REDACTED – AS FILED [Portions of this Exhibit have been omitted pursuant to a Request for Confidential Treatment]
Exhibit
10.8
REDACTED
– AS FILED
[Portions
of this Exhibit have been omitted pursuant
to
a Request for Confidential Treatment]
BRACKETS
“[ ]*” ARE USED TO INDICATE WHERE A PORTION OF THIS EXHIBIT HAS BEEN
OMITTED. CROSSES “[+]*” ARE USED TO INDICATE WHERE THE NAME OF A
PARTY HAS BEEN REDACTED.
CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. A
COMPLETE COPY OF THIS EXHIBIT, CONTAINING ALL OF THE OMITTED PORTIONS, HAS BEEN
SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION TOGETHER WITH THE
REQUEST FOR CONFIDENTIAL TREATMENT.
AGREEMENT
THIS AGREEMENT (this
"Agreement") is made and entered into as of the 6th day of October,
2005, by and between [+]*, a federal savings bank
(together with its successors and assigns "[+]*"), HARDY CREDIT CO., 0000
Xx. 000, Xxxxxx Xxxx, Xxxxxxxxxxxx 00000, a Pennsylvania limited
partnership (together with its successors and assigns "Hardy Credit"), and 84
LUMBER COMPANY, 0000 Xx. 000, Xxxxxx Xxxx, Xxxxxxxxxxxx 00000, a
Pennsylvania limited partnership (together with its successors and assigns "84
Lumber").
RECITALS
WHEREAS, [+]* has heretofore originated
and desires to continue to originate certain Mortgage Loans as part of [+’s]* Enhanced Builder Direct
Lending Program with 84 Lumber (the "Program") (each such loan a "Mortgage Loan"
or more than one may be sometimes referred to as "Mortgage
Loans"). Said Program is made a part of this Agreement and is more
fully described in Exhibit 1, which may be amended from time to time with the
consent and agreement of [+]*, Hardy Credit, 84 Lumber,
and the Investors.
WHEREAS, 84 Lumber desires to
refer builders to the Program.
WHEREAS, Hardy Credit desires
to purchase certain of such Mortgage Loans as well as possibly participate in
the Program as an Investor subject to the terms and provisions set forth in this
Agreement.
WHEREAS, Hardy Credit’s
commitment to purchase said Mortgage Loans together with its other agreements
and obligations as set forth herein are a material inducement to [+]* to continue the
Program.
1
WHEREAS, 84 Lumber and [+]* entered into an agreement
dated February 11, 1998 (“Original Agreement”).
WHEREAS, the parties have
entered into an agreement dated December 31, 2002 (“Put
Agreement”).
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants, conditions, and
promises hereinafter contained, and for other good and valuable consideration,
the prior receipt and sufficiency of which are hereby acknowledged; the parties
agree as follows:
AGREEMENT
Article 1 - Binding
Agreement
1.1
|
Recitals. The
above recitals shall be deemed a part of this Agreement and are
incorporated herein by this
reference.
|
1.2
|
Binding
Agreement. With respect to any Mortgage Loan described
in Section 1.5 hereof, together with any other Mortgage Loan currently
existing or originated after the date of this Agreement, Hardy Credit
agrees to purchase such Mortgage Loan in accordance with and upon the
terms, provisions, and conditions hereinafter set
forth.
|
1.3
|
[+]*'s Ownership of Mortgage
Loans. [+]* hereby agrees to
participate as an Investor in the Program [REDACTED – CONFIDENTIAL
TREATMENT REQUESTED]*. [+]* may change the
amount of its commitment or yield pursuant to Section 7.2. In
the event of termination under Section 10.5(b) by either party, the six
months notice provision in Section 7.2 as it relates to [+]* shall be nine (9)
months. The parties agree that the minimum net yield on all
retained or purchased Mortgage Loans by [+]* shall be [REDACTED – CONFIDENTIAL
TREATMENT REQUESTED]*. The parties further agree that
the total amount of new Mortgage Loan originations will be limited to the
total Mortgage Loan purchase commitment amount of all investors involved
in the Program.
|
1.4
|
Hardy Credit’s Obligation to
Purchase a Mortgage Loan. Hardy Credit shall,
immediately upon receipt of written notice from [+]* that any of the
following events (each a "Trigger Event") has occurred, purchase the
related Mortgage Loan from the
Investor:
|
|
[REDACTED
– CONFIDENTIAL TREATMENT
REQUESTED]*
|
1.5
|
[REDACTED
– CONFIDENTIAL TREATMENT
REQUESTED]*
|
2
Article 2 - Sale and
Purchase
2.1
|
Sale and Purchase of
Documents. [+]* (or another
Investor as applicable) agrees to sell, convey, and assign without
recourse to Hardy Credit and Hardy Credit agrees to purchase and accept
from [+]* (or
another Investor as applicable), for the applicable Purchase Price as
defined in this Article 2 and subject to the terms and conditions set
forth in this Agreement, all of [+]*'s (or another
Investor's) right, title and interest in, to and under the following
(collectively the "Mortgage Loan
Documents"):
|
|
(a)
|
Those
certain promissory notes or other evidence of the Mortgage Loan
indebtedness of a mortgagor (each a "Mortgage Note") evidencing the
obligation of the respective Mortgage Loan mortgagors (each a
"Mortgagor");
|
|
(b)
|
Those
certain mortgages, deed of trust instruments and security agreements (each
a "Mortgage"), which xxxxx x xxxx on the real property described therein
(the "Mortgaged Property");
|
|
(c)
|
Those
certain assignments of leases and rents ("Assignments of Leases and
Rents"); and
|
|
(d)
|
To
the extent applicable to such Mortgage Loan, all other instruments,
agreements, documents evidencing, guaranteeing or securing the Mortgage
Loan, including, but not limited to, any and all Mortgage Loan agreements,
guarantees, security agreements, financing statements, collateral
assignments, pledge assignments, appraisals, environmental reports, and
due diligence materials or files.
|
2.2
|
Purchase
Price. The applicable Purchase Price for each Mortgage
Loan shall be as follows:
|
|
(a)
|
For
every Mortgage Loan acquired by Hardy Credit pursuant to the terms and
provisions of this Agreement, the Purchase Price shall be equal to (i) One
Hundred Percent (100%) of the unpaid principal balance of said Mortgage
Loan on the date of the Trigger Event; (ii) plus accrued but unpaid
interest at the Original Note rate adjusted by changes in the Prime Rate
only through the Hardy Credit Purchase Date; (iii) plus any and all
servicing advances and expenses incurred by [+]* with respect to
said Mortgage Loan through the Hardy Credit Purchase
Date.
|
2.3
|
Hardy Credit Purchase Date and
Payment. The "Hardy Credit Purchase Date" shall be a
mutually agreed upon date that is no later than the fifteenth (15th) day
of the calendar month immediately following Hardy Credit's receipt of
written notice that a Trigger Event has occurred. "Written
notice" shall be defined as monthly reports, payoff statements, or other
forms of written notice as amended from time to time. For all
purchases, Hardy Credit shall wire immediately available funds to [+]* in accordance with
written instructions given by [+]*. Any
given Hardy Credit Purchase Date may be extended if the Investor, [+]*, and Hardy Credit
all agree to such an extension for a particular loan or
loans.
|
3
Article 3 - Deliveries to
the Parties; Duties of Parties
3.1
|
Deliveries to the
Parties. On, or before, the Hardy Credit Purchase Date,
Hardy Credit and [+]* shall deliver or
cause to be delivered the following
items:
|
|
( a)
|
By Hardy
Credit. Hardy Credit shall deliver or cause to be
delivered to [+]*:
|
|
(1)
|
the
Purchase Price due pursuant to Section
2.
|
|
(b)
|
By
[+]*. Except as may be otherwise subject to a custodial
agreement, [+]*,
upon receipt of good funds, shall deliver to an acceptable overnight
courier for delivery to Hardy
Credit:
|
|
(1)
|
The
original Mortgage Note for each Mortgage Loan, endorsed to Hardy Credit in
the following manner:
|
"Pay to
the order of ____________________________, WITHOUT RECOURSE.
[+]*
Savings Bank, FSB
By:
|
|
Name:
|
|
Title:
|
|
(2)
|
The
original Mortgage, with evidence of recording thereon or, in the case
where the original recorded Mortgage has not yet been returned from the
appropriate recording office, a copy of the Mortgage along with a title
update from the title company which issued title insurance showing the
recorded Mortgage in first lien
position;
|
|
(3)
|
An
original assignment of the Mortgage to Hardy Credit in satisfactory and
recordable form for each Mortgage ("Assignment of Mortgage"), duly
executed and acknowledged by [+]* on behalf of the
Investor(s);
|
|
(4)
|
If
an Assignment of Leases and Rents was recorded against any Mortgaged
Property, an original assignment of such Assignment of Leases and Rents to
Hardy Credit in satisfactory and recordable form for each such Mortgaged
Property ("Assignment of Assignment of Leases and Rents"), executed and
acknowledged by [+]* on behalf of the
Investor(s);
|
|
(5)
|
Any
and all agreements by which the payment of the Mortgage Note was in any
way guaranteed ("Guaranty
Agreement");
|
|
(6)
|
If
a UCC-Financing Statement was filed against any of the Mortgagors or was
recorded against any Mortgaged Property, an original assignment of such
UCC-1 Financing Statement to Hardy Credit via a UCC-3 Statement or other
applicable assignment form ("UCC-3"), duly executed and acknowledged by
[+]* on behalf of
the Investor(s) in form and substance acceptable for filing or recording
in the filing or recording office where any such UCC-1 Financing Statement
was filed or recorded; and
|
4
|
(7)
|
All
other documents, originals where available, currently in the loan
file.
|
Article 4
-Closing
4.1
|
Closing. For purposes of
this Agreement, the closing ("Closing") shall be defined as the receipt of
the wire transfer by [+]* and [+]*'s immediately
subsequent delivery of the items listed in Section 3.1(b) to an overnight
courier for delivery to Hardy
Credit.
|
4.2
|
Closing
Costs. In connection with the transfer and delivery of
the Mortgage Loans on the Closing Date pursuant to this Agreement, [+]* shall pay the legal
fees and expenses of its attorney. Hardy Credit shall pay, or
shall cause to be paid by third parties, all other costs and expenses
incurred in connection with the transfer and delivery of the Mortgage
Loans, including fees and title policy updates, endorsements and
continuations and fees for recording the Assignment of Mortgage, the
Assignment of the Assignment of Leases and Rents, and the
UCC-3's. Each party shall also pay its own legal fees and
expenses in connection with the preparation and negotiation of this
Agreement and closing of the transactions contemplated
hereby.
|
Article 5 –
Fees
5.1
|
Origination
Fees. For each Mortgage Loan originated after the date
of this Agreement the parties agree regarding the origination fee
associated with each such Mortgage Loan that (i) [+]* shall receive [REDACTED – CONFIDENTIAL
TREATMENT REQUESTED]*; and (ii) Hardy Credit and 84 Lumber shall
collectively receive [REDACTED – CONFIDENTIAL
TREATMENT REQUESTED]*. Of the amount received by Hardy
Credit and 84 Lumber, Hardy Credit shall be required to deposit [REDACTED – CONFIDENTIAL
TREATMENT REQUESTED]* into the Fund as described in Section 9.3 of
this Agreement with Hardy Credit and 84 Lumber being entitled to retain
any excess origination fee received by them as they may so
agree. For each Mortgage Loan of [REDACTED – CONFIDENTIAL
TREATMENT REQUESTED]* or greater originated after the date of this
Agreement, the parties agree regarding the origination fee associated with
such Mortgage Loan, that (i) [+]* shall receive [REDACTED – CONFIDENTIAL
TREATMENT REQUESTED]*; and (ii) Hardy Credit shall deposit [REDACTED – CONFIDENTIAL
TREATMENT REQUESTED]* into the Fund, [REDACTED – CONFIDENTIAL
TREATMENT REQUESTED]*. All expenses and other income
associated with the origination of each Mortgage Loan, irrespective of
amount, shall [REDACTED –
CONFIDENTIAL TREATMENT REQUESTED]*, including, without
limitation, pre-construction fees, document preparation fees,
courier fees, and flood certification
fees.
|
5
5.2
|
Definition of
“Spread”. “Spread” shall be defined as the difference
between (i) interest received from the Mortgagor or Hardy Credit; and (ii)
interest paid to any Investor.
|
5.3
|
[+]*'s Servicing
Fees. [+]* shall service each
Mortgage Loan until such time as the same is paid off in full or until
such time as said Mortgage Loan is acquired by Hardy Credit pursuant to
the terms and provisions of this Agreement. In consideration
for such services, [+]* shall receive [REDACTED – CONFIDENTIAL
TREATMENT REQUESTED]* (the “[+]* Servicing
Fee”).
|
5.4
|
Hardy Credit's
Fees. In consideration for the agreements and promises
made herein, during the period that [+]* services each
Mortgage Loan, Hardy Credit shall receive [REDACTED – CONFIDENTIAL
TREATMENT REQUESTED]* (the "Credit Enhancement Fee") which Credit
Enhancement Fee shall be deposited into the Fund as described in Section
9.3.
|
5.5
|
84 Lumber's
Fees. In consideration for the agreements and promises
made herein, during the period that [+]* services each
Mortgage Loan, 84 Lumber shall receive, [REDACTED – CONFIDENTIAL
TREATMENT REQUESTED]* (the "Marketing Expense
Fee").
|
Article 6 - Representations
and Warranties
6.1
|
Representations and
Warranties. As a material inducement to [+]*'s execution of this
Agreement and as an inducement to Hardy Credit to purchase [+]*'s (or another
Investor's) interest in the Mortgage Loans and the Mortgage Loan
Documents, the parties each hereby represent and warrant as
follows:
|
|
(a)
|
Power, Authority and Due
Authorization. Each party has the requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby and this Agreement and all agreements, instruments,
and documents herein provided to be executed by said parties will be duly
authorized, executed and delivered by and will be binding
thereupon.
|
|
(b)
|
No
Securities. The parties are not relying upon the
continued actions or efforts of the other in connection with their
decision to sell or purchase the Mortgage Loans, and each agrees that
because of its sophistication and status, and the representations made
herein, neither considers the sale or purchase of the Mortgage Loans to
constitute the sale or purchase of securities within the meaning of
federal or state securities laws.
|
6
6.2
|
"AS-IS"; No [+]*
Representations and Warranties. EXCEPT FOR THOSE
REPRESENTATIONS AND WARRANTIES SPECIFICALLY MADE BY [+]* IN THIS AGREEMENT,
EACH MORTGAGE LOAN AND THE MORTGAGE LOAN DOCUMENTS ARE PURCHASED AND SOLD
"AS
IS". HARDY CREDIT ACKNOWLEDGES THAT ANY INFORMATION
("INFORMATION") THAT [+]* PROVIDES OR MAKES
AVAILABLE TO HARDY CREDIT, WHETHER WRITTEN OR ORAL, OR IN THE FORM OF
APPRAISALS, MAPS, SURVEYS, PLATS, SOIL REPORTS, ENGINEERING STUDIES,
ENVIRONMENTAL STUDIES, INSPECTION REPORTS, PLANS, SPECIFICATIONS, DUE
DILIGENCE REPORTS, OR ANY OTHER INFORMATION PERTAINING TO THE MORTGAGE
LOAN, MORTGAGOR, THE MORTGAGE LOAN DOCUMENTS OR THE PROPERTY, OR ANY AND
ALL RECORDS AND OTHER DOCUMENTS PERTAINING TO THE USE AND OCCUPANCY OF THE
PROPERTY, INCOME OF THE PROPERTY, THE COST AND EXPENSES OF MAINTAINING THE
PROPERTY, AND ANY AND ALL OTHER MATTERS CONCERNING THE CONDITION,
SUITABILITY, INTEGRITY, MARKETABILITY, COMPLIANCE WITH LAW OR OTHER
ATTRIBUTE OR ASPECT OF THE MORTGAGE LOAN, THE MORTGAGOR, THE MORTGAGE LOAN
DOCUMENTS OR THE PROPERTY, EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES
SPECIFICALLY MADE BY [+]* IN THIS AGREEMENT,
IS FURNISHED TO HARDY CREDIT WITHOUT WARRANTY; [+]* GIVES NO
REPRESENTATIONS AND WARRANTIES ABOUT, AND ASSUMES NO RESPONSIBILITY FOR,
THE ACCURACY OR COMPLETENESS OF THE INFORMATION, AND HARDY CREDIT IS NOT
ENTITLED TO RELY ON ANY OF THE INFORMATION. EXCEPT FOR THOSE
REPRESENTATIONS AND WARRANTIES SPECIFICALLY MADE BY [+]* IN THIS AGREEMENT,
NO OFFICER, EMPLOYEE OR AGENT OF [+]* HAS BEEN AUTHORIZED
TO MAKE ANY REPRESENTATIONS REGARDING INFORMATION, THE MORTGAGE LOAN, THE
MORTGAGOR, THE MORTGAGE LOAN DOCUMENTS OR THE PROPERTY, AND IF GIVEN,
THESE REPRESENTATIONS MAY NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY
[+]*. THE
RELIANCE BY HARDY CREDIT UPON ANY SUCH INFORMATION SHALL NOT CREATE OR
GIVE RISE TO ANY LIABILITY OF OR AGAINST [+]*, [+]*'S AFFILIATES OR ANY
OF THEIR RESPECTIVE PARTNERS, SHAREHOLDERS, OFFICERS, DIRECTORS,
PARTICIPANTS, EMPLOYEES, CONTRACTORS, CONSULTANTS, REPRESENTATIVES OR
AGENTS.
|
6.3
|
Exceptions. Notwithstanding the
limitations of Section 6.2 hereof, [+]* hereby represents
that (i) to the best of its knowledge, the origination practices
with respect to each Mortgage Loan have been in all material respects
legal, proper, prudent, and customary in the mortgage origination
business; (ii) the servicing and collection practices with respect to each
Mortgage Loan have been in all material respects legal, proper, prudent,
and customary in the mortgage servicing business; (iii) to the best of its
knowledge, the Mortgage Loan documents executed in connection
therewith are genuine, and each is the legal, valid, and binding
obligation of the Mortgagor thereof, enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and by general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law); (iv) to the best of its
knowledge, all Mortgagors had legal capacity to execute, deliver
and perform the Mortgage Note and the Mortgage, and the Mortgage Note and
the Mortgage have been duly and properly executed by such parties or
pursuant to a valid power-of-attorney that has been recorded with the
Mortgage; and (v) each Mortgage Loan is properly assignable under the
terms and provisions of this
Agreement.
|
7
6.4
|
Repurchase. In
the event of a breach of any representation contained in Section 6.3 of
this Agreement and upon written notice from Hardy Credit not later than
thirty (30) days from its discovery of an alleged breach, [+]* shall have the
opportunity to cure such breach within ninety (90) days, unless otherwise
extended by Hardy Credit. In the event [+]* is unable to cure
or has failed to undertake a diligent effort to do so within the cure
period (as may be extended as provided above), [+]* shall be required
to repurchase the subject Mortgage
Loan.
|
Article 7 –
Investors
7.1
|
Additional
Investors. The parties shall continue to jointly
identify and seek the participation of additional Investors to fund
Mortgage Loans during the term of this Agreement. Any such
party, including, without limitation, [+]* or Hardy Credit,
may be sometimes referred to herein as an
"Investor".
|
7.2
|
[REDACTED
– CONFIDENTIAL TREATMENT
REQUESTED]*
|
7.3
|
[REDACTED
– CONFIDENTIAL TREATMENT
REQUESTED]*
|
7.4
|
Assignment by [+]* of Hardy
Credit's Obligations. The parties agree that in the
event a Mortgage Loan is purchased by an Investor other than [+]* or Hardy Credit,
[+]* may assign
its right to sell such Mortgage Loan to Hardy Credit to said Investor
subject to the prior written approval of Hardy Credit, which approval
shall not be unreasonably withheld.
|
7.5
|
[REDACTED
– CONFIDENTIAL TREATMENT
REQUESTED]*
|
7.6
|
[REDACTED
– CONFIDENTIAL TREATMENT
REQUESTED]*
|
7.7
|
Potential Investor
Confidentiality. All potential Investors shall be
required to sign a confidentiality agreement. The duration of
the agreement shall be one (1) year and be similar in form and content to
the confidentiality agreement attached as Exhibit
2.
|
Article 8 – [+]*
Covenants
8.1
|
REDACTED
– CONFIDENTIAL TREATMENT
REQUESTED]*
|
8.2
|
[REDACTED
– CONFIDENTIAL TREATMENT
REQUESTED]*
|
Article 9 – Hardy Credit
Covenants/84 Lumber Covenants
In
addition to any other obligations of Hardy Credit and 84 Lumber contained
herein, Hardy Credit and 84 Lumber hereby respectively covenant as
follows:
9.1
|
Entire Life of Mortgage
Loans. Hardy Credit agrees that its commitment to
purchase any Mortgage Loan, whether following a Trigger Event or as is
otherwise provided for in this Agreement, shall remain in full force and
effect for the entire life of any Mortgage Loan originated under the
Program, as amended from time to
time.
|
8
9.2
|
[REDACTED
– CONFIDENTIAL TREATMENT
REQUESTED]*
|
9.3
|
Loan Reserve
Fund. Hardy Credit shall at all times maintain in a
deposit account with a federally insured institution a cash reserve fund
(the "Fund") of not less than the greater of [REDACTED
– CONFIDENTIAL TREATMENT REQUESTED]*. Hardy
Credit agrees that it shall deposit the Credit Enhancement Fee described
in Section 5.4 into the Fund. Additional
deposits required by Section 5.1 will be made by Hardy Credit
at the origination of each new Mortgage Loan as described in Section 5.1
or [REDACTED
– CONFIDENTIAL TREATMENT REQUESTED]*. Proceeds
from the Fund shall be used exclusively for reimbursement of advances or
losses, whether made or incurred by [+]* or Hardy Credit as
applicable, related to servicing Mortgage Loans, including servicing fees,
expenses, settlement losses, interest at Hardy Credit’s cost, or [REDACTED
– CONFIDENTIAL TREATMENT REQUESTED]*. Any net
proceeds from the liquidation, collateral disposition or resolution of
Mortgage Loans will be deposited into the Fund. [REDACTED
– CONFIDENTIAL TREATMENT REQUESTED]*. Thereafter
and on an annual basis, to the extent there are amounts in the Fund in
excess of the Maximum Balance, such excess may be distributed to Hardy
Credit.
|
9.4
|
[REDACTED –
CONFIDENTIAL TREATMENT REQUESTED]*
|
9.5
|
Credit
Increases. 84 Lumber hereby covenants that it will use
its best efforts to not increase limits on open lines of credit extended
to customers through 84 Lumber’s Contractor Commercial Credit Account
based upon approved financing to the customers through the Program unless
the same credit limit increase would have occurred without regard to said
Program.
|
9.6
|
Exclusivity. Each
of Hardy Credit and 84 Lumber together with each's successors, assigns and
affiliates covenant that neither will participate in any lending program
similar to the Program described herein with any party other than [+]*. Hardy
Credit operates a lending program “Hardy Program” for the benefit of 84
Lumber. This Hardy Program differs from the Program in that
there is no guaranteeing entity (like Hardy Credit in the Program) and the
customers are either 1) having 84 Lumber pay a portion of their interest;
2) not qualified for the Program; or 3) qualified for the Program but not
for the loan being done by the Hardy Program. The Hardy Program
is excluded from the Exclusivity requirement of this Section
9.6
|
9.7
|
Net Worth
Covenant. If Hardy Credit has a net worth or net worth
plus subordinated debt covenant in its agreement with the
lender(s) supplying the Take Out Line , then that covenant will be
considered a covenant of this Agreement as long as that covenant is in
effect in said line of credit agreement. If the Take Out Line
lender does not require a minimum net worth or net worth plus subordinated
debt, then Hardy Credit will maintain a minimum net worth plus
subordinated debt of
$25,000,000.
|
9
Article 10 – Termination,
Remedies, Indemnification
10.1
|
Termination. With
respect to any Mortgage Loan originated under the Program, the respective
obligations and responsibilities of Hardy Credit hereunder shall not
terminate even after termination of the Program as described more fully in
Section 10.5.
|
10.2
|
Assignment. Other
than as set forth in Section 7.4, the parties agree that no party shall
assign its rights and/or obligations under this Agreement, in whole or in
part, without the prior written consent of the others, which consent shall
not be unreasonably withheld.
|
10.3
|
[+]*'s Indemnity. [+]* shall indemnify and
hold Hardy Credit and 84 Lumber, together with each of their partners,
officers, shareholders and employees, harmless from and against any and
all liability, loss, damage, penalty, forfeiture, legal or accounting
fees, court reporting expenses, expert witness fees, and all other fees or
costs of any kind, judgments or expense, resulting from or arising out of
a breach by [+]*
of any of its obligations hereunder, including but not limited to [+]*'s representations
or warranties and covenants contained
herein.
|
10.4
|
Hardy Credit's & 84
Lumber's Indemnity. Hardy Credit and 84 Lumber shall
indemnify and hold [+]*, together with its
partners, officers, shareholders and employees, harmless from and against
any and all liability, loss, damage, penalty, forfeiture, legal or
accounting fees, court reporting expenses, expert witness fees, and all
other fees or costs of any kind, judgments or expense, resulting from or
arising out of a breach by Hardy Credit or 84 Lumber of any of their
obligations hereunder, including but not limited to Hardy Credit's or 84
Lumber 's representations or warranties and covenants contained
herein.
|
10.5
|
Termination.
|
|
(a)
|
Termination Due to Breach of
Contract. In the event of a breach of contract by any
party to this Agreement, the injured party may give notice of such breach
to the breaching party. The breaching party will have ninety
(90) days to cure the breach. If said breach is not cured
within the 90 day period, the affected party may terminate this Agreement,
subject to Section 10.5(d). The termination will also terminate
Sections 8.1 and 9.6 of this
Agreement.
|
|
(b)
|
Termination by Hardy Credit or
[+]*. Hardy Credit or [+]* may terminate this
Agreement for any reason whatsoever with nine (9) months
notice. During such notice period, all provisions of this
Agreement shall continue in force. The termination will also
terminate Sections 8.1 and 9.6 of this Agreement at the end of the nine
(9) month notice period.
|
|
(c)
|
Termination by 84
Lumber. 84 Lumber Company may terminate this Agreement
for any reason whatsoever without notice. Such termination
shall terminate Section 8.1 of this Agreement. Section 9.6 of
this Agreement shall continue in force for a period of one (1) year
following termination by 84 Lumber after which date Section 9.6 shall also
terminate. [REDACTED
– CONFIDENTIAL TREATMENT REQUESTED]*
|
10
|
(d)
|
Termination
by Any Means.
|
1. Upon
any event of termination contemplated by this Agreement, the following sections
shall continue in force until there are zero (0) Mortgage Loans owned by Hardy
Credit, [+]*, or
Investors:
All of Sections 1, 2, 3, 4, 5, 6;
Sections 7.2, 7.3, 7.4, 7.5, 9.1.
2. Upon
any event of termination, the following sections will not continue in
force:
Sections 7.1, 7.7, 9.5.
3. Upon
any event of termination, the following sections will continue in force until
there are zero (0) Mortgage Loans owned by [+]* or any
Investor:
Sections 8.2, 9.2, 9.3, 9.4, 9.7,
10.1, 11.1.
4. Upon
any event of termination, the following sections will continue in force until a
period of one year has passed after there are zero (0) Mortgage Loans owned by
Hardy Credit, [+]*, or
Investors:
All of
Sections 10 and 11 except Sections 10.1 and 11.1.
Article 11 -
Miscellaneous
11.1
|
Right to
Audit. The parties agree that upon reasonable notice to
the others that each shall have the right to audit the other with respect
to the subject matter hereof.
|
11.2
|
Risk of Physical
Loss. Risk of physical loss of any of the original
Mortgage Loan Documents and any document to be transferred hereunder,
shall be borne by Hardy Credit upon [+]*'s delivery of the
documents described in Section 3.1(b) to an overnight carrier for delivery
to Hardy Credit.
|
11.3
|
Further
Instruments. Each party will, whenever and as often as
it shall be requested to do so by the others, cause to be executed,
acknowledged or delivered any and all such further instruments and
documents as may be necessary or proper, in the reasonable opinion of the
requesting party, in order to carry out the intent and purpose of this
Agreement.
|
11.4
|
Severability. Should
any term, provision, covenant, or condition of this Agreement be void,
invalid, or inoperative, the same shall not affect any other term,
provision, covenant, or condition of this Agreement, but the remainder
thereof shall be given effect as though such void, invalid, or inoperative
term, provision, covenant, or condition had not been contained
herein.
|
11
11.5
|
Headings. The
headings and captions in this Agreement are for reference only and shall
not modify or affect this Agreement in any manner
whatsoever.
|
11.6
|
No
Waiver. The waiver or failure to enforce any provision
of this Agreement shall not operate as a waiver of any future breach of
any such provision or any other provision hereof. Any
forbearance or delay by a party in exercising any right, power, or remedy
under this Agreement shall not be deemed a waiver thereof, and any single
or partial exercise of any right, power or remedy shall not preclude the
further exercise thereof of any other available
remedy.
|
11.7
|
Survival. All
representations, warranties, covenants, agreements, indemnifications and
obligations of the parties contained in this Agreement shall survive the
execution and delivery of this Agreement and the execution, delivery and
recordation of any and all other documents or instruments delivered in
connection herewith, and shall survive each Closing Date hereunder
indefinitely, and the same shall inure to the benefit of and be binding
upon the parties.
|
11.8
|
Governing
Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of Ohio (without regard to
conflict of law principles).
|
11.9
|
Entire
Agreement. This Agreement contains the entire agreement
between the parties respecting the matters herein set forth and supersedes
all prior agreements between the parties hereto respecting such
matters. Specifically , the Put Agreement and the Original
Agreement are hereby completely rescinded and shall be of no further force
and effect. Any modifications to the Program shall be made only
by agreement of the parties hereto, with no party unreasonably withholding
its approval thereof. This Agreement may be amended by written
agreement of amendment executed by all parties, but not
otherwise.
|
11.10
|
Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and
the same instrument. Facsimile signatures shall be binding upon
the parties.
|
11.11
|
Fees
and Costs. In the
event an arbitration, suit or action is brought by any party or parties
under this Agreement to enforce any of its terms, or in any
appeal therefrom, it is agreed that the prevailing party or parties shall
be entitled to its
reasonable attorney fees and costs incurred in said enforcement from the
other party or parties.
|
11.12
|
Notices. Any
notice which a party is required or may desire to give the other shall be
in writing and may be sent by (i) facsimile transmission, (ii) personal
delivery, (iii) United States registered or certified mail, return receipt
requested, postage prepaid, or (iv) Airborne Express or similar generally
recognized overnight carrier regularly providing proof of delivery,
addressed as follows:
|
12
If
to [+]*:
|
[REDACTED – CONFIDENTIAL | |
TREATMENT REQUESTED]* | ||
If
to Hardy Credit:
|
Hardy Credit Co. | |
0000 Xx. 000 | ||
Xxxxxx Xxxx, Xxxxxxxxxxxx 00000 | ||
Attn:
|
Xxx
Xxxxxxx
|
|
Tel:
|
(000)
000-0000
|
|
Fax:
|
(000)
000-0000
|
|
And
to:
|
Xxxxxx X. Xxxxxxxxx, Esq. | |
General Counsel | ||
Legal Department | ||
1019 Rt. 519 | ||
Eighty Xxxx, Xxxxxxxxxxxx 00000 | ||
Tel:
|
(800)
664-1984 ext. 1535
|
|
Fax:
|
(000)
000-0000
|
|
If
to 84 Lumber:
|
84 Lumber | |
1019 Xx. 000 | ||
Xxxxxx Xxxx, Xxxxxxxxxxxx 00000 | ||
Attn:
|
Xxx
Xxxxxxx
|
|
Tel:
|
(000)
000-0000
|
|
Fax:
|
(000)
000-0000
|
11.13
|
Intellectual
Property. No Party to this Agreement shall use another
party’s names, copyrights, trademarks or any other intellectual property
outside the scope of the transactions contemplated hereby without the
express written consent of the other
party.
|
[END
OF DOCUMENT, SIGNATURE PAGES FOLLOW]
13
IN WITNESS WHEREOF, Hardy
Credit Co., intending to be legally bound hereby, has executed this Agreement as
of the day and year first written above.
HARDY
CREDIT CO.
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
Name:
|
|
Title:
|
CFO – 84 Lumber, XX Xxxxx
Credit
|
[ADDITIONAL
SIGNATURE PAGES FOLLOW]
14
IN WITNESS WHEREOF, [+]* Savings Bank, FSB,
intending to be legally bound hereby, has executed this Agreement as of the day
and year first written above.
[+]*
By:
|
[REDACTED – CONFIDENTIAL TREATMENT REQUESTED]*
|
||
Name:
|
[REDACTED – CONFIDENTIAL TREATMENT REQUESTED]*
|
||
Title:
|
Vice Chairman
|
[ADDITIONAL
SIGNATURE PAGES FOLLOW]
15
IN WITNESS WHEREOF, 84 Lumber
Company, intending to be legally bound hereby, has executed this Agreement as of
the day and year first written above.
84
LUMBER COMPANY
|
||
By:
|
/s/ Xxxxxx X.
Xxxxxxx
|
|
Name:
|
Xxxxxx X. Xxxxxxx
|
|
Title:
|
CFO
|
16
EXHIBIT
1
[INSERT
THE PROGRAM ON THIS PAGE]
17
EXHIBIT
2
[INSERT
CONFIDENTIALITY AGREEMENT ON THIS PAGE]
18