Exhibit 10.1
WAREHOUSE LOAN AND SECURITY AGREEMENT
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This Warehouse Loan and Security Agreement ("Agreement") is made and
entered into on this 7th day of July between Westmark Mortgage Corporation, a
__________ corporation with its principal place of business located at 8000 N.
Federal Highway, Boca Raton, FL 33487 ("Borrower"), and The Provident Bank, an
Ohio banking corporation with its principal place of business located at One
East Fourth Street, Cincinnati, Ohio 45202 ("Provident").
WITNESSETH:
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WHEREAS, Borrower is engaged in the business of underwriting,
processing, originating, closing, funding, purchasing, servicing and selling
mortgage loans secured by first or second liens evidenced by mortgages on real
property; and
WHEREAS, Borrower has requested and Provident has agreed to finance the
funding of mortgage loans by Borrower in connection with its origination thereof
subject to the terms, conditions and limitations set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the extension of
credit by Provident to Borrower, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Provident and Borrower
agree as follows:
1. DEFINITIONS. (a) When used in this Agreement, the following terms
shall have the following meanings and the terms defined elsewhere in this
Agreement shall have the meanings assigned to them (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADVANCE" shall mean any mount loaned by Provident to
Borrower under this Agreement.
"AFFILIATE" shall mean, in relation to any Person (in this
definition called "Affiliated Person"), any Person (i) which (directly or
indirectly) controls or is controlled by or is under common control with such
Affiliated Person; or (ii) which (directly or indirectly) owns or holds five
percent (5%) or more of any equity interest in Borrower; or (iii) five percent
(5%) or more of whose voting stock or other equity interest is directly or
indirectly owned or held by Borrower. For the purposes of this definition, the
term "control" (including, with correlative meanings, the terms "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession (directly or indirectly) of the power to direct or to cause the
direction of the management or the policies of such Person, whether through the
ownership of shares of any class in the capital or any other voting securities
of such Person or by contract or otherwise.
"ASSIGNMENT OF MORTGAGE" shall mean, with respect to any
Mortgage, an assignment of the Mortgage, notice of transfer or equivalent
immanent, in recordable form, sufficient under the laws of the jurisdiction in
which the related Mortgaged Property is located to reflect the assignment of the
Mortgage.
"BUSINESS DAY" shall mean a day other than Saturdays, Sundays,
holidays or other days on which the main office of Provident is not open for
business.
"CASH COLLATERAL ACCOUNT" shall mean the demand deposit
account comprising a portion of the Collateral and established and maintained by
Borrower with Provident pursuant to Section 5(d).
"CHANGE OF CONTROL" shall mean the time at which (i) any
Person (including a Person's Affiliates and associates) or group (as that term
is understood under Section 13(d) of the Securities Exchange Act of 1934 and the
rules and regulations thereunder), other than Management Shareholders and
Affiliates thereof (the "Control Group") or a group controlled by the Control
Group, has become the beneficial owner of a percentage (based on voting power,
in the event different classes of stock shall have different voting powers) of
the voting stock of Borrower equal to at least ten percent (10%), (ii) there
shall be consummated any consolidation or merger of Borrower pursuant to which
Borrower's common stock (or other capital stock) would be converted into cash,
securities or other property, other than a merger or consolidation of Borrower
in which the holders of such common stock (or such other capital stock)
immediately prior to the merger have the same proportionate ownership, directly
or indirectly, of common stock of the surviving corporation immediately after
the merger as they had of Borrowers common stock immediately prior to such
merger, or (iii) all or substantially all of Borrowers assets shall be sold,
leased, conveyed or otherwise disposed of as an entirety or substantially as an
entirety to any Person (including an Affiliate or associate of Borrower) in one
or a series of transactions.
"CLOSING DATE" shall mean the date on which Borrower sells,
transfers or otherwise disposes of a Mortgage Loan funded and originated by
Borrower with an Advance made by Provident to Borrower under this Agreement.
"COLLATERAL" shall have the meaning set forth in Section 5(a).
"COLLECTIONS" shall mean, collectively, all Sale Proceeds, all
Payment Collections and all other collections and Proceeds on or in respect of
the Mortgage Loans.
"COST AND FEE SCHEDULE" shall have the meaning set forth in
Section 2(f).
"CREDIT FILE" shall mean, as to each Mortgage Loan, a copy of
the Mortgage and copies of all intervening assignments of mortgage, if any, with
evidence of recording thereon, showing a complete chain of title from the
originator to Borrower; the original attorney's opinion of title or the original
policy of title insurance, if not previously delivered to Provident; the
originals of all assumption, modification and extension agreements, if any; and
all applications, credit reports, salary or employment verifications,
appraisals, surveys, other underwriting and work papers, closing statements,
HUD-1 settlement statements and any addendums thereto, math-in-lending
disclosures, right of rescission notices, payment histories, and all other
closing documents and all other agreements, reports, certificates, documents and
instruments related hereto or obtained or prepared in connection therewith and
included or includable in Borrower's mortgage file relating to such Mortgage
Loan.
"DEFAULT INTEREST RATE" shall mean an annual rate of interest
which shall (to the extent permitted by applicable law) at all times be equal to
four percent (4%) above the Interest Rate.
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"DEMAND FOR PAYMENT" shall have the meaning set forth in
Section 4(a).
"DOCUMENT CUSTODIAN" shall mean Borrower, as custodian and
bailee for Provident, or any successor appointed by Provident at any time.
"FEES" shall have the meaning set forth in Section 2(f).
"FUNDING DATE" shall mean the date on which an Advance is made
by Provident to Borrower under this Agreement.
"INITIAL COLLATERAL PACKAGE" shall mean, as to each Mortgage
Loan: (i) the original Mortgage Note and the originals of all intervening
endorsements, if any, showing a complete chain of title from the originator of
the Mortgage Loan to Borrower, endorsed in blank (either on the Mortgage Note or
a separate allonge attached thereto); (ii) a certified copy of the original
Mortgage and copies of all intervening assignments oft he Mortgage, if any;
(iii) the original Assignment of Mortgage in favor of Provident in recordable
form for the jurisdiction in which the Mortgaged Property is located; and (iv)
the original attorney's opinion of title or the original policy of title
insurance (or if such original policy of title insurance has not yet been
received by Borrower, a copy of such policy or a title insurance binder or
commitment for the issuance of such policy).
"INTEREST RATE" shall mean an annual ram of interest which
shall (to the extent permitted by applicable law) at all times be equal to the
Prime Rate plus the applicable margin determined by reference to the factors
applicable to such determination set forth in the Cost and Fee Schedule in
effect on an Interest Payment Date or Closing Date, as the case may be.
"LIEN" shall mean any lien, mortgage, pledge, security
interest, charge or other encumbrance of any kind including any conditional sale
or other title retention agreement, any lease in the nature thereof; and any
agreement to give any security interest.
"LOAN DOCUMENTS" shall mean this Agreement, the Security
Documents, the Policies and Procedures, the Cost and Fee Schedule and any other
instrument, certificate or document executed in connection with or pursuant to
this Agreement whether concurrently herewith or subsequent hereto.
"LOSSES" shall have the meaning set forth in Section 1 l(b).
"MANAGEMENT SHAREHOLDERS" shall mean those shareholders of
Borrower who are senior executive officers of Borrower on the date of this
Agreement.
"MATURITY DATE" shall have the meaning set forth in
Section 4(b).
"MORTGAGE" shall mean the mortgage, deed of trust or other
instrument creating a first or second Lien on an estate in fee simple interest
in the Mortgaged Property securing a Mortgage Loan.
"MORTGAGE LOAN" shall mean any mortgage loan funded and
originated by Borrower with any Advance made by Provident to Borrower under this
Agreement.
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"MORTGAGE LOAN DOCUMENTS" shall mean, with respect to a
Mortgage Loan, the documents comprising the Initial Collateral Package and the
Credit File for such Mortgage Loan.
"MORTGAGE NOTE" shall mean, with respect to a Mortgage Loan,
the original note or other evidence of indebtedness pursuant to which the
related Mortgagor agrees to pay the indebtedness evidenced thereby and which is
secured by the related Mortgage.
"MORTGAGED PROPERTY" shall mean the underlying real property,
including all improvements and additions thereon, securing a Mortgage Loan.
"MORTGAGOR" shall mean the obligor or obligors under a
Mortgage Note.
"OTHER OBLIGATIONS SECURED HEREBY" shall mean all of
Borrower's debts, obligations or liabilities of every kind, nature, class and
description to Provident (other than those under this Agreement and the other
Loan Documents), now due or to become due, direct or indirect, absolute or
contingent, presently existing or hereafter arising, joint or several, secured
or unsecured, purchase money or non-purchase money, related or unrelated,
similar or dissimilar, whether for payment or performance, regardless of how the
same arise or by what instrument, agreement or book account they may be
evidenced, or whether evidenced by any instrument, agreement or book account,
including, without limitation, all loans (including any loan by renewal or
extension), and all overdrafts, all guarantees, all bankers acceptances, all
agreements, all letters of credit issued by Provident for Borrower and the
applications relating thereto, all indebtedness of Borrower to Provident, all
undertakings to take or refrain from taking any action, and all indebtedness,
liabilities and obligations owing from Borrower to others which Provident may
obtain by purchase, negotiation, discount, assignment or otherwise.
"PAYMENT COLLECTIONS" shall mean, collectively, all
collections on the Mortgage Loans attributed to the payment of the principal
amount thereof; accrued interest thereon or any fees, charges or other amounts
payable thereunder or in respect thereof.
"PERSON" shall mean an individual, a company, a limited
liability company, a corporation, an association, a partnership, a joint
venture, an unincorporated trade or business enterprise, a trust, an estate, or
other legal entity or a government (national, regional or local), court,,
arbitrator or any agency, instrumentality or official of the foregoing.
"PRIME RATE" shall mean the rate of interest published from
time to time in the "Money Rates" column of THE WALL STREET JOURNAL (Central
Edition) as the "prime rate" or, if such rate ceases to be so published, then
such other rate as may be substituted by Provident as the prime rate, which may
be the rate of interest announced by Provident from time to time as its prime
rate. The Prime Rate shall change on each date the prime rate so published
changes.
"POLICIES AND PROCEDURES" shall mean Provident's Policies and
Procedures for its Warehouse Division as of the date of this Agreement, as
amended, modified, restated or supplemented by Provident from time to time.
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"SALE PROCEEDS" shall mean (i) any proceeds received or
receivable by Borrower with respect to or in respect of any sale, transfer or
other disposition of any Mortgage Loan and (ii) any proceeds received or
receivable by Borrower with respect to or in respect of any sale, transfer,
disposition, condemnation or casualty event and all other amounts from any
disposition, taking, damage or destruction of any Mortgaged Property acquired by
Borrower upon foreclosure (or deed in lieu of foreclosure) of any Mortgage Loan.
"SECURITY DOCUMENTS" shall have the meaning set forth in
Section 5(b).
"THIRD PARTY INVESTOR" shall mean any Person with whom
Borrower has contracted to sell any Mortgage Loan that has been funded and
originated by Borrower with any Advance made by Provident to Borrower under this
Agreement. Provident may itself be a Third Party Investor.
"UCC" shall mean the Uniform Commercial Code as the same may,
from time to time, be in effect in the State of Ohio; PROVIDED, HOWEVER, that in
the event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection, or priority of Provident's security interest in any of
the Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of Ohio, the term "UCC" shall mean the Uniform
Commercial Code as in effect in such other jurisdiction for purposes of the
provisions hereof relating to such attachment, perfection, or priority and for
purposes of definitions related to such provisions.
(b) All terms defined in the UCC and used in Section 5 of this
Agreement shall have the meanings assigned to such terms in the UCC.
(c) Where appropriate, words importing the singular only shall
include the plural and vice versa.
2. ADVANCES.
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(a) Subject to the terms and conditions hereof and the
Policies and Procedures, which are hereby incorporated herein by this reference,
Provident may elect, in its sole discretion, to make Advances to Borrower from
time to time in such amounts as Borrower may request. Nothing herein shall be
deemed or construed as a commitment by Provident to make any Advance hereunder
and it is expressly acknowledged and agreed by Borrower that the decision to
make any Advance hereunder is, and shall at all times be, wholly discretionary
on the part of Provident.
(b) In order to obtain Advances, Borrower shall comply with
the requirements set forth in this Agreement and the Policies and Procedures and
shall furnish Provident with such requests and all other documents Provident may
request or require at any time in connection with any Advance. In addition, the
following conditions precedent, unless waived in whole or in part by Provident,
shall be satisfied before Provident makes any Advance hereunder. (i) Provident,
in its sole discretion, shall have approved the underwriting of the Mortgage
Loans to be funded with any Advance; (ii) Borrower shall have provided Provident
with an insured closing letter, evidence of a current errors and omissions
insurance policy with limits of at least $1,000,000, an executed closing agent
agreement and wiring instructions for each closing agent used by Borrower to
close the Mortgage Loans funded with any Advance, each of which shall be
acceptable to Provident in its sole discretion; (iii) Borrower shall have
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furnished Provident with an executed, recordable Power of Attorney covering the
items set forth in Section 5(e) hereof for each state in which Borrower does
business; and (iv) Provident, or its agent, bailee or designee, shall have
received the Initial Collateral Package for each of the Mortgage Loans funded
with any Advance. Each request for an Advance by Borrower shall constitute a
certification that each of the representations and warranties made by Borrower
to Provident in this Agreement or the other Loan Document shall be true and
correct in all material respects on and as of the date when made and shall, for
all purposes of this Agreement, be deemed to be repeated on and as of each date
an Advance is made by Provident to Borrower hereunder and shall be made and
correct in all material respects on and as of each of such date, except as
affected by the consummation of the transactions contemplated by this Agreement
and the other Loan Documents, and Borrower shall have performed, complied with
and observed all of its covenants and agreements contained in this Agreement and
the other Loan Documents on and as of each date an Advance is made by Provident
to Borrower hereunder.
(c) Advances hereunder will be made by Provident on behalf of
Borrower to third parties in connection with the funding of the Mortgage Loans
originated by Borrower. All matters relating to the funding of any Mortgage Loan
hereunder shall be acceptable to Provident in its sole discretion.
(d) Borrower represents, warrants and covenants to Provident
that all proceeds of all Advances shall be used by it solely to fund Mortgage
Loans originated by Borrower in the ordinary course of its business and for no
other use or purpose.
(e) Advances for the funding of any Mortgage Loan originated
by Borrower shall not exceed one hundred percent (100%) of the original
principal mount of such Mortgage Loan.
(f) In connection with each Advance, Borrower agrees to pay
Provident the transaction fees charged by Provident with respect to the Mortgage
Loans funded and originated with such Advance ("Fees"). The amounts of Fees
payable by Borrower in connection with any Advance shall be determined by
reference to the Cost and Fee Schedule in effect on the Funding Date of such
Advance (the "Cost and Fee Schedule"). The Cost and Fee Schedule in effect on
the date of this Agreement is attached hereto as Schedule A. Any Cost and Fee
Schedule shall remain in effect until a new Cost and Fee Schedule is delivered
to Borrower in accordance with the requirements of Section 11(f).
3. INTEREST PAYABLE ON ADVANCES. Borrower promises to pay to Provident
interest in arrears on the unpaid amount of each Advance made by Provident to
Borrower pursuant to this Agreement and on the unpaid amount of any interest not
paid when due at a variable rate of interest per annum equal at all times to the
Interest Rate. Interest shall be calculated on the daily unpaid amount of each
Advance from its Funding Date. Interest with respect to each Advance hereunder
shall be payable: (i) commencing on the date that is sixty-one (61) days after
the Funding Date of the Advance and continuing on the same day of each
consecutive month thereafter; and (ii) on its Maturity Date. Payments of
interest shall be due and payable as set forth above until payment in full of
all Advances. All interest under this Agreement shall be calculated on the basis
of a year consisting of 360 days (comprised of twelve 30 day months) and paid
for actual days elapsed.
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4. TERMINATION; MANDATORY REPAYMENTS OF ADVANCES PRIOR TO
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TERMINATION
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(a) Provident may, at any time, for any reason and without
prior notice, terminate this Agreement and demand that Borrower pay the
aggregate unpaid amount of all Advances made by Provident to Borrower pursuant
to this Agreement, all accrued and unpaid interest thereon as well as all Fees,
charges and other amounts payable hereunder and under the Loan Documents
("Demand For Payment").
Following a Demand for Payment, the aggregate unpaid
amount of all Advances made by Provident to Borrower pursuant to this Agreement,
together with all accrued and unpaid interest thereon as well as all Fees,
charges and other amounts payable hereunder and under the other Loan Documents
shall be immediately due and payable in full and no future or additional
Advances will be made by Provident to Borrower hereunder.
(b) Prior to termination of this Agreement as provided for
above, Borrower shall repay to Provident the unpaid amount of each Advance made
by Provident to Borrower hereunder, all accrued and unpaid interest thereon and
all Fees, charges and other amounts payable hereunder, on the earlier to occur
of: (i) the Closing Date on which Borrower sells or otherwise disposes of the
Mortgage Loan(s) funded and originated with the Advance whether by sale to a
Third Party Investor or otherwise; or (ii) on or before the applicable number of
days after its Funding Date set forth in the Cost and Fee Schedule under the
heading entitled "Days Allowed for Purchase by Third Party Investor" (the
earlier to occur of (i) or (ii) being referred to herein as the "Maturity
Date").
5. GRANT OF SECURITY INTEREST.
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(a) To secure the prompt payment of the Advances, interest and
all other amounts payable hereunder and under the other Loan Documents and the
due and punctual performance and observance by Borrower of all of its other
covenants, obligations and liabilities under this Agreement and the other Loan
Documents and also to secure all of the other Obligations Secured Hereby,
Borrower hereby grants to Provident a security interest in and to, and hereby
pledges and collaterally assigns to Provident, all of its rights, title,
interest and claims in, to and under all of the following property, wherever
located, whether now or hereafter owned, held or acquired, or hereafter existing
or arising (collectively, the "Collateral"):
(i) all Mortgage Loans;
(ii) all Mortgage Loan Documents including, without
limitation, all Mortgage Notes, Mortgages and Assignments of Mortgages relating
to the Mortgage Loans;
(iii) all rights to service or subservice the
Mortgage Loans;
(iv) all certificates, notes and other securities of
any kind whatsoever, residual or otherwise, issued to Borrower or now or
hereafter owned, held or acquired by Borrower in connection with or related to
any mortgage loan securitization or any asset-back transaction involving the
Mortgage Loans;
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(v) all of Borrower's rights under contracts or
agreements to which Borrower is party (but none of its covenants, obligations or
liabilities thereunder) in connection with the Mortgage Loans, including all
contracts or agreements with all Third Party Investors and all attorney's
opinions of title and title insurance policies;
(vi) the Cash Collateral Account and all funds in the
Cash Collateral Account; and
(vii) all Proceeds of any and all of the foregoing
Collateral in whatever form, including but not limited to, all payments made by
Mortgagors to Borrower in connection with the Mortgage Loans and all premiums
paid to Borrower by Third Party Investors in connection with the sales of the
Mortgage Loans.
(b) Borrower shall take all actions necessary or appropriate
under all applicable laws, or as requested by Provident, to perfect, maintain
and preserve, and to continue as perfected, Provident's first lien and security
interest in the Collateral. Borrower shall pay all costs of preparing, recording
and filing UCC Financing Statements (and any continuation or termination
statements with respect thereto) and any other documents, titles, statements,
assignments or the like reasonably required to create, maintain, preserve or
perfect the. liens or security interests granted under the Loan Documents,
together with costs and expenses of any lien or UCC searches required by
Provident in connection with the making of any Advance. At Provident's request,
Borrower shall execute and deliver to Provident at any time and from time to
time hereafter, all supplemental documentation that Provident may reasonably
request to perfect, maintain, preserve or continue the security interest and
liens in the Collateral granted Provident hereby and under any of the other Loan
Documents (collectively, the "Security Documents"), in form and substance
acceptable to Lender, and pay the costs of preparing and recording or filing of
the same. Borrower agrees that a carbon, photographic, or other reproduction of
this Agreement or of a financing statement is sufficient as a financing
statement. Borrower shall promptly notify Provident concerning any changes in
its name, identity or structure, concerning any changes in the address(es) of
its chief executive office or other places of business or concerning any changes
in its trade name(s) or name(s) under which it does business.
(c) The Document Custodian shall maintain possession of each
Credit File and the Mortgage Loan Documents comprising each Credit File (other
than the Initial Collateral Package) for each Mortgage Loan. Promptly after
Provident's request therefor, Borrower, at its expense, shall cause the Credit
Files held by the Document Custodian to be delivered to Provident or its agent,
bailee or other designee.
(d) Borrower shall, at all times, maintain the Cash Collateral
Account with Provident. Borrower shall deposit or cause to be deposited all
Collections into the Cash Collateral Account when and as Collections are
received or receivable by Borrower. Withdrawals may be made from the Cash
Collateral Account by Borrower in accordance with the Policies and Procedures.
Provident is hereby authorized to withdraw funds from the Cash Collateral
Account from time to time, either before or after Provident's Demand for
Payment, and to apply such withdrawals to the payment of the Advances, accrued
and unpaid interest thereon and Fees, charges and other amounts payable
hereunder or under the other Loan Documents.
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(e) Borrower hereby makes, constitutes and appoints Provident
(by any of its officers, employees or agents), its true and lawful agent and
attorney-in-fact and hereby gives and grants to Provident full power and
authority to do and perform each and every act whatsoever requisite, necessary
and proper (i) to endorse the related Mortgage Note to the Third Party Investor
that purchases any Mortgage Loan; (ii) to endorse any original Mortgage Note to
Provident or the purchaser thereof should Borrower default in its obligations
hereunder; (iii) to prepare, execute and record on behalf of Borrower any
Assignment of Mortgage; (iv) at the sole option of Provident, to prosecute, in
Borrower's or Provident's name, any and all claims or causes of action
collaterally assigned to Provident hereunder; and (v) to do and perform every
act necessary to place Provident in position to enforce the payment of any
Mortgage Loan.
6. BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants to Provident as follows as of the date hereof and as of each Funding
Date:
(a) Borrower is and shall at all times be, duly organized,
validly existing and in good standing under the laws of the State set forth in
the first paragraph of this Agreement and has, and shall at all times have, full
power and authority and legal right to engage in and carry on Borrower's
business as now being conducted, to undertake the borrowings contemplated hereby
and to execute and deliver each of the Loan Documents. Borrower is qualified and
licensed in each jurisdiction wherein the nature or conduct of its business make
such qualification necessary or advisable. Borrower is currently qualified and
licensed in good standing in each such jurisdiction. Borrower's name as set
forth in the caption of this Agreement and as set forth on the signature page of
this Agreement is Borrower's correct individual, partnership or corporate name,
as the case may be.
(b) Borrower has full power and authority and legal right to
enter into this Agreement and each of the other Loan Documents, and to perform,
observe and comply with all of its agreements and obligations under each of such
documents, including without limitation, the making by Borrower of the
borrowings contemplated hereby and the granting by Borrower of the security
interest in the Collateral pursuant to Section 5.
(c) The execution and delivery by Borrower of this Agreement
and the other Loan Documents, the performance by Borrower of all of its
agreements and obligations hereunder and thereunder and the making by Borrower
of the borrowings contemplated by this Agreement have been duly authorized by
all necessary corporate action on the part of Borrower and do not and will not
constitute a breach, violation or event of default (or an event which would
become an event of default with the lapse of time or notice or both) under any
judgment, decree, note, agreement, indenture or other instrument to which
Borrower is a party or otherwise subject.
(d) Borrower owns or possesses all rights, licenses, permits,
franchises and the like necessary for the conduct of its business as presently
conducted and proposed to be conducted. All of the foregoing rights, licenses,
permits and franchises are in full force and effect, and Borrower is in
compliance with all of the foregoing. No event has occurred which permits, or
after notice or lapse of time or both would permit, the revocation or
termination of any such right, license, permit or franchise, or affects the
rights of Borrower thereunder.
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(e) The balance sheets, statements of income and other
financial statements previously delivered to Provident present fairly the
financial condition and results of operations of Borrower as of the dates
thereof and for the fiscal periods then ended. There are no material liabilities
or obligations, secured and unsecured (whether accrued, absolute or actual,
contingent or otherwise), which were not reflected in the balance sheets of
Borrower as of the dates thereof.
(f) No changes have occurred in the assets, liabilities or
financial condition of Borrower from those reflected on the most recent balance
sheet delivered to Provident (the "Current Balance Sheet") which, individually
or in the aggregate, have been adverse. Since the date of the Current Balance
Sheet, there has been no adverse development in the business or in the
operations or prospects of Borrower.
(g) Borrower is the sole owner of and has good and marketable
title to the Collateral, free and clear of all Liens and encumbrances
whatsoever, except for the security interest granted by Borrower pursuant to
Section 5. All information furnished to Provident concerning the Collateral is
and will be complete, accurate and correct in all o respects when furnished.
7. COVENANTS REGARDING THE BORROWER. Borrower covenants and agrees with
Provident as follows:
(a) Borrower shall deliver to Provident as soon as available
and, in any event, within thirty (30) days after the end of each calendar
quarter, quarterly unaudited financial statements of Borrower and within
seventy-five (75) days after the end of each fiscal year of Borrower, annual
financial statements of Borrower which, in each case, shall include a balance
sheet, statement of income, statement of changes in financial position and notes
to financial statements. Provident reserves the right to require Borrower to
deliver audited annual financial statements.
Such financial statements shall be certified by the chief
executive officer of Borrower to the effect that such financial statements
reflect, in his opinion and in the opinion of senior management of Borrower, all
adjustments necessary to present fairly the financial position of Borrower as at
the end of such quarter or year, as the case may be, and the results of its
operations for the period then ended.
(b) Borrower shall deliver to Provident all information
Provident may reasonably request at any time and from time to time concerning
its business, financial condition, results of operations, the Mortgage Loans
financed hereunder or the other Collateral.
(c) Borrower covenants to keep the Credit File for each of the
Mortgage Loans financed hereunder at all times at Borrower's business premises
or at such other location or locations as Provident may approve in writing.
Borrower further covenants to deliver the Credit File(s) to Provident upon
demand by Provident, which demand may be made in Provident's sole and absolute
discretion.
(d) Borrower shall pay or cause to be paid all taxes,
assessments and other governmental charges imposed upon its properties or assets
or in respect of any of its franchises, business, income or profits before any
penalty or interest accrues thereon, and all
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claims (including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or
might become due and payable and which by law have or might become a lien or
charge upon any of its properties or assets, provided that (unless any material
item of property would be lost, forfeited or materially damaged as a result
thereof) no such charge or claim need be paid if the amount, applicability or
validity thereof is currently being contested in good faith and if such reserve
or other appropriate provision, if any, as shall be required by generally
accepted accounting principles shall have been made therefor.
(e) At any time or times during Borrowers usual business
hours, Borrower shall permit Provident by any of its officers, employees or
agents) to enter upon Borrower's business premises for any of the following
reasons: (i) to inspect the Collateral and any books or records related thereto
(including making copies of and extracts therefrom), (ii) to verify the amount,
quality, quantity, value or condition of, or any other matter relating to, the
Collateral, (iii) to examine all of the other books and records of Borrower
(including making copies of and extracts therefrom), including those relating to
its tax records, payroll records and insurance records, and (iv) to discuss the
business, financial condition or results of operations with any of Borrower's
officers, employees, agents or accountants. Borrower covenants to pay Provident
a reasonable audit fee and reimburse Provident for its out-of-pocket expenses
for all inspections, audits and examinations conducted by Provident other than
regular monthly audits.
(f) Borrower covenants to comply with all federal, state and
local laws, rules, regulations and orders applicable to it and its business.
(g) Borrower agrees to notify Provident in writing within
fifteen (15) calendar days of any proposed Change of Control or any proposed, or
completed, change in the executive management of Borrower, including, but not
limited to, any management change in the office of president, or any change in
the management of Borrower's underwriting department. Borrower further agrees to
notify Provident in writing at least thirty (30) days in advance of any change
in the location of its principal place of business or of any proposed change in
the name of Borrower or the opening or closing of any office.
(h) Borrower shall not at any time create, assume, incur or
permit to exist, any Lien or other encumbrance in respect of any of the
Collateral.
(i) Borrower agrees to give Provident prompt notice of any
development, financial or otherwise, which would materially adversely affect its
business, properties or affairs or the ability of Borrower to perform its
obligations under this Agreement.
8. COVENANTS REGARDING THE MORTGAGE LOANS. Borrower further covenants
and agrees with Provident as follows with respect to each Mortgage Loan to be
financed by Provident hereunder.
(a) As of its Funding Date, the Initial Collateral Package and
Credit File relating to the Mortgage Loan shall contain each of the documents
and instruments specified herein to be included therein.
(b) The related Mortgage shall be a valid and enforceable
first or second Lien of record on the Mortgaged Property subject, in the case of
any second Mortgage Loan,
11
only to a first Lien on such Mortgaged Property and subject in all cases to the
exceptions to title set forth in the title insurance policy or attorney's
opinion of title with respect to the related Mortgage Loan, which exceptions
shall be acceptable to Provident.
(c) Borrower shall hold good, marketable and indefeasible
title to, and be the sole owner and holder of, the Mortgage Loan subject to no
Liens or rights of others.
(d) The Mortgage Loan shall not be subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
nor shall the operation of any of the terms of the Mortgage Note or Mortgage, or
the exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense shall have
been asserted with respect thereto.
(e) The Mortgage Loan shall comply with, and shall at all
times be serviced in compliance with, in all material respects, applicable state
and federal laws and regulations, including, without limitation, usury, equal
credit opportunity, consumer credit, truth-in-lending and disclosure laws.
(f) With respect to the Mortgage Loan, either (i) a lender's
title insurance policy, issued in standard American Land Title Association or
California Land Title Association form, or other form acceptable in the
particular jurisdiction, by a title insurance company authorized to transact
business in the state in which the related Mortgaged Property is situated,
together with a condominium endorsement, if applicable, in an amount at least
equal to the original principal balance of such Mortgage Loan insuring the
mortgagee's interest under the related Mortgage Loan as the holder of a valid
first or second mortgage Lien of record on the Mortgaged Property described in
the Mortgage, subject only to the exceptions of the character referred to in
subsection (b) above, shall be valid and in full force and effect on the Funding
Date of the origination of such Mortgage Loan or (ii) an attorney's opinion of
title shall be prepared in connection with the origination of such Mortgage
Loan. Such mortgage title insurance policy or attorney's opinion of title shall
be issued in favor of Borrower and its successors and assigns. Borrower shall,
by act or omission, not have done anything that would impair the coverage of
such mortgage title insurance policy or attorney's opinion of title.
(g) The Mortgage Note and the related Mortgage shall have been
duly and properly executed, constitute the legal, valid and binding obligation
of the related Mortgagor and shall be enforceable in accordance with their
respective terms, except only as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law), and all
parties to the Mortgage Loan shall have had full legal capacity to execute all
Mortgage Loan Documents and to convey thc, estate therein purported to be
conveyed.
(h) The terms of the Mortgage Note and thc Mortgage shall not
have been or be impaired, altered or modified in any material respect, except by
a written instrument which shall have been recorded or is in the process of
being recorded, if necessary, to protect the interests of Borrower therein. The
original Mortgage shall be recorded, and all subsequent assignments of the
original Mortgage shall be recorded in the appropriate jurisdictions wherein
such recordation is necessary to perfect the Lien thereof as against creditors
of Borrower.
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(i) No instrument of release or waiver shall have been
executed in connection with the Mortgage Loan, and no Mortgagor shall have been
released therefrom, in whole or in part.
(j) The proceeds of the Mortgage Loan shall have been fully
disbursed, and there shall be no obligation on the part of Borrower to make any
future advances thereunder. All costs, fees and expenses incurred in making or
closing or recording of the Mortgage Loan shall have been paid in full.
(k) The Mortgage Note shall not be secured by any collateral,
pledged account or other security except the lien of the corresponding Mortgage.
(l) There shall be no obligation on the part of Borrower or
any other Person to make payments in respect of the Mortgage Loan in addition to
those to be made by the Mortgagor.
(m) All parties which have had any interest in the Mortgage
Loan, whether as originator, mortgagee, assignee, pledgee, servicer or
otherwise, are (or, during the period in which they held and disposed of such
interest, were) (1) in compliance with any and all applicable licensing
requirements of the laws of the state wherein the Mortgaged Property is located,
and (2)(A) organized under the laws of such state, or (B) qualified to do
business in such state, or (C) federal savings and loan associations or national
banks having principal offices in such state, or (D) not doing business in such
state so as to require qualification or licensing.
(n) The Mortgage shall contain customary and enforceable
provisions which render the rights and remedies of the holder thereof adequate
for the realization against the Mortgaged Property of the benefits of the
security, including, (i) in the case of a Mortgage designated as a deed of
trust, by trustee's sale, and (ii) otherwise by judicial or non-judicial
foreclosure.
(o) To the best of Borrower's knowledge, there shall not exist
any circumstances or conditions with respect to the Mortgage Loan, the Mortgaged
Property, the Mortgagor or the Mortgagors credit standing that could be
reasonably expected to materially adversely affect the value or marketability of
the Mortgage Loan.
(p) Each of the documents and instruments included in the
Credit File shall have been duly executed and in due and proper form and each
such document or instrument shall be in a form generally acceptable to prudent
institutional mortgage lenders that regularly originate or purchase mortgage
loans.
(q) The Borrower shall be in possession of the complete Credit
File and there shall be no custodial agreements in effect adversely affecting
the right or ability of Borrower to make the document deliveries required
hereby.
(r) The Mortgage property shall not be damaged by fire, wind
or other cause or loss and there shall not be any condemnation proceedings
pending. To the best knowledge
13
of Borrower, no improvement on any Mortgage property is in violation of any
applicable zoning law or regulation.
(s) All signatures, names and addresses, amounts and other
statements of fact, including descriptions of the property, appearing on the
credit application and other related documents relating to each Mortgage Loan
shall be true and correct and the Mortgagors named thereon will be, as of the
date of each such document upon which signatures appear, of majority age, and
will have the legal capacity to enter into the Mortgage.
(t) Borrower will have reviewed all of the Mortgage Loan
Documents, and all the related documents thereto, and will make such inquiries
as it deems necessary to make and confirm the accuracy of the representations
set forth herein and throughout this Agreement.
(u) Each Mortgage Loan which Borrower warrants is insured by a
private mortgage insurance company shall be so insured.
9. SALES OF MORTGAGE LOANS AND OTHER COLLATERAL. Until Provident shall
have made a Demand for Payment, Borrower shah be entitled to sell the Mortgage
Loans financed hereunder and the other Collateral in the ordinary course of
Borrower's business, but nothing herein shall be deemed to waive or release
Provident's security interest in any Proceeds of any Collateral. Upon the sale
of any Mortgage Loan financed hereunder, Borrower shall pay to Provident on its
Closing Date, the unpaid amount of the Advance with respect to such Mortgage
Loan, all accrued and unpaid interest thereon through and including such Closing
Date and all Fees, charges and other amounts payable hereunder. The sales of
Mortgage Loans to Third Party Investors shall be handled in accordance with the
requirements set forth in the Policies and Procedures. In addition, Borrower
agrees that Provident shall have the right, in its sole discretion, to (i)
impose additional requirements regarding the delivery of Mortgage Loan Documents
to any Third Party Investor; and (ii) return wire transfers received in
connection with the sale of any Mortgage Loan to the originating bank if such
wire transfer does not comply with the Policies and Procedures.
10. REMEDIES.
---------
(a) After a Demand for Payment shall have been made by
Provident, all amounts owed to Provident hereunder shall thereupon be
immediately due and payable and no additional or future Advances will be made by
Provident to Borrower hereunder.
(b) From and after any Demand For Payment, Provident shall, in
addition to its other rights and remedies under applicable law, have the rights
and remedies of a secured party under the Uniform Commercial Code with respect
to the Collateral and all other security pursuant to any other Security
Documents between Provident and Borrower. In addition, Provident or its agents
or representatives may take possession of the Collateral and sell the same. For
such purpose, Provident may enter upon the premises where the Collateral shall
be located and remove the same to such other place as Provident shall determine.
Borrower shall immediately, upon Provident's demand, make the Credit Files
available to Provident at Provident's place of business.
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(c) Any such taking of possession by Provident shall not
affect Provident's right, which hereby is confirmed, to retain all payments made
prior thereto by Borrower, and in the event of such taking of possession,
Provident may sell the Collateral at a public or private sale or any other
commercially reasonable manner permitted by law. The proceeds of any such sale
or other disposition shall be applied first to the actual and reasonable costs
of such sale, then to the actual and reasonable costs of retaking possession and
storage of such Collateral and then to the satisfaction of the unpaid balance of
the Advances. In the event the proceeds of any such sale are not sufficient to
pay such expenses and to satisfy all mounts due by acceleration or otherwise
with respect to all Advances made pursuant hereto, Borrower shall pay to
Provident any deficiency existing. Provident will give Borrower reasonable
notice of the time and place of any public sale of the Collateral or of the time
after which any private sales or other intended disposition thereof is to be
made. Borrower agrees that the requirement of reasonable notice shall be met if
such notice is mailed, postage prepaid, to the address of the Borrower listed in
Section 11(f) at least 10 days prior to the time of such sale or disposition.
Borrower further agrees and acknowledges that: (i) the Collateral is customarily
sold in a recognized market; (h) Borrower regularly sells and Provident
regularly purchases mortgage loans similar to the Collateral; and (iii)
Provident may be the purchaser of the Collateral either in a public or private
sale.
(d) From and after any Demand For Payment, Borrower shall pay,
in addition to interest on funds actually advanced, all costs incurred by
Provident in enforcing Provident's rights hereunder, including those incurred in
bankruptcy proceedings, expenses of locating the Collateral, all Costs and
expenses actually incurred by Provident in connection with examination,
preservation and protection of the Collateral, examination of the Borrower's
books and records otherwise in connection with the financing pursuant hereto and
reasonable attorney's fees and legal expenses.
(e) If any payment of interest under Section 3 or principal or
interest under Section 4 is not paid when due whether by demand or otherwise,
the unpaid amount of all Advances and all accrued and unpaid interest thereon as
well as any other charges and other amounts due Provident hereunder or under any
Loan Document shall bear interest, at Provident's option, at the Default
Interest Rate from the date on which such late payment shall have first become
due and payable to Provident. Interest will continue to accrue until the
obligations in respect of the payment are discharged (whether before or after
judgment).
(f) The rights and remedies of Provident hereunder shall be
cumulative and shall be in addition to every other right or remedy available to
Provident under applicable law.
11. GENERAL PROVISIONS.
-------------------
(a) Borrower absolutely and unconditionally agrees to pay to
Provident upon demand by Provident at any time and as often as the occasion
therefor may require, whether or not all or any of the transactions contemplated
by any of the Loan Documents are ultimately consummated (i) all reasonable
out-of-pocket costs and expenses which shall at any time be incurred or
sustained by Provident or any of its directors, officers, employees or agents as
a consequence of, on account of, in relation to or any way in connection with
the preparation, negotiation, execution and delivery of the Loan Documents and
the perfection and continuation of the rights of Provident in connection with
the Advances, as well as the preparation, negotiation, execution, or delivery or
in connection with the amendment or modification of any of the Loan Documents or
as a consequence of, on account of, in relation to or any way in connection with
the granting by Provident of any consents, approvals or waivers under any of
15
the Loan Documents including, but not limited to, reasonable attorneys' fees and
disbursements; and (ii) all reasonable out-of-pocket costs and expenses which
shall be incurred or sustained by Provident or any of its directors, officers,
employees or agents as a consequence of; on account of, in relation to or any
way in connection with the exercise, protection or enforcement (whether or not
suit is instituted) of any of its rights, remedies, powers or privileges under
any of the Loan Documents or in connection with any litigation, proceeding or
dispute in any respect related to any of the Loan Documents (including, but not
limited to, all of the reasonable fees and disbursements of consultants, legal
advisers, accountants, experts and agents for Provident, the reasonable travel
and living expenses away from home of employees, consultants, experts or agents
of Provident, and the reasonable fees of agents, consultants and experts not in
the full-time employ of Provident for services rendered on behalf of Provident).
(b) Borrower shall absolutely and unconditionally indemnify
and hold harmless Provident against any and all claims, demands, suits, actions,
causes of action, damages, losses, settlement payments, obligations, costs,
expenses (including, but not limited to, attorney's fees and other legal costs
and expenses) and all other liabilities whatsoever ("Losses") which shall at any
time or times be incurred or sustained by Provident or by any of its
shareholders, directors, officers, employees, subsidiaries, Affiliates or agents
on account of, or in relation to, or in any way in connection with, any of the
arrangements or transactions contemplated by, associated with or ancillary to
this Agreement or any of the other Loan Documents, whether or not all or any of
the transactions contemplated by, associated with or ancillary to this Agreement
or any of such Loan Documents are ultimately consummated, including, but not
limited to, Losses arising from or in connection with, or related to, any of the
Mortgage Loans financed hereunder, whether arising from the underwriting,
processing, origination, closing, funding, purchase, servicing or sale of any
such Mortgage Loans.
(c) No amendment, supplement, modification, termination,
waiver, consent to departure or alteration of the terms hereof or any of the
other Loan Documents shall be binding or effective unless the same is in
writing, dated subsequent to the date hereof, and duly executed by Borrower and
Provident, and then such amendment, modification or waiver shall be effective
only in the specific instance and for the specific purpose for which given.
(d) All agreements, representations, obligations and
warranties made herein shall survive the execution and delivery of this
Agreement, the making of any Advance hereunder, the execution and delivery of
any of the other Loan Documents and payment in full of the Advances.
(e) This Agreement (including the Exhibits and Schedules
hereto) and the other Loan Documents (including the Security Documents) and any
documents, certificates and instruments referred to herein or delivered by the
parties in connection herewith constitute the entire agreement between the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and verbal, between the parties with
respect to the subject matter of this Agreement and are not intended to confer
upon any Person other than the parties any rights or remedies.
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(f) All notices and other communications pursuant to this
Agreement and under any of the other Loan Documents shall be in writing, either
delivered in hand or sent by first-class mail, registered or certified, return
receipt requested, or sent by telecopier or facsimile transmission, addressed as
follows:
If to Borrower, at:
-------------------------------
-------------------------------
-------------------------------
Fax No.
------------------------
If to Provident, at: The Provident Bank
One East Fourth Street
Cincinnati, Ohio 45202
Attn: Kenneth D. Logan,
Senior Vice President
Mail Stop: 265D
Fax Number: (513) 564-7943
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this Section 11. Any notice or other communication pursuant to this Agreement
or any other Loan Document shall be deemed to have been duly given or made and
to have become effective when delivered in hand to the party to which it is
directed, or, if sent by first-class mail or by telecopier or facsimile
transmission, and properly addressed (i) when received by the addressee; or (ii)
if sent by first class mail, on the third (3rd) Business Day following the day
of the mailing thereof(unless actually received earlier).
(g) No delay or failure of Provident in exercising any right,
power, remedy or privilege hereunder or under any of the other Loan Documents on
any occasion shall affect such right, power, remedy or privilege or be construed
as a waiver or any requirement of this Agreement; nor shall any single or
partial exercise thereof or any abandonment or discontinuance of steps to
enforce such a right, power or privilege be prejudicial to any subsequent
exercise of such right, power or privilege. Provident's acceptance or approval
of any request, payment, document or instrument pertaining to any Advance made
pursuant hereto shall not constitute any representation or warranty, express or
implied, by Provident as to the validity or sufficiency of any such request,
payment, document or instrument. The rights and remedies of Provident hereunder
are cumulative and not exclusive. All remedies herein provided shall be in
addition to and not in substitution for any remedies otherwise available to
Provident. Any waiver, permit, consent or condition hereof, must be in writing
and shall be effective only to the extent set forth in such writing.
(h) This Agreement shall be binding upon and inure to the
benefit of Borrower and Provident and their respective successors and assigns,
except that Borrower may not assign or transfer any of its rights or obligations
hereunder to any Person or Persons without the express prior written consent of
Provident. If more than one Borrower shall sign this Agreement, the liability of
each hereunder shall be joint and several.
(i) This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
17
(j) It is hereby stipulated and agreed that TIME IS OF THE
ESSENCE hereon and shall be of the essence as to each of the other Loan
Documents.
(k) Any provision contained in any document which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of such document or affecting the validity
or enforceability of such provision in any other jurisdiction.
(l) This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed and deliver shall be deemed to be an original and all of which
taken together shall constitute but one and the same Agreement-
12. WAIVER OF JURY TRIAL: JURISDICTION AND VENUE.
---------------------------------------------
(a) AS A SPECIFICALLY BARGAINED INDUCEMENT FOR PROVIDENT TO
EXTEND CREDIT TO BORROWER, AND AFTER HAVING THE OPPORTUNITY TO CONSULT COUNSEL,
BORROWER AND, IF MORE THAN ONE, EACH OF THEM HEREBY EXPRESSLY WAIVES THE RIGHT
TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO THIS AGREEMENT OR
ARISING IN ANY WAY FROM ITS OBLIGATIONS HEREUNDER.
(b) BORROWER AND, IF MORE THAN ONE, EACH OF THEM HEREBY
DESIGNATES ALL COURTS OF RECORD SITTING IN HAMILTON COUNTY, OHIO AND HAVING
JURISDICTION OVER THE SUBJECT MATTER, STATE AND FEDERAL, AS FORUMS WHERE ANY
ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING FROM OR OUT OF THIS
AGREEMENT, ITS MAKING, VALIDITY, PERFORMANCE, INTERPRETATION OR ENFORCEMENT MAY
BE LITIGATED AS TO ALL PARTIES, THEIR SUCCESSORS AND ASSIGNS, AND BY THE
FOREGOING DESIGNATION BORROWER AND, IF MORE THAN ONE, EACH OF THEM HEREBY
CONSENTS TO THE JURISDICTION AND VENUE OF SUCH COURTS. BORROWER WAIVES ANY AND
ALL RIGHTS UNDER THE LAWS OF ANY OTHER STATE TO OBJECT TO JURISDICTION WITHIN
THE STATE OF OHIO FOR THE PURPOSES OF LITIGATION TO ENFORCE THE OBLIGATIONS
UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, the undersigned have caused this Warehouse Loan and
Security Agreement to be signed by their duly authorized signatories on and as
of the date first above written.
-----------------------------------
BY: /s/ Payton Story, III
-------------------------------
NAME: PAYTON STORY, III
-----------------------------
TITLE: PRESIDENT
----------------------------
18
THE PROVIDENT BANK
BY: /s/ Ken Logan
-------------------------------
NAME: KEN LOGAN
-----------------------------
TITLE: SENIOR VICE PRESIDENT
----------------------------
19