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EXHIBIT 10.8
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT (the "Agreement") is hereby made as of
the 23rd day of October, 1997, by and between Credit Depot Corporation (the
"Mortgage Originator"), with an address of 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, XX,
00000 and PINNACLE MORTGAGE ACCEPTANCE CORPORATION (the "Participant"), with an
address of 0000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
WITNESSETH
The Mortgage Originator is the holder from time to time of various
mortgage loans evidenced by notes and secured by conventional, FHA-insured or
VA-guaranteed first or second mortgages, as the case may be, on improved one- to
four-family residential real properties (the "Mortgage Loans"). The Mortgage
Loans will be eligible for purchase in the secondary market by FNMA or FHLMC or
other investors, or are eligible to serve as collateral for mortgage backed
securities issued by GNMA. The Mortgage Originator desires to sell a senior
participation interest (each a "Participation") in each of one or more pools
(the "Mortgage Pools") containing certain of the Mortgage Loans from time to
time to the Participant, and the Participant is willing to purchase such
Participations under the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, it is agreed:
1. Purchase of Participations. The Participant agrees to purchase
from time to time from the Mortgage Originator, but only in accordance with the
terms and conditions hereof, one or more loan participation certificates (the
"Participation Certificates"), substantially in the form of Exhibit B hereto,
each of which represents the Participant's Participation in a Mortgage Pool
created by the Mortgage Originator. The principal balance of each Participation
(the "Participation Principal Balance") shall be set out in the related
Participation Certificate and may be increased or decreased from time to time as
Mortgage Loans are added to or removed from the related Mortgage Pool or
transferred between Mortgage Pools and as any portion of the principal
collections with respect to the Mortgage Loans are paid to the Participant. The
principal terms relating to the purchase of each Participation, including but
not limited to the maximum participation percentage, the purchase price and the
interest rate on the Participation Principal Balance may be set out in the terms
addendum attached hereto as Exhibit B, as the same may be amended from time to
time (the "Terms Addendum"). Each Participation shall bear interest on the
related Participation Principal Balance at the rate specified as the "Interest
Rate" on the Terms Addendum; provided, however, that from the date on which any
Event of Default (defined below) shall be deemed to have occurred until the date
on which the Participation is paid in full, the Participation shall bear
interest at the Default Rate set forth on the Terms Addendum. The aggregate
outstanding principal balance of all Participations on any day shall not exceed
the amount specified as the "Maximum Participation Amount" on the Terms
Addendum.
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2. The Mortgage Pools. The Mortgage Loans in a given Mortgage
Pool from time to time shall be listed on Schedule I to the related
Participation Certificate (the "Mortgage Loan Schedule"). The Mortgage
Originator shall be responsible for delivering a new Mortgage Loan Schedule upon
each addition to or withdrawal from each Mortgage Pool. Mortgage Loans may be
added to or withdrawn from any Mortgage Pool as described below:
(a) From time to time prior to the termination of this
Agreement, the Mortgage Originator may add one or more Mortgage Loans
to a Mortgage Pool by delivering a mortgage pool addition certificate,
substantially in the form of Exhibit C hereto (each, a"Mortgage Pool
Addition Certificate"), to the Participant for acknowledgment. If
no Event of Default exists or no event that with the passage of time
would become an Eventof Default, the Participant, in its sole
discretion, may accept the related Mortgage Loans by executing the
acknowledgment on the related Mortgage Pool Addition Certificate.
Ifthere is more than one Participation outstanding at any time, the
Participant shall informthe Mortgage Originator as to which Mortgage
Pool the addition of a Mortgage Loanshould be made. Upon the acceptance
of a Mortgage Loan for inclusion in a MortgagePool in accordance with
this Paragraph 2, the Participation Principal Balance for the related
Participation shall be increased by the amount specified in the related
Mortgage Pool Addition Certificate and the Participant shall pay the
Mortgage Originator or, on behalf of the Mortgage Originator, a
settlement agent, in the Participant's sole discretion,an amount equal
to such increase.
(b) From time to time prior to the termination of this
Agreement, the Mortgage Originator may request removal of any of the
Mortgage Loans from a Mortgage Pool by (i) delivering a mortgage pool
withdrawal certificate, substantially in the form of Exhibit D hereto
(each, a "Mortgage Pool Withdrawal Certificate"), to the Participant
for acknowledgment and (ii) tendering to the Participant the related
"Withdrawal Amount" for each such Mortgage Loan (as such term is
defined in the Mortgage Pool Withdrawal Certificate). The Mortgage Pool
Withdrawal Certificate shall specify that a Mortgage Loan is being
removed for one of the following reasons: (A) the Mortgage Loan has
been paid in full; (B) the Mortgage Loan is being sold to a takeout
investor; (C) the Mortgage Loan has been in the Mortgage Pool for more
than 90 days; (D) a representation or warranty contained in Paragraph 9
of this Agreement has been breached; (E) the Mortgage Loan has become
more than 30 days delinquent; or (F) foreclosure proceedings are being
started with respect to the Mortgage Loan. If the Participant permits
such withdrawal, upon receipt of the Withdrawal Amount, (1) the
Participant shall return to the Mortgage Originator (or such other
party as the Mortgage Originator may direct) the related note, mortgage
and assignment of mortgage, to the extent such documents were delivered
to the Participant and have not previously been returned to the
Mortgage Originator, and (R) the Participation Principal Balance for
the related Participation shall be reduced by an amount equal to the
Withdrawal Amount.
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(c) From time to time the Participant in its sole
discretion may require the Mortgage Originator to transfer any Mortgage
Loan from one Mortgage Pool to another Mortgage Pool.
3. Restrictions on Transfer by Mortgage Originator. The Mortgage
Originator shall not sell, transfer or assign its retained interest in the
Mortgage Loans or any Mortgage Pool without the prior written consent of the
Participant.
4. Required Withdrawals from the Mortgage Pool. The Participant,
in its sole discretion, may require the Mortgage Originator to withdraw from the
Mortgage Pool, in accordance with Paragraph 2(b) above, (i) any Mortgage Loan
that becomes more than 30 days delinquent or which has been in the Mortgage Pool
for a period of more than 90 days and (ii) any other Mortgage Loan.
5. Applications of Unscheduled Payments and Takeout Proceeds. If
a Mortgage Loan is foreclosed upon or is otherwise liquidated or if the Mortgage
Loan is withdrawn from a Mortgage Pool to be sold to a takeout investor, the
related Participation shall be repaid in full, together with any accrued
interest thereon, from the proceeds of such liquidation, foreclosure or takeout
sale prior to the payment of any amount to the Mortgage Originator with respect
to such Mortgage Loan.
6. Servicing. In consideration of the Participant's agreement to
purchase Participations from the Mortgage Originator, the Mortgage Originator
hereby agrees to act as the servicer of the Mortgage Loans in each Mortgage
Pool. So long as any indebtedness remains outstanding on any of the Mortgage
Loans, the Mortgage Originator shall service such Mortgage Loans until all
payments due with respect to the related Participation are paid in full, and to
that end will, by way of illustration only and without limitation:
(a) Proceed with reasonable diligence to collect all
payments on the Mortgage Loam as and when they shall become due and
payable, exercising the same standard of care and using the same
methods that the Mortgage Originator would use in servicing mortgage
loans held in its portfolio or, if higher, the standard of care and
methods used in the mortgage loan servicing industry for the servicing
of loans held by others;
(b) At the direction of the Participant, remit to the
Participant on or before the tenth day of each month (i) the
Participant's pro rata share of the amount of principal collected on
each of the outstanding Mortgage Loans during the previous month and
(ii) accrued interest on the outstanding Participation Principal
Balance for each Participation as set forth in Paragraph 1 above;
provided, however, that if any collections on a Mortgage Loan are due
to foreclosure or other liquidation of the Mortgage Loan, then such
collections shall be applied in accordance with Paragraph 5 above;
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(c) Cause the related mortgagor to maintain hazard
insurance policies, including but not limited to policies of flood
insurance if required, covering the mortgaged premises in an amount at
least equal to the outstanding mortgage balance;
(d) Keep records pertaining to each mortgage note and the
collections thereon and permit the Participant to examine these and
other records pertaining to each of the Mortgage Loans at such times as
the Participant may elect during the Mortgage Originator's business
hours; and
(e) Cause the taxes on the mortgaged premises securing
each Mortgage Loan to be examined annually and report any delinquent
taxes to the Participant.
7. Servicing Compensation. The Mortgage Originator shall be
entitled to retain, as its sole compensation for servicing the Mortgage Loans
subject to Participations hereunder, all late charges payable and collected
under the terms of the Mortgage Loans. The Mortgage Originator shall not be
entitled to any additional fees for the performance of its duties as servicer of
any Mortgage Loan.
8. Representations and Warranties with Respect to Mortgage Loans.
The Mortgage Originator represents and warrants to the Participant as to each
Mortgage Loan as of the date of addition of such Mortgage Loan to a Mortgage
Pool that:
(a) proceeds equal to the note amount have been disbursed
to or for the account of the mortgagor;
(b) it holds a mortgagee title insurance policy or a
valid first or second lien letter, as the case may be, from a title
insurance company acceptable to Participants with an insured closing
letter from the underwriter, showing the related mortgage to be a first
or second mortgage lien, as the case may be, on the mortgaged premises
subject only to such easements, restrictions, title irregularities and
similar matters which do not have any adverse effect on the ownership,
appraised value or use of the mortgaged premises;
(c) the note and mortgage are genuine instruments binding
and enforceable against the mortgagor and subject to no defenses of any
kind or nature;
(d) there are no defaults existing under the note or
mortgage;
(e) the mortgage has been duly recorded or has been
forwarded to the proper governmental office (and is in the proper form
and accompanied by appropriate fees) for recording;
(f) the principal balance remaining unpaid is the amount
shown on the Mortgage Loan Schedule attached to the related
Participation Certificate;
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(g) it holds a policy of insurance covering the mortgaged
premises insuring against loss or damage by fire and other hazards not
less extensive than extended coverage insurance, with an appropriate
mortgagee loss payable endorsement in favor of the Mortgage Originator
and its assigns as mortgagee;
(h) at the time of closing each Mortgage Loan there was
compliance by the relevant parties with all of the applicable
provisions of applicable federal and state law and regulations;
(i) all information provided to the Participant with
respect to each Mortgage Loan is true, complete and accurate in all
material respects and no person or entity involved in the origination
or servicing of the Mortgage Loan has made any false representation or
has failed to provide information that is true, complete and accurate
in connection with such transaction;
j) the mortgage or deed of trust securing the Mortgage
Loan is a valid, existing and enforceable first or second lien on the
mortgaged property, as the case may be;
(k) the Mortgage Originator has no knowledge of any
circumstances or condition with respect to the Mortgage Loan or the
related mortgagor's credit standing that can reasonably be expected to
cause the Mortgage Loan to become an unacceptable investment or
delinquent or to adversely affect the value of any Participation;
(l) the Mortgage Originator is the sole owner and holder
of the Mortgage Loan, the Mortgage Originator has not assigned or
pledged the Mortgage Loan to secure any obligation other than the
related Participation and the Mortgage Originator has good and
marketable title to the Mortgage Loan;
(m) the Mortgage Loan is subject to a contractual
arrangement between the Mortgage Originator and a takeout investor, the
arrangement and takeout investor both being acceptable to the
Participant (including an agency of the United States government, a
seller-servicer approved by an agency of the United States government
or any other institutional investor) pursuant to which such purchaser
agrees to purchase such Mortgage Loan or guarantee another party's
purchase of the Mortgage Loan (a "Takeout Commitment").
(n) the Mortgage Loan has been underwritten in accordance
with standard underwriting requirements as specified by the Participant
or the related takeout investor, whichever are more stringent; and
(o) the Mortgage Loan complies with all requirements set
forth in the Participant's seller-servicer guide as amended from time
to time.
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9. Further Assurances. The Mortgage Originator agrees to make
such further representations and warranties with respect to each Mortgage Loan
and to take such actions in connection with each Mortgage Loan (including the
reaffirmation of the representations and warranties contained herein) as the
Participant may require from time to time in connection with the financing of
the Participations.
10. Delivery of Documents. Simultaneously with the purchase of any
Participation or the delivery of any Mortgage Pool Addition Certificate, the
Mortgage Originator shall deliver to the Participant, with respect to each
Mortgage Loan which is to become a part of or be added to the related Mortgage
Pool, the following documents:
(a) The original, fully executed mortgage note for such
Mortgage Loan, endorsed in blank without recourse, which note is hereby
pledged to the Participant to secure the performance of all of the
Mortgage Originator's obligations to the Participant incurred
hereunder. The Participant will from time to time, at the request of
the Mortgage Originator and in accordance with Paragraph 2(b), return
to the Mortgage Originator such notes as have been paid by the
mortgagor or are otherwise needed by the Mortgage Originator to
facilitate the servicing of the Mortgage Loans.
(b) The mortgage or deed of trust with respect to such
Mortgage Loan, with evidence of recording thereon, or, if such document
has not been returned by the applicable recording office, a certified
true and complete copy of such document.
(c) An assignment of mortgage in recordable form of the
individual mortgage or deed of trust which secures the Mortgage Loan.
Assignments delivered under this Agreement may be recorded by the
Participant at any time in the sole discretion of the Participant.
(d) A copy of the Takeout Commitment relating to such
Mortgage Loan, which Takeout commitment is hereby assigned to the
Participant.
11. Events The Mortgage Originator shall be in default upon the
occurrence of any one or more of the following events (each, an "Event of
Default"):
(a) The Mortgage Originator shall fail to remit to the
Participant any principal or interest on a Participation as such
amounts become due and payable under the terms of this Agreement;
(b) The Mortgage Originator shall default in the
performance of any other agreement herein contained and such default
continues for thirty (30) days after written notice thereof shall be
given the Mortgage Originator by the Participant; or
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(c) The Mortgage Originator shall become insolvent,
bankrupt or make an assignment for the benefit of its creditors, or a
receiver or trustee is appointed for the Mortgage Originator, or if
bankruptcy, reorganization or liquidation proceedings are instituted by
or against the Mortgage Originator.
12. Remedies. Upon the occurrence of an Event of Default by the
Mortgage Originator:
(a) The Participant's commitment to increase the
Participation Principal Balance for any Participation in connection
with the addition of a Mortgage Loan to the related Mortgage Pool under
this Agreement shall cease to be in effect.
(b) The Participant shall take record title to each
Mortgage Loan, may endorse the notes in its favor, may record the
assignments of mortgage and shall have the right to service each of the
Mortgage Loans. For such purposes, the Mortgage Originator agrees that
upon demand by the Participant, it will turn over to the Participant
all of its records pertaining to the Mortgage Loans and all documents
pertaining thereto, including, but not limited to, title insurance
policies, hazard insurance policies, mortgages, surveys and related
papers. In addition, the Mortgage Originator hereby grants full power
and authority to the Participant, acting in its name alone, or in its
name as attorney-in-fact for the Mortgage Originator, to do and perform
any and all of the undertakings of the Mortgage Originator hereunder,
and in addition hereto, the power and authority to demand, collect, xxx
for all monies due or to become due on any of the Mortgage Loans, to
foreclose any of the Mortgage Loans by exercise of the power of sale or
by court action, and to exercise any and all other powers and rights
that the Mortgage Originator may now have or hereafter acquire with
respect to any of the Mortgage Loans. This power is declared to be
coupled with an interest and is irrevocable so long as the Participant
shall have any interest in a Participation hereunder.
(c) The Participant shall be entitled, at the
Participant's option, to require the Mortgage Originator to repurchase
the Participation Certificate relating to any Participation at an
amount equal to the related Participation Principal Balance as of the
date of repurchase plus (i) any accrued and unpaid interest on such
Participation Principal Balance, (ii) any accrued and unpaid fees owed
to the Participant and (iii) any out-of-pocket expenses paid by the
Participant for which the Participant is entitled to be reimbursed
under the terms of this Agreement.
13. Guaranty and Security. The Mortgage Originator's obligations
hereunder shall be guarantied and secured in a manner satisfactory to the
Participant.
14. Servicing by Participant . When the Participant is servicing
the Mortgage Loans or exercising the power and authority granted by Paragraph 13
above, it shall be entitled to receive the late charges referred to in Paragraph
7 above.
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15. Fees and Expenses. Upon the addition of a Mortgage Loan to, or
the removal of a Mortgage Loan from, any Mortgage Pool, the Mortgage Originator
shall pay to the Participant the fees and expenses set forth in the Terms
Addendum.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
17. Entire Agreement Severability. This Agreement shall supersede
any existing agreement and shall constitute the entire agreement between the
parties relating to the subject matter hereof Each provision and agreement
herein shall be treated as separate and independent from any other provision or
agreement herein and shall be enforceable notwithstanding the unenforceability
of any such other provision or agreement.
18. Notices and Other Communications. Any and all notices,
statements, demands or other communications hereunder may be given by a party to
the other by mail, facsimile, telegraph, messenger or otherwise to the address
listed below, or such other address as may be specified in a notice of change of
address hereafter received by the other:
MORTGAGE ORIGINATOR: Credit Depot Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PARTICIPANT: PINNACLE MORTGAGE ACCEPTANCE CORPORATION
0000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000:
All notices, demands and requests hereunder may be made orally, to be confirmed
promptly in writing, or by other communication as specified in the preceding
sentence.
19. Waiver Amendment. No express or implied waiver of any Event
of Default by either party shall constitute a waiver of any other Event of
Default and no exercise of any remedy hereunder by any party shall constitute a
waiver of its right to exercise any other remedy hereunder. No modification or
waiver of any provision of this Agreement and no consent by any
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party to a departure herefrom shall be effective unless in writing and duly
executed by both of the parties hereto.
20. Termination of Agreement. If this Agreement has not otherwise
terminated pursuant to its terms prior to the date which is one year from the
date hereof,. or any anniversary of such date, then this Agreement shall
automatically be renewed for an additional year unless the Mortgage Originator
or the Participant has delivered notice to the contrary to the other party at
least 60 days prior to such date; provided, however, that the Agreement shall
not be terminated until the Participant has received all amounts due with
respect to all Participations. Notwithstanding the foregoing, if the Mortgage
Originator delivers notice of termination of this Agreement to the Participant,
the Mortgage Originator shall not be entitled to add any Mortgage Loans to a
Mortgage Pool after the date of termination specified in such notice.
IN WITNESS WHEREOF, the parties hereto have caused this Participation
Agreement to be duly executed by their authorized officers the day and year
first above written.
CREDIT DEPOT CORPORATION,
as Mortgage Originator
By: /s/ Xxxxxx X. Xxxxxxxx
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Its: President
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PINNACLE MORTGAGE ACCEPTANCE CORPORATION
as Participant
By: /s/ Xxxx Xxxxxxx
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Its: EVP
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