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FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "Amendment"), is entered
into effective as of the 13th day of October, 1999 by and among MORTGAGE
PORTFOLIO SERVICES, INC. a Delaware corporation ("Borrower"), NAB ASSET
CORPORATION, a Texas corporation ("Guarantor"), and BANK UNITED, as Agent
("Agent") and the lenders party to the Original Agreement, as defined below
("Lenders").
Section 1. Recitals. Borrower, Guarantor, Agent, and Lenders have
entered into that certain Credit Agreement dated June 15, 1999 ("Original
Agreement") for the purposes and consideration therein expressed, pursuant to
which Lenders have agreed to make loans to Borrower as therein provided.
Borrower, Guarantor, Agent, and Lenders desire to amend the Original Agreement
for the purposes expressed herein. Therefore, Borrower, Guarantor, Agent, and
Lenders hereby agree as follows, intending to be legally bound:
Section 2. Definitions and References. Unless the context otherwise
requires or unless otherwise expressly defined herein, the terms in the Original
Amendment shall have the same meanings whenever used in this Amendment. Unless
the context otherwise requires, the following terms when used in this Amendment
shall have the meanings assigned to them as follows:
(a) "Amendment" means this First Amendment to the Credit Agreement.
(b) "Credit Agreement" means the Original Agreement as amended hereby.
Section 3. Amendments. The Original Agreement is hereby amended, as
follows:
(a) The following definitions in Section 1.01 of the Original Agreement
are hereby restated as follows:
"Commitment" means the obligation of Lenders to make Tranche A
Loans, Tranche B Loans, Tranche C Loans and Tranche D Loans to Borrower
pursuant to Section 2.01 hereof in an aggregate amount not to exceed
$80,000,000 at any time outstanding.
"Eligible Manufactured Housing Mortgage Loan" means a Mortgage
Loan with respect to which each of the following statements is accurate
and complete (and Borrower by including such Mortgage Loan in any
computation of the Collateral Value of the Tranche A Borrowing Base or
of the Collateral Value of the Tranche B Borrowing Base shall be deemed
to so represent to Agent and Lenders at and as of the date of such
computation):
(i) Such Mortgage Loan is an Eligible Mortgage Loan;
(ii) Such Mortgage Loan is secured by a first
priority deed of trust (or mortgage) on the related Property;
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(iii) The proceeds of said Mortgage Loan are utilized
by the Obligor to facilitate the permanent attachment of a new
Manufactured Home on the related Property;
(iv) The Property securing such Mortgage Loan is
located in an Acceptable Manufactured Housing State;
(v) Upon completion and attachment of the related
Manufactured Home to the related Property, such Mortgage Loan
will meet all underwriting and other criteria for purchase by
an Investor under the Take-Out Commitment relating to such
Mortgage Loan;
(vi) The Manufactured Home financed with the proceeds
of such Mortgage Loan is a new Manufactured Home which has not
previously been financed;
(vii) All actions required to create a valid and
enforceable first priority perfected security interest in and
lien upon the related Manufactured Home and the related
Property in favor of Borrower shall have been taken; and
(viii) The Unit Collateral Value of such Mortgage
Loan, when added to the Unit Collateral Value of all other
Eligible Manufactured Housing Mortgage Loans included in the
computation of the Collateral Value of the Tranche A Borrowing
Base and the Collateral Value of the Tranche B Borrowing Base
does not exceed Two Million Four Hundred Thousand Dollars
($2,400,000.00).
"Eligible Mortgage Loan" means a Mortgage Loan with respect to which
each of the following statements is accurate and complete (and the Borrower by
including such Mortgage Loan in any computation of the Aggregate Collateral
Value of the Borrowing Base shall be deemed to so represent to Agent and Lenders
at and as of the date of such computation):
(i) Such Mortgage Loan is a binding and valid
obligation of the Obligor thereon, in full force and effect
and enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar terms affecting creditor's
rights in general and by general principles of equity;f
(ii) Such Mortgage Loan is genuine in all respects as
appearing on its face and as represented in the books and
records of Borrower, and all information set forth therein is
true and correct;
(iii) To the best knowledge of Borrower, such
Mortgage Loan is free of any default (other than as permitted
by subparagraph (iv) below) of any party thereto (including
Borrower), counterclaims, offsets and defenses, including the
defense of usury, and from any rescission, cancellation or
avoidance, and all right thereof, whether by operation of law
or otherwise;
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(iv) No payment under such Mortgage Loan is more than
thirty (30) days past due the payment due date set forth in
the underlying Mortgage Note and Mortgage;
(v) Such 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 respect not
expressed in writing therein and is free of concessions or
understandings with the Obligor thereon of any kind not
expressed in writing therein;
(vi) Such Mortgage Loan is in all respects in
accordance with all Requirements of Law applicable thereto,
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 such
Mortgage Loan have been given and performed as required;
(vii) All advance payments and other deposits on such
Mortgage Loan have been paid in cash, and no part of said sums
has been loaned, directly or indirectly, by Borrower to the
Obligor, and, other than as disclosed to Agent in writing,
there have been no prepayments;
(viii) At all times such Mortgage Loan will be free
and clear of all Liens, except in favor of Agent for the
benefit of the Lenders;
(ix) The Property covered by such Mortgage Loan is
insured against loss or damage by fire and all other hazards
normally included within standard extended coverage in
accordance with the provisions of such Mortgage Loan with
Borrower named as a loss payee thereon;
(x) The Required Mortgage Documents have been
delivered to Agent prior to the inclusion of such Mortgage
Loan in any computation of the Aggregate Collateral Value of
the Borrowing Base or, if such items have not been delivered
to Agent on or prior to the date such Mortgage Loan is first
included in any computation of the Aggregate Collateral Value
of the Borrowing Base, (1) an Agreement to Pledge and a copy
of the unexecuted Mortgage Note for such Mortgage Loan has
been delivered to Agent prior to such inclusion, and (2) the
Unit Collateral Value of such Mortgage Loan when added to the
Unit Collateral Value of all other Mortgage Loans for which
Agent has not received the Required Mortgage Documents does
not exceed Thirty-three Million Six Hundred Thousand Dollars
($33,600,000.00), provided that, all Required Documents with
respect to such Mortgage Loan shall be delivered to Agent
within seven (7) Business Days after the date of the Agreement
to Pledge with respect thereto, provided further that, as to
any Eligible Tranche C Mortgage Loan, an Agreement to Pledge
can be delivered to Agent only for the first Loan made with
respect to such Eligible Tranche C Mortgage Loan, and all
Required Documents for any subsequent Loan with respect to
such Eligible Tranche C Mortgage Loan must be delivered to
Agent not later than one (1) Business Day after such
subsequent Loan;
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(xi) If such Mortgage Loan is included in the Tranche
A Borrowing Base, the Tranche B Borrowing Base or the Tranche
C Borrowing Base and has been withdrawn from the possession of
the Agent on terms and subject to conditions set forth in the
Security Agreement:
(1) If such Mortgage Loan was withdrawn by
Borrower for purposes of correcting clerical or other
non-substantive documentation problems, the
promissory note and other documents relating to such
Mortgage Loan are returned to the Agent within twelve
(12) calendar days from the date of withdrawal; and
the Unit Collateral Value of such Mortgage Loan when
added to the Unit Collateral Value of other Mortgage
Loans which have been similarly released to Borrower
and have not been returned does not exceed
$4,000,000;
(2) If such Mortgage Loan was shipped by the
Agent directly to a permanent investor for purchase
or to a custodian for the formation of a pool, the
full purchase price therefor has been received by the
Agent (or such Mortgage Loan has been returned to the
Agent) within thirty (30) days from the date of
shipment by the Agent.
(xii) If such Mortgage Loan is a Jumbo Loan or a
Super-Jumbo Loan, the Unit Collateral Value of such Mortgage
Loan when added to the Unit Collateral Value of all other
Jumbo Loans and Super-Jumbo Loans does not exceed thirty
percent (30%) of the Commitment;
(xiii) If such Mortgage Loan is a Super-Jumbo Loan,
the Unit Collateral Value of such Mortgage Loan when added to
the Unit Collateral Value of all other Super-Jumbo Loans does
not exceed five percent (5%) of the Commitment; and
(xiv) The face amount of the Mortgage Note underlying
such Mortgage Loan does not exceed $1,000,000.
In determining the eligibility of any Mortgage Loan, any of the
requirements for eligibility (other than the requirements contained in clauses
(i), (viii) and (ix) above) may be waived by Agent, provided, that any Mortgage
Loan which is accepted by Agent as an Eligible Mortgage Loan pursuant to such
waiver (an "Eligible Waiver Mortgage Loan") shall cease to be an Eligible Waiver
Mortgage Loan upon written notice of the retraction of such waiver given to
Borrower by Agent unless at the time of giving such notice the deficiency which
originally required such waiver has been cured and such Eligible Waiver Mortgage
Loan meets all other requirements for an Eligible Mortgage Loan; and provided
further, that the Unit Collateral Value of any Mortgage Loan accepted by Agent
as an Eligible Waiver Mortgage Loan when added to the Unit Collateral Value of
all other Eligible Waiver Mortgage Loans included in the Aggregate Collateral
Value of the Borrowing Base at anytime, does not exceed $4,000,000.
"Eligible Sub-Prime Mortgage Loan" means an Eligible Mortgage Loan that
has a Risk Rating of A-1, B or C and is eligible for sale to a Tranche B
Investor (and the Borrower by including such Mortgage Loan in any computation)
of the Aggregate Collateral Value of the Borrowing Base shall be deemed to so
represent to Agent and Lenders at and as of the date of such computation and
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the Unit Collateral Value of such Eligible Mortgage Loan, when added to the Unit
Collateral Value of all Eligible Subprime Mortgage Loans included in the Tranche
B Borrowing Base does not exceed Thirty-two Million Dollars ($32,000,000.00).
"Eligible Tranche A Mortgage Loan" means an Eligible Agency Mortgage
Loan or Eligible Manufactured Housing Mortgage Loan owned by Borrower with
respect to which each of the following statements shall be accurate and complete
(and Borrower by including such Eligible Mortgage Loan in any computation of the
Collateral Value of the Tranche A Borrowing Base shall be deemed to so represent
to Agent and Lenders at and as of the date of such computation):
(i) Such Mortgage Loan has not been included in the Tranche A
Borrowing Base for more than 120 days; provided, however, that such
Mortgage Loan may be included in the Tranche A Borrowing Base for up to
a maximum aggregate period of 270 days so long as the Unit Collateral
Value of such Mortgage Loan when added to the Unit Collateral Value of
all other Eligible Tranche A Mortgage Loans and Eligible Tranche B
Mortgage Loans included in the Tranche A Borrowing Base and the Tranche
B Borrowing Base for more than 120 days does not exceed One Million Six
Hundred Thousand Dollars ($1,600,000.00).
(ii) Such Mortgage Loan is covered by a Take-Out Commitment
which is in full force and effect, and Borrower and such Mortgage Loan
are in full compliance therewith;
(iii) Such Mortgage Loan is secured by a first or second
priority Mortgage on Property consisting of a completed one-to-four
unit single family residence, including a condominium, planned unit
development or townhouse; provided, however, that if such Mortgage Loan
is a Second Mortgage Loan, such Mortgage Loan may be included in the
Tranche A Borrowing Base only if the Unit Collateral Value of such
Second Mortgage Loan when added to the Unit Collateral Value of all
other Second Mortgage Loans then included in the Tranche A Borrowing
Base and the Tranche B Borrowing Base and all Eligible High LTV Loans
then included in the Tranche B Borrowing Base does not exceed Four
Million Dollars ($4,000,000.00).
(iv) For any Mortgage Loan which was originally included in
the Tranche C Borrowing Base, Agent has received the Required Mortgage
Documents set forth in Section 3 of SCHEDULE A to the Security
Agreement;
(v) If such Mortgage Loan is an Eligible Manufactured Housing
Mortgage Loan, such Mortgage Loan has a Risk Rating of A; and
(vi) Such Mortgage Loan is not included in the Tranche C
Borrowing Base.
"Tranche C Sublimit" means Nine Million Six Hundred Thousand Dollars
($9,600,000.00).
"Tranche D Sublimit" means Two Million Dollars ($2,000,000.00).
(b) Section 6.09. Net Worth of the Original Agreement is hereby
restated as follows:
"Section 6.09. Net Worth. Borrower's Consolidated
Tangible Net Worth shall never be less than Seven Million
Dollars
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($7,000,000.00), computed as of the end of each month. As of
the end of each Fiscal Quarter, Guarantor's Consolidated Net
Worth shall not be less than Five Million Dollars
($5,000,000.00)."
(c) Section 6.10. Total Liabilities to Tangible Net Worth Ratio is
hereby restated as follows:
"Section 6.10. Total Liabilities to Tangible Net Worth Ratio.
The ratio of Borrower's Total Liabilities to Borrower's Consolidated
Tangible Net Worth shall never be more than 10.0 to 1.0, computed as of
the end of each calendar month."
(d) EXHIBITS "A-1", "A-2", "C", and "D" to the Original Agreement are
hereby amended in their entirety to read as set forth in EXHIBITS "A-1", "A-2",
"C", and "D" attached hereto.
(e) Section 5.11 of the Original Agreement is hereby restated effective
as of June 15, 1999 as follows:
"Section 5.11. Use of Proceeds; Margin Stock. The proceeds of
the first Borrowing shall be used to repay Borrower's obligations under
that certain third restated credit agreement dated August 31, 1998 by
and among Borrower, Guarantor, Guaranty Federal Bank, F.S.B. as Agent
and the lenders party thereto, as amended and the proceeds of all other
Borrowings shall be used by Borrower solely for the origination or
acquisition of Mortgage Loans in the ordinary course of Borrower's
business. None of such proceeds shall be used for the purpose of
purchasing or carrying any "margin stock" as defined in Regulation U,
or for the purpose of reducing or retiring any Indebtedness which was
originally incurred to purchase or carry margin stock or for any other
purpose which might constitute this transaction a "purpose credit"
within the meaning of such Regulation U. Neither Borrower nor any
Person acting on behalf of Borrower shall take any action in violation
of Regulation U or Regulation X or shall violate Section 7 of the
Securities Exchange Act of 1934 or any rule or regulation thereunder,
in each case as now in effect or as the same may hereafter be in
effect."
(f) Section 10.18 of the Original Agreement is hereby deleted in its
entirety effective as of June 15, 1999.
(g) Section 6.15. Dividends is hereby added to Article VI of the
Original Agreement for all purposes:
"Section 6.15. Dividends. Neither Borrower nor its Affiliates
shall pay, make, or declare any Dividends unless, after each payment
thereof, the Borrower's Consolidated Tangible Net Worth is equal to or
more than Eight Million Dollars ($8,000,000.00)."
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(h) The following subsection (n) is hereby added to Section 7.01 Nature
of Event of the Original Agreement for all purposes:
"(n) Guarantor shall fail to pay to Borrower additional paid
in capital of One Million Dollars ($1,000,000.00) on the date
liquidation of Construction Portfolio Funding, Inc. is completed."
(i) EXHIBITS "A-1" and "A-2" to the Original Agreement are hereby
replaced with EXHIBITS "A-1" and "A-2" to this Amendment.
Section 4. Representations. Borrower represents and warrants that all
of the representations and warranties contained in the Credit Agreement and all
instruments and documents executed pursuant thereto or contemplated thereby are
true and correct in all material respects on and as of this date.
Section 5. Consent and Ratification by Guarantor. Guarantor (i)
consents to the terms and provisions of this Amendment and the transactions
contemplated herein, (ii) ratifies and confirms its Guaranty dated as of June
15, 1999 is in full force and effect in accordance with its terms and, without
limiting the provisions thereof in any manner, applies to the Notes of even date
herewith given by Borrower to each of the Lenders and (iii) acknowledges that
its Guaranty is not subject to any claims, offsets, defenses, or counterclaims
of any nature whatsoever.
Section 6. Severability. In the event any one or more provisions
contained in the Credit Agreement or this Amendment should be held to be
invalid, illegal or unenforceable in any respect, the validity, enforceability
and legality of the remaining provisions contained herein and therein shall not
be affected in any way or impaired thereby and shall be enforceable in
accordance with their respective terms.
Section 7. Expenses. Borrower agrees to pay all out-of-pocket costs and
expenses of Agent in connection with the preparation, operation, administration
and enforcement of this Amendment.
Section 8. Ratification of Agreements. Except as amended hereby,
Borrower ratifies and confirms that Original Agreement, the Security
Instruments, and all other Loan Documents are and remain in full force and
effect in accordance with their respective terms and that all Collateral is
unimpaired by this Amendment and secures the payment and performance of all
indebtedness and obligations of Borrower under the Notes, the Original
Agreement, and all other Loan Documents, as modified hereby. Any reference to
the Original Agreement in any Loan Document shall be deemed to be references to
the Original Agreement as amended hereby. Each of the undersigned officers of
Borrower and Guarantor executing this Amendment represent and warrant that he
has full power and authority to execute and deliver this Amendment on behalf of
Borrower and Guarantor, respectively, that such execution and delivery has been
duly authorized, and that the resolutions and affidavits previously delivered to
Agent, in connection with the execution and delivery of the Original Agreement,
are and remain in full force and effect and have not been altered, amended or
repealed in anywise.
Section 9. No Waiver. Borrower agrees that no Event of Default and no
Default has been waived or remedied by the execution of this Amendment by Agent,
and any such Default or Event
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of Default heretofore arising and currently continuing shall continue after the
execution and delivery hereof.
Section 10. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and, to the extent
applicable, by federal law.
Section 11. Counterparts and Gender. This Amendment may be executed in
any number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. Each gender used herein shall
include and apply to all genders, including the neuter.
SECTION 12. NO ORAL AGREEMENTS. THIS AMENDMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED this 13th day of October, 1999.
BORROWER:
MORTGAGE PORTFOLIO SERVICES, INC.,
a Delaware corporation
By:
----------------------------------------
Xxxxx X. Xxxxxx, President
GUARANTOR:
NAB ASSET CORPORATION,
a Texas corporation
By:
----------------------------------------
Xxxx X. Xxxxxx, Senior Vice President
AGENT:
BANK UNITED
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxx, Managing Director
Mortgage Banker Finance
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LENDERS:
BANK UNITED
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxx, Managing Director
Mortgage Banker Finance
RESIDENTIAL FUNDING CORPORATION
By:
----------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
U.S. BANK NATIONAL ASSOCIATION
By:
----------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
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EXHIBIT A-1
PROMISSORY NOTE
$__________________ Dallas, Texas ____________, 199____
FOR VALUE RECEIVED, the undersigned, Mortgage Portfolio Services, Inc.
(herein called "Borrower"), hereby promises to pay to the order of
___________________ (herein called "Lender"), the principal sum of
________________ Dollars ($___________________) or, if less, the aggregate
unpaid principal amount of the Loans made under this Note by Lender to Borrower
pursuant to the terms of the Credit Agreement (as hereinafter defined), together
with interest on the unpaid principal balance thereof as hereinafter set forth,
both principal and interest payable as herein provided in lawful money of the
United States of America at the offices of the Agent under the Credit Agreement,
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 or at such other place
within Dallas County, Texas, as from time to time may be designated by the
holder of this Note.
This Note (a) is issued and delivered under that certain Credit
Agreement dated as of June 15, 1999 among Borrower, NAB Asset Corporation, Bank
United, as Agent and the lenders (including Lender) referred to therein (herein,
as from time to time supplemented, amended or restated, called the "Credit
Agreement"), and is a Note as defined therein, (b) is subject to the terms and
provisions of the Credit Agreement, which contains provisions for payments and
prepayments hereunder and acceleration of the maturity hereof upon the happening
of certain stated events, and (c) is secured by and entitled to the benefits of
certain Security Instruments (as identified and defined in the Credit
Agreement). Payments on this Note shall be made and applied as provided herein
and in the Credit Agreement. Reference is hereby made to the Credit Agreement
for a description of certain rights, limitations of rights, obligations and
duties of the parties hereto and for the meanings assigned to terms used and not
defined herein and to the Security Instruments for a description of the nature
and extent of the security thereby provided and the rights of the parties
thereto. [This Note is given in renewal, increase and extension (but not in
extinguishment or novation) of that certain Promissory Note dated _____________
executed by Borrower payable to the order of the Lender in the original
principal sum of $_________________.]
On the fifteenth (15) day of each calendar month, beginning
________________, 199___, Borrower shall pay to the holder hereof all unpaid
interest which has accrued on the Loans made under this Note through and
including the last day of the immediately preceding calendar month. The
principal amount of this Note, together with all interest accrued hereon, shall
be due and payable in full on the Drawdown Termination Date.
The Loans made under this Note (exclusive of any past due principal or
interest) from time to time outstanding shall bear interest on each day
outstanding at the Applicable Rate in effect on such day; provided, however,
that interest on the part of the Loans equal to the Balance Funded Amount for
the immediately preceding Balance Calculation Period shall bear interest on each
day outstanding at the Balance Funded Rate. All past due principal of and past
due interest on the Loans made under this Note shall bear interest on each day
outstanding at the Late Payment Rate in effect on such day, and such interest
shall be due and payable immediately as it accrues. Notwithstanding the
foregoing provisions of this paragraph, if at any time the rate at which
interest is payable on this Note (considering together all portions of the Loans
and the interest payable thereon) exceeds the Maximum Rate, this Note shall bear
interest at the Maximum Rate only but shall continue to bear
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interest at the Maximum Rate until such time as the total amount of interest
accrued hereon equals (but does not exceed) the total amount of interest which
would have accrued hereon had there been no Maximum Rate applicable hereto.
Notwithstanding the foregoing paragraph and all other provisions of
this Note, in no event shall the interest payable hereon, whether before or
after maturity, exceed the maximum amount of interest which, under applicable
law, may be charged on this Note, and this Note is expressly made subject to the
provisions of the Credit Agreement which more fully set out the limitations on
how interest accrues hereon. In the event applicable law provides for a ceiling
under Section 303 of the Texas Finance Code, that ceiling shall be the weekly
rate ceiling and shall be used in this Note for calculating the Maximum Rate and
for all other purposes. The term "applicable law" as used in this Note shall
mean the laws of the State of Texas or the laws of the United States, whichever
laws allow the greater interest, as such laws now exist or may be changed or
amended or come into effect in the future.
Notwithstanding the foregoing paragraph and all other provisions of
this Note, in no event shall the interest payable hereon, whether before or
after maturity, exceed the maximum interest which, under applicable law, may be
charged on this Note, and this Note is expressly made subject to the provisions
of the Credit Agreement which more fully set out the limitations on how interest
accrues hereon.
If this Note is placed in the hands of an attorney for collection after
default, or if all or any part of the indebtedness represented hereby is proved,
established or collected in any court or in any bankruptcy, receivership, debtor
relief, probate or other court proceedings, Borrower and all endorsers, sureties
and guarantors of this Note jointly and severally agree to pay reasonable
attorneys' fees and collection costs to the holder hereof in addition to the
principal and interest payable hereunder.
Borrower and all endorsers, sureties and guarantors of this Note hereby
severally waive demand, presentment, notice of demand and of dishonor and
nonpayment of this Note, protest, notice of protest, notice of intention to
accelerate the maturity of this Note, declaration or notice of acceleration of
the maturity of this Note, diligence in collecting, the bringing of any suit
against any party and any notice of or defense on account of any extensions,
renewals, partial payments or changes in any manner of or in this Note or in any
of its terms, provisions and covenants, or any releases or substitutions of any
security, or any delay, indulgence or other act of any trustee or any holder
hereof, whether before or after maturity.
No waiver by Lender of any of its rights or remedies hereunder or under
any other document evidencing or securing this Note or otherwise shall be
considered a waiver of any other subsequent right or remedy of Lender; no delay
or omission in the exercise or enforcement by Lender of any rights or remedies
shall ever by construed as a waiver of any right or remedy of Lender; and no
exercise or enforcement of any such rights or remedies shall ever be held to
exhaust any right or remedy of Lender.
Borrower reserves the right to prepay the outstanding principal balance
of this Note, in whole or in part at any time and from time to time without
premium or penalty, in accordance with the terms of the Credit Agreement.
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THIS NOTE AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE EXTENT THE SAME ARE
GOVERNED BY APPLICABLE FEDERAL LAW.
MORTGAGE PORTFOLIO SERVICES, INC.
By:
--------------------------------------
Name:
Title:
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EXHIBIT "A-2"
SWING-LINE NOTE
$9,000,000.00 Houston, Texas June 15, 1999
FOR VALUE RECEIVED, the undersigned, Mortgage Portfolio Services, Inc.
(herein called "Borrower"), hereby promises to pay to the order of Bank United
(herein called "Lender"), the principal sum of Nine Million Dollars ($9,000,000)
or, if less, the aggregate unpaid principal amount of the Swing-Line Loans made
under this Note by Lender to Borrower pursuant to the terms of the Credit
Agreement (as hereinafter defined), together with interest on the unpaid
principal balance thereof as hereinafter set forth, both principal and interest
payable as herein provided in lawful money of the United States of America at
the offices of the Agent under the Credit Agreement, 0000 Xxxxxxxxx Xxxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000 or at such other place within Xxxxxx County,
Texas, as from time to time may be designated by the holder of this Note.
This Note (a) is issued and delivered under that certain Credit
Agreement dated as of June 15, 1999 among Borrower, NAB Asset Corporation, Bank
United, as Agent and the lenders (including Lender) referred to therein (herein,
as from time to time supplemented, amended or restated, called the "Credit
Agreement"), and is the Swing-Line Note as defined therein, (b) is subject to
the terms and provisions of the Credit Agreement, which contains provisions for
payments and prepayments hereunder and acceleration of the maturity hereof upon
the happening of certain stated events, and (c) is secured by and entitled to
the benefits of certain Security Instruments (as identified and defined in the
Credit Agreement). Payments on this Note shall be made and applied as provided
herein and in the Credit Agreement. Reference is hereby made to the Credit
Agreement for a description of certain rights, limitations of rights,
obligations and duties of the parties hereto and for the meanings assigned to
terms used and not defined herein and to the Security Instruments for a
description of the nature and extent of the security thereby provided and the
rights of the parties thereto.
On the fifteenth (15) day of each calendar month, beginning July 15,
1999, Borrower shall pay to the holder hereof all unpaid interest which has
accrued on the Swing-Line Loans made under this Note through and including the
last day of the immediately preceding calendar month. The principal amount of
this Note, together with all interest accrued hereon, shall be due and payable
in full on the Drawdown Termination Date.
The Swing-Line Loans made under this Note (exclusive of any past due
principal or interest) from time to time outstanding shall bear interest on each
day outstanding at the Applicable Rate in effect on such day. All past due
principal of and past due interest on the Swing-Line Loans made under this Note
shall bear interest on each day outstanding at the Late Payment Rate in effect
on such day, and such interest shall be due and payable immediately as it
accrues. Notwithstanding the foregoing provisions of this paragraph, if at any
time the rate at which interest is payable on this Note (considering together
all portions of the Loans and the interest payable thereon) exceeds the Maximum
Rate, this Note shall bear interest at the Maximum Rate only but shall continue
to bear interest at the Maximum Rate until such time as the total amount of
interest accrued hereon equals (but does not exceed) the total amount of
interest which would have accrued hereon had there been no Maximum Rate
applicable hereto.
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Notwithstanding the foregoing paragraph and all other provisions of
this Note, in no event shall the interest payable hereon, whether before or
after maturity, exceed the maximum amount of interest which, under applicable
law, may be charged on this Note, and this Note is expressly made subject to the
provisions of the Credit Agreement which more fully set out the limitations on
how interest accrues hereon. In the event applicable law provides for a ceiling
under Section 303 of the Texas Finance Code, that ceiling shall be the weekly
rate ceiling and shall be used in this Note for calculating the Maximum Rate and
for all other purposes. The term "applicable law" as used in this Note shall
mean the laws of the State of Texas or the laws of the United States, whichever
laws allow the greater interest, as such laws now exist or may be changed or
amended or come into effect in the future.
Notwithstanding the foregoing paragraph and all other provisions of
this Note, in no event shall the interest payable hereon, whether before or
after maturity, exceed the maximum interest which, under applicable law, may be
charged on this Note, and this Note is expressly made subject to the provisions
of the Credit Agreement which more fully set out the limitations on how interest
accrues hereon.
If this Note is placed in the hands of an attorney for collection after
default, or if all or any part of the indebtedness represented hereby is proved,
established or collected in any court or in any bankruptcy, receivership, debtor
relief, probate or other court proceedings, Borrower and all endorsers, sureties
and guarantors of this Note jointly and severally agree to pay reasonable
attorneys' fees and collection costs to the holder hereof in addition to the
principal and interest payable hereunder.
Borrower and all endorsers, sureties and guarantors of this Note hereby
severally waive demand, presentment, notice of demand and of dishonor and
nonpayment of this Note, protest, notice of protest, notice of intention to
accelerate the maturity of this Note, declaration or notice of acceleration of
the maturity of this Note, diligence in collecting, the bringing of any suit
against any party and any notice of or defense on account of any extensions,
renewals, partial payments or changes in any manner of or in this Note or in any
of its terms, provisions and covenants, or any releases or substitutions of any
security, or any delay, indulgence or other act of any trustee or any holder
hereof, whether before or after maturity.
No waiver by Lender of any of its rights or remedies hereunder or under
any other document evidencing or securing this Note or otherwise shall be
considered a waiver of any other subsequent right or remedy of Lender; no delay
or omission in the exercise or enforcement by Lender bf any rights or remedies
shall ever by construed as a waiver of any right or remedy of Lender; and no
exercise or enforcement of any such rights or remedies shall ever be held to
exhaust any right or remedy of Lender.
Borrower reserves the right to prepay the outstanding principal balance
of this Note, in whole or in part at any time and from time to time without
premium or penalty, in accordance with the terms of the Credit Agreement.
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15
THIS NOTE AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE EXTENT THE SAME ARE
GOVERNED BY APPLICABLE FEDERAL LAW.
BORROWER:
MORTGAGE PORTFOLIO SERVICES, INC.,
a Delaware corporation
By:
----------------------------------------
XXXXX X. XXXXXX, President
Page 15
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EXHIBIT "C"
BORROWING BASE CERTIFICATE
[Date]
Reference is made to that certain Credit Agreement dated as of June 15,
1999 (as from time to time amended, the "Agreement") by and among Mortgage
Portfolio Services, Inc. ("Borrower"), NAB Asset Corporation, as Guarantor, Bank
United, as Agent ("Agent"), and the lenders named therein ("Lenders"). Terms
which are defined in the Agreement are used herein with the meanings given them
in the Agreement.
This Certificate is being furnished pursuant to Section 5.01(a)(vi) of
the Agreement. Borrower hereby certifies to Agent and Lenders as follows:
(a) the officer of Borrower signing this instrument is the duly
elected, qualified and acting ___________________ of Borrower
and as such is authorized to submit this Certificate on behalf
of Borrower;
(b) as of the close of business on ___________________:
(i) The Aggregate Collateral Value of the Borrowing Base was
computed as follows:
A. Collateral Value of Tranche A Borrowing Base: $__________
B. Collateral Value of Tranche B Borrowing Base: $__________
C0 Collateral Value of Tranche C Borrowing Base: $__________
D0 Collateral Value of Tranche D Borrowing Base: $__________
E0 Aggregate Collateral Value of the Borrowing Base: $__________
(A+B+C+D)
(ii) Sublimits:
A0 Aggregate Unit Collateral Value of all Eligible
Mortgage Loans for which an Agreement to Pledge
has been delivered to Agent: $__________
Maximum Allowable $33,600,000
Page 16
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B0 Aggregate Unit Collateral Value of all Eligible
Subprime Loans included in the Tranche B
Borrowing Base: $__________
Maximum Allowable $32,000,000
C0 Aggregate Unit Collateral Value of Jumbo Mortgage
Loans and Super Jumbo Mortgage Loans: $__________
Maximum Allowable (30% of the Commitment): $__________
D0 Aggregate Unit Collateral Value of Super Jumbo
Mortgage Loans: $__________
Maximum Allowable (5% of the Commitment): $__________
E0 Aggregate Unit Collateral Value of Eligible
Tranche A Mortgage Loans and Eligible Tranche B
Mortgage Loans included in the Tranche A
Borrowing Base or the Tranche B Borrowing
Base for more than 120 days but less than 271
days: $__________
Maximum Allowable: $ 1,600,000
F0 Aggregate Unit Collateral Value of Eligible
Manufactured Housing Loans: $__________
Maximum Allowable $ 2,400,000
G0 Aggregate Unit Collateral of Mortgage Loans
withdrawn by Borrower for non-substantive
documentation problems: $__________
Maximum Allowable: $ 4,000,000
X0 Xxxxxxxxx Unit Collateral Value of Second
Mortgage Loans included in the Tranche A
Borrowing Base or the Tranche B Borrowing
Base and Eligible High LTV Loans included
in the Tranche B Borrowing Base: $__________
Maximum Allowable $ 4,000,000
(iii) Mortgage Loans which have ceased to be Eligible
Mortgage Loans are described in Schedule 1 attached
hereto.
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(iv) The aggregate principal amount outstanding under
the Tranche A Loans is: $__________
(v) The aggregate principal amount outstanding under
the Tranche B Loans is: $__________
(vi) The aggregate principal amount outstanding under
the Tranche C Loans is: $__________
Tranche C Sublimit $ 9,600,000
(vii) The aggregate principal amount outstanding under
the Tranche D Loans is: $__________
Tranche D Sublimit $ 2,000,000
The officer of Borrower signing this instrument certifies that, to the
best of his knowledge after due inquiry, the above certifications of Borrower
are true, correct and complete.
IN WITNESS WHEREOF, the instrument is executed as of _________________.
MORTGAGE PORTFOLIO SERVICES, INC.
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
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EXHIBIT "D"
CERTIFICATE ACCOMPANYING FINANCIAL STATEMENTS
Reference is made to that certain Credit Agreement dated as of June 15,
1999 (as from time to time amended, the "Agreement"), by and among MORTGAGE
PORTFOLIO SERVICES, INC. ("Borrower"), NAB ASSET CORPORATION, Bank United, as
Agent ("Agent"), and the lenders named therein ("Lenders") which Agreement is in
full force and effect on the date hereof. Terms which are defined in the
Agreement are used herein with the meanings given them in the Agreement.
This Certificate is furnished pursuant to Section 5.01(a)(v) of the
Agreement. Together herewith Borrower is furnishing to Agent and each Lender
Borrower's audited annual financial statements or monthly financial statements
(the "Financial Statements") dated _________________ (the "Reporting Date").
Borrower hereby represents, warrants, and acknowledges to Agent and each Lender
that:
(a) the officer of Borrower signing this instrument is
the duly elected, qualified and acting
______________________ of Borrower and as such is
Borrower's [president, chief financial officer or
other executive officer of Borrower];
(b) the Financial Statements are prepared in accordance
with GAAP;
(c) attached hereto is Schedule D-1 showing Borrower's
compliance as of the Reporting Date with the
requirements of Sections 6.09, and 6.10 of the
Agreement and Borrower's non-compliance as of such
date with the requirements of Section(s) of the
Agreement;
(d) on the Reporting Date Borrower was, and on the date
hereof Borrower is, in full compliance with the
disclosure requirements of Article V of the
Agreement, and no Default otherwise existed on the
Reporting Date or otherwise exists on the date of
this instrument [except for Default(s) under
Section(s) ___________________ of the Agreement,
which (is/are] more fully described on a schedule
attached hereto).
The officer of Borrower signing this instrument hereby certifies that
he has reviewed the Loan Documents and the Financial Statements and has
otherwise undertaken such inquiry as is in his opinion necessary to enable him
to express an informed opinion with respect to the above representations,
warranties and acknowledgments of Borrower and, to the best of his knowledge,
such representations, warranties, and acknowledgments are true, correct and
complete.
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IN WITNESS WHEREOF, this instrument is executed as of ________________,
19____.
MORTGAGE PORTFOLIO SERVICES, INC.
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
STATE OF __________________)
)
COUNTY OF _________________)
This instrument was ACKNOWLEDGED before me the ____ day of ___________,
19__, by _____________________, ___________________ of MORTGAGE PORTFOLIO
SERVICES, INC., a Delaware corporation, on behalf of said corporation.
----------------------------------------
Notary Public - State of
----------------
My Commission expires: ----------------------------------------
Printed Name of Notary
[SEAL]
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SCHEDULE D-1
Actual [or in
Financial Covenants Required compliance]
------------------- -------- -------------
(1) Minimum Tangible Net
Worth [6.09] $7,000,000 ______________________
Guarantor's Tangible
Net Worth $5,000,000 ______________________
(2) Debt to Tangible Net
Worth [6.10] not more than 10.0 to 1.0 ______________________
MORTGAGE PORTFOLIO SERVICES, INC.,
a Delaware corporation
By:
-------------------------------
Name:
----------------------------
Title:
----------------------------
(Date)
Page 21
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STATE OF __________________)
)
COUNTY OF _________________)
This instrument was ACKNOWLEDGED before me the _____ day of
________________, 19____, by ___________________, ____________________ of
MORTGAGE PORTFOLIO SERVICES, INC., a Delaware corporation, on behalf of said
corporation.
----------------------------------------
Notary Public - State of
----------------
My Commission expires: ----------------------------------------
Printed Name of Notary
[SEAL]
Page 22
