MORTGAGE LOAN WAREHOUSING AGREEMENT
THIS MORTGAGE LOAN WAREHOUSING AGREEMENT (the "Agreement") is made
and dated as of March 11, 2004 by and between Independence Community Bank, a
New York chartered savings bank ("Lender"), and Capital Financial Corp., a
New Jersey corporation, (the "Company").
AGREEMENT
1. Mortgage Warehousing Line of Credit
(a) Credit Limit. On the terms and subject to the conditions set forth
herein, Lender agrees that it shall, from time to time to the Maturity Date (as
that term and capitalized terms not otherwise defined herein are defined in
Paragraph 9 below), make loans (the "Loans" or a "Loan") to the Company in
principal amounts not to exceed, in the aggregate at any time outstanding, the
lesser of:
(i) the Credit Limit, or as to Second Mortgage Loans the Second
Mortgage Loan Sub-limit, or as to FHA and VA loans acquired on a correspondent
basis the Closed Loan Sublimit as set forth in the Commitment Letter; or
(ii) the Collateral Value of the Borrowing Base.
(b) Procedure for Request and Making of Loans. The Company shall, at least
one (1) business day prior to each proposed funding date, deliver a Loan Advance
Request as per Exhibit 1 and accompanying required documents to Lender as per
Exhibit 2. The proceeds of the Loan must be used by the Company to fund the
Mortgage Loan(s). The proceeds shall be disbursed by Lender by issuing its
check, or by wire transfer as per the Loan Advance Delivery Instructions
(Exhibit 3), for the net amount necessary to close the Mortgage Loan, (to the
extent that the amount of such Loan and available balances in the funding
account are sufficient to at least equal said net amount) made payable to the
Closing Representative and the Obligors. Lender shall forward same directly to
the Closing Representative accompanied by a Closing Representative Instruction
and Certification Letter, in substantially the form of Exhibit 4 annexed hereto.
In the event the Loan proceeds are less than the net amount necessary to close
the Mortgage Loan, the Lender is hereby authorized to debit the difference from
available balances in the Company's funding account.
(c) Book Account. The obligation of the Company to repay the Loans shall
be evidenced by an account maintained by Lender on its books. Not more
frequently than once each month, Lender may deliver a statement of account to
the Company setting forth the unpaid balance of Loans outstanding hereunder,
which statement shall be deemed to be an account stated and conclusively correct
and accepted by the Company unless the Company notifies Lender in writing of a
statement of exceptions within ten (10) business days following delivery of such
statement to the Company.
Interest. Interest on the Loans is due and payable on the first (1st) day
of each month hereafter up to and including the Maturity Date. The Company shall
pay to Lender interest on Loans outstanding hereunder from the date disbursed to
but not including the date of payment in the amount billed to the Company by
Lender calculated on the principal amount of Loans outstanding hereunder during
the monthly interest computation period at the Interest Rate. If payment is not
received by Lender on or before the tenth (10th) day of the month (or if the
10th is a Saturday, Sunday or holiday, the next succeeding business day), a Late
Fee equal to a per annum rate of four (4%) percent above the Prime Rate shall be
assessed on the delinquent interest from the eleventh (11th) day of the month
(or if the 11th is a Saturday, Sunday or holiday, the next succeeding business
day), to but not including the date of payment in the amount billed to Company
by Lender. The foregoing shall not be
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construed as allowing any cure or grace period with regard to nonpayment of
interest when due.
(e)Principal. All Loans hereunder, with interest accrued and unpaid
thereon, shall be payable in full on the earlier of:
(i) the Maturity Date,
(ii) the expiration of the permissible warehouse period from the
date of such Loan,
(iii) the date of the sale of any Mortgage Loan under a Take-Out
Commitment or otherwise,
(iv) the expiration date of the Take-Out Commitment to which the
subject Mortgage Loan was to be sold under,
(v) the failure of the issuer of the subject Take-Out Commitment
to purchase the subject Mortgage Loan,
(vi) the subject Mortgage Loan ceases to be an Eligible Mortgage
Loan; or
(vii) as otherwise set forth herein or in any other Loan Document;
unless otherwise expressly extended or renewed in writing by
Lender. Borrower may at any time prepay outstanding
principal under the Loans, in whole or in part, without
payment of any prepayment penalty or premium, and such
prepaid sums shall thereafter be available to be re-borrowed
by Borrower under the terms and conditions of this
Agreement.
(f) Borrowing Base; Conformity; Mark-to-Market Requirement. In support of
its obligation to repay Loans hereunder, the Company shall cause to be
maintained with Lender, or with a custodian acceptable to Lender for the account
of Lender under the Security Agreement, a Borrowing Base consisting of Eligible
Collateral with a Collateral Value not less than, at any date, the aggregate
principal amount of Loans outstanding hereunder at such date. In addition to all
other payment obligations of the Company hereunder, the Company shall pay to
Lender:
(i) The amount by which the aggregate principal amount of Loans
outstanding hereunder exceeds the Collateral Value of the Borrowing
Base from time to time; and
(ii) the amount by which the aggregate principal amount of Loans
outstanding hereunder exceeds the sum of the Fair Market Value of
the Borrowing Base.
Notwithstanding the foregoing, if, but only if, there shall not have
occurred and be continuing an Event of Default or Potential Default
hereunder, the Company may, in the alternative to making the payments
required by subparagraphs (f)(1) and (f)(2) above and subject to the
provisions of the Security Agreement, deliver to Lender additional
Eligible Collateral such that the Borrowing Base, as so increased,
shall be in conformity with the requirements hereof.
(g) Nature and Place of Payments. All payments made on account of the
Obligations shall be made in lawful money of the United States of America in
immediately available funds. If any payments required to be made by Company
hereunder becomes due and payable on a day other than a business day, the due
date thereof shall be extended to the next succeeding business day unless such
next succeeding
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business day falls in the next succeeding month in which case such payment shall
be made on the next preceding business day and interest thereon shall be payable
at the then applicable rate during such alteration. Payments required to be made
hereunder shall be made to the Contact Office of Lender or such other office as
Lender shall from time to time designate.
(h) Post Maturity Interest. Any Obligations not paid when due (whether at
the stated Maturity Date, upon acceleration or otherwise) shall bear interest
from the date due until paid in full at a per annum rate equal to four percent
(4%) above the highest Interest Rate under this Agreement. Without waving any
rights or remedies herein, in the event a Mortgage Loan exceeds the Permissible
Warehouse Period, the Lender may, at its option, charge interest and fees on
such Mortgage Loan as follows:
Conforming Loans: At a per annum rate equal to Prime Rate
plus four percent (4%)
Second Mortgage Loans: At a per annum rate equal to Prime Rate
plus six percent (6%)
Sub-Prime Mortgage Loans: At a per annum rate equal to Prime Rate
plus eight percent (8%)
Aged Loan Fee: $150 per loan upon the date when such loan exceeds the
Permissible Warehouse Period and $200 every ninety (90) days thereafter that
such mortgage Loan advance remains outstanding.
(i) Fees, The Company shall pay promptly to Lender the Required Fees
when due.
(j) Computation. All computations of interest and fees payable hereunder
shall be based upon a year of 360 days for the actual number of days elapsed.
2. Security; Guaranties; Additional Documents.
(a) Security Agreement. As collateral security for the Obligations, The
Company shall execute and deliver the Lender the Security Agreement, pursuant to
which the Company shall pledge, assign, and grant to Lender a first priority and
exclusive security interest in and lien upon the Collateral.
(b) Guaranties, etc. As additional support for the Obligations, the Company
agrees to execute and deliver or cause to be executed and delivered to Lender
such guaranties and such additional security agreements as Lender may request,
as set forth more particularly from time to time in the Commitment Letter (the
"Additional Collateral Documents").
(c) Further Documents. The Company agrees to execute and deliver or to
cause to be executed and delivered to Lender from time to time such confirmatory
or supplementary security agreements, financing statements, or other documents,
instruments or agreements as Lender may, in its sole discretion, request, which
are in Lender's judgment necessary or appropriate to obtain for Lender the
benefit of the Collateral and the Additional Collateral Documents.
3. Conditions to Making a Loan.
(a) First Loan. As conditions precedent to Lender's obligation to make the
first Loan hereunder:
(1) The Company shall have delivered or shall have had delivered to Lender, in
form and substance satisfactory to Lender, each of the following:
(i) A duly executed copy of the Commitment Letter;
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(ii) A duly executed copy of this Agreement;
(iii) A duly executed copy of the Security Agreement;
(iv) A duly executed master promissory note evidencing the Loans;
(v) Duly executed copies of the Additional Collateral Documents and
all other security agreements, financing statements, and other documents,
instruments, and agreements, properly executed, deemed necessary or appropriate
by Lender, in its sole discretion, to create in favor of Lender a perfected
first security interest in and lien upon the Collateral; and
(vi) Such credit applications, financial statements, corporate
borrowing resolutions and authorizations and such information concerning the
Company, any Guarantors, or its or their business, operations, and conditions
(financial and otherwise) as Lender may request including without limitation
counsel opinion letters, in form satisfactory to Lender, of counsel for the
Company and Guarantors.
(2) All acts, conditions, and things (including without limitation, the
obtaining of any necessary regulatory approvals and the making of any required
filings, recordings, or registrations) required to be done and performed and to
have happened precedent to the execution, delivery, and performance of the Loan
Documents and to constitute the same legal, valid and binding obligations,
enforceable in accordance with their respective terms shall have been done and
performed and shall have happened in due and strict compliance with all
applicable laws.
(3) All documentation in connection with the transactions contemplated by the
Loan Documents, including, without limitation, documentation for corporate and
legal proceedings shall be satisfactory in form and substance to Lender and its
counsel.
(b) All Loans. As conditions precedent to Lender's obligation to make any
Loan hereunder, including the first Loan, the Company shall have delivered a
Loan Request and all required documents to Lender, and; at and as of the date of
funding thereof:
(i) The representations and warranties of the Company contained in the
Loan Documents shall be true and complete in all material respects on and as of
the date of such Loan as it is made on such date;
(ii) There shall not have occurred an Event of Default or Potential
Default; and
(iii) Following the funding of the requested Loan, the aggregate Loans
outstanding hereunder shall not exceed the limitation of Paragraph (1)(a) above.
(iv) Litigation. No suit, action, investigation, inquiry or other
proceeding by any governmental authority or other Person or any other legal or
administrative proceeding shall be pending or threatened which:
(a) questions the validity or legality of the transactions contemplated by this
Agreement, or
(b) seeks damages in connection therewith and which, in the reasonable judgment
of the Lender,
(i) involves a significant risk of a preliminary of permanent injunction or
other order by a state or federal court which would prevent, or require
rescission of, the transactions contemplated by this Agreement, or
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(2) in the case of any action or proceeding which seeks monetary damages
involves a significant risk of resulting in substantial financial liability to
the Company, the Guarantor and/or the Lender.
By requesting Lender to make any Loan hereunder, the Company shall be
deemed to have represented and warranted the truthfulness and completeness as of
the date of such request of the statements set forth in subparagraphs (b)(i)
through (b) (iv) above and in Article 4 hereof.
4. Representations and Warranties of the Company. As an inducement to Lender to
enter into this Agreement and to make Loans as provided herein, the Company
represents and warrants to Lender that:
(a) Financial Condition. The financial statements of the Company,
respectively dated the Statement Date and the Interim Date, copies of which have
heretofore been furnished to Lender, are complete and correct and present fairly
the consolidated and consolidating financial condition of the Company and its
consolidated Subsidiaries at such dates and the consolidated and consolidating
results of their operations and changes in financial position for the fiscal
periods then ended. All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP and do
not contain any material misstatement of fact or omit to state any facts
necessary to make the statements contained therein not misleading.
Neither the Company nor any of its consolidated Subsidiaries have any material
contingent obligation, contingent liability, or liability for taxes, long-term
lease, or unusual forward or long-term commitment which is material and which is
not reflected in such financial statements, including the notes related thereto.
(b) No Change. Since the Statement Date and the Interim Date, there has
been no material adverse change in the business, operations, assets, or
financial or other condition of the Company or Guarantors or of the Company and
its consolidated Subsidiaries taken as a whole.
(c) Corporate Existence; Compliance With Law. The Company and each
Subsidiary:
(i) Is duly organized, validly existing, and in good standing as a
corporation under the laws of the state of its incorporation and each
jurisdiction in which its ownership of property or conduct of business requires
such qualification;
(ii) Has the corporate power and authority and the legal right to own
and operate its property and to conduct its business in the manner in which it
does and proposes so to do; and
(iii) Is in compliance with all Requirements of Law.
(d) Corporate Power; Authorization; Enforceable Obligations. The Company
and each corporate Guarantor, if any, has the corporate power and authority and
the legal right to make, deliver, and perform the Loan Documents and to borrow
hereunder and has taken all necessary corporate action to authorize such
borrowing on the terms and conditions of this Agreement and to authorize the
execution, delivery, and performance of the Loan Documents. The Loan Documents
have each been duly executed and delivered on behalf of the Company and each
corporate Guarantor, if any, and constitute legal, valid, and binding
obligations of the Company and each Guarantor, if any, enforceable against the
Company in accordance with their respective terms.
(e) No Legal Bar. The execution, delivery, and performance of the Loan
Documents, the borrowing hereunder, and the use of the proceeds thereof, will
not violate any Requirement of Law or any Contractual Obligation of the Company
or any Guarantor.
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(f) No Material Litigation. Except as disclosed by the Company to Lender
in writing prior to the date of the Commitment Letter, no litigation,
investigation, or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Company, threatened by or
against the Company or any of its Subsidiaries or any Guarantor or against any
of the Company's or any such Subsidiary's or any Guarantor properties or
revenues which, if adversely determined, could have a material adverse effect on
the business, operations, property, or financial or other condition of the
Company or any Subsidiary or any Guarantor.
(g) Taxes. The Company and each Subsidiary and each Guarantor have filed
or caused to be filed all tax returns that are required to be filed and have
paid all taxes shown to be due and payable on said returns or on any assessments
made against them or any of their property.
(h) Investment Company Act. The Company is not an "investment company" or
a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(i) Subsidiaries. The Company has delivered to Lender an accurate and
complete list of all existing Subsidiaries of the Company, their respective
jurisdictions of incorporation, the percentage of their capital stock owned by
the Company or other Subsidiaries; all of the issued and outstanding shares of
capital stock of the Subsidiaries have been duly authorized and issued and are
fully paid and nonassessable.
(j) Federal Reserve Board Regulations. Neither the Company nor any of its
Subsidiaries is engaged or will engage, principally or as one of its important
activities, in the business of extending credit for the purpose of "purchasing"
or "carrying" or any "margin stock" within the respective meanings of such terms
under Federal Reserve Board Regulation U. No part of the proceeds of any Loan
issued hereunder will be used for "purchasing" or "carrying" "margin stock" as
so defined or for any purpose which violates, or which would be inconsistent
with, the provisions of the Regulations of the Board of Governors of the Federal
Reserve System.ERISA. The Company and each Subsidiary are in compliance in all
material respects with the requirements of ERISA and no Reportable Event has
occurred under any Plan maintained by the Company or any Subsidiary.
5. Affirmative Covenants. The Company hereby covenants and agrees with Lender
that, as long as any Obligations remain unpaid or Lender has any obligation to
make Loans hereunder, the Company shall:
(a) Financial Statements. Furnish to Lender:
(i) Within ninety (90) days after the last day of each fiscal year,
financial statements (consolidated and consolidating) showing the financial
position and results of operations of the Company and its Subsidiaries for the
year ended on such date, audited by a firm of independent certified public
accountants of nationally recognized standing acceptable to Lender, together
with a balance sheet and statement of income (consolidated and consolidating)
which has been subjected to the audit procedures applied in the examination of
Company's consolidated financial statements. Such financial statements shall be
prepared in conformity with GAAP consistently applied, present fairly the
financial position of the Company and its Subsidiaries and the results of their
operations as of the end of such period and for the period then ended, and
conform to the requirements of HUD Handbook 1G 4000.3 REV, as amended from time
to time, which financial statements shall be accompanied by an unqualified
report of independent certified public accountants acceptable to Lender;
and
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(ii) Within forty-five (45) days after the last day of each of the
Company's four (4) fiscal quarters, consolidated and consolidating financial
statements showing the consolidated and consolidating financial position and
results of operations of the Company and its Subsidiaries as of and for the
period from the beginning of the current fiscal year to such date, together with
a certificate executed by the principal financial officer or principal
accounting officer or treasurer of Company certifying that, to the best of his
knowledge, such financial statements were prepared in conformity with GAAP
consistently applied (subject to year-end audit adjustments) and present fairly
the financial position of the Company and its Subsidiaries, and the results of
operations as of the end of such period and for the period then ended.
(iii) Contemporaneous with the annual financial statements under (i)
above, deliver to Lender a written acknowledgment in form satisfactory to
Lender, of Lenders reliance open such financial statements in accordance with
N.J.S.A. 2A:53-25.
(b) Certificates; Reports; Other Information. Furnish or cause to be
furnished to Lender:
(i) Simultaneously with the quarterly reports under 5(a)(ii) above a
Compliance Certificate in the form of Exhibit 5 annexed hereto;
(ii) No later than the tenth (10th) business day of each calendar
month and at such other times as Lender may reasonably request, a Borrowing Base
Certificate in the form of Exhibit 6 as of the last day of the immediately
preceding calendar month; and
(iii) Promptly, such additional financial and other information,
including, without limitation, financial statements of Guarantors, as Lender may
from time to time reasonably request.
(c) Payment of Indebtedness. Pay, discharge, or otherwise satisfy at or
before maturity or before they become delinquent, defaulted, or accelerated, as
the case may be, all its Indebtedness, except Indebtedness being contested in
good faith and by appropriate proceedings and for which provision is made to the
satisfaction of Lender for the payment thereof in the event the Company is found
to be obligated to pay such Indebtedness and which Indebtedness is thereupon
promptly paid by the Company.
(d) Maintenance of Existence. Maintain all rights, privileges, licenses,
approvals, and franchises necessary or desirable in the normal conduct of its
business, and comply with all Contractual Obligations and Requirements of Law.
(e) Inspection of Property; Books and Records, Discussions. Keep proper
books of record and account in which full, accurate, and complete entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of Lender to visit and inspect any of its properties and examine
and make abstracts from any of its books and records at any time and as often as
may reasonably be desired, and to discuss the business, operations, properties,
and financial and other condition of the Company and its Subsidiaries, with its
independent certified public accountants and with the Guarantors and any other
parties.
(f) Notices. Promptly give notice to Lender of:
(i) The occurrence of any Potential Default or Event of Default;
(ii) Any litigation or proceeding against or affecting the Company,
any Subsidiary or Guarantor, or the Collateral, in excess of $25,000.00 or which
could
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have a material adverse affect on the Collateral or the business, operations,
property, or financial or other condition of the Company or any Subsidiary or
Guarantor, and
(iii) A material adverse change in the business, operations, property,
or financial or other condition of the Company or any Subsidiary or Guarantor.
(iv) The name and address, contact person and telephone number of all
other parties which provide credit facilities to Company.
(g) Expenses. Pay all reasonable out-of-pocket expenses of Lender
(including fees and disbursements of counsel) incident to the transactions
contemplated by the Loan Documents including, but not limited to, any amendments
to or waivers of the provisions of the Loan Documents, the protection of the
rights of Lender under the Loan Documents, the enforcement of payment of the
Obligations, whether by judicial proceedings or otherwise, including, without
limitation, in connection with bankruptcy, insolvency liquidation,
reorganization, moratorium, or other proceedings involving the Company, and the
reasonable fees and disbursements of counsel to Lender in connection with the
preparation of the Loan Documents. The obligations of the Company under this
Paragraph 5(g) shall survive payment of the Obligations.
(h) Loan Documents. Comply with and observe all terms and conditions of
the Loan Documents.
6. Negative Covenants. The Company hereby agrees that, as long as any
Obligations remain unpaid or Lender has any obligations to make Loans hereunder,
the Company shall not, directly or indirectly:
(a) Liens. Create, incur, assume, or suffer to exist, any Lien upon the
Collateral or, except as disclosed to and approved by Lender in writing, upon
any servicing rights of the Company or its rights to payment on account thereof.
(b) Fundamental Changes. Change the essential nature of its business from
that conducted on the date of this Agreement, or enter into any transaction of
merger or consolidation or amalgamation, or liquidate, wind up, or dissolve
itself (or suffer any liquidation or dissolution), convey, sell, lease, assign,
transfer, or otherwise dispose of, in one transaction or a series of
transactions, all or substantially all of its business or assets or acquire by
purchase or otherwise all the business or assets of, or stock or other evidences
of beneficial ownership of, any Person, make any change in its present method of
conducting business, or make any change in its existing management structure.
(c) Sale of Assets. Convey, sell, lease, assign, transfer, or otherwise
dispose of any of its assets (other than obsolete or worn out property), whether
now owned or hereafter acquired, other then in the ordinary course of business
as presently conducted; provided, however, that in no event shall the Company
sell, transfer, or otherwise dispose of any part of its servicing portfolio
without the prior written consent of Lender if the amount so sold, when
aggregated with all such transactions within the preceding twelve (12) month
period, equals twenty-five percent (25%) or more in dollar amount of the
Company's remaining servicing portfolio.
(d) Dividends Etc. Declare or pay any dividends, purchase, redeem, or
otherwise acquire for value any of its capital stock now or hereafter
outstanding, or make any distribution of assets to its stockholders as such, or
permit any of its Subsidiaries to purchase or otherwise acquire for value of
stock of the Company, except that the Company may:
(i) Declare and deliver dividends and distributions payable in common
stock of the Company, and
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(ii)Purchase or otherwise acquire shares of its capital stock with the
proceeds received from the issue of new shares of its capital stock.
(iii) Declare or pay cash dividends to its stockholders and purchase or
otherwise acquire shares of its own outstanding capital stock for cash solely
out of net income of the Company, computed on a cumulative consolidated basis,
provided that the payment of any such dividend will not result in violation of
e, f, or g below.
(e) Adjusted Net Worth. Permit the Company's Adjusted Net Worth to be less
than the Minimum Permitted Adjusted Net Worth at any time.
(f) Tangible Net Worth. Permit the Company's Tangible Net Worth to be less
then the Minimum Permitted Tangible Net Worth at any time.
(g) Debt to Adjusted Net Worth. Permit the ratio of the Company's
consolidated Debt to its Adjusted Net Worth to exceed the Permitted Debt to
Adjusted Net Worth Ratio at any time.
7. Event of Default. Upon the occurrence and continuance of any of the
following events (an "Event of Default"):
(a) The Company or any Guarantor shall fail to pay any of the Obligations
on the date when due; or
(b) Any representation or warranty made by the Company or any Guarantor in
any Loan Document or in connection with any Loan Document shall be inaccurate or
incomplete in any respect on or as of the date made; or
(c) The Company or any Guarantor or any Subsidiary shall default in the
observance or performance of any agreement contained in Paragraph 5(a), (b) or
(e) or 6 above or under the Security Agreement or any other Loan Document; or
(d) The Company or any Subsidiary shall default in the observance or
performance of any other agreement contained in this Agreement or any other Loan
Document and such default shall continue unremedied for a period of ten (10)
days; or
(e) The Company or any Subsidiary or any Guarantor shall default in any
payment of principal of or interest on any Indebtedness or any other event shall
occur, the effect of which is to allow the hereof to cause the maturity of such
Indebtedness to be accelerated prior to its stated maturity; or
(f) [1] The Company or any Subsidiary or any Guarantor shall commence any
case, proceeding or other action;
(i) Under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it insolvent, or seeking reorganization, arrangement,
adjustment, winding up, liquidation, dissolution, composition, or other relief
in respect to it or its debts; or
(ii) Seeking appointment of a receiver, trustee, custodian, or other
similar official for it or for all or any substantial part of its assets; or
[2] The Company or any Subsidiary or any Guarantor shall make a
general assignment for the benefit of its creditors; or
[3] There shall be commenced against the Company or any Subsidiary or
any Guarantor any case, proceeding, or other action of a nature referred to in
clause [1] above which:
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(i) Results in the entry of an order for relief or any such
adjudication or appointment; or
(ii) Remains un-dismissed, un-discharged, or un-bonded for a
period of sixty (60) days.
[4] There shall be commenced against the Company or any Subsidiary or
any Guarantor any case, proceeding, or other action seeking similar issuance of
a warranty of attachment, execution, distraint, or similar process against all
or any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within sixty (60) days from the entry thereof; or
[5] The Company or any Subsidiary or any Guarantor shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause [1], [2], [3], or [4]
above; or
[6] The Company or any Subsidiary or any Guarantor shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due.
(g) [1] Any person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Internal Revenue Code)
involving any Plan.
[2] Any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan;
[3] A Reportable Event shall occur with respect to, or proceedings
shall commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable Event or
institution of proceedings is, in the reasonable opinion of Lender, likely to
result in the termination of such Plan for purposes of Title IV of ERISA, and,
in the case of a Reportable Event, the continuance of such Reportable Event un-
remedied for ten (10) days after notice of such Reportable Event pursuant to
Section 4043(a), (c) or (d) of ERISA is given or the continuance of such
proceedings for ten (10) days after commencement thereof, as the case may be;
[4] Any Single Employer Plan shall terminate for purposes of Title IV
of ERISA;
[5] Any withdrawal liability to a Multiemployer Plan shall be incurred
by the Company or any Commonly Controlled Entity; or
[6] Any other event or condition shall occur or exist; and in each
case in clauses [1] through [6] above, such event or condition, together with
all other such events or conditions, if any, could subject the Company or any
Subsidiary to any tax, penalty, or other liabilities in the aggregate material
in relation to the business, operations, property, or financial or other
condition of the Company or any Subsidiary.
(h) One or more judgments or decrees shall be entered against the Company
or any Subsidiary involving claims not paid or not fully covered by insurance
and all such judgments or decrees shall not have been vacated, discharged, or
stayed or bonded pending appeal within thirty (30) days from entry thereof; or
(i) Any of the Guarantors shall fail to perform any of its obligations
under its guaranty of the Obligations or shall notify Lender of its intention to
rescind, modify, terminate, or revoke its guaranty with respect to future
transactions or otherwise;
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THEN, automatically upon the occurrence of an Event of Default under Paragraph
7(f) above, and, in all other cases, at the option of Lender, the principal
balance of outstanding Loans and interest accrued but unpaid thereon shall
become immediately due and payable and Lender may exercise any other remedies
under the Uniform Commercial Code or other applicable law, or any other Loan
Document, including but not limited to proceeding to enforce its right by suit
in equity, action at law or other appropriate proceeding, whether for payment or
the specific performance of the covenants or agreements contained in this
Agreement or any other Loan Documents.
8. Miscellaneous Provisions.
(a) Assignment. The Company may not assign its rights or obligations under this
Agreement without the prior written consent of Lender. Lender may, at any time,
from time to time, sell or assign or grant participations in all or any part of
the Loan or Loans made under this Agreement. All provisions contained in this
Agreement or any document or agreement referred to herein or relating hereto
shall inure to the benefit of Lender, its successors and assigns and
participants, and shall be binding upon the Company, its successors, and
assigns.
(b) Disclosure. The Company consents and agrees that Lender may disclose to any
other financial institution (including without limitation any other warehouse
lender to Company) and to any prospective or actual successors or assigns or
participants financial statements, Loan Requests, credit reports, credit
ratings, and any and all other information in the possession of or available to
Lender relating to the Company and that Lender shall not be liable to Company
for any error, omission, or inaccuracy in any of the foregoing. Company agrees
to hold Lender harmless and to defend and indemnity Lender against any claims by
or liabilities to Company or to any such financial institution or prospective or
actual successor or assign or participants of Lender arising out of or related
to any disclosure by Lender related to Company and/or breach by Company of any
representation or warranty, affirmative covenant, negative covenant, or other
Event of Default or Potential Default, or other breach by Company of this
Agreement or any related agreement.
(c) Amendment. This Agreement may not be amended or in any manner modified by an
oral agreement, whether or not such oral agreement is supported by a new
consideration. This Agreement may not be amended or in any manner modified
unless such amendment or modification is in writing and signed by Lender and the
Company. This Agreement, The Security Agreement, and all related agreements are
for the sole benefit of Lender and Company and may be amended, modified, or
canceled at any time or from time to time without consultation or consent of any
other entity.
(d) Cumulative Rights; No Waiver. The rights, powers, and remedies of Lender
hereunder are cumulative and in addition to all rights, powers, and remedies
provided under any and all agreements between the Company and Lender relating
hereto, at law, in equity, or otherwise. Any delay or failure by Lender to
exercise any right, power, or remedy shall not constitute a waiver thereof by
Lender, and no single or partial exercise by Lender of any right, power, or
remedy shall preclude other or further exercise thereof or any exercise of any
other rights, powers, or remedies.
(e) Entire Agreement. This Agreement and the documents and agreements referred
to herein embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
(f) Survival. All representations, warranties, covenants, and agreements herein
contained on the part of the Company shall survive the termination of this
Agreement and shall be effective until the Obligations are paid and performed in
full or longer as expressly provided herein.
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(g) Notices. All notices given by either party to the other shall be in writing,
delivered personally, or by depositing the same in the United States mail,
certified, with postage prepaid, addressed to the party at the address set forth
in the Commitment Letter. Either party may change the address to which notices
are to be sent by notice of such change to the other party given as provided
herein.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey without regard to conflict
of laws.
9. Definitions. For purposes of this Agreement, the terms as set forth below
shall have the following meanings:
"Acceptable Jurisdiction" shall have the meaning set forth in the Commitment
Letter.
"Adjusted Net Worth" shall mean at any date the sum of:
(a) Tangible Net Worth plus subordinated notes payable to stockholders,
plus;
(b) One percent (1.00%) of the aggregate outstanding principal balance of
the Company's FNMA, FHLMC AND GNMA mortgage loan servicing portfolio and one
half of one percent (.50%) of the Company's private investor Mortgage Loan
servicing portfolio (internally generated or acquired by purchase), less the sum
of;
(c) Any amounts included in Tangible Net worth (however designated on the
Consolidated Balance Sheet of the Company) allocated to the purchase of the
Company's servicing portfolio or any part thereof, or any amounts (however
designated on such balance sheet) attributable to the capitalization of
servicing fees in excess of the cost of servicing,
(d) Any amounts related to non-mortgage banking items included in Tangible
Net Worth (however designated on the Consolidated balance sheet of the Company)
which the Lender may exclude in its sole discretion.
"Agreement" shall mean this Agreement, as the same may be amended, modified,
extended, or replaced from time to time, including the Commitment Letter.
"Available Deposits" shall mean those net collected balances in the Company's
non-interest bearing accounts maintained with Lender, (computed after deduction
of amounts required to compensate Lender for services rendered and deduction of
amounts required by Lender to be maintained on deposit as reserves, determined
in accordance with Lender's standard system of analysis for similar accounts).
"Borrowing Base" shall mean at any date all Eligible Collateral delivered and
held by Lender or any custodian appointed by Lender in writing as collateral
security for the obligations.
"Borrowing Base Certificate" shall mean a certificate in form and substance
acceptable to Lender.
"Closing Representative" means the attorney, title company or other entity which
will close any proposed Mortgage Loan.
"Collateral" shall have the meaning set forth in the Security Agreement.
"Collateral Value of the Borrowing Base" shall have the meaning set forth in the
Commitment Letter.
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"Commitment Letter" shall mean any letter of most recent date from time to time
addressed to the Company and duly executed by Lender and the Company referencing
this Agreement and setting forth the specifics of certain terms and provisions
thereof.
"Commonly Controlled Entity" of a Person shall mean a Person, whether or not
incorporated, which is under common control with such Person within the meaning
of Section 414(c) of the Internal Revenue Code.
"Compliance Certificate" shall mean a report in form and substance acceptable to
Lender.
Conforming Loan shall have the meaning set forth in the Commitment Letter.
"Contact Office" shall mean that office of Lender set forth in the Commitment
Letter.
"Contractual Obligation" as to any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument, or undertaking
to which such Person is a party or by which it or any of its property is bound.
"Credit Limit" shall mean the aggregate amount of credit agreed to be made
available by the Lender to the Company, from time to time, to and including the
Maturity Date, as set forth in the Commitment Letter.
"Debt" of any Person shall mean:
(a) Indebtedness for borrowed money or for the deferred purchase price of
property or services in respect of which such Person is liable, contingently, or
otherwise, as obligor, guarantor or otherwise, or in respect of which such
Person otherwise assures a creditor against loss; and
(b) Obligations under leases which shall have been or should be, in accordance
with generally accepted accounting principles, recorded as capital leases in
respect of which obligations such Person is liable, contingently or otherwise,
as obligor, guarantor, or otherwise, or in respect of which obligations such
Person or entity otherwise assures a creditor against loss; and
(c) Unfunded vested benefits under each Plan maintained for employees of such
Person.
"Eligible Collateral" shall mean all Eligible Mortgage Loans and all other
Collateral meeting the requirements of "Types of Eligible Collateral" set forth
in the Commitment Letter, and, in each case, as to which there shall have been
delivered to Lender or its custodian those items set forth in Exhibit "A"
attached hereto. In determining the eligibility of any Collateral Lender may
require delivery to it of satisfactory opinions of counsel relating to local
laws of the jurisdiction to which the Collateral is related.
Notwithstanding anything contained in this Agreement, Lender in its sole
discretion may reject any Collateral as ineligible under this Agreement when
presented by the Company for inclusion in the Borrowing Base. Any of the
requirements for eligibility may be waived by Lender; provided, however, that
any Collateral which is initially acceptable as Eligible Collateral and which
subsequently fails to meet any of the foregoing requirements or representations
hereof shall forthwith cease to be Eligible Collateral.
"Eligible Mortgage Loan" shall mean a Mortgage Loan with respect to which each
of the following statements shall be accurate and complete (and the Company by
including such Mortgage Loan in any computation of the Borrowing Base shall be
deemed to so represent and warrant to Lender at and as of the date of such
computation):
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(a) Said Mortgage Loan is a binding and valid obligation of the Obligor thereon,
in full force and effect and enforceable in accordance with its term;
(b) Said Mortgage Loan is genuine, in all respects as appearing on its face or
as represented in the books and records of the Company, and all information set
forth therein is true and correct;
(c) Said Mortgage Loan is free of:
(i) default of any party thereto (including the Company);
(ii) counterclaims, offsets and defenses and from;
(iii) any rescission, cancellation or avoidance, and all right thereof, whether
by operation of law or otherwise; or
(iv) any assertion by the Obligor that he has a right of defense, set-off,
counterclaim, rescission, cancellation or avoidance;
(d) No payment under said Mortgage Loan is more than thirty (30) days past due
the payment due date set forth in the underlying promissory note and deed of
trust (or mortgage);
(e) Said Mortgage Loan contains the entire agreement of the parties thereto with
respect to the subject matter thereof, has not been modified or amended in any
material respect and is free of concessions or understandings with the Obligor
thereon of any kind not expressed in writing therein;
(f) Said Mortgage Loan is in all respects as required by and in accordance with
all applicable laws and regulations governing the same, including without
limitation, the Federal Consumer Credit Protection Act and the regulations
promulgated thereunder and all applicable usury laws and restrictions, and all
notices, disclosures, and other statements or information required by law or
regulation to be given, and any other act required by law or regulation to be
performed, in connection with said Mortgage Loan have been given and performed
as required;
(g) All advance payments and other deposits on said Mortgage Loan have been paid
in full, and no part of said sums have been loaned, directly or indirectly, by
the Company to the Obligor, and other than as disclosed to Lender in writing
there have been no prepayments on said Mortgage Loan;
(h) At all times said Mortgage Loan (with the exception of the Property) will be
free and clear of all liens, encumbrances, charges, rights, and interests of any
kind, except in favor of Lender;
(i) The Property covered by said Mortgage Loan is insured against loss or damage
by fire, flood (if applicable) and all other hazards normally included within
standard extended coverage in accordance with the provisions of said Mortgage
Loan with the Company named as mortgagee thereon;
(j) The Property covered by said Mortgage Loan is free and clear of all liens,
encumbrances, charges, rights, and interests of any kind except of the Company
(which has assigned any and all such liens, encumbrances, charges, rights, and
interests to Lender) or disclosed in a title policy, or preliminary title report
delivered to Lender concurrently with the delivery of the Mortgage Loan or
otherwise proved by Lender in writing;
(k) The Property covered by said Mortgage Loan is located in an Acceptable
Jurisdiction;
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(l) If said Mortgage Loan has been withdrawn by the Company on terms and subject
to conditions set forth in the Security Agreement, said Mortgage Loan has not
been withdrawn for a time period in excess of the time permitted by the Security
Agreement;
(m) Said Mortgage Loan is covered by a Take-Out Commitment which is in full
force and effect and is in full compliance therewith;
(n) The date of the promissory note is no earlier than seven (7) days (for
Mortgage Loans funded under the Closed Loan Sublimit, thirty-one (31) days)
prior to the date said Mortgage Loan is first included in the Borrowing Base;
(o) Said Mortgage Loan has not been included in the Borrowing Base for a period
of time in excess of the Permissible Warehouse Period;
(p) Said Mortgage Loan conforms in all respects to the description of "Types of
Eligible Collateral Conforming Loans" set forth in the Commitment Letter unless
Company has identified same in the Loan Advance Request as a Second Mortgage
Loan in which event it conforms in all respects to the description of Types of
Eligible Collateral Second Mortgage Loans as set forth in the Commitment
Letter; and
(q) In the event the Mortgage Loan is a Residential Mortgage Loan, and the Loan-
to-Value Ratio of said Mortgage Loan exceeds eighty percent (80%), said Mortgage
Loan is the subject of a mortgage guaranty insurance policy in favor of the
Company covering not less than the difference between the original principal of
the underlying promissory note and the Loan-to-Value ratio of said Mortgage
Loan.
"Event of Default" shall have the meaning set forth in Paragraph 7 above.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as the
same may from time to time be supplemented or amended.
"Fair Market Value of the Borrowing Base" shall mean at any date the aggregate
fair market value of Eligible Collateral at such date, determined by Lender in
its reasonable discretion.
"FHA" shall mean the Federal Housing Administration and any successor agency.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation and any successor
agency.
"FNMA" shall mean the Federal National Mortgage Association and any successor
agency.
"Funding Account" shall mean the deposit account of the Company described in the
Commitment Letter maintained in the Company's name alone at the Contact Office
of Lender.
"GAAP" shall mean generally accepted accounting principles in the United States
of America in effect from time to time as determined by the AICPA.
"GNMA" shall mean the Government National Mortgage Association and any successor
agency.
"Governmental Authority" shall mean any nation or government, any state or other
political subdivision thereof, and any entity exercising executive, legislative,
judicial, regulatory, or administrative functions of or pertaining to
government.
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"Guarantors" shall mean guarantors of the Obligations described more
particularly in the Commitment Letter or any other party who guarantees the
Obligations.
"Indebtedness" of any Person shall mean all items of indebtedness which, in
accordance with generally accepted accounting principles and practices, would be
included in determining liabilities as shown on the liability side of a balance
sheet of such Person as of the date as of which indebtedness is to be
determined, including, without limitation, all obligations for money borrowed
and capitalized lease obligations, and shall also include all indebtedness and
liabilities of others assumed or guaranteed by such Person or in respect of
which such Person is secondarily or contingently liable (other than by
endorsement of instruments in the course of collection) whether by reason of any
agreement to acquire such indebtedness or to supply or advance sums or
otherwise.
"Interest Rate" shall mean the interest rate accruing on the Obligations prior
to the maturity thereof, as set forth in the Commitment Letter.
"Interim Date" shall have the meaning set forth in the Commitment Letter.
Libor shall mean the daily average, determined as of the end of each month, of
the rate at which eurodollar deposits for one month are offered to prime banks
in the interbank eurodollar market as reported from time to time in Bloombergs,
or if not so reported, as otherwise reasonably determined by Lender. The
determination of Libor by Lender shall be conclusive absent manifest error.
"Lien" shall mean any security interest, mortgage, pledge, lien, claim, charge,
or encumbrance (including any conditional sale or other title retention
agreement), any lease in the nature thereof, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code Of any
jurisdiction.
"Loan Documents" shall mean this Agreement, the Commitment Letter, the Security
Agreement, the Additional Collateral Documents, and any other documents,
instrument, or agreement executed by the Company from time to time in connection
herewith or therewith, as each of same may be amended, modified, extended,
renewed, supplemented or substituted from time to time.
"Loan Request Form" shall mean a request in form and substance acceptable to
Lender.
"Loan-to-Value Ratio" shall mean: With respect to any Residential Mortgage Loan,
the
ratio of the aggregate indebtedness secured by such Property (including the
indebtedness represented by such Residential Mortgage Loan) to the appraised
fair market value of the subject Property at the date the loan represented by
such
Residential Mortgage Loan was made.
"Maturity Date" shall mean the date set forth in the Commitment Letter (as such
date may be expressly extended from time to time in writing by Lender).
"Minimum Permitted Adjusted Net Worth" shall have the meaning set forth in the
Commitment Letter.
"Minimum Permitted Tangible Net Worth" shall have the meaning set forth in the
Commitment Letter.
"Mortgage Loan" shall mean a real estate secured loan, made by the Company to an
Obligor or acquired by the Company, including without limitation:
(a)A promissory note and related deed of trust and/or security agreements; (or
mortgage)
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(b)All guaranties and insurance policies, including, without limitation, all
mortgage and title insurance policies and all fire and extended coverage
insurance policies and rights of the Company to return premiums or payments with
respect thereto;
(c)All right, title, and interest of the Company in the Property covered by said
deed of trust (or mortgage); and
(d)The Take-Out Commitment related thereto.
"Multiemployer Plan" as to any Person shall mean a Plan of such Person which is
a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Obligations" shall mean any and all debts, obligations and liabilities of the
Company to Lender (whether now existing or hereafter arising, voluntary or
involuntary, whether or not jointly owed with others, direct or indirect,
absolute or contingent, liquidated or unliquidated, and whether or not from time
to time decreased or extinguished and later increased, created, or incurred),
arising out of or related to the Loan Documents or any other present or future
document or agreement to or held by Lender whether or not related to the Loans.
"Obligor" shall mean the individual or individuals obligated to pay the
indebtedness which is the subject of a Mortgage Loan.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permissible Warehouse Period" shall mean for any item of Eligible Collateral
the earlier of the period of time set forth in the Commitment Letter or upon the
expiration of the applicable Take-Out Commitment.
"Permitted Debt-to-Tangible-Net-Worth Ratio" shall have the meaning set forth in
the Commitment Letter.
"Person" shall mean any corporation, natural person, firm, joint venture,
partnership, trust, unincorporated organization, government, or any department
or agency of any government.
"Plan" shall mean as to any Person, any pension plan that is covered by Title IV
of ERISA and in respect of which such Person is an "employer' as defined in
Section 3(5) of ERISA.
"Potential Default" shall mean an event which but for the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
"Prime Rate" shall mean the rate announced by Lender as its prime rate for Loans
to its Commercial Borrowers, as the same is in effect from time to time.
"Proceeds" shall mean whatever is receivable or received when Collateral or
proceeds is sold, collected, exchanged, or otherwise disposed of, whether such
disposition is voluntary or involuntary, and includes, without limitation, all
rights to payment, including return premiums, with respect to any insurance
relating thereto.
"Property" shall mean the real property, including the improvements thereon, and
the personal property(tangible and intangible), which are encumbered as
collateral security for a Mortgage Loan.
"Reportable Event" shall mean a reportable event as defined in Title IV of
ERISA, except actions of general applicability by the Secretary of Labor under
Section 110 of ERISA.
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"Required Fees" shall have the meaning set forth in the Commitment Letter.
"Requirements of Law" shall mean as to any Person the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule, or regulation, or a final and binding
determination of an arbitrator or a determination or a court or other
Governmental Authority, in each case applicable to or finding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Residential Mortgage Loan" shall mean a Mortgage Loan, the proceeds of which
were advanced to enable the Obligor (or its predecessor if the Mortgage Loan has
been assumed by the present Obligor) to acquire a 1-4 unit family residence.
"Security Agreement" shall mean a security agreement in form and substance
acceptable to Lender.
"Single Employer Plan" shall mean as to any Person any Plan of such Person which
is not a Multiemployer Plan.
"Statement Date" shall have the meaning set forth in the Commitment Letter.
"Subsidiary" shall mean any corporation more than fifty percent (50%) of the
stock of which have by the terms thereof ordinary voting power to elect the
board of directors, managers or trustees of the corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) shall, at the time as of which any determination is being made,
be owned by the Company, either directly or through Subsidiaries.
"Take-Out Commitment" with respect to any Collateral shall mean a bona fide
current, unused, and unexpired commitment made by FNMA, FHLMC, or a financial
institution or an investment banker acceptable to Lender, under which said
Person agrees, prior to or on the expiration thereof, upon the satisfaction of
certain terms and conditions therein, to acquire such Collateral, which
commitment is not subject to any term or condition which is not customary in
commitments of like nature or which, in the reasonably anticipated course of
events, cannot be fully complied with prior to the expiration thereof.
"Tangible Net Worth" shall mean the sum of the amounts set forth on the
consolidated balance sheet of the Company, prepared in accordance with GAAP as:
(a)The par or stated value of all outstanding common stock;
(b)Paid-in capital and retained earnings, less the sum of;
(i) Goodwill, including any amounts (however designated on such
balance sheet) representing the cost of acquisitions of subsidiaries in excess
of underlying tangible assets;
(ii) Patents, trademarks, copyrights, leasehold improvement not
recoverable at the expiration of a lease, and deferred charges (including, but
not limited to unamortized debt discount and expense, organizational expenses);
and
(iii) Loans receivable by Company from parents, affiliates,
subsidiaries, or Commonly Controlled Entities, or officers, directors, and
holders of stock in parents, affiliates or subsidiaries or other Commonly
Controlled Entities.
"VA" shall mean the Veterans Administration and any successor agency.
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10. Waiver of Trial by Jury. Company waives trial by jury in any litigation
arising out of or related to this Agreement or any other Loan Document OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
COMPANY: Capital Financial Corp.
a New Jersey corporation
By:_s/Richard G. Gagliardi______
Name: Richard G. Gagliardi
Title: President
LENDER: INDEPENDENCE COMMUNITY BANK
By:_s/Robin J. Beck_____________
Name: Robin J. Beck
Title: Vice President
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