EXHIBIT 10.40
THIS SUPPLEMENTAL AGREEMENT is entered into as of June 3, 1994,
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between PAINEWEBBER REAL ESTATE SECURITIES INC. ("PWRES") and Xxxxxx Mortgage
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Corp, DBA:Parkside Financial ("Seller").
PRELIMINARY STATEMENT
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PWRES offers a Cash Window Funding Program and a Conduit Funding
Program (collectively, "PWRES Purchase Programs") which provide funding to
Seller after Seller has successfully closed single-family residential mortgage
loans. This Supplemental Agreement enables Seller as a user of one or more of
the PWRES Purchase Programs to accelerate the sale of those single-family
residential mortgage loans to PWRES to the closing date provided that all the
requirements of the applicable PWRES Purchase Program are satisfied.
The parties hereto agree as follows:
Section 1: Definitions.
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"Cash Account": A separate cash account established and maintained by
Seller at Xxxxx Xxxxxx Real Estate Securities Inc. under the conditions set
forth in Section 2.
"Cash Account Adjustment": An adjustment to the Cash Account Balance
pursuant to a Cash Account Adjustment Notice.
"Cash Account Adjustment Notice": The cash account adjustment notice,
in the form of Exhibit D, to be used by Purchaser to notify Seller of any
adjustment to the Cash Account Balance.
"Cash Account Balance": The net amount of funds in the Cash Account.
"Cash Account Interest Accrual": The simple interest calculation
posted on the last Business Day of each month resulting from the product of
each Business Day's Cash Account Balance and Cash Account Interest Rate.
"Cash Account Interest Rate": The opening federal funds rate for each
Business Day. The opening federal funds rate on a Business Day shall be
counted as the Cash Account Interest Rate until the next Business Day.
"Cash Account Wire Instructions": The wire instructions, set forth in
a letter in the form of Exhibit C, to be used for the payment of funds to
Seller.
"Collateral": The Mortgage Loans (including all servicing rights
related thereto), any Custodial Account, the Cash Account and the proceeds
of any and all of the foregoing.
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"Disbursement Amount": With respect to a Mortgage Loan the amount set
forth on the Dry/Cash Window, Conduit Loan Purchase Detail in the
"DISBURSEMENT AMOUNT" column.
"Dry/Cash Window, Conduit Loan Purchase Detail": A loan purchase
detail in the form of Exhibit A hereto.
"Escrow Agent": The agent appointed by a Title Insurance Company to
administer the closing of a Mortgage Loan.
"Escrow Agent Wire Instructions": With respect to a Mortgage Loan the
wire instructions set forth on the related Dry/Cash Window, Conduit Loan
Purchase Detail on the "WIRE INSTRUCTIONS" line.
"Purchase Price": The amount set forth in the PWRES Purchase
Agreement as the "Purchase Price" .
"PWRES Purchase Agreement": The Mortgage Loan Purchase Agreement used
in connection with the Cash Window Funding Program or the Mortgage Loan
Purchase Agreement used in connection with the Conduit Funding Program, as
applicable.
"PWRES Purchase Program": The PWRES Cash Window Funding Program or
the PWRES Conduit Funding Program, as applicable.
"Supplemental Amount": With respect to each Mortgage Loan an amount
equal to the Disbursement Amount less the Purchase Price.
"Title Insurance Company": A title insurance company acceptable to
Purchaser.
"Withdrawal/Deposit Notice": A notice, substantially in the form of
Exhibit B, delivered by Seller to PWRES, from time to time, in connection
with withdrawals from and deposits to the Cash Account.
"Wire Fee": For each disbursement relating to PWRES' purchase of a
Mortgage Loan, a fee payable to PWRES by Seller.
Capitalized terms used but not deflned herein shall have the meanings
set forth in the PWRES Purchase Agreement.
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Section 2: Cash Account.
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(a) Seller hereby authorizes and directs PWRES to create the Cash Account.
The Cash Account shall be held in trust for Seller subject to the terms and
conditions of this Section 2 and the PWRES Purchase Agreement. PWRES shall
notify Seller, via electronic or facsimile transmission, of the Cash Account
Balance on each Business Day that PWRES purchases a Mortgage Loan pursuant to
the terms of this Supplemental Agreement and the PWRES Purchase Agreement.
(b) PWRES shall credit the Cash Account for (i) any deposits therein by
Seller upon Seller's written direction pursuant to a Withdrawal/Deposit Notice,
(ii) any amounts due Seller and payable by PWRES under the PWRES Purchase
Program, (iii) any Supplemental Amount for any Mortgage Loan upon the refunding
to PWRES of the Disbursement Amount for such Mortgage Loan by the Escrow Agent
upon any failure to apply the Disbursement Amount in connection with the
proposed funding of a Mortgage Loan, (iv) any credit pursuant to a Cash Account
Adjustment and (v) any Cash Account Interest Accruals .
(c) PWRES shall debit the Cash Account for (i) any withdrawals therefrom
by Seller upon Seller's written direction pursuant to a Withdrawal/Deposit
Notice, (ii) any amounts due PWRES and payable by Seller under any PWRES
Purchase Program, (iii) the Supplemental Amount for any Mortgage Loan upon
payment of the Disbursement Amount for such Mortgage Loan to the Escrow Agent by
PWRES pursuant to Section 3(b) of this Supplemental Agreement, (iv) any debit
pursuant to a Cash Account Adjustment and (v) any Wire Fees.
(d) Upon termination of this Supplemental Agreement and payment in full of
all obligations owing by Seller hereunder and under the Custodial Agreement,
PWRES shall remit to Seller the Cash Account Balance.
Section 3. Procedure for Purchase of Mortgage Loans.
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(a) Prior to PWRES' election to purchase any Mortgage Loan PWRES shall
have received from Seller:
(i) a Dry/Cash Window, Conduit Loan Purchase Detail containing all
information required by the PWRES Purchase Agreement plus the Escrow Agent
Wire Instructions; and
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(ii) all other documents required to be received by PWRES in
Section 2 of the PWRES Purchase Agreement, provided, however, that,
receipt by PWRES of a Dry/Cash Window, Conduit Loan Purchase Detail
shall satisfy the requirement that a Loan Purchase Detail be received
by PWRES
(b) If PWRES elects to purchase a Mortgage Loan, rather than paying
the Purchase Price in accordance with the Warehouse Lender's Instructions
or the Seller's Wire Instructions, PWRES shall pay the Purchase Price in
accordance with the terms of the Escrow Agent Wire Instructions.
Section 4. Applicability of Purchase Agreements. Seller hereby
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acknowledges that all other terms and conditions and all representations,
warranties and covenants of Seller set forth in the applicable Purchase
Agreements shall remain unaffected by this Supplemental Agreement.
Section 5. Construction. The headings in this Supplemental Agreement
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are for convenience only and are not intended to influence its construction.
References to Sections, Exhibits and Schedules in this Supplemental Agreement
are to the Sections of and Exhibits and Schedules to this Supplemental
Agreement. The Exhibits and Schedules are part of this Supplemental Agreement,
and are incorporated herein by reference. The singular includes the plural, the
plural the singular, and the words "and" and "or" are used in the conjunctive or
disjunctive as the sense and circumstances may require.
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IN WITNESS WHEREOF, PWRES and Seller have duly executed this Supplemental
Agreement gags of the date and year set forth on the cover page hereof.
XXXXX XXXXXX REAL ESTATE SECURITIES INC.
By: /s/ XX XXXXXXXXX
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Name: Xx Xxxxxxxxx
Title: Managing Director
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: President
Address (if different from cover page):
EXHIBIT A
XXXXX XXXXXX REAL ESTATE SECURITIES INC.
DRY/CASH WINDOW, CONDUIT LOAN PURCHASE DETAIL
CLIENT:_____________
EXPECTED DELIVERY DATE
OF MORTGAGE FILE IS:_____, 199_
DISBURSEMENT NOTE # OF MONTHS TO
LOAN # LAST NAME FACE AMOUNT AMOUNT RATE MATURITY
----------- ----------- ------------- --------------- ----------- -----------------
LOAN [TO BE COMPLETED BY SELLER]
DATA [TO BE COMPLETED BY CUSTODIAN]
BANK NAME CITY STATE ABA NUMBER ACCT. # TITLE COMPANY ORDER#
---------- ----------- ------------ --------------- ----------- ----------------- -------
WIRE [TO BE COMPLETED BY SELLER]
INSTRUCTIONS
COMMITMENT DELIVERY
TAKEOUT INVESTOR SALE PRICE COMMITMENT # EXPIRATION DATE DATE
------------------ ----------- ------------ ---------------- ------------
TAKEOUT [TO BE COMPLETED BY SELLER]
INFORMATION
DISBURSEMENT NOTE # OF MONTHS TO
LOAN # LAST NAME FACE AMOUNT AMOUNT RATE MATURITY
----------- ----------- ------------- --------------- ----------- -----------------
LOAN [TO BE COMPLETED BY SELLER]
DATA [TO BE COMPLETED BY CUSTODIAN]
BANK NAME CITY STATE ABA NUMBER ACCT. # TITLE COMPANY ORDER#
---------- ----------- ------------ --------------- ----------- ----------------- -------
WIRE [TO BE COMPLETED BY SELLER]
INSTRUCTIONS
COMMITMENT DELIVERY
TAKEOUT INVESTOR SALE PRICE COMMITMENT EXPIRATION DATE DATE
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TAKEOUT [TO BE COMPLETED BY SELLER]
INFORMATION
EXHIBIT B
[SELLER'S LETTERHEAD]
WITHDRAWAL/DEPOSIT NOTICE: CASH ACCOUNT
Please process a wire transfer representing a:
WITHDRAWAL [_] (Please check
appropriate
DEPOSIT [_] box)
From/To our Cash Account in the amount of $________
The funds should be transferred in accordance with the following instructions:
Bank Name:
City, State:
ABA #
Account Name
Ref: [Name of Seller)
Deposits only require "Bank Name" and "City, State" information to be completed.
[SELLER]
By:__________________________
Name:________________________
EXHIBIT C
[CASH ACCOUNT WIRE INSTRUCTIONS]
Xxxxx Xxxxxx Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Dry Funding Program
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Ladies and Gentlemen:
Set forth below are the [Seller's] wire instructions applicable to the
above-referenced Dry Funding Program with [Seller].
Wire Instructions :
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Wire Location No.1 Wire Location No.2
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Bank Name: Bank Name
City, State: City, State
ABA #: ABA #
Account #: Account #
Account Name: Account Name
Please acknowledge receipt of this letter in the space provided below.
This letter supersedes and replaces any prior notice specifying our wire
instructions for the Dry Funding Program and shall remain in effect until
superseded and replaced by a letter, in the form of this letter, executed by us
and acknowledged by you.
Very truly yours,
[SELLER]
By:__________________________________
Name:________________________________
Title:_______________________________
Receipt acknowledged by :
XXXXX XXXXXX REAL ESTATE SECURITIES INC.
By: _____________________________________
Name: Xx Xxxxxxxxx
Title: Managing Director
*Please add additional signatures of any person authorized to execute a Cash
Account Withdrawal/Deposit Notice.
EXHIBIT D
[CASH ACCOUNT ADJUSTMENT NOTICE]
[Date]
To: [SELLER]
Re: [SELLER'S CASH ACCOUNT #___]
A journal entry will be processed today reflecting the following adjustment
to your Cash Account Balance.
[_] CREDIT OF $ ___________
[_] DEBIT OF $ ___________
Explanation is as follows: ________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Upon request, additional backup documentation will be provided.
Very truly yours,
XXXXX XXXXXX REAL ESTATE SECURITIES INC
By:_____________________________________
Name:___________________________________
Title:__________________________________
