1
EXHIBIT 10.8
(THE "3/98 CHASE TEXAS TEMPORARY ADDITIONAL
WAREHOUSE NOTE")
$50,000,000 HOUSTON, TEXAS MARCH 17, 1998
FOR VALUE RECEIVED, HARBOR FINANCIAL MORTGAGE CORPORATION (a Texas
corporation) and NEW AMERICA FINANCIAL, INC. (a Texas corporation)
(collectively, "Makers"), jointly and severally, promise to pay to the order of
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION ("Chase Texas" or "Payee"), a
national banking association, at its 000 Xxxx Xxxxxx branch, in the City of
Houston, Xxxxxx County, Texas, or at such other place in Xxxxxx County, Texas,
as the holder ("Holder", whether or not Payee is such holder) of this note may
hereafter designate in writing, in immediately available funds and in lawful
money of the United States of America, the principal sum of Fifty Million
Dollars ($50,000,000) (or the unpaid balance of all principal advanced against
this note, if that amount is less), together with interest on the unpaid
principal balance of this note from time to time outstanding until maturity at
the Stated Rate provided for in the Special Warehouse Credit Agreement (defined
in Paragraph 9 of this note) or at such lesser rate, if any, as Holder shall
from time to time elect to be applicable in Holder's sole and absolute
discretion, and interest on all past due amounts, both principal and accrued
interest, at the Past Due Rate; provided, that for the full term of this note
the interest rate produced by the aggregate of all sums paid or agreed to be
paid to Holder for the use, forbearance or detention of the debt evidenced
hereby shall not exceed the Ceiling Rate.
1. Definitions. In addition to the definitions given above, the
definitions given in the Special Warehouse Credit Agreement (defined in
Paragraph 9 of this note) for capitalized terms that are used (but not
italicized) in this note and not defined differently in this note have the same
meanings here as there; provided that (as more fully explained in Paragraph 9
of this note) -- although italicized terms in this note have the meanings given
them in the Syndicated Facilities Agreement (defined below) -- this note is
NOT issued pursuant to the 12/97 Amended and Restated Facilities Agreement
dated effective as of December 3, 1997, as it may be supplemented, amended or
restated from time to time (the "Syndicated Facilities Agreement") among
Makers, Texas Commerce Bank National Association (as Chase Texas was named
until January 20, 1998) as a Bank, a Warehouse Bank, a Servicing Acquisition
Bank and as Agent (for the Warehouse Banks and Servicing Acquisition Banks
parties thereto, and such Warehouse Banks and Servicing Acquisition Banks), as
such italicized terms are defined in the Syndicated Facilities Agreement, and
the other Lender(s) party thereto, and this note is NOT one of the Notes or the
Current Warehouse Notes (although this note does evidence senior obligations of
the Makers to Holder which obligations are not -- and will not be --
subordinate in right of payment to any of Makers' present or future
obligations to any of the Banks or any other Person, except only such other
obligations, if any, as are preferred by operation of law.)
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IDENTIFICATION: ____ ____
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2. Rates Change Automatically and Without Notice. Without notice
to Makers or any other Person and to the full extent allowed by applicable Laws
from time to time in effect, the Adjusted LIBOR Rate and the Ceiling Rate shall
each automatically fluctuate upward and downward as and in the amount by which
the Adjusted LIBOR Rate and such maximum nonusurious rate of interest permitted
by applicable Laws, respectively, fluctuate.
3. Calculation of Interest. Interest on the amount of each
advance against this note shall be computed as on the amount of that advance
and from the date it is made. All interest rate determinations and
calculations by Holder, absent manifest error, shall be conclusive.
4. Excess Interest Will be Refunded or Credited. If, for any
reason whatever, the interest paid or received on this note during its full
term produces a rate which exceeds the Ceiling Rate, Holder shall refund to the
payor or, at Holder's option, credit against the principal of this note such
portion of said interest as shall be necessary to cause the interest paid on
this note to produce a rate equal to the Ceiling Rate.
5. Interest Will be Spread. To the extent (if any) necessary to
avoid violation of applicable usury laws (or to minimize the extent of the
violation if complete avoidance is impossible for any reason, it being the
intent and purpose of Makers and all Holders to comply strictly with all
applicable usury and other laws), all sums paid or agreed to be paid to Holder
for the use, forbearance or detention of the indebtedness evidenced hereby
shall, to the extent permitted by applicable Laws, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note.
6. Payment Schedule. All principal of this note and all accrued
interest then unpaid shall be due and payable on the "Special Warehouse
Termination Date", which means the earliest of (i) May 17, 1998, (ii) the
renewal, amendment, modification or termination (however such termination may
occur) of the Special Warehouse Credit Agreement or (ii) the effective date of
a new loan agreement providing for a revolving mortgage warehouse line of
credit of up to $50 million (or more) of principal that may from time to time
be borrowed and outstanding, to be provided to Makers by a syndicate of lenders
for which Chase Texas is agent and representative. Before maturity of this
note, interest on this note shall accrue, and unpaid accrued interest shall be
due and payable, as provided in Section 2.6 of the Special Warehouse Credit
Agreement. All such scheduled payments shall be applied first to accrued
interest and the balance (if any) shall be applied to principal.
7. Prepayment. Makers may at any time pay the full amount or any
part of this note as provided in Section 2.8 of the Special Warehouse Credit
Agreement. All prepayments shall be applied first to accrued interest, the
balance to principal.
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IDENTIFICATION: ____ ____
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8. Revolving Credit. Makers may borrow, repay and reborrow at
any time solely (1) to finance each Obligor's funding of SUCH OBLIGOR'S OWN
Residential Mortgages that are Eligible Mortgages originated by such Obligor to
(or for the account of) the obligor(s) on such Eligible Mortgages and (2) to
finance SUCH OBLIGOR'S OWN purchase of Eligible Mortgages that were not
originated by such Obligor, and for no other applications or purposes. Each
Obligor agrees to use the credit extended to it to carry each such Residential
Mortgage only for so long as (x) it continues to satisfy all of the
requirements to be an Eligible Mortgage and (y) the borrowing Obligor is
diligently taking all steps necessary to complete either (i) the sale of that
Residential Mortgage (if the Investor Commitment covering it contemplates its
purchase as a whole loan), or (ii) its securitization as part of a pool of
Residential Mortgages (a "Pool") and the sale of the resulting Mortgage-Backed
Securities (if the Investor Commitment covering it contemplates securitization
of a Pool that includes such Eligible Mortgage and the Qualified Investor's
purchase of the resulting Mortgaged-Backed Securities). Makers may so borrow
and reborrow hereunder only if:
(1) all conditions to and qualifications for the
requested Warehouse Loan under the Special Warehouse Credit Agreement are
satisfied;
(2) the Obligors would be able to borrow the requested
amount as a Warehouse Loan from all of the Warehouse Lenders under (and as
those two-- and the other -- italicized terms in this note are defined in) the
Syndicated Facilities Agreement but for the fact that the aggregate amount of
the Warehouse Loans outstanding thereunder then currently equals (or exceeds)
the Total Warehouse Line Commitments, as shown on the currently-effective
Commitments Schedule to the Syndicated Facilities Agreement (such amount being
Four Hundred Fifty Million Dollars ($450,000,000) on the date of this note);
(3) after giving effect to a requested Borrowing, the
outstanding principal of this note will not exceed Fifty Million Dollars
($50,000,000);
(4) no Potential Default has occurred under this note,
the Special Warehouse Credit Agreement or any other Facilities Papers which has
not been cured, and no Default has occurred under this note, the Special
Warehouse Credit Agreement or any other Facilities Papers that Payee has not
declared in writing to have been fully cured or waived; and
(5) no Potential Default has occurred under the
Syndicated Facilities Agreement, any Current Warehouse Note or any other
Facilities Papers, which has not been cured, and no Default has occurred under
the Syndicated Facilities Agreement or any other Facilities Papers that the
Agent has not declared in writing to have been fully cured or waived.
INITIALED FOR
IDENTIFICATION: ____ ____
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The unpaid principal balance of this note at any time shall be the total of all
principal lent or advanced against this note less the sum of all principal
payments and permitted or required prepayments made on this note by or for the
account of Makers. Absent manifest error, Holder's computer records shall on
any day conclusively evidence the unpaid balance of this note and its advances
and payments history posted up to that day. All Loans and all payments and
permitted or required prepayments made hereon may be (but are not required to
be) endorsed by Holder on the schedule that is attached hereto (which is hereby
made a part hereof for all purposes) or otherwise recorded in Holder's computer
or manual records; provided, that any failure to make notation of (a) any
principal advance or accrual of interest shall not cancel, limit or otherwise
affect Makers' obligations or Holder's rights with respect to that advance or
accrual, or (b) any payment or permitted or required prepayment of principal or
interest shall not cancel, limit or otherwise affect Makers' entitlement to
credit for that payment as of the date of its receipt by Holder. Makers and
Payee expressly agree, pursuant to Chapter 346 ("Chapter 346") of the Texas
Finance Code, that Chapter 346 (which relates to open-end line of credit
revolving loan accounts) shall not apply to this note or to any loan evidenced
by this note and that neither this note nor any such loan shall be governed by
Chapter 346 or subject to its provisions in any manner whatsoever.
9. This Note, the Special Warehouse Credit Agreement and this
Note's Security. This note is issued separately from and in addition to the
Warehouse Notes (and the other Notes) issued pursuant to the Syndicated
Facilities Agreement. This note evidences and shall evidence advances made to
(or for the account of) the Obligors by Chase Texas (only) to finance up to
Fifty Million Dollars ($50,000,000) in revolving credit principal from time to
time outstanding for warehousing the Obligors' Residential Mortgages that have
been duly pledged to Chase Texas for that purpose (as opposed to being pledged
to the Agent as security for the Obligations under the Syndicated Facilities
Agreement), as provided in Paragraph 8 of this note. Maker and Payee hereby
irrevocably agree that this note shall conclusively be deemed to have been
issued by Maker and accepted by Payee upon and subject to all of the terms,
conditions and provisions of a credit agreement (the "Special Warehouse Credit
Agreement") hereby created that is identical to the Syndicated Facilities
Agreement (and for that purpose the entire text of the Syndicated Facilities
Agreement and its schedules and exhibits is hereby incorporated herein as if
set forth here verbatim and modified as follows) except that (i) it is between
the Obligors and Chase Texas, as the only Warehouse Bank and Bank (and the
Agent), and all references to "Bank", "Warehouse Bank", "Agent", "Majority
Banks" and "Majority Warehouse Banks" in the Special Warehouse Credit Agreement
are hereby changed to refer to Chase Texas; (ii) it is dated concurrently with
this note; (iii) it has no Swing Subline, Xxxxxx-xxxx Xxxxxxx, Xxxxxxxxxxx
Xxxxxxx, X&X Sub-subline, T&I Sub-subline, VA/FHA/PMI Foreclosure Receivables
Sub-subline, Repurchased Defaulted Mortgages Sub-subline, Foreclosed Properties
Sub-subline or Subprime Mortgages Subline or Mortgage Pools Purchase
Agreement, (iv) the form of Loan Request required for use thereunder is set
forth in Exhibit A to this note; (v) all of the Special Warehouse Credit
Agreement's internal references to its relating to a $450,000,000 line of
credit are hereby changed to refer to a $50,000,000 line of credit; (vi) the
references
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IDENTIFICATION: ____ ____
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in the definitions of "Facilities Papers" and in other definitions in the
Special Warehouse Credit Agreement to the "Current Facilities Agreement" are
changed to refer to the Special Warehouse Credit Agreement and references to
other papers in the definition of "Facilities Papers" are changed to refer only
to this note (the "3/98 Chase Texas Temporary Additional Warehouse Note"), the
Special Warehouse Guaranty (defined in Exhibit B hereto), the Special Warehouse
Credit Agreement, the Special Warehouse Pledge Agreement (defined in Exhibit B
hereto) and any and all other promissory notes, mortgages, deeds of trust,
deeds to secure debt and other real estate mortgage instruments, security
agreements and all instruments, documents and agreements or other papers
executed and delivered pursuant to the terms of, to guarantee or secure or that
otherwise relate to this note, the Special Warehouse Credit Agreement and any
and all future amendments, supplements, renewals, extensions, rearrangements or
restatements of any of them; (vii) the "Warehouse Termination Date" shall be
the Special Warehouse Termination Date (as defined in Paragraph 6 of this note)
instead of March 31, 1999; (viii) the Warehouse Facility Fee in respect of the
Warehouse Line Commitment of Chase Texas to make the Special Warehouse Credit
Agreement's credit available for the period referred to in Section 2.11 thereof
shall be $10,274, which is fully earned, due and payable on the date when this
note is executed and delivered, (ix) the Obligors may not elect any Eurodollar
Rate and accordingly on each day the outstanding principal balance of this note
shall bear interest at the Adjusted LIBOR Rate for that day; provided that if
for any day the Company has duly selected as the Stated Rate to be applied for
that day to a designated portion of the then-outstanding Loans which portion is
both (1) not past due and (2) less than or equal to the Free Adjusted Balances,
a rate per annum equal to the Applicable Margin (only) for that day and for
those respective Loans the Balance Adjusted Rate Option, the portion of such
principal to which such selection applies pursuant to the provisions of the
definition of Stated Rate in the Special Warehouse Credit Agreement shall bear
interest on that day at that rate; and provided further that from and after the
date of occurrence of any Event of Default and until it and its material
consequences (if any) have been wholly cured, this note shall bear interest on
its entire unpaid principal balance at the Past Due Rate; (ix) the list of
papers required to be furnished to Chase Texas in Section 6.6.(a) of the
Special Warehouse Credit Agreement is changed to those listed on Exhibit B to
this note and (x) the table in the Special Warehouse Credit Agreement's
Commitments Schedule is changed to be as follows:
-------------------------------------------------------------------------
Warehouse Wet Wet
Warehouse Bank Line Warehousing Warehousing
Committed Sublimit(1) Sublimit(2)
Sums
-------------------------------------------------------------------------
Texas Commerce Bank $50,000,000 $12,500,000 $7,500,000
National Association
-------------------------------------------------------------------------
Totals $50,000,000 $12,500,000 $7,500,000
-------------------------------------------------------------------------
(1) during first and last 5 Business Days
(2) during remainder of calendar month
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By execution and delivery of this note, Makers execute and deliver the Special
Warehouse Credit Agreement which is described and effectively set forth above.
BY INCORPORATING THE SYNDICATED FACILITIES AGREEMENT BY REFERENCE AND THEN
AMENDING IT, THIS PARAGRAPH 9 COMPRISES THE SPECIAL WAREHOUSE LOAN AGREEMENT IN
ITS ENTIRETY -- THERE IS NO SEPARATE DOCUMENT FOR IT.
Makers also hereby XXXXX Xxxxx Texas a first priority security interest in all
of each Obligor's present and future estate, right, title and interest in and
to all Pledged Mortgages that are concurrently or hereafter pledged to Payee
pursuant to the Special Warehouse Credit Agreement created by the immediately
preceding sentence, all accounts and general intangibles arising therefrom and
all of their proceeds thereof. Holder is entitled to the benefits of and
security provided for in the Special Warehouse Credit Agreement. Such security
includes, among other security, the security interests granted by Obligors (as
debtors) in the Special Warehouse Pledge Agreement.
10. Defaults and Remedies. Any failure by Makers to pay any
principal or interest on this note when due or any default under the Special
Warehouse Credit Agreement, the Special Warehouse Pledge Agreement or any other
Facilities Papers shall constitute default under this note, whereupon Holder
may elect to exercise any or all rights, powers and remedies afforded to the
Agent and/or the Warehouse Banks (a) under the Special Warehouse Credit
Agreement and all other Facilities Papers and (b) by law, including the right
to accelerate the maturity of this entire note.
11. Legal Costs. If any Holder retains an attorney in connection
with any such default or to collect, enforce or defend this note or any
Facilities Papers in any lawsuit or in any probate, reorganization, bankruptcy
or other proceeding, or if Makers xxx any Holder in connection with this note
or any such Facilities Papers and do not prevail, then Makers agree to pay to
each such Holder, in addition to principal and interest, all reasonable costs
and expenses incurred by such Holder in trying to collect this note or in any
such suit or proceeding, including reasonable attorneys' fees. An amount equal
to ten percent (10%) of the unpaid principal and accrued interest owing on this
note when and if this note is placed in the hands of an attorney for collection
after default is stipulated to be reasonable attorneys' fees unless a Holder or
any Maker of this note timely pleads otherwise to a court of competent
jurisdiction.
12. Waivers. Makers and any and all co-makers, endorsers,
guarantors and sureties severally waive notice (including, but not limited to,
notice of intent to accelerate and notice of acceleration, notice of protest
and notice of dishonor), demand, presentment for payment, protest, diligence in
collecting and the filing of suit for the purpose of fixing liability and
consent that the time of payment hereof may be extended and re-extended from
time to time without notice to any of them. Each such Person agrees that his,
her or its liability on or with respect to this note shall not be affected by
any release of or change in any guaranty or security at any time existing or by
any failure to perfect or maintain perfection of any Lien against or security
interest in any such security or the partial
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IDENTIFICATION: ____ ____
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or complete unenforceability of any guaranty or other surety obligation, in
each case in whole or in part, with or without notice and before or after
maturity.
13. Not Purpose Credit. None of the proceeds of this note shall
ever be used, directly or indirectly, for the purpose of purchasing or carrying
any "margin stock" as defined in Regulation U of the Board of Governors of the
Federal Reserve System or for the purpose of reducing or retiring any debt
which was originally incurred to purchase or carry any "margin stock" or to
extend credit to others for the purpose of purchasing or carrying any "margin
stock" or which would constitute this transaction a "purpose credit" within the
meaning of Regulation U, as now or hereafter in effect.
14. Governing Law, Jurisdiction and Venue. This note shall be
governed by and construed in accordance with the laws of the State of Texas and
the United States of America from time to time in effect. Makers and all
co-makers, endorsers, guarantors and sureties each hereby irrevocably submits
to the nonexclusive jurisdiction of the United States District Court for the
Southern District of Texas and the state district courts of Xxxxxx County,
Texas, for purposes of all legal proceedings arising out of or relating to this
note, the debt evidenced hereby or any loan agreement, security agreement,
guaranty or other papers or agreements relating to this note. To the fullest
extent permitted by law, Makers and all co-makers, endorsers, guarantors and
sureties each irrevocably waives any objection which he, she or it may now or
hereafter have to the laying of venue for any such proceeding brought in such a
court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum and agrees that service of process may be made
upon him, her or it in any such proceeding by registered or certified mail.
Xxxxxx County, Texas shall be a proper place of venue for suit hereon.
15. General Purpose of Loan. Makers warrant and represent to
Payee and all other Holders that all Loans evidenced by this note are and will
be for business, commercial, investment or other similar purpose and not
primarily for personal, family, household or agricultural use, as such terms
are used in Chapter 1D of Title 79, Texas Rev. Civ. Stats. 1925, as amended,
or in the Texas Finance Code.
16. Participations. Payee and each other Holder reserves the
right, exercisable in his, her or its sole discretion and without notice to any
of Makers or any other Person, to sell participations in all or any part of
this note or the debt evidenced by this note.
INITIALED FOR
IDENTIFICATION: ____ ____
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HARBOR FINANCIAL MORTGAGE
CORPORATION
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Xxxxxxx X. Xxxxxx
President
NEW AMERICA FINANCIAL, INC.
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Xxxxxxx X. Xxxxxx
Chairman of the Board
JOINDER BY CHASE TEXAS
Chase Bank of Texas, National Association executes this note solely
for the purpose of joining Makers in executing the Special Warehouse Credit
Agreement created hereby.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
By: /s/ XXXXXXX XXXXXX
---------------------------------
Xxxxxxx Xxxxxx
Vice President
INITIALED FOR
IDENTIFICATION: ____ ____
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ANNEX 1
to $50,000,000
Harbor Financial Mortgage Corporation
and New America Financial, Inc.
3/98 Chase Texas Temporary Additional Warehouse Note
to Chase Bank of Texas, National Association
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
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Payment Applied on
Date of Payment (or advance vs.) Payment Applied Name of Person
or Advance Principal on Interest Principal Balance Interest Paid to Making Notation
-------------------------------------------------------------------------------------------------------------------------
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EXHIBIT A TO
CHASE TEXAS TEMPORARY ADDITIONAL
WAREHOUSE NOTE
[WET WAREHOUSING] [WAREHOUSE] LOAN REQUEST
[LETTERHEAD OF HARBOR FINANCIAL MORTGAGE CORPORATION
OR NEW AMERICA FINANCIAL, INC., AS APPLICABLE]
________________, 19___
Chase Bank of Texas National Association
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Manager, Mortgage Warehouse Division
Ladies and Gentlemen:
Harbor Financial Mortgage Corporation (the "Company"), New America
Financial, Inc. ("New Am Inc.", and collectively with the Company, the
"Obligors") and Chase Bank of Texas, National Association ("Chase Texas"),
entered into a Special Warehouse Credit Agreement by jointly executing the
Obligors' promissory note (the "3/98 Chase Texas Special Warehouse Note" dated
March 17, 1998 that created such credit agreement (which, as it may have been
supplemented, amended and restated, is called the "Special Warehouse Credit
Facilities Agreement"). Any term defined in the Special Warehouse Credit
Agreement and used (but not redefined) in this Loan Request shall have the
meaning given to it in the Special Warehouse Credit Agreement.
[THE COMPANY OR NEW AM INC., AS APPLICABLE] hereby requests a [WET
WAREHOUSING] [WAREHOUSE] Loan in the amount of $_____________________ to be
made on ________________________, 19___ (or, if that is not a Business Day, on
the next day that is). [USE THIS NEXT SENTENCE IN A REQUEST FOR A WET
WAREHOUSING LOAN:] The amount of the Wet Warehousing Loan is (a) not more than
the aggregate Warehouse Loan Values of the Wet Mortgage Loans (the "Subject
Eligible Mortgages") that are described on the Schedule of Wet Mortgage Loans
Pledged attached to this Loan Request, (b) not more than the difference between
(i) the Wet Warehousing Sublimit and (ii) the outstanding amount of all
existing Wet Warehousing Loans, and (c) not more than the difference between
(i) the maximum credit available under the Warehouse Line (including its Wet
Warehousing Subline) as specified in the Special Warehouse Credit Agreement and
(ii) the aggregate outstanding principal balance of the Current Warehouse
Notes. [USE THE NEXT SENTENCE IN A REQUEST FOR A WAREHOUSE LOAN.] The amount
of the Warehouse Loan is (a) not more than the aggregate Warehouse Loan Values
of the Eligible Mortgages (the "Subject Eligible Mortgages") that are described
on the Schedule of Eligible Mortgages Pledged attached to this Loan Request and
(b) not more than the difference between (i) the maximum credit available under
the
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Warehouse Line as specified in the Special Warehouse Credit Agreement and (ii)
the outstanding aggregate principal balance of the Current Warehouse Notes. If
the requested [WET WAREHOUSING] [WAREHOUSE] Loan is funded, [THE WET
WAREHOUSING SUBLIMIT WILL NOT BE EXCEEDED AND] the aggregate of all principal
outstanding under the 3/98 Chase Texas Special Warehouse Note will not exceed
Fifty Million Dollars ($50,000,000).
The Subject Eligible Mortgages are intended to be pledged to Chase
Texas, Chase Texas is hereby GRANTED a security interest in them and they are
hereby made subject to the Special Warehouse Pledge Agreement, effective
immediately.
[USE THIS PARAGRAPH ONLY IN A REQUEST BY THE COMPANY:] The proceeds
of the [WET WAREHOUSING] [WAREHOUSE] Loan should be deposited in the Company's
account number __________________ with Chase Texas.
[USE THIS PARAGRAPH ONLY IN A REQUEST BY NEW AM INC.:] The proceeds
of the [WET WAREHOUSING] [WAREHOUSE] Loan should be deposited in the New Am
Inc.'s account number __________________ with Chase Texas.
The undersigned hereby certifies that all of the Company's and New Am
Inc.'s representations and warranties in this Loan Request, the Special
Warehouse Credit Agreement and all of the other Facilities Papers are true and
correct as of this date, that no Potential Default or Default exists and that
[THE COMPANY] [NEW AM INC.] is in full compliance with the requirements of
those and all other Facilities Papers.
[THE COMPANY OR NEW AM INC., AS APPLICABLE] acknowledges that Chase
Texas will rely on the truth of each statement in this Loan Request in making
and funding the requested [WET WAREHOUSING] [WAREHOUSE] Loan.
[USE THE APPROPRIATE SIGNATURE BLOCK BELOW:]
HARBOR FINANCIAL MORTGAGE
CORPORATION
By:
--------------------------
Name:
------------------------
Title:
-----------------------
NEW AMERICA FINANCIAL, INC.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
Attachments:
Schedule of [WET MORTGAGE LOANS][ELIGIBLE MORTGAGES] Pledged
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EXHIBIT B TO
CHASE TEXAS TEMPORARY ADDITIONAL
WAREHOUSE NOTE
The list of papers required to be received by Chase Texas pursuant to
Section 6.6(a) of the Special Warehouse Credit Agreement is as follows:
(1) the 3/98 Chase Texas Temporary
Additional Warehouse Note;
(2) a written continuing guaranty of
payment executed by the Guarantor unconditionally and irrevocably guaranteeing
to Chase Texas payment when due of the Obligations (the "Special Warehouse
Guaranty");
(3) a written Security Agreement-Pledge
of Secured Notes (Special Warehouse) dated the same date as the 3/98 Chase
Temporary Additional Warehouse Note by and between the Obligors, as debtors,
and Chase Texas, as secured party, covering all of Obligors' rights, titles and
interest in and to all promissory notes pledged to secure the Obligations under
the Special Warehouse Credit Agreement, the 3/98 Chase Temporary Additional
Warehouse Note and the other Facilities Papers, and all documents and
instruments securing, guaranteeing or otherwise relating to such promissory
note, as the same may be amended, supplemented, modified and/or restated from
time to time.(the "Special Warehouse Pledge Agreement" and its Financing
Statement;
(4) (If and to the extent not previously
furnished to Chase Texas) by no later than April 1, 1998, (A) copies of any
amendments to the Guarantor's certificate of incorporation issued by the
Secretary of State of Delaware, (B) copies of any amendments to the Guarantor's
bylaws certified by its corporate secretary or assistant secretary, (C)
certificates of the Guarantor's good standing issued by the Secretary of State
of the State of Delaware, and (D) certificates of authority and good standing
issued or to be issued by the appropriate Governmental Authority in each state
in which the Guarantor does business and where either the Guarantor is
authorized to do business or where doing business without being duly authorized
would potentially subject the Guarantor to a Material Adverse Effect;
(5) (If and to the extent not previously
furnished to Chase Texas) by no later than April 1, 1998, copies of (A)
FirstCity's certificate of incorporation issued by the Secretary of State of
Delaware, (B) FirstCity's bylaws certified by its corporate secretary or
assistant secretary, (C) certificates of FirstCity's good standing issued by
the Secretary of State of the State of Delaware, and (D) certificates of
authority and good standing issued or to be issued by the appropriate
Governmental Authority in each state in which FirstCity does business and where
either FirstCity is authorized to do business or where doing business without
being duly authorized would potentially subject FirstCity to a Material Adverse
Effect;
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(6) (If and to the extent not previously
furnished to Chase Texas) by no later than April 1, 1998, (A) copies of any
amendments to each Obligor's articles of incorporation certified by the
Secretary of State of the State of Texas, (B) copies of any amendments to each
Obligor's bylaws certified by its corporate secretary or assistant secretary,
(C) a certificate of good standing issued by the Secretary of State of the
State of Texas and (D) a schedule listing, by state, all certificates of
authority, good standing and franchise taxes paid issued by the Secretary of
State of the State of Texas, the Texas Comptroller of Public Accounts and the
appropriate Governmental Authority in each state in which each Obligor does
business and where either such Obligor is authorized to do business or where
doing business without being duly authorized would potentially subject such
Obligor to a Material Adverse Effect, each with respect to such Obligor,
accompanied by all such certificates listed;
(7) By no later than April 1, 1998,
resolutions of the board of directors of the Guarantor, FirstCity and each
Obligor, certified, in each case, by its corporate secretary or assistant
secretary, authorizing the execution, delivery and performance of the 3/98
Chase Texas Temporary Additional Warehouse Note and all applicable Facilities
Papers and all other papers to be delivered by the Guarantor, FirstCity and/or
each Obligor pursuant to the Special Warehouse Credit Agreement;
(8) a certificate of the corporate
secretary or assistant secretary of the Guarantor, FirstCity and each Obligor
as to the incumbency and authenticity of the signatures of the officers of the
Guarantor, FirstCity and each Obligor executing the applicable Facilities
Papers and all other papers to be delivered pursuant to the Special Warehouse
Credit Agreement (Chase Texas shall be entitled to rely on each such
certificate until a replacement certificate has been furnished to Chase Texas);
(9) If and to the extent not previously
furnished, certificates of insurance certifying that the Obligors are in
compliance with the requirements of Section 9.11 of the Special Warehouse
Credit Agreement; and
(10) all fees due to Chase Texas pursuant
to the Special Warehouse Credit Agreement and any other letters or agreements
between the Guarantor and/or the Obligors and Chase Texas shall have been paid
on or before execution and delivery of the 3/98 Chase Texas Temporary
Additional Warehouse Note.
2
