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EXHIBIT 10.2
[EXECUTION COPY]
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MASTER ASSIGNMENT AGREEMENT
BETWEEN
PACIFICAMERICA MONEY CENTER, INC.
AND
XXXXXXX XXXXX MORTGAGE CAPITAL INC.
DATED AS OF DECEMBER 18, 1997
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS; CONSTRUCTION................................................. 1
(a) Definitions........................................................ 1
(b) Accounting Terms and Determinations................................ 4
(c) Other Definitional Terms........................................... 4
SECTION 2. GRANT OF SECURITY INTEREST; DELIVERY OF
COLLATERAL; LOANS DISCRETIONARY.................................... 5
(a) Grant of Security Interest......................................... 5
(b) Delivery of Instruments of Transfer................................ 5
(c) Funding of Loans................................................... 5
(d) MLMCI's Duty of Care............................................... 6
SECTION 3. EARNINGS ON COLLATERAL.................................................... 6
SECTION 4. CONFIRMATION STATEMENT.................................................... 7
SECTION 5. MARGIN DETERMINATIONS..................................................... 7
(a) Margin Requirement................................................. 7
(b) Current Margin..................................................... 7
(c) Supplemental Collateral............................................ 7
(d) Release of Supplemental Collateral................................. 7
SECTION 6. RELEASE AND SUBSTITUTION OF COLLATERAL.................................... 8
SECTION 7. CONDITIONS TO THE LOANS................................................... 8
(a) Conditions to the Effective Date................................... 8
(b) Conditions Precedent to all Loans and Substitutions................ 9
(c) Assignment of Subordinated Interest................................ 11
SECTION 8. REPRESENTATIONS AND WARRANTIES............................................ 11
(a) Due Incorporation.................................................. 11
(b) Authorization...................................................... 11
(c) No Conflict........................................................ 12
(d) Approvals, etc..................................................... 12
(e) Good Title......................................................... 12
(f) Tax Liens.......................................................... 12
(g) Financial Statements............................................... 12
(h) No Litigation...................................................... 13
(i) Disclosure......................................................... 13
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(j) Permits, Licenses, Approvals, Consents, etc........................ 13
(k) The Investment Company Act......................................... 13
SECTION 9. AFFIRMATIVE COVENANTS..................................................... 13
(a) Financial Statements and Other Information......................... 13
(b) Existence, Conduct of Business, etc................................ 14
(c) Taxes.............................................................. 15
(d) Laws............................................................... 15
(e) Name and Locations................................................. 15
(f) Records............................................................ 15
(g) Pay Obligations.................................................... 15
(h) Notices............................................................ 15
(i) Covenant Compliance Certificate.................................... 16
(j) Reports............................................................ 16
SECTION 10. NEGATIVE COVENANTS........................................................ 16
(a) Liens.............................................................. 16
(b) Mergers, Sales, Dissolution, etc................................... 16
(c) Corporate Changes.................................................. 16
(d) Credit Covenants................................................... 16
(e) Use of Proceeds.................................................... 17
(f) Further Covenants.................................................. 17
SECTION 11. EVENTS OF DEFAULT......................................................... 17
(a) Nonperformance..................................................... 17
(b) Termination of Interest............................................ 17
(c) Act of Insolvency.................................................. 17
(d) Material Adverse Change............................................ 18
(e) Default Under Other Contracts...................................... 18
(f) Merger or Consolidation............................................ 18
(g) Anticipated Insolvency............................................. 18
(h) Final Judgment..................................................... 18
(i) Breach of Representation........................................... 18
(j) Breach of Covenant................................................. 18
SECTION 12. REMEDIES.................................................................. 18
(a) Action Regarding Collateral........................................ 18
(b) Deficiency......................................................... 19
(c) Private Sale....................................................... 19
(d) Application of Proceeds............................................ 20
(e) Default Rate of Interest........................................... 20
(f) Attorney-in-Fact................................................... 20
(g) Payments on Collateral to Assignor................................. 20
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(h) Cross-Collateralization; Right of Set-Off.......................... 21
SECTION 13. MATURITY DATE; INTEREST PAYMENT DATES;
REPAYMENT OF PRINCIPAL............................................. 21
(a) Payment on Maturity Date........................................... 21
(b) Extension of Maturity Date......................................... 21
(c) Interest Payment................................................... 21
(d) Payment of Principal............................................... 21
(e) Event of Default................................................... 22
SECTION 14. PAYMENT OF TAX LIABILITY.................................................. 22
SECTION 15. GENERAL PROVISIONS........................................................ 22
(a) No Waiver.......................................................... 22
(b) Governing Law; Severability........................................ 22
(c) Construction....................................................... 22
(d) Assignment......................................................... 22
(e) Notices, Payments, Deliveries...................................... 23
(f) Termination........................................................ 24
(g) Aggregate Amount of Loans; Disbursement of Funds................... 25
(h) Expenses........................................................... 25
(i) MLMCI's Right to Pledge............................................ 25
(j) Indemnification.................................................... 26
(k) Further Assurances................................................. 26
(l) Remedies Cumulative................................................ 26
(m) Litigation......................................................... 26
EXHIBIT A ................................................................................A-1
LOAN SCHEDULE..............................................................................A-4
EXHIBIT B ................................................................................B-1
EXHIBIT C ................................................................................C-1
EXHIBIT D ................................................................................D-1
EXHIBIT E ................................................................................E-1
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THIS AGREEMENT is made as of the 18th day of December, 1997 by and
between PACIFICAMERICA MONEY CENTER, INC. ("Assignor") and XXXXXXX XXXXX
MORTGAGE CAPITAL INC. ("MLMCI"). By executing this Agreement, Assignor and
MLMCI agree to be bound by the terms of this Agreement.
WITNESSETH
WHEREAS the parties elect to enter into this Agreement and, at the
request of Assignor, MLMCI may from time to time at its option agree to make one
or more loans (in each instance, a "Loan") to Assignor, which Loans shall be
limited in aggregate outstanding principal amount to the Maximum Loan Amount (as
hereinafter defined), said Loans to be evidenced by Assignor's Note (the "Note")
of even date herewith, maturing on December 18, 1998 (the "Maturity Date"), a
form of which is attached hereto as Exhibit A; and
WHEREAS, in order to induce MLMCI to make Loans from time to time to
it, Assignor has agreed to assign and pledge to MLMCI and grant to MLMCI a lien
upon and a security interest in the Collateral (as hereinafter defined) for the
purpose of securing its obligations under the Note;
NOW, THEREFORE, in consideration of the foregoing and of the
covenants and agreements hereinafter set forth, Assignor and MLMCI agree as
follows:
SECTION 1. DEFINITIONS; CONSTRUCTION
(a) Definitions. As used herein, the following terms shall have the
meaning herein specified (to be equally applicable to be the singular and plural
forms of the terms defined):
"Act of Insolvency" shall mean the occurrence of any action described in
Section 11(c) hereof.
"Agreement" shall mean this Master Assignment Agreement, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"Approvals" shall have the meaning set forth in Section 8(d) hereof.
"Assignor" shall have the meaning set forth in the preamble hereof.
"Book Net Worth" shall refer to the equity of Assignor determined in
accordance with GAAP.
"Business Day" shall mean any day excluding Saturday, Sunday, or any
other day on which banks in the City of New York or the State of California are
authorized or required by law to close or a day on which trading by and between
banks in Dollars in the London interbank market is not conducted.
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"Closing Date" shall mean with respect to each Loan, the settlement date
set forth in the Confirmation Statement applicable to such Loan.
"Collateral" shall have the meaning ascribed thereto in Section 2 hereof
and shall include any Supplemental Collateral.
"Confirmation Statement" shall have the meaning set forth in Section 4
hereof.
"Covenant Compliance Certificate" shall refer to a certificate of
Assignor and Pacific Thrift to the effect that Assignor and Pacific Thrift are
in compliance, as of the date of such certificate, with the covenants set forth
in Section 10(d) of this Agreement.
"Current Margin" shall have the meaning ascribed to it in Section 5(b)
hereof.
"Default" shall mean any condition, act or event which, with notice or
lapse of time or both, would constitute an Event of Default.
"Default Rate" shall have the meaning specified in Section 12(e) hereof.
"Dollar" and the sign "$" shall mean lawful money of the United States
of America.
"Effective Date" shall mean the date that all of the conditions set
forth in Section 7 hereof have been met.
"Event of Default" shall have the meaning set forth in Section 11
hereof.
"GAAP" shall have the meaning specified in Section 1(b) hereof.
"Governmental Authority" shall mean any nation, government, or State, or
any political subdivision of any of them, or any court, entity or agency
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Lien" shall mean any interest in property, or a claim by, a Person
other than the owner of such property, whether such interest is based on the
common law, statute or contract, and including, but not limited to, a security
interest, security title or lien arising from a security agreement, mortgage,
deed of trust, deed to secure debt, encumbrance, pledge, conditional sale,
financing statement or trust receipt or a lease, consignment or bailment for
security purposes.
"Loan" shall have the meaning set forth in the preamble hereof.
"Loan Documents" shall mean and include this Agreement, the Note, each
Confirmation Statement and all instruments and documents now or hereafter
executed and/or delivered pursuant hereto or thereto or in connection herewith
or therewith.
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"Margin Stock" shall have the meaning provided in Regulation G of the
Board of Governors of the Federal Reserve System.
"Market Value" shall mean the fair market value of any Pledged MBS to
the earliest permissible call date thereof as determined in accordance with
MLMCI's valuation model for such type of Pledged ABS, provided that such fair
market value or valuation model may be modified by MLMCI in its discretion using
reasonable business judgement and taking into consideration relevant market
conditions at the time of such determination. The pricing assumptions used by
MLMCI in determining the fair market value of any Pledged ABS will be set forth
in the related Confirmation Statement.
"Master Repurchase Agreement" shall mean the master repurchase agreement
for mortgage loans, dated October 31, 1997, between PacificAmerica Securities,
Inc. and MLMCI, as the same shall be amended from time to time.
"Material Adverse Change" shall mean a material adverse change in (a)
the business, operations, properties, prospects or condition (financial or
otherwise) of Assignor, as applicable, or (b) the ability of Assignor to perform
its obligations hereunder and under the other Loan Documents.
"Maturity Date" shall mean with respect to each Loan, the earlier of (a)
December 18, 1998, subject to extension under Section 13(b), and (b) the
Termination Date.
"Maximum Loan Amount" shall mean, as of any date of determination, the
lesser of (i) $20,000,000 and (ii) one-third of the average amount outstanding
under the Master Repurchase Agreement for the three-month period immediately
preceding such date of determination.
"MBS Issuance Agreements" shall mean the agreements pursuant to which
the related Pledged MBS has been issued, including any agreements relating to
the payment or distribution of amounts to the holder of such Pledged MBS, which
agreements have been previously approved by MLMCI or its affiliate.
"MLMCI" shall have the meaning set forth in the preamble hereof.
"Note" shall have the meaning set forth in the preamble hereof.
"Obligations" shall mean the principal of and all interest on the Loans,
all fees, expenses, reimbursements (including, without limitation the reasonable
fees and expenses of attorneys), taxes and indemnities and other amounts payable
by Assignor under the Loan Documents and under any other documents or
instruments executed and delivered by Assignor in connection therewith to MLMCI
pursuant to Section 2 hereof or any of their respective successors or assigns,
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising and however arising.
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"Outstanding Loans" shall mean on the date of determination thereof the
aggregate unpaid principal amount of each Loan made hereunder.
"Pacific Thrift" shall mean Pacific Thrift and Loan Company.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, trust or other entity, or any government or
political subdivision or agency, department or instrumentality thereof.
"Pledged MBS" shall mean any residual interest mortgage pass through
security (i) issued in connection with a securitization involving Assignor and
in which MLMCI or an affiliate of MLMCI has acted as the lead or co-lead
underwriter or placement agent and (ii) pledged by Assignor and accepted by
MLMCI in connection with a Loan hereunder.
"Proceeds" shall have the meaning assigned to it under the UCC and, in
any event, shall include, but not be limited to, (i) any and all Proceeds of any
insurance, indemnity, warranty or guaranty payable to Assignor from time to time
with respect to any of the Collateral, (ii) any and all payments (in any form
whatsoever) made or due and payable to Assignor from time to time in connection
with any reacquisition, confiscation, condemnation, seizure or forfeiture of all
or any part of the Collateral by any Governmental Authority and any sale,
transfer or other disposition of all or any part of the Collateral, and (iv) any
and all other amounts from time to time paid or payable under or in connection
with any of the Collateral.
"Substitute Collateral" shall have the meaning set forth in Section 6
hereof.
"Supplemental Collateral" shall mean collateral acceptable to MLMCI in
accordance with the provisions of Section 5(c) hereof.
"Termination Date" shall have the meaning ascribed to it in Section
15(f) hereof.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of New York or in any other applicable jurisdiction.
(b) Accounting Terms and Determinations. Unless otherwise defined or
specified herein, all accounting terms shall be construed herein, all accounting
determinations hereunder shall be made, all financial statements required to be
delivered hereunder shall be prepared and all financial records shall be
maintained in accordance with generally accepted accounting principles ("GAAP")
applied on a basis consistent with the financial statements referred to in
Sections 9(a)(i) and 9(a)(ii) hereof.
(c) Other Definitional Terms. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and article, section, schedule, exhibit and like
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references are to this Agreement unless otherwise specified. Any defined term
which relates to a document shall include within its definition any amendments,
modifications, renewals, restatements, extensions, supplements or substitutions
which may have been heretofore or may be hereafter executed in accordance with
the terms hereof.
SECTION 2. GRANT OF SECURITY INTEREST; DELIVERY OF
COLLATERAL; LOANS DISCRETIONARY
(a) Grant of Security Interest. Assignor hereby grants, pledges,
assigns, transfers and delivers to MLMCI with respect to each Loan on the
Closing Date, and grants to MLMCI a lien upon and continuing security interest
in all of Assignor's right, title and interest in, to and under all of the
following whether now owned or existing, or at any time hereafter acquired or
arising, by Assignor or in which Assignor now has or at any time in the future
may acquire any right, title or interest (all of which being hereinafter
collectively called the "Collateral"): (i) the Pledged MBS described in the
Confirmation Statement delivered pursuant to Section 4 relating to a Loan, (ii)
any Supplemental Collateral that may be granted to MLMCI pursuant to Section
5(c) hereof (provided, however, that any representations, warranties or
covenants contained herein, and the grant of a lien and security interest with
respect to any Supplemental Collateral, shall be effective as to any
Supplemental Collateral (or any Proceeds, distributions or other amounts
realized in respect of such Supplemental Collateral) only upon the delivery of
such Supplemental Collateral to MLMCI pursuant to such Section 5(c) hereof),
(iii) all Proceeds, distributions and other amounts realized in respect of any
of the foregoing, as security for the due and punctual payment by Assignor of
the Note and any amounts that may become payable thereunder or hereunder and
(iv) with respect to any Loan, all books and records of Assignor pertaining to
any of the foregoing.
(b) Delivery of Instruments of Transfer. Assignor shall, with respect to
each Loan, deliver to MLMCI the Collateral endorsed in the name of MLMCI or its
nominee or with properly endorsed instruments of transfer (including, without
limitation, any necessary assignments, corporate resolutions and opinions of
legal counsel) that will enable MLMCI to cause such Collateral to be so
registered without further action on the part of Assignor and such instruments
of transfer to the appropriate transfer agent.
(c) Funding of Loans. (i) MLMCI Discretion. MLMCI shall not be required
to make any Loans hereunder and any Loan hereunder shall be made by MLMCI in its
sole discretion.
(ii) Loan Advances. If MLMCI determines to make any Loan hereunder,
then in accordance with the related Confirmation Statement, MLMCI shall advance
such Loan to Assignor in a principal amount of up to 75% (such percentage or
such lesser percentage as provided in Section 7(c)(iv) hereof, the "Advance
Percentage") of the sum of (i) the Market Value of the Collateral described in
such Confirmation Statement and (ii) accrued and unpaid interest on such amount.
Each Loan advance hereunder shall be recorded as such by MLMCI and be
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evidenced by the "Loan Schedule" attached to the Note, and any repayments
of each such Loan shall be recorded as such by MLMCI and be evidenced by such
"Loan Schedule"; provided, however, that the failure of such recordation by
MLMCI shall not affect the rights of the parties hereunder with respect to such
Loan.
(iii) Interest Rate. Each Loan shall bear interest, as calculated on
a monthly basis, on the unpaid principal amount thereof from and including the
related Closing Date to but excluding the related Maturity Date at a per annum
rate (based upon a 360-day year and the actual number of days elapsed) equal to
two hundred and fifty (250) basis points in excess of the prevailing London
Interbank Offered Rate for one-month United States Dollar deposits as set forth
on page 8695 of Xxxxxx-Xxxxxx as of 8:00 a.m. New York City time on the last
Business Day of the month preceding the month in which such interest is
currently accruing ("LIBOR").
(d) MLMCI's Duty of Care. Except as herein provided in this Section
2(d), MLMCI's sole duty with respect to the Collateral shall be to use
reasonable care in the safekeeping, custody, use, operation and preservation of
the Collateral in its possession or control. MLMCI shall incur no liability to
Assignor for any act of government, act of God, or other destruction in whole or
in part or negligence or wrongful act of custodians or agents selected by and
supervised by MLMCI with reasonable care, or MLMCI's failure to provide adequate
protection or insurance for the Collateral. MLMCI shall have no obligation to
take any action to preserve any rights in any of the Collateral against prior
parties, and Assignor hereby agrees to take such action. Assignor shall defend
the Collateral against all such claims and demands of all persons, at all times,
as are adverse to MLMCI. MLMCI shall have no obligation to realize upon any
Collateral, except through proper application of any distributions with respect
to the Collateral made directly to MLMCI or its agent(s). So long as MLMCI shall
act in a commercially reasonable manner, Assignor hereby waives the defense of
impairment of the Collateral.
SECTION 3. EARNINGS ON COLLATERAL
All payments and distributions, whether in cash or in kind, made on or
with respect to the Collateral shall, so long as an Event of Default as defined
in Section 11 hereof shall not have occurred and be continuing, be paid to
Assignor directly by the applicable paying agent by wire transfer in immediately
available funds pursuant to wiring instructions delivered in writing by Assignor
to MLMCI, and upon receipt by Assignor such payments and distributions shall be
released from the lien and security interest granted to MLMCI hereunder. Subject
to compliance with the MBS Issuance Agreements, MLMCI may, in its sole
discretion after the occurrence and during the continuation of an Event of
Default, cause all such payments and distributions to be paid, delivered or
transferred directly to MLMCI.
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SECTION 4. CONFIRMATION STATEMENT
MLMCI shall, with respect to each Loan, deliver a confirmation statement
substantially in the form attached hereto as Exhibit B (in each case, the
"Confirmation Statement") to Assignor confirming the agreement between Assignor
and MLMCI as to the specific terms of the Loan. Each such Confirmation Statement
shall constitute a binding agreement between Assignor and MLMCI, and this
Agreement is hereby incorporated in each such Confirmation Statement and made a
part thereof as if it were set out in full in each such Confirmation Statement.
Each such Confirmation Statement will be binding upon the parties hereto unless
written notice of objection is given by the objecting party to the other party
within two (2) Business Days after the objecting party's receipt of such
Confirmation Statement.
SECTION 5. MARGIN DETERMINATIONS
(a) Margin Requirement. A margin requirement (the "Margin Requirement")
expressed as a percentage shall be established by MLMCI with respect to each
Loan on the related Closing Date and shall be set forth in the related
Confirmation Statement. The Margin Requirement for each Pledged MBS shall be
equal to 25% of the related Market Value.
(b) Current Margin. MLMCI may, in its reasonable discretion, from time
to time calculate the "Current Margin" with respect to any Loan, which shall
equal the amount by which (i) 100% exceeds (ii) a fraction (expressed as a
percentage) (A) the numerator of which is the then outstanding principal amount
of such Loan together with accrued and unpaid interest thereon to the date of
determination and (B) the denominator of which shall be the then current Market
Value of the related Collateral (including any Supplemental Collateral delivered
pursuant to this Agreement) then held by MLMCI.
(c) Supplemental Collateral. If MLMCI shall at any time determine with
respect to a Loan that the Current Margin is less than the related Margin
Requirement, MLMCI may in its discretion notify Assignor of such fact, and
Assignor shall, on the day of such notice, if such notice is received prior to
1:00 p.m. New York City time, and on the Business Day next succeeding the day of
such notice, if such notice is received after 1:00 p.m. New York City time,
deliver to MLMCI cash or Supplemental Collateral acceptable to MLMCI in its sole
reasonable judgment as Collateral hereunder, which cash shall be applied to
reduce the principal balance of the related Loan and which Supplemental
Collateral shall, in the aggregate, equal an amount such that, after giving
effect to the application of such cash and the delivery of such Supplemental
Collateral, the Current Margin for such Loan will be at least equal to the
related Margin Requirement. Delivery of Supplemental Collateral pursuant to this
Section 5(c) shall be in such manner as is acceptable to, and under such
additional conditions as may be required by, MLMCI in its sole reasonable
judgment.
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(d) Release of Supplemental Collateral. If at any time the Current
Margin for a Loan exceeds the Margin Requirement for such Loan and provided that
Assignor shall not have failed to satisfy the requirements of Section 5(c) with
respect to any notice thereunder given by MLMCI relating to any Loan, Assignor
may, upon notice to MLMCI, demand that MLMCI redeliver all or any portion of the
Supplemental Collateral, provided, however, that after giving effect to such
redelivery, the Current Margin would not be less than the Margin Requirement,
and MLMCI shall make good delivery of such Supplemental Collateral, in a manner
equivalent to the manner in which such Supplemental Collateral was delivered to
MLMCI, no later than the Business Day following receipt by MLMCI of such notice.
In such connection, MLMCI shall execute such other documents and take such other
actions as Assignor may reasonably request in order to evidence and give effect
to the release of such Supplemental Collateral from the security interest
granted by this Agreement, within three (3) Business Days following Assignor's
request.
SECTION 6. RELEASE AND SUBSTITUTION OF COLLATERAL
(a) Assignor may obtain the release from MLMCI of the security interest
in and lien on all or any part of the Collateral at any time, and from time to
time, by paying to MLMCI as a repayment the amount of the Loan outstanding with
respect to such Collateral to be so released; provided, however, that the date
of any such repayment must be acceptable to MLMCI. Any release of the security
interest in and lien on all or any part of the Collateral as a result of a
repayment or a substitution pursuant to this Section shall be evidenced by the
execution and delivery by MLMCI of appropriate documentation to evidence such
release.
(b) MLMCI shall allow Assignor, in Assignor's sole discretion, to
provide collateral acceptable to MLMCI, in MLMCI's sole reasonable discretion,
to be substituted for existing Collateral of equal market value ("Substitute
Collateral"). All certificates or instruments representing such Substitute
Collateral shall be accompanied by duly executed instruments of transfer or
assignments in blank, all in form and substance reasonably satisfactory to
MLMCI.
SECTION 7. CONDITIONS TO THE LOANS
(a) Conditions to the Effective Date. The obligation of MLMCI to enter
into this Agreement is subject to the satisfaction by Assignor of the following
conditions on the Effective Date:
(i) Loan Documents. MLMCI shall have received the following
documents each in form and substance satisfactory to MLMCI and its counsel:
a. this Agreement, executed and delivered on behalf of
Assignor by a duly authorized officer of Assignor,
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b. the Note, executed and delivered on behalf of Assignor
by a duly authorized officer of Assignor,
c. the related Collateral, if delivery of the Collateral is
required in order to perfect MLMCI's security interest
in such Collateral, and
d. the Master Repurchase Agreement, executed and delivered
on behalf of an affiliate of Assignor by a duly
authorized officer of such affiliate of Assignor.
(ii) Proceedings of Assignor. MLMCI shall have received a copy of
the resolutions in form and substance satisfactory to MLMCI and its counsel, of
Assignor authorizing (i) the execution, delivery and performance of the Loan
Documents and the other documents to be executed and/or delivered by it pursuant
hereto or thereto or in connection herewith or therewith, (ii) the borrowings
contemplated hereunder and (iii) the granting by it of the security interest
contemplated hereby, certified by a duly authorized officer of Assignor as of
the Effective Date, which certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded as of the date
of such certificate.
(iii) Corporate Documents. MLMCI shall have received true and
complete copies of the Certificate of Incorporation and By-Laws of Assignor
(including any and all amendments, supplements and modifications thereto)
certified to such effect by a duly authorized officer of Assignor as of the
Effective Date.
(iv) No Violation. The consummation of the transactions contemplated
hereby and by the other Loan Documents shall not contravene, violate or conflict
with, nor involve MLMCI in a violation of, any requirement of law.
(v) Permits, Licenses, Approvals, Consent, etc. MLMCI shall have
received a certificate of a duly authorized officer of Assignor certifying that
all material permits, licenses, approvals and consents required in connection
with the execution, delivery and performance by Assignor and the validity and
enforceability against Assignor of this Agreement and the other Loan Documents
have been obtained and such permits, licenses, approvals and consents are in
full force and effect and have not been amended, modified, revoked or rescinded.
(vi) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Agreement and the other
Loan Documents shall be reasonably satisfactory in form and substance to MLMCI
and its counsel.
(b) Conditions Precedent to all Loans and Substitutions. The making of
any Loan or the permitting of any substitution of Substitute Collateral by MLMCI
hereunder is, except as otherwise provided in this Section 7, subject to
compliance by Assignor with the following conditions precedent and the other
terms and conditions hereof and, the giving of any notice by
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Assignor with respect to a Loan pursuant to Section 4 and the acceptance of the
Proceeds of any Loan by Assignor and the substitution of any Substitute
Collateral shall be deemed certification by Assignor that the following
conditions shall have been met:
(i) Representations and Warranties. Each of the representations and
warranties made by Assignor herein and in the other Loan Documents are true and
correct on and as of the Closing Date, before and after giving effect to the
Loan (and the application of the Proceeds therefrom) or the substitution, as
though made on and as of such date.
(ii) No Default. Before and after giving effect to such Loan (and
the application of Proceeds therefrom) or such substitution, no Default or Event
of Default shall have occurred and be continuing on and as of the Closing Date.
(iii) Financing Statements. The separate financing statement,
instrument or other document, if required by MLMCI to be recorded and/or filed
with respect to the subject Loan or substitution, shall have been so recorded
and/or filed.
(iv) Good Standing Certificates. On or prior to the initial
Closing Date hereunder and from time to time thereafter as MLMCI may reasonably
request (but not more frequently than quarterly), MLMCI shall have received
original certificates, in form and substance satisfactory to MLMCI and its
counsel, from the Secretary of State or other appropriate authority of such
jurisdiction, evidencing the good standing of Assignor in the state of its
incorporation and in each other jurisdiction where the ownership of its property
or the conduct of its business requires such qualification.
(v) Legal Opinion of Counsel to Assignor. On or prior to the
initial Closing Date hereunder and on each date after the initial Closing Date
that a security interest in Collateral is granted to MLMCI hereunder Assignor
shall cause to be delivered to MLMCI an opinion of counsel to Assignor (which
counsel may be internal counsel for Assignor and shall be satisfactory to
MLMCI), in substantially the form attached hereto as Exhibit C or such other
form as MLMCI and Assignor may mutually agree.
(vi) Recordings and Filings. All material instruments and documents
(including, without limitation, financing statements and continuation
statements) required to be filed hereunder in order to create in favor of MLMCI
a perfected security interest in the Collateral hereunder shall have been
properly filed in each office in each relevant jurisdiction and copies of such
instruments and documents, stamped to indicate such filing, shall have been
delivered to MLMCI.
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(c) Assignment of Subordinated Interest.
(i) If Assignor has previously assigned a portion of the cash flow
payable to Assignor under the Pledged MBS to Pacific Thrift, Pacific Thrift has
acknowledged to MLMCI in writing that (1) the interest acquired by Pacific
Thrift from Assignor is totally subordinated to the rights of MLMCI to such
Pledged MBS, (2) Pacific Thrift will not contest the timing, procedure or sales
price of any sale of such Pledged MBS by MLMCI and (3) MLMCI shall have no duty
to Pacific Thrift with respect to the Pledged MBS or any proceeds thereof except
for its obligations as a secured creditor to a debtor under the Uniform
Commercial Code.
(ii) Assignor shall not pledge or otherwise hypothecate its
remaining interest in any Pledged MBS to any Person other than Pacific Thrift
without the prior written consent of MLMCI.
(iii) In the case of any Pledged MBS with respect to which Assignor
has previously assigned a portion of the cash flow to Pacific Thrift as
permitted hereby, the Advance Percentage shall be 65% and the Margin Requirement
shall be 35%.
SECTION 8. REPRESENTATIONS AND WARRANTIES
In order to induce MLMCI to enter into this Agreement and to make the
Loans hereunder, Assignor hereby represents and warrants to MLMCI, and shall on
and as of the Closing Date of each Loan and each date on which Substitute
Collateral is substituted, be deemed to represent and warrant to MLMCI, that:
(a) Due Incorporation. Assignor has been duly organized and is validly
existing as a corporation in good standing under the laws of the state of its
incorporation and is duly qualified and in good standing in each other
jurisdiction where the conduct of its business or the ownership, lease or
operation of its property requires such qualification.
(b) Authorization. Assignor has full power and authority to execute and
deliver the Loan Documents and to perform its obligations hereunder and
thereunder; the Loan Documents have each been duly authorized by all necessary
action and neither requires any additional approval of any directors or officers
other than that which has already been obtained, each has been duly executed and
delivered by Assignor and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization or similar laws of general
applicability relating to or affecting creditors' rights, to the assumption that
enforcement will be undertaken in a commercially reasonable manner and to
general principles of equity and equitable remedies, regardless of whether
enforcement is considered in a proceeding in equity or at law.
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(c) No Conflict. Neither the execution and delivery nor the performance
by Assignor of this Agreement or the Note will conflict with the governing
instruments of Assignor or conflict with, result in a breach of or constitute a
default or require any consent under any instrument or agreement to which
Assignor is a party or by which Assignor may be bound, or any law, order or
regulation applicable to Assignor of any court, governmental agency, authority
or body having jurisdiction over Assignor and do not and will not result in or
require the creation of any lien, security interest or other charge or
encumbrance (other than pursuant hereto) upon or with respect to any of
Assignor's properties.
(d) Approvals, etc. Neither the execution and delivery nor the
performance by Assignor of this Agreement requires any authorization, approval,
consent, license, exemption (other than any self-executing exemption), filing,
registration or the taking of any other action in respect of any federal or
state authority (collectively, the "Approvals") except where the failure to
comply with such requirement would not adversely affect the delivery, execution
or performance by Assignor of this Agreement or cause a Material Adverse Change
with respect to Assignor.
(e) Good Title. (i) Assignor is the owner of the Collateral and such
Collateral is free and clear of all security interests, liens, charges,
encumbrances and rights of others, except for the lien and security interest
created hereby, and on the related Closing Date, MLMCI has a first priority lien
on and security interest in the Collateral (including all Proceeds,
distributions and other amounts realized in respect thereof) in favor of MLMCI,
subject to no prior security interest, lien, charge, encumbrance or rights of
others, and, MLMCI having taken possession of the Collateral endorsed in the
name of MLMCI or its nominee or delivered with such instruments of transfer as
provided in Section 2(b) hereof, no further action, including any filing or
recordation of any document, is currently required in order to establish and
perfect the liens on and security interests in the Collateral in favor of MLMCI
against any third parties in any jurisdiction.
(ii) Assignor's chief executive office and the place where its books and
records concerning the Collateral are kept is set forth on Exhibit D hereto.
Each location of Assignor where any of the Collateral is located is set forth on
Exhibit D.
(f) Tax Liens. There are no delinquent federal, state, city, county or
other taxes relating to Assignor, the Collateral or any arrangement pursuant to
which the Collateral is issued that might, in the reasonable judgment of MLMCI,
materially adversely affect any of the Collateral or cause a Material Adverse
Change in Assignor, and all such delinquent tax liabilities have been satisfied
except those that are being contested by Assignor in good faith and with respect
to which payment has been stayed by a court of competent jurisdiction.
(g) Financial Statements. Since the date of the most recent financial
statement delivered by Assignor to MLMCI, there has been no Material Adverse
Change in Assignor. Assignor shall provide MLMCI with such financial statements
and other information as is contemplated in Section 9(a) hereof.
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(h) No Litigation. There are no actions, suits, investigations, or other
proceedings pending, or, to the best knowledge of Assignor, after due inquiry,
threatened, against or affecting Assignor by or before any court, arbitrator, or
Governmental Authority which challenge any of the transactions contemplated
under this Agreement or any other Loan Document or could result in a Material
Adverse Change in Assignor and there are no preliminary or permanent injunctions
or orders by any court or other Governmental Authority pending affecting this
Agreement or any other Loan Document or any of the transactions contemplated
hereby or thereby.
(i) Disclosure. No certificate, statement, report or other document
furnished and no representation or warranty made or to be furnished or made to
MLMCI by or on behalf of Assignor in or in connection with this Agreement or any
transaction contemplated hereby, or in connection with any other Loan Document
or any transaction contemplated thereby, or in connection with any Pledged MBS,
at the time furnished, contains or will contain any untrue statement of a
material fact or omits or will omit to state any material fact necessary in
order to make the statements contained therein not misleading.
(j) Permits, Licenses, Approvals, Consents, etc. Assignor has obtained
any and all material permits, licenses, approvals and consents of any
Governmental Authority or other Person as may be required in connection with the
execution, delivery and performance by and the validity and enforceability
against Assignor of this Agreement and the other Loan Documents and the
consummation of the transactions contemplated hereby or thereby (all such
permits, licenses, approvals and consents, if any, are in full force and effect
and have not been amended, modified, revoked or rescinded).
(k) The Investment Company Act. Assignor is not an "investment company",
or an entity "controlled by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 9. AFFIRMATIVE COVENANTS
Until the Obligations are paid and satisfied in full and this Agreement
has been terminated, Assignor covenants and agrees that it will:
(a) Financial Statements and Other Information. Furnish to MLMCI:
(i) as soon as available and in any event within sixty (60) days after
the close of each of the first three (3) quarters of each fiscal year of
Assignor, the applicable quarterly Form 10-Q as filed with the Securities and
Exchange Commission, including the consolidating statements for Assignor,
subject to normal recurring year-end audit adjustments, and as prepared in
accordance with GAAP;
(ii) as soon as available and in any event within ninety (90) days after
the close of each fiscal year of Assignor, a balance sheet of Assignor, a
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statement of income of Assignor and a statement of changes in financial position
of Assignor as at the end of and for the fiscal year just closed, setting forth
the corresponding figures of the previous fiscal year, if applicable, in
comparative form, all in reasonable detail and certified (without any
qualification or exception deemed material by MLMCI) by independent public
accountants selected by Assignor and reasonably satisfactory to MLMCI and
concurrently with such financial statements, a written statement signed by such
independent public accountants to the effect that, based solely on the
examination necessary for their certification of such financial statements,
Assignor is in compliance with the covenants in Section 10(d) hereof, or if such
independent public accountants shall have obtained from such examination any
knowledge to the contrary, they shall disclose in such written statement the
related Event of Default or Default and the nature thereof;
(iii) concurrently with the delivery of the financial statements
required to be furnished by Section 9(a)(ii) hereof, a certificate signed by the
chief executive or financial officer of Assignor, stating (1) that a review of
the activities of Assignor during such quarter or fiscal year, as the case may
be, has been made under his or her immediate supervision with a view to
determining whether Assignor has observed, performed and fulfilled all of its
obligations under this Agreement and whether Assignor is in compliance with the
representations and warranties in Section 8 hereof and the covenants in Sections
9 and 10 hereof, and (2) that there existed during such quarter or fiscal year,
as the case may be, no Event of Default and no Default or if any such Event of
Default or Default did exist, specifying the nature thereof, the period of
existence thereof and what action Assignor proposes to take, or has taken, with
respect thereto;
(iv) promptly, and in any event no later than five (5) Business Days,
after the commencement thereof, written notice of any material actions, suits or
proceedings (including arbitrations) against Assignor before any court or other
Governmental Authority;
(v) immediately upon becoming aware of any development or other
information which is reasonably likely to result in a Material Adverse Change in
Assignor, written notice specifying the nature of such development or
information, such anticipated effect and action, if any, Assignor proposes to
take or has taken with respect thereto;
(vi) with reasonable promptness, such other information respecting any
matter likely to result in a Material Adverse Change in Assignor as MLMCI may
reasonably request from time to time.
(b) Existence, Conduct of Business, etc. Continue to engage primarily in
the business of the same general type as now conducted by it and preserve, renew
and maintain in full force and effect its existence and all permits, licenses,
approvals, consents, rights, privileges and franchises necessary or desirable in
the conduct or transaction of its business or the ownership or operation of its
properties or the lease of its properties to which it is a lessee.
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(c) Taxes. Assignor will pay and discharge all taxes, levies, liens and
other charges on its assets and on the Collateral that, in each case, in any
manner would create any lien or charge upon the Collateral.
(d) Laws. Assignor will at all times comply in all material respects
with all laws, ordinances, rules and regulations of any federal, state,
municipal or other public authority having jurisdiction over Assignor or any of
its assets.
(e) Name and Locations. Assignor will immediately advise MLMCI in
writing of the opening of any new chief executive office or new principal
executive office or the closing of any such office and of any change in
Assignor's name or the places where the books and records pertaining to the
Collateral are kept.
(f) Records. Assignor will maintain records with respect to the
Collateral and the conduct and operation of its business in conformity with
general industry standards and with no less a degree of prudence than if the
Collateral were held by Assignor for its own account and will furnish MLMCI,
upon reasonable request by MLMCI or its designated representative, with
reasonable information with respect to the Collateral and the conduct and
operation of its business. Assignor will permit MLMCI or its designated
representative to inspect Assignor's records with respect to the Collateral and
the conduct and operation of its business upon reasonable notice from MLMCI or
its designated representative, at reasonable times during regular business hours
and with reasonable frequency, and to make copies or extracts of any and all
thereof. MLMCI shall act in a commercially reasonable manner in requesting and
conducting any inspection relating to the conduct and operation of Assignor's
business.
(g) Pay Obligations. Pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its material
obligations of whatever nature, except when the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and Assignor
has established adequate reserves with respect thereto and no Liens have
attached to the Collateral or any portion thereof.
(h) Notices. Promptly, and in any event within one (1) Business Day of
the occurrence thereof, notify MLMCI in writing of (i) the occurrence of any
Default or Event of Default hereunder or under any other Loan Document or (ii)
any event of default by any party thereto under any indenture, mortgage, deed of
trust, agreement or other instrument or contractual obligation to which Assignor
is a party or by which any of its properties may be bound or affected which
could result in a Material Adverse Change in Assignor, and specifying in each
case the action Assignor has taken or proposes to take with respect thereto.
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(i) Covenant Compliance Certificate. Deliver a Covenant Compliance
Certificate to MLMCI on the first Business Day of each calendar month.
(j) Reports. Cause to be furnished directly to MLMCI, promptly after the
production thereof, Assignor's Call Reports and each report from Assignor to any
applicable regulatory authority and any response thereto from such regulatory
authority.
(k) Monthly Collateral Report. Furnish or cause to be furnished to
MLMCI, on the last Business Day of each month, a report for each Pledged MBS
substantially in the form of, and containing the information set forth on,
Exhibit E hereto.
SECTION 10. NEGATIVE COVENANTS
Until the Obligations are paid and satisfied in full and this Agreement
has been terminated, Assignor covenants and agrees that it will not:
(a) Liens. Create, incur, assume or suffer to exist, any Lien on any of
the Collateral whether now owned or hereafter acquired, other than Liens in
favor of MLMCI hereunder.
(b) Mergers, Sales, Dissolution, etc. (i) Merge into or consolidate with
any other Person without the prior consent of MLMCI, which consent shall not be
unreasonably withheld or delayed, or (ii) assign, transfer, sell, lease, or
otherwise dispose of any of the Collateral, or all or substantially all of its
other property or assets to any other Person or (iii) wind up, liquidate or
dissolve, or agree to do any of the foregoing.
(c) Corporate Changes. Change its name, principal place of business, the
location where its books and records are kept with respect to the Collateral or
corporate structure on less than thirty (30) days prior written notice to MLMCI.
(d) Credit Covenants. Permit (i) the ratio of Assignor's assets to
equity to exceed 15 to 1;
(ii) the ratio of Pacific Thrift's assets to equity to exceed 15 to 1;
(iii) Assignor shall experience losses or changes in its financial
condition that cause its Book Net Worth for any two consecutive calendar
quarters to be less than or equal to 80% of its Book Net Worth as of the
commencement of such period;
(iv) Assignor's Book Net Worth shall at any time be less than
$25,000,000; and
(v) Assignor shall pay or declare any dividend or other distribution
except (a) dividends payable solely in the form of capital stock or (b)
dividends otherwise approved in writing by
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MLMCI; notwithstanding the above, Assignor may not pay or declare any dividends
at any time while an Event of Default exists and is continuing or would be
created by such dividends.
(e) Use of Proceeds. The Proceeds of the Loans made pursuant to this
Agreement will not be used by Assignor, directly or indirectly, for the purpose
of purchasing or carrying any Margin Stock or for the purpose of reducing or
retiring any debt which was originally incurred to purchase or carry Margin
Stock or for any other purpose which might constitute the Loans under this
Agreement as being "purpose credit" within the meaning of Regulation G or X of
the Board of Governors of the Federal Reserve System.
(f) Further Covenants. Without prior written consent of MLMCI, Assignor
will not: (i) assign, sell, transfer, pledge or grant any security interest in
or lien on any of the Collateral to anyone except MLMCI, permit any financing
statement (except any financing statements in favor of MLMCI) or assignment
(except for any assignments in favor of MLMCI) to be on file in any public
office with respect thereto, (ii) permit or suffer to exist any security
interest, lien, charge, encumbrance or right of others to attach to any of the
Collateral, except as contemplated by this Agreement, or (iii) consent to any
amendment or supplement to any MBS Issuance Agreement that is reasonably likely
to result in a material adverse affect on the Market Value of the Pledged MBS,
but excluding in any event any amendment or supplement that effectuates a
letter-of-credit and the limited quarterly substitution into a related reserve
fund for the release of cash as contemplated in such MBS Issuance Agreement.
SECTION 11. EVENTS OF DEFAULT
Each of the following, so long as it shall not have been remedied, shall
constitute an "Event of Default" hereunder:
(a) Nonperformance. Any failure to pay, whether on the acceleration
thereof or otherwise, any amounts due under the Note or any failure to pay any
amount due under this Agreement or to perform any provision of this Agreement in
accordance herewith, or any material breach of any representation, warranty or
covenant set forth herein or in the Note.
(b) Termination of Interest. The lapse or termination of Assignor's
interest in any of the Collateral.
(c) Act of Insolvency. The filing by Assignor or any affiliate, of a
petition in bankruptcy, the adjudication of Assignor or any affiliate as
insolvent or bankrupt, the petition or application by Assignor or any affiliate
for any receiver or trustee for itself or any substantial part of its property,
the commencement by Assignor or any affiliate of any proceeding relating to it
under any reorganization, arrangement, dissolution or liquidation law, or the
initiation of any such proceeding against Assignor or any affiliate, if Assignor
or such affiliate indicates by any act its consent thereto or if such proceeding
is not dismissed within thirty (30) days.
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(d) Material Adverse Change. In the reasonable judgment of MLMCI, a
Material Adverse Change in Assignor shall have occurred.
(e) Default Under Other Contracts. Assignor shall be in default with
respect to any normal and customary covenants under any contract or agreement to
which it is a party (which covenants include, but are not limited to, an Act of
Insolvency of Assignor or the failure of Assignor to make required payments
under such contract or agreement as they become due) which default permits
acceleration of the obligations of Assignor under such contract or agreement by
any other party thereto and which default, in the reasonable judgment of MLMCI,
is likely to result in a Material Adverse Change in Assignor.
(f) Merger or Consolidation. Assignor shall merge or consolidate into
any entity unless MLMCI shall have expressly consented to such merger or
consolidation in writing, which consent shall not be unreasonably withheld.
(g) Anticipated Insolvency. MLMCI shall reasonably determine that
Assignor is or will be unable to meet its commitments hereunder, notifies
Assignor of such determination and Assignor shall not have responded with
appropriate information to the contrary to the satisfaction of MLMCI within
thirty-six (36) hours.
(h) Final Judgment. A final, non-appealable judgment by any competent
court in the United States for the payment of money in an amount of at least
$100,000 is rendered against Assignor, and the same remains undischarged and
unpaid for a period of sixty (60) days during which execution of such judgment
is not effectively stayed.
(i) Breach of Representation. Any representation or warranty made by
Assignor herein shall have been incorrect or untrue in any material respect when
made or repeated or when deemed to have been made or repeated and which breach,
in the reasonable judgment of MLMCI, is likely to result in a Material Adverse
Change in Assignor.
(j) Breach of Covenant. Assignor shall breach in any material respect
any covenant made by it herein and MLMCI's interests shall have been materially
adversely affected thereby.
SECTION 12. REMEDIES
(a) Action Regarding Collateral. If an Event of Default shall occur,
MLMCI, without demand of performance or other demand or notice of any kind to
Assignor or any other person, all of which are hereby expressly waived, may
forthwith apply the cash, if any, then held by it as part of the Collateral
relating to any Loan to the payment of any of the Obligations, and, if there
shall be no such cash or the cash so applied shall not be sufficient to pay in
full all such Obligations, may thereafter collect, receive, appropriate, retain
and realize upon the Collateral, or any part thereof, and may forthwith sell,
assign, give an option or options to purchase, contract to
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sell, or otherwise dispose of and deliver the Collateral, or any part thereof,
in one or more parcels at such public or private sale or sales, at such place or
places, at such price or prices and upon such other terms and conditions as
MLMCI may deem best (provided, however, that MLMCI shall act in all respects in
a commercially reasonable manner), for cash or on credit or for future delivery
without assumption of any credit risk, with the right of MLMCI upon any such
sale or sales to purchase all or any part of the Collateral so sold. Upon any
sale, transfer or other disposition of the Collateral pursuant hereto MLMCI
shall have the right to deliver, assign and transfer to the transferee thereof
the Collateral so sold. Each transferee upon any such transfer or other
disposition shall hold the property thereby acquired by it absolutely free from
any claim or right of any kind, including any equity or rights of redemption, of
Assignor, who hereby specifically waives all rights of redemption, stay or
appraisal which it has or may have under any rule of law or statute whether now
existing or hereafter adopted (in the latter case, to the extent permitted
thereby). Assignor agrees that MLMCI need give only such notice of the time and
place of any public or private sale (including any adjourned private sale) or
other intended disposition as may be required by market conditions and standards
of commercial reasonableness and that MLMCI need not in any event give more than
five (5) Business Days' notice that such sale or disposition is to take place.
Assignor agrees that the notice provided for in the preceding sentence is
reasonable notification of such matters.
MLMCI shall not be obligated to make any sale pursuant to any such
notice. MLMCI 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 the
time and place fixed for the 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 MLMCI until the selling price is paid by the purchaser
thereof, but MLMCI shall not incur any 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. MLMCI, however,
instead of exercising the power of sale herein conferred upon it, may proceed by
a suit or suits at law or in equity to foreclose the lien and security interest
created hereby and sell the Collateral, or any portion thereof, under a judgment
or decree of a court or courts of competent jurisdiction.
(b) Deficiency. If the Proceeds of sale, collection, foreclosure or
other realization of or upon the Collateral are insufficient to cover the costs
and expenses of such realization and the payment in full of the Obligations,
Assignor shall remain liable for any deficiency.
(c) Private Sale. MLMCI shall incur no liability as a result of the sale
of the Collateral (provided, however, that MLMCI shall act in a commercially
reasonable manner) or any part thereof, at any private sale. Assignor hereby
waives any claims against MLMCI or any holder or holders of the Note arising by
reason of the fact that the price at which the Collateral may have been sold at
such a private sale was less than the price which might have been obtained at a
public sale or was less than the aggregate amount of the Obligations, even if
MLMCI accepts the first
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offer received and does not offer the Collateral to more than one offeree
(provided, however, that MLMCI shall act in a commercially reasonable manner).
(d) Application of Proceeds. The Proceeds of any sale or other
realization of all or any part of the Collateral, and any other cash at the time
held by MLMCI under this Agreement, shall be applied by MLMCI in the following
order of priority:
First, to the payment of the costs and expenses of such sale and
all expenses (including the reasonable fees and expenses of counsel),
liabilities and advances made or incurred by MLMCI in connection
therewith.
Second, to the payment of all accrued interest under the Note
due or past due.
Third, to the payment of principal upon the Note due or past
due.
Fourth, to the payment of all other amounts owing under this
Agreement.
Fifth, to the payment to Assignor, or to such other person as a
court of competent jurisdiction may direct, of any surplus then
remaining from such Proceeds and other cash.
(e) Default Rate of Interest. After demand is made with respect to the
Note or upon acceleration thereof, until the balance thereof shall be paid, the
Loan amounts due thereunder, shall bear interest at a per annum rate (based on a
year of 360 days and actual days elapsed) equal to two hundred (200) basis
points in excess of the interest rate for such Loan, but in no event higher than
the maximum rate permitted by law (the "Default Rate").
(f) Attorney-in-Fact. Effective upon the occurrence of an Event of
Default hereunder, MLMCI is hereby appointed the attorney-in-fact of Assignor
for the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instruments which MLMCI may deem necessary or advisable
to accomplish the purposes hereof, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, after an Event of Default has occurred, MLMCI shall have the right
and power to receive, endorse and collect all checks made payable to the order
of Assignor representing any distribution in respect of the Collateral or any
part thereof and to give full discharge for the same.
(g) Payments on Collateral to Assignor.
(i) All rights of Assignor to receive any payments from the related
Collateral which it would otherwise be authorized to receive shall cease, and
all such rights shall thereupon become vested in MLMCI, which shall thereupon
have the sole right to receive and hold as Collateral such payments.
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(ii) All payments which are received by Assignor contrary to the
provisions of the preceding subsection (i) shall be received in trust for the
benefit of MLMCI, shall be segregated from other funds of Assignor and shall be
promptly paid to MLMCI.
(h) Cross-Collateralization; Right of Set-Off. MLMCI may, in its sole
discretion upon the occurrence and during the continuation of an Event of
Default hereunder, proceed against any assets held by it under the Master
Repurchase Agreement and shall have a right of set-off against any amounts owed
by MLMCI under the Master Repurchase Agreement. In addition, the parties agree
that MLMCI may, in its sole discretion upon the occurrence and during the
continuation of an event of default under the Master Repurchase Agreement,
proceed against any assets held by it hereunder and shall have a right of
set-off against any amount owed by MLMCI to Assignor hereunder.
SECTION 13. MATURITY DATE; INTEREST PAYMENT DATES;
REPAYMENT OF PRINCIPAL
(a) Payment on Maturity Date. Assignor and MLMCI hereby agree that the
Obligations of Assignor hereunder and under the Note are payable on the Maturity
Date unless earlier payment thereof is required pursuant to the terms of this
Agreement.
(b) Extension of Maturity Date. Assignor may, not later than three (3)
months prior to the Maturity Date, request in writing that MLMCI extend such
Maturity Date for a period not exceeding one year. MLMCI will use its best
efforts to respond within two (2) weeks of receiving such written request. Such
response will include whether or not MLMCI would be willing to so extend the
Maturity Date and the terms of any such extension. Nothing contained herein
shall be deemed to limit the right of MLMCI, in its sole discretion, to decline
to enter into such extension or to agree to such extension on terms different
from those set forth herein. Any such extension shall be evidenced only by a
written agreement among the parties amending this Agreement and the Note.
(c) Interest Payment. Interest on each Loan shall be payable monthly on
the dates described in the related Confirmation Statement.
(d) Payment of Principal. The principal portion of each Loan may be
repaid in whole or in part at the discretion of Assignor on any date on which a
payment of interest is to be made thereon by Assignor pursuant to the terms of
this Agreement and the related Confirmation Statement provided that (i) Assignor
shall have provided MLMCI with not less than two (2) Business Days' written
notice of Assignor's intention to effect such repayment and the amount thereof,
(ii) all payments of interest then due and owing on the Loan are paid in full
and (iii) no Event of Default has occurred and is continuing with respect to any
of Assignor's Obligations hereunder or under the Note.
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(e) Event of Default. Nothing in this Section 13 shall be deemed to
limit the right of MLMCI to require, so long as an Event of Default shall have
occurred and is continuing, the payment by Assignor of all Obligations arising
hereunder and under the Note.
SECTION 14. PAYMENT OF TAX LIABILITY
Assignor and MLMCI agree that any tax or other liability (excluding any
tax liability arising from the receipt by MLMCI of interest income on any Loan
under this Agreement) incurred by the beneficial owner or the registered holder
of any Collateral pledged under the this Agreement shall be borne by Assignor.
So long as any Obligations are outstanding hereunder, Assignor agrees to
indemnify MLMCI for, and to hold MLMCI harmless against, any liability inuring
to MLMCI as a result of the endorsement of the Collateral in MLMCI's name, or
MLMCI's status as the lender hereunder or beneficial holder of such Collateral,
including, without limitation, any tax liability or liability for the payment of
expenses of the trust funds established under the applicable MBS Issuance
Agreements.
SECTION 15. GENERAL PROVISIONS
(a) No Waiver. No waiver or amendment of or forbearance in enforcing any
provision of this Agreement nor consent to any departure by either party
herefrom shall be effective unless expressly granted in writing and shall be
limited to the extent expressed therein.
(b) Governing Law; Severability. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and entirely performed therein. Unless otherwise defined herein,
terms defined in the UCC are used herein as defined therein. Each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or be invalid under such law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
(c) Construction. The captions in this Agreement are for convenience of
reference only and shall not affect the construction or interpretation of any of
the provisions hereof.
(d) Assignment. This Agreement shall be binding upon and shall inure to
the benefit of each of the parties hereto and their respective successors and
assigns; provided, however, that neither this Agreement nor any rights or other
obligations hereunder may be assigned by Assignor without prior written consent
of MLMCI and any attempted or purported assignment hereof or thereof shall be
void. MLMCI may assign any or all of its rights hereunder without consent.
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(e) Notices, Payments, Deliveries. Unless otherwise provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, facsimile or telex communication), and such notices and
other communications shall, when mailed, telegraphed, communicated by facsimile
transmission or telexed, be effective when received at the address for notices
for the party to whom such notice or communications is to be given as follows:
If to MLMCI:
Xxxxxxx Xxxxx Mortgage Capital Inc.
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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If to Assignor:
PacificAmerica Money Center, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telephone: (818) 992-8999 ext. 260
Telecopy: (000) 000-0000
with a copy to:
Attention: Xxxxxxx X. Xxxxxx
Telephone: (818) 992-8999 ext. 298
Telecopy: (000) 000-0000
and
Attention: Xxxxxxx X. Xxxxx
Telephone: (818) 992-8999 ext. 222
Telecopy: (000) 000-0000
and
Jeffer, Mangels, Xxxxxx & Marmaro LLP
2121 Avenue of the Stars
Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx XxXxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
provided, however, that a facsimile or other form of electronic transmission
shall be deemed to be received by the parties hereto when transmitted so long as
the transmitting machine has provided an electronic confirmation of such
transmission and such facsimile or other form of electronic transmission is
confirmed with a printed paper copy thereof by mail or overnight courier
service. All payments on and deliveries of Collateral hereunder shall be made to
the address or account for payments and deliveries of such Collateral for the
party to whom such payment or delivery is to be made as set forth above. Either
party may revise any information relating to it by notice in writing to the
other party, which notice shall be effective on the third Business Day following
receipt thereof.
(f) Termination. When all Obligations shall have been paid in full and
upon the written request of Assignor, this Agreement shall terminate (such date,
the "Termination Date") and
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MLMCI shall release its lien and security interest hereunder and assign,
transfer and deliver, against receipt, any remaining Collateral and money
received in respect thereof to or on the order of Assignor. Upon the request of
Assignor, MLMCI will then execute termination statements and such other
documents as Assignor may reasonably request as are necessary to make clear upon
the public record the termination of the lien and security interests created
hereby with respect to such assignment. The obligations of Assignor under
Section 15(h) below shall, with respect to each transaction entered into
hereunder, survive any termination hereof.
(g) Aggregate Amount of Loans; Disbursement of Funds.
(i) The aggregate outstanding principal amount of the Loans made by
MLMCI hereunder shall be limited to the Maximum Loan Amount.
(ii) Assignor may request disbursement of amounts borrowed hereunder
upon not less than two (2) Business Days' written notice to MLMCI.
(iii) MLMCI is not obligated to make any Loan or advance under this
Agreement or pursuant to the Note.
(h) Expenses.
(i) Assignor shall pay its own costs and expenses and all reasonable
costs and expenses of MLMCI (including, without limitation, reasonable
fees and expenses for legal services) incident to the preparation and
negotiation of this Agreement and any documents relating hereto.
(ii) Assignor agrees to pay to MLMCI on demand all reasonable costs
and expenses (including reasonable expenses for legal services) of any
subsequent enforcement of any of the provisions hereof, or of the
performance by MLMCI of any Obligations of Assignor in respect of the
Collateral which Assignor has failed or refused to perform, or any
actual or attempted sale, or any exchange, enforcement, collection,
compromise or settlement in respect of any of the Collateral and for the
custody, care or preservation of the Collateral (including insurance
costs) and defending or asserting rights and claims of MLMCI in respect
thereof, by litigation or otherwise, including expenses of insurance. In
addition, Assignor agrees to pay to MLMCI on demand all costs and
expenses (including reasonable expenses for legal services) of the
registration of the Collateral in the name of MLMCI or its nominee. All
such expenses shall be Obligations to MLMCI secured under this
Agreement.
(i) MLMCI's Right to Pledge. Nothing in this Agreement shall preclude
MLMCI from engaging in transactions with third parties involving the selling
pursuant to a repurchase arrangement, pledging or hypothecating of the
Collateral, but no such transaction shall relieve MLMCI of its obligations
hereunder. MLMCI hereby grants to Assignor the right to perform in
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MLMCI's stead under any repurchase, reverse repurchase, loan or similar
transaction in which MLMCI has sold, pledged or otherwise transferred any
Pledged MBS in the event that MLMCI has defaulted on its obligations to
repurchase or accept redelivery of such Pledged MBS in conformity with the terms
of any such transaction and so long as an Event of Default hereunder by Assignor
shall not have occurred and be continuing. MLMCI further acknowledges that each
Pledged MBS identified in a Confirmation Statement and included as Collateral
for a Loan hereunder is unique and identifiable on the date of such Loan and
that an award of money damages would be insufficient to compensate Assignor for
the losses and damages incurred by Assignor in the event of MLMCI's failure to
release and redeliver any Pledged MBS upon the repayment of the related Loan by
Assignor as provided hereunder.
(j) Indemnification. Assignor agrees to indemnify and hold harmless
MLMCI against all liabilities and expenses to which MLMCI may become subject
relating to any fees, taxes or liability to any third party resulting from any
action taken or omitted by or upon instructions of Assignor with respect to the
Collateral.
(k) Further Assurances. Assignor agrees that, from time to time upon the
prior written request of MLMCI, it will (i) execute and deliver such further
documents and do such other acts and things as MLMCI may reasonably request in
order to fully effectuate the purposes of this Agreement and (ii) provide such
opinions of counsel concerning matters relating to this Agreement as MLMCI may
reasonably request.
(l) Remedies Cumulative. All rights, remedies and powers of MLMCI
hereunder and in connection herewith are irrevocable and cumulative, and not
alternative or exclusive, and shall be in addition to all other rights, remedies
and powers of MLMCI whether under law, equity or agreement. In addition to the
rights and remedies granted to it in this Agreement or under the Note, MLMCI
shall have all the rights and remedies of a secured party under the UCC.
(m) Litigation. Notwithstanding any termination hereof, Assignor hereby
agrees that any legal action or proceeding against it in connection herewith may
be brought in the courts of the State of New York or of the United States of
America located in the City and State of New York, Borough of Manhattan, as
MLMCI may elect, and Assignor hereby irrevocably submits to the jurisdiction of
each of said courts, and waives any objection on the grounds of venue, forum non
conveniens or similar grounds.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PACIFICAMERICA MONEY CENTER, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
XXXXXXX XXXXX MORTGAGE CAPITAL INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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EXHIBIT A
THIS NOTE IS NOT A
NEGOTIABLE INSTRUMENT.
NO TRANSFER OR SALE OF THIS NOTE SHALL BE MADE UNLESS SUCH TRANSFER IS EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
AND ANY APPLICABLE STATE SECURITIES LAWS OR IS MADE IN ACCORDANCE WITH SAID ACT
AND LAWS.
NOTE
$20,000,000
New York, New York December 18, 1997
FOR VALUE RECEIVED, PACIFICAMERICA MONEY CENTER, INC. (the "Assignor")
promises to pay to XXXXXXX XXXXX MORTGAGE CAPITAL INC. (the "Payee") the
principal sum of Twenty Million Dollars ($20,000,000) (or so much thereof as
shall have been advanced here against pursuant to the Master Assignment
Agreement and shall be outstanding, in lawful money of the United States of
America, in immediately available funds, with interest on each principal sum
advanced here against or the unpaid balance thereof with such frequency and to
such location as is specified in the related confirmation statement (in each
case, the "Confirmation Statement") for such advance (or on such other day and
with such other frequency and to such other location as may be mutually agreed
upon by Assignor and the Payee) at said office and in said money and funds from
the date of the related Loan advance until the related Maturity Date for such
Loan at the rate per annum (based on a year of 360 days and actual days elapsed)
indicated on the related Confirmation Statement attached hereto, but in no event
higher than the maximum rate permitted by law, and after such Maturity Date, or
upon acceleration as hereinafter provided, until said balances shall be paid, at
the rate per annum (based on a year of 360 days and actual days elapsed) equal
to two hundred (200) basis points in excess of the interest rate for such
advance, but in no event higher than the maximum rate permitted by law.
Loans here against shall be in minimum amounts of $1,000,000. Assignor
may request disbursement of amounts borrowed hereunder upon not less than two
(2) Business Days' written notice to the Payee. The Payee is not obligated to
make any advances hereunder. The Payee is
A-1
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hereby authorized by Assignor to endorse on the Loan Schedule amounts advanced
here against, the rate of interest relating thereto and any principal
prepayments hereunder (as permitted by the Assignment defined below), it being
understood, however, that failure to make any such endorsement shall not affect
the obligations of Assignor hereunder in respect of the amounts advanced here
against.
This Note is the Note referred to in the Master Assignment Agreement
(the "Master Assignment Agreement"), dated as of December 18, 1997, between
Assignor and the Payee, granting to the Payee a first priority perfected
security interest in the Collateral, as described therein. The holder is
entitled to the benefits of the Master Assignment Agreement and may enforce the
agreements of Assignor contained therein and exercise the remedies provided for
thereby or otherwise available in respect thereof. All capitalized terms used in
this Note and not otherwise defined shall have the respective meanings set forth
in the Master Assignment Agreement except where the context clearly indicates
otherwise.
This Note and all other present and future obligations of any and all
kinds of Assignor in favor of the holder hereof, whether created directly or
acquired by assignment, whether absolute or contingent, shall, unless the holder
shall otherwise elect, forthwith be due and payable without notice or demand of
any kind (except as expressly provided in the Master Assignment Agreement), all
of which are expressly waived upon the occurrence of an Event of Default.
Assignor hereby agrees that any legal action or proceeding against it
for enforcement of this Note or of any judgment with respect to this Note may be
brought in the courts of the State of New York or of the United States of
America located in the City and State of New York, Borough of Manhattan, as the
holder may elect, and Assignor hereby irrevocably submits to the jurisdiction of
each of said courts, and waives any objection on the grounds of venue, forum non
conveniens or similar ground. Assignor irrevocably consents that service of
process in any such action or proceeding may be made upon Assignor by the
mailing thereof by the holder by United States registered or certified mail,
postage prepaid, to Assignor at the address set forth herein below the signature
of Assignor, and Assignor hereby further agrees that service of process in such
manner shall be full and sufficient notice of any such action or proceeding.
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Assignor waives diligence, presentment of any instrument, protest and
notice of non-payment or protest and any and all other notices and demands
whatsoever in connection with the delivery, acceptance, performance, default or
enforcement of this Note. Assignor will pay on demand all costs of collection
(including reasonable attorneys' fees) paid or incurred by the holder in
enforcing this Note on default. As used herein, the world "holder" shall mean
the Payee or any endorsee of this Note who is in possession hereof, if this Note
is at the time payable to the bearer.
This Note shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and entirely performed
therein.
PACIFICAMERICA MONEY CENTER, INC.
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Address:
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LOAN SCHEDULE
This Note evidences Loans made by the Payee to Assignor and the repayment of
principal by Assignor to the Payee, in the principal amounts and on the dates
and with the related interest rates set forth below as well as the total amount
advanced here against as of each such date:
PRINCIPAL AMOUNT INTEREST PRINCIPAL AMOUNT TOTAL
DATE LOANED RATE REPAID OUTSTANDING
--------------- ---------------- ------------- ---------------- ------------
--------------- ---------------- ------------- ---------------- ------------
--------------- ---------------- ------------- ---------------- ------------
--------------- ---------------- ------------- ---------------- ------------
--------------- ---------------- ------------- ---------------- ------------
--------------- ---------------- ------------- ---------------- ------------
--------------- ---------------- ------------- ---------------- ------------
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EXHIBIT B
CONFIRMATION STATEMENT
XXXXXXX XXXXX MORTGAGE CAPITAL INC.
Date: __________________________
Assignor:
Attention:
Telephone:
Fax Number:
Re: LOAN PURSUANT TO MASTER ASSIGNMENT AGREEMENT
Gentlemen:
Xxxxxxx Xxxxx Mortgage Capital Inc. ("MLMCI") is pleased to confirm our Loan to
you (the "Assignor") pursuant to the Master Assignment Agreement (the "Master
Assignment Agreement"), dated as of December 18, 1997, between you and MLMCI
under the following terms and conditions:
1. Collateral Description: ________________________
A. Security Issue Date: ______________________
B. Percentage Ownership: _____________________%
C. Face Amount: $_____________________
D. Current Market Value: $_____________________
E. Margin Requirement: _____________________%
2. Loan: _____ New Funds _____ Roll
A. Amount: $______________
B. Interest Rate: ______________%
C. Closing Date: ______________
D. Interest Payment Date: The last Business Day of each month.
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MLMCI's Wiring Instructions Assignor's Wiring Instructions
Bankers Trust New York
For the Account of Xxxxxxx Xxxxx
Mortgage Capital Inc.
Account Number: 00000000 Account Number:
ABA Number: 000-000-000 ABA Number:
The Note, dated December 18, 1997, which evidences advances under
the Master Assignment Agreement will be annotated on the schedule attached
thereto to reflect the date, amount and interest rate relating to this advance.
The Master Assignment Agreement is incorporated by reference into
this Confirmation Statement and made a part hereof as if it were fully set forth
herein. All capitalized terms used herein but not otherwise defined shall have
the meanings specified in the Master Assignment Agreement.
Very truly yours,
XXXXXXX XXXXX MORTGAGE CAPITAL INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
AGREED AND ACKNOWLEDGED:
PACIFICAMERICA MONEY CENTER, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
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EXHIBIT C
[FORM OF OPINION OF COUNSEL TO ASSIGNOR]
Gentlemen:
We have acted as counsel to PacificAmerica Money Center, Inc., a
_______ corporation (the "Assignor"), in connection with (i) the execution and
delivery of the Master Assignment Agreement, dated as of December 18, 1997 (the
"Agreement"), between Assignor and Xxxxxxx Xxxxx Mortgage Capital Inc., a
Delaware corporation ("MLMCI") and (ii) the execution and delivery of the Note,
dated December 18, 1997 in the principal amount of $20,000,000 ("Note") made by
Assignor to the order of MLMCI. Unless otherwise defined herein, all defined
terms used herein shall have the meanings assigned thereto in the Agreement.
As counsel to Assignor, we have participated in the preparation and
negotiation of the Agreement, the Note and the other documents and instruments
executed and delivered pursuant thereto and in connection therewith by Assignor.
In this connection, we have examined, among other documents, the
Certificate of Incorporation and By-Laws of Assignor, the minutes of meetings of
Assignor, and such other documents and records of Assignor as we have deemed
relevant and necessary as a basis for the conclusions contained in the opinions
hereafter set forth. We have had various conferences with officers and directors
of Assignor with respect to the provisions of the Agreement and the Note as to
certain matters contemplated by the opinions expressed below, and we have relied
upon information as provided by said officers and directors. In our examination,
we have assumed the genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to originals of all
documents submitted to us photostatic copies.
Based upon the foregoing, we are of opinion that:
1. Assignor is duly organized and validly existing as a corporation
in good standing under the laws of the State of [ ] and has power and authority
to enter into and perform its obligations under this Agreement. Assignor is duly
qualified to do business and is in good standing in each jurisdiction in which
the character of the business transacted by it requires such qualification and
in which the failure so to qualify would have a material adverse effect on the
business, properties, assets or condition (financial or other) of Assignor and
its subsidiaries, considered as a whole.
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2. This Agreement and the Note have each been duly authorized,
executed and delivered by Assignor, and each constitutes a valid and legally
binding obligation of Assignor enforceable against Assignor in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights generally and to general equity principles.
3. No consent, approval, authorization or order of any state or
federal court or government agency or body is required to be obtained by
Assignor for the consummation of the transactions contemplated by this Agreement
or the Note.
4. The consummation of any of the transactions contemplated by this
Agreement and the Note will not conflict with, result in a breach of, or
constitute a default under the articles of incorporation or bylaws of Assignor
or the terms of any indenture or other agreement or instrument known to us to
which Assignor is party or bound, or any order known to such counsel to be
applicable to Assignor or any regulations applicable to Assignor, of any state
or federal court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over Assignor.
5. There is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body or any arbitrator
involving Assignor or relating to the transaction contemplated by this Agreement
or the Note.
6. Each Pledged MBS will have been endorsed in a manner which
satisfies any requirement of endorsement in order to transfer all right, title
and interest in and to that Pledged MBS from Assignor to MLMCI. This Agreement
together with (a) the delivery of such related Pledged MBS to MLMCI and (b) the
endorsement of such Pledged MBS to MLMCI, creates a valid, perfected security
interest in such Pledged MBS in favor of MLMCI. Such security interest will have
the same priority and will be subject to the same security interests and liens
as apply to such Pledged MBS in the hands of Assignor.
Very truly yours,
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EXHIBIT D
LOCATION OF CHIEF EXECUTIVE OFFICES AND COLLATERAL
Chief Executive Office
PacificAmerica Money Center, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Collateral
With respect to any Loan, the Pledged MBS to be delivered to, and
held by, MLMCI or its bailee.
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EXHIBIT E
MONTHLY COLLATERAL REPORT
INDEX DELINQUENCY
Issuer STATUS
Account Number (Current/Delinq/Fcir/REO)
Last Pay Date
SECURITIZATION INFO Months Delinquent
Deal 24 Months Status History
(ie CCCCCCC369CC369999FFFRRR)
LOAN ATTRIBUTES
Loan Type DEFAULT
Original Balance Defaulted Amount
Origination Date Liquidation Loss Amount
Maturity Date Default Date
Zip Code
County PREPAYMENT
State Prepay Amount
WAC Prepay Penalty Paid
XXX Xxxxx Xxxxxx Xxxx
XXX Xxx
X&X ARM SPECIFIC
Current Balance Next IA Date
CLTV Reset Frequency
Property Type Margin
Occupancy Status Index
Loan Purpose Caps/Floors
Documentation Periodic Cap
Balloon Life Cap
Lien Life Floor
2nd Lien Ratio
Prepay Penalty Schedule
(ie 3yr penalty - 6mo interest)
Servicer
Loan Source (Retail/Corresp/Wholesale)
BORROWER INFORMATION
FICO Score
Credit Grade
DTI
E-1
