<PAGE> 1
EXHIBIT 10.1
WAREHOUSING CREDIT AND SECURITY AGREEMENT
(INCOME PROPERTIES)
BETWEEN
BLOOMFIELD SERVICING COMPANY, L.L.C.,
a Michigan limited liability company,
and BLOOMFIELD ACCEPTANCE COMPANY, L.L.C.,
a Michigan limited liability company
AND
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
Dated as of March 15, 2000
<PAGE> 2
EXHIBITS
Exhibit A-1 Warehousing Promissory Note
Exhibit A-2 Bridge Loan Promissory Note
Exhibit B Guaranty
Exhibit C-MF/BR Approval Request for Advances Against
Bridge Mortgage Loans
Exhibit C-MF/EO Request for second Advance Against
Bridge Mortgage Loan
Exhibit C-MF Request for Advance Against
Mortgage Loans
Exhibit D-MF/BR Procedures and Documentation for
Warehousing Bridge Mortgage Loans
Exhibit D-MF Procedures and Documentation for
Warehousing Freddie Mac Mortgage Loans,
Other Fannie Mae Mortgage Loans,
Non-Agency Mortgage Loans.
Exhibit E Schedule of Servicing Contracts
Exhibit F-1 Subordination of Debt Agreement (Bloomfield Acceptance)
Exhibit F-2 Subordination of Debt Agreement (Bloomfield Servicing)
Exhibit G [INTENTIONALLY OMITTED]
Exhibit H Legal Opinion
Exhibit I-MF Officer's Certificate
Exhibit J Schedule of Existing Warehouse Lines
Exhibit K Funding Bank Agreement
i
<PAGE> 3
Exhibit L Terms of Guaranteed Obligations
Exhibit M Terms Applicable to Advances Against Eligible Loans
Exhibit N Assumed Names
ii
<PAGE> 4
THIS WAREHOUSING CREDIT AND SECURITY AGREEMENT, dated as of March 15,
2000, between BLOOMFIELD SERVICING COMPANY, L.L.C., a Michigan limited liability
company ("Bloomfield Servicing") and BLOOMFIELD ACCEPTANCE COMPANY, L.L.C., a
Michigan limited liability company ("Bloomfield Acceptance") (Bloomfield
Servicing and Bloomfield Acceptance are referred to herein, collectively or
individually, as the context may require, as the "Borrower"), having their
principal office at 260 East Brown Street, Suite 200, Birmingham, Michigan 48009
and RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the "Lender"),
having its principal office at 8400 Normandale Lake Blvd., Suite 600,
Minneapolis, Minnesota 55437.
WHEREAS, the Borrower and the Lender desire to set forth herein the
terms and conditions upon which the Lender shall provide warehouse financing to
the Borrower;
NOW, THEREFORE, the parties hereto hereby definitions
.
Defined Terms
. Capitalized terms defined below or elsewhere in this Agreement (including the
Exhibits hereto) shall have the following meanings:
"Advance" means a disbursement by the Lender under the Commitment
pursuant to Section 2.1 of this Agreement.
"Advance Request" has the meaning set forth in Section 2.2(b)
hereof.
"Affiliate" has the meaning set forth in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act.
"Agency Security" means a Mortgage-backed Security issued or
guaranteed by Fannie Mae, Freddie Mac or Ginnie Mae.
"Agency Servicing Portfolio" means, for any Person, the principal
balance of Mortgage Loans secured by Multifamily Properties serviced by
such Person for Fannie Mae or Freddie Mac, but excluding the principal
balance of Mortgage Loans serviced for Fannie Mae or Freddie Mac at
such date (a) which are past due for principal or interest for 60 days
or more, (b) with respect to which such Person is obligated to
1
<PAGE> 5
repurchase or indemnify the holder of the Mortgage Loans as a result of
defaults on the Mortgage Loans at any time during the term of such
Mortgage Loans, (c) for which the Servicing Contracts are not owned by
such Person free and clear of all Liens (other than in favor of the
Lender), or (d) which are serviced by the Company for others under
subservicing arrangements.
"Agreement" means this Warehousing Credit and Security
Agreement, either as originally executed or as it may from time to time
be supplemented, modified or amended.
"Appraised Value" means, with respect to any Multifamily
Property or Mobile Home Park, the value thereof as determined by an
appraisal prepared by or for the Borrower in accordance with the
Underwriting Guidelines in connection with the origination of the
related Mortgage Loan.
"Approved Custodian" means a pool custodian or other Person
which is deemed acceptable to the Lender from time to time in its sole
discretion to hold a Mortgage Loan for inclusion in a Mortgage Pool or
to hold a Mortgage Loan as agent for an Investor who has issued a
Purchase Commitment for such Mortgage Loan.
"Book Net Worth" means with respect to any Person at any date,
the excess of total assets over total liabilities of such Person on
such date, each to be determined in accordance with GAAP consistent
with those applied in the preparation of the financial statements
referred to in Section 4.1(a)(12) hereof.
"Bingham" means Bingham Financial Services Corporation, a
Michigan corporation.
"Borrower" has the meaning set forth in the first paragraph of
this Agreement.
"Bridge Advance Maturity Date" means the earlier of: (a) the
close of business on the date 12 months after the Maturity Date, as
such date may be extended from time to time in writing by the Lender,
in its sole discretion, and (b) the date the Advances became due and
payable pursuant to Section 8.2 below.
2
<PAGE> 6
"Bridge Loan Promissory Note" means the promissory note
evidencing the Borrowers' Obligations with respect to the Advances
against Bridge Mortgage Loans in the form of Exhibit A-2 attached
hereto.
"Bridge Mortgage Loan" means an interim Mortgage Loan to
finance the acquisition, repositioning, minor rehabilitation or other
physical or operating improvement of a Multifamily Property or a Mobile
Home Park.
"Business Day" means any day excluding Saturday or Sunday and
excluding any day on which national banking associations are closed for
business.
"Calendar Quarter" means the 3 month period beginning on any
January 1, April 1, July 1 or October 1.
"Cash Collateral Account" means a demand deposit account
maintained at the Funding Bank in the name of the Lender and designated
for receipt of the proceeds of the sale or other disposition of the
Collateral.
"Closing Date" means March ,2000.
"Collateral" has the meaning set forth in Section 3.1 hereof.
"Collateral Documents" has the meaning set forth in Section
2.2(b) hereof.
"Collateral Value" means (a) with respect to any Eligible Loan
as of the date of determination, the lesser of (i) the amount of any
Advance made against such Eligible Loan under Section 2.1(c) hereof or
(ii) the Fair Market Value of such Eligible Loan; (b) in the event
Pledged Mortgages have been exchanged for Agency Securities, the lesser
of (i) the amount of any Advances outstanding against the Eligible
Loans backing the Agency Securities or (ii) the Fair Market Value of
the Agency Securities; and (c) with respect to cash, the amount of such
cash.
"Commitment" has the meaning set forth in Section 2.1(a)
hereof.
3
<PAGE> 7
"Commitment Amount" means $50,000,000.
"Commitment Fee" means a fee payable by the Borrower in
consideration of the Lender's issuance of the Commitment. The amount of
the Commitment Fee, if any, is set forth in Section 2.8 hereof.
"Committed Purchase Price" means for an Eligible Loan (a) the
dollar price as set forth in the Purchase Commitment or (b) if the
price is not expressed in dollars, the product of the Mortgage Note
Amount multiplied by the price (expressed as a percentage) as set forth
in a Purchase Commitment for the Eligible Loan or (c) in the event the
Eligible Loan is to be used to back an Agency Security, the price
(expressed as a percentage) as set forth in a Purchase Commitment for
the Agency Security.
"Credit Underwriting Documents" means the items set forth in
Section I of Exhibit D-MF/BR hereto.
"Debt" means, with respect to any Person, at any date (a) all
indebtedness or other obligations of such Person which, in accordance
with GAAP, would be included in determining total liabilities as shown
on the liabilities side of a balance sheet of such Person at such date;
and (b) all indebtedness or other obligations of such Person for
borrowed money or for the deferred purchase price of property or
services; provided that for purposes of this Agreement, there shall be
excluded from Debt at any date Subordinated Debt not due within one
year of such date, and deferred taxes arising from capitalized excess
servicing fees and capitalized servicing rights.
"Debt Service Coverage Ratio (DSC)" means, at any date of
determination for any Multifamily Property or Mobile Home Park that
secures or is intended to secure a Bridge Mortgage Loan, the ratio of
(a) the Projected Net Operating Income of the Multifamily Property or
Mobile Home Park, as determined by the Borrower in accordance with
industry practices for similar properties acceptable to the Lender, in
its sole discretion, to (b) the projected interest expense in respect
of the Bridge Mortgage Loan, in each case for the 12 months after such
date of determination.
4
<PAGE> 8
"Default" means the occurrence of any event or existence of
any condition which, but for the giving of Notice, the lapse of time,
or both, would constitute an Event of Default.
"Default Rate" has the meaning set forth in Section 2.4(e)
hereof.
"Depository Benefit" shall mean the compensation received by
the Lender, directly or indirectly, as a result of the Borrower's
maintenance of Eligible Balances with a Designated Bank.
"Designated Bank" means any bank(s) designated from time to
time by the Lender as a Designated Bank, but only for as long as the
Lender has an agreement under which the Lender can receive a Depository
Benefit.
"Designated Bank Charges" means any fees, interest or other
charges that would otherwise be payable to a Designated Bank in
connection with Eligible Balances maintained at a Designated Bank,
including Federal Deposit Insurance Corporation insurance premiums,
service charges and such other charges as may be imposed by
governmental authorities from time to time.
"Earnings Allowance" has the meaning set forth in Section
2.4(b) hereof.
"Earnings Credit" has the meaning set forth in Section 2.4(b)
hereof.
"Earnout Advance" means an Advance made by the Lender pursuant
to Section 2.2(g), in the Lender's sole discretion, to fund an increase
of the principal amount of a Bridge Mortgage Loan based on the
performance of the underlying Property.
"Earnout Mortgage Loan" means a Bridge Mortgage Loan in
connection with which only a portion of the total committed loan amount
is disbursed to the Mortgage Borrower at the initial closing, and the
balance of which may be disbursed conditioned upon the underlying
Property achieving certain performance goals (e.g., higher net
operating income, debt service coverage ratio or appraised market
value).
5
<PAGE> 9
"Eligible Balances" means all funds of or maintained by the
Borrower and its Subsidiaries in accounts at a Designated Bank, less
balances to support float, reserve requirements, and such other
reductions as may be imposed by governmental authorities from time to
time.
"Eligible Bridge Mortgage Loan" means a Bridge Mortgage Loan
which satisfies each of the following conditions:
(a) Bloomfield Acceptance has originated such Bridge
Mortgage Loan, and such Bridge Mortgage Loan will be closed
and, except for any subsequent increase if the principal
amount based on the performance of the underlying property,
the full amount thereof will be disbursed simultaneously with
the Lender's Advance against such Bridge Mortgage Loan;
(b) such Bridge Mortgage Loan is a First Mortgage
Loan, and except to the extent agreed to by the Lender with
respect to a particular Bridge Mortgage Loan, the related
Mortgage Documents prohibit the creation of any other Liens on
the Mortgaged Property (subject to customary exceptions for
Liens that do not secure indebtedness for borrowed money);
(c) it is a Mortgage Loan as to which:
(1) the Mortgage Note is payable or endorsed
to the order of the Borrower;
(2) each of the Mortgage Note and Mortgage
is a legal, valid and binding obligation of the
Mortgage Borrower;
(3) the Mortgage Note is an "instrument"
within the meaning of Section 9-105 of the Uniform
Commercial Code of all applicable jurisdictions;
(4) the Mortgage Note is denominated and
payable only in United States dollars; and
6
<PAGE> 10
(5) the related Mortgage Borrower and
underlying Property satisfy the requirements of the
Underwriting Guidelines or are otherwise acceptable
to the Lender;
(d) the Borrower owns such Bridge Mortgage Loan free
and clear of any Lien (other than the Lien created hereunder);
(e) neither such Bridge Mortgage Loan nor the related
Collateral Documents contravene in any material respect any
law, rule or regulation applicable thereto (including, without
limitation, all laws, rules and regulations relating to usury)
if any such contravention would impair the collectibility of
such Bridge Mortgage Loan, and no party to the related
Collateral Documents is in violation of any such law, rule or
regulation (or procedures prescribed thereby) in any material
respect if such violation would impair the collectibility of
such Bridge Mortgage Loan or the performance by the Mortgage
Borrower or any obligor of its obligations with respect
thereto;
(f) the Bridge Mortgage Loan is not subject to any
rights of setoff, counterclaim or defense in favor of the
Mortgage Borrower or any other obligor thereon;
(g) such Bridge Mortgage Loan is not a Fraudulent
Loan and complies with all representations and warranties set
forth herein with respect thereto;
(h) the Bridge Mortgage Loan is a loan as to which
the Borrower has conducted its customary underwriting, due
diligence and review, including, without limitation, review of
the financial condition of the Mortgage Borrower and
inspection of the Multifamily Property or Mobile Home Park
covered by the Mortgage, and such customary due diligence and
review have not revealed facts that would adversely affect the
collectibility of such Bridge Mortgage Loan;
(i) such Bridge Mortgage Loan has been underwritten
in accordance with the Underwriting Guidelines;
7
<PAGE> 11
(j) the principal amount of such Bridge Mortgage Loan
does not exceed $15,000,000;
(k) (i) the portion of the proceeds of such Bridge
Mortgage Loan to be used to finance the repair or
rehabilitation of the related Multifamily Property or Mobile
Home Park does not exceed 15% of the original Mortgage Note
Amount, and (ii) such portion of the proceeds, net of any
portion thereof disbursed at closing to pay for repairs or
rehabilitation commenced prior to closing, is to be deposited
at closing into a segregated deposit account maintained by the
Borrower with a Designated Bank, pending disbursement thereof
by the Borrower pursuant to the terms of such Bridge Mortgage
Loan;
(l) the LTV of such Bridge Mortgage Loan does not
exceed 80%, and the maximum principal amount of such Bridge
Mortgage Loan does not exceed 80% of the gross purchase price
for the underlying Property;
(m) such Bridge Mortgage Loan has a maturity date not
more than 12 months after the closing date thereof, subject to
not more than one 12-month extension or two 6-month extensions
upon the payment (for each such extension) of an extension fee
of 0.25% per annum of the Bridge Mortgage Loan;
(n) the projected Debt Service Coverage Ratio of the
related Property for the 12-month period (and for any
extension thereof) beginning on the anticipated closing date
thereof shall be not less than 1.05 to 1.00, calculated using
the per annum interest rate on such Bridge Mortgage Loan;
(o) such Bridge Mortgage Loan is not a graduated
payment Mortgage Loan, does not have a shared appreciation or
other contingent interest feature, and provides for periodic
payments of all accrued interest thereon on at least a monthly
basis; and
(p) such Bridge Mortgage Loan is not assumable.
8
<PAGE> 12
"Eligible Loan" means a Mortgage Loan secured by a Mortgage on
real property located in one of the states of the United States or the
District of Columbia that is designated as such on Exhibit M attached
hereto and made a part hereof.
"Eligible Mortgage Pool" means a Mortgage Pool for which (a)
an Approved Custodian has issued its initial certification (on the
basis of which an Agency Security is to be issued), (b) there exists a
Purchase Commitment covering such Agency Security, and (c) such Agency
Security will be delivered to the Lender.
"ERISA" means the Employee Retirement Income Security Act of
1974 and all rules and regulations promulgated thereunder, as amended
from time to time and any successor statute.
"Event of Default" means any of the conditions or events set
forth in Section 8.1 hereof.
"Exit Fee" means a fee payable by the Mortgage Borrower under
a Bridge Mortgage Loan if the Bridge Mortgage Loan is not refinanced by
a permanent Mortgage Loan originated by the Borrower.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Fair Market Value" means at any time for an Eligible Loan or
the related Agency Security (if the Eligible Loan is to be used to back
an Agency Security), (a) if the Eligible Loan is covered by a Purchase
Commitment from Fannie Mae or Freddie Mac or the related Agency
Security is covered by a Purchase Commitment, the Committed Purchase
Price, or (b) otherwise, the market price for such Eligible Loan or
Agency Security, determined by the Lender based on market data for
similar Mortgage Loans or Agency Securities and such other criteria as
the Lender deems appropriate.
"Fannie Mae" means Fannie Mae, a corporation created under the
laws of the United States, and any successor thereto.
9
<PAGE> 13
"Fannie Mae Aggregation Facility" means Fannie Mae's program
for the purchase of Mortgage Loans described in its Aggregation
Facility Guide.
"Fannie Mae DUS Mortgage Loan" means a permanent Mortgage Loan
on a Multifamily Property originated under Fannie Mae's Delegated
Underwriting and Servicing Guide.
"Fannie Mae Mobile Home Park Pilot Program" means Fannie Mae's
pilot program for the purchase of Mortgage Loans secured by Mobile Home
Parks, under the Fannie Mae Aggregation Facility.
"FHA" means the Federal Housing Administration and any
successor thereto.
"FICA" means the Federal Insurance Contributions Act.
"FIRREA" means the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"First Mortgage" means a Mortgage which constitutes a first
Lien on the property covered thereby.
"First Mortgage Loan" means a Mortgage Loan secured by a First
Mortgage.
"Floating Rate" means, for any Advance, the Floating Rate
specified for such Advance on Exhibit M hereto.
"Fraudulent Loan" means any Mortgage Loan (a) originated based
on any material untrue, incomplete or inaccurate information, whether
or not the Borrower had knowledge of such misrepresentation or
inaccurate information, or (b) that, for any reason, including, without
limitation, any fraudulent activity on the part of the Mortgage
Borrower or any Person who owned such Mortgage Loan prior to the
Borrower, does not constitute the legal, valid and binding obligation
of the Mortgage Borrower or other obligor with respect to such Mortgage
Loan, enforceable against such Mortgage Borrower or other obligor in
accordance with its terms, except as limited by bankruptcy, insolvency
or other such laws affecting the enforceability of creditors' rights.
10
<PAGE> 14
"Freddie Mac" means Freddie Mac, a corporation created under
the laws of the United States, and any successor thereto.
"Freddie Mac Mortgage Loan" means a permanent Mortgage Loan on
a Multifamily Property covered by a Purchase Commitment issued under
Freddie Mac's Program Plus Guide.
"Funding Bank" means Bank One, NA or any other bank designated
from time to time by the Lender.
"Funding Bank Agreement" means the letter agreement
substantially in the form of Exhibit K hereto.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession, which
are applicable to the circumstances as of the date of determination.
"Gestation Agreement" means an agreement under which the
Borrower agrees to sell or finance (a) a Pledged Mortgage prior to the
date of purchase by an Investor, or (b) a Mortgage Pool prior to the
date an Agency Security backed by such Mortgage Pool is issued.
"Ginnie Mae" means the Government National Mortgage
Association, an agency of the United States government, and any
successor thereto.
"Guarantor" means Bingham and any other Person that hereafter
guarantees all or any portion of the Borrowers' Obligations. If more
than one Person is named as Guarantor, the term "Guarantor" shall mean
each of such Persons and all of them.
"Guaranty" means a guaranty of all or any portion of the
Borrowers' Obligations. If more than one Guaranty is executed and
delivered to the Lender, the term "Guaranty" shall mean each of such
Guaranties and all of them.
11
<PAGE> 15
"Hedging Arrangements" means, with respect to any Person, any
agreements or other arrangement (including, without limitation,
interest rate swap agreements, interest rate cap agreements and forward
sale agreements) entered into by such Person to protect itself against
changes in interest rates or the market value of assets.
"HUD" means the Department of Housing and Urban Development
and any successor thereto.
"Indemnified Liabilities" has the meaning set forth in Article
10 hereof.
"Internal Revenue Code" means the Internal Revenue Code of
1986, or any subsequent federal income tax law or laws, as any of the
foregoing have been or may from time to time be amended.
"Investor" means Fannie Mae, Freddie Mac or a financially
responsible private institution which is deemed acceptable by the
Lender from time to time in its sole discretion to issue a Purchase
Commitment with respect to a particular category of Pledged Mortgages.
"Lender" has the meaning set forth in the first paragraph of
this Agreement.
"LIBOR" means, for each calendar week, the rate of interest
per annum which is equal to the arithmetic mean of the U.S. Dollar
London Interbank Offered Rates for 1 month periods of certain U.S.
banks as of 11:00 a.m. London time on the first Business Day of each
week on which the London Interbank market is open, as published by
Bloomberg L.P. If such U.S. dollar LIBOR rates are not so offered or
published for any period, then during such period LIBOR shall mean the
London Interbank Offered Rate for 1 month periods published on the
first Business Day of each week on which the London Interbank market is
open, in the Wall Street Journal in its regular column entitled "Money
Rates."
"Lien" means any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind
12
<PAGE> 16
(including any conditional sale or other title retention agreement, any
lease in the nature thereof, and any agreement to give any security
interest).
"Loan Documents" means this Agreement, the Note, any agreement
of the Borrower relating to Subordinated Debt, and each other document,
instrument or agreement executed by the Borrower in connection herewith
or therewith, as any of the same may be amended, restated, renewed or
replaced from time to time.
"Manufactured Home" means a structure that is built on a
permanent chassis (steel frame) with the wheel assembly necessary for
transportation in one or more sections to a permanent site or
semi-permanent site and which has been built in compliance with the
National Manufactured Housing Construction and Safety Standards
established by HUD.
"Margin Stock" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as
in effect from time to time.
"Maturity Date" shall mean the earlier of: (a) the close of
business on May 31, 2000 as such date may be extended from time to time
in writing by the Lender, in its sole discretion, on which date the
Commitment shall expire of its own term, and without the necessity of
action by the Lender, and (b) the date the Advances become due and
payable pursuant to Section 8.1 below.
"Miscellaneous Charges" has the meaning set forth in Section
2.11 hereof.
"Mobile Home Park" means real property improved with sewer and
electrical service for use by Manufactured Homes and Recreational
Vehicles and rated as "3 stars" or better in accordance with
Underwriting Guidelines, provided the Underwriting Guidelines comply in
the Lender's judgment, with the standard practices of the industry for
rating Mobile Home Parks.
"Mortgage" means a mortgage or deed of trust on real property
which is improved and substantially completed. A Mortgage may be a
First Mortgage or a Second Mortgage.
13
<PAGE> 17
"Mortgage-backed Securities" means securities that are secured
or otherwise backed by Mortgage Loans.
"Mortgage Borrower" means, with respect to a Mortgage Loan,
the Person to whom the Mortgage Loan is made.
"Mortgage Loan" means any loan evidenced by a Mortgage Note
and secured by a Mortgage. The term "Mortgage Loan" shall include First
Mortgage Loans and Second Mortgage Loans unless the context otherwise
requires.
"Mortgage Note" means a promissory note secured by one or more
Mortgages.
"Mortgage Note Amount" means, as of the date of determination,
the then outstanding unpaid principal amount of a Mortgage Note
(whether or not an additional amount is available to be drawn
thereunder).
"Mortgage Pool" means a pool of one or more Pledged Mortgages
on the basis of which there is to be issued a Mortgage-backed Security.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA which is maintained for employees of the
Borrower or a Subsidiary of the Borrower.
"Multifamily Property" means real property containing or which
will contain more than 4 dwelling units.
"Non-Agency Mortgage Loan" means a permanent Mortgage Loan on
a Multifamily Property which is not an FHA-insured Mortgage Loan, a
Fannie Mae DUS Mortgage Loan, an Other Fannie Mae Mortgage Loan, a
Special Fannie Mae Mortgage Loan or a Freddie Mac Mortgage Loan.
"Notes" has the meaning set forth in Section 2.3 hereof.
"Notices" has the meaning set forth in Article 9 hereof.
"Obligations" means any and all indebtedness, obligations and
liabilities of the Borrower to the Lender
14
<PAGE> 18
(whether now existing or hereafter arising, voluntary or involuntary,
whether or not jointly owed with others, direct or indirect, absolute
or contingent, liquidated or unliquidated, and whether or not from
time to time decreased or extinguished and later increased, created or
incurred), whether or not arising out of or related to the Loan
Documents.
"Officer's Certificate" means a certificate executed on behalf
of the Borrower by its chief financial officer or its treasurer or by
such other officer as may be designated herein and substantially in the
form of Exhibit I-MF attached hereto.
"Operating Account" means a demand deposit account maintained
at the Funding Bank in the name of the Borrower and designated for
funding that portion of each Eligible Loan not funded by an Advance
made against such Eligible Loan and for returning any excess payment
from an Investor for a Pledged Mortgage or Pledged Security.
"Other Fannie Mae Mortgage Loan" means a permanent Mortgage
Loan on a Multifamily Property covered by a Purchase Commitment issued
by Fannie Mae (other than a Fannie Mae DUS Mortgage Loan or a Special
Fannie Mae Mortgage Loan).
"Participant" has the meaning set forth in Section 12.5
hereof.
"Person" means and includes natural persons, corporations,
limited liability companies, limited partnerships, general
partnerships, joint stock companies, joint ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts
or other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Plans" has the meaning set forth in Section 5.12 hereof.
"Pledged Mortgages" has the meaning set forth in Section
3.1(a) hereof.
"Pledged Securities" has the meaning set forth in
Section 3.1(b) hereof.
15
<PAGE> 19
"Projected Net Operating Income" means, with respect to any
Multifamily Property or Mobile Home Park securing a Bridge Mortgage
Loan, the following amount (determined for the 12 months following the
date of the related Advance):
PNOI = PFOR - VR - NOE,
where "PNOI" means Projected Net Operating Income, "PFOR" means the
projected amount of rent that would be paid by tenants of such related
property assuming (a) full occupancy thereof and (b) a rental rate
equal to the lower of the actual current a rental rate for such
property or the current market rental rate for comparable properties,
"VR" means the projected amount of PFOR that will not be received as a
result of vacancies, assuming a vacancy rate equal to the greater of
the actual current vacancy rate for such property and the current
market vacancy rate for comparable properties, and rent concessions
agreed to with existing tenants, and "NOE" means the projected
stabilized net operating expenses at full occupancy (i.e., total
expenses minus interest expense and capital expenditures) for such
related property.
"Property" means a Multifamily Property or Mobile Home Park
securing a Mortgage Loan.
"Purchase Commitment" means a written commitment, in form and
substance satisfactory to the Lender, issued in favor of the Borrower
by an Investor pursuant to which that Investor commits to purchase
Mortgage Loans or Agency Securities.
"Recreational Vehicle" means a vehicle which is: (a) built on
a single chassis; (b) designed to be self-propelled or permanently
towable by a light duty truck; and (c) designed primarily not for use
as a permanent dwelling but as temporary living quarters for
recreational, camping, travel or seasonal use.
"Release Amount" has the meaning set forth in Section 3.2(g)
hereof.
16
<PAGE> 20
"Second Mortgage" means a Mortgage which constitutes a second
Lien on the property covered thereby.
"Second Mortgage Loan" means a Mortgage Loan secured by a
Second Mortgage.
"Servicing Contract" means, with respect to any Person, the
arrangement, whether or not in writing, pursuant to which such Person
has the right to service Mortgage Loans.
"Servicing Portfolio" means, as to any Person, the unpaid
principal balance of Mortgage Loans serviced by such Person under
Servicing Contracts.
"Shipped Period" means the maximum number of days an Advance
may remain outstanding against a Pledged Mortgage that has been sent to
an Investor or an Approved Custodian for examination and purchase or
inclusion in an Eligible Mortgage Pool as set forth on Exhibit M
attached to this Agreement.
"Special Fannie Mae Mortgage Loan" means a permanent Mortgage
Loan on a Multifamily Property originated by the Borrower under a
Special Fannie Mae Program Agreement and evidenced by one or more
Mortgage Notes in the possession of the Lender or Fannie Mae.
"Special Fannie Mae Program Agreement" means any agreement
between the Borrower and one or more borrowers and (if applicable)
other obligors pursuant to which the Borrower makes loans to such
borrowers secured by Mortgages on Multifamily Properties, provided that
100% participations in such loans will be exchanged for Agency
Securities issued by Fannie Mae.
"Statement Date" means the date of the most recent financial
statements of the Borrower (and, if applicable, its Subsidiaries, on a
consolidated basis) delivered to the Lender under the terms of this
Agreement.
"Sublimit" means the aggregate amount of Advances (expressed
as a dollar amount or as a percentage of the Commitment Amount) that is
permitted to be outstanding at any one time against a specific type of
Eligible Loan.
17
<PAGE> 21
"Subordinated Debt" means (a) all indebtedness of the Borrower
for borrowed money which is effectively subordinated in right of
payment to all other present and future Obligations either (i) pursuant
to a Subordination of Debt Agreement in the form of Exhibit F hereto or
(ii) otherwise on terms acceptable to the Lender, and (b) solely for
purposes of Section 7.4 hereof, all indebtedness of the Borrower which
is required to be subordinated by Section 4.1(b) or Section 6.10
hereof.
"Subordinate Mortgage" means a Mortgage that constitutes a
Lien subordinate to a second Lien on a property securing a Fannie Mae
DUS Mortgage Loan or an Other Fannie Mae Mortgage Loan for which all
prior Mortgage Loans on the subject property have been sold to, or are
subject to a Purchase Commitment issued by, Fannie Mae.
"Subordinate Mortgage Loan" means a Fannie Mae DUS Mortgage
Loan or an Other Fannie Mae Mortgage Loan secured by a Subordinate
Mortgage.
"Subsidiary" means any corporation, association or other
business entity in which more than 50% of the total voting power or
shares of stock entitled to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the other Subsidiaries of
that Person or a combination thereof.
"Tangible Net Worth" means with respect to any Person at any
date, the excess of the total assets over total liabilities of such
Person on such date, each to be determined in accordance with GAAP
consistent with those applied in the preparation of the financial
statements referred to in Section 4.1(a)(12) hereof, and that portion
of Subordinated Debt not due within one year of such date, provided
that, for purposes of this Agreement, there shall be excluded from
total assets advances or loans to shareholders, officers, employees or
Affiliates, investments in Affiliates, assets pledged to secure any
liabilities not included in the Debt of such Person, intangible assets,
and other assets deemed unacceptable by the Lender in its sole
discretion.
18
<PAGE> 22
"Trust Receipt" means a trust receipt in a form approved by
and pursuant to which the Lender may deliver any document relating to
the Collateral to the Borrower for correction or completion.
"Underwriting Fee" has the meaning set forth in Section 2.9
hereof.
"Underwriting Guidelines" means the Borrower's policies and
procedures for underwriting Bridge Mortgage Loans as in effect on the
date hereof, a copy of which has been provided to and approved by the
Lender, as the same may be modified from time to time in accordance
with this Agreement.
"Warehouse Period" means, for any Eligible Loan, the maximum
number of days an Advance against that type of Eligible Loan is
permitted to remain outstanding as set forth on Exhibit M attached to
this Agreement.
"Warehousing Promissory Note" means the promissory note
evidencing the Borrowers' Obligations with respect to Advances in the
form of Exhibit A-1 attached hereto.
"Wire Disbursement Account" means a demand deposit account
maintained at the Funding Bank in the name of the Lender for the
clearing of wire transfers requested by the Borrower to fund Advances.
"Year 2000 Problem" means the risk that computer applications
may not be able to properly perform date-sensitive functions after
December 31, 1999.
Other Definitional Provisions.
1.2(a) Accounting terms not otherwise defined herein
shall have the meanings given the terms under GAAP.
1.2(b) Defined terms may be used in the singular or
the plural, as the context requires.
1.2(c) All references to time of day shall mean the
then applicable time in Chicago, Illinois, unless expressly
provided to the contrary.
19
<PAGE> 23
THE CREDIT.
The Commitment.
2.1(a) Subject to the terms and conditions of this
Agreement and provided no Default or Event of Default has
occurred and is continuing, the Lender agrees from time to
time during the period from the Closing Date, to, but not
including, the Maturity Date, to make Advances to the
Borrower, provided the total aggregate principal amount
outstanding at any one time of all such Advances shall not
exceed the Commitment Amount. The obligation of the Lender to
make Advances hereunder up to the Commitment Amount, is
hereinafter referred to as the "Commitment." Within the
Commitment, the Borrower may borrow, repay and reborrow. All
Advances under this Agreement shall constitute a single
indebtedness, and all of the Collateral shall be security for
the Note and for the performance of all the Obligations.
Advances shall be made to Bloomfield Acceptance but shall
remain outstanding upon transfer of any Pledged Mortgage to
Bloomfield Servicing. Each Advance shall be deemed made to or
for the benefit of Bloomfield Acceptance and Bloomfield
Servicing, and Bloomfield Acceptance and Bloomfield Servicing,
jointly and severally, shall be obligated to repay all
Advances. With respect to its obligation to repay Advances
made against a Mortgage Loan owned by the other Borrower, each
Borrower agrees to the terms set forth in Exhibit L attached
hereto and made a part hereof.
2.1(b) Advances shall be used by the Borrower solely
for the purpose of funding the acquisition or origination of
Eligible Loans (except for subsequent Advances made pursuant
to Section 2.2(g)) and shall be made at the request of the
Borrower, in the manner hereinafter provided in Section 2.2
hereof, against the pledge of such Eligible Loans as
Collateral therefor. Any limitations on the use of Advances
set forth on Exhibit M attached hereto and made a part hereof
shall be applicable. In addition, the following limitations on
the use of Advances shall be applicable:
20
<PAGE> 24
(1) No Advance shall be made against a Mortgage Loan which
is not an Eligible Loan.
(2) No Advance (except for Earn-Out Advances and Advances
made within 30 days after the Closing Date against Bridge Loans
originated by the Borrower prior to the date of this Agreement
and otherwise qualifying as Eligible Bridge Mortgage Loans) shall
be made against a Mortgage Loan which was closed more than 30
days prior to the date of the requested Advance.
2.1(c) For an Eligible Loan pledged hereunder, no Advance
shall exceed the amount applicable to the type of Collateral at the
time it is pledged (except for subsequent Advances made pursuant to
Section 2.2(g)), as set forth on Exhibit M attached hereto and made a
part hereof.
Procedures for Obtaining Advances.
2.2(a) If the Borrower wishes to request an Advance against a
Bridge Mortgage Loan, it shall deliver to the Lender no later than 5
Business Days prior to any Business Day that the Borrower desires to
borrow hereunder, a request for approval ("Approval Request")
substantially in the form of Exhibit C-MF/BR attached hereto. Such
Approval Request shall be accompanied by the Credit Underwriting
Documents. Within 3 Business Days after receipt of an Approval Request
and the supporting documents, the Lender may, in its sole discretion,
approve the Advance by returning the Approval Request executed by the
Lender. After the Advance has been approved, a request for funding
such Advance shall be initiated by the Borrower pursuant to Section
2.2(b) hereof.
2.2(b) The Borrower may obtain an Advance hereunder, subject
to the satisfaction of the conditions set forth in Sections 4.1 and
4.2 hereof, upon compliance with the procedures set forth in this
Section 2.2 and in the following described Exhibits, attached hereto
and made a part hereof including the delivery of all documents listed
in the following described Exhibits
21
<PAGE> 25
(the "Collateral Documents") to the Lender, as applicable to the type
of Collateral being financed:
(1) Freddie Mac Mortgage Loans, Other Fannie Mae Mortgage
Loans and Non-Agency Mortgage Loans, as set forth in Exhibit D-MF
hereto.
(2) Bridge Mortgage Loans, as set forth in Exhibit D-MF/BR
hereto.
Requests for Advances shall be initiated by the Borrower by delivering
to the Lender, no later than 1 Business Day prior to any Business Day
that the Borrower desires to borrow hereunder, a completed and signed
request for an Advance (an "Advance Request") on the then current form
approved by the Lender. The current form in use by the Lender is
Exhibit C-MF and Exhibit C-MF/BR attached hereto and made a part
hereof. The Lender shall have the right, on not less than 3 Business
Days' prior Notice to the Borrower, to modify any of said Exhibits to
conform to current legal requirements or Lender practices, and, as so
modified, said Exhibits shall be deemed a part hereof.
2.2(c) Before funding, the Lender shall have a reasonable time
(1 Business Day under ordinary circumstances) to examine such Advance
Request and the Collateral Documents to be delivered prior to such
requested Advance, as set forth in the applicable Exhibit hereto, and
may reject such of them as do not meet the requirements of this
Agreement or of the related Purchase Commitment.
2.2(d) The Borrower shall hold, or cause its custodian to
hold, in trust for the Lender, and the Borrower shall deliver, or
cause its custodian to deliver, to the Lender promptly, or if the
recorded Collateral Documents have not yet been returned from the
recording office, immediately upon receipt by the Borrower of such
recorded Collateral Documents, and the Pledged Mortgage is not being
held by an Investor for purchase or has not been redeemed from pledge,
the following: (1) originals of the Collateral Documents for which
copies are required to be delivered to the Lender
22
<PAGE> 26
pursuant to Exhibit D-MF or Exhibit D-MF/BR, (2) the original lender's
ALTA Policy of Title Insurance or an equivalent thereto (or, prior to
the delivery thereof, the title insurance commitment to issue such
policy marked to show the final policy exceptions), (3) the
environmental assessment, and (4) any other documents relating to a
Pledged Mortgage which the Lender may request including, without
limitation, certificates of casualty or hazard insurance, appraisal,
engineering report, credit information on the maker of each such
Mortgage Note, and other documents of all kinds which are customarily
desired for inspection or transfer incidental to the purchase of any
Mortgage Note by an Investor and any additional documents which are
customarily executed by the seller of a Mortgage Note to an Investor.
2.2(e) To make an Advance, the Lender shall cause the Funding
Bank to credit the Wire Disbursement Account upon compliance by the
Borrower with the terms of the Loan Documents. The Lender shall
determine in its sole discretion the method by which Advances and
other amounts on deposit in the Wire Disbursement Account are
disbursed by the Funding Bank to or for the account of the Borrower.
2.2(f) If, pursuant to the authorization given by the Borrower
in the Funding Bank Agreement, for the purpose of financing a Mortgage
Loan against which the Lender has made an Advance in accordance with a
Request for Advance the Lender debits the Borrower's Operating Account
at the Funding Bank to the extent necessary to cover a wire to be
initiated by the Lender, and such debit or direction results in an
overdraft, the Lender may make an additional Advance to fund such
overdraft.
2.2(g) If the Borrower wishes to obtain an Earnout Advance to
fund an increase to the amount of an Earnout Mortgage Loan based on
meeting certain performance criteria for the underlying Property, it
shall deliver to the Lender no later than 5 Business Days prior to the
Business Day on which the Borrower desires to borrow such Advance a
request for an Earnout Advance substantially in the form of Exhibit
C-MF/EO
23
<PAGE> 27
attached hereto (an "Earnout Advance Request"). Such Earnout Advance
Request shall be accompanied by such evidence of the performance of
the underlying Property as is required pursuant to the related Earnout
Mortgage Loan. Within 3 Business Days after receipt of an Earnout
Advance Request, if such Earnout Mortgage Loan will remain an Eligible
Bridge Mortgage Loan after giving effect to such increase, the Lender
may, in its sole discretion, approve the requested Earnout Advance.
The amount of each Earnout Advance shall be equal to the difference
between (i) the applicable advance rate for the initial Advance
against such Earnout Mortgage Loan, determined as described on Exhibit
M hereto, multiplied by the principal amount of such Earnout Mortgage
Loan, as increased, and (ii) the original principal amount of the
initial Advance against such Earnout Mortgage Loan. After an Earnout
Advance has been approved, it shall be disbursed to fund the increase
to the amount of the related Bridge Mortgage Loans as directed by the
Borrower.
Note. The Borrowers' Obligations with respect to Advances against Eligible
Loans other than Bridge Mortgage Loans shall be evidenced by a Warehousing
Promissory Note of the Borrower in the form of Exhibit A-1 attached hereto.
The Borrowers' Obligations with respect to Advances against Bridge Mortgage
Loans shall be evidenced by a Bridge Loan Promissory Note of the Borrower
substantially in the form of Exhibit A-2 attached hereto. Each note shall
be dated as of the date hereof. The Warehousing Promissory Note and the
Bridge Loan Promissory Note are collectively referred to as the "Notes".
The terms "Warehousing Promissory Note," "Bridge Loan Promissory Note,"
"Note" or "Notes" shall include all extensions, renewals and modifications
of the Notes and all substitutions therefor. All terms and provisions of
the Notes are hereby incorporated herein.
24
<PAGE> 28
Interest.
2.4(a) Except as otherwise provided pursuant to Section
2.4(e), the unpaid amount of each Advance against an Eligible Loan
shall bear interest, from the date of the Advance until paid in full,
at the rate(s) per annum set forth on Exhibit M attached hereto and
made a part hereof.
2.4(b) The Borrower is entitled to receive a benefit in the
form of an "Earnings Credit" on the portion of the Eligible Balances
maintained in time deposit accounts with a Designated Bank, and the
Borrower is entitled to receive a benefit in the form of an "Earnings
Allowance" on the portion of the Eligible Balances maintained in
demand deposit accounts with a Designated Bank. Any Earnings Allowance
shall be used first and any Earnings Credit shall be used second as a
credit against accrued Designated Bank Charges, any other
Miscellaneous Charges and fees, including, but not limited to
Commitment Fees, Underwriting Fees and Exit Fee, and may be used, at
the Lender's option, to reduce accrued interest. Any Earnings
Allowance not used during the month in which the benefit was received
shall be accumulated for use and must be used within 6 months of the
month in which the benefit was received. Any Earnings Credit not used
during the month in which the benefit was received shall be used to
provide a cash benefit to the Borrower. The Lender's determination of
the Earnings Credit and the Earnings Allowance for any month shall be
determined by the Lender in its sole discretion and shall be
conclusive and binding absent manifest error. In no event shall the
benefit received by the Borrower exceed the Depository Benefit.
Either party hereto may terminate the benefits provided for in
this Section effective immediately upon Notice to the other party, if
the terminating party shall have determined (which determination shall
be conclusive and binding absent manifest error) at any time that any
applicable law, rule, regulation, order or decree or any
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or
compliance
25
<PAGE> 29
by such party with any request or directive (whether or not having the
force of law) of any such authority, shall make it unlawful or
impossible for such party to continue to offer or receive the benefits
provided for in this Section.
2.4(c) Interest shall be computed on the basis of a 360-day
year, applied to the actual number of days elapsed in each interest
calculation period and shall be payable monthly in arrears, on the
first day of each month, commencing with the first month following the
Closing Date and on the Maturity Date.
2.4(d) If, for any reason, no interest is due on an Advance,
the Borrower agrees to pay to the Lender an administrative fee equal
to one day of interest on such Advances at a rate of 1-1/2% per annum.
Administrative and other fees shall be due and payable in the same
manner as interest is due and payable hereunder.
2.4(e) Upon Notice to the Borrower, after the occurrence and
during the continuation of an Event of Default, the unpaid amount of
each Advance shall bear interest until paid in full at a per annum
rate of interest (the "Default Rate") equal to 4% in excess of the
Floating Rate otherwise applicable to the Advance or, if no rate is
applicable, the highest rate then applicable to any outstanding
Advances.
2.4(f) The rates of interest provided for in this Agreement
will be adjusted as of the effective date of each change in the
applicable index. The Lender's determination of such rates as of any
date of determination shall be conclusive and binding, absent manifest
error.
Principal Payments.
2.5(a) The outstanding principal amount of all Advances, other
than Advances against Bridge Mortgage Loans, shall be payable in full
on the Maturity Date. The outstanding principal amount of all Advances
against Bridge Mortgage Loans shall be payable in full on the Bridge
Advance Maturity Date.
26
<PAGE> 30
2.5(b) The Borrower shall have the right to prepay the
outstanding Advances in whole or in part, from time to time, without
premium or penalty.
2.5(c) The Borrower authorizes the Lender to cause the Funding
Bank to charge the Borrower's Operating Account for the amount of any
outstanding Advance against a specific Pledged Mortgage upon the
earliest occurrence of any of the following events:
(1) For any Pledged Mortgage, the Warehouse Period elapses.
(2) For any Pledged Mortgage, the Shipped Period elapses.
(3) On the date an Advance was made and the Pledged
Mortgage which was to have been funded by such Advance is not
closed and funded.
(4) One (1) Business Day elapses from the date an Advance
was made against any Mortgage Loan, without receipt of those
Collateral Documents relating to such Mortgage Loan required to
be delivered on such date under Exhibit D-MF or D-MF/BR hereto,
or such Collateral Documents, upon examination by the Lender, are
found not to be in compliance with the requirements of this
Agreement or the related Purchase Commitment.
(5) Ten (10) Business Days elapse from the date a
Collateral Document was delivered to the Borrower for correction
or completion under a Trust Receipt, if such Collateral Document
has not been returned to the Lender.
(6) On the date on which a Pledged Mortgage is determined
to have been originated based on untrue, incomplete or inaccurate
information, whether or not the Borrower had knowledge of such
misrepresentation or incorrect information or on the date on
which the Borrower knows, or has reason
27
<PAGE> 31
to know, or receives notice from the Lender, that one or more of
the representations and warranties set forth in Section 5.15 were
inaccurate or incomplete in any material respect on any date when
made or deemed made.
(7) On the date the Pledged Mortgage or a Lien prior to the
Pledged Mortgage is defaulted and remains in default for a period
of 60 days or more.
(8) On the mandatory delivery date of the related Purchase
Commitment and the specific Pledged Mortgage was not delivered
under the Purchase Commitment prior to such mandatory delivery
date or the Purchase Commitment is terminated.
(9) Three (3) Business Days after the date a Mortgage Loan
is rejected for purchase by an Investor unless another Purchase
Commitment is provided within such 3 Business Days.
(10) Upon refinance, maturity, sale or other disposition
(including a prepayment) of the Pledged Mortgage or, if a Pledged
Mortgage is included in an Eligible Mortgage Pool, upon sale or
other disposition of the related Agency Security.
2.5(d) The outstanding amount of any Advance made pursuant to
Section 2.2(f) shall be payable in full within 1 Business Day after
the date of such Advance.
2.5(e) The proceeds of the sale or other disposition of
Pledged Mortgages and Pledged Securities shall be paid directly by the
Investor to the Cash Collateral Account. The Borrower shall give
notice to the Lender (telephonically, to be followed by written
notice) of the Pledged Mortgages or Pledged Securities for which
proceeds have been received. Upon receipt of such Notice the Advances
against such Pledged Mortgages or Pledged Securities shall be repaid
from such proceeds and such Pledged Mortgages or Pledged Securities
shall be considered to have been redeemed from pledge. The Lender is
entitled to rely upon the Borrower's
28
<PAGE> 32
affirmation that deposits in the Cash Collateral Account represent
payment from Investors for the purchase of Pledged Mortgages or
Pledged Securities as specified by the Borrower. In the event that the
payment from an Investor for the purchase of Pledged Mortgages or
Pledged Securities is less than the outstanding Advances against such
Pledged Mortgages or the Mortgage Loans backing Pledged Securities,
the Lender is authorized to cause the Funding Bank to charge the
Borrower's Operating Account for an amount equal to such deficiency.
Provided no Default or Event of Default exists, the Lender shall
return any excess payment from an Investor for Pledged Mortgages or
Pledged Securities to the Borrower.
2.5(f) The Lender reserves the right to revalue any Mortgage
Loan (other than a Bridge Mortgage Loan) pledged hereunder which is
not covered by a Purchase Commitment from Fannie Mae or Freddie Mac.
In addition to the payments required pursuant to Section 2.5(d), the
Borrower shall be obligated to pay to the Lender, within 2 Business
Days after notice from the Lender, and the Borrower authorizes the
Lender to cause the Funding Bank to charge the Borrower's Operating
Account for, any amount required after any revaluation to reduce the
principal amount of the Advance outstanding against the Mortgage Loan
to an amount equal to the advance rate for the applicable Eligible
Loan type multiplied by the Fair Market Value of such Eligible Loan.
2.5(g) The Lender reserves the right to revalue a Bridge
Mortgage Loan pledged hereunder at any time and from time to time
based on such factors affecting the value of Bridge Mortgage Loans as
the Lender deems appropriate, including, without limitation, general
economic and market factors, property market factors and factors
specific to a particular Bridge Mortgage Loan. In addition to the
payments required pursuant to Section 2.5(c), the Borrower shall be
obligated to pay to the Lender, upon prior notice from the Lender, and
the Borrower authorizes the Lender to cause the Funding Bank to charge
the Borrower's Operating Account for, any amount required after any
such re-valuation to reduce the principal amount of the Advance
outstanding against
29
<PAGE> 33
any Bridge Mortgage Loan to an amount equal to the Advance Rate
multiplied by the Fair Market Value of such Bridge Mortgage Loan, as
so determined.
Expiration of Commitment. The Commitment shall expire on the Maturity Date.
Method of Making Payments.
2.7(a) Except as otherwise specifically provided herein, all
payments hereunder shall be made to the Lender not later than the
close of business on the date when due unless such date is a
non-Business Day, in which case, such payment shall be due on the
first Business Day thereafter, and shall be made in lawful money of
the United States of America in immediately available funds
transferred via wire to accounts designated by the Lender from time to
time.
2.7(b) After the occurrence and during the continuance of an
Event of Default, and without the necessity of prior demand or notice
from the Lender, the Borrower authorizes the Lender to cause the
Funding Bank to charge the Borrower's Operating Account for any
Obligations due and owing the Lender.
Commitment Fees. The Borrower agrees to pay to the Lender a Commitment Fee in
the amount of .25% per annum of the Commitment Amount which Commitment Fee
shall be paid quarterly in advance and shall be computed on the basis of a
365-day year and applied to the actual number of days elapsed in such
Calendar Quarter. On the Closing Date, the Borrower shall pay the prorated
portion of the quarterly Commitment Fee due from the Closing Date to the
last day of the current Calendar Quarter. Thereafter, the Borrower shall
make quarterly payments of the Commitment Fee on the 1st day of each
Calendar Quarter. If the Maturity Date is other than the last day of a
Calendar Quarter, the Borrower shall pay the prorated portion of the
quarterly Commitment Fee due from the beginning of the then current
Calendar Quarter to and including the Maturity Date. The Borrower shall not
be entitled to a reduction in the amount of the Commitment Fee, in the
event the Commitment Amount is reduced or in the event that the Commitment
is terminated at the request of the
30
<PAGE> 34
Borrower or as a result of an Event of Default. If the Commitment
terminates at the request of the Borrower or as a result of an Event of
Default, the unpaid balance of the Commitment Fee shall be due and payable
in full on the date of such termination.
Underwriting Fees. The Borrower agrees, upon submission of each Approval
Request, to pay to the Lender an Underwriting Fee in the amount of $1,500
for each Bridge Mortgage Loan for which approval is being requested.
Exit Fees. In the event a Bridge Mortgage Loan pledged hereunder is not
refinanced by a permanent Mortgage Loan originated by Bloomfield
Acceptance, the Borrower shall pay to the Lender an amount equal to the
greater of (i) 0.5% of the maximum principal amount of such Bridge Mortgage
Loan or (ii) 50% of any Exit Fee payable by the Mortgage Borrower to the
Borrower. Fees under this Section 2.10 shall be due when incurred, but
shall not be delinquent if paid within 15 days after receipt of an invoice
or an account analysis statement from the Lender.
Miscellaneous Charges. The Borrower agree to reimburse the Lender for
miscellaneous charges and expenses (collectively, "Miscellaneous Charges")
incurred by or on behalf of the Lender in connection with the handling and
administration of Advances, and to reimburse the Lender for Miscellaneous
Charges incurred by or on behalf of the Lender in connection with the
handling and administration of the Collateral. For the purposes hereof,
Miscellaneous Charges shall include, but not be limited to, costs for UCC,
tax lien and judgment searches conducted by the Lender, filing fees,
charges for wire transfers, check processing charges, charges for security
delivery fees, charges for overnight delivery of Collateral to Investors,
the Funding Bank's service fees and overdraft charges and Designated Bank
Charges. Miscellaneous Charges are due when incurred, but shall not be
delinquent if paid within 15 days after receipt of an invoice or an account
analysis statement from the Lender.
Interest Limitation. All agreements between the Borrower and the Lender are
hereby expressly limited so that in no contingency or event whatsoever,
whether by reason of acceleration of maturity of this Agreement or the Note
or otherwise, shall
31
<PAGE> 35
the amount paid or agreed to be paid to the Lender for the use,
forbearance, loaning or retention of the Advances secured by this Agreement
exceed the maximum permissible under applicable law. If from any
circumstances whatsoever, fulfillment of any provisions hereof or of the
Note, or any other document securing this Agreement at any time given shall
involve transcending the limit of validity prescribed by law, then, the
obligation to be fulfilled shall automatically be reduced to the limit of
such validity, and if from any circumstances the Lender should ever receive
as interest an amount which would exceed the highest lawful rate of
interest, such amount which would be in excess of interest shall be applied
to the reduction of the principal balance secured by the Note and not to
the payment of interest thereunder. This provision shall control every
other provision of all agreements between the Borrower and Lender and shall
also be binding upon and available to any subsequent holder of the Note.
Increased Costs; Capital Requirements. In the event any applicable law, order,
regulation or directive issued by any governmental or monetary authority,
or any change therein or in the governmental or judicial interpretation or
application thereof, or compliance by the Lender with any request or
directive (whether or not having the force of law) by any governmental or
monetary authority:
2.13(a) Does or shall subject the Lender to any tax of any kind
whatsoever with respect to this Agreement or any Advances made
hereunder, or change the basis of taxation on payments to the Lender
of principal, fees, interest or any other amount payable hereunder
(except for change in the rate of tax on the overall gross or net
income of the Lender by the jurisdictions in which the Lender's
principal office is located);
2.13(b) Does or shall impose, modify or hold applicable any
reserve, capital requirement, special deposit, compulsory loan or
similar requirement against assets held by, or deposits or other
liabilities in or for the account of, advances or loans by, or other
credit extended by, or any other acquisition of funds by, any office
of the Lender which are not otherwise
32
<PAGE> 36
included in the determination of the interest rate as calculated
hereunder;
and the result of any of the foregoing is to increase the cost to the
Lender of making, renewing or maintaining any Advance or to reduce any
amount receivable in respect thereof or to reduce the rate of return on the
capital of the Lender or any Person controlling the Lender as it relates to
credit facilities in the nature of that evidenced by this Agreement, then,
in any such case, the Borrower shall promptly pay any additional amounts
necessary to compensate the Lender for such additional cost or reduced
amounts receivable or reduced rate of return as determined by the Lender
with respect to this Agreement or Advances made hereunder. If the Lender
becomes entitled to claim any additional amounts pursuant to this Section,
it shall notify the Borrower of the event by reason of which it has become
so entitled and the Borrower shall pay such amount within 15 days
thereafter. Notwithstanding the foregoing, the Borrowers shall not be
obligated to pay any such additional amounts attributable to the period
(the "Excluded Period") ending 90 days prior to the date the Borrowers
receive written notice of the law, order, regulation, directive, change or
requests by reason of which such additional amounts are payable, except to
the extent such additional amounts accrued during the Excluded Period due
to the retroactive application of such law, order, regulation, directive,
change or request, in which case the limitation set forth in this sentence
shall not apply. A certificate as to any additional amount payable pursuant
to the foregoing sentence containing the calculation thereof in reasonable
detail submitted by the Lender, to the Borrower shall be conclusive in the
absence of manifest error. The obligations of the Borrower under this
Section shall survive the payment of all other Obligations and the
termination of this Agreement.
Sale of Permanent Mortgage Loans. In the event the Borrower makes a permanent
Mortgage Loan to refinance a Bridge Mortgage Loan pledged hereunder, in
whole or in part (a "Refinancing Loan"), the Borrower shall not sell or
otherwise dispose of such Refinancing Loan unless the Borrower provides the
Lender with the right to make an offer to purchase such Refinancing Loan on
the same basis as the Borrower solicits such offers from other potential
purchasers of such Refinancing Loan.
33
<PAGE> 37
Nothing in this Agreement generally, and nothing in this Section 2.14
specifically, shall be deemed to prevent the sale of a Refinancing Loan to
a person other than the Lender.
COLLATERAL.
Grant of Security Interest. As security for the payment of the Note and for
the performance of all of the Borrower's Obligations, the Borrower hereby
assigns and transfers to the Lender all right, title and interest in and to
and grants a security interest to the Lender in the following described
property (the "Collateral"):
3.1(a) All Mortgage Loans, including all Mortgage Notes and
Mortgages evidencing or securing such Mortgage Loans, which from time
to time are delivered or caused to be delivered to the Lender
(including delivery to a third party on behalf of the Lender), come
into the possession, custody or control of the Lender for the purpose
of assignment or pledge or in respect of which an Advance has been
made by the Lender hereunder and, in the event the Release Amount has
not been paid with respect to any Bridge Mortgage Loan, any Mortgage
Loan, the proceeds of which are used in whole or in part, to refinance
such Bridge Mortgage Loan (the "Pledged Mortgages").
3.1(b) All Mortgage-backed Securities which are from time to
time created in whole or in part on the basis of the Pledged Mortgages
or are delivered or caused to be delivered to, or are otherwise in the
possession of the Lender, or its agent, bailee or custodian as
assignee, or pledged to the Lender, or for such purpose are registered
by book-entry in the name of, the Lender (including delivery to or
registration in the name of a third party on behalf of the Lender)
hereunder or in respect of which from time to time an Advance has been
made by the Lender hereunder (the "Pledged Securities").
3.1(c) All commitments issued by the FHA to insure any
Mortgage Loans included in the Pledged Mortgages; all guaranties
related to Pledged Securities; all Purchase Commitments held by the
Borrower covering
34
<PAGE> 38
the Pledged Mortgages, the Pledged Securities or proposed permanent
Mortgage Loans that will refinance Bridge Mortgage Loans, and all
proceeds resulting from the sale thereof to Investors pursuant
thereto; and all personal property, contract rights, servicing and
servicing fees and income or other proceeds, amounts and payments
payable to the Borrower as compensation or reimbursement, accounts and
general intangibles of whatsoever kind relating to the Pledged
Mortgages, the Pledged Securities, said FHA commitments and the
Purchase Commitments, and all other documents or instruments relating
to the Pledged Mortgages and the Pledged Securities, including,
without limitation, any interest of the Borrower in any fire, casualty
or hazard insurance policies and any awards made by any public body or
decreed by any court of competent jurisdiction for a taking or for
degradation of value in any eminent domain proceeding as the same
relate to the Pledged Mortgages.
3.1(d) All right, title and interest of the Borrower in and to
all escrow accounts, documents, instruments, files, surveys,
certificates, correspondence, appraisals, computer programs, tapes,
discs, cards, accounting records (including all information, records,
tapes, data, programs, discs and cards necessary or helpful in the
administration or servicing of the Collateral) and other information
and data of the Borrower relating to the Collateral.
3.1(e) All now existing or hereafter acquired cash delivered
to or otherwise in the possession of the Lender or its agent, bailee
or custodian or designated on the books and records of the Borrower as
assigned and pledged to the Lender.
3.1(f) All right, title and interest of the Borrower in and to
any Hedging Arrangements entered into to protect the Borrower against
changes in the value of the Collateral, including, without limitation,
all rights to payment arising under such Hedging Arrangements.
35
<PAGE> 39
3.1(g) All cash and non-cash proceeds of the Collateral,
including all dividends, distributions and other rights in connection
with, and all additions to, modifications of and replacements for, the
Collateral, and all products and proceeds of the Collateral, together
with whatever is receivable or received when the Collateral or
proceeds thereof are sold, collected, exchanged or otherwise disposed
of, whether such disposition is voluntary or involuntary, including,
without limitation, all rights to payment with respect to any cause of
action affecting or relating to the Collateral or proceeds thereof.
Release of Security Interest in Pledged Mortgages and Pledged Securities.
3.2(a) Pledged Mortgages shall be released from the Lender's
security interest only against payment to the Lender of the Release
Amount in connection with such Pledged Mortgages.
3.2(b) If Pledged Mortgages are to be transferred to a pool
custodian or to Freddie Mac or Fannie Mae for inclusion in a Mortgage
Pool, the Lender's security interest in such Pledged Mortgages shall
be released only against payment to the Lender of the Release Amount
in connection with such Pledged Mortgages. If the Lender's security
interest in the Pledged Mortgages comprising the Mortgage Pool is not
released prior to the issuance of the Mortgage-backed Security, then
the Mortgage-backed Security, when issued, shall be a Pledged
Security. The Lender's security interest shall continue in such
Pledged Mortgages and the Pledged Security and the Lender shall be
entitled to possession of such Pledged Security in the manner provided
below.
3.2(c) If Pledged Mortgages are transferred to an Approved
Custodian and included in an Eligible Mortgage Pool, the Lender's
security interest in the Pledged Mortgages comprising the Eligible
Mortgage Pool shall be released upon the issuance of the Agency
Security, which shall be a Pledged Security. The Lender's security
interest in such Pledged Security shall be released only against
payment to the Lender of
36
<PAGE> 40
the Release Amount in connection with the Pledged Mortgages backing
such Pledged Security. The Lender shall be entitled to possession of
such Pledged Security in the manner provided below.
3.2(d) The Lender shall have the exclusive right to the
possession of the Pledged Securities or, if the Pledged Securities are
issued in book-entry form or issued in certificated form and delivered
to a clearing corporation (as such term is defined in the Uniform
Commercial Code of Minnesota) or its nominee, the Lender shall have
the right to have the Pledged Securities registered in the name of a
securities intermediary (as such term is defined in the Uniform
Commercial Code of Minnesota) in an account containing only customer
securities and credited to an account of the Lender. The Lender shall
have the right to cause delivery of the Pledged Securities to be made
to the Investor or the Pledged Securities credited to the account of
the Investor or the Investor's designee only against payment therefor.
The Borrower acknowledges that the Lender may enter into one or more
standing arrangements with other financial institutions with respect
to Pledged Securities issued in book entry form or issued in
certificated form and delivered to a clearing corporation, pursuant to
which such Pledged Securities are registered in the name of such
financial institution, as agent or securities intermediary for the
Lender and the Borrower agrees upon request of the Lender, to execute
and deliver to such other financial institutions the Borrower's
written concurrence in any such standing arrangements.
3.2(e) Prior to the occurrence of an Event of Default, the
Borrower may redeem a Pledged Mortgage or Pledged Security from the
Lender's security interest by notifying the Lender of its intention to
redeem such Pledged Mortgage or Pledged Security from pledge and
either (a) paying, or causing an Investor to pay, to the Lender, for
application to prepayment on the principal balance of the Note, the
Release Amount in connection with such Pledged Mortgage or Pledged
Security, or (b) delivering substitute Collateral which, in addition
to being acceptable to the Lender in its sole discretion
37
<PAGE> 41
will, when included with the Collateral, result in a Collateral Value
of all Collateral held by the Lender which is at least equal to the
aggregate outstanding Advances.
3.2(f) Following the occurrence of a Default or Event of
Default, the Lender may, with no liability to the Borrower or any
Person, continue to release its security interest in any Pledged
Mortgage or Pledged Security against payment of the Release Amount in
connection with such Pledged Mortgage or Pledged Security.
3.2(g) The amount (the "Release Amount") to be paid by the
Borrower to obtain the release of the Lender's security interest in a
Pledged Mortgage shall be (i) prior to the occurrence of an Event of
Default, the principal amount of the Advances made against such
Pledged Mortgage, and (ii) from and after the occurrence and during
the continuance of an Event of Default, the Committed Purchase Price
of such Pledged Mortgage or, if there is no Purchase Commitment
therefor, the amount paid to the Lender in a commercially reasonable
disposition thereof.
Delivery of Additional Collateral or Mandatory Prepayment. At any time that the
aggregate Collateral Value of the Collateral then pledged hereunder is less
than the aggregate amount of the Advances then outstanding hereunder, the
Lender may request, and the Borrower shall within 2 Business Days after
Notice by the Lender (a) deliver to the Lender for pledge hereunder
additional Collateral, with a Collateral Value sufficient to cover the
difference between the Collateral Value of the Collateral pledged and the
aggregate amount of Advances outstanding hereunder, and/or (b) repay the
Advances in an amount sufficient to reduce the aggregate balance thereof
outstanding to or below the Collateral Value of the Collateral pledged
hereunder.
Collection and Servicing Rights. So long as no Event of Default shall have
occurred and be continuing, the Borrower shall be entitled to service and
receive and collect directly all sums payable to the Borrower in respect of
the Collateral other than proceeds of any Purchase Commitment or proceeds
of the
38
<PAGE> 42
sale of any Collateral. Following the occurrence of any Event of Default,
the Lender or its designee shall thereafter be entitled to service and
receive and collect all sums payable to the Borrower in respect of the
Collateral, and in such case (a) the Lender or its designee in its
discretion may, in its own name, in the name of the Borrower or otherwise,
demand, sue for, collect or receive any money or property at any time
payable or receivable on account of or in exchange for any of the
Collateral, but shall be under no obligation to do so, (b) the Borrower
shall, if the Lender so requests, hold in trust for the benefit of the
Lender and forthwith pay to the Lender at its office designated by Notice
hereunder, all amounts thereafter received by the Borrower upon or in
respect of any of the Collateral, advising the Lender as to the source of
such funds, and (c) all amounts so received and collected by the Lender
shall be held by it as part of the Collateral.
Return of Collateral at End of Commitment. If (a) the Commitment shall have
expired or been terminated, and (b) no Advances, interest or other
Obligations shall be outstanding and unpaid, the Lender shall release its
security interest and shall deliver all Collateral in its possession to the
Borrower at the Borrower's expense. The receipt of the Borrower for any
Collateral released or delivered to the Borrower pursuant to any provision
of this Agreement shall be a complete and full acquittance for the
Collateral so returned, and the Lender shall thereafter be discharged from
any liability or responsibility therefor.
3.6 Release of Collateral.
3.6(a) The Lender may deliver documents relating to the
Collateral to the Borrower for correction or completion pursuant to a
Trust Receipt.
3.6(b) Prior to the occurrence of a Default or Event of
Default, upon delivery by the Borrower to the Lender of shipping
instructions pursuant to Exhibit D-MF or Exhibit D-BR, the Lender will
transmit Pledged Mortgages or Pledged Securities and all related loan
documents or pool documents to the applicable Investor, Approved Custodian
or other party.
39
<PAGE> 43
3.6(c) Upon receipt of Notice from the Borrower under Section
2.5(e) hereof, and repayment of the Release Amount with respect to a
Pledged Mortgage identified by the Borrower, any Collateral Documents
relating to the redeemed Pledged Mortgage or Mortgage Loan backing a
Pledged Security which have not been delivered to an Investor or
Approved Custodian shall be released by the Lender to the Borrower.
CONDITIONS PRECEDENT.
Initial Advance. The obligation of the Lender to make the initial Advance under
this Agreement is subject to the satisfaction, in the sole discretion of
the Lender, on or before the date thereof of the following conditions
precedent (unless otherwise indicated):
4.1(a) The Lender shall have received the following, all of
which must be satisfactory in form and content to the Lender, in its
sole discretion:
(1) The Notes and this Agreement duly executed by the
Borrower.
(2) The Guaranty, duly executed by Bingham.
(3) Bingham's articles or certificate of incorporation as
certified by the Secretary of State of Bingham's incorporation,
bylaws certified by the corporate secretary of Bingham, and
certificates of good standing dated no less recently than 90 days
prior to the date of this Agreement.
(4) A resolution of the board of directors of Bingham,
certified as of the date of this Agreement by its corporate
secretary, authorizing the execution, delivery and performance of
the Guaranty and all other instruments or documents to be
delivered by Bingham pursuant to this Agreement.
(5) A certificate of Bingham's corporate secretary as to
the incumbency and authenticity of the signatures of the officers
of Bingham executing
40
<PAGE> 44
the Guaranty and all other instruments or documents to be
delivered pursuant hereto (the Lender being entitled to rely
thereon until a new such certificate has been furnished to the
Lender).
(6) Bloomfield Servicing's articles or certificate of
organization as certified by the Secretary of State of Bloomfield
Servicing's organization, Operating Agreement certified by a
Manager of Bloomfield Servicing, and certificates of existence
dated no less recently than 90 days prior to the date of this
Agreement.
(7) A resolution of the Managers of Bloomfield Servicing,
certified as of the date of this Agreement by one of the
Managers, authorizing the execution, delivery and performance of
this Agreement and the other Loan Documents, and all other
instruments or documents to be delivered by Bloomfield Servicing
pursuant to this Agreement.
(8) A certificate of Bloomfield Servicing's Manager as to
the incumbency and authenticity of the signatures of the Managers
and employees of Bloomfield Servicing executing this Agreement
and the other Loan Documents and each Advance Request and all
other instruments or documents to be delivered pursuant hereto
(the Lender being entitled to rely thereon until a new such
certificate has been furnished to the Lender).
(9) Bloomfield Acceptance's articles or certificate of
organization as certified by the Secretary of State of Bloomfield
Acceptance's organization, Operating Agreement certified by a
Manager of Bloomfield Acceptance, and certificates of existence
dated no less recently than 90 days prior to the date of this
Agreement.
(10) A resolution of the Managers of Bloomfield Acceptance,
certified as of the date of this Agreement by one of its
Managers, authorizing the execution, delivery and performance of
this Agreement and the other Loan Documents, and all
41
<PAGE> 45
other instruments or documents to be delivered by Bloomfield
Acceptance pursuant to this Agreement.
(11) A certificate of Bloomfield Acceptance's Manager as to
the incumbency and authenticity of the signatures of the Managers
and employees of Bloomfield Acceptance executing this Agreement
and the other Loan Documents and each Advance Request and all
other instruments or documents to be delivered pursuant hereto
(the Lender being entitled to rely thereon until a new such
certificate has been furnished to the Lender).
(12) Financial statements of Bingham (and, if applicable,
its Subsidiaries, on a consolidated basis) and of each Borrower,
containing a balance sheet as of September 30, 1999 and related
statements of income, changes in stockholders' equity and cash
flows for the period ended on such date, all prepared in
accordance with GAAP applied on a basis consistent with prior
periods and audited by independent certified public accountants
of recognized standing acceptable to the Lender.
(13) A favorable written opinion of counsel to Borrower and
Bingham, dated as of the date of this Agreement substantially in
the form of Exhibit H attached hereto, addressed to the Lender.
(14) Uniform Commercial Code, tax lien and judgment searches
of the appropriate public records for each Borrower and Bingham,
which searches shall not have disclosed the existence of any
prior Lien on the Collateral other than in favor of the Lender or
as permitted hereunder.
(15) Copies of the certificates, documents or other written
instruments which evidence each Borrower's eligibility described
in Section 5.13 hereof, all in form and substance satisfactory to
the Lender.
(16) Copies of each Borrower's errors and omissions
insurance policy or mortgage impairment
42
<PAGE> 46
insurance policy, and blanket bond coverage policy, or
certificates in lieu of policies, all in form and content
satisfactory to the Lender, showing compliance by each Borrower
as of the date of this Agreement with the related provisions of
Section 6.8 hereof.
(17) Executed financing statements in recordable form
covering the Collateral and ready for filing in all jurisdictions
required by the Lender.
(18) Receipt by the Lender of any fees due on the date
hereof, including, but not limited to, Commitment Fees and
document production fees.
(19) Evidence that all accounts necessary into which
Advances will be funded have been established at the Funding Bank
and receipt of a fully executed Funding Bank Agreement.
(20) Assumed Name Certificate dated no less recently than 90
days prior to the date of this Agreement for any assumed name
used by either Borrower in the conduct of its business.
4.1(b) All directors, officers and shareholders of each
Borrower, all Affiliates of each Borrower or of any Subsidiary of each
Borrower, to whom or to any of whom a Borrower shall be indebted as of
the date of this Agreement, which indebtedness has a term of more than
1 year or is in excess of $25,000 shall have subordinated such
indebtedness to the Obligations, by executing a Subordination of Debt
Agreement, in the form of Exhibit F hereto; and the Lender shall have
received an executed copy of any such Subordination of Debt Agreement,
certified by the corporate secretary of the applicable Borrower to be
true and complete and in full force and effect as of the date of the
Advance; provided, that the foregoing requirements shall not apply to
an unsecured revolving line of credit provided by Bingham to either
Borrower consistent with their business practices prior to the date of
this Agreement.
43
<PAGE> 47
Each Advance. The obligation of the Lender to make the initial and each
subsequent Advance under this Agreement is subject to the satisfaction, in
the sole discretion of the Lender, as of the date of each such Advance, of
the following additional conditions precedent:
4.2(a) A Borrower shall have delivered to the Lender the
Advance Request and Collateral Documents called for under, and shall
have satisfied the procedures set forth in, Section 2.2 hereof and the
applicable Exhibits hereto described in that Section, according to the
requested Advance. All items delivered to the Lender shall be
satisfactory to the Lender in form and content, and the Lender may
reject such of them as do not meet the requirements of this Agreement
or of the related Purchase Commitment.
4.2(b) The Lender shall have received evidence satisfactory to
it as to the making and/or continuation of any book entry or the due
filing and recording in all appropriate offices of all financing
statements and other instruments as may be necessary to perfect the
security interest of the Lender in the Collateral under the Uniform
Commercial Code or other applicable law.
4.2(c) The representations and warranties of each Borrower
contained in Article 5 hereof shall be accurate and complete in all
material respects as if made on and as of the date of each Advance.
4.2(d) Each Borrower shall have performed all agreements to be
performed by it hereunder, and after giving effect to the requested
Advance, there shall exist no Default or Event of Default hereunder.
4.2(e) Each Borrower shall not have incurred any material
liabilities, direct or contingent, other than in the ordinary course
of its business, since the Statement Date.
4.2(f) The Lender shall have received from counsel for each
Borrower, if requested by the Lender in its sole discretion, an
updated opinion, in form and substance satisfactory to the Lender,
addressed to the
44
<PAGE> 48
Lender and dated as of the date of such Advance, covering such of the
matters as the Lender may reasonably request.
Delivery of an Advance Request by a Borrower shall be deemed a
representation by Borrower that all conditions set forth in this Section
4.2 shall have been satisfied as of the date of such Advance.
REPRESENTATIONS AND WARRANTIES.
Each Borrower hereby represents and warrants to the Lender, as of the
date of this Agreement and as of the date of each Advance Request and the
making of each Advance, that:
Organization; Good Standing; Subsidiaries. Each Borrower is a limited liability
company duly organized, validly existing and in good standing under the
laws of the jurisdiction of its formation, has the full legal power and
authority to own its property and to carry on its business as currently
conducted and is duly qualified as a foreign limited liability company to
do business and is in good standing in each jurisdiction in which the
transaction of its business makes such qualification necessary, except in
jurisdictions, if any, where a failure to be in good standing has no
material adverse effect on the business, operations, assets or financial
condition of such Borrower. For the purposes hereof, good standing shall
include qualification for any and all licenses and payment of any and all
taxes required in the jurisdiction of its incorporation and in each
jurisdiction in which the Borrower transacts business. Neither Borrower has
any Subsidiaries.
Authorization and Enforceability. Each Borrower has the power and authority to
execute, deliver and perform this Agreement, the Note and all other Loan
Documents to which the Borrower is party and to make the borrowings
hereunder. The execution, delivery and performance by the Borrower of this
Agreement, the Note and all other Loan Documents to which the Borrower is
party and the making of the borrowings hereunder and thereunder, have been
duly and validly authorized by all necessary action on the part of the
Borrower (none of which actions has been modified or rescinded, and all of
which actions are in full force and effect) and do not and will not
45
<PAGE> 49
conflict with or violate any provision of law, of any judgments binding
upon the Borrower, or of the articles of organization or operating
agreement of the Borrower, conflict with or result in a breach of or
constitute a default or require any consent under, or result in the
creation of any Lien upon any property or assets of the Borrower other than
the Lien on the Collateral granted hereunder, or result in or require the
acceleration of any indebtedness of the Borrower pursuant to any agreement,
instrument or indenture to which the Borrower is a party or by which the
Borrower or its property may be bound or affected. This Agreement, the Note
and all other Loan Documents contemplated hereby or thereby constitute
legal, valid, and binding obligations of the Borrower, enforceable in
accordance with their respective terms, except as limited by bankruptcy,
insolvency or other such laws affecting the enforcement of creditors'
rights and by general principles of equity.
Approvals. The execution and delivery of this Agreement, the Note and all
other Loan Documents and the performance of each Borrower's obligations
hereunder and thereunder and the validity and enforceability hereof and
thereof do not require any license, consent, approval or other action of
any state or federal agency or governmental or regulatory authority other
than those which have been obtained and remain in full force and effect.
Financial Condition. The balance sheet of Bingham and its Subsidiaries and of
each Borrower as of the Statement Date, and the related statements of
income and changes in stockholders' equity for the fiscal period ended on
the Statement Date, heretofore furnished to the Lender, fairly present the
financial condition of Bingham and its Subsidiaries and of each Borrower as
at the Statement Date and the results of their operations for the fiscal
period ended on the Statement Date, subject to footnotes contained therein
and, with respect to interim statements, year-end adjustments. Neither
Bingham, any of its Subsidiaries nor either Borrower had, on the Statement
Date, any known material liabilities, direct or indirect, fixed or
contingent, matured or unmatured, or liabilities for taxes, long-term
leases or unusual forward or long-term commitments not disclosed by, or
reserved against in, said balance sheet and related statements, and at the
present time there are no
46
<PAGE> 50
material unrealized or anticipated losses from any loans, advances or other
commitments of Bingham, any of its Subsidiaries or either Borrower except
as heretofore disclosed to the Lender in writing. Said financial statements
were prepared in accordance with GAAP applied on a consistent basis
throughout the periods involved, subject to footnotes contained therein
and, with respect to interim statements, year-end adjustments. Since the
Statement Date, there has been no material adverse change in the business,
operations, assets or financial condition of Bingham and its Subsidiaries,
or of either Borrower, nor is the Borrower aware of any state of facts
which (with or without notice or lapse of time or both) would or could
result in any such material adverse change.
Litigation. There are no actions, claims, suits or proceedings pending or, to
the knowledge of the Borrower, threatened or reasonably anticipated against
or affecting the Borrower in any court or before any arbitrator or before
any government commission, board, bureau or other administrative agency
which, if adversely determined, may reasonably be expected to result in any
material and adverse change in the business, operations, assets or
financial condition of the Borrower as a whole, or which would affect the
validity or enforceability of this Agreement, the Note or any other Loan
Document.
Compliance with Laws. Neither Borrower is in violation of any provision of
any law, or of any judgment, award, rule, regulation, order, decree, writ
or injunction of any court or public regulatory body or authority which
might have a material adverse effect on the business, operations, assets or
financial condition of a Borrower as a whole or which would affect the
validity or enforceability of this Agreement, the Note or any other Loan
Document.
Regulation U. Neither Borrower is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose
of purchasing or carrying Margin Stock, and no part of the proceeds of any
Advances made hereunder will be used to purchase or carry any Margin Stock
or to extend credit to others for the purpose of purchasing or carrying any
Margin Stock.
47
<PAGE> 51
Investment Company Act. Neither Borrower is an "investment company" or
controlled by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Payment of Taxes. The Borrowers have filed or caused to be filed all federal,
state and local income, excise, property and other tax returns with respect
to the operations of the Borrowers which are required to be filed, all such
returns are true and correct, and the Borrowers have paid or caused to be
paid all taxes as shown on such returns or on any assessment, to the extent
that such taxes have become due, including, but not limited to, all FICA
payments and withholding taxes, if appropriate. The amounts reserved, as a
liability for income and other taxes payable, in the financial statements
described in Section 5.4 hereof are sufficient for payment of all unpaid
federal, state and local income, excise, property and other taxes, whether
or not disputed, of the Borrowers accrued for or applicable to the period
and on the dates of such financial statements and all years and periods
prior thereto and for which the Borrowers may be liable in their own right
or as transferee of the assets of, or as successor to, any other Person. No
tax Liens have been filed and no material claims are being asserted with
respect to any such taxes, fees or charges.
Agreements. Neither Borrower is a party to any agreement, instrument or
indenture or subject to any restriction materially and adversely affecting
its business, operations, assets or financial condition, except as
disclosed in the financial statements described in Section 5.4 hereof.
Neither Borrower is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in
any agreement, instrument, or indenture which default could have a material
adverse effect on the business, operations, properties or financial
condition of the Borrowers as a whole. No holder of any indebtedness of
either Borrower has given notice of any asserted default thereunder, and no
liquidation or dissolution of either Borrower and no receivership,
insolvency, bankruptcy, reorganization or other similar proceedings
relative to either Borrower or any of their properties is pending, or to
the knowledge of either Borrower, threatened.
48
<PAGE> 52
Title to Properties. The Borrowers have good, valid, insurable (in the case
of real property) and marketable title to all of its properties and assets
(whether real or personal, tangible or intangible) reflected on the
financial statements described in Section 5.4 hereof, except for such
properties and assets as have been disposed of since the date of such
financial statements as no longer used or useful in the conduct of its
business or as have been disposed of in the ordinary course of business,
and all such properties and assets are free and clear of all Liens except
as disclosed in such financial statements.
ERISA. All plans ("Plans") of a type described in Section 3(3) of ERISA in
respect of which either Borrower is an "Employer," as defined in Section
3(5) of ERISA, are in substantial compliance with ERISA, and none of such
Plans is insolvent or in reorganization, has an accumulated or waived
funding deficiency within the meaning of Section 412 of the Internal
Revenue Code, and neither the Borrower nor any Subsidiary of the Borrower
has incurred any material liability (including any material contingent
liability) to or on account of any such Plan pursuant to Sections 4062,
4063, 4064, 4201 or 4204 of ERISA; and no proceedings have been instituted
to terminate any such Plan, and no condition exists which presents a
material risk to the Borrowers of incurring a liability to or on account of
any such Plan pursuant to any of the foregoing Sections of ERISA. No Plan
or trust forming a part thereof has been terminated since September 1,
1974.
Eligibility.
5.13(a) Bloomfield Acceptance is approved and qualified and in
good standing as a lender or seller/servicer, as set forth below, and
meets all requirements applicable to its status as such:
(1) Freddie Mac approved seller/servicer of Mortgage
Loans, eligible to originate, purchase, hold, sell and service
Mortgage Loans to be sold to Freddie Mac pursuant to the Freddie
Mac Program Plus program.
5.13(b) Bloomfield Servicing is approved and qualified and in
good standing as a lender or seller/servicer, as set forth below, and
meets all requirements applicable to its status as such:
49
<PAGE> 53
(1) Fannie Mae approved seller/servicer of Mortgage Loans
under the Fannie Mae Aggregation Facility and the Fannie Mae
Mobile Home Park Pilot Program, eligible to originate, purchase,
hold, sell and service Mortgage Loans to be sold to Fannie Mae.
Place of Business. The chief executive office and principal place of business
of the Borrowers is 260 East Brown Street, Suite 200, Birmingham, Michigan
48009.
Special Representations Concerning Collateral. The Borrower hereby represents
and warrants to the Lender, as of the date of this Agreement and as of the
date of each Advance Request and the making of each Advance, that:
5.15(a) The Borrower is the legal and equitable owner and
holder, free and clear of all Liens (other than Liens granted
hereunder), of the Pledged Mortgages and the Pledged Securities. All
Pledged Mortgages, Pledged Securities and Purchase Commitments have
been duly authorized and validly issued to the Borrower, and all of
the foregoing items of Collateral comply with all of the requirements
of this Agreement, and have been and will continue to be validly
pledged or assigned to the Lender, subject to no other Liens.
5.15(b) The Borrower has, and will continue to have, the full
right, power and authority to pledge the Collateral pledged and to be
pledged by it hereunder.
5.15(c) Any Mortgage Loan and any related document included in
the Pledged Mortgages (1) has been duly executed and delivered by the
parties thereto at a closing held not more than 30 days prior to the
date of the initial Advance Request for such Mortgage Loan, (2) has
been made in compliance with all applicable laws and regulations, (3)
is and will continue to be valid and enforceable in accordance with
its terms, without defense or offset, except as limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights generally
and by general principles of equity,
50
<PAGE> 54
(4) has not been modified or amended except in writing, which writing
is part of the Collateral Documents, nor any requirements thereof
waived, (5) has been evaluated or appraised in accordance with Title
XI of FIRREA, and (6) complies and will continue to comply in all
material respects with the terms of this Agreement and, if applicable,
with the related Purchase Commitment held by the Borrower. Except for
Bridge Mortgage Loans providing for an increase based on the
performance of the underlying Property, each Mortgage Loan has been
fully advanced in the face amount thereof Each First Mortgage is a
first Lien on the premises described therein, each Second Mortgage is
secured by a second Lien on the premises described therin, and such
Subordinate Mortgage is secured by a subordinate Lien on the premises
described therein, and has or will have a title insurance policy, in
American Land Title Association form or equivalent thereof, from a
recognized title insurance company, insuring the priority of the Lien
of the Mortgage and meeting the usual requirements of Investors
purchasing such Mortgage Loans.
5.15(d) No default has occurred and is continuing for more
than 60 days under any Mortgage Loan included in the Pledged Mortgages
without the Advance against such Pledged Mortgage having been repaid
in accordance with Section 2.5(c)(7) hereof, provided, however, that
with respect to Pledged Mortgages which have already been pledged as
Collateral hereunder, if any default has occurred, the Borrower will
promptly notify the Lender.
5.15(e) All fire and casualty policies covering the premises
encumbered by each Mortgage included in the Pledged Mortgages (1) name
and will continue to name the Borrower and its successors and assigns
as the insured under a standard mortgagee clause, (2) are and will
continue to be in full force and effect, and (3) afford and will
continue to afford insurance against fire and such other risks as are
usually insured against in the broad form of extended coverage
insurance from time to time available.
51
<PAGE> 55
5.15(f) Pledged Mortgages secured by premises containing
improvements located in a special flood hazard area designated as such
by the Director of the Federal Emergency Management Agency are and
shall continue to be covered by special flood insurance under the
National Flood Insurance Program.
5.15(g) Each Pledged Mortgage, against which an Advance is
made on the basis of a Purchase Commitment, meets all requirements of
such Purchase Commitment. The Borrower shall assure that Pledged
Mortgages which are intended to be used in the formation of
Mortgage-backed Securities shall comply or, prior to the formation of
any such Mortgage-backed Security, shall comply with the requirements
of the governmental instrumentality, department or agency issuing or
guaranteeing such Mortgage-backed Security.
5.15(h) Each Bridge Mortgage Loan pledged hereunder is an
Eligible Bridge Mortgage Loan.
Servicing. Attached hereto as Exhibit E is a true and complete list of the
Bloomfield Servicing's Servicing Portfolio. All of the Bloomfield
Servicing's Servicing Contracts are in full force and effect, and except as
otherwise indicated, are unencumbered by Liens. No default or event which,
with notice or lapse of time or both, would become a default, exists under
any such Servicing Contract. As of the Closing Date, Bloomfield Acceptance
has no Servicing Contracts.
No Adverse Selection. The Borrower has not selected the Collateral in a
manner so as to affect adversely the Lender's interests.
Year 2000 Compliance. The Borrower has conducted a comprehensive review and
assessment of the Borrower's computer applications and made inquiry of the
Borrower's key suppliers, vendors, customers, and Investors with respect to
the Year 2000 Problem and, based on that review and inquiry, the Borrower
does not believe the Year 2000 Problem will result in a material adverse
change in the Borrower's business condition (financial or otherwise),
operations, properties or prospects, or ability to repay the credit.
52
<PAGE> 56
5.19 Assumed Names. The Borrower does not originate Mortgage
Loans or otherwise conduct business under any names other than its
legal name and the assumed name(s) set forth on Exhibit N attached
hereto and made a part hereof. The Borrower has made all filings and
taken all other action as may be required under the laws of any
jurisdiction in which it originates Mortgage Loans or otherwise
conducts business under any assumed name. The Borrower's use of
assumed name(s) set forth herein does not conflict with any other
Person's legal rights to any such name(s), nor otherwise give rise to
any liability by the Borrower to any other Person.
6. AFFIRMATIVE COVENANTS.
The Borrower hereby covenants and agrees that, so long as the
Commitment is outstanding or there remain any Obligations to be paid or
performed under this Agreement or under any other Loan Document, the
Borrower shall:
Payment of Note. Punctually pay or cause to be paid all Obligations payable
hereunder and under the Note in accordance with the terms hereof and
thereof.
Financial Statements and Other Reports. Deliver to the Lender:
6.2(a) As soon as available and in any event within 45 days
after the end of each of the first 3 fiscal quarters of Bingham in
each fiscal year, statements of income and changes in stockholders'
equity of Bingham (and its Subsidiaries, on a consolidated and
consolidating basis) for the period from the beginning of such fiscal
year to the end of such fiscal quarter, and the related balance sheet
as at the end of such fiscal quarter, all in reasonable detail and
certified as to the fairness of presentation by the chief financial
officer of Bingham, subject, however, to year-end audit adjustments.
6.2(b) As soon as available and in any event within 90 days
after the end of each fiscal year of Bingham, statements of income,
changes in stockholders' equity and cash flow of Bingham (and its
Subsidiaries, on a consolidated and consolidating basis) for such
year, and the related balance sheet as of the end of
53
<PAGE> 57
such year (setting forth in comparative form the corresponding figures
for the preceding fiscal year), all in reasonable detail and
accompanied by an opinion (which opinion shall not be qualified due to
possible failure to take all appropriate steps to successfully address
the Year 2000 Problem) in form and substance satisfactory to the
Lender and prepared by an accounting firm reasonably satisfactory to
the Lender, or other independent certified public accountants of
recognized standing selected by Bingham and acceptable to the Lender,
as to said financial statements and a certificate signed by the chief
financial officer of Bingham stating that said financial statements
fairly present the financial condition and results of operations of
Bingham (and, if applicable, its Subsidiaries) as of the end of, and
for, such year.
6.2(c) Together with each delivery of financial statements
required in this Section 6.2, an Officer's Certificate substantially
in the form of Exhibit I-MF hereto: (1) setting forth in reasonable
detail all calculations necessary to show that the Borrowers are in
compliance with the requirements of Sections 7.6, 7.7, 7.8 and 7.9
hereof as of the end of such quarter or year (or, if the Borrowers are
not in compliance, showing the extent of non-compliance and specifying
the period of non-compliance and what actions the Borrowers have
taken, is taking or proposes to take with respect thereto); (2)
certifying that the Borrowers were, as of the end of the period, in
compliance and in good standing with applicable Investor net worth
requirements; (3) certifying that the representation set forth in
Section 5.18 hereof is true and correct as of the date of such
certificate or, if such representation is not true and correct as of
such date, specifying the nature of the problem and what action the
Borrowers have taken, is taking and proposes to take with request
thereto, and (4) stating that the signers have reviewed the terms of
this Agreement and have made, or caused to be made under their
supervision, a review in reasonable detail of the transactions and
conditions of the Borrowers during the accounting period covered by
such financial statements and that such review has not disclosed the
existence during or at the end of such
54
<PAGE> 58
accounting period, and that the signers do not have knowledge of the
existence as of the date of the Officer's Certificate, of any Default
or Event of Default, or if any Default or Event of Default existed or
exists, specifying the nature and period of the existence thereof and
what action the Borrowers have taken, is taking and proposes to take
with respect thereto.
6.2(d) As soon as available and in any event within 45 days
after the end of each Calendar Quarter, a consolidated report (the
"Servicing Portfolio Report") as of the end of the Calendar Quarter
detailing, as to all Mortgage Loans the servicing rights to which are
owned by Bloomfield Servicing (specified by investor type, recourse
and non-recourse) regardless of whether such Mortgage Loans are
Pledged Mortgages and which report shall indicate Mortgage Loans which
(i) are current and in good standing, (ii) are more than 30, 60 or 90
days past due, respectively, (iii) are the subject of pending
bankruptcy or foreclosure proceedings, or (iv) have been converted
(through foreclosure or other proceedings in lieu thereof) by the
Borrower into real estate owned by the Borrower.
6.2(e) As soon as available and in any event within 90 days
after the end of each fiscal year of the Borrower, a consolidated
report (the "Loan Production Report") as of the end of the fiscal
year, presenting the total dollar volume and the number of Mortgage
Loans originated and closed or purchased during the fiscal year,
specified by property type and loan type or type of Investor (e.g.
Fannie Mae, Freddie Mac, conduit, life insurance company, conduit,
etc.).
6.2(f) Copies of any audits completed by Fannie Mae, Freddie
Mac or any other Investor or any other Investor, to the extent not
confidential to such Investor.
6.2(g) Not fewer than three (3) Business Days prior to the
effective date of any material change to the Underwriting Guidelines,
a copy of such change.
55
<PAGE> 59
6.2(h) As soon as available and in any event within 30 days
after the end of each Calendar Quarter, a copy of all changes to the
Underwriting Guidelines, if any, and if there have been no changes, a
statement to that effect.
6.2(i) On or before the 15th Business Day of each month, a
status report with respect to each Bridge Mortgage Loan pledged
hereunder, in form and substance satisfactory to the Lender.
6.2(j) Reports in respect of the Pledged Mortgages and Pledged
Securities, in such detail and at such times as the Lender in its
discretion may reasonably request at any time or from time to time.
6.2(k) Copies of all regular or periodic financial and other
reports, if any, which the Borrower shall file with the Securities and
Exchange Commission or any governmental agency successor thereto.
6.2(l) From time to time, with reasonable promptness, such
further information regarding the business, operations, properties or
financial condition of the Borrower as the Lender may reasonably
request.
Maintenance of Existence; Conduct of Business. Preserve and maintain its
corporate existence in good standing and all of its rights, privileges,
licenses and franchises necessary or desirable in the normal conduct of its
business, including, without limitation, its eligibility as lender,
seller/servicer and issuer described under Section 5.13 hereof; conduct its
business in an orderly and efficient manner; maintain a net worth of
acceptable assets as required for maintaining the Borrower's eligibility as
lender, seller/servicer and issuer described under Section 5.13 hereof; and
make no change in the nature or character of its business or engage in any
business in which it was not engaged on the date of this Agreement.
Compliance with Applicable Laws. Comply in all material respects with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority, a breach of which could materially adversely affect
its
56
<PAGE> 60
business, operations, assets, or financial condition, except where
contested in good faith and by appropriate proceedings.
Inspection of Properties and Books. Permit authorized representatives of the
Lender or any Participant to discuss the business, operations, assets and
financial condition of the Borrower and their Subsidiaries with their
respective officers and employees and to examine its books of account and
make copies or extracts thereof, all at such reasonable times as the Lender
or any Participant may request upon reasonable prior notice to the
Borrower. The Borrower will provide their accountants with a copy of this
Agreement promptly after the execution hereof and will instruct its
accountants to answer candidly any and all questions that the officers of
the Lender or any Participant or any authorized representatives of the
Lender or any Participant may reasonably address to them in reference to
the financial condition or affairs of the Borrower and their Subsidiaries.
The Borrower may have their representatives in attendance at any meetings
between the officers or other representatives of the Lender or any
Participant and the Borrower's accountants held in accordance with this
authorization.
Notice. Give prompt Notice to the Lender of (a) any action, suit or
proceeding instituted by or against the Borrower or any of its Subsidiaries
in any federal or state court or before any commission or other regulatory
body (federal, state or local, domestic or foreign) which action, suit or
proceeding has at issue in excess of $100,000, or any such proceedings
threatened against the Borrower or any of its Subsidiaries in a writing
containing the details thereof, (b) the filing, recording or assessment of
any federal, state or local tax Lien against the Borrower, or any of its
assets or any of its Subsidiaries, (c) the occurrence of any Event of
Default hereunder or the occurrence of any Default and continuation thereof
for 5 days, (d) the suspension, revocation or termination of the Borrower's
eligibility, in any respect, as approved lender, seller/servicer or issuer
as described under Section 5.13 hereof, (e) the transfer, loss or
termination of any Servicing Contract to which the Borrower is a party, or
which is held for the benefit of the Borrower, and the reason for such
transfer, loss or termination, if known to the Borrower, and (f) any other
action, event or condition of any nature which if adversely determined is
likely to result in a
57
<PAGE> 61
material adverse effect upon the business, operations, assets, or financial
condition of the Borrower and its Subsidiaries or which, with or without
notice or lapse of time or both, would constitute a default under any other
agreement, instrument or indenture to which the Borrower or any of its
Subsidiaries is a party or to which the Borrower or any of its
Subsidiaries, its properties or assets, may be subject.
Payment of Debt, Taxes, etc. Pay and perform all obligations and indebtedness
of the Borrower, and cause to be paid and performed all obligations and
indebtedness of its Subsidiaries, promptly and in accordance with the terms
thereof and pay and discharge or cause to be paid and discharged promptly
all taxes, assessments and governmental charges or levies imposed upon the
Borrower or its Subsidiaries or upon their respective income, receipts or
properties before the same shall become past due, as well as all lawful
claims for labor, materials and supplies or otherwise which, if unpaid,
might become a Lien or charge upon such properties or any part thereof;
provided, however, that the Borrower and its Subsidiaries shall not be
required to pay taxes, assessments or governmental charges or levies or
claims for labor, materials or supplies for which the Borrower or its
Subsidiaries shall have obtained an adequate bond or adequate insurance or
which are being contested in good faith and by proper proceedings which are
being reasonably and diligently pursued and for which proper reserves have
been created.
Insurance. Maintain (a) errors and omissions insurance or mortgage impairment
insurance, and blanket bond coverage, with such companies and in such
amounts as satisfy prevailing requirements applicable to a lender,
seller/servicer and issuer described under Section 5.13 hereof, and (b)
liability insurance and fire and other hazard insurance on its properties,
with responsible insurance companies approved by the Lender, in such
amounts and against such risks as is customarily carried by similar
businesses operating in the same vicinity; and (c) within 30 days after
Notice from the Lender, obtain such additional insurance as the Lender
shall reasonably require, all at the sole expense of the Borrower. Copies
of such policies shall be furnished to the Lender without charge upon
request of the Lender.
58
<PAGE> 62
Closing Instructions. Indemnify and hold the Lender harmless from and against
any loss, including reasonable attorneys' fees and costs, attributable to
the failure of a title insurance company, agent or approved attorney to
comply with the disbursement or instruction letter or letters of the
Borrower relating to any Mortgage Loan. The Lender shall have the right to
pre-approve the closing instructions of the Borrower to the title insurance
company, agent or attorney in any case where the Mortgage Loan to be
created at settlement is intended to be warehoused by the Borrower to be
included as Collateral pursuant hereto.
Subordination of Certain Indebtedness. Cause any indebtedness of the
Borrower, incurred after the date of this Agreement, to any shareholder,
director or officer of the Borrower, or to any Affiliate of the Borrower or
of any Subsidiary of the Borrower, which indebtedness has a term of more
than 1 year or is in excess of $25,000 to be subordinated to all
Obligations, by the execution of a Subordination of Debt Agreement in the
form of Exhibit F hereto and deliver to the Lender an executed copy of said
Agreement, certified by the corporate secretary of the Borrower to be true
and complete and in full force and effect; provided, that the foregoing
requirements shall not apply to an unsecured revolving line of credit
provided by Bingham to either Borrower consistent with their business
practices prior to the date of this Agreement.
Other Loan Obligations. Perform all material obligations under the terms of
each loan agreement, note, mortgage, security agreement or debt instrument
by which the Borrower is bound or to which any of its property is subject,
and promptly notify the Lender in writing of a declared default under or
the termination, cancellation, reduction or nonrenewal of any of its other
lines of credit or agreements with any other lender. Exhibit J hereto is a
true and complete list of all such lines of credit or agreements as of the
date hereof and the Borrower hereby agree to give the Lender at least 30
days Notice before entering into any additional lines of credit or
agreements.
Use of Proceeds of Advances. Use the proceeds of each Advance solely for the
purpose set forth in Section 2.1(b) for Advances of that type.
59
<PAGE> 63
Special Affirmative Covenants Concerning Collateral.
6.13(a) Warrant and defend the right, title and interest of
the Lender in and to the Collateral against the claims and demands of
all Persons whomsoever.
6.13(b) Service or cause to be serviced all Pledged Mortgages
in accordance with the standard requirements of the issuers of
Purchase Commitments covering the same and all applicable HUD, Fannie
Mae and Freddie Mac requirements, including without limitation taking
all actions necessary to enforce the obligations of the obligors under
such Mortgage Loans. The Borrower shall service or cause to be
serviced all Mortgage Loans backing Pledged Securities in accordance
with applicable governmental requirements and requirements of issuers
of Purchase Commitments covering the same. The Borrower shall hold all
escrow funds collected in respect of Pledged Mortgages and Mortgage
Loans backing Pledged Securities in trust, without commingling the
same with non-custodial funds, and apply the same for the purposes for
which such funds were collected.
6.13(c) Execute and deliver to the Lender such Uniform
Commercial Code financing statements with respect to the Collateral as
the Lender may request. The Borrower shall also execute and deliver to
the Lender such further instruments of sale, pledge or assignment or
transfer, and such powers of attorney, as required by the Lender, and
shall do and perform all matters and things necessary or desirable to
be done or observed, for the purpose of effectively creating,
maintaining and preserving the security and benefits intended to be
afforded the Lender under this Agreement. The Lender shall have all
the rights and remedies of a secured party under the Uniform
Commercial Code of Minnesota, or any other applicable law, in addition
to all rights provided for herein.
6.13(d) Notify the Lender within 2 Business Days of any
default of which a Borrower has knowledge under, or of the termination
of, any Purchase Commitment
60
<PAGE> 64
relating to any Pledged Mortgage, Eligible Mortgage Pool, or Pledged
Security.
6.13(e) Promptly comply in all respects with the terms and
conditions of all Purchase Commitments, and all extensions, renewals
and modifications or substitutions thereof or thereto. The Borrower
will cause to be delivered to the Investor the Pledged Mortgages and
Pledged Securities to be sold under each Purchase Commitment not later
than 3 Business Days prior to the mandatory delivery date thereof.
6.13(f) Maintain, at its principal office or in a regional
office approved by the Lender, or in the office of a computer service
bureau engaged by the Borrower and approved by the Lender and, upon
request, make available to the Lender the originals, or copies in any
case where the originals have been delivered to the Lender or to an
Investor, of its Mortgage Notes and Mortgages included in Pledged
Mortgages, Mortgage-backed Securities delivered to the Lender as
Pledged Securities, Purchase Commitments, and all related Mortgage
Loan documents and instruments, and all files, surveys, certificates,
correspondence, appraisals, computer programs, tapes, discs, cards,
accounting records and other information and data relating to the
Collateral.
NEGATIVE COVENANTS.
The Borrowers hereby covenant and agree that, so long as the
Commitment is outstanding or there remain any Obligations to be paid or
performed, the Borrower shall not, either directly or indirectly, without
the prior written consent of the Lender:
Contingent Liabilities. Assume, guarantee, endorse, or otherwise become
contingently liable for the obligation of any Person except by endorsement
of negotiable instruments for deposit or collection in the ordinary course
of business and excluding the sale of Mortgage Loans with recourse in the
ordinary course of the Borrower's business.
61
<PAGE> 65
Sale or Pledge of Servicing Contracts. Sell, pledge or grant a security
interest in any existing or future Servicing Contracts of the Borrower
other than to the Lender, except as otherwise expressly permitted in this
Agreement, or omit to take any action required to keep all such Servicing
Contracts in full force and effect.
Merger; Sale of Assets; Acquisitions. Liquidate, dissolve, consolidate or
merge (except as permitted under Section 7.9) or sell any substantial part
of its assets, or acquire any substantial part of the assets of another.
Deferral of Subordinated Debt. Pay in advance of the stated maturity thereof
any Subordinated Debt of the Borrower or, if a Default or Event of Default
hereunder shall have occurred, make any payment of any kind thereafter on
such Subordinated Debt until all Obligations have been paid and performed
in full and any applicable preference period has expired.
Loss of Eligibility. Take any action that would cause the Borrower to lose
all or any part of its status as an eligible lender, seller/servicer and
issuer as described under Section 5.13 hereof.
Debt to Tangible Net Worth Ratio. Permit the ratio of Debt (excluding, for
this purpose only, Debt arising under the Hedging Arrangements, to the
extent of assets arising under the same Hedging Arrangements) to Tangible
Net Worth of Bingham (and its Subsidiaries, on a consolidated basis) at any
time to exceed 10 to 1.
Minimum Net Worth. Permit (a) Tangible Net Worth of Bingham (and its
Subsidiaries, on a consolidated basis) at any time to be less than
$15,000,000, (b) Tangible Net Worth of Bloomfield Servicing (and its
Subsidiaries, on a consolidated basis) at any time to be less than
$2,000,000, or (c) Book Net Worth of Bloomfield Acceptance (and its
Subsidiaries, on a consolidated basis) at any time to be less than
$1,000,000.
Minimum Agency Servicing Portfolio. Permit the outstanding Agency Servicing
Portfolio of the Borrowers to be less than $33,000,000.
Transactions with Affiliates. Directly or indirectly (a) make any loan,
advance, extension of credit or capital contribution to
62
<PAGE> 66
any of its Affiliates, (b) transfer, sell, pledge, assign or otherwise
dispose of any of its assets to or on behalf of such Affiliates, (c) except
for a merger or consolidation of Hartger & Willard Mortgage Associates,
Inc., into Bloomfield Acceptance, merge or consolidate with or purchase or
acquire assets from such Affiliates, or (d) pay management fees to or on
behalf of such Affiliates.
Gestation Facilities. Directly or indirectly sell or finance Pledged
Mortgages under any Gestation Agreement.
Special Negative Covenants Concerning Collateral.
7.11(a) The Borrower shall not amend or modify, or waive any
of the terms and conditions of, or settle or compromise any claim in
respect of, any Pledged Mortgages or Pledged Securities.
7.11(b) The Borrower shall not sell, assign, transfer or
otherwise dispose of, or grant any option with respect to, or pledge
or otherwise encumber (except pursuant to this Agreement or as
permitted herein) any of the Collateral or any interest therein.
7.11(c) The Borrower shall not make any compromise, adjustment
or settlement in respect of any of the Collateral or accept other than
cash in payment or liquidation of the Collateral.
7.11(d) The Borrower shall not make any material change in the
Underwriting Guidelines and procedures without providing notice
thereof to the Lender pursuant to Section 6.2(g), and shall review the
Underwriting Guidelines periodically to confirm that such policies and
procedures are being complied with in all material respects and are
adequate to meet the Company's business objectives.
DEFAULTS; REMEDIES.
Events of Default. The occurrence of any of the following conditions or
events shall be an event of default ("Event of Default"):
63
<PAGE> 67
8.1(a) Failure to pay the principal of any Advance when due,
whether at stated maturity, by acceleration, or otherwise; or failure
to pay any installment of interest on any Advance or any other amount
due under this Agreement within 10 days after the due date; or failure
to pay, within any applicable grace period, any other Obligations of
the Borrower due the Lender; or
8.1(b) Failure of the Guarantor or any of its Subsidiaries to
pay, or any default in the payment of any principal or interest on,
any other Debt within any period of grace provided; breach or default
with respect to any material term of any other Debt or of any loan
agreement, mortgage, indenture or other agreement relating thereto, if
the effect of such breach or default is to cause, or to permit the
holder or holders thereof (or a trustee on behalf of such holder or
holders) to cause, Debt of the Guarantor and its Subsidiaries in the
aggregate amount of $100,000 or more to become or be declared due
prior to its stated maturity (upon the giving or receiving of notice,
lapse of time, both, or otherwise); or
8.1(c) Failure of the Borrower to perform or comply with any
term or condition applicable to it contained in Sections 6.3, 6.12 and
6.13 or in any Section of Article 7 of this Agreement; or
8.1(d) Any of the Borrower's representations or warranties
made or deemed made herein or in any other Loan Document (other than
the representations and warranties set forth in Section 5.15 hereof),
or in any statement or certificate at any time given by the Borrower
in writing pursuant hereto or thereto shall be inaccurate or
incomplete in any material respect on the date as of which made or
deemed made; or
8.1(e) The Borrower shall default in the performance of or
compliance with any term contained in this Agreement or any other Loan
Document other than those referred to above in Subsections 8.1(a),
8.1(c) or 8.1(d) and such default shall not have been remedied or
waived within 30 days after the earliest of (i) receipt
64
<PAGE> 68
by the Borrower of Notice from the Lender of such default, (ii)
receipt by the Lender of Notice from the Borrower of such default, or
(iii) the date the Borrower should have notified the Lender of such
default pursuant to Section 6.6(c); or
8.1(f)(1) A court having jurisdiction shall enter a decree or
order for relief in respect of the Guarantor, either Borrower or any
Subsidiary of either Borrower in an involuntary case under any
applicable bankruptcy, insolvency or other similar law in respect of
the Guarantor, either Borrower or any Subsidiary of either Borrower
now or hereafter in effect, which decree or order is not stayed; the
Guarantor, either Borrower or any Subsidiary of either Borrower shall
consent to the entry of any such decree or order; or a filing of a
voluntary case under any applicable bankruptcy, insolvency or other
similar law in respect of the Guarantor, either Borrower or any
Subsidiary of either Borrower has occurred; or any other similar
relief shall be granted under any applicable federal or state law; or
(2) the filing of an involuntary case in respect of the Guarantor,
either Borrower or any Subsidiary of either Borrower or under any
applicable bankruptcy, insolvency or other similar law; or a decree or
order of a court having jurisdiction for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over the Guarantor, either Borrower or
any Subsidiary of either Borrower, or over all or a substantial part
of their respective property, shall have been entered; or the
involuntary appointment of an interim or permanent receiver, trustee
or other custodian of the Guarantor, either Borrower or any Subsidiary
of either Borrower for all or a substantial part of their respective
property; or the issuance of a warrant of attachment, execution or
similar process against any substantial part of the property of the
Guarantor, either Borrower or any Subsidiary of either Borrower, and
the continuance of any such events in Subsection (2) above for 60 days
unless dismissed, bonded off or discharged; or
8.1(g) The Guarantor, either Borrower or any Subsidiary of
either Borrower shall consent to the
65
<PAGE> 69
appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; the making by
the Guarantor, either Borrower or any Subsidiary of either Borrower of
any assignment for the benefit of creditors; or the inability or
failure of either Borrower or any Subsidiary of either Borrower, or
the admission by the Guarantor, either Borrower or any Subsidiary of
either Borrower in writing of its inability, to pay its debts as such
debts become due; or
8.1(h) Failure of the Borrower to perform any contractual
obligations which it may have to repurchase Mortgage Loans, if such
obligations in the aggregate exceed $1,000,000; or
8.1(i) Any money judgment, writ or warrant of attachment, or
similar process involving in any case an amount in excess of $100,000
shall be entered or filed against the Guarantor or any of its
Subsidiaries or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of 30 days
or in any event later than 5 days prior to the date of any proposed
sale thereunder; or
8.1(j) Any order, judgment or decree shall be entered against
the Borrower decreeing the dissolution or split up of the Borrower and
such order shall remain undischarged or unstayed for a period in
excess of 20 days; or
8.1(k) Any Plan maintained by the Guarantor or any of its
Subsidiaries shall be terminated within the meaning of Title IV of
ERISA or a trustee shall be appointed by an appropriate United States
District Court to administer any Plan, or the Pension Benefit Guaranty
Corporation (or any successor thereto) shall institute proceedings to
terminate any Plan or to appoint a trustee to administer any Plan if
as of the date thereof the Guarantor's liability or any such
Subsidiary's liability (after giving effect to the tax consequences
thereof) to the Pension Benefit Guaranty Corporation (or any successor
thereto) for unfunded guaranteed vested benefits under the Plan
exceeds the then current value
66
<PAGE> 70
of assets accumulated in such Plan by more than $25,000 (or in the
case of a termination involving the Guarantor or any of its
Subsidiaries as a "substantial employer" (as defined in Section
4001(a)(2) of ERISA) the withdrawing employer's proportionate share of
such excess shall exceed such amount); or
8.1(l) The Guarantor or any of its Subsidiaries as employer
under a Multiemployer Plan shall have made a complete or partial
withdrawal from such Multiemployer Plan and the plan sponsor of such
Multiemployer Plan shall have notified such withdrawing employer that
such employer has incurred a withdrawal liability in an annual amount
exceeding $25,000; or
8.1(m) The Borrower shall purport to disavow its obligations
hereunder or shall contest the validity or enforceability hereof; the
Guarantor shall purport to disavow its obligations under the Guaranty
or shall contest the validity or enforceability hereof; or the
Lender's security interest on any portion of the Collateral shall
become unenforceable or otherwise impaired; provided that, subject to
the Lender's approval, no Event of Default shall occur as a result of
such impairment if all Advances made against any such Collateral shall
be paid in full within 10 days of the date of such impairment; or
8.1(n) Bingham shall cease to own, directly or indirectly, all
of the capital stock of the Borrowers; or
8.1(o) Daniel Bober shall cease to be the President of
Bloomfield Acceptance and a managing member or similar controlling
participant of Bloomfield Servicing; or
8.1(p) A material adverse change occurs, or is reasonably
likely to occur, in the business condition (financial or otherwise),
operations, properties or prospects of the Borrower, or in the ability
of the Borrower to repay the Obligations; or
67
<PAGE> 71
8.1(q) Any Lien for any taxes, assessments or other governmental
charges (i) is filed against the Borrower or any of its property, or is
otherwise enforced against the Borrower or any of its property, or (ii) obtains
priority that is equal or greater than the priority of the Lender's security
interest in any of the Collateral or
8.1(r) The audited financial statements of Bingham as of
September 30, 1999, when delivered to the Lender pursuant to Section
6.2(a), differ in any material respect from the financial statements
of Bingham described in Section 4.1(a)(11) above.
Remedies.
8.2(a) Upon the occurrence of any Event of Default described
in Sections 8.1(f) or 8.1(g), the Commitment shall be terminated and
the unpaid principal amount of and accrued interest on the Note and
all other Obligations shall automatically become due and payable,
without presentment, demand or other requirements of any kind, all of
which are hereby expressly waived by the Borrower.
8.2(b) Upon the occurrence of any Event of Default, other than
those described in Sections 8.1(f) and 8.1(g), the Lender may, by
Notice to the Borrower, terminate the Commitment and/or declare all
Obligations to be immediately due and payable, whereupon the same
shall forthwith become due and payable, together with all accrued
interest thereon, and the obligation of the Lender to make any
Advances shall thereupon terminate.
8.2(c) Upon the occurrence of any Event of Default, the Lender
may also do any of the following:
(1) Foreclose upon or otherwise enforce its security
interest in and Lien on the Collateral to secure all payments and
performance of the Obligations in any manner permitted by law or
provided for hereunder.
(2) Notify all obligors in respect of Collateral that the
Collateral has been assigned to
68
<PAGE> 72
the Lender and that all payments thereon are to be made directly
to the Lender or such other party as may be designated by the
Lender; settle, compromise, or release, in whole or in part, any
amounts owing on the Collateral, any such obligor or any Investor
or any portion of the Collateral, on terms acceptable to the
Lender; enforce payment and prosecute any action or proceeding
with respect to any and all Collateral; and where any such
Collateral is in default, foreclose on and enforce security
interests in, such Collateral by any available judicial procedure
or without judicial process and sell property acquired as a
result of any such foreclosure.
(3) Act, or contract with a third party to act, as servicer
or subservicer of each item of Collateral requiring servicing and
perform all obligations required in connection with Servicing
Contracts and Purchase Commitments, such third party's fees to be
paid by the Borrower.
(4) Require the Borrower to assemble the Collateral and/or
books and records relating thereto and make such available to the
Lender at a place to be designated by the Lender.
(5) Enter onto property where any Collateral or books and
records relating thereto are located and take possession thereof
with or without judicial process; and obtain access to the
Borrower's data processing equipment, computer hardware and
software relating to the Collateral and to use all of the
foregoing and the information contained therein in any manner the
Lender deems necessary for the purpose of effectuating its rights
under this Agreement and any other Loan Document.
(6) Prior to the disposition of the Collateral, prepare it
for disposition in any manner and to the extent the Lender deems
appropriate.
69
<PAGE> 73
(7) Exercise all rights and remedies of a secured creditor
under the Uniform Commercial Code of Minnesota or other
applicable law, including, but not limited to, selling or
otherwise disposing of the Collateral, or any part thereof, at
one or more public or private sales, whether or not such
Collateral is present at the place of sale, for cash or credit or
future delivery, on such terms and in such manner as the Lender
may determine, including, without limitation, sale pursuant to
any applicable Purchase Commitment. If notice is required under
such applicable law, the Lender will give the Borrower not less
than 10 days' notice of any such public sale or of the date after
which any private sale may be held. The Borrower agrees that 10
days' notice shall be reasonable notice. The Lender 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 the Lender until the selling price is paid by the
purchaser thereof, but the Lender 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. The Lender may,
however, instead of exercising the power of sale herein conferred
upon it, proceed by a suit or suits at law or in equity to
collect all amounts due upon the Collateral or to foreclose the
pledge of and sell the Collateral or any portion thereof under a
judgment or decree of a court or courts of competent
jurisdiction, or both.
(8) Proceed against the Borrower on the Note.
8.2(d) The Lender shall incur no liability as a result of
the sale or other disposition of the Collateral, or any part
thereof, at any public or
70
<PAGE> 74
private sale or disposition. The Borrower hereby waives (to the
extent permitted by law) any claims it may have against the
Lender arising by reason of the fact that the price at which the
Collateral may have been sold at such private sale was less than
the price which might have been obtained at a public sale or was
less than the aggregate amount of the outstanding Advances and
the unpaid interest accrued thereon, even if the Lender accepts
the first offer received and does not offer the Collateral to
more than one offeree. Any sale of Collateral pursuant to the
terms of a Purchase Commitment, or any other disposition of
Collateral arranged by the Borrower, whether before or after the
occurrence of an Event of Default, shall be deemed to have been
made in a commercially reasonable manner.
8.2(e) The Borrower acknowledges that Mortgage Loans and
Mortgage-backed Securities are collateral of a type which is
customarily sold on a recognized market. The Borrower waives any
right it may have to prior notice of the sale of any Pledged
Mortgage or Pledged Security, and agrees that the Lender may
purchase any Pledged Mortgages or Pledged Securities at a private
sale of such Collateral.
8.2(f) The Borrower specifically waives and releases (to
the extent permitted by law) any equity or right of redemption,
all rights of redemption, stay or appraisal which the Borrower
has or may have under any rule of law or statute now existing or
hereafter adopted, and any right to require the Lender to (1)
proceed against any Person, (2) proceed against or exhaust any of
the Collateral or pursue its rights and remedies as against the
Collateral in any particular order, or (3) pursue any other
remedy in its power. The Lender shall not be required to take any
steps necessary to preserve any rights of the Borrower against
holders of mortgages prior in lien to the Lien of any Mortgage
included in the Collateral or to preserve rights against prior
parties.
8.2(g) The Lender may, but shall not be obligated to,
advance any sums or do any act or thing necessary to uphold and
enforce the Lien and priority
71
<PAGE> 75
of, or the security intended to be afforded by, any Mortgage
included in the Collateral, including, without limitation,
payment of delinquent taxes or assessments and insurance
premiums. All advances, charges, costs and expenses, including
reasonable attorneys' fees and disbursements, incurred or paid by
the Lender in exercising any right, power or remedy conferred by
this Agreement, or in the enforcement hereof, together with
interest thereon, at the Default Rate, from the time of payment
until repaid, shall become a part of the principal balance
outstanding hereunder and under the Note.
8.2(h) No failure on the part of the Lender to exercise, and
no delay in exercising, any right, power or remedy provided
hereunder, at law or in equity shall operate as a waiver thereof;
nor shall any single or partial exercise by the Lender of any
right, power or remedy provided hereunder, at law or in equity
preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. Without intending to limit the
foregoing, all defenses based on the statute of limitations are
hereby waived by the Borrower to the extent permitted by law. The
remedies herein provided are cumulative and are not exclusive of
any remedies provided at law or in equity.
8.2(i) Upon the occurrence of an Event of Default, the
Lender is hereby granted a license or other right to use, without
charge, the Borrower's computer programs, other programs, labels,
patents, copyrights, rights of use of any name, trade secrets,
trade names, trademarks, service marks and advertising matter, or
any property of a similar nature, as it pertains to the
Collateral, in advertising for sale and selling any Collateral
and the Borrower's rights under all licenses and all other
agreements related to the foregoing shall inure to the Lender's
benefit until the Obligations are paid in full.
Application of Proceeds. The proceeds of any sale, disposition or other
enforcement of the Lender's security interest in all or any part of the
Collateral shall be applied by the Lender to the Obligations in such order
as the Lender, in its sole and absolute discretion, shall determine:
72
<PAGE> 76
First, to the payment of the costs and expenses of such sale or
enforcement, including reasonable compensation to the Lender's agents and
counsel, and all expenses, liabilities and advances made or incurred by or
on behalf of the Lender in connection therewith;
Second, to the payment of the Obligations in such order as the Lender,
in its sole discretion, determines; and
Finally, from and after the indefensible payment to the Lender of all
of the Obligations, any remaining proceeds shall be paid to the Borrower,
or to its successors or assigns, or as a court of competent jurisdiction
may direct, of any surplus then remaining from such proceeds.
If the proceeds of any sale, disposition or other enforcement are
insufficient to cover the costs and expenses of the sale, and the payment
in full of all Obligations, the Borrower will remain liable for any
deficiency.
Lender Appointed Attorney-in-Fact. The Lender is hereby appointed the
attorney-in-fact of the Borrower, with full power of substitution, for the
purpose of carrying out the provisions hereof and taking any action and
executing any instruments which the Lender 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, the Lender shall have the right and power to give notices
of its security interest in the Collateral to any Person, either in the
name of the Borrower or in its own name, to endorse all Pledged Mortgages
or Pledged Securities payable to the order of the Borrower, to change or
cause to be changed the book-entry registration or name of subscriber or
Investor on any Pledged Security, or to receive, endorse and collect all
checks made payable to the order of the Borrower representing any payment
on account of the principal of or interest on, or the proceeds of sale of,
any of the Pledged Mortgages or Pledged Securities and to give full
discharge for the same.
Right of Set-Off. If the Borrower shall default in the payment of the Note,
any interest accrued thereon, or any other sums
73
<PAGE> 77
which may become payable hereunder when due, or in the performance of any
of its other obligations or liabilities under this Agreement, the Lender,
shall have the right, at any time and from time to time, without notice, to
set-off and to appropriate or apply any and all property or indebtedness of
any kind at any time held or owing by the Lender to or for the credit or
the account of the Borrower against and on account of the Obligations of
the Borrower under the Note and this Agreement, irrespective of whether or
not the Lender shall have made any demand hereunder and whether or not said
Obligations shall have matured.
NOTICES.
All notices, demands, consents, requests and other communications required
or permitted to be given or made hereunder (collectively, "Notices") shall,
except as otherwise expressly provided hereunder, be in writing and shall be
delivered in person or telecopied or mailed, first class or delivered by
overnight courier, return receipt requested, postage prepaid, addressed to the
respective parties hereto at their respective addresses hereinafter set forth
or, as to any such party, at such other address as may be designated by it in a
Notice to the other. All Notices shall be conclusively deemed to have been
properly given or made when duly delivered, in person, by telecopy or by
overnight courier, or if mailed, on the date of receipt as noted on the return
receipt, addressed as follows:
if to the Borrower: Bloomfield Acceptance Company, L.L.C.
Bloomfield Servicing Company, L.L.C.
260 East Brown Street, Suite 200
Birmingham, Michigan 48009
Attn: Daniel Bober, President
Telecopier No.: (248) 644-5760
if to the Lender: Residential Funding Corporation
4800 Montgomery Lane, Suite 300
Bethesda, Maryland 20814
Attention: Margaret Whitesides, Director
Telecopier No.: (301) 215-7212
74
<PAGE> 78
The Borrower shall: (a) pay a documentation production fee of $7,500 in
connection with the preparation and negotiation of this Agreement; (b) pay such
additional documentation production fees as the Lender may require and all
out-of-pocket costs and expenses of the Lender, including, without limitation,
reasonable fees, service charges and disbursements of counsel (including
allocated costs of internal counsel), in connection with the amendment,
enforcement and administration of this Agreement, the Note, and other Loan
Documents and the making and repayment of the Advances and the payment of
interest thereon; (c) indemnify, pay, and hold harmless the Lender and any
holder of the Note from and against, any and all present and future stamp,
documentary and other similar taxes with respect to the foregoing matters and
save the Lender and the holder or holders of the Note harmless from and against
any and all liabilities with respect to or resulting from any delay or omission
to pay such taxes; and (d) indemnify, pay and hold harmless the Lender and any
of its officers, directors, employees or agents and any subsequent holder of the
Note (collectively called the "Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, judgments, suits, costs,
expenses and disbursements of any kind or nature whatsoever (including without
limitation, the reasonable fees and disbursements of counsel of the Indemnitees
(including allocated costs of internal counsel) in connection with any
investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto) which may be imposed upon,
incurred by or asserted against such Indemnitees in any manner relating to or
arising out of this Agreement, the Note, or any other Loan Document or any of
the transactions contemplated hereby or thereby (the "Indemnified Liabilities");
provided, however, that the Borrower shall have no obligation hereunder with
respect to Indemnified Liabilities arising from the gross negligence or willful
misconduct of any such Indemnitees. To the extent that the undertaking to
indemnify, pay and hold harmless as set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrower
shall contribute the maximum portion which it is permitted to pay and satisfy
under applicable law, to the payment and satisfaction of all Indemnified
Liabilities incurred by the Indemnitees or any of them. The agreement of the
Borrower contained in this Subsection (d) shall survive the expiration or
termination of this Agreement and the payment in full of the Note. Attorneys'
fees and disbursements incurred in enforcing, or on appeal from, a judgment
pursuant
75
<PAGE> 79
hereto shall be recoverable separately from and in addition to any other amount
included in such judgment, and this clause is intended to be severable from the
other provisions of this Agreement and to survive and not be merged into such
judgment.
11. FINANCIAL INFORMATION.
All financial statements and reports furnished to the Lender hereunder
shall be prepared in accordance with GAAP, applied on a basis consistent with
that applied in preparing the financial statements as at the end of and for the
last fiscal year ended (except to the extent otherwise required to conform to
good accounting practice).
MISCELLANEOUS.
Terms Binding Upon Successors; Survival of Representations. The terms and
provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. All
representations, warranties, covenants and agreements herein contained on
the part of the Borrower shall survive the making of any Advance and the
execution of the Note, and shall be effective so long as the Commitment is
outstanding hereunder or there remain any Obligations to be paid or
performed.
Assignment. This Agreement cannot be assigned by the Borrower. This Agreement
and the Note along with the Lender's security interest in any or all of the
Collateral, may, at any time, be transferred or assigned, in whole or in
part, by the Lender, and any assignee thereof may enforce this Agreement,
the Note and its security interest in the Collateral so assigned.
Amendments. Except as otherwise provided in this Agreement, this Agreement
may not be amended, modified or supplemented unless such amendment,
modification or supplement is set forth in a writing signed by the parties
hereto.
Governing Law. This Agreement and the other Loan Documents shall be
governed by the laws of the State of Minnesota, without reference to its
principles of conflicts of laws.
76
<PAGE> 80
Participations. The Lender may at any time sell, assign or grant
participations in, or otherwise transfer to any other Person (a
"Participant"), all or part of the Obligations. Without limitation of the
exclusive right of the Lender to collect and enforce such Obligations, the
Borrower agrees that each disposition will give rise to a debtor-creditor
relationship of the Borrower to the Participant, and the Borrower
authorizes each Participant, upon the occurrence of an Event of Default, to
proceed directly by right of setoff, banker's lien, or otherwise, against
any assets of the Borrower which may be in the hands of such Participant.
The Borrower authorizes the Lender to disclose to any prospective
Participant and any Participant any and all information in the Lender's
possession concerning the Borrower, this Agreement and the Collateral.
Relationship of the Parties. This Agreement provides for the making of
Advances by the Lender, in its capacity as a lender, to the Borrower, in
its capacity as a borrower, and for the payment of interest, repayment of
principal by the Borrower to the Lender, and for the payment of certain
fees by the Borrower to the Lender. The relationship between the Lender and
the Borrower is limited to that of creditor/secured party, on the one hand,
and debtor, on the other hand. The provisions herein for compliance with
financial covenants and delivery of financial statements are intended
solely for the benefit of the Lender to protect its interests as lender in
assuring payments of interest and repayment of principal and payment of
certain fees, and nothing contained in this Agreement shall be construed as
permitting or obligating the Lender to act as a financial or business
advisor or consultant to the Borrower, as permitting or obligating the
Lender to control the Borrower or to conduct the Borrower's operations, as
creating any fiduciary obligation on the part of the Lender to the
Borrower, or as creating any joint venture, agency, or other relationship
between the parties hereto other than as explicitly and specifically stated
in this Agreement. The Borrower acknowledges that it has had the
opportunity to obtain the advice of experienced counsel of its own choosing
in connection with the negotiation and execution of this Agreement and to
obtain the advice of such counsel with respect to all matters contained
herein. The Borrower further acknowledges that it is experienced with
respect to financial and credit matters and has made its own independent
77
<PAGE> 81
decisions to apply to the Lender for credit and to execute and deliver this
Agreement.
Severability. If any provision of this Agreement shall be declared to be
illegal or unenforceable in any respect, such illegal or unenforceable
provision shall be and become absolutely null and void and of no force and
effect as though such provision were not in fact set forth herein, but all
other covenants, terms, conditions and provisions hereof shall nevertheless
continue to be valid and enforceable.
Operational Reviews. From time to time upon request, the Borrower shall
permit the Lender or its representative access to its premises and records
for the purpose of conducting a review of the Borrower's general mortgage
business methods, policies, and procedures, auditing loan files and
reviewing financial and operational aspects of the Borrower's business.
Consent to Credit References. The Borrower hereby consents to the disclosure
of information regarding the Borrower and its relationships with the Lender
to Persons making credit inquiries to the Lender. This consent is revocable
by the Borrower at any time upon Notice to the Lender as provided in
Section 9 hereof.
Consent to Jurisdiction. The Borrower hereby agrees that any action or
proceeding under the Loan Documents, the Note or any document delivered
pursuant hereto may be commenced against it in any court of competent
jurisdiction within the State of Minnesota, by service of process upon the
Borrower by first class registered or certified mail, return receipt
requested, addressed to the Borrower at its address last known to the
Lender. The Borrower agrees that any such suit, action or proceeding
arising out of or relating to this Agreement or any other such document may
be instituted in the Hennepin County, State District Court or in the United
States District Court for the District of Minnesota at the option of the
Lender; and the Borrower hereby waives any objection to the jurisdiction or
venue of any such court with respect to, or the convenience of any court as
a forum for, any such suit, action or proceeding. Nothing herein shall
affect the right of the Lender to accomplish service of process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Borrower in any other jurisdiction or court.
78
<PAGE> 82
Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts shall
together constitute but one and the same instrument.
Entire Agreement. This Agreement, the Note and the other Loan Documents
represent the final agreement among the parties hereto and thereto with
respect to the subject matter hereof and thereof, and may not be
contradicted by evidence of prior or contemporaneous oral agreements among
such parties. There are no oral agreements among the parties with respect
to the subject matter hereof and thereof.
WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER EACH HEREBY (A) COVENANTS
AND AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A
JURY, AND (B) FULLY WAIVES ANY RIGHT TO TRIAL BY JURY TO THE EXTENT THAT
ANY SUCH RIGHT NOW EXISTS OR HEREAFTER ARISES. THE LENDER AND THE BORROWER
EACH GIVES THIS WAIVER OF RIGHT TO JURY TRIAL KNOWINGLY AND VOLUNTARILY.
THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN, KNOWINGLY AND
VOLUNTARILY, BY THE BORROWER AND THE LENDER, AND THIS WAIVER IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE FOR WHICH THE RIGHT OF
A JURY TRIAL WOULD OTHERWISE ACCRUE. THE LENDER AND THE BORROWER ARE EACH
HEREBY AUTHORIZED AND REQUESTED TO SUBMIT THIS AGREEMENT TO ANY COURT
HAVING JURISDICTION OVER THE SUBJECT MATTER AND THE PARTIES HERETO, SO AS
TO SERVE AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF THE RIGHT TO JURY TRIAL.
FURTHER, THE BORROWER AND THE LENDER EACH HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF THE OTHER PARTY, INCLUDING THE OTHER PARTY'S
COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO ANY OF ITS
REPRESENTATIVES OR AGENTS THAT THE OTHER PARTY WILL NOT SEEK TO ENFORCE
THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
79
<PAGE> 83
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BLOOMFIELD ACCEPTANCE COMPANY, L.L.C.,
a Michigan limited liability company
By: /s/ Daniel E. Bober
-----------------------------------
Its: President
----------------------------------
BLOOMFIELD SERVICING COMPANY, L.L.C.,
a Michigan limited liability company
By: /s/ John Spalding
------------------------------------
Its: President
-----------------------------------
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By: /s/ Margaret Whitesides
------------------------------------
Its: Director
80
<PAGE> 84
STATE OF Michigan )
---------------
) ss
COUNTY OF Oakland )
---------------
On March 15, 2000 before me, a Notary Public, personally appeared
Daniel E. Bober, the President of BLOOMFIELD ACCEPTANCE COMPANY, L.L.C., a
Michigan corporation, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public /s/ Anna M. Betts
(SEAL) My Commission Expires: 11/24/00
--------
STATE OF Michigan )
--------------
) ss
COUNTY OF Oakland )
--------------
On March 15, 2000 before me, a Notary Public, personally appeared
John Spalding, the President of BLOOMFIELD SERVICING COMPANY, L.L.C., a
Michigan corporation, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public /s/ Anna M. Betts
(SEAL) My Commission Expires: 11/24/00
--------
81
<PAGE> 85
STATE OF Maryland )
---------------
) ss
COUNTY OF Montgomery )
--------------
On March 31, 2000 before me, a Notary Public, personally appeared
Margaret Whitesides, the Director of RESIDENTIAL FUNDING CORPORATION, a Delaware
corporation, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public /s/ Alaeta S. Myers
(SEAL) My Commission Expires: 11/1/00
-------
82
<PAGE> 86
EXHIBIT A-1
WAREHOUSING PROMISSORY NOTE
$25,000,000 Date: March 15, 2000
FOR VALUE RECEIVED, the undersigned, BLOOMFIELD ACCEPTANCE COMPANY, L.L.C.,
a Michigan limited liability company ("Bloomfield Acceptance") and BLOOMFIELD
SERVICING COMPANY, L.L.C., a Michigan corporation ("Bloomfield Servicing")
(Bloomfield Acceptance and Bloomfield Servicing collectively, hereinafter
sometimes referred to as "Co-Borrowers"), hereby promise to pay to the order
of RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the "Lender" or,
together with its successors and assigns, the "Holder") whose principal place of
business is 8400 Normandale Lake Blvd., Suite 600, Minneapolis, Minnesota 55437,
or at such other place as the Holder may designate from time to time, the
principal sum of $25,000,000 or so much thereof as may be outstanding from time
to time pursuant to the Warehousing Credit and Security Agreement described
below, and to pay interest on said principal sum or such part thereof as shall
remain unpaid from time to time, from the date of each Advance until repaid in
full, and all other fees and charges due under the Agreement, at the rates and
at the times set forth in the Agreement. All payments hereunder shall be made in
lawful money of the United States and in immediately available funds.
This Note is given to evidence an actual warehouse line of credit in the
above amount and is the Warehousing Promissory Note referred to in that certain
Warehousing Credit and Security Agreement ("the Agreement") dated the date
hereof between the Co-Borrowers and the Lender, as the same may be amended or
supplemented from time to time, and is entitled to the benefits thereof.
Reference is hereby made to the Agreement (which is incorporated herein by
reference as fully and with the same effect as if set forth herein at length)
for a description of the Collateral, a statement of the covenants and
agreements, a statement of the rights and remedies and securities afforded
thereby and other matters contained therein. Capitalized terms used herein,
unless otherwise defined herein, shall have the meanings given them in the
Agreement.
This Note may be prepaid in whole or in part at any time without premium or
penalty.
Should this Note be placed in the hands of attorneys for collection, the
Co-Borrowers agree to pay, in addition to principal and interest, fees and
charges due under the Agreement, any and all costs of collecting this Note,
including reasonable attorneys' fees and expenses.
The Co-Borrowers hereby waive demand, notice, protest and presentment.
1
<PAGE> 87
The promises and agreements herein shall be construed to be and are hereby
declared to be the joint and several promises and agreements of each Co-Borrower
and shall constitute the joint and several obligation of each Co-Borrower and
shall be fully binding upon and enforceable against each Co-Borrower. The
release of any party to this Note shall not affect or release the joint and
several liability of any other party. The Lender may at its option enforce this
Note against one or all of the Co-Borrower, and the Lender shall not be required
to resort to enforcement against each Co-Borrower and the failure to proceed
against or join each Co-Borrower shall not affect the joint and several
liability of each Co-Borrower.
This Note shall be construed and enforced in accordance with the laws of
the State of Minnesota, without reference to its principles of conflicts of law.
IN WITNESS WHEREOF, the Co-Borrowers have executed this Note as of the day
and year first above written.
BLOOMFIELD ACCEPTANCE COMPANY, L.L.C.,
a Michigan limited liability company
By:_______________________________________________
Its:______________________________________________
BLOOMFIELD SERVICING COMPANY, L.L.C.,
a Michigan limited liability company
By:_______________________________________________
Its:______________________________________________
2
<PAGE> 88
STATE OF____________)
) ss
COUNTY OF___________)
On ______________________, 2000 before me, a Notary public, personally
appeared ____________________________, the _______________________ of
BLOOMFIELD ACCEPTANCE COMPANY, L.L.C., a Michigan limited liability company,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
_____________________________________________
Notary Public
(SEAL) My Commission Expires:_______________________
STATE OF____________)
) ss
COUNTY OF___________)
On ______________________, 2000 before me, a Notary Public, personally
appeared ____________________________, the _______________________ of
BLOOMFIELD SERVICING COMPANY, L.L.C., a Michigan limited liability company,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
_____________________________________________
Notary Public
(SEAL) My Commission Expires:_______________________
3
<PAGE> 89
EXHIBIT A-2
BRIDGE LOAN PROMISSORY NOTE
$25,000,000 Date: March 15, 2000
FOR VALUE RECEIVED, the undersigned, BLOOMFIELD ACCEPTABLE COMPANY, L.L.C.,
a Michigan limited liability company ("Bloomfield Acceptance") and BLOOMFIELD
SERVICING COMPANY, L.L.C., a Michigan limited liability company ("Bloomfield
Servicing") (Bloomfield Acceptance and Bloomfield Servicing collectively,
hereinafter, sometimes referred to as "Co-Borrowers"), hereby promise to pay
to the order of RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender" or, together with its successors and assigns, the "Holder") whose
principal place of business is 8400 Normandale Lake Blvd., Suite 600,
Minneapolis, Minnesota 55437, or at such other place as the Holder may designate
from time to time, the principal sum of $25,000,000 or so much thereof as may be
outstanding from time to time pursuant to the Warehousing Credit and Security
Agreement described below, and to pay interest on said principal sum or such
part thereof as shall remain unpaid from time to time, from the date of each
Advance until repaid in full, and all other fees and charges due under the
Agreement, at the rates and at the times set forth in the Agreement. All
payments hereunder shall be made in lawful money of the United States and in
immediately available funds.
This Note is given to evidence an actual warehouse line of credit in the
above amount and is the Bridge Promissory Note referred to in that certain
Warehousing Credit and Security Agreement ("the Agreement") dated the date
hereof between the Co-Borrowers and the Lender, as the same may be amended or
supplemented from time to time, and is entitled to the benefits thereof.
Reference is hereby made to the Agreement (which is incorporated herein by
reference as fully and with the same effect as if set forth herein at length)
for a description of the Collateral, a statement of the covenants and
agreements, a statement of the rights and remedies and securities afforded
thereby and other matters contained therein. Capitalized terms used herein,
unless otherwise defined herein, shall have the meanings given them in the
Agreement.
This Note may be prepaid in whole or in part at any time without premium or
penalty.
Should this Note be placed in the hands of attorneys for collection, the
Co-Borrowers agree to pay, in addition to principal and interest, fees and
charges due under the Agreement, any and all costs of collecting this Note,
including reasonable attorneys' fees and expenses.
The Co-Borrowers hereby waive demand, notice, protest and presentment.
1
<PAGE> 90
The promises and agreements herein shall be construed to be and are hereby
declared to be the joint and several promises and agreements of each Co-Borrower
and shall constitute the joint and several obligation of each Co-Borrower and
shall be fully binding upon and enforceable against each Co-Borrower. The
release of any party to this Note shall not affect or release the joint and
several liability of any other party. The Lender may at its option enforce this
Note against one or all of the Co-Borrower, and the Lender shall not be required
to resort to enforcement against each Co-Borrower and the failure to proceed
against or join each Co-Borrower shall not affect the joint and several
liability of each Co-Borrower.
This Note shall be construed and enforced in accordance with the laws of
the State of Minnesota, without reference to its principles of conflicts of law.
IN WITNESS WHEREOF, the Co-Borrowers have executed this Note as of the day
and year first above written.
BLOOMFIELD ACCEPTANCE COMPANY, L.L.C.,
a Michigan limited liability company
By:__________________________________________
Its:_________________________________________
BLOOMFIELD SERVICING COMPANY, L.L.C.,
a Michigan limited liability company
By:__________________________________________
Its:_________________________________________
2
<PAGE> 91
STATE OF_____________)
) ss
COUNTY OF____________)
On ______________________, 2000 before me, a Notary Public, personally
appeared ____________________________, the _______________________ of
BLOOMFIELD ACCEPTANCE COMPANY, L.L.C., a Michigan limited liability company,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
_____________________________________________
Notary Public
(SEAL) My Commission Expires:_______________________
STATE OF______________)
) ss
COUNTY OF______________)
On _________________,2000 before me, a Notary Public, personally
appeared ____________________________, the _______________________ of
BLOOMFIELD SERVICING COMPANY, L.L.C., a Michigan limited liability company,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
_____________________________________________
Notary Public
(SEAL) My Commission Expires:_______________________
3
<PAGE> 92
EXHIBIT B
GUARANTY
THIS GUARANTY, made and entered into as of this 15th day of March, 2000, by
BINGHAM FINANCIAL SERVICES CORPORATION, a Michigan corporation (the
"Guarantor"), to RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender"), having its principal office at 8400 Normandale Lake Blvd., Suite
600, Minneapolis, Minnesota 55437.
RECITALS
A. BLOOMFIELD SERVICING COMPANY, L.L.C., a Michigan limited liability
company ("Bloomfield Servicing") and BLOOMFIELD ACCEPTANCE COMPANY,
L.L.C., a Michigan limited liability company ("Bloomfield Acceptance")
(Bloomfield Servicing and Bloomfield Acceptance are referred to
herein, collectively or individually, as the context may require, as
the "Borrower") and the Lender have agreed that the Lender will extend
a warehouse line of credit to the Borrower in the aggregate principal
amount of $50,000,000 (the "Loan") to finance the making and
purchasing of Mortgage Loans.
B. The Loan is evidenced by a Warehousing Promissory Note and Bridge Loan
Promissory Note, each dated of even date herewith from the Borrower to
the Lender, as the same may be amended, supplemented or otherwise
modified from time to time, including any other instruments executed
and delivered in renewal, extension, rearrangement or otherwise in
replacement of such Promissory Notes (the "Notes") and by a
Warehousing Credit and Security Agreement of even date herewith, as
the same may be amended, supplemented or otherwise modified from time
to time, including any other instruments executed and delivered in
renewal, extension, rearrangement or otherwise in replacement of such
agreement (the "Agreement").
C. The Guarantor is the direct or indirect owner of all of the issued and
outstanding capital stock of the Borrower and will derive benefit from
the Loan.
D. As a condition to making the Loan, the Lender has required that the
Guarantor execute and deliver this Guaranty. In order to induce the
Lender to make Advances under the Agreement, to accept the Notes and
the Agreement, the Guarantor has agreed to give this Guaranty.
E. The Lender has refused to make Advances under the Agreement unless
this Guaranty is executed by the Guarantor and delivered to Lender.
1
<PAGE> 93
AGREEMENT
NOW, THEREFORE, in consideration of the recitals and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Guarantor hereby covenants and agrees with the Lender as
follows:
1. Unless otherwise defined herein, all capitalized terms used herein
shall have the meanings ascribed to such terms in the Agreement.
2. The Guarantor hereby irrevocably, unconditionally and absolutely
guarantees to the Lender the due and prompt payment, and not just the
collectibility, of the principal of, and interest, fees and late charges and all
other indebtedness, if any, on the Notes when due, whether at maturity, by
acceleration or otherwise all at the times and places and at the rates described
in, and otherwise according to the terms of the Notes and the Agreement, whether
now existing or hereafter created or arising.
3. The Guarantor further hereby irrevocably, unconditionally and
absolutely guarantees to the Lender the due and prompt performance by the
Borrower of all duties, agreements and obligations of the Borrower contained in
the Notes and the Agreement, and the due and prompt payment of all costs and
expenses incurred, including, without limitation, attorneys' fees, court costs
and all other litigation expenses (including but not limited to expert witness
fees, exhibit preparation, and courier, postage, communication and document
copying expenses), in enforcing the payment and performance of the Notes and the
Agreement and this Guaranty (the payment and performance of the items set forth
in Paragraphs 2 and 3 of this Guaranty are collectively referred to as the
"Guaranteed Debt").
4. In the event the Borrower shall at any time fail to pay the Lender any
principal of or interest on or other sums constituting any Guaranteed Debt when
due, whether by acceleration or otherwise, the Guarantor promises to pay such
amount to the Lender forthwith, together with all collection costs and expenses,
including, without limitation, attorneys' fees, court costs and all other
litigation expenses (including but not limited to expert witness fees, exhibit
preparation, and courier, postage, communication and document copying expenses).
Any sum required to be paid by the Guarantor to the Lender pursuant to this
Guaranty shall bear interest from the date such sum becomes due until paid at a
per annum rate equal to the Default Rate.
5. The Guarantor hereby authorizes the Lender, following the occurrence
of an Event of Default, without notice or demand, to apply any property,
balances, credits, accounts or moneys of the Guarantor then in the possession of
Lender, or standing to the credit of the Guarantor, to the payment of such
Guaranteed Debt.
6. The Guarantor does hereby (a) agree to any modifications of any terms
or conditions of any Guaranteed Debt and/or to any extensions or renewals of
time of payment or performance by the
2
<PAGE> 94
Borrower; (b) that it shall not be necessary for the Lender to resort to legal
remedies against the Borrower before proceeding hereunder, nor to take any
action against any other Person obligated (an "Obligor") for payment or
performance of the Guaranteed Debt or against any collateral for the Guaranteed
Debt before proceeding against the Guarantor; (c) agree that no release of the
Borrower or any other guarantor or Obligor, and no release, exchange or
nonperfection of any collateral for the Guaranteed Debt, whether by operation of
law or by any act or failure to act by the Lender, with or without notice to the
Guarantor, shall release the Guarantor; (d) waive presentment, demand, notice
of demand, dishonor, notice of dishonor, protest, and notice of protest and any
other notice with respect to any Guaranteed Debt and this Guaranty, and
promptness in commencing suit against any party thereto or liable thereon and/or
in giving any notice to or making any claim or demand hereunder upon the
Guarantor; (e) waive any defense arising by reason of any disability or other
defense of the Borrower for payment of the Guaranteed Debt or any part thereof
or by reason of the cessation from any cause whatsoever of the liability of the
Borrower therefor other than full payment of the Guaranteed Debt; or (f) waive,
to the extent permitted by law, all benefit of valuation, appraisement, and
exemptions under the laws of the State of Minnesota or any other state or
territory of the United States.
7. The obligations of the Guarantor hereunder shall be primary, absolute
and unconditional, and shall remain in full force and effect without regard to,
and shall not be impaired or affected by: (a) the genuineness, validity,
regularity or enforceability of, or any amendment or change in the Agreement or
the Notes, or any change in or extension of the manner, place or terms of
payment of, all or any portion of the Guaranteed Debt; (b) the taking or failure
to take any action to enforce the Agreement or the Notes, or the exercise or
failure to exercise any remedy, power or privilege contained therein or
available at law or otherwise, or the waiver by the Lender of any provisions of
the Agreement or the Notes; (c) any impairment, modification, change, release or
limitation in any manner of the liability of the Borrower or its estate in
bankruptcy, or of any remedy for the enforcement of the Borrower's liability,
resulting from the operation of any present or future provision of the
bankruptcy laws or any other statute or regulation, or the dissolution,
bankruptcy, insolvency, or reorganization of the Borrower; (d) the merger or
consolidation of the Borrower, or any sale or transfer by the Borrower of all or
part of its assets or property; (e) any claim the Guarantor may have against any
other Obligor, including any claim of contribution; (f) the release, in whole or
in part, of any other guarantor (if more than one), the Borrower or any other
Obligor; (g) any settlement or compromise with any Obligor with respect to any
Guaranteed Debt and/or the subordination of the payment of the Guaranteed Debt
or any part thereof to the payment of any other debts or claims which may at any
time be due and owing to the Lender and/or any other Person; or (h) any other
action or circumstance which (with or without notice to or knowledge of the
Guarantor) may or might in any manner or to any extent vary the risks of the
Guarantor hereunder or otherwise constitute a legal or
3
<PAGE> 95
equitable discharge or defense, it being understood and agreed by the Guarantor
that the obligations under this Guaranty shall not be discharged except by the
full payment and performance of the Guaranteed Debt.
8. The Lender shall have the right to determine how, when and what
application of payments and credits, if any, whether derived from the Borrower
or from any other source, shall be made on the Guaranteed Debt and any other
indebtedness owed by the Borrower and/or any other Obligor to the Lender. The
Lender shall be under no obligation to marshal any assets in favor of the
Guarantor or in payment of all or any part of the Guaranteed Debt.
9. The Guarantor hereby agrees, for the benefit of the Lender, not to
assert any claim or other rights that the Guarantor may now have or hereafter
acquire against the Company that arises from the existence, payment, performance
or enforcement of the Guarantor's obligations hereunder, including any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy of the Lender against the Company or
any collateral that the Lender now has or hereafter acquires, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including the right to take or receive from the Company directly or
indirectly, in cash or other property or by set-off or in any manner, payment or
security on account of such claim or other right, until the Guaranteed Debt has
been paid and performed in full. If any amount shall be paid to the Guarantor in
respect of any such claim or other right before the Guaranteed Debt has been
paid and performed in full, such amount shall be deemed to have been paid to the
Guarantor for the benefit of, and held in trust for, the Lender and shall
forthwith be paid to the Lender to be credited and applied to the Guaranteed
Debt, whether matured or unmatured. In addition, to the extent permitted by law,
the Guarantor irrevocably releases and waives any such subrogation rights or
rights of reimbursement, exoneration, contribution or indemnity if and to the
extent any such right or rights would give rise to a claim under the U.S.
Bankruptcy Code that payments or transfers to the Lender with respect to the
Guaranteed Debt constitute a preference in favor of the Guarantor or a claim
under the U.S. Bankruptcy Code that the preference is recoverable from the
Lender.
10. The Guarantor waives any and all rights, benefits and defenses
available to sureties and creditors which might otherwise be available to the
Guarantor under Sections 2787 to 2855 inclusive, 2899 and 3433 of the California
Civil Code, as amended or recodified from time to time, and the benefit of any
statute Of limitations affecting the liability of the Guarantor hereunder or the
enforcement hereof, including, without limitation any rights arising under
Section 359.5 of the California Code of Civil Procedure. Additionally, the
Guarantor waives the right to require the Lender to comply with the provisions
of Section 9504 of the California Commercial Code, as amended or recodified from
time to time. The Guarantor also waives all rights and defenses that the
Guarantor may have because any Guaranteed Debt is secured by real
4
<PAGE> 96
property. This means, among other things: (1) the Lender may collect from the
Guarantor without first foreclosing on any real or personal property collateral
pledged by the Company or any other Obligor; (2) if the Lender forecloses on any
real property collateral pledged by the Company or any other Obligor: (a) the
amount of the Guaranteed Debt may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral is worth more
than the sale price; and (b) the Lender may collect from the Guarantor even if
the Lender, by foreclosing on the real property collateral, has destroyed any
right the Guarantor may have to collect from the Company. This is an
unconditional and irrevocable waiver of any rights and defenses the Guarantor
may have because the Guaranteed Debt is secured by real property. These rights
and defenses include, but are not limited to, any rights or defenses based upon
Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.
11. No postponement or delay on the part of the Lender in the enforcement
of any right hereunder shall constitute a waiver of such right and all rights of
the Lender hereunder shall be cumulative and not alternative and shall be in
addition to any other rights granted to the Lender in any other agreement or by
law.
12. If any provision hereof shall be or shall be declared to be illegal or
unenforceable in any respect, such illegal or unenforceable provision shall be
and become absolutely null and void and of no force and affect as though such
provision were not in fact set forth herein, but all other covenants, terms,
conditions and provisions hereof shall nevertheless continue to be valid and
enforceable and this Guaranty shall be so construed.
13. This Guaranty shall be governed in all respects by the laws of the
State of Minnesota, other than its principles of conflicts of law, and shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, personal representatives,
successors and assigns.
14. The Guarantor hereby agrees that any action or proceeding under this
Guaranty may be commenced against the Guarantor in any court of competent
jurisdiction within the State of Minnesota, by service of process upon the
Guarantor by first class registered or certified mail, return receipt requested,
addressed to the Guarantor at the Guarantor's address last known to the Lender.
The Guarantor agrees that any such suit, action or proceeding arising out of or
relating to this Guaranty may be instituted in the District Court of Hennepin
County, Minnesota or in the United States District Court for the District of
Minnesota, at the option of the Lender; and the Guarantor hereby waives any
objection to the jurisdiction or venue of any such court with respect to, or the
convenience of any such court as a forum for, any such suit, action or
proceeding. Nothing herein shall affect the right of the Lender to accomplish
service of process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Guarantor in any other jurisdiction
or court.
5
<PAGE> 97
15. The Guarantor hereby represents and warrants to the Lender as follows:
(a) Organization and Qualification. The Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. The Guarantor is duly qualified to do
business as a foreign corporation and in good standing in all
jurisdictions in which the ownership of its properties or the nature
of its activities, or both, makes such qualification necessary.
(b) Authority and Authorization. The Guarantor has full corporate power
and authority to execute, deliver and carry out the provisions of this
Guaranty and to perform its obligations hereunder, and all such action
has been duly and validly authorized by all necessary corporate
proceedings on its part.
(c) Financial Statements. All financial statements and data which have
heretofore been given to the Lender with respect to the Guarantor
fairly present the financial condition of the Guarantor as of the date
hereof, and, since the date thereof, there has been no material
adverse change in the financial condition of the Guarantor. The
Guarantor shall promptly deliver to the Lender, or to the Borrower in
time for the Borrower to deliver the same to the Lender, all
financial statements and tax returns of the Guarantor required by the
Agreement.
(d) Address. The address of the Guarantor as specified below is true and
correct and until the Lender shall have actually received a written
notice specifying a change of address and specifically requesting that
notices be issued to such changed address, the Lender may rely on the
address stated as being accurate.
(e) No Default. The Guarantor is not in default with respect to any order,
writ, injunction, decree or demand of any court or other governmental
authority, in the payment of any material debt for borrowed money or
under any material agreement evidencing or securing any such debt.
(f) Solvent. The Guarantor is now solvent, and no bankruptcy or insolvency
proceedings are pending or to the best of the Guarantor's knowledge
contemplated by or against the Guarantor.
(g) Relationship to the Borrower. The value of the consideration received
and to be received by the Guarantor is reasonably worth at least as
much as the liability and obligation of the Guarantor incurred or
arising under this Guaranty. The Guarantor has had full and complete
access to the Agreement and the Notes and all other loan documents
relating to the Obligations and
6
<PAGE> 98
the Guaranteed Debt, has reviewed them and is fully aware of the
meaning and effect of their contents. The Guarantor is fully informed
of all circumstances which bear upon the risks of executing this
Guaranty and which a diligent inquiry would reveal. The Guarantor has
adequate means to obtain from the Borrower on a continuing basis
information concerning the Borrower's financial condition, and is not
depending on the Lender to provide such information, now or in the
future. The Guarantor agrees that the Lender shall not have any
obligation to advise or notify the Guarantor or to provide the
Guarantor with any data or information. The execution and delivery of
this Guaranty is not given in consideration of (and the Lender has not
in any way implied that the execution of this Guaranty is given in
consideration of) the Lender's making, extending or modifying any loan
to the Guarantor or to any other financial accommodation to or for the
Guarantor.
(h) Litigation. There is not now pending against or affecting the
Guarantor, nor to the knowledge of the Guarantor is there threatened,
any action, suit or proceeding at law or in equity or by or before any
administrative agency that, if adversely determined, would materially
impair or affect the financial condition of the Guarantor.
(i) Taxes. The Guarantor has filed all federal, state, provincial, county,
municipal and other income tax returns required to have been filed by
the Guarantor and has paid all taxes that have become due pursuant to
such returns or pursuant to any assessments received by the Guarantor,
and the Guarantor does not know of any basis for any material
additional assessment against it in respect of such taxes.
16. Neither the death nor the release of any person or party to this
Guaranty or any other guaranties of the Agreement and the Notes shall affect or
release the liability of the Guarantor. The obligations of the Guarantor
hereunder shall be in addition to any obligations of the Guarantor under any
other guaranties of the Guaranteed Debt and/or any obligations of the Borrower
or any other Persons heretofore given or hereafter to be given to the Lender,
and this Guaranty shall not affect or invalidate any such other guaranties. The
liability of the Guarantor to the Lender shall at all times be deemed to be the
aggregate liability of the Guarantor under the terms of this Guaranty and of any
other guaranties heretofore or hereafter given by the Guarantor to the Lender.
17. No amendment or waiver of any provision of this Guaranty nor consent
to any departure by the Guarantor therefrom shall in any event be effective
unless the same shall be in writing and signed by the Lender, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. No notice to or demand on the Guarantor
7
<PAGE> 99
shall in any case entitle it to any other or further notice or demand in similar
or other circumstances.
18. All notices that may be required or otherwise provided for or
contemplated under the terms of this Guaranty for any party to serve upon or
give to any other shall, whether or not so state, be in writing, and if not so
in writing shall not be deemed to have been given, and be either personally
served, sent by reputable overnight courier service, or sent with return receipt
requested by registered or certified mail with postage (including registration
or certification charges) prepaid, sent to the following address:
(a) If to the Guarantor, addressed to the address indicated
immediately following the Guarantor's signature;
(b) If to the Lender, addressed to the Lender at its address at #4800
Montgomery Lane, Suite 300, Bethesda, Maryland 20814, Attention: Margaret
Whitesides, Director.
Such addresses may be changed from time to time by written notice to the other
parties given in the same manner. Any matter so served upon or sent to the
Guarantor or the Lender in the manner aforesaid shall be deemed sufficiently
given for all purposes hereunder (i) upon personal delivery, if personally
delivered, (ii) on the date following delivery to the courier service, if sent
by courier service, (iii) upon electronic confirmation of receipt, if sent by
facsimile, (or, if such electronic confirmation indicates receipt after regular
business hours, the following Business Day) and (iv) on the date of receipt as
noted on the return receipt, if sent by registered or certified mail, except
that notices of changes of address shall not be effective until actual receipt.
19. Any indebtedness of the Borrower now or hereafter held by the
Guarantor is hereby subordinated to the indebtedness of the Borrower to the
Lender, and such indebtedness of the Borrower to the Guarantor shall, if the
Lender so requests, be collected, enforced and received by the Guarantor as
trustee for the Lender and be paid over to the Lender on account of the
indebtedness of the Borrower to the Lender, but without reducing or limiting in
any manner the liability of the Guarantor under the other provisions of the
Guaranty.
20. This Guaranty is intended as a final expression of this agreement of
guaranty and is intended also as a complete and exclusive statement of the terms
of this agreement. No agreement or understanding entered into prior to the date
hereof with respect to the subject matter hereof shall be binding upon the
Guarantor unless expressed herein. No course of prior dealings between the
Guarantor and the Lender, no usage of the trade, and no parole or extrinsic
evidence of any nature, shall be used or be relevant to supplement, explain,
contradict or modify the terms and/or provisions of this Guaranty.
21. Time is of the essence hereof.
8
<PAGE> 100
22. THE GUARANTOR, BY ITS EXECUTION AND DELIVERY HEREOF, AND THE LENDER,
BY ITS ACCEPTANCE HEREOF, HEREBY (i) COVENANTS AND AGREES NOT TO ELECT A TRIAL
BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND (ii) WAIVES ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN, KNOWINGLY AND
VOLUNTARILY, BY THE GUARANTOR AND BY THE LENDER, AND THIS WAIVER IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT OF A
JURY TRIAL WOULD OTHERWISE ACCRUE. THE LENDER IS HEREBY AUTHORIZED AND REQUESTED
TO SUBMIT THIS WAIVER TO ANY COURT HAVING JURISDICTION OVER THE SUBJECT MATTER
AND THE PARTIES HERETO, SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF THE FOREGOING
WAIVER OF THE RIGHT TO JURY TRIAL. FURTHER, THE GUARANTOR HEREBY CERTIFIES THAT
NO REPRESENTATIVE OR AGENT OF THE LENDER, INCLUDING THE LENDER'S COUNSEL, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, TO THE GUARANTOR OR ITS REPRESENTATIVES OR
AGENTS THAT THE LENDER WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY
TRIAL PROVISION.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty with the
intent to be legally bound as of the date first above written.
BINGHAM FINANCIAL SERVICES
CORPORATION, a Michigan corporation
By:
---------------------------------------
Its:
--------------------------------------
Address: 260 East Brown Street
Suite 200
Birmingham, MI 48009
Telephone No.:
----------------------------
Telecopier No.:
--------------------------
9
<PAGE> 101
STATE OF_________________)
) ss
COUNTY OF________________)
On , 2000 before me, a Notary Public, personally
appeared , the of BINGHAM
FINANCIAL SERVICES CORPORATION, a Michigan corporation, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature
on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
_____________________________________________
Notary Public
(SEAL) My Commission Expires:_______________________
10
<PAGE> 102
EXHIBIT C-MF
REQUEST FOR ADVANCE AGAINST MORTGAGE LOAN
ELIGIBLE LOAN TYPE:
____ NON-AGENCY MORTGAGE LOAN
____ FANNIE MAE DUS MORTGAGE LOAN
____ SPECIAL FANNIE MAE MORTGAGE LOAN
____ OTHER FANNIE MAE MORTGAGE LOAN
____ FREDDIE MAC MORTGAGE LOAN
____ FHA PROJECT MORTGAGE LOAN _____ GINNIE MAE REFUNDER
____ FHA CONSTRUCTION MORTGAGE LOAN
____ COMMERCIAL MORTGAGE LOAN
____ BRIDGE MORTGAGE LOAN
STATUS OF ELIGIBLE LOAN;
____ FIRST MORTGAGE LOAN _____ SECOND MORTGAGE LOAN
____ THIRD PARTY ORIGINATED MORTGAGE LOAN
Loan No.: ________________________ Warehouse Date: ______________________
Project Name: ____________________ Contract/Pool No.: _______________________
Mortgage Note Amount: ____________ Interest Rate: ___________________________
Mortgage Note Date: ______________
Advance Amount: __________________
Approved Warehouse Amt: __________ Endorsement Amt: _________________________
Cumulative Endorsement Amt: ______
Investor: ________________________ Expiration Date: _________________________
Committed Purchase Price: ________
Title Company/Closing Agent: _________________________________________________
Title Contact Person: ____________ Phone No.: _______________________________
Title Company Address: _______________________________________________________
Security Rate: __ Issue Date: ____ Maturity Date: ___________________________
WIRE TRANSFER INFORMATION
Wire Amount: _____________________ Date of Wire: ________________
Receiving Bank: __________________ ABA No.: _________________
City & State: ________________________________________________________________
Credit Account Name: _____________ Number: ___________________
Advise: __________________________ Phone: ___________________
For the new value this day received, the undersigned hereby creates and
grants in favor and for the benefit of RESIDENTIAL FUNDING CORPORATION (the
"Lender"), a security interest in and to the Mortgage Loan described above,
together with all related Collateral, as more particularly described in the
Warehousing Credit and Security Agreement (as amended, supplemented or
otherwise modified) between the Company and the Lender.
The undersigned agrees to cause the Mortgage Note(s) to be delivered to
the Lender, on the next Business Day following the date of the Advance made to
fund the Mortgage Loan.
BLOOMFIELD ACCEPTANCE COMPANY, L.L.C. BLOOMFIELD SERVICING COMPANY, L.L.C.
AUTHORIZED SIGNATURE(S) AUTHORIZED SIGNATURE(S)
_______________________________________ ____________________________________
__________________________
<PAGE> 103
EXHIBIT C-MF/BR
APPROVAL REQUEST FOR ADVANCES
AGAINST BRIDGE MORTGAGE LOANS
Mortgage Company Name: ________________________________________________________
Date of Submission: ___________________________________________________________
Mortgagor Name: _______________________________________________________________
Project Name: _________________________________________________________________
Project Address: ___________________________________________
___________________________________________
Property Type: ____________________________
Estimated Note Amount: ____________________
Expected Mortgage Loan Term: ______________
Expected Warehouse Date: __________________
Pursuant to Section 2.2(a) of the Warehousing Credit and Security Agreement (the
"Agreement"), attached please find the Credit Underwriting Documents for the
Bridge Mortgage Loan described above.
BLOOMFIELD ACCEPTANCE COMPANY, L.L.C.
AUTHORIZED SIGNATURE(S)
________________________________ __________________________________
Name:
Title: _________________________
Based on the information provided herein, Residential Funding Corporation
approves the warehousing of the requested Bridge Mortgage Loan subject to the
satisfaction of the conditions set forth in Sections 4.1 and 4.2 of the
Agreement and with the procedures set forth in Exhibit D-MF/BR to the Agreement.
APPROVED:
RESIDENTIAL FUNDING CORPORATION
By: _______________________________________
Its: ______________________________________
APPROVAL DATE: ____________________________
<PAGE> 104
EXHIBIT C-MF/EO
REQUEST FOR EARN-OUT ADVANCE
AGAINST BRIDGE MORTGAGE LOAN
Mortgage Company Name: _________________________________________________
Date of Submission: ____________________________________________________
Mortgagor Name: ________________________________________________________
Project Name: __________________________________________________________
Project Address: ____________________________________________
____________________________________________
Property Type: ______________________________
New Note Amount: _____________________
Expected Earn-Out Advance Date: _____________________________
Earn-Out Advance Amount: ____________________________________
Pursuant to Section 2.2(a) of the Warehousing Credit and Security Agreement
(the "Agreement"), attached please find the evidence of performance of the
original Bridge Mortgage Loan described above.
BLOOMFIELD ACCEPTANCE COMPANY, L.L.C.
AUTHORIZED SIGNATURE(S)
________________________________________ ________________________________
Name:
Title: _________________________________
Based on the information provided herein, Residential Funding Corporation
approves the warehousing of the requested Earn-Out Advance.
APPROVED:
RESIDENTIAL FUNDING CORPORATION
By: ____________________________________
Its: ___________________________________
APPROVAL DATE: _________________________
<PAGE> 105
EXHIBIT D-MF
ESCROWED LOAN
PROCEDURES AND DOCUMENTATION FOR WAREHOUSING
NON-AGENCY, FANNIE MAE AND FREDDIE MAC MORTGAGE LOANS
The following procedures and documentation requirements must be observed
in all respects by the Company. All documents must be satisfactory to the Lender
in its sole discretion. Terms used below, which are not otherwise defined, shall
have the meanings given them in the Agreement. The Fannie Mae and Freddie Mac
form numbers referred to herein are for convenience only and the Company shall
use the equivalent forms required at the time of delivery of the Pledged
Mortgage or Pledged Security.
I. AT LEAST THREE (3) BUSINESS DAYS PRIOR TO THE ADVANCE DATE:
The Lender must receive a letter signed by the Company providing the
following information on the Pledged Mortgage:
(1) Mortgagor's name;
(2) Project name;
(3) Company's case/loan number;
(4) Expected Advance date;
(5) Mortgage Note Amount;
(6) Name, address, phone number and telecopier number of
title company or settlement attorney and contact person.
II. AT LEAST ONE (1) BUSINESS DAY PRIOR TO THE DATE OF AN ADVANCE:
The Lender must receive the following:
(1) Original or facsimile of the signed Request for Advance
(Exhibit C-MF);
(2) Copy of Company's commitment to mortgagor;
(3) For Freddie Mac Mortgage Loans a copy of the signed Conventional
Multifamily Immediate Delivery Purchase Contract and Prior Approval
Conversion Amendment (Freddie Mac Form 64A or the Purchase Agreement
for Multifamily PC Swaps);
(4) For Other Fannie Mae Mortgage Loans, a copy of the Fannie Mae
Multifamily Commitment printed from the MCodes System;
(5) For Fannie Mae DUS Mortgage Loans, a copy of the Fannie Mae
Multifamily MBS/DUS Commitment printed from the MCodes System;
(6) For Non-Agency Mortgage Loans and Commercial Mortgage Loans, a copy
of the Purchase Commitment for the Pledged Mortgage;
(7) If a Mortgage-backed Security is to be issued, a copy of the
Purchase Commitment for the Pledged Security;
(8) Original or facsimile of the Lender escrow instructions letter to the
title company or the settlement attorney, countersigned by an
authorized representative of the title company or the settlement
attorney to be involved with the transaction;
<PAGE> 106
(9) If the Company is not the named holder on the Mortgage Note, (a) a
copy of the assignment of Mortgage by the mortgagee to the Company
which was sent for recordation on or before the date of the Advance,
and (b) a copy of the assignments of UCC financing statements by the
secured party to the Company which was sent for recordation on or
before the date of the Advance;
(10) Original assignment of the Mortgage, endorsed by the Company in blank,
in recordable form but unrecorded;
(11) Original assignment of the UCC financing statements, endorsed by the
Company in blank, in recordable form but unrecorded; and
(12) Check payable to the Lender for the Warehousing Fee (if applicable) or
approval of drafting from the Operating Account.
Upon receipt of the letter required under Section I above, in form and
substance satisfactory to the Lender, the Lender will issue its escrow
instruction letter to the title company or the settlement attorney. The
Advance, when wired by the Lender to the title company or the settlement
attorney, shall be held in an escrow account of the title company or the
settlement attorney and disbursed in accordance with the closing letter of
the Company or its counsel when authorized by the Lender in its escrow
instruction letter. No Advance will be made by the Lender prior to its
receipt of all Collateral Documents required under Section II above.
Disbursement will be authorized only after the title company or settlement
attorney takes possession, on behalf of the Lender, of the signed Mortgage
Note, endorsed by the Company in blank and without recourse, and the title
company is prepared to issue its title insurance policy. Immediately after
disbursement, the title company or settlement attorney shall be required
to transmit the Mortgage Note and certified true copy of the title
insurance policy directly to the Lender. In the event the Pledged Mortgage
is not closed and the related Mortgage recorded by 3:00 p.m. on the date of
the Advance, the title company or the settlement attorney is instructed to
return the Advance immediately to the Lender.
The foregoing arrangements, permitting funding of the Advance when the
Mortgage Note has been delivered to a third person on behalf of, and as
agent and bailee for the Lender, and before the Mortgage Note is received
by the Lender, are for the convenience of the Company. All risk of loss or
nondelivery of the Mortgage Note is that of the Company, and the Lender has
no liability or responsibility therefor.
III. ON NEXT BUSINESS DAY FOLLOWING THE ADVANCE DATE:
The Lender must receive the following:
(1) The original Mortgage Note, endorsed by the Company in blank and
without recourse. If the Company is not the named holder of the
Mortgage Note, the Mortgage Note must bear an endorsement from the
holder to the Company; and
- 2 -
<PAGE> 107
(2) A copy of the title insurance policy or the title insurance commitment
to issue a policy marked to show the final policy exceptions, which:
(a) Names as insured the Company and/or the Investor, and their
successors and assigns, as their interests may appear;
(b) Shows effective date and time which is as of the date and time
of disbursement of the Advance from escrow; and
(c) Sets forth an insured amount which is equal to or greater than
the Advance amount.
IV. AS SOON AS POSSIBLE FOLLOWING THE ADVANCE DATE, AND NO LATER THAN ONE (1)
BUSINESS DAY PRIOR TO THE DATE THE INVESTOR OR THE APPROVED CUSTODIAN MUST
RECEIVE THE PLEDGED MORTGAGE:
The Lender must receive the following:
(1) Signed shipping instructions for the delivery of the Pledged Mortgage
including the following:
(a) Name and address of the Investor or the Approved Custodian to
which the Collateral Documents are to be shipped, the desired
shipping date and the preferred method of delivery;
(b) Name of project securing the Pledged Mortgage;
(c) Date the Investor or the Approved Custodian must receive the
Pledged Mortgage; and
(d) Instructions for endorsement of the Mortgage Note.
(2) For Freddie Mac Mortgage Loans, the following additional documents
must be received:
(a) Original Contract Delivery Summary (Freddie Mac Form 381) marked
to indicate that the mortgages being delivered are subject to a
security interest;
(b) For cash payments, the signed original Wire Transfer
Authorization for a Cash Warehouse Delivery (Freddie Mac Form
987), showing the Lender as warehouse lender and specifying the
Cash Collateral Account as the receiving account for loan
purchase proceeds; and
(c) Completed, but not signed, Warehouse Lender Release of Security
Interest (Freddie Mac Form 996), to be signed by the Lender.
(3) For Other Fannie Mae Mortgage Loans and Fannie Mae DUS Mortgage Loans,
the following additional documents must be received:
(a) For cash payments, the signed original Wire Transfer Request
(Fannie Mae Form 4639) or wiring instructions printed from the
MCodes System, specifying the Cash Collateral Account as the
receiving account for loan purchase proceeds; and
(b) Executed bailee letter with Schedule A (in form approved by
Fannie Mae and the Lender).
(4) The remainder of the documents required for shipping to the Investor
as specified by the Investor or in the applicable Seller/Servicer
Guide.
- 3 -
<PAGE> 108
The Lender exclusively shall deliver the Mortgage Note and other original
Collateral Documents evidencing the Pledged Mortgage to an Investor or an
Approved Custodian, unless otherwise agreed in writing. Upon instruction by
the Company, the Lender shall complete the endorsement of the Mortgage
Note. If no Mortgage-backed Security is to be issued, the Lender shall
deliver the Mortgage Note and the other documents required for shipping to
the Investor as specified by the Investor or in the applicable
Seller/Servicer Guide with a bailee letter to the Investor who issued the
Purchase Commitment for the Pledged Mortgage or to an Approved Custodian
for such Investor. If a Mortgage-backed Security is to be issued, the
Lender shall deliver the Mortgage Note and the other documents required for
shipping with a bailee letter to Fannie Mae or to an Approved Custodian for
Fannie Mae.
V. IF A MORTGAGE-BACKED SECURITY IS TO BE ISSUED BY FANNIE MAE, AS SOON AS
POSSIBLE FOLLOWING CLOSING, BUT NO LATER THAN ONE (1) BUSINESS DAY PRIOR TO
SETTLEMENT DATE FOR A PLEDGED SECURITY:
The Lender must receive the following:
(1) If a Mortgage-backed Security is to be issued by Fannie Mae, a copy of
the Fannie Mae Wiring Instructions printed from the MCodes System,
instructing Fannie Mae to issue the Mortgage-backed Security in the
name of the Company, and to deliver the Pledged Security to the
Lender's custody account at The Chase Manhattan Bank (CHASE
NYC/CUST/G55026);
(2) If a Mortgage-backed Security is to be issued by Freddie Mac, a
Warehouse Lender Release of Security Interest (Freddie Mac Form 996)
with security wire instructions completed instructing Freddie Mac to
deliver the Pledged Security to the Lender's custody account at The
Chase Manhattan Bank (CHASE NYC/CUST/655026); and
(3) The signed Securities Delivery Instructions form attached hereto as
Schedule I.
Upon receipt of a Pledged Security, the Lender will deliver the Pledged
Security to the Investor which issued the Purchase Commitment for the
Pledged Security. The Pledged Security will be released to the Investor
only upon payment of the purchase proceeds to the Lender. Cash proceeds of
the sale of a Pledged Mortgage or a Pledged Security shall be applied to
the related Advance outstanding under the Commitment. Provided no Default
exists, the Lender shall return any excess proceeds of the sale of a
Pledged Mortgage or a Pledged Security to the Company, unless otherwise
instructed in writing.
- 4 -
<PAGE> 109
SCHEDULE I
RESIDENTIAL FUNDING CORPORATION
WAREHOUSING LENDING DIVISION
Security Delivery Instructions
INSTRUCTIONS MUST BE RECEIVED TWO (2) BUSINESS DAYS IN ADVANCE OF
PICK-UP/DELIVERY
BOOK-ENTRY DATE: _______________ SETTLEMENT DATE: _________________
ISSUER: ________________________ SECURITY: $ ______________________
NO. OF CERTIFICATES: ___________ 1) ______________
2) ______________
3) ______________
CUSIP # ______________
Pool # _____________ MI# ___________ Coupon Rate: ___________________________
Issue Date: (M/D/Y) ___________________________ Maturity Date: (M/D/Y)________
POOL TYPE (circle one):
Ginnie Mae: Ginnie Mae I Ginnie Mae II
Freddie Mac: FIXED ARM DISCOUNT NOTE
Fannie Mae: FIXED ARM DISCOUNT NOTE DEBENTURES REMIC
________________________________________________________________________________
DELIVER TO: __________________________ ( ) Versus Payment
__________________________ DVP AMT. $ ____________________________
__________________________ ( ) Free Delivery
DELIVER TO: __________________________ ( ) Versus Payment
__________________________ DVP AMT. $ ____________________________
__________________________ ( ) Free Delivery
DELIVER TO: __________________________ ( ) Versus Payment
__________________________ DVP AMT. $ ____________________________
__________________________ ( ) Free Delivery
________________________________________________________________________________
AUTHORIZED SIGNATURE: __________________________________________________________
TITLE: ______________________________________________________________________
<PAGE> 110
EXHIBIT D-MF/BR
PROCEDURES AND DOCUMENTATION FOR WAREHOUSING
BRIDGE MORTGAGE LOANS
The following procedures and documentation requirements must be observed in
all respects by the Company. All documents must be satisfactory to the Lender in
its sole discretion. Terms used below, which are not otherwise defined, shall
have the meanings given them in the Agreement.
I. AT LEAST FIVE (5) BUSINESS DAYS PRIOR TO THE ADVANCE DATE:
The Lender must receive a complete underwriting package for the Pledged
Mortgage (collectively, the "Credit Underwriting Documents"), including,
without limitation:
(1) Original signed Approval Request for Advances Against Bridge Mortgage
Loans (Exhibit C-MF/BR).
(2) The underwriter's narrative report, together with financial
information on the mortgaged property for the last three (3) completed
fiscal years and an operating statement for the current fiscal year-to
-date.
(3) Current rent roll.
(4) Appraisal of the mortgaged property.
(5) Engineer's Inspection Report obtained by the Lender with respect to
the mortgaged property, including a physical needs assessment and, in
the case of a Bridge Mortgage Loan involving rehabilitation of the
mortgaged property, a budget for such rehabilitation.
(6) In the case of Bridge Mortgage Loans involving rehabilitation or other
physical improvement of the mortgaged property, or where the Mortgage
Loan is guaranteed, guarantor's or sponsor's financial statements for
the most recently completed fiscal year, together with the guarantor's
or sponsor's resume.
(7) A schedule of the total costs to be paid by the Borrower in connection
with the acquisition, rehabilitation and/or improvement of the
mortgaged property to be financed with the Bridge Mortgage Loan and
the sources of such funds.
(8) A location map showing the location of the mortgaged property.
(9) Photographs of the mortgaged property.
(10) Phase I Environmental Assessment and, if indicated by the results
thereof, a Phase II Environmental Assessment, together with any
remediation plans for the mortgaged property.
II. AT LEAST THREE (3) BUSINESS DAYS PRIOR TO THE ADVANCE DATE:
(1) A letter signed by the Company providing the following information on
the Pledged Mortgage:
(a) Mortgagor's name;
(b) Project name;
(c) Company's case/loan number;
(d) Expected Advance date;
(e) Mortgage Note Amount;
- 1 -
<PAGE> 111
(f) Name, address, phone number and telecopier number of title company
or settlement attorney and contact person.
III. AT LEAST ONE (1) BUSINESS DAY PRIOR TO THE DATE OF AN ADVANCE:
The Lender must receive the following:
(1) Original or facsimile signed Request for Advance (Exhibit C-MF);
(2) Copy of Company's commitment to mortgagor;
(3) Original or facsimile Lender escrow instructions letter to the title
company or the settlement attorney, countersigned by an authorized
representative of the title company or the settlement attorney to be
involved with the transaction;
(4) Original assignment of the Mortgage, endorsed by the Company in blank,
in recordable form but unrecorded;
(5) Original assignment of the UCC financing statements, endorsed by the
Company in blank, in recordable form but unrecorded; and
(6) Check payable to the Lender for the Warehousing Fee (if applicable) or
approval for drafting from the operating Account.
Upon receipt of the letter required under Section II above, in form and
substance satisfactory to the Lender, the Lender will issue its escrow
instruction letter to the title company or the settlement attorney. The
Advance, when wired by the Lender to the title company or the settlement
attorney, shall be held in an escrow account of the title company or the
settlement attorney and disbursed in accordance with the closing letter of
the Company or its counsel when authorized by the Lender in its escrow
instruction letter. No Advance will be made by the Lender prior to its
receipt of all Collateral Documents required under Section II above.
Disbursement will be authorized only after the title company or settlement
attorney takes possession, on behalf of the Lender, of the signed Mortgage
Note, endorsed by the Company in blank and without recourse, and the title
company has issued or committed to issue its title insurance policy.
Immediately after disbursement, the title company or settlement attorney
shall be required to transmit the Mortgage Note and certified true copy of
the title insurance policy or marked commitment directly to the Lender. In
the event the Pledged Mortgage is not closed and the related Mortgage
recorded by 3:00 p.m. on the date of the Advance, the title company or the
settlement attorney is instructed to return the Advance immediately to the
Lender.
The foregoing arrangements, permitting funding of the Advance when the
Mortgage Note has been delivered to a third person on behalf of, and as
agent and bailee for the Lender, and before the Mortgage Note is received
by the Lender, are for the convenience of the Company. All risk of loss or
nondelivery of the Mortgage Note is that of the Company, and the Lender
has no liability or responsibility therefor.
- 2 -
<PAGE> 112
IV. ON NEXT BUSINESS DAY FOLLOWING THE ADVANCE DATE:
The Lender must receive the following:
(1) The original Mortgage Note, endorsed by the Company in blank and
without recourse;
(2) A copy of the title insurance policy or the title insurance
commitment to issue a policy marked to show the final policy
exceptions, which:
(a) Names as insured the Company, and its successors and assigns,
as their interests may appear;
(b) Shows effective date and time which is on or after the date
and time of disbursement of the Advance from escrow; and
(c) Sets forth an insured amount which is equal to or greater
than the Advance amount.
The Lender exclusively shall deliver the Mortgage Note and other original
Collateral Documents evidencing the Pledged Mortgage to an Investor, a
lender refinancing the mortgaged property securing the Pledged Mortgage
("Refinance Lender"), an Approved Custodian or title insurance company,
unless otherwise agreed in writing. Upon instruction by the Company, if
the Pledged Mortgage is being purchased by an Investor, the Lender shall
complete the endorsement of the Mortgage Note. The Lender shall deliver
the Mortgage Note and the other documents required for shipping to the
Investor or Refinance Lender as specified by the Investor or Refinance
Lender with a bailee letter to the Investor or Refinance Lender, to an
Approved Custodian for such Investor or Refinance Lender, or to the title
company closing the refinancing loans.
V. NO LATER THAN ONE (1) BUSINESS DAY PRIOR TO THE DATE THE INVESTOR,
REFINANCE LENDER OR THE APPROVED CUSTODIAN MUST RECEIVE THE PLEDGED
MORTGAGE;
The Lender must receive the following:
(1) Signed shipping instructions for the delivery of the Pledged Mortgage
including the following:
(a) Name and address of the Investor, Refinance Lender, Approved
Custodian or title insurance company to which the Collateral
Documents are to be shipped, the desired shipping date and the
preferred method of delivery;
(b) Name of project securing the Pledged Mortgage;
(c) Date the Investor, Refinance Lender, Approved Custodian or
title insurance company must receive the Pledged Mortgage; and
(d) Instructions for endorsement of the Mortgage Note, if
applicable.
(2) Copy of the related Purchase Commitment or loan commitment.
(3) The remainder of the documents required for shipping to the Investor
as specified by the Investor or Refinance Lender.
- 3 -
<PAGE> 113
Cash proceeds of the sale or refinance of a Pledged Mortgage shall be applied
to the related Advance. Provided no Default exists, the Lender shall return
any excess proceeds of the sale or refinance of a Pledged Mortgage to the
Company, unless otherwise instructed in writing.
- 4 -
<PAGE> 114
EXHIBIT E
SCHEDULE OF SERVICING PORTFOLIO
UNPAID PRINCIPAL BALANCE
OF LOANS SERVICED AS OF
INVESTOR NAME DATE OF THIS AGREEMENT
(to be completed by each Company)
<PAGE> 115
Bloomfield Servicing Company, LLC
Commercial Portfolio
<TABLE>
<CAPTION>
2/29/00 Unpaid Principal New
Balance Production Payoff & Downs Escrows Reserves
- # $ # $ # $
<S> <C> <C> <C> <C> <C> <C> <C>
Bloomfield Acceptance (Floaters) 9 $ 17,163,683 1 $ 2,666,704 $ 157,306 $ 49,991 $ 3,960
Bloomfield Acceptance Whse 22 $ 57,171,795 2 $ 5,600,000 $ 403,979 $ 1,607,396
-------------------------------------------------------------------------------------
OWNED PORTFOLIO 31 $ 74,335,478 3 $ 8,266,704 0 $ 157,306 $ 453,970 $ 1,611,356
-------------------------------------------------------------------------------------
Anchor 3 $ 14,673,321 $ 174,654 $ -
Allstate 3 $ 19,229,574 $ 98,175 $ 256,390
First Union 1 1 $ 1,433,118 $ 13,250 $ 2,258
First Union 2 22 $ 79,770,005 $ 569,647 $ 534,115
LaSalle 10 $ 43,583,579 $ 440,028 $ 384,173
Lincoln 27 $ 245,143,688 $ 312,546 $ -
ORIX 2 $ 20,535,689 $ 133,864 $ 15,737
SunAmerica 3 $ 9,106,996 $ 147,701 $ 10
Sun Communities 3 $ 1,335,185
-------------------------------------------------------------------------------------
BSC TOTAL SERVICED PORTFOLIO 71 $ 434,811,135 0 $ - 0 $ - $ 2,389,865 $ 1,192,683
-------------------------------------------------------------------------------------
Dynex 4 $ 12,795,413 $ -
Mass Mutual 5 $ 65,308,609 $ -
Provident Mutual 9 $ 25,525,661 $ -
ING First Columbine 2 $ 7,447,723 $ -
ING Security Life of Denver 2 $ 10,637,915 $ 11,780
ING Life Insurance Co of GA 2 $ 3,032,883 $ -
ING Southland Life Insurance 1 $ 2,537,112 $ -
Old Kent 3 $ 15,451,351 $ 36,901
Freddie Mac 7 $ 35,364,716 $ 8,551
Greystone 2 $ 2,761,624 $ 66
Equitable Life Insurance 2 $ 7,776,509 $ 66,972
Equitable America 1 $ 819,864 $ -
Artesia Mortgage Capital 14 $ 17,463,374 $ 42,858 $ 596,790
Standard Mortgage Investors, LLC 4 $ 3,833,940 $ -
Denver Public School 2 $ 11,463,898 $ 18,879
Business Men's Assurance 19 $ 23,918,120 $ 61,774
AEGON USA Realty Advisors 5 $ 27,664,748 $ 99,399
Ohio National Life 38 $ 62,138,618 $ 147,655
Midland Loan Services, Inc. 4 $ 3,634,022 $ 13,877
PPM Finance, Inc. 7 $ 18,243,918 3 $ -
USG Annuity/Life 20 $ 76,975,233 $ 196,926
-------------------------------------------------------------------------------------
H & W TOTAL SERVICED PORTFOLIO 153 $ 434,795,251 3 $ - 0 $ - $ 705,638 $ 596,790
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
PORTFOLIO SERVICED FOR OTHERS 224 $ 869,606,386 3 $ - 0 $ - $ 3,095,503 $ 1,193,580
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
TOTAL PORTFOLIO 255 $ 943,941,864 6 $ 8,266,704 0 $ 157,306 $ 3,549,473 $ 1,553,259
=====================================================================================
</TABLE>
<PAGE> 116
EXHIBIT F-1
RESIDENTIAL FUNDING CORPORATION
SUBORDINATION OF DEBT AGREEMENT
_________________________________, 20___
TO: Residential Funding Corporation
8400 Normandale Lake Blvd., Suite 600
Minneapolis, Minnesota 55437
(hereinafter referred to as the "Lender")
The undersigned (hereinafter referred to as the "Creditor"), creditor of
BLOOMFIELD ACCEPTANCE COMPANY, L.L.C., a Michigan limited liability company
("Borrower"), desires that the Lender extend or continue to extend such
financial accommodations to the Borrower as the Borrower may require and as the
Lender may deem proper. For the purpose of inducing the Lender to grant,
continue or renew such financial accommodations, and in consideration thereof,
the Creditor agrees as follows:
1. That at the present time the Borrower is indebted to the Creditor in the
principal amounts set forth below:
PRINCIPAL AMOUNT
TYPE OF FACILITY OF DEBT FROM EACH
OR LOAN BORROWER
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
(Notes, if any, are to be delivered to the Lender)
2. That all claims of the Creditor against the Borrower now or hereafter
existing are and shall be at all times subject and subordinate to any and
all claims now or hereafter which the Lender may have against the Borrower
(and all extensions, renewals, modifications, replacements and
substitutions of or for the same), for so long as any such claim or
claims of the Lender shall exist.
3. That the Creditor shall not (a) except to the extent expressly permitted in
Section 4 hereof, receive payment of or collect, in whole or in part, or
sue upon, any claim or claims now or hereafter existing which the
Creditor may hold against the Borrower; (b) sell, assign, transfer, pledge,
hypothecate or encumber such claim or claims except subject expressly to
this Agreement; (c) enforce any lien the Creditor may now or in the future
have on any debt owing by the Borrower to the Creditor;
- 1 -
<PAGE> 117
and/or (d) join in any petition in bankruptcy, assignment for the benefit
of creditors or creditors' agreement, except as directed by the Lender, so
long as any claim of the Lender against the Borrower, or commitment of the
Lender of extend credit to the Borrower, is in existence.
4. So long as no event described in clauses (a) through (d) of Section 6 below
(a "Liquidation Event") shall have occurred and no default shall have
occurred in payment or performance of any obligation of the Borrower to the
Lender, regularly scheduled payments of interest and principal on the
claims of the Creditor may be made as and when the same become due and
payable (it being understood that no prepayment shall be made of such
claims and no modification or acceleration, for default or otherwise, of
such maturity dates shall be permitted). After the occurrence of a
Liquidation Event or of default in payment or performance of any obligation
of the Borrower to the Lender, no interest and no principal payments on the
claims of the Creditor shall be made without the prior written consent of
the Lender. The subordination of claims of the Creditor hereunder shall
remain in effect so long as there shall be outstanding any obligation of
the Borrower to the Lender (for this purpose, the Borrower shall be deemed
obligated to the Lender so long as the Lender shall have outstanding any
commitment to make any loan to the Borrower, whether or not any such loan
shall have been made or advanced).
5. In the event that any Creditor receives a payment from the Borrower in
violation of the terms of this Agreement, such Creditor (a) shall hold such
money in trust for the benefit of Lender, (b) shall segregate such payment
from (and shall not commingle such payment with any of) the other funds of
such Creditor, and (c) shall forthwith remit such payment to Lender in the
exact form received (but with any necessary endorsement).
6. In case of (a) any assignment by the Borrower for the benefit of creditors,
(b) any bankruptcy proceedings instituted by or against the Borrower, (c)
the appointment of any receiver for the Borrower's business or assets, or
(d) any dissolution or winding up of the affairs of the Borrower, the
Borrower and any assignee, trustee in bankruptcy, receiver, or other person
or persons in charge, are hereby directed to pay to the Lender the full
amount of the Lender's claim against the Borrower before making any payment
of principal or interest to the Creditor and the Creditor hereby sells,
transfers, sets over and assigns to the Lender all claims the Creditor may
now or hereafter have against the Borrower and in any security therefor,
and the proceeds thereof, and all rights to any payments, dividends or
other distributions arising therefrom. If the Creditor does not file a
proper claim or proof of debt in the form required in such proceeding prior
to thirty (30) days before the expiration of the time to file such claim in
such proceedings, then the Lender has the right (but no
- 2 -
<PAGE> 118
obligation) to do so and is hereby authorized to file an appropriate claim
or claims for and on behalf of the Creditor.
7. For violation of this Agreement, the Creditor shall be liable to the Lender
for all loss and damage sustained by reason of such breach, and upon any
such violation, the Lender may accelerate the maturity of its claims
against the Borrower, at the Lender's option.
8. The Creditor will, at any time and from time to time, promptly execute and
deliver all further instruments and documents, and take all further action,
that may be reasonably necessary in order to protect any right or interest
granted hereby or to enable the Lender to exercise and enforce its rights
and remedies hereunder.
9. The Creditor will not amend, extend or in any way modify the terms of its
claims against the Borrower, as such terms exist as of the date of this
Agreement, without the prior written consent of the Lender. The Creditor
agrees to provide to the Lender, upon the occurrence thereof, notice of the
existence of any event of default (however defined or described) under any
document or agreement relating to its claims against the Borrower, or any
condition, act or event, which with the giving of notice or the passage of
time or both would constitute an event of default (however defined or
described) thereunder.
10. All rights and interest of the Lender hereunder, and all agreements and
obligations of the Creditor hereunder, shall remain in full force and
effect irrespective of:
(a) any sale, assignment, pledge, encumbrance or other disposition of
the claims of the Lender against the Borrower (the "Senior Claims") and/or
any document or instrument executed in connection therewith;
(b) any change in the time, manner or place of payment of, or in any
other terms of, all or any of the Senior Claims, or any refinancing
thereof, or any other amendment, modification, extension or renewal of or
waiver of or any consent to departure from any document or instrument
relating thereto, including, without limitation, changes in the terms of
the repayment of loan proceeds, modifications, extensions or renewals of
payment dates, changes in interest rate or the advancement of additional
funds by the Lender in its discretion; or
(c) any exchange, release or nonperfection of any collateral, or any
release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Senior Claims.
11. This Agreement shall continue to be effective or be reinstated, as the case
may be, if at any time any payment or performance of all or any portion of
the Senior Claims is
- 3 -
<PAGE> 119
rescinded or must otherwise be returned by the Lender or any other party to
the documents relating thereto upon the insolvency, bankruptcy or
reorganization of any such party or otherwise, all as though such payment
had not been made.
12. The Creditor hereby waives promptness, diligence, notice of acceptance and
any other notice with respect to this Agreement and any requirement that
the Lender protect, secure, perfect or insure any security interest or lien
or any property subject thereto or exhaust any right or take any action
against the Creditor or any other person or entity or any collateral.
13. No failure on the part of the Lender to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
14. No amendment or waiver of any provision of this Agreement nor consent to
any departure by the Creditor therefrom shall in any event be effective
unless the same shall be in writing and signed by the Lender, and then such
waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
15. The Creditor agrees to pay upon demand, to the Lender the amount of any and
all expenses, including the reasonable fees and expenses of its counsel and
all court costs and other reasonable litigation expenses, including but not
limited to expert witness fees, document copying expenses, exhibit
preparation costs, and courier, postage and communication expenses, which
the Lender may incur in connection with the exercise or enforcement of any
of its rights or interest hereunder.
16. All notices, request and demands that may be required or otherwise provided
for or contemplated under the terms of this Agreement shall, whether or
not so stated, be in writing, and shall be given by any of the following
means: (a) personal delivery; (b) reputable overnight courier service; or
(c) registered or certified first class mail, return receipt requested. Any
notice, request or demand sent pursuant to clause (a) above shall be
deemed received upon personal delivery, and if sent pursuant to clause (b)
shall be deemed received on the next business day following delivery to the
courier service, and if sent pursuant to clause (c) shall be deemed
received three (3) days following deposit in the mail.
- 4 -
<PAGE> 120
The addresses for notices are as follows:
If to the Creditor, addressed to:
_________________________________
_________________________________
_________________________________
If to the Lender, addressed to:
Residential Funding Corporation
4800 Montgomery Lane, Suite 300
Bethesda, Maryland 20814
Attention: Margaret Whitesides, Director
Telecopier No.: (301) 215-7212
Such addresses may be changed by written notice to the other parties
given in the manner provided above.
17. This Agreement shall be governed in all respects by the laws of the State
of Minnesota and shall be binding upon and shall inure to the benefit of
the Creditor, the Lender and the Borrower, and their respective heirs,
executors, administrators, personal representatives, successors and
assigns. This Agreement and any claim or claims of the Lender pursuant
hereto may be assigned by the Lender, in whole or in part, at any time,
without notice to the Creditor or the Borrower.
______________________________________
(Creditor)
-5-
<PAGE> 121
[THE FOLLOWING ACKNOWLEDGEMENT IS TO BE USED FOR A CORPORATION.]
STATE OF _______________)
) ss
COUNTY OF ______________)
On ______________________, 20__ before me, a Notary Public, personally
appeared ____________________________, the ______________ of _________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________
Notary Public
(SEAL) My Commission Expires:_____________
[THE FOLLOWING ACKNOWLEDGEMENT IS TO BE USED FOR AN INDIVIDUAL.]
STATE OF _______________)
) ss
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this ____ day of
___________, 20__, by ___________________.
___________________________________
Notary Public
My Commission Expires:_____________
-6-
<PAGE> 122
ACCEPTANCE OF SUBORDINATION OF DEBT
AGREEMENT BY THE BORROWER
The Borrower named in the Subordination of Debt Agreement set forth
hereinbefore, hereby (i) represents and warrants to the Lender that it is
presently indebted to the Creditor executing said Subordination of Debt
Agreement in the aggregate principal amount of $____________________________;
and (ii) accepts and consents to the Subordination of Debt Agreement, and agrees
to be bound by all of the provisions thereof and to recognize all priorities
and other rights granted thereby to RESIDENTIAL FUNDING CORPORATION, a Delaware
corporation, its successors and assigns, and to perform in accordance therewith.
BLOOMFIELD ACCEPTANCE COMPANY, L.L.C.,
a Michigan limited liability company
By:__________________________________________
Its:_________________________________________
Dated:________________________________
- 7 -
<PAGE> 123
EXHIBIT F-2
RESIDENTIAL FUNDING CORPORATION
SUBORDINATION OF DEBT AGREEMENT
_________________________________, 20___
To: Residential Funding Corporation
8400 Normandale Lake Blvd., Suite 600
Minneapolis, Minnesota 55437
(hereinafter referred to as the "Lender")
The undersigned (hereinafter referred to as the "Creditor"), creditor of
BLOOMFIELD SERVICING COMPANY, L.L.C., a Michigan limited liability company
("Borrower"), desires that the Lender extend or continue to extend such
financial accommodations to the Borrower as the Borrower may require and as the
Lender may deem proper. For the purpose of inducing the Lender to grant,
continue or renew such financial accommodations, and in consideration thereof,
the Creditor agrees as follows:
1. That at the present time the Borrower is indebted to the Creditor in the
principal amounts set forth below:
PRINCIPAL AMOUNT
TYPE OF FACILITY OF DEBT FROM EACH
OR LOAN BORROWER
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
(Notes, if any, are to be delivered to the Lender)
2. That all claims of the Creditor against the Borrower now or hereafter
existing are and shall be at all times subject and subordinate to any and
all claims now or hereafter which the Lender may have against the Borrower
(and all extensions, renewals, modifications, replacements and
substitutions of or for the same), for so long as any such claim or claims
of the Lender shall exist.
3. That the Creditor shall not (a) except to the extent expressly permitted in
Section 4 hereof, receive payment of or collect, in whole or in part, or
sue upon, any claim or claims now or hereafter existing which the Creditor
may hold against the Borrower; (b) sell, assign, transfer, pledge,
hypothecate or encumber such claim or claims except subject expressly to
this Agreement; (c) enforce any lien the Creditor may now or in the future
have on any debt owing by the Borrower to the Creditor;
- 1 -
<PAGE> 124
and/or (d) join in any petition in bankruptcy, assignment for the benefit
of creditors or creditors' agreement, except as directed by the Lender, so
long as any claim of the Lender against the Borrower, or commitment of the
Lender to extend credit to the Borrower, is in existence.
4. So long as no event described in clauses (a) through (d) of Section 6 below
(a "Liquidation Event") shall have occurred and no default shall have
occurred in payment or performance of any obligation of the Borrower to the
Lender, regularly scheduled payments of interest and principal on the
claims of the Creditor may be made as and when the same become due and
payable (it being understood that no prepayment shall be made of such
claims and no modification or acceleration, for default or otherwise, of
such maturity dates shall be permitted). After the occurrence of a
Liquidation Event or of default in payment or performance of any
obligation of the Borrower to the Lender, no interest and no principal
payments on the claims of the Creditor shall be made without the prior
written consent of the Lender. The subordination of claims of the Creditor
hereunder shall remain in effect so long as there shall be outstanding any
obligation of the Borrower to the Lender (for this purpose, the Borrower
shall be deemed obligated to the Lender so long as the Lender shall have
outstanding any commitment to make any loan to the Borrower, whether or
not any such loan shall have been made or advanced).
5. In the event that any Creditor receives a payment from the Borrower in
violation of the terms of this Agreement, such Creditor (a) shall hold such
money in trust for the benefit of Lender, (b) shall segregate such payment
from (and shall not commingle such payment with any of) the other funds of
such Creditor, and (c) shall forthwith remit such payment to Lender in the
exact form received (but with any necessary endorsement).
6. In case of (a) any assignment by the Borrower for the benefit of creditors,
(b) any bankruptcy proceedings instituted by or against the Borrower, (c)
the appointment of any receiver for the Borrower's business or assets, or
(d) any dissolution or winding up of the affairs of the Borrower, the
Borrower and any assignee, trustee in bankruptcy, receiver, or other
person or persons in charge, are hereby directed to pay to the Lender the
full amount of the Lender's claim against the Borrower before making any
payment of principal or interest to the Creditor and the Creditor hereby
sells, transfers, sets over and assigns to the Lender all claims the
Creditor may now or hereafter have against the Borrower and in any security
therefor, and the proceeds thereof, and all rights to any payments,
dividends or other distributions arising therefrom. If the Creditor does
not file a proper claim or proof of debt in the form required in such
proceeding prior to thirty (30) days before the expiration of the time to
file such claim in such proceedings, then the Lender has the right (but no
- 2 -
<PAGE> 125
obligation) to do so and is hereby authorized to file an appropriate claim
or claims for and on behalf of the Creditor.
7. For violation of this Agreement, the Creditor shall be liable to the
Lender for all loss and damage sustained by reason of such breach, and upon
any such violation, the Lender may accelerate the maturity of its claims
against the Borrower, at the Lender's option.
8. The Creditor will, at any time and from time to time, promptly execute and
deliver all further instruments and documents, and take all further
action, that may be reasonably necessary in order to protect any right or
interest granted hereby or to enable the Lender to exercise and enforce its
rights and remedies hereunder.
9. The Creditor will not amend, extend or in any way modify the terms of its
claims against the Borrower, as such terms exist as of the date of this
Agreement, without the prior written consent of the Lender. The Creditor
agrees to provide to the Lender, upon the occurrence thereof, notice of the
existence of any event of default (however defined or described) under any
document or agreement relating to its claims against the Borrower, or any
condition, act or event, which with the giving of notice or the passage of
time or both would constitute an event of default (however defined or
described) thereunder.
10. All rights and interest of the Lender hereunder, and all agreements and
obligations of the Creditor hereunder, shall remain in full force and
effect irrespective of:
(a) any sale, assignment, pledge, encumbrance or other disposition of
the claims of the Lender against the Borrower (the "Senior Claims") and/or
any document or instrument executed in connection therewith;
(b) any change in the time, manner or place of payment of, or in any
other terms of, all or any of the Senior Claims, or any refinancing
thereof, or any other amendment, modification, extension or renewal of or
waiver of or any consent to departure from any document or instrument
relating thereto, including, without limitation, changes in the terms of
the repayment of loan proceeds, modifications, extensions or renewals of
payment dates, changes in interest rate or the advancement of additional
funds by the Lender in its discretion; or
(c) any exchange, release or nonperfection of any collateral, or any
release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Senior Claims.
11. This Agreement shall continue to be effective or be reinstated, as the case
may be, if at any time any payment or performance of all or any portion of
the Senior Claims is
- 3 -
<PAGE> 126
rescinded or must otherwise be returned by the Lender or any other party to
the documents relating thereto upon the insolvency, bankruptcy or
reorganization of any such party or otherwise, all as though such payment
had not been made.
12. The Creditor hereby waives promptness, diligence, notice of acceptance and
any other notice with respect to this Agreement and any requirement that
the Lender protect, secure, perfect or insure any security interest or lien
or any property subject thereto or exhaust any right or take any action
against the Creditor or any other person or entity or any collateral.
13. No failure on the part of the Lender to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
14. No amendment or waiver of any provision of this Agreement nor consent to
any departure by the Creditor therefrom shall in any event be effective
unless the same shall be in writing and signed by the Lender, and then such
waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
15. The Creditor agrees to pay upon demand, to the Lender the amount of any and
all expenses, including the reasonable fees and expenses of its counsel and
all court costs and other reasonable litigation expenses, including but not
limited to expert witness fees, document copying expenses, exhibit
preparation costs, and courier, postage and communication expenses, which
the Lender may incur in connection with the exercise or enforcement of any
of its rights or interest hereunder.
16. All notices, request and demands that may be required or otherwise provided
for or contemplated under the terms of this Agreement shall, whether or not
so stated, be in writing, and shall be given by any of the following means:
(a) personal delivery; (b) reputable overnight courier service; or (c)
registered or certified first class mail, return receipt requested. Any
notice, request or demand sent pursuant to clause (a) above shall be deemed
received upon personal delivery, and if sent pursuant to clause (b) shall
be deemed received on the next business day following delivery to the
courier service, and if sent pursuant to clause (c) shall be deemed
received three (3) days following deposit in the mail.
- 4 -
<PAGE> 127
The addresses for notices are as follows:
If to the Creditor, addressed to:
______________________________________
______________________________________
______________________________________
If to the Lender, addressed to :
Residential Funding Corporation
4800 Montgomery Lane, Suite 300
Bethesda, Maryland 20814
Attention: Margaret Whitesides, Director
Telecopier No.: (301) 215-7212
Such addresses may be changed by written notice to the other parties given
in the manner provided above.
17. This Agreement shall be governed in all respects by the laws of the State
of Minnesota and shall be binding upon and shall insure to the benefit of
the Creditor, the Lender and the Borrower, and their respective heirs,
executors, administrators, personal representatives, successors and
assigns. This Agreement and any claim or claims of the Lender pursuant
hereto may be assigned by the Lender, in whole or in part, at any time,
without notice to the Creditor or the Borrower.
_______________________________________
(Creditor)
- 5 -
<PAGE> 128
[THE FOLLOWING ACKNOWLEDGEMENT IS TO BE USED FOR A CORPORATION.]
STATE OF _______________)
) ss
COUNTY OF ______________)
On ______________________, 20__ before me, a Notary Public, personally
appeared ____________________________, the ______________ of _________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________
Notary Public
(SEAL) My Commission Expires:_____________
[THE FOLLOWING ACKNOWLEDGEMENT IS TO BE USED FOR AN INDIVIDUAL.]
STATE OF _______________)
) ss
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this ____ day of
___________, 20__, by ___________________.
___________________________________
Notary Public
My Commission Expires:_____________
-6-
<PAGE> 129
ACCEPTANCE OF SUBORDINATION OF DEBT
AGREEMENT BY THE BORROWER
The Borrower named in the Subordination of Debt Agreement set forth
hereinbefore, hereby (i) represents and warrants to the Lender that it is
presently indebted to the Creditor executing said Subordination of Debt
Agreement in the aggregate principal amount of $_________________; and (ii)
accepts and consents to the Subordination of Debt Agreement, and agrees to be
bound by all of the provisions thereof and to recognize all priorities and
other rights granted thereby to RESIDENTIAL FUNDING CORPORATION, a Delaware
corporation, its successors and assigns, and to perform in accordance therewith.
BLOOMFIELD SERVICING COMPANY, L.L.C.,
a Michigan limited liability company
By:_________________________________
Its:________________________________
Dated:_____________________________
-7-
<PAGE> 130
EXHIBIT G
SUBSIDIARIES
------------
[INTENTIONALLY OMITTED]
<PAGE> 131
EXHIBIT H
FORM OF OPINION OF COUNSEL
Residential Funding Corporation
Attention: Sandra L. Oakes
8400 Normandale Lake Blvd., Suite 600
Minneapolis, Minnesota 55437
Re: $50,000,000 Loan (the "Loan") under Warehousing Credit and Security
Agreement (the "Agreement") by and between Residential Funding Corporation,
a Delaware corporation (the "Lender") and BLOOMFIELD ACCEPTANCE COMPANY,
L.L.C., a Michigan limited liability company ("Bloomfield Acceptance") and
BLOOMFIELD SERVICING COMPANY, L.L.C., a Michigan limited liability company
("Bloomfield Servicing") (collectively, the "Borrowers") guaranteed by
BINGHAM FINANCIAL SERVICE CORPORATION, a Michigan corporation (the
"Guarantor") and secured by the "Collateral" (as defined in the Agreement).
Gentlemen:
We are special counsel to the Borrowers and the Guarantor in connection
with the Loan. As counsel, we have prepared and/or examined the following
documents:
1. Executed copy of the Warehousing Promissory Note, dated March 15, 2000,
made by the Borrowers payable to the order of the Lender, in the principal
amount of $25,000,000.
2. Executed copy of the Bridge Loan Promissory Note, dated March 15, 2000,
made by the Borrowers payable to the order of the Lender, in the principal
amount of $25,000,000.
3. Executed copy of the Warehousing Credit and Security Agreement (Income
Property) by and between the Borrowers and the Lender, dated March 15, 2000
(the "Agreement").
4. Undated UCC Financing Statements perfecting a security interest in
collateral, tangible and intangible.
5. Executed copy of the Guaranty, dated March 15, 2000 (the "Guaranty"), made
by the Guarantor to the Lender.
6. The Articles of Organization of Bloomfield Acceptance, together with
amendments thereto, as certified by the Secretary of State of the State of
Michigan.
7. The Operating Agreement of Bloomfield Acceptance, as certified on
___________________,20_____ by a Manager of Bloomfield Acceptance as
then being complete, accurate and in effect.
8. Resolutions of the Managers of Bloomfield Acceptance, adopted on
___________________, 20______, as certified by a Manager of Bloomfield
Acceptance on ___________________, 20______ as then being complete,
accurate and in effect, authorizing
- 1 -
<PAGE> 132
the borrowing of the Loan and the execution and delivery of and performance
under the Agreement.
9. Certificate of Existence for Bloomfield Acceptance, dated _____________,20
______, issued by the Secretary of State of the State of Michigan.(1)
10. The Articles of Organization of Bloomfield Servicing, together with
amendments thereto, as certified by the Secretary of State of the State of
Michigan.
11. The Operating Agreement of Bloomfield Servicing, as certified on
__________________, 20_______ by a Manager of Bloomfield Servicing as then
being complete, accurate and in effect.
12. Resolutions of the Managers of Bloomfield Servicing, adopted on
____________________, 20 _______, as certified by a Manager of Bloomfield
Acceptance on ____________________, 20 ______ as then being complete,
accurate and in effect, authorizing the borrowing of the Loan and the
execution and delivery of and performance under the Agreement.
13. Certificate of Existence for Bloomfield Servicing, dated _________________,
20 ______, issued by the Secretary of State of the State of Michigan.(2)
14. The Articles of Incorporation of the Guarantor, together with amendments
thereto, as certified by the Secretary of State of the State of Michigan.
15. The Bylaws of the Guarantor, as certified on __________________, 20 ______
by the Secretary of the Guarantor as then being complete, accurate and in
effect.
16. Resolutions of the Board of Directors of the Guarantor, adopted at a
meeting held on ________________, 20 _______, as certified by the Secretary
of the Guarantor on ________________,20 _______ as then being complete,
accurate and in effect, authorizing the execution and delivery of and
performance under the Guaranty.
________________________
(1) A certificate of good standing, dated as of a date within ninety (90) days
of the date of the Agreement, for the state where the Company is incorporated
and for each state where the Company is transacting business as a foreign
corporation should be listed.
(2) A certificate of good standing, dated as of a date within ninety (90) days
of the date of the Agreement, for the state where the Company is incorporated
and for each state where the Company is transacting business as a foreign
corporation should be listed.
- 2 -
<PAGE> 133
17. Certificate of Good Standing for the Guarantor, dated ____________________,
20 ________, issued by the Secretary of State of the State of Michigan.(3)
The above enumerated items, numbered 1, 2 and 3 are collectively referred
to as the "Loan Documents."
The opinions which follow are subject to the following assumptions,
limitations and qualifications:
A. We have assumed the genuineness of all signatures, other than of the
Borrowers and the Guarantor, the authenticity of all documents submitted to
us as originals, and the conformity with the original documents of all
documents submitted to us as reproduced copies, and the authenticity of
all such latter documents.
B. We have assumed the organization, existence, good standing and capacity of
all persons and entities other than the Borrowers and the Guarantor, and
that such parties, other than the Borrowers and the Guarantor, have the
right, power and authority to execute and deliver the Loan Documents and to
perform thereunder.
C. We have assumed that the Lender's obligations under the Agreement are
within the powers of the Lender and have been duly and validly authorized
and that the Agreement has been duly executed and validly delivered by and
is binding on and enforceable against the Lender.
D. As to various questions of fact material to this opinion, we have made such
factual inquiries of the Borrowers and the Guarantor, and have examined
such other documents and made such examinations of applicable laws, as we
have deemed necessary for purposes of the opinions expressed herein.
However, where we state that a matter is to the best of our knowledge, we
have relied upon the written statements of officers or managers of the
Guarantor and the Borrowers, with no inquiry as to the facts other than as
necessary to establish that such reliance was reasonable on our part.
E. We express no opinion with respect to the effect of any law other than the
law of the State of Michigan and the federal law of the United States.
With your agreement, we have given this opinion based on the application of
Michigan law, even though the Loan Documents and the Guaranty are governed
by the substantive and procedural law of the State of Minnesota, for which
purpose we have assumed that the statutory and common laws, and the
applicable rules and regulations of the State of
__________________________
(3) A certificate of good standing, dated as of a date within ninety (90) days
of the date of the Agreement, for the state where the Guarantor is incorporated
and for each state where the Guarantor is transacting business as a foreign
corporation should be listed.
- 3 -
<PAGE> 134
Michigan are identical, substantively similar or comparable to those of the
State of Minnesota.
Based upon such examinations and investigations, and such other
investigations and examinations as we have deemed necessary for the purposes of
the opinions expressed herein, and subject to the assumptions stated above in
paragraphs A through D, inclusive, and in our capacity as special counsel for
the Borrowers and the Guarantor, we are of the opinion that:
[OPINIONS CONCERNING BLOOMFIELD ACCEPTANCE]
1. Bloomfield Acceptance is a limited liability company duly organized and
validly existing under the laws of the jurisdiction in which it is
incorporated and has the full legal power and authority to own its property
and to carry on its business as currently conducted.
2. Bloomfield Acceptance is duly qualified to do business as a foreign
corporation and is in good standing in all jurisdictions where the
ownership of its property or the conduct of its business makes such
qualification necessary.
3. Bloomfield Acceptance has the power and authority to execute, deliver and
perform the Loan Documents. The execution, delivery and performance of the
Loan Documents by Bloomfield Acceptance, including without limitation, the
borrowings under the Agreement and the pledge of the Collateral, have been
duly and validly authorized by all necessary actions on the part of
Bloomfield Acceptance.
[OPINIONS CONCERNING BLOOMFIELD SERVICING]
1. Bloomfield Servicing is a corporation duly organized and validly existing
under the laws of the jurisdiction in which it is incorporated and has the
full legal power and authority to own its property and to carry on its
business as currently conducted.
2. Bloomfield Servicing is duly qualified to do business as a foreign
corporation and is in good standing in all jurisdictions where the
ownership of its property or the conduct of its business makes such
qualification necessary.
3. Bloomfield Servicing has the power and authority to execute, deliver and
perform the Loan Documents. The execution, delivery and performance of the
Loan Documents by Bloomfield Servicing, including without limitation, the
borrowings under the Agreement and the pledge of the Collateral, have been
duly and validly authorized by all necessary actions on the part of
Bloomfield Servicing.
- 4 -
<PAGE> 135
[OPINIONS CONCERNING THE BORROWERS]
4. The Loan Documents have been duly executed and delivered by each of the
Borrowers. The Loan Documents constitute the legal, valid and binding
obligations of the Borrowers and are enforceable in accordance with their
respective terms against the Borrowers, subject to (A) bankruptcy
insolvency, reorganization, moratorium, fraudulent or preferential
conveyance laws and other similar laws of general application
affecting rights of creditors generally or the collection of debtor's
obligations generally, (B) application of general principles of equity and
the rules of enforceability, including those respecting the availability of
specific performance (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and (C) limitations
imposed by public considerations with respect to the enforceability of any
indemnification and contribution provisions set forth in the Agreement.
5. Upon delivery to the Lender of those items of Collateral, consisting of
promissory notes secured by mortgages or deeds of trust ("Pledged
Mortgages") or mortgage-backed securities ("Pledged Securities"), or in
the case of Pledged Securities issued in book-entry form or issued in
certificated form and delivered to a clearing corporation (as such term is
defined in the Uniform Commercial Code) or its nominee, upon (a)
registration of such Pledged Securities in the name of a securities
intermediary (as such term is defined in the Uniform Commercial Code) in an
account containing only customer securities, (b) the notation of Lender's
security interest in such Pledged Securities on the records of such
securities intermediary, by book entry or otherwise, and (c) the sending by
such securities intermediary to the Lender of confirmation of such
notation, the Lender will have a valid and perfected security interest
therein. We assume, in giving this opinion, that such items of Collateral
will be owned by the Borrowers and that, at the time the Lender's security
interest is noted on the records of any securities intermediary, such
Pledged Securities will be free of any interest created through the Federal
Reserve Bank, clearing corporation and/or securities intermediary. With
respect to Pledged Mortgages, the laws of certain jurisdictions may require
the recordation of an assignment of such deeds of trust or mortgages in
order to perfect a security interest in the deed of trust or mortgage
(as opposed to the notes secured thereby). If the Lender does not record
its assignment of deeds of trust or mortgages in such jurisdictions, we
express no opinion as to the Lender's perfected security, interest in
such deeds of trust and mortgages (as opposed to the notes secured thereby)
constituting part of the Collateral.
6. The execution, delivery and performance by the Borrowers of the Loan
Documents, will not (i) conflict with or violate any provision of the
Articles of Organization or Operating Agreement of either of the
Borrowers; (ii) require any license, approval or other action by any
governmental
- 5 -
<PAGE> 136
authority that has not been obtained; (iii) to our actual knowledge, result
in the creation of any lien, charge or encumbrance upon any property or
assets of each of the Borrowers other than in favor of the Lender; (iv) to
our actual knowledge, result in a violation or breach of any term or
provision, constitute a default under, or result in or require the
acceleration of any indebtedness of the Borrowers pursuant to, any
agreement or other instrument to which the Borrowers may be bound or to
which the Borrowers or any of their property may be subject; or (v) result
in any violation of the provisions of any law or any order of any court or,
to our actual knowledge, any governmental agency, to which the Borrowers
may be bound or to which the Borrowers or any of their property may be
subject.
7. To the best of our knowledge, there are no actions, suits, or proceedings
pending or threatened against or affecting the Borrowers, in any court or
before any arbitrator or governmental authority which, if adversely
determined, may reasonably be expected to result in any material and
adverse change in the business, operations, assets or financial condition
of the Borrowers as a whole.
8. The making of the Advances as contemplated by the Agreement will not
violate Regulation U of the Board of Governors of the Federal Reserve
System.
9. The Borrowers are not an "investment company" or "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
[OPINIONS CONCERNING THE GUARANTOR]
10. The Guarantor has the power and authority to execute, deliver and perform
the Guaranty. The execution, delivery and performance of the Guaranty have
been duly and validly authorized by all necessary actions on the part of
the Guarantor.
11. The Guarantor is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is incorporated;
has the full legal power and authority to own its property and to carry on
its business as currently conducted; and is duly qualified to do business
as a foreign corporation and is in good standing in all jurisdictions where
the ownership of its property or the conduct of its business makes such
qualification necessary.
12. The Guaranty has been duly executed and delivered by the Guarantor. The
Guaranty constitutes the legal, valid and binding obligation of the
Guarantor and is enforceable in accordance with its terms against the
Guarantor, subject to (A) bankruptcy insolvency, reorganization,
moratorium, fraudulent or preferential conveyance laws and other similar
laws of general application affecting rights of creditors generally or the
collection of debtor's obligations generally,
- 6 -
<PAGE> 137
(B) application of general principles of equity and the rules of
enforceability, including those respecting the availability of specific
performance (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and (C) limitations imposed by public
policy considerations with respect to the enforceability of any
indemnification and contribution provisions set forth in the Agreement.
13. The execution, delivery and performance by the Guarantor of the Guaranty
will not (a) conflict with or violate any provision of the Articles of
Incorporation or Bylaws of the Guarantor; (b) require any license, approval
or other action by any governmental authority that has not been obtained;
(c) to our actual knowledge, result in the creation of any lien, charge or
encumbrance upon any property or assets of the Guarantor other than in
favor of the Lender; (d) to our actual knowledge result in a violation or
breach of any term or provision, constitute a default under, or result in
or require the acceleration of any indebtedness of the Guarantor pursuant
to, any agreement or other instrument to which the Guarantor may be bound
or to which the Guarantor or any of its respective property may be subject;
or (e) result in any violation of the provisions of any law or, to our
actual knowledge, any order of any court or any governmental agency, to
which the Guarantor may be bound or to which the Guarantor or any of its
respective property may be subject.
14. To the best of our knowledge, there are no actions, suits, or proceedings
pending or threatened against or affecting the Guarantor, in any court or
before any arbitrator or governmental authority which, if adversely
determined, may reasonably be expected to result in any material adverse
change in the financial condition of the Guarantor.
This opinion may be relied upon by you and your successors and assigns and
by any participant in the Loan.
All capitalized terms used herein, not otherwise defined herein, shall have
the meanings given such terms in the Agreement.
Very truly yours,
__________________________________
By:_______________________________
- 7 -
<PAGE> 138
EXHIBIT I-MF
OFFICER'S CERTIFICATE
Reference is made to that certain Warehousing Credit and Security Agreement
between BLOOMFIELD ACCEPTANCE COMPANY, L.L.C., a Michigan limited liability
company ("Bloomfield Acceptance") and BLOOMFIELD SERVICING COMPANY, L.L.C., a
Michigan limited liability company ("Bloomfield Servicing") (Bloomfield
Servicing and Bloomfield Acceptance are referred to herein, collectively or
individually, as the context may require, as the "Borrower"), and RESIDENTIAL
FUNDING CORPORATION, a Delaware corporation (the "Lender"), dated as of March 6,
2000 (as the same may be amended, modified, supplemented, renewed or restated
from time to time, the "Agreement"). All capitalized terms used herein and all
Section numbers given herein refer to those terms and Sections set forth in the
Agreement. This Officer's Certificate is submitted to the Lender pursuant to
Section 6.2(c) of the Agreement.
The undersigned hereby certify to the Lender that as of the close of
business on ___________, 19___("Statement Date") and with respect to Bingham and
its Subsidiaries on a consolidated basis and the Borrowers:
1. As illustrated in the attached calculations supporting this Officer's
Certificate, Bingham and the Borrowers met the covenants set forth in
Sections 7.6, 7.7, 7.8 and 7.9, or if Bingham or the Borrowers did not meet
any of such covenants, a detailed explanation is attached setting forth the
nature and period of the existence of the Default and the action Bingham or
the Borrowers have taken, are taking, and propose to take with respect
thereto.
2. No Servicing Contracts have been sold or pledged by the Borrowers except as
permitted under the terms of the Agreement.
3. No payments in advance of the scheduled maturity date have been made with
respect to any Subordinated Debt. The Borrowers have incurred no Debt
required to be subordinated pursuant to Section 6.10.
4. Each Borrower was in compliance with the applicable Investor net worth
requirements, and in good standing with each Investor.
1
<PAGE> 139
5. The representation set forth in Section 5.18 of the Agreement is true and
correct as of the date of this Officer's Certificate or, if such
representation is not true and correct as of such date, the nature of the
problem and the action the Borrowers have taken, is taking and proposes to
take with respect thereto are described in the statement attached hereto.
6. The undersigned have reviewed the terms of the Agreement and have made, or
caused to be made under supervision of qualified persons, a review in
reasonable detail of the transactions and conditions of Bingham (and its
Subsidiaries) and the Borrowers, and such review has not disclosed the
existence, and the undersigned have no knowledge of the existence, of any
Default or Event of Default, or if any Default or Event of Default existed
or exists, a detailed explanation is attached specifying the nature and
period of the existence of the Default and the action Bingham or the
Borrowers have taken, are taking and propose to take with respect thereto.
Pursuant to Section 6.2 of the Agreement, enclosed are the financial
statements of Bingham as of the Statement Date. The financial statements
for the period ending on the Statement Date fairly present the financial
condition and results of operations of Bingham (and its Subsidiaries) as at
the Statement Date.
Dated:______________
BLOOMFIELD ACCEPTANCE COMPANY, L.L.C.,
a Michigan limited liability company
By:_____________________________________
Its:____________________________________
BLOOMFIELD SERVICING COMPANY, L.L.C.,
a Michigan limited liability company
By:____________________________________
Its:___________________________________
2
<PAGE> 140
CALCULATIONS SUPPORTING OFFICER'S CERTIFICATE
Borrower Name: BLOOMFIELD ACCEPTANCE COMPANY, L.L.C. and
BLOOMFIELD SERVICING COMPANY, L.L.C. and
their Subsidiaries
Statement Date:_________________
All financial calculations set forth herein are as of the Statement Date.
<TABLE>
<S><C>
I. NET WORTH
A. Tangible Net Worth of Bingham is:
Excess of total assets over total liabilities: $____
Plus: Subordinated Debt not due within one year
of the Statement Date (or any portion
thereof): $____
Minus: Advances to owners, officers,
employees or Affiliates: $____
Minus: Investments in Affiliates: $____
Minus: Assets pledged to secure liabilities
not included in Debt: $____
Minus: Intangible assets: $____
Minus: Other assets unacceptable to the
Lender: $____
TANGIBLE NET WORTH OF BINGHAM $________
B. Requirements of Section 7.7(a) of the Agreement:
MINIMUM TANGIBLE NET WORTH OF BINGHAM IS $15,000,000.
C. COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
D. Tangible Net Worth of Bloomfield Servicing is:
Excess of total assets over total liabilities: $____
Plus: Subordinated Debt not due within one year
of the Statement Date (or any portion
thereof): $____
Minus: Advances to owners, officers,
employees or Affiliates: $____
</TABLE>
3
<PAGE> 141
<TABLE>
<S><C>
Minus: Investments in Affiliates: $____
Minus: Assets pledged to secure liabilities
not included in Debt: $____
Minus: Intangible assets: $____
Minus: Other assets unacceptable to the
Lender: $____
TANGIBLE NET WORTH OF BLOOMFIELD SERVICING $____
E. REQUIREMENTS OF SECTION 7.7(B) OF THE AGREEMENT:
MINIMUM TANGIBLE NET WORTH OF BLOOMFIELD IS $2,000,000.
F. COVENANT SATISFIED:___ COVENANT NOT SATISFIED:___
G. BOOK NET WORTH OF BLOOMFIELD ACCEPTANCE IS:
Excess of total assets over total liabilities: $____
H. Requirements of Section 7.7(C) of the Agreement:
MINIMUM BOOK NET WORTH OF BLOOMFIELD ACCEPTANCE IS $1,000,000.
I. COVENANT SATISFIED:___ COVENANT NOT SATISFIED:___
II. AGENCY SERVICING PORTFOLIO
A. Agency Servicing Portfolio of the Borrowers is: Outstanding Principal
Balance of Fannie Mae and Freddie Mac Mortgage Loans serviced by the
Borrowers is: $____
Minus: The unpaid principal balance of Mortgage Loans:
Past due 60 days or more: $____
Sold with recourse: $____
For which the Servicing Contracts
are pledged: $____
Serviced by the Borrowers for others under
subservicing arrangements: $____
AGENCY SERVICING PORTFOLIO
OF THE BORROWERS $______
</TABLE>
B. Requirements of Section 7.8 of the Agreement:
AGENCY SERVICING PORTFOLIO OF $33,000,000.
4
<PAGE> 142
C. COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
<TABLE>
<S><C>
III. DEBT OF BINGHAM
Total liabilities $____
Minus: Debt arising under Hedging Arrangements
(to the extent of offsetting assets) $____
Minus: Subordinated Debt not due within one year
of the Statement Date (or any portion
thereof): $____
Minus: Deferred taxes arising from capitalized
excess servicing fees and
capitalized servicing rights: $____
DEBT $________
IV. RATIO OF DEBT TO TANGIBLE NET WORTH
A. The ratio of Debt to Tangible Net Worth
(III to I.A) is: ________ to 1
B. Requirements of Section 7.6 of the Agreement:
The ratio of Debt to Tangible Net Worth shall not
exceed 10 to 1.
C. COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
V. TRANSACTIONS WITH AFFILIATES
A. Loans, advances, and extensions of credit made to Affiliates:
1. Bloomfield Acceptance $____
2. Bloomfield Servicing $____
TOTAL
$______
B. Capital contributions made to Affiliates:
1. Bloomfield Acceptance $____
2. Bloomfield Servicing $____
TOTAL $______
</TABLE>
5
<PAGE> 143
<TABLE>
<S><C>
C. Management fees paid to Affiliates during the current fiscal
year:
1. Bloomfield Acceptance(1) $____
2. Bloomfield Servicing $____
TOTAL
$______
D. Transfers, sales, pledges, assignments or other dispositions of assets
made to Affiliates:
1. Bloomfield Acceptance $____
2. Bloomfield Servicing $____
TOTAL $______
E. Requirements of Section 7.9 of the Agreement:
1. No loans, advances, extensions of credit or capital contributions
shall be made by Borrower to Affiliates.
COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
2. No transfers, sales, pledges assignments or other
dispositions of assets by Borrower to Affiliates.
COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
3. No merger (except for a merger or consolidation with Hartger &
Willard Mortgage Associates, Inc. into Bloomfield Acceptance) or
consolidation with, or purchase or acquisition of assets by
Borrower from Affiliates.
COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
4. No Management fees shall be paid by Borrower to Affiliates
(excluding management fees paid by Bloomfield Acceptance to
Bloomfield Servicing).
COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
</TABLE>
______________________
(1)(excluding management fees paid to Bloomfield Servicing)
6
<PAGE> 144
EXHIBIT J
SCHEDULE OF EXISTING LINES OF CREDIT
------------------------------------
LENDER NAME COMMITMENT AMOUNT EXPIRATION DATE
----------- ----------------- ---------------
(to be completed by each Company)
Bingham Financial
Services Corporation $10,000,000 Demand
Lehman Brothers Mortgage Loan Repurchase
Commercial Credit Inc. Agreement ($50,000,000) March, 2000
<PAGE> 145
FORM FOR FUNDING BANK
LETTER AGREEMENT
[LETTERHEAD OF THE COMPANY]
Bank One, NA March 15, 2000
One North State Street
Chicago, IL 60602
Gentlemen:
The undersigned, BLOOMFIELD ACCEPTANCE COMPANY, L.L.C., a Michigan limited
liability company ("Bloomfield Acceptance") and BLOOMFIELD SERVICE COMPANY,
L.L.C., a Michigan limited liability company ("Bloomfield Servicing")
(Bloomfield Acceptance and Bloomfield Servicing collectively, hereinafter
sometimes referred to as "Borrowers"), hereby authorize Bank One, NA (the
"Funding Bank") to permit Residential Funding Corporation (the "Lender") to
debit and access information on the Borrowers, accounts held by the Funding Bank
as outlined below. The Borrowers hereby direct and authorize the Funding Bank to
follow the directions of the Lender in debiting such accounts.
The Borrowers authorize the Lender to access account information from time
to time for the Borrowers' operating account no. _______________________________
(the "Operating Account") for the purpose of verifying balance information. In
addition, the Borrowers request that the Lender, and the Borrowers hereby
authorize the Lender, to debit the Operating Account to the extent necessary to
cover (a) wires to be initiated by the Lender in accordance with the Borrowers'
instructions as set forth in the Request for Advance for the purposes permitted
in the Warehousing Credit and Security Agreement (the "Agreement") by and
between the Borrowers and the Lender; and (b) amounts due and owing to the
Lender, including but not limited to principal, interest and fees.
Upon the termination or expiration of the Agreement, the Borrowers request
that the Lender, and the Borrowers hereby authorize the Lender to (a) close the
Operating Account and any other accounts which have been established by the
Borrowers and the Lender to facilitate transactions under the Agreement, and (b)
withdraw any funds remaining in the Operating Account and remit such funds to
the Borrowers after all amounts due and owing the Lender have been paid. The
Borrowers hereby direct and authorize the Funding Bank to follow all of the
foregoing instructions of the Lender.
Very truly yours,
BLOOMFIELD ACCEPTANCE COMPANY, L.L.C.,
a Michigan limited liability company
By:_______________________________________________
Its:______________________________________________
BLOOMFIELD SERVICING COMPANY, L.L.C.,
a Michigan limited liability company
By:_______________________________________________
Its:______________________________________________
ACKNOWLEDGED AND AGREED THIS
________ DAY OF ______________, 20___.
BANK ONE, NA
By:__________________________________
Its:_________________________________
<PAGE> 146
EXHIBIT L
TERMS OF GUARANTEED OBLIGATIONS
Each Borrower hereby agrees to the following terms with respect to Advances
made by the Lender to the other Borrower:
1. Each Borrower irrevocably, unconditionally and absolutely guarantees
to the Lender the due and prompt payment, and not just the collectibility, of
the principal of, and interest, fees and late charges and all other
indebtedness, if any, on the Advances made to the other Borrower when due,
whether at maturity, by acceleration or otherwise all at the times and places
and at the rates described in, and otherwise according to the terms of the Note
and the Agreement, whether now existing or hereafter created or arising.
2. Each Borrower further hereby irrevocably, unconditionally and
absolutely guarantees to the Lender the due and prompt performance by the other
Borrower of all duties, agreements and obligations of the other Borrower
contained in the Note and the Agreement, and the due and prompt payment of all
costs and expenses incurred, including, without limitation, attorneys' fees,
court costs and all other litigation expenses (including but not limited to
expert witness fees, exhibit preparation, and courier postage, communication
and document copying expenses), in enforcing the payment and performance of
the Note and the Agreement from the other Borrower (the payment and performance
of the items set forth in Paragraphs 1 and 2 of this Exhibit M are collectively
referred to as the ("Other Borrower Debt").
3. In the event the other Borrower shall at any time fail to pay the
Lender any Other Borrower Debt when due, whether by acceleration or otherwise,
each Borrower promises to pay such amount to the Lender forthwith, together with
all collection costs and expenses, including, without limitation, attorneys'
fees, court costs and all other litigation expenses (including but not limited
to expert witness fees, exhibit preparation, and courier, postage, communication
and document copying expenses).
4. Each Borrower does hereby (a) agree to any modifications of any terms
or conditions of any Other Borrower Debt and/or to any extensions or renewals
of time of payment or performance by the other Borrower; (b) agree that it shall
not be necessary for the Lender to resort to legal remedies against the other
Borrower, nor to take any action against any other Person obligated (an
"Obligor") on or against any collateral for payment or performance of the Other
Borrower Debt before proceeding against such Borrower; (c) agree that no release
of the other Borrower of any other guarantor or Obligor, or of any collateral,
for the Other Borrower Debt, whether by operation of law or by any act of the
Lender, with or without notice to such Borrower, shall release such Borrower;
and (d) waive notice of demand, dishonor, notice of dishonor, protest, and
notice of protest and waive, to the extent permitted by law, all benefit of
valuation, appraisement, and exemptions under the laws of the State of Minnesota
or any other state or territory of the United States.
- 1 -
<PAGE> 147
5. The obligations of each Borrower for the Other Borrower Debt shall be
primary, absolute and unconditional, and shall remain in full force and effect
without regard to, and shall not be impaired or affected by: (a) the
genuineness, validity, regularity or enforceability of, or any amendment or
change in the Agreement or the Note, or any change in or extension of the
manner, place or terms of payment of, all or any portion of the Other Borrower
Debt; (b) the taking or failure to take any action to enforce the Agreement or
the Note, or the exercise or failure to exercise any remedy, power or privilege
contained therein or available at law or otherwise, or the waiver by the Lender
of any provisions of the Agreement or the Note; (c) any impairment,
modification, change, release or limitation in any manner of the liability of
the other Borrower or their estate in bankruptcy, or of any remedy for the
enforcement of the other Borrower's liability, resulting from the operation of
any present or future provision of the bankruptcy laws or any other statute or
regulation, or the dissolution, bankruptcy, insolvency, or reorganization of the
other Borrower; (d) the merger or consolidation of the other Borrower, or any
sale or transfer by the other Borrower of all or part of its assets or property;
(e) any claim such Borrower may have against the other Borrower or any other
Obligor, including any claim of contribution; (f) the release, in whole or in
part, of any other guarantor (if more than one), the other Borrower or any other
Obligor; (g) any other action or circumstance which (with or without notice to
or knowledge of such Borrower) might in any manner or to any extent vary the
risks of such Borrower or otherwise constitute a legal or equitable discharge or
defense, it being understood and agreed by each Borrower that its obligations
for the Other Borrower Debt shall not be discharged except by the full payment
and performance of the Other Borrower Debt.
6. The Lender shall have the right to determine how, when and what
application of payments and credits, if any, whether derived from any Borrower
or from any other source, shall be made on the Obligations and any other
indebtedness owed by any Borrower and/or any other Obligor to the Lender.
7. The obligations of each Borrower hereunder shall continue to be
effective, or be automatically reinstated, as the case may be, if at any time
the performance or the payment, as the case may be, in whole or in part, of any
of the Other Borrower Debt is rescinded or must otherwise be restored or
returned by the Lender (as a preference, fraudulent conveyance or otherwise)
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
any Borrower or any other person or upon or as a result of the appointment of a
custodian, receiver, trustee or other officer with similar powers with respect
to any Borrower or any other Person, or any substantial part of its property, or
otherwise, all as though such payments had not been made. If an Event of Default
shall at any time have occurred and be continuing or shall exist and
declaration of default or acceleration under or with respect to the Other
Borrower Debt shall at such time be prevented by reason of the pendency against
any Borrower or any other Person of a case or
- 2 -
<PAGE> 148
proceeding under a bankruptcy or insolvency law, each Borrower agrees that its
obligations for the Other Borrower Debt shall be deemed to have been declared in
default or accelerated with the same effect as if such obligations had been
declared in default and accelerated in accordance with their respective terms
and each Borrower shall forthwith perform or pay, as the case may be, as
required hereunder in accordance with the terms hereunder without further
notice or demand.
8. Each Borrower hereby irrevocably waives any claim or other rights that
he may now or hereafter acquire against the other Borrower that arises from the
existence, payment, performance or enforcement of such Borrower's obligations
for the Other Borrower Debt, including any right of subrogation, reimbursement,
exoneration or indemnification, any right to participate in any claim or remedy
of the Lender against the other Borrower or any collateral that the Lender now
has or hereafter acquires, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including the right to take or
receive from the other Borrower directly or indirectly, in cash or other
property or by set-off or in any manner, payment or security on account of such
claim or other rights. If any amount shall be paid to either Borrower in
violation of the preceding sentence and the Other Borrower Debt shall not have
been paid and performed in full, such amount shall be deemed to have been paid
to such Borrower for the benefit of, and held in trust for, the Lender and shall
forthwith be paid to the Lender to be credited and applied to the Other Borrower
Debt, whether matured or unmatured. Notwithstanding the blanket waiver of
subrogation rights as set forth above, each Borrower hereby specifically
acknowledges that any subrogation rights which it may have against the other
Borrower or any collateral that the Lender now has or hereafter acquires may be
destroyed by a nonjudicial foreclosure of the collateral. This may give such
Borrower a defense to a deficiency judgment against it. Such Borrower hereby
irrevocably waives such defense. Each Borrower acknowledges that it will receive
direct and indirect benefits from the arrangements contemplated by the Agreement
and the Note and that the waivers set forth in this Section are knowingly made
in contemplation of such benefits.
9. No postponement or delay on the part of the Lender in the enforcement
of any right with respect to the Obligations of either Borrower, including,
without limitation, the other Borrower Debt, shall constitute a waiver of
such right and all rights of the Lender hereunder shall be cumulative and not
alternative and shall be in addition to any other rights granted to the Lender
in any other agreement or by law.
10. Any indebtedness of any Borrower now or hereafter held by the other
Borrower is hereby subordinated to the indebtedness of the Borrower to the
Lender, and such indebtedness of any Borrower to the other Borrower shall, from
and after the occurrence of an Event of Default, be collected, enforced and
received by the Borrower to which it is owed as trustee for the Lender and be
paid over to the Lender on account of the indebtedness of the other Borrower to
the Lender.
- 3 -
<PAGE> 149
EXHIBIT M
ELIGIBLE COLLATERAL
All capitalized terms used herein and not otherwise defined shall have their
respective meanings set forth in the Agreement.
The following specified types of Collateral are Eligible Collateral provided
they conform in all respects with the terms of the Agreement.
<TABLE>
<S> <C>
1. Other Fannie Mae Mortgage Loan
------------------------------
a. Floating Rate: 1.25% over LIBOR
-------------
b. Second Mortgage Loan: Permitted
--------------------
c. Sublimit: $25,000,000
--------
d. Committed/Uncommitted: Purchase Commitment required.
---------------------
e. Advance Rate: 100% of the lesser of (i) the Mortgage Note Amount or
------------ (ii) the Committed Purchase Price.
f. Warehouse Period: 90 days for cash transactions.
---------------- 80 days for an Agency Security issued by Fannie Mae.
g. Shipped Period: 45 days for cash transactions.
-------------- 75 days for an Agency Security issued by Fannie Mae.
2. Freddie Mac Mortgage Loan
-------------------------
a. Floating Rate: 1.25% over LIBOR
-------------
b. Second Mortgage Loan: Permitted
--------------------
c. Sublimit: $25,000,000
--------
d. Committed/Uncommitted Purchase Commitment required.
---------------------
e. Advance Rate: 100% of the lesser of (i) the Mortgage Note Amount or
------------ (ii) the Committed Purchase Price.
f. Warehouse Period: 90 days.
----------------
g. Shipped Period: 45 days.
--------------
3. Non-Agency Mortgage Loan
------------------------
a. Floating Rate: 1.25% over LIBOR
-------------
b. Sublimit: $25,000,000
--------
c. Committed/Uncommitted: Purchase Commitment required.
---------------------
d. Committed Advance Rate: 98% of the lesser of (i) the Mortgage Note Amount or
---------------------- (ii) the Committed Purchase Price.
e. Warehouse Period: 60 days.
----------------
f. Shipped Period: 45 days.
--------------
</TABLE>
-1-
<PAGE> 150
4. BRIDGE MORTGAGE LOAN
a. Floating Rate: 2.00%, 2.25% or 2.50% over LIBOR*
b. Sublimit: $25,000,000
c. Committed/Uncommitted: Purchase Commitment not required.
d. Advance Rate: At the Borrower's option, 85% or 80% of the
Mortgage Note Amount.
e. Warehouse Period: 360 days from the date of the initial
Advance. An Advance against a Bridge
Mortgage Loan may be extended for up to an
additional year assuming no Event of Default
with the consent of Lender.
* - The margin over LIBOR is determined based on the following Matrix:
<TABLE>
<CAPTION>
===========================================================================================
Advance Rate Debt Service Coverage: Debt Service Coverage:
>1.05 but <1.15 >1.15
===========================================================================================
<S> <C> <C>
85% 2.50% 2.25%
-------------------------------------------------------------------------------------------
80% 2.25% 2.00%
===========================================================================================
</TABLE>
- 2 -
<PAGE> 151
EXHIBIT N
ASSUMED NAMES
-------------
(if none, state "none")
(to be completed by each Borrower)
<PAGE> 152
EXHIBIT "N"
ASSUMED NAMES:
-------------
Bloomfield Servicing Company, L.L.C.:
-------------------------------------
None
Bloomfield Acceptance Company, L.L.C.:
--------------------------------------
1. Bloomfield Servicing Company
2. Bloomfield Mortgage Company
3. Bloomfield Mortgage Investors
4. Bloomfield Mortgage Capital
5. Bloomfield Financial Company
6. Bloomfield Mortgage Advisors
7. Bloomfield Capital Company
