MASTER REPURCHASE AGREEMENT
Between: Dated: January __, 2001
IMPERIAL WAREHOUSE FINANCE, INC. ("Buyer")
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and
HOMEGOLD FINANCIAL, INC. and
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HOMEGOLD, INC. (jointly and severally, "Seller")
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1. Applicability
From time to time the parties hereto may enter into transactions in which Seller
agrees to transfer to Buyer whole mortgage loans or any interest in any whole
mortgage loans secured by mortgages or deeds of trust on residential dwellings
("Loans") against the transfer of funds by Buyer, with a simultaneous agreement
by Buyer to transfer to Seller such Loans 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.
2. Definitions
(a) "Act of Insolvency," with respect to any party, (i) the commencement
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by such party as debtor of any case or proceeding under any
conservatorship or receivership (within the meaning of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989),
bankruptcy, insolvency, reorganization, liquidation, dissolution or
similar law, or such party seeking the appointment of a conservator,
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, or (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 Loans," Loan(s) provided by Seller to Buyer
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pursuant to Paragraph 4(a) hereof; Additional Purchased Securities
shall be limited to
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obligations issued by the United States government or mortgaged-backed
securities issued by the Federal National Mortgage Association
("FNMA") or guaranteed by the Government National Mortgage Association
("GNMA") and otherwise acceptable to Buyer in its sole discretion;
(c) "Assumed Repurchase Value," as of any date shall be the dollar amount
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not exceeding the Repurchase Price ascribed to such Loans on that date
by Buyer in its reasonable and sole discretion and shall not include
any Income on such Loans paid to and held by Seller pursuant to
paragraph 5 hereof, and the Assumed Repurchase Value of any Additional
Purchased Loans shall be the fair market value thereof as determined
by Buyer in its reasonable and sole discretion;
(d) "Buyer's Margin Amount," with respect to any Transaction as of any
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date, the amount obtained by application of a percentage, agreed to by
Buyer and Seller prior to entering into the Transaction, to the
aggregate principal balances of the Purchased Loans as of such date;
(e) "Collateral Deposit Account," a deposit account established in the
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name of Buyer at a depository institution designated by Buyer into
which Seller shall deposit and maintain a cash collateral balance
agreed to by Buyer and Seller prior to entering into the Transaction
to secure Seller's obligations hereunder;
(f) "Income," with respect to any Loans at any time, the principal
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thereof then payable and all interest or other distributions thereon;
(g) "Margin Deficit," the meaning specified in Paragraph 4(a) hereof;
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(h) "Margin Excess," the meaning specified in Paragraph 4(b) hereof;
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(i) "Mortgage File," the meaning specified in Paragraph 7 hereof;
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(j) "Price Differential," with respect to any Transaction hereunder as of
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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);
(k) "Pricing Rate," the per annum percentage rate for determination of the
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Price Differential;
(l) "Prime Rate," the prime rate or reference rate of U.S. money center
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commercial banks as published in The Wall Street Journal;
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(m) "Purchase Date," the date on which Purchased Loans are transferred by
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Seller to Buyer;
(n) "Purchase Price," (i) on the Purchase Date, the price at which
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Purchased Loans are transferred by Seller to Buyer, and (ii)
thereafter, such price decreased by the amount of any cash transferred
by Seller to Buyer pursuant to the Margin Deficit or applied to reduce
Seller's obligations under clause (i) of Paragraph 5 hereof;
(o) "Purchase Request," the meaning specified in Paragraph 3(a) hereof;
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(p) "Purchased Loans," the Loans transferred by Seller to Buyer in a
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Transaction hereunder, and any Loans substituted therefor in
accordance with Paragraph 9 hereof.;
(q) "Repurchase Date," the date on which Seller is to repurchase the
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Purchased Loans from Buyer, including any date determined by
application of the provisions of Paragraphs 3 or 11 hereof;
(r) "Repurchase Price," the price at which Purchased Loans are to be
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transferred from Buyer to Seller upon termination of a Transaction,
which will be determined in each case (including Transactions
terminable upon demand) as 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
(s) "Servicing File," the meaning specified in Paragraph 7 hereof.
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3. Initiation; Purchase Request; Repurchase
(a) All Transactions will be made pursuant to a written Confirmation of
Terms of Transactions, certified by Seller and agreed to by Buyer. When Seller
initiates a Transaction hereunder, Seller shall deliver to Buyer a written
purchase request form for each Transaction (a "Purchase Request"). The Purchase
Request shall describe the Loans, 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 as may be
required by Buyer. Upon Buyer's approval and funding of the Loan, the Purchase
Request, together with this Agreement, the Confirmation of Terms and the
Seller's Warranties Agreement, shall constitute conclusive evidence of the terms
agreed between Buyer and Seller with respect to the Transaction to
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which the Purchase Request relates, unless with respect to the Purchase Request
specific written objection is made by Buyer promptly after receipt thereof. In
the event of any conflict between the terms of such Purchase Request and this
Agreement, this Agreement shall prevail.
(b) Seller shall repurchase each of the Purchased Loans from Buyer, and
shall pay to Buyer the Repurchase Price therefore upon demand made by Buyer,
pursuant to this Paragraph. In the case of Loans (i) which meet the requirements
of the Seller's Warranties Agreement in all material respects, such demand by
Buyer may not be made prior to 45 days following the date of the Transaction in
which the Loans were originally conveyed to Buyer provided no Event of Default
(as defined hereinafter) 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; and (iii) Seller may repurchase Loans at any
time, irrespective of whether the particular Loan(s) meets the requirements of
the Seller's Warranties Agreement. In any case such demand either by Buyer or
by Seller shall be for a repurchase of all Purchased Loans subject to the
related Transaction and such demand shall be made no later than 5:00 pm Pacific
Time on the business day preceding the day on which such repurchase will be
effective, which repurchase shall also be on a business day. On the date
specified in such demand or on the date fixed for repurchase, the repurchase
will be effective by transfer to Seller or its agent of the Purchased Loans 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 a designated account of
Buyer.
4. Margin Maintenance
(a) If at any time the difference between the aggregate Assumed Repurchase
Value of all Purchased Loans held by Buyer, and the aggregate Buyer's
Margin Amount for all such Transactions at such time, is less than the
balance of the Collateral Deposit Account (a "Margin Deficit"), then
Buyer may by notice to Seller require Seller in such Transactions, at
Buyer's option to transfer cash or Purchased Loans to Buyer, so that
the balance in the Collateral Deposit Account will thereupon equal or
exceed the difference between aggregate Assumed Repurchase Value of
the Purchased Loans, and the aggregate Buyer's Margin Amount.
(b) The Collateral Deposit Account and all sums held therein, including
any amount by which the balance thereof exceeds the difference between
the aggregate Assumed Repurchase Value and the aggregate Buyer's
Margin Amount (the "Margin Excess") shall constitute collateral
security for the full and timely payment and performance by Seller of
all indebtedness and obligations to Buyer, whether arising under this
Agreement or otherwise, and Seller pledges and grants to Buyer a
security interest therein, including the right to withdraw, setoff and
apply all sums held therein to any amounts due hereunder.
5. Income Payments
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Except as provided in paragraph 11 of this Agreement, 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 Loans. Seller shall service the Loans
or supervise the servicing of the Loans for the benefit of Buyer in accordance
with the terms of Paragraph 8 hereof and shall provide Buyer with the servicing
tape or payment histories for all such serviced Loans not later than the 7/th/
day of each month. Seller will provide Buyer with reports substantially
identical in form to FNMA's form 2010 remittance report with respect to all
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.
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 Seller's
right (including the power to convey title thereto) title and interest in and to
the Purchased Loans, 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 Loans, the contractual right
to service each Loan, any sub-servicing agreements with respect to each Loan and
all documents in each Mortgage File and Servicing File with respect to all
Transactions hereunder and all income, payment, product and proceeds thereof
(the "Collateral"). 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 each
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.
7. Payment and Transfer
Unless otherwise mutually agreed, all transfers of funds hereunder shall be in
immediately available funds. All Loans 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 possession may reasonably request; or (ii)
shall be transferred by any other method mutually acceptable to Seller and
Buyer.
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The transfer of Loans to Buyer shall include the delivery to the Buyer of the
following documents ("the Mortgage File"); (i) the original note or other
evidence of indebtedness ("the Mortgage 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 or second lien on the underlying property
securing the 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 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 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 required title insurance coverage is in effect and unconditionally
guaranteeing the holder of the Loan that the Lender's title insurance policy
will be issued; (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 Loan has been signed by a
person on behalf of the Mortgagor, the power of attorney or other instrument
that authorized and empowered such person to sign with recording information
thereon; (ix) with respect to FHA insured Loans, the original FHA Insurance
Contract, together with a completed HUD Form 92080 "Mortgagee Record Change"
with the Purchasing Mortgagees name left blank; (x) with respect to VA
guaranteed Loans, the original VA Loan Guaranty Certificate; (xi) with respect
to each 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 Loan is subject to special
truth in lending rules; (xii) any certified copies of the hazard insurance
policy or flood insurance policy with extended coverage of the hazard insurance
policy; (xiii) the Loan closing instruction with specific instructions requiring
purchase monies to be returned to Buyer if the Loan is not settled within 48
hours of receipt of purchase monies; and (xiv) any other document as may be
requested by Buyer.
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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, originals
or true copies of such documents contained in the Mortgage File; and within
forty-eight (48) hours after such Purchase Date Seller shall deliver or cause to
be delivered to Buyer, the originals (to the extent not previously delivered) of
all such documents in the Mortgage File. Failure by Seller to deliver or cause
to be delivered such documents within such time periods specified in the
immediately preceding sentence shall constitute an Event of Default under this
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, 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 Loans subject to such Transaction during the 45-day period prior to
the related Purchase Date.
Seller shall include on each Loan Schedule a code indicating whether the Loan is
subject to the Homeownership and Equity Protection Act of 1994.
Seller shall cause to be maintained a servicing file ("Servicing File") with
respect to each 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, easement, sewer agreements, home
association declaration, 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 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 Loan;
(j) each residential appraisal report with photographs of the Mortgaged
Property;
(k) any tax receipts, insurance premium, ledger sheets, payment records,
insurance claim files and correspondence, current and historical
computerized date 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 Loan or to
service the Loan; and
(l) any other document as may be requested by Buyer.
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Seller shall cause to be delivered to Buyer each Servicing File upon Event of
Default by Seller under this Agreement.
8. Segregation of Purchased Loans; Servicing
(a) To the extent required by applicable law, all Purchased Loans in the
possession of Seller shall be segregated from other Loans in its
possession and shall be identified as subject to this Agreement. Upon
transfer of the Purchased Loans to Buyer and until Seller's repurchase
thereof as provided herein, ownership of each Purchased Loan including
each document in the related Mortgage File is vested in Buyer. Upon
transfer of the Purchased Loans to Buyer and until Seller's repurchase
thereof as provided herein, record title in the name of Seller to each
Mortgage may 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 Purchased Loans, provided that Buyer may elect
to cause record title to be transferred to Buyer at any time. Unless
otherwise agreed by Buyer and Seller, nothing in this Agreement shall
preclude Buyer from engaging in repurchase transaction(s) with the
Purchased Loans or otherwise participating, pledging or hypothecating
the Purchased Loans, but no such transaction shall relieve Buyer of
its obligations to transfer Purchased Loans (and no substitutes
thereof) to Seller. Upon Seller's repurchase of the Purchased Loans,
Buyer agrees to promptly execute 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 on the related Loans. Buyer agrees to cooperate with Seller
to identify documents that may be required to effect such reconveyance
and perfection of title to Seller.
(b) Seller shall service and administer each Purchased Loan for the
benefit of Buyer prior to the related Repurchase Date; Seller shall
have full power and authority, acting alone, to do any and all things
in connection with such servicing which Seller or its agents may deem
necessary and consistent with the Transactions and agreements
contemplated by this Agreement except that Seller may not modify or
amend the terms of the Purchased Loans in any material respect.
However, the obligations of Seller to service the Purchased Loans on
behalf of Buyer shall cease upon the payment to Buyer by Seller of the
Repurchase Price. Seller and its agents, in administering and
servicing the Purchased Loans, shall employ procedures (including
collection procedures) and exercise the same care customarily employed
and exercised by Seller or its agents in servicing and administering
mortgage loans for Seller's own account, in accordance with accepted
mortgage servicing practices of prudent lending institutions with
respect to mortgage loans similar to the Purchased Loans and giving
due consideration to Buyer's reliance on Seller and its agents.
Seller shall be responsible for the actions of its agents relating to
its servicing of the Loans as
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though Seller itself were servicing the Purchased Loans. Seller shall
collect all Income on behalf of Buyer, and unless otherwise directed
by Buyer, Seller shall retain such Income, in trust, for the benefit
of the Buyer; provided, however, upon the request of Buyer, Seller
shall remit to Buyer such Income. Buyer shall reduce the Repurchase
Price of any Transaction for any Income from the Loans actually
received by Buyer pursuant to this Paragraph. Upon the occurrence and
continuance of an Event of Default, Buyer may, in its sole discretion,
(i) sell its right to the Purchased Loans on a servicing released
basis or (ii) terminate the Seller as servicer of the Purchased Loans
with or without cause, in each case without payment of any termination
fee and such termination shall be effective immediately. Seller
further agrees to indemnify and hold Buyer harmless from any claims,
losses, liabilities, costs (including attorneys' fees) that arise from
Seller's servicing of the Loans.
9. Substitution
Seller may not, without the prior written consent of Buyer in Buyer's sole
discretion, substitute other mortgage loans for any Purchased Loans. Such
substitution, if authorized by Buyer, shall be made by transfer to Buyer of such
other Loans and transfer to Seller of such Purchased Loans. After substitution,
the substituted Loans shall be deemed to be Purchased Loans.
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, (vi) Seller and Buyer have entered into the Transaction
described in each Purchase Request form contemporaneously with the sale of the
Purchased Loan(s) 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, by Buyer to Seller, (vii) the board of directors of
Seller has approved this Agreement, and such approval is reflected in the
minutes of said board, and (viii) this Agreement shall be continuously, from the
time of its execution, a corporate record of Seller. On the Purchase Date for
any Transaction Buyer and Seller shall each be deemed to repeat all the
foregoing representations made by it.
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11. Events of Default
In the event that (i) Seller fails to repurchase any Purchased Loans upon the
applicable Repurchase Date, (ii) Seller fails to comply with any provision of
this Agreement, the Confirmation of Terms, Purchase Request or Seller's
Wannanties Agreement, (iii) an Act of Insolvency occurs with respect to Seller,
(iv) any representation made by Seller shall have been incorrect or untrue in
any material respect when made or repeated or deemed to have been made or
repeated, (v) Seller shall admit to the other its inability to, or its intention
not to, perform any of its obligations hereunder; (vi) Buyer shall have
reasonably determined that Seller is or will be unable to meet its commitment
under this Agreement and any other related agreement and shall have notified
Seller of such determination and Seller shall not have responded with
appropriate information to the contrary to the satisfaction of Buyer within 7
days; (vii) this Agreement shall for any reason cease to create a valid, first
priority security interest in any of the Collateral ; (viii) a final judgment by
any competent court in the United States of America for the payment of money in
an amount of at least $50,000 is rendered against Seller, and the same remains
undischarged for a period of 30 days during which execution of such judgment is
not effectively stayed; (ix) Seller shall fail to observe or perform any of the
covenants or agreements under any Loan document, which failure materially and
adversely affects the rights of the Buyer; (x) 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; (xi) 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; (xii) Seller shall be in default with respect to any normal 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);
(xiii) 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;
(xiv) Seller shall fail to promptly notify Buyer of (a) the acceleration of any
debt obligation or the termination of any credit facility of Seller,
respectively; (b) the amount and maturity of any such debt assumed after the
date hereof; (c) any adverse developments with respect to pending or future
litigation involving Seller, respectively; and (d) any other developments which
might materially and adversely affect the financial condition of Seller; (xv)
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"; (xvi) Seller shall have
reported an operating loss for any period after February 1, 2001; (xvii)
Seller shall fail to deliver to Buyer the documents in the Mortgage File
within the time period specified in Paragraph 7 of this Agreement (each of (i) -
(xvii) an "Event of Default"); then:
(a) At the option of Buyer, exercised by written notice to Seller (which
option shall be deemed to have been exercised, even if no notice is given,
immediately upon the
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occurrence of an Act of Insolvency), the Repurchase Date for each
Transaction hereunder shall be deemed immediately to occur.
(b) If Buyer exercises or is deemed to have exercised the option referred
to in subparagraph (a) above, (i) Seller's obligations hereunder to
repurchase all Purchased Loans 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 Buyer with respect to such
Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any
proceeds from the sale of Purchased Loans pursuant to subparagraph (c) of
this Paragraph, and (C) any amounts credited to the account of Seller
pursuant to subparagraph (c) of this Paragraph) on a 360 day 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 to Buyer after such exercise or deemed exercise shall be retained by
Buyer and applied to the aggregate unpaid Repurchase Prices owed by Seller,
and (iv) Seller shall immediately deliver to Buyer any Purchased Loans
subject to such Transactions then in Seller's possession.
(c) After one business day's notice to Seller (which notice need not be
given if an Act of Insolvency shall have occurred, Buyer may: (A)
immediately sell, in a recognized market or in any other commercially
reasonable manner at such price or prices as Buyer may reasonably deem
satisfactory, any or all Purchased Loans subject to such Transactions and
apply the proceeds thereof to the aggregate unpaid Repurchase Prices and
any other amounts owing by Seller hereunder, or (B) in its sole discretion
elect, in lieu of selling all or a portion of such Purchased Loans, to give
Seller credit for such Purchased Loans 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 Seller hereunder
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 which Buyer is
otherwise entitled hereunder, Buyer shall transfer the portion of the
Purchased Loans and proceeds thereof, including without limitation, any
proceeds of a sale of the servicing rights to the Loans, held by Buyer
following such receipt to either (i) Seller, if in 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.
(d) 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
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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.
(e) The nondefaulting party shall have, in addition to its rights
hereunder, any rights otherwise available to it under any other agreement
or applicable law.
(f) Seller acknowledges that any delay in the ability of Buyer to exercise
its remedies pursuant to Paragraph 11 hereof shall result in irreparable
injury to Buyer.
(g) Limitation of Seller's Liability: As required by the provisions of
that certain Indenture dated September 23, 1997, as amended, by and between
HomeGold Financial, Inc. (f/k/a Emergent Group, Inc.), the Subsidiary
Guarantors named therein (one of which is Seller) and Bankers Trust Company
as Trustee, notwithstanding any other provision of this Agreement to the
contrary, Buyer(s) shall have no recourse against Seller or any of its
affiliates to satisfy claims in respect of this Agreement and the
transactions contemplated herein in excess of the realizable value of the
Mortgage loans purchased from Seller pursuant hereto and held by such
Buyer(s).
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
property 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
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 and first class mail at the following address or facsimile
number:
To Buyer:
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Imperial Warehouse Finance
00000 Xxxxxxxxx Xxxx.
Xxxx. 0, Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile number: (000) 000-0000
Attention: Xxxxx Xxxxxxx
To Seller:
HomeGold, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxx Xxxx
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; (ii) if sent by
facsimile transfer, on the day it is sent if confirmation of transmission is
received; or (iii) if sent by certified or registered mail, return receipt
requested, three days after dispatched.
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 and 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 canceled at
any time 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; Jurisdiction
This Agreement shall be construed in accordance with and governed by the laws of
the State of California without giving effect to the conflict of law principles
thereof.
17. No Waivers; Amendments
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
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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.
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 they 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 Loans subject to
such Transaction or the term of such Transaction would render such
definition inapplicable), and a "securites 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 Loans
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 and agree that 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.
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21. Further Assurances
Seller shall promptly provide such further assurances or agreements as Buyer may
request in order to effect the purposes of this 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.
22. Power of Attorney
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 purpose hereof, including, without limitation,
completing or correcting any endorsement of a Mortgage Note, assignment of a
Mortgage, or financing statement 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 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 Purchased Loans or Collateral and to give
full discharge for the same.
23. Costs and Expenses
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
("Costs"), including, without limitation, legal expenses, servicing costs and
expenses, recording and filing fees and any costs associated with reconveyance
of the Purchased Loans and, in the even 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.
24. Usage Fee
Seller and Buyer contemplate that all Loans purchased by Buyer and subject to
repurchase pursuant to this Agreement shall have an average daily balance (in
principal amount) of $12,500,000 (the "Minimum Usage Amount"). If, within sixty
(60) days of the date hereof, Seller shall not have sold any Loans to Buyer
pursuant to this Agreement, Seller shall promptly pay Buyer $1,000. If at any
time after sixty (60) days after the Seller shall commenced selling Loans to
Buyer, pursuant to this Agreement, but the average daily balance (in principal
amount) of all 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 $1,000 during any thirty (30) day
period.
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25. Fully Negotiated Agreement
Neither this Agreement nor any uncertainty or ambiguity herein or of any
provision hereof shall be construed or resolved against Buyer or Seller, whether
under any rule of construction or otherwise. The terms and conditions contained
in this Agreement have been fully negotiated and reviewed by all parties and
their respective counsel.
26. Attorneys' Fees
If any legal action, arbitration or other proceeding is brought for the
enforcement or interpretation of this Agreement, or because of an alleged
dispute, breach, default or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees and any other relief to
which it or they may be entitled. The court or arbitrator before which such
action or proceeding is brought shall determine which party is the successful or
prevailing party within the meaning of this section, taking into account all
bona fide settlement offers of all parties, and such determination shall be
binding upon the parties
27. Arbitration
Any dispute between the parties arising out of or by reason of this Agreement or
regarding its construction shall be submitted for arbitration in Los Angeles,
California, and shall be settled in accordance with the rules and regulations
then existing of the American Arbitration Association, to which shall be added
the provisions of the California Civil Discovery Act. Judgment upon any award
rendered in such proceedings may be obtained by either party in any court of
competent jurisdiction.
28. Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall be deemed to
be one instrument. It shall not be necessary in making proof of this Agreement
or any counterpart thereof to produce or account for any other counterpart.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by
their respective duly authorized representatives.
(Buyer) (Seller)
IMPERIAL WAREHOUSE FINANCE, INC. HOMEGOLD, INC.
HOMEGOLD, FINANCIAL, INC.
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By:_________________________________ By:__________________________
Name: Xxxxx X. Xxxxxxx Name:________________________
------------------------------
Title: President/CEO Title:_________________________
-----------------------------
Date:_______________________________ Date:_________________________
17
CONFIRMATION OF TERMS OF TRANSACTIONS
(CERTIFICATE OF SELLER)
Imperial Warehouse Finances, Inc.
00000 Xxxxxxxxx Xxxx., Xxxx. 0, Xxxxx 000
Xxxxxxxx, XX 00000
RE: Master Repurchase Agreement
Reference is made to the Master Repurchase Agreement (the "Master Repurchase
Agreement") dated as of January 11, 2001, between Imperial Warehouse Finance,
Inc. (the "Buyer") and HomeGold Financial, Inc. and HomeGold, Inc., (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 the Seller hereby confirm the Buyer's purchase from the Seller from
xxx to time under the Master Repurchase Agreement of Purchased Loans to be
listed on Mortgage Loan Schedules which will be transmitted from Seller to
Buyer. Seller agrees to provide to Buyer a Purchase Request Form and Mortgage
Loan Schedule in the form of "Exhibit A" hereto which must be approved by Buyer
before each Transaction is completed. Upon the approval by Buyer of the Purchase
Request Form and Mortgage Loan Schedule and Buyer's funding of the Purchase
Price. Seller agrees that the sale of the mortgage loans listed thereon shall be
effective hereunder pursuant to the terms and conditions of the Master
Repurchase Agreement, the Seller's Warranties Agreement and all modifications
and addendums thereto.
As to each Loan listed on the Purchase Request Forms and Mortgage Loan Schedules
submitted hereafter, the following pricing, terms and conditions shall apply:
Purchase Price: Net Disbursement Amount to be specified on Purchase Request
Form.
Buyer's Margin Amount: Equal to 88% of the face amount of the Loan, or if a
Second Mortgage, then 85% of such amount.
Transaction Fee: $60.00 per Loan. To be paid by Seller to Buyer within 45
days after Purchase Date.
Repurchase Date: On demand as set forth in Paragraph 3 of the Master
Repurchase Agreement.
Pricing Rate: A per annum rate equal to the sum of (i) the rate per annum
publicly announced by U.S. Money Center Commercial Banks as its "Prime
Rate" as such rate shall change from time to time, plus (ii) 100 basis
points. Upon the occurrence of an Event of Default of the Seller, the
number of basis points in (ii) shall be increased to 300 but in no event
shall the increased Price Differential resulting from an event of default
be less $120 per Loan. The Pricing Rate shall be calculated on the basis of
a 360-day year for the actual number of days elapsed.
Exit Fee: In addition to the Repurchase Price, Seller shall pay to Buyer
upon the repurchase of each Loan an Exit Fee equal to 0.25% of the
Repurchase Price, which Exit Fee shall be divided equally between Buyer and
Impac Mortgage Acceptance Corp.
Collateral Deposit Account: $2.5 million to be deposited with Southern
Pacific Bank as custodian for Buyer, which account shall be pledged to
Buyer as collateral security for all obligations of Seller to Buyer.
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 Loans set forth on each Mortgage Loan Schedule (the
"Mortgage Loans") by the Seller to Imperial Warehouse Finance, Inc. ("IWF")
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 Loan,
including, without limitation, those mortgage loans to be listed on the Mortgage
Loan Schedules submitted hereafter.
Nothing contained in this Certificate or in the Master Repurchase Agreement
shall constitute a commitment by Buyer to purchase any particular loan(s).
Kindly acknowledge your agreement to the foregoing by signing and returning the
enclosed extra copy of this letter.
HOMEGOLD FINANCIAL, INC. HOMEGOLD, INC.
Sincerely, Sincerely,
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------- -------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx
Title: President Title: President
ACKNOWLEDGED AND AGREED TO:
IMPERIAL WAREHOUSE FINANCE, INC.
By:/s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
President CEO
