Exhibit 4(l)
AMENDMENT NO. 1 TO WAREHOUSE SECURITY AGREEMENT
AMENDMENT NO. 1 TO WAREHOUSE SECURITY AGREEMENT
("Amendment No. 1"), dated as of February 23, 1994, between MARKET STREET
MORTGAGE CORPORATION, a Michigan corporation (the "Assignor"), and GE
CAPITAL MORTGAGE SERVICES, INC., a New Jersey corporation (the "Lender")
W I T N E S S E T H:
WHEREAS, the Assignor and the Lender entered into a Warehouse
Credit Agreement, dated as of July 30, 1993, which was amended by an
Amendment No. 1 thereto dated as of October 16, 1993 (as so amended, and as
hereafter amended or supplemented, the "Warehouse Credit Agreement"),
pursuant to which the Lender has agreed to make certain advances (the
"Advances") to the Assignor, in a maximum aggregate principal amount of
$85,000,000; and
WHEREAS, the Advances are evidenced by the Assignor's
promissory note dated as of July 30, 1993 (the "Note") in the stated
principal amount of $85,000,000, and are secured, among other things, by a
Warehouse Security Agreement, dated as of July 30, 1993, between the
Assignor and the Lender (the "Original Warehouse Security Agreement"); and
WHEREAS, the Assignor and the Lender desire to further amend
and supplement the Warehouse Credit Agreement (by an "Amendment No. 2" of
even date herewith) in order to provide additional terms and conditions for
the incurrence by the Assignor of certain Advances thereunder; and
WHEREAS, it is a condition precedent to the effectiveness of
Amendment No. 2 to the Warehouse Credit Agreement that the Assignor shall
have executed and delivered to the Lender this Amendment No. 1 to the
Warehouse Security Agreement;
NOW, THEREFORE, in consideration of the benefits to the
Assignor, the receipt and sufficiency of which are hereby acknowledged, the
Assignor hereby makes the following representations and warranties to the
Lender and hereby covenants and agrees with the Lender as follows:
1. Definitions.
(a) Definitions in Original Warehouse Security Agreement.
All capitalized terms used in this Amendment No. 1 and not otherwise
defined herein shall have the same meanings assigned to such terms in the
Original Warehouse Security Agreement or in the Warehouse Credit Agreement
(including, without limitation, Amendment No. 2 thereto).
(b) Amendments to Original Definitions. The definition of
"Collateral" in Section 1 of the Original Warehouse Security Agreement is
hereby amended to add the definition of the "REO Collateral" set forth in
Section 2 of this Amendment No. 1, which shall henceforth be deemed to be
paragraph (x) of the definition of "Collateral."
(c) Additional Defined Terms. Section 14 of the Original
Warehouse Security Agreement is hereby amended to add the following new
definitions, in the appropriate alphabetical order:
"Amendment No. 1" shall mean this Amendment No. 1 to
Warehouse Security Agreement.
"Mortgage File" shall mean the file containing the Mortgage
Loan Documents pertaining to a particular Mortgage Loan.
"Mortgage Loan Documents" shall mean the loan documents
pertaining to any Mortgage Loan, including, without limitation,
the Mortgage Note, the Mortgage, any assignment of the Mortgage,
any loan guarantee, the title insurance policy and, if
applicable, the policy of primary mortgage guaranty insurance.
"REO Claims" shall mean all rights of the Assignor to
receive, from an Agency, FHA, VA, or any other Person, any
payment, compensation, reimbursement, cost, expense or other
amount in connection with (i) the Assignor's repurchase of an REO
Loan from GNMA, or (ii) the foreclosure, acquisition, conveyance,
assignment, operation, protection or preservation of any REO Loan
or REO Property (including, without limitation, loan guarantee
payments, servicing advances, taxes, insurance, rental expenses,
inspection fees, costs of maintenance and upkeep, title charges,
bankruptcy fees, costs of sheriff's sales, advertising, filing
fees, appraisals, recording fees and the fees and expenses of
attorneys, appraisers, realtors or other parties in connection
with any of the foregoing).
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"REO Collateral" shall have the meaning provided in Section
2 of this Amendment No. 1.
"REO Obligations" shall mean Obligations which constitute
any of the following: (a) the obligation of the Assignor to repay
all REO Advances pursuant to the terms of the Warehouse Credit
Agreement, and all other indebtedness, fees, obligations and
liabilities (including, without limitation, guarantees or other
contingent liabilities) of the Assignor to the Lender or the
holder of the Note relating to REO Advances or REO Collateral
arising under or in connection with any Credit Document; (b) any
and all sums advanced by the Lender in order to preserve the REO
Collateral or preserve its security interest in the REO
Collateral and any other amounts owing to the Lender under the
Warehouse Security Agreement in connection with the REO
Collateral; and (c) in the event of any proceeding for the
collection or enforcement of any indebtedness, obligations or
liabilities of the Assignor referred to in clause (a) after an
Event of Default shall have occurred and be continuing, the
reasonable expenses of re-taking, holding, preparing for sale or
lease, selling or otherwise disposing of or realizing on the REO
Collateral, or of any exercise by the Lender of its rights under
the Warehouse Security Agreement with respect to the REO
Collateral, together with reasonable attorneys' fees and court
costs.
"Serviced Loan" shall mean any Mortgage Loan from time to
time included in the Borrower's Servicing Portfolio.
"Servicing File" shall mean, collectively, the documents,
files and other items pertaining to a Mortgage Loan including,
but not limited to, the computer files, data disks, books,
records, data tapes, notes and all additional documents generated
as a result of, or utilized in originating and/or servicing, such
Serviced Loan.
"Servicing Rights" shall mean, with respect to any Serviced
Loan, any and all of the following: (a) all rights to service the
Serviced Loan; (b) any payments or monies payable or received for
servicing the Serviced Loan; (c) any late fees, assumption fees,
penalties or similar payments payable or received with respect to
the Serviced Loan; (d) all rights to receive (from the mortgagor,
from insurance proceeds, claims settlements, or any other source)
funds advanced (i) to cover delinquent loan payments or (ii) in
the performance of other servicing obligations (including,
without limitation, the preservation, protection, management and
disposition of mortgaged properties and the enforcement of
judicial or other remedial proceedings with respect thereto); (e)
escrow payments or other similar payments payable or received
with respect to the Serviced Loan; (f) all
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accounts and other rights to payments related to any of the
property described in this paragraph; (g) possession and use of
any and all Servicing Files pertaining to the Serviced Loan or
pertaining to the past, present or prospective servicing of the
Serviced Loan; (h) all rights under all agreements or documents
creating, defining or evidencing any such servicing rights; and
(i) all rights, powers and privileges incident to any of the
foregoing.
2. Pledge of REO Collateral. (a) As additional security for the
prompt and complete payment and performance when due of all REO
Obligations, the Assignor does hereby sell, pledge, assign, hypothecate,
transfer and grant unto the Lender, a continuing security interest of first
priority in all of the right, title and interest of the Assignor in, to and
under all of the following, whether now existing or hereafter from time to
time acquired (all of the following, collectively, the "REO Collateral"):
(i) all Servicing Rights;
(ii) all Servicing Files and Mortgage Files
relating to Serviced Loans;
(iii) all REO Claims;
(iv) All General Intangibles, Instruments,
Documents, Chattel Paper, Receivables, Contracts, and Contract
Rights evidencing, securing, supporting or relating to Servicing
Rights or REO Claims;
(v) All other documents, instruments,
certificates, forms, statements, surveys, appraisals,
correspondence, files, tapes, disks, cards, computer programs,
accounting records and other information and data relating to any
and or all of the foregoing; and
(vi) Any Proceeds of any and all of the foregoing.
(b) The security interest in the REO Collateral granted
pursuant to clause (a) above is intended as additional security for the REO
Obligations only, and does not secure any other Obligations.
3. Amendments to Original Warehouse Security Agreement.
(a) Section 2 of the Original Warehouse Security Agreement
is hereby amended to insert the following provision immediately after the
phrase "to endorse any checks or other instruments or orders in connection
therewith":
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", to exercise or perform (and to arrange for any subservicer to
exercise or perform) any and all Servicing Rights, to execute and
deliver any consents, approvals, powers of attorney, assignments of
mortgages, assumption agreements, termination agreements, purchase
contracts or any other document related to the Servicing Rights, the
termination or cancellation of the Assignor's rights with respect to
the Servicing Rights, or the transfer or sale to, or assumption by,
the Lender or its designee of any Servicing Rights, and to request,
seek to arrange, and cooperate with any Agency or any other Person in
effecting the termination, sale or transfer of any Servicing Rights or
other REO Collateral."
(b) Section 3 of the Original Warehouse Security Agreement
is hereby amended to add the following sentence at the end of said Section:
"Anything to the contrary herein notwithstanding, any sums of money
paid in respect of any REO Collateral which is received by the
Assignor and paid to the Lender under this Section 3 shall be credited
solely against REO Obligations."
(c) There shall be added to Section 4 of the Original
Warehouse Security Agreement a new paragraph (f), which shall read in full
as follows:
"(c) Anything to the contrary in this Section 4 notwithstanding, the
Borrower shall be entitled to have REO Collateral released from the
Lien granted pursuant to this Agreement, upon the Borrower's written
request therefor to the Lender, without prepaying any Advances;
provided that (i) no Default or Event of Default has occurred and is
continuing at the time of making any such request, or would result
therefrom, (ii) the Borrower reimburses the Lender promptly upon
request for any fees, costs or expenses incurred by the Lender in
effecting such release of REO Collateral, and (iii) the Borrower shall
have demonstrated to the Lender's satisfaction that immediately
following such release the Borrower's Servicing Portfolio will equal
or exceed $600,000,000 and will continue to comply with Section 7.14
of the Warehouse Credit Agreement."
(d) Section 6 of the Original Warehouse Security Agreement
is hereby amended by adding a new paragraph (c) to said Section, to read in
full as follows:
"(c) If any Event of Default shall have occurred and be continuing,
then and in every such case, in addition to the remedies provided
under paragraphs (a) and (b) above, the Lender may, but shall not be
obligated to, assume the servicing of any or all of the Serviced Loans
or arrange for a subservicer with respect thereto. If the Lender
exercises such remedy, the Assignor shall be responsible for, and
shall remit to the Lender promptly upon request, all fees, costs and
expenses incurred by the Lender in connection therewith, and shall use
its best efforts to assist the Lender (or any designated subservicer)
in effectuating the assumption of such servicing rights (including,
without limitation, executing and delivering to the
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Lender any consents and approvals, powers of attorney, transfer or
assumption documents, or any other document or instrument requested by
Lender, or required pursuant to Agency Requirements or the
requirements of any other governmental authority, and shall also use
its best efforts to obtain for the benefit of the Lender any consents
or approvals of any Agency, or any other Person required to effectuate
such assumption."
(e) Section 8 of the Original Warehouse Security Agreement
is hereby amended by adding a new paragraph (d) to said Section, to read in
full as follows:
"(d) It is further understood by the parties that the proceeds of any
REO Collateral shall be applied (in the order of priority set forth in
clauses (a), (b) and (c) above), solely to the payment of REO
Obligations, and fees and expenses associated with the disposition of
REO Collateral. Notwithstanding the foregoing, nothing in this
paragraph (d) or elsewhere in this Agreement shall limit or restrict
the Lender's right to apply proceeds of any Collateral other than REO
Collateral to the payment of REO Obligations, at such times and in
such order of priority (subject to paragraphs (a), (b) and (c) above)
as the Lender shall determine, nor shall the Lender be required to
realize upon, or exhaust the proceeds of disposition of, any REO
Collateral before using proceeds of other Collateral to satisfy REO
Obligations."
(f) Section 10 of the Original Warehouse Security Agreement
is hereby amended by adding a new paragraph (l) to said Section, to read in
full as follows:
"(l) Servicing Files and Related Records. The Assignor will maintain
(and will cause any subservicer thereof to maintain) satisfactory and
complete records with respect to all Serviced Loans whose related
Servicing Rights are pledged as Collateral hereunder, sufficient to
permit the proper servicing thereof. If an Event of Default shall have
occurred and be continuing, the Assignor will (i) deliver and turn
over the Lender, or at the option of the Lender shall provide the
Lender with access to, at any time on demand of the Lender, the
Servicing Files and Mortgage Files maintained by the Assignor with
respect to such Serviced Loans, and/or (ii) allow the Lender to occupy
the premises of the Assignor where such Servicing Files and Mortgages
Files are located and utilize such premises and the equipment located
thereon to service and administer the Serviced Loans and make
collections with respect to the REO Collateral."
4. Further Assurances. The Assignor shall execute and deliver
to the Lender from time to time all such other agreements, instruments and
documents (including, without limitation, any consents, approvals,
acknowledgments or agreements of any Agency) and shall do all other and
further acts and things as the Lender may
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request in order to further evidence or carry out the intent of this
Amendment No. 1 or to preserve or perfect the security interests created
hereby or intended so to be.
5. Ratification of Original Warehouse Security Agreement. This
Amendment No. 1 is executed and delivered, and shall be considered as, an
amendment and supplement to the Original Warehouse Security Agreement and
shall form a part thereof and, except as otherwise herein provided, the
provisions of the Original Warehouse Security Agreement, including, without
limitation, all representations, covenants, agreements, obligations and
rights contained therein, are hereby ratified, confirmed and approved in
all respects.
6. Confirmation of Other Obligations. The Assignor hereby
confirms and agrees that the execution and delivery of this Amendment No. 1
does not in any way diminish or invalidate any of its obligations under the
Note and the Warehouse Credit Agreement.
7. Representations and Warranties. The Borrower hereby
certifies that (i) the representations and warranties which it made in the
Original Warehouse Credit Agreement and the Original Warehouse Security
Agreement are true and correct as of the date hereof and (ii) no Event of
Default and no event which could become an Event of Default with the
passage of time or the giving of notice, or both, under the Note, the
Warehouse Credit Agreement or the Warehouse Security Agreement exists on
the date hereof.
8. Governing Law. This Amendment No. 1 shall be governed by and
construed according to the laws of the State of New Jersey and shall be
binding upon and shall inure to the benefit of the parties hereto, and
their respective successors and assigns.
9. Counterparts. This Amendment No. 1 may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall
be lodged with the Assignor and the Lender.
10. Effectiveness. This Amendment No. 1 shall become effective
on the date on which the Assignor and the Lender shall have signed a copy
hereof (whether the same or different copies) and shall have delivered the
same to the Lender at its Office.
11. Headings Descriptive. The headings of the several sections
and subsections of this Amendment No. 1 are inserted for convenience only
and shall not in any way affect the meaning or construction of any
provision of this Amendment No. 1.
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IN WITNESS WHEREOF, the parties have caused their duly
authorized officers to execute and deliver this Amendment No. 1 as of the
date first above written.
Address: MARKET STREET MORTGAGE
2650 McCormick Drive, Suite 200 CORPORATION, as Assignor
Clearwater, FL 34619
Attn: Tracy S. Jackson
Facsimile No.: (813) 791-4136 BY: /s/ Tracy S. Jackson
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Title: Senior Vice President
Three Executive Campus GE CAPITAL MORTGAGE
Cherry Hill, NJ 08002 SERVICES, INC., as Lender
Attn: William E. Mezger
Facsimile No.: (609) 486-2777 BY: /s/ William E. Mezger
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Title: Senior Vice President
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