1
EXHIBIT 10.2
[MCA FINANCIAL CORP. LOGO]
MCA FINANCIAL CORP.
MCA MORTGAGE CORPORATION
MORTGAGE CORPORATION OF AMERICA
MORTGAGE CORPORATION OF AMERICA, INC.
--------------------------------------------------------------------------------
$25,000,000
10/97 SENIOR SECURED
SEASONED WAREHOUSE CREDIT AGREEMENT
DATED AS OF OCTOBER 31, 1997
--------------------------------------------------------------------------------
A SYNDICATE OF SEASONED WAREHOUSE LENDERS
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
SEASONED WAREHOUSE AGENT
[CHASE LOGO] [TEXAS COMMERCE BANK LOGO]
DUPLICATE ORIGINAL
VOLUME I OF II
2
LIST OF DOCUMENTS
FOR 10/97 SENIOR SECURED SEASONED WAREHOUSE CREDIT AGREEMENT
FOR MCA FINANCIAL CORP. AND AFFILIATED COMPANIES
1. 10/97 SENIOR SECURED SEASONED WAREHOUSE CREDIT AGREEMENT dated as of
October 31, 1997 among MCA Financial Corp., MCA Mortgage
Corporation, Mortgage Corporation of America (the "Borrowers") and
Mortgage Corporation of America, Inc. (collectively with the Borrowers,
the "Companies"), the Seasoned Warehouse Agent and the Seasoned
Warehouse Lenders, all of the capitalized terms in which have the same
meanings when used in this list, with the following:
Exhibits:
--------
A - Release Request form
B - Request for Advance form
C - Submission List form
D - form for Seasoned Warehouse Notes
E-1 - Seasoned Warehouse Security Agreement form
E-2 - UCC-1 Financing Statement form
F - Opinion of Borrowers' Counsel form
G-1 - Disbursement Request Certificate - for refinancing Eligible
Seasoned Warehouse Collateral
G-2 - Disbursement Request Certificate - for financing additional
Eligible Seasoned Warehouse Collateral
G-3 - Disbursement Request Certificate - for supplemental
Borrowing
H - Seasoned Warehouse Collateral Certificate form
I - Assignment and Assumption Agreement form
J - Amendment form
Schedules:
---------
AG - Applicable Guidelines
AI - Approved Investors
BB - Borrowing Base Calculations
CP - Collateral Procedures
EC - Eligibility Conditions
LC - the Lenders' Committed Sums and Funding Share Fractions
9.2(b) - Borrowing Base Certificate
10.1 - Subsidiaries
10.4 - Litigation and Judgments
11.2(d)- Management Report
11.12 - Senior Management
11.15 - Shareholders
12.4 - Existing indebtedness
12.6 - Existing Liens
12.13 - Affiliate Transactions
3
2. SEASONED WAREHOUSE NOTE payable to the order of Texas Commerce Bank
National Association ($25,000,000)
3. SEASONED WAREHOUSE CUSTODY AGREEMENT
4. SEASONED WAREHOUSE SECURITY AGREEMENT
5. SEASONED WAREHOUSE FINANCING STATEMENTS
a. MCA Financial Corp. (for filing with Michigan Secretary of State)
b. MCA Mortgage Corporation (for filing with Michigan Secretary of
State)
c. Mortgage Corporation of America (for filing with Michigan
Secretary of State)
d. Mortgage Corporation of America, Inc. (for filing with Michigan
Secretary of State)
6. DISBURSEMENT REQUEST CERTIFICATE - for initial Borrowing (to refinance
Eligible Seasoned Warehouse Collateral)
7. REQUEST FOR APPROVAL, AND APPROVAL, of Senior Lender by the Board of
Trustees of the Policemen and Firemen Retirement System of the City of
Detroit, as subordinated lender to the Companies pursuant to $15
million Subordinated Promissory Note (Term Loan) dated July 18, 1996
8. OFFICERS' CERTIFICATE for MCA Financial Corp., accompanied by corporate
documents
9. OFFICERS' CERTIFICATE for MCA Mortgage Corporation, accompanied by
corporate documents
10. OFFICERS' CERTIFICATE for Mortgage Corporation of America, accompanied
by corporate documents
11. OFFICERS' CERTIFICATE for Mortgage Corporation of America, Inc.,
accompanied by corporate documents
12. CERTIFICATE of the Chief Financial Officer of MCA Financial Corp.,
certifying to a true and correct copy of the December 30, 1994,
Indenture relating to the 11% Asset-Backed Subordinated Debentures,
Series 1994, Due June 30, 2000, accompanied by Indenture
13. OPINION of Butzel Long, as counsel to Companies, addressed to Seasoned
Warehouse Agent
2
4
10/97 SENIOR SECURED
SEASONED WAREHOUSE CREDIT AGREEMENT
AMONG
MCA FINANCIAL CORP.,
MCA MORTGAGE CORPORATION, and
MORTGAGE CORPORATION OF AMERICA,
as the Borrowers
together with
MORTGAGE CORPORATION OF AMERICA, INC.
as, collectively, the Companies,
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Seasoned Warehouse Agent,
and
CERTAIN LENDERS,
as Seasoned Warehouse Lenders
$25,000,000
DATED AS OF OCTOBER 31, 1997
5
TABLE OF CONTENTS
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Definitions for Interest Calculations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1.3 Accounting Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1.4 Singular and Plural. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1.5 Certain Matters of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2. MULTIPLE COMPANIES; MCAI-OHIO'S COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.1 Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.2 Basis for Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.3 Joint and Several Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.4 Contribution Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.5 MCAI-Ohio's Consent to Pledge of its Collateral by MCAFC;
the Borrowers' Promise to Make Loan Proceeds Proportionately
Available to MCAI-Ohio; Further Assurances Concerning Collateral . . . . . . . . . . . . . . . . . 28
3. SEASONED WAREHOUSE LENDERS' COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.1 Revolving Credit Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.2 Expiration or Termination of the Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.3 Limitations on Borrowings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4. BORROWING PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.1 Request for Advance to Refinance Certain Existing Debt . . . . . . . . . . . . . . . . . . . . . . 31
4.2 Requests for Revolving Loans for Additional Eligible Seasoned
Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.3 Request for Supplemental Borrowing Against Eligible Seasoned Collateral's Collateral
Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.4 Requests for Advance Due by 1:00 PM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4.5 New Collateral (If Any) Due by 11:00 AM on the Day of a Requested Revolving Loan. . . . . . . . . . 32
4.6 If a Request for Advance or New Collateral Papers are Received Late;
Waiver of Claim for Any Late Funding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5. THE REVOLVING CREDIT NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6. INTEREST RATES; ADDITIONAL COSTS AND FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.1 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.2 Maximum Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.3 Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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6.4 Change in Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.5 Chief Credit Officer's Certificate Conclusive. . . . . . . . . . . . . . . . . . . . . . . . 36
6.6 Facility Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.7 Agent's Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.8 Custodian's Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.9 Other Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7. INTEREST AND PRINCIPAL PAYMENTS; DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.1 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.2 Pro Rata Distribution of Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.3 Changes in Commitments and Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.4 Acceptance and Application of Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.5 Invalidated Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8. COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.1 Security Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.2 Delivery of Additional Collateral or Mandatory Prepayment. . . . . . . . . . . . . . . . . . 41
8.3 Right of Redemption From Pledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.4 Releases of Pledged Loans Sold or Securitized . . . . . . . . . . . . . . . . . . . . . . . . 42
8.5 Return of Collateral at End of Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . 44
9. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.1 Initial Revolving Loan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.2 Conditions to All Disbursements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10. WARRANTIES AND REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.1 Corporate Existence and Power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.2 Authorization and Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.3 Valid and Binding Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.4 Actions, Suits or Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.5 No Liens, Pledges, Mortgages or Security Interests. . . . . . . . . . . . . . . . . . . . . 50
10.6 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.7 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.8 The Companies Have Paid Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.9 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.10 Margin Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.11 No Pension Funding Deficiency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
10.12 Approved Lender, Mortgagee, Issuer and Servicer. . . . . . . . . . . . . . . . . . . . . . 52
10.13 Investment Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
10.14 Misrepresentation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.1 Pay Revolving Credit Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
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11.2 Furnish Financial and Other Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.3 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.4 Pay Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
11.5 Maintain Corporation and Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
11.6 Maintain Net Worth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
11.7 Limit Leverage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.8 Maintain Servicing Portfolio Level. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.9 Maintain Fixed Charges Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.10 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.11 Use of Loan Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.12 Senior Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.13 Accounting; Access to Records, Books, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 57
11.14 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
11.15 Shareholder Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12.1 Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.2 Stock Acquisition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.3 Liens and Encumbrances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.4 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.5 Extension of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.6 Guarantee Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
12.7 Subordinate Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
12.8 Property Transfer; Merger or Lease-Back . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
12.9 Nature of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.10 Acquire Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.11 Acquire Fixed Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.12 Pension Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.13 Affiliate Transactions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.14 Servicing Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
12.15 Misrepresentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
13. EVENTS OF DEFAULT; REMEDIES; APPLICATION OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
13.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
13.2 Automatic Termination and Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.3 Acceleration for Other Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.4 Remedies; Remedies Are Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.5 Agent and Lenders Not Liable; Waiver of Claims . . . . . . . . . . . . . . . . . . . . . . . . . 64
13.6 Waiver of Possible Implied Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
13.7 Protective Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
13.8 Delay Not Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
13.9 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
13.10 Concerning Obligations Payable Upon Demand. . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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13.11 Marshaling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
13.12 Cure or Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
14. RELATIONSHIPS AMONG THE AGENT AND THE LENDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
14.1 Agent's Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
14.2 Actions Requiring All Lenders' Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
14.4 Agent's Discretionary Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
14.5 Lenders' Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
14.6 Lenders' Sharing Arrangement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
14.7 Lenders' Acknowledgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
14.8 Agent's Representations to Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
14.9 Agent's Duty of Care, Express Negligence Waiver and Release. . . . . . . . . . . . . . . . . . . 71
14.10 Calculations of Shares of Principal and Other Sums. . . . . . . . . . . . . . . . . . . . . . . . 71
14.11 Qualifications of the Seasoned Warehouse Agent. . . . . . . . . . . . . . . . . . . . . . . . . . 72
14.12 Resignation of the Seasoned Warehouse Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . 72
14.13 Removal of the Seasoned Warehouse Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
14.14 Effective Date of Resignation or Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.15 Successor Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.16 Merger of the Seasoned Warehouse Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.17 Participation; Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.18 Beneficiaries of this Section. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
15. REIMBURSEMENT OF EXPENSES; INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
15.1 Pay Negotiation and Administration Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
15.2 Pay Certain Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
15.3 Expenses; Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
16. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
16.1 Items to Be Satisfactory to the Seasoned Warehouse Agent. . . . . . . . . . . . . . . . . . . . . 77
16.2 Usury Not Intended; Credit or Refund of Any Excess Payments. . . . . . . . . . . . . . . . . . . 77
16.3 Independent Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
16.4 Covenant Independence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
16.5 Relationship of the Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
16.6 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
16.7 Governing Law, Jurisdiction and Venue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
16.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
16.9 Survival of Warranties, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
16.10 Payments on Saturdays, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
16.11 Terms Binding Upon Successors; Survival of Representations. . . . . . . . . . . . . . . . . . . . 80
16.12 Disclosure of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
16.13 Maintenance of Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
16.14 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
16.15 Counterpart Execution; Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
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16.16 Integration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
16.17 General Purpose of Loan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
16.18 Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
16.19 WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
16.20 Notice Pursuant to Tex. Bus. & Comm. Code Section 26.02. . . . . . . . . . . . . . . . . . . . 84
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INDEX OF DEFINED TERMS
"10/97 Servicing/Residuals Loan Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"10/97 Warehouse Credit Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"9/97 Servicing/Residuals Loan Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Agent's Fee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
"Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Agent's Fee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Aggregate Committed Sum" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Aggregate Credit Limit" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Applicable Margin" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Appraisal Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Appraisal" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Approved Investor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"B/C Paper Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Bankruptcy Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Base Rate Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Base Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Basic Papers" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrowers" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Borrowing Base Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
"Borrowing Base Deficiency" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrowing Base Report" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrowing Base" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrowing Price Category" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Calendar Month" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Cash Flow" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Ceiling Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Certifying Officer's Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Chapter 1D" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
"Collateral Papers" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Collateral Value" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Collateral" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Commitment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Committed Sum" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Companies" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Consolidated" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Correction Period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Custody Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
i
11
"Dated Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
"Dated Liabilities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
"Debtor Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Disbursement Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Effective Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Eligible Assignee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
"Eligible Foreclosure Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Foreclosure/REO/Repurchase Collateral" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Jumbo Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Land Contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Mortgage Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Mortgage Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible REO" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Repurchased Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Seasoned Collateral" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Subprime Mortgage Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Enhancement Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Environmental Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"ERISA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"FAB Principal Equivalent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
"FAB Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
"Facility Fee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
"Federal Funds Effective Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
"FHA Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"FHA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"FHLMC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"File" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Financial Statements" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
"Financing Statements" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Fixed Charges Coverage Ratio" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Fixed Charges" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"FNMA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Foreclosure Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Foreclosure/REO/Repurchase Loans Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Foreclosure/REO/Repurchase Loans Sublimit" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Free Adjusted Balances" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
"Free Redemption Proviso" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
"Free Release Proviso" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
"Funding Share" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"GAAP" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"GNMA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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"Governmental Authority" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Guide" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Hazardous Substance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Indemnified Liabilities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
"Indemnified Parties" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
"indicated rate ceiling" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"IRC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Jumbo Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Land Contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Lender Lien" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Lenders, Et Al" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
"Lenders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Lender" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"LIBOR Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"LIBOR Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"LIBOR" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"Lien" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Loan Documents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Majority Seasoned Warehouse Lenders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Market Value" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Material Adverse Effect" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Maximum Amount" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"Maximum Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"MCAFC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"MCAI-Ohio" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"MCAMC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"MCA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Mortgage Collateral" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Mortgage Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Mortgage Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Mortgage Pool" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Mortgage Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Net Income" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Net Worth" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Note Payment/Funding Account" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Notice of Receipt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Obligations" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Officer's Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Past Due Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"PBGC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Pension Fund" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
iii
13
"Permitted Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Person". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Pledged Loans Curtailment Report" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Pledged to the Seasoned Warehouse Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Prime Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"Pro Rata" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Redemption Amount" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Release Request" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"REO" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Representative" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Repurchased Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Request for Advance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Responsible Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Reuters Screen LIBO Page" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
"Revolving Credit Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Revolving Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Seasoned Warehouse Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Seasoned Warehouse Borrowers". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Seasoned Warehouse Collateral Papers" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Lenders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Seasoned Warehouse Line Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Line Commitment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Line Committed Sum" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Line" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Loan Documents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Note Payment/Funding Account" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"Seasoned Warehouse Revolving Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"Seasoned Warehouse Security Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"Servicer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Servicing Portfolio" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Servicing Rights" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Servicing/Residuals Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Servicing/Residuals Lenders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Servicing/Residuals Loan Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Shipping Period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Solvent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Stated Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
"Stated Termination Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Sublimit" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Submission List" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Subordinated Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iv
14
"Taxes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"Termination Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"Texas Commerce Loan Balances" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
"Texas Commerce" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Texas Finance Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
"Tribunal" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"UCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"VA Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"VA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"Warehouse Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Warehouse Credit Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Warehouse Lenders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Warehouse Revolving Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"weekly ceiling" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Wire Instructions" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
v
15
10/97 SENIOR SECURED
SEASONED WAREHOUSE CREDIT AGREEMENT
PREAMBLE
THIS 10/97 SENIOR SECURED SEASONED WAREHOUSE CREDIT AGREEMENT made and
delivered this 31st day of October, 1997 (the "EFFECTIVE DATE"), by and among
(i) MCA FINANCIAL CORP. ("MCAFC"), a Michigan corporation, MCA MORTGAGE
CORPORATION ("MCAMC"), a Michigan corporation formerly known as Mortgage
Corporation of America, and MORTGAGE CORPORATION OF AMERICA ("MCA"), a Michigan
corporation formerly known as First American Mortgage Associates, Inc. (MCAFC,
MCAMC and MCA are herein called the "SEASONED WAREHOUSE BORROWERS" and,
together with MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio
corporation, and all of their Subsidiaries, the "COMPANIES" or, within this
Agreement only, the "BORROWERS" and the "COMPANIES", respectively) and (ii)
TEXAS COMMERCE BANK NATIONAL ASSOCIATION ("TEXAS COMMERCE"), a national banking
association acting herein as a lender and as agent for the other Lenders and
Eligible Assignees (in that latter capacity, Texas Commerce is called the
"SEASONED WAREHOUSE AGENT" or, within this Agreement only, the "AGENT") and
such other lender(s) as may from time to time be party to this Agreement
(Texas Commerce as a lender and such other lenders are called the "SEASONED
WAREHOUSE LENDERS", or within this Agreement only, the "LENDERS"),
WITNESSETH:
RECITALS
The Borrowers have asked the Seasoned Warehouse Lenders and the
Seasoned Warehouse Agent to establish a senior, secured, warehouse revolving
line of credit with a revolving subline for the Borrowers to borrow from the
Seasoned Warehouse Lenders up to $30 million of principal outstanding from time
to time to finance the Companies' retention of seasoned Mortgage Loans and Land
Contracts until they are sold in the secondary market and to refinance the
Companies' existing debt heretofore incurred to Texas Commerce for those same
purposes, and the Seasoned Warehouse Lenders and the Seasoned Warehouse Agent
agree to do so on the terms and subject to the conditions of this Agreement.
The Lenders' and Agent's agreement to establish and continue the
warehouse credit line and its subline is made on the terms and subject to the
conditions of this Agreement. If there is any conflict or inconsistency
between any of the terms or provisions of this Agreement and any of the other
Seasoned Warehouse Loan Documents, this Agreement shall govern and control. If
there is any conflict between any provision of this Agreement and any later
supplement, amendment, restatement or replacement of it, then the latter shall
govern and control.
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AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the Borrowers, the Seasoned Warehouse Lenders and
the Seasoned Warehouse Agent agree as follows:
1. DEFINITIONS
1.1 Defined Terms. The terms defined in this Section are
generally applicable. For convenience of reference, defined terms relating
only to the calculation and payment of interest are defined in SECTION 1.2.
Except where otherwise specifically provided, the following terms have the
following meanings in this Agreement and the other Seasoned Warehouse Loan
Documents:
"10/97 SERVICING/RESIDUALS LOAN AGREEMENT" means the 10/97 Revolving
Credit Loan Agreement (Secured) dated as of October 31, 1997 among the
Borrowers, Texas Commerce, as a lender and as agent for the other lenders
therein (the "SERVICING/RESIDUALS AGENT") and the other lenders party thereto
from time to time (such lenders being herein called the "SERVICING/RESIDUALS
LENDERS" and such loan agreement, as supplemented, amended or restated from
time to time, being herein called the "SERVICING/RESIDUALS LOAN AGREEMENT").
"10/97 WAREHOUSE CREDIT AGREEMENT" means the 10/97 Senior Secured
Warehouse Credit Agreement dated as of October 31, 1997 among the Borrowers,
Texas Commerce, as a lender and as agent for the other lenders (the "WAREHOUSE
AGENT") and the other lenders party thereto from time to time (such lenders
being herein called the "WAREHOUSE LENDERS" and such credit agreement, as
supplemented, amended or restated from time to time, being herein called the
"WAREHOUSE CREDIT AGREEMENT")
"AFFILIATE" means, when used with respect to any Person, any other
Person which, directly or indirectly, controls or is controlled by or is under
common control with such Person. For purposes of this definition, "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), with respect to any Person, means possession, directly
or indirectly, of the power to direct to cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or by contract.
"AGENT" is defined in this Agreement's Preamble.
"AGENT'S FEE" means, in this Agreement only, the Seasoned Warehouse
Agent's Fee.
"AGREEMENT" means, in this Agreement only, this 10/97 Senior Secured
Seasoned Warehouse Credit Agreement.
"AGGREGATE COMMITTED SUM" means, on any day, the lesser of (a)
Twenty-five Million Dollars ($25,000,000) and (b) the aggregate of the Seasoned
Warehouse Lenders' individual
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Committed Sums for that day as stated in the definition of "Committed Sum" (or
such lesser amount to which the Aggregate Committed Sum may be reduced by the
Borrowers from time to time under SECTION 7.3); provided that the total
principal outstanding on any day under (i) the credit facilities provided for
in this Agreement and (ii) all other credit facilities provided by the Agent
and the Lenders (or any one or more of them) to the Borrowers from time to time
(including the facilities provided and to be provided by the
Servicing/Residuals Loan Agreement and the Warehouse Credit Agreement), shall
never exceed Two Hundred Thirteen Million Five Hundred Thousand Dollars
($213,500,000) in the aggregate (the "AGGREGATE CREDIT LIMIT").
"AGGREGATE CREDIT LIMIT" is defined in the definition of "Aggregate
Committed Sum".
"APPRAISAL" means, for any Mortgage Loan or other item of Collateral:
(i) for which applicable Appraisal Laws require an appraisal, a
written appraisal report as that term is defined in the Code of Professional
Ethics of the American Institute of Appraisers, that meets the requirements of
all Appraisal Laws, prepared by a professional appraiser who is a member of the
American Institute of Appraisers and who is acceptable to the Seasoned
Warehouse Agent, setting forth such appraiser's determination of the market
value of the real property securing the Mortgage Loan or other item of
Collateral;
(ii) for which applicable Appraisal Laws do not require an appraisal
but do require another specified form or type of evaluation report or opinion,
a written evaluation report that meets -- and that is prepared by a Person
acceptable to the Seasoned Warehouse Agent -- the requirements of such
Appraisal Laws, setting forth such evaluator's opinion of the market value of
the real property securing such Mortgage Loan or of such other item of
Collateral; or
(iii) for which applicable Appraisal Laws do not require an
evaluation report or opinion, but the Seasoned Warehouse Agent does, a written
evaluation report that meets the Seasoned Warehouse Agent's requirements, and
that is prepared by a Person acceptable to the Seasoned Warehouse Agent,
setting forth such evaluator's opinion of the market value of the real property
securing such Mortgage Loan or of such other item of Collateral;
in form, scope and substance satisfactory to the Seasoned Warehouse Agent.
"APPRAISAL LAW" means any Law that is applicable to appraisals of
mortgaged residential property in connection with transactions involving that
property, including Title XI of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989, the Federal Deposit Insurance Corporation
Improvement Act of 1991, 12 C.F.R. Chapter I, Part 34, Subpart C, 12 C.F.R.
Chapter II, Subchapter A. Part 225, Subpart G, and 12 C.F.R. Chapter III,
Subchapter B, Part 323.
"APPROVED INVESTOR" means (a) FHLMC, FNMA, GNMA, and (b) any other
Person named on SCHEDULE AI, as that Schedule may be supplemented or amended
(i) by the Borrowers and the Seasoned Warehouse Agent to remove or add other
names as the Seasoned Warehouse Agent and
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the Borrowers may agree, (ii) by either the Seasoned Warehouse Agent or the
Majority Seasoned Warehouse Lenders to remove any such other Person after the
Seasoned Warehouse Agent has, or the Majority Seasoned Warehouse Lenders have,
given the Borrowers notice of, and an opportunity to discuss, the proposed
removal of that Person, or (iii) automatically, without signing by any party,
to remove any such Person who then (A) is not Solvent, (B) fails to pay its
debts generally as they become due, (C) voluntarily seeks, consents to, or
acquiesces in the benefit of any Debtor Law, or (D) becomes a party to or is
made the subject of any proceeding provided for by any Debtor Law, other than
as a creditor or claimant, that could suspend or otherwise adversely affect the
rights of any Borrower, the Seasoned Warehouse Agent, the Custodian or any
Lender in connection with the transactions contemplated in the Seasoned
Warehouse Loan Documents.
"BANKRUPTCY CODE" means Title 11 of the United States Code, as amended
from time to time, or any successor act or code.
"BASIC PAPERS" means all of the Collateral Papers that must be
delivered to the Custodian in order for any particular item of Seasoned
Warehouse Collateral to be Eligible Seasoned Collateral and have Collateral
Value. The Custody Agreement lists the Basic Papers for each such category of
Collateral, and reference is here made to the Custody Agreement for those
listings.
"B/C PAPER LOAN" means a Mortgage Loan owned by a Company that has
been assigned a rating of "B" or "C" by the relevant Company pursuant to
underwriting standards acceptable to the Seasoned Warehouse Agent, and based
upon such Mortgage Loan's status as not complying with all applicable
requirements for purchase under either the FHLMC Guide or the FNMA Guide, and
therefore being saleable only to investors other than FHLMC or FNMA.
"BORROWER" is defined in this Agreement's Preamble.
"BORROWING" means, in this Agreement only, a Seasoned Warehouse Line
Borrowing.
"BORROWING BASE" is defined in, and calculated under, SCHEDULE BB.
"BORROWING BASE DEFICIENCY" means, on any day, the amount (if any) by
which the principal of the Seasoned Warehouse Revolving Loans outstanding on
that day exceeds the Borrowing Base on that day.
"BORROWING BASE CERTIFICATE" is defined in SECTION 9.2(b).
"BORROWING BASE REPORT" means a report executed by the Seasoned
Warehouse Agent and delivered to the Borrowers and the Seasoned Warehouse
Lenders in accordance with the provisions of SECTION 8.2.
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"BUSINESS DAY" means any day that is not a Saturday, a Sunday or a day
when Texas Commerce's main branch (currently located at 000 Xxxx Xxxxxx) in
Houston, Texas is not open for regular commercial lending business.
"CALENDAR MONTH" means an actual calendar month and also includes any
partial calendar month that occurs at any time from the date of this Agreement
to the date that the Obligations are paid in full and all Seasoned Warehouse
Lenders' commitments to lend under this Agreement have terminated or have been
canceled.
"CASH FLOW" of any Person means, for any determination period, that
Person's Net Income for such period, plus, to the extent deducted in
computation of such Net Income, the amount of depreciation and amortization
expense and the amount of deferred tax expense incurred during such period, all
as determined in accordance with GAAP.
"CERTIFYING OFFICER'S CERTIFICATE" means a certificate signed by (i)
an officer (authorized to sign an Officer's Certificate or a Certifying
Officer's Certificate) of the Companies, the relevant Servicer, the title
insurance company issuing the relevant Lender's Title Insurance Policy (as
defined in the Custody Agreement), the escrow/settlement agent or company for
the related Mortgage Loan(s), or other Person submitting a File to the Seasoned
Warehouse Agent or (ii) the closing attorney for the related Mortgage Loan(s).
(The text of any particular Certifying Officer's Certificate may be stamped
upon a File paper if such stamped text is manually signed by an officer
authorized to sign an Officer's Certificate or a Certifying Officer's
Certificate.)
"COLLATERAL" means, within this Agreement only, the Seasoned Warehouse
Collateral.
"COLLATERAL PAPERS" means, within this Agreement only, the Seasoned
Warehouse Collateral Papers.
"COLLATERAL VALUE" means the value of Eligible Seasoned Collateral for
purposes of this Agreement, as determined by the Seasoned Warehouse Agent in
accordance with SCHEDULE BB.
"COMMITMENT" means, within this Agreement only, a Lender's Seasoned
Warehouse Line Commitment.
"COMMITTED SUM" means, within this Agreement only, a Lender's Seasoned
Warehouse Line Committed Sum.
"COMPANIES" is defined in this Agreement's Preamble and means and
includes Borrowers and all of their Subsidiaries, including MCAI-Ohio.
"CONSOLIDATED" or "CONSOLIDATED" means, when used with reference to
any financial term in this Agreement, the aggregate for two or more Persons of
the amounts signified by such term for all such Persons determined on a
consolidated basis in accordance with GAAP. Unless otherwise
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20
specified herein, references to "consolidated" financial statements or data of
any Company includes consolidation with its Subsidiaries in accordance with
GAAP.
"CORRECTION PERIOD" means twenty-one (21) calendar days for any
Collateral Papers for any Collateral shipped to a Company under SECTION 3.2 of
the Custody Agreement (for correction or servicing.)
"CUSTODIAN" means Texas Commerce, as Custodian under the Custody
Agreement, or any successor custodian under the Custody Agreement.
"CUSTODIAN'S FEE" is defined in SECTION 6.8.
"CUSTODY AGREEMENT" means the Seasoned Warehouse Custody Agreement of
even date herewith between the Companies and the Custodian, as it may be
supplemented, amended or restated from time to time. By this reference, the
Custody Agreement is incorporated into this Agreement; provided that, in
interpreting this Agreement or any of the other Seasoned Warehouse Loan
Documents except the Custody Agreement itself, definitions of terms in this
Agreement will control over any inconsistent definitions in the Custody
Agreement.
"DATED ASSETS" is defined in SECTION 2.4.
"DATED LIABILITIES" is defined in SECTION 2.4.
"DEBT" means, as of any determination date, all items of indebtedness,
obligation or liability of a Person, whether matured or unmatured, liquidated
or unliquidated, direct or indirect, absolute or contingent, joint or several,
that should be classified as liabilities in accordance with GAAP.
"DEBTOR LAWS" means the Bankruptcy Code and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, arrangement,
receivership, insolvency, reorganization, or similar Laws from time to time in
effect and generally affecting creditors' rights.
"DEFAULT" means a condition or event which, with the giving of notice
or the passage of time, or both, would become an Event of Default.
"DISBURSEMENT DATE" means each date upon which the Seasoned Warehouse
Lenders make and the Seasoned Warehouse Agent disburses a Seasoned Warehouse
Revolving Loan to or for the account of the Borrowers under SECTION 3.1.
"EFFECTIVE DATE" is defined in this Agreement's Preamble.
"ELIGIBLE B/C PAPER LOAN" means, at any time, a Mortgage Loan for
which the applicable conditions for eligibility as an Eligible B/C Paper Loan
that are described in SCHEDULE EC are satisfied.
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"ELIGIBLE FORECLOSURE LOAN" means, at any time, a Foreclosure Loan for
which the applicable conditions for eligibility as an Eligible Foreclosure Loan
that are described on SCHEDULE EC are satisfied.
"ELIGIBLE FORECLOSURE/REO/REPURCHASE COLLATERAL" means, for any day,
all Eligible Foreclosure Loans, Eligible REO and Eligible Repurchased Loans on
that day.
"ELIGIBLE JUMBO LOAN" means, at any time, a Jumbo Loan for which the
applicable conditions for eligibility as an Eligible Jumbo Loan that are
described in SCHEDULE EC are satisfied.
"ELIGIBLE LAND CONTRACT" means, at any time, a Land Contract for which
the applicable conditions for eligibility as an Eligible Land Contract that are
described in SCHEDULE EC are satisfied.
"ELIGIBLE MORTGAGE SECURITY" means, at any time, a Mortgage Security
for which the applicable conditions for eligibility as an Eligible Mortgage
Security that are described in SCHEDULE EC are satisfied.
"ELIGIBLE MORTGAGE LOAN" means, at any time, a Mortgage Loan for which
the applicable conditions for eligibility as an Eligible Mortgage Loan that are
described in SCHEDULE EC are satisfied.
"ELIGIBLE REO" means, at any time, a Mortgage Loan for which the
applicable conditions for eligibility as Eligible REO that are described in
SCHEDULE EC are satisfied.
"ELIGIBLE REPURCHASED LOAN" means, at any time, a Mortgage Loan for
which the applicable conditions for eligibility as an Eligible Repurchased Loan
that are described in SCHEDULE EC are satisfied.
"ELIGIBLE SEASONED COLLATERAL" means, at any time, Collateral for
which the applicable conditions for inclusion in the Borrowing Base are
satisfied.
"ELIGIBLE SUBPRIME MORTGAGE LOAN" means, at any time, a Mortgage Loan
for which the applicable conditions for eligibility as an Eligible Subprime
Mortgage Loan that are described in SCHEDULE EC are satisfied.
"ENHANCEMENT AGREEMENT" means the Amended and Restated Credit
Enhancement Umbrella Agreement dated June 30, 1997 among MCAFC, MCAMC and MCA
and the Pension Fund, as amended, supplemented or otherwise modified from time
to time.
"ENVIRONMENTAL LAW" means any Law that relates to pollution, the
protection of human health and the environment, health and safety, or to
Hazardous Substances, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42
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22
U.S.C. Section 9601, et seq.), the Solid Waste Disposal Act, as amended (42
U.S.C. Section 6901 et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Section 1801, et seq.), the Clean Air Act, as amended (42
U.S.C. Section 7401, et seq.), the Federal Water Pollution Control Act, as
amended (33 U.S.C. Section 1251, et seq.), the Toxic Substances Control Act, as
amended (15 U.S.C. Section 2601 et seq.), the Safe Drinking Water Act, as
amended (42 U.S.C. Section 300f et seq.), the Atomic Energy Act, as amended (42
U.S.C. Section 2014 et seq.), the Federal Insecticide, Fungicide and
Rodenticide Act, as amended (7 U.S.C. Section 136, et seq.), the Oil Pollution
Act of 1990, as amended (33 U.S.C. Section 2701, et seq.), the Emergency
Planning and Community Right-to-Know Act of 1986, as amended (42 U.S.C. Section
11001. et seq.), the Occupational Safety and Health Act, as amended (29 U.S.C.
Section 651 et seq.), the Texas Water Code, as amended, and the Texas Health
and Safety Code, as amended, as well as the regulations adopted and
publications promulgated pursuant to the above.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor act or code.
"FACILITY FEE" is defined in SECTION 6.6.
"FHA" means the Federal Housing Administration within the United
States Department of Housing and Urban Department.
"FHA LOAN" means a Mortgage Loan which is either (a) fully or
partially insured by FHA under the National Housing Act or the Housing Act of
1949, (b) subject to a current, binding, and enforceable commitment issued by
FHA for that insurance, or (c) eligible for direct endorsement under the FHA
Direct Endorsement Program.
"FHLMC" means the Federal Home Loan Mortgage Corporation and any
successor thereto.
"FILE" means a file in the possession of the Custodian or its designee
(other than a Company or one of its Affiliates) containing all of the Basic
Papers for a Pledged Loan.
"FINANCIAL STATEMENTS" is defined in SECTION 10.6.
"FINANCING STATEMENTS" means UCC financing statements describing the
Seasoned Warehouse Agent (as agent and Representative of the Seasoned Warehouse
Lenders) as secured party and a Company as debtor covering the Collateral and
otherwise in such form, for filing in such jurisdictions and with such filing
offices, as the Seasoned Warehouse Agent shall reasonably deem necessary or
advisable, in the form of EXHIBIT E-2 or such other form as the Seasoned
Warehouse Agent shall reasonably require, and includes UCC-3 (assignments) of
Texas Commerce's existing security interests in the Collateral to the Seasoned
Warehouse Agent, as agent and Representative of the Lenders under and pursuant
to this Agreement.
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"FIXED CHARGES" means, for any applicable period of determination, the
sum, without duplication, of (a) all interest paid or payable during such
period by a Person, plus (b) all debt discount and expense amortized or
required to be amortized during such period by such Person, plus (c) the
maximum amount of all rents and other payments paid or required to be paid by
such Person during such period under any lease or other contract or arrangement
providing for use of real or personal property in respect of which such Person
is obligated as a lessee, user or obligor, where such lease or other contract
or arrangement is required under GAAP to be capitalized, to the extent that,
pursuant to GAAP, such rents and other payments represent interest.
"FIXED CHARGES COVERAGE RATIO" means the ratio of (x) the aggregate
consolidated Net Income of the Borrowers and their Subsidiaries plus their
aggregate Fixed Charges during the four (4) consecutive previous fiscal
quarters, to (y) their aggregate consolidated Fixed Charges for the same
period.
"FNMA" means the Federal National Mortgage Association and any
successor thereto.
"FORECLOSURE LOAN" means a Mortgage Loan owned by one of the Companies
that is in the process of being foreclosed.
"FOLLOW-UP NOTICE OF RECEIPT" means an instrument substantially in the
form of the Notice of Receipt or Follow-up Notice of Receipt exhibit (named
that) to the Custody Agreement.
"FORECLOSURE/REO/REPURCHASE LOANS BORROWING" means a Borrowing that is
(a) subject to the Foreclosure/REO/Repurchase Loans Sublimit and (b) supported
by the portion of the Borrowing Base attributable to Foreclosure/REO/Repurchase
Loans.
"FORECLOSURE/REO/REPURCHASE LOANS SUBLIMIT" means Five Million Dollars
($5,000,000), the sublimit to the Seasoned Warehouse Line for financing of the
Companies' Eligible Foreclosure Loans, Eligible REO and Eligible Repurchase
Loans.
"FREE REDEMPTION PROVISO" is defined in SECTION 8.3(a).
"FREE RELEASE PROVISO" is defined in SECTION 8.4(a).
"FUNDING SHARE" means, on any day and for each Lender, that proportion
of each Seasoned Warehouse Revolving Loan that bears the same ratio to the
total amount of the Seasoned Warehouse Revolving Loans to be funded on that day
as that Lender's Committed Sum bears to the Aggregate Committed Sum for that
day.
"GAAP" means, as of any determination date, generally accepted
accounting principles consistently applied.
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"GOVERNMENTAL AUTHORITY" means any foreign governmental authority, the
United States of America, any state of the United States and any political
subdivision of any of the foregoing, and any agency, department, commission,
board, bureau, court or other tribunal.
"GNMA" means the Government National Mortgage Association and any
successor thereto.
"GUIDE" means the following, as applicable under the circumstances,
for (a) FHLMC, the Xxxxxxx Xxx Xxxxxxx' & Servicers' Guide dated September 17,
1984, (b) FNMA, the Xxxxxx Mae Servicing Guide dated June 30, 1990, and (c)
GNMA, as applicable, either (i) the GNMA I Mortgage Securities Guide, Handbook
GNMA 5500.1REV-6, or (ii) the GNMA II Mortgage Securities Guide, Handbook GNMA
5500.2.
"HAZARDOUS SUBSTANCE" means any substance, material or waste (a) the
presence or Release of which requires reporting, investigation or remediation
under any Environmental Law, (b) which is defined or listed as a hazardous
waste, hazardous substance, extremely hazardous waste, restricted hazardous
waste, hazardous material, toxic substance, or other similar or related term
under any Environmental Law, (c) which is toxic, radioactive, or otherwise
classified as hazardous or toxic and is or becomes regulated by any
governmental authority as a threat to human health or the environment, (d) the
presence of which causes or threatens to cause a nuisance upon the property or
to adjacent property, (e) the presence of which on adjacent properties could
constitute a trespass, (f) which is asbestos, (g) which is polychlorinated
biphenyls or (h) which contains petroleum or any petroleum derived product.
"INDEMNIFIED LIABILITIES" is defined in SECTION 15.3.
"INDEMNIFIED PARTIES" is defined in SECTION 15.3.
"IRC" means the Internal Revenue Code of 1986, as amended.
"JUMBO LOAN" means a Mortgage Loan (other than a FHA Loan or VA Loan)
that complies with all applicable requirements for purchase under the FNMA or
FHLMC standard form of conventional mortgage purchase contract then in effect
except that the amount of it exceeds the maximum loan amount under those
requirements.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed
to sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"LAWS" means all applicable statutes, laws, treaties, ordinances,
rules, regulations, orders, writs, injunctions, decrees, judgments, opinions,
and interpretations of any Tribunal.
"LENDER" means Texas Commerce and such other Persons, if any, as from
time to time with the consent of the other parties to this Agreement shall be a
party to this Agreement as a lender.
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"LENDER LIEN" means any present or future first priority (except as
otherwise specifically provided in the Seasoned Warehouse Loan Documents) Lien
securing the Obligations and assigned, conveyed, and granted to or created in
favor of the Seasoned Warehouse Agent, as agent and Representative of the
Seasoned Warehouse Lenders (including -- and initially meaning only -- Texas
Commerce) under the Seasoned Warehouse Loan Documents.
"LIEN" means any lien, mortgage, security interest, pledge,
assignment, charge, title retention agreement, or encumbrance of any kind and
any other arrangement for a creditor's claim to be satisfied from assets or
proceeds prior to the claims of other creditors or any owner of the assets
covered thereby.
"LOAN DOCUMENTS", within this Agreement only, means Seasoned Warehouse
Loan Documents.
"MAJORITY SEASONED WAREHOUSE LENDERS" means, for any day, the holders
of Seasoned Warehouse Notes evidencing sixty-six and two-thirds percent (66
2/3%) or more of (a) the Aggregate Committed Sum if on that day Seasoned
Warehouse Lenders are committed to lend under this Agreement or (b) the
aggregate principal amount of the Borrowings outstanding hereunder if on or
before that day Seasoned Warehouse Lenders' Commitments have expired or have
been terminated and have not been reinstated.
"MARKET VALUE" means, at any time (a) for Mortgage Loans, except as
provided in CLAUSE (B) below, a market value based upon the then most recent
posted net yield for 30-day mandatory future delivery furnished by FNMA and
published and distributed by Telerate Mortgage Services or Xxxxxx-Xxxxxx or (if
that posted net yield is not available from these services) obtained by the
Seasoned Warehouse Agent from FNMA, (b) for Jumbo Loans or any other Mortgage
Loan for which for any reason the posted rate is not available from FNMA, the
value reasonably determined by the Seasoned Warehouse Agent, (c) for Mortgage
Securities, the value reasonably determined by the Seasoned Warehouse Agent,
and (d) for REO, the lesser of (i) the written opinion of value of a reputable
and experienced real estate broker selected by the relevant Company or (ii) the
amount of the relevant Company 's claim against or receivable from any VA
mortgage guaranty, FHA mortgage insurance or private mortgage insurance
recoverable in respect of that REO.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (i) the
business, operations, properties, condition (financial or otherwise) or
prospects of a Company, (ii) the ability of any Company to perform its
obligations under, or comply with, this Agreement or any other Loan Document,
or (iii) the legality, validity or enforceability of this Agreement or any
other Loan Document.
"MCA", "MCAFC" and "MCAMC" are each defined in this Agreement's
Preamble.
"MCAI-OHIO" is defined in this Agreement's Preamble. MCAI-Ohio is a
wholly-owned Subsidiary of Mortgage Corporation of America.
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"MORTGAGE COLLATERAL" means all Mortgage Loans, Land Contracts,
Mortgage Securities, REO and related Collateral Papers that are Collateral
under the Seasoned Warehouse Loan Documents.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan or a commercial loan, is evidenced by a valid promissory
note, and is secured by a mortgage, deed of trust or trust deed that grants a
perfected first priority Lien on the underlying residential real property.
"MORTGAGE NOTE" means the promissory note evidencing a Mortgage Loan.
"MORTGAGE POOL" means (a) a "group" or "grouping" of Mortgage Loans
assembled in accordance with, and as that term is used in, the FHLMC Guide, (b)
a "pool" of Mortgage Loans assembled in accordance with, and as that term is
used in, the FNMA Guide or the GNMA I Guide, (c) a "pool" of Mortgage Loans of
a "loan package" consisting of Mortgage Loans assembled in accordance with, and
as those terms are used in, the GNMA II Guide, or (d) any other pool of
Mortgage Loans assembled by an Approved Investor securing, and providing for
pass-through payments of principal and interest on, its Mortgage Securities.
"MORTGAGE SECURITY" means a security in respect of an underlying pool
of related mortgage loans that provides for payment by the issuer to the holder
of specified principal installments and a fixed interest rate on the unpaid
balance, with all prepayments being passed through to the holder, and is issued
in certificate or book entry form.
"NET INCOME" means the consolidated pretax income (or loss) of a
Person from continuing operations for any period determined in accordance with
GAAP.
"NET WORTH" means, for any Person, its stockholder's equity as
determined under GAAP, plus its Subordinated Debt minus accounts receivable
from its Affiliates and shareholders or equity owners.
"NOTE" means a Seasoned Warehouse Note.
"NOTE PAYMENT/FUNDING ACCOUNT" means, in this Agreement only, the
Seasoned Warehouse Note Payment/Funding Account.
"NOTICE OF RECEIPT" means an acknowledgment to the Companies and a
certification to the Seasoned Warehouse Lenders by the Custodian in the
relevant form of the "Notice of Receipt or Follow-up Notice of Receipt" exhibit
to the Custody Agreement that the Custodian has received from (or on behalf of)
the Companies and holds, as custodian, Files for all of the Collateral
described in the Submission List(s) attached to the Notice of Receipt.
"OBLIGATIONS" means the principal of and interest on the Seasoned
Warehouse Revolving Loans, and, without duplication, all other indebtedness,
obligations and liabilities of the Borrowers
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to the Seasoned Warehouse Lenders and the Seasoned Warehouse Agent under or
arising out of or in connection with this Agreement or any other Seasoned
Warehouse Loan Documents (including indemnities, fees and expenses), whether
now existing or hereafter incurred, direct or indirect, absolute or contingent,
matured or unmatured, joint or several, whether for principal, interest,
reimbursement obligations, fees, expenses or otherwise, and the due performance
and compliance with the terms and conditions of this Agreement and the other
Seasoned Warehouse Loan Documents by the Borrowers and also includes amounts
that would become due but for operation of 11 U.S.C. Sections 502 and 503 or
any other provision of Title 11 of the United States Code, pre- and
post-maturity interest on any of the foregoing, including all post-petition
interest if any Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"OFFICER'S CERTIFICATE" means a certificate executed on behalf of a
Company or another relevant Person by its (or if it is a partnership, its
general partner's) President, Treasurer or Assistant Treasurer, any of its Vice
Presidents or such other officer as shall be acceptable to the Seasoned
Warehouse Agent.
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to the present powers and functions of the Pension Benefit Guaranty
Corporation.
"PENSION FUND" means the Board of Trustees of the Policemen and
Firemen Retirement System of the City of Detroit.
"PERMITTED LIENS" means:
(a) liens and encumbrances in favor of the Seasoned
Warehouse Agent, as agent and Representative of the Seasoned Warehouse Lenders;
(b) liens and encumbrances in favor of the Warehouse
Agent, as agent and Representative of the Warehouse Lenders;
(c) liens and encumbrances in favor of the Pension Fund
and the Servicing/Residuals Agent under the Servicing/Residuals Loan Agreement
granted under the Enhancement Agreement which, insofar as they cover or affect
the collateral for the Revolving Credit Loans under (and as that term is
defined in) the Servicing/Residuals Loan Agreement, are subordinate and
inferior to the security interests of the agent for the lenders under the
Servicing/Residuals Loan Agreement in that collateral;
(c) liens against the Borrowers' residual interests in
Mortgage Securities created from residential mortgage loans pooled by Borrowers
which residual interests (i) are not included in the Borrowing Base for, and as
that term is defined in, the Servicing/Residuals Loan Agreement and (ii) are
pledged by the Borrowers to another lender solely for the purpose of securing
financing for Borrowers of such residuals interests funded by such other
lender-pledgee;
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(d) liens for taxes, assessments or other governmental
charges incurred in the ordinary course of business and for which no interest,
late charge or penalty is attaching or which is being contested in good faith
by appropriate proceedings and, if requested by Seasoned Warehouse Agent,
bonded in an amount and manner satisfactory to the Seasoned Warehouse Agent;
(e) liens, not delinquent, created by statute in
connection with worker's compensation, unemployment insurance, social security
and similar statutory obligations;
(f) liens of mechanics, materialmen, carriers,
warehousemen or other like statutory or common law liens security obligations
incurred in good faith in the ordinary course of business that are not yet due
and payable;
(g) encumbrances consisting of existing or future zoning
restrictions, existing recorded rights-of-way, existing recorded easements,
existing recorded private restrictions or existing or future public
restrictions on the use of real property, none of which materially impairs the
use of such property in the operation of the business for which it is used and
none of which is violated in any material respect by any existing or proposed
structure or land use;
(h) purchase money liens upon or in property of a Company
acquired after the date of this Agreement; provided that (i) no such lien shall
extend to or cover any other property of any Company and (ii) the aggregate
outstanding amount of the indebtedness secured by all such purchase money liens
shall not exceed One Hundred Thousand Dollars ($100,000) at any time; and
(i) existing liens described on SCHEDULE 12.6 to this
Agreement.
"PERSON" OR "PERSON" means any individual, corporation, partnership,
joint venture, association, trust, unincorporated association, joint stock
company, limited liability company, government, municipality, political
subdivision or agency or other entity.
"PLEDGED LOAN" means, on any day, a Mortgage Loan, Land Contract or
REO, any present or future right, title or interest in which is Pledged to the
Seasoned Warehouse Agent, or is intended to be Pledged to the Seasoned
Warehouse Agent, on that day, pursuant to, under or otherwise in respect of
this Agreement, whether or not it is Eligible Seasoned Collateral or has any
Collateral Value. Inclusion of any Mortgage Loan, Land Contract or REO in any
part of the Borrowing Base by Seasoned Warehouse Agent, the Custodian or any
Company shall be prima facie evidence that a Mortgage Loan, Land Contract or
REO is a Pledged Loan.
"PLEDGED LOANS CURTAILMENT REPORT" means a written report from a
Company or a Servicer for a Company to the Seasoned Warehouse Agent reflecting
principal payments and prepayments made on Pledged Loans in the preceding month
and their resulting new principal balances.
"PLEDGED TO THE SEASONED WAREHOUSE AGENT" means mortgaged or pledged
to the Seasoned Warehouse Agent, as (i) mortgagee and secured party for itself
as a Seasoned Warehouse Lender and
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(ii) agent and Representative of the other Seasoned Warehouse Lenders
(whichever of such terms are applicable to the relevant type or types of
Seasoned Warehouse Collateral referred to).
"PRO RATA" means in accordance with the Seasoned Warehouse Lenders'
respective ownership interests in the Borrowings. On any day, each of the
Seasoned Warehouse Lenders will own that portion of the Borrowings, both
principal and accrued interest (and a corresponding undivided interest in all
Seasoned Warehouse Collateral and all rights to Seasoned Warehouse Collateral
proceeds equal to that Seasoned Warehouse Lender's ownership interest in the
Borrowings), that bears the same ratio to the entire advanced and unpaid
principal of the Borrowings then outstanding as that Seasoned Warehouse
Lender's Committed Sum bears to the Aggregate Committed Sum, subject to this
adjustment: if at any time or times, any Seasoned Warehouse Lender fails to
fund any of its Funding Share of any Borrowing and one or more of the other
Seasoned Warehouse Lenders funds it (electively in accordance with the
provisions of SECTION 3.1), then:
(a) the respective ownership interests of both (i) the Seasoned
Warehouse Lender that failed or refused to fund its Funding Share and (ii) the
Seasoned Warehouse Lender (or Seasoned Warehouse Lenders) that funded such
Funding Share, shall be proportionately decreased and increased, respectively,
to the same extent as if their respective Committed Sums were changed in direct
proportion to the unreimbursed balance outstanding from time to time thereafter
of the amount so funded;
(b) the non-funding Seasoned Warehouse Lender's share of all
future distributions of any payments and prepayments on the Notes shall be paid
-- pro rata among them in accordance with their respective unrecovered balances
of such non-funding Seasoned Warehouse Lender's Funding Share -- to the
Seasoned Warehouse Lender(s) that so funded such non-funding Seasoned Warehouse
Lender's Funding Share until all such funding Seasoned Warehouse Lender(s) have
been fully repaid the amount so funded; and
(c) such adjustment shall remain in effect until such time as the
Seasoned Warehouse Lender(s) that funded such Funding Share have been so fully
repaid.
If no other Seasoned Warehouse Lender funds the share of the Seasoned Warehouse
Lender who fails to fund its Funding Share of any Borrowing, then the Pro Rata
ownership interest in the Borrowings of the Seasoned Warehouse Lenders shall be
changed, in that case so that each Seasoned Warehouse Lender's Pro Rata
ownership interest in the Borrowings is equal to the ratio of that Seasoned
Warehouse Lender's aggregate outstanding Borrowings to the aggregate
outstanding Borrowings for all Seasoned Warehouse Lenders. Notwithstanding the
change in the Seasoned Warehouse Lenders' Pro Rata ownership interests in the
Borrowings due to any Seasoned Warehouse Lender's failure to fund its Funding
Share of any Borrowing(s), such failure to fund shall not diminish any Seasoned
Warehouse Lender's Funding Share of subsequent Borrowings.
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"REDEMPTION AMOUNT" means an amount equal to the Collateral Value of
the Collateral being redeemed, as determined by the Seasoned Warehouse Agent.
"RELEASE REQUEST" means a Release Request executed and delivered by
the Companies to the Seasoned Warehouse Agent and the Custodian substantially
in the form of EXHIBIT A.
"REO" means one- to four-family residential real estate owned by one
of the Companies as a result of foreclosure or a deed in lieu of foreclosure of
a Mortgage Loan owned by such Company, together with all VA mortgage guaranty,
FHA mortgage insurance or private mortgage insurance claims and receivables in
respect thereto.
"REPRESENTATIVE" means the Seasoned Warehouse Agent, as representative
of the Seasoned Warehouse Lenders within the meaning of the term
"representative" as used in UCC Section 9.105(13); provided that the Seasoned
Warehouse Agent is not, and shall not be deemed or held to be, a trustee or
fiduciary for the Seasoned Warehouse Lenders, the Companies or any Person
claiming by, through or under any of them.
"REPURCHASED LOAN" means a Mortgage Loan that has been repurchased by
a Company from an investor, or out of a Mortgage Pool, including one on which
Mortgage Securities are based, pursuant to such Company's obligation or right
to do so as Servicer of that Mortgage Loan.
"REQUEST FOR ADVANCE" means a request for a Seasoned Warehouse
Revolving Loan in the form of EXHIBIT B (or in another form approved by the
Seasoned Warehouse Agent) appropriate to the purpose for which such Seasoned
Warehouse Revolving Loan is being requested, duly completed, with all required
attachments and signed by the Borrowers.
"RESPONSIBLE OFFICER" means an officer or other representative of a
Company who has been duly authorized by that Company's Board of Directors (or
by a committee to which, or an officer to whom, the power to so authorize has
been duly delegated by that Company's Board of Directors) to act for and on
behalf of that Company, and as its act and deed, in respect of the relevant
subject matter or circumstances.
"REVOLVING LOAN" means, in this Agreement only, a Seasoned Warehouse
Revolving Loan.
"REVOLVING CREDIT NOTES" means, in this Agreement only, the Seasoned
Warehouse Notes.
"SEASONED WAREHOUSE AGENT" is defined in this Agreement's Preamble.
"SEASONED WAREHOUSE AGENT'S FEE" is defined in SECTION 6.7.
"SEASONED WAREHOUSE BORROWERS" are defined in this Agreement's
Preamble.
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"SEASONED WAREHOUSE COLLATERAL PAPERS" means the Mortgage Note, Land
Contract or papers evidencing or securing any right, title or interest in and
to REO, and all of the other papers related to the establishment of a Pledged
Loan and the creation, perfection and maintenance of its Lien and its Lien's
priority for a particular item of Seasoned Warehouse Collateral, including its
Basic Papers and including any papers evidencing, securing, guaranteeing or
otherwise related to or delivered in connection with any Pledged Loan, in a
form acceptable to the Seasoned Warehouse Agent (including any guaranties, lien
priority agreements, security agreements, mortgages, deeds of trust, collateral
assignments of a Company's interest in underlying obligations or security,
subordination agreements, negative pledge agreements, loan agreements and
title, mortgage, pool and casualty insurance policies), as any such papers may
be supplemented, amended, restated or replaced from time to time.
"SEASONED WAREHOUSE LINE" means the revolving mortgage warehouse line
of credit provided for in this Agreement.
"SEASONED WAREHOUSE LINE BORROWING" means any borrowing or loan under
this Agreement, including any protective advances whether or not requested by
the Borrowers.
"SEASONED WAREHOUSE LINE COMMITTED SUM" means, for any day, the
maximum amount a Seasoned Warehouse Lender is committed on that day to lend to
the Borrowers (or for their account) on a revolving credit basis pursuant to
this Agreement, on its terms and subject to its conditions. From the Effective
Date until the Termination Date or such other date (if any) when all or any of
them is changed by operation of the provisions of any agreement or legal
requirement, the Seasoned Warehouse Line Committed Sums for the Seasoned
Warehouse Lenders are as set forth on SCHEDULE LC, as it may be amended and
restated from time to time.
"SEASONED WAREHOUSE LINE COMMITMENT" means, at any time and for any
Seasoned Warehouse Lender, its commitment to fund its Funding Share of
Borrowings, limited in the aggregate to such Lender's Seasoned Warehouse Line
Committed Sum, as such amounts may be canceled or terminated under this
Agreement.
"SEASONED WAREHOUSE LOAN DOCUMENTS" means (a) this Agreement,
certificates and reports delivered under this Agreement, and exhibits and
schedules to this Agreement, (b) all agreements, documents, and instruments in
favor of the Seasoned Warehouse Agent, the Custodian or the Seasoned Warehouse
Lenders (or the Seasoned Warehouse Agent or Custodian on behalf of the Seasoned
Warehouse Lenders) ever delivered under this Agreement or otherwise delivered
in connection with any of the Obligations and (c) all renewals, extensions, and
restatements of, and amendments and supplements to, any of the foregoing.
"SEASONED WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers'
non-interest bearing demand checking account no. 0010-0000000 to be maintained
with Texas Commerce to be used for (a) the Seasoned Warehouse Agent's deposits
of proceeds of Seasoned Warehouse Revolving Loans made by the Seasoned
Warehouse Lenders to the Borrowers, and payments
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constituting the proceeds of principal from any Collateral; (b) the Seasoned
Warehouse Agent's deposits of principal and interest payments for the repayment
of Seasoned Warehouse Revolving Loans received from the Borrowers or for the
Borrowers' account; and (c) only if and when (i) no Default has occurred unless
it has been either cured by the Borrowers or waived in writing by the Seasoned
Warehouse Agent and (ii) no Event of Default has occurred unless the Seasoned
Warehouse Agent has declared in writing that it has been cured or waived, the
Borrowers' withdrawals of proceeds of Seasoned Warehouse Revolving Loans for
the purposes permitted under this Agreement and the Seasoned Warehouse Agent's
transfer from the Seasoned Warehouse Note Payment/Funding Account to the
Borrowers' own account(s) (or to a controlled disbursement account maintained
by the Borrowers with the Seasoned Warehouse Agent) of proceeds of sales or
other dispositions of released Collateral in excess of the total value of the
Borrowing Base then required. The Seasoned Warehouse Note Payment/Funding
Account is (and shall continuously be) part of the Collateral for the
Obligations. The Seasoned Warehouse Note Payment/Funding Account shall be
subject to setoff by the Seasoned Warehouse Agent in accordance with the
provisions of this Agreement. The Companies shall not have any right to
directly withdraw funds from the Note Payment/Funding Account, but instead such
funds may be withdrawn or paid out only against the order of an authorized
officer of the Seasoned Warehouse Agent, although under the circumstances
described in CLAUSE (C) of the first sentence of this definition and subject to
the conditions specified in that clause, the Seasoned Warehouse Agent shall use
diligent and reasonable efforts to cause Seasoned Warehouse Revolving Loans and
excess Collateral proceeds that are received as therein described and that are
deposited to the Note Payment/Funding Account before 12:30 PM on a Business Day
to be transferred to an account on which the designated Borrower(s) does have
withdrawal order authority on that same Business Day.
"SEASONED WAREHOUSE NOTES" means promissory notes dated the date of
this Agreement, each to be in substantially the form attached as EXHIBIT D,
executed and delivered by the Companies, payable to the order of a Seasoned
Warehouse Lender and in a face principal amount equal to that Seasoned
Warehouse Lender's Committed Sum, and that shall evidence the Companies' joint
and several obligation to repay to the order of that note's Seasoned Warehouse
Lender-payee all Borrowings funded by that Seasoned Warehouse Lender and
outstanding from time to time, plus accrued interest on that principal, and (b)
all renewals, modifications, extensions, increases and rearrangements of such
promissory notes and all substitutions or replacements for them or any of them.
"SEASONED WAREHOUSE REVOLVING LOAN" means a loan made by the Seasoned
Warehouse Lenders and disbursed by the Seasoned Warehouse Agent to the
Borrowers under SECTION 3.1 on a Disbursement Date.
"SEASONED WAREHOUSE SECURITY AGREEMENT" means the security agreement
in the form and content of EXHIBIT E-1 to this Agreement pursuant to which each
Company grants to the Seasoned Warehouse Agent, as agent and Representative of
the Seasoned Warehouse Lenders, a security interest in its Mortgage Loans, Land
Contracts and the other Collateral, as such security agreement may be amended,
supplemented or otherwise modified from time to time.
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"SECURITY AGREEMENT" means, in this Agreement only, the Seasoned
Warehouse Security Agreement.
"SERVICER" means variously a "seller," "servicer," "issuer," or
"lender," as defined or used in the applicable Guide in respect of a Person
having Servicing Rights.
"SERVICING PORTFOLIO" means, at any time, the total unpaid principal
amount of Mortgage Loans serviced by any Company for a fee other than any
Mortgage Loans serviced by the Companies under a subservicing agreement or a
master servicing agreement.
"SERVICING/RESIDUALS AGENT" is defined in the definition of "10/97
Servicing/Residuals Loan Agreement".
"SERVICING/RESIDUALS LENDERS" is defined in the definition of "10/97
Servicing/Residuals Loan Agreement".
"SERVICING/RESIDUALS LOAN AGREEMENT" is defined in the definition of
"10/97 Servicing/Residuals Loan Agreement".
"SERVICING RIGHTS" means all of a Company's right, title and interest
in, to and under the following contracts, arrangements and understandings,
whether now owned or hereafter acquired:
(a) all agreements, instruments, commitments and
documents evidencing such Company's conditional, non-delegable right to service
mortgages owned by FHLMC, and to hold and maintain the related escrow funds, in
exchange for such Company's right to retain certain payments otherwise due to
FHLMC pursuant to the terms of such Company's servicing contract with FHLMC;
(b) all agreements, instruments, commitments and
documents evidencing any rights hereafter acquired by such Company to service
mortgages owned on behalf of GNMA, and to hold and maintain the related escrow
funds, in exchange for certain payments otherwise due to GNMA pursuant to the
terms of such Company's servicing contract with GNMA;
(c) the agreements, instruments, commitments and
documents evidencing any rights hereafter acquired by such Company to service
mortgages owned on behalf of FNMA, and to hold and maintain the related escrow
funds, in exchange for certain payments otherwise due to FNMA pursuant to the
terms of a servicing contract between such Company and FNMA that meets the
following conditions: (i) the specific enumerated loans to which such rights
apply have been identified on a schedule submitted by the Companies and
acknowledged by the Seasoned Warehouse Agent; (ii) a FNMA acknowledgment
agreement with respect to those specifically enumerated loans has been filed
with and executed by FNMA and (iii) the proceeds of any Seasoned Warehouse
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Revolving Loans to be secured thereby shall be used only for one or more of the
purposes specified in such FNMA acknowledgment agreement or otherwise permitted
by FNMA;
(d) all agreements, instruments, commitments and
documents evidencing any rights hereafter acquired by such Company to service
(including servicing, master servicing and subservicing) mortgages owned on
behalf of any residential mortgage loan investor other than FHLMC, GNMA or FNMA
and to hold and maintain the related escrow funds, in exchange for certain
payments otherwise due to such mortgage investor pursuant to the terms of the
mortgage servicing agreement between such Company and such mortgage investor
(or its master servicer); and
(e) all books, ledgers, records, computer software and
programs, instructional manuals and other written or electronic information
used by such Company in connection with the servicing of mortgage loans and
real estate pursuant to the servicing contracts referred to in the preceding
clauses of this definition (but only those servicing contracts with FNMA that
are described in clause (c) above) or any other servicing contract.
"SHIPPING PERIOD" means forty-five (45) calendar days for the
Collateral Papers for any Collateral shipped to or for an investor under the
applicable provisions of the Custody Agreement.
"SOLVENT" means, for any Person, that (a) the fair market value of its
assets exceeds its liabilities, (b) it has sufficient cash flow to enable it to
pay its debts as they mature, and (c) it does not have unreasonably small
capital to conduct its businesses.
"STATED TERMINATION DATE" means January 31, 2000.
"SUBMISSION LIST" means a listing and description in the form of the
appropriate annex to EXHIBIT C of Collateral sent and pledged to the Seasoned
Warehouse Agent by the Companies pursuant to this Agreement.
"SUBORDINATED DEBT" means any Company's Debt on which no principal
payments are due until after the Termination Date and that is both unsecured
and expressly subordinated to the Obligations, in writing and in form and
substance acceptable to the Seasoned Warehouse Agent.
"SUBSIDIARY" means any corporation (whether now existing or hereafter
organized or acquired) in which more than fifty percent (50%) of the
outstanding securities having ordinary voting power for the election of
directors, as of any determination date, shall be owned directly, or indirectly
through one or more Subsidiaries, by a Company.
"SUBLIMIT" means the Foreclosure/REO/Repurchase Loans Sublimit.
"SUBPRIME" is a preface to the term "Mortgage Loan" meaning that such
Mortgage Loan is not eligible for purchase by GNMA, FNMA or FHLMC.
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"TAXES" means any tax (including any U.S. interest equalization tax),
levy, impost, duty, charge or fee, or any deduction or withholding for the same
on or from the payment due under any LIBOR Borrowing, other than income and
franchise taxes of the United States and its political subdivisions.
"TERMINATION DATE" means the first to occur of:
(i) the Stated Termination Date;
(ii) such date, if any, as of which the Borrowers shall permanently
terminate the Seasoned Warehouse Lenders' Commitments pursuant to the
provisions of SECTION 7.3;
(iii) the date to which the maturity of the Seasoned Warehouse
Revolving Loans shall be accelerated by the Seasoned Warehouse Agent on account
of an Event of Default; or
(v) the date to which the maturity of the Seasoned Warehouse
Revolving Loans shall be accelerated, made due or treated as due by operation
of Law.
"TEXAS COMMERCE" is defined in this Agreement's Preamble.
"TRANSFEREE" is defined in SECTION 16.12.
"TRIBUNAL" means any (i) local, state or federal judicial, executive
or legislative instrumentality, (ii) private arbitration board or panel, if
any, having both subject matter jurisdiction and personal jurisdiction over the
relevant subject matter and parties or (iii) central bank.
"UCC" means -- except where the context refers to the Uniform
Commercial Code of another State of the United States of America -- the
Uniform Commercial Code, as amended from time to time, in force in the State of
Texas, as set forth in the Texas Business and Commerce Code, or any successor
code.
"VA" means the U.S. Department of Veterans Affairs.
"VA LOAN" means a Mortgage Loan either (a) full or partial payment of
which is guaranteed by VA under the Servicemen's Readjustment Act of 1944 or
Chapter 37 of Title 38 of the United States Code, (b) for which VA has issued a
current binding and enforceable commitment for such a guaranty, or (c) which is
subject to automatic guarantee by VA, which in each case, the applicable
guaranty, commitment to guarantee, or automatic guaranty is for the maximum
amount permitted by Law.
"WAREHOUSE AGENT" is defined in the definition of "10/97 Warehouse
Credit Agreement."
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"WAREHOUSE COLLATERAL" means collateral securing Debt under the
Warehouse Credit Agreement.
"WAREHOUSE CREDIT AGREEMENT" is defined in the definition of "10/97
Warehouse Credit Agreement."
"WAREHOUSE LENDERS" is defined in the definition of "10/97 Warehouse
Credit Agreement."
"WIRE INSTRUCTIONS" means, for any Person, the information for wire
transfers of funds to that Person, which (until changed by written notice to
all other parties to this Agreement) are stated for (a) the Borrowers and the
Seasoned Warehouse Agent beside their names on the signature pages below, and
(b) each Lender, with its name on SCHEDULE LC.
1.2 Definitions for Interest Calculations. For convenience of
reference, definitions used primarily in provisions relating to calculation and
payment of interest are grouped together in this Section. Except where otherwise
specifically provided, the following terms have the following meanings in this
Agreement and the other Seasoned Warehouse Loan Documents:
"APPLICABLE MARGIN" means, for each Borrowing Price Category in the
table below, the interest margin beside that category:
BORROWING PRICE
CATEGORY APPLICABLE MARGIN
Base Rate 1.000%
LIBOR Rate 3.000%
"BASE RATE" means, for any day, an annual interest rate equal to the
lesser of (i) the sum of the Prime Rate for that day plus the Applicable Margin
for Base Rate Borrowings or (ii) the Ceiling Rate for that day.
"BASE RATE BORROWING" means any Borrowing bearing interest at the Base
Rate.
"BORROWING PRICE CATEGORY" means any category of Borrowing determined
with respect to the applicable interest option, i.e., either a Base Rate
Borrowing or LIBOR Borrowing.
"CEILING RATE" means, on any day, the maximum nonusurious rate of
interest permitted for that day by whichever of applicable federal or Texas law
permits the higher interest rate, stated as a rate per annum. On each day, if
any, that applicable Texas law establishes the Ceiling Rate, the Ceiling Rate
shall be the "weekly ceiling" (as defined in Section 303 of the Texas Finance
Code -- the "TEXAS FINANCE CODE" -- and Chapter 1D of Title 79, Texas Rev. Civ.
Stats. 1925 -- "CHAPTER 1D", as amended, respectively) for that day. The
Seasoned Warehouse Agent and Lenders may
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from time to time, as to current and future balances, implement any other
ceiling under the Texas Finance Code or Chapter 1D by notice to the Borrowers,
if and to the extent permitted by the Texas Finance Code or Chapter 1D.
"CHAPTER 1D" is defined in the definition of "Ceiling Rate"
"FAB PRINCIPAL EQUIVALENT" means that portion of aggregate total of
principal Borrowings outstanding on any day that is both (1) not past due and
(2) less than or equal to the Free Adjusted Balances for that day.
"FAB RATE" means three percent (3%) per annum.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published for
that day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for
the day of such transactions received by the Seasoned Warehouse Agent from
three (3) federal funds brokers of recognized standing selected by the Seasoned
Warehouse Agent. If for any reason the Seasoned Warehouse Agent shall
determine (and its determination shall be conclusive absent manifest error)
that it is unable to ascertain for any reason -- including the Seasoned
Warehouse Agent's inability or failure to obtain sufficient quotations in
accordance with the immediately preceding sentence -- the Federal Funds
Effective Rate for any day, then for each such day that such circumstances
exist, the Federal Funds Effective Rate shall be deemed to be equal to the
Prime Rate for that day minus one percent (-1.0%). Any rate of interest based
on the Federal Funds Effective Rate shall be (a) computed on the basis of a
360-day year applied for the actual number of days for which the principal
amount to which it applies is outstanding and bears interest in accordance with
this Agreement at such rate of interest based on the Federal Funds Effective
Rate (i.e., on the 365/360 -- 366/360 in a leap year -- day basis) and (b)
adjusted as of the effective date of each change in the Federal Funds Effective
Rate.
"FREE ADJUSTED BALANCES" means, for any calendar month, that month's
daily average of all collected balances in all demand deposit accounts
maintained by the Companies (or maintained by the Companies' Affiliates at the
Companies' request) with Texas Commerce during that month (although neither the
Companies nor any of their Affiliates shall have any obligation whatsoever to
maintain any deposits with Texas Commerce) less amounts required and applied
(or to be applied) (a) to satisfy reserve, deposit insurance, special deposit
and Tax requirements (other than for Texas Commerce's general corporate income
or franchise Taxes) allocable to such accounts for that month and (b) to
compensate Texas Commerce for (i) services rendered to the Companies or any of
their Affiliates for that month if and to the extent, if any, that such
services are not separately billed and paid for, or (ii) any agreed reductions
in interest, fees and/or other normal banking charges (including interest, fees
and other amounts due to Texas Commerce under the Servicing/Residuals Loan
Agreement or the Warehouse Credit Agreement) other than interest and fees that
are part of the Obligations to Texas Commerce, with each element calculated in
accordance with Texas
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Commerce's system of allocating reserve and deposit insurance requirements,
charges for services and reductions in other normal banking charges, and as
that system may be changed from time to time without notice.
"LIBOR" means, for any day, the rate of interest per annum which is
equal to the rate per annum (rounded upwards, if necessary, to the nearest
1/16th of 1%) determined by The Chase Manhattan Bank (which is an Affiliate of
Texas Commerce) to be the average of the interest rates available to it in
accordance with the then-existing practices in the interbank market in London,
England at approximately 11:00 a.m. London time for that day for the offering
to The Chase Manhattan Bank by leading dealers in such interbank market for
delivery on that day of U. S. Dollar deposits of One Million Dollars
($1,000,000) each for a one (1) month period. If for any reason Agent cannot
determine that rate for any day, then LIBOR for that day shall be the rate of
interest per annum that is equal to the arithmetic mean of the rates appearing
on the Reuters Screen LIBO Page as of 11:00 a.m., London time, on that date for
the offering by such institutions as are named therein to prime banks in the
Eurodollar interbank market in London, England, for delivery on that day of
U.S. dollar deposits of One Million Dollars ($1,000,000) each for a one (1)
month period. Any rate of interest based on LIBOR shall be (a) computed on the
basis of a year of three hundred sixty (360) days applied for the actual number
of days for which the borrowing to which it applies is outstanding and bears
interest in accordance with this Agreement at such rate of interest based on
LIBOR Rate (i.e., on the 365/360 -- 366/360 in a leap year -- day basis) and
(b) adjusted as of the effective date of each change in LIBOR. The Seasoned
Warehouse Agent's determination of LIBOR for each day shall be conclusive and
binding, absent manifest error.
"LIBOR BORROWING" means any Borrowing that bears interest at the LIBOR
Rate.
"LIBOR RATE" means, for any day, an annual interest rate equal to the
lesser of (i) the sum of LIBOR for that day plus the Applicable LIBOR Margin or
(ii) the Ceiling Rate for that day.
"MAXIMUM AMOUNT" and "MAXIMUM RATE" respectively mean, for any day,
the maximum nonusurious amount of interest that, under applicable Law, the
relevant Lender(s) is permitted to contract for, charge, take, reserve, or
receive on the Obligations, and the Ceiling Rate.
"PAST DUE RATE" means, for any day, an annual interest rate equal to
the lesser of (a) the Prime Rate for that day plus three percent (3%) or (b)
the Ceiling Rate for that day.
"PRIME RATE" means, on any day, the prime rate for that day as
announced by Texas Commerce. The Prime Rate is a reference rate and does not
necessarily represent Texas Commerce's best or lowest rate or a favored rate,
and Texas Commerce disclaims any statement, representation or warranty to the
contrary. Any rate of interest based on the Prime Rate shall be (a) computed
on the basis of a year of three hundred sixty (360) days applied for the actual
number of days for which the borrowing to which it applies is outstanding and
bears interest in accordance with this Agreement at such rate of interest based
on the Prime Rate (i.e., on the 365/360 -- 366/360 in a leap year -- day basis)
and (b) adjusted as of the effective date of each change in the Prime Rate.
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"REUTERS SCREEN LIBO PAGE" means the display designated as page "LIBO"
on the Reuters Monitor Money Rates Service or such other internationally
recognized service as the Seasoned Warehouse Agent shall select from time to
time, or such other page, if any, as shall replace the LIBO page on any such
selected service for the purpose of displaying London interbank offered rates
of major banks.
"STATED RATE" means, for each Borrowing and for any day, the LIBOR
Rate for that day and for the relevant Borrowing Purpose Category, subject to
the following exceptions:
(a) The annual interest rate to be applied to the FAB Principal
Equivalent that is outstanding on any day and not past due is the FAB Rate (and
not the LIBOR Rate or the Base Rate); provided that to the extent (if any) that
the FAB Principal Equivalent exceeds the Texas Commerce Loan Balances, upon the
Seasoned Warehouse Agent's receipt from the Companies of each interest payment
on the FAB Principal Equivalent, the Seasoned Warehouse Agent will pay to the
Lenders other than Texas Commerce (if any), ratably, interest on such excess at
a rate per annum equal to the Applicable Margin for LIBOR Borrowings plus the
Federal Funds Effective Rate, although if doing so would violate Regulation Q,
on demand made by the Seasoned Warehouse Agent (which demand the Seasoned
Warehouse Agent may make on its own initiative and will make upon the request
of any Lender), the Companies agree to pay to the Seasoned Warehouse Agent, as
additional interest on the FAB Principal Equivalent, the amount due to the
Lenders other than Texas Commerce pursuant to this CLAUSE (A) that exceeds the
amount the Seasoned Warehouse Agent can pay them without violating Regulation
Q, so that the Seasoned Warehouse Agent will have the funds to pay the interest
due the other Lender(s) without violating Regulation Q; provided further that
if any such payment by the Borrowers to the Seasoned Warehouse Agent would
exceed the Maximum Amount, then (i) interest on said excess of the FAB
Principal Equivalent over the Texas Commerce Loan Balances will be limited to
the Maximum Amount and (ii) the Companies shall pay to the Seasoned Warehouse
Agent pursuant to the provisions of this CLAUSE (A) only such Maximum Amount.
(b) The Borrowers may elect by written notice to the Seasoned
Warehouse Agent given on any Business Day to have any specified portion of the
principal of the Borrowings that (i) is not past due and (ii) would otherwise
bear interest at the LIBOR Rate, bear interest at the Base Rate, commencing on
the next Business Day (or any later day specified in such notice) and
continuing either until an ending date specified in that notice or, if no
ending date is specified, until the Borrowers give the Seasoned Warehouse
Agent a written notice canceling or appropriately modifying that election.
(c) If on any day the interest rate for any portion(s) of the
Borrowings made applicable by any other provision of this Agreement or any
other papers would exceed the Ceiling Rate for that day, then the Stated Rate
for each affected portion of the Borrowings shall be reset to equal the
respective Ceiling Rates for that day and for each day thereafter until the
total amount of interest accrued at the Stated Rate on the unpaid balance of
each such affected portion of the Borrowings equals the total amount of
interest that would have accrued on it if there were no Ceiling Rate. In no
event will any portion of the Borrowings ever bear interest on any day at a
rate greater
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than the Ceiling Rate for that day nor will Agent ever be obligated to make any
payment that would violate Regulation Q.
For the entire principal of all Borrowings outstanding on any day, "STATED
RATE" means the effective weighted average per annum rate of interest
applicable to the Borrowings for that day, as determined pursuant to the
preceding provisions of this definition.
"TEXAS COMMERCE LOAN BALANCES" means, for any calendar month, the
average aggregate outstanding principal balances of the Seasoned Warehouse Note
held by Texas Commerce.
"TEXAS FINANCE CODE" is defined in the definition of "Ceiling Rate".
1.3 Accounting Terms. All accounting terms not
specifically defined in this Agreement shall be construed in accordance with
GAAP consistent with that applied in preparation of the Financial Statements,
and all financial data pursuant to the Agreement shall be prepared in
accordance with such principles.
1.4 Singular and Plural. Where the context
herein requires, the singular number shall be deemed to include the plural, the
masculine gender shall include the feminine and neuter genders, and vice versa.
1.5 Certain Matters of Construction. The terms
"herein," "hereof," "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular section, paragraph or
subdivision. Except where expressly otherwise stated, references in this
Agreement to (i) Sections, Exhibits and Schedules are to Sections, Exhibits and
Schedules of and to this Agreement and (ii) time are to the time in Houston,
Texas. The section titles, table of contents and list of exhibits appear as a
matter of convenience only and shall not affect the interpretation of this
Agreement. Wherever the word "including" or any of its correlatives appears,
unless the context clearly requires otherwise, it shall be read as if written,
"including, but without limiting the generality of the foregoing statement,
subject or concept". Any notice or document to be delivered to, or by, any
Borrower pursuant to this Agreement or any other Loan Document, including any
request for borrowing, shall be deemed properly delivered if delivered to, or
by, as the case may be, the chief executive or chief financial officer of
MCAFC, and, for purposes of this Agreement and the other Loan Documents, each
Borrower hereby appoints and designates each such officer as its agent, with
full power and authority to bind such Borrower.
2. MULTIPLE COMPANIES; MCAI-OHIO'S COLLATERAL
2.1 Companies. Each representation and warranty in the
Seasoned Warehouse Loan Documents by a Company is deemed to be its separate
representation and warranty and the joint and several representation and
warranty of all Companies. Each covenant and agreement by any Company under
the Seasoned Warehouse Loan Documents is the joint and several covenant and
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agreement of all Companies. Any communication under the Seasoned Warehouse
Loan Documents to any one Company is deemed to have been concurrently received
by each other Company.
2.2 Basis for Structure. The Companies that execute this Agreement (the
Borrowers and, in the capacity and for the purposes stated in the paragraph
immediately above its signature block below, MCAI-Ohio) desire to utilize their
borrowing potential on a combined basis to the same extent possible if they were
merged into a single corporate entity (although MCAI-Ohio has no right to borrow
hereunder). Each such Company has determined that it will specifically and
materially benefit from all Borrowings. The Companies intend, and Agent and
Lenders have required, that all Companies jointly and severally execute and
deliver this Agreement, the Notes, and certain other Seasoned Warehouse Loan
Documents and -- although MCAI-Ohio cannot borrow hereunder, as aforesaid --
MCAI-Ohio joins in this Agreement so that Collateral owned by MCAI-Ohio
(provided that it would otherwise qualify as Eligible Seasoned Collateral) may
be considered Eligible Seasoned Collateral and so that its value may be included
in any relevant Borrowing Base. The Companies, including MCAI-Ohio, have
requested and bargained for the structure and terms of, and security for, all
Borrowings.
2.3 Joint and Several Obligation. Each Company irrevocably and
unconditionally agrees (i) that it is jointly and severally liable to the
Seasoned Warehouse Agent, the Custodian and the Seasoned Warehouse Lenders for
full payment and performance of the Obligations, including all obligations of
the Companies under the Seasoned Warehouse Loan Documents, (ii) to fully pay and
perform the Obligations and all of those obligations of the Companies, and (iii)
to INDEMNIFY, AS A PRIMARY OBLIGOR, THE SEASONED WAREHOUSE AGENT, THE CUSTODIAN
AND EACH SEASONED WAREHOUSE LENDER AGAINST ANY LOSS THE SEASONED WAREHOUSE
AGENT, THE CUSTODIAN OR ANY SEASONED WAREHOUSE LENDER MAY INCUR AS A RESULT OF
ANY OBLIGATIONS OF ANY COMPANY BEING OR BECOMING VOID, VOIDABLE, UNENFORCEABLE
OR INEFFECTIVE FOR ANY REASON WHATSOEVER, WHETHER KNOWN TO THE SEASONED
WAREHOUSE AGENT, THE CUSTODIAN, ANY SEASONED WAREHOUSE LENDER OR ANY OTHER
PERSON, THE AMOUNT OF THAT LOSS BEING THE AMOUNT WHICH THE SEASONED WAREHOUSE
AGENT, THE CUSTODIAN OR THAT SEASONED WAREHOUSE LENDER, AS THE CASE MAY BE,
WOULD OTHERWISE HAVE BEEN ENTITLED TO RECOVER FROM ANY COMPANY. THIS INDEMNITY
SHALL SURVIVE THE PAYMENT AND PERFORMANCE OF THE OBLIGATIONS AND THE TERMINATION
OF THE SEASONED WAREHOUSE LOAN DOCUMENTS. With respect to its obligation to
repay Borrowings and to pay other obligations of another Company or Companies to
the Seasoned Warehouse Lenders, each Company agrees to the terms set forth in
SCHEDULE 2.3.
2.4 Contribution Rights. The Companies each intend that their joint and
several obligations under the Seasoned Warehouse Loan Documents, and that the
Liens therein granted in their Collateral, are not subject to challenge or
repudiation on any basis. Therefore, as of the date any transfer -- as that
term is defined in Bankruptcy Code Section 101(54) -- is deemed to occur under
the Seasoned Warehouse Loan Documents, each Company's liabilities under the
Seasoned Warehouse Loan Documents (including, in MCAI-Ohio's case, the
liabilities secured by its Collateral) and all of such Company's other
liabilities, calculated in each case to the full extent of that Company's
probable net exposure when and if those liabilities become absolute and mature
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("DATED LIABILITIES"), are intended by that Company to be less than the fair
valuation of all of its assets as of that date ("DATED ASSETS"). To that end,
each Company (i) grants to and recognizes in each other Company ratable rights
of subrogation and contribution in the amount, if any, by which the granting
Company's Dated Assets (but for the total subrogation and contribution in its
favor under this Section) would exceed the granting Company's Dated
Liabilities, and (ii) acknowledges receipt of and recognizes its ratable rights
to subrogation and contribution from each such other Company in the amount that
the other such Company's Dated Assets (but for the total subrogation and
contribution in its favor under this section) would exceed the other such
Company's Dated Liabilities. Each Company will recognize rights of subrogation
and contribution at least equal to its obligations under the Seasoned
Warehouse Loan Documents, including, in MCAI-Ohio's case, the obligations
secured by its Collateral. It is a material objective of this Section that
each Company recognize rights to subrogation and contribution rather than be
deemed not to be Solvent by reasons of an arbitrary interpretation of its joint
and several obligations under the Seasoned Warehouse Loan Documents.
2.5 MCAI-Ohio's Consent to Pledge of its Collateral by MCAFC; the
Borrowers' Promise to Make Loan Proceeds Proportionately Available to MCAI-Ohio;
Further Assurances Concerning Collateral. MCAI-Ohio hereby irrevocably appoints
MCAFC as its agent to pledge to the Seasoned Warehouse Agent, as agent and
Representative of the Seasoned Warehouse Lenders, all of MCAI-Ohio's right,
title and interest in and to any and all Collateral from time to time pledged to
secure or otherwise securing the Obligations, or any portion of them, and agrees
that MCAFC's pledge of any thereof from time to time so made to the Seasoned
Warehouse Agent shall automatically constitute the pledge of all of MCAI-Ohio's
right, title and interest therein, whether or not that (or that MCAFC is acting
as agent for MCAI-Ohio) is stated in (or in connection with) such pledge, to the
exact same effect as if MCAI-Ohio had itself pledged such Collateral, and (iii)
acknowledges and agrees that MCAI-Ohio has received and will receive reasonably
equivalent value for all such past, concurrent and future pledges thereof by
reason of the Borrowers' joint and several promise and agreement to and with
MCAI-Ohio, hereby made and confirmed, to make that share of the proceeds of each
Borrowing (or an equal amount in cash or cash equivalents) which is
proportionate to the value of MCAI-Ohio's Collateral in the Borrowing Base
against which such Borrowing is made, available to MCAI-Ohio (either by
relending such proceeds, or by MCAFC's lending or contributing as new cash
capital, an equal amount of cash or cash equivalents, to MCAI-Ohio) before, at
or within a reasonable time after such Borrowing shall have been funded. In
furtherance of the foregoing provisions of this Section, MCAFC and MCAI-Ohio
hereby agree to (i) perform, or cause to be performed, such acts and (ii) duly
authorize, execute, acknowledge, deliver, file and record (or cause such actions
to be taken with respect to) such financing statements, assignments, security
agreements, deeds of trust and mortgages, and supplements, modifications or
amendments to any of them, and such other papers as the Seasoned Warehouse Agent
or the Custodian may reasonably request from time to time in order to establish
and preserve the priority of, perfect and protect the Liens granted or intended
to be granted to the Seasoned Warehouse Agent (as agent and Representative of
the Seasoned Warehouse Lenders) in and to any and all such Collateral and to
preserve and protect the Seasoned Warehouse Agent's rights in respect of all
present and future Collateral for the Obligations.
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3. SEASONED WAREHOUSE LENDERS' COMMITMENTS
3.1 Revolving Credit Commitments. Subject to the terms
and conditions of this Agreement, and provided no Default or Event of Default
has occurred that the Seasoned Warehouse Agent has not declared in writing to
have been cured or waived (or, if one has occurred and not been so declared
cured or waived, if all of the Seasoned Warehouse Lenders, in their sole
discretion and with or without waiving such Default or Event of Default, have
elected in writing that lending under this Agreement shall continue
nonetheless) the Lenders agree to make Seasoned Warehouse Revolving Loans to
the Borrowers in such amounts as the Borrowers shall request pursuant to
SECTION 4 at any time from the date of this Agreement until the Termination
Date, up to an aggregate principal amount outstanding at any time of not more
than the Aggregate Committed Sum or the Borrowing Base, whichever is less, to
refinance the Companies' Debt secured by Eligible Seasoned Collateral that is
currently held by Texas Commerce and to finance the Companies' other Eligible
Seasoned Collateral from time to time acquired or, due to aging, that has
ceased to be "Eligible Collateral" under the Warehouse Credit Agreement. On
any day before the Termination Date, the Borrowers may borrow, repay and
(having repaid) reborrow Seasoned Warehouse Revolving Loans up to the lesser of
the Borrowing Base or the Aggregate Committed Sum on that day; provided that
the principal amount of each Seasoned Warehouse Revolving Loan must be in an
amount not less than Fifty Thousand Dollars ($50,000). The Commitments, and
the fractions to be applied to determine the respective Funding Shares of each
Seasoned Warehouse Revolving Loan, of the Lenders that are parties to this
Agreement on the Effective Date are set forth on SCHEDULE LC, and shall remain
applicable for each day until SCHEDULE LC is amended or restated from time to
time pursuant to this Agreement. Upon the joinder of additional Seasoned
Warehouse Lender(s), if any, or adjustments of Commitments and Funding Shares
between or among existing Seasoned Warehouse Lenders made in accordance with
this Agreement, the parties agree to approve in writing revised and updated
versions of SCHEDULE LC. Each Seasoned Warehouse Lender shall be obligated to
fund only that Seasoned Warehouse Lender's own Funding Share of any Seasoned
Warehouse Revolving Loan requested, and no Seasoned Warehouse Lender shall be
obligated to the Borrowers, any other Seasoned Warehouse Lender or the Seasoned
Warehouse Agent to fund a greater share of any Seasoned Warehouse Revolving
Loan. No Seasoned Warehouse Lender shall be excused from funding its
applicable Funding Share of any Seasoned Warehouse Revolving Loan merely
because any other Seasoned Warehouse Lender has failed or refused to fund its
Funding Share of that or any other Seasoned Warehouse Revolving Loan. If any
Seasoned Warehouse Lender fails to fund its Funding Share of any Seasoned
Warehouse Revolving Loan, the other Seasoned Warehouse Lenders who are willing
to do so shall have the right (but no obligation) to do so in the proportion
that the Warehouse Commitment of each bears to the sum of the Warehouse
Commitments of all Seasoned Warehouse Lenders that have funded (or are funding)
their own Funding Shares of that Seasoned Warehouse Revolving Loan and that are
willing to fund part of the Funding Share of such Seasoned Warehouse Lender
that so failed to fund. Regardless of whether the other Seasoned Warehouse
Lenders fund the Funding Share(s) of the Seasoned Warehouse Lender who has
failed to fund, the respective ownership interests of the Seasoned Warehouse
Lenders in the Seasoned Warehouse Revolving Loans shall be adjusted as provided
in the definition of "Pro Rata". All Seasoned
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Warehouse Revolving Loans under this Agreement shall constitute a single debt
and all of the Collateral shall be security for all of the Seasoned Warehouse
Notes and the Obligations. The Seasoned Warehouse Lenders shall not be
obligated to make (or the Seasoned Warehouse Agent to disburse) any Seasoned
Warehouse Revolving Loan if any of the conditions precedent set forth in
SECTION 9 shall not have been satisfied, or (ii) such proposed Seasoned
Warehouse Revolving Loan would cause the aggregate unpaid principal amount of
the Seasoned Warehouse Revolving Loans outstanding under this Agreement to
exceed the lesser of the Aggregate Committed Sum or the Borrowing Base as of
the relevant Disbursement Date. The Borrowers may request funding of (x)
Seasoned Warehouse Revolving Loans no more frequently than daily and then only
coincident with a determination (or redetermination) of the market value of all
Eligible Seasoned Collateral then Pledged to the Seasoned Warehouse Agent by
the Companies (including any Eligible Seasoned Collateral newly pledged in
connection with the requested Seasoned Warehouse Revolving Loan.)
Notwithstanding anything contained herein to the contrary, the Warehouse Agent
may honor the Borrowers' request for a Warehouse Revolving Loan in the absence
of strict satisfaction of the conditions precedent set forth in SECTION 9.2
relating to the delivery of documents, provided that the Companies have
substantially complied with such conditions and the Warehouse Agent, in its
reasonable discretion, determines that would be prudent and in the Warehouse
Lenders' interest to do so. If the unpaid balance of the Seasoned Warehouse
Revolving Loans should exceed the Borrowing Base or any other limitation set
forth in this Agreement, such Seasoned Warehouse Revolving Loans shall
nevertheless constitute part of the Obligations that is secured by the
Collateral and entitled to all benefits thereof.
3.2 Expiration or Termination of the Commitments.
Unless extended in writing or terminated earlier in accordance with this
Agreement, the Seasoned Warehouse Lenders' Commitments to lend under this
Agreement and the other Seasoned Warehouse Loan Documents shall automatically
expire at the close of business on the Termination Date, without any
requirement for notice or any other action by the Seasoned Warehouse Agent, any
of the Seasoned Warehouse Lenders or any other Person.
3.3 Limitations on Borrowings. The Borrowers'
rights to borrow hereunder are subject to the following limitations:
- The total outstanding principal amount of the Seasoned
Warehouse Revolving Loans may never exceed the lesser of (i)
the Aggregate Committed Sum or (ii) the Borrowing Base.
- The total outstanding principal amount of the Seasoned
Warehouse Revolving Loans that are Foreclosure/REO/Repurchase
Loans Borrowings may never exceed the lesser of (i) the
Foreclosure/REO/Repurchase Loans Sublimit or (ii) the portion
of the Borrowing Base attributable to Eligible
Foreclosure/REO/Repurchase Collateral.
- No Seasoned Warehouse Lender's direct or indirect portion of
the total outstanding principal amount of the Seasoned
Warehouse Revolving Loans may ever exceed
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either (i) its Commitment or (ii) the portion of the sum of
its Funding Share of the total outstanding principal amount of
the Seasoned Warehouse Revolving Loans.
4. BORROWING PROCEDURES.
4.1 Request for Advance to Refinance Certain Existing Debt. To
request a Revolving Loan to fund the initial advance under this Agreement to
refinance the Borrowers' existing seasoned warehouse debt to Texas Commerce
(only), the Borrowers shall give the Seasoned Warehouse Agent a Request for
Advance for the proposed refinancing as soon as practicable prior to the
proposed Disbursement Date for such Revolving Loan. For such refinancing, the
Request for Advance shall specify the principal amount of the proposed Revolving
Loan and its proposed Disbursement Date. Notwithstanding anything contained or
implied in such Request for Advance, the amount of the proposed Revolving Loan
shall not exceed the Collateral Value of the Collateral to be Pledged to the
Seasoned Warehouse Agent and in which the Seasoned Warehouse Agent (as agent and
Representative of the Seasoned Warehouse Lenders) will acquire a first and prior
perfected security interest immediately and automatically upon funding to Texas
Commerce of the payoff amount of the Borrowers' existing financing of Eligible
Seasoned Collateral by Texas Commerce.
4.2 Requests for Revolving Loans for Additional Eligible
Seasoned Collateral. To request Revolving Loans to finance additional Eligible
Seasoned Collateral (as opposed to refinancing Debt secured by existing Eligible
Seasoned Collateral held by Texas Commerce), the Borrowers shall give the
Seasoned Warehouse Agent a Request for Advance as soon as practicable before the
proposed Disbursement Date for the Revolving Loan to finance such additional
Eligible Seasoned Collateral. For each grouping of additional Eligible Seasoned
Collateral, such Request for Advance shall be accompanied by a Submission List
listing in reasonable detail the additional Eligible Seasoned Collateral and
shall specify the principal amount and the proposed Disbursement Date for such
Revolving Loan and the Company's deposit account with the Seasoned Warehouse
Agent into which its proceeds are to be deposited. Notwithstanding anything
contained or implied in any such Request for Advance requesting a Revolving Loan
to finance additional Eligible Seasoned Collateral, such Revolving Loan shall
not be disbursed before (i) the Business Day on which the new Collateral is
released from all other Liens against it except only the Lender Lien created by
its being Pledged to the Seasoned Warehouse Agent and (ii) the Borrowers have
demonstrated to the Seasoned Warehouse Agent that such new Collateral
constitutes Eligible Seasoned Collateral.
4.3 Request for Supplemental Borrowing Against Eligible
Seasoned Collateral's Collateral Value. In addition to requests for borrowings
made pursuant to SECTION 4.2, but subject to the satisfaction of the conditions
set forth in SECTION 9, the Borrowers may from time to time request a Revolving
Loan in an amount not to exceed the excess (if any) of (x) the Borrowing Base --
including the Collateral Value of Eligible Seasoned Collateral already in the
Borrowing Base and any additional Eligible Seasoned Collateral newly Pledged to
the Seasoned Warehouse Agent by a Company -- over (y) the aggregate principal
of the Seasoned Warehouse Revolving Loans outstanding. Such Request for
Advance shall be reasonably satisfactory to the Seasoned Warehouse
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Agent and -- categorized by applicable portions of the Borrowing Base (i.e.,
for either (i) Foreclosure/REO Repurchase Loans or (ii) other Eligible
Warehouse Collateral) -- shall specify:
(a) the portions of the Borrowing Base allocable to the two
different classes of Collateral (i.e., (i) Foreclosure/REO Repurchase Collateral
and (ii) other Eligible Warehouse Collateral)
(b) the aggregate Collateral Values comprising the Borrowing
Base;
(c) the sum of the existing Borrowings outstanding that are
supported by the Borrowing Base;
(d) the amount of the excess of (b) over (c); and
(e) the principal amount of the proposed Revolving Loan, its
proposed Disbursement Date (which shall not be earlier than the Business Day
on which the Seasoned Warehouse Agent receives such request before 1:00 PM) and
the Borrowers' deposit account with the Seasoned Warehouse Agent into which the
proceeds of such Revolving Loan are to be deposited.
4.4 Requests for Advance Due by 1:00 PM. A separate Request for
Advance shall be made for each Revolving Loan. On each Business Day that (i)
the Seasoned Warehouse Agent shall have received a Request for Advance before
1:00 PM (all times are Houston times) and (ii) if additional Collateral is
required to support such Revolving Loan pursuant to SECTION 4.5, such
additional Collateral shall have been delivered to the Seasoned Warehouse
Agent, Texas Commerce shall give notice to each Lender of that requested
Revolving Loan and that Lender's Funding Share of the requested Revolving Loan
before 2:00 PM on that same day, and each Lender shall cause its Funding Share
thereof to be transferred to the Seasoned Warehouse Agent within two (2) hours
after receiving such notice from the Seasoned Warehouse Agent or by 4:00 PM,
whichever is later, so that the Seasoned Warehouse Agent receives it in good
collected Houston funds on that same Business Day, and the Seasoned Warehouse
Agent shall deposit those shares of such Revolving Loan into the Note
Payment/Funding Account when received and shall disburse an amount equal
thereto into the Borrowers' designated deposit account with the Seasoned
Warehouse Agent.
4.5 New Collateral (If Any) Due by 11:00 AM on the Day of a Requested
Revolving Loan. Unless the Borrowing Base already has sufficient value to
support both (i) the requested Revolving Loan and (ii) all other outstanding
Revolving Loans, by 11:00 AM on the Business Day on which the Borrowers request
that a Revolving Loan be funded, the Borrowers shall (1) deliver to the
Seasoned Warehouse Agent one or more signed Submission Lists describing the
additional Collateral then being Pledged to the Seasoned Warehouse Agent and
(2) cause such additional Collateral to be delivered to the Seasoned Warehouse
Agent. If, after giving effect to a requested Revolving Loan, the outstanding
Revolving Loans would exceed the Borrowing Base, or if the Seasoned Warehouse
Agent determines that any Collateral submitted to it is incomplete, deficient
or defective in any material respect, then:
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(a) the Seasoned Warehouse Agent shall withhold the requested
Revolving Loan -- or so much thereof as requires the Collateral Value of the
Collateral whose Submission List description, additional Collateral Papers or
other evidence submitted are incomplete or incorrect in any material respect --
until the Borrowers shall have demonstrated to the Warehouse Agent's reasonable
satisfaction that the relevant Submission Lists and all required additional
Collateral Papers and other evidence submitted, are in fact not (or are no
longer) incomplete or incorrect in any material respect; or
(b) in the case of any Borrowing Base insufficiency, unless the
Borrowers instruct the Seasoned Warehouse Agent in writing not to disburse any
of the requested Revolving Loan, and subject to the provisions and limitations
of SECTION 3.1, the Seasoned Warehouse Agent will disburse such lesser amount(s)
as the Seasoned Warehouse Agent shall determine is supported by the Borrowing
Base and will notify the Borrowers of such insufficiency, including the Seasoned
Warehouse Agent's calculation of such insufficiency set forth in reasonable
detail.
4.6 If a Request for Advance or New Collateral Papers are
Received Late; Waiver of Claim for Any Late Funding. If either a Request for
Advance or any additional Collateral is submitted late, Texas Commerce will use
reasonable efforts to disburse the requested Revolving Loan on the same day it
is requested (provided such additional Collateral has been submitted), although
neither the Borrowers nor any other Person shall have any claim or cause of
action against the Seasoned Warehouse Agent or any of the Lenders if that
funding (or any other funding) does not occur on the same day it is requested.
5. THE REVOLVING CREDIT NOTES
To evidence the Seasoned Warehouse Revolving Loans to be made by the
Lenders pursuant to this Agreement, the Borrowers agree to execute and deliver
to each Lender a Seasoned Warehouse Note in the form of EXHIBIT D, in a face
principal amount equal to that Lender's Warehouse Committed Sum and dated the
Effective Date (or dated with such other appropriate date as shall be agreed
upon by the Borrowers, that Lender and the Seasoned Warehouse Agent if the
effective date of that Lender's joinder in this Agreement is after the
Effective Date). If any Lender's Warehouse Committed Sum shall be increased
for any reason after the Borrowers shall have issued to that Lender its
Seasoned Warehouse Note, then the Borrowers agree to execute and deliver to
that Lender upon its request a renewal Seasoned Warehouse Note in a face
principal amount equal to the portion of that Lender's new Warehouse Committed
Sum and dated the same date that such applicable Warehouse Committed Sum change
becomes (or became) effective.
6. INTEREST RATES; ADDITIONAL COSTS AND FEES
6.1 Interest. All Seasoned Warehouse Revolving Loan principal
outstanding and not past due on any day shall bear interest for that day at the
Stated Rate. All past due principal, interest, fees or other sums shall bear
interest at the Past Due Rate from their respective due dates until paid, or
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at such lesser rate (if any) -- although not less than the Stated Rate -- as
the Seasoned Warehouse Agent (unless otherwise directed by the Majority
Seasoned Warehouse Lenders) shall elect to be applicable for any one or more
days of such period. Without duplication, from the earlier of the Termination
Date or the date of the occurrence (if any) of an Event of Default described in
SECTION 13.1(h), the outstanding principal amount of all advanced and unpaid
Revolving Loans shall bear interest at the Past Due Rate, or at such lesser
rate (if any) -- although not less than the Stated Rate -- as the Seasoned
Warehouse Agent (unless otherwise directed by the Majority Seasoned Warehouse
Lenders) shall elect to be applicable for any one or more days of such period.
All interest rate determinations and calculations by the Seasoned Warehouse
Agent, absent manifest error, shall be conclusive.
6.2 Maximum Rate. Regardless of any Loan Document provision, neither
the Lenders nor the Seasoned Warehouse Agent are entitled to contract for,
charge, take, reserve, receive or apply, as interest on all or any of the
Obligations, any amount in excess of the Maximum Rate. If the Seasoned
Warehouse Agent or the Lenders ever do so, then any excess will be treated as a
partial prepayment of principal, and any remaining excess will be refunded to
the Borrowers. In determining if the interest paid or payable exceeds the
Maximum Rate, the Companies and the Seasoned Warehouse Agent and the Lenders
shall, to the extent lawful, (i) treat all Borrowings as a single extension of
credit, (ii) characterize any nonprincipal payment as an expense, fee, or
premium rather than as interest, (iii) exclude voluntary prepayments and their
effects and (iv) amortize, prorate, allocate, and spread the total amount of
interest throughout the full contemplated term of the Obligations. However, if
the Obligations are paid in full before the end of that full contemplated term
and the interest received for the Obligations' actual period of existence
exceeds the Maximum Amount, then the Lenders shall refund any excess without
being subject to any penalties provided by any Laws.
6.3 Additional Costs. This section shall survive the full satisfaction
of the Obligations and termination of the Loan Documents, and the release of all
Lender Liens.
(a) Rate of Return Maintenance Covenant. If at any time after
the date of this Agreement, any Seasoned Warehouse Lender that is a bank
determines that (a) any applicable law, rule or regulation regarding capital
adequacy has been adopted or changed since July 1, 1997 or (b) its
interpretation or administration by any Governmental Authority, central bank
or comparable agency has changed since July 1, 1997 and determines that such
change or such Seasoned Warehouse Lender's compliance with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such Governmental Authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on that Seasoned
Warehouse Lender's capital as a consequence of its obligations under this
Agreement or any of the other Seasoned Warehouse Loan Documents to a level
below the rate of return which that Seasoned Warehouse Lender would have
achieved but for such adoption, change or compliance (taking into
consideration that Seasoned Warehouse Lender's own capital adequacy policies)
by an amount that Seasoned Warehouse Lender deems to be material, then upon
notice to the Borrowers by that Seasoned Warehouse Lender or the Seasoned
Warehouse Agent summarizing the facts triggering the increase and calculations
of the
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increase, the Companies jointly and severally promise to pay to the order of
the Seasoned Warehouse Agent, for the account of such Seasoned Warehouse
Lender, such additional amount or amounts as will provide that Seasoned
Warehouse Lender with a rate of return on its capital equal to that which would
have been achieved but for such adoption, change or compliance (taking into
consideration that Seasoned Warehouse Lender's own capital adequacy policies);
provided that the amount of such payment shall be absolutely limited to that
amount which, when added to all other sums which constitute interest under
applicable law, produces an interest rate that does not exceed the Ceiling Rate
for the full term that the Seasoned Warehouse Revolving Loans are outstanding.
In determining the amount or amounts required to be paid to achieve that
result, such Seasoned Warehouse Lender may employ such assumptions and make
such allocations of costs and expenses fairly applicable to the Seasoned
Warehouse Revolving Loans as that Seasoned Warehouse Lender reasonably elects
and may use any reasonable averaging and attribution method. Any Seasoned
Warehouse Lender's certificate setting forth the amount or amounts necessary to
compensate such Seasoned Warehouse Lender as specified above shall be given by
the Seasoned Warehouse Agent to the Companies as soon as practicable after such
Seasoned Warehouse Lender has made such determination and shall be conclusive
and binding, absent manifest error. The Companies shall pay the Seasoned
Warehouse Agent, for the account of such Seasoned Warehouse Lender, the amount
shown as due on any such certificate within fifteen (15) days after the
Seasoned Warehouse Agent gives it.
(b) Taxes. Any Taxes payable by the Seasoned Warehouse Agent or
any Seasoned Warehouse Lender or ruled (by a Tribunal) payable by the Seasoned
Warehouse Agent or any Seasoned Warehouse Lender in respect of any Loan Document
shall, if permitted by Law and if deemed material by the affected Seasoned
Warehouse Lender (which may, in determining the material nature of the amount
payable, utilize reasonable assumptions and allocations of costs and expenses
and use any reasonable averaging or attribution method), be paid by the
Companies, together with interest and penalties, if any, accrued as a result of
any Company's delay in paying them (except for Taxes payable on the overall net
income of such Seasoned Warehouse Lender by the jurisdiction where its office is
located and except for interest and penalties incurred as a result of the gross
negligence or willful misconduct of such Seasoned Warehouse Lender). The
Seasoned Warehouse Agent shall notify the Companies and deliver to the Companies
a certificate prepared by the affected Seasoned Warehouse Lender stating in
reasonable detail the calculation of the amount of payable Taxes (which
certificate shall be conclusive and binding absent manifest error), and the
Companies shall pay that amount to the Seasoned Warehouse Agent (for the account
of the affected Seasoned Warehouse Lender(s) within ten (10) days after demand.
If any affected Seasoned Warehouse Lender subsequently receives a refund of the
Taxes paid to it by the Companies, then that Seasoned Warehouse Lender shall
promptly pay the refund to the Seasoned Warehouse Agent, who shall pay it over
to the Companies.
6.4 Change in Laws. If any change, after the date of this Agreement,
in any present Law or any future Law shall make it unlawful for any Seasoned
Warehouse Lender to make or maintain LIBOR Borrowings, then the Seasoned
Warehouse Agent shall promptly notify the Borrowers and (a) as to undisbursed
funds, any requested Revolving Loan shall be made as a Base Rate Borrowing, (b)
any outstanding Revolving Loan shall be immediately converted to a Base Rate
Borrowing or
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if any conversion will not resolve the unlawfulness, the Companies shall
promptly prepay the Revolving Loan, without penalty (although the Borrowers may
immediately reborrow it as a Base Rate Borrowing in accordance with -- and if
the Borrowers are qualified to do so under -- the other provisions of this
Agreement, unless that would be unlawful).
6.5 Chief Credit Officer's Certificate Conclusive. Should any issue
ever arise in any forum or under any circumstances as to any of the matters
referred to in this Section, a certificate of Texas Commerce's chief credit
officer stating LIBOR, the Prime Rate, the Free Adjusted Balances, the FAB
Principal Equivalent, the Federal Funds Effective Rate, the Past Due Rate, the
Stated Rate and/or the Stated Rate(s) applicable to one or more specified
portions of the Revolving Loans that are or were in effect from time to time,
absent manifest error, shall be conclusive.
6.6 Facility Fee. The Companies agree to pay to the Seasoned
Warehouse Agent, for the account of the Seasoned Warehouse Lenders (and for the
Seasoned Warehouse Agent to distribute to them), ratably according to their
respective Committed Sums, a cash facility fee (the "FACILITY FEE") in an amount
equal to one percent (1%) per annum on the Aggregate Committed Sum (as it may be
changed from time to time pursuant to the provisions of SECTION 7.3) for the
period from the Effective Date to the Termination Date. The Facility Fee shall
be due and payable annually in advance on the Effective Date and on each
anniversary (if any) of the Effective Date before the Termination Date. The
Facility Fee is not compensation for the use or forbearance or detention of
money, although this Section (as well as every other Section of this Agreement)
is subject to the provisions of SECTION 16.2. Each calculation by the Seasoned
Warehouse Agent of the amount of the Facility Fee shall be conclusive, absent
manifest error. The Borrowers shall pay to the Seasoned Warehouse Agent (for
the account of the Seasoned Warehouse Lenders) on demand any deficiency in
payment by the Borrowers of the Facility Fee.
6.7 Agent's Fee. The Borrowers agree to pay to the Seasoned Warehouse
Agent an agent's fee (the "AGENT'S FEE") as provided for in the letter agreement
between the Borrowers and the Seasoned Warehouse Agent executed substantially
concurrently with this Agreement, as such letter agreement may be supplemented
or amended from time to time. (Unless and until there are any Seasoned
Warehouse Lenders in addition to Texas Commerce, there will be no Agent's Fee.)
6.8 Custodian's Fee. The Borrowers agree to pay to the Seasoned
Warehouse Agent a fee for its services as the Custodian (the "CUSTODIAN'S FEE")
as provided for in the letter agreement between the Borrowers and the Seasoned
Warehouse Agent executed substantially concurrently with this Agreement, as such
letter agreement may be supplemented or amended from time to time.
6.9 Other Fees and Expenses. Upon demand of the Seasoned Warehouse
Agent from time to time, the Borrowers shall pay to the Seasoned Warehouse Agent
the amount of the expenses (including attorneys' fees, whether of inside or
outside counsel, and disbursements) incurred by the Seasoned Warehouse Agent and
the Seasoned Warehouse Lenders from time to time which are to be paid for or
reimbursed by the Borrowers under SECTIONS 15.1 AND 15.3.
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7. INTEREST AND PRINCIPAL PAYMENTS; DISTRIBUTIONS
7.1 Payments.
(a) Interest and Other Obligations. Unless
otherwise provided in this Agreement, the Borrowers shall jointly and
severally pay the Obligations in accordance with the following table:
Obligation Payable
---------------------------------------------------------------------------------------------------------
Unpaid interest on each Seasoned Warehouse Revolving On (a) the fifteenth (15th) day of each Calendar
Loan except interest at the Past Due Rate and Month following the Calendar Month in which it
interest required to be paid pursuant to SECTION 7.3 accrued through the last day of that accrual month
and (b) on the Termination Date
---------------------------------------------------------------------------------------------------------
Unpaid interest accrued at the Past Due Rate On demand as it accrues
---------------------------------------------------------------------------------------------------------
Unpaid interest due pursuant to any Aggregate When due as provided in SECTION 7.3
Committed Sum reduction made pursuant to SECTION 7.3
---------------------------------------------------------------------------------------------------------
Seasoned Warehouse Revolving Loan principal and any When due as provided in the relevant provision of
other Obligations this Agreement, but in no event later than the
Termination Date
---------------------------------------------------------------------------------------------------------
(b) Mandatory Payments. On the Termination Date, all
outstanding principal of the Notes, and all accrued interest then unpaid on the
Notes, shall be finally due and payable without notice or demand. If at any
time or from time to time, the aggregate unpaid principal amount of all Seasoned
Warehouse Revolving Loans exceeds the lesser of the Aggregate Committed Sum or
the Borrowing Base, the excess shall be immediately due and payable without
notice or demand. No mandatory payment under this SECTION 7.1(b) shall reduce
the Aggregate Committed Sum.
(c) Optional Prepayments. The Borrowers, at any time and from time to
time, upon at least one (1) Business Day's prior written notice received by the
Seasoned Warehouse Agent, may prepay the unpaid principal amount of the Seasoned
Warehouse Revolving Loans in whole or in part without premium; provided that any
such optional prepayment under this SECTION 7.1(c) shall be made in an amount
not less than Fifty Thousand Dollars ($50,000) and applied to reduce the
then-unpaid principal of the Seasoned Warehouse Revolving Loans; and provided
further that any optional prepayment made under this SECTION 7.1(c) shall not
reduce the Aggregate Committed Sum (interest accrued and unpaid on any such
optional prepayment shall be due and payable on the fifteenth (15th) day of the
Calendar Month next occurring after the date of such prepayment, or concurrently
with such prepayment if made on the fifteenth (15th) day of a Calendar Month).
The Companies may pay or prepay any amount owed under the Seasoned Warehouse
Notes without prejudice to the Borrowers' right to reborrow under the terms of
this Agreement.
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(d) Time Due; Good Funds. Except as otherwise specifically
provided in this Agreement, all payments under this Agreement, on the Seasoned
Warehouse Notes and under the other Seasoned Warehouse Loan Documents shall be
paid (i) to the Seasoned Warehouse Agent for deposit in the Seasoned Warehouse
Note Payment/Funding Account, (ii) by not later than 1:00 PM on the day when due
(unless the Seasoned Warehouse Agent shall agree to a payment's being made
before a specific later deadline on such day), (iii) without set- off,
counterclaim or deduction, (iv) in lawful money of the United States of America,
(v) in immediately available funds and (vi) at the office of the Seasoned
Warehouse Agent, at 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, or by fed funds wire
transfer to:
Texas Commerce Bank Account number 0010-___-____
National Association Attention: Xxxxxx X. Xxxxxxx
ABA number 0000-0000-0 Phone: (000) 000-0000
Further Credit -- MCA Seasoned Warehouse Note Payment/Funding Account
or at such other place as the Seasoned Warehouse Agent shall designate from
time to time. Whenever any payment to be made under this Agreement, any
Seasoned Warehouse Note or any of the other Loan Documents shall be stated to
be due on a day that is not a Business Day, the due date for that payment shall
be automatically extended to the next day that is a Business Day, and with
respect to principal, interest at the applicable rate (determined in accordance
with this Agreement) shall continue to accrue during the period of such
extension. Unless the Seasoned Warehouse Agent, acting in its sole discretion,
shall agree otherwise, funds received by the Seasoned Warehouse Agent after
1:00 PM on a Business Day shall be deemed for all purposes to have been paid by
the Companies on the next succeeding Business Day, except that if, after so
deeming, any applicable Ceiling Rate would be exceeded, then solely for the
purpose of calculating interest accrued, such funds shall be deemed paid on the
date received. Any payment made by mail will be deemed tendered and received
only upon actual receipt by the Seasoned Warehouse Agent at the address
designated for such payment, whether or not the Seasoned Warehouse Agent has
authorized payment by mail or any other manner, and shall not be deemed to have
been made in a timely manner unless received on or before 1:00 PM, Houston
time, on the date due for such payment, time being of the essence. The
Companies expressly assume all risks of loss or liability resulting from
non-delivery or delay of deliver of any item of payment transmitted by mail or
in any other manner.
(e) Setoff. If and to the extent any payment is not made
when due under this Agreement, any Seasoned Warehouse Note or any of the other
Seasoned Warehouse Loan Documents, the Companies authorize the Seasoned
Warehouse Agent and each Seasoned Warehouse Lender (for the Pro Rata account and
benefit of all of the Seasoned Warehouse Lenders) then or at any time thereafter
to charge any amounts so due and unpaid against any or all of the Companies'
accounts with the Seasoned Warehouse Agent or any of the Seasoned Warehouse
Lenders (including an account evidenced by a certificate of deposit), subject to
the following qualifications of such rights to so charge such accounts:
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(1) such rights shall not apply to any escrow, trust or
other deposit accounts designated as being held by the Companies on behalf of
third party owners of the escrowed funds other than Affiliates of the Companies;
(2) such rights shall not affect the Companies'
obligation to pay when due any Obligations, whether or not account balances
are sufficient to pay amounts due; and
(3) the exercise of such rights will not per se prejudice
the Borrowers' right to reborrow under the terms of this Agreement.
(f) Payments to be Free of Taxes. Any and all payments by the
Companies made pursuant to this Agreement or under any Revolving Credit Note or
other Loan Documents shall be made free and clear of -- and without deduction
for -- any and all present or future Taxes. If the Companies shall be required
by law to deduct any Taxes from or in respect of any sum payable pursuant to
this Agreement or under any Revolving Credit Note or other Loan Document, (i)
the sum payable shall be increased as may be necessary so that after making all
required deductions, the Seasoned Warehouse Lenders receive an amount equal to
the sums they would have received had no such deductions been made and (ii) the
Borrowers agree to pay the Taxes to the relevant Governmental Authority.
(g) Payments Satisfy Liability. Each payment received by the
Seasoned Warehouse Agent in accordance with this Agreement is valid and
effective to satisfy and discharge the Companies' liability under the Loan
Documents to the extent of such payment.
7.2 Pro Rata Distribution of Payments. All payments and prepayments
of the Revolving Credit Notes -- whether voluntary or involuntary and from
whatever source -- received by the Seasoned Warehouse Agent shall be
distributed by the Seasoned Warehouse Agent to the Seasoned Warehouse Lenders
Pro Rata with their respective ownership interests in the Seasoned Warehouse
Revolving Loans as of the date the payment is credited against the Seasoned
Warehouse Notes in accordance with this Agreement. The distribution from the
Seasoned Warehouse Agent to each Seasoned Warehouse Lender shall be made by
wire transfer in immediately available funds directly to such Seasoned
Warehouse Lender or to such account at another financial institution as is
designated from time to time by such Seasoned Warehouse Lender in writing, and
shall be made on the same Business Day received (or deemed received) by the
Seasoned Warehouse Agent. If the Seasoned Warehouse Agent shall fail or
refuse to make the distribution on the same Business Day as the payment was
received, then the Seasoned Warehouse Agent shall pay the affected Seasoned
Warehouse Lender(s) interest on the undistributed funds at the Federal Funds
Effective Rate.
7.3 Changes in Commitments and Prepayments. The Borrowers, at any
time and from time to time (except as may hereinafter be provided), upon at
least five (5) Business Days' prior written notice received by the Seasoned
Warehouse Agent, may permanently terminate the Seasoned Warehouse Lenders'
Commitments or permanently reduce (Pro Rata) the Seasoned Warehouse Lenders'
Commitments by an integral multiple of One Hundred Thousand Dollars ($100,000);
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provided that the Borrowers, on the effective date of such termination or
reduction, shall pay to the Seasoned Warehouse Agent (for the account of the
Seasoned Warehouse Lenders) in the case of a termination, the aggregate unpaid
principal amount of all Seasoned Warehouse Revolving Loans, or, in the case of
a reduction, the amount, if any, by which the aggregate unpaid principal amount
of all Seasoned Warehouse Revolving Loans exceeds the then reduced Aggregate
Committed Sum, together in either case with all interest accrued and unpaid on
the principal amounts so prepaid, but without premium. The notice shall
specify the Termination Date or the reduced Aggregate Committed Sum and the
effective date of the reduction, as the case may be. The Borrowers may not
revoke any such notice of termination or reduction without the Seasoned
Warehouse Agent's prior written consent. After any such reduction, no Seasoned
Warehouse Lender's Commitment may be increased or otherwise reinstated without
the Seasoned Warehouse Agent's express written agreement.
7.4 Acceptance and Application of Payments. Acceptance by the
Seasoned Warehouse Agent of any payment in an amount less than the amount then
due shall be deemed an acceptance on account only, and the failure to pay the
entire amount then due shall be and continue to be an Event of Default, and at
any time thereafter and until the entire amount then due has been paid, the
Seasoned Warehouse Agent shall be entitled to exercise any and all rights
conferred upon it herein upon the occurrence of an Event of Default. The
Companies waive the right to direct the application of any and all payments at
any time or times hereafter received by the Seasoned Warehouse Agent or any
Seasoned Warehouse Lender from or on behalf of the Companies except each such
payment designated as a payment under this Agreement shall be applied to the
Obligations; provided that, except as otherwise specified pursuant to SECTION
16.2, no payment on account of interest shall be applied on the principal owed
under the Seasoned Warehouse Notes. The Companies agree that the Seasoned
Warehouse Agent shall have the continuing exclusive right to apply and to
reapply any and all payments received at any time or times hereafter against the
Obligations in such manner as the Seasoned Warehouse Agent may deem advisable,
notwithstanding any entry by the Seasoned Warehouse Agent or any Seasoned
Warehouse Lender upon any of its books and records.
7.5 Invalidated Payments. The Companies expressly agree
that to the extent that the Seasoned Warehouse Agent or any Seasoned Warehouse
Lender receives any payment or benefit and such payment or benefit, or any part
thereof, is subsequently invalidated, declared to be fraudulent or preferential,
set aside or is required to be repaid to a trustee, receiver, or any other party
under any Debtor Law or other state or federal law, common law or equitable
cause, then to the extent of such payment or benefit, the Obligations or part
thereof intended to be satisfied shall be revived and continued in full force
and effect as if such payment or benefit had not been made and, further, any
such repayment by the Seasoned Warehouse Agent or any Seasoned Warehouse
Lender(s), to the extent that the Seasoned Warehouse Agent and each such
affected Seasoned Warehouse Lender(s), if any, did not directly receive a
corresponding cash payment, shall be added to the Obligations and be additional
Obligations payable upon demand by the Seasoned Warehouse Agent.
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8. COLLATERAL
8.1 Security Interest. As security for the payment of the Seasoned
Warehouse Revolving Loans and for the payment and performance of the
Obligations, each of the Companies has executed and delivered the Security
Agreement with the Seasoned Warehouse Agent, granting to the Seasoned Warehouse
Agent, as agent and Representative of the Seasoned Warehouse Lenders, a first
priority security interest in all of that Company's present and future estate,
right, title and interest in and to the Seasoned Warehouse Collateral (although
neither the Seasoned Warehouse Lenders, the Seasoned Warehouse Agent nor the
Custodian assumes any of the Companies' or any other liability or obligation
under or in respect of any Collateral).
8.2 Delivery of Additional Collateral or Mandatory Prepayment. At
least once a week during the term of this Agreement (or more often in the
discretion of the Seasoned Warehouse Agent if it reasonably determines that
market conditions warrant) and whenever a Request for Advance is made by the
Borrowers (except that the Seasoned Warehouse Agent shall have no obligation to
make such determination more frequently than once per day), the Seasoned
Warehouse Agent shall (i) determine pursuant to SCHEDULE BB the aggregate values
of the Collateral comprising the portions of the Borrowing Base allocable to
each class of Collateral (either (i) Eligible Foreclosure/REO/Repurchase
Collateral or (ii) other Eligible Collateral, including any Collateral pledged
on that day) Pledged to the Seasoned Warehouse Agent under this Agreement, (ii)
issue to the Seasoned Warehouse Lenders a Borrowing Base Report stating
separately the Seasoned Warehouse Agent's determination of the portion of the
Borrowing Base attributable to each such class of Collateral and (iii) provide a
copy of that certificate to the Borrowers. If the Seasoned Warehouse Agent
shall determine on any day that the Borrowing Base is less than the outstanding
Revolving Loans, then the Companies shall immediately either:
(a) Pledge to the Seasoned Warehouse Agent additional
Collateral; and/or
(b) after giving effect to the value of any additional
Collateral Pledged to the Seasoned Warehouse Agent, pay to the Seasoned
Warehouse Agent cash for Pro Rata distribution to the Seasoned Warehouse
Lenders;
in aggregate amounts sufficient to completely eliminate the excess of (i) the
sum of all Seasoned Warehouse Revolving Loans outstanding over (ii) the
Borrowing Base;
provided, that the Companies may not elect under the provisions of SECTION
8.2(a) (and instead must make a cash paydown pursuant to SECTION 8.2(b)) if any
Default or Event of Default has occurred that the Seasoned Warehouse Agent has
not declared in writing to have been cured or waived.
8.3 Right of Redemption From Pledge.
(a) Provided no Event of Default has occurred that the
Seasoned Warehouse Agent has not declared in writing to have been cured or
waived -- although the Seasoned Warehouse
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Agent shall have the right (but no obligation) to allow redemption at any time
if it reasonably believes at that time that doing so would be in the Seasoned
Warehouse Lenders' interest to do so -- the Companies may from time to time
redeem one or more Pledged Loans from pledge by either:
(x) paying, or causing to be paid, to the Seasoned
Warehouse Agent for deposit in the Seasoned Warehouse Note Payment/Funding
Account, for application to the outstanding principal balance of the Seasoned
Warehouse Revolving Loans and application to Pro Rata prepayment of the
principal balance of the Seasoned Warehouse Notes, the Redemption Amount for
the Pledged Loans to be released; or
(y) delivering substitute Pledged Loans that (i) are
Eligible Seasoned Collateral, (ii) will, when included with the existing
Seasoned Warehouse Collateral (excluding the Pledged Loans to be released),
increase the Borrowing Base to an amount at least equal to the aggregate
outstanding Seasoned Warehouse Revolving Loans and (iii) will not directly or
indirectly result in any Sublimit's being exceeded;
provided, that if (i) no Default has occurred that has not been waived or
cured, (ii) no Event of Default has occurred that the Agent has not declared in
writing to have been cured or waived and (iii) no Borrowing Base Deficiency
would exist after giving effect to the requested redemption, the Companies may
redeem one or more Pledged Loans without either paying down the Seasoned
Warehouse Revolving Loans or providing substitute Pledged Loans (this proviso
is called the "FREE REDEMPTION PROVISO").
(b) The Lender Lien against the Pledged Loans redeemed shall
automatically be terminated upon the Seasoned Warehouse Agent's receipt of the
redeeming payment or substitute Mortgage Collateral (or, if pursuant to the
Free Redemption Proviso, no such payment or substitute Mortgage Collateral is
required, upon the Custodian's release of the related Basic Papers), and the
Seasoned Warehouse Agent will direct the Custodian to release the related Basic
Papers to the requesting Company against its written request and will confirm
such release in writing if, when and in such form as such Company may reasonably
request, including, if requested and applicable to the Pledged Loans redeemed,
UCC-3 Partial Releases.
8.4 Releases of Pledged Loans Sold or Securitized.
(a) For all Pledged Loans to be securitized, sold or transferred by
the Companies to any third party for reasonably equivalent value in a bona fide
transaction (including sales of Pledged Loans subject to a reverse repurchase
agreement for financing purposes), no later than two (2) Business Days before
the date scheduled for the securitization, sale or transfer of such Pledged
Loans, the Companies shall deliver to each of the Seasoned Warehouse Agent and
the Custodian a written notice in the form of the Payoff Request -- as defined
in, and the form of which is attached as an exhibit to, the Custody Agreement --
stating the scheduled closing date or transfer date and identifying those
Pledged Loans to be so securitized, sold or transferred (and if such closing
date or transfer date is changed, then the Companies will give the Seasoned
Warehouse Agent and the
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Custodian prompt notice thereof). Within two (2) Business Days following the
Seasoned Warehouse Agent's receipt of the Payoff Request, (i) the Seasoned
Warehouse Agent will provide the Companies with a Payoff Schedule (as defined
in the Custody Agreement) which shows the Redemption Amount for each such
Pledged Loan (notwithstanding that the aggregate Redemption Amounts for the
affected Pledged Loans will not include interest through the scheduled closing
date, the Companies shall remain liable for such interest and any related fees,
which shall be remitted to the Seasoned Warehouse Agent, for distribution to
the Seasoned Warehouse Lenders, on a monthly basis, in accordance with the
provisions of SECTION 7.1) and (ii) the Custodian will ship the Pledged Loans
listed in accordance with the relevant provisions of the Custody Agreement and
the Companies shall either:
(x) cause the investor acquiring such Pledged Loans
or the Mortgage Securities being created from them to pay to the Seasoned
Warehouse Agent for deposit in the Seasoned Warehouse Note Payment/Funding
Account, for application to the outstanding principal balance of the Seasoned
Warehouse Revolving Loans and application to Pro Rata prepayment of the
principal balance of the Seasoned Warehouse Notes, the Redemption Amount for
the Pledged Loans to be released from the Lender Lien; or
(y) deliver substitute Pledged Loans (a) that are
Eligible Seasoned Collateral, (b) that will, when included with the existing
Seasoned Warehouse Collateral (excluding the Pledged Loans to be released),
increase the Borrowing Base to an amount at least equal to the aggregate
outstanding Seasoned Warehouse Revolving Loans and (c) that will not directly
or indirectly result in any Sublimit's being exceeded;
provided, that if (i) no Default has occurred that has not been waived or
cured, (ii) no Event of Default has occurred that the Agent has not declared in
writing to have been cured or waived and (iii) no Borrowing Base Deficiency
would exist after release of the shipped Pledged Loans, the Agent will release
its Lien in such shipped Pledged Loans without any requirement that the
Companies first pay any Redemption Amount or provide any substitute Pledged
Loans (this proviso is called the "FREE RELEASE PROVISO").
(b) The Lender Lien against Pledged Loans:
(1) shipped to be sold as whole loans or to be securitized as
Mortgage Securities not issued or guaranteed by FNMA, GNMA or FHLMC shall
automatically terminate upon the Seasoned Warehouse Agent's receipt of the
relevant Redemption Amount or substitute Collateral;
(2) shipped to be securitized as Mortgage Securities issued
or guaranteed by FNMA, GNMA or FHLMC shall automatically terminate upon
issuance of the Mortgage Securities created from them -- although the Lender
Lien in the proceeds of such Mortgage Loans, including all of the Companies'
right, title and interest in and to such Mortgage Securities and their
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proceeds, shall continue until the Seasoned Warehouse Agent's receipt of the
relevant Redemption Amount -- or
(3) if, pursuant to the Free Release Proviso, no such
payment or substitute Collateral is required, the Lender Lien in the Pledged
Loans shipped shall automatically terminate upon the Custodian's release of
the related Basic Papers.
8.5 Return of Collateral at End of Commitment. If (i) the Lenders'
Commitments to lend shall have expired or been terminated, and (ii) all Seasoned
Warehouse Revolving Loans, interest and other amounts evidenced by the Seasoned
Warehouse Notes or owing to any of the Seasoned Warehouse Lenders or the
Seasoned Warehouse Agent under this Agreement, the Seasoned Warehouse Notes and
the other Loan Documents shall be fully paid and satisfied, then the Seasoned
Warehouse Agent shall release the Collateral to the Borrowers or their designee
promptly upon written request made by the Companies and at their cost, and the
Companies shall promptly receipt -- or shall cause their designee to promptly
receipt -- for such released Collateral in writing to the Seasoned Warehouse
Agent. Acceptance by the Borrowers of any Collateral delivered to them pursuant
to any provision of this Agreement (whether or not the recipient issues a
receipt for it) or shipping by the Seasoned Warehouse Agent of Collateral in
substantial compliance with shipping instructions given by the Borrowers or
their designee shall be a complete and full acquittance for the Collateral so
delivered or shipped, and the Seasoned Warehouse Agent and the Seasoned
Warehouse Lenders shall thereby be released and discharged from any and all
liability or responsibility for it arising then or thereafter.
9. CONDITIONS PRECEDENT
9.1 Initial Revolving Loan. The obligations of the
Seasoned Warehouse Lenders to make and the Seasoned Warehouse Agent to disburse
the Lenders' respective Funding Shares of the initial Seasoned Warehouse
Revolving Loan are subject to satisfaction on or before the Disbursement Date
for such Revolving Loan of each of the following conditions precedent:
(a) Loan Documents and Note Purchase Agreement. The
Seasoned Warehouse Agent shall have received the following, all of which must
be satisfactory in form and content to the Seasoned Warehouse Agent:
(1) the Seasoned Warehouse Notes, executed by the
Companies;
(2) the Seasoned Warehouse Security Agreement,
executed by the Companies and the Seasoned Warehouse Agent;
(3) UCC-1 financing statements executed by the
Companies;
(4) UCC-3 assignments of Texas Commerce's existing
security interests in all of the Seasoned Warehouse Collateral, executed by
Texas Commerce and the Companies; and
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(5) the Custody Agreement, executed by the Companies
and the Seasoned Warehouse Agent;
(b) Certified Companies' Resolutions. Each Company shall
have furnished to the Seasoned Warehouse Agent a copy of the resolutions of such
Company's Board of Directors authorizing the execution, delivery and performance
of this Agreement, the borrowings hereunder, the Seasoned Warehouse Notes and
all other Seasoned Warehouse Loan Documents contemplated by this Agreement,
which shall have been certified by such Company's Secretary or Assistant
Secretary as of the Effective Date as being complete, accurate and in effect.
(c) Certified Articles. Each Company shall have furnished
to the Seasoned Warehouse Agent a copy of the Articles of Incorporation,
including all amendments thereto and restatements thereof, and all other
charter documents of such Company, all of which shall have been certified by
the Michigan Department of Commerce (or, in the case of MCAI-Ohio, the
comparable Ohio Governmental Authority) as of a date within thirty (30) days of
the date hereof.
(d) Certified Bylaws. Each Company shall have furnished to
the Seasoned Warehouse Agent a copy of the Bylaws of such Company (or, in the
case of MCAI-Ohio, the comparable Ohio Governmental Authority), including all
amendments thereto and restatements thereof, which shall have been certified by
the Secretary or Assistant Secretary of such Company as of the date hereof.
(e) Certificate of Good Standing. Each Company shall have
furnished to the Seasoned Warehouse Agent a certificate of good standing
with respect to such Company, which shall have been certified by the Michigan
Department of Commerce (or, in the case of MCAI-Ohio, the comparable Ohio
Governmental Authority) as of a date within thirty (30) days of the Effective
Date.
(f) Certificates of Companies' Officers' Incumbency. Each
Company shall have furnished to the Seasoned Warehouse Agent a certificate of
the Secretary or Assistant Secretary of such Company, certified as of the
Effective Date, as to the incumbency and signature of the officers of such
Company signing this Agreement, the Seasoned Warehouse Notes and any other
Warehouse Loan Document contemplated or delivered under this Agreement.
(g) Opinion of Companies' Counsel. The Companies shall have
furnished to the Seasoned Warehouse Agent on or before the Effective Date or the
actual date of execution and delivery of this Agreement by the Companies
(whichever is later), the favorable written opinion of Butzel Long, legal
counsel to the Companies, dated when issued, in form and content acceptable to
the Seasoned Warehouse Agent and substantially as set forth in EXHIBIT F or
containing such other or additional opinions as may be reasonably requested by
the Seasoned Warehouse Agent; provided that if such opinion, insofar as it
relates to MCAI-Ohio, shall not be furnished to the Seasoned Warehouse Agent
concurrently with such opinion as it relates to the Borrowers, then the
Borrowers shall not make any portion of the Loan proceeds available to
MCAI-Ohio, and MCAI-Ohio shall not
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accept them, until such opinion relating to MCAI-Ohio shall have been both (i)
so furnished to the Warehouse Agent and (ii) approved by all Seasoned Warehouse
Lenders.
(h) UCC Lien Search. The Seasoned Warehouse Agent shall have
received UCC record and copy searches, evidencing the appropriate filing and
recording of Texas Commerce's existing Financing Statements in all of the
Seasoned Warehouse Collateral and their assignment to the Seasoned Warehouse
Agent, as agent and Representative of the Seasoned Warehouse Lenders under this
Agreement, and disclosing no notice of any liens or encumbrances filed against
any of the Collateral other than those assigned Financing Statements or the
other Permitted Liens.
(i) Insurance Policies. The Companies shall have furnished to the
Seasoned Warehouse Agent, in form, content and amounts and with companies
satisfactory to the Seasoned Warehouse Agent, copies of the Companies' errors
and omissions insurance policy (or policies), mortgage impairment insurance
policy and mortgage bankers blanket bond insurance policy, with loss payable
clauses in favor of the Seasoned Warehouse Agent (as agent and Representative of
the Lenders.)
(j) Approval of Agent's Counsel. All actions, proceedings and papers
required to carry out the transactions contemplated by this Agreement or
incidental thereto and all other related legal matters shall have been
reasonably satisfactory to and approved by legal counsel for the Seasoned
Warehouse Agent, and said counsel shall have been furnished with such certified
copies of actions and proceedings and such other instruments and documents as it
shall have reasonably requested.
9.2 Conditions to All Disbursements. The obligations of the Seasoned
Warehouse Lenders to fund and the Seasoned Warehouse Agent to disburse the
Seasoned Warehouse Lenders' respective Funding Shares of any Seasoned Warehouse
Revolving Loan under this Agreement are also subject to satisfaction on or
before the Disbursement Date for such Seasoned Warehouse Revolving Loan of each
of the following conditions:
(a) Certificate. The Seasoned Warehouse Agent shall have
received a certificate, in the form and content of the attached EXHIBIT G-1, G-2
or G-3 (as applicable) executed by the chief executive or chief financial
officer of MCAFC, certified as of such Disbursement Date and confirming that:
(1) In the case of a request pursuant to SECTION 4.1:
(i) the proceeds of the requested Revolving Loan are
to be used to refinance Debt secured by Eligible Seasoned Warehouse Collateral
and currently held by Texas Commerce, who will assign to the Seasoned
Warehouse Agent (as agent and Representative of the Seasoned Warehouse Lenders)
its security interest in all collateral for such existing Debt being
refinanced and, upon disbursement of such proceeds to Texas Commerce, a
Company shall own good and marketable title to such Collateral, free and clear
of any lien, pledge, charge or interest of
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any party other than the Seasoned Warehouse Agent (as agent and Representative
of the Seasoned Warehouse Lenders);
(ii) all of the Collateral in which the Seasoned
Warehouse Agent (as agent and Representative of the Seasoned Warehouse
Lenders), by funding such Seasoned Warehouse Revolving Loan, will acquire a
security interest shall be Eligible Seasoned Warehouse Collateral; and
(iii) all of the Collateral secured by such Debt to be so
refinanced by the proposed Seasoned Warehouse Revolving Loan shall be Pledged to
the Seasoned Warehouse Agent, shall be pledged to no other Person and shall be
subject to this Agreement and the Seasoned Warehouse Security Agreement, and the
Seasoned Warehouse Agent, as agent and Representative of the Lenders, will
thereby acquire and have a first and prior perfected security interest therein.
(2) In the case of a request pursuant to SECTION 4.2:
(i) the proceeds of the requested Revolving Loan are to be
used to finance origination or acquisition by a Company of new Eligible Seasoned
Warehouse Collateral; and, upon disbursement of such proceeds to the mortgagors
or Land Contract purchasers (as the case may be) in respect of such Collateral
(in the case of an origination) or the seller of such Collateral (in the case of
an acquisition), such Company shall own good and marketable title to such new
Seasoned Warehouse Collateral, free and clear of any lien, pledge, charge or
interest of any party other than the Seasoned Warehouse Agent, as agent and
Representative of the Seasoned Warehouse Lenders;
(ii) all of the Collateral to be originated or acquired
with the proceeds of the requested Seasoned Warehouse Revolving Loan shall be
Eligible Seasoned Warehouse Collateral; and
(iii) all of Collateral to be originated or
acquired with the proceeds of the requested Seasoned Warehouse Revolving Loan
shall be Pledged to the Seasoned Warehouse Agent as Seasoned Warehouse
Collateral, and to no other Person, and shall be subject to this Agreement and
the Seasoned Warehouse Security Agreement.
(3) In the case of a request pursuant to SECTION 4.3:
(i) there is not then outstanding any Seasoned
Warehouse Revolving Loan previously advanced by the Seasoned Warehouse Lenders
(and disbursed by the Seasoned Warehouse Agent) with respect to the Seasoned
Warehouse Collateral to which such requested Seasoned Warehouse Revolving Loan
relates; and
(ii) all of the Seasoned Warehouse Collateral to which
such requested Seasoned Warehouse Revolving Loan relates shall be Pledged to
the Seasoned Warehouse
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Agent, and to no other Person, and shall be subject to this Agreement and the
Seasoned Warehouse Security Agreement.
(4) In the case of any Request for Advance
whatsoever:
(i) no Default or Event of Default shall have
occurred and be continuing on and as of such Disbursement Date; and
(ii) the warranties and representations set
forth in SECTION 10 of this Agreement and SECTION 3 of the Seasoned Warehouse
Security Agreement are true and correct on and as of such Disbursement Date.
(b) Borrowing Base Certificate. The Seasoned Warehouse Agent shall
have received from the Companies a borrowing base certificate (a "BORROWING BASE
CERTIFICATE") in the form of SCHEDULE 9.2(b), executed by a Responsible Officer
of MCAFC and certified as of such Disbursement Date, confirming that, as of such
Disbursement Date, the aggregate unpaid principal amount of all Seasoned
Warehouse Revolving Loans (including the Revolving Loan to be made on such
Disbursement Date) does not exceed the lesser of the Aggregate Committed Sum or
the Warehouse Borrowing Base as in effect on the close of business on the
Business Day immediately preceding such Disbursement Date. The calculation of
the Borrowing Base in such Borrowing Base Certificate shall be made on a pro
forma basis to include the Eligible Seasoned Warehouse Collateral to be financed
in the refinancing of the Borrowers' existing warehouse debt to Texas Commerce
and the Eligible Seasoned Warehouse Collateral to be originated or acquired with
the proceeds of the requested Revolving Loan.
(c) Delivery of Documents. The Companies shall have
delivered to the Seasoned Warehouse Agent and the Custodian (i) a Submission
List(s) listing, and all Basic Papers for, each item of Seasoned Warehouse
Collateral to be originated or acquired with proceeds of the requested Seasoned
Warehouse Revolving Loan and copies of all other documents related to such
origination or acquisition as may be required by or pursuant to this Agreement
or the Custody Agreement, or as may be reasonably requested by the Seasoned
Warehouse Agent or the Custodian.
(d) Agent Satisfaction. The Seasoned Warehouse Agent shall not
know or have any reason to believe that, as of such Disbursement Date:
(1) any Default or Event of Default has occurred and is
continuing;
(2) any warranty or representation set forth in SECTION 10 of
this Agreement or SECTION 3 of the Security Agreement shall not be true and
correct;
(3) any provision of Law, an order of any court or other agency
of government on any regulation, rule or interpretation thereof shall have had
any material adverse effect on the validity or enforceability of this
Agreement, any Seasoned Warehouse Note, the
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Seasoned Warehouse Security Agreement, any Financing Statements, the Custody
Agreement or the other documents contemplated hereby; or
(4) there shall have occurred a material adverse change
in the business, operations, properties, condition (financial or otherwise) of
any Company.
(e) Approval of Agent's Counsel. All actions, proceedings,
instruments and documents required to carry out the transactions contemplated by
this Agreement or incidental thereto and all other related legal matters shall
have been reasonably satisfactory to and approved by legal counsel for the
Seasoned Warehouse Agent, and said counsel shall have been furnished with such
certified copies of actions and proceedings and such other instruments an
documents as it shall have reasonably requested.
(f) Updated Opinion of the Companies' Counsel. The Seasoned
Warehouse Agent shall have received from counsel for the Companies, if
reasonably requested by the Seasoned Warehouse Agent pursuant to instructions
from the Majority Seasoned Warehouse Lenders, an updated favorable opinion or
opinions, in form and substance satisfactory to the Seasoned Warehouse Agent
addressed to the Seasoned Warehouse Lenders and the Seasoned Warehouse Agent and
dated as of the date of such Seasoned Warehouse Revolving Loan, covering and
updating such matters that were originally addressed in the opinion issued
pursuant to SECTION 9.1(g) as the Seasoned Warehouse Agent may reasonably
request.
(g) Fees Paid. The Companies shall have paid the Facility Fee,
Agent's Fee and Custodian's Fee then due and payable in accordance with
SECTIONS 6.6, 6.7 and 6.8.
10. WARRANTIES AND REPRESENTATIONS
On a continuing basis from the date of this Agreement until the later of
the Termination Date or when the Obligations are paid in full and the Companies
have performed all of their other obligations hereunder, the Companies represent
and warrant to the Seasoned Warehouse Agent, the Custodian and the Seasoned
Warehouse Lenders that:
10.1 Corporate Existence and Power. (a) Each Company, and
each of its Subsidiaries, is a corporation duly organized, validly existing and
in good standing under the laws of the State of Michigan (or, in the case of
MCAI-Ohio, the State of Ohio), and has the corporate power and authority to own
or lease its properties and assets and to carry out its business as now being
conducted and is qualified to do business and is in good standing in every
jurisdiction wherein such qualification is necessary, and (b) each Company has
the corporate power and authority to execute, deliver and perform this
Agreement, to borrow money (in the case of MCAI-Ohio, from the Borrowers) in
accordance with its terms, to execute, deliver and perform the Seasoned
Warehouse Notes and the other Loan Documents, to grant to the Seasoned Warehouse
Agent (as agent and Representative of the Lenders) liens and security interests
in the Seasoned Warehouse Collateral as hereby contemplated and to do any and
all other things required of it hereunder or under the
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Seasoned Warehouse Security Agreement and the other Loan Documents. SCHEDULE
10.1 correctly sets forth as to each Subsidiary, its name, the number of shares
of its capital stock of each class outstanding and the number of such
outstanding shares owned by a Company or Subsidiary (and identifying such
Company or Subsidiary).
10.2 Authorization and Approvals. The execution, delivery and
performance of this Agreement, the Borrowings hereunder and the execution,
delivery and performance of the Seasoned Warehouse Notes and the other Loan
Documents (a) have been duly authorized by all requisite corporate action of
each Company, (b) except for UCC filings, do not require registration with or
consent or approval of, or other action by, any federal, state or other
governmental authority or regulatory body, or, if such registration, consent or
approval is required, the same has been obtained and disclosed in writing to the
Seasoned Warehouse Agent, (c) will not violate, conflict with or constitute
(with or without notice or passage of time) a default under, any provision of
Law, any order of any court or other agency of government, the Articles of
Incorporation or Bylaws of any Company, any provision of any contract, mortgage,
indenture, note, agreement, lease or other instrument to which any Company is a
party, or by which it or any of its properties or assets are bound and (d) will
not result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets or any Company other
than in favor of the Seasoned Warehouse Agent (as agent and Representative of
the Seasoned Warehouse Lenders).
10.3 Valid and Binding Agreement. This Agreement and the
existing Financing Statements in favor of Texas Commerce in respect of its
warehousing loans to the Companies and duly assigned by UCC-3 Assignments to the
Seasoned Warehouse Agent, as agent and Representative of the Seasoned Warehouse
Lenders, are, and the Seasoned Warehouse Notes, the Seasoned Warehouse Security
Agreement and all other documents contemplated hereby when delivered will be,
valid and binding obligations of each Company in each case enforceable in
accordance with their terms, except as the enforceability thereof may be limited
by applicable Debtor Law and similar Laws affecting the rights of creditors
generally and by general principles of equity.
10.4 Actions, Suits or Proceedings. There are no actions,
suits or proceedings, at law or in equity, and no proceedings before any
arbitrator or by or before any governmental commission, board, bureau, or other
administrative agency, pending, or, to the best knowledge of any Company,
threatened against or affecting any Company, any Subsidiary or any properties or
rights of any Company or any Subsidiary which, if adversely determined, would,
individually or collectively, materially impair the right of any Company to
carry on business substantially as now conducted or could have a Material
Adverse Effect. Except as disclosed on SCHEDULE 10.4, (a) no Company is subject
to, or aware of the threat of, any such pending actions, suits or proceedings
affecting that Company or any Subsidiary and (b) no outstanding or unpaid
judgments against any Company or any Subsidiary exist.
10.5 No Liens, Pledges, Mortgages or Security Interests.
Except for Permitted Liens, none of the Companies' nor any Subsidiary's assets
and properties, including the Collateral, are subject to any mortgage, pledge,
lien, security interest or other encumbrance of any kind or character.
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10.6 Financial Statements. All consolidated and consolidating balance
sheets, statements of income and retained earnings and statements of cash flows
furnished to the Seasoned Warehouse Agent for the purpose of, or in connection
with, this Agreement and the transactions contemplated by this Agreement
("FINANCIAL STATEMENTS"), including financial statements previously delivered to
the Seasoned Warehouse Agent and those financial statements to be furnished to
the Seasoned Warehouse Agent pursuant to SECTION 11.2, have been or will be
prepared in accordance with GAAP, and do or will fairly present the financial
condition of the Companies and the Subsidiaries, as of the dates, and the
results of their operations for the periods, for which the same are furnished to
the Seasoned Warehouse Agent. No Company or Subsidiary has any material
contingent obligations, liabilities for taxes, long-term leases or unusual
forward or long-term commitments not disclosed by, or reserved against in, the
Financial Statements.
10.7 Financial Condition. On a consolidated basis, the Companies are
solvent, able to pay their debts as they mature, have capital sufficient to
carry on their businesses, have assets the fair market value of which exceed
their liabilities, and will not be rendered insolvent, undercapitalized or
unable to pay maturing debts by the execution or performance of this Agreement
or the other documents contemplated hereby. There has been no fact, circumstance
or occurrence since March 1, 1997, that has resulted or would reasonably be
expected to result in a Material Adverse Effect.
10.8 The Companies Have Paid Taxes. Each Company has filed by the due
date therefor all federal, state and local tax returns and other reports it is
required by Law to file, has paid or caused to be paid all taxes, assessments
and other governmental charges that are shown to be due and payable under such
returns, and has made adequate provision for the payment of such taxes,
assessments or other governmental charges which have accrued but are not yet
payable. No Company has any knowledge of any actual or proposed deficiency or
assessment in connection with any taxes, assessments or other governmental
charges not adequately disclosed in the Financial Statements.
10.9 Compliance with Laws. Each Company has complied with all applicable
Laws and regulations, including any Law relating to the extension of credit, the
servicing of mortgages or environmental matters, and has obtained all licenses,
permits, franchises or other governmental authorizations, to the extent that
failure to comply with such Laws or to obtain such licenses, permits, franchises
or governmental authorizations would materially interfere with the conduct of
its business or its ability to perform its obligations under this Agreement or
the other Loan Documents.
10.10 Margin Stock. No Company or Subsidiary is engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any "margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, and no
part of the proceeds of any Revolving Loan will be used, directly or indirectly,
to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock or for any other purpose
which might violate the provisions
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of Regulation G, T, U or X of said Board of Governors. No Company or
Subsidiary owns any margin stock.
10.11 No Pension Funding Deficiency. No Company or Subsidiary
has incurred any accumulated funding deficiency within the meaning of ERISA or
incurred any liability to the PBGC in connection with any employee benefit plan
established or maintained by any Company or Subsidiary, and no reportable event
or prohibited transaction, as defined in ERISA, has occurred with respect to
such plans.
10.12 Approved Lender, Mortgagee, Issuer and Servicer. Each
Company that is, or is acting as, a Servicer for GNMA, FNMA or FHLMC is an FHA-
and VA-approved lender and mortgagee and a GNMA-, FNMA- and FHLMC-approved
issuer and servicer in good standing and currently satisfies all applicable
GNMA, FNMA and FHLMC net worth requirements.
10.13 Investment Company. No Company or Subsidiary is an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
10.14 Misrepresentation. No warranty or representation by any
Company contained herein or in any certificate or other material document
furnished by any Company pursuant hereto contains any untrue statement of
material fact or omits to state a material fact necessary to make such warranty
or representation not misleading in light of the circumstances under which it
was made. There is no fact that the Companies have not disclosed to the
Seasoned Warehouse Agent in writing which has a Material Adverse Effect or, so
far as the Companies can now foresee, is likely to have a Material Adverse
Effect.
11. AFFIRMATIVE COVENANTS
On a continuing basis from the date of this Agreement until the later of
the Termination Date or when the Obligations are paid in full and the Companies
have performed all of their other obligations hereunder, the Companies covenant
and agree that they will:
11.1 Pay Revolving Credit Notes. Punctually pay or cause to be
paid when due the principal of, interest on and all other amounts now or
hereafter owing under this Agreement, the Revolving Credit Notes and the other
Loan Documents in accordance with their respective terms.
11.2 Furnish Financial and Other Information. Promptly furnish
to the Seasoned Warehouse Agent (for distribution to the Lenders) from time to
time information regarding the business and affairs of the Companies, including
the following and such other information as the Seasoned Warehouse Agent may
from time to time reasonably request:
(a) Annual Financial Reports. not later than
ninety (90) days after the close of each fiscal year of the Companies,
beginning with the fiscal year ending January 31, 1998, financial
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statements of the Companies, in form and on a reporting basis reasonably
satisfactory to the Seasoned Warehouse Agent and on a consolidated and
consolidating basis containing the balance sheet of the Companies as of the
close of each such fiscal year, statements of income and retained earnings and,
on a consolidated basis only, a statement of cash flows for each such fiscal
year, and such other comments and financial details as are usually included in
similar reports. Such consolidated reports shall be prepared and audited in
accordance with GAAP by independent certified public accountants of recognized
standing selected by the Companies and reasonably acceptable to the Seasoned
Warehouse Agent and shall contain unqualified opinions as to the fairness of
the statements therein contained.
(b) Quarterly Financial Statements. not later than forty-five
(45) days after the close of each quarter of each fiscal year of the Companies,
in form and on a reporting basis reasonably satisfactory to the Seasoned
Warehouse Agent, beginning with the fiscal quarter ended July 31, 1997,
financial statements on a consolidated and consolidating basis containing the
balance sheet of the Companies as of the end of each such period, statements of
income and retained earnings of the Companies and a statement of cash flows of
the Companies for the portion of the fiscal year up to the end of such period,
and such other comments and financial details as are usually included in similar
reports. Such statements shall be prepared on the same accounting basis as the
statements required in SECTION 11.2(a) (subject to normal year-end adjustments)
and shall be in such detail as the Seasoned Warehouse Agent may reasonably
require, and the accuracy of the statements shall be certified by the chief
executive or chief financial officer of MCAFC.
(c) No Default Certificate. together with each delivery of the
financial statements required by SECTIONS 11.2(a) and 11.2(b), a certificate
of the chief executive or chief financial officer of MCAFC (a) stating that (i)
the warranties and representations set forth in SECTION 10 are true and correct
as of such date, and (ii) no Event of Default or Default has occurred, or if any
Event of Default or Default exists, stating the nature thereof, the period of
existence thereof and what action the Companies propose to take with respect
thereto, and (b) setting forth a computation (which computation shall accompany
such certificate and shall be in reasonable detail) showing compliance with
SECTIONS 11.6, 11.7, 11.8 and 11.9 in conformity with the terms of this
Agreement. Each such certificate delivered with the financial statements
required by SECTION 11.2(a) shall be accompanied by a statement of the auditing
independent accountants to the effect that, based on their review of this
Agreement and such financial statements, they are in agreement with such officer
certificate.
(d) Monthly Management Report. within thirty (30) days after
the end of each month, a management report substantially in the form of SCHEDULE
11.2(d) setting forth the Companies' loan production, commitment and pipeline
positions and servicing portfolio as of the end of such month, executed by a
Responsible Officer of the relevant Company.
(e) Monthly Pledged Loans Curtailment Report. within thirty
(30) days after the end of each month, a Pledged Loans Curtailment Report.
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(f) Seasoned Warehouse Collateral Certificate. not later than five
(5) Business Days after the Seasoned Warehouse Agent's request therefor made
from time to time, a certificate in the form attached as EXHIBIT H executed by a
Responsible Officer of the relevant Company setting forth an updated list, dated
as of a current date acceptable to the Seasoned Warehouse Agent, of all Seasoned
Warehouse Collateral then Pledged to the Seasoned Warehouse Agent according to
the Companies' records.
(g) Adverse Effect. written notice promptly informing the
Seasoned Warehouse Agent of (a) the occurrence of any Default or Event of
Default, (b) any litigation which if determined adversely to a Company or
Subsidiary and not satisfied in a timely fashion would have a Material Adverse
Effect or constitute a Default or an Event of Default, or (c) any other
occurrence which is known or should be known to a Company and which has or could
reasonably be expected to have a Material Adverse Effect.
(h) Shareholder Reports. promptly upon their becoming available,
a copy of all financial statements, reports, notices, proxy statements and other
communications sent by any Company or Subsidiary to its shareholders, and all
regular and periodic reports filed by any Company or Subsidiary with any
securities exchange, the Securities and Exchange Commission, the Corporation,
Securities and Land Development Bureau of the Department of Consumer and
Industry Services of the State of Michigan (or, as to MCAI-Ohio, the
corresponding Ohio Governmental Authority), or any governmental authorities
succeeding to any or all of the functions of said Commission, Bureau or
comparable Governmental Authority.
(i) Management Letters. promptly upon receipt thereof, copies of
all management letters and other reports of substance submitted to any Company
or any of the Subsidiaries by independent certified accountants in connection
with any annual or interim audit of the books of any Company or Subsidiary.
(j) Agency Audits. promptly upon receipt thereof, a copy of any
audit, examination or report performed on or with respect to any Company or
Subsidiary by GNMA, FNMA, FHLMC, the Department of Housing and Urban Development
or any other governmental agency or authority.
(k) Other Information as Requested. such other information
regarding the operations, business, properties and financial condition of any
Company and any Subsidiary as the Seasoned Warehouse Agent may reasonably
request from time to time promptly after such request.
11.3 Insurance. Keep its insurable properties (including, but not limited
to, the Collateral) and the insurable properties of the Subsidiaries adequately
insured and maintain (a) insurance against fire and other risks customarily
insured against under an "all-risk" policy and such additional risks
customarily insured against by companies engaged in the same or a similar
business to that of the Companies or the Subsidiaries, as the case may be,
including business interruption, (b) necessary worker's compensation insurance,
(c) public liability and product liability insurance, and (d) such
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other insurance as may be required by Law or as may be reasonably required in
writing by the Seasoned Warehouse Agent, including an errors and omissions
policy, mortgage impairment insurance policy and mortgage bankers blanket bond
insurance policy (each of the foregoing with loss payable clauses in favor of
the Seasoned Warehouse Agent, as agent and Representative of the Seasoned
Warehouse Lenders), all of which insurance shall (i) be in such amounts, (ii)
contain such terms, (ii) be in such form, (iii) be for such purposes, (iv) be
prepaid for such time period and (v) be written by such companies, as may be
reasonably satisfactory to the Seasoned Warehouse Agent. All such policies
shall contain a provision whereby they may not be canceled or amended except
upon thirty (30) days' prior written notice to the Seasoned Warehouse Agent.
The Companies will promptly deliver to the Seasoned Warehouse Agent, at the
Seasoned Warehouse Agent's request and without charge, evidence satisfactory to
the Seasoned Warehouse Agent that such insurance has been so procured.
11.4 Pay Taxes. Pay promptly and within the time that they can
be paid without late charge, penalty or interest all taxes, assessments and
similar imposts and charges of every kind and nature lawfully levied, assessed
or imposed upon any Company or Subsidiary, and their property, except to the
extent being contested in good faith and, if required by the Seasoned Warehouse
Agent, bonded in an amount and manner satisfactory to the Seasoned Warehouse
Agent. If any Company or Subsidiary shall fail to pay such taxes and
assessments within the time they can be paid without penalty, late charge or
interest, the Seasoned Warehouse Agent and the Lenders shall have the option to
do so, and the Companies agree to repay the Seasoned Warehouse Agent (for
distribution to itself and/or to such other Lenders as shall have paid them)
upon demand, with interest at the Past Due Rate, all amounts so expended by the
Seasoned Warehouse Agent and the Lenders.
11.5 Maintain Corporation and Business. Do or cause to be done
all things necessary to preserve and keep in full force and effect each
Company's and Subsidiary's corporate existence, rights, licenses, permits,
governmental authorizations and franchises and comply with all applicable Laws;
continue to conduct and operate its and each of its Subsidiaries' business
substantially as conducted and operated during the present and preceding
calendar year; at all times maintain, preserve and protect all licenses,
permits, governmental authorizations, franchises and trade names and preserve
all the remainder of its and its Subsidiaries' property and keep the same in
good repair, working order and condition.
11.6 Maintain Net Worth.
(a) MCAFC's Minimum Consolidated Net Worth. Maintain MCAFC's
consolidated Net Worth as at least Twenty-five Million Dollars ($25,000,000)
plus ninety percent (90%) of all capital contributions directly or indirectly
made to it by or on behalf of its shareholders on or after January 31, 1997.
(b) MCAMC's Minimum Net Worth. Maintain MCAMC's Net Worth as at
least Ten Million Dollars ($10,000,000) plus ninety percent (90%) of all capital
contributions directly or indirectly made to it by or on behalf of its corporate
parent, MCAFC, on or after January 31, 1997.
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(c) MCA's Minimum Net Worth. Maintain MCA's Net Worth as
at least Five Million Dollars ($5,000,000) plus ninety percent (90%) of all
capital contributions directly or indirectly made to it by or on behalf of its
corporate parent, MCAFC, on or after January 31, 1997.
11.7 Limit Leverage.
(a) MCAFC's Maximum Leverage Ratio. Limit MCAFC's ratio of (i) its
total Debt to (ii) its consolidated Net Worth to 10.0 to 1.0 or less.
(b) MCAMC's Maximum Leverage Ratio. Limit MCAMC's ratio of its
total Debt to its Net Worth to 10.0 to 1.0 or less.
(c) MCA's Maximum Leverage Ratio. Limit MCA's ratio of its total
Debt to its Net Worth to 10.0 to 1.0 or less.
11.8 Maintain Servicing Portfolio Level. Maintain a Servicing Portfolio
of at least Five Hundred Million Dollars ($500,000,000).
11.9 Maintain Fixed Charges Coverage Ratio. Maintain the Fixed Charges
Coverage Ratio as 1.10 to 1.0 or greater.
11.10 ERISA. (a) At all times meet and cause each of the Subsidiaries to
meet the minimum funding requirements of ERISA with respect to the Companies'
and Subsidiaries' employee benefit plans subject to ERISA and to otherwise
comply with all applicable Laws; (b) promptly after any Company knows or has
reason to know (i) of the occurrence of any event, which would constitute a
reportable event or prohibited transaction under ERISA, or (ii) that the PBGC or
a Company has instituted or will institute proceedings to terminate an employee
pension plan, deliver to the Seasoned Warehouse Agent a certificate of the chief
financial officer of MCAFC setting forth the details as to such event or
proceedings and the action which the Companies propose to take with respect
thereto, together with a copy of any notice of such event which may be required
to be filed with the PBGC and (c) furnish to the Seasoned Warehouse Agent (or
cause the plan administrator to furnish the Seasoned Warehouse Agent) a copy of
the annual return (including all schedules and attachments) for each plan
covered by ERISA, and filed with the Internal Revenue Service by the Companies
not later than ten (10) days after such report has been so filed.
11.11 Use of Loan Proceeds. Use the proceeds of the Revolving Loans
hereunder only for the purposes set forth in the recitals of this Agreement.
11.12 Senior Management. Promptly after any change in any of the five
officers of MCAFC or MCA who have the highest degree of management or
policy-making authority for the Companies, (the individuals who are such
officers of the Effective Date are listed on SCHEDULE 11.12), regardless of the
reason for such change, notify the Seasoned Warehouse Agent in writing of such
change and
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furnish to the Seasoned Warehouse Agent a revised SCHEDULE 11.12 reflecting the
individuals then holding such positions.
11.13 Accounting; Access to Records, Books, Etc. Maintain a system of
accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in accordance
with GAAP and to comply with the requirements of this Agreement and, at any
reasonable time and from time to time, permit the Seasoned Warehouse Agent and
the Lenders or any agents or representatives thereof (i) to examine and make
copies of and abstracts from the records and books of account of, and visit the
properties of, such Person and (ii) to discuss the affairs, finances and
accounts of such Person with their respective directors, officers, employees,
and independent auditors, and by this provision each Company does hereby
authorize the same.
11.14 Further Assurances. Execute and deliver promptly after request
therefor by the Seasoned Warehouse Agent all further instruments and documents,
and take all further action that may be necessary or desirable or that the
Seasoned Warehouse Agent may reasonably request, in order to give effect to,
and to aid in the exercise and enforcement of, the rights and remedies of the
Seasoned Warehouse Agent and the Lenders under this Agreement and the other
Loan Documents.
11.15 Shareholder Changes. Promptly after any change in the ownership of
record of the voting stock of any Company (or, if known, the beneficial
ownership of such stock) which, together with any prior changes not reflected
in the most current version of SCHEDULE 11.15 furnished to the Seasoned
Warehouse Agent, constitutes a change in ownership of five percent (5%) or more
of MCAFC's outstanding voting stock -- the version of SCHEDULE 11.15 that is
attached to this Agreement is a true and complete list of the holders of the
voting stock of MCAFC and of each other Company on the Effective Date, showing
their names and the number of shares held -- notify the Seasoned Warehouse
Agent in writing of such change (and of any prior unreflected changes) and
furnish to the Seasoned Warehouse Agent a revised SCHEDULE 11.15 reflecting the
then-existing ownership structure; provided that after the issuance of MCAFC
common stock pursuant to an offering registered under the Securities Act of
1933, as amended, a revised SCHEDULE 11.15 need be furnished promptly after
MCAFC's discovery of, and then only to reflect, changes in the beneficial
ownership by any Person or group (as described in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended) which, together with any prior
unreflected changes, constitutes a change in ownership by such Person or group
of five percent (5%) or more of the shares of MCAFC common stock outstanding
immediately prior to the date of such change.
12. NEGATIVE COVENANTS
On a continuing basis from the date of this Agreement until the later
of the Termination Date or when the Obligations are paid in full and the
Companies have performed all of their other obligations hereunder, each Company
covenants and agrees that it will not, and will not permit any Subsidiary to:
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12.1 Dividends. Declare or pay any dividends on, or make any other
distribution (whether by reduction of capital or otherwise) with respect to,
any shares of its capital stock, except for (a) dividends from a Subsidiary
to a Company (including from one Company to another Company), (b) dividends
required to be paid on shares of MCAFC's Series A Cumulative Convertible
Preferred Stock and (c) dividends required to be paid on shares of MCAFC's
Series B Cumulative Convertible Preferred Stock, in each case pursuant to the
dividend payment requirements thereof as they exist on the Effective Date.
12.2 Stock Acquisition. Purchase, redeem, retire or otherwise acquire
any of the shares of its capital stock, or make any commitment to do so;
provided that shares owned by an officer of a Company may be redeemed pursuant
to a contractual arrangement requiring such a redemption upon the death or
permanent disability of such officer, but only to the extent such redemption is
funded, in full, out of insurance proceeds made available to that Company upon
such death or permanent disability or if (i) the shares redeemed are
concurrently reissued to other employees for not less than the redemption price
and (ii) payment for the issued shares is in cash; and provided further that
shares of the Companies' capital stock owned by the Pension Fund, and rights
owned by the Pension Fund to acquire the Companies' capital stock, may be
acquired by the Companies as provided in the Enhancement Agreement, the
Companies' loan agreement with the Pension Fund for the Pension Fund's $15
million subordinated debt facility for the Companies and related agreements.
12.3 Liens and Encumbrances. Create, incur, assume, or suffer to exist
any mortgage, pledge, encumbrance, security interest, lien or charge of any
kind upon any of its property or assets (including, without limit, any charge
upon property purchased or acquired under a conditional sales or other title
retaining agreement or lease required to be capitalized under GAAP) whether now
owned or hereafter acquired, other than Permitted Liens.
12.4 Indebtedness. Incur, create, assume or permit to exist any
indebtedness or liability on account of deposits or advances or any
indebtedness or liability for borrowed money, or any other indebtedness or
liability evidenced by notes, bonds, debentures, or similar obligations, or any
other indebtedness or liability whatsoever, including any lease required to be
capitalized under GAAP, except for (a) the Obligations, (b) indebtedness
subordinated to the prior payment in full of the Obligations upon terms and
conditions approved in writing by the Seasoned Warehouse Agent, in its sole
discretion, (c) existing indebtedness to the extent set forth on SCHEDULE 12.4,
(d) trade indebtedness incurred and paid in the ordinary course of business,
(e) contingent indebtedness to the extent permitted by SECTION 12.6,
(f) indebtedness secured by Permitted Liens, and (g) other indebtedness for
borrowed money which, in the aggregate, does not exceed One Hundred Thousand
Dollars ($100,000) at any time.
12.5 Extension of Credit. Make loans, advances or extensions of credit
to any Person, except for advances in the ordinary course of business relating
to or arising out of (a) the origination or acquisition of residential mortgage
loans, (b) providing a mortgage loan warehouse line of credit to a third person
in the ordinary course of the relevant Company's business, (c) travel
expenses, (d)
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commissions payable to sales representatives, (e) a Company's acquisition of a
vendor's interest under a land contract, (f) servicing obligations with regard
to mortgage or land contract pools, to the extent recoverable and (g)
rehabilitation, repair or maintenance expenses, to the extent reasonable,
incurred from time to time by real estate limited partnerships in which a
Company has a general partner interest or by Detroit Revitalization, Inc.
12.6 Guarantee Obligations. Except:
(i) by endorsing negotiable instruments in the ordinary course of
business for deposit or collection;
(ii) pursuant to (1) the Enhancement Agreement, (2) the mortgage warehouse
credit facilities and the servicing and residuals credit facilities that are
listed on the schedule of the Companies' existing liens attached as SCHEDULE
12.6 or (3) the Loan and Financing Agreement dated July 18, 1996 between the
Pension Fund, as the lender, and the Companies, as coborrowers jointly and
severally liable thereunder, described in SCHEDULE 12.4; or
(iii) in connection with the maintenance of escrow accounts for mortgages
serviced by a Company;
guarantee or otherwise, directly or indirectly, in any way be or become
responsible for obligations of any other Person, whether by agreement to
purchase the indebtedness of any other Person, agreement for the furnishing of
funds to any other Person through the furnishing of goods, supplies or
services, by way of stock purchase, capital contribution, advance or loan, for
the purpose of paying or discharging (or causing the payment or discharge of)
the indebtedness of any other Person, or otherwise.
12.7 Subordinate Indebtedness. Subordinate any indebtedness due to it
from a Person to indebtedness of other creditors of that Person.
12.8 Property Transfer; Merger or Lease-Back. (a) During any fiscal
year, sell, lease, transfer or otherwise dispose of properties and assets
having an aggregate book value of more than Two Hundred Fifty Thousand Dollars
($250,000) (whether in one transaction or in a series of transactions), except
as to the sale, in the ordinary course of business, of mortgage loans,
mortgage-backed securities, residential real estate, interests in land contracts
or mortgage servicing rights; (b) change its name, consolidate with or merge
into any other corporation, permit another corporation to merge into it, acquire
(whether in one transaction or in a series of transactions) all or substantially
all the properties or assets of any other Person where the aggregate purchase
price paid for such assets during any fiscal year exceeds One Million Dollars
($1,000,000) (less the aggregate purchase price paid during such fiscal year for
the businesses and commitments acquired pursuant to clause (ii) of the following
proviso), enter into any reorganization or recapitalization or reclassify its
capital stock or (c) enter into any sale-leaseback transaction; provided that
nothing in this SECTION 12.8 shall prevent (i) the merger of one Subsidiary
(including a Company) with or into any other
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Subsidiary or Company or (ii) the acquisition of mortgage broker businesses so
long as the aggregate purchase price paid therefor during any fiscal year does
not exceed One Million Dollars ($1,000,000).
12.9 Nature of Business. Make any substantial change in the nature of
its or any Subsidiary's business from that engaged in on the date of this
Agreement or engage in any other businesses other than those in which such
Company or Subsidiary is engaged on the date of this Agreement.
12.10 Acquire Securities. Purchase (except as permitted by SECTION 12.2)
or hold beneficially any stock or other securities of, or make any investment or
acquire any interest whatsoever in, any other Person, except for the common
stock of the Subsidiaries owned, directly or indirectly, by a Company on the
date of this Agreement and except for certificates of deposit with maturities of
one year or less of United States commercial banks with capital, surplus and
undivided profits in excess of One Hundred Million Dollars ($100,000,000) and
direct obligations of the United States Government maturing within one year from
the date of acquisition thereof; provided that if a Company shall inadvertently
purchase or otherwise become the beneficial holder of any stock or securities in
violation of this covenant, that will not constitute an Event of Default unless
such Company shall fail or refuse to divest itself thereof on or before thirty
(30) days after first becoming aware of such violation.
12.11 Acquire Fixed Assets. Acquire or expend for, or commit itself to
acquire or expend for, fixed assets by lease, purchase or otherwise in an
aggregate amount that exceeds One Million Dollars ($1,000,000) in any fiscal
year.
12.12 Pension Plans. (a) Allow any fact, condition or event to occur or
exist with respect to any employee pension or profit sharing plans established
or maintained by it which might constitute grounds for termination of any such
plan or for the court appointment of a trustee to administer any such plan, or
(b) permit any such plan to be the subject of termination proceedings (whether
voluntary or involuntary) from which termination proceedings there may result a
liability of any Company or any Subsidiary to the PBGC which, in the opinion of
the Seasoned Warehouse Agent, will have a Material Adverse Effect.
12.13 Affiliate Transactions. Enter into, or be a party to, or permit any
Subsidiary to enter into or be a party to, any material transaction, agreement
or other arrangement with any Affiliate or shareholder, except (a) in the
ordinary course of business and upon fair and reasonable terms which are not
less favorable to such Company or Subsidiary than it would obtain in a
comparable arm's length transaction with a Person not an Affiliate or
shareholder of such Company or Subsidiary, (b) as set forth on SCHEDULE 12.13 or
(c) as otherwise contemplated in clause (i) of the proviso set forth in SECTION
12.8; provided that if a Company shall inadvertently enter into a transaction
that violates this covenant -- or if circumstances shall change such that a
transaction with an Affiliate that did not initially violate this covenant does
violate it -- that will not constitute an Event of Default unless each affected
Company shall fail or refuse to cure such violation (and all of its material
effects) to
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the Seasoned Warehouse Agent's satisfaction on or before thirty (30) days after
first becoming aware of such violation.
12.14 Servicing Matters. Fail to comply or otherwise breach, in
any material respect, any servicing contract or obligation with respect to any
of the Servicing Rights or commit or suffer to be committed any act which would
adversely affect its ability to service mortgage loans on behalf of GNMA, FNMA,
FHLMC or any other investor for whom any Company services residential mortgage
loans.
12.15 Misrepresentation. Furnish the Seasoned Warehouse Agent
or any Seasoned Warehouse Lender with any certificate or other document that
contains any untrue statement of a material fact or omits to state a material
fact necessary to make such certificate or document not misleading in light of
the circumstances under which it was furnished.
13. EVENTS OF DEFAULT; REMEDIES; APPLICATION OF PROCEEDS
13.1 Events of Default. The occurrence of any of the following events
shall constitute an Event of Default:
(a) Failure to Pay Monies Due. If the Companies shall fail to pay,
when due, any principal or interest under any Revolving Credit Note or any other
Obligations owed under this Agreement or if any Company or Subsidiary shall fail
to pay, when due, any other indebtedness, obligation or liability whatsoever to
the Lenders or the Seasoned Warehouse Agent under the Loan Documents, and in the
case of (a) any failure to pay interest under the Revolving Credit Notes when
due, such failure shall not be cured within five (5) days (there is no grace
period for any payments due other than interest payments).
(b) Misrepresentation. If any warranty or
representation of the Companies in connection with or contained in this
Agreement, or if any financial data or other information now or hereafter
furnished to the Seasoned Warehouse Agent or any Lender by or on behalf of the
Companies, shall prove to be false or misleading in any material respect.
(c) Noncompliance with Loan Documents. If any Company
or Subsidiary shall fail to perform, in the time and manner required, any of its
obligations or covenants under, or shall fail to comply with any of the
provisions of, this Agreement, the Revolving Credit Notes or the Security
Agreement, which does not involve the failure to make a payment when due
specified in SECTION 13.1(a) and which is not cured within thirty (30) days
after the earlier of the date of notice to such Company by the Seasoned
Warehouse Agent of such Default or the date the Seasoned Warehouse Agent is
notified, or should have been notified pursuant to the Companies' obligation
under SECTION 11.2(g), of such Default; provided that there shall be no cure
period with respect to any failure to perform under, or comply with the
provisions of, SECTIONS 11.2 (except Section 11.2(g)), 11.6, 11.7, 11.8, 11.11
and 12.1 through 12.15.
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(d) Event of Default under Servicing/Residuals Loan Agreement. If
any Event of Default (as therein defined) shall occur under the
Servicing/Residuals Loan Agreement.
(e) Event of Default under Seasoned Warehouse Credit Agreement. If
any Event of Default (as therein defined) shall occur under the Seasoned
Warehouse Credit Agreement.
(f) Other Defaults. In respect of indebtedness to any Person other
than indebtedness to the Seasoned Warehouse Lenders under the Seasoned Warehouse
Loan Documents, the Servicing/Residuals Loan Agreement or the Seasoned Warehouse
Credit Agreement, if any Company or Subsidiary shall either (i) default in the
payment when due of any of its indebtedness which individually or in the
aggregate equals or exceeds One Hundred Thousand Dollars ($100,000), or (ii)
default in the observance or performance of any term, covenant or condition in
any agreement or instrument evidencing, securing or relating to such
indebtedness which individually or in the aggregate equals or exceeds One
Hundred Thousand Dollars ($100,000) and such default in observance or
performance results in acceleration by the holder thereof.
(g) Judgments. If there shall be rendered against any Company or
Subsidiary one or more judgments or decrees involving an aggregate liability of
One Hundred Thousand Dollars ($100,000) or more, which has become non-appealable
and shall remain undischarged, unsatisfied by insurance and unstayed for more
than thirty (30) days, whether or not consecutive; or if a writ of attachment or
garnishment against the property of any Company or Subsidiary shall be issued
and levied in an action claiming One Hundred Thousand Dollars ($100,000) or more
and not released or appealed and bonded in an amount and manner satisfactory to
the Seasoned Warehouse Agent within thirty (30) days after such issuance and
levy.
(h) Business Suspension, Bankruptcy, Etc. If any Company or
Subsidiary shall voluntarily suspend transaction of its business; or if any
Company or Subsidiary shall not pay its debts as they mature, admit in writing
its inability to pay its debts as they mature or make a general assignment for
the benefit of creditors; or proceedings in bankruptcy, or for reorganization or
liquidation, of any Company or Subsidiary under any Debtor Law (i) shall be
commenced or consented to by any Company or Subsidiary, or (ii) shall be
involuntarily commenced against any Company or Subsidiary and shall not be
discharged within thirty (30) days of commencement; or a receiver, trustee or
custodian shall be appointed for any Company or Subsidiary or for any
substantial portion of their respective properties or assets.
(i) Change of Management or Ownership. If any Company or
twenty-five percent (25%) or more of any Company's voting stock or a substantial
portion of its assets comes under the practical, beneficial or effective control
of one Person or a group (as described in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended) of Persons other than the existing holders of
MCAFC voting stock, whether by reason of death, merger, consolidation, sale or
purchase of stock or assets or otherwise; or if any two of the individuals who
are the officers listed from time to time on SCHEDULE 11.12 shall no longer
remain in office, whether by reason of death, resignation or otherwise, or shall
cease for any reason to perform the substantive functions and duties of that
office;
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and any such change of control or office holder may adversely affect, in the
judgment of the Seasoned Warehouse Agent, the ability of such Company to carry
on its business as conducted before such change.
(j) Material Adverse Change; Insecurity. If
there shall have occurred any other material adverse change in the business,
operations, properties, condition (financial or otherwise) or prospects of any
Company, or the Seasoned Warehouse Agent shall otherwise reasonably deem the
Lenders to be insecure with regard to the prospects of having the Obligations
repaid by the Borrowers on a timely basis.
13.2 Automatic Termination and Acceleration. Upon the
occurrence of an Event of Default described in SECTION 13.1(h), the Seasoned
Warehouse Lenders' Commitments shall automatically terminate and the Seasoned
Warehouse Notes and all of the other Obligations shall automatically become
immediately due and payable without notice, presentment, demand or other
requirements of any kind (all of which are hereby expressly waived by the
Companies) unless all of the Seasoned Warehouse Lenders, each acting in its
sole discretion, shall otherwise agree in writing either before or after such
automatic event.
13.3 Acceleration for Other Default. At any time after
any Event of Default has occurred -- other than one of those described in
SECTION 13.1(h), each of which has the automatic effects described in SECTION
13.2 -- that has not been declared in writing by the Seasoned Warehouse Agent
to have been cured or waived, the Majority Seasoned Warehouse Lenders, by
written notice to the Companies (which may be given by the Seasoned Warehouse
Agent), may electively (1) terminate the Commitments -- in which event the
obligation of the Seasoned Warehouse Lenders to make Seasoned Warehouse
Revolving Loans shall immediately terminate -- and/or (2) declare all or any
portion of the Seasoned Warehouse Revolving Loans to be due and payable -- in
which event that portion of the Revolving Loans, both advanced and unpaid
principal and accrued and unpaid interest on it and all other outstanding
amounts, shall immediately be and become due and payable without notice,
presentment, demand or other requirements of any kind (all of which are hereby
expressly waived by the Companies).
13.4 Remedies; Remedies Are Cumulative. Upon any such
automatic or declared acceleration described or referred to in SECTION 13.2 or
13.3, unless all of the Obligations which thereupon became due are immediately
fully paid, the Seasoned Warehouse Agent shall have and may exercise any one or
more of the rights and remedies for which provision is made for a secured party
under the UCC, under the Security Agreement or under any other documents
contemplated hereby or for which provision is provided by law or in equity,
including the right of the Seasoned Warehouse Agent to take possession and
sell, lease or otherwise dispose of any or all of the Collateral and the right
of the Seasoned Warehouse Agent or any of the Seasoned Warehouse Lenders to set
off against the Obligations any amount owing by the Seasoned Warehouse Agent or
that Lender to any Company and/or any property of any Company in possession of
the Seasoned Warehouse Agent or that Lender (other than funds held in escrow or
custodial accounts maintained by a Company with Texas Commerce). The Companies
agree, upon request of the Seasoned
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Warehouse Agent, to assemble the Collateral and make it available to the
Seasoned Warehouse Agent at any place designated by the Seasoned Warehouse
Agent which is reasonably convenient to the Seasoned Warehouse Agent and the
Companies. The remedies provided for herein are cumulative of the remedies for
collection of the Obligations as provided by law, in equity or by any security
agreement, pledge agreement, guaranty or other document contemplated hereby.
Nothing herein contained is intended, nor shall it be construed, to preclude
the Seasoned Warehouse Agent from pursuing any other remedy for the recovery of
any other sum to which the Seasoned Warehouse Agent or the Lenders may be or
become entitled for the breach of this Agreement by the Companies.
13.5 Agent and Lenders Not Liable; Waiver of
Claims. Neither the Seasoned Warehouse Agent nor any of the Lenders shall
incur any liability as a result of the sale of the Collateral, or any part of
it, at any private sale made in compliance with applicable law and their
respective obligations under the Seasoned Warehouse Loan Documents. The
Companies hereby waive any claims they may have against the Seasoned Warehouse
Agent or the Lenders arising by reason of the fact that the price at which the
Collateral may have been sold at such private sale was less than the price that
might have been obtained at a public sale, less than the price that might have
been obtained had the Collateral been sold pursuant to a purchase commitment
for it obtained by the Companies, or less than the aggregate amount of the
outstanding Revolving Loans and the unpaid interest accrued on them, even if
the Seasoned Warehouse Agent accepts the first offer received and does not
offer the Collateral to more than one offeree.
13.6 Waiver of Possible Implied Obligations. The
Companies waive any right to require the Seasoned Warehouse Agent or any Lender
to (1) proceed against any Person, (2) proceed against or exhaust any of the
Collateral or pursue its rights and remedies as against the Collateral in any
particular order or (3) pursue any other remedy in its power. Except to the
extent, if any, required by applicable Law, neither the Seasoned Warehouse
Agent nor any Seasoned Warehouse Lender shall be required to take any steps
necessary to preserve any rights of the Companies against holders of Mortgage
Loans or Land Contracts or security interests prior in lien to the Lien of any
Lien instrument included in the Collateral, to preserve rights against prior
parties or to preserve rights against other parties to servicing contracts.
13.7 Protective Advances. The Seasoned Warehouse
Agent and the Lenders may, but shall not be obligated to, advance any sums or
do any act or thing necessary to uphold and enforce the Lien and priority of
any Lien instrument included in the Collateral or the security intended to be
afforded by it, including payment of delinquent taxes or assessments and
insurance premiums, or to preserve or reinstate any hedging arrangements or
mechanisms. All advances, charges, costs and expenses, including reasonable
attorneys' fees and disbursements, incurred or paid by the Seasoned Warehouse
Agent or any Lender in exercising any right, power or remedy conferred by this
Agreement or any of the other Loan Documents, or in its enforcement, together
with interest thereon, at the Base Rate plus one percent (1%) per annum from
the time of demand for its payment until ten (10) days thereafter, and at the
Past Due Rate from ten (10) days after demand until repaid, shall become a part
of principal balance outstanding under the Seasoned Warehouse Notes (Pro Rata
with
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the respective principal balances of the Seasoned Warehouse Notes at the time
of expenditure) and shall be secured by all security for the Seasoned Warehouse
Notes.
13.8 Delay Not Waiver. No failure on the part of the Seasoned
Warehouse Agent or any Lender to exercise, and no delay in exercising, any
right, power or remedy provided under any of the Loan Documents, at law or in
equity, shall operate as a waiver of it, nor shall any single or partial
exercise by the Seasoned Warehouse Agent or any Lender of any right, power or
remedy provided under any of the Loan Documents, at law or in equity, preclude
any other or further exercise of it or the exercise of any other right, power or
remedy.
13.9 Application of Proceeds. All of the Obligations shall
constitute one loan secured by the Seasoned Warehouse Agent's security interest
(as agent and Representative of the Seasoned Warehouse Lenders) in the
Collateral and by all other security interests, mortgages, liens, claims and
encumbrances now and from time to time hereafter granted from the Companies to
the Seasoned Warehouse Agent (as agent and Representative of the Seasoned
Warehouse Lenders.) The proceeds of any sale or other enforcement of the Lender
Lien in all or any part of the Collateral shall be applied by the Seasoned
Warehouse Agent:
First, to the payment of the costs and expenses of such sale or
enforcement, including reasonable compensation to the Seasoned Warehouse
Agent's counsel and agents, and all expenses, liabilities and advances made or
incurred by or on behalf of the Seasoned Warehouse Agent in connection
therewith;
Second, to the payment of any accrued and unpaid fees and other
amounts due (other than principal and interest) under the Revolving Credit
Notes, this Agreement, the Security Agreement or the other Loan Documents;
Third, to the payment of interest accrued and unpaid on the Revolving
Credit Notes, Pro Rata;
Fourth, to the payment of the outstanding principal balances of the
Revolving Credit Notes, Pro Rata -- at this application level, collections from
and proceeds of Collateral shall be applied first to the repayment of
Foreclosure/REO/Repurchase Borrowings outstanding and any remaining proceeds
shall be applied to repay other outstanding Borrowings; and
Finally, to the payment to the Borrowers, or to their successors or
assigns, or as a court of competent jurisdiction may direct, of the surplus, if
any, then remaining from such proceeds.
If the proceeds of any such sale are insufficient to cover the costs and
expenses of such sale, as aforesaid, and the payment in full of the Seasoned
Warehouse Notes and the Obligations and all other amounts (if any) due under
the Loan Documents, then the Companies shall remain liable for any deficiency,
and shall be obligated to pay it without notice or demand.
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13.10 Concerning Obligations Payable Upon Demand. To the extent that
any of the Obligations are payable upon demand under the terms of this
Agreement, nothing contained in this Agreement or any document contemplated
hereby shall be construed to prevent the Seasoned Warehouse Agent from making
demand, without notice and with or without reason, for immediate payment of all
or any part of such Obligations at any time or times, whether or not a Default
or an Event of Default has occurred.
13.11 Marshaling. Each Company, to the extent it may lawfully do so,
on behalf of itself and all who may claim through or under it, including any and
all subsequent creditors, vendees, assignees and lienors, waives and releases
all rights to demand or to have any marshaling of the Collateral upon any sale,
whether made under any power of sale granted herein or in any other document
contemplated hereby or pursuant to judicial proceedings or upon any foreclosure
or any enforcement of this Agreement or any other document contemplated hereby
and consents and agrees that all the Collateral may at any such sale be offered
and sold as an entirety or separately.
13.12 Cure or Waiver. If:
(a) an Event of Default shall occur but subsequently the
required number of Lenders shall waive the rights of the Lenders and the
Seasoned Warehouse Agent to exercise remedies on account of such Event of
Default (whether temporarily or permanently and whether conditionally or
absolutely); provided that neither the Lenders nor the Seasoned Warehouse Agent
shall have any obligation to do so; and
(b) the Borrowers shall request in writing that the Seasoned
Warehouse Agent declare such Event of Default to have been cured or waived; then
(but not otherwise) the Seasoned Warehouse Agent shall make such declaration in
writing and shall deliver a copy of the declaration to the Borrowers and each
Lender.
14. RELATIONSHIPS AMONG THE AGENT AND THE LENDERS.
14.1 Agent's Duties. In its capacity as servicer of the Seasoned
Warehouse Revolving Loans and until the Seasoned Warehouse Revolving Loans are
fully paid and satisfied, the Seasoned Warehouse Agent shall:
(a) hold the Seasoned Warehouse Loan Documents (other than the
Seasoned Warehouse Notes, each of which shall be held by and belong solely to
its payee) and the Seasoned Warehouse Collateral for the benefit of itself and
each other Seasoned Warehouse Lender, and each Lender (including Texas Commerce)
shall be deemed to have an interest in the Loan Documents (other than the
Seasoned Warehouse Notes, as stated above) and in the Lender Lien in and to the
Collateral on any day in proportion to its Pro Rata interest in the Seasoned
Warehouse Revolving Loans on that day;
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(b) send timely bills to the Companies for accrued interest, the
Facility Fee and other sums due and receive all payments of principal, interest
and other sums on account of the Seasoned Warehouse Revolving Loans or with
respect to them or the Commitments and remit them to the Seasoned Warehouse
Lenders in accordance with the provisions of SECTION 7.2;
(c) send the Seasoned Warehouse Lenders copies of supplements and
amendments to SCHEDULE AI promptly after they are made;
(d) notify the Lenders of any election made by the Borrowers pursuant
to SECTION 7.3 to terminate or reduce the Seasoned Warehouse Lenders'
Commitments.
(e) use reasonable diligence to obtain from the Companies and
promptly remit to each Lender that proportion of the Facility Fee received by
the Seasoned Warehouse Agent that bears the same ratio to the total Facility Fee
so received as that Lender's Committed Sum for the relevant period bears to the
Aggregate Committed Sum for the same period and (ii) such Lender's Pro Rata
share of interest, principal and other sums received by the Seasoned Warehouse
Agent on account of the Seasoned Warehouse Revolving Loans or with respect to
them, in accordance with this Agreement;
(f) use reasonable diligence to recover from the Companies all
expenses incurred that are reimbursable by the Companies, and promptly remit to
each Lender its share (if any) thereof;
(g) enforce the terms of this Agreement, including, with the approval
or at the direction of the Majority Seasoned Warehouse Lenders, the remedies
afforded the Lenders pursuant to SECTION 13.4; and
(h) hold all security interests ratably for itself as agent and
Representative of and on behalf of the Seasoned Warehouse Lender(s).
14.2 Actions Requiring All Lenders' Consent. Without the written
consent or ratification of all Seasoned Warehouse Lenders, the Seasoned
Warehouse Agent shall not:
(a) extend the due date or reduce the amount of any mandatory
principal payment.
(b) release any material Lien held under the Loan Documents other
than in accordance with the Loan Documents.
(c) waive, compromise or settle any material claim against the
Companies or release any of them from any material obligation or liability under
the Seasoned Warehouse Loan Documents.
(d) agree to any change in the interest rate or fee provisions --
excluding the Seasoned Warehouse Agent's Fee and the Custodian's Fee -- of this
Agreement.
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(e) increase the Aggregate Committed Sum or
increase the maximum principal amount of the Seasoned Warehouse Revolving Loans
above the Aggregate Committed Sum.
(f) change any Lender's Pro Rata share of the
Seasoned Warehouse Revolving Loans other than in accordance with the express
provisions of the Seasoned Warehouse Loan Documents.
(g) extend the Termination Date.
(h) change any provision of this Agreement that
specifically requires the approval of, or other action by, all Seasoned
Warehouse Lenders, including (i) the provisions of this SECTION 14.2, (ii) the
parenthetical in the first sentence of SECTION 3.1 requiring all Seasoned
Warehouse Lenders' to elect in writing to continue lending under this Agreement
despite the existence of an uncured and unwaived Default or Event of Default,
(iii) the last clause of SECTION 13.2 requiring all Seasoned Warehouse Lenders'
written consent to override the automatic acceleration of maturity of the
Obligations and termination of the Seasoned Warehouse Lenders' Commitments
after an Event of Default described in SECTION 13.1(h), (iv) the last sentence
of SECTION 14.17(a) requiring all Seasoned Warehouse Lenders' consent or
ratification of any amendment to that Section (concerning participations), (v)
the proviso in the first sentence of SECTION 16.11 prohibiting the Companies'
assignment or delegation of their rights, benefits or duties hereunder without
all Seasoned Warehouse Lenders' consent or confirmation and (vi) the last
sentence of SECTION 16.19 requiring all Seasoned Warehouse Lenders' execution
of a written instrument to modify or relinquish the jury trial waiver
provisions of that Section.
14.3 Actions Requiring Majority Lenders' Consent. Without
the written consent or ratification of the Majority Seasoned Warehouse Lenders,
the Seasoned Warehouse Agent shall not:
(a) notify the Borrowers that the Commitments are
terminated or that the maturity of all or any part of the Seasoned Warehouse
Revolving Loans has been accelerated unless an Event of Default described in
SECTION 13.1(h) has occurred (in which event the Commitments shall
automatically terminate and the maturity of the Seasoned Warehouse Revolving
Loans shall be automatically accelerated and the Seasoned Warehouse Agent may
so notify the Borrowers, but no such notice shall be required for any purpose).
(b) exercise any of the remedies for default described in
SECTION 13.4.
(c) cause or permit any material change in the terms of any
affirmative or negative covenants in this Agreement.
(d) cause or permit any material change in the eligibility
standards for Collateral hereunder, including approving any material increase
in the maximum principal amount thereof.
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(e) make or consent to any materially adverse amendment,
modification or waiver of any of the terms, covenants, provisions or conditions
of the Loan Documents.
(f) waive any material default under the Loan Documents.
(g) materially change the definition of any type of
Eligible Seasoned Collateral.
(h) materially change any date on which any payments by the
Companies are due under the Loan Documents.
(i) approve any Change of Control.
(j) approve any replacement for any Company's president and chief
executive officer or its chief operating officer or any reassignment of such
officers' principal duties, responsibilities or functions.
(k) amend any provision of this Agreement.
14.4 Agent's Discretionary Actions. Except as provided in SECTIONS 14.2
and 14.3, in its capacity as servicer and without seeking or obtaining the
consent of any of the other Seasoned Warehouse Lenders (although it may elect to
obtain such consent before acting it if deems that desirable), the Seasoned
Warehouse Agent may:
(a) agree or consent to any change in the handling of the
Collateral which in the Seasoned Warehouse Agent's reasonable judgment is
unlikely to have a Material Adverse Effect;
(b) release, reconvey or change, in whole or in part, any
Collateral or Lien which is required to be released or reconveyed in accordance
with the Loan Documents; and
(c) do or perform any act or thing which, in the Seasoned
Warehouse Agent's reasonable judgment, is necessary or appropriate to enable
the Seasoned Warehouse Agent to properly discharge and perform its duties
under this Agreement and the other Loan Documents, or which in its reasonable
judgment is necessary or appropriate to preserve or protect the validity,
integrity or enforceability of the Loan Documents, the Liens created by the
Loan Documents, such Liens' priorities, the Collateral or the interest of the
Lenders in them.
14.5 Lenders' Cooperation. The Lenders agree to cooperate among
themselves and with the Seasoned Warehouse Agent and from time to time upon the
Seasoned Warehouse Agent's request, to execute and deliver such papers as may be
reasonably necessary to enable the Seasoned Warehouse Agent, in its capacities
as agent, servicer and documents custodian, to effectively administer and
service the Revolving Loans and each Lender's Seasoned Warehouse Note in the
manner contemplated by this Agreement.
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14.6 Lenders' Sharing Arrangement. Each of the Lenders agrees that if it
should receive any amount (whether by voluntary payment, realization upon
security, the exercise of the right of set-off, or otherwise) which is
applicable to the payment of the principal of, or interest on, the Seasoned
Warehouse Revolving Loans, or fees, of an amount that with respect to the
related sum or sums received (or receivable) by the other Lenders is in greater
proportion than that Lender's Pro Rata ownership of the Seasoned Warehouse
Revolving Loans, then such Lender receiving such excess amount shall purchase
from the other Lenders an interest in the obligations of the Companies under
this Agreement or any of the Seasoned Warehouse Loan Documents in such amount as
shall result in a proportional participation by all of the Seasoned Warehouse
Lenders in such excess amount; provided that if all or any portion of such
excess amount is thereafter recovered from such Seasoned Warehouse Lender, such
purchase shall be rescinded, the purchase price restored to the extent of such
recovery and allocations of interest on and fees (if any) related to such excess
shall be equitably adjusted among the affected Seasoned Warehouse Lenders.
14.7 Lenders' Acknowledgment. Each Lender other than Texas Commerce
hereby acknowledges that Texas Commerce has made no representations or
warranties with respect to the Revolving Loans other than as expressly set forth
in this Agreement and that Texas Commerce shall have no responsibility (in its
capacity as a Seasoned Warehouse Lender, the Seasoned Warehouse Agent, the
Custodian or in any other capacity or role) for:
(a) the collectability of the Revolving Loans;
(b) the validity, enforceability or any legal effect of any of the
Loan Documents, any Collateral Papers or any insurance, bond or similar device
purportedly protecting any obligation to the Lenders or any Collateral; or
(c) the financial condition of the Companies or any of their
Subsidiaries or Affiliates, the status, health or viability of any industry in
which any of them is involved, the prospects for repayment of the Revolving
Loans, the value of any Collateral (except for the Seasoned Warehouse Agent's
calculations of the Borrowing Base as stated in its Borrowing Base Reports
issued to the Seasoned Warehouse Lenders from time to time), the effectiveness
of any of the provisions of the Loan Documents (including the financial
covenants, tests and hedging requirements) or any aspect of their implementation
or administration at any time to reduce or control risks of any type, to produce
returns, profits, yields or spreads or to reduce or control losses or the
accuracy of any information supplied by or to be supplied in connection with any
of the Companies or any of their Subsidiaries or Affiliates, or otherwise with
respect to the Revolving Loans, any Collateral or any source of equity or other
financing for any of such companies.
14.8 Agent's Representations to Lenders. The Seasoned Warehouse Agent
hereby represents and warrants to the Seasoned Warehouse Lenders (other than
itself) that:
(a) the Seasoned Warehouse Agent has delivered to each Lender true
copies of the originals of those Loan Documents which have been specifically
requested by that Lender; and
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(b) the Seasoned Warehouse Agent has no current actual knowledge
that any Event of Default has occurred and is continuing on the Effective Date
of this Agreement or on the date of any Swing Loan.
14.9 Agent's Duty of Care, Express Negligence Waiver and Release. At all
times until the Seasoned Warehouse Revolving Loans have been paid in full, the
Seasoned Warehouse Agent shall exercise the same degree of care in handling the
Seasoned Warehouse Revolving Loans and the Collateral as Texas Commerce
exercises with respect to loans that are held solely by Texas Commerce for its
own account, and the Seasoned Warehouse Agent, in its capacity as agent and
servicer, shall have no responsibility to the Lenders other than to exercise
such standard of care and, in any event, Texas Commerce shall have no liability
with respect to any other Seasoned Warehouse Lender's Pro Rata interest in the
Revolving Loans except for Texas Commerce's own gross negligence or willful
misconduct. Except in the case of its own fraud, gross negligence or willful
misconduct, neither the Seasoned Warehouse Agent, any Lender, nor any of their
officers, directors, employees, attorneys or agents shall be liable for any
action taken or omitted to be taken by it or them under this Agreement or any of
the other Loan Documents reasonably believed by it or them to be within the
discretion or power conferred upon it or them by the Loan Documents or be
responsible for consequences of any error of judgment, THE LENDERS EXPRESSLY
INTENDING TO HEREBY WAIVE AND RELEASE ALL PRESENT AND FUTURE CLAIMS AND RIGHTS
AGAINST THE SEASONED WAREHOUSE AGENT FOR DAMAGES OR INJURIES CAUSED BY THE
SEASONED WAREHOUSE AGENT'S OWN SOLE OR CONCURRENT ORDINARY NEGLIGENCE AND THAT
SUCH WAIVER AND RELEASE BE BINDING UPON THE LENDERS AND THEIR SUCCESSORS,
SUBROGEES AND ASSIGNS. Except as otherwise specifically and expressly set forth
in this Agreement, the Seasoned Warehouse Agent shall not be responsible in any
manner to anyone for the effectiveness, enforceability, genuineness, validity or
due execution (except by the Seasoned Warehouse Agent) of this Agreement, any
supplement, amendment or restatement of it or of any other Loan Documents or for
any representation, warranty, document, certificate, report or statement made or
furnished (except by the Seasoned Warehouse Agent) in, under or in connection
with this Agreement or any of the other Loan Documents or be under any
obligation to anyone to ascertain or to inquire as to the performance or
observation of any of the terms, covenants or conditions of this Agreement or of
the other Loan Documents on the part of the Companies or anyone else. Without
limiting the generality of the foregoing provisions of this Section, the
Seasoned Warehouse Agent, in its capacities as agent and servicer and Collateral
custodian, may seek and rely upon the advice of legal counsel in taking or
refraining from taking any action under any of the Loan Documents or otherwise
in respect of the Revolving Loans and the Collateral or in dealing with any
party to any of the Loan Documents or the Collateral, and shall be fully
protected in relying upon such advice.
14.10 Calculations of Shares of Principal and Other Sums. Except as
provided to the contrary in SECTION 6.3(a) ("Rate of Return Maintenance
Covenant"), SECTION 6.7 ("Seasoned Warehouse Agent's Fee"), SECTION 6.8
("Custodian's Fee"), SECTION 13.9 ("Application of Proceeds") and SECTION 15
("Reimbursement of Expenses; Indemnity"), Texas Commerce's and each other
Lender's respective shares of principal, interest and other sums received by the
Seasoned
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Warehouse Agent on account of the Seasoned Warehouse Revolving Loans or with
respect to them shall be calculated on the basis of each Lender's (including
Texas Commerce's) respective Pro Rata ownership interests in the Revolving
Loans from time to time.
14.11 Qualifications of the Seasoned Warehouse Agent. The Seasoned
Warehouse Agent shall at all times be a commercial bank or trust company
organized and doing business under the laws of the United States of America or
any state, district or territory of it authorized under such laws to exercise
corporate trust powers, having a combined capital and unimpaired surplus of at
least One Hundred Million Dollars ($100,000,000), having -- or if owned by a
bank holding company, such bank holding company having -- either (i) a rating of
C or better by Thomson Bank Watch, Inc. or (ii) a rating of either "A" or better
by Standard & Poor's Ratings Group or "A" or better by Xxxxx'x Investors
Service, Inc. for its most senior class of unsecured debt and subject to
supervision or examination by any federal, state, district or territorial
Governmental Authority. If such commercial bank or trust company publishes
reports of conditions at least annually, pursuant to law or to the requirements
of its supervising or examination Governmental Authority, then for the purposes
of this Section, the combined capital and unimpaired surplus of such commercial
bank or trust company shall be deemed to be its combined capital and unimpaired
surplus as set forth in its most recent report of condition so published. In
case the Seasoned Warehouse Agent shall cease at any time to be eligible in
accordance with the provisions of this Section, the Seasoned Warehouse Agent
shall resign immediately in the manner and with the effect hereinafter specified
in this SECTION 14.
14.12 Resignation of the Seasoned Warehouse Agent. The Seasoned Warehouse
Agent, or any agent or agents hereafter appointed, at any time may resign by
giving written notice of resignation to the Borrowers and the Lenders and
complying with the applicable provisions of this SECTION 14. Upon receiving
such notice of resignation, a successor Agent shall be promptly appointed by all
of the Lenders -- excluding for purposes of this Section a Lender that is then
the Seasoned Warehouse Agent -- by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Agent and one copy to the
successor Agent. No such successor Agent shall be appointed that has not been
approved in writing by the Borrowers, which approval shall not unreasonably be
conditioned, delayed or withheld, unless an Event of Default has occurred that
has not been declared in writing by the Agent to have been cured or waived (in
which event no such Borrowers' approval shall be required).
14.13 Removal of the Seasoned Warehouse Agent. If (a) the Seasoned
Warehouse Agent shall cease to be eligible in accordance with the provisions of
SECTION 14.11 and shall fail to resign after written request by all of the
Lenders other than the Lender that is then the Seasoned Warehouse Agent; (b) a
receiver of the Seasoned Warehouse Agent or of its property shall be appointed
or any Governmental Authority shall take charge or control of the Seasoned
Warehouse Agent or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation or (c) the Seasoned Warehouse Agent shall be grossly
negligent in the performance of its material duties and obligations under this
Agreement or the Security Agreement or engage in willful misconduct concerning
any such material duties and obligations, then, in any such case, upon the
unanimous consent of all the Lenders -- excluding for purposes of this Section a
Lender that is then the Seasoned Warehouse
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Agent -- the Seasoned Warehouse Agent may be removed and a successor Agent
appointed by written instrument, in duplicate, one copy of which shall be
delivered to the Seasoned Warehouse Agent so removed and one copy to the
successor Agent. No such successor Agent shall be appointed that has not been
approved in writing by the Borrowers, which approval shall not unreasonably be
conditioned, delayed or withheld, unless an Event of Default has occurred that
has not been declared in writing by the Agent to have been cured or waived (in
which event no such Borrowers' approval shall be required).
14.14 Effective Date of Resignation or Removal. No resignation or removal
of the Seasoned Warehouse Agent shall be effective until a successor agent is
appointed pursuant to the provisions of this SECTION 14 and has accepted the
appointment as provided in this SECTION 14.
14.15 Successor Agent. Any successor Agent appointed as provided in this
SECTION 14 shall execute and deliver to the Borrowers, the Lenders and its
predecessor Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the predecessor Agent shall become effective and such
successor Agent, without any further act, deed or conveyance, shall become
vested with all the rights and obligations of its predecessor, with like effect
as if originally named as the Seasoned Warehouse Agent; provided that upon the
written request of the Borrowers, all of the Lenders or the successor Agent, the
Seasoned Warehouse Agent ceasing to act shall execute and deliver (a) an
instrument transferring to such successor Agent all of the rights of the
Seasoned Warehouse Agent so ceasing to act and (b) to such successor Agent such
instruments as are necessary to transfer the Collateral to such successor Agent
(including assignments of all Collateral or Loan Documents). Upon the request of
any such successor Agent made from time to time, the Borrowers shall execute any
and all papers which the successor Agent shall request or require to more fully
and certainly vest in and confirm to such successor Agent all such rights. No
successor Agent shall accept appointment as provided in this Section unless at
the time of such acceptance such successor Agent shall be eligible under the
provisions of SECTION 14.11.
14.16 Merger of the Seasoned Warehouse Agent. Any Person into
which the Seasoned Warehouse Agent may be merged or converted or with which it
may be consolidated, or any Person surviving or resulting from any merger,
conversion or consolidation to which the Seasoned Warehouse Agent shall be a
party or any Person succeeding to the commercial banking business of the
Seasoned Warehouse Agent, shall be the successor Agent without the execution or
filing of any paper or any further act on the part of any of the parties.
14.17 Participation; Assignment.
(a) Participations. Each Seasoned Warehouse Lender
reserves the rights, with or without notice to the Companies, the Seasoned
Warehouse Agent or the other Lenders, (i) to pledge any or all of its interests
under this Agreement to a Federal Reserve Bank and (ii) to sell to any bank,
savings and loan, savings bank, credit union, other deposit-taking financial
institution or commercial lending institution, participations in such Lender's
Seasoned Warehouse Revolving Loans, Seasoned Warehouse Note or Commitment.
Participants shall have no rights under the Loan
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Documents other than certain voting rights as provided below. Each Lender
shall be entitled to obtain (on behalf of its participants) the benefits of
this Agreement with respect to all participants in its Seasoned Warehouse
Revolving Loans outstanding from time to time; provided that the Companies
shall not be obligated to pay any amount in excess of the amount that would be
due to such Seasoned Warehouse Lender calculated as though no participation had
been made. No Seasoned Warehouse Lender shall sell any participating interest
under which the participant shall have any rights to approve any amendment,
modification or waiver of any Loan Documents, except to the extent such
amendment, modification or waiver (i) extends the due date for payment of any
amount in respect of principal, interest or fees -- other than the Seasoned
Warehouse Agent's fees and the Custodian's fees -- under the Loan Documents or
(ii) reduces the interest rate or the amount of principal or fees applicable to
the Revolving Loans (except such reductions as are contemplated by this
Agreement). In those cases (if any) where a Seasoned Warehouse Lender grants
rights to any of its participants to approve amendments, modifications or
waivers of any Seasoned Warehouse Loan Documents pursuant to the immediately
preceding sentence, such Lender must include a voting mechanism as to all such
approval rights in the relevant participation agreement(s) whereby a
readily-determinable fraction of such Lender's portion of the Seasoned
Warehouse Revolving Loans (whether held by such Lender or participated) shall
control the vote for all of such Lender's portion of the Seasoned Warehouse
Revolving Loans; provided, that if no such voting mechanism is provided for or
is fully and immediately effective, then the vote of such Lender itself shall
be the vote for all of such Lender's portion of the Seasoned Warehouse
Revolving Loans. Except in the case of the sale of a participating interest to
a Seasoned Warehouse Lender, the relevant participation agreement shall not
permit the participant to transfer, pledge, assign, sell any subparticipation
in or otherwise alienate or encumber its participation interest in the Seasoned
Warehouse Revolving Loans. Each Lender agrees to (i) notify the Seasoned
Warehouse Agent whenever such Lender intends to sell any participation interest
(and when any participation sold is redeemed), (ii) coordinate and cooperate
with the Seasoned Warehouse Agent and the other Lenders to prevent exceeding
such limitation on assignments of participations and (ii) not assign any
participation interest without reserving the absolute right to repurchase the
participation sold for an amount not to exceed par plus accrued interest and
the participant's unpaid allocable share (if any) of fees earned, plus
reimbursement of reasonable expenses (including reasonable attorneys' fees)
incurred by the participant in connection therewith. Any purported amendment
of this Section without the written consent or ratification of all of the
Seasoned Warehouse Lenders and the Seasoned Warehouse Agent shall be
ineffective.
(b) Assignments. Each Lender may assign any or all of its
rights and obligations under the Seasoned Warehouse Loan Documents to any
"ELIGIBLE ASSIGNEE" -- which means (a) a commercial bank having total assets in
excess of One Billion Dollars ($1,000,000,000) or (b) a finance company,
insurance company or other financial institution or fund, acceptable to the
Seasoned Warehouse Agent, that is regularly engaged in making, purchasing or
investing in loans and has total assets in excess of One Billion Dollars
($1,000,000,000), in each case with the consent of the Seasoned Warehouse Agent
and the Borrowers (which consent shall not be unreasonably withheld or delayed);
provided that (1) no such assignment shall result in a Seasoned Warehouse
Lender's having an aggregate Committed Sum of less than Five Million Dollars
($5,000,000), (2)
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neither the Borrowers nor the Seasoned Warehouse Agent shall have any obligation
to consent to there being more than a total of ten (10) Lenders (a participant
under a participation sold in conformity with the provisions of SECTION 14.17(a)
is not a Lender), and (3) each such assignment shall be substantially in the
form of EXHIBIT J, with the assignor to exchange its Seasoned Warehouse Note for
a new Seasoned Warehouse Note and the Eligible Assignee to receive a new
Seasoned Warehouse Note and with the assignor to have no further right or
obligation with respect to the rights and obligations assigned to and assumed by
the Eligible Assignee (except that none of the assignor's rights under SECTION
2.3, 6.3 OR 15 shall thereby be (i) assigned unless specifically described in
such assignment, or (ii) diminished or impaired.) The Companies agree to
cooperate with the prompt execution and delivery of documents reasonably
necessary to such assignment process, including the issuance of new Seasoned
Warehouse Note(s) to the assignor (if retaining an interest hereunder) and the
Eligible Assignee immediately upon delivery to the Borrowers of the assignor's
Seasoned Warehouse Note(s). Upon such assignment, the assignee shall be a
Lender for all purposes under this Agreement and the other Seasoned Warehouse
Loan Documents, if the assignment is an assignment of all of the assignor's
interest in the Seasoned Warehouse Revolving Loans and their security, the
assignor shall be automatically released from all of its obligations and
liabilities hereunder, and, whether it is such an assignment of the assignor's
entire interest or only a partial assignment, the Committed Sums shall be
adjusted appropriately, and the parties agree to approve in writing revised and
updated versions of SCHEDULE LC.
(c) Foreign Lender. If any interest in this Agreement is
transferred to any Person that is organized under the legal requirements of any
jurisdiction other than the United States of America or any State thereof, the
transferor Lender shall cause such Person, concurrently with the effectiveness
of such transfer, (i) to represent to the transferor Lender (for the benefit of
the transferor Lender, the Seasoned Warehouse Agent and the Borrowers) that
under applicable laws no taxes will be required to be withheld by the Seasoned
Warehouse Agent, the Borrowers or the transferor Lender with respect to any
payments to be made to such Person under this Agreement, (ii) to furnish to each
of the transferor Lender, the Seasoned Warehouse Agent and the Companies two
duly completed copies of either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such Person claims entitlement to
complete exemption from U. S. federal withholding tax on all interest payments
hereunder) and (iii) to agree (for the benefit of the transferor Lender, the
Seasoned Warehouse Agent and the Companies) to provide the transferor Lender,
the Seasoned Warehouse Agent and the Companies a new Form 4224 or Form 1001 upon
the obsolescence of any previously delivered form and comparable statements in
accordance with applicable United States laws and regulations and amendments
duly executed and completed by such Person and to comply from time to time with
all applicable legal requirements with regard to such withholding tax exemption.
(d) No Cost to Borrowers. The Borrowers shall not be required to
incur any cost or expense incident to any sale to a Person of any interest in
the Seasoned Warehouse Revolving Loans pursuant to this Section and all such
costs and expenses shall be for the account of either (i) the Lender selling its
rights in the Seasoned Warehouse Revolving Loans to such Person or (ii) such
Person.
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14.18 Beneficiaries of this Section. Other than the provisions
of SECTIONS 14.17 and 14.11 which are also intended to bind, benefit and be
enforceable by and against the Borrowers, this SECTION 14 is intended to bind
and benefit only the Seasoned Warehouse Agent, Texas Commerce and the other
Lenders, and does not benefit and shall not be enforceable by the Companies or
any other Person whatsoever.
15. REIMBURSEMENT OF EXPENSES; INDEMNITY.
15.1 Pay Negotiation and Administration Costs. The Companies agree to
pay all of the Seasoned Warehouse Agent's, and up to Five Hundred Dollars ($500)
of each Seasoned Warehouse Lender's, out-of-pocket costs and expenses, including
reasonable attorneys' fees, in connection with the negotiation, documentation,
enforcement, amendment, waiver and administration of this Agreement, the
Seasoned Warehouse Notes, the Seasoned Warehouse Security Agreement and other
Seasoned Warehouse Loan Documents and the making and repayment of the Seasoned
Warehouse Revolving Loans and the payment of interest thereon.
15.2 Pay Certain Taxes. The Companies agree to pay, and hold the
Seasoned Warehouse Agent, the Lenders and any other owners or holders of any of
the Seasoned Warehouse Notes harmless from and against, any and all present and
future stamp, documentary and other similar taxes (excluding income and
franchise taxes of the United States and its political subdivisions) with
respect to the foregoing matters and save them each harmless from and against
any and all liabilities with respect to or resulting from any delay or omission
to pay such taxes.
15.3 Expenses; Indemnification. Each Company agrees that, upon demand,
it will pay, or reimburse the Seasoned Warehouse Agent and each Lender for, all
costs and expenses incurred by the Seasoned Warehouse Agent or such Lender in
connection with (i) collecting or attempting to collect the Obligations or any
part thereof, (ii) maintaining or defending the security interests or liens (or
the priority thereof) of the Seasoned Warehouse Agent (as agent and
Representative of the Seasoned Warehouse Lenders), (iii) the enforcement of the
Seasoned Warehouse Agent's and the Lenders' rights or remedies under this
Agreement or the other Loan Documents, (iv) the preparation or making of any
amendments, modifications, waivers or consents with respect to this Agreement or
the other Loan Documents and/or (v) any other matters or proceedings arising out
of or in connection with this Agreement or the other Loan Documents, which costs
and expenses include the payments made by the Seasoned Warehouse Agent and the
Lenders for taxes, insurance, assessments, or other costs or expenses which the
Borrowers are required to pay under this Agreement or the other documents
contemplated hereby; expenses related to the examination of the Collateral;
audit expenses; valuation expenses; court costs and reasonable attorneys' fees
(whether in-house or outside counsel is used, whether legal assistants are used,
and whether such costs are incurred in negotiations, formal or informal
collection actions, federal bankruptcy proceedings, probate proceedings, on
appeal or otherwise); and all other costs and expenses of the Seasoned Warehouse
Agent and the Lenders incurred in connection with any of the foregoing. The
Companies also jointly and severally agree to indemnify, pay, defend and hold
harmless the Seasoned
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Warehouse Agent, each Lender, each subsequent owner or holder of any of the
Seasoned Warehouse Notes and any of their respective officers, directors,
employees or agents (the "INDEMNIFIED PARTIES") from and against the
"INDEMNIFIED LIABILITIES", which means any and all claims, liabilities,
obligations, losses, damages, penalties, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' fees and disbursements) of any
kind whatsoever which may be imposed upon, incurred by or asserted against any
of the Indemnified Parties in any way relating to or arising out of any of the
Loan Documents or any of the transactions contemplated thereby to the extent
that any such Indemnified Liabilities result (directly or indirectly) from any
claims made, or any actions, suits or proceedings commenced or threatened, by
or on behalf of any creditor (excluding any of the Indemnified Parties),
security holder, shareholder, customer (including any Person having any
dealings of any kind with the Companies), trustee, conservator, receiver,
director, officer, employee and/or agent of the Companies acting in such
capacity, the Companies or any Governmental Authority (excluding the Federal
Reserve Board, the Federal Deposit Insurance Corporation, the Comptroller of
the Currency and any other banking regulatory body or authority having
jurisdiction over the Seasoned Warehouse Agent or any Lender that is a bank) or
any other Person; provided that to the extent, if any, that any of such claims,
liabilities, etc. is caused by any Indemnified Party's gross negligence or
willful misconduct, the indemnity payable to that Indemnified Party shall be
equitably and proportionately reduced, ALTHOUGH TO THE FULL EXTENT PERMITTED
UNDER APPLICABLE LAW, SUCH INDEMNITY SHALL NOT BE REDUCED ON ACCOUNT OF SUCH
CLAIMS, LIABILITIES, ETC. BEING CAUSED OR CONTRIBUTED TO BY ANY INDEMNIFIED
PARTY'S SOLE OR CONCURRENT ORDINARY NEGLIGENCE THAT DOES NOT AMOUNT TO GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, IT BEING THE COMPANIES' INTENTION TO HEREBY
INDEMNIFY THE INDEMNIFIED PARTIES AGAINST THEIR OWN SOLE OR CONCURRENT ORDINARY
NEGLIGENCE.
16. MISCELLANEOUS
16.1 Items to Be Satisfactory to the Seasoned Warehouse Agent. All items
required by this Agreement or the Seasoned Warehouse Security Agreement to be
delivered to the Seasoned Warehouse Agent or the Custodian shall be in form and
content satisfactory to the Seasoned Warehouse Agent or the Custodian (as
applicable) and the Seasoned Warehouse Agent or the Custodian may reject any of
them that do not meet the requirements of this Agreement.
16.2 Usury Not Intended; Credit or Refund of Any Excess Payments. It is
the intent of the Companies, the Seasoned Warehouse Agent, the Custodian and the
Seasoned Warehouse Lenders in the execution and performance of this Agreement
and the other Loan Documents to contract in strict compliance with the usury
laws of the State of Texas and the United States of America from time to time in
effect. In furtherance of that purpose, all of the parties to this Agreement
stipulate and agree that none of the terms and provisions contained in this
Agreement or the other Loan Documents shall ever be construed to create a
contract to pay for the use, forbearance or detention of money with interest at
a rate in excess of the Ceiling Rate and that for purposes hereof "interest"
shall include the aggregate of all charges which constitute interest under such
laws that are contracted for, charged, taken, reserved or received under this
Agreement or any of the other Loan Documents. In the event that the maturity of
any of the Seasoned Warehouse Notes is accelerated
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by reason of any election of all of the Majority Seasoned Warehouse Lenders
resulting from any Event of Default, or in the event of any required or
permitted prepayment, then such consideration that constitutes interest may
never include more than the Maximum Amount, and excess interest, if any,
provided for in this Agreement or otherwise shall be canceled automatically as
of the date of such acceleration or prepayment and, if theretofore paid, shall
be credited on such note (or, if such note shall have been paid in full,
refunded to the payor of such interest). THE PROVISIONS OF THIS SECTION SHALL
PREVAIL AND CONTROL OVER ALL OTHER PROVISIONS OF THIS AGREEMENT, THE SEASONED
WAREHOUSE NOTES AND THE OTHER LOAN DOCUMENTS THAT MAY BE IN APPARENT CONFLICT
HEREWITH. In the event the Seasoned Warehouse Agent or any of the Lenders
shall ever collect monies which are deemed to constitute interest at a rate in
excess of the Ceiling Rate then in effect, all such sums deemed to constitute
interest in excess of the Ceiling Rate shall be immediately returned to their
payor (or, at the option of the holders of the Seasoned Warehouse Notes,
credited against the unpaid principal of the Seasoned Warehouse Notes) upon
such determination, and, to the extent permitted by applicable law, the
Seasoned Warehouse Agent and the Lenders shall not be subject to any penalties
provided by any legal requirement for contracting for, charging, taking,
reserving or receiving interest at a rate in excess of the Ceiling Rate. In
determining whether or not the interest paid or payable under any specific
contingency exceeds the Ceiling Rate, to the maximum extent permitted under
applicable legal requirements, the Borrowers and the Seasoned Warehouse Agent
and the Lenders shall (a) characterize any non-principal payment as an expense,
fee or premium rather than as interest, (b) exclude voluntary prepayments and
their effects and (c) "spread" the total amount of interest throughout the
entire contemplated term of the Seasoned Warehouse Notes, and interest owing on
such Seasoned Warehouse Notes so that the interest rate is uniform throughout
their entire term.
16.3 Independent Rights. No single or partial exercise of any right,
power or privilege hereunder, or any delay in the exercise thereof, shall
preclude any other or further exercise of the rights of the parties to this
Agreement.
16.4 Covenant Independence. Each covenant in this Agreement shall be
deemed to be independent of any other covenant, and an exception or illegality
in one covenant shall not create an exception or illegality in another covenant.
16.5 Relationship of the Parties. This Agreement provides for the making
of Seasoned Warehouse Revolving Loans by the Seasoned Warehouse Lenders (through
the Seasoned Warehouse Agent) in their capacities as lenders, to the Borrowers,
each as a borrower, and for the payment of interest and repayment of principal
by the Companies to the Lenders (through the Seasoned Warehouse Agent). The
relationship between (a) the Lenders and the Seasoned Warehouse Agent and (b)
the Companies is limited to that of creditor and secured party, on the one hand,
and debtors, on the other hand. The provisions in this Agreement and the other
Loan Documents for compliance with financial covenants and delivery of financial
statements are intended solely for the benefit of the Lenders and the Seasoned
Warehouse Agent to protect their interests as lenders and lenders' agent,
respectively, in assuring payment of interest and repayment of principal, and
nothing contained in this Agreement or any of the other Loan Documents shall be
construed as permitting
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or obligating any Lender or the Seasoned Warehouse Agent to act as a financial
or business advisor or consultant to the Borrowers, as permitting or obligating
any Lender or the Seasoned Warehouse Agent to control the Borrowers or to
conduct the Borrowers' operations, as creating any fiduciary obligation on the
part of any Lender or the Seasoned Warehouse Agent to the Borrowers, or as
creating any joint venture, agency, or other relationship between or among any
of the parties other than as explicitly and specifically stated in this
Agreement. The Companies acknowledge that they have had the opportunity to
obtain the advice of experienced counsel of their own choosing in connection
with the negotiation and execution of this Agreement and the other Loan
Documents and to obtain the advice of such counsel with respect to all matters
contained in the Loan Documents including the provision for waiver of trial by
jury. The Companies further acknowledge that they are experienced with respect
to financial and credit matters and have made their own independent decisions to
apply to the Lenders for credit and to execute and deliver this Agreement and
the other Loan Documents.
16.6 No Waiver. No forbearance on the part of the Seasoned Warehouse
Agent in enforcing any of the Lenders' (or the Seasoned Warehouse Agent's)
rights under this Agreement, nor any renewal, extension or rearrangement of any
payment or covenant to be made or performed by any Company hereunder, shall
constitute a waiver of any of the terms of this Agreement or of any such right.
Seasoned Warehouse Agent may remedy any default without waiving the default
remedied. No Default or Event of Default shall be waived by the Seasoned
Warehouse Agent or the Lenders except in a writing signed and delivered by a
Vice President or more senior officer of the Seasoned Warehouse Agent. No
waiver of any Default or Event of Default shall be deemed to be a waiver of any
other Default or Event of Default or of the same Default or Event of Default on
a future occasion. No failure to exercise or delay in exercising any power or
right under any Loan Documents shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. No course
of dealing between the Companies and the Seasoned Warehouse Agent or any of the
Lenders shall operate as a waiver of any rights of the Seasoned Warehouse Agent
or any of the Lenders. No amendment, modification or waiver of any provision of
any Loan Documents nor consent to any departure therefrom shall be effective
unless it is in writing and signed and delivered by a Vice President or more
senior officer of the Seasoned Warehouse Agent, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. Except as otherwise specifically provided in this Agreement,
no notice to or demand on the Companies or any other Person shall entitle the
Companies or any other Person to any other or further notice or demand in
similar or other circumstances.
16.7 Governing Law, Jurisdiction and Venue. THIS AGREEMENT, THE SEASONED
WAREHOUSE NOTES AND THE OTHER SEASONED WAREHOUSE LOAN DOCUMENTS SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS
(WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PRINCIPLES) AND THE UNITED STATES
OF AMERICA FROM TIME TO TIME IN EFFECT. The Companies, the Seasoned Warehouse
Agent and the Lenders each hereby irrevocably submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
Texas,
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Houston Division, and the state district courts of Texas for purposes of all
legal proceedings arising out of or relating to the Loan Documents and all
related transactions; except that the Lenders do not submit themselves to the
jurisdiction of the state district courts of Texas in any suit first filed by
Companies, or any of them. To the fullest extent permitted by applicable law,
Companies, the Seasoned Warehouse Agent and the Lenders each irrevocably waives
any objection that 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; except that the Lenders do not
waive such objections with regard to any suit first filed by Companies, or any
of them. Xxxxxx County, Texas shall be a proper place of venue for suit hereon.
Nothing herein shall affect any applicable right of any party at any time to
initiate any suit in the United States District Court for the Southern District
of Texas, Houston Division, or to remove any pending suit to that Court.
Nothing herein shall affect the right of the Seasoned Warehouse Agent or any
Lender to accomplish service of process in any manner permitted by applicable
law or the right of the Seasoned Warehouse Agent to commence legal proceedings
or otherwise proceed against the Companies in any other jurisdiction or court.
16.8 Severability. If any provisions of this Agreement shall for any
reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision hereof, but this Agreement shall be
construed as if such invalid or unenforceable provisions had never been
contained herein.
16.9 Survival of Warranties, Etc. All of Companies' covenants,
agreements, representations and warranties made in connection with this
Agreement and any document contemplated hereby shall survive the borrowing and
the delivery of the Seasoned Warehouse Notes hereunder, shall be deemed
republished by Companies on the date of each Request for a Revolving Loan and
again on the date that each Borrowing is funded, and shall be deemed to have
been relied upon by the Seasoned Warehouse Agent and the Lenders,
notwithstanding any investigation heretofore or hereafter made by the Seasoned
Warehouse Agent or any Lender. All statements contained in any certificate or
other document delivered to the Seasoned Warehouse Agent or any Lender at any
time by or on behalf of any Borrower pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by Companies in connection with this Agreement.
16.10 Payments on Saturdays, Etc. Whenever any payment to be made
hereunder shall be stated to be due on a Saturday, a Sunday or any other day
which is not a Business Day, such payment may be made on the next succeeding
Business Day, and such extension, if any, shall be included in computing
interest in connection with such payment.
16.11 Terms Binding Upon Successors; Survival of Representations. The
terms and provisions of this Agreement shall bind and benefit the parties hereto
and their respective permitted successors and assigns; provided that Companies
may not assign or delegate any of their rights, benefits or duties under any
part of this Agreement or any of the other Seasoned Warehouse Loan
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Documents, and any attempted assignment made without the written consent or
written confirmation of all the Lenders shall be void. All representations,
warranties, covenants and agreements herein contained on the part of the
Companies shall survive the making of any Revolving Loan and the execution of
the Revolving Credit Notes and shall be effective so long as the Commitments
are outstanding or any obligation of the Borrowers hereunder or under the
Revolving Credit Notes or any of the other Loan Documents remains to be paid or
performed.
16.12 Disclosure of Information. Companies authorize the Seasoned
Warehouse Agent and the Lenders to disclose to any Lender's participant or
Eligible Assignee (a "TRANSFEREE"), and to any prospective Transferee, any and
all financial and other information in the Seasoned Warehouse Agent's or any
Lender's possession concerning any Company pursuant to this Agreement or the
other Loan Documents or which has been received by the Seasoned Warehouse Agent
or any Lender in connection with its credit evaluation of Companies before or
after entering into this Agreement.
16.13 Maintenance of Records. Each Company will keep all of its records
concerning its business operations and accounting at its principal place of
business. Each Company will give the Seasoned Warehouse Agent prompt written
notice of any change in its principal place of business, or in the location of
its records.
16.14 Notices. All notices and communications provided for herein or in
any document contemplated hereby or required by Law to be given shall be in
writing (unless expressly provided to the contrary) and, if personally
delivered, effective when delivered at the address below (including, if by fax,
upon confirmation of receipt) or, in the case of mailing, effective two (2) days
after sending by first class mail, postage prepaid, addressed as follows:
(1) if to Companies, to:
MCA Financial Corp.
00000 Xxxxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
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(2) if to the Seasoned Warehouse Agent to:
Texas Commerce Bank National Association
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000 (for messenger deliveries)
P. O. Xxx 0000
Xxxxxxx, Xxxxx 00000 (for mail deliveries)
Attention: Xx. Xxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(3) if to Texas Commerce to:
Texas Commerce Bank National Association
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000 (for messenger deliveries)
P. O. Xxx 0000
Xxxxxxx, Xxxxx 00000 (for mail deliveries)
Attention: Xx. Xxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as a party shall have designated to the other in
writing in accordance with this Section. The giving of at least three (3)
days' notice before the Seasoned Warehouse Agent shall take any action
described in any notice shall conclusively be deemed reasonable for all
purposes; provided that this shall not be deemed to require the Seasoned
Warehouse Agent to give three (3) days' notice or any notice if not
specifically required in this Agreement.
16.15 Counterpart Execution; Amendments. This Agreement may be executed
in one or more counterparts, each of which when so executed shall be deemed to
be an original, but all of which when taken together shall constitute one and
the same instrument. This Agreement may not be amended, modified or
supplemented unless such amendment, modification or supplement is set forth in a
writing signed by the Companies, the Agent and such of the Seasoned Warehouse
Lenders whose consent or approval is required by the applicable provisions of
SECTIONS 14.2 through 14.4. EXHIBIT J is a form that may be modified
appropriately for use for amendments hereto.
16.16 Integration. This Agreement and the other Loan Documents embody the
entire agreement and understanding among the Borrowers, the Lenders and the
Seasoned Warehouse Agent, and supersede all prior agreements and understanding,
relating to the subject matter hereof.
16.17 General Purpose of Loan. Each Borrower warrants and represents to
the Seasoned Warehouse Agent, Lenders and all other future owners and holders of
the Seasoned Warehouse Notes that all Seasoned Warehouse Revolving Loans are and
will be for business, commercial,
82
97
investment or other similar purpose and not primarily for personal, family,
household or agricultural use, as such terms are used in Chapter 1D or in the
Texas Finance Code.
16.18 Limitation of Liability. NEITHER THE LENDERS, THE SEASONED
WAREHOUSE AGENT NOR ANY OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS,
AGENTS, ATTORNEYS OR EMPLOYEES (COLLECTIVELY, THE "LENDERS, ET AL") SHALL BE
LIABLE TO THE BORROWERS OR ANY OF THEIR AFFILIATES FOR ANY ACTION TAKEN, OR
OMITTED TO BE TAKEN, BY IT OR THEM OR ANY OF THEM UNDER THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR IN CONNECTION HEREWITH OR THEREWITH; PROVIDED THAT NO
PERSON SHALL BE RELIEVED HEREBY OF ANY LIABILITY IMPOSED BY APPLICABLE LAW FOR
SUCH PERSON'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED FURTHER THAT
COMPANIES DO HEREBY RELEASE THE LENDERS, ET AL FROM ALL LIABILITY THAT MAY BE
CAUSED BY THE SOLE OR CONCURRENT ORDINARY NEGLIGENCE OF THE LENDERS, ET AL (OR
ANY OF THEM) AND FROM ALL LIABILITY THAT DOES NOT RESULT FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THE LENDERS, ET AL, BUT FOR WHICH THE
LENDERS, ET AL COULD BE HELD -- BUT FOR THIS PROVISION -- TO BE STRICTLY LIABLE.
NO CLAIM MAY BE MADE BY ANY COMPANY OR ANY OF THEIR AFFILIATES AGAINST THE
LENDERS, ET AL, FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN
RESPECT OF ANY BREACH OR WRONGFUL CONDUCT (WHETHER THE CLAIM IS BASED ON
CONTRACT OR TORT OR DUTY IMPOSED BY LAW) ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION HEREWITH OR
THEREWITH, EVEN IF COMPANIES' OR THEIR AFFILIATES' LOSS, COST, DAMAGE, INJURY OR
EXPENSE WAS CAUSED IN WHOLE OR IN PART BY THE SOLE OR CONCURRENT ORDINARY
NEGLIGENCE OF THE LENDERS, ET AL. EACH COMPANY HEREBY WAIVES, RELEASES AND
AGREES NOT TO XXX UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED,
AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
16.19 WAIVER OF JURY TRIAL. EACH OF THE LENDERS, THE SEASONED WAREHOUSE
AGENT AND THE COMPANIES, AFTER CONSULTING WITH COUNSEL, KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY (i) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY OF ANY
ISSUE TRIABLE OF RIGHT BY A JURY, AND (ii) WAIVES ANY RIGHT TO TRIAL BY JURY
FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST, IN ANY
LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY SEASONED WAREHOUSE
NOTE OR ANY OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF ANY OF THEM. NEITHER THE LENDERS, THE SEASONED WAREHOUSE
AGENT NOR ANY COMPANY SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE,
ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THIS WAIVER OF RIGHT TO
TRIAL BY JURY IS SEPARATELY GIVEN BY THE COMPANIES, THE SEASONED WAREHOUSE AGENT
AND EACH LENDER, AND THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT OF A JURY TRIAL WOULD OTHERWISE
ACCRUE. THE SEASONED WAREHOUSE AGENT IS HEREBY AUTHORIZED AND REQUESTED TO
SUBMIT THIS AGREEMENT TO ANY COURT HAVING JURISDICTION OVER THE SUBJECT MATTER
AND THE PARTIES HERETO, SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF THE FOREGOING
WAIVER OF THE RIGHT TO JURY TRIAL. FURTHER, EACH COMPANY HEREBY CERTIFIES THAT
NO REPRESENTATIVE OR AGENT OF ANY OF THE LENDERS OR THE SEASONED WAREHOUSE AGENT
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO ANY SHAREHOLDER, DIRECTOR, OFFICER,
AGENT OR REPRESENTATIVE OF ANY OF THEM THAT THE SEASONED WAREHOUSE AGENT
83
98
OR THE LENDERS WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY THE LENDERS, THE SEASONED WAREHOUSE AGENT OR THE
COMPANIES EXCEPT BY A WRITTEN INSTRUMENT SPECIFICALLY SO MODIFYING OR
RELINQUISHING SPECIFIC PROVISIONS HEREOF, EXECUTED BY ALL OF THEM.
16.20 Notice Pursuant to Tex. Bus. & Comm. Code Section 26.02. THIS
AGREEMENT AND THE OTHER SEASONED WAREHOUSE LOAN DOCUMENTS TOGETHER CONSTITUTE A
WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
[The remainder of this page is intentionally blank.]
84
99
EXECUTED as of the Effective Date.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION,
formerly known as Mortgage
Corporation of America
By: Xxxxx X. Xxxxxxx By: Xxx X. Xxxxx
-------------------------------- ----------------------
Name: XXXXX X. XXXXXXX Name: XXX X. XXXXX
----------------------------- ---------------------
Title: EVP Title: PRESIDENT
---------------------------- ---------------------
MORTGAGE CORPORATION OF TEXAS COMMERCE BANK NATIONAL
AMERICA, formerly known as First ASSOCIATION, as a Lender and
as the American Mortgage Associates, Inc. Agent
By: Xxxxx X. Xxxxxxx By: Xxxxxx X. Xxxxxxx
------------------------------- ------------------------
Name: XXXXX X. XXXXXXX Name: XXXXXX X. XXXXXXX
------------------------------ ----------------------
Title: VP Title: VICE PRESIDENT
---------------------------- ---------------------
(Wire instructions for the Companies)
Texas Commerce Bank
----------------------------
National Association
----------------------------
ABA No.: 000000000
----------------------------
Attention:
--------------------------------
For credit account: 00100380279 MCA Operating Account)
--------------------------------------
Unnumbered counterpart signature page for
10/97 Senior Secured Seasoned Warehouse Credit Agreement
100
MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio
corporation, joins the other Companies, the Seasoned Warehouse Agent and the
Seasoned Warehouse Lenders in executing this Agreement for the purposes of
making the agreements stated in SECTION 2 of this Agreement.
(address)
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000 MORTGAGE CORPORATION OF
Attn: Xxx X. Xxxxx AMERICA, INC.
Tel: (000) 000-0000
Fax: (000) 000-0000
By: Xxx X. Xxxxx
------------------------
XXX X. XXXXX
Title: PRESIDENT
(Wire Instructions) ---------------------
Texas Commerce Bank
---------------------------
National Association
---------------------------
ABA No. 000000000
-------------------
Attention:
-----------------
For Credit Account: 00100380279 (MCA Operating Account)
-----------------
101
Attachments:
Exhibits:
--------
A - Release Request form
B - Request for Advance form
C - Submission List form
D - form for Seasoned Warehouse Notes
E-1 - Seasoned Warehouse Security Agreement form
E-2 - UCC-1 Financing Statement form
F - Opinion of Borrowers' Counsel form
G-1 - Disbursement Request Certificate - for refinancing Eligible Seasoned Warehouse Collateral
G-2 - Disbursement Request Certificate - for financing additional Eligible Seasoned Warehouse Collateral
G-3 - Disbursement Request Certificate - for supplemental Borrowing
H - Seasoned Warehouse Collateral Certificate form
I - Assignment and Assumption Agreement form
J - Amendment form
Schedules:
---------
AG - Applicable Guidelines
AI - Approved Investors
BB - Borrowing Base Calculations
CP - Collateral Procedures
EC - Eligibility Conditions
LC - the Lenders' Committed Sums and Funding Share Fractions
9.2(b) - Borrowing Base Certificate
10.1 - Subsidiaries
10.4 - Litigation and Judgments
11.2(d) - Management Report
11.12 - Senior Management
11.15 - Shareholders
12.4 - Existing indebtedness
12.6 - Existing Liens
12.13 - Affiliate Transactions
102
EXHIBIT A
RELEASE REQUEST
SEASONED WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199___
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
This request is delivered under the 10/97 Senior Secured Seasoned
Warehouse Credit Agreement dated as of October 31, 1997 (as supplemented,
amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the Companies,
Texas Commerce Bank National Association ("TEXAS COMMERCE"), as a lender and as
agent (the "SEASONED WAREHOUSE AGENT") for the other lenders party thereto, and
the other lenders party thereto (including Texas Commerce, the "SEASONED
WAREHOUSE LENDERS"). Terms defined in the Warehouse Credit Agreement have the
same meanings when used -- unless otherwise defined -- in this request.
The Companies request that Seasoned Warehouse Agent release the Lender
Liens under the Seasoned Warehouse Loan Documents in the Collateral described
on the attached SCHEDULE 1.
On and as of the date of this request, the Companies certify,
represent and warrant to the Seasoned Warehouse Agent and the Seasoned
Warehouse Lenders that (a) Companies' representations and warranties in the
Seasoned Warehouse Loan Documents are true and correct in all material respects
except to the extent that (i) a representation or warranty speaks to a specific
date or (ii) the facts on which a representation or warranty is based have
changed by transactions or conditions contemplated or permitted by the Seasoned
Warehouse Loan Documents, and (b) no
103
Default, Event of Default or Borrowing Base Deficiency exists or will
exist after giving effect to the requested release.
MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION,
MORTGAGE CORPORATION OF AMERICA and MORTGAGE
CORPORATION OF AMERICA, INC., as the Companies
By________________________________________
(Name)____________________________________
(1)(Title)________________________________
___________
(1) Must be a Responsible Officer of all four Companies.
104
EXHIBIT B
REQUEST FOR ADVANCE
[Letterhead of a Borrower]
[date]
Texas Commerce Bank National Association
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Ladies and Gentlemen:
MCA Financial Corp., MCA Mortgage Corporation and Mortgage Corporation
of America (the "Borrowers"), all Michigan corporations, joined by Mortgage
Corporation of America, Inc., an Ohio corporation (collectively, the
"Companies"), Texas Commerce Bank National Association as a lender and as agent
(the "Seasoned Warehouse Agent") for the other lenders party thereto, and such
other lenders party thereto executed a 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated October 31, 1997 (which, as it may have been or may
hereafter be supplemented, amended or restated from time to time, is called the
"WAREHOUSE CREDIT AGREEMENT"). Any term defined in the Warehouse Credit
Agreement and used but not defined differently in this Request for Advance has
the same meaning here as there.
[MCAFC][MCAMC][MCA] hereby requests a Seasoned Warehouse Revolving
Loan in the amount of $______________ to be made on ________, 19__ (or, if the
Seasoned Warehouse Agent is closed for regular commercial banking business on
that day, on the next day when it is not).
After giving effect to the requested Seasoned Warehouse Revolving
Loan, (i) the aggregate outstanding principal balance of all Seasoned Warehouse
Revolving Loans will not exceed either the Aggregate Committed Sum or the
Borrowing Base and (ii) no Sublimit will be exceeded.
If new Collateral is required to support the requested Seasoned
Warehouse Revolving Loan (i.e., to cause the Borrowing Base to be at least
equal to the aggregate principal of the Seasoned Warehouse Revolving Loans that
will be outstanding after giving effect to the requested Seasoned Warehouse
Revolving Loan), it is described on a schedule attached hereto and the
Borrowers hereby GRANT the Seasoned Warehouse Agent (as agent and
Representative of the Seasoned Warehouse Lenders) a security interest in all
such new Collateral, and it is hereby Pledged to the Seasoned Warehouse Agent,
effective immediately.
105
Texas Commerce Bank National Association
[date]
Page 2
The Borrowers acknowledge that the Seasoned Warehouse Agent and the
Seasoned Warehouse Lenders will rely on the truth of each statement in this
request and its attachments in funding the requested Seasoned Warehouse
Revolving Loan.
No Default has occurred that has not been cured, and no Event of
Default has occurred that the Seasoned Warehouse Agent has not declared in
writing to have been cured or waived.
All items that the Companies are required to furnish to the Seasoned
Warehouse Agent or the Custodian for this requested Seasoned Warehouse
Revolving Loan and otherwise have been delivered, or will be delivered before
this requested Seasoned Warehouse Revolving Loan is funded, in all respects as
required by the Warehouse Credit Agreement and the other Seasoned Warehouse
Loan Documents and conform in all respects with all applicable requirements of
the Warehouse Credit Agreement and the other Seasoned Warehouse Loan Documents.
All Files and Collateral Papers described or referred to in the Submission
List(s) (if any) submitted to the Seasoned Warehouse Agent or the Custodian
with this Request for Advance conform in all respects with all applicable
requirements of the Warehouse Credit Agreement and the other Seasoned Warehouse
Loan Documents.
The undersigned officer hereby certifies that all of Companies'
representations and warranties (a) in the Warehouse Credit Agreement and all of
the other Seasoned Warehouse Loan Documents (except only to the extent that (i)
such a representation or warranty speaks to a specific date or (ii) the facts
on which a such representation or warranty is based have changed by
transactions or conditions contemplated or expressly permitted by the Seasoned
Warehouse Loan Documents) and (b) in this Request for Advance, are true and
correct on the date of this Request for Advance, and that all conditions
precedent to the requested Borrowing are satisfied.
[MCA FINANCIAL CORP.]
[MCA FINANCIAL CORPORATION]
[MORTGAGE CORPORATION OF AMERICA]
By:_____________________________
Name:___________________________
(1) Title_______________________
Attached (check relevant items):
____________________
(1) Must be the President, Treasurer or Assistant Treasurer, a Vice
President or the Controller of the Company.
106
Texas Commerce Bank National Association
[date]
Page 3
NEW COLLATERAL SCHEDULES (IF ANY) FOR: DISBURSEMENT REQUEST CERTIFICATE(S) FOR:
[ ] Seasoned Warehouse Collateral Refinancing [ ] refinancing Eligible Seasoned Warehouse Collateral
[ ] Foreclosure/REO/Repurchase Borrowing [ ] financing additional Eligible Seasoned Warehouse
[ ] Other Seasoned Warehouse Borrowing Collateral
[ ] supplemental Borrowing against existing
Borrowing Base
107
SCHEDULE TO REQUEST FOR ADVANCE
DATED ________________, 199___; FOR $________________________
[Complete EACH applicable "Amount" box or xxxx N.A.]
AMOUNT(1) BORROWING PRICE
CATEGORY (2)
$ [ ] Base Rate
$ [ ] Base Rate
$ TOTAL
____________________
(1) Must be at least $100,000 and a $10,000 multiple.
(2) Unless the Base Rate box is checked, on each day before
maturity (i) to the extent that the sum of the requested Borrowing and all other
Borrowings then outstanding is equal to or less than the FAB Principal
Equivalent, each portion of the requested Borrowing will bear interest at the
FAB Rate applicable to the Borrowing Purpose Category for that portion, and (ii)
each portion of the requested Borrowing that, when aggregated with all other
Borrowings outstanding on that day, exceeds the FAB Principal Equivalent, will
bear interest at the LIBOR Rate applicable to the Borrowing Purpose Category for
that portion.
108
EXHIBIT C
SUBMISSION LIST
SEASONED WAREHOUSE
AGENT: Texas Commerce Bank DATE:____________, 199____
National Association
CUSTODIAN: Texas Commerce Bank
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America
and Mortgage Corporation of
America, Inc.
================================================================================
This Submission List is delivered under the 10/97 Senior Secured
Seasoned Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, Texas Commerce Bank National Association ("TEXAS COMMERCE"), as a
lender and as agent (the "SEASONED WAREHOUSE AGENT") for the other lenders
party thereto, and the other lenders party thereto (including Texas Commerce,
the "SEASONED WAREHOUSE LENDERS"). Terms defined in the Warehouse Credit
Agreement have the same meanings when used -- unless otherwise defined -- in
this Submission List.
Under SECTION 4.3 and other applicable provisions of the Credit
Agreement, the Companies submit the following Seasoned Warehouse Collateral
under, and subject such Seasoned Warehouse Collateral to the Lender Liens
created by, the Seasoned Warehouse Loan Documents [check applicable box(es)]:
[ ] ELIGIBLE FORECLOSURE LOANS FOR FORECLOSURE/REO/REPURCHASE
BORROWING. The Companies (a) are delivering to the Custodian
the Basic Papers for the Foreclosure Loans described on the
attached ANNEX 1, (b) represent that those Foreclosure Loans
and all related Seasoned Warehouse Collateral Papers conform
to the Eligibility Conditions of PART 5 of SCHEDULE EC to the
Credit Agreement and (c) confirm that they are subject to the
Lender Liens created in connection with the Credit Agreement.
[ ] ELIGIBLE REO FOR FORECLOSURE/REO/REPURCHASE BORROWING. The
Companies (a) are delivering to the Custodian the Basic Papers
for the REO described on the attached ANNEX 2, (b) represent
that that REO and all related Seasoned Warehouse Collateral
Papers conform to the Eligibility Conditions of PART 6 of
SCHEDULE EC to
109
the Credit Agreement and (c) confirm that they are subject
to the Lender Liens created in connection with the Credit
Agreement.
[ ] ELIGIBLE REPURCHASED LOANS FOR FORECLOSURE/REO/REPURCHASE
BORROWING. The Companies (a) are delivering to the Custodian
the Basic Papers for the Repurchased Loans described on the
attached ANNEX 3, (b) represent that those Repurchased Loans
and all related Seasoned Warehouse Collateral Papers conform
to the Eligibility Conditions of PART 4 of SCHEDULE EC to
the Credit Agreement and (c) confirm that those Repurchase
Loans and all related Seasoned Warehouse Collateral Papers are
subject to the Lender Liens created in connection with the
Credit Agreement.
[ ] ELIGIBLE MORTGAGE LOANS FOR SEASONED WAREHOUSE BORROWING (NOT
FORECLOSURE/REO/REPURCHASE BORROWING). The Companies (a) are
delivering to the Custodian the Seasoned Warehouse Collateral
Papers for the Mortgage Loans described on the attached ANNEX
4, (b) represent that those Mortgage Loans and all related
Seasoned Warehouse Collateral Papers conform to the
Eligibility Conditions of PART 1 of SCHEDULE EC to the Credit
Agreement and (c) confirm that those Mortgage Loans and all
related Seasoned Warehouse Collateral Papers are subject to
the Lender Liens created in connection with the Credit
Agreement.
[ ] ELIGIBLE LAND CONTRACTS FOR SEASONED WAREHOUSE BORROWING (NOT
FORECLOSURE/REO/REPURCHASE BORROWING). The Companies (a) are
delivering to the Custodian the Seasoned Warehouse Collateral
Papers for the Land Contracts described on the attached ANNEX
5, (b) represent that those Land Contracts and all related
Seasoned Warehouse Collateral Papers conform to the
Eligibility Conditions of PART 7 of SCHEDULE EC to the Credit
Agreement and (c) confirm that those Land Contracts and all
related Collateral Papers are subject to the Lender Liens
created in connection with the Credit Agreement.
[ ] ELIGIBLE MORTGAGE SECURITIES FOR SEASONED WAREHOUSE BORROWING
(NOT FORECLOSURE/REO/REPURCHASE BORROWING). Borrowers (a) are
delivering to the Custodian the Seasoned Warehouse Collateral
Papers required for the Mortgage Securities described on the
attached ANNEX 6, (b) represent that those Mortgage Securities
conform to the Eligibility Conditions of PART 3 of SCHEDULE EC
to the Credit Agreement and (c) confirm that those Mortgage
Securities and all related Collateral Papers are subject to
the Lender Liens created in connection with the Credit
Agreement.
On and as of the date of this Submission List, the Companies certify,
represent and warrant to, and covenant with, Seasoned Warehouse Agent and the
Seasoned Warehouse Lenders that:
2
110
(a) For any Collateral described above, the Companies (i) hold
each of the Collateral Papers required by the applicable
provisions of SECTION 1.5 of the Custody Agreement, (ii) hold
those Collateral Papers in trust for the Seasoned Warehouse
Agent (as agent and Representative of the Seasoned Warehouse
Lenders), (iii) upon written request or instructions from the
Seasoned Warehouse Agent from time to time and at any time,
shall deliver those items to the Seasoned Warehouse Agent or
any other Person designated by the Seasoned Warehouse Agent,
and (iv) may not deliver those items, or grant, transfer, or
assign any interest in any of them to any Person except the
Seasoned Warehouse Agent or the Custodian without first
obtaining the Seasoned Warehouse Agent's written consent.
(b) All of the items that the Companies are required to furnish to
the Seasoned Warehouse Agent or the Custodian under the Credit
Agreement in connection with this notice accompany its copy
delivered to the Seasoned Warehouse Agent and the Custodian,
respectively, all of those items are accurate and what they
purport to be, and all of the Collateral described in this
notice or its schedules or annexes conforms in all respects to
the requirements of the Credit Agreement, including, without
limitation, the requirements of eligibility applicable to that
Collateral on SCHEDULE EC to the Credit Agreement.
(c) The representations and warranties of the Companies in the
Seasoned Warehouse Loan Documents are true and correct in all
material respects except to the extent that (i) a
representation or warranty speaks to a specific date or (ii)
the facts on which a representation or warranty is based have
changed by transactions or conditions contemplated or
permitted by the Seasoned Warehouse Loan Documents.
(d) No Default or Event of Default exists.
MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION,
MORTGAGE CORPORATION OF AMERICA and MORTGAGE
CORPORATION OF AMERICA, INC., as the Companies
By__________________________________________
(Name)______________________________________
(1)(Title)__________________________________
____________
(1) Must be a Responsible Officer of all four Companies.
3
111
ANNEX 1 TO SUBMISSION LIST DATED ____________
ELIGIBLE FORECLOSURE LOANS FOR FORECLOSURE/REO/REPURCHASE BORROWING
-------------------------------------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
112
ANNEX 2 TO SUBMISSION LIST DATED __________
ELIGIBLE REO FOR FORECLOSURE/REO/REPURCHASE BORROWING
-------------------------------------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
113
ANNEX 3 TO SUBMISSION LIST DATED __________
ELIGIBLE REPURCHASED LOANS FOR FORECLOSURE/REO/REPURCHASE BORROWING
-------------------------------------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
114
ANNEX 4 TO SUBMISSION LIST DATED ____________
ELIGIBLE MORTGAGE LOANS FOR SEASONED WAREHOUSE BORROWING
(NOT FORECLOSURE/REO/REPURCHASE BORROWING)
-------------------------------------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
115
ANNEX 5 TO SUBMISSION LIST DATED ___________
ELIGIBLE LAND CONTRACTS FOR SEASONED WAREHOUSE BORROWING
(NOT FORECLOSURE/REO/REPURCHASE BORROWING)
-------------------------------------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
116
ANNEX 6 TO SUBMISSION LIST DATED ____________
ELIGIBLE MORTGAGE SECURITIES FOR SEASONED WAREHOUSE BORROWING
(NOT FORECLOSURE/REO/REPURCHASE BORROWING)
-------------------------------------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
117
EXHIBIT D
(THE "10/97 [LENDER NAME] SEASONED WAREHOUSE NOTE")
$_________________________ Houston, Texas
October 31, 1997
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers, jointly
and severally promise to pay to the order of [LENDER NAME] ("PAYEE"), a [LENDER
ENTITY FORM], at the main branch of Texas Commerce Bank National Association,
000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000, or at such other place as
the Seasoned Warehouse Agent may hereafter designate in writing, in immediately
available funds and in lawful money of the United States of America, the
principal sum of [LENDER'S COMMITTED SUM] (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 (or at such lesser rate, if any,
as the holder of this note -- the "HOLDER", whether or not Payee is such holder
-- may in its sole discretion from time to time elect to be applicable for any
day or days), 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 10/97 Senior Secured Seasoned Warehouse Credit
Agreement dated October 31, 1997, as it may be supplemented, amended or restated
from time to time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b) Texas
Commerce Bank National Association (for itself as a lender and as Seasoned
Warehouse Agent for the other lenders party thereto) and (c) the other lender(s)
party thereto, for capitalized terms that are used in this note shall apply here
as well as there.
2. Rates Change Automatically and Without Notice. Without notice to
Makers or any other Person and to the full extent allowed by applicable law from
time to time in effect, the Stated Rate, the Past Due Rate and the Ceiling Rate
shall each automatically fluctuate upward and downward as and in the amount by
which the interest rate applicable to this note as provided for in the Credit
Agreement, the Past Due Rate as defined in the Credit Agreement and such maximum
nonusurious rate of interest permitted by applicable law, respectively,
fluctuate.
3. Calculation of Interest. Interest on the amount of each advance
against this note shall be computed on the amount of that advance and from the
date it is made. Such interest shall be computed on the basis of the actual
number of days elapsed on the basis of a year of 360 days (i.e.,
Page 1 of 4 Pages
118
on the 365/360 -- or 366/360 in a leap year -- day basis), unless that would
cause the Ceiling Rate for any day to be exceeded, in which event and to the
extent necessary to eliminate or minimize that result, interest shall be
calculated on the 365/365 -- or 366/366 in a leap year -- day basis. All
interest rate determinations and calculations by the 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 law, 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. Interest on and principal of this note shall be
due and payable as provided in SECTION 7.1 of the Credit Agreement.
7. Prepayment. Makers may prepay this note in accordance with and
subject to the provisions of SECTION 7.1(c) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, this Note and its Security. This note is one
of the Seasoned Warehouse Notes, is issued pursuant to the Credit Agreement (to
which reference is made for all purposes) and may be referred to as the "10/97
[LENDER NAME] SEASONED WAREHOUSE NOTE", and as it may hereafter be renewed,
extended, rearranged, increased, decreased, modified or replaced in accordance
with the Credit Agreement may be referred to as the "CURRENT [LENDER NAME]
SEASONED WAREHOUSE NOTE". Holder is entitled to the benefits of and security
provided for in the Credit Agreement. Such security includes, among other
security, the security interests granted by the Seasoned Warehouse Security
Agreement referred to in SECTION 8.1 of the Credit Agreement.
9. Revolving Credit. Upon and subject to the terms and conditions of
the Credit Agreement, Makers may borrow, repay and reborrow against this note
under the circumstances, in the manner and for the purposes specified in the
Credit Agreement, but for no other purposes. Advances against this note by Payee
or other Holder shall be governed by the terms of the Credit Agreement. 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 prepayments made on this note by or for the account of
Makers. Absent manifest error, Holder's computer
Page 2 of 4 Pages
119
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
advances and all payments and permitted prepayments made hereon may be (but are
not required to be) endorsed by or on behalf of Holder on the schedule which is
attached as Annex I 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 any Holder's rights with respect to that advance or accrual, or
(b) any payment or permitted 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.
10. Legal Costs. If any Holder or the Seasoned Warehouse Agent retains
an attorney in connection with any Default or Event of Default or to collect,
enforce or defend this note or any papers intended to secure or guarantee it in
any lawsuit or in any probate, reorganization, bankruptcy or other proceeding,
or if any Maker or anyone claiming by, through or under any Maker sues any
Holder in connection with this note or any such papers and does not prevail,
then Makers jointly and severally agree to pay to each such Holder and the
Seasoned Warehouse Agent, respectively, in addition to principal and interest,
all reasonable costs and expenses incurred by such Holder or the Seasoned
Warehouse Agent in trying to collect this note or in any such suit or
proceeding, including, but not limited to, court costs and reasonable attorney
fees, whether in-house or outside counsel is used and whether such costs and
expenses are incurred in formal or informal collection actions, federal
bankruptcy proceedings, appellate proceedings, probate proceedings, or
otherwise. 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, the Seasoned Warehouse Agent or a Maker timely
pleads otherwise to a court of competent jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other than
the Holder or the Payee), 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 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.
Page 3 of 4 Pages
120
12. 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" within the meaning of 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
said Regulation U, as now or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Seasoned Warehouse Agent 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 or in the Texas Finance
Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By:________________________ By:____________________
Name:______________________ Name:__________________
Title:_____________________ Title:_________________
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By:_______________________ By:____________________
Name:_____________________ Name:__________________
Title:____________________ Title:_________________
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121
ANNEX 1
to $_________________
10/97 [LENDER NAME] Seasoned Warehouse Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
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Payment Applied on
Date of Payment or (or advance vs.) Payment Applied on Name of Person
Advance Principal Interest Principal Balance Interest Paid to Making Notation
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EXHIBIT E-1
SEASONED WAREHOUSE SECURITY AGREEMENT
THIS SEASONED WAREHOUSE SECURITY AGREEMENT is entered into as of
October 31, 1997, between MCA FINANCIAL CORP., a Michigan corporation, MCA
MORTGAGE CORPORATION, a Michigan corporation, MORTGAGE CORPORATION OF AMERICA,
a Michigan corporation and MORTGAGE CORPORATION OF AMERICA, INC., an Ohio
corporation ("DEBTORS"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as a
lender and as agent for the other lenders party thereto (in such capacities,
"SECURED PARTY").
Debtors, the Seasoned Warehouse Lenders parties thereto as such and
Secured Party have entered into the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 (as supplemented, amended or
restated, the "WAREHOUSE CREDIT AGREEMENT"). As a continuing inducement to
Seasoned Warehouse Lenders to extend credit to Debtors under the Credit
Agreement, and as a condition precedent to that credit, Debtors are executing
and delivering this Agreement to Secured Party.
ACCORDINGLY, for adequate and sufficient consideration, Debtors and
Secured Party agree as follows:
SECTION 1. DEFINITIONS AND REFERENCES. Unless stated otherwise, (a)
terms defined in the Warehouse Credit Agreement or the UCC have the same
meanings when used in this Agreement, and (b) to the extent permitted by Law,
if in conflict (i) the definition of a term in the Credit Agreement controls
over the definition of that term in the UCC, and (ii) the definition of a term
in Article 9 of the UCC controls over the definition of that term elsewhere in
the UCC.
COLLATERAL is defined in SECTION 2.2 of this Agreement.
DEBTORS is defined in the preamble to this Agreement and includes,
without limitation, each Debtor, each Debtor as a debtor-in- possession, and
any receiver, trustee, liquidator, conservator, custodian, or similar party
appointed for any Debtor or for substantially all of any Debtor's assets under
any Debtor Law.
OBLIGOR means any Person obligated with respect to any Collateral
(whether as an account debtor, obligor on an instrument, issuer of securities,
or otherwise).
SECURED PARTY is defined in the preamble to this Agreement and
includes its successor appointed and acting as Seasoned Warehouse Agent for
Seasoned Warehouse Lenders under the Seasoned Warehouse Loan Documents.
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SECURITY INTEREST means the security interest granted and the pledge
and assignment made under SECTION 2.1 of this Agreement, which is a Lender Lien
under the Credit Agreement.
SECTION 2. SECURITY INTEREST AND COLLATERAL.
2.1 Security Interest. To secure the full payment and performance of
the Obligations, each Debtor hereby grants to Secured Party, as agent and
Representative of Seasoned Warehouse Lenders, a security interest in all of that
Debtor's present and future right, title and interest in and to the Collateral,
whether now owned or hereafter acquired, and pledges and assigns the Collateral
to Secured Party as Representative of the Seasoned Warehouse Lenders, all upon
and subject to the terms and conditions of this Agreement. The grant of the
Security Interest does not subject Secured Party or any Lender to the terms of
any Collateral Paper or in any way transfer, modify, or otherwise affect (a) any
Debtor's obligations with respect to any Collateral or (b) the Lender Liens
under the Credit Agreement.
2.2 Collateral. As used in this Agreement, the term "Collateral" means
the present and future items and types of property described below, whether now
owned or acquired in the future by any Debtor. This description of Collateral
does not permit any action prohibited by any Loan Document.
- Mortgage Collateral from time to time identified to Secured
Party as Collateral.
- All Collateral Papers in any way related to any of the
Mortgage Collateral from time to time identified to Secured
Party as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of
trust, or trust deeds securing those Mortgage Loans,
whether deposited with or held by or for Secured Party
under this Agreement or otherwise.
- Private mortgage insurance (including, without limitation,
all commitments to issue any such insurance) covering, and
all commitments issued by FHA to insure or issued by VA to
guarantee, any Mortgage Loans identified as Collateral.
- Security of any kind pledged by a mortgagor for any
Mortgage Loans identified as Collateral.
- Casualty insurance assigned to any Debtor in connection
with any Mortgage Loans identified as Collateral.
- Mortgage Securities deposited with or held by or for
Secured Party under the Seasoned Warehouse Loan Documents
or registered by book entry in Secured Party's name under
the Seasoned Warehouse Loan Documents.
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- Guaranties related to Mortgage Securities identified as
Collateral.
- Any take-out commitments held by any Debtor for any
Mortgage Loans or Mortgage Securities identified as
collateral, rights to deliver those Mortgage Loans or
Mortgage Securities, as the case may be, to the investors
or other purchasers under those take-out commitments, and
all proceeds resulting from the sale of any of those
Mortgage Loans or Mortgage Securities under those take-out
commitments.
- Any Collateral otherwise described in this Agreement that
may from time to time be delivered (a) to an investor (or
its custodian or other designee) under SECTION 3.1 of the
Custody Agreement until purchased and paid for by that
investor or (b) to a Company for correction or servicing
under SECTION 3.2 of the Custody Agreement.
- The Seasoned Warehouse Note Payment/Funding Account, all
other accounts that any Debtor maintains with Secured
Party, Seasoned Warehouse Agent, or any Lender, and all
amounts deposited in them or represented by them.
- Personal property, contract rights, accounts, and general
intangibles of any kind whatsoever relating to any
Collateral.
- All files, surveys, certificates, correspondence,
appraisals, tapes, discs, cards, accounting records, and
other information and data of any Debtor relating to any
collateral, including, without limitation, all information,
data, tapes, discs, and cards necessary to administer and
service any Collateral.
- Cash and noncash proceeds of any Collateral.
SECTION 3. REPRESENTATIONS AND WARRANTIES. By entering into this
Agreement, and by each subsequent delivery of additional Collateral under this
Agreement, each Debtor reaffirms the representations and warranties contained
in the Credit Agreement. Each Debtor further represents and warrants to
Secured Party as Representative of the Seasoned Warehouse Lenders as follows:
3.1 Concerning Debtors. The facts concerning Debtors' names, taxpayer
identification numbers, ownership, state of incorporation, states in which
Debtors are qualified as foreign corporations, trade names used, chief executive
offices' locations and other principal offices' locations that are stated on
Schedule I hereto and its attached list, are true and correct in all respects.
3.2 Concerning the Collateral. All Collateral (a) is genuine and in all
respects what it purports to be, (b) is the legal, valid, and binding obligation
of each Obligor (except as enforceability may be limited by Debtor Laws), (c) is
free from any claim for credit, deduction, or allowance of any
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Obligor and free from any defense, dispute, setoff, or counterclaim (other than
for payments made in respect of it), (d) if a Mortgage Loan was originated and
is in compliance with all Laws (including, without limitation, all usury Laws,
the Real Estate Settlement Procedures Act of 1974, the Equal Credit Opportunity
Act, the Federal Trust in Lending Act, Regulation Z promulgated by the Board of
Governors of the Federal Reserve System, and all applicable federal and state
consumer protection Laws, (e) if a Mortgage Security, is duly authorized and
validly issued, the transfer of which is not subject to any restrictions other
than under the Seasoned Warehouse Loan Documents and (f) conforms to the
applicable requirements of eligibility under SCHEDULE EC to the Credit
Agreement.
3.3 Ownership and Priority. Debtors have full legal and beneficial
ownership of all Collateral, free and clear of all liens except Permitted Liens.
3.4 Creation and Perfection. The Security Interest is created and
perfected on (a) each promissory note that evidences a Mortgage Loan or Land
Contract ever identified as Collateral and delivered to Secured Party, (b) each
Mortgage Security in certificated form that is delivered to Secured Party, (c)
each Mortgage Security in book entry form when notice of the Security Interest
is given to the financial institution in whose favor that security has been
issued and that institution confirms that notice, (d) all Collateral shipped to
any investor under SECTION 3.1 of the Custody Agreement (and the Security
Interest shall continue to be perfected until Secured Party receives either
payment or Mortgage Securities under that section), (e) all Collateral shipped
to a Debtor for correction or servicing under SECTION 3.2 of the Custody
Agreement (and the Security Interest shall continue to be perfected for
twenty-one (21) days after that shipment), and (f) all other Collateral upon
possession or the filing of financing statements by Secured Party.
SECTION 4. COVENANTS. Until all commitments by Secured Party and Seasoned
Warehouse Lenders to extend credit under the Credit Agreement have been canceled
or terminated and the Obligations are fully paid and performed, Debtors covenant
and agree with Secured Party as agent and Representative of Seasoned Warehouse
Lenders as follows:
4.1 Concerning the Collateral. Debtors (a) shall fully perform all of
their duties under and in connection with each transaction to which any
Collateral relates, (b) shall promptly notify Secured Party about any change in
any fact or circumstances represented or warranted by any Debtor about any
Collateral, (c) shall promptly notify Secured Party of any claim, action, or
proceeding affecting title to any Collateral or the Security Interest and, at
Secured Party's request and Debtors' expense, appear in and defend that action
or proceeding, (d) shall hold in trust for Secured Party (as agent and
Representative of the Seasoned Warehouse Lenders) all Collateral not delivered
to Secured Party (without excusing any failure to deliver Collateral Papers to
Secured Party as required by this Agreement) and xxxx that Collateral on the
relevant Debtor's records that it is subject to the Security Interest (but the
failure to do so does not impair the Security Interest or its priority), (e)
other than collections under SECTION 4.3 below, shall pay and deliver to Secured
Party all items and types of property into which any Collateral may be converted
(all of which shall automatically be and remain subject to the Security
Interest) and properly endorse, assign, or take such other action as Secured
Party may request in order to maintain and continue the Security Interest in
that property and (f) may
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not compromise, extend, release or adjust payments on any Collateral, accept a
conveyance of mortgaged property in full or partial satisfaction of any
Collateral or release any mortgage, deed of trust, or trust deed securing or
underlying any Collateral.
4.2 Insurance. Debtors shall keep the collateral fully insured in the
amounts, against the risks, and with insurers as may be approved by Secured
Party, with loss payable to Secured Party as its interest (as agent and
Representative of Seasoned Warehouse Lenders) may appear.
4.3 Collections. Debtors shall, at their sole cost and expense, whether
requested to by Secured Party or in the absence of such a request, take all
actions reasonably necessary to obtain payment, when due and payable, of all
amounts due or to become due from Obligers with respect to any Collateral.
Debtors may not agree to any rebate, refund, compromise or extension with
respect to any Collateral or accept any prepayment on account of any Collateral
other than in a manner and to the extent consistent with or as may otherwise be
provided in various servicing agreements to which it is a party or subject.
(a) No Event of Default. While no Event of Default exists,
Debtors shall make all of those collections, shall maintain such escrow
accounts and otherwise comply with the servicing agreements to which it is a
party or subject, and may otherwise comply with the servicing agreements to
which it is a party or subject, and may otherwise retain and use the proceeds
of those collections in the ordinary course of their business.
(b) Default. While an Event of Default exists, and upon the
request of Secured Party, Debtors shall (i) notify and direct each
Obligor to make payments on the collateral to Secured Party for deposit into
such accounts as it may designate so as to be held as Collateral under this
Agreement and (ii) otherwise turn over to Secured Party, in the form received
and with any necessary endorsements, all payments they receive in respect of
any Collateral for deposit into such accounts as Secured Party may designate to
be held as collateral under this Agreement. Secured Party may at any time
apply any amounts in those accounts as a payment of the Obligations, other than
mortgage escrow payments that are deposited into escrow accounts in accordance
with the applicable Guide or servicing contract.
4.4 Concerning Debtors. Without first giving Secured Party thirty (30)
days notice (or fewer if agreed to in writing by Secured Party) of the intention
to do any of the following and performing such acts and executing and delivering
to Secured Party such additional documents as Secured Party requests in order to
continue or maintain the existence and priority of the Security Interest, no
Debtor may (a) use or transact business under any corporate, assumed, or trade
name, except as represented in the Credit Agreement, (b) relocate its chief
executive offices or principal place of business or (c) move or surrender
possession of its books and records regarding the Collateral.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES. If an Event of Default exists, then
Secured Party may, at its election (but subject to the terms and conditions of
the Credit Agreement),
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exercise any and all rights available to a secured party under the UCC, in
addition to any and all other rights afforded by the Seasoned Warehouse Loan
Documents, at law, in equity, or otherwise, including, without limitation (a)
requiring Debtors to assemble all or part of the Collateral and make it
available to Secured Party at a place to be designated by Secured Party which
is reasonably convenient to Debtors and Secured Party, (b) selling the
Collateral as provided below in this Section, (c) surrendering any policies of
insurance on all or part of the Collateral and receiving and applying the
unearned premiums as a credit on the Obligations, (d) applying by appropriate
judicial proceedings for appointment of a receiver for all or part of the
Collateral (and Debtors hereby consent to any such appointment) and (e)
applying to the Obligations any cash held by Secured Party or any Lender under
the Seasoned Warehouse Loan Documents.
5.1 Sale of Collateral. If and to the extent permitted
or required by applicable law, Secured Party may, without notice except as
hereinafter provided, sell the Collateral or any part thereof at public or
private sale (with or without appraisal or having the Collateral at the place
of sale) for cash, upon credit, or for future delivery, and at such price or
prices as Secured Party may deem best, and Secured Party (as agent and
Representative of the Seasoned Warehouse Lenders) may be the purchaser of any
and all of the Collateral so sold and may apply upon the purchase price
therefor any of the Obligations and thereafter hold the same absolutely free
from any right or claim of whatsoever kind. Secured Party is authorized at any
such sale, if Secured Party deems it advisable or is required by applicable law
so to do, (i) to restrict the prospective bidders on or purchasers of any of
the Collateral to a limited number of sophisticated investors who will
represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or resale of any of the
Collateral, (ii) to cause to be placed on certificates for any or all of the
Collateral a legend to the effect that such security has not been registered
under the Securities Act of 1933, as amended, and may not be disposed of in
violation of the provisions of said Act, and (iii) to impose such other
limitations or conditions in connection with any such sale as Secured Party
deems necessary or advisable in order to comply with said Act or any other
applicable law. Debtors agree to execute and deliver such documents and take
such other action as Secured Party deems necessary or advisable in order that
any such sale may be made in compliance with applicable law. Upon any such
sale, Secured Party shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale
shall hold the property sold absolutely free from any claim or right of
whatsoever kind, including any equity or right of redemption, stay or appraisal
which Debtors have or may have under any rule of law or statute now existing or
hereafter adopted. To the extent notice is required by applicable law, Secured
Party shall give Debtors written notice at the address set forth in the Credit
Agreement (which shall satisfy any requirement of notice or reasonable notice
in any applicable statute) of Secured Party's intention to make any such public
or private sale. Reasonable notification of the time and place of any public
sale of the collateral, or reasonable notification of the time after which any
private sale or other intended disposition of the Collateral is to be made,
shall be sent to the affected Debtor and to any other Person entitled to notice
under the UCC. If any Collateral threatens to decline speedily in value or is
of the type customarily sold on a recognized market, Secured Party may sell or
otherwise dispose of the Collateral without notification, advertisement, or
other notice of any kind. Notice sent or given not less than five (5) calendar
days before the taking of the action to which the notice relates is reasonable
notification and
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notice for the purposes of this Section. Such notice (if any is required by
applicable law), in case of public sale, shall state the time and place fixed
for such sale or, in case of private sale or other disposition other than a
public sale, the time after which the private sale or other such disposition is
to be made. Any public sale shall be held at such time or times, within
ordinary business hours and at such place or places, as Secured Party may fix
in the notice of such sale. At any sale the Collateral may be sold in one lot
as an entirety or in separate parcels as Secured Party may determine. Secured
Party shall not be obligated to make any sale pursuant to any such notice.
Secured Party may, without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by announcement at any
time and place fixed for such sale, and such sale may be made at any time or
place to which the same may be so adjourned. In case of any sale of all or any
part of the Collateral on credit or for future delivery, the Collateral so sold
may be retained by Secured Party until the selling price is paid by the
purchaser thereof, but Secured Party shall incur no liability in case of the
failure of such purchaser to take up and pay for the Collateral so sold, and in
case of any such failure, such Collateral may again be sold upon like notice.
Each and every method of disposition described in this Section shall constitute
disposition in a commercially reasonable manner. Debtors shall remain jointly
and severally liable for any deficiency. The Companies hereby acknowledge and
agree that Mortgage Loans and Mortgage Securities are property of a type
customarily sold on a recognized market. The Companies also hereby agree that
any sale of a Mortgage Loan or Mortgage Security pursuant to a Take-out
Commitment, and any other sale of Collateral arranged by any Company (whether
before or after an Event of Default), shall be conclusively presumed to be
commercially reasonable.
5.2 Additional Rights of Secured Party. Secured Party shall have all
the rights of a secured party after default under the Uniform Commercial Code of
Texas and in conjunction with, in addition to or in substitution for those
rights and remedies:
(a) it shall not be necessary that the Collateral or any part
thereof be present at the location of any sale pursuant to the provisions of
this Section;
(b) before application of proceeds of disposition of the Collateral
to the Obligations, such proceeds shall be applied to the reasonable expenses of
retaking, holding, preparing for sale or lease, selling, leasing and the like
and the reasonable attorneys' fees and legal expenses incurred by Secured Party,
each Debtor, to the extent applicable, to remain liable for any deficiency;
(c) the sale by Secured Party of less than the whole of the
Collateral shall not exhaust the rights of Secured Party hereunder, and Secured
Party is specifically empowered to make successive sale or sales hereunder until
the whole of the Collateral shall be sold; and, if the proceeds of such sale of
less than the whole of the Collateral shall be less than the aggregate of the
Obligations, this Agreement and the Security Interest created hereby shall
remain in full force and effect as to the unsold portion of the Collateral just
as though no sale had been made;
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(d) in the event any sale hereunder is not completed or is
defective in the opinion of Secured Party, such sale shall not exhaust the
rights of Secured Party hereunder and Secured Party shall have the right to
cause a subsequent sale or sales to be made hereunder;
(e) any and all statements of fact or other recitals made
in any xxxx of sale or assignment or other instrument evidencing any foreclosure
sale hereunder as to nonpayment of any indebtedness or as to the occurrence of
any default, or as to Secured Party having declared all of such indebtedness to
be due and payable, or as to notice of time, place and terms of sale and the
Collateral to be sold having been duly given, as to any other act or thing
having been duly done by Secured Party, shall be taken as prima facie evidence
of the truth of the facts so stated and recited;
(f) Secured Party may appoint or delegate any one or more
persons as agent to perform any act or acts necessary or incident to any sale
held by Secured Party, including the sending of notices and the conduct of sale,
but in the name and on behalf of Secured Party; and
(g) demand of performance, advertisement and presence of
property at sale are hereby WAIVED and Secured Party (as agent and
Representative of the Seasoned Warehouse Lenders) is hereby authorized to sell
hereunder any evidence of debt it may hold as security for the Obligations. All
demands and presentments of any kind or nature are expressly WAIVED by Debtors.
Debtors WAIVE the right to require Secured Party to pursue any other remedy for
the benefit of Debtors and agree that Secured Party may proceed against any
Debtor for the amount of the Obligations owed to the Seasoned Warehouse Lenders
or the Seasoned Warehouse Agent without taking any action against any other
Debtor or any other Person and without selling or otherwise proceeding against
or applying any of the Collateral.
5.3 Application of Proceeds. Secured Party shall apply the proceeds of
any sale or other disposition of the collateral under this SECTION 5 in the
order and manner specified in SECTION 13.9 of the Credit Agreement. Any
surplus remaining shall be delivered to the relevant Debtor or as a court of
competent jurisdiction may direct. If the proceeds are insufficient to pay the
Obligations in full, Debtors remain liable for any deficiency.
SECTION 6. OTHER RIGHTS.
6.1 Performance. If Debtors fail to pay when due all Taxes on any of the
Collateral, or to preserve the priority of the Security Interest in any of the
Collateral, or to keep the Collateral insured as required by this Agreement, or
otherwise fail to perform any of their obligations under any Seasoned Warehouse
Loan Documents or Collateral Papers with respect to the Collateral, then
Secured Party may, at its option, but without being required to do so, pay such
Taxes, prosecute or defend any suits in relation to the Collateral, or insure
and keep insured the Collateral in any amount deemed appropriate by Secured
Party, or take all other action which Debtors are required, but have failed or
refused, to take under the Seasoned Warehouse Loan Documents or Collateral
Papers. Any sum which may be expended or paid by Secured Party under this
Section (including, without limitation, court costs and attorneys' fees) shall
bear interest from the dates of expenditure or
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payment at the Past Due Rate until paid and, together with such interest, shall
be payable by Debtors to Secured Party upon demand and is part of the
Obligations.
6.2 Collection.
(a) Actions. When Secured Party is entitled under
SECTION 4.3 above to make collection on any Collateral, it may in its own name
or in the name of any Debtor (i) compromise or extend the time of payment with
respect to any Collateral for such amounts and upon such terms as Secured Party
may determine, (ii) demand, collect, receive, receipt for, xxx for, compound,
and give acquittance for any and all amounts due or to become due with respect
to Collateral, (iii) take control of cash and other proceeds of any Collateral,
(iv) endorse any Debtor's name on any notes, acceptances, checks, drafts, money
orders, or other evidences of payment on Collateral that may come into Secured
Party's possession, (v) sign any Debtor's name on any invoice or xxxx of lading
relating to any Collateral, on any drafts against Obligors or other Persons
making payment with respect to Collateral, on assignments and verifications of
accounts or other Collateral and on notices to Obligors making payment with
respect to Collateral, (vi) send requests for verification or obligations to any
Obligor, (vii) do all other acts and things necessary to carry out the intent of
this Agreement, and (viii) authorize any Servicer in respect of any Collateral
to perform any one or more of the foregoing on Secured Party's behalf.
(a) If any Obligor fails or refuses to make payment on
any Collateral when due, Secured Party is authorized, in its sole discretion,
either in its name or in any Debtor's name, to take such action as Secured Party
deems appropriate for the collection of any amounts owed with respect to
Collateral or upon which a delinquency exists. Regardless of any other
provision, however, Secured Party is never liable for its failure to collect, or
for its failure to exercise diligence in the collection of, any amounts owed
with respect to Collateral and is not under any duty whatever to anyone except
Debtors and the Seasoned Warehouse Lenders to account for funds that it actually
receives. Without limiting the generality of the foregoing, Secured Party has
no responsibility for ascertaining any maturities, calls, conversions,
exchanges, offers, tenders, or similar matters relating to any Collateral, or
for informing Debtors with respect to any of such matters (irrespective of
whether Secured Party actually has, or may be deemed to have, knowledge
thereof). Secured Party's receipt to any Obligor is a full and complete
release, discharge, and acquittance to that Obligor, to the extent of any amount
so paid to Secured Party.
6.3 Power of Attorney. Each Debtor irrevocably appoints
Secured Party, acting on behalf of Seasoned Warehouse Lenders, as its
attorney-in-fact (with full power of substitution) for, on behalf, and in the
name of such Debtor to (a) endorse and deliver to any Person any check,
instrument, or other document received by Secured Party or any Lender that
represents payment in respect of any Collateral, (b) prepare, complete, execute,
deliver, and record any assignment of any mortgage, deed of trust, or trust deed
securing any Collateral, (c) endorse and deliver or otherwise transfer any
promissory note evidencing any Collateral and do every other thing necessary or
desirable to effect transfer of all or any Collateral, (d) take all necessary
and appropriate action with respect to any of the Obligations or any Collateral,
(e) commence, prosecute, settle, discontinue,
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defend, or otherwise dispose of any claim relating to any Collateral, and (f)
sign such Debtor's name wherever appropriate to effect the performance of this
Agreement and the Credit Agreement. This Section shall be liberally, not
restrictively, construed to give the greatest latitude to Secured Party's power
as such Debtor's attorney-in-fact to collect, sell and deliver any Collateral
and all documents relating to it. The powers and authorities conferred on
Secured Party in this Section (w) are discretionary and not obligatory on the
part of Secured Party, (x) may be exercised by Secured Party through any Person
who, at the time of the execution of particular documents, is an officer of
Secured Party, (y) may not be exercised by Secured Party unless a Default or an
Event of Default exists, and (z) is granted for a valuable consideration,
coupled with an interest, and irrevocable until, and all Persons dealing with
Secured Party, any of its officers acting under this Section, or any substitute
are fully protected in treating the powers and authorities conferred by this
Section as existing and continuing in full force and effect until advised by
Secured Party that, all commitments under the Credit Agreement to extend credit
have been terminated or canceled and the Obligations are fully paid and
performed.
SECTION 7. MISCELLANEOUS.
7.1 Miscellaneous. Because this Agreement is a "Warehouse Loan Document"
referred to in the Credit Agreement, the provisions relating to Seasoned
Warehouse Loan Documents in SECTIONS 1 and 16 of the Credit Agreement are
incorporated into this Agreement by reference the same as if included in this
Agreement verbatim.
7.2 Term. This Agreement terminates upon full and indefeasible payment
and performance of the Obligations. No Obligor is ever obligated to make
inquiry of the termination but is fully protected in making any payments on the
Collateral directly to Secured Party.
7.3 Matters Not Relevant. The Security Interest, Debtors' obligations,
and Secured Party's and Seasoned Warehouse Lenders' rights under this Agreement
are not released, diminished, impaired, or adversely affected by any one or more
of the following: (a) Secured Party's or any Lender's taking or accepting any
additional, or any release, surrender, exchange, subordination, or loss of any
other, guaranty, assurance, or security for any of the Obligations; (b) any full
or partial release of any other Person obligated on any of the Obligations; (c)
the modification or assignment of, or waiver of compliance with, any other Loan
Document; (d) any present or future insolvency, bankruptcy, or lack of
corporate, partnership, or trust power of any other Person obligated on any of
the Obligations; (e) any renewal, extension or rearrangement of any of the
Obligations, or any adjustment, indulgence, forbearance, or compromise granted
to any Person obligated on any of the Obligations; (f) any Person's neglect,
delay, omission, failure, or refusal to take or prosecute any action in
connection with any of the Obligations; (g) any existing or future right, claim
or defense (other than the defense of full and final payment of the Obligations)
of any Debtor or any other Person against Secured Party or any Lender; (h) the
unenforceability of any of the Obligations against any Person obligated or any
part of the Obligations because it exceeds the amount permitted by Law, the act
of creating it is ultra xxxxx, or the officers, partners, or trustees creating
it exceeded their authority or violated their fiduciary duties, or otherwise;
(i) any payment of the Obligations is
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132
held to constitute a preference under any Debtor Law or for any other reason
Secured Party of any Lender is required to refund any payment or make payment
to another Person; or (j) any Person's failure to notify any Debtor about the
foregoing events or occurrences; and each Debtor waives any notice of any kind
under any circumstances whatsoever with respect to this Agreement or any of the
Obligations other than as specifically provided in this Agreement.
7.4 Waivers. Except to the extent expressly otherwise provided in the
Seasoned Warehouse Loan Documents, each Debtor waives (a) any right to require
Secured Party or any Lender to proceed against any other Person, to exhaust its
rights in the Collateral, or to pursue any other right which Secured Party or
any Lender may have, and (b) all rights of marshaling in respect of the
Collateral.
7.5 Financing Statement. Secured Party may, at any time, file this
Agreement or a carbon photographic, or other reproduction of this Agreement as a
financing statement, but Secured Party's failure to do so does not impair the
validity or enforceability of this Agreement.
7.6 Parties. This Agreement binds and benefits Debtors, Secured Party
and each Seasoned Warehouse Lender, and their respective successors and
permitted assigns. Only those Persons may rely or raise any defense about this
Agreement.
(a) Assignments. Debtors may not assign any rights or obligations
under this Agreement without first obtaining the written consent of Secured
Party and all Seasoned Warehouse Lenders. Secured Party's rights under this
Agreement may be assigned to any successor agent appointed under the Credit
Agreement.
(b) Secured Party. Secured Party is the agent for each Seasoned
Warehouse Lender. Secured Party may, without the joinder of any Seasoned
Warehouse Lender, exercise any rights in favor of any of them under this
Agreement. The rights of Secured Party and Seasoned Warehouse Lenders vis-a-vis
each other may be subject to other agreements between them. Neither Debtors nor
their respective successors or permitted assigns need to inquire about any such
agreement or be subject to the terms of it unless they join in it and,
therefore, are not entitled to the benefits of any such agreement or entitled to
rely upon or raise as a defense the failure of any party to comply with it.
7.7 Entire Agreement. THIS AGREEMENT AND THE OTHER SEASONED WAREHOUSE
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUSLY, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
The remainder of this page is intentionally blank
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EXECUTED as of the date first stated above.
MCA FINANCIAL CORP., TEXAS COMMERCE BANK NATIONAL
MCA MORTGAGE CORPORATION, ASSOCIATION, in its capacity as
MORTGAGE CORPORATION OF Seasoned Warehouse Agent and
AMERICA, as Debtors as Secured Party
By:__________________________________ By:____________________________
Name:________________________________ Name:__________________________
Title:_______________________________ Title:_________________________
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134
MORTGAGE CORPORATION OF
AMERICA, INC., as Debtor
By:________________________________________________
Name:______________________________________________
Title:_____________________________________________
13
135
SCHEDULE I TO SEASONED WAREHOUSE SECURITY AGREEMENT
PLACE OF BUSINESS, TRADE NAMES AND FORMER NAMES
OF BORROWERS
STATE OF STATES
NAME AND TAXPAYER I.D. OWNERSHIP INCORPORATION QUALIFIED AS
FOREIGN CORP.
--------------------------------------------------------------------------------------------------
MCA Financial Corporation Approximately 523,283 shares Michigan None
00-0000000 owned by various individuals
and entities disclosed to
the Seasoned Warehouse Agent
on a separate schedule
--------------------------------------------------------------------------------------------------
MCA Mortgage MCA Financial Corp. Michigan See attached list
Corporation
00-0000000
--------------------------------------------------------------------------------------------------
Mortgage Corporation MCA Financial Corp. Michigan Indiana, Ohio
of America
00-0000000
--------------------------------------------------------------------------------------------------
Mortgage Corporation Mortgage Corporation of Ohio None
of America, Inc. America
00-0000000
--------------------------------------------------------------------------------------------------
STILL USING OTHER
NAME AND TAXPAYER I.D. TRADE NAME? CHIEF EXECUTIVE PRINCIPAL
NAMES USED Y/N OFFICE OFFICES
--------------------------------------------------------------------------------------
MCA Financial Corporation None No 23999 Northwestern Hwy. None
00-0000000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
MCA Mortgage Corporation None No 23999 Northwestern Hwy. None
00-0000000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
Mortgage Corporation None No 00000 Xxxxxxxxxxxx Xxx. None
of America Xxxxxxxxxx, XX 00000
00-0000000
--------------------------------------------------------------------------------------
Mortgage Corporation None No 00000 Xxxxxxxxxxxx Xxx. Xxxx
xx Xxxxxxx, Inc. Xxxxxxxxxx, XX 00000
00-0000000
--------------------------------------------------------------------------------------
136
MCA MORTGAGE CORPORATION
STATES WHERE MCAMC IS LICENSED TO ORIGINATE
OR ACQUIRE FIRST MORTGAGE LOANS
(OR IS EXEMPT FROM LICENSING)
OK TO ORIGINATE OK TO ACQUIRE LOANS FUNDED & CLOSED
BY LICENSED BROKER OR LENDER
Alabama Alabama
Alaska Alaska
Arkansas Arkansas
Arizona Arizona
California* California**
Colorado Colorado
Florida Connecticut
Georgia Delaware
Illinois Georgia
Indiana Florida
Kentucky Idaho
Louisiana Illinois
Michigan Indiana
Minnesota Kentucky
Mississippi Louisiana
Missouri Maryland
New Mexico Massachusetts
North Carolina Michigan
Ohio Minnesota
Pennsylvania Mississippi
South Carolina Missouri
Tennessee Montana
Texas New Jersey
Utah New Mexico
Virginia New York
Washington North Carolina
West Virginia North Dakota
Wisconsin* Ohio
Oregon
Pennsylvania
Rhode Island
South Carolina
Tennessee
Texas
Utah
Vermont
Xxxxxxxx
Xxxxxxxxxx
West Virginia
Wisconsin
* Loan officer must also have license to work directly with borrower
** OK to table-fund and close in MCAMC's name on brokered loans
137
EXHIBIT E-2
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
--------------------------------------------------------------------------------
DEBTOR'S NAME AND MAILING ADDRESS: --------------------------------
--------------------------------
--------------------------------
FED. TAX ID NO.
--------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING ADDRESS: Texas Commerce Bank National
Association, as Seasoned
Warehouse Agent(1)
FED. TAX ID NO.
--------------------------------------------------------------------------------
FOR FILING OFFICER:
--------------------------------------------------------------------------------
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE BY
DEBTOR (THE "COLLATERAL"):
- Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Second Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Construction Loans from time to time identified to Secured Party as
Collateral.
- Land Contracts from time to time identified to Secured Party as
Collateral.
- All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust, or
trust deeds securing, those Mortgage Loans, Second Mortgage Loans or
Construction Loans, and all Land Contracts, whether deposited with or
held by or for Secured Party or otherwise.
- Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all commitments
issued by FHA to insure or issued by VA to guarantee, any Mortgage
Loans or Construction Loans identified as Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
----------------
(1) Secured Party is serving as Seasoned Warehouse Agent under the Credit
Agreement, and the security interest evidenced by this financing statement,
as amended from time to time, is granted to Secured Party in that capacity
and as secured party on behalf of all of the Seasoned Warehouse Lenders,
including Texas Commerce
138
- Casualty insurance assigned to Debtor in connection with any Mortgage
Collateral identified as Collateral.
- Mortgage Securities deposited with or held by or for Secured Party
under the Seasoned Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Seasoned Warehouse Loan
Documents.
- Guaranties related to Mortgage Securities identified as Collateral.
- Any take-out commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities, as
the case may be, to the investors or other purchasers under those
take-out commitments, and all proceeds resulting from the sale of any
of those Mortgage Loans, Construction Loans, Second Mortgage Loans or
Mortgage Securities under those take-out commitments.
- Any Collateral otherwise described in the security agreement to which
this financing statement relates that may from time to time be
delivered (a) to an investor (or its custodian or other designee)
under Section 3.1 of the Custody Agreement until purchased and paid
for by that investor or (b) to a Company for correction or servicing
under Section 3.2 of the Custody Agreement.
- The Seasoned Warehouse Note Payment/Funding Account, all other
accounts that Debtor maintains with Secured Party, Seasoned Warehouse
Agent, or any Lender, and all amounts deposited in them or represented
by them.
- Personal property, contract rights, accounts, and general intangibles
of any kind whatsoever relating to any Collateral.
- All files, surveys, certificates, correspondence, appraisals, tapes,
discs, cards, accounting records, and other information and data of
Debtor relating to any Collateral, including, without limitation, all
information, data, tapes, discs, and cards necessary to administer and
service any Collateral.
- Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
____________________________________ TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as Seasoned
Warehouse Agent for Seasoned
Warehouse Lenders
By_________________________________ By_______________________________
(Name)_____________________________ (Name)___________________________
(Title)____________________________ (Title)__________________________
139
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
____________________________, AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS SEASONED WAREHOUSE AGENT, AS SECURED PARTY
140
EXHIBIT F
OPINION OF COUNSEL
The opinion delivered by counsel to the Companies must be in form and
substance acceptable to Seasoned Warehouse Agent and its special counsel and
cover the following matters:
1. Each Company is duly organized, validly existing, and in good standing
under the Laws of the jurisdiction in which it is incorporated as stated in the
Recitals to the Warehouse Credit Agreement.
2. Each Company is duly qualified to transact business and is in good
standing as a foreign corporation or other entity in each jurisdiction so
indicated on SCHEDULE I to the Security Agreement and in each other jurisdiction
where, to the best of that counsel's knowledge, the nature and extent of that
Company's business and properties require due qualification and good standing.
3. To the best of that counsel's knowledge, except as described on
SCHEDULE 10.1 to the Credit Agreement (a) no Company has any Subsidiaries and
(b) no Company has used or transacted business under any other corporate or
trade name in the six-month period preceding the date of the Warehouse Credit
Agreement.
4. Each Company possesses all requisite corporate power and authority to
own or lease its property and to conduct its business as is now being conducted,
or is contemplated by the Warehouse Credit Agreement to be conducted.
5. The execution and delivery of each Company of each Loan Document to
which it is a party and the performance by it of its related obligations (a) are
within its corporate power, (b) have been duly authorized by all necessary
corporate action on its behalf, (c) except for any action or filing that has
been taken or made on or before the date of this opinion, require no action by
or filing with any Tribunal, (d) do not violate any provision of its articles of
incorporation, charter or bylaws, (e) do not violate any provision of Law
applicable to it or any material agreements to which it is a party and of which
that counsel is aware, and (f) except for Lender Liens, do not result in the
creation or imposition of any Lien on any asset of any Company.
6. Upon execution and delivery by all parties to it, each Loan Document
constitutes a legal and binding obligation of each Company party to it,
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable Debtor Laws and general principles of equity.
7. Except as disclosed on SCHEDULE 10.4 to the Credit Agreement (a) no
Company is subject to, or aware of the threat of, any Litigation that is
reasonably likely to be determined
141
adversely to it or, if so adversely determined, would have a Material Adverse
Effect, and (b) no outstanding or unpaid judgments against any Company exist.
8. No Company is subject to regulation under the Investment Company Act
of 1940, as amended, or the Public Utility Holding Company Act of 1935, amended.
9. Each Company is approved and qualified and in good standing as an
issuer, mortgagee, or seller/servicer, as described below, and meets all
requirements applicable to its status as such: (a) GNMA approved issuer of
Mortgage Securities guaranteed by GNMA; (b) FNMA approved seller/servicer of
Mortgage Loans, eligible to originate, purchase, hold, sell, and service
Mortgage Loans to be sold to FNMA; (c) FHLMC approved seller/servicer of
Mortgage Loans, eligible to originate, purchase, hold, sell and service Mortgage
Loans to be sold to FHLMC; (d) FHA approved mortgagee, eligible to originate,
purchase, hold, sell and service FHA Loans; and (e) VA approved mortgagee,
eligible to originate, purchase, hold, sell and service VA Loans.
10. Lender Liens are created and perfected upon (a) each note that is
delivered to Seasoned Warehouse Agent, (B) each Land Contract that is delivered
to Seasoned Warehouse Agent, (b) each Mortgage Security in certificated form
that is delivered to Seasoned Warehouse Agent or its bailee, (c) all Mortgage
Collateral shipped to any investor under a Bailee Letter (as defined in the
Custody Agreement), which perfection continues until Seasoned Warehouse Agent
receives Mortgage Securities or payment is made to Seasoned Warehouse Agent
under that Bailee Letter, (d) all Mortgage Collateral shipped to any Company for
correction or servicing, which perfection continues for twenty-one (21) days,
and (e) the Seasoned Warehouse Note Payment/Funding Account upon the execution
and delivery of the Security Agreement by Companies.
11. With respect to FNMA and FHLMC Mortgage Securities that are held in
book entry form and are identified on a Submission List or are otherwise
designated by any Companies as Collateral under the Credit Agreement, a Lender
Lien is created and perfected upon those Mortgage Securities (a) when written
notification is sent to the securities depositary (on whose books the
appropriate Companies' ownership of those Mortgage Securities is entered) of the
assignment and pledge of those Mortgage Securities to Seasoned Warehouse Agent
(as agent and Representative of Seasoned Warehouse Lenders), and (b) that
securities intermediary indicates by book entry the securities entitlement of
the Seasoned Warehouse Agent. As used in this paragraph, "SECURITIES
INTERMEDIARY" means a depository institution, clearing corporation, securities
broker or other Person that regularly accepts in the course of its business FNMA
and FHLMC Mortgage Securities as a custodial service for its customers, and
maintains accounts in the names of those customers reflecting ownership of or
interests in those Mortgage Securities.
12. With respect to the GNMA Mortgage Securities that are identified on a
Submission List or are otherwise designated by any of the Companies as
Collateral under the Credit Agreement and are held in book entry form through
Participants Trust Company ("PTC"), a Lender Lien is created and perfected upon
those Mortgage Securities when (a) PTC, by making the appropriate entries to its
books, transfers those Mortgage Securities to the account of The Chase Manhattan
2
142
Bank, acting as a participant in PTC and as agent/custodian for Seasoned
Warehouse Agent (as agent and Representative of Seasoned Warehouse Lenders)
pursuant to a custodian agreement ("Custodian") and (b) Custodian, by book
entry or otherwise, identifies the GNMA Mortgage Securities as belonging to, or
subjected to a security interest of, Seasoned Warehouse Agent (as agent and
Representative of Seasoned Warehouse Lenders) and provides confirmation of that
action to Seasoned Warehouse Agent.
3
143
EXHIBIT G-1
DISBURSEMENT REQUEST CERTIFICATE
(to refinance Eligible Seasoned Warehouse Collateral)
This certificate is delivered pursuant to SECTION 4.1 of the 10/97 Senior
Secured Seasoned Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders.
Terms defined in the Warehouse Credit Agreement have the same meaning when used,
unless otherwise defined, in this certificate.
I certify to Seasoned Warehouse Agent and Seasoned Warehouse Lenders that
on the date of this certificate:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. The proceeds of the requested Revolving Loan are to be used to
refinance Debt secured by Eligible Seasoned Warehouse Collateral currently held
by Texas Commerce, who will assign to the Seasoned Warehouse Agent (as agent and
Representative of the Seasoned Warehouse Lenders) its security interest in all
collateral for such existing Debt being refinanced and, upon disbursement of
such proceeds to Texas Commerce, a Company will own good and marketable title to
such Collateral, free and clear of any lien, pledge, charge or interest of any
party other than the Seasoned Warehouse Agent (as agent and Representative of
the Seasoned Warehouse Lenders).
3. All of the Collateral in which the Seasoned Warehouse Agent (as agent
and Representative of the Seasoned Warehouse Lenders), by disbursing such
refinancing Seasoned Warehouse Revolving Loan, will acquire a security interest
shall be Eligible Seasoned Warehouse Collateral.
4. All of the Collateral to be so refinanced by the proposed Seasoned
Warehouse Revolving Loan shall be Pledged to the Seasoned Warehouse Agent as
Collateral, and to no other Person, and shall be subject to the Warehouse Credit
Agreement and the Seasoned Warehouse Security Agreement, and the Seasoned
Warehouse Agent, as agent and Representative of the Lenders, will thereby
acquire and have a first and prior perfected security interest therein.
5. No Default or Event of Default has occurred and is continuing.
144
6. The warranties and representations set forth in SECTION 10 of the
Warehouse Credit Agreement and SECTION 3 of the Seasoned Warehouse Security
Agreement are true and correct on and as of the date hereof.
By____________________________
(Name)________________________
(1) (Title)___________________
(Date)________________________
________________
(1) Must be a Responsible Officer of all four Companies.
2
145
EXHIBIT G-2
DISBURSEMENT REQUEST CERTIFICATE
(to finance additional Eligible Seasoned Warehouse Collateral)
This certificate is delivered pursuant to SECTION 4.2 of the 10/97 Senior
Secured Seasoned Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders.
Terms defined in the Warehouse Credit Agreement have the same meaning when used,
unless otherwise defined, in this certificate.
I certify to Seasoned Warehouse Agent and Seasoned Warehouse Lenders that
on the date of this certificate:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. The proceeds of the requested Revolving Loan are to be used to Eligible
Seasoned Warehouse Collateral in addition to that previously Pledged to the
Seasoned Warehouse Agent; and, the undersigned Company owns such Collateral
free and clear of any lien, pledge, charge or interest of any party other than
the Seasoned Warehouse Agent, as agent and Representative of the Seasoned
Warehouse Lenders.
3. All of the Collateral Pledged to the Seasoned Warehouse Agent is
Eligible Seasoned Warehouse Collateral.
4. All of Collateral to be originated or acquired with the proceeds of the
requested Revolving Loan shall be Pledged to the Seasoned Warehouse Agent as
Seasoned Warehouse Collateral, and to no other Person, and shall be subject to
the Warehouse Credit Agreement and the Seasoned Warehouse Security Agreement.
5. No Default or Event of Default has occurred and is continuing.
146
6. The warranties and representations set forth in SECTION 10 of the
Warehouse Credit Agreement and SECTION 3 of the Seasoned Warehouse Security
Agreement are true and correct on and as of the date hereof.
By__________________________
(Name)______________________
(1) (Title)_________________
(Date)______________________
____________________
(1) Must be a Responsible Officer of all four Companies.
2
147
EXHIBIT G-3
DISBURSEMENT REQUEST CERTIFICATE
(for supplemental Borrowing)
This certificate is delivered pursuant to SECTION 4.3 of the 10/97 Senior
Secured Seasoned Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders.
Terms defined in the Warehouse Credit Agreement have the same meaning when used,
unless otherwise defined, in this certificate.
I certify to Seasoned Warehouse Agent and Seasoned Warehouse Lenders that
on the date of this certificate:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. There is not now outstanding any Seasoned Warehouse Revolving Loan
previously advanced by the Seasoned Warehouse Lenders (and disbursed by the
Seasoned Warehouse Agent) with respect to the Seasoned Warehouse Collateral to
which such requested Seasoned Warehouse Revolving Loan relates.
3. All of the Seasoned Warehouse Collateral to which such requested
Seasoned Warehouse Revolving Loan relates shall be Pledged to the Seasoned
Warehouse Agent, and to no other Person, and shall be subject to the Warehouse
Credit Agreement and the Seasoned Warehouse Security Agreement.
4. No Default or Event of Default has occurred and is continuing.
5. The warranties and representations set forth in SECTION 10 of the
Warehouse Credit Agreement and SECTION 3 of the Seasoned Warehouse Security
Agreement are true and correct on and as of the date hereof.
By_______________________
(Name)___________________
(1)(Title)_______________
(Date)___________________
____________________
(1) Must be a Responsible Officer of all four Companies.
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EXHIBIT H
MCA FINANCIAL CORP.
SEASONED WAREHOUSE COLLATERAL CERTIFICATE
The undersigned, ______________, certifies to Texas Commerce Bank National
Association ("TEXAS COMMERCE"), as a lender and as agent (the "SEASONED
WAREHOUSE AGENT") for certain other Seasoned Warehouse Lenders, that he is the
duly appointed Chief Financial Officer of MCA Financial Corp., a Michigan
corporation (the "COMPANY"). Pursuant to the 10/97 Senior Secured Seasoned
Warehouse Credit Agreement among the Company, the other Companies named therein,
the Seasoned Warehouse Agent and Texas Commerce as a lender and the other
Seasoned Warehouse Lenders party thereto dated October 31, 1997 (as it may have
been supplemented, amended or restated from time to time, the "WAREHOUSE CREDIT
AGREEMENT"), the Company has delivered a request to the Seasoned Warehouse Agent
dated as of ________, 199__, for disbursement of a Seasoned Warehouse Revolving
Loan. Pursuant to SECTION 11.2(f) of the Warehouse Credit Agreement, the
undersigned further certifies to the Seasoned Warehouse Lenders and the Seasoned
Warehouse Agent as follows:
1. Capitalized terms used in this certificate and not otherwise herein
defined have the meaning ascribed to them in the Warehouse Credit Agreement. As
used herein, "SEASONED WAREHOUSE COLLATERAL" excludes books, ledgers, records,
computer software and programs, instructional manuals and other written or
electronic information.
2. Attached hereto as Exhibit A is a list of all Seasoned Warehouse
Collateral currently Pledged to the Seasoned Warehouse Agent, according to the
Companies' records, categorized separately in the categories listed as items (a)
- (m) below. As of such date, the aggregate principal balances of such Mortgage
Loans, REO and Land Contracts are:
(a) for Eligible Mortgage Loans that are
Foreclosure/REO/Repurchase Collateral: $________________
(b) for Eligible Land Contracts that are
Foreclosure/REO/Repurchase Collateral: $________________
(c) for Eligible REO that is Foreclosure/
REO/Repurchase Collateral: $________________
(d) for Eligible Repurchased Loans that
are Foreclosure/REO/Repurchase
Collateral: $________________
(e) for all Eligible Foreclosure/REO/Repurchase
Collateral ((a)+(b)+(c)+(d): $_________
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(f) for all other Eligible Land Contracts
(not Foreclosure/REO/Repurchase
Collateral) $_______________
(g) for all Eligible Mortgage Securities $_______________
(h) for all other Eligible Mortgage Loans
(regular Seasoned Warehouse Loans
and Mortgage Securities): $_______________
Total
$
================
IN WITNESS WHEREOF, the undersigned has executed this Seasoned Warehouse
Collateral Certificate this ___ day of ________, 199__.
MCA FINANCIAL CORP.
By:________________________
Name:______________________
Chief Financial Officer
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EXHIBIT I
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Agreement is entered into effective as of ______________ between
_________________ ("ASSIGNOR") and ___________________________________
("ASSIGNEE").
MCA FINANCIAL CORP., a Michigan corporation, MCA MORTGAGE CORPORATION, a
Michigan corporation, MORTGAGE CORPORATION OF AMERICA, a Michigan corporation
and MORTGAGE CORPORATION OF AMERICA, INC. (the "COMPANIES"), certain lenders
(the "SEASONED WAREHOUSE LENDERS") and TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as agent for the Seasoned Warehouse Lenders (the "SEASONED WAREHOUSE AGENT"),
are parties to the 10/97 Senior Secured Seasoned Warehouse Credit Agreement
dated as of October 31, 1997 (as supplemented, amended or restated, the
"WAREHOUSE CREDIT AGREEMENT"), all of the defined terms in which have the same
meanings when used, unless otherwise defined, in this Agreement. This Agreement
is entered into as required by SECTION 14.17(b) of the Warehouse Credit
Agreement and is not effective unless the conditions of that Section of the
Warehouse Credit Agreement are satisfied and this Agreement is consented to by
the Borrowers and the Seasoned Warehouse Agent (pursuant to the provisions of
the Warehouse Credit Agreement, the consent of Mortgage Corporation of America,
Inc. is not required).
ACCORDINGLY, for adequate and sufficient consideration, Assignor and
Assignee agree as follows:
1. ASSIGNMENT AND ASSUMPTION. By this Agreement, and effective as of
_____________________, 199__, (the "ASSIGNMENT EFFECTIVE DATE"), Assignor sells
and assigns to Assignee (without recourse to Assignor) and Assignee purchases
and assumes from Assignor a _____% interest (the "ASSIGNED INTEREST") in and to
all of Assignor's rights and obligations under the Warehouse Credit Agreement
(except any rights and obligations pertaining to Assignor's role as Seasoned
Warehouse Agent, if applicable) as of the Assignment Effective Date, including,
without limitation, the Assigned Interest in (a) Assignor's Commitment as of the
Assignment Effective Date, (b) Notes held by Assignor as of the Assignment
Effective Date, (c) all principal Debt owed to Assignor on the Assignment
Effective Date, (d) all interest accruing in respect of the Assigned Interest
after the Assignment Effective Date, and (e) all Facility Fees accruing in
respect of the Assigned Interest under SECTION 6.6) of the Warehouse Credit
Agreement after the Assignment Effective Date.
2. ASSIGNOR PROVISIONS. Assignor (a) represents and warrants to Assignee
that as of the Assignment Effective Date (i) $________________ is outstanding
(without reduction for any assignments that have not yet become effective) under
the Warehouse Credit Agreement, (ii) Assignor is the legal and beneficial owner
of the Assigned Interest, which is free and clear of any adverse claim, and
(iii) Assignor has not yet been notified of an existing Default or Event of
Default, and (b) makes no representation or warranty to Assignee and assumes no
responsibility to Assignee
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with respect to (i) any statements, warranties, or representations made in or
in connection with any Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency, or value of any Loan Document, or
(iii) the financial condition of any Company or the performance or observance
by any Company of any of its obligations under any Loan Document.
3. ASSIGNEE PROVISIONS. Assignee (a) represents and warrants to
Assignor, the Companies, the Seasoned Warehouse Agent and the Seasoned Warehouse
Lenders that Assignee is legally authorized to enter into this Agreement, (b)
confirms that it has received a copy of the Warehouse Credit Agreement, copies
of the Companies' current Financial Statements and such other documents and
information as it deems appropriate to make its own credit analysis and decision
to enter into this Agreement, (c) agrees with Assignor, the Companies, the
Seasoned Warehouse Agent and the Seasoned Warehouse Lenders that Assignee shall,
independently and without reliance upon Seasoned Warehouse Agent, Seasoned
Warehouse Agent, Assignor, or any other Lender, and based on such documents and
information as Assignee deems appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Seasoned Warehouse
Loan Documents, (d) appoints and authorizes Seasoned Warehouse Agent to take
such action as agent on its behalf and to exercise such powers under the
Seasoned Warehouse Loan Documents as are delegated to Seasoned Warehouse Agent
by the terms of the Seasoned Warehouse Loan Documents and all other reasonably
incidental powers, (e) agrees with Assignor, the Companies, the Seasoned
Warehouse Agent and the Seasoned Warehouse Lenders that Assignee shall perform
and comply with all provisions of the Seasoned Warehouse Loan Documents
applicable to the Seasoned Warehouse Lenders in accordance with their respective
terms and (f) if Assignee is not organized under the Laws of the United States
of America or one of its states, it hereby makes the representations and
warranties to Assignor, the Companies, the Seasoned Warehouse Agent and the
Seasoned Warehouse Lenders that are set forth in SECTION 14.17(c) of the
Warehouse Credit Agreement and agrees to be bound by the terms of that Section.
4. WAREHOUSE CREDIT AGREEMENT AND COMMITMENTS. From and after the
Assignment Effective Date (a) Assignee shall be a party to the Warehouse Credit
Agreement and (to the extent provided in this Agreement) have the rights and
obligations of a Lender under the Seasoned Warehouse Loan Documents and (b)
Assignor shall (to the extent provided in this Agreement) relinquish its rights
-- excluding, however, its rights to recover costs, be reimbursed for expenses
and be indemnified under SECTIONS 2.3, 6.3 and 15 of the Warehouse Credit
Agreement, none of which is Assignor releasing) and be released from its
obligations under the Seasoned Warehouse Loan Documents. On the Assignment
Effective Date, after giving effect to this and certain other assignment and
assumption agreements that become effective on the Assignment Effective Date,
but without giving effect to any other assignments that have not yet become
effective, Assignor's Committed Sum and Assignee's Committed Sum will be as
follows:
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LENDER COMMITTED SUM
Assignor $
Assignee $
5. NOTES. Assignor and Assignee request Companies to issue new Notes to
Assignor and Assignee in the amounts of their respective Committed Sums under
PARAGRAPH 4 above and otherwise issued in accordance with the Warehouse Credit
Agreement. Upon delivery of those Notes, Assignor shall return to Companies all
Notes previously delivered to Assignor under the Warehouse Credit Agreement.
6. PAYMENTS AND ADJUSTMENTS. From and after the Assignment Effective
Date, Seasoned Warehouse Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to Assignee. Assignor and Assignee shall make all appropriate
adjustments in payments for periods before the Assignment Effective Date by
Seasoned Warehouse Agent or with respect to the making of this assignment
directly between themselves. Assignor and Assignee agree to share any payments
and proceeds received by either of them with respect to the Obligations ratably
between them in accordance with the provisions and intent of this Agreement.
7. CONDITIONS PRECEDENT. PARAGRAPHS 1 through 6 above are not effective
until (i) counterparts of this Agreement are executed and delivered by Assignor
and Assignee to, and are executed in the spaces below by, Companies and Seasoned
Warehouse Agent, and (ii) Assignor, Assignee, Companies, and Seasoned Warehouse
Agent comply with each of the requirements of SECTION 14.17(b) of the Warehouse
Credit Agreement.
8. INCORPORATED PROVISIONS. Although this Agreement is not a Loan
Document, the provisions of SECTIONS 1 and 16 of the Warehouse Credit Agreement
applicable to Seasoned Warehouse Loan Documents are incorporated into this
Agreement by reference, the same as if this Agreement were a Loan Document and
those provisions were set forth in this Agreement verbatim.
9. COMMUNICATIONS. For purposes of SECTION 16.14 of the Warehouse Credit
Agreement, Assignee's address, telephone number and fax number, until changed
under that Section, are set out under its signature below.
10. AMENDMENTS, ETC. No amendment, waiver, or discharge to or under this
Agreement is valid unless it is in writing, signed by the party against whom it
is sought to be enforced, and is otherwise in conformity with the requirements
of the Warehouse Credit Agreement.
11. ENTIRETY. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN
ASSIGNOR AND ASSIGNEE ABOUT ITS SUBJECT MATTER AND MAY
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153
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF ASSIGNOR AND ASSIGNEE. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN ASSIGNOR AND ASSIGNEE.
12. PARTIES. This Agreement binds and benefits Assignor, Assignee and
their respective successors and assigns that are permitted under the Warehouse
Credit Agreement.
EXECUTED as of _________ __, 199_, but effective as of the date first
stated above.
_________________________, as Assignor _________________________, as
Assignee
By______________________ By________________________________
(Name)__________________ (Name)____________________________
(Title)_________________ (Title)___________________________
(Address) ______________________
______________________
______________________
Attn:_________________
(Phone No.) (___) ___-____________
(Fax No.) (___) ___-____________
As of the Assignment Effective Date, the Borrowers and the Seasoned
Warehouse Agent consent to this Agreement and the transactions contemplated in
it.
MCA FINANCIAL CORP., TEXAS COMMERCE BANK NATIONAL
MCA MORTGAGE CORPORATION ASSOCIATION, as the Seasoned Warehouse
Agent and MORTGAGE CORPORATION
OF AMERICA, as the Borrowers
By__________________________ By_______________________________________
(Name)______________________ Xxxxxx X. Xxxxxxx, Vice President
(1)(Title)__________________
____________________
(1) Must be a Responsible Officer of all four Companies.
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EXHIBIT J
[ NUMBER ] AMENDMENT TO WAREHOUSE CREDIT AGREEMENT
THIS AMENDMENT is entered into as of _________________________, 199___,
between MCA FINANCIAL CORP., a Michigan corporation, MCA MORTGAGE CORP., a
Michigan corporation, MORTGAGE CORPORATION OF AMERICA, a Michigan corporation,
and MORTGAGE CORPORATION OF AMERICA, INC., an Ohio corporation (the
"COMPANIES"), certain lenders (the "SEASONED WAREHOUSE LENDERS") and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION (in its capacity as Seasoned Warehouse Agent
for Seasoned Warehouse Lenders, the "SEASONED WAREHOUSE AGENT").
The Companies, the Seasoned Warehouse Agent and the Seasoned Warehouse
Lenders are parties to the 10/97 Senior Secured Seasoned Warehouse Credit
Agreement dated as of October 31, 1997 (as supplemented, amended or restated,
the "WAREHOUSE CREDIT AGREEMENT"), providing for loans to Companies on a
revolving basis. The Companies have requested an amendment to the Warehouse
Credit Agreement in order to, among other things, [STATE PURPOSE OF
AMENDMENT]. Accordingly, for adequate and sufficient consideration, the
parties to this amendment agree as follows:
1. DEFINITIONS. Unless stated otherwise, (a) each term defined in the
Warehouse Credit Agreement has the same meaning when used in this amendment and
(b) all references to "Sections", "Schedules", and "Exhibits" are references to
the Warehouse Credit Agreement's sections, schedules and exhibits.
2. AMENDMENTS.
[INSERT AMENDMENTS]
3. CONDITIONS PRECEDENT. The foregoing shall not be effective unless (a)
the Seasoned Warehouse Agent shall have received counterparts of this amendment
executed by the Companies, the Seasoned Warehouse Agent and the Seasoned
Warehouse Lenders, and (b) [STATE OTHER CONDITIONS PRECEDENT].
4. RATIFICATIONS. This amendment modifies and supersedes all inconsistent
terms and provisions of the other Seasoned Warehouse Loan Documents. Except as
expressly modified and superseded by this amendment, the terms and provisions of
the other Seasoned Warehouse Loan Documents are ratified and confirmed and
continue in full force and effect. The Companies, the Seasoned Warehouse Agent
and all Seasoned Warehouse Lenders agree that the Seasoned Warehouse Loan
Documents, as amended by this amendment, continue to be legal, valid and binding
and enforceable in accordance with their respective terms. The Companies ratify
and confirm that all Liens granted to the Seasoned Warehouse Agent (as agent and
Representative of the Seasoned
000
Xxxxxxxxx Xxxxxxx) were intended to, do, and continue to secure the full payment
and performance of the Obligations. The Companies shall perform such acts and
duly authorize, execute, acknowledge, deliver, file and record such additional
documents as the Seasoned Warehouse Agent or any Seasoned Warehouse Lender may
reasonably request in order to perfect such Liens and preserve and protect the
rights of the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders in
respect of all present and future Collateral.
5. GRANT OF SECURITY INTEREST. The Companies hereby GRANT to the
Seasoned Warehouse Agent, as agent and Representative of the Seasoned Warehouse
Lenders, a security interest in the Collateral, and hereby ratify and reconfirm
the grant of a security interest therein made by the Seasoned Warehouse Security
Agreement.
6. REPRESENTATIONS AND WARRANTIES. The Companies represent and warrant
to the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders that (a) the
Companies have all requisite power and authority to execute, deliver and keep,
observe and perform their respective obligations under this amendment and the
other Seasoned Warehouse Loan Documents, (b) this amendment and the other
Seasoned Warehouse Loan Documents to be delivered under this amendment have been
duly authorized, executed, and delivered by the Companies, (c) no action of, or
filing with, any Tribunal is required to authorize, or is otherwise required in
connection with, the execution, delivery and performance by the Companies of
this amendment and those other Seasoned Warehouse Loan Documents, (d) this
amendment and those other Seasoned Warehouse Loan Documents are valid and
binding upon the Companies and are enforceable against the Companies in
accordance with their respective terms, except as limited by the Bankruptcy Code
and all other similar Laws affecting the rights of creditors generally, (e) the
execution, delivery, and performance by the Companies of this amendment and
those other Seasoned Warehouse Loan Documents do not require the consent of any
other Person and do not and will not constitute a violation of any Laws,
agreements or understandings to which any of the Companies is a party or by
which any Company is bound, (f) the representations and warranties in the
Warehouse Credit Agreement, as amended by this amendment, and each other
Warehouse Loan Document are true and correct in all material respects on and as
of the date of this amendment as though made as of the date of this amendment
and (g) as of the date of this amendment, and after giving effect to this
amendment, no Default or Event of Default exists.
7. REFERENCES. All references in the Seasoned Warehouse Loan Documents
to the "Credit Agreement" or the "Warehouse Credit Agreement" refer to the
Warehouse Credit Agreement as amended by this amendment. Because this amendment
is a "Warehouse Loan Document" referred to in the Warehouse Credit Agreement,
the provisions relating to Seasoned Warehouse Loan Documents in SECTIONS 1 and
16.20 of the Credit Agreement are incorporated into this amendment by reference
the same as if included in this amendment verbatim.
8. COUNTERPARTS. This amendment may be executed in any number of
counterparts with the same effect as if all signatories had signed the same
document, and all of those counterparts must
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156
be construed together to constitute one and the same document; but in making
proof of this amendment, it shall not be necessary to produce or account for
more than one such counterpart.
9. PARTIES BOUND. This amendment shall bind and benefit the Companies,
the Seasoned Warehouse Agent, each Seasoned Warehouse Lender and (subject to
SECTION 16.11 of the Warehouse Credit Agreement) their respective successors and
assigns.
10. ENTIRETY. THIS AMENDMENT, THE CREDIT AGREEMENT AS AMENDED BY IT AND
THE OTHER SEASONED WAREHOUSE LOAN DOCUMENTS TOGETHER CONSTITUTE A WRITTEN LOAN
AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
Executed on ________________, effective as of the date first stated
above.
MCA FINANCIAL CORP, TEXAS COMMERCE BANK NATIONAL
MCA MORTGAGE CORPORATION, ASSOCIATION, as Seasoned Warehouse Agent
MORTGAGE CORPORATION OF and
AMERICA AND MORTGAGE a Seasoned Warehouse Lender
CORPORATION OF AMERICA, INC., By_________________________________
as the Companies (Name)_____________________________
(Title)____________________________
By_________________________________
(Name)_____________________________
(Title)____________________________
RESIDENTIAL FUNDING CORPORATION, GUARANTY FEDERAL BANK, F.S.B.,
as a Seasoned Warehouse Lender as a Seasoned Warehouse Lender
By_________________________________ By__________________________________
(Name)_____________________________ (Name)______________________________
(Title)____________________________ (Title)_____________________________
Unnumbered signature page to
__Amendment to Warehouse Credit Agreement
000
XXXX XXX, XXXXX, N.A., THE BANK OF NEW YORK,
as a Seasoned Warehouse Lender as a Seasoned Warehouse Lender
By_________________________________ By______________________________
(Name)_____________________________ (Name)__________________________
(Title)____________________________ (Title)_________________________
LASALLE NATIONAL BANK,
as a Seasoned Warehouse Lender
By_________________________________
(Name)_____________________________
(Title)____________________________
Unnumbered signature page to
____ Amendment to Warehouse Credit Agreement
158
SCHEDULE AG
APPLICABLE GUIDELINES
159
SCHEDULE AI
APPROVED INVESTORS
Aames Capital APPROVED BUT INACTIVE INVESTORS:
Access
AccuBanc Advanta broker div.
Advanta Conduit Capstead
Amresco ContiMortgage
Bank One EquiCredit
Bank of Boston HTP Financial
Chase Financial Liberty Lending
Chase Securities Beneficial
CityScape First Federal of Woost.
Countrywide Xxxxxx Capital
Delta Funding Portfolio Acceptance
Express Mortgage Washtenaw Mortgage
First Colony
First Finance
First Plus Financial
First Union
Flagstar
GE Capital
Green Tree Financial
Independent National
Industry (IMC)
Interfirst
The Money Store
Mortgage Corp. of America
MorEquity
National Lending
North American
Option One
Preferred Financial
Saxon Mortgage
Sterling Bank & Trust
Unicor
Xxxxx Securities
160
SCHEDULE BB
BORROWING BASE SCHEDULE
BORROWING BASE CALCULATIONS
A. BORROWING BASE means the sum of the Collateral Values determined as set
forth below for each item in the following groupings of collateral types:
1. For each Eligible Mortgage Loan (not Foreclosure/REO/Repurchase
Collateral), the lesser of (x) one hundred percent (100%) of the
lesser of (i) its face amount less discounts (the net amount funded by
the Companies with respect thereto) and (ii) its unpaid principal
balance, or (y) at the election of the Seasoned Warehouse Agent or
Majority Seasoned Warehouse Lenders at any time, ninety-eight percent
(98%) of its Market Value;
2. For each Eligible Land Contract, eighty-seven and one-half percent
(87 1/2%) of the least of (i) the appraised value of the subject
property, (ii) the unpaid principal balance of the contract purchase
price and (iii) the actual amount funded by the Companies with respect
to such Eligible Land Contract, or (iii) at the election of the
Seasoned Warehouse Agent or Majority Seasoned Warehouse Lenders at any
time, Market Value;
3. For each Eligible Repurchased Loan, eighty-five percent (85%) of the
least of (i) the face amount of the underlying promissory note, (ii)
its unpaid principal balance and (iii) the net amount funded by the
Companies with respect to its repurchase, or (iv) at the election of
the Seasoned Warehouse Agent or Majority Seasoned Warehouse Lenders at
any time, Market Value;
4. For each item of Eligible REO, eighty-five percent (85%) of the least
of (i) the appraised value of the REO and its existing improvements,
or (ii) the face amount of the Mortgage foreclosed pursuant to which
foreclosure the relevant Company became owner of the REO or (iii) at
the election of Agent or Majority Seasoned Warehouse Lenders at any
time, Market Value;
5. For each Eligible Foreclosure Loan, eighty-five percent (85%) of the
least of (i) the face amount of the underlying promissory note and
(ii) its unpaid principal balance, or (iii) at the election of the
Seasoned Warehouse Agent or Majority Seasoned Warehouse Lenders at any
time, Market Value.
6. For each Eligible Mortgage Security, eighty-five percent (85%) of the
least of (i) its face principal amount and (ii) its unpaid principal
balance, or (iii) at the election of
161
the Seasoned Warehouse Agent or Majority Seasoned Warehouse Lenders at
any time, its Market Value.
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SCHEDULE CP
COLLATERAL PROCEDURES
B. MORTGAGE LOAN. Delivery of a Mortgage Loan for inclusion in the Borrowing
Base (including a Foreclosure Loan or a Repurchased Loan) requires delivery
to the Custodian of the following Collateral Papers, each of which must be
in form and substance satisfactory to the Seasoned Warehouse Agent, in the
following manner:
1. A Submission List that, among other things, identifies the
documents being delivered to the Custodian for that Borrowing.
2. The original promissory note evidencing that Mortgage Loan properly
payable or endorsed to the appropriate Company, and endorsed in blank
by that Company.
3. An assignment from that Company of the mortgage, deed of trust, or
trust deed securing that Mortgage Loan, executed in blank by that
Company, and in recordable form.
4. A copy of each intervening assignment to that Company of that
mortgage, deed of trust, or trust deed certified in a Certifying
Officer's Certificate furnished to the Agent as being either (i) a
true and correct copy of the original recorded in the jurisdiction
where the property is located or (ii) a true and correct copy of the
original that has been sent for recording in such jurisdiction.
5. A copy of that original mortgage, deed of trust, or trust deed
certified in a Certifying Officer's Certificate furnished to the Agent
as being a true and correct copy of the original and that the original
has been sent for recording in the jurisdiction where the property is
located.
6. A data processing printout reflecting that Mortgage Loan's loan
number, mortgagor, origination date, original amount, outstanding
principal balance, interest rate, type of loan and requested advance
amount.
7. Any and all other files, documents, instruments, certificates,
correspondence or other records that are requested by the Seasoned
Warehouse Agent or the Custodian.
C. MORTGAGE SECURITY. Delivery of a Mortgage Security for inclusion in the
Borrowing Base requires delivery to the Custodian of the following
Collateral Papers, each of which must be in form and substance satisfactory
to Seasoned Warehouse Agent, in the following manner:
1. A Submission List that, among other things, identifies the documents
being delivered to the Custodian.
163
2. For a Mortgage Security that is not in book entry form:
(a) The original Mortgage Security.
(b) An updated bond power endorsed, or another appropriate
instrument of assignment executed by the appropriate Company
in blank.
3. For a Mortgage Security that is in book entry form,
confirmation of either:
(a) The appropriate entry (i) in the records of a
Federal Reserve Bank of the nominal ownership by Seasoned
Warehouse Agent (as agent and Representative of Seasoned
Warehouse Lenders) of any FNMA Mortgage Security that
constitutes a "FNMA BOOK ENTRY SECURITY", as defined in the
Book Entry Procedures for FNMA Securities, 24 C.F.R.
Sections 81.41-81.49 (the "FNMA BOOK ENTRY PROCEDURES"),
or a FHLMC Mortgage Security that constitutes a "FHLMC
BOOK ENTRY SECURITY," as defined in the Federal Home Loan
Mortgage Corporation Book Entry Regulations, 1 C.F.R.
Sections 462.1-462.8 (the "FHLMC BOOK ENTRY REGULATIONS"),
and (ii) by Seasoned Warehouse Agent in its records of the
appropriate Company's ownership of that book entry Mortgage
Security subject to a Lender Lien; or
(b) The (i) appropriate entry by The Chase Manhattan Bank, in
its capacity as custodian for Participants Trust Company
("PTC"), GNMA's central depositary, in its records of the
nominal ownership by Seasoned Warehouse Agent (as agent and
Representative of Seasoned Warehouse Lenders) of any
GNMA-guaranteed Mortgage Security, (ii) the appropriate
entry by Seasoned Warehouse Agent in its records of the
appropriate Company's ownership of that book entry Mortgage
Security subject to a Lender Lien and (iii) receipt by
Seasoned Warehouse Agent of a confirmation of transaction in
the form of a written advice specifying the amount and
description of that book entry Mortgage Security subject to
that Lien.
D. LAND CONTRACT. Delivery of a Land Contract for inclusion in the Borrowing
Base requires delivery to the Custodian of the following Collateral Papers,
each of which must be in form and substance satisfactory to Seasoned
Warehouse Agent, in the following manner:
1. A Submission List that, among other things, identifies the documents
being delivered to Custodian for that Land Contracts Borrowing.
2. A certified copy of the original Land Contract.
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164
3. An original assignment of the Land Contract executed by the relevant
Company and in recordable form (including any notary acknowledgment
required for recordation), assigning the seller's right, title and
interest in and to that Land Contract in blank.
4. A copy of a deed or quitclaim showing the relevant Company to be
owner of the underlying real property.
5. A data processing printout reflecting that Land Contract's contract
number, purchaser's name, origination date, original amount,
outstanding principal balance, interest rate and requested advance
amount.
6. Any and all other files, documents, instruments, certificates,
correspondence or other records that are requested by Seasoned
Warehouse Agent.
E. REO. Delivery of REO for inclusion in the Borrowing Base requires delivery
to the Seasoned Warehouse Agent of the following Collateral Papers, each of
which must be in form and substance satisfactory to the Seasoned Warehouse
Agent, in the following manner:
1. A Submission List that, among other things, identifies the
documents being delivered to the Custodian for that Borrowing and
identifies the REO and any and all related claims and receivables held
or to be held by the relevant Company under or in respect of any VA
mortgage guaranty or FHA or private mortgage insurance as Collateral.
2. A data processing printout reflecting the loan number, mortgagor,
origination date, original amount and date of foreclosure of the
foreclosed Mortgage Loan that produced the REO.
3. A certified copy of the original recorded mortgage, deed of trust,
or trust deed covering the REO and securing the foreclosed Mortgage
Loan that produced the REO.
4. A certified copy of the trustee's or sheriff's deed conveying the
REO to the relevant Company following foreclosure.
5. A certified copy of any VA guaranty or commitment to guarantee, FHA
insurance certificate or commitment to insure or private mortgage
insurance certificate or commitment to insure, such foreclosed
Mortgage Loan.
6. A statement of the amount of the relevant Company's claim, if any,
against VA, FHA or a private mortgage insurer in respect of such
foreclosed Mortgage Loan.
7. A copy of a current real estate broker's opinion of value of such
REO.
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8. A copy of a current certificate of casualty insurance coverage of
the improvements to such REO.
The certification of each such certified copy shall be manually signed
by a duly authorized officer or representative of the Person certifying such
document's authenticity as a true copy of the original unless the certification
is by a governmental entity for whose certification applicable Laws, rules,
regulations or orders of -- or applicable to -- such governmental authority make
such a manual signature unnecessary.
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SCHEDULE EC
ELIGIBILITY CONDITIONS
1. ELIGIBLE SEASONED LOAN means and includes any:
(a) Mortgage Loan for which the Collateral Agent has received the
Collateral Papers and that is an Eligible Mortgage Loan;
(b) Mortgage Security that is an Eligible Mortgage Security;
(c) Mortgage Loan for which the Collateral Agent has received the
Collateral Papers and that is an Eligible Repurchased Loan;
(d) Land Contract for which the Collateral Agent has received the
Collateral Papers and that is an Eligible Land Contract;
(e) Foreclosure Loan for which the Collateral Agent has received the
Collateral Papers and that is a Mortgage Loan owned by one of the
Borrowers and that is in the process of being foreclosed; and
(f) REO owned by one of the Companies as a result of foreclosure or a
deed in lieu of foreclosure of a Mortgage Loan owned by such
Borrower, together with all VA mortgage guaranty, FHA mortgage
insurance or private mortgage insurance claims and receivables in
respect thereto and (i) on the claim under the VA mortgage
guaranty, FHA mortgage insurance or private mortgage insurance
recoverable in respect of which the Seasoned Warehouse Agent is
-- and since the initial filing of such claim has continuously
been -- named as mortgage holder and claim payee and (ii) for
which the Collateral Agent has received the Collateral Papers.
2. ELIGIBLE MORTGAGE LOAN means a Mortgage Loan:
(a) The promissory note evidencing which (i) is the standard form
approved by VA, FHA, FNMA, or FHLMC or a form otherwise
acceptable to Collateral Agent, (ii) has a maturity within 30
years of its origination, (iii) is payable or endorsed (without
restriction or limitation) to a Company's order, (iv) is endorsed
in blank by that Company, (v) is fully funded, and (vi) is valid
and enforceable without offset, counterclaim, defense, or right
of rescission or avoidance of any kind other than for valid
payments made on it and any exceptions to enforceability under
Debtor Laws.
167
(b) For which no foreclosure or other similar proceedings have
commenced, and no claim for any credit, allowance, or adjustment
exists, and for which no default in the payment of principal or
interest or any other default has continued uncured for sixty
(60) calendar days.
(c) That is secured by a mortgage, deed of trust, or trust deed
that (i) is the standard form approved by VA, FHA, FNMA, or FHLMC
or a form otherwise acceptable to the Seasoned Warehouse Agent
and (ii) grants a first priority Lien on residential real
property described below that will be perfected upon recording.
(d) For which the underlying residential real property (1) consists
of land and (i) a one-to-four-family dwelling, (ii) a condominium
unit, or (iii) a manufactured home unit, but not (iv) a mobile
home, a co-op, or a multi-family dwelling for more than four
families, (2) is, if required by Appraisal Laws, covered by an
Appraisal, and (3) is insured against loss or damage by fire and
all other hazards normally included in standard extended coverage
insurance (including flood insurance if the property is in a
federally designated flood plain) in accordance with the
Collateral Papers for it, and the appropriate Company is named as
a loss- payee for that insurance.
(e) The Collateral Papers for which (i) have been delivered to the
Seasoned Warehouse Agent, (ii) are in compliance with all laws,
(iii) are otherwise in compliance with the requirements of the
Loan Documents and otherwise in form and substance acceptable to
the Seasoned Warehouse Agent, and (iv) are subject to Lender
Liens.
(f) That has not, and no Collateral Paper for which has, been (i)
delivered to an investor or any Person for more than the Shipping
Period, or (ii) delivered to any Borrower for correction for more
than the Correction Period.
(g) That is (i) not an Eligible Repurchased Loan and (ii) not
subject to a repurchase agreement.
3. ELIGIBLE MORTGAGE SECURITY means a Mortgage Security:
(a) That is valid and enforceable without offset, counterclaim,
defense, or right of rescission or avoidance of any kind.
(b) That is guaranteed or issued by either (i) FNMA, FHLMC, or GNMA
or (ii) any other Person if (1) Companies first obtain Majority
Seasoned Warehouse Lenders' written approval in their sole
discretion and (2) that other Person
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168
has not later been rejected by Majority Seasoned Warehouse
Lenders in their sole discretion.
(c) Under which no default exists.
(d) The Collateral Papers for which (i) have been delivered to
Custodian, (ii) are in compliance with all Laws, (iii) are
otherwise in form and substance acceptable to Seasoned Warehouse
Agent, and (iv) are subject to Lender Liens.
4. ELIGIBLE REPURCHASED LOAN means a Mortgage Loan:
(a) That has been repurchased by a Company from an investor, or out
of a Mortgage Pool, including one on which Mortgage Securities
are based, pursuant to such Company's obligation or right to do
so as Servicer of that Mortgage Loan.
(b) That is an FHA Loan, VA Loan, Jumbo Loan or other Mortgage Loan
that complies with all applicable requirements for purchase under
the FHLMC Guide or the FNMA Guide or is a Subprime Mortgage Loan.
(c) The promissory note evidencing which (i) is the standard form
approved by VA, FHA, FNMA, or FHLMC or a form otherwise
acceptable to Seasoned Warehouse Agent, (ii) has a maturity
within 30 years of its origination, (iii) is payable or endorsed
(without restriction or limitation) to a Company's order, (iv) is
endorsed in blank by that Company, (v) is fully funded, and (vi)
is valid and enforceable without offset, counterclaim, defense,
or right of rescission or avoidance of any kind other than for
valid payments made on it and any exceptions to enforceability
under Debtor Laws.
(d) For which no claim for any credit, allowance, or adjustment
exists.
(e) That is secured by a mortgage, deed of trust, or trust deed that
(a) is the standard form approved by VA, FHA, FNMA, or FHLMC or a
form otherwise acceptable to the Seasoned Warehouse Agent and (b)
grants a first priority Lien on residential real property
described below that has been or will be perfected upon
recording.
(f) For which the underlying residential real property (a) consists
of land and (i) a one-to-four-family dwelling, (ii) a condominium
unit, or (iii) a manufactured home unit, but not (iv) a mobile
home, a co-op, or a multi-family dwelling for more than four
families, (b) is, if required by Appraisal Laws, covered by an
Appraisal, and (c) is insured against loss or damage by
3
169
fire and all other hazards normally included in standard
extended coverage insurance (including flood insurance if
the property is in a federally designated flood plain) in
accordance with the Collateral Papers for it, and the
appropriate Company is named as a loss-payee for that
insurance.
(g) The Collateral Papers for which (a) are in compliance
with all Laws, (b) are otherwise in compliance with the
requirements of the Seasoned Warehouse Loan Documents and
otherwise in form and substance acceptable to the Seasoned
Warehouse Agent, and (c) are subject to Lender Liens.
(h) That has not, and no Collateral Paper for which has, been
(a) delivered to an investor or any Person for more than the
Shipping Period, or (b) delivered to any Company for
correction or servicing for more than the Correction Period.
(i) That is not subject to a repurchase agreement.
5. ELIGIBLE FORECLOSURE LOAN means a Mortgage Loan that would be an
Eligible Mortgage Loan except that the relevant Company has
commenced foreclosure proceedings.
6. ELIGIBLE REO means improved residential real property formerly
comprising the subject matter of and security for a Mortgage Loan
owned by one of the Companies, fee simple title to which real
property has been acquired by the relevant Company through
foreclosure or deed in lieu of foreclosure, and which the Company
is using reasonable and diligent efforts to liquidate.
7. ELIGIBLE LAND CONTRACT means a Land Contract:
(a) Which (a) is in form acceptable to Seasoned Warehouse Agent,
(b) has a maturity within twenty (20) years of its
origination, (c) has a Company as the original "Seller" or
is properly assigned (without restriction or limitation) to
a Company and is collaterally assigned to the Seasoned
Warehouse Agent (as agent and Representative of the Seasoned
Warehouse Lenders), (d) is fully funded, and (f) is valid
and enforceable without offset, counterclaim, defense or
right of recision or avoidance of any kind other than for
valid payments made on it and any exceptions to
enforceability under Debtor Laws.
(b) For which no default in the payment of principal or interest
or any other default has continued uncured for sixty (60)
calendar days, no foreclosure or other similar proceedings
have commenced, and no claim for any credit, allowance or
adjustment exists.
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170
(c) For which the underlying residential real property (a)
consists of land and (i) a one-to-four family dwelling, (ii)
a condominium unit or (iii) a manufactured home unit, but
not (iv) a mobile home, a co-op, or a multi-family dwelling
for more than four families, (b) is, if required by
Appraisal Laws, covered by an Appraisal, and (c) is insured
against loss or damage by fire and all other hazards
normally included in standard extended coverage insurance
(including without limitation, flood insurance if the
property is in a federally designated flood plain) in
accordance with the Collateral Papers for it, and the
appropriate Company is named as a loss payee for that
insurance.
(d) The Collateral Papers for which (i) are in compliance with
all Laws, (ii) are otherwise in compliance with the
requirements of the Seasoned Warehouse Loan Documents and
otherwise in form and substance acceptable to the Seasoned
Warehouse Agent, and (iii) are subject to Lender Liens.
(e) That has not, and no Collateral Paper for which has, been
(i) sold to an investor and repurchased by any Company, (ii)
rejected by an investor, (iii) delivered to an investor or
any Person for more than the Shipping Period, or (iv)
delivered to any Company for correction or servicing for
more than the Correction Period.
(f) That is not subject to a repurchase agreement.
5
171
SCHEDULE LC
LENDERS AND COMMITMENTS
LENDER SEASONED WAREHOUSE LINE COMMITMENT
------------------------------------------------------------------------------------------------------------
Texas Commerce Bank National Association $25,000,000
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Vice President
Fed. Tax I.D. No. 00-0000000
Phone: (000) 000-0000
Fax: (000) 000-0000
(Wire Instructions)
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
000 XXXX XXXXXX
XXXXXXX, XXXXX 00000
ABA # 0000-0000-0
NOTIFY: XXXXXX X. XXXXXXX
FOR CREDIT ACCOUNT__________________,
ACCOUNT # 0010______________________
------------------------------------------------------------------------------------------------------------
TOTAL $25,000,000
------------------------------------------------------------------------------------------------------------
172
SCHEDULE 2.3
TERMS OF COMPANIES' OBLIGATIONS TO PAY BORROWINGS BY OTHER COMPANIES
Each Company hereby agrees to the following terms with respect to
Borrowings by any Borrower and the other obligations of any other Company:
1. Each Company irrevocably, unconditionally and absolutely guarantees to
the Seasoned Warehouse Lenders the due and prompt payment, and not just the
collectibility, of the principal of, and interest, fees and late charges and all
other indebtedness, if any, on, the Borrowings by each other Company, and all
other obligations of such other Company to the Seasoned Warehouse Lenders and
the Seasoned Warehouse Agent, when due, whether at maturity, by acceleration or
otherwise all at the times and places and at the rates described in, and
otherwise according to the terms of the Seasoned Warehouse Notes and the
Seasoned Warehouse Credit Agreement, whether now existing or hereafter created
or arising.
2. Each Company further hereby irrevocably, unconditionally and absolutely
guarantees to the Seasoned Warehouse Lenders the due and prompt performance by
each other Company of all duties, agreements and obligations of such other
Company contained in the Seasoned Warehouse Credit Agreement, the Seasoned
Warehouse Notes and the other Seasoned Warehouse Loan Documents, and the due and
prompt payment of all costs and expenses incurred, including attorneys' fees,
court costs and all other litigation expenses (including expert witness fees,
exhibit preparation and courier, postage, communication and document copying
expenses), in enforcing the payment and performance of the Seasoned Warehouse
Credit Agreement and the other Seasoned Warehouse Loan Documents from such other
Company (the payment and performance of the items set forth in PARAGRAPHS 1 and
2 of this Schedule are collectively referred to as the "OTHER COMPANY DEBT").
3. In the event any other Company shall at any time fail to pay the
Seasoned Warehouse Lenders any Other Company Debt when due, whether by
acceleration or otherwise, each Company hereby promises to pay such amount to
the Seasoned Warehouse Lenders forthwith, together with all collection costs and
expenses, including attorneys' fees, court costs and all other litigation
expenses (including expert witness fees, exhibit preparation and courier,
postage, communication and document copying expenses) .
4. Each Company hereby (a) agrees to any modifications of any terms or
conditions of any Other Company Debt and/or to any extensions or renewals of
time of payment or performance by any other Company; (b) agrees that it shall
not be necessary for the Seasoned Warehouse Lenders or the Seasoned Warehouse
Agent to resort to legal remedies against any other Company, nor to take any
action against any other Person obligated (an "OBLIGOR") on or against any
Collateral or any other security for payment or performance of the Other Company
Debt before proceeding against such Company; (c) agrees that no release of any
other Company or any other guarantor or Obligor, or of any Collateral or other
security for the Other Company Debt, whether by operation of law or by any act
of the Seasoned Warehouse Agent or Seasoned Warehouse Lenders, with or without
notice to
173
such Company, shall release such Company and (d) waives notice of demand,
dishonor, notice of dishonor, protest, and notice of protest and waive, to the
extent permitted by law, all benefit of valuation, appraisement, and exemptions
under the laws of the State of Texas or any other state or territory of the
United States.
5. The obligations of each Company for the Other Company Debt shall be
primary, absolute and unconditional, and shall remain in full force and effect
without regard to, and shall not be impaired or affected by: (a) the
genuineness, validity, regularity or enforceability of, or any amendment or
change in the Seasoned Warehouse Credit Agreement, any Seasoned Warehouse Note
or any other Seasoned Warehouse Loan Documents, or any change in or extension of
the manner, place or terms of payment of, all or any portion of the Other
Company Debt; (b) the taking or failure to take any action to enforce the
Seasoned Warehouse Credit Agreement, any Seasoned Warehouse Note or any other
Seasoned Warehouse Loan Documents, or the exercise or failure to exercise any
remedy, power or privilege contained therein or available at law or otherwise,
or the waiver by the Seasoned Warehouse Agent or any Seasoned Warehouse Lender
of any provisions of the Seasoned Warehouse Credit Agreement, any Seasoned
Warehouse Note or any other Seasoned Warehouse Loan Document; (c) any
impairment, modification, change, release or limitation in any manner of the
liability of any other Company or its estate in bankruptcy, or of any remedy for
the enforcement of any other Company's liability, resulting from the operation
of any present or future provision of the bankruptcy laws or any other statute
or regulation, or the dissolution, bankruptcy, insolvency, or reorganization of
any other Company; (d) the merger or consolidation of any other Company, or any
sale or transfer by any other Company of all or part of its assets or property;
(e) any claim such Company may have against any other Company or any other
Obligor, including any claim of contribution; (f) the release, in whole or in
part, of any other guarantor (if more than one), any other Company or any other
Obligor or (g) any other action or circumstance which (with or without notice to
or knowledge of such Company) might in any manner or to any extent vary the
risks of such Company or otherwise constitute a legal or equitable discharge or
defense, it being understood and agreed by each Company that its obligations for
the Other Company Debt shall not be discharged except by the full payment and
performance of the Other Company Debt.
6. The Seasoned Warehouse Agent shall have the right to
determine how, when and what application of payments and credits, if any,
whether derived from any Company or from any other source, shall be made on the
Obligations and any other indebtedness owed by any Company and/or any other
Obligor to the Lenders.
7. The obligations of each Company hereunder shall continue
to be effective, or be automatically reinstated, an the case may be, if at any
time the performance or the payment, an the case may be, in whole or in part, of
any of the Other Company Debt is rescinded or must otherwise be restored or
returned by any Lender (as a preference, fraudulent conveyance or otherwise)
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
any Company or any other person or upon or as a result of the appointment of a
custodian, receiver, trustee or other officer with similar powers with respect
to any Company or any other Person, or any substantial part of its property, or
otherwise, all as though such payments had not been made. If an Event of Default
shall
174
at any time have occurred and be continuing or shall exist and declaration of
default or acceleration under or with respect to the Other Company Debt shall
at such time be prevented by reason of the pendency against any Company or any
other Person of a case or proceeding under a bankruptcy or insolvency law, each
Company agrees that its obligations for the Other Company Debt shall be deemed
to have been declared in default or accelerated with the same effect as if such
obligations had been declared in default and accelerated in accordance with
their respective terms and each Company shall forthwith perform or pay, as the
case may be, as required hereunder in accordance with the terms hereunder
without further notice or demand.
8. Each Company hereby irrevocably waives any claim or other rights that
it may now or hereafter acquire against any other Company that arises from the
existence, payment, performance or enforcement of such Company's obligations for
the Other Company Debt, including any right of subrogation, reimbursement,
exoneration or indemnification, any right to participate in any claim or remedy
of the Seasoned Warehouse Lenders or the Seasoned Warehouse Agent against the
other Company or any Collateral or other security that the Seasoned Warehouse
Agent or any Seasoned Warehouse Lender now has or hereafter acquires, whether or
not such claim, remedy or right arises in equity or under contract, statute or
common law, including the right to take or receive from the other Company
directly or indirectly, in cash or other property or by set-off or in any
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to any Company in violation of the preceding sentence and
the Other Company Debt shall not have been paid and performed in full, such
amount shall be deemed to have been paid to such Company for the benefit of, and
held in trust for, the Seasoned Warehouse Lenders and shall forthwith be paid to
the Seasoned Warehouse Agent (for distribution to the Seasoned Warehouse
Lenders) to be credited and applied to the Other Company Debt, whether matured
or unmatured. Notwithstanding the blanket waiver of subrogation rights as set
forth above, each Company hereby specifically acknowledges that any subrogation
rights which it may have against any other Company or any Collateral or other
security that the Seasoned Warehouse Lenders or any Seasoned Warehouse Agent now
has or hereafter acquires may be destroyed by a nonjudicial foreclosure of the
Collateral or other security. This may give such Company a defense to a
deficiency judgment against it. Such Company hereby irrevocably waives such
defense. Each Company acknowledges that it will receive direct and indirect
benefits from the arrangements contemplated by the Seasoned Warehouse Credit
Agreement and that the waivers set forth in this Schedule are knowingly made in
contemplation of such benefits.
9. No postponement or delay on the part of the Seasoned Warehouse Agent or
any Seasoned Warehouse Lender in the enforcement of any right with respect to
the Obligations of any Company, including the Other Company Debt, shall
constitute a waiver of such right and all rights of the Seasoned Warehouse
Lenders or the Seasoned Warehouse Agent hereunder shall be cumulative and not
alternative and shall be in addition to any other rights granted to the Seasoned
Warehouse Lenders and the Seasoned Warehouse Agent in any other agreement or by
law.
10. Any Debt of any Company now or hereafter held by any other Company is
hereby subordinated to the Obligations, and such Debt of any Company to such
other Company shall, if the Seasoned Warehouse Agent so requests, be collected,
enforced and received by the Company to
175
which it is owed as trustee for the Seasoned Warehouse Lenders and their agent,
the Seasoned Warehouse Agent, and be paid over to the Seasoned Warehouse Agent
(for distribution to the Seasoned Warehouse Lenders) on account of the Debt of
the other Company to the Seasoned Warehouse Lenders.
176
SCHEDULE 9.2(b)
MCA FINANCIAL CORP.
BORROWING BASE CERTIFICATE
The undersigned, ______________________, certifies to Texas Commerce
Bank National Association, as a lender and as agent (the "SEASONED WAREHOUSE
AGENT") for the other lenders party thereto under the 10/97 Senior Secured
Seasoned Warehouse Credit Agreement among MCA Financial Corp. ("MCAFC"), MCA
Mortgage Corporation and Mortgage Corporation of America (all Michigan
corporations) and Mortgage Corporation of America , Inc. (an Ohio corporation),
the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders dated October
31, 1997 (as supplemented, amended or restated from time to time, the
"WAREHOUSE CREDIT AGREEMENT"), and to the other lenders party thereto, that he
is the duly appointed Chief Financial Officer of MCA. Pursuant to SECTION
9.2(b) of the Warehouse Credit Agreement, the undersigned further certifies to
the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders as follows:
Capitalized terms used in the Warehouse Credit Agreement that are also used but
not defined differently in this certificate have the same meanings here as
there.
1. As of ____________, 19__, the aggregate unpaid principal amount of all
outstanding Seasoned Warehouse Revolving Loans was $________________.
2. As of _____________, 19___, the Aggregate Committed Sum was
$______________.
3. As of _____________, 19__, the Borrowing Base was $______________, with
its constituent portions calculated in accordance with SCHEDULE BB to
the Warehouse Credit Agreement as follows:
(a) Borrowing Base portion attributable to
Eligible Foreclosure Loans: $___________
(b) Borrowing Base portion attributable to
Eligible REO: $___________
(c) Borrowing Base portion attributable to
Eligible Repurchased Loans: $___________
(d) Borrowing Base portion attributable to
Eligible Foreclosure/REO/Repurchase
Collateral ((a)+(b)+(c): $___________
(e) Borrowing Base portion attributable to
other Eligible Mortgage Loans: $___________
177
(f) Borrowing Base portion attributable to
Eligible Land Contracts: $_____________
(g) Borrowing Base portion attributable to
Eligible Mortgage Securities: $_____________
Total $_____________
4. As of ______________, 19__, the aggregate unpaid principal amount of
all outstanding Seasoned Warehouse Revolving Loans did not exceed the
lesser of the Aggregate Committed Sum or the Borrowing Base.
IN WITNESS WHEREOF, the undersigned has executed this Borrowing Base
Certificate this ____ day of _______________, 19__.
MCA FINANCIAL CORP.
By:______________________
Name:____________________
(1) Title:_______________
____________________
(1) Must be a Responsible Officer of MCAFC
178
SCHEDULE 10.1
SUBSIDIARIES
Company Name Shares Outstanding Shareholder
------------- ------------------ -----------
I. MCA Mortgage Corporation (MCAMC) 119,909 MCA Financial Corp.
II. Mortgage Corporation of America 50,000 MCA Financial Corp.
III. Complete Financial Corporation 18,750 MCA Financial Corp.
IV. Securities Corporation of 100 MCA Financial Corp.
America
V. MCA Realty Corporation 100 MCA Financial Corp.
VI. Mortgage Corporation of America, 500 Mortgage Corporation of
Inc. America
179
SCHEDULE 10.4
LITIGATION AND JUDGMENTS
None
180
SCHEDULE 11.2(d)
MANAGEMENT REPORT
SEASONED WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199___
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
This report is delivered under the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 (as supplemented, amended or
restated, the "WAREHOUSE CREDIT AGREEMENT"), among the Companies, the Seasoned
Warehouse Agent and the Seasoned Warehouse Lenders. Terms defined in the
Warehouse Credit Agreement have the same meaning when used, unless otherwise
defined, in this report.
I certify to the Seasoned Warehouse Agent and the Seasoned Warehouse
Lenders that on the date of this report:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. The attached SCHEDULE 1 is an accurate list of the Companies' Mortgage
Loan production for the Calendar Month before the date of this report,
describing in reasonable detail the geographic mix of all retail and
correspondent production for both the Calendar Month before the date of this
certificate and for the year to date, and such other matters as the Seasoned
Warehouse Agent may have reasonably requested.
3. The attached SCHEDULE 2 is an accurate and complete schedule of the
Companies' "open commitment and pipeline positions" (as commonly understood in
the industry) for Mortgage Loans, describing in reasonable detail (i) with
regard to "open commitment" positions, the names of investors, type, original
principal amount, rate, price/yield, and expiration date, and (ii) with regard
to "open pipeline" positions, the amount of the pipeline, the total locked
amount and rate of price committed Mortgage Loans in the pipeline, the
percentage of the locked amount that is covered, the types of coverage
(mandatory or optional), future contracts, hedged positions, repurchase
agreements, the profit or loss, and such other matters as the Seasoned Warehouse
Agent may have reasonably requested.
181
4. The attached SCHEDULE 3 is an accurate and complete schedule of the
Companies' Servicing Portfolio, describing in reasonable detail the number of
Mortgage Loans being serviced, the total unpaid principal balance of those
Mortgage Loans (total and by investor), investor type, geographic concentration,
weighted average coupon, foreclosure experience, and such other matters as
Seasoned Warehouse Agent may have reasonably requested.
By_________________________
(Name)_____________________
(1)(Title)_________________
____________________
(1) Must be a Responsible Officer of all four Companies.
182
SCHEDULE 11.12
SENIOR MANAGEMENT
Xxxxxxx X. Xxxxxxx Chairman, Chief Executive Officer, MCAFC
Xxxxx X. Xxxxxxx Executive Vice President, Chief Financial
Officer, MCAFC
Xxx X. Xxxxx President, Chief Operating Officer, MCAFC
D. Xxxxxxx Xxxxx Executive Vice President, MCAMC
Xxxxxxxxx X. Xxxxxxx Senior Vice President, Controller and Treasurer
183
SCHEDULE 11.15
SHAREHOLDERS
NAME NUMBER OF SHARES
Xxxxxx X. Xxxxxxx 2,450
Xxxxxxxxx X. Xxxxxxx 11,613
Xxxxxx Xxxxxxx 150
Xxxx X. Xxxxxxx 1,000
Xxxxxxx X. Xxxxxxxx 125
Xxxx Xxxxxx Xxxxx 1,000
Xxxxx X. Xxxxxx 437
Xxxxx X. Xxxxxx 929
Xxxx X. Xxxxxx 300
Xxxxxx Xxxxxx 350
Xxxxxx X. Xxxxxx 14,865
Xxxxxx X. Xxxxx 4,833
Xxxxxx XxxXxxxx 98
Xxxxx X. Xxxxxx 67
Xxxxxxx X. Xxxxxxxxx 4,380
Detroit Police and Firemen's Retirement System 30,197
Xxxxx X. XxXxxx 327
Xxxxxxx X. Xxxxxxxx 32
Xxxxxx X. Xxxx 67
Xxxxxx X. Xxxxx 4,233
Xxxxxx X. Xxxxxx 544
Xxxxxxx X. Xxxx 2,858
184
NAME NUMBER OF SHARES
Xxxxxx X. Xxxxx 500
Xxxxxx X. Xxxxxx 314
Xxxx X. Xxxxxxx 5,000
Xxxxx X. Xxxxxxxxx 124
Xxxxxx X. Xxxxxxxxx 3,000
Xxxxxx Xxxxx 34
Xxxxx X. Xxxx 150
Xxxxx X. Xxxxx 5,333
Xxxxxxx X. Xxxxxx, Sole Trustee of Xxxxxxx X. Xxxxxx 2,858
Living Trust
Xxx Xxxxxxx 184
Xxxxxx Xxxxx-Xxxxx 100
Xxxx Xxxxxxxx 134
Xxxxxx X. Xxxxxxxxxx 250
Xxxxxx X. Xxxxx 3,333
Xxxxxxx X. Xxxxx 2,144
Xxxxx Xxxxxxx 2,858
Xxxxx X. Xxxxxxxxx 600
D. Xxxxxxx Xxxxx 25,000
Xxxxx Xxxxxxx 1,092
Xxxxxx Xxxx 40
Xxxxx Xxxxx 391
Xxxx X. Xxxxxxx 600
Xxxxxxx X. Xxxx 245
Xxxxx Xxxxxxx Xxxxx 4,333
Xxxxxx X. Xxxx 5,333
2
185
NAME NUMBER OF SHARES
Xxxx X. Xxxx 600
Xxxxx X. Xxxxx 3,833
Xxxxx X. XxXxxxx 1,290
Xxxxxxx Xxxxxxx 936
Xxxxxx X. Xxxxx 300
Xxxxxx X. Xxxxx 350
Xxxxxxx X. Xxxxxx 150
Xxxxx Xxxxxx 163
Xxxxxxx X. XxXxxxxxxx 268
Xxxx X. XxXxxx-Xxxx 734
Xxxxxxx X. XxXxxxxx 600
Xxxxxxx X. Xxxxx 5,000
NML, Inc. 33,700
Xxxxxx X. X'Xxxxxx 6,097
Xxxxxxx X. X'Xxxxxxxx 1,560
Xxxx X. X'Xxxxx 8,044
Xxxxxx Xxxxxxxxx 200
Xxxxxx X. Xxxxxxx 525
Xxxxx X. Xxxxxxx 31,500
Xxxxxx X. Xxxxx 90
Xxxxxxx Xxxxxxx 134
Xxxxxx X. Xxxxxxxxxxxxx 1,806
Xxxxx X. Xxxxxx XX 1,081
Xxxx X. Xxxxxxx, Xx. 6,666
Xxxxxxx X. Xxxxxxx, Xx. 20,001
3
186
NAME NUMBER OF SHARES
Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx, as tenants by 90,134
the entireties
Xxxxxxx X. Xxxxxxx, Xx. 4,333
Xxxxxxxxx Rock Xxx 200
Xxxxx Xxxxxx 100
Xxxxx X. Xxxxxx 13,460
Xxxxxxx Xxxxxx 1,247
Xxx X. Xxxxxxxx 600
Xxxxxxx X. Silver 72
Xxxxx Xxxxx Xxxxx 350
Xxxxx X. Xxxxx 1,649
Standard Home Mortgage, Inc. 55,734
Xxxxx Xxxxxxxx 219
M. Xxxxxxx Xxxxx 730
Xxxx X. Xxxxx 600
Xxxxxx X. Xxxxx 3,250
Xxxxxxx X. Xxxx-Xxxxxx 600
Xxxxxx X. Xxxxx 300
Xxxxxxx X. VanStreacher III 4,000
Xxxxx X. Xxxxxx 1,183
Xxxxxx X. Xxxxx 4,000
X. Xxxxxxxx Xxxxx 3,333
Xxxxxx X. Xxxxx 40
Xxxxx X. Xxxxx, as Trustee of the Xxxxx Xxxxx Xxxxx 86,200
Revocable Living Trust u/a/d 10/18/88 as amended
Xxxxx X. Xxxxx 14,415
4
187
NAME NUMBER OF SHARES
Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxx, as tenants by their 16,002
entities
Xxx X. Xxxxx 23,333
Xxx X. Xxxxx and Rhaphael X. Xxxxx, as tenants by the 28,372
entireties
Xxxxxxxx X Xxxxx 350
Xxxxxx X. Xxxxxxx 4,000
TOTALS 629,239
5
188
SCHEDULE 12.4
EXISTING INDEBTEDNESS
Maximum Amount Amount
Name Available Outstanding
---- --------- -----------
Xxxxx Xxxxxx $20,000,000 $18,687,830
MCA Funding Partnership $2,000,000 $0
Funding Limited Partnership I $2,000,000 $0
Funding Limited Partnership II $2,000,000 $0
Sterling Bank & Trust $3,000,000 $0
11% Asset-Backed Subordinated Debentures due $10,000,000 $10,000,000
June 30, 2000
11% Subordinated Debentures due June 30, 2002 $6,000,000 $3,954,000
11% Subordinated Debentures due June 30, 2003 $10,000,000 $0
Land Contract - Building $542,556 $452,416
Capital Leases N/A $401,990
Texas Commerce Bank - warehouse [$115,000,000] [$74,064,060]
- revolving credit 28,500,000 18,223,311
Franklin Bank $1,000,000 $833,421
Subordinated Note Payable to Pension Fund $15,000,000 $15,000,000
Advanta Mortgage N/A $6,800,000
189
SCHEDULE 12.6
EXISTING LIENS
1. Liens on warehoused mortgages and land contracts, including the
unseparated mortgage servicing rights related thereto, under lines of
credit established with Xxxxx Xxxxxx ($20 million), where such mortgages
and land contracts are pledged as collateral to such other lender and are
not included in the Borrowing Base under the Credit Agreement to which this
Schedule is attached.
2. Liens on warehoused seasoned mortgages and land contracts, including the
unseparated mortgage servicing rights related thereto under a line of
credit established with Texas Commerce (i.e., under the Warehouse Credit
Agreement), where such mortgages and land contracts are pledged as
collateral to Texas Commerce and are not included in the Borrowing Base
under the Seasoned Warehouse Credit Agreement to which this Schedule is
attached.
3. Liens on land contracts and mortgages and real estate properties held in
inventory under lending agreements with MCA Funding Limited Partnership,
MCA Funding Limited Partnership II, PCA Funding Limited Partnership and
Sterling Bank, Franklin Bank and MCA-sponsored pass-through pools, where
such land contracts and mortgages are pledged as collateral to such other
lender and are not included in the Borrowing Base under the Credit
Agreement to which this Schedule is attached.
4. Liens on restricted cash accounts consisting of funds held (for example, in
escrow) by a Borrower or its Subsidiaries in the ordinary course of its
business in favor, on behalf or for the benefit of borrowers, owners of
mortgages or land contracts serviced by such Borrower (such as FHLMC, FNMA,
GNMA, or MCA-sponsored pass-through pools), or owners of real estate
managed by a Borrower or its subsidiaries (such as MCA-sponsored real
estate partnerships and unaffiliated investors).
5. Assumption of senior liens on real estate investments and land contracts
held for resale, where such real estate investments and land contracts are
not included in the Borrowing Base under the Credit Agreement to which this
Schedule is attached.
6. Rights of senior liens on real estate investments and land contracts held
for resale, where such real estate investments and land contracts are not
included in the Borrowing Base under the Credit Agreement to which this
Schedule is attached.
7. Existing liens upon equipment granted in connection with the financing of
the acquisition of such equipment, limited to the equipment financed, which
liens are represented by leases which, as of July 31, 1997, had an
aggregate present value of approximately $401,990.
8. Liens on mortgage and land contract servicing rights and on specified
mortgage notes and land contract vendors' interests under a trust indenture
dated December 30, 1994, between
190
MCAFC and First Union National Bank in connection with MCAFC's 11%
Asset-Backed Subordinated Debentures due June 30, 2000, where the related
mortgages and land contracts are owned by others and are not included in
the Borrowing Base under the Credit Agreement to which this Schedule is
attached.
9. Liens on specified residual ownership interests in the income stream
generated by such mortgage-backed securities as are related to specific
borrowings where such residual interests are pledged as collateral for
credit other than under the Credit Agreement to which this Schedule is
attached.
10. Liens on specified mortgage servicing rights as are related to specific
borrowings to secure which such mortgage servicing rights are pledged as
collateral to a lender, and the related mortgages and land contracts are
owned by others and are not included in the Borrowing Base under the Credit
Agreement to which this Schedule is attached.
11. Liens on mortgage servicing rights and their proceeds under the Revolving
Credit Loan Agreement (Secured) dated as of October 31, 1997, as amended,
providing a revolving line of credit of up to $28.5 million, where the
related mortgages and land contracts are owned by others and are not
included in the Borrowing Base under the Credit Agreement to which this
Schedule is attached.
12. Liens in favor of the Pension Fund granted under the Enhancement Agreement
which do not cover or affect any of the Seasoned Warehouse Collateral.
3
191
SCHEDULE 12.13
AFFILIATE TRANSACTIONS
1. MCAFC purchases various real estate parcels from unrelated third parties
which are subsequently sold to limited partnerships whose general partner
is owned by two MCAFC shareholders. Gains are recognized on these sales.
2. The Companies pay commissions for the acquisition of properties from
unrelated third parties to a company owned by three shareholders of MCAFC.
3. MCAFC earns management fees for administrative services provided to U.S.
Mutual Financial Corporation ("USMC"). Certain shareholders of MCAFC are
directors or major shareholders of USMC.
4. MCAFC has made charitable contributions to a non-profit organization,
Detroit Revitalization, Inc. ("DRI"), which is engaged in the business of
acquiring, renovating and selling affordable homes in the City of Detroit
to assist in reversing the trend toward deterioration of the housing stock
within the city. MCAFC also purchases various real estate parcels from
unrelated third parties which are subsequently sold to DRI. Certain
shareholders of MCAFC are former directors of DRI.
5. From time to time, the Companies have retained Consulting Services America
("C.S.A.") as consultants for specific strategic planning and
organizational development projects. The major shareholder and chief
executive officer of C.S.A. is a brother of two shareholder/directors of
MCAFC.
6. From time to time, the Companies have made working capital loans to
affiliated entities.
1
192
(THE "10/97 TEXAS COMMERCE SEASONED WAREHOUSE NOTE")
$25,000,000 Houston, Texas October 31, 1997
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers, jointly
and severally promise to pay to the order of TEXAS COMMERCE BANK NATIONAL
ASSOCIATION ("PAYEE"), a national banking association, at the main branch of
Texas Commerce Bank National Association, 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxx
Xxxxxx, Xxxxx 00000, or at such other place as the Seasoned Warehouse Agent may
hereafter designate in writing, in immediately available funds and in lawful
money of the United States of America, the principal sum of Twenty-five Million
Dollars ($25,000,000) (or the unpaid balance of all principal advanced against
this note, if that amount is less), together with intererst on the unpaid
principal balance of this note from time to time outstanding until maturity at
the Stated Rate (or at such lesser rate, if any, as the holder of this note --
the "HOLDER", whether or not Payee is such holder -- may in its sole discretion
from time to time elect to be applicable for any day or days), 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 10/97 Senior Secured Seasoned Warehouse Credit
Agreement dated October 31, 1997, as it may be supplemented, amended or restated
from time to time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b)
Texas Commerce Bank National Association (for itself as a lender and as
Seasoned Warehouse Agent for the other lenders party thereto) and (c) the other
lender(s) party thereto, for capitalized terms that are used in this note shall
apply here as well as there.
2. Rates Change Automatically and Without Notice. Without notice
to Makers or any other Person and to the full extent allowed by applicable law
from time to time in effect, the Stated Rate, the Past Due Rate and the Ceiling
Rate shall each automatically fluctuate upward and downward as and in the
amount by which the interest rate applicable to this note as provided for in
the Credit Agreement, the Past Due Rate as defined in the Credit Agreement and
such maximum nonusurious rate of interest permitted by applicable law,
respectively, fluctuate.
3. Calculation of Interest. Interest on the amount of each advance
against this note shall be computed on the amount of that advance and from the
date it is made. Such interest shall be computed on the basis of the actual
number of days elapsed on the basis of a year of 360 days (i.e., on the
365/360 -- or 366/360 in a leap year -- day basis), unless that would cause the
Ceiling Rate for any day to be exceeded, in which event and to the extent
necessary to eliminate or minimize that
Page 1 of 4 Pages
193
result, interest shall be calculated on the 365/365 -- or 366/366 in a leap
year -- day basis. All interest rate determinations and calculations by the
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 law, 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. Interest on and principal of this note shall
be due and payable as provided in SECTION 7.1 of the Credit Agreement.
7. Prepayment. Makers may prepay this note in accordance with and
subject to the provisions of SECTION 7.1(c) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, this Note and its Security. This note is
one of the Seasoned Warehouse Notes, is issued pursuant to the Credit Agreement
(to which reference is made for all purposes) and may be referred to as the
"10/97 TEXAS COMMERCE SEASONED WAREHOUSE NOTE", and as it may hereafter be
renewed, extended, rearranged, increased, decreased, modified or replaced in
accordance with the Credit Agreement may be referred to as the "CURRENT TEXAS
COMMERCE SEASONED WAREHOUSE NOTE". Holder is entitled to the benefits of and
security provided for in the Credit Agreement. Such security includes, among
other security, the security interests granted by the Seasoned Warehouse
Security Agreement referred to in SECTION 8.1 of the Credit Agreement.
9. Revolving Credit. Upon and subject to the terms and conditions
of the Credit Agreement, Makers may borrow, repay and reborrow against this
note under the circumstances, in the manner and for the purposes specified in
the Credit Agreement, but for no other purposes. Advances against this note by
Payee or other Holder shall be governed by the terms of the Credit Agreement.
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 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 advances and all
payments permitted
Page 2 of 4 Pages
194
prepayments made hereon may be (but are not required to be) endorsed by or on
behalf of Holder on the schedule which is attached as ANNEX I 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 any Holder's rights with respect to
that advance or accrual, or (b) any payment or permitted 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.
10. Legal Costs. If any Holder or the Seasoned Warehouse Agent
retains an attorney in connection with any Default or Event of Default or to
collect, enforce or defend this note or any papers intended to secure or
guarantee it in any lawsuit or in any probate, reorganization, bankruptcy or
other proceeding, or if any Maker or anyone claiming by, through or under any
Maker sues any Holder in connection with this note or any such papers and does
not prevail, then Makers jointly and severally agree to pay to each such Holder
and the Seasoned Warehouse Agent, respectively, in addition to principal and
interest, all reasonable costs and expenses incurred by such Holder or the
Seasoned Warehouse Agent in trying to collect this note or in any such suit or
proceeding, including, but not limited to, court costs and reasonable attorney
fees, whether in-house or outside counsel is used and whether such costs and
expenses are incurred in formal or informal collection actions, federal
bankruptcy proceedings, appellate proceedings, probate proceedings, or
otherwise. 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, the Seasoned Warehouse Agent or a
Maker timely pleads otherwise to a court of competent jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other
than the Holder or the Payee), 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 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.
12. 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" within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System or for the purpose of
Page 3 of 4 Pages
195
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 said Regulation U, as now
or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Seasoned Warehouse Agent 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 or in the Texas Finance
Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: /s/ Xxxxx X Xxxxxxx By: /s/ Xxx X. Xxxxx
------------------- ------------------
Name: XXXXX X XXXXXXX Name: XXX X. XXXXX
----------------- ----------------
Title: EVP Title: PRESIDENT
----------------- ----------------
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By: /s/ Xxxxx X Xxxxxxx By: /s/ Xxx X. Xxxxx
------------------- -----------------
Name: XXXXX X XXXXXXX Name: XXX X. XXXXX
------------------- -----------------
Title: VP Title: PRESIDENT
------------------ ----------------
Page 4 of 4 Pages
196
ANNEX 1
to $25,000,000
10/97 Texas Commerce Seasoned Warehouse Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
Payment Applied
Date of Payment or on (or advance vs.) Payment Applied Name of Person
Advance Principal on Interest Principal Balance Interest Paid to Making Notation
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197
SEASONED WAREHOUSE CUSTODY AGREEMENT
PREAMBLE
THIS SEASONED WAREHOUSE CUSTODY AGREEMENT (within itself only, this
"SEASONED WAREHOUSE CUSTODY AGREEMENT", and as it may be supplemented, amended
or restated from time to time, this "AGREEMENT") entered into as of October 31,
1997 by and between (i) MCA FINANCIAL CORP. ("MCAFC"), a Michigan corporation,
MCA MORTGAGE CORPORATION ("MCAMC"), a Michigan corporation formerly known as
Mortgage Corporation of America, MORTGAGE CORPORATION OF AMERICA ("MCA"), a
Michigan corporation formerly known as First American Mortgage Associates,
Inc., and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio
corporation (collectively, the "COMPANIES"), and (ii) TEXAS COMMERCE BANK
NATIONAL ASSOCIATION ("TEXAS COMMERCE"), a national banking association, as a
Seasoned Warehouse Lender and as agent for the other Seasoned Warehouse Lenders
(in that capacity, Texas Commerce is called the "SEASONED WAREHOUSE AGENT"),
acting herein as documents custodian (in that capacity, the "CUSTODIAN") for
the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders under the
Credit Agreement (defined below), recites and provides as follows:
RECITALS
The Companies, Texas Commerce and the other lenders parties thereto
(collectively, the "SEASONED WAREHOUSE LENDERS") have entered into a 10/97
Senior Secured Seasoned Warehouse Credit Agreement dated as of October 31, 1997
(as it may be supplemented, amended or restated from time to time, the
"SEASONED WAREHOUSE CREDIT AGREEMENT") pursuant to which the Seasoned Warehouse
Lenders have agreed to extend credit to the Companies with the requirement
that, to the extent that any Warehouse Revolving Loan is made (or to be made)
to the Companies (other than MCAI-Ohio, which is not eligible to borrow under
the Seasoned Warehouse Credit Agreement -- the Companies other than MCAI-Ohio
are herein called the "BORROWERS") or for the account of any of the Companies
against the collateral value of property owned by any of the Companies of a
type in which a security interest may be perfected by possession, that property
must be delivered to the Seasoned Warehouse Agent as custodian and as agent and
Representative of the Seasoned Warehouse Lenders.
The Seasoned Warehouse Lenders, the Seasoned Warehouse Agent and the
Companies desire that the Companies deposit with the Custodian from time to
time (among other items of collateral) the Basic Papers for all pledged
Warehouse Collateral owned or held by the Companies, to be held by the Seasoned
Warehouse Agent acting as documents custodian and as agent and
Representative of the Seasoned Warehouse Lenders, as collateral under the
Seasoned Warehouse Credit Agreement until such Warehouse Collateral is sold as
whole loans, or securitized and the securities sold, to secondary market
investors, and possession and custody of the Basic Papers for such Warehouse
198
Collateral have been delivered to such an investor (or its custodian or
other designee) or redeemed by the Companies, as contemplated by and in
accordance with the terms of this Agreement.
Capitalized terms defined in the Seasoned Warehouse Credit Agreement
that are used but not defined differently herein have the same meanings here as
there, and reference is here made to the Seasoned Warehouse Credit Agreement
for all purposes.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. DEFINITIONS.
1.1 For the purposes of this Agreement, the following terms shall have
the indicated meanings, and the definitions of such terms are equally
applicable to their singular and plural forms.
"APPRAISAL REPORT" means a report, prepared in connection with the
appraisal of Mortgaged Premises, setting forth the determination of the fair
market value of such Mortgaged Premises.
"BAILEE AGREEMENT" means a written agreement among the Seasoned
Warehouse Agent, an investor and the Company setting forth agreements among
them to coordinate and govern shipment of Pledged Loans by the Seasoned
Warehouse Agent to such investor and the manner and terms of payment for
Pledged Loans shipped.
"BAILEE LETTER" means a transmittal letter for shipments of Pledged
Loans by the Seasoned Warehouse Agent to an investor (or an investor's
custodian or other designee), in the form of EXHIBIT A.
"BASIC PAPERS" means all of the Warehouse Collateral Papers that are
required to be delivered to the Seasoned Warehouse Agent -- in the case of
Bridged Loans, on or before the eighth (8th) Business Day after the related
Warehouse Revolving Loan -- in order for any particular item of Warehouse
Collateral to be Eligible Collateral and have Collateral Value under the
Seasoned Warehouse Credit Agreement.
"CERTIFICATION" means a certification by the Seasoned Warehouse Agent
in the form of the relevant provisions of EXHIBIT B that the Seasoned Warehouse
Agent has received, examined and holds as custodian the Basic Papers for a
particular item or items of Collateral identified in the certification, and
that they appear regular on their faces based on the Seasoned Warehouse Agent's
examination of them.
2
199
"CERTIFYING OFFICER'S CERTIFICATE" means a certificate signed by (i) an
officer (authorized to sign an Officer's Certificate or a Certifying Officer's
Certificate) of a Company (which is the owner of the relevant Mortgage Loan),
the relevant Servicer, the title insurance company issuing the relevant
Lender's Title Insurance Policy, the escrow/settlement agent or company for the
related Mortgage Loan(s), or other Person submitting a File to the Seasoned
Warehouse Agent or (ii) the closing attorney for the related Mortgage Loan(s).
(The text of any particular Certifying Officer's Certificate may be stamped
upon a File paper if such stamped text is manually signed by an officer
authorized to sign an Officer's Certificate or a Certifying Officer's
Certificate.)
"CUSTOMER" means and includes each maker of a Mortgage Note or
purchaser under a Land Contract, and each cosigner, guarantor, endorser, surety
and assumptor thereof, whether or not such Person has personal liability for
its payment in whole or in part.
"DAILY SUMMARY OF PLEDGED LOANS" means, for any day, a written report
issued by the Seasoned Warehouse Agent identifying the Pledged Loans held by
the Seasoned Warehouse Agent on that day, and indicating (i) which Pledged
Loans (if any) so held have not been listed in a Notice of Receipt issued by
the Seasoned Warehouse Agent and (ii) which of those nonlisted Pledged Loans
have not been listed because their Files are incomplete or apparently
incomplete.
"DOCUMENT RETURN LETTER" means an instrument in substantially the form
of EXHIBIT G.
"EXCEPTION FILE" is defined in SECTION 3.2.
"FILE" means either (i) a file containing all of the Basic Papers for
the relevant type of Collateral or (ii) all of such Basic Papers, as the
context requires.
"FOLLOW-UP NOTICE OF RECEIPT" means an instrument substantially in the
form of EXHIBIT C with the relevant boxes in such form checked and a copy of
the relevant Document Return Letter attached.
"FNMA GUIDELINES" means the guidelines contained in the FNMA Seller's
Guide and FNMA Servicer's Guide pertaining to one to four family, conventional
residential mortgage loans and such other rules, regulations and guidelines
adopted by FNMA that establish eligibility requirements for the purchase by
FNMA of conventional residential mortgage loans or which establish loan
servicing requirements for mortgage loans purchased by FNMA, as amended or
supplemented from time to time.
"FLOOD INSURANCE POLICY" means (i) any policy of insurance issued in
accordance with the Flood Disaster Protection Act of 1973, as amended from time
to time or, if repealed, any superseding legislation governing similar
insurance coverage, or (ii) any other policy of insurance providing similar
coverage against loss sustained by floods or similar hazard that conforms to
the flood insurance requirements prescribed by FNMA Guidelines.
3
200
"LENDER'S TITLE INSURANCE POLICY" means an American Land Title
Association or California Land Title Association (extended coverage) form or a
Texas Land Title Association form lender's title insurance policy, including
all riders or endorsements thereto, together with such additional endorsements
as are required by FNMA Guidelines, in an amount not less than the original
principal balance of the relevant Mortgage Loan, insuring the holder of that
Mortgage Loan that the related Mortgage constitutes a valid first lien on the
covered Mortgaged Premises, subject only to Permitted Encumbrances.
"LETTER OF TRANSMITTAL" means a letter to a Company from an originator
or a seller of a Mortgage Loan in substantially the form of EXHIBIT B,
transferring papers that constitute, or are to become a part of, the File for a
Pledged Loan.
"LOAN NUMBER" means the loan number assigned to a Pledged Loan by the
Company that owns it and customarily used by it in its internal and external
communications referring to that Pledged Loan.
"MORTGAGE" means a mortgage, deed of trust, deed to secure debt,
security deed or other mortgage instrument or similar evidence of Lien legally
effective in the U.S. jurisdiction where the relevant real property is located
to create and constitute either (i) a valid and enforceable Lien, subject only
to Permitted Encumbrances (which, in the case of permitted second priority
Mortgages, includes a first and prior Lien to secure an existing Mortgage Loan
held by another lender), on the fee simple estate in improved real property, or
(ii) if the Mortgaged Premises is a cooperative housing unit, a first and prior
perfected security interest in the stock in the relevant cooperative housing
corporation and the related lease or occupancy agreement that together evidence
the ownership of and right to occupy a residential dwelling unit in the
apartment building owned by such cooperative housing corporation.
"MORTGAGE ASSIGNMENT" means an assignment of a Mortgage or Land
Contract (whichever the context requires), in form sufficient under the laws of
the U.S. jurisdiction where the real property covered by such Mortgage or Land
Contract is located to give notice to the world of the assignment of such
Mortgage or Land Contract, perfect the assignment and establish its priority
relative to other transactions in respect of such Mortgage or Land Contract
assigned.
"MORTGAGED PREMISES" means the property securing a pledged Mortgage
Loan or the property that is the subject matter of a pledged Land Contract,
whichever the context requires.
"NOTICE OF RECEIPT" means an acknowledgment to the Companies and a
certification to the Lenders by the Seasoned Warehouse Agent substantially in
the form of EXHIBIT C , with the appropriate boxes checked, that the Seasoned
Warehouse Agent has received from (or on behalf of) the Companies and holds, as
custodian, Files for the Collateral described in the copies of the Submission
List(s) attached thereto. The Seasoned Warehouse Agent shall not issue a
Notice of Receipt for a Bridged Loan until the Seasoned Warehouse Agent shall
have received the Basic Papers for it (when it ceases to be a Bridged Loan and
becomes regular Collateral).
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"PAYOFF REQUEST" means the authorization to be signed and delivered by
the Companies to the Seasoned Warehouse Agent as provided in SECTION 4.1, and
in substantially the form of EXHIBIT E.
"PAYOFF SCHEDULE" means a schedule prepared by the Seasoned Warehouse
Agent as provided in SECTION 4.1 setting forth certain information as to
Pledged Loans for which the Companies have delivered a Payoff Request, and in
substantially the form of EXHIBIT F.
"PERMITTED ENCUMBRANCES" means, in respect of the real property
securing a Pledged Loan:
- for any Eligible Second Mortgage Loan, the Lien of one senior
Mortgage Loan funded before or concurrently with such Eligible Second Mortgage
Loan; and
- for any Pledged Loan, (i) liens for real estate taxes and
governmental-improvement assessments not delinquent, (ii) easements and
restrictions that do not adversely affect the marketability of title to the
related Mortgaged Premises or prohibit or interfere with the use of such
Mortgaged Premises as a single-family residential dwelling, (iii) as to
Mortgaged Premises that constitute a unit in a condominium or are part of a
horizontal or vertical property regime, a declaration of condominium or other
similar document that evidences the creation of such condominium or horizontal
or vertical property regime, (iv) reservations as to oil, gas or mineral
rights, provided such rights do not include the right to remove buildings or
other improvements on or near the surface of such Mortgaged Premises or to mine
or drill on the surface thereof or otherwise enter the surface for purposes of
removing oil, gas or minerals, (v) agreements for the installation, maintenance
or repair of public utilities, provided such agreements do not create or
evidence liens on such Mortgaged Premises or authorize or permit any Person to
file or acquire claims of liens against such Mortgaged Premises and (vi) such
other exceptions (if any) as are acceptable under FNMA Guidelines; provided
that any encumbrance not permitted pursuant to the standards of any Take-out
Commitment to which the subject Pledged Loan is dedicated (or which the
Companies have directly or indirectly represented to the Seasoned Warehouse
Agent covers such Pledged Loan) shall not be a Permitted Encumbrance.
"PRELIMINARY TITLE REPORT" means a title report prepared by a company
qualified to issue the Lender's Title Insurance Policy that sets forth (i) the
legal description of the relevant Mortgaged Premises and (ii) the complete
status of title as to such Mortgaged Premises.
"PRIMARY MORTGAGE INSURANCE POLICY" means a mortgage insurance policy,
issued by a private mortgage insurance company having an AAA or AA rating from
Standard & Poor's Ratings Group or Fitch Investor Services, Inc. or Aaa or Aa
rating from Xxxxx'x Investors Service, Inc. for claims-paying ability, in form
and substance satisfactory to the Companies insuring the holder of a Mortgage
Loan against all or a portion of the loss sustained by reason of a default by a
Customer in the payment of principal and interest thereon, together with all
riders and endorsements thereto.
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"PRINCIPAL BALANCE" means, for any day, the advanced and unpaid
principal balance of a Mortgage Note or Land Contract on that day.
"STANDARD HAZARD INSURANCE POLICY" means as to each Mortgage Loan an
insurance policy in an amount not less than the principal amount of the related
Mortgage Note or the maximum insurable value of the related Mortgaged Premises
that a lender can require the relevant Customer to maintain by applicable law,
whichever is less, providing coverage against loss to such Mortgaged Premises
sustained by reason of fire or other hazards covered by a standard extended
coverage endorsement, including all riders and endorsements thereto, and which
conforms to the relevant Company's underwriting guidelines.
"SUMMARY OF PLEDGED LOANS" means an instrument substantially in the
form of EXHIBIT D.
1.2 Other definitional rules applicable to this Agreement are as
follows:
(a) Accounting terms not otherwise defined shall have the meanings
given them under GAAP.
(b) Except where otherwise specified, all times of day are local times
in Houston, Texas.
(c) Wherever the word "including" or a similar word is used, it shall
be read as if it were written, "including by way of example but without in
any way limiting the generality of the foregoing concept or description".
2. DELIVERY OF FILES TO THE SEASONED WAREHOUSE AGENT.
2.1 REAFFIRMATION OF SEASONED WAREHOUSE AGENT'S LIEN. As security for
the payment of each Warehouse Revolving Loan now or hereafter made, each of the
Companies hereby reaffirms the continuing first priority Lien granted by it to
the Seasoned Warehouse Agent (as agent and Representative of the Seasoned
Warehouse Lenders) in the Seasoned Warehouse Credit Agreement in and against
(i) all Collateral now or hereafter pledged by it to the Seasoned Warehouse
Agent, (ii) all Files and other Pledged Loan (or other Collateral) papers now
or hereafter delivered to the Seasoned Warehouse Agent (as such), to the
Custodian or to any other agent, bailee or designee of the Seasoned Warehouse
Agent and (iii) the proceeds thereof. The parties agree that the Lien
reaffirmed herein shall continue and remain perfected under the provisions of
the applicable UCC, real estate law and/or other applicable Law,
notwithstanding that the Seasoned Warehouse Agent, the Custodian or any other
agent, bailee or designee of the Seasoned Warehouse Agent may deliver one or
more of the Warehouse Collateral Papers or other papers evidencing or relating
to any such Collateral to a Company (or to its servicer or designee) for the
purpose of (x) correcting or completing such papers or the related File or (y)
collecting or other servicing or handling of such Collateral, as provided
herein.
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2.2 DELIVERIES OF WAREHOUSE COLLATERAL PAPERS TO THE SEASONED
WAREHOUSE AGENT. Each shipment of Warehouse Collateral Papers to the Seasoned
Warehouse Agent shall be accompanied by a Submission List, containing the
relevant Company's Loan Number for it and other information concerning the
related Pledged Loan as called for in the form of Submission List specified by
the Seasoned Warehouse Credit Agreement. In respect of each Pledged Loan
included in any Submission List, the Companies shall deliver (or cause to be
delivered) to the Seasoned Warehouse Agent from time to time a Letter of
Transmittal and the File containing all of the Basic Papers (originals where
specified), being the relevant group of papers described below, related to that
Pledged Loan. The Basic Papers required to be included in each File shall
consist of all documents designated in SECTION 2.4 or 2.6 for the relevant type
of Pledged Loan by a single asterisk (*), and are required as to every Pledged
Loan of that type, except for those Basic Papers described as "if applicable",
in which case they shall be required only if applicable. Together with each
File submitted, the Companies shall also electronically submit to the Seasoned
Warehouse Agent a Standard Warehouse Transmission File in the manner and format
specified in SCHEDULE TF (Schedule TF may include fields for Loans of a type or
types that are not as Eligible Collateral, but that shall not be construed to
authorize the Companies to pledge the same or to imply that any nonpermitted
Loans that may be Pledged to the Seasoned Warehouse Agent from time to time
shall have any Collateral Value.) Except only for Warehouse Collateral Papers
sent to the Seasoned Warehouse Agent on a follow-up basis after correction or
to complete the File after the File has been sent to the Seasoned Warehouse
Agent (and identified as such in the Companies' attached transmittal letter or
memorandum), the Companies shall place all Warehouse Collateral Papers
delivered to the Seasoned Warehouse Agent in an appropriate file folder,
properly secured, and clearly marked with the debtor's or buyer's last name and
the Loan Number, and such delivered Files shall be placed in a fireproof vault
on the premises of the Seasoned Warehouse Agent, clearly marked as property of
the Seasoned Warehouse Agent in its capacity as Seasoned Warehouse Agent under
the Seasoned Warehouse Credit Agreement, and shall not be commingled with any
other assets of or held by the Seasoned Warehouse Agent. All Warehouse
Collateral Papers shall be placed in the File in the same order as they are
referred to in the Letter of Transmittal. In addition, the Companies shall not
deliver to the Seasoned Warehouse Agent, nor shall the Seasoned Warehouse Agent
assume custody of, the File for any Pledged Loan that does not contain all of
the Basic Papers. If such an incomplete File is delivered to the Seasoned
Warehouse Agent, the Seasoned Warehouse Agent shall either (i) notify the
Companies that the Seasoned Warehouse Agent is temporarily retaining the File
without accepting custody of it pending the Seasoned Warehouse Agent's receipt
of the missing Basic Papers or (ii) return it to the Companies or their
designee.
2.3 DELIVERIES OF MORTGAGE NOTES WITHOUT COMPANIES' ENDORSEMENT. No
Pledged Loan shall be delivered without the endorsement, in blank, of whichever
Company owns it, except pursuant to the provisions of this Section. No
Mortgage Note or Land Contract for a Pledged Loan shall be submitted to the
Seasoned Warehouse Agent without a Company's endorsement. Each Company hereby
appoints the Seasoned Warehouse Agent as its attorney-in-fact -- which
appointment is coupled with an interest and shall be irrevocable until the
Obligations shall have been
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fully paid and satisfied and the Seasoned Warehouse Lenders have no commitment
to lend to the Borrowers -- to stamp any such Mortgage Note or Land Contract
when received to identify it as a Pledged Loan owned and submitted by such
Company (with a stamp of such Company's name), and the transfer warranties made
to the Seasoned Warehouse Agent by the pledgor Company as provided in UCC
Section 3.416 in respect of each such Mortgage Note or Land Contract so stamped
will, by operation of this Agreement, automatically, irrevocably and
conclusively be deemed to extend to and benefit any subsequent transferee of
such Mortgage Note or Land Contract, to the same effect as if such transfer of
such Mortgage Note or Land Contract to the Seasoned Warehouse Agent were made
by and with the manual indorsement of the pledgor Company.
2.4 BASIC PAPERS FOR A MORTGAGE LOAN. The Basic Papers for a pledged
Mortgage Loan are:
(a) (*) Letter of Transmittal;
(b) (*) the original Mortgage Note, bearing all intervening
endorsements and endorsed by its payee (or, if there are any endorsements,
its last previous endorsee) either in blank or in another manner acceptable
to the Seasoned Warehouse Agent;
(c) (*) (if applicable) the original assumption agreement;
(d) (*) (if applicable) the recorded original of the power of
attorney for the maker of the Mortgage Note, or a certified copy
accompanied by evidence of the original's recordation, or -- if the
original has been sent for recording -- a copy certified to be a true and
complete copy of the power of attorney submitted for recordation;
(e) (*) a certified copy of the mortgage, deed of trust or trust deed
securing such Mortgage Note accompanied by a Certifying Officer's
Certificate stating that the original has been properly sent for
recordation;
(f) (*) the recorded original of a Mortgage Assignment assigning the
Mortgage in a manner acceptable to the Seasoned Warehouse Agent (including,
if applicable, all intervening assignments); or a certified copy
accompanied by a Certifying Officer's Certificate that the original has
been properly recorded, or a signed original of a Mortgage Assignment, or
(except as to any assignment in blank), if the original has been sent for
recording, a copy certified to be a true and complete copy of the Mortgage
Assignment submitted for recordation;
(g) (*) (for Subprime Mortgage Loans only) a copy of the pages from an
original Appraisal Report setting forth (i) the appraisal number, (ii) the
property description, (iii) the appraiser's opinion of value and (iv) the
appraiser's signature.
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2.5 ADDITIONAL PAPERS FOR A MORTGAGE LOAN. Although the following
papers are not required to be submitted to the Seasoned Warehouse Agent, by
submitting any Mortgage Loan to the Seasoned Warehouse Agent, the submitting
Company shall be deemed to represent to the Seasoned Warehouse Agent and the
Seasoned Warehouse Lenders that that Company or that Mortgage Loan's Servicer
(if not that Companies) has possession of them:
(A) the recorded original of the Mortgage;
(B) (for Mortgage Loans that are not Subprime Mortgage Loans only) the
original Take-out Commitment covering such Mortgage Loan;
(C) the original Appraisal Report;
(D) except in respect of a second lien Mortgage Loan for which the
applicable Company's underwriting guidelines do not require lender's title
insurance, an original lender's or mortgagee's title insurance policy, a
commitment to issue one or (if applicable) a Preliminary Title Report;
(E) (i) for any FHA Mortgage Loan, the original or a copy of the HUD-1
Settlement Statement signed by the maker(s) of the Mortgage Note and by its
escrow/settlement agent with the certifications by each that are required by
HUD Mortgagee Letter 86-10 dated May 5, 1986, or (ii) for any other Mortgage
Loan, a copy of the HUD-1 Settlement Statement accompanied by a Certifying
Officer's Certificate signed by the escrow/settlement agent stating
substantially that the statement is an accurate account of the Mortgage Loan
transaction (or a copy of such statement signed by the maker(s) of the Mortgage
Note); provided that the Companies shall not be required to have possession
thereof before thirty (30) days after original submission of the Basic Papers
for such a Mortgage Loan to the Seasoned Warehouse Agent; and
(F) unless the applicable Company's underwriting guidelines do not
require a Primary Mortgage Insurance Policy for the relevant type of Mortgage
Loans, if the original loan-to-value ratio of the Mortgage Loan was greater
than eighty percent (80%), a certificate of Primary Mortgage Insurance Policy.
2.6 BASIC PAPERS FOR A LAND CONTRACT. The Basic Papers for a pledged
Land Contract are:
(a) (*) Letter of Transmittal;
(b) (*) the original Land Contract, including all intervening
assignments to assign it to the relevant Company and either including or having
attached to it an assignment by such Company either in blank or in another
manner acceptable to the Seasoned Warehouse Agent;
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(c) (*) (if applicable) the recorded original of the power of
attorney for the buyer under the Land Contract appointing the person who
executed the Land Contract as such buyer's or debtor's attorney-in-fact, or a
certified copy accompanied by evidence of the original's recordation, or -- if
the original has been sent for recording -- a copy certified to be a true and
complete copy of the power of attorney submitted for recordation;
(d) (*) the original warranty deed by which the real property that is
the subject of the Land Contract was conveyed to the relevant Company;
(e) (*) a quitclaim or special warranty deed conveying such real
property in blank, duly executed and acknowledged by the relevant Company and
in the appropriate form for recordation in the official real property records
of the U.S. jurisdiction where such real property is located and otherwise
sufficient to convey the fee simple estate in and to such real property to any
grantee whose name is inserted into the blank in such deed, subject to no Liens
except Liens for nondelinquent real estate taxes and assessments against such
real property only, and to no title exceptions other than those permitted by
the relevant Company's underwriting guidelines for Land Contracts; and
(f) (*) an assignment of all of the seller's estate, right, title and
interest in and under the Land Contract, in blank, duly executed and
acknowledged by the relevant Company and in the appropriate form for
recordation in the official real property records of the U.S. jurisdiction
where such real property is located.
2.7 FOLLOW-UP BY THE COMPANIES. The Companies shall deliver or cause
to be delivered to the Seasoned Warehouse Agent originals of all File documents
when copies, commitments or preliminary reports were initially submitted,
except for Mortgages, lender's or mortgagee's title insurance policies,
commitments or Preliminary Title Reports, Appraisal Reports, HUD-1 Settlement
Statements, survey plats, architectural and engineering reports and
environmental inspection reports, originals of which shall not be delivered
unless the Seasoned Warehouse Agent shall specifically request them on a
case-by-case basis.
3. SEASONED WAREHOUSE AGENT'S RECEIPT, EXAMINATION, RECEIPT FOR AND
CERTIFICATION OF FILES.
3.1 Seasoned Warehouse Agent's Examination of Basic Papers. Within
one (1) Business Day after each receipt of Files or as promptly as practicable
thereafter, the Seasoned Warehouse Agent shall examine each File so received to
confirm that the Basic Papers in such File appear on their faces to satisfy the
following relevant requirements:
(a) each Mortgage Note and Mortgage or Land Contract in the File
bears an original signature or signatures purporting to be the signature or
signatures of the Person or Persons named as the maker and mortgagor or grantor
under such promissory note or the debtor or buyer under such Land Contract or,
in the case of copies of the Mortgage permitted under a relevant provision of
SECTION 2, that such copies bear a reproduction of such signature or
signatures.
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(b) except for the endorsement to the Seasoned Warehouse Agent, no
Mortgage Note, Mortgage, or Mortgage Assignment (including any intervening
assignments and endorsements) or Land Contract in the File contains any
endorsements evidencing any claims, liens, security interests, encumbrances or
restrictions on transfer.
(c) each Mortgage Note or Land Contract in the File bears an original
of an endorsement by the named holder or payee endorsing such promissory note
or Land Contract (i) in a manner acceptable to the Seasoned Warehouse Agent or
(ii) in blank, with an original signature that purports to be the signature of
the named note payee, note holder, Land Contract assignee or its
representative.
(d) any power of attorney in the File (A) bears an original signature
purporting to be the signature of the maker of the Mortgage Note and the
mortgagor or grantor of the Mortgage or the buyer under the Land Contract and
(B) bears evidence that such power of attorney was recorded in the appropriate
records depository for the jurisdiction where the relevant Mortgaged Premises
are located or in case of copies permitted under a relevant provision of
SECTION 2, that such copies bear a reproduction of such signatures and such
evidence of recordation.
(e) the original of each Mortgage Assignment (including any
intervening assignments) in the File bears an original signature purporting to
be the signature of the named mortgagee or beneficiary, Land Contract seller or
Land Contract assignee (and any other necessary party) or its representative,
or in the case of copies permitted under a relevant provision of SECTION 2,
that such copies bear a reproduction of such signature or signatures.
(f) the information set forth on the Submission List concerning such
File is correct (insofar as the accuracy of such information can be determined
from an examination of the File delivered to the Seasoned Warehouse Agent).
(g) the principal amount of the indebtedness secured by any Mortgage
in the File is identical to the original principal amount of the Mortgage Note
that it purports to secure.
(h) the description of the real property set forth in whichever of the
Lender's Title Insurance Policy, the written commitment for the issuance of a
Lender's Title Insurance Policy, or the Preliminary Title Report is included in
the File in compliance with the relevant provision of SECTION 2 is
substantially identical to the real property description contained in the
relevant Mortgage (if any) in that File.
(i) if a Preliminary Title Report is included in the File in
compliance with the relevant provision of SECTION 2, the location of the
Mortgaged Property is in a state listed on EXHIBIT H.
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(j) the Lender's Title Insurance Policy (or the written commitment to
issue a Lender's Title Insurance Policy) is not less than the original
principal amount of the Mortgage Note and such Lender's Title Insurance Policy
purports to insure that the Mortgage constitutes a first lien, senior in
priority to all other deeds of trust, mortgages, deeds to secure debt,
financing statements and security agreements and to any mechanics' liens,
judgment liens or writs of attachment (or if the Lender's Title Insurance
Policy has not been issued, the written commitment for such insurance appears
to obligate the insurer to issue a policy which will insure the Mortgage as
specified in this Section.
3.2 SEASONED WAREHOUSE AGENT'S NOTICE OF RECEIPT AND CERTIFICATION;
EXCEPTION FILES. If the Seasoned Warehouse Agent has determined that such
Basic Papers satisfy on their faces the requirements for that type of Pledged
Loans stated in this Agreement, the Seasoned Warehouse Agent shall issue the
Seasoned Warehouse Agent's signed Notice of Receipt with a copy of the relevant
Submission List attached, send a copy of it to the Companies and retain another
signed counterpart original of it to serve as the Seasoned Warehouse Agent's
Certification to the Seasoned Warehouse Lenders of the relevant Files. The
Seasoned Warehouse Agent shall make such original Certifications available to
the Seasoned Warehouse Lenders on their request. If upon examination of the
Basic Papers included in any File, the Seasoned Warehouse Agent either (i)
determines that the Basic Papers on their faces do not satisfy those
requirements, or (ii) is unable to confirm that the Basic Papers on their faces
satisfy those requirements, then and in either such case, the Seasoned
Warehouse Agent shall retain such File (an "EXCEPTION FILE") instead of
returning it to the Companies and shall both (1) strike through such Pledged
Loan on the Submission List attached to the Notice of Receipt issued by the
Seasoned Warehouse Agent for the group of Files in which such Exception File
was submitted and (2) advise the Companies -- either telephonically or
electronically, mailing a written confirmation notice to the relevant Company
on the same Business Day -- of the defect or apparent defect in that File. The
Seasoned Warehouse Agent agrees to provide the relevant Company a weekly
written summary report listing the preceding week's Exception Files and
indicating their defects or apparent defects. Upon correction or completion of
any such Exception File, the Seasoned Warehouse Agent shall issue a Follow-up
Notice of Receipt for it.
3.3 POSSESSION OF FILES. Following the Seasoned Warehouse Agent's
receipt of each File or any papers subsequently added to it, the Seasoned
Warehouse Agent shall retain possession and custody of them, for and on behalf
of the Seasoned Warehouse Lenders, Pro Rata, and as the agent and bailee for
the Seasoned Warehouse Lenders for the purpose of maintaining continuous
perfection of the Lien of the Seasoned Warehouse Agent, as Representative of
the Seasoned Warehouse Lenders. Upon such receipt the Seasoned Warehouse Agent
shall also make appropriate notations in the Seasoned Warehouse Agent's books
and records to reflect that the File has been pledged to the Seasoned Warehouse
Agent for and on behalf of the Seasoned Warehouse Lenders, Pro Rata, which has
acquired and holds a Lien and security interest on and in such File, for and on
behalf of the Seasoned Warehouse Lenders, Pro Rata.
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3.4 CERTIFICATION OF PAPERS PREVIOUSLY CERTIFIED BY THE SEASONED
WAREHOUSE AGENT. If Mortgage Loans are purchased from a seller for which Texas
Commerce was document custodian for the Pledged Loans sold, Texas Commerce
makes no warranty as to the condition of the Files, the completeness, accuracy
or any other characteristics of the Files or the circumstances or documentation
under which the Pledged Loans were previously certified, other than as set
forth in this Agreement and no previous certification by Texas Commerce to or
for any other Person or entity will be construed to benefit any party to this
Agreement or anyone claiming by, through or under any such party.
4. RELEASE OF FILES BY THE SEASONED WAREHOUSE AGENT.
4.1 TO OTHERS. For all Pledged Loans to be securitized, sold or
transferred pursuant to SECTION 9.4(A) of the Seasoned Warehouse Credit
Agreement, the Companies shall deliver a Payoff Request as required by that
Section and instructions for shipping the Basic Papers for the affected Pledged
Loans to the relevant investor (or its custodian or other designee) in the form
of SCHEDULE 4.1, whereupon the Seasoned Warehouse Agent shall ship them either
pursuant to such written Bailee Agreement as shall have theretofore been
entered into among the relevant Company, such investor and the Seasoned
Warehouse Agent or, if no such Bailee Agreement is in force, under cover of a
Bailee Letter substantially in the form of EXHIBIT A. At the time of -- or
immediately before -- the transfer of the Pledged Loans so designated, the
relevant Company will cause the issuer or transferee to deposit, or -- in the
case of a redemption -- will itself deposit, with the Seasoned Warehouse Agent,
in immediately available funds, all or such portion of the proceeds of such
securitization, sale or other transfer to which the Company that owns such
Pledged Loans is entitled, plus (unless, pursuant to the Free Release Proviso,
no paydown of the Warehouse Revolving Loans is required) such additional funds
as are necessary to satisfy and pay the aggregate Redemption Amount for such
Pledged Loans stated in the completed Payoff Schedule. Upon the Seasoned
Warehouse Agent's receipt of the aggregate Redemption Amount for such Pledged
Loans to be released that is due the Seasoned Warehouse Lenders as shown in the
completed Payoff Schedule (or, if pursuant to the Free Release Proviso, no
paydown of the Revolving Warehouse Loans is required therefor, upon the
relevant Company's request), the Seasoned Warehouse Agent is hereby authorized
to deliver to the transferee designated by the Companies possession and custody
of the Files relating to the Pledged Loans that are referred to in the Payoff
Request. Upon receipt by the Seasoned Warehouse Agent of such funds or request
(as applicable), each of the Seasoned Warehouse Lenders and the Seasoned
Warehouse Agent agrees with the Companies that all claims, rights, liens and
security interests of the Seasoned Warehouse Lenders and the Seasoned Warehouse
Agent, as agent and Representative of the Seasoned Warehouse Lenders, however
arising, in and to the Pledged Loans referred to in the Payoff Schedule, shall
terminate. It is understood that the Seasoned Warehouse Agent may also
function as an agent, bailee and/or document custodian for the transferee, in
which event the Seasoned Warehouse Agent will not physically deliver the
affected Files, but may instead issue its trust receipt to the transferee
acknowledging that it is holding the affected Files for the benefit of the
transferee, but in such event, the Companies' obligations pursuant to this
Section are not diminished or modified. The trust receipt may be in the form
of either a
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written or electronic receipt in favor of the transferee. Except in respect of
GNMA, FNMA, FHLMC or Advanta, unless the Seasoned Warehouse Agent shall
otherwise agree on a case-by-case basis, the Seasoned Warehouse Agent will not
ship any more Files to any investor to which the Seasoned Warehouse Agent has
already shipped Files for Pledged Loans having aggregate Collateral Values in
excess of Five Million Dollars ($5,000,000) which are still outstanding (i.e.
which such investor has neither purchased and paid for nor returned to the
Seasoned Warehouse Agent).
4.2 TO THE COMPANIES FOR CORRECTION OR SERVICING. From time to time
and as appropriate for the correction, foreclosure or other servicing of any of
the Pledged Loans, the Seasoned Warehouse Agent is hereby authorized, but is
not obligated, upon written request of the Companies -- or on the Seasoned
Warehouse Agent's own initiative in any case where corrections are necessary or
appropriate -- to release to them the Files or the Warehouse Collateral Papers
specified in such request for correction or servicing. Each Company hereby
agrees to request all such releases of Files or specific Warehouse Collateral
Papers by a written request made in the form of EXHIBIT I, and to receipt for
Files or Warehouse Collateral Papers returned to the Company by the Agent other
than pursuant to such a written request by completing and returning the
Companies' trust receipt in the form of EXHIBIT I, and specifically hereby
acknowledges that each such written request or acknowledgment shall also
constitute a trust receipt whereby it holds the Warehouse Collateral Papers
returned to it in trust and as agent and bailee for the Seasoned Warehouse
Lenders and their agent, the Seasoned Warehouse Agent, and that the Seasoned
Warehouse Lenders and the Seasoned Warehouse Agent shall continue to have, and
the Companies shall jointly and severally be obligated to defend, a security
interest in the Warehouse Collateral Papers pursuant to the Seasoned Warehouse
Credit Agreement. Each Company agrees to promptly return to the Seasoned
Warehouse Agent the File or such Warehouse Collateral Papers when such
Company's need therefor in connection with such foreclosure, servicing or
correction no longer exists (but not later than ten (10) days without the
Seasoned Warehouse Agent's consent -- or twenty-one (21) days in any case --
after receipt thereof by such Company), unless the Pledged Loan shall be
liquidated, in which case, upon receipt of a certification to that effect from
such Company to the Seasoned Warehouse Agent and the receipt by the Seasoned
Warehouse Agent of the proceeds of such liquidation, such Company's trust
receipt shall be released by the Seasoned Warehouse Agent to such Company.
Unless the Agent shall otherwise agree, the Companies may not obtain releases
of Files and Warehouse Collateral Papers by the Seasoned Warehouse Agent when
the aggregate Collateral Values of Mortgage Loans (excluding Mortgage Loans
that have been liquidated) whose Files and Warehouse Collateral Papers were
previously released by the Agent and have not returned to the Agent exceeds the
lesser of (i) ten percent (10%) of the amount of Warehouse Revolving Loans
outstanding from time to time or (ii) One Million Dollars ($1,000,000).
4.3 TO THE COMPANIES AFTER REDEMPTION. Upon the Companies'
satisfaction of the requirements for redemption of Pledged Loans pursuant to
SECTION 9.3 of the Seasoned Warehouse Credit Agreement pursuant to the
Company's written redemption request delivered to each of the Agent and the
Custodian, the Custodian will release and ship the such redeemed Pledged Loans'
Files to the Company designated in the redemption request.
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4.4 EXPRESS NEGLIGENCE INDEMNIFICATION. The Seasoned Warehouse Agent
shall not be liable for executing, for failing to execute or for any mistake in
the execution of any request or instructions in connection with the
certification, release or shipment of any Warehouse Collateral Papers, except
in the case of the gross negligence or willful misconduct of the Seasoned
Warehouse Agent. THE COMPANIES HEREBY EXPRESSLY, JOINTLY AND SEVERALLY
INDEMNIFY THE SEASONED WAREHOUSE AGENT FROM ITS OWN SIMPLE NEGLIGENCE IN
CONNECTION WITH THE RECEIPT, CERTIFICATION, RELEASE OR SHIPMENT OF ANY FILE OR
WAREHOUSE COLLATERAL PAPER.
5. RIGHT OF INSPECTION BY THE COMPANIES.
Upon reasonable notice to the Seasoned Warehouse Agent, the Companies
or their duly authorized representative, may at any time, during ordinary
business hours, inspect and examine the Files in the possession and custody of
the Seasoned Warehouse Agent at such place or places where such Files are
deposited.
6. SEASONED WAREHOUSE AGENT'S FEES.
The Companies will pay the fees of the Seasoned Warehouse Agent accrued
under this Agreement pursuant to a separate arrangement between them. The
duties of the Seasoned Warehouse Agent hereunder shall be independent of the
Companies' performance of their obligations to the Seasoned Warehouse Agent to
pay such fees.
7. TERMINATION OF AGREEMENT.
This Agreement shall become effective on and as of the date hereof and
shall terminate upon the Seasoned Warehouse Agent's receipt of written notice
of termination signed by the Company and all of the Seasoned Warehouse Lenders
-- determined for purposes of this Section as excluding the Seasoned Warehouse
Agent -- and delivery of all Files then held by the Seasoned Warehouse Agent to
a successor custodian or, if authorized in writing by the Seasoned Warehouse
Agent, to the Companies or their designee. Notwithstanding termination, the
Seasoned Warehouse Agent's security interest (as agent and Representative of
the Seasoned Warehouse Lenders) in the Pledged Loans and their proceeds shall
continue in effect until all Warehouse Revolving Loans secured thereby and all
other obligations of the Companies to the Seasoned Warehouse Lenders have been
paid and satisfied in full. The termination of this Agreement shall not
operate to remove Texas Commerce as Seasoned Warehouse Agent for purposes of
the Seasoned Warehouse Credit Agreement.
8. RESIGNATION OR REMOVAL OF CUSTODIAN.
8.1 QUALIFICATIONS OF CUSTODIAN. The "custodian" of the Warehouse
Collateral Papers shall be the Seasoned Warehouse Agent, unless the Seasoned
Warehouse Agent shall resign as
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"custodian" (which does not necessarily obligate the Seasoned Warehouse Agent
to resign as Seasoned Warehouse Agent -- the two roles may be bifurcated). The
"custodian" shall satisfy the same qualifications as is required of the
Seasoned Warehouse Agent according to the terms of the Seasoned Warehouse
Credit Agreement and shall at all times be a commercial bank or trust company
organized and doing business under the laws of the United States of America or
any state, district or territory of it authorized under such laws to exercise
corporate trust powers, having a combined capital and unimpaired surplus of at
least Fifty Million Dollars ($50,000,000), having -- or if owned by a bank
holding company, such bank holding company having -- either (i) a rating of C
or better by Thomson Bank Watch, Inc. or (ii) a rating of either "A" or better
by Standard and Poor's Ratings Group or "A" or better by Xxxxx'x Investors
Service, Inc. for its most senior class of unsecured debt and subject to
supervision or examination by a federal, state, district or territorial
Governmental Authority. The "custodian" shall have an office and place of
business in Houston, Texas, if there is such a commercial bank or trust company
willing and able to act as the Custodian on reasonable and customary terms. If
such commercial bank or trust company publishes reports of conditions at least
annually, pursuant to law or to the requirements of its supervising or
examination Governmental Authority, then for the purposes of this Section, the
combined capital and unimpaired surplus of such commercial bank or trust
company shall be deemed to be its combined capital and unimpaired surplus as
set forth in its most recent report of condition so published. Notwithstanding
the foregoing, Residential Funding Corporation shall be eligible for selection
and service as successor or substitute Custodian and shall not be required to
have an office and place of business in Houston, Texas. In case the Custodian
shall cease at any time to be eligible in accordance with the provisions of
this Section, the Custodian shall resign immediately in the manner and with the
effect hereinafter specified in this SECTION 8.
8.2 RESIGNATION OF THE CUSTODIAN OR ANY SUCCESSOR CUSTODIAN. The
Seasoned Warehouse Agent, or any agent or agents hereafter appointed, at any
time may resign as "custodian" of the Warehouse Collateral Papers under this
Agreement by giving thirty (30) days written notice of resignation to the
Companies and the Seasoned Warehouse Lenders and complying with the applicable
provisions of this SECTION 8. Upon resignation of the Seasoned Warehouse Agent
as custodian, the Companies shall have twenty (20) days in which to appoint and
designate a successor acceptable to and approved by the Majority Seasoned
Warehouse Lenders and the Seasoned Warehouse Agent shall deliver all Files to
the Person so designated within ten (10) days. If the Companies fail to
designate such an approved successor custodian within such 20-day period, then
the Seasoned Warehouse Agent shall retain possession and custody of the Files
at the address provided in SECTION 10 until such time as the Majority Seasoned
Warehouse Lenders have designated a new custodian. Appointment of the
successor custodian shall be accomplished by written instrument, in triplicate,
one copy of which instrument shall be delivered to the resigning "custodian,"
one copy to the Seasoned Warehouse Agent (if the Seasoned Warehouse Agent is
not the resigning "custodian") and one copy to the successor Seasoned Warehouse
Agent.
8.3 REMOVAL OF THE CUSTODIAN OR ANY SUCCESSOR CUSTODIAN. If (a) the
Seasoned Warehouse Agent or successor custodian shall cease to be eligible in
accordance with the provisions of SECTION 8.1 and shall fail to resign after
written request by the Majority Seasoned Warehouse Lenders; (b) a receiver of
the Seasoned Warehouse Agent or successor custodian or of its property shall be
appointed or any Governmental Authority shall take charge or control of the
Seasoned
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Warehouse Agent or successor custodian or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation or (c) the Seasoned
Warehouse Agent or successor custodian shall be grossly negligent in the
performance of its material duties and obligations under this Agreement or
engage in willful misconduct concerning any such material duties and
obligations, then, in any such case, upon the unanimous consent of all the
Seasoned Warehouse Lenders -- excluding for purposes of this section the
Seasoned Warehouse Agent or successor custodian -- and the Companies, the
Seasoned Warehouse Agent or successor custodian may be removed as "custodian"
of the Warehouse Collateral Papers and a successor custodian appointed by
written instrument, in triplicate, one copy of which shall be delivered to the
custodian so removed, one copy to the Seasoned Warehouse Agent (if the Seasoned
Warehouse Agent is not the custodian removed) and one copy to the successor
custodian.
8.4 EFFECTIVE DATE OF RESIGNATION OR REMOVAL. No resignation or
removal of the Seasoned Warehouse Agent or successor custodian as "custodian"
of the Warehouse Collateral Papers shall be effective until a successor
custodian is appointed pursuant to the provisions of this SECTION 8 and has
accepted the appointment as provided in this SECTION 8. The Seasoned Warehouse
Agent, or any successor custodian hereafter appointed, shall continue to act as
custodian under this Agreement until it delivers the Files to a duly appointed
successor.
8.5 SUCCESSOR CUSTODIAN. Any successor custodian appointed as
provided in this SECTION 8 shall execute and deliver to the Companies, the
Seasoned Warehouse Lenders, the Seasoned Warehouse Agent and to its predecessor
custodian an instrument accepting such appointment, and thereupon the
resignation or removal of the predecessor custodian shall become effective and
such successor custodian, without any further act, deed or conveyance, shall
become vested with all the rights and obligations of its predecessor, with like
effect as if originally named as the custodian and shall assume all the duties
and obligations in this Agreement as Seasoned Warehouse Agent (but not the
duties and obligations of the Seasoned Warehouse Agent under the Seasoned
Warehouse Credit Agreement unless the successor custodian is also a successor
Seasoned Warehouse Agent); provided that upon the written request of the
Companies, the Majority Seasoned Warehouse Lenders or the successor custodian,
the custodian ceasing to act shall execute and deliver (a) an instrument
transferring to such successor custodian all of the rights of the custodian so
ceasing to act and (b) to such successor custodian such instruments as are
necessary to transfer the Collateral to such successor custodian (including
assignments of all Collateral or documents related to the Collateral). Upon
the request of any such successor custodian made from time to time, the
Companies shall execute any and all papers which the successor custodian shall
request or require to more fully and certainly vest in and confirm to such
successor custodian all such rights. No successor custodian shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor custodian shall be eligible under the provisions of SECTION 8.1.
8.6 MERGER OF THE CUSTODIAN OR ANY SUCCESSOR CUSTODIAN. Any Person
into which the Seasoned Warehouse Agent or any successor custodian may be
merged or converted or with which it may be consolidated, or any Person
surviving or resulting from any merger, conversion or consolidation to which
the Seasoned Warehouse Agent or successor custodian shall be a party or any
Person succeeding to the commercial banking business of the Seasoned Warehouse
Agent or such
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successor custodian, shall be the successor custodian without the execution or
filing of any paper or any further act on the part of any of the parties.
8.7 APPOINTMENT OF SUCCESSOR CUSTODIAN; TRANSFER OF PLEDGED LOANS.
The Seasoned Warehouse Agent shall, as part of the transfer of the Files,
assign the Mortgages and endorse the Mortgage Notes and the Land Contracts
(without recourse or warranty) to the successor custodian. The Seasoned
Warehouse Agent shall not be responsible for the fees of any successor
custodian, all such fees to be paid by the Companies.
9. LIMITATION ON OBLIGATIONS OF SEASONED WAREHOUSE AGENT; EXPRESS
NEGLIGENCE.
The Seasoned Warehouse Agent agrees to use its best judgment and good
faith in the performance of any obligations and duties required under this
Agreement and shall incur no liability to any other party to this Agreement for
its acts or omissions hereunder, except as may result from its gross negligence
or willful misconduct. The Seasoned Warehouse Agent shall be entitled to rely
upon the advice of its legal counsel from time to time and shall not be liable
for any action or inaction by it in reliance upon such advice. The Seasoned
Warehouse Agent shall also be entitled to rely upon any notice, document,
correspondence, request or directive received by it from any other party to
this Agreement that the Seasoned Warehouse Agent believes to be genuine and to
have been signed or presented by the proper and duly authorized officer or
representative thereof, and shall not be obligated to inquire as to the
authority or power of any Person so executing or presenting such documents or
as to the truthfulness of any statements set forth therein. THE COMPANIES
JOINTLY AND SEVERALLY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE SEASONED
WAREHOUSE AGENT AND EACH SEASONED WAREHOUSE LENDER FROM AND AGAINST ANY CLAIM,
LEGAL ACTION, LIABILITY OR LOSS THAT IS INITIATED AGAINST OR INCURRED BY THE
SEASONED WAREHOUSE AGENT OR ANY SEASONED WAREHOUSE LENDER, INCLUDING COURT
COSTS AND REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS, IN CONNECTION WITH THE
SEASONED WAREHOUSE AGENT'S PERFORMANCE OF ITS DUTIES UNDER THIS AGREEMENT,
INCLUDING THOSE CAUSED IN WHOLE OR IN PART BY THE ORDINARY NEGLIGENCE OF THE
SEASONED WAREHOUSE AGENT, EXCLUDING, AS TO THE SEASONED WAREHOUSE AGENT, ONLY
THOSE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE SEASONED
WAREHOUSE AGENT. The Seasoned Warehouse Agent shall at its own expense
maintain at all times during the existence of this Agreement and keep in full
force and effect (a) fidelity insurance, (b) theft of documents insurance, and
(c) forgery insurance. All such insurance shall be with standard coverage and
subject to deductibles as is customary for insurance typically maintained by
banks which act as custodians and be in such amounts and with insurance
companies reasonably acceptable to the Companies.
10. NOTICES.
Any notice, demand or consent, required or permitted by this Agreement
shall be in writing and shall be effective and deemed delivered only when
received by the party to which it is sent. Any such notice, demand or consent
shall be delivered in person or transmitted by a recognized private courier
service or deposited with the United State Postal Service, certified mail,
postage prepaid, return receipt requested, addressed as follows, unless such
address is changed by written notice hereunder:
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215
If to the Companies:
MCA Financial Corp.
00000 Xxxxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Seasoned Warehouse Agent:
Texas Commerce Bank National Association
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000 (for messenger deliveries)
P. O. Xxx 0000
Xxxxxxx, Xxxxx 00000 (for mail deliveries)
Attention: Xx. Xxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
11. SEASONED WAREHOUSE LENDERS' PARTICIPATIONS.
The Seasoned Warehouse Lenders shall be entitled at any time or from
time to time, on the terms and conditions of SECTION 15.17 of the Seasoned
Warehouse Credit Agreement, to sell participations in Warehouse Revolving Loans
and Commitments under the Seasoned Warehouse Credit Agreement, provided that
the Seasoned Warehouse Agent retains the exclusive authority, notwithstanding
any such participation arrangements, to execute this Agreement (including all
Exhibits).
12. CONTROLLING LAW.
This Agreement and all questions relating to validity, interpretation,
performance and enforcement, shall be governed by and construed, interpreted
and enforced in accordance with the laws of the State of Texas, notwithstanding
any Texas or other conflict-of-law provisions to the contrary.
13. AGREEMENT FOR THE EXCLUSIVE BENEFIT OF PARTIES.
This Agreement is for the exclusive benefit of the parties hereto and
the Seasoned Warehouse Lenders (including in the case of the Seasoned Warehouse
Lenders, the Seasoned Warehouse Lenders' participants), and their respective
successors and permitted assigns, and shall not be deemed to create or confer
any legal or equitable right, remedy, or claim upon any other Person
whatsoever.
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216
14. ENTIRE AGREEMENT.
This Agreement contains the entire agreement among the parties hereto
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof, including any prior custody agreements. The express
terms hereof control and supersede any course of performance and/or usage of
the trade inconsistent with any of them terms hereof. This Agreement may not
be amended, modified or supplemented unless such amendment, modification or
supplement is set forth in a writing signed by the Companies, the Agent and
such of the Seasoned Warehouse Lenders whose consent or approval is required by
the applicable provisions of SECTIONS 15.2 through 15.4 of the Seasoned
Warehouse Credit Agreement.
15. EXHIBITS.
All Exhibits referred to herein or attached hereto are hereby
incorporated by reference into, and made a part of, this Agreement.
16. INDULGENCES, NOT WAIVERS.
Neither the failure nor any delay on the part of a party hereto to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or of any other right, remedy, power or privilege or with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it
is writing and is signed by the parties asserted to have granted such waiver.
17. TITLES NOT TO AFFECT INTERPRETATION.
The titles of sections and subsections contained in this Agreement are
for convenience only, and they neither form a part of this Agreement nor are
they to be used in the construction or interpretation hereof.
18. PROVISIONS SEPARABLE.
The provisions of this Agreement are independent of and separable from
each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other provisions
may be invalid or unenforceable in whole or in part.
19. RELATIONSHIP OF THE COMPANIES TO THE SEASONED WAREHOUSE AGENT.
19.1 The Seasoned Warehouse Agent and each other party hereto shall be
entitled to deal with the Companies and with any and all Warehouse Collateral
Papers, payments, instructions, notices or other instruments, without regard to
the ownership or other interests of the Companies in the Pledged Loans, and THE
COMPANIES JOINTLY AND SEVERALLY AGREE TO INDEMNIFY, DEFEND AND HOLD
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217
HARMLESS THE SEASONED WAREHOUSE AGENT AND EACH SEASONED WAREHOUSE LENDER FROM
AND AGAINST ALL CLAIMS, DEMANDS, ACTIONS, LIABILITIES, COSTS AND DAMAGES WHICH
THEY, OR ANY OF THEM, MAY INCUR OR BE SUBJECTED TO AS A RESULT OF OR RELATING
TO ACTIONS OR INACTIONS TAKEN PURSUANT HERETO, INCLUDING THOSE ARISING IN WHOLE
OR IN PART DUE TO THE ORDINARY NEGLIGENCE OF THE INDEMNIFIED PARTY, EXCLUDING
ONLY CLAIMS SOLELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
INDEMNIFIED PARTIES.
(The remainder of this page is intentionally blank)
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218
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first set forth above.
MCA FINANCIAL CORP. MCA MORTGAGE COMPANY
By: Xxxxx X. Xxxxxxx By: Xxx X. Xxxxx
------------------------------- -----------------------------
Name: XXXXX X. XXXXXXX Name: XXX X. XXXXX
----------------------------- ---------------------------
Title: EVP Title: PRESIDENT
---------------------------- --------------------------
MORTGAGE CORPORATION MORTGAGE CORPORATION OF AMERICA,
OF AMERICA INC.
By: Xxxxx X. Xxxxxxx By: Xxx X. Xxxxx
------------------------------- -----------------------------
Name: XXXXX X. XXXXXXX Name: XXX X. XXXXX
----------------------------- ---------------------------
Title: VP Title: PRESIDENT
---------------------------- --------------------------
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Seasoned Warehouse Agent
By: Xxxxxx X. Xxxxxxx
-------------------------------
Name: XXXXXX X. XXXXXXX
-----------------------------
Title: VICE PRESIDENT
----------------------------
Unnumbered counterpart signature page to
Seasoned Warehouse Custody Agreement between (i) MCA Financial Corp.,
MCA Mortgage Corp., Mortgage Corporation of
America and Mortgage Corporation
of America, Inc. and
(ii) Texas Commerce Bank National Association, Seasoned Warehouse Agent
219
Attached:
Exhibit A - Forms of Bailee Letters
Exhibit B - Form of Letter of Transmittal
Exhibit C - Form of Notice/Followup Notice of Receipt
Exhibit D - Form of Summary of Pledged Loans
Exhibit E - Form for Payoff Requests
Exhibit F - Form for Payoff Schedule
Exhibit G - Form of Document Return Letter
Exhibit H - Preliminary Title Report States
Exhibit I - Form of Trust Receipt
Schedule 4.1 - Form of Shipping Request
Schedule TF - Standard Warehouse Transmission File instructions
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220
EXHIBIT A
TO SEASONED WAREHOUSE CUSTODY AGREEMENT
[FORM OF BAILEE LETTER FOR SHIPMENTS
OF LOANS TO INVESTORS FOR PURCHASE]
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
P. O. XXX 0000
XXXXXXX, XXXXX 00000-0000
[date]
[Investor's name and address]
Re: "Bailee Letter" for [COMPANY NAME]'s Loan(s) shipped herewith for your
inspection and purchase
Ladies and Gentlemen:
WHAT AND WHOSE LOANS ARE ENCLOSED?
Pursuant to the request of [COMPANY NAME] (the "MORTGAGE COMPANY"), Texas
Commerce Bank National Association (the "SEASONED WAREHOUSE AGENT/CUSTODIAN"),
as agent and documents custodian for a syndicate of lenders (the "SEASONED
WAREHOUSE LENDERS") to the Mortgage Company, hereby delivers to you with this
letter the promissory notes or Land Contracts evidencing the loans ("LOANS")
described on the attached Schedule of Shipped Loans and related loan documents
(collectively, the "LOAN PAPERS").
THE SHIPPED LOANS ARE STILL PLEDGED TO THE SEASONED WAREHOUSE LENDERS
To secure the Mortgage Company's debt and other obligations to the Seasoned
Warehouse Lenders, the Mortgage Company has pledged (among other collateral)
the Loans to the Seasoned Warehouse Lenders, and has collaterally assigned
to the Seasoned Warehouse Agent/Custodian and granted the Seasoned Warehouse
Agent/Custodian (as agent and representative of the Seasoned Warehouse Lenders)
a security interest in (i) the Loan Papers, (ii) the Loans that they evidence
and (iii) all related security and rights. The Seasoned Warehouse Lenders and
the Seasoned Warehouse Agent/Custodian expressly retain and reserve all of
their rights in the Loans and the Loan Papers until you have purchased and
actually made payment to the Seasoned Warehouse Agent/Custodian for them in
accordance with this letter.
YOU ARE OUR BAILEE
During the period from your receipt of Loans until you either so purchased and
paid for them or you have returned them to our possession, you are and will be
bailee for the Seasoned Warehouse Lenders and the Seasoned Warehouse
Agent/Custodian as their agent and secured party on their behalf, for the
purpose of perfecting and maintaining perfection of the security interest that
the
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[Investor s name]
[Date]
Page [number]
Mortgage Company has granted to the Seasoned Warehouse Lenders and the
Seasoned Warehouse Agent/Custodian in (or pursuant to) the 10/97 Senior Secured
Seasoned Warehouse Credit Agreement dated as of October 31, 1997 among the
Mortgage Company, the Seasoned Warehouse Lenders and the Seasoned Warehouse
Agent/Custodian, as supplemented, amended or restated from time to time (the
"SEASONED WAREHOUSE CREDIT AGREEMENT").
PERSONS AUTHORIZED TO ACT
Only the persons named on the attached Schedule of Seasoned Warehouse
Agent/Custodian's Authorized Persons (the "SEASONED WAREHOUSE AGENT/CUSTODIAN'S
AUTHORIZED PERSONS") have authority to request or direct you to take any
action, or to make any agreement with you, with respect to the Loans. You may
not honor any notice, direction or other communication from the Mortgage
Company (or anyone else) concerning the Loans and Loan Papers unless it is
confirmed by one of the Seasoned Warehouse Agent/Custodian's Authorized Persons
(WRITTEN CONFIRMATION IS REQUIRED TO CHANGE ANY RELEASE PRICE (DEFINED BELOW)
OR TO AUTHORIZE ANY ACTION THAT INVOLVES MORE THAN THREE (3) LOANS; otherwise,
telephone confirmation is sufficient).
PAY-OFF PRICE PAYMENT IS REQUIRED FOR RELEASE
WHEN YOU HAVE PAID THE SEASONED WAREHOUSE AGENT/CUSTODIAN FOR THE
LOANS, THE SEASONED WAREHOUSE LENDERS' (AND THEIR AGENT, THE SEASONED WAREHOUSE
AGENT/CUSTODIAN'S) SECURITY INTEREST IN THE LOANS (AND THEIR LOAN PATERS) SHALL
AUTOMATICALLY TERMINATE, THE PAYMENT THAT MUST BE MADE TO THE SEASONED
WAREHOUSE AGENT/CUSTODIAN BEFORE THE SEASONED WAREHOUSE LENDERS' SECURITY
INTEREST IN EACH LOAN PURCDHASED WILL BE RELEASED IS ITS "PAY-OFF PRICE", WHICH
IS THE GREATER OF:
(X) THE MINIMUM PAYMENT REQUIRED FOR RELEASE OF THE SEASONED WAREHOUSE
LENDERS' SECURITY INTEREST (THE "RELEASE PRICE") IN EACH LOAN, AS SET FORTH IN
THE "RELEASE PRICE" COLUMN OF THE SCHEDULE OF SHIPPED LOANS; OR
(Y) THE PURCHASE PRICE THAT YOU AND THE MORTGAGE COMPANY HAVE AGREED
YOU WILL PAY FOR SUCH LOAN (THE "AGREED PURCHASE PRICE").
SECURITY INTEREST NOT RELEASED UNTIL FULL PAY-OFF PRICE IS PAID
If you pay the Seasoned Warehouse Agent/Custodian only the Agreed Purchase
Price for a Loan whose Release Price is more than that, THE SEASONED WAREHOUSE
LENDER'S SECURITY INTEREST IN THAT LOAN WILL NOT BE RELEASED unless and until
either you or
222
[Investor's name]
[Date]
Page [number]
the Mortgage Company pays the difference AND gives the Seasoned Warehouse
Agent/Custodian a written notice saying what the payment is for -- the notice
must give the Seasoned Warehouse Agent/Custodian enough information to enable
it to both (i) identify the Loan with the payment and (ii) determine that the
amount of the payment equals the excess of the Loan's Release Price over its
Agreed Purchase Price.
NO OTHER DELIVERY BEFORE PAYMENT
Until the Seasoned Warehouse Agent/Custodian has received payment of the
full Pay-Off Price for a Loan,you may not deliver any of its Loan Papers to
anyone other than the Seasoned Warehouse Agent/Custodian without authorization
from a Seasoned Warehouse Agent/Custodian's Authorized Person.
IF YOU'VE ALREADY PAID THE PAY-OFF PRICE
If (but only if) you have already paid the Pay-Off Price for a Loan to the
Seasoned Warehouse Agent/Custodian, then the enclosed Loan Papers for that Loan
are being delivered to you free of such security interest or any trust,
bailment or any other claim by the Seasoned Warehouse Lenders and their agent,
the Seasoned Warehouse Agent/Custodian.
LOAN PAPERS ARE DELIVERED CONDITIONALLY AND IN TRUST; YOUR AGREEMENT TO PAY
FOR OR RETURN THEM
However, for each Loan for which you have NOT
already paid the full Pay-Off Price, we are delivering
the enclosed Loan Papers to you IN TRUST and on the
express condition that you will promptly:
(a) examine them; and
(b) decide whether you will purchase any or all of
the Loans;
and that, with respect to each Loan, you will promptly either:
(c) remit by federal funds immediately available to the Seasoned
Warehouse Lender directed to Texas Commerce Bank National
Association, ABA No. 0000-0000-0 Attention: ______________________,
Corporate Mortgage Finance Group (713) ___________, Re: [COMPANY
NAME] Account No. ___________________________) the Pay-off Price
for that Loan; or
(d) return the promissory note or Land Contract and all of the
other papers relating to that Loan to us.
21-DAY NOTICE OF YOUR PURCHASE DECISION; YOU AGREE TO BUY LOANS YOU DON'T
SPECIFICALLY REJECT
It is very important that you promptly notify
us in writing of your decision with respect to each
Loan so that we will know at all
223
[Investor's name]
[Date]
Page [number]
times which specific Loans will remain as part of the Seasoned Warehouse
Lenders' collateral and which will not. Accordingly, you agree to give the
Seasoned Warehouse Agent/Custodian written notice on or before twenty-one (21)
days after the date of this letter that identifies which (if any) of the
enclosed Loans you elect not to purchase, and you agree to purchase all of the
enclosed Loans that you do not list in that notice.
OUR ABSOLUTE RIGHT TO REQUIRE RETURN OF LOANS NOT SOONER PAID FOR
NOTWITHSTANDING ANY OTHER PROVISION OF THIS LETTER, UNLESS THE
SEASONED WAREHOUSE AGENT/CUSTODIAN HAS ALREADY RECEIVED THE PAY-OFF PRICE FOR
EACH OF THE LOANS, THE ENCLOSED LOAN PAPERS ARE DELIVERED TO YOU UPON THE
EXPRESS AND CONTROLLING CONDITION THAT YOU WILL RETURN ANY OR ALL OF THEM TO
US, AS SEASONED WAREHOUSE AGENT/CUSTODIAN, PROMPTLY UPON YOUR RECEIPT OF OUR
WRITTEN DIRECTION TO DO SO, REGARDLESS OF WHETHER OR NOT YOU HAVE DECIDED TO
PURCHASE THE LOAN OR LOANS TO WHICH THE LOAN PAPERS REQUIRED TO BE RETURNED
TO US RELATE, EXCLUDING ONLY THOSE LOANS (IF ANY) FOR WHICH YOU HAVE ALREADY
PAID US THE PAY-OFF PRICE.
YOU AGREE TO KEEP THE LOAN PAPERS SAFE
You Agree to keep all of the enclosed Loan Papers safe from fire, loss, theft
and other casualty and agree to bear any loss, cost or expense the Seasoned
Warehouse Agent/Custodian or the Seasoned Warehouse Lenders may incur as a
result of any such event.
THIS LETTER CONTROLS
If any other paper you receive from us, the Mortgage Company or anyone else
in respect of the Loans is inconsistent with this letter, then this letter
shall control unless a Seasoned Warehouse Agent/ Custodian's Authorized Person
confirms IN WRITING that the other paper controls.
PLEASE CONFIRM RECEIPT
Please immediately indicate your receipt of this letter and the enclosed
Loan Papers, and your acceptance of and agreement to the trust and the terms
and conditions stated above, by dating and
224
[Investor's name]
[Date]
Page [number]
signing the enclosed copy of this letter and returning it to us (although your
doing so will not be necessary to the effectiveness of any of this letter's
terms, provisions or conditions).
Very truly yours,
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Seasoned Warehouse
Agent/Custodian
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Attached:
Schedule of Loans shipped
Schedule of Seasoned Warehouse Agent/Custodian's Authorized Persons
RECEIPT ACKNOWLEDGED AND TRUST, TERMS AND CONDITIONS ACCEPTED AND AGREED TO ON
__________________, 19__:
--------------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
225
SCHEDULE OF LOANS SHIPPED
DATE:_______
MORTGAGOR NAME LOAN NUMBER RELEASE PRICE
226
SCHEDULE OF SEASONED WAREHOUSE AGENT/CUSTODIAN'S AUTHORIZED PERSONS
(Persons authorized to direct or confirm the Mortgage Company's directions
concerning Loans shipped to you by
Texas Commerce Bank National Association, as Seasoned Warehouse Agent
under the Senior Secured Seasoned Warehouse Credit Agreement with
MCA Financial Corp., MCA Mortgage Corp., Mortgage
Corporation of America and Mortgage Corporation
of America, Inc.)
Effective Date:__________________
Confirmed by:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
Seasoned Warehouse Agent/Custodian
By:
-------------------------
Name:
-----------------------
Title:
----------------------
227
[FORM OF BAILEE LETTER FOR SHIPMENTS
OF LOANS TO STRUCTURED SECURITIES
CUSTODIAN FOR SECURITIZATION]
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
P. O. XXX 0000
XXXXXXX, XXXXX 00000-0000
[date]
[Structured Securities issuer's custodian's name and address]
Re: [COMPANY NAME]'s Loan(s) shipped herewith for inspection and
securitization
Ladies and Gentlemen:
WHAT AND WHOSE LOANS ARE ENCLOSED?
Pursuant to the request of [COMPANY NAME] (the "MORTGAGE COMPANY"), Texas
Commerce Bank National Association (the "SEASONED WAREHOUSE AGENT/CUSTODIAN"),
as agent and documents custodian for a syndicate of lenders (the "SEASONED
WAREHOUSE LENDERS") to the Mortgage Company, hereby delivers to you with this
letter the promissory notes evidencing the loans ("LOANS") described on the
attached schedule of loans shipped and related loan documents (collectively,
the "LOAN PAPERS").
THE SHIPPED LOANS ARE STILL PLEDGED TO THE SEASONED WAREHOUSE LENDERS
To secure the Mortgage Company's debt and other obligations to the Seasoned
Warehouse Lenders, the Mortgage Company has pledged (among other collateral)
the Loans to the Seasoned Warehouse Lenders, and has collaterally assigned to
the Seasoned Warehouse Agent/Custodian and granted the Seasoned Warehouse
Agent/Custodian (as agent and representative of the Seasoned Warehouse Lenders)
a security interest in (i) the Loan Papers, (ii) the Loans that they evidence
and (iii) all related security and rights.
The Seasoned Warehouse Lenders and the Seasoned Warehouse
Agent/Custodian expressly retain and reserve all of their rights in the Loans
and the Loan Papers until the issuer of structured securities for whom you are
custodian (the "ISSUER") has accepted them for securitization and actually
issued the structured security to be created from a Loan pool that includes
these Loans (the "SUBJECT SECURITY").
YOU ARE OUR BAILEE
During the period from your receipt of Loans until the Subject Security has
been issued or you have returned them to our possession, you are and will be
bailee for the Seasoned Warehouse Lenders and the Seasoned Warehouse
Agent/Custodian (as their agent and secured party on their
228
[Securities issuer's custodian's name]
[date]
Page 2
behalf), for the purpose of perfecting and maintaining perfection of the
security interest that the Mortgage Company has granted to the Seasoned
Warehouse Lenders and the Seasoned Warehouse Agent/Custodian in (or pursuant
to) the 10/97 Senior Secured Seasoned Warehouse Credit Agreement dated as of
October 31, 1997 among the Mortgage Company, the Seasoned Warehouse Lenders
and the Seasoned Warehouse Agent/Custodian, as supplemented, amended or
restated from time to time (the "SEASONED WAREHOUSE CREDIT AGREEMENT").
PERSONS AUTHORIZED TO ACT
Only the persons named on the attached Schedule of Seasoned Warehouse
Agent/Custodian's Authorized Persons (the "SEASONED WAREHOUSE AGENT/CUSTODIAN'S
AUTHORIZED PERSONS") have authority to request or direct you to take any
action, or to make any agreement with you, with respect to the Loans. You may
not honor any notice, direction or other communication from the Mortgage
Company (or anyone else) concerning the Collateral unless it is confirmed by
one of the Seasoned Warehouse Agent/Custodian's Authorized Persons (WRITTEN
CONFIRMATION IS REQUIRED TO CHANGE ANY RELEASE PRICE (DEFINED BELOW) OR TO
AUTHORIZE ANY ACTION THAT INVOLVES MORE THAN THREE (3) LOANS; otherwise,
telephone confirmation is sufficient).
UNTIL THE SEASONED WAREHOUSE AGENT/CUSTODIAN HAS RECEIVED PAYMENT OF
THE FULL PAY-OFF PRICE (DEFINED BELOW) FOR A LOAN, YOU MAY NOT DELIVER ANY OF
ITS LOAN PAPERS TO ANYONE OTHER THAN THE SEASONED WAREHOUSE AGENT/CUSTODIAN
WITHOUT AUTHORIZATION FROM A SEASONED WAREHOUSE AGENT/CUSTODIAN'S AUTHORIZED
PERSON. The "PAY-OFF PRICE" for any Loan is the greater of:
(x) the minimum payment required for release of the Seasoned Warehouse
Lender's security interest (the "RELEASE PRICE") in each Loan, as set forth in
the "Release Price" column of the Schedule of Shipped Loans; or
(y) the purchase price that you and the Mortgage Company have agreed
the Mortgage Company will effectively receive for such Loan (the "AGREED
PURCHASE PRICE") from the proceeds of sale of the Subject Security.
SUBJECT SECURITY'S INSUANCE TERMINATES EXISTING SECURITY INTEREST IN LOANS
THEMSELVES BUT NOT THEIR PROCEEDS
If and when the Subject Security is issued, the Seasoned Warehouse Lender's
security interest in the Loans and in their Loan Papers that are delivered to
you herewith shall automatically terminate; provided that the Seasoned
Warehouse Lenders' and the Seasoned Warehouse Agent/Custodian's security
interest in the Loans' proceeds shall NOT terminate, and shall automatically
attach to and continue in all of the Mortgage Company's right, title and
interest in and to the Subject Security when issued, and in and to the Subject
Security's
229
[Securities issuer's custodian's name]
[date]
Page 3
proceeds, until such time as the full Pay-off Price shall have been paid to the
Seasoned Warehouse Agent/Custodian.
LOAN PAPERS AREDELIVERED CONDITIONALLY IN TRUST AND IN TRUST; YOUR AGREEMENT TO
ACCEPT OR RETURN THEM
We are delivering the enclosed Loan Papers to you and on the express condition
that:
(a) you will promptly examine them; and
(b) the Issuer will promptly decide whether to
accept the Loans into the pool of Loans from
which the Subject Security will be created;
and that, with respect to each Loan, you will promptly either:
(c) advise the Seasoned Warehouse Agent/Custodian immediately when the
Subject Security based on a pool that includes such Loan has been
issued; or
(d) return the promissory note and all of the other papers relating to
that Loan to us.
YOU AGREE TO KEEP THE LOAN PAPERS SAFE
It is very important that you promptly notify us in writing of the Issuer's
decision with respect to each loan so that we will know at all times which
specific Loans will remain as part of the Seasoned Warehouse Lenders'
collateral and which will not. Accordingly, YOU AGREE TO GIVE THE SEASONED
WAREHOUSE AGENT/CUSTODIAN WRITTEN NOTICE ON OR BEFORE TWENTY-ONE (21) DAYS
AFTER THE DATE OF THIS LETTER THAT IDENTIFIES WHICH (IF ANY) OF THE ENCLOSED
LOANS THAT THE ISSUER ELECTS NOT TO INCLUDE IN THE POOL OF LOANS ON WHICH THE
SUBJECT SECURITY WILL BE BASED, AND THE ISSUER WILL INCLUDE THEREIN ALL OF THE
ENCLOSED LOANS THAT YOU DO NOT LIST IN THAT NOTICE.
230
[Securities issuer's custodian's name]
[date]
Page 4
OUR ABSOLUTE RIGHT TO REQUIRE RETURN OF LOANS NOT SOONER SECURITIZED
NOTWITHSTANDING ANY OTHER PROVISION OF THIS LETTER, UNLESS THE
SEASONED WAREHOUSE AGENT/CUSTODIAN HAS ALREADY RECEIVED THE PAY-OFF PRICE FOR
EACH OF THE LOANS OR THE SUBJECT SECURITY BASED ON THEM HAS ALREADY BEEN
ISSUED BY THE ISSUER, THE ENCLOSED LOAN PAPERS ARE DELIVERED TO YOU UPON THE
EXPRESS AND CONTROLLING CONDITION THAT YOU WILL RETURN ANY OR ALL OF THEM TO
US, AS SEASONED WAREHOUSE AGENT/CUSTODIAN, PROMPTLY UPON YOUR RECEIPT OF OUR
WRITTEN DIRECTION TO DO SO, REGARDLESS OF WHETHER OR NOT THE ISSUER HAS
DECIDED TO INCLUDE SUCH LOANS IN THE POOL OF LOANS FROM WHICH THE SUBJECT
SECURITY WILL BE CREATED, EXCLUDING ONLY THOSE LOANS (IF ANY) FROM WHICH SUCH
A SECURITY HAS ALREADY BEEN CREATED AND ISSUED.
You agree to keep all of the enclosed Loan Papers safe from fire, loss, theft
and other casualty and agree to bear any loss, cost or expense we or the
Seasoned Warehouse Lenders may incur as a result of any such event.
THIS LETTER CONTROLS
If any other paper you receive from us, the Mortgage Company or anyone else in
respect of the Loans is inconsistent with this letter, then this letter shall
control unless a Seasoned Warehouse Agent/ Custodian's Authorized Person
confirms IN WRITING that the other paper controls.
PLEASE CONFIRM RECEIPT
Please immediately indicate your receipt of this letter and the enclosed Loan
Papers, and your acceptance of and agreement to the trust and the terms and
conditions stated above, by dating and
231
[Securities issuer's custodian's name]
[date]
Page 5
signing the enclosed copy of this letter and returning it to us (although your
doing so will not be necessary to the effectiveness of any of this letter's
terms, provisions or conditions).
Very truly yours,
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Seasoned Warehouse
Agent/Custodian
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Attached:
Schedule of Loans shipped
Schedule of Seasoned Warehouse Agent/Custodian's Authorized Persons
RECEIPT ACKNOWLEDGED AND TRUST, TERMS AND CONDITIONS ACCEPTED AND AGREED TO ON
__________, 19__:
-------------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
232
SCHEDULE OF LOANS SHIPPED
DATE:_____________
Mortgagor Name Loan Number Release Price
233
SCHEDULE OF SEASONED WAREHOUSE AGENT/CUSTODIAN'S AUTHORIZED PERSONS
(Persons authorized to direct -- or to confirm the Mortgage Company's
directions -- for and on behalf of the Seasoned Warehouse Agent/Custodian
concerning Loans shipped to you by Texas Commerce Bank National
Association, as Seasoned Warehouse Agent/Custodian under the Seasoned
Warehouse Custody Agreement dated October 31, 1997, as amended, with MCA
Financial Corp., MCA Mortgage Corporation, Mortgage Corporation of America
and Mortgage Corporation of America, Inc.)
Effective Date:__________________
Confirmed by:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
Seasoned Warehouse Agent/Custodian
By:
---------------------------
Name:
-------------------------
Title:
------------------------
234
EXHIBIT B
COMPANIES'
LETTER OF TRANSMITTAL
235
EXHIBIT C
NOTICE OF RECEIPT or FOLLOW-UP NOTICE OF RECEIPT
[date]
MCA Financial Corp., MCA Mortgage Corp.,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
00000 Xxxxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Re: Seasoned Warehouse Custody Agreement dated October 31, 1997 (as it may
have been supplemented, amended or restated, the "Seasoned Warehouse
Custody Agreement") by and among MCA Financial Corp., MCA Mortgage
Corp. and Mortgage Corporation of America (the "Borrowers") joined by
Mortgage Corporation of America, Inc. (collectively, the "Companies"),
and Texas Commerce Bank National Association ("TEXAS COMMERCE"), as a
lender and as agent (the "SEASONED WAREHOUSE AGENT") for the other
lenders (collectively with Texas Commerce, the "SEASONED WAREHOUSE
LENDERS") under the 10/97 Senior Secured Seasoned Warehouse Credit
Agreement dated as of October 31, 1997 (as it may have been or may be
supplemented, amended or restated from time to time, the "SEASONED
WAREHOUSE CREDIT AGREEMENT")
Ladies and Gentlemen:
All initially capitalized terms used herein have the same meanings here
as in the Seasoned Warehouse Custody Agreement.
[ ] This is a Notice of Receipt for Basic Papers.
In accordance with SECTION 3.2 of the Seasoned Warehouse Custody
Agreement, the Seasoned Warehouse Agent hereby:
(1) acknowledges to the Companies receipt of all Basic Papers for each
of the Pledged Loans listed in the attached Submission List (the "SUBMITTED
LOANS"); and
(2) as to each of the Submitted Loans, certifies to the Seasoned
Warehouse Lenders that the Seasoned Warehouse Agent has reviewed its File
and has determined, based on its examination of the papers in such File
that (i) all of such File's Basic Papers [ ](check if applicable) except
for Basic Papers temporarily returned to the Companies or their designee
under a trust receipt, for correction, collection or other servicing
action), are in such File and such File is in the Seasoned Warehouse
Agent's possession, (ii) the Basic Papers appear regular on their faces and
to relate to such Submitted Loan, (iii) the information set forth in the
Submission List respecting such Submitted Loan appears correct, and (iv)
the Basic Papers appear on their faces to satisfy the requirements stated
in SECTION 3.1 of the Seasoned Warehouse Custody Agreement.
[ ] This is a Follow-up Notice of Receipt. In accordance with SECTION 3.2
of the Seasoned Warehouse Custody Agreement, the Seasoned Warehouse Agent
hereby:
(1) acknowledges to the Companies and certifies to the Seasoned
Warehouse Lenders receipt from the Companies of the documents listed in the
attached copy of the Seasoned Warehouse Agent's Document Return Letter to the
Companies dated ________ (the "RETURNED DOCUMENTS") by which such Returned
Documents were sent by the Seasoned Warehouse Agent to the Companies for the
purpose(s) stated in such Document Return Letter; and
236
(2) as to each of the Pledged Loans to which the Returned Documents
relate, the Seasoned Warehouse Agent certifies to the Seasoned Warehouse
Lenders that the Seasoned Warehouse Agent has reviewed such Pledged Loan's File
and has determined, based on its examination of the papers in such File
(including the Returned Documents) that (i) all of such File's Basic Papers [ ]
(check if applicable) are now in such File and such File is in the Seasoned
Warehouse Agent's possession, (ii) the Basic Papers appear regular on their
faces and to relate to such Pledged Loan and (iii) the Basic Papers for such
Pledged Loan appear on their faces to satisfy the requirements stated in
SECTION 3.1 of the Seasoned Warehouse Custody Agreement.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
(The Seasoned Warehouse Agent)
Attached:
[ ] (for Notice of Receipt) Submission List(s)
[ ] (for Follow-up Notice of Receipt) Copy of relevant Document Return Letter
237
EXHIBIT D
SUMMARY OF PLEDGED LOANS
[date]
MCA Financial Corp., MCA Mortgage Corp.,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
00000 Xxxxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Re: Seasoned Warehouse Custody Agreement dated October 31, 1997 (as it
may have been supplemented, amended or restated, the "Seasoned
Warehouse Custody Agreement") by and among MCA Financial Corp., MCA
Mortgage Corp. and Mortgage Corporation of America (the
"Borrowers") joined by Mortgage Corporation of America, Inc.
(collectively, the "Companies"), and Texas Commerce Bank National
Association ("TEXAS COMMERCE"), as a lender and as agent (the
"SEASONED WAREHOUSE AGENT") for the other lenders (collectively
with Texas Commerce, the "SEASONED WAREHOUSE LENDERS") under the
10/97 Senior Secured Seasoned Warehouse Credit Agreement dated as
of October 31, 1997 (as it may have been or may be supplemented,
amended or restated from time to time, the "SEASONED WAREHOUSE
CREDIT AGREEMENT")
Ladies and Gentlemen:
We confirm that as of the above date we hold as the agent and
Representative of the Seasoned Warehouse Lenders under the captioned Seasoned
Warehouse Custody Agreement the Pledged Loans described on the attached Loan ID
Report.
[NOTE: TEXAS COMMERCE IS TO ATTACH REPORT SHOWING LOAN (OR LAND
CONTRACT) NUMBER, CUSTOMER LAST NAME, FACE AMOUNT OF MORTGAGE NOTE OR
ORIGINAL LAND CONTRACT AMOUNT, BALANCE AND STATUS, I.E., THE NOTICE OF
RECEIPT FOR THE BASIC PAPERS].
All initially capitalized terms used herein have the same meanings here
as in the Seasoned Warehouse Custody Agreement.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Seasoned Warehouse Agent
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
000
XXXXXXX X
XXXXXX REQUEST
PURPOSE:
--------------------------------
FINAL LIST
CURRENT ORIGINAL
LOAN NOTE NOTE DATE
NUMBER BORROWER NAME BALANCE BALANCE FUNDED
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
239
EXHIBIT F
PAYOFF SCHEDULE
as of
-------------------------------
CURRENT ORIGINAL
FILE NOTE COMPANY
NUMBER BORROWER NAME BALANCE BORROWING EXCEPTION
AMOUNT
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
240
EXHIBIT G
DOCUMENT RETURN LETTER
Date:______________
To:
MCA Financial Corp., MCA Mortgage Corp.,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
00000 Xxxxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Re: Seasoned Warehouse Custody Agreement dated October 31, 1997 (as it may
have been supplemented, amended or restated, the "Seasoned Warehouse
Custody Agreement") by and among MCA Financial Corp., MCA Mortgage Corp.
and Mortgage Corporation of America (the "Borrowers") joined by Mortgage
Corporation of America, Inc. (collectively, the "Companies"), and Texas
Commerce Bank National Association ("TEXAS COMMERCE"), as a lender and as
agent (the "SEASONED WAREHOUSE AGENT") for the other lenders (collectively
with Texas Commerce, the "SEASONED WAREHOUSE LENDERS") under the 10/97
Senior Secured Seasoned Warehouse Credit Agreement dated as of October 31,
1997 (as it may have been or may be supplemented, amended or restated from
time to time, the "SEASONED WAREHOUSE CREDIT AGREEMENT")
Re: Loan Number __ __ __ - __ __ __ __ __
The Seasoned Warehouse Agent hereby returns to the Companies the
following documents received by the Seasoned Warehouse Agent pursuant to the
attached Letter of Transmittal for the following reasons:
DOCUMENT FOLLOW-UP ACTION REQUIRED
____________________________________________________ __________
____________________________________________________ __________
____________________________________________________ __________
____________________________________________________ __________
____________________________________________________ __________
____________________________________________________ __________
____________________________________________________ __________
The above deficiencies should be corrected immediately and the corrected
documents promptly returned to the Seasoned Warehouse Agent. Pending such
return, you are to hold such documents as bailee and in trust for Texas
Commerce Bank National Association, as Seasoned Warehouse Agent and
Representative of the Seasoned Warehouse Lenders. If a delay is anticipated,
Texas Commerce Bank National Association, as Seasoned Warehouse Agent, must be
notified.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Seasoned Warehouse Agent
By: ________________________________
Authorized Officer
241
EXHIBIT H
PRELIMINARY TITLE REPORT STATES
A Preliminary Title Report may be delivered for Mortgaged Property
located in the following states:
1. California
242
EXHIBIT I
TRUST RECEIPT AND AGREEMENT
SEASONED WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199__
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
________________________________________________________________________________
This trust receipt and agreement is delivered under the Seasoned
Warehouse Custody Agreement dated as of October 31, 1997 executed between the
Seasoned Warehouse Agent (as the "CUSTODIAN" therein) and the Companies pursuant
to the 10/97 Senior Secured Seasoned Warehouse Credit Agreement (as
supplemented, amended or restated, the "SEASONED WAREHOUSE CREDIT AGREEMENT"),
between the Companies and Texas Commerce Bank National Association, as Seasoned
Warehouse Agent for the Seasoned Warehouse Lenders. Terms defined in the
Seasoned Warehouse Credit Agreement and the Seasoned Warehouse Custody Agreement
have the same meanings when used -- unless otherwise defined -- in this trust
receipt and agreement.
In accordance with the Seasoned Warehouse Custody Agreement, the
Companies hereby:
(check one)
[ ] request
[ ] acknowledge
delivery by Seasoned Warehouse Agent to the Company designated below of:
(check one)
[ ] the entire File of Warehouse Collateral Papers
[ ] the following specific Warehouse Collateral Papers from the File:
_________________________________
for the Mortgage Loans or Land Contracts referred to below and for the purpose
of making the corrections or performing the servicing functions described as
follows:
Description of Collateral: _________________
Original Amount: $_____________
243
Company to Deliver to:
---------------------
Corrections or servicing
functions: ---------------------
---------------------
---------------------
The Companies agree that (a) these Warehouse Collateral Papers are
delivered to the Companies solely for the purpose of making these corrections,
(b) these Warehouse Collateral Papers are, and shall continue to be, subject to
Lender Liens under the Warehouse Loan Documents, (c) the Companies shall hold
these Warehouse Collateral Papers as bailee and trustee for the Seasoned
Warehouse Agent, as agent and Representative of the Seasoned Warehouse Lenders,
and (d) the Companies may not deliver any of these Warehouse Collateral Papers
to a third party unless (i) it is necessary in order to complete the
corrections, and (ii) the Companies notify that third party that the Warehouse
Collateral Papers are, and continue to be, subject to Lender Liens under the
Warehouse Loan Documents, and obtain from that third party its agreement to hold
those Warehouse Collateral Papers as bailee and trustee for the Seasoned
Warehouse Agent, as agent and Representative of the Seasoned Warehouse Lenders
until they have been returned to the Custodian or the amount of the Borrowing
Base attributable to the related Mortgage Loans or Land Contracts has been fully
paid to Seasoned Warehouse Agent to be applied to the Obligations. The
Companies agree to return possession of these papers to the Seasoned Warehouse
Agent by no later than ten (10) days after their receipt by any of the Companies
unless this box is checked [ ] to indicate that the Agent has consented (on a
case by case basis) to the Companies' retaining such possession for a longer
period, AND IN ANY EVENT TO RETURN POSSESSION OF THESE PAPERS TO THE SEASONED
WAREHOUSE AGENT NO LATER THAN TWENTY-ONE (21) DAYS AFTER RECEIPT unless the
Pledged Loans to which they relate are sooner redeemed in accordance with
SECTION 9.3 of the Seasoned Warehouse Credit Agreement.
On and as of the date of this receipt and agreement, the Companies
certify, represent and warrant to the Seasoned Warehouse Agent, as agent and
Representative of the Seasoned Warehouse Lenders, that (a) the Companies'
representations and warranties in the Warehouse Loan Documents are true and
correct in all material respects except to the extent that (i) a representation
or warranty speaks to a specific date or (ii) the facts on which a
representation or warranty is based have changed by transactions or conditions
contemplated or permitted by the Warehouse Loan Documents, (b) no Default or
Event of Default exists or will exist after giving effect to this requested
shipment, and (c) unless (check if applicable) [ ] the Seasoned Warehouse Agent
has otherwise agreed, this shipment will not result in Warehouse Collateral
Papers with more than a total face amount of One Million Dollars ($1,000,000)
being outstanding for correction or servicing.
244
The Companies acknowledge receipt of the Warehouse Collateral Papers
referred to above.
MCA FINANCIAL CORP.,
MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF
AMERICA, as the Borrowers
By
-----------------------------------
(Name)
--------------------------------
(1)(Title)
------------------------------
-----------------------------------
(1) Must be a Responsible Officer of all three Companies.
245
MCA FINANCIAL CORP.,
MCA MORTGAGE CORPORATION,
MORTGAGE CORPORATION OF
AMERICA and MORTGAGE
CORPORATION OF AMERICA, INC., as the Companies
By
------------------------------------
(Name)
--------------------------------
(1)(Title)
------------------------------
------------------------------
(1) Must be a Responsible Officer of all four Companies.
246
SCHEDULE 4.1
SHIPPING REQUEST
SEASONED WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199___
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
SHIPMENT # SHIPMENT $
---------------- -------------------
POOL # # OF LOANS
-------------------- -------------------
================================================================================
This request is delivered under the Seasoned Warehouse Custody Agreement
dated as of October 31, 1997 executed between the Seasoned Warehouse Agent (as
the "CUSTODIAN" therein) and the Companies pursuant to the 10/97 Senior Secured
Seasoned Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "SEASONED WAREHOUSE CREDIT AGREEMENT"),
between the Companies, Texas Commerce Bank National Association ("TEXAS
COMMERCE"), as a lender and as agent (the "SEASONED WAREHOUSE AGENT") for the
other lenders party thereto, and the lenders party thereto (including Texas
Commerce, the "SEASONED WAREHOUSE LENDERS"). Terms defined in the Seasoned
Warehouse Credit Agreement and the Seasoned Warehouse Custody Agreement have the
same meanings when used -- unless otherwise defined -- in this notice.
1. The Companies request that Custodian (a) forward the shiplist and
collateral files for the Mortgage Loans or Land Contracts identified below to
the following Approved Investor or its custodian or Servicer:
--------------------
--------------------
--------------------
--------------------
The Companies also request that the Custodian complete the endorsement
of the related promissory notes or Land Contracts from the Companies to that
Approved Investor or its Servicer or custodian as follows:
-----------------
The Custodian should ship the whole collateral file (consisting of all
Basic Papers in the Custodian's possession for this Warehouse Collateral) by
either Federal Express or such other courier service as
247
the Companies have designated to the Custodian as "approved" for that purpose.
The courier used must be acting as an independent contractor bailee solely on
behalf of the Seasoned Warehouse Agent for the benefit of the Custodian, the
Seasoned Warehouse Agent and the Seasoned Warehouse Lenders, but none of the
Seasoned Warehouse Agent, the Custodian or the Seasoned Warehouse Lenders is
responsible for any delays in shipment caused by any actions or inactions by
that courier. The Companies' completed air xxxx for shipment accompanies this
request.
2. On and as of the date of this request, the Companies certify,
represent and warrant to the Seasoned Warehouse Agent, the Custodian and the
Seasoned Warehouse Lenders that (a) the Companies' representations and
warranties in the Warehouse Loan Documents are true and correct in all material
respects except to the extent that (i) a representation or warranty speaks to a
specific date or (ii) the facts on which a representation or warranty is based
have changed by transactions or conditions contemplated or permitted by the
Warehouse Loan Documents, and (b) no Default or Event of Default exists or,
after giving effect to this requested shipment, will exist.
MCA FINANCIAL CORP., MCA MORTGAGE
CORPORATION, MORTGAGE CORPORATION OF
AMERICA and MORTGAGE CORPORATION OF
AMERICA, INC., as the Companies
By
--------------------------------
(Name)
----------------------------
1(Title)
--------------------------
------------------------------
(1) Must be a Responsible Officer of all four Companies.
248
SCHEDULE TF
STANDARD WAREHOUSE TRANSMISSION FILE
20. TEXAS COMMERCE BANK'S STANDARD WAREHOUSE TRANSMISSION FILE IS A FIXED
LENGTH RECORD LAYOUT TO ENSURE INTEGRITY OF DATA TRANSMITTED.
21. TEXAS COMMERCE BANK WILL REQUIRE A TRANSMISSION FILE FOR:
(1) WET FUNDINGS, (2) DRY FUNDINGS, (3) TRANSFERS FROM WET TO DRY, (4)
PAYDOWNS AND (5) INVENTORY PURPOSES. THE SAME STANDARD WAREHOUSE
TRANSMISSION FILE LAYOUT IS USED FOR ALL ACTIVITIES.
22. ALL FIELDS ON THE TRANSMISSION FILE SHOULD BE POPULATED WITH
CONSIDERATION GIVEN TO THE BELOW TRANSACTIONS:
(A.) WET FUNDINGS: PLACE A "W" IN THE LOAN STATUS FIELD.
(B.) DRY FUNDINGS: PLACE A "D" IN THE LOAN STATUS FIELD.
(C.) TRANSFERS: PLACE A "T" IN THE LOAN STATUS FIELD AND PLACE IN
THE MASTER NOTE FIELD THE NOTE NUMBER THE LOAN IS TRANSFERRING
TO.
(D.) PAYDOWNS: PLACE A "P" IN THE LOAN STATUS FIELD AND PLACE THE
PAYDOWN DATE IN THE PAID DATE FIELD.
(E.) INVENTORY TRANSMISSION: PLACE AN "I" IN THE LOAN STATUS
FIELD. TEXAS COMMERCE BANK WILL REQUIRE A WEEKLY, OR AT A
MINIMUM A MONTHLY, FULL INVENTORY FILE TRANSMISSION IN ORDER TO
RECONCILE.
23. CONTACT TEXAS COMMERCE'S MORTGAGE WAREHOUSE OPERATIONS STAFF FOR
ACCESS NUMBERS AND PROTOCOLS FOR DATA TRANSMISSIONS.
24. IN ORDER TO EXPEDITE PROCESSING AND MEET YOUR CRITICAL BUSINESS
DEADLINES TEXAS COMMERCE BANK WILL REQUIRE THAT ONCE A STANDARD FORMAT
HAS BEEN AGREED UPON, ALL SUBSEQUENT TRANSMISSIONS MUST CONFORM TO THE
FORMAT. SHOULD ANY CHANGES BECOME NECESSARY, PLEASE CONTACT TEXAS
COMMERCE BANK FOR CONSULTATION AND TIME SCHEDULES FOR IMPLEMENTATION
OF ANY AGREED-UPON CHANGES.
249
MAX
FIELD DESCRIPTION FIELD TYPE START LAST LENGTH
File Number Unique loan number C 1 20 20
Mortgagor Last Name Borrower surname C 21 55 35
Mortgagor First Name Borrower first name C 56 80 25
Co-Mtgr. Last Name Co-Borrower surname C 81 115 35
(if applicable)
Co-Mtgr. First Name Co-Borrower first name C 116 140 25
(if applicable)
Property Address Property address C 141 170 30
Property City Property city C 171 200 30
Property State Standard state abbreviation C 201 202 2
Property Zip Zip Code (zip + four, if available) C 203 212 10
Loan type USE (RES.) C 213 219 7
Loan Term Loan term, in months C 220 222 3
Note Date Original note date D 223 230 8
(MM/DD/YY)
Fund Date Collateral funding date D 231 238 8
(MM/DD/YY)
Paid Date Collateral paid date (paydown) D 239 246 8
(MM/DD/YY)
Original Amount Loan amount F 247 258 12
(xxxxxxxx.xx)
Warehouse Amount Collateral funding amount F 259 270 12
(xxxxxxxx.xx)
Note Rate Loan rate F 271 277 7
(xx.xxxx)
Loan Status W-WETS; D-DRYS; T-TRANSFERS C 278 278 1
P-PAYDOWNS; I-INVENTORY
Master Note C 279 282 4
Type Paper A, B, C, or D C 283 284 2
Combined LTV As a Percentage (%) F 285 291 7
(xx.xxxx)
Lien Position 1 or 2 C 292 292 1
250
Jumbo Loan "J" for Jumbo - "S" for Super Jumbo C 293 293 1
Leave blank if neither
Dwelling Type SEE LIST OF ACCEPTABLE DWELLING TYPES C 294 295 2
STANDARD FILE NAME CONVENTION: ABC MM DDC.TXT
(ABC) IDENTIFIES ABC MORTGAGE COMPANY, (MM) IDENTIFIES THE MONTH, (DD)
IDENTIFIES THE DAY, AND THE FINAL CHARACTER (A,B,C,ETC.) IDENTIFIES THE
TRANSMISSION SEQUENCE OF THE DAY.
****THIS FILE IS AN ASCII TEXT FILE IN WHICH THE RECORDS HAVE A FIXED LENGTH
AND END WITH A CARRIAGE RETURN AND LINE FEED. (EACH FIELD HAS A SPECIFIC
LENGTH) COMMAS ARE PROHIBITED IN NUMERIC FIELDS.
251
SEASONED WAREHOUSE SECURITY AGREEMENT
THIS SEASONED WAREHOUSE SECURITY AGREEMENT is entered into as of
October 31, 1997, between MCA FINANCIAL CORP., a Michigan corporation, MCA
MORTGAGE CORPORATION, a Michigan corporation, MORTGAGE CORPORATION OF AMERICA,
a Michigan corporation and MORTGAGE CORPORATION OF AMERICA, INC., an Ohio
corporation ("DEBTORS"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as a
lender and as agent for the other lenders party thereto (in such capacities,
"SECURED PARTY").
Debtors, the Seasoned Warehouse Lenders parties thereto as such and
Secured Party have entered into the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 (as supplemented, amended or
restated, the "WAREHOUSE CREDIT AGREEMENT"). As a continuing inducement to
Seasoned Warehouse Lenders to extend credit to Debtors under the Credit
Agreement, and as a condition precedent to that credit, Debtors are executing
and delivering this Agreement to Secured Party.
ACCORDINGLY, for adequate and sufficient consideration, Debtors and
Secured Party agree as follows:
SECTION 1. DEFINITIONS AND REFERENCES. Unless stated otherwise, (a)
terms defined in the Warehouse Credit Agreement or the UCC have the same
meanings when used in this Agreement, and (b) to the extent permitted by Law,
if in conflict (i) the definition of a term in the Credit Agreement controls
over the definition of that term in the UCC, and (ii) the definition of a term
in Article 9 of the UCC controls over the definition of that term elsewhere in
the UCC.
COLLATERAL is defined in SECTION 2.2 of this Agreement.
DEBTORS is defined in the preamble to this Agreement and includes,
without limitation, each Debtor, each Debtor as a debtor-in-possession, and
any receiver, trustee, liquidator, conservator, custodian, or similar party
appointed for any Debtor or for substantially all of any Debtor's assets under
any Debtor Law.
OBLIGOR means any Person obligated with respect to any Collateral
(whether as an account debtor, obligor on an instrument, issuer of securities,
or otherwise).
SECURED PARTY is defined in the preamble to this Agreement and
includes its successor appointed and acting as Seasoned Warehouse Agent for
Seasoned Warehouse Lenders under the Seasoned Warehouse Loan Documents.
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SECURITY INTEREST means the security interest granted and the pledge
and assignment made under SECTION 2.1 of this Agreement, which is a Lender Lien
under the Credit Agreement.
SECTION 2. SECURITY INTEREST AND COLLATERAL.
2.1 Security Interest. To secure the full payment and performance of
the Obligations, each Debtor hereby grants to Secured Party, as agent and
Representative of Seasoned Warehouse Lenders, a security interest in all of that
Debtor's present and future right, title and interest in and to the Collateral,
whether now owned or hereafter acquired, and pledges and assigns the Collateral
to Secured Party as Representative of the Seasoned Warehouse Lenders, all upon
and subject to the terms and conditions of this Agreement. The grant of the
Security Interest does not subject Secured Party or any Lender to the terms of
any Collateral Paper or in any way transfer, modify, or otherwise affect (a) any
Debtor's obligations with respect to any Collateral or (b) the Lender Liens
under the Credit Agreement.
2.2 Collateral. As used in this Agreement, the term "Collateral" means
the present and future items and types of property described below, whether now
owned or acquired in the future by any Debtor. This description of Collateral
does not permit any action prohibited by any Loan Document.
- Mortgage Collateral from time to time identified to Secured
Party as Collateral.
- All Collateral Papers in any way related to any of the
Mortgage Collateral from time to time identified to Secured
Party as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of
trust, or trust deeds securing those Mortgage Loans,
whether deposited with or held by or for Secured Party
under this Agreement or otherwise.
- Private mortgage insurance (including, without limitation,
all commitments to issue any such insurance) covering, and
all commitments issued by FHA to insure or issued by VA to
guarantee, any Mortgage Loans identified as Collateral.
- Security of any kind pledged by a mortgagor for any
Mortgage Loans identified as Collateral.
- Casualty insurance assigned to any Debtor in connection
with any Mortgage Loans identified as Collateral.
- Mortgage Securities deposited with or held by or for
Secured Party under the Seasoned Warehouse Loan Documents
or registered by book entry in Secured Party's name under
the Seasoned Warehouse Loan Documents.
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- Guaranties related to Mortgage Securities identified as
Collateral.
- Any take-out commitments held by any Debtor for any
Mortgage Loans or Mortgage Securities identified as
collateral, rights to deliver those Mortgage Loans or
Mortgage Securities, as the case may be, to the investors
or other purchasers under those take-out commitments, and
all proceeds resulting from the sale of any of those
Mortgage Loans or Mortgage Securities under those take-out
commitments.
- Any Collateral otherwise described in this Agreement that
may from time to time be delivered (a) to an investor (or
its custodian or other designee) under SECTION 3.1 of the
Custody Agreement until purchased and paid for by that
investor or (b) to a Company for correction or servicing
under SECTION 3.2 of the Custody Agreement.
- The Seasoned Warehouse Note Payment/Funding Account, all
other accounts that any Debtor maintains with Secured
Party, Seasoned Warehouse Agent, or any Lender, and all
amounts deposited in them or represented by them.
- Personal property, contract rights, accounts, and general
intangibles of any kind whatsoever relating to any
Collateral.
- All files, surveys, certificates, correspondence,
appraisals, tapes, discs, cards, accounting records, and
other information and data of any Debtor relating to any
collateral, including, without limitation, all information,
data, tapes, discs, and cards necessary to administer and
service any Collateral.
- Cash and noncash proceeds of any Collateral.
SECTION 3. REPRESENTATIONS AND WARRANTIES. By entering into this
Agreement, and by each subsequent delivery of additional Collateral under this
Agreement, each Debtor reaffirms the representations and warranties contained
in the Credit Agreement. Each Debtor further represents and warrants to
Secured Party as Representative of the Seasoned Warehouse Lenders as follows:
3.1 Concerning Debtors. The facts concerning Debtors' names, taxpayer
identification numbers, ownership, state of incorporation, states in which
Debtors are qualified as foreign corporations, trade names used, chief executive
offices' locations and other principal offices' locations that are stated on
Schedule I hereto and its attached list, are true and correct in all respects.
3.2 Concerning the Collateral. All Collateral (a) is genuine and in all
respects what it purports to be, (b) is the legal, valid, and binding obligation
of each Obligor (except as enforceability may be limited by Debtor Laws), (c) is
free from any claim for credit, deduction, or allowance of any
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Obligor and free from any defense, dispute, setoff, or counterclaim (other than
for payments made in respect of it), (d) if a Mortgage Loan was originated and
is in compliance with all Laws (including, without limitation, all usury Laws,
the Real Estate Settlement Procedures Act of 1974, the Equal Credit Opportunity
Act, the Federal Trust in Lending Act, Regulation Z promulgated by the Board of
Governors of the Federal Reserve System, and all applicable federal and state
consumer protection Laws, (e) if a Mortgage Security, is duly authorized and
validly issued, the transfer of which is not subject to any restrictions other
than under the Seasoned Warehouse Loan Documents and (f) conforms to the
applicable requirements of eligibility under SCHEDULE EC to the Credit
Agreement.
3.3 Ownership and Priority. Debtors have full legal and beneficial
ownership of all Collateral, free and clear of all liens except Permitted Liens.
3.4 Creation and Perfection. The Security Interest is created and
perfected on (a) each promissory note that evidences a Mortgage Loan or Land
Contract ever identified as Collateral and delivered to Secured Party, (b) each
Mortgage Security in certificated form that is delivered to Secured Party, (c)
each Mortgage Security in book entry form when notice of the Security Interest
is given to the financial institution in whose favor that security has been
issued and that institution confirms that notice, (d) all Collateral shipped to
any investor under SECTION 3.1 of the Custody Agreement (and the Security
Interest shall continue to be perfected until Secured Party receives either
payment or Mortgage Securities under that section), (e) all Collateral shipped
to a Debtor for correction or servicing under SECTION 3.2 of the Custody
Agreement (and the Security Interest shall continue to be perfected for
twenty-one (21) days after that shipment), and (f) all other Collateral upon
possession or the filing of financing statements by Secured Party.
SECTION 4. COVENANTS. Until all commitments by Secured Party and Seasoned
Warehouse Lenders to extend credit under the Credit Agreement have been canceled
or terminated and the Obligations are fully paid and performed, Debtors covenant
and agree with Secured Party as agent and Representative of Seasoned Warehouse
Lenders as follows:
4.1 Concerning the Collateral. Debtors (a) shall fully perform all of
their duties under and in connection with each transaction to which any
Collateral relates, (b) shall promptly notify Secured Party about any change in
any fact or circumstances represented or warranted by any Debtor about any
Collateral, (c) shall promptly notify Secured Party of any claim, action, or
proceeding affecting title to any Collateral or the Security Interest and, at
Secured Party's request and Debtors' expense, appear in and defend that action
or proceeding, (d) shall hold in trust for Secured Party (as agent and
Representative of the Seasoned Warehouse Lenders) all Collateral not delivered
to Secured Party (without excusing any failure to deliver Collateral Papers to
Secured Party as required by this Agreement) and xxxx that Collateral on the
relevant Debtor's records that it is subject to the Security Interest (but the
failure to do so does not impair the Security Interest or its priority), (e)
other than collections under SECTION 4.3 below, shall pay and deliver to Secured
Party all items and types of property into which any Collateral may be converted
(all of which shall automatically be and remain subject to the Security
Interest) and properly endorse, assign, or take such other action as Secured
Party may request in order to maintain and continue the Security Interest in
that property and (f) may
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not compromise, extend, release or adjust payments on any Collateral, accept a
conveyance of mortgaged property in full or partial satisfaction of any
Collateral or release any mortgage, deed of trust, or trust deed securing or
underlying any Collateral.
4.2 Insurance. Debtors shall keep the collateral fully insured in the
amounts, against the risks, and with insurers as may be approved by Secured
Party, with loss payable to Secured Party as its interest (as agent and
Representative of Seasoned Warehouse Lenders) may appear.
4.3 Collections. Debtors shall, at their sole cost and expense, whether
requested to by Secured Party or in the absence of such a request, take all
actions reasonably necessary to obtain payment, when due and payable, of all
amounts due or to become due from Obligers with respect to any Collateral.
Debtors may not agree to any rebate, refund, compromise or extension with
respect to any Collateral or accept any prepayment on account of any Collateral
other than in a manner and to the extent consistent with or as may otherwise be
provided in various servicing agreements to which it is a party or subject.
(a) No Event of Default. While no Event of Default exists,
Debtors shall make all of those collections, shall maintain such escrow
accounts and otherwise comply with the servicing agreements to which it is a
party or subject, and may otherwise comply with the servicing agreements to
which it is a party or subject, and may otherwise retain and use the proceeds
of those collections in the ordinary course of their business.
(b) Default. While an Event of Default exists,
and upon the request of Secured Party, Debtors shall (i) notify and direct each
Obligor to make payments on the collateral to Secured Party for deposit into
such accounts as it may designate so as to be held as Collateral under this
Agreement and (ii) otherwise turn over to Secured Party, in the form received
and with any necessary endorsements, all payments they receive in respect of
any Collateral for deposit into such accounts as Secured Party may designate to
be held as collateral under this Agreement. Secured Party may at any time
apply any amounts in those accounts as a payment of the Obligations, other than
mortgage escrow payments that are deposited into escrow accounts in accordance
with the applicable Guide or servicing contract.
4.4 Concerning Debtors. Without first giving Secured Party thirty (30)
days notice (or fewer if agreed to in writing by Secured Party) of the intention
to do any of the following and performing such acts and executing and delivering
to Secured Party such additional documents as Secured Party requests in order to
continue or maintain the existence and priority of the Security Interest, no
Debtor may (a) use or transact business under any corporate, assumed, or trade
name, except as represented in the Credit Agreement, (b) relocate its chief
executive offices or principal place of business or (c) move or surrender
possession of its books and records regarding the Collateral.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES. If an Event of Default exists, then
Secured Party may, at its election (but subject to the terms and conditions of
the Credit Agreement),
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exercise any and all rights available to a secured party under the UCC, in
addition to any and all other rights afforded by the Seasoned Warehouse Loan
Documents, at law, in equity, or otherwise, including, without limitation (a)
requiring Debtors to assemble all or part of the Collateral and make it
available to Secured Party at a place to be designated by Secured Party which
is reasonably convenient to Debtors and Secured Party, (b) selling the
Collateral as provided below in this Section, (c) surrendering any policies of
insurance on all or part of the Collateral and receiving and applying the
unearned premiums as a credit on the Obligations, (d) applying by appropriate
judicial proceedings for appointment of a receiver for all or part of the
Collateral (and Debtors hereby consent to any such appointment) and (e)
applying to the Obligations any cash held by Secured Party or any Lender under
the Seasoned Warehouse Loan Documents.
5.1 Sale of Collateral. If and to the extent permitted
or required by applicable law, Secured Party may, without notice except as
hereinafter provided, sell the Collateral or any part thereof at public or
private sale (with or without appraisal or having the Collateral at the place
of sale) for cash, upon credit, or for future delivery, and at such price or
prices as Secured Party may deem best, and Secured Party (as agent and
Representative of the Seasoned Warehouse Lenders) may be the purchaser of any
and all of the Collateral so sold and may apply upon the purchase price
therefor any of the Obligations and thereafter hold the same absolutely free
from any right or claim of whatsoever kind. Secured Party is authorized at any
such sale, if Secured Party deems it advisable or is required by applicable law
so to do, (i) to restrict the prospective bidders on or purchasers of any of
the Collateral to a limited number of sophisticated investors who will
represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or resale of any of the
Collateral, (ii) to cause to be placed on certificates for any or all of the
Collateral a legend to the effect that such security has not been registered
under the Securities Act of 1933, as amended, and may not be disposed of in
violation of the provisions of said Act, and (iii) to impose such other
limitations or conditions in connection with any such sale as Secured Party
deems necessary or advisable in order to comply with said Act or any other
applicable law. Debtors agree to execute and deliver such documents and take
such other action as Secured Party deems necessary or advisable in order that
any such sale may be made in compliance with applicable law. Upon any such
sale, Secured Party shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale
shall hold the property sold absolutely free from any claim or right of
whatsoever kind, including any equity or right of redemption, stay or appraisal
which Debtors have or may have under any rule of law or statute now existing or
hereafter adopted. To the extent notice is required by applicable law, Secured
Party shall give Debtors written notice at the address set forth in the Credit
Agreement (which shall satisfy any requirement of notice or reasonable notice
in any applicable statute) of Secured Party's intention to make any such public
or private sale. Reasonable notification of the time and place of any public
sale of the collateral, or reasonable notification of the time after which any
private sale or other intended disposition of the Collateral is to be made,
shall be sent to the affected Debtor and to any other Person entitled to notice
under the UCC. If any Collateral threatens to decline speedily in value or is
of the type customarily sold on a recognized market, Secured Party may sell or
otherwise dispose of the Collateral without notification, advertisement, or
other notice of any kind. Notice sent or given not less than five (5) calendar
days before the taking of the action to which the notice relates is reasonable
notification and
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notice for the purposes of this Section. Such notice (if any is required by
applicable law), in case of public sale, shall state the time and place fixed
for such sale or, in case of private sale or other disposition other than a
public sale, the time after which the private sale or other such disposition is
to be made. Any public sale shall be held at such time or times, within
ordinary business hours and at such place or places, as Secured Party may fix
in the notice of such sale. At any sale the Collateral may be sold in one lot
as an entirety or in separate parcels as Secured Party may determine. Secured
Party shall not be obligated to make any sale pursuant to any such notice.
Secured Party may, without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by announcement at any
time and place fixed for such sale, and such sale may be made at any time or
place to which the same may be so adjourned. In case of any sale of all or any
part of the Collateral on credit or for future delivery, the Collateral so sold
may be retained by Secured Party until the selling price is paid by the
purchaser thereof, but Secured Party shall incur no liability in case of the
failure of such purchaser to take up and pay for the Collateral so sold, and in
case of any such failure, such Collateral may again be sold upon like notice.
Each and every method of disposition described in this Section shall constitute
disposition in a commercially reasonable manner. Debtors shall remain jointly
and severally liable for any deficiency. The Companies hereby acknowledge and
agree that Mortgage Loans and Mortgage Securities are property of a type
customarily sold on a recognized market. The Companies also hereby agree that
any sale of a Mortgage Loan or Mortgage Security pursuant to a Take-out
Commitment, and any other sale of Collateral arranged by any Company (whether
before or after an Event of Default), shall be conclusively presumed to be
commercially reasonable.
5.2 Additional Rights of Secured Party. Secured Party shall have all
the rights of a secured party after default under the Uniform Commercial Code of
Texas and in conjunction with, in addition to or in substitution for those
rights and remedies:
(a) it shall not be necessary that the Collateral or any part
thereof be present at the location of any sale pursuant to the provisions of
this Section;
(b) before application of proceeds of disposition of the Collateral
to the Obligations, such proceeds shall be applied to the reasonable expenses of
retaking, holding, preparing for sale or lease, selling, leasing and the like
and the reasonable attorneys' fees and legal expenses incurred by Secured Party,
each Debtor, to the extent applicable, to remain liable for any deficiency;
(c) the sale by Secured Party of less than the whole of the
Collateral shall not exhaust the rights of Secured Party hereunder, and Secured
Party is specifically empowered to make successive sale or sales hereunder until
the whole of the Collateral shall be sold; and, if the proceeds of such sale of
less than the whole of the Collateral shall be less than the aggregate of the
Obligations, this Agreement and the Security Interest created hereby shall
remain in full force and effect as to the unsold portion of the Collateral just
as though no sale had been made;
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(d) in the event any sale hereunder is not completed or is
defective in the opinion of Secured Party, such sale shall not exhaust the
rights of Secured Party hereunder and Secured Party shall have the right to
cause a subsequent sale or sales to be made hereunder;
(e) any and all statements of fact or other recitals made
in any xxxx of sale or assignment or other instrument evidencing any foreclosure
sale hereunder as to nonpayment of any indebtedness or as to the occurrence of
any default, or as to Secured Party having declared all of such indebtedness to
be due and payable, or as to notice of time, place and terms of sale and the
Collateral to be sold having been duly given, as to any other act or thing
having been duly done by Secured Party, shall be taken as prima facie evidence
of the truth of the facts so stated and recited;
(f) Secured Party may appoint or delegate any one or more
persons as agent to perform any act or acts necessary or incident to any sale
held by Secured Party, including the sending of notices and the conduct of sale,
but in the name and on behalf of Secured Party; and
(g) demand of performance, advertisement and presence of
property at sale are hereby WAIVED and Secured Party (as agent and
Representative of the Seasoned Warehouse Lenders) is hereby authorized to sell
hereunder any evidence of debt it may hold as security for the Obligations. All
demands and presentments of any kind or nature are expressly WAIVED by Debtors.
Debtors WAIVE the right to require Secured Party to pursue any other remedy for
the benefit of Debtors and agree that Secured Party may proceed against any
Debtor for the amount of the Obligations owed to the Seasoned Warehouse Lenders
or the Seasoned Warehouse Agent without taking any action against any other
Debtor or any other Person and without selling or otherwise proceeding against
or applying any of the Collateral.
5.3 Application of Proceeds. Secured Party shall apply the
proceeds of any sale or other disposition of the collateral under this SECTION 5
in the order and manner specified in SECTION 13.9 of the Credit Agreement. Any
surplus remaining shall be delivered to the relevant Debtor or as a court of
competent jurisdiction may direct. If the proceeds are insufficient to pay the
Obligations in full, Debtors remain liable for any deficiency.
SECTION 6. OTHER RIGHTS.
6.1 Performance. If Debtors fail to pay when due all Taxes on
any of the Collateral, or to preserve the priority of the Security Interest in
any of the Collateral, or to keep the Collateral insured as required by this
Agreement, or otherwise fail to perform any of their obligations under any
Seasoned Warehouse Loan Documents or Collateral Papers with respect to the
Collateral, then Secured Party may, at its option, but without being required to
do so, pay such Taxes, prosecute or defend any suits in relation to the
Collateral, or insure and keep insured the Collateral in any amount deemed
appropriate by Secured Party, or take all other action which Debtors are
required, but have failed or refused, to take under the Seasoned Warehouse Loan
Documents or Collateral Papers. Any sum which may be expended or paid by
Secured Party under this Section (including, without limitation, court costs and
attorneys' fees) shall bear interest from the dates of expenditure or
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payment at the Past Due Rate until paid and, together with such interest, shall
be payable by Debtors to Secured Party upon demand and is part of the
Obligations.
6.2 Collection.
(a) Actions. When Secured Party is entitled under
SECTION 4.3 above to make collection on any Collateral, it may in its own name
or in the name of any Debtor (i) compromise or extend the time of payment with
respect to any Collateral for such amounts and upon such terms as Secured Party
may determine, (ii) demand, collect, receive, receipt for, xxx for, compound,
and give acquittance for any and all amounts due or to become due with respect
to Collateral, (iii) take control of cash and other proceeds of any Collateral,
(iv) endorse any Debtor's name on any notes, acceptances, checks, drafts, money
orders, or other evidences of payment on Collateral that may come into Secured
Party's possession, (v) sign any Debtor's name on any invoice or xxxx of lading
relating to any Collateral, on any drafts against Obligors or other Persons
making payment with respect to Collateral, on assignments and verifications of
accounts or other Collateral and on notices to Obligors making payment with
respect to Collateral, (vi) send requests for verification or obligations to any
Obligor, (vii) do all other acts and things necessary to carry out the intent of
this Agreement, and (viii) authorize any Servicer in respect of any Collateral
to perform any one or more of the foregoing on Secured Party's behalf.
(a) If any Obligor fails or refuses to make payment on
any Collateral when due, Secured Party is authorized, in its sole discretion,
either in its name or in any Debtor's name, to take such action as Secured Party
deems appropriate for the collection of any amounts owed with respect to
Collateral or upon which a delinquency exists. Regardless of any other
provision, however, Secured Party is never liable for its failure to collect, or
for its failure to exercise diligence in the collection of, any amounts owed
with respect to Collateral and is not under any duty whatever to anyone except
Debtors and the Seasoned Warehouse Lenders to account for funds that it actually
receives. Without limiting the generality of the foregoing, Secured Party has
no responsibility for ascertaining any maturities, calls, conversions,
exchanges, offers, tenders, or similar matters relating to any Collateral, or
for informing Debtors with respect to any of such matters (irrespective of
whether Secured Party actually has, or may be deemed to have, knowledge
thereof). Secured Party's receipt to any Obligor is a full and complete
release, discharge, and acquittance to that Obligor, to the extent of any amount
so paid to Secured Party.
6.3 Power of Attorney. Each Debtor irrevocably appoints
Secured Party, acting on behalf of Seasoned Warehouse Lenders, as its
attorney-in-fact (with full power of substitution) for, on behalf, and in the
name of such Debtor to (a) endorse and deliver to any Person any check,
instrument, or other document received by Secured Party or any Lender that
represents payment in respect of any Collateral, (b) prepare, complete, execute,
deliver, and record any assignment of any mortgage, deed of trust, or trust deed
securing any Collateral, (c) endorse and deliver or otherwise transfer any
promissory note evidencing any Collateral and do every other thing necessary or
desirable to effect transfer of all or any Collateral, (d) take all necessary
and appropriate action with respect to any of the Obligations or any Collateral,
(e) commence, prosecute, settle, discontinue,
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defend, or otherwise dispose of any claim relating to any Collateral, and (f)
sign such Debtor's name wherever appropriate to effect the performance of this
Agreement and the Credit Agreement. This Section shall be liberally, not
restrictively, construed to give the greatest latitude to Secured Party's power
as such Debtor's attorney-in-fact to collect, sell and deliver any Collateral
and all documents relating to it. The powers and authorities conferred on
Secured Party in this Section (w) are discretionary and not obligatory on the
part of Secured Party, (x) may be exercised by Secured Party through any Person
who, at the time of the execution of particular documents, is an officer of
Secured Party, (y) may not be exercised by Secured Party unless a Default or an
Event of Default exists, and (z) is granted for a valuable consideration,
coupled with an interest, and irrevocable until, and all Persons dealing with
Secured Party, any of its officers acting under this Section, or any substitute
are fully protected in treating the powers and authorities conferred by this
Section as existing and continuing in full force and effect until advised by
Secured Party that, all commitments under the Credit Agreement to extend credit
have been terminated or canceled and the Obligations are fully paid and
performed.
SECTION 7. MISCELLANEOUS.
7.1 Miscellaneous. Because this Agreement is a "Warehouse Loan Document"
referred to in the Credit Agreement, the provisions relating to Seasoned
Warehouse Loan Documents in SECTIONS 1 and 16 of the Credit Agreement are
incorporated into this Agreement by reference the same as if included in this
Agreement verbatim.
7.2 Term. This Agreement terminates upon full and indefeasible payment
and performance of the Obligations. No Obligor is ever obligated to make
inquiry of the termination but is fully protected in making any payments on the
Collateral directly to Secured Party.
7.3 Matters Not Relevant. The Security Interest, Debtors' obligations,
and Secured Party's and Seasoned Warehouse Lenders' rights under this Agreement
are not released, diminished, impaired, or adversely affected by any one or more
of the following: (a) Secured Party's or any Lender's taking or accepting any
additional, or any release, surrender, exchange, subordination, or loss of any
other, guaranty, assurance, or security for any of the Obligations; (b) any full
or partial release of any other Person obligated on any of the Obligations; (c)
the modification or assignment of, or waiver of compliance with, any other Loan
Document; (d) any present or future insolvency, bankruptcy, or lack of
corporate, partnership, or trust power of any other Person obligated on any of
the Obligations; (e) any renewal, extension or rearrangement of any of the
Obligations, or any adjustment, indulgence, forbearance, or compromise granted
to any Person obligated on any of the Obligations; (f) any Person's neglect,
delay, omission, failure, or refusal to take or prosecute any action in
connection with any of the Obligations; (g) any existing or future right, claim
or defense (other than the defense of full and final payment of the Obligations)
of any Debtor or any other Person against Secured Party or any Lender; (h) the
unenforceability of any of the Obligations against any Person obligated or any
part of the Obligations because it exceeds the amount permitted by Law, the act
of creating it is ultra xxxxx, or the officers, partners, or trustees creating
it exceeded their authority or violated their fiduciary duties, or otherwise;
(i) any payment of the Obligations is
10
261
held to constitute a preference under any Debtor Law or for any other reason
Secured Party of any Lender is required to refund any payment or make payment
to another Person; or (j) any Person's failure to notify any Debtor about the
foregoing events or occurrences; and each Debtor waives any notice of any kind
under any circumstances whatsoever with respect to this Agreement or any of the
Obligations other than as specifically provided in this Agreement.
7.4 Waivers. Except to the extent expressly otherwise provided in the
Seasoned Warehouse Loan Documents, each Debtor waives (a) any right to require
Secured Party or any Lender to proceed against any other Person, to exhaust its
rights in the Collateral, or to pursue any other right which Secured Party or
any Lender may have, and (b) all rights of marshaling in respect of the
Collateral.
7.5 Financing Statement. Secured Party may, at any time, file this
Agreement or a carbon photographic, or other reproduction of this Agreement as a
financing statement, but Secured Party's failure to do so does not impair the
validity or enforceability of this Agreement.
7.6 Parties. This Agreement binds and benefits Debtors, Secured Party
and each Seasoned Warehouse Lender, and their respective successors and
permitted assigns. Only those Persons may rely or raise any defense about this
Agreement.
(a) Assignments. Debtors may not assign any rights or obligations
under this Agreement without first obtaining the written consent of Secured
Party and all Seasoned Warehouse Lenders. Secured Party's rights under this
Agreement may be assigned to any successor agent appointed under the Credit
Agreement.
(b) Secured Party. Secured Party is the agent for each Seasoned
Warehouse Lender. Secured Party may, without the joinder of any Seasoned
Warehouse Lender, exercise any rights in favor of any of them under this
Agreement. The rights of Secured Party and Seasoned Warehouse Lenders vis-a-vis
each other may be subject to other agreements between them. Neither Debtors nor
their respective successors or permitted assigns need to inquire about any such
agreement or be subject to the terms of it unless they join in it and,
therefore, are not entitled to the benefits of any such agreement or entitled to
rely upon or raise as a defense the failure of any party to comply with it.
7.7 Entire Agreement. THIS AGREEMENT AND THE OTHER SEASONED WAREHOUSE
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUSLY, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
The remainder of this page is intentionally blank
11
262
EXECUTED as of the date first stated above.
MCA FINANCIAL CORP., TEXAS COMMERCE BANK NATIONAL
MCA MORTGAGE CORPORATION, ASSOCIATION, in its capacity as
MORTGAGE CORPORATION OF Seasoned Warehouse Agent and
AMERICA, as Debtors as Secured Party
By: Xxx X. Xxxxx By: Xxxxxx X. Xxxxxxx
------------------------- -----------------------------
Name: XXX X. XXXXX Name: XXXXXX X. XXXXXXX
----------------------- ---------------------------
Title: PRESIDENT Title: VICE PRESIDENT
---------------------- --------------------------
12
263
MORTGAGE CORPORATION OF
AMERICA, INC., as Debtor
By: Xxx X. Xxxxx
------------------------------
Name: XXX X. XXXXX
----------------------------
Title: PRESIDENT
---------------------------
13
264
SCHEDULE I TO SEASONED WAREHOUSE SECURITY AGREEMENT
PLACE OF BUSINESS, TRADE NAMES AND FORMER NAMES
OF BORROWERS
STATE OF STATES
NAME AND TAXPAYER I.D. OWNERSHIP INCORPORATION QUALIFIED AS
FOREIGN CORP.
--------------------------------------------------------------------------------------
MCA Financial Approximately 523,283 shares Michigan None
Corporation owned by various individuals
00-0000000 and entities disclosed to
the Seasoned Warehouse Agent
on a separate schedule
--------------------------------------------------------------------------------------
MCA Mortgage MCA Financial Corp. Michigan See attached
Corporation list
00-0000000
--------------------------------------------------------------------------------------
Mortgage Corporation MCA Financial Corp. Michigan Indiana, Ohio
of America
00-0000000
--------------------------------------------------------------------------------------
Mortgage Corporation Mortgage Corporation of Ohio None
of America, Inc. America
00-0000000
--------------------------------------------------------------------------------------
STILL USING OTHER
NAME AND TAXPAYER I.D. TRADE NAME? CHIEF EXECUTIVE PRINCIPAL
NAMES USED Y/N OFFICE OFFICES
--------------------------------------------------------------------------------------
MCA Financial None No 23999 Northwestern None
Corporation Hwy.
00-0000000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
MCA Mortgage Xxxx Xx 00000 Xxxxxxxxxxxx Xxxx
Corporation Xxx.
00-0000000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
Mortgage Corporation Xxxx Xx 00000 Xxxxxxxxxxxx Xxxx
of America Hwy.
00-0000000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
Mortgage Corporation None No 00000 Xxxxxxxxxxxx Xxxx
xx Xxxxxxx, Inc. Xxx.
00-0000000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
265
MCA MORTGAGE CORPORATION
STATES WHERE MCAMC IS LICENSED TO ORIGINATE
OR ACQUIRE FIRST MORTGAGE LOANS
(OR IS EXEMPT FROM LICENSING)
OK TO ORIGINATE OK TO ACQUIRE LOANS FUNDED & CLOSED
BY LICENSED BROKER OR LENDER
Alabama Alabama
Alaska Alaska
Arkansas Arkansas
Arizona Arizona
California* California**
Colorado Colorado
Florida Connecticut
Georgia Delaware
Illinois Georgia
Indiana Florida
Kentucky Idaho
Louisiana Illinois
Michigan Indiana
Minnesota Kentucky
Mississippi Louisiana
Missouri Maryland
New Mexico Massachusetts
North Carolina Michigan
Ohio Minnesota
Pennsylvania Mississippi
South Carolina Missouri
Tennessee Montana
Texas New Jersey
Utah New Mexico
Virginia New York
Washington North Carolina
West Virginia North Dakota
Wisconsin* Ohio
Oregon
Pennsylvania
Rhode Island
South Carolina
Tennessee
Texas
Utah
Vermont
Xxxxxxxx
Xxxxxxxxxx
West Virginia
Wisconsin
* Loan officer must also have license to work directly with borrower
** OK to table-fund and close in MCAMC's name on brokered loans
266
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
----------------------------------------------------------------------------------
DEBTOR'S NAME AND MAILING ADDRESS: MCA Financial Corp.
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
FED. TAX ID NO. 00-0000000
----------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING Texas Commerce Bank National Association, as
ADDRESS: Warehouse Agent(1)
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
FED. TAX ID NO. 00-0000000
----------------------------------------------------------------------------------
FOR FILING OFFICER:
----------------------------------------------------------------------------------
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE
BY DEBTOR (THE "COLLATERAL"):
- Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Second Mortgage Loans from time to time identified to Secured
Party as Collateral.
- Construction Loans from time to time identified to Secured Party
as Collateral.
- Land Contracts from time to time identified to Secured Party as
Collateral.
- All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust,
or trust deeds securing, those Mortgage Loans, Second Mortgage
Loans or Construction Loans, and all Land Contracts, whether
deposited with or held by or for Secured Party or otherwise.
- Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all
commitments issued by FHA to insure or issued by VA to guarantee,
any Mortgage Loans or Construction Loans identified as
Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- Casualty insurance assigned to Debtor in connection with any
Mortgage Collateral identified as Collateral.
----------------
(1) Secured Party is serving as Warehouse Agent under the
Seasoned Credit Agreement, and the security interest
evidenced by this financing statement, as amended from time
to time, is granted to Secured Party in that capacity and as
secured party on behalf of all of the Seasoned Warehouse
Lenders, including Texas Commerce
267
- Mortgage Securities deposited with or held by or for Secured Party
under the Seasoned Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Seasoned Warehouse Loan
Documents.
- Guaranties related to Mortgage Securities identified as Collateral.
- Any take-out commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities, as
the case may be, to the investors or other purchasers under those
take-out commitments, and all proceeds resulting from the sale of any
of those Mortgage Loans, Construction Loans, Second Mortgage Loans or
Mortgage Securities under those take-out commitments.
- Any Collateral otherwise described in the security agreement to which
this financing statement relates that may from time to time be
delivered (a) to an investor (or its custodian or other designee)
under Section 3.1 of the Custody Agreement until purchased and paid
for by that investor or (b) to a Company for correction or servicing
under Section 3.2 of the Custody Agreement.
- The Seasoned Warehouse Note Payment/Funding Account, all other
accounts that Debtor maintains with Secured Party, Seasoned Warehouse
Agent, or any Lender, and all amounts deposited in them or represented
by them.
- Personal property, contract rights, accounts, and general intangibles
of any kind whatsoever relating to any Collateral.
- All files, surveys, certificates, correspondence, appraisals, tapes,
discs, cards, accounting records, and other information and data of
Debtor relating to any Collateral, including, without limitation, all
information, data, tapes, discs, and cards necessary to administer and
service any Collateral.
- Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
MCA FINANCIAL CORP. TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Seasoned Warehouse
Agent for Seasoned Warehouse Lenders
By Xxxxx X. Xxxxxxx By Xxxxxx X. Xxxxxxx
-------------------------------- ------------------------------------
(Name) XXXXX X. XXXXXXX (Name) XXXXXX X. XXXXXXX
-------------------------------- --------------------------------
(Title) EVP (Title) VICE PRESIDENT
--------------------------- -------------------------------
268
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
MCA FINANCIAL CORP., AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS SEASONED WAREHOUSE AGENT, AS SECURED PARTY
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CREDIT AGREEMENT" means the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 among the Companies, Texas
Commerce Bank National Association, as a Seasoned Warehouse Lender and as agent
for the other Seasoned Warehouse Lenders, and the other Seasoned Warehouse
Lenders.
"CUSTODY AGREEMENT" means the Seasoned Warehouse Custody Agreement of even
date herewith between the Companies and the Custodian, as it may be
supplemented, amended or restated from time to time. By this reference, the
Custody Agreement is incorporated into this Agreement; provided that, in
interpreting this Agreement or any of the other Seasoned Warehouse Loan
Documents except the Custody Agreement itself, definitions of terms in this
Agreement will control over any inconsistent definitions in the Custody
Agreement.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed to
sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"OBLIGATIONS" means the principal of and interest on the Seasoned
Warehouse Revolving Loans, and, without duplication, all other indebtedness,
obligations and liabilities of the Borrowers to the Seasoned Warehouse Lenders
and the Seasoned Warehouse Agent under or arising out of or in connection with
this Agreement or any other Seasoned Warehouse Loan Documents (including
indemnities, fees and expenses), whether now existing or hereafter incurred,
direct or indirect, absolute or contingent, matured or unmatured, joint or
several, whether for principal, interest,
269
reimbursement obligations, fees, expenses or otherwise, and the due performance
and compliance with the terms and conditions of this Agreement and the other
Seasoned Warehouse Loan Documents by the Borrowers and also includes amounts
that would become due but for operation of 11 U.S.C. Sections 502 and 503 or any
other provision of Title 11 of the United States Code, pre- and post-maturity
interest on any of the foregoing, including all post-petition interest if any
Company voluntarily or involuntarily files for protection under any Debtor Law,
and all renewals, extensions, and modifications of any of the foregoing.
"SEASONED WAREHOUSE LOAN DOCUMENTS" means (a) the Credit Agreement,
certificates and reports delivered under the Credit Agreement, and exhibits and
schedules to the Credit Agreement, (b) all agreements, documents, and
instruments in favor of the Seasoned Warehouse Agent, the Custodian or the
Seasoned Warehouse Lenders (or the Seasoned Warehouse Agent or Custodian on
behalf of the Seasoned Warehouse Lenders) ever delivered under this Agreement
or otherwise delivered in connection with any of the Obligations and (c) all
renewals, extensions, and restatements of, and amendments and supplements to,
any of the foregoing.
"SEASONED WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers'
non-interest bearing demand checking account no. 0010-0000000 to be maintained
with Texas Commerce.
"SEASONED WAREHOUSE REVOLVING LOAN" means a loan made by the Seasoned
Warehouse Lenders and disbursed by the Seasoned Warehouse Agent to the
Borrowers under Section 3.1 of the Credit Agreement on a Disbursement Date.
"VA" means the U.S. Department of Veterans Affairs.
2
270
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
----------------------------------------------------------------------------------
DEBTOR'S NAME AND MAILING ADDRESS: MCA Financial Corp.
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
FED. TAX ID NO. 00-0000000
----------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING Texas Commerce Bank National Association, as
ADDRESS: Seasoned Warehouse Agent(1)
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
FED. TAX ID NO. 00-0000000
----------------------------------------------------------------------------------
FOR FILING OFFICER:
----------------------------------------------------------------------------------
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE
BY DEBTOR (THE "COLLATERAL"):
- Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Second Mortgage Loans from time to time identified to Secured
Party as Collateral.
- Construction Loans from time to time identified to Secured Party
as Collateral.
- Land Contracts from time to time identified to Secured Party as
Collateral.
- All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust,
or trust deeds securing, those Mortgage Loans, Second Mortgage
Loans or Construction Loans, and all Land Contracts, whether
deposited with or held by or for Secured Party or otherwise.
- Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all
commitments issued by FHA to insure or issued by VA to guarantee,
any Mortgage Loans or Construction Loans identified as
Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- Casualty insurance assigned to Debtor in connection with any
Mortgage Collateral identified as Collateral.
----------------
(1) Secured Party is serving as Seasoned Warehouse Agent under
the Credit Agreement, and the security interest
evidenced by this financing statement, as amended from time
to time, is granted to Secured Party in that capacity and as
secured party on behalf of all of the Seasoned Warehouse
Lenders, including Texas Commerce
271
- Mortgage Securities deposited with or held by or for Secured Party
under the Seasoned Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Seasoned Warehouse Loan
Documents.
- Guaranties related to Mortgage Securities identified as Collateral.
- Any take-out commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities, as
the case may be, to the investors or other purchasers under those
take-out commitments, and all proceeds resulting from the sale of any
of those Mortgage Loans, Construction Loans, Second Mortgage Loans or
Mortgage Securities under those take-out commitments.
- Any Collateral otherwise described in the security agreement to which
this financing statement relates that may from time to time be
delivered (a) to an investor (or its custodian or other designee)
under Section 3.1 of the Custody Agreement until purchased and paid
for by that investor or (b) to a Company for correction or servicing
under Section 3.2 of the Custody Agreement.
- The Seasoned Warehouse Note Payment/Funding Account, all other
accounts that Debtor maintains with Secured Party, Seasoned Warehouse
Agent, or any Lender, and all amounts deposited in them or represented
by them.
- Personal property, contract rights, accounts, and general intangibles
of any kind whatsoever relating to any Collateral.
- All files, surveys, certificates, correspondence, appraisals, tapes,
discs, cards, accounting records, and other information and data of
Debtor relating to any Collateral, including, without limitation, all
information, data, tapes, discs, and cards necessary to administer and
service any Collateral.
- Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
MCA MORTGAGE CORPORATION TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Seasoned Warehouse
Agent for Seasoned Warehouse Lenders
By Xxx X. Xxxxx By Xxxxxx X. Xxxxxxx
-------------------------------- ------------------------------------
(Name) XXX X. XXXXX (Name) XXXXXX X. XXXXXXX
-------------------------------- --------------------------------
(Title) PRESIDENT (Title) VICE PRESIDENT
--------------------------- -------------------------------
272
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
MCA MORTGAGE CORPORATION, AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS SEASONED WAREHOUSE AGENT, AS SECURED PARTY
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CREDIT AGREEMENT" means the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 among the Companies, Texas
Commerce Bank National Association, as a Seasoned Warehouse Lender and as agent
for the other Seasoned Warehouse Lenders, and the other Seasoned Warehouse
Lenders.
"CUSTODY AGREEMENT" means the Seasoned Warehouse Custody Agreement of even
date herewith between the Companies and the Custodian, as it may be
supplemented, amended or restated from time to time. By this reference, the
Custody Agreement is incorporated into this Agreement; provided that, in
interpreting this Agreement or any of the other Seasoned Warehouse Loan
Documents except the Custody Agreement itself, definitions of terms in this
Agreement will control over any inconsistent definitions in the Custody
Agreement.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed to
sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"OBLIGATIONS" means the principal of and interest on the Seasoned
Warehouse Revolving Loans, and, without duplication, all other indebtedness,
obligations and liabilities of the Borrowers to the Seasoned Warehouse Lenders
and the Seasoned Warehouse Agent under or arising out of or in connection with
this Agreement or any other Seasoned Warehouse Loan Documents (including
indemnities, fees and expenses), whether now existing or hereafter incurred,
direct or indirect, absolute or contingent, matured or unmatured, joint or
several, whether for principal, interest,
273
reimbursement obligations, fees, expenses or otherwise, and the due performance
and compliance with the terms and conditions of this Agreement and the other
Seasoned Warehouse Loan Documents by the Borrowers and also includes amounts
that would become due but for operation of 11 U.S.C. Sections 502 and 503 or
any other provision of Title 11 of the United States Code, pre- and
post-maturity interest on any of the foregoing, including all post-petition
interest if any Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"SEASONED WAREHOUSE LOAN DOCUMENTS" means (a) the Credit Agreement,
certificates and reports delivered under the Credit Agreement, and exhibits and
schedules to the Credit Agreement, (b) all agreements, documents, and
instruments in favor of the Seasoned Warehouse Agent, the Custodian or the
Seasoned Warehouse Lenders (or the Seasoned Warehouse Agent or Custodian on
behalf of the Seasoned Warehouse Lenders) ever delivered under this Agreement
or otherwise delivered in connection with any of the Obligations and (c) all
renewals, extensions, and restatements of, and amendments and supplements to,
any of the foregoing.
"SEASONED WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers'
non-interest bearing demand checking account no. 0010-0000000 to be maintained
with Texas Commerce.
"SEASONED WAREHOUSE REVOLVING LOAN" means a loan made by the Seasoned
Warehouse Lenders and disbursed by the Seasoned Warehouse Agent to the
Borrowers under SECTION 3.1 of the Credit Agreement on a Disbursement Date.
"VA" means the U.S. Department of Veterans Affairs.
2
274
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
----------------------------------------------------------------------------------
DEBTOR'S NAME AND MAILING ADDRESS: Mortgage Corporation of America
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
FED. TAX ID NO. 00-0000000
----------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING Texas Commerce Bank National Association, as
ADDRESS: Seasoned Warehouse Agent(1)
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
FED. TAX ID NO. 00-0000000
----------------------------------------------------------------------------------
FOR FILING OFFICER:
----------------------------------------------------------------------------------
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE
BY DEBTOR (THE "COLLATERAL"):
- Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Second Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Construction Loans from time to time identified to Secured Party as
Collateral.
- Land Contracts from time to time identified to Secured Party as
Collateral.
- All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust, or
trust deeds securing, those Mortgage Loans, Second Mortgage Loans or
Construction Loans, and all Land Contracts, whether deposited with or
held by or for Secured Party or otherwise.
- Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all commitments
issued by FHA to insure or issued by VA to guarantee, any Mortgage
Loans or Construction Loans identified as Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- Casualty insurance assigned to Debtor in connection with any
Mortgage Collateral identified as Collateral.
----------------
(1) Secured Party is serving as Seasoned Warehouse Agent under the
Credit Agreement, and the security interest evidenced by this
financing statement, as amended from time to time, is
granted to Secured Party in that capacity and as secured
party on behalf of all of the Seasoned Warehouse Lenders,
including Texas Commerce
275
- Mortgage Securities deposited with or held by or for Secured Party
under the Seasoned Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Seasoned Warehouse Loan
Documents.
- Guaranties related to Mortgage Securities identified as Collateral.
- Any take-out commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities, as
the case may be, to the investors or other purchasers under those
take-out commitments, and all proceeds resulting from the sale of any
of those Mortgage Loans, Construction Loans, Second Mortgage Loans or
Mortgage Securities under those take-out commitments.
- Any Collateral otherwise described in the security agreement to which
this financing statement relates that may from time to time be
delivered (a) to an investor (or its custodian or other designee)
under Section 3.1 of the Custody Agreement until purchased and paid
for by that investor or (b) to a Company for correction or servicing
under Section 3.2 of the Custody Agreement.
- The Seasoned Warehouse Note Payment/Funding Account, all other
accounts that Debtor maintains with Secured Party, Seasoned Warehouse
Agent, or any Lender, and all amounts deposited in them or represented
by them.
- Personal property, contract rights, accounts, and general intangibles
of any kind whatsoever relating to any Collateral.
- All files, surveys, certificates, correspondence, appraisals, tapes,
discs, cards, accounting records, and other information and data of
Debtor relating to any Collateral, including, without limitation, all
information, data, tapes, discs, and cards necessary to administer and
service any Collateral.
- Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
MORTGAGE CORPORATION OF AMERICA TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as Seasoned
Warehouse Agent for Seasoned
Warehouse Lenders
By Xxxxx X. Xxxxxxx By Xxxxxx X. Xxxxxxx
------------------------------- -------------------------------
(Name) XXXXX X. XXXXXXX (Name) XXXXXX X. XXXXXXX
--------------------------- ---------------------------
(Title) VP (Title) VICE PRESIDENT
-------------------------- --------------------------
2
276
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
MORTGAGE CORPORATION OF AMERICA, AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS SEASONED WAREHOUSE AGENT, AS SECURED PARTY
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CREDIT AGREEMENT" means the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 among the Companies, Texas
Commerce Bank National Association, as a Seasoned Warehouse Lender and as agent
for the other Seasoned Warehouse Lenders, and the other Seasoned Warehouse
Lenders.
"CUSTODY AGREEMENT" means the Seasoned Warehouse Custody Agreement of even
date herewith between the Companies and the Custodian, as it may be
supplemented, amended or restated from time to time. By this reference, the
Custody Agreement is incorporated into this Agreement; provided that, in
interpreting this Agreement or any of the other Seasoned Warehouse Loan
Documents except the Custody Agreement itself, definitions of terms in this
Agreement will control over any inconsistent definitions in the Custody
Agreement.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed to
sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"OBLIGATIONS" means the principal of and interest on the Seasoned
Warehouse Revolving Loans, and, without duplication, all other indebtedness,
obligations and liabilities of the Borrowers to the Seasoned Warehouse Lenders
and the Seasoned Warehouse Agent under or arising out of or in connection with
this Agreement or any other Seasoned Warehouse Loan Documents (including
indemnities, fees and expenses), whether now existing or hereafter incurred,
direct or indirect, absolute or contingent, matured or unmatured, joint or
several, whether for principal, interest,
277
reimbursement obligations, fees, expenses or otherwise, and the due performance
and compliance with the terms and conditions of this Agreement and the other
Seasoned Warehouse Loan Documents by the Borrowers and also includes amounts
that would become due but for operation of 11 U.S.C. Sections 502 and 503 or
any other provision of Title 11 of the United States Code, pre- and
post-maturity interest on any of the foregoing, including all post-petition
interest if any Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"SEASONED WAREHOUSE LOAN DOCUMENTS" means (a) the Credit Agreement,
certificates and reports delivered under the Credit Agreement, and exhibits and
schedules to the Credit Agreement, (b) all agreements, documents, and
instruments in favor of the Seasoned Warehouse Agent, the Custodian or the
Seasoned Warehouse Lenders (or the Seasoned Warehouse Agent or Custodian on
behalf of the Seasoned Warehouse Lenders) ever delivered under this Agreement
or otherwise delivered in connection with any of the Obligations and (c) all
renewals, extensions, and restatements of, and amendments and supplements to,
any of the foregoing.
"SEASONED WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers'
non-interest bearing demand checking account no. 0010-0000000 to be maintained
with Texas Commerce.
"SEASONED WAREHOUSE REVOLVING LOAN" means a loan made by the Seasoned
Warehouse Lenders and disbursed by the Seasoned Warehouse Agent to the
Borrowers under SECTION 3.1 of the Credit Agreement on a Disbursement Date.
"VA" means the U.S. Department of Veterans Affairs.
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278
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
--------------------------------------------------------------------------------
DEBTOR'S NAME AND MAILING ADDRESS: Mortgage Corporation of America, Inc.
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
FED. TAX ID NO. 00-0000000
--------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING ADDRESS: Texas Commerce Bank National
Association, as Seasoned Warehouse
Agent(1)
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
FED. TAX ID NO. 00-0000000
--------------------------------------------------------------------------------
FOR FILING OFFICER:
--------------------------------------------------------------------------------
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE BY
DEBTOR (THE "COLLATERAL"):
- Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Second Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Construction Loans from time to time identified to Secured Party as
Collateral.
- Land Contracts from time to time identified to Secured Party as
Collateral.
- All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust, or
trust deeds securing, those Mortgage Loans, Second Mortgage Loans or
Construction Loans, and all Land Contracts, whether deposited with or
held by or for Secured Party or otherwise.
- Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all commitments
issued by FHA to insure or issued by VA to guarantee, any Mortgage
Loans or Construction Loans identified as Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- Casualty insurance assigned to Debtor in connection with any Mortgage
Collateral identified as Collateral.
----------------
(1) Secured Party is serving as Seasoned Warehouse Agent under the
Credit Agreement, and the security interest evidenced by this
financing statement, as amended from time to time, is granted to
Secured Party in that capacity and as secured party on behalf of
all of the Seasoned Warehouse Lenders, including Texas Commerce
279
- Mortgage Securities deposited with or held by or for Secured Party
under the Seasoned Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Seasoned Warehouse Loan
Documents.
- Guaranties related to Mortgage Securities identified as Collateral.
- Any take-out commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities, as
the case may be, to the investors or other purchasers under those
take-out commitments, and all proceeds resulting from the sale of any
of those Mortgage Loans, Construction Loans, Second Mortgage Loans or
Mortgage Securities under those take-out commitments.
- Any Collateral otherwise described in the security agreement to which
this financing statement relates that may from time to time be
delivered (a) to an investor (or its custodian or other designee)
under Section 3.1 of the Custody Agreement until purchased and paid
for by that investor or (b) to a Company for correction or servicing
under Section 3.2 of the Custody Agreement.
- The Seasoned Warehouse Note Payment/Funding Account, all other
accounts that Debtor maintains with Secured Party, Seasoned Warehouse
Agent, or any Lender, and all amounts deposited in them or represented
by them.
- Personal property, contract rights, accounts, and general intangibles
of any kind whatsoever relating to any Collateral.
- All files, surveys, certificates, correspondence, appraisals, tapes,
discs, cards, accounting records, and other information and data of
Debtor relating to any Collateral, including, without limitation, all
information, data, tapes, discs, and cards necessary to administer and
service any Collateral.
- Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
MORTGAGE CORPORATION OF AMERICA, INC. TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Seasoned
Warehouse Agent for Seasoned
Warehouse Lenders
By Xxx X. Xxxxx By Xxxxxx X. Xxxxxxx
------------------------------- -------------------------------
(Name) XXX X. XXXXX (Name) XXXXXX X. XXXXXXX
--------------------------- ---------------------------
(Title) PRESIDENT (Title) VICE PRESIDENT
-------------------------- --------------------------
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280
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
MORTGAGE CORPORATION OF AMERICA, INC., AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS SEASONED WAREHOUSE AGENT, AS SECURED PARTY
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CREDIT AGREEMENT" means the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 among the Companies, Texas
Commerce Bank National Association, as a Seasoned Warehouse Lender and as agent
for the other Seasoned Warehouse Lenders, and the other Seasoned Warehouse
Lenders.
"CUSTODY AGREEMENT" means the Seasoned Warehouse Custody Agreement of even
date herewith between the Companies and the Custodian, as it may be
supplemented, amended or restated from time to time. By this reference, the
Custody Agreement is incorporated into this Agreement; provided that, in
interpreting this Agreement or any of the other Seasoned Warehouse Loan
Documents except the Custody Agreement itself, definitions of terms in this
Agreement will control over any inconsistent definitions in the Custody
Agreement.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed to
sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"OBLIGATIONS" means the principal of and interest on the Seasoned
Warehouse Revolving Loans, and, without duplication, all other indebtedness,
obligations and liabilities of the Borrowers to the Seasoned Warehouse Lenders
and the Seasoned Warehouse Agent under or arising out of or in connection with
this Agreement or any other Seasoned Warehouse Loan Documents (including
indemnities, fees and expenses), whether now existing or hereafter incurred,
direct or indirect, absolute or contingent, matured or unmatured, joint or
several, whether for principal, interest,
281
reimbursement obligations, fees, expenses or otherwise, and the due performance
and compliance with the terms and conditions of this Agreement and the other
Seasoned Warehouse Loan Documents by the Borrowers and also includes amounts
that would become due but for operation of 11 U.S.C. Sections 502 and 503 or
any other provision of Title 11 of the United States Code, pre- and
post-maturity interest on any of the foregoing, including all post-petition
interest if any Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"SEASONED WAREHOUSE LOAN DOCUMENTS" means (a) the Credit Agreement,
certificates and reports delivered under the Credit Agreement, and exhibits and
schedules to the Credit Agreement, (b) all agreements, documents, and
instruments in favor of the Seasoned Warehouse Agent, the Custodian or the
Seasoned Warehouse Lenders (or the Seasoned Warehouse Agent or Custodian on
behalf of the Seasoned Warehouse Lenders) ever delivered under this Agreement
or otherwise delivered in connection with any of the Obligations and (c) all
renewals, extensions, and restatements of, and amendments and supplements to,
any of the foregoing.
"SEASONED WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers'
non-interest bearing demand checking account no. 0010-0000000 to be maintained
with Texas Commerce.
"SEASONED WAREHOUSE REVOLVING LOAN" means a loan made by the Seasoned
Warehouse Lenders and disbursed by the Seasoned Warehouse Agent to the
Borrowers under SECTION 3.1 of the Credit Agreement on a Disbursement Date.
"VA" means the U.S. Department of Veterans Affairs.
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282
DISBURSEMENT REQUEST CERTIFICATE
(to refinance Eligible Warehouse Collateral)
This certificate is delivered pursuant to SECTION 5.1 of the 10/97
Senior Secured Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, the Warehouse Agent and the Warehouse Lenders. Terms defined in the
Credit Agreement have the same meaning when used, unless otherwise
defined, in this certificate.
I certify to Warehouse Agent and Warehouse Lenders that on the date of
this certificate:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. The proceeds of the requested Revolving Loan are to be used to
refinance Debt secured by Eligible Warehouse Collateral currently held by Texas
Commerce, who will assign to the Warehouse Agent (as agent and secured party
for the Warehouse Lenders) its security interest in all collateral for
such existing Debt being refinanced and, upon disbursement of such proceeds to
Texas Commerce, a Company will own good and marketable title to such
Collateral, free and clear of any lien, pledge, charge or interest of any party
other than the Warehouse Agent (as agent and secured party for the Warehouse
Lenders).
3. All of the Collateral in which the Warehouse Agent (as agent and
secured party for the Warehouse Lenders), by disbursing such refinancing
Warehouse Revolving Loan, will acquire a security interest shall be Eligible
Warehouse Collateral.
4. All of the Collateral to be so refinanced by the proposed
Warehouse Revolving Loan shall be Pledged to the Warehouse Agent as Collateral,
and to no other Person, and shall be subject to the Warehouse Credit Agreement
and the Warehouse Security Agreement, and the Warehouse Agent, as agent and
secured party for the Lenders, will thereby acquire and have a first and
prior perfected security interest therein.
5. No Default or Event of Default has occurred and is continuing.
283
6. The warranties and representations set forth in SECTION 11 of the
Warehouse Credit Agreement and SECTION 3 of the Warehouse Security Agreement are
true and correct on and as of the date hereof.
By Xxx X. Xxxxx
---------------------------------
(Name) XXX X. XXXXX
-----------------------------
(1)(Title) PRESIDENT
-------------------------
(Date) 11/5/97
-----------------------------
------------------
(1) Must be a Responsible Officer of all four Companies.
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284
REQUEST FOR APPROVAL
The undersigned Borrowers and Senior Lender hereby request approval of
the following Senior Lender and Senior Debt; and (x) certify, represent,
warrant and covenant that the information and documents submitted herewith in
Section 1, 2 and 3 are true and accurate, and (y) agree (except where
separately stated as to the Senior Lender or Borrowers) to the provisions of
Section 4, 5, 6 and 7. Terms defined in the Subordinated Promissory Note (Term
Loan) dated July 18, 1996, as amended, modified, extended or restated from time
to time ("Note") have the same meanings when used herein, unless otherwise
defined herein.
4. Name of Senior Lender:
Texas Commerce Bank National Association (a national
banking association) and such other lenders as may become party to the 10/97
Senior Secured Seasoned Warehouse Credit Agreement, as amended, from time to
time (acting herein by and through their agent and representative, Texas
Commerce Bank National Association)
5. Terms and Conditions of Senior Debt:
(a) Type of Senior Debt:
Warehouse revolving credit to finance MCA Financial
Corp.'s, MCA Mortgage Corporation's, Mortgage Corporation of America's and
Mortgage Corporation of America, Inc.'s owned seasoned mortgage loans, land
contracts and mortgage securities, including up to $5,000,000 in financing for
foreclosure, REO or buyback mortgage loans
(b) Maximum Principal Amount of Senior Debt that
may be outstanding (including any formulas):
$25,000,000
(c) Interest Rate of Senior Debt:
Varying rates indexed to LIBOR or Texas Commerce Bank National Association's
Prime Rate as it changes
(d) Use of Proceeds of Senior Debt:
To finance and refinance MCA Financial Corp.'s, MCA
Mortgage Corporation's, Mortgage Corporation of America's and Mortgage
Corporation of America, Inc.'s seasoned mortgage loans, land contracts and
mortgage securities, including up to $5,000,000 in financing for foreclosure,
REO or buyback mortgage loans
285
(e) Expiration/Termination/Due Date of Senior Debt:
October 31, 1998, subject to extension by agreement of the parties to the loan
agreement.
6. Copies of Senior Debt Documents: The undersigned
hereby certify that attached hereto are true and accurate copies of the Senior
Debt Documents.
7. Amendment/Modification/Waivers: The Senior Lender and
Borrowers hereby certify, represent, warrant and covenant that no
amendments, modifications or waivers of any terms, conditions, covenants,
agreements, duties, provisions or undertakings under the Senior Debt Document
will be made without Lender's written consent, and no waiver of any breach,
failure, violation or other non-observance or non-performance under the Senior
Debt Documents will be made without Lender's written consent, in any such case
that results in an increase of the amount of the Senior Debt to which the
Indebtedness is subordinated. The Lender's consent shall not be unreasonably
withheld. In the event of any such increase, the provisions of Section 12C of
the Subordinated Promissory Note (Term Loan) shall apply.
8. Notice of Senior Debt Default: The Senior Lender hereby
certifies, represents, warrants and covenants that it will deliver to
Lender, a copy of any notice to any of the Borrowers, which sets forth a Senior
Debt Default, provided further the failure to deliver such notice shall not
affect the Subordination Agreements.
9. Senior Debt to Net Worth Ratio: The Borrowers hereby
certify, represent, warrant and covenant that if this Request for
Approval is approved, that after giving effect thereto, there will not be, on
the date of execution of the Counterpart, (x) any violation of the Senior Debt
to Net Worth Ratio, or (y) any Senior Lender Default.
10. Defaults: The Borrowers hereby certify, represent,
warrant and covenant that if this Request for Approval is approved,
that after giving effect thereto, on the date of the execution of a
Counterpart, that no Event of Default exists or will be created thereby.
[The remainder of this page is intentionally blank.]
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286
This Request for Approval is delivered in connection with the Note.
This Request for Approval is executed on ________________, 1997, but effective
as of the date of delivery of a Counterpart.
Senior Lender:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION(1) MCA FINANCIAL CORP.
By: Xxxxx X. Xxxxxxx By: Xxx X. Xxxxx
--------------------- ------------------------
Name: XXXXX X. XXXXXXX Name: XXX X. XXXXX
------------------- ----------------------
Title: VICE PRESIDENT Title: PRESIDENT
------------------ ---------------------
MCA MORTGAGE CORPORATION
By: Xxx X. Xxxxx
------------------------
Name: XXX X. XXXXX
----------------------
Title: PRESIDENT
---------------------
MORTGAGE CORPORATION OF AMERICA
By: Xxx X. Xxxxx
------------------------
Name: XXX X. XXXXX
----------------------
Title: PRESIDENT
---------------------
MORTGAGE CORPORATION OF AMERICA, INC.
By: Xxx X. Xxxxx
------------------------
Name: XXX X. XXXXX
----------------------
Title: PRESIDENT
---------------------
-------------------------
(1) in its capacity as a lender and as agent and representive of the other
lenders that are parties to the 10/97 Senior Secured Seasoned Warehouse Credit
Agreement, as amended, including, initially, only itself
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287
MCA REALTY CORPORATION
By: Xxx X. Xxxxx
------------------------
Name: XXX X. XXXXX
----------------------
Title: PRESIDENT
---------------------
COMPLETE FINANCIAL CORP.
By: Xxx X. Xxxxx
------------------------
Name: XXX X. XXXXX
----------------------
Title: PRESIDENT
---------------------
SECURITIES CORPORATION OF AMERICA
By: Xxx X. Xxxxx
------------------------
Name: XXX X. XXXXX
----------------------
Title: PRESIDENT
---------------------
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288
SENIOR LENDER APPROVAL
The undersigned Authorized Agent of Lender hereby:
1. Approves the Senior Lender and Senior Debt in
reliance on the foregoing, provided however, (x) a breach by the Borrowers of
Section 6 and 7 shall not affect the rights of the Senior Lender under the
Subordination Agreements, and (y) a breach by Senior Lender of Section 4 or
Section 5 shall be limited to the effect as therein provided.
2. Authorizes a true copy of the Subordinated
Promissory Note (Term Loan) to be delivered to Senior Lender.
3. Agrees that the Subordination Agreements
contained in the Subordinated Promissory Note (Term Loan) shall be in effect
with respect to the Senior Debt and Senior Lender herein referenced, subject to
Sections 3 and 4 above, upon receipt by the undersigned Authorized Agent of an
executed Counterpart hereof.
THE BOARD OF TRUSTEES OF THE POLICEMEN AND
FIREMEN RETIREMENT SYSTEM OF THE CITY OF
DETROIT
By: Xxxxxx & Xxxxx, L.L.P., its Authorized
Agent
By: Xxxx X. Xxxxx
------------------------
Name: XXXX X. XXXXX
----------------------
Title: ASSOCIATE
---------------------
5
289
COUNTERPART
The undersigned Senior Lender agrees to the Subordination Agreements
contained in the Subordinated Promissory Note (Term Loan), subject to the
matters set forth in the Request for Approval and specifically, without
limiting the generality of the foregoing, certifies, represents, warrants and
covenants that as of the date hereof, the undersigned has not delivered a
Notice of Senior Debt Default.
Date: October 31, 1997
-------------------
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION(1)
By: Xxxxx X. Xxxxxxx
------------------------
Name: XXXXX X. XXXXXXX
----------------------
Title: VICE PRESIDENT
---------------------
----------------------
(1)in its capacity as a lender and as agent and representative of the other
lenders that are parties to the 10/97 Senior Secured Warehouse Credit Agreement,
as amended, including, initally, only itself
6
