EXHIBIT 10-7
VARIABLE TERMS LETTER
August 29, 1997
First Mortgage Corporation
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx
Chief Executive Officer
Gentlemen:
This Variable Terms Letter constitutes the Variable Terms Letter referred to in
and a supplement to that certain Master Mortgage Loan Warehousing and Security
Agreement (the "Agreement") dated as of April 30, 1992, and will confirm certain
terms and conditions of the lending arrangements between First Mortgage
Corporation (the "Borrower") and Sanwa Bank California, a California corporation
with a state banking license ("Bank"), set forth therein. Capitalized terms are
used herein (including any exhibits and schedules hereto), unless otherwise
defined herein, with the same meanings as in the Agreement.
Credit Limit:
$15,000,000.00
Sub-Credit Limits:
Allocation A: Up to the full amount of the Credit Limit for funding FHA-insured,
VA-guaranteed and FNMA/FHLMC-conforming conventional Eligible Mortgage Loans,
each of which Eligible Mortgage Loans: (i) is subject to a first priority deed
of trust (or mortgage) on the Property, (ii) is covered by a Take-Out Commitment
and (iii) is of a type of Mortgage Loan which has been pre-approved by the
investor issuing the applicable Take-Out Commitment prior to the inclusion of
such Eligible Mortgage Loan in the Borrowing Base.
Allocation B: Up to $10,000,000.00 of the Credit Limit for funding conventional
Eligible Mortgage Loans conforming to all underwriting and other requirements of
FNMA and FHLMC except as to original principal balance, each of which Eligible
Mortgage Loans: (i) is subject to a first priority deed of trust (or mortgage)
on the Property, (ii) is covered by a Take-Out Commitment (iii) is of a type of
Mortgage Loan which has been pre-approved by the investor issuing the applicable
Take-Out Commitment prior to the inclusion of such Eligible Mortgage Loan in the
Borrowing Base, and (iv) has an original principal balance not exceeding
$700,000.00. Up to $3,000,000.00 of this $10,000,000.00 sub-limit shall be
available for funding conventional Eligible Mortgage Loans conforming to all
underwriting and other requirements of FNMA and FHLMC except as to original
principal balance, each of which Eligible Mortgage Loans: (i) is subject to a
first priority deed of trust (or mortgage) on the Property, (ii) is covered by a
Take-Out Commitment (iii) is of a type of Mortgage Loan which has been pre-
approved by the investor issuing the applicable Take-Out Commitment prior to the
inclusion of such Eligible Mortgage Loan in the Borrowing Base, (iv) has an
original principal balance over $700,000.00 but not exceeding $1,000,000.00 and
(v) has been pre-approved by the Bank which approval shall be on a case-by-case
basis.
Allocation C: Up to $5,000,000.00 of the Credit Limit for funding FHA-insured,
VA-guaranteed and FNMA/FHLMC-conforming conventional Eligible Mortgage Loans, or
Eligible Mortgage Loans conforming to all underwriting and other requirements of
FNMA and FHLMC except for having an original principal balance not exceeding
$700,000.00, each of which Eligible Mortgage Loans: (i) is subject to a first
priority deed of trust (or mortgage) on the Property, and (ii) is not, at the
time such Eligible Mortgage Loan is submitted for inclusion in the Borrowing
Base, covered by a Take-Out Commitment.
Purchased
Loan Sub-limit:
Not applicable.
Pledged Loan Sub-limit: $5,000,000.00.
Permitted Pledge Period: Two business days.
Maturity Date: October 31, 1997.
Prevailing Interest Rate:
Prevailing Interest Rate. During the term hereof, Loans outstanding hereunder
shall bear interest at a per annum rate equal to the Reference Rate plus zero
percent (0.0%) (such advances shall hereinafter be referred to as "Reference
Rate Advances"); however, for any monthly period, to the extent average daily
Available Deposits are maintained with Bank by the Borrower (or by an Affiliate
of the Borrower as designated by Bank) during such monthly period, such loans in
an amount equal to such average daily Available Deposits shall bear interest at
a rate of interest equal to one and one quarter percent (1.25%) per annum (such
advances shall hereinafter be referred to as "Deposit Based Advances").
In addition to Reference Rate Advances and Deposit Based Advances, the Bank
hereby agrees to make Loans to the Borrower, at the Borrower's election, at a
fixed rate (the "Fixed Rate") for such period of time that the Bank may quote
and offer, provided that any such period of time shall not exceed thirty (30)
days (the "Interest Period"), and provided that any such period of time does not
extend beyond the Maturity date for advances in the minimum amount of
$250,000.00, (such advances shall hereinafter be referred to as "Fixed Rate
Advances"). For Fixed Rate Advances, the interest rate for the Fixed Rate shall
be a percentage approximately equivalent to one and one quarter percent 1.25%)
per annum in excess of the rate which the Bank determines in its sole and
absolute discretion to be equal to the Bank's cost of acquiring funds (adjusted
for any and all assessments, surcharges and reserve requirements pertaining to
the borrowing or purchase by the Bank of such funds) in an amount approximately
equivalent to the amount of the relevant Fixed Rate Advance and for a period of
time approximately equal to the relevant Interest Period; The Bank shall provide
the Borrower with a statement of the Borrower's Fixed Rate Advances, which
statement shall be considered to be correct and conclusively binding on the
Borrower unless the Borrower notifies the Bank to the contrary within 10 days
after the Borrowers receipt of any such statement which it deems to be
incorrect.
Notice of Election to Adjust Interest Rate. Upon telephonic notice which shall
be received by the Bank at or before 12:00 p.m. (California Time) on a business
day, the Borrower may elect:
1. That the interest on a Reference Rate Advance or Deposit Based Advance shall
be adjusted to accrued at the Fixed Rate; provided however, that such notice
shall be received by the Bank no later than one business day prior to the day
(which shall he a business day) on which Borrower requests that interest be
adjusted to accrue at the Fixed Rate.
2. That interest on a Fixed Rate Advance shall continue to accrue at a newly
quoted Fixed Rate or shall be adjusted to commence to accrue at the Reference
Rate; provided, however that such notice shall be received by the Bank no later
than one business day prior to the last day of the Interest Period pertaining to
such Fixed Rate Advance. If the Bank shall not have received notice as
prescribed herein of the Borrower's election that interest on any Fixed Rate
Advance shall continue to accrue at the Fixed Rate, Borrower shall be deemed to
have elected that interest thereon shall be adjusted to accrue at the Reference
Rate upon the expiration of the Interest Period pertaining to such Fixed Rate
Advance.
Prohibition Against Prepayment of Fixed Rate Advances. Notwithstanding anything
to the contrary in the Agreement, no prepayment shall be made on any Fixed Rate
Advance except on a day which is the last day of the Interest Period pertaining
thereto. If the whole of any part of any Fixed Rate Advance is prepaid by reason
of acceleration or otherwise, the Borrower shall, upon the Bank's request,
promptly pay to and indemnify the Bank for all costs and any loss (including
interest) actually incurred by the Bank and any loss (including loss of profit
resulting from the re-employment of funds) sustained by the Bank as a
consequence of such prepayment.
Indemnification of Fixed Rate Costs. During any period of time in which interest
on any Fixed Rate Advance is accruing on the basis of the Fixed Rate, the
Borrower shall, upon the Bank's request, promptly pay to and reimburse the Bank
for all costs incurred and payments made by the Bank by reason of any future
assessment, reserve, deposit or similar requirements or any surcharge, tax or
fee imposed upon the Bank or as a result of the Bank's compliance with any
directive or requirement of any regulatory authority pertaining or relating to
funds used by tile Bank in quoting and determining the Fixed Rate.
Conversion from Fixed Rate to Reference Rate. In the event that the Bank shall
at any time determine that the accrual of interest on the basis of the Fixed
Rate (i) is infeasible because the Bank is unable to determine the Fixed Rate
due to the unavailability of U.S. dollar deposits, contracts or certificates of
deposit in an amount approximately equal to the amount of the relevant Balance
and for a period of time approximately equal to the relevant Interest Period; or
(ii) is or has become unlawful or infeasible by reason of the Bank's compliance
with any new law, rule, regulation, guideline or order, or any new
interpretation of any present law, rule, regulation, guideline or order, then
the Bank shall give telephonic notice thereof (confirmed in writing) to the
Borrower, in which event any Fixed Rate Advance shall be deemed to be a
Reference Rate Advance and interest shall thereupon immediately accrue at the
Reference Rate.
Contact Office:
Sanwa Bank California
Insurance and Financial Services, LA CBC
000 Xxxxx Xxxxxxxx Xxxxxx (X0-0)
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Funding Account: Account No. 2068-01106
Statement Date: March 31, 1997.
Interim Date: June 30,1997.
Required Monthly Reports:
Bank will have received monthly by the thirtieth day of each calendar month,
each dated as of the last day of the preceding calendar month, (i) an Adjusted
Net Worth, Financial Statement and Loan Covenant Compliance Report in the form
of Exhibit C hereto (ii) an Inventory Aging Certificate in the form of Exhibit D
hereto (iii) a Pipeline Position and Commitment Status Report in the form of
Exhibit G hereto and (iv) a Servicing Delinquency and Closed Loan Production
Report in the form of Exhibit J hereto. With the prior written consent of Bank,
any of the above reports may be in a form otherwise acceptable to Bank.
Required Fees:
Collateral Handling Fee: The Borrower agrees to pay Bank, from time to time
promptly upon delivery of a billing statement, a collateral handling fee in the
amount of $10.00 per Mortgage Loan submitted by the Borrower for inclusion in
the Borrowing Base.
Permissible Warehouse
Period:
90 days for Eligible Mortgage Loans which meet the criteria set forth under
Allocation A or Allocation C. 60 days for Eligible Mortgage Loans which meet the
criteria set forth under Allocation B which have an original principal balance
not exceeding $700,000.00. 30 days for Eligible Mortgage Loans which meet the
criteria set forth in Allocation B and have an original principal balance over
$700,000.00 but not exceeding $1,000,000.00.
Minimum Permitted Current Ratio:
1.08 to 1.0.
Minimum GAAP
Net Worth:
$15,000,000.00.
Adjusted Net Worth
Portfolio Percentage: 1.00%
Minimum Permitted
Adjusted Net Worth:$25,000,000.00.
Minimum Permitted Servicing Portfolio:
$1,000,000,000.00 on and after the date of the Agreement.
Maximum Permitted Leverage Ratio:
Borrower will not at any time permit the ratio of the Borrower's Indebtedness
(excluding Subordinated Debt) to the stun of(x) the Borrower's Tangible Net
Worth plus (y) its Subordinated Debt, to exceed 8.0 to 1.0.
Maximum Permitted
Adjusted Leverage Ratio:
Borrower will not at any time permit the ratio of the Borrower's Indebtedness
(excluding Subordinated Debt to the sum of(x) the Borrower's Adjusted Net Worth
plus (y) its Subordinated Debt to exceed 5.0 to 1.0.
Types of Eligible Collateral
Mortgage Loans: Eligible Mortgage Loans, each representing a one to four
family residential Mortgage Loan, which loan is insured by the FHA, guaranteed
by the VA or conforms to all underwriting and other requirements of FNMA/FHLMC,
except as (i) permitted above in Allocation B as to original principal balance.
Collateral Value of the Borrowing Base:
(a) As to each Mortgage Loan which is FHA-insured, VA-guaranteed or FNMA/FHLMC
conforming, ninety-nine percent (99%) of the lesser of: (1) the weighted average
net unfilled purchase price of all Take-Out Commitments held by the Borrower
under which such Mortgage Loan could be sold (assuming the simultaneous shipment
of all other Mortgage Loans owned by the Borrower) as represented in the most
recent Pipeline Position and Commitment Status Report submitted to Bank,
multiplied by the unpaid principal balance of such Mortgage Loan, and (2) the
unpaid principal balance of such Mortgage Loan.
(b) As to each Mortgage Loan which conforms to all underwriting and other
requirements of FNMA and FHLMC except (A) as to original principal balance where
the original principal balance does not exceed $700,000.00, ninety-five percent
(95%) or (B) as to original principal balance where the original principal
balance exceeds $700,000.00 but does not exceed $1,000,000.00, ninety-five
percent (95%) of the lesser of (1) the weighted average net unfilled purchase
price of all Take-Out Commitments held by the Borrower under which such Mortgage
Loan could be sold (assuming the simultaneous shipment of all other Mortgage
Loans owned by the Borrower) as represented in the most recent Pipeline Position
and Commitment Status Report submitted to Bank, multiplied by the unpaid
principal balance of such Mortgage Loan, and (2) the unpaid principal balance of
such Mortgage Loan.
(c) As to each Mortgage Loan which is FHA-insured, VA-guaranteed or FNMA/FHLMC
conforming except that it is not, at the time such Eligible Mortgage Loan is
submitted for inclusion in the Borrowing Base, covered by a Take-Out Commitment,
ninety-five percent (95%) of the unpaid principal balance of such Mortgage Loan.
Collateral:
The Collateral shall consist of the personal property described more
particularly on the Collateral Schedule attached hereto as Exhibit E.
Addresses for
Purpose of Notice:
The Borrower:
First Mortgage Corporation
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx
Bank:
Sanwa Bank California
Insurance & Financial Services, LA CBC
000 Xxxxx Xxxxxxxx Xxxxxx (X0-0)
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxx
Exceptions:
The following provisions of the Agreement are hereby modified as follows:
(a) The second sentence of Paragraph I(F) shall be amended in its entirety to
read as follows:
"In addition to all other payment obligations of the Borrower hereunder, upon
verbal demand by the Bank (which verbal demand shall be confirmed in writing)
from time to time, the Borrower shall repay to Bank within three (3) days of
Bank's verbal demand (i) the amount by which ninety-seven (97%) of the aggregate
principal amount of Loans outstanding hereunder exceeds the Fair Market Value of
the Borrowing Base."
(b) The words "the failure to comply with which could have a material adverse
affect on the Borrower's business, operations, property or financial or other
condition" are hereby added to the last line of Paragraph V(C) immediately
before the period.
(c) The words "Within ninety (90) days in Paragraph VI(A)(1) are hereby deleted
and replaced with the words "Within one hundred twenty (120) days".
(d) Paragraph VI(B)(1) shall be amended in its entirety to read as follows:
"Within thirty (30) days after the last day of each month, an Adjusted Net
Worth/Financial Statement/Covenant Compliance Report as of the last day of such
month.
(e) Paragraph VI(B)(2) shall be amended in its entirety to read as follows: "No
later than the thirtieth day of each calendar month and at such other times as
Bank may reasonably request, each as of the last day of the immediately
preceding calendar month: (i) a Pipeline Position Report and (ii) a Servicing
Delinquency and Closed Loan Production Report."
(f) Paragraph VI(B)(3) shall be amended in its entirety to read as follows:
"Promptly, such additional financial and other information, including but not
limited to (i) a Borrowing Base Certificate, and (ii) Borrower's Form 10-Q and
10-K within 60 days and 120 days respectively after the end of each of the
Borrower's quarters.
(g) Each of Paragraph VII(D), (F), and (G) are hereby deleted and replaced with
the words "intentionally omitted."
(h) Paragraph VII(E) is hereby amended to read: Borrowers' payment of dividends
may not exceed an amount equal to fifty percent (50%) of Borrowers' net income
(after taxes) on a quarterly basis.
(i) The word "Tangible" in Paragraph VII(J)(3) is hereby deleted and replaced
with the word "GAAP".
(j) The words "Servicing Delinquency Report" are hereby deleted wherever they
appear in the Loan Documents and replaced with the words "Servicing Delinquency
and Closed Loan Production Report."
(k) The definition of "Fair Market Value" in Paragraph X shall be amended in its
entirety to read as follows: "shall mean at any date the fair market value of
any Collateral at such date, as determined by Bank using the FNMA sixty (60) day
forward fixed and adjustable rates plus 0.25% for conventional loans and the
dealer market sixty (60) day forward rate plus 0.50% for mortgage backed
securities (i.e. FHA/VA Loans) as quoted by Knight Ridder Financial Information
or Telerate Systems, Inc."
(1) Subparagraph (n) of the definition of "Eligible Mortgage Loan" is hereby
deleted and replaced with the following: "(n) The date of the promissory note is
no earlier than thirty days prior to the date said Mortgage Loan is first
included in the Borrowing Base.
(m) Section (c)(3) of the definition of "Tangible Net Worth" in Paragraph X is
hereby deleted and replaced with the following: "(3) loans to, or investments
in, affiliates (with the exception of the Borrower's note receivable dated
February 1, 1991, from Fin-West Group with an existing principal balance of
$250,000 and any renewals or extensions thereof."
(n) The words "hold Take-Out Commitments in less than an aggregate amount
necessary to provide for the sale of all closed Mortgage Loans owned by the
Company" are hereby deleted and replaced with the words "hold Take-Out
Commitments in less than an aggregate amount necessary to provide for the sale
of all closed Mortgage Loans included in the Borrowing Base less the aggregate
amount of Eligible Mortgage Loans which meet the criteria set forth under
Allocation C.
Additional Requirements The Borrower warrants that is will at all times remain
an approved seller/servicer for each of FNMA and FHLMC.
Notwithstanding any provision herein or under the Agreement to the contrary,
every agreement and warranty of the Borrower herein (including, without
limitation, any of the above additional requirements) shall be deemed to be an
agreement under and pursuant to the Agreement.
Exhibits Attached:
A: Form of Promissory Note.
B: Delivery Procedures and exhibits thereto.
C: Certification re Adjusted Net Worth, Etc.
D: Borrowing Base and Inventory Aging Certificate.
E: Collateral Schedule.
F: Loan Request Form.
G: Pipeline Position and Commitment Status Report.
H: Form of Pledge Agreement.
I: Required Collateral Documents.
J: Servicing Delinquency and Closed Loan Production Report.
If the above meets your approval, please so indicate by executing and returning
to Bank the enclosed copy of this Variable Terms Letter.
Very truly yours,
SANWA BANK CALIFORNIA a California corporation with a state banking license
By:Xxxx X. Xxxxx
Title: Vice President
AGREED TO AND ACCEPTED as of the 29th day of August, 1997.
FIRST MORTGAGE CORPORATION, a California corporation
By:
Name: Xxxxxxx Xxxxxx
Title: Chairman of the Board
