or appropriate to create, preserve, protect and perfect the security
interest granted by the Assignor hereby in respect of the Collateral have been
accomplished and the security interest granted pursuant to this Agreement in and
to the Collateral constitutes a valid and enforceable perfected security
interest therein superior and prior to the rights of all other Persons therein
and subject to no other Liens (except that the Collateral may be subject to
Liens permitted pursuant to Section 8.01 of the Warehouse Credit Agreement) and
is entitled to all the rights, priorities and benefits afforded by the Uniform
Commercial Code or other relevant law as enacted in any relevant jurisdiction to
perfected security Interests.
(b) NO LIENS. The Assignor is, and as to Collateral acquired by it
from time to time after the date hereof the Assignor will be, the owner of all
the Collateral free from any Lien or other right, title or interest of any
Person (other than Liens permitted pursuant to Section 8.01 of the Warehouse
Credit Agreement), and the Assignor shall defend the Collateral against all
claims and demands of a Persons at any time claiming the same or any interest
therein adverse to the Lender;
(c) OTHER FINANCING STATEMENTS. There is no financing statement (or
similar statement or instrument of registration under the law of any
jurisdiction) covering or purporting to cover any interest of any kind in the
Collateral and so long as the Commitment has not been terminated, the Note is
outstanding or any of the Obligations, remain unpaid, the Assignor will not
execute or authorize to be filed In any public office any financing statement
(or similar statement or instrument of registration under the law of any
jurisdiction) or statements relating to the Collateral, except financing
statements filed or to be filed in respect of and covering the security
interests granted hereby by the Assignor.
(d) CHIEF EXECUTIVE OFFICES; RECORDS. The chief executive office of
the Assignor is located at the address set forth opposite its signature hereto.
The Assignor will not move such office except to such new location as the
Assignor may establish in accordance with the last sentence of this Section
10(d). Except as provided in the Warehouse Credit Agreement, the originals of
all documents evidencing the Collateral and the only original books of account
and records of the Assignor relating thereto are, and will continue to be, kept
at such chief executive office, or at such new locations as the Assignor may
establish in accordance with the last sentence of this Section 10(d). Except as
provided in the Warehouse Credit Agreement, all of the Collateral is, and will
continue to be, maintained at, and controlled and directed (including, without
limitation, for general accounting purposes) from, such office locations shown
above, or such new locations as the Assignor may establish in accordance with
the last sentence of this Section 10(d). The Assignor shall not establish a new
location for such offices
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until (i) it shall have given to the Security Agent not less than 45 days' prior
written notice of its intention so to do, clearly describing such new location
and providing such other information in connection therewith as the Security
Agent may reasonably request, and (ii) with respect to such new location, it
shall have taken all action, satisfactory to the Security Agent, to maintain the
security interest of the Security Agent in the Collateral intended to be,
granted hereby at all times fully perfected and in full force and effect.
(e) OBLIGOR NOTICES. The Assignor shall deliver to the Security Agent
at the time of the initial pledge of Collateral to the Security Agent hereunder,
and at such times thereafter as the Security Agent shall request, such number of
form letters to obligors on Mortgage Loans as the Security Agent shall
reasonably request, such letters to be on the Assignee's letterhead, addressed
in blank, signed by the Assignor and instructing such obligors that, commencing
with the payment date following receipt thereof, all payments to be made by such
obligor on such obligor's Mortgage Loan shall henceforth be made to the security
Agent or its designee. The Security Agent agrees that it will only complete
and/or deliver any such letter to an obligor on a Mortgage Loan if an Event of
Default shell have occurred and be continuing and any cure period provided in
the Warehouse Credit Agreement shall have expired. The Security Agent shall give
the Assignor notice of its delivery of any such letters.
(f) PROTECTION OF SECURITY. The Assignor will do nothing to Impair
the rights of the Security Agent or Lender in the Collateral.
(g) NO DISPOSITION, ETC. Without the prior written consent of the
Security Agent, the Assignor agrees that it will not sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with respect to, the
Collateral, nor will it create, incur or permit to exist any pledge, lien,
mortgage, hypothecation, security interest, charge, option or any other
encumbrance with respect to any of the Collateral, or any interest therein, or
any proceeds thereof, except for Liens permitted pursuant to Section 8.01 of the
Warehouse Credit Agreement and the Lien and security interest provided for by
this Agreement and except for any sale or other disposition as permitted under
Sections 4(c)(i) and 4(d) of this Agreement.
(h) FURTHER ACTIONS. Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Security Agent from
time to time such lists, descriptions and designations of the Collateral,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, reports and other assurances or
instruments and take such further steps relating to the Collateral, and other
property or rights covered by the security interest hereby granted, which the
Security Agent deems reasonably appropriate or advisable to perfect, preserve or
protect its security interest in the Collateral. The Assignor will pay any
applicable filing fees and related expenses. The Assignor authorizes the
Security Agent to file any such financing statement without the signature of the
Assignor to the extent permitted by applicable law.
(i) MORTGAGE FILES AND RELATED RECORDS. The Assignor, if it is
servicing any Mortgage Loans pledged as Collateral or any Mortgage Loans which
secure a Mortgage-backed Security pledged as Collateral, will maintain (or will
cause any subservicer thereof to maintain) satisfactory and complete records
with respect to such Mortgage Loans (including but not limited to any applicable
credit/origination files) sufficient to permit the proper servicing and
efficient
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Exhibit 10.103
sale thereof. Upon the occurrence of an Event of Default; the Assignor will (i)
deliver and turn over to the Security Agent, or at the option of the Security
Agent shall provide the Security Agent with access to, at any time on demand of
the Security Agent, the mortgage files maintained by the Assignor with respect
to, and all books, records and computer software, tapes or disks relating to,
the Mortgage Loans pledged as Collateral hereunder and/or (ii) allow the
Security Agent to occupy the premises of the Assignor where such mortgage files,
books, records and computer tapes an located and utilize such premises and the
equipment located thereon to service, administer and collect the Collateral.
(j) MORTGAGE NOTES. The Assignor shall notify the Security Agent (x)
of (i) any payment default in respect of any pledged Collateral which has
continued for 30 days, 60 days or 90 days, respectively, and any other material
default In any other term of any pledged Collateral, (ii) the occurrence of an
Insolvency Event (of which the Borrower has knowledge) in respect of any obligor
on any Mortgage Loan pledged as Collateral and (iii) the commencement of
foreclosure or similar proceedings in respect of the premises which secure any
Mortgage Loan pledged as Collateral, such notice to be delivered not later than
three (3) Business Days following the occurrence thereof in the cast of clauses
(i) and (iii) and promptly upon the Assignee's receiving notice or otherwise
becoming aware thereof in the case of clause (ii) and (y) immediately upon the
payment by any mortgagor of principal under any Mortgage Note then hold by the
Security Agent hereunder in an amount of $1,000 or more in excess of the
regularly scheduled installment thereon, identifying the loan number of such
Mortgage Loan and the amount so paid.
(k) RECOURSE. This Agreement Is made with full recourse to the
Assignor and pursuant to and upon all the warranties, representations, covenants
and agreements on the part of the Assignor contained herein, in the Warehouse
Credit Agreement and otherwise in writing in connection herewith or therewith.
11. SEVERABILITY. Any provision of this Security Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability In any jurisdiction shall not invalidate or render
unenforceable such provision In any other jurisdiction.
12. NO WAIVER, REMEDIES CUMULATIVE. The Security Agent shall not by any
act, delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by the
Security Agent, and then only to the extent therein set forth. A waiver by the
Security Agent of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Security Agent would
otherwise have on any future occasion. No failure or delay on the part of the
Security Agent or any holder of the Note in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing
between the Assignor and the Security Agent or the holder of the Note shall
operate as it waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other fight power
or privilege hereunder or thereunder. The rights, powers and remedies herein or
in any other Credit Document provided are cumulative and may be exercised singly
or concurrently, and are not
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Exhibit 10.103
exclusive of any rights, powers or remedies which the Security Agent or the
holder of the Note would otherwise have. No notice to or demand on the Assignor
in any case shall entitle the Assignor to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Security Agent or this holder of the Note to any other or further action in any
circumstances without notice or demand. In the event that the Security Agent
shall bring any suit to enforce any of its rights hereunder and shall be
entitled to judgment, then the Security Agent may recover the reasonable
expenses, including attorneys' fees incurred in such suit and the amounts
thereof shall be included in such judgment.
13. INDEMNITY; REIMBURSEMENT. (a) The Assignor agrees to indemnify,
reimburse and hold the Security Agent the holder of the Note, and their
respective officers, directors, employees, representatives, agents and assigns
(hereinafter in this Section 13 referred to individually as an "Indemnitee" and
collectively as the "Indemnitees") harmless from any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses or disbursements (including reasonable attorneys' fees and
expenses) (for the purposes of this Section 13 the foregoing are collectively
called "expenses") of whatsoever kind or nature which may be imposed on,
asserted against or incurred by any of the Indemnitees in any way relating to or
arising out of this Agreement, any other Credit Document or the documents
executed in connection herewith and therewith or in any other way connected with
the administration of the transactions contemplated hereby and thereby or the
enforcement of any of the terms of or the preservation of any rights under any
thereof, or in any way relating to or arising out of the ownership, ordering,
purchase, delivery, control, acceptance, financing, possession, condition, sale,
return or other disposition or use of the Collateral (including, without
limitation, latent or other defects, whether or not discoverable), the violation
of the laws of any country, state or other governmental body or unit; any tort
(including, without limitation, claims arising or imposed under the doctrine of
strict liability. or for or on account of injury to or the death of any Person
(including any Indemnitee), or for property damage) or any contract claim;
provided that no Indemnitee shall be indemnified pursuant to this Section 13(a)
for expenses to the extent caused by the gross negligence or willful misconduct
of such Indemnitee. The Assignor agrees that upon written notice by any
Indemnitee of any assertion that could give rise to an expense, it shall assume
full responsibility for the defense thereof. Each Indemnitee agrees to use its
best efforts to promptly notify the Assignor of any such assertion of which such
Indemnitee has knowledge.
(b) Without limiting the application of Section 13(a), the Assignor
agrees to pay, or reimburse the Security Agent for, any and all fees, costs and
expenses of whatever kind or nature incurred by it in connection with (i) the
handling of the Collateral and its other obligations hereunder and the
enforcement of its rights hereunder and (ii) the creation, preservation or
protection of the Security Agent's Lien on, and security interest in, the
Collateral, including, without limitation, any fees, costs and expenses in
connection with the transmittal and delivery of any Mortgage Loan or related
documents to any third party, the delivery, storage, pledge, registration or
sale of Mortgage-backed Securities, all fees and tuft in connection with the
recording or filing of instruments and documents in public offices, payment of
discharge of any taxes or Liens upon or in respect of the Collateral, premiums
for insurance With respect to the Collateral and all other fees, costs and
expenses (including, without limitation, the reasonable fees and out-of-pocket
expenses of any legal counsel, public accountant and other expert or advisor
retained by the Security Agent) in connection with protecting, maintaining or
preserving
-10-
Exhibit 10.103
the Collateral and the Lender's interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting any actions, suits or
proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section 13(a) or (b), the
Assignor agrees to pay, indemnify and hold each Indemnitee harmless from and
against any expenses which such Indemnitee may suffer, expend or incur in
consequence of or growing out of any representation by the Assignor in this
Agreement or any of the other Credit Documents or in any statement or writing
contemplated by or made or delivered pursuant to or in connection with this
Agreement or any of the other Credit Documents.
(d) If and to the extent that the Obligations of the Assignor under
this Section 13 are unenforceable for any reason, the Assignor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
14. DEFINITIONS. The following terms shall have the meanings herein
specified unless the context otherwise requires. Such definitions shall be
equally applicable to the singular and plural form of the terms defined.
"Agreement" shall mean this Warehouse Security Agreement, as modified,
supplemented or amended from time to time.
"Assignor" shall have the meaning provided in the first paragraph of this
Agreement.
"Chattel Paper" shall have the meaning assigned that term under the UCC.
"Collateral" shall have the meaning provided in Section 1.
"Contract Rights" shall mean all rights of the Assignor (including, without
limitation, all rights to payment) under each Contract.
"Contracts" shall mean all contracts between the Assignor and one or more
additional parties.
"Documents" shall have the meaning assigned that term under the UCC.
"General Intangibles" shall have the meaning assigned that term under the
UCC.
"Indemnitee" shall have the meaning specified in Section 13.
"Instrument" shall have the meaning assigned that term under the UCC.
"Interest Rate Hedging Contract" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate insurance arrangement, future or option contract in respect of U.S.
government securities or Mortgage-backed Securities or any other agreement,
arrangement or security position designed to provide protection to the Assignor
against fluctuations in interest rates.
-11-
Exhibit 10.103
"Obligations" shall mean: (a) all indebtedness, fees, obligations and
liabilities (including, without limitation, guarantees and other contingent
liabilities) of the Assignor to the Lender, the Agent, the Security Agent or the
holder of the Note arising under or in connection with any Credit Document; (b)
any and all sums advanced by the Security Agent in order to preserve the
Collateral or preserve its security interest in the Collateral and any other
amounts owing to the Security Agent hereunder; and (c) in the event of any
proceeding for the collection or enforcement of any indebtedness, obligations or
liabilities of the Assignor referred to in clause (a), after an Event of Default
shall have occurred and be continuing, the reasonable expenses of re-taking,
holding, preparing for sale or lease, selling or otherwise disposing or
realizing on the Collateral, or f any exercise by the Security Agent of its
rights hereunder, together with reasonable attorneys' fees and court costs.
"Proceeds" shall have the meaning assigned that term under the UCC or under
other relevant law and, in any event, shall include, but not be limited to, (i)
any and all proceeds of any insurance, indemnity or warranty or payable to the
Security Agent or the Assignor from time to time with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever) made or due and
payable to the Assignor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Collateral by any governmental authority (or any Person acting under color of
governmental authority), (iii) any and all securities issued with respect to any
of the Collateral (whether issued by GNMA, FNMA, FHLMC or otherwise) and (iv)
any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral (including, without limitation, under any
Purchase Commitment, Master Commitment or guaranty or commitment for guaranty).
"Receivables" shall mean any "account' as such is defined in the UCC, now
or hereafter owned by the Assignor and, in any event shall include, but shall
not be limited to, all rights to payment whether now in existence or arising
from time to time hereafter, including, without limitation, rights evidenced by
an account, note, contract, security agreement, chattel paper or other evidence
of indebtedness of security, together with (i) all security pledged, assigned,
hypothecated or granted to or hold by the Assignor to secure the foregoing, (ii)
all of the Assignor's right, title and interest in and to any property or goods,
the sale of which give rise thereto, (iii) all guarantees, endorsements and
identifications on, or of, any of the foregoing, (iv) all powers of attorneys
for the execution of any evidence of indebtedness or security or underwriting in
connection therewith, (v) all books, records, ledger cards, data and invoices
relating thereto, (vi) all evidences of the filing of financing statements and
other statements and the registration of other instruments in connection
therewith and amendments thereto, notices to other creditors or secured parties
and certificates from filing or other registration officers, (vii) all credit
information, reports, memoranda relating thereto and (viii) all other writings
related In any way to the foregoing,
"Security Agent" shall have the meaning provided in the first paragraph of
this Agreement.
"UCC" shall mean the Uniform Commercial Code as in effect on the date
hereof in the State of New Jersey or in any other relevant jurisdiction, as
applicable.
-12-
Exhibit 10.103
'Warehouse Credit Agreement" shall have the meaning provided in the first
paragraph of this Agreement.
15. NOTICES. All notices and other communications hereunder shall be made
at the addresses, in the manner and with the effect provided in Section 11.02 of
the Warehouse Credit Agreement
16. OBLIGATIONS ABSOLUTE. The obligations of the Assignor under this
Agreement shall be absolute and unconditional and shall remain in full force and
effect without regard to, and shall not be released, suspended, discharged,
terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation: (a) any renewal, extension, amendment or
modification of, or addition or supplement to or deletion from, any of the
Credit Documents or any other instrument or agreement referred to therein, or
any assignment or transfer of any thereof; (b) any waiver, consent, extension,
indulgence or other action or inaction under or in respect of any such
instrument or agreement or this Agreement or any exercise or non-exercise of any
right, remedy, power or privilege under or in respect of this Agreement or any
other Credit Document; (c) any furnishing of any additional security to the
Security Agent or any acceptance thereof or any sale, exchange, release,
surrender or realization of or upon any security by the Security Agent; or (d)
any invalidity, irregularity or unenforceability of all or part of the
Obligations or of any security therefor.
17. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and assigns of
the parties hereto, including, but not limited to, the Collateral Agent;
provided, however, that the Assignor may not assign or transfer any Of its
rights or obligations hereunder without the prior written consent of the
Security Agent. All agreements, statements, representations and warranties made
by the Assignor herein or in any certificate or other instrument delivered by
the Assignor or on its behalf under this Agreement or any Credit Document shall
be considered to have been relied upon by the Security Agent and shall survive
the execution and delivery of this Agreement and the other Credit Documents
regardless of any investigation made by the Security Agent or on its behalf.
18. HEADINGS, DESCRIPTIVE, ETC. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
All references to Sections are to Sections of this Agreement unless otherwise
specified. The words "hereof," "herein," "hereto," and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
19. ASSIGNOR'S DUTIES. It is expressly agreed, anything herein contained
to the contrary notwithstanding, that the Assignor shall remain liable to
perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Security Agent shall not have any obligations or liabilities
with respect to any Collateral by reason of or arising out of this Agreement,
nor shall the Security Agent be required or obligated in any manner to perform
or fulfill any of the obligations of the Assignor under or with respect to any
Collateral.
-13-
Exhibit 10.103
20. TERMINATION; RELEASE. After the termination of the Commitment, and
when all Obligations have been paid in fall and the Note is no longer
outstanding, this Agreement shall terminate, and the Security Agent, at the
request and expense of the Assignor, will execute and deliver to the Assignor
the proper instruments acknowledging the termination of this Agreement, and will
duly assign, transfer and deliver or cause to be delivered to the Assignor
(without recourse and without any representation or warranty) such of the
Collateral as may be in possession of the Security Agent and has not theretofore
been sold or otherwise applied or released pursuant to this Agreement.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same Instrument.
22. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE. (a) This Agreement
and the rights and obligations of the parties hereunder shall be construed is
accordance with and be governed by the law of the State of New York, without
regard to principles of conflicts of laws. Any legal action or proceeding
against the Assignor with respect to this Agreement may be brought in the courts
of the State of New Jersey located in Camden County or in the United States
Federal Courts located in Camden County, and, by execution and delivery of this
Agreement, the Assignor hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts.
(b) The Assignor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in the
courts referred to in clause (a) above and further hereby irrevocably waives and
agrees not to plead or claim in any such court that any such action, or
proceeding brought in any such court has been brought in an inconvenient forum.
23. WAIVER OF JURY TRIAL. THE ASSIGNOR AND THE SECURITY AGENT HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OR ANY PARTY RELATING HERETO
OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURITY AGENT TO
ENTER INTO THIS AGREEMENT ON BEHALF OF THE LENDER.
IN WITNESS WHEREOF, the Assignor and the Security Agent have caused this
Security Agreement to be duly executed and delivered on the day and year first
above written.
-14-
Exhibit 10.103
0000 Xxxxxxx Xxxxxxx, Xxxxx 000 X-XXXX, XXX.,
Xxxxxx, XX 00000 as Assignor
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
By: /s/ XXXXXX XXXXXXXXX
-------------------------------
Name: XXXXXX XXXXXXXXX
-------------------------------
Title: CEO
-------------------------------
Three Executive Campus GE CAPITAL MORTGAGE SERVICES, INC.
Xxxxxx Xxxx, XX 00000 as Assignor
Attention: Xxxxxx Xxxxxxxxx
Telephone No: (000) 000-0000
Facsimile No.: (609) 7528 By: /s/ XXXX XXXXXXX
-------------------------------
Name: XXXX XXXXXXX
-------------------------------
Title: VICE PRESIDENT
-------------------------------
-15-
Exhibit 10.103
SCHEDULE I
FORM OF BAILEE AGREEMENT
BAILEE AGREEMENT
Bailee Agreement, dated as of ________________, 199__ (this "Agreement"),
by and between ____________________________ [INSERT NAME OF THE
INVESTOR/PURCHASER] (the "Purchaser") and GE Capital Mortgage Services, Inc., in
its capacity as Security Agent for the Lender referred to below (the "Security
Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the term of that certain Warehouse Credit Agreement
dated as of _____________, 199__ (the "Warehouse Credit Agreement"), by and
among Xxxxxx River Funding Inc. (the "Lender"), __________________ [INSERT NAME
OF THE BORROWER] (the "Borrower") and GE Capital Mortgage Services, Inc., as
Agent thereunder for the Lender, the Lender may, from time to time, make
warehouse loans to the Borrower for the purposes of the Borrower to fund
residential mortgage loans (collectively, "Mortgage Loans");
WHEREAS, the, Borrower has granted to the Security Agent for the benefit of
the Lender a security interest in and to the mortgage notes and the other
mortgage loan documentation relating to the Mortgage Loan (collectively, the
"Collateral") as security for the Warehouse Loans;
WHEREAS, the Purchaser and the Borrower have entered into one or more
purchase commitments or purchase contracts (the "Purchase Contacts") pursuant to
which the Purchaser proposes to purchase from the Borrower, from time to time,
certain Mortgage Loans and the Collateral relating thereto;
WHEREAS, the Borrower may, from time to time, request the Security Agent to
deliver the Collateral relating to certain Mortgage Loans to the Purchaser for
the purposes of the Purchaser's inspection of such Collateral prior to the
purchase thereof by the Purchaser, and
WHEREAS, the Purchaser shall hold any Collateral received by it as bailee
for the benefit of the Security Agent until such time as the Purchaser either
purchases such Collateral or returns such Collateral to the Security Agent upon
the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the agreements herein set forth and for
other good and valuable consideration, the parties hereto agree as follows.
1. Upon written request from the Borrower to the Security Agent pursuant
to the terms of the Warehouse Credit Agreement, the Security Agent will, from
time to time, deliver Collateral to the Purchaser to be held by the Purchaser as
bailee for the benefit of the Security Agent. The Collateral shall be delivered
to the Purchaser's address set forth opposite its
Schedule I
-1-
Exhibit 10.103
signature below or any other address the Purchaser may designate in writing to
the Security Agent. Enclosed with each such delivery of Collateral shall be a
bailee letter (a "Bailee Letter") substantially in the form of Exhibit A to this
Agreement.
2. The Purchaser hereby acknowledges the security interest of the
Security Agent in and to any Collateral received by the Purchaser and hereby
agrees to hold such Collateral as bailee for the benefit of the Security Agent
pursuant to the applicable provisions of the Uniform Commercial Code and upon
the terms and conditions herein set forth.
3. The Purchaser's obligations as bailee with respect to any Collateral
received by the Purchaser shall terminate without further action by any party at
such time as the Purchaser has either (a) purchased such Collateral by remitting
in full the purchase price with respect to such Collateral specified in the
applicable Purchase Contract (the "Purchase Price") by wire transfer in
immediately available funds to the account of the Security Agent specified below
and such funds have been received in such account; or (b) delivered and returned
such Collateral to the Security Agent at the Security Agent's address set forth
opposite its signature below or any other address the Security Agent may
designate in writing to the Purchaser (the "Security Agent's Address").
INSTRUCTIONS FOR WIRE TRANSFER OF FUNDS:
To: [INSERT NAME OF BANK]
ABA No:
-----------------------------
Acct. No.:
-----------------------------
Attention:
-----------------------------
Reference:
-----------------------------
INSTRUCTIONS FOR CREDIT TO SECURITIES
ACCOUNT FOR BOOK-ENTRY SECURITY ISSUANCE:
----------------------------------------
----------------------------------------
----------------------------------------
4. Until such time as any Collateral received by the Purchaser has been
purchased by the Purchaser in accordance with the Purchase Contract and the
Purchase Price has been remitted or credited and received in full by the
Security Agent as set forth in paragraph 3 above, the Purchaser acknowledges and
agrees that (a) such Collateral shall remain subject to the liens and security
interests granted by the Borrower to the Security Agent for the benefit of the
Lender and (b) such Collateral shall be held by the Purchaser only for the
Purchaser's inspection and shall not be delivered or released to any party
(including, without limitation, the Borrower) other than the Security Agent or
its designee identified by the Security Agent to the Purchaser in writing.
5. Upon receipt by the Security Agent of the Purchase Price in full with
respect to any Collateral held by the Purchaser in immediately available funds
in the account specified in paragraph 3 above, the Security Agent's security
interest in such Collateral so purchased shall automatically terminate and be
canceled and released without notice or demand. Upon the
Schedule I
-2-
Exhibit 10.103
Purchaser's written request to the Security Agent, the Security Agent shall
provide the Purchaser with appropriate filings, registrations or recordings
necessary to effect such termination, cancellation and release.
6. Until such time as the Purchaser has paid the Purchase Price in full
with respect to any Collateral held by the Purchaser, the Security Agent shall
have the right to require the Purchaser at any time, by written notice to the
Purchaser, to immediately deliver and return such Collateral to the Security
Agent at the Security Agent's Address. Anything to the contrary in this
Agreement or any related document notwithstanding, unless such Purchase Price
shall have been received by the Security Agent, the Purchaser agrees to deliver
and return such Collateral to the Security Agent by no later than the date which
is 20 calendar days after the date of the Bailee Letter with which such
Collateral is delivered to the Purchaser without any notice, demand or other
action by the Security Agent.
7. The Purchaser agrees that the Purchase Price paid to the Security
Agent with respect to any particular Collateral shall not be reduced due to any
adjustments without the prior written approval of the Security Agent.
8. This Agreement may be executed in two counterparts, each of which
counterpart when executed and delivered shall be an original, but together shall
constitute one and the same instrument.
9. This Agreement and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the laws of the State of
New York, without regard to principles of conflicts of laws.
Three Executive Campus GE CAPITAL MORTGAGE SERVICES, INC.
Xxxxxx Xxxx, XX 00000 as Security Agent
Attention: Xxxxxx Xxxxxxxxx By:
-------------------------------
Name:
Title:
[INSERT ADDRESS] [INSERT NAME OF INVESTOR/ PURCHASER]
By:
---------------------------- -------------------------------
Name:
---------------------------- Title:
Attention:
------------------
SCHEDULE I
-3-
Exhibit 10.103
EXHIBIT A
TO
BAILEE AGREEMENT
GE CAPITAL MORTGAGE SERVICES, INC.
THREE EXECUTIVE CAMPUS
XXXXXX XXXX, XX 00000
[INSERT ADDRESS OF INVESTOR/PURCHASER]
Attention: ___________________
BAILEE LETTER
Re: [INSERT NAME OF THE BORROWER]
Sirs:
Reference is made to the Bailee Agreement, dated as of _____________,
199__, between [INSERT NAME OF INVESTOR/PURCHASER] (the "Purchaser") and GE
Capital Mortgage Services, Inc. (the "Security Agent").
Enclosed are the original mortgage notes and mortgage loan documentation
described in the attached Schedule (the "Collateral").
In accordance with the terms of the Bailee Agreement, by your receipt of
the Collateral: (a) you acknowledge that the Collateral is subject to the
Security Agent's security interest therein; (b) agree to hold the Collateral as
bailee for the benefit of the Security Agent subject to the terms of the Bailee
Agreement; and (c) agree to (i) remit in full the Purchase Price relating to the
Collateral as provided in paragraph 3 of the Bailee Agreement or (ii) in the
alternative, deliver and return the Collateral to the Security Agent to the
address set forth below for the Security Agent's receipt by no later than
__________________, 199__ [INSERT THE DATE THAT IS 20 CALENDAR DAYS AFTER THE
DATE OF THIS LETTER].
Sincerely yours,
Three Executive Campus GE CAPITAL MORTGAGE SERVICES, INC.,
Xxxxxx Xxxx, XX 00000 as Security Agent
Attention: Xxxxxx Xxxxxxxxx
By: _______________________________
Name:
Title:
Enclosures
EXHIBIT A
-1-
Exhibit 10.103
SCHEDULE II
[ALTERNATE FORM OF BAILEE AGREEMENT]
GE Capital Mortgage Services, Inc.
Three Executive Campus
Xxxxxx Xxxx, XX 00000
_______________, 199___
[INSERT NAME OF THE INVESTOR]
------------------------------
------------------------------
------------------------------
Attention:
--------------------
BAILEE LETTER
Re: [INSERT NAME OF THE BORROWER]
Sirs:
The undersigned, as Security Agent an behalf and for the benefit of Xxxxxx
River Funding, Inc. (the Lender"), a lender to ______________________ (the
"Borrower"), has been requested by the Borrower to deliver the enclosed original
mortgage note[s] and mortgage loan documents (collectively the "Collateral")
described in the attached Schedule for your inspection prior to purchase of the
Collateral by you pursuant to a certain purchase contract (the "Purchase
Contract") between you and the Borrower.
The Borrower has granted to us as Security Agent for the benefit of the
Lender a security interest in and to the Collateral. We hereby deliver the
Collateral to you to be held by you as Bailee, and by your receipt of the
Collateral you agree to hold the Collateral as bailee, for the benefit of us as
Security Agent pursuant to the applicable provisions of the Uniform Commercial
Code and upon the terms and conditions set forth below.
Your obligations as bailee with respect to the Collateral shall terminate
without further action by any party at such time as when you have either (a)
purchased the Collateral by remitting in full the purchase price specified in
the Purchase Contract (the "Purchase Price") by wire transfer in immediately
available funds to our account specified below and such funds have been received
in such amount; or (b) delivered and returned the Collateral to us at the
address set forth below opposite our signature or such other address notified by
us to you in writing (the "Security Agent's Address").
SCHEDULE II
-2-
Exhibit 10.103
INSTRUCTIONS FOR WIRE TRANSFER OF FUNDS:
To: [INSERT NAME OF BANK]
ABA No:
-----------------------------
Acct. No.:
-----------------------------
Attention:
-----------------------------
Reference:
-----------------------------
INSTRUCTIONS FOR CREDIT TO SECURITIES
ACCOUNT FOR BOOK-ENTRY SECURITY ISSUANCE:
----------------------------------------
----------------------------------------
----------------------------------------
Until the Collateral has been purchased by you in accordance with the
Purchase Contract and the Purchase Price has been remitted or credited and
received in full by us, as set forth above, (a) the Collateral shall remain
subject to the liens and security interests granted by the Borrower to us as
Security Agent for the benefit of the Lender and (b) the Collateral shall be
held by you only for your inspection and shall not be delivered or released to
any party (including, without limitation, the Borrower) other than us or our
designee identified by us to you in writing.
Upon receipt by us of the Purchase Price in full [in immediately available
funds in the account specified above,] [by book-entry transfer to the securities
account specified above,] our security interest in the Collateral so purchased
shall automatically terminate and be canceled and released without notice or
demand. Upon your written request to us, we shall provide you with appropriate
filings, registrations or recordings necessary to effect such termination,
cancellation and release.
Until such time as you have paid the Purchase Price , we as Security Agent
shall have the right to require you at any time, by written notice to you, to
immediately deliver and return the Collateral to us at the Security Agent's
Address. Notwithstanding the foregoing, unless the Purchase Price shall have
been received by us, you agree to deliver and return the Collateral to us for
our receipt at the Security Agent's Address by no later than the date which is
[20] calendar days after the date of this letter without any notice, demand or
other action by us.
The Purchaser agrees that the Purchase Price paid to the Security Agent
with respect to any particular Collateral shall not be reduced due to any
adjustments without the prior written approval of the Security Agent.
If you are in agreement with the foregoing, please have the enclosed copy
of this letter duly executed by your authorized officer and return it to us at
the Security Agent's Address. In the event that the foregoing is not acceptable
to you please deliver and return to us immediately the Collateral at the
Security Agent's Address by same-day or overnight courier delivery. In the event
we do not receive a copy of this letter duly executed by you, then you shall be
deemed to have accepted possession of the Collateral as bailee for us as
Security Agent, effective the date
SCHEDULE II
-3-
Exhibit 10.103
first written above, subject to the security interest described above and upon
the terms described above.
This letter shall be governed and construed in accordance with the laws of
the State of New York, without regard to principles of conflicts of laws,
Three Executive Campus GE CAPITAL MORTGAGE SERVICES, INC.
Xxxxxx Xxxx, XX 00000 as Security Agent
Attention: By:
------------------------ --------------------------------
Name:
Title:
Agreed to and accepted as of the
date first written above
[INSERT NAME OF INVESTOR]
By:
------------------------
Name:
Title:
SCHEDULE II
-4-
