<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
[X] Quarterly report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the Quarterly Period ended June 30, 1999
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from _______ to _________
Commission file number 0-19391
NAB ASSET CORPORATION
--------------------------------------------------------
(Exact name of registrant as specified in its charter)
Texas 76-0332956
- -------------------------------- --------------------------------------
(State of Incorporation) (I.R.S. Employer Identification Number)
23361 Madero, Suite 200, Mission Viejo, CA 92691
- ------------------------------------------- -----------------------------
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (949) 465-0244
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
As of July 31, 1999, there were 5,091,300 shares of common stock, $.10 par value
per share, of the registrant outstanding.
<PAGE> 2
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
NAB ASSET CORPORATION
and Subsidiaries
Consolidated Balance Sheets
(dollars in thousands, except share data)
<TABLE>
<CAPTION>
June 30, December 31,
Assets 1999 1998
------ (unaudited)
------------ ------------
<S> <C> <C>
Cash and cash equivalents $ 2,636 $ 2,139
Restricted cash 7,344 3,952
Receivables:
Construction loans, net 32,374 38,652
Residential mortgage loans held for sale 56,378 78,911
Commercial loans held for sale 4,964 6,099
Loans to officers 3,040 3,040
Other receivables 1,996 1,449
Residual interest in securitization of mortgage loans 3,580 3,534
Property and equipment, net 868 1,151
Costs in excess of net assets acquired, net 545 641
Other assets 2,145 1,231
------------ ------------
Total assets $ 115,870 $ 140,799
============ ============
Liabilities and Shareholders' Equity
Liabilities:
Warehouse lines of credit 80,609 100,650
Notes payable to affiliates 11,323 12,877
Drafts payable 11,877 11,681
Accounts payable and accrued expenses 4,799 5,250
Other liabilities 1,258 1,123
------------ ------------
Total liabilities 109,866 131,581
------------ ------------
Minority interest 433 619
Shareholders' equity:
Common stock: $.10 par value, 30,000,000
Authorized shares:
5,091,300 shares issued and outstanding at
June 30, 1999 and December 31, 1998 509 509
Additional paid-in capital 7,815 7,815
Retained earnings (deficit) (2,753) 275
------------ ------------
Total shareholders' equity 5,571 8,599
------------ ------------
$ 115,870 $ 140,799
============ ============
</TABLE>
See accompanying notes to unaudited consolidated financial statements
2
<PAGE> 3
NAB ASSET CORPORATION
and Subsidiaries
Consolidated Statements of Operations
(dollars in thousands, except per share data)
(unaudited)
<TABLE>
<CAPTION>
Three months ended June 30, Six months ended June 30,
1999 1998 1999 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Revenues:
Gains on sales of loans $ 3,840 $ 4,778 $ 7,385 $ 9,110
Interest income 2,104 3,754 4,480 6,570
Origination and other fee income 2,518 2,701 4,926 5,065
----------- ----------- ----------- -----------
Total revenues: 8,462 11,233 16,791 20,745
Costs and expenses:
Compensation and benefits 5,377 5,160 10,727 9,816
Interest expense 1,441 2,768 2,933 4,857
Interest expense-affiliates 387 560 823 1,119
General and administrative 3,463 2,219 5,367 4,015
Minority interest in earnings
(loss) (127) 114 (186) 270
----------- ----------- ----------- -----------
Total costs and expenses 10,541 10,821 19,664 20,077
----------- ----------- ----------- -----------
Earnings (loss) before cumulative
effect of change in accounting
principle (2,079) 412 (2,873) 668
Cumulative effect of change in
accounting principle - - (155) -
----------- ----------- ----------- -----------
Net earnings (loss) $ (2,079) $ 412 $ (3,028) $ 668
=========== =========== =========== ===========
Basic and diluted earnings (loss) per share:
Before cumulative effect of
change in accounting principle $ (0.41) $ 0.08 $ (0.56) $ 0.13
Cumulative effect of change in
accounting principle
- - (0.03) -
----------- ----------- ----------- -----------
Net earnings (loss) per share $ (0.41) $ 0.08 $ (0.59) $ 0.13
=========== =========== =========== ===========
Weighted average number of
common and common equivalent
shares outstanding 5,091,300 5,091,300 5,091,300 5,091,300
=========== =========== =========== ===========
</TABLE>
See accompanying notes to unaudited consolidated financial statements
3
<PAGE> 4
NAB ASSET CORPORATION
and Subsidiaries
Consolidated Statements of Cash Flows
(dollars in thousands)
(unaudited)
<TABLE>
<CAPTION>
Six months ended June 30,
1999 1998
------------ -----------
<S> <C> <C>
Cash flows from operating activities:
Net earnings (loss) $ (3,028) $ 668
Adjustments to reconcile net earnings (loss) to net cash
from (used by) operating activities:
Amortization of net interest receivable account 330 -
Deposits to overcollateralization account (377) -
Non-cash gain on securitization of mortgage loans - (3,248)
Depreciation and amortization 621 296
Minority interest (186) 897
Provision for losses 725 277
Write down of commercial loan portfolio to fair value 503 -
Net changes in:
Residential mortgage loans originated, purchased and sold, net 22,533 (30,584)
Commercial loans, net collections (originations) 80 (1,111)
Restricted cash (3,392) (2,481)
Other receivables (547) (3,370)
Drafts payable 196 5,639
Other liabilities 135 141
Other assets (1,101) (514)
Accounts payable and accrued expenses (451) 2,650
-------- --------
Net cash from (used by) operating activities 16,041 (30,740)
Cash flows from investing activities:
Construction loans originated (10,533) (66,088)
Principal collections on construction loans 16,638 59,584
Purchases of property and equipment (54) (365)
-------- --------
Net cash from (used by) investing activities 6,051 (6,869)
Cash flows from financing activities:
Net borrowings under (repayments of) warehouse lines of credit (20,041) 32,465
Principal payments on notes payable to affiliates (1,554) 3,000
-------- --------
Net cash from (used by) financing activities (21,595) 35,465
-------- --------
Net increase (decrease) in cash and cash equivalents 497 (2,144)
Cash and cash equivalents at beginning of period 2,139 3,620
-------- --------
Cash and cash equivalents at end of period $ 2,636 $ 1,476
======== ========
Supplement disclosure of cash flow information:
Cash paid during the period for interest $ 3,138 $ 4,219
======== ========
</TABLE>
See accompanying notes to unaudited consolidated financial statements
4
<PAGE> 5
Notes to the Unaudited Consolidated Financial Statements
(1) DESCRIPTION OF BUSINESS
NAB Asset Corporation, (the "Company" or "NAB") is a financial services
company engaged in four reportable segments, sub-prime and prime residential
mortgage banking, residential construction lending and commercial lending. The
residential mortgage banking business is conducted through a majority owned
subsidiary, Mortgage Portfolio Services, Inc. (MPS). MPS originates, acquires
and sells prime and sub-prime mortgage loans. The prime segment of MPS is
operated as a division, Pacific American Mortgage (PAMCO). The residential
construction lending business is conducted through a majority owned subsidiary,
Construction Portfolio Funding, Inc. (CPFI) which originates and holds for
investment single family residential construction loans to homebuilders and to a
lesser extent lots, model homes and acquisition and development projects for
those homebuilders. The commercial finance operation (NAFCO) provides financing
to operators of rent-to-own or rental purchase retailers.
The Company commenced operations in July 1991 following its acquisition
and assumption of substantially all the assets and liabilities of National Asset
Bank (a bank in liquidation) (the "Bank"). The Bank was formed in 1988 in
connection with the merger of Allied Bancshares, Inc. ("Allied") with a
subsidiary of First Interstate Bancorp ("First Interstate") for the purpose of
liquidating various non-performing loan and real estate assets held by Allied
and its subsidiaries for the benefit of the prior Allied stockholders. Until
June 5, 1996, the Company's business consisted of the acquisition, ownership,
management and disposition of loans and real estate for its own account and the
accounts of others. The Company's business activities were limited to the
ownership, collection and sale of the assets acquired by the Company from the
Bank, the investment in and management of four privately held limited
partnerships formed for the purpose of acquiring non-performing and other
troubled loans.
On June 5, 1996, pursuant to a Plan and Agreement of Merger, CPS
Investing Corp. ("CPS Sub"), a wholly owned subsidiary of Consumer Portfolio
Services, Inc. ("CPS"), was merged with and into NAB (the "Merger"). Under the
terms of the Plan and Agreement of Merger and in exchange for all of the
outstanding shares of NAB $.01 par value common stock, the shareholders of NAB
received on a pro rata basis (i) an aggregate cash distribution of $15.3 million
($3.64 per share), (ii) an undivided interest in a liquidating trust
("Liquidating Trust"), and (iii) 62% of the outstanding shares of common stock,
$.10 par value (the "New Common Stock") of the new combined company which had a
net asset value of $7.5 million as of the merger date. The Liquidating Trust was
established for the benefit of converting the trust assets to cash for the NAB
shareholders. On June 5, 1996 in connection with the Merger, NAB contributed
approximately $3.0 million in cash and all of the remaining non-cash assets of
NAB with a net book value of $3.7 million to the Liquidating Trust. No gain or
loss was recognized by NAB in connection with the merger. In exchange for a $4
million contribution to NAB, CPS received 38% or 1,934,706 shares of the New
Common Stock of NAB.
Simultaneously with the merger, the Company amended its Articles of
Incorporation and By-laws to remove the previous operating restrictions on NAB
and, in order to preserve the
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Company's large net operating loss ("NOL") for tax purposes, to restrict the
acquisition of 5% or more of the outstanding shares of New Common Stock of the
Company so as to prevent the occurrence of an ownership change under Section 382
of the federal income tax laws. Section 382 of the Internal Revenue Code of 1986
(Section 382), as amended, provides in general that if a corporation undergoes
an ownership change, the amount of taxable income that the corporation may
offset after the date of such ownership change with NOL's and certain built-in
losses existing at the date of such ownership change will be subject to an
annual limitation. The Company's NOL's could become subject to certain
limitations on utilization in the event the Company undergoes an ownership
change within the meaning of Section 382.
(2) BASIS OF FINANCIAL STATEMENT PRESENTATION
The consolidated balance sheet of the Company as of June 30, 1999, the
related consolidated statements of operations for the three and six months ended
June 30, 1999 and 1998 and the related statements of cash flows for the six
month periods ended June 30, 1999 and 1998 are unaudited. These statements
reflect, in the opinion of management, all material adjustments consisting only
of normal recurring accruals necessary for a fair presentation of the
consolidated balance sheet of the Company as of June 30, 1999, and results of
consolidated operations for the three and six months ended June 30, 1999 and
1998 and the consolidated cash flows for the six months ended June 30, 1999 and
1998. The results of consolidated operations for the unaudited periods are not
necessarily indicative of the results of consolidated operations to be expected
for the entire year of 1999.
The accompanying unaudited consolidated financial statements have been
prepared in accordance with the instructions to Securities and Exchange
Commission ("SEC") Form 10-Q and therefore do not include all information and
footnotes normally included in consolidated financial statements prepared in
conformity with generally accepted accounting principles. Accordingly, these
unaudited consolidated financial statements should be read in conjunction with
the audited consolidated financial statements and notes thereto included in the
Company's annual report on SEC form 10-K for the year ended December 31, 1998.
On January 1, 1999 the Company adopted Accounting Standards
Executive Committee of the American Institute of Certified Public Accountants
Statement of Position 98-5, "Reporting on the Costs of Start-Up Activities" (SOP
98-5). SOP 98-5 provides guidance on the financial reporting of start-up costs
and organizational costs. It requires costs of start-up activities and
organizational costs to be expensed as incurred and currently expense net
amounts previously capitalized. The Company wrote off $155,000 in organizational
costs effective January 1, 1999 as a cumulative effect of a change in accounting
principle as described in Accounting Principles Board (APB) Opinion No. 20,
Accounting Changes.
In June 1998, the FASB issued Statement of Financial Accounting
Standards No. 133 "Accounting for Derivative Instruments and Hedging
Activities." SFAS No. 133 establishes accounting and reporting standards for
derivative instruments, including certain derivative instruments embedded in
other contracts, (collectively referred to as derivatives) and for hedging
activities. It requires that an entity recognize all derivatives as either
assets or liabilities in the
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statement of financial position and measure those instruments at fair value. If
certain conditions are met, a derivative may be specifically designed as (a) a
hedge of the exposure to changes in the fair value of a recognized asset or
liability or an unrecognized firm commitment, (b) a hedge of the exposure to
variable cash flows of a forecasted transaction, or (c) a hedge of the foreign
currency exposure of a net investment in a foreign operation, an unrecognized
firm commitment, an available-for-sale security, or a
foreign-currency-denominated forecasted transaction. Under SFAS No. 133, an
entity that elects to apply hedge accounting is required to establish at the
inception of the hedge the method it will use for assessing the effectiveness of
the hedging derivative and the measurement approach for determining the
ineffective aspect of the hedge. Those methods must be consistent with the
entity's approach to managing risk.
SFAS No. 133 supercedes FASB Statements No. 80 "Accounting for
Futures Contracts", No. 105 "Disclosure of Information about Financial
Instruments with Off-Balance Sheet Risk and Financial Instruments with
Concentrations of Credit Risk," and No. 119, "Disclosure about Derivative
Financial Instruments and Fair Value of Financial Instruments". It amends FASB
Statement No. 107 "Disclosures about the Fair Value of Financial Instruments" to
include in Statement 107 the disclosure provisions about concentration of credit
risk from Statement 105. This Statement also nullifies or modifies the consensus
reached in a number of issues addressed by the Emerging Issues Task Force. This
Statement is effective for all fiscal quarters of fiscal years beginning after
June 15, 1999. Management is in the process of assessing the future impact of
the implementation of SFAS No. 133.
(3) SEGMENT REPORTING
The Company has four reportable segments, mortgage banking,
sub-prime and prime mortgage lending, construction lending and commercial
lending. The sub prime mortgage banking segment originates residential mortgage
loans to borrowers who are unable to obtain financing from conventional mortgage
sources due to credit problems or income qualification issues. The prime
mortgage banking segment originates conventional and government guaranteed or
insured mortgage loans. The construction lending operation lends to homebuilders
for the construction of single family residences and to a lesser extent for the
purchase of lots and acquisition and development of land for residential
construction. The commercial lending operation lends to operators of rent to own
or rental purchase businesses. All of the business segments operate within the
U.S.
The following is a summary of the results of operations before
change in accounting principle by business line for the three months ended June
30, 1999 as compared to June 30, 1998 (in thousands):
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<TABLE>
<CAPTION>
Revenue (Expense)
From Other
Business Line External Revenue Interest Expense Operating units Net Income (Loss)
- ------------- ------------------ ----------------- ----------------- ------------------
1999 1998 1999 1998 1999 1998 1999 1998
------- ------- ------ ------- ------- ------ ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Residential
mortgage
banking-sub-prime $ 3,047 $ 4,212 $ 390 $ 919 $ 25 $ 25 $(1,172) $ 296
Residential
mortgage
banking-prime 4,467 4,980 722 912 - - 456 731
Residential
construction lending 812 1,746 362 1,185 (25) (25) 159 176
Commercial lending 188 293 66 10 - - (1,074) 121
Corporate and
intercompany
eliminations (52) 2 288 302 - - (448) (912)
------- ------- ------- ------- ------- ---- ------- -------
Total $ 8,462 $11,233 $ 1,828 $ 3,328 $ - $ $(2,079) $ 412
======= ======= ======= ======= ======= ==== ======= =======
</TABLE>
The following is a summary of the results of operations before
change in accounting principle by business line for the six months ended June
30, 1999 as compared to June 30, 1998 (in thousands):
<TABLE>
<CAPTION>
Revenue (Expense)
From Other
Business Line External Revenue Interest Expense Operating units Net Income (Loss)
- ------------- ------------------ ----------------- ----------------- ------------------
1999 1998 1999 1998 1999 1998 1999 1998
------- ------- ------ ------- ------- ------ ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Residential
mortgage
banking-sub-prime $ 5,541 $ 7,686 $ 819 $1,373 $ 50 $ 50 $(2,203) $ 988
Residential
mortgage
banking-prime 9,195 9,240 1,474 1,687 - - 1,057 1,344
Residential
construction lending 1,691 3,347 743 2,288 (50) (50) 302 355
Commercial lending 433 468 131 23 - - (994) 122
Corporate and
intercompany
eliminations (69) 4 589 605 - - (1,035) (2,141)
------- ------- ------ ------ ------ ----- ------- -------
Total $16,791 $20,745 $3,756 $5,976 $ - $ - $(2,873) $ 668
======= ======= ====== ====== ====== ===== ======= =======
</TABLE>
The following is a summary of total assets by business line for June
30, 1999 as compared to June 30, 1998 (in thousands):
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<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
Residential mortgage banking-sub-prime(1) $ 79,404 $ 98,193
Residential mortgage banking-prime(1) N/A N/A
Residential construction lending 29,316 67,089
Commercial lending 7,434 6,064
Corporate and intercompany eliminations (284) 3,233
-------- --------
Total $115,870 $174,579
======== ========
</TABLE>
(1) The Company has not disclosed separate total asset information for the sub
prime and prime mortgage segments because that information is not produced
internally. The information provided for the sub prime segment includes the
prime segment.
(4) RECLASSIFICATION OF COMMERCIAL LOANS TO HELD FOR SALE
In June 1999, the Company reclassified Commercial Loans Held for
Investment to Commercial Loans Held for Sale. The reclassification resulted in a
write down of $503,000 to record the loans at fair value.
(5) SUBSEQUENT EVENTS
In July 1999, the Company elected to dispose of its investment in
CPFI and NAFCO. It is expected that both companies will be substantially
liquidated by December 31, 1999. In connection with the liquidation the Company
will record approximately $150,000 in related severance costs. Net proceeds from
the liquidation will be used to reduce NAB's debt and to invest additional funds
in MPS. The disposition of these two operations is not expected to have a
material adverse effect on the ongoing financial results of the company.
On July 2, 1999 the Company repaid its remaining indebtedness to
CPS which totaled approximately $546,000. NAB's source of funds for this payment
was MPS's repayment of $700,000 of its indebtedness to NAB. MPS requested and
received approval from its warehouse lender to decrease its minimum net worth
requirement under its line of credit, and reduce the total loan commitment from
$100,000,000 to $80,000,000. Additionally, in connection with the request NAB
committed to invest an additional $1,000,000 in MPS from the proceeds of the
liquidation of CPFI and NAFCO. MPS was in compliance with its covenants
contained in the debt agreement.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
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FINANCIAL CONDITION
MORTGAGE BANKING
Beginning in September 1998, as a result of a number of factors, cash
prices in the sub-prime mortgage market significantly deteriorated. The Company,
in response, entered into forward commitments for its sub-prime production,
lowered the prices it paid for its wholesale and correspondent production and
reduced its workforce in certain production related departments. As a result of
lowering its prices and reducing its workforce, the Company's sub-prime loan
production has declined. The reduced levels of gains from loan sales and
origination volume are currently insufficient to cover the operating expenses of
the sub-prime operation.
At June 30, 1999 and December 31, 1998 residential mortgage loans held
for sale totaled $56,378,000 and $78,911,000. Of these amounts $35,081,000 and
$50,828,000, respectively were conventional and government insured or guaranteed
loans (prime) and $21,297,000 and $28,083,000, respectively were sub-prime
loans.
The prime loans are sold individually to large mortgage bankers or
financial institutions. The Company represents and warrants to the investor that
the loans were underwritten to the appropriate guidelines. The sub-prime loans
sold through a forward commitment totaling $100,000,000 and on a competitive bid
basis. The forward commitment expired June 30, 1999. The Company is currently
negotiating a new commitment with the same institution. The competitive bids
currently being received by MPS are approximately equivalent to the prices
received under the expired forward commitment. The Company generally represents
and warrants to the investor that each sub-prime loan was underwritten to the
Company's guidelines and that the borrower's financial position is the same at
the date of delivery to the investor as the origination date. The Company also
agrees to reimburse the investor a portion of the sale premium if the loan pays
in full over a period of generally one year. The Company defers a portion of the
sale premium, which reduces the gain recorded on each loan sale, to cover the
potential liability resulting from the warranties given to the investor.
At June 30, 1999 the Company's liability under warranties given to the
purchasers of prime and sub-prime loans totaled $873,000 as compared to $830,000
at December 31, 1998. Additions to the prepayment liability totaled $304,000 and
$522,000 for the three and six months ended June 30, 1999 and $71,000 and
$374,000 for the three and six months ended June 30, 1998. Such additions are
netted against the gain at the time of the loan sale.
Construction loans to individuals (one-time closings) totaled $6,040,000
and $9,466,000 at June 30, 1999 and December 31, 1998, respectively. These loans
are originated by the PAMCO operation and are included in construction loans in
the consolidated balance sheets.
Securitization
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In June 1998 the Company, through MPS, securitized approximately
$51,000,000 of sub-prime mortgage loans. MPS retained the servicing
responsibilities for the loans. The performance of the loans underlying the
security through June 30, 1999 is as follows:
<TABLE>
<CAPTION>
Fixed Rate Adjustable Rate
------------- ---------------
<S> <C> <C>
Remaining principal $ 24,030,000 $ 19,436,000
Annualized prepayment rates
Cumulative losses 11.3% 14.8%
Delinquencies (over 30 days) 8.3% 11.9%
Cumulative principal amount of loans
foreclosed or in foreclosure $ 1,000,000 $ 586,000
</TABLE>
The Company purchased a mortgage pool insurance policy that covers all
losses up to 5% of the initial pool balances. The fee is .52% annually of the
unpaid principal of the loans. No claims have been made against the policy.
In addition, to facilitate the sale, the Company provided a credit
enhancement for the benefit of the investors in the form of additional
collateral held by the trust. The over-collateralization account (as described
below) is required by the servicing agreement to be maintained at 2.75% of the
fixed rate balance and 4% of the adjustable rate balance of the securities.
The residual interests in the securitization of loans represents the sum
of 1) the net interest receivable (NIR) which is the present value of the
difference between the contractual interest rates on the loans and the rate paid
to the buyer or bondholder using various prepayment, discount rate and loss
assumptions and 2) the overcollateralization account, which is the excess
monthly cash flows, other than servicing revenues, that are required to be
maintained with the trustee until certain overcollateralization levels are met.
The residual interest is accounted for as a trading security and as such is
recorded at its estimated fair value. The Company is not aware of an active
market for the purchase or sale of the residual interests. Accordingly, the
Company determines the estimated fair value of the residual interests by
discounting the expected cash flows released from the trust (the cash out
method) using a discount rate which the Company believes is commensurate with
the risks involved.
The residual interests in the securitization consists of the following:
<TABLE>
<CAPTION>
June 30, 1999 December 31, 1998
------------- -----------------
<S> <C> <C>
NIR $2,308,000 $2,900,000
Overcollateralization account 1,272,000 634,000
---------- ----------
$3,580,000 $3,534,000
========== ==========
</TABLE>
At June 30, 1999 the assumptions used in the valuation of the residual
interests were as follows:
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<TABLE>
<S> <C>
Discount rate 12%
Weighted average life of fixed rate loans 4.27 years
Weighted average life of adjustable rate loans 3.47 years
Prepayment speeds- fixed rate loans Ramp up to 20% CPR
Prepayment speeds- adjustable rate loans Ramp up to 25% CPR
Cumulative losses, net of losses covered by the pool policy 0.2%
Delinquencies (over 30 days) 10%
</TABLE>
CONSTRUCTION LENDING
Loans receivable
At June 30, 1999 CPFI's construction loans receivable totaled
$26,334,000 as compared to $29,416,000 at December 31, 1998. CPFI's total
commitments under these loans, if fully funded, are $45,631,000. This amount
does not necessarily represent the total amounts that will ultimately be funded
by the Company, as it is common that the loan pays in full prior to the entire
loan amount being drawn.
At June 30, 1999 the allowance for credit losses totaled $150,000 or
.57% of the outstanding loan balances compared to $230,000 or .78% of the
balance at December 31, 1998. At June 30, 1999 and December 31, 1998, loans on
non-accrual and deemed to be impaired totaled $0 and $727,000, respectively or
0% and 2.5% of the outstanding balances. Charge-offs for the three and six
months ended June 30, 1999 totaled $253,000. There were no specific allowances
for impaired loans at December 31, 1998.
COMMERCIAL LENDING
Loans receivable
The net outstanding balances of the commercial loans at June 30, 1999
and December 31, 1998 were $4,964,000 and $6,099,000, respectively. At June 30,
1999 the Company's commitments to lend totaled $8,666,000. The commitment
amounts do not necessarily represent the total amounts that will be funded by
the Company as the borrowers may be limited by financial covenants contained in
the various debt agreements.
The allowance for loan losses at June 30, 1999 and December 31, 1998
were $1,051,000 and $107,000, respectively. At December 31, 1998 there were no
loans past due with respect to interest more than 90 days and no impaired loans.
At June 30, 1999 one loan totaling $223,000 was past due more than ninety days.
Included in the allowance for loan losses were specific reserves totaling
$548,000 relating to $840,000 of impaired loans.
The Company is currently marketing its commercial loan portfolio for
sale. The portfolio has been reclassified to held for sale in the June 30, 1999
financial statements.
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RESULTS OF OPERATIONS
For the three months ended June 30, 1999 the Company reported a net loss
of $2,079,000, as compared to net earnings of $412,000 for the three months
ended June 30, 1998. For the six months ended June 30, 1999 the Company reported
a net loss of $3,028,000, as compared to net earnings of $668,000 for the six
months ended June 30, 1998. Operations for those periods were impacted by the
following factors:
1) Beginning in September 1998, as a result of a number of factors, cash
prices in the sub-prime mortgage market significantly deteriorated. The Company,
in response, entered into forward commitments for its production, lowered the
prices it paid for its wholesale and correspondent production and reduced
operating expenses in the sub-prime operation. As a result of lowering its
prices, the Company's loan production declined. The decline in sales prices and
the reduced levels of originations of sub-prime mortgages resulted in losses in
the first and second quarters of 1999.
2) In 1997, the Company entered into agreements with the executives of
MPS that granted options to the executives, exercisable only if certain
conditions are satisfied, to acquire up to 20% of the authorized common shares
of MPS. The number of shares to be issued pursuant to the agreements was
dependent upon several factors, including the future earnings and value of MPS.
On June 26, 1998 the Company, MPS and the executives entered into a
Restructure Agreement, which terminated the options. In exchange for the
termination of the options the Company entered into a deferred compensation
arrangement with the executives that requires the Company to pay annual
installments of approximately $1,100,000 to the executives over the three year
period beginning June 26, 1999, as long as the executive continues employment
with the Company. If the executive is terminated without cause all remaining
amounts due under the deferred compensation arrangement become immediately due
to the executive.
The Company also granted loans totaling $3,040,000 to the executives
repayable in three equal annual installments, plus interest at 5.7% per annum.
The loans are secured by the stock that each executive owns, which aggregates
approximately 19% of the outstanding shares of MPS. If the executive terminates
for any reason prior to the end of the three year period, all remaining amounts
under the note become immediately payable.
Included in the Restructure Agreement is an additional provision that
requires the Company to pay to one of the executives $93,334 every six months,
beginning June 30, 1998, over the next three years, contingent upon continued
employment.
For the three and six months ended June 30, 1999 compensation expense
totaling $327,000 and $624,000, respectively was recorded in the financial
statements as a result of these agreements.
13
<PAGE> 14
3) In April 1998, the board of directors authorized the Company to make
payments to officers and directors in lieu of stock options that were originally
granted under stock option plans that were never presented to shareholders for
approval. The Company recorded a charge to earnings of $46,000 and $132,000 and
$101,000 and $508,000 for the three and six months ended June 30, 1999 and 1998,
respectively, as a result.
4) On January 1, 1999 the Company adopted Accounting Standards Executive
Committee of the American Institute of Certified Public Accountants Statement of
Position 98-5, "Reporting on the Costs of Start-Up Activities" (SOP 98-5). SOP
98-5 requires costs of start-up activities and organizational costs to be
expensed as incurred. In accordance with SOP 98-5, the Company wrote off
approximately $155,000 in previously capitalized organizational costs.
The following discussion and analysis presents the significant changes
in financial condition and results of operations of the Company's operating
segments for the three months and six months ended June 30, 1999 and 1998. A
summary of the operating profits and losses by the Company's operating segments
is as follows (in thousands):
<TABLE>
<CAPTION>
Three months ended June 30, Six months ended June 30,
1999 1998 1999 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Revenues:
Residential mortgage banking
sub-prime $ 3,047 $ 4,212 $ 5,541 $ 7,686
Residential mortgage banking
prime 4,467 4,980 9,195 9,240
Residential construction lending 812 1,746 1,691 3,347
Commercial lending 188 293 433 468
Corporate and intercompany
eliminations (52) 2 (69) 4
--------- --------- --------- ---------
Total revenues: 8,462 11,233 16,791 20,745
Costs and expenses:
Residential mortgage banking
sub-prime 4,219 3,916 7,744 6,698
Residential mortgage banking
prime 4,011 4,249 8,138 7,896
Residential construction lending 653 1,570 1,389 2,992
Commercial lending 1,262 172 1,427 346
Corporate and intercompany
eliminations 396 914 966 2,145
--------- --------- --------- ---------
Total costs and expenses 10,541 10,821 19,664 20,077
--------- --------- --------- ---------
Earnings (loss) before cumulative effect
of change in accounting principle:
Residential mortgage banking
sub-prime (1,172) 296 (2,203) 988
Residential mortgage banking
prime 456 731 1,057 1,344
</TABLE>
14
<PAGE> 15
<TABLE>
<CAPTION>
Three months ended June 30, Six months ended June 30,
1999 1998 1999 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Residential construction lending 159 176 302 355
Commercial lending (1,074) 121 (994) 122
Corporate and intercompany
eliminations (448) (912) (1,035) (2,141)
--------- --------- --------- ---------
Earnings (loss) before
cumulative effect of change in
accounting principle $ (2,079) $ 412 $ (2,873) $ 668
========= ========= ========= =========
</TABLE>
Results of Operations for the Three Months Ended June 30, 1999 and 1998
Residential Mortgage Banking
The Company operates its mortgage banking activities through its 81%
owned subsidiary MPS. The mortgage banking operations has two primary divisions,
sub-prime and prime. The prime origination function operates as Pacific American
Mortgage Company or PAMCO.
A summary of the major revenue and expense components of the mortgage
banking operation is as follows (in thousands):
<TABLE>
<CAPTION>
Three months ended June 30,
1999 1998
----------- -----------
<S> <C> <C>
MPS (principally sub-prime)
Gains on sales of loans
and other fee income $ 2,453 $ 3,103
Interest income 594 1,109
Compensation and benefits 2,708 2,010
Interest expense 390 919
Other expenses 1,121 987
Loans originated $ 72,078 $ 86,833
Loans sold $ 70,400 $ 72,244
Gains on sales of loans and other fee
income as a percent of loans originated 3.40% 3.58%
Compensation and benefits
as a percent of originations 3.76% 2.31%
Other expenses as a percent
of originations 1.56% 1.14%
Net interest income as a
percent of originations .28% .22%
PAMCO (principally prime)
Gains on sales of loans
</TABLE>
15
<PAGE> 16
<TABLE>
<CAPTION>
Three months ended June 30,
1999 1998
----------- -----------
<S> <C> <C>
and other fee income $ 3,758 $ 4,117
Interest income 709 863
Compensation and benefits 2,417 2,593
Interest expense 722 912
Other expenses 872 744
Loans originated $ 136,134 $ 149,016
Loans sold (1) $ 127,748 $ 128,844
Gains on sales of loans and other fee
income as a percent of loans originated 2.76% 2.76%
Compensation and benefits
as a percent of originations 1.78% 1.74%
Other expenses as a percent
of originations .64% .50%
Net interest income (expense) as a
percent of originations (.01)% (.03)%
</TABLE>
(1) Includes loans totaling $9,008,000 for the quarter ended June 30, 1999
and $11,846,000 for the quarter ended June 30, 1998 that were closed in
the name of a third party (brokered-out).
MPS operations
For the three months ended June 30, 1999 the loss from the MPS mortgage
operation totaled $1,172,000 as compared to earnings of $296,000 for the same
period in 1998. Revenues declined $1,165,000 or 28% over 1998 and expenses
increased $303,000 or 8% over 1998. Net gains on loan sales and other fees
declined from 3.58% as a percent of loans originated in the second quarter of
1998 to 3.40% as a percent of loans originated in the second quarter of 1999.
Compensation expenses as a percent of production increased to 3.76% in
1999 from 2.31% in 1997. The increase is attributable to deferred compensation
expense of $327,000 or .45% of production, increased processing and underwriting
costs as the Company continues to emphasize customer service and a decline in
its production from the fourth quarter of 1998.
Other expenses increased to 1.55% of production for the quarter ended
June 30, 1999 from 1.14% of production for the three months ended June 30, 1998.
The increase was attributable to increased processing and underwriting costs
discussed above and the decline in loan originations from the fourth quarter of
1998.
Net interest spread as a percentage of production increased from .22%
for the three months ended June 30, 1998 to .28% for the three months ended June
30, 1999 as a result of lowered borrowing costs.
PAMCO operations
16
<PAGE> 17
For the three months ended June 30, 1999, MPS's principally prime
production operation, PAMCO, earned $456,000 as compared to $731,000 for the
three months ended June 30, 1998. Operating revenues totaled $4,467,000 as
compared to $4,980,000 for 1998 and expenses totaled $4,011,000 as compared to
$4,249,000 for 1998.
Gains on sales of loans and other loan fees as a percent of production
was 2.76% for the three months ended June 30, 1999 as compared to 2.76% for the
three months ended June 30, 1998. Compensation expenses as a percent of
production increased to 1.78% from 1.74% for the three months ended June 30,
1998 resulting from compensation increases for support personnel offset
partially by reduced benefit costs. Other expenses as a percent of originations
increased slightly from .50% for the three months ended June 30, 1998 to .64%
for the three months ended June 30, 1999 due principally to increased
advertising expenses and direct loan processing expenses.
Net interest deficit as a percent of production was .01% for the three
months ended June 30, 1999 as compared to a deficit of .03% for the same period
in 1998.
Construction Lending
For the three months ended June 30, 1999 the construction lending
operation (CPFI) earned $159,000 as compared to $176,000 for the first quarter
of 1998.
Interest income as a percent of average outstanding construction loans
receivable was 10.88% for the second quarter of 1999 as compared to 9.62% in the
second quarter of 1998. In 1998, the yield was reduced by approximately .50% as
a result of the amortization of the original purchase premium. Exclusive of the
amortization, the increase in yield is the result of better margins received on
CPFI's loans. Interest expense on the bank debt, for the second quarter of 1999,
as a percent of average borrowings declined to 7.18% from 8.13% for the quarter
ended June 30, 1998. This decline is the result of lower year over year
short-term rates. Additionally the higher levels of capital relative to debt
allowed MPSF to pay down higher costing debt based on loan types pledged under
CPFI's line of credit. Total interest expense was $362,000 and $1,185,000 for
the three months ended June 30, 1999 and 1998, respectively. Included in
interest expense in 1998 was $119,000 related to notes payable to NAB. The debt
was paid off in the fourth quarter of 1998.
Revenues totaled $812,000 for the second quarter of 1999 as compared to
$1,746,000 for the first quarter of 1998. Expenses totaled $653,000 for the
quarter ended June 30, 1999 as compared to $1,570,000 for the quarter ended June
30, 1998. The decline in revenues and expense resulted from the fourth quarter
1998 sale of approximately half of the CPFI loan portfolio. Operating expenses
decreased from $386,000 in 1998 to $291,000 in 1999. Included in operating
expenses were provisions for loan losses that decreased from $77,000 in 1998 to
$63,000 in 1999, compensation and benefits decreased from $167,000 to $111,000
and other general and administrative expenses decreased from $141,000 to
$116,000.
17
<PAGE> 18
CPFI originated $10,533,000 in new commitments in the second quarter of
1999 as compared to $1,000,000 in 1998.
Commercial Lending
The commercial lending operation (NAFCO) lost $1,074,000 for the three
months ended June 30, 1999 as compared to income of $121,000 for the three
months ended June 30, 1998. Interest income totaled $170,000 in 1999 as compared
to $291,000 in 1998. Interest expense totaled $66,000 in 1999 as compared to
$10,000 in 1998. Operating expenses for the first quarter of 1999 and 1998
totaled $1,262,000 and $172,000, respectively, consisting of compensation and
benefits of $1,000 and $50,000, provisions for losses of $566,000 and $11,000
and general and administrative expenses of $126,000 and 66,000, respectively.
The operating expenses in 1999 also include a $503,000 write down of the
portfolio to fair value resulting from the reclassification of the portfolio
from held for investment to held for sale.
Corporate and Intercompany Eliminations
Corporate revenues and expenses represent interest income and
unallocated compensation, interest expense, minority interest and other general
and administrative expenses.
Compensation expense totaled $140,000 in 1999 as compared to $340,000 in
1998. The decrease was attributable to option termination related charges
totaling $132,000 in 1998 as compared to $46,000 in 1999 and a reduction in
incentive compensation expense in 1999. Interest expense totaled $387,000 in
1999, a decrease of $170,000 over 1998. The decrease is attributable to the
Company's partial repayment of debt to SFSC and CPS.
Results of Operations for the Six Months Ended June 30, 1999 and 1998
Residential Mortgage Banking
A summary of the major revenue and expense components of the mortgage
banking operation is as follows (in thousands):
<TABLE>
<CAPTION>
Six months ended June 30,
1999 1998
----------- -----------
<S> <C> <C>
MPS (principally sub-prime)
Gains on sales of loans
and other fee income $ 4,253 $ 5,781
Interest income 1,288 1,905
Compensation and benefits 4,970 3,545
Interest expense 819 1,373
Other expenses 1,955 1,780
</TABLE>
18
<PAGE> 19
<TABLE>
<CAPTION>
Six months ended June 30,
1999 1998
----------- -----------
<S> <C> <C>
Loans originated $ 123,774 $ 156,005
Loans sold $ 127,803 $ 140,177
Gains on sales of loans and other fee
income as a percent of loans originated 3.44% 3.71%
Compensation and benefits
as a percent of originations 4.02% 2.27%
Other expenses as a percent
of originations 1.58% 1.14%
Net interest income as a
percent of originations .38% .34%
PAMCO (principally prime)
Gains on sales of loans
and other fee income $ 7,709 $ 7,676
Interest income 1,486 1,564
Compensation and benefits 5,093 4,929
Interest expense 1,474 1,687
Other expenses 1,571 1,280
Loans originated $ 276,797 $ 278,999
Loans sold (2) $ 279,536 $ 269,134
Gains on sales of loans and other fee
income as a percent of loans originated 2.78% 2.75%
Compensation and benefits
as a percent of originations 1.84% 1.77%
Other expenses as a percent
of originations .57% .46%
Net interest income (expense) as a
percent of originations .00% (.04)%
</TABLE>
(2) Includes loans totaling $19,649,000 in 1999 and $22,334,000 in 1998 that
were closed in the name of a third party (brokered-out).
MPS operations
For the six months ended June 30, 1999 the loss from the MPS mortgage
operation totaled $2,203,000 as compared to earnings of $988,000 for the same
period in 1998. Revenues declined $2,145,000 or 28% over 1998 and expenses
increased $1,046,000 or 16% over 1998. Net gains on loan sales declined from
3.71% as a percent of loans originated in the first six months of 1998 to 3.44%
as a percent of loans originated in first six months of 1999.
Compensation expenses as a percent of production increased to 4.02% in
1999 from 2.27% in 1998. The increase is attributable to deferred compensation
expense of $624,000 or
19
<PAGE> 20
.50% of production, increased processing and underwriting costs and a decline in
its production from the fourth quarter of 1998.
Other expenses increased to 1.58% of production for the six months ended
June 30, 1999 from 1.14% of production for the six months ended June 30, 1998.
The increase was attributable to increased processing and underwriting costs
discussed above and the decline in loan originations from the fourth quarter of
1998.
Net interest spread as a percentage of production increased from .34%
for the six months ended June 30, 1998 to .38% for the six months ended June 30,
1999 as a result of lowered borrowing costs.
PAMCO operations
For the six months ended June 30, 1999, PAMCO, earned $1,057,000 as
compared to $1,344,000 for the six months ended June 30, 1998. Operating
revenues totaled $9,195,000 as compared to $9,240,000 for 1998 and expenses
totaled $8,138,000 as compared to $7,896,000 for 1998.
Gains on sales of loans and other loan fees as a percent of production
was 2.78% for the six months ended June 30, 1999 as compared to 2.75% for the
six months ended June 30, 1998. Compensation expenses as a percent of production
increased to 1.84% from 1.77% for the six months ended June 30, 1998 resulting
from compensation increases for support personnel offset partially by reduced
benefit costs. Other expenses as a percent of originations increased from .46%
for the six months ended June 30, 1998 to .57% for the six months ended June 30,
1999 as a result of increased expenditures for advertising and increased loan
processing costs.
Net interest income as a percent of production was 0% for the six months
ended June 30, 1999 to as compared to a deficit of .04% for the same period in
1998.
Construction Lending
For the six months ended June 30, 1999 the construction lending
operation (CPFI) earned $302,000 as compared to $355,000 for the first six
months of 1998.
Interest income as a percent of average outstanding construction loans
receivable was 9.98% for the six months ended June 30, 1999 as compared to 9.32%
in the six months ended June 30, 1998. In 1998, the yield was reduced by
approximately .50% as a result of the amortization of the original purchase
premium. Exclusive of the amortization, the increase in yield is the result of
better margins received on CPFI's loans. Interest expense on the bank debt, for
the first six months of 1999, as a percent of average borrowings declined to
7.28% from 8.10% for the six months ended June 30, 1998. This decline is the
result of a decline, year over year, in short-term rates. Additionally the
higher levels of capital relative to debt allowed MPSF to pay down higher
costing debt based on loan types pledged under CPFI's line of credit. Total
interest expense was $743,000 and $2,287,000 for the six months ended June 30,
1999 and 1998,
20
<PAGE> 21
respectively. Included in interest expense in 1998 was $236,000 related to notes
payable to NAB. The debt was paid off in the fourth quarter of 1998.
Revenues totaled $1,691,000 for the first six months of 1999 as compared
to $3,347,000 for the first six months of 1998. Expenses totaled $1,389,000 for
the six months ended June 30, 1999 as compared to $2,992,000 for the six months
ended June 30, 1998. The decline in revenues and expense resulted from the
fourth quarter 1998 sale of approximately half of the CPFI loan portfolio.
Operating expenses decreased from $705,000 in 1998 to $658,000 in 1999. Included
in operating expenses were provisions for loan losses that increased from
$139,000 to $173,000, compensation and benefits decreased from $308,000 to
$219,000 and other general and administrative expenses declined from $258,000 to
$243,000.
CPFI originated $23,468,000 in new commitments in the first six months
of 1999 as compared to $40,800,000 in 1998.
Commercial Lending
The commercial lending operation (NAFCO) lost $994,000 for the six
months ended June 30, 1999 as compared to income of $122,000 for the six months
ended June 30, 1998. Interest income totaled $347,000 in 1999 as compared to
$394,000 in 1998. Interest expense totaled $131,000 in 1999 as compared to
$23,000 in 1998. Operating expenses for the first six months of 1999 and 1998
totaled $1,285,000 and $323,000, respectively, consisting of compensation and
benefits of $51,000 and $114,000, provisions for loan losses of $576,000 and
$58,000 for 1999 and 1998 and general and administrative expenses of $154,000
and 151,000, respectively. Operating expenses in 1999 also include a $503,000
write down of the portfolio to fair value resulting from the reclassification of
the portfolio from held for investment to held for sale.
Corporate and Intercompany Eliminations
Corporate revenues and expenses represent interest income and
unallocated compensation, interest expense, minority interest and other general
and administrative expenses.
Compensation expense totaled $393,000 for the first six months of 1999
as compared to $921,000 in 1998. The decrease was attributable to option
termination related charges totaling $508,000 in 1998 as compared to $136,000 in
1999 and a reduction in incentive compensation expense in 1999. Interest expense
totaled $823,000 in 1999, a decrease of $296,000 over 1998. The decrease is
attributable to the Company's partial repayment of debt to SFSC and CPS.
LIQUIDITY AND CAPITAL RESOURCES
As of June 30, 1999, the Company had approximately $9,980,000 in cash as
compared to $6,091,000 at December 31, 1998. Of those amounts $7,344,000 and
$3,952,000 as of June 30, 1999 and December 31, 1998, respectively, was
restricted to usage for mortgage loan fundings and repayments under the
Company's residential warehouse line of credit.
21
<PAGE> 22
Total assets have decreased to $115,870,000 at June 30, 1999 from
$140,799,000 at December 31, 1998. The decrease is principally attributable to
the decline in the mortgage loan production at MPS and a decline in the
construction loan portfolio at CPFI.
In June 1999 MPS entered into a new line of credit agreement with Bank
United in Houston, Texas. The line of credit totals $100,000,000. Outstanding
borrowings bear interest at various spreads (ranging from 1.25% to 2.25%) over
the one-month LIBOR. The line of credit matures June 15, 2000. The mortgage
loans receivable of MPS (including PAMCO) are pledged as collateral for the line
of credit. At June 30, 1999, $55,459,000 was borrowed under the line.
CPFI's line of credit totals $30,000,000. The line of credit is secured
by CPFI's construction loans receivable. As of June 30, 1999, $22,025,000 was
outstanding under the line bearing interest at various spreads (ranging from
2.00% to 3.75%) over the one month LIBOR depending on the collateral. The line
of credit matures December 31, 1999.
NAFCO's line of credit totals $6,500,000. The line bears interest at the
prime rate and matures on October 30, 1999. As of June 30, 1999, $3,125,000 was
borrowed. Substantially all of the assets of NAFCO are pledged as collateral for
the line.
In the fourth quarter of 1998, numerous sub-prime mortgage bankers were
subjected to margin calls on their lines of credit as a result of the
significant decline in the sales premiums paid for loans and the deteriorating
sub-prime mortgage and asset-backed securities markets. Management considers its
relationships with its lenders to be good and is currently in compliance with
all of the covenants contained in its various debt agreements. Additionally
management believes that the debt agreements will be renewed in the ordinary
course of business on substantially the same terms and conditions or alternative
credit facilities are available on acceptable terms.
At June 30, 1999, the Company has borrowed under notes and a line of
credit from Stanwich Financial Services Corp. (SFSC) and CPS, for a total of
$11,323,000 summarized as follows:
<TABLE>
<CAPTION>
Payee Type Original Date Maturity Balance Rate
- ----- ---- ------------- -------- ------- ----
<S> <C> <C> <C> <C> <C>
SFSC Note June 27, 1997 January 3, 2000 $377,000 14%
SFSC Note September 30, 1997 September 30 ,2000 900,000 14%
SFSC Line of Credit August 28, 1997 September 30, 2000 3,500,000 16%
SFSC Note December 30, 1997 January 3, 2000 4,000,000 13%
SFSC Note March 12, 1998 January 3, 2000 900,000 13%
SFSC Note March 13, 1998 January 3, 2000 1,100,000 13%
CPS Note December 30, 1997 June 30, 1999 546,000 13%
</TABLE>
The note to CPS for $546,000 was paid in full on July 2, 1999.
22
<PAGE> 23
Proceeds from the borrowings were used to invest in the Company's
subsidiaries. All loans require the payment of interest quarterly with principal
due at maturity. The proceeds from the line of credit executed on August 28,
1997 are limited to usage at MPS. The total commitment is $5,000,000, of which
$3,500,000 has been drawn. Each note may be prepaid, partially or in full,
without penalty at any time. Any partial repayment may not be re-borrowed.
Charles E. Bradley, Sr., who is an officer and director of NAB, and Charles E.
Bradley, Jr., who is a director of NAB together owns a majority interest in
SFSC. Messrs. Bradley, Sr., Bradley, Jr., are officers and directors of CPS.
On March 29, 1999 NAB entered into a Payment Deferral Agreement with
SFSC in which SFSC agreed to extend the maturity dates on NAB's $6,377,000 in
notes payable to SFSC that were due June 30, 1999 to January 3, 2000.
Additionally, SFSC agreed to defer interest payments on all notes due from NAB
until January 3, 2000. The Company intends to pursue the refinancing of those
notes with a third party. There can be no assurance that such refinancing can be
accomplished and, if no financing is obtainable, that SFSC would agree to extend
the maturity dates.
On May 12, 1999 the Company advanced SFSC $921,000 pursuant to a
promissory note. The note bears interest at 16%, payable quarterly. The
principal is due and payable on September 30, 2000.
In order to maintain its net operating loss carryforwards the Company is
limited under Section 382 of the Internal Revenue Code of 1986 as to issuance of
new common shares in order to raise additional capital. The Company must rely on
additional borrowings to grow its operations. The Company anticipates no
additional funding from SFSC or CPS, therefore must rely on internally generated
funds or additional borrowings from third parties. Current credit agreements in
place are sufficient to provide the Company funds to operate its business lines
as currently structured.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company's market risk profile has not significantly changed since
December 31, 1998. For a discussion of the Company's market risk, read Item 7A
of the Company's 10K for the year ended December 31, 1998.
YEAR 2000 UPDATE
In order to be year 2000 compliant, the Company has addressed and will
continue to address the year 2000 issue as it relates to the Company's systems
and its business operations. To be year 2000 compliant means that (1)
significant computer systems in use by the Company demonstrate performance and
functionality that is not materially affected by processing dates on or after
January 1, 2000, (2) customers and collateral included in the Company's
portfolio of business are year 2000 compliant, and (3) vendors of services
critical to the Company's business processes are year 2000 compliant.
23
<PAGE> 24
The Company has determined that the following actions are necessary to
assess year 2000 compliance:
1) Identification of each computer area that could be materially affected
and the proper action necessary to eliminate any material adverse
effects caused by the turn of the century.
2) Testing the systems and switching to year 2000 compliance where
necessary.
3) Making inquiries of key vendors and customers regarding year 2000
compliance.
Progress report
Identification
The Company has identified all of its hardware systems and software (IT
systems) critical to the business and whose failure to process transaction and
information in the Year 2000 would have a material impact on the Company. The
Company commenced its current business segments beginning in mid-1996. As a
result substantially all of its hardware and software were Year 2000 compliant
when purchased.
The Company also identified non-information technology systems (non-IT
systems) critical to the business operation such as telephone and paging
systems. All of these systems were purchased subsequent to mid- 1996 and were
Year 2000 compliant when purchased.
Testing
The Company has completed testing of its IT systems and has made
modifications where necessary.
IT and Non-IT Vendor Inquiries
The Company continues to communicate with customers, vendors, and others
to determine if their applications are year 2000 compliant and assess the
potential impact on the Company. The responses from the Company's major vendors
indicate that they are all expected to be year 2000 compliant by year end 1999
or are already compliant as it relates to the relevant system the Company relies
on.
Costs
The costs incurred to bring the Company's internal systems into year
2000 compliance and the costs of equipment acquisitions are not expected to have
a material impact on the Company's financial position. The Company has incurred
approximately $125,000 in costs to date primarily related to software upgrades.
The Company expects continuing costs related to internal resources to monitor
vendor progress towards being Year 2000 compliant and to
24
<PAGE> 25
purchase software or software upgrades for non-critical systems. The cost of
these internal resources and software is estimated to be $25,000.
Contingency Planning
Based upon the progress of the Company's material vendors in becoming
Year 2000 compliant, the Company will continually assess the need for
contingency plans.
Risks
The primary risk to the Company of the Year 2000 issue is that one or
more of the Company's outside vendors is not Year 2000 compliant. The Company
cannot assure that all systems of other companies and government agencies which
reliance is placed upon will be year 2000 compliant on a timely basis,
regardless of the assurances that the company receives from them. The failure of
significant customers and vendors to be year 2000 compliant could possibly have
a material adverse effect on the Company's results of operations and financial
condition.
PRIVATE LITIGATION SECURITIES REFORM ACT OF 1995
This report contains forward-looking statements based on current
expectations that involve a number of risks and uncertainties. The
forward-looking statements are made pursuant to safe harbor provisions of the
Private Litigation Securities Reform Act of 1995. The factors that could cause
actual results to differ materiality include competition, interest rates,
availability of additional or alternative financing and other risks described
elsewhere in the Company's filings with the Securities and Exchange Commission.
25
<PAGE> 26
PART II - OTHER INFORMATION
ITEM 6: EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
1) EX-27 Financial Data Schedule
2) EX-10.18 Credit Agreement between Mortgage Portfolio
Services, Inc., and Bank United dated June 15, 1999
3) EX-10.19 Separation Agreement dated as of June 4, 1999
between Registrant and Michael W. Caton effective as of
July 15, 1999
4) EX-10.20 Consulting and Finder's Agreement dated as of
June 4, 1999 between Registrant and Michael W. Caton
5) EX-10.21 $921,345 Promissory Note dated May 12, 1999
issued by SFSC to Registrant
(b) Reports on Form 8-K
None
26
<PAGE> 27
SIGNATURES
Pursuant to the requirements of Section 13 or 13(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Dated: August 14, 1999
By: /s/ Charles E. Bradley, Sr.
---------------------------
Charles E. Bradley, Sr.
Chairman of the Board and Chief Executive Officer
By: /s/ Alan Ferree
---------------
Alan Ferree
Senior Vice President and Chief Financial Officer
27
<PAGE> 28
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibits Description
<S> <C>
EX-10.18 Credit Agreement between Mortgage Portfolio Services, Inc., and Bank United dated June 15, 1999
EX-10.19 Separation Agreement dated as of June 4, 1999 between Registrant and Michael W. Caton effective as of
July 15, 1999
EX-10.20 Consulting and Finder's Agreement dated as of June 4, 1999 between Registrant and Michael W. Caton
EX-10.21 $921,345 Promissory Note dated May 12, 1999 issued by SFSC to Registrant
EX-27 Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 10.18
================================================================================
CREDIT AGREEMENT
--------------
MORTGAGE PORTFOLIO SERVICES, INC.
Borrower
NAB ASSET CORPORATION
Guarantor
BANK UNITED
RESIDENTIAL FUNDING CORPORATION
U.S. BANK NATIONAL ASSOCIATION
as Lenders
and
BANK UNITED
as Agent
--------------
June 15, 1999
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I GENERAL TERMS......................................................................................Page 1
Section 1.01 Certain Definitions...............................................................Page 1
Section 1.02 Other Definitional Provisions....................................................Page 26
Section 1.03 Exhibits and Schedules...........................................................Page 26
ARTICLE II AMOUNT OF TERMS OF CREDITS.......................................................................Page 27
Section 2.01 Commitment and Loans.............................................................Page 27
Section 2.02 Promissory Notes; Interest on the Notes..........................................Page 28
Section 2.03 Notice and Manner of Obtaining Loans.............................................Page 29
Section 2.04 Fees.............................................................................Page 30
Section 2.05 Mandatory Repayments.............................................................Page 30
Section 2.06 Payments to Lenders..............................................................Page 30
Section 2.07 Refinancing of Swing-Line Loans..................................................Page 31
Section 2.08 Capital Reimbursement............................................................Page 32
Section 2.09 Reimbursable Taxes...............................................................Page 33
Section 2.10 Notice of Certain Events; Change of Applicable Lending office....................Page 33
ARTICLE III CONDITIONS PRECEDENT............................................................................Page 34
Section 3.01 Initial Borrowing................................................................Page 34
ARTICLE IV BORROWER REPRESENTATIONS AND WARRANTIES..........................................................Page 36
Section 4.01 Organization and Good Standing...................................................Page 36
Section 4.02 Authorization and Power..........................................................Page 36
Section 4.03 No Conflicts or Consents.........................................................Page 36
Section 4.04 Enforceable Obligations..........................................................Page 36
Section 4.05 Priority of Liens................................................................Page 36
Section 4.06 No Liens.........................................................................Page 37
Section 4.07 Financial Condition of Borrower and Guarantor....................................Page 37
Section 4.08 Full Disclosure..................................................................Page 37
Section 4.09 No Default.......................................................................Page 37
Section 4.10 No Litigation....................................................................Page 37
Section 4.11 Taxes............................................................................Page 38
Section 4.12 Principal office, etc............................................................Page 38
Section 4.13 Compliance with ERISA............................................................Page 38
Section 4.14 Subsidiaries.....................................................................Page 38
Section 4.15 Indebtedness.....................................................................Page 38
Section 4.16 Permits, Patents, Trademarks, etc................................................Page 38
Section 4.17 Status Under Certain Federal Statutes............................................Page 38
Section 4.18 Securities Act...................................................................Page 39
Section 4.19 Pollution Control................................................................Page 39
Section 4.20 No Approvals Required............................................................Page 39
</TABLE>
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<TABLE>
<S> <C>
Section 4.21 Survival of Representations......................................................Page 39
Section 4.22 Individual Mortgage Loans........................................................Page 39
Section 4.23 Environmental Matters............................................................Page 40
ARTICLE V AFFIRMATIVE COVENANTS.............................................................................Page 41
Section 5.01 Financial Statements and Reports.................................................Page 41
Section 5.02 Taxes and Other Liens............................................................Page 43
Section 5.03 Maintenance......................................................................Page 43
Section 5.04 Further Assurances...............................................................Page 44
Section 5.05 Reimbursement of Expenses........................................................Page 44
Section 5.06 Insurance........................................................................Page 44
Section 5.07 Accounts and Records; Servicing Records..........................................Page 45
Section 5.08 Right of Inspection..............................................................Page 45
Section 5.09 Notice of Certain Events.........................................................Page 45
Section 5.10 Performance of Certain Obligations and Information Regarding Investors...........Page 46
Section 5.11 Use of Proceeds; Margin Stock....................................................Page 46
Section 5.12 Notice of Default................................................................Page 46
Section 5.13 Compliance with Loan Documents...................................................Page 46
Section 5.14 Operations and Properties........................................................Page 46
Section 5.15 Year 2000 Covenant...............................................................Page 46
Section 5.16 REO Closing Proceeds.............................................................Page 47
Section 5.17 Environmental Matters............................................................Page 47
ARTICLE VI NEGATIVE COVENANTS...............................................................................Page 47
Section 6.01 No Merger........................................................................Page 47
Section 6.02 Limitation on Indebtedness.......................................................Page 48
Section 6.03 Fiscal Year, Method of Accounting................................................Page 48
Section 6.04 Business.........................................................................Page 48
Section 6.05 Liquidations, mergers, Consolidations and Dispositions of Substantial Assets.....Page 48
Section 6.06 Loans, Advances, and Investments.................................................Page 48
Section 6.07 Use of Proceeds..................................................................Page 49
Section 6.08 Actions with Respect to Mortgage Collateral......................................Page 49
Section 6.09 Net Worth........................................................................Page 49
Section 6.10 Total Liabilities to Tangible Net Worth Ratio....................................Page 49
Section 6.11 Transactions with Affiliates.....................................................Page 50
Section 6.12 Liens............................................................................Page 50
Section 6.13 ERISA Plans......................................................................Page 50
Section 6.14 Change of Principal Office.......................................................Page 50
ARTICLE VII EVENTS OF DEFAULT...............................................................................Page 50
Section 7.01 Nature of Event..................................................................Page 50
Section 7.02 Default Remedies. ..............................................................Page 52
ARTICLE VIII INDEMNIFICATION................................................................................Page 53
Section 8.01 Indemnification..................................................................Page 53
</TABLE>
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<TABLE>
<S> <C>
Section 8.02 Limitation of Liability...............................................................Page 53
ARTICLE IX AGENT............................................................................................Page 53
Section 9.01 Appointment and Authority........................................................Page 53
Section 9.02 Agent's Reliance, Etc............................................................Page 54
Section 9.03 Lenders' Credit Decisions........................................................Page 55
Section 9.04 Indemnification..................................................................Page 55
Section 9.05 Rights as Lender.................................................................Page 56
Section 9.06 Sharing of Set-Offs and Other Payments...........................................Page 56
Section 9.07 Investments......................................................................Page 56
Section 9.08 Benefit of Article IX............................................................Page 56
Section 9.09 Resignation......................................................................Page 57
Section 9.10 NO REPRESENTATIONS...............................................................Page 57
ARTICLE X MISCELLANEOUS.....................................................................................Page 57
Section 10.01 Notices..........................................................................Page 57
Section 10.02 Amendments, Etc..................................................................Page 58
Section 10.03 CHOICE OF LAW; VENUE.............................................................Page 59
Section 10.04 Invalidity.......................................................................Page 59
Section 10.05 Survival of Agreements...........................................................Page 59
Section 10.06 Renewal, Extension or Rearrangement..............................................Page 59
Section 10.07 Waivers..........................................................................Page 59
Section 10.08 Cumulative Rights................................................................Page 60
Section 10.09 Limitation on Interest...........................................................Page 60
Section 10.10 Bank Accounts; Offset............................................................Page 60
Section 10.11 Assignments, Participations......................................................Page 61
Section 10.12 Exhibits.........................................................................Page 62
Section 10.13 Titles of Articles, Sections and Subsections.....................................Page 62
Section 10.14 Counterparts.....................................................................Page 62
Section 10.15 ENTIRE AGREEMENT.................................................................Page 62
Section 10.16 Termination; Limited Survival....................................................Page 62
Section 10.17 Joint and Several Liability......................................................Page 63
Section 10.18 Restatement......................................................................Page 63
Section 10.19 Disclosures......................................................................Page 63
SECTION 10.20 WAIVER OF JURY TRIAL................................................................Page 63
SECTION 10.21 CONSEQUENTIAL DAMAGES...............................................................Page 63
</TABLE>
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EXHIBITS
Exhibit A-1 -- Form of Note
Exhibit A-2 -- Form of Swing-Line Note
Exhibit B -- Form of Borrowing Request
Exhibit C -- Borrowing Base Certificate
Exhibit D -- Certificate Accompanying Financial Statement
Exhibit E -- Form of Security Agreement
Exhibit F-1 -- Tranche A Investors
Exhibit F-2 -- Tranche B Investors
Exhibit G -- Form of Opinion of Counsel for Borrower and Guarantor
Exhibit H -- Subsidiaries
Exhibit I -- Form of Guaranty
Exhibit J -- Acceptable Manufactured Housing States
Exhibit K -- Securitization Reporting Worksheet for Monthly Reporting
Exhibit L -- Securitization Reporting Worksheet
Page viii
<PAGE> 6
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made and entered into as of June 15, 1999,
among Mortgage Portfolio Services, Inc., a Delaware corporation ("Borrower"),
NAB Asset Corporation, a Texas corporation ("Guarantor"), BANK UNITED, as Agent
("Agent"), and the Lenders referred to below ("Lenders").
The parties hereto hereby agree as follows:
ARTICLE I
GENERAL TERMS
Section I.1 Certain Definitions. As used in this Agreement, the
following terms have the following meanings:
"Acceptable Manufactured Housing State" means any state: (1) listed on
a schedule of "Acceptable Manufactured Housing States" mutually agreed to by
Borrower and Majority Lenders, from time to time, with the initial such schedule
in the form of that attached hereto as EXHIBIT "J" and (2) as to which Agent
shall have received an opinion of counsel to Borrower in form and substance
satisfactory to Agent regarding the perfection of Agent's security interest in
Mortgage Loans secured by Property in such state and covering such other matters
as Agent may request; provided, however, that no state shall be an Acceptable
Manufactured Housing State unless the laws of such state treat manufactured
housing as real property rather than as personal property for purposes of
perfection of a Lien thereon.
"Adjusted Tranche A Portion" means, on any date of determination, that
portion of the aggregate principal amount of Tranche A Loans which equals the
Unit Collateral Value of the Designated Agency Loans as of such date.
"Adjusted Tranche B Portion" means, on any date of determination, that
portion of the aggregate principal amount of Tranche B Loans which equals the
Unit Collateral Value of the Designated Sub-Prime Loans as of such date.
"Adjusted Tranche C Portion" means, on any date of determination, that
portion of the aggregate principal amount of Tranche C Loans which equals the
Unit Collateral Value of the Designated Tranche C Loans as of such date.
"Affiliate" means, as to any Person, each other Person that directly or
indirectly (through one or more intermediaries or otherwise) controls, is
controlled by, or is under common control with, such Person.
"Agent" has the meaning assigned to such term in the preamble hereof.
"Aggregate Collateral Value of the Borrowing Base" means at any date
the sum of the Collateral Value of the Tranche A Borrowing Base, the Collateral
Value of the Tranche B Borrowing
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Base, the Collateral Value of the Tranche C Borrowing Base, and the Collateral
Value of the Tranche D Borrowing Base, all as of such date.
"Agreement" means this Credit Agreement, as the same may from time to
time be amended, modified or supplemented.
"Agreement to Pledge" means each agreement by Borrower, in the form of
EXHIBIT 1 to the Security Agreement, to deliver Required Mortgage Documents to
Agent.
"Applicable Margin" means with respect to
(a) The Unadjusted Tranche A Portion, and Swing-Line Loans
that will be refinanced as Tranche A Loans, one and one-half percent
(1.5%);
(b) The Adjusted Tranche A Portion, one and one-quarter
percent (1.25%);
(c) The Unadjusted Tranche B Portion, and Swing-Line Loans
that will be refinanced as Tranche B Loans, one and five-eighths
percent (1.625%);
(d) The Adjusted Tranche B Portion, one and three-eighths
percent (1.375%);
(e) The Unadjusted Tranche C Portion and Swing-Line Loans that
will be refinanced as Tranche C Loans, two percent (2%);
(f) The Adjusted Tranche C Portion, one and one-quarter
percent (1.25%);
(g) The Tranche D Loans and Swing-Line Loans that will be
refinanced as Tranche D Loans, two and one-half percent (2.50%).
"Applicable Rate" means with respect to any Lender's Loan, for any
month, the Monthly Average LIBOR Rate for such month plus the Applicable Margin.
"Balance Calculation Period" means each calendar month.
"Balance Funded Amount" means with respect to any Lender for any
Balance Calculation Period, the average of the Qualifying Balances of such
Lender for such Balance Calculation Period. As used in this paragraph,
"Qualifying Balances" shall mean, with respect to any Lender, for any day the
lesser of (x) the amount of such Lender's Loans on such day, and (y) the sum of
the collected balances in all identified non-interest bearing accounts of
Borrower maintained with such Lender less (i) amounts necessary to satisfy
reserve and deposit insurance requirements and (ii) amounts required to
compensate such Lender for services rendered in accordance with such Lender's
system of charges for services to similar accounts.
"Balance Funded Rate" means with respect to:
(a) The Unadjusted Tranche A Portion, one and one-half percent
(1.5%);
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(b) The Adjusted Tranche A Portion, one and one-quarter
percent (1.25%);
(c) The Unadjusted Tranche B Portion, one and five-eighths
(1.625%);
(d) The Adjusted Tranche B Portion, one and three-eighths
percent (1.375%);
(e) The Unadjusted Tranche C Portion, two percent (2%);
(f) The Adjusted Tranche C Portion, one and one-quarter
percent (1.25%); and
(g) Tranche D Loans, two and one-half percent (2.50%).
"Bank United" means Bank United, as a Lender and its successors in such
capacity.
"Bond Program Loan" means any Eligible Agency Mortgage Loan that has
been assigned for inclusion in a bond program sponsored by an Investor.
"Borrower" shall have the meaning assigned to such term in the preamble
hereof.
"Borrower's Consolidated Tangible Net Worth" means, as of any date, (a)
Borrower's Consolidated Net Worth as of such date minus (b) all Consolidated
assets of Borrower which would be classified as intangible assets under GAAP,
including Capitalized Servicing Rights, goodwill (whether representing the
excess cost over book value of assets acquired or otherwise), patents,
trademarks, trade names, copyrights, franchises, deferred charges and
intercompany Indebtedness plus (c) ninety percent (90%) of the book value of
Capitalized Servicing Rights plus (d) the original principal amount of the
Subordinated Debt (without including any accrued interest or payments of
interest made by the issuance of additional Indebtedness or otherwise compounded
or added to the principal).
"Borrowing Base Certificate" means at a certificate in the form
attached hereto as EXHIBIT "C."
"Borrowing Request" means a request, in the form of EXHIBIT "B," for a
Borrowing pursuant to Article II.
"Business Day" means a day, other than a Saturday or Sunday, on which
commercial banks are open for business with the public in Dallas, Texas. Any
Business Day in any way relating to the Eurodollar Rate must also be a day on
which, in the judgment of Agent, significant transactions in dollars are carried
out in the interbank Eurocurrency market.
"Capitalized Servicing Rights" means as of any Person, all rights to
service Mortgage Loans which would be capitalized under GAAP (regardless of
whether such rights result from asset securitizations, whole loan sales or
originations of Mortgage Loans). Included in this definition are residual
assets, over-collateralization accounts, reserves accounts, interest-only
certificates, subordinate securities or other such assets resulting from asset
securitizations.
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"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the United States Government or any agency or
instrumentality thereof which mature within 90 days from the date of
acquisition, and (ii) time deposits and certificates of deposit, which mature
within 90 days from the date of acquisition, of Agent, any Lender or any other
domestic commercial bank having capital and surplus in excess of $200,000,000,
which has, or the holding company of which has, a commercial paper rating of at
least A-1 or the equivalent thereof by Standard & Poors Corporation or P-1 or
the equivalent thereof by Moody's Investors Service, Inc.
"Change of Control" means (i) the acquisition by any Person or group of
Persons acting together, of a direct interest in more than twenty percent (20%)
of the voting power of the voting stock of Borrower, by way of merger or
consolidation or otherwise; or (ii) James Hinton ceases to be and act as
President and CEO of Borrower.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning given to it in the Security Agreement.
"Collateral Value" means at any date, the Collateral Value of the
Tranche A Borrowing Base, the Collateral Value of the Tranche B Borrowing Base,
the Collateral Value of the Tranche C Borrowing Base, or the Collateral Value of
the Tranche D Borrowing Base, as applicable.
"Collateral Value of the Tranche A Borrowing Base" means at any date
the sum of the Unit Collateral Values of all Eligible Tranche A Mortgage Loans
included in the Tranche A Borrowing Base at such date.
"Collateral Value of the Tranche B Borrowing Base" means at any date
the sum of the Unit Collateral Values of all Eligible Tranche B Mortgage Loans
included in the Tranche B Borrowing Base at such date.
"Collateral Value of the Tranche C Borrowing Base" means at any date
the sum of the Unit Collateral Values of all Eligible Tranche C Mortgage Loans
included in the Tranche C Borrowing Base at such date.
"Collateral Value of the Tranche D Borrowing Base" means at any date
the sum of the Unit Collateral Values of (i) all Eligible REOs, (ii) all
Eligible Repurchased Defaulted Mortgages, (iii) all Delinquent Loans, and (iv)
all Past Due Loans included in the Tranche D Borrowing Base at such date.
"Commitment" means the obligation of Lenders to make Tranche A Loans,
Tranche B Loans, Tranche C Loans and Tranche D Loans to Borrower pursuant to
Section 2.01 hereof in an aggregate amount not to exceed $100,000,000 at any
time outstanding.
"Consolidated" refers to the consolidation of any Person, in accordance
with GAAP, with its properly consolidated subsidiaries. References herein to a
Person's Consolidated financial statements, financial position, financial
condition, liabilities, etc. refer to the consolidated financial
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<PAGE> 10
statements, financial position, financial condition, liabilities, etc. of such
Person and its properly consolidated subsidiaries.
"Consolidated Net Income" of any Person means, for the period ending on
a particular date, the gross revenues of such Person for such period, plus any
cash Dividends actually received by such Person from any other business entity,
minus all expenses and other proper charges (including taxes on income, to the
extent imposed upon such Person), determined on a Consolidated basis after
eliminating earnings or losses attributable to outstanding minority interests.
"Consolidated Net Worth" of any Person means, as of any date, the
remainder of all Consolidated assets of such Person minus such Person's
Consolidated liabilities, each as determined by GAAP.
"Construction Home" means a single family residence that is being
constructed on real property subject to a Mortgage.
"Debtor Laws" means all applicable liquidation, conservatorship,
bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization or
similar laws from time to time in effect affecting the rights of creditors
generally and general principles of equity.
"Default" means any of the events specified in Section 7.01 hereof,
whether or not any requirement for notice or lapse of time or any other
condition has been satisfied.
"Delinquent Loans" means a Mortgage Loan owned by Borrower with respect
to which the following statements shall be accurate and complete (and Borrower
by including such Delinquent Loan in any computation of the Collateral Value of
the Tranche D Borrowing Base shall be deemed to so represent to Agent and
Lenders at and as of the date of such computation):
(i) Such Mortgage Loan meets all requirements set forth in the
definitions of an Eligible Mortgage Loan except clause (iv) of such
definition;
(ii) One payment under such Mortgage Loan is thirty (30) days,
but less than sixty (60) days, past due the payment due date set forth
in the underlying Mortgage Note and Mortgage;
(iii) Such Mortgage Loan shall not have been included in the
Tranche D Borrowing Base for more than an aggregate period of 360 days;
and
(iv) Such Mortgage Loan is secured by a first or second
priority Mortgage on Property consisting of a completed one-to-four
unit family residence, including a condominium, planned unit
development or townhouse.
"Designated Agency Loan" means an Eligible Agency Mortgage Loan for
which Agent has shipped the related Mortgage Collateral to an Investor for
purchase by such Investor pursuant to a Take-Out Commitment. An Eligible Agency
Mortgage Loan shall be classified as a Designated Agency Loan for the period
beginning on the date Agent ships the related Mortgage Collateral to an
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Investor and ending on the earliest to occur of (a) the date Agent receives the
proceeds of such Mortgage Loan from the Investor, (b) the date the Agent
receives the related Mortgage Collateral from the Investor (c) with respect to
any Eligible Agency Mortgage Loan other than a Bond Program Loan, thirty (30)
days from the date Agent shipped the related Mortgage Collateral to the
Investor, and (d) with respect to any Bond Program Loan, sixty (60) days from
the date Agent shipped such Bond Program Loan to an Investor.
"Designated Sub-Prime Loans" means an Eligible Sub-Prime Mortgage Loan
either (a) for which Agent has received documentation satisfactory to Agent from
an Investor stating that such Investor has underwritten such Eligible Sub-Prime
Mortgage Loan and has committed to purchase such Eligible Sub-Prime Mortgage
Loan for the price stated within such documentation or (b) which has been
shipped to a trustee pursuant to a securitization of Mortgage Loans. An Eligible
Sub-Prime Mortgage Loan shall be classified as a Designated Sub-Prime Loan for
the period beginning on the date either (a) Agent receives satisfactory
documentation from an Investor stating that such Investor has underwritten such
Eligible Sub-Prime Mortgage Loan and has committed to purchase such Eligible
Sub-Prime Mortgage Loan for the price stated within such documentation or (b)
Agent ships the related Mortgage Collateral to a trustee in conjunction with a
securitization and ending on the earliest to occur of (a) the date Agent
receives the proceeds of such Mortgage Loan from the Investor or from the
proceeds of such securitization, (b) the date Agent receives the related
Mortgage Collateral from the Investor or trustee, (c) thirty (30) days from the
date Agent shipped the related Mortgage Collateral to the trustee, and (d)
thirty (30) days from the date on which such Mortgage Collateral was first
designated as a Designated Sub-Prime Loan.
"Designated Tranche C Loan" means an Eligible Tranche C Loan for which
Agent has shipped the related Mortgage Collateral to an Investor for purchase by
such Investor pursuant to a Take-Out Commitment. An Eligible Tranche C Loan
shall be classified as a Designated Tranche C Loan for the period beginning on
the date Agent ships the related Mortgage Collateral to an Investor and ending
on the earliest to occur of (a) the date Agent receives the proceeds of such
Mortgage Loan from the Investor, (b) the date the Agent receives the related
Mortgage Collateral from the Investor and (c) thirty (30) days from the date
Agent shipped the related Mortgage Collateral to the Investor.
"Dividends," in respect of any corporation, means: (i) cash
distributions or any other distributions on, or in respect of, any class of
equity security of such corporation, except for distributions made solely in
shares of securities of the same class; and (ii) any and all funds, cash or
other payments made in respect of the redemption, repurchase or acquisition of
such securities; provided, however, that "Dividends" shall not include
Borrower's payments to Guarantor for Borrower's Share of Taxes owed by the
Affiliated Group of Corporations (as defined in section 1504 of the Code) of
which Borrower is a member. As used herein "Borrower's Share of Taxes" means the
amount of federal income taxes which Borrower would have been obligated to pay
if Borrower was not a member of an Affiliated Group of Corporations.
"Drawdown Termination Date" means the earlier of June 15, 2000, or the
day on which the Notes first become due and payable in full.
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"Eligible Agency Mortgage Loan" means an Eligible Mortgage Loan that
has a Risk Rating of A and that has been committed for sale to an Investor;
provided that such Mortgage Loan shall conform to FNMA/FHLMC guidelines in
regards to credit quality (and Borrower by including such Mortgage Loan in any
computation of the Aggregate Collateral Value of the Borrowing Base shall be
deemed to so represent to Agent and Lenders at and as of the date of such
computation).
"Eligible High LTV Loan" means an Eligible Mortgage Loan with respect
to which each of the following statements shall be accurate and complete (and
Borrower by including such High LTV Loan in any computation of the Collateral
Value of the Tranche D Borrowing Base shall be deemed to so represent to Agent
and Lenders at and as of the date of such computation):
(i) Such Mortgage Loan shall have a minimum FICO score of 640;
and
(ii) Such Mortgage Loan has a loan-to-value ratio between 100%
and 125%.
For purposes of this definition, the term "FICO Score" means the score assigned
by Borrower as developed by the Fair Isaac and Company.
"Eligible Manufactured Housing Mortgage Loan" means a Mortgage Loan
with respect to which each of the following statements is accurate and complete
(and Borrower by including such Mortgage Loan in any computation of the
Collateral Value of the Tranche A Borrowing Base or of the Collateral Value of
the Tranche B Borrowing Base shall be deemed to so represent to Agent and
Lenders at and as of the date of such computation):
(i) Such Mortgage Loan is an Eligible Mortgage Loan;
(ii) Such Mortgage Loan is secured by a first priority deed of
trust (or mortgage) on the related Property;
(iii) The proceeds of said Mortgage Loan are utilized by the
Obligor to facilitate the permanent attachment of a new manufactured
Home on the related Property;
(iv) The Property securing such Mortgage Loan is located in an
Acceptable Manufactured Housing State;
(v) Upon completion and attachment of the related Manufactured
Home to the related Property, such Mortgage Loan will meet all
underwriting and other criteria for purchase by an Investor under the
Take-Out Commitment relating to such Mortgage Loan;
(vi) The Manufactured Home financed with the proceeds of such
Mortgage Loan is a new Manufactured Home which has not previously been
financed;
(vii) All actions required to create a valid and enforceable
first priority perfected security interest in and lien upon the related
Manufactured Home and the related Property in favor of Borrower shall
have been taken; and
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(viii) The Unit Collateral Value of such Mortgage Loan, when
added to the Unit Collateral Value of all other Eligible Manufactured
Housing Mortgage Loans included in the computation of the Collateral
Value of the Tranche A Borrowing Base and the Collateral Value of the
Tranche B Borrowing Base does not exceed Three Million Dollars
($3,000,000.00).
"Eligible Mortgage Loan" means a Mortgage Loan with respect to which
each of the following statements is accurate and complete (and the Borrower by
including such Mortgage Loan in any computation of the Aggregate Collateral
Value of the Borrowing Base shall be deemed to so represent to Agent and Lenders
at and as of the date of such computation):
(i) Such Mortgage Loan is a binding and valid obligation of
the Obligor thereon, in full force and effect and enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar terms affecting
creditor's rights in general and by general principles of equity;
(ii) Such Mortgage Loan is genuine in all respects as
appearing on its face and as represented in the books and records of
Borrower, and all information set forth therein is true and correct;
(iii) To the best knowledge of Borrower, such Mortgage Loan is
free of any default (other than as permitted by subparagraph below) of
any party thereto (including Borrower), counterclaims, offsets and
defenses, including the defense of usury, and from any rescission,
cancellation or avoidance, and all right thereof, whether by operation
of law or otherwise;
(iv) No payment under such Mortgage Loan is more than thirty
(30) days past due the payment due date set forth in the underlying
Mortgage Note and Mortgage;
(v) Such Mortgage Loan contains the entire agreement of the
parties thereto with respect to the subject matter thereof, has not
been modified or amended in any respect not expressed in writing
therein and is free of concessions or understandings with the Obligor
thereon of any kind not expressed in writing therein;
(vi) Such Mortgage Loan is in all respects in accordance with
all Requirements of Law applicable thereto, including, without
limitation, the federal Consumer Credit Protection Act and the
regulations promulgated thereunder and all applicable usury laws and
restrictions, and all notices, disclosures and other statements or
information required by law or regulation to be given, and any other
act required by law or regulation to be performed, in connection with
such Mortgage Loan have been given and performed as required;
(vii) All advance payments and other deposits on such Mortgage
Loan have been paid in cash, and no part of said sums has been loaned,
directly or indirectly, by Borrower to the Obligor, and, other than as
disclosed to Agent in writing, there have been no prepayments;
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(viii) At all times such Mortgage Loan will be free and clear
of all Liens, except in favor of Agent for the benefit of the Lenders;
(ix) The Property covered by such Mortgage Loan is insured
against loss or damage by fire and all other hazards normally included
within standard extended coverage in accordance with the provisions of
such Mortgage Loan with Borrower named as a loss payee thereon;
(x) The Required Mortgage Documents have been delivered to
Agent prior to the inclusion of such Mortgage Loan in any computation
of the Aggregate Collateral Value of the Borrowing Base or, if such
items have not been delivered to Agent on or prior to the date such
Mortgage Loan is first included in any computation of the Aggregate
Collateral Value of the Borrowing Base, (1) an Agreement to Pledge and
a copy of the unexecuted Mortgage Note for such Mortgage Loan has been
delivered to Agent prior to such inclusion, and (2) the Unit Collateral
Value of such Mortgage Loan when added to the Unit Collateral Value of
all other Mortgage Loans for which Agent has not received the Required
Mortgage Documents does not exceed Forty-two Million Dollars
($42,000,000.00), provided that, all Required Documents with respect to
such Mortgage Loan shall be delivered to Agent within seven (7)
Business Days after the date of the Agreement to Pledge with respect
thereto, provided further that, as to any Eligible Tranche C Mortgage
Loan, an Agreement to Pledge can be delivered to Agent only for the
first Loan made with respect to such Eligible Tranche C Mortgage Loan,
and all Required Documents for any subsequent Loan with respect to such
Eligible Tranche C Mortgage Loan must be delivered to Agent not later
than one (1) Business Day after such subsequent Loan;
(xi) If such Mortgage Loan is included in the Tranche A
Borrowing Base, the Tranche B Borrowing Base or the Tranche C Borrowing
Base and has been withdrawn from the possession of the Agent on terms
and subject to conditions set forth in the Security Agreement:
(1) If such Mortgage Loan was withdrawn by Borrower
for purposes of correcting clerical or other non-substantive
documentation problems, the promissory note and other
documents relating to such Mortgage Loan are returned to the
Agent within twelve (12) calendar days from the date of
withdrawal; and the Unit Collateral Value of such Mortgage
Loan when added to the Unit Collateral Value of other Mortgage
Loans which have been similarly released to Borrower and have
not been returned does not exceed $4,000,000;
(2) If such Mortgage Loan was shipped by the Agent
directly to a permanent investor for purchase or to a
custodian for the formation of a pool, the full purchase price
therefor has been received by the Agent (or such Mortgage Loan
has been returned to the Agent) within thirty (30) days from
the date of shipment by the Agent.
(xii) If such Mortgage Loan is a Jumbo Loan or a Super-Jumbo
Loan, the Unit Collateral Value of such Mortgage Loan when added to the
Unit Collateral Value of all other
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Jumbo Loans and Super-Jumbo Loans does not exceed thirty percent (30%)
of the Commitment;
(xiii) If such Mortgage Loan is a Super-Jumbo Loan, the Unit
Collateral Value of such Mortgage Loan when added to the Unit
Collateral Value of all other Super-Jumbo Loans does not exceed five
percent (5%) of the Commitment; and
(xiv) The face amount of the Mortgage Note underlying such
Mortgage Loan does not exceed $1,000,000.
In determining the eligibility of any Mortgage Loan, any of the
requirements for eligibility (other than the requirements contained in clauses
(i), (viii) and (ix) above) may be waived by Agent, provided, that any Mortgage
Loan which is accepted by Agent as an Eligible Mortgage Loan pursuant to such
waiver (an "Eligible Waiver Mortgage Loan") shall cease to be an Eligible Waiver
Mortgage Loan upon written notice of the retraction of such waiver given to
Borrower by Agent unless at the time of giving such notice the deficiency which
originally required such waiver has been cured and such Eligible Waiver Mortgage
Loan meets all other requirements for an Eligible Mortgage Loan; and provided
further, that the Unit Collateral Value of any Mortgage Loan accepted by Agent
as an Eligible Waiver Mortgage Loan when added to the Unit Collateral Value of
all other Eligible Waiver Mortgage Loans included in the Aggregate Collateral
Value of the Borrowing Base at anytime, does not exceed $5,000,000.
"Eligible REO" means an REO owned by Borrower with respect to which
each of the following statements shall be accurate and complete (and Borrower by
including such Eligible REO in any computation of the Collateral Value of the
Tranche D Borrowing Base shall be deemed to so represent to Agent and Lenders at
and as of the date of such computation):
(i) such REO is not encumbered by a mortgage or a deed of
trust in favor of any Person, other than in favor of Agent on behalf of
Lenders; and
(ii) such REO shall not have been included in the Tranche D
Borrowing Base for more than an aggregate period of 360 days (including
any period of time the Eligible Mortgage Loan secured by such REO was
previously included in the Aggregate Collateral Value of the Borrowing
Base).
"Eligible Repurchased Defaulted Mortgage" means a Repurchased Defaulted
Mortgage owned by Borrower with respect to which each of the following
statements shall be accurate and complete (and Borrower by including such
Eligible Repurchased Defaulted Mortgage in any computation of the Collateral
Value of the Tranche D Borrowing Base shall be deemed to so represent to Agent
and Lenders at and as of the date of such computation):
(i) such Repurchased Defaulted Mortgage Loan meets all the
requirements set forth in the definition of an Eligible Mortgage Loan
except for clause (iv) of such definition; and
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(ii) such Repurchased Defaulted Mortgage shall not have been
included in the Tranche D Borrowing Base for more than an aggregate
period of 360 days;
(iii) such Mortgage Loan is secured by a first or second
priority Mortgage on Property consisting of a completed one-to-four
unit single family residence, including a condominium, planned unit
development, townhouse or co-op.
"Eligible Sub-Prime Mortgage Loan" means an Eligible Mortgage Loan that
has a Risk Rating of A-1, B or C and is eligible for sale to a Tranche B
Investor (and the Borrower by including such Mortgage Loan in any computation)
of the Aggregate Collateral Value of the Borrowing Base shall be deemed to so
represent to Agent and Lenders at and as of the date of such computation and the
Unit Collateral Value of such Eligible Mortgage Loan, when added to the Unit
Collateral Value of all Eligible Subprime Mortgage Loans included in the Tranche
B Borrowing Base does not exceed Forty Million Dollars ($40,000,000.00).
"Eligible Tranche A Mortgage Loan" means an Eligible Agency Mortgage
Loan or Eligible Manufactured Housing Mortgage Loan owned by Borrower with
respect to which each of the following statements shall be accurate and complete
(and Borrower by including such Eligible Mortgage Loan in any computation of the
Collateral Value of the Tranche A Borrowing Base shall be deemed to so represent
to Agent and Lenders at and as of the date of such computation):
(i) Such Mortgage Loan has not been included in the Tranche A
Borrowing Base for more than 120 days; provided, however, that such
Mortgage Loan may be included in the Tranche A Borrowing Base for up to
a maximum aggregate period of 270 days so long as the Unit Collateral
Value of such Mortgage Loan when added to the Unit Collateral Value of
all other Eligible Tranche A Mortgage Loans and Eligible Tranche B
Mortgage Loans included in the Tranche A Borrowing Base and the Tranche
B Borrowing Base for more than 120 days does not exceed Two Million
Dollars ($2,000,000.00).
(ii) Such Mortgage Loan is covered by a Take-Out Commitment
which is in full force and effect, and Borrower and such Mortgage Loan
are in full compliance therewith;
(iii) Such Mortgage Loan is secured by a first or second
priority Mortgage on Property consisting of a completed one-to-four
unit single family residence, including a condominium, planned unit
development or townhouse; provided, however, that if such Mortgage Loan
is a Second Mortgage Loan, such Mortgage Loan may be included in the
Tranche A Borrowing Base only if the Unit Collateral Value of such
Second Mortgage Loan when added to the Unit Collateral Value of all
other Second Mortgage Loans then included in the Tranche A Borrowing
Base and the Tranche B Borrowing Base and all Eligible High LTV Loans
then included in the Tranche B Borrowing Base does not exceed Five
Million Dollars ($5,000,000.00).
(iv) For any Mortgage Loan which was originally included in
the Tranche C Borrowing Base, Agent has received the Required Mortgage
Documents set forth in Section 3 of SCHEDULE A to the Security
Agreement;
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(v) If such Mortgage Loan is an Eligible Manufactured Housing
Mortgage Loan, such Mortgage Loan has a Risk Rating of A; and
(vi) Such Mortgage Loan is not included in the Tranche C
Borrowing Base.
"Eligible Tranche B Mortgage Loan" means an Eligible Sub-Prime Mortgage
Loan, an Eligible Manufactured Housing Mortgage Loan or an Eligible High LTV
Loan owned by Borrower with respect to which each of the following statements
shall be accurate and complete (and Borrower by including such Eligible Mortgage
Loan in any computation of the Collateral Value of the Tranche B Borrowing Base
shall be deemed to so represent to Agent and Lenders at and as of the date of
such computation):
(i) Such Mortgage Loan has not been included in the Tranche B
Borrowing Base for more than 120 days; provided, however, that such
Mortgage Loan may be included in the Tranche B Borrowing Base for up to
a maximum aggregate period of 270 days so long as the Unit Collateral
Value of such Mortgage Loan when added to the Unit Collateral Value of
all other Eligible Tranche B Mortgage Loans and Eligible Tranche A
Mortgage Loans included in the Tranche A Borrowing Base and the Tranche
B Borrowing Base for more than 120 days does not exceed Two Million
Dollars ($2,000,000.00);
(ii) Such Mortgage Loan is covered by a Take-Out Commitment
which is in full force and effect, and Borrower and such Mortgage Loan
are in full compliance therewith; and
(iii) Such Mortgage Loan is secured by a first or second
priority Mortgage on Property consisting of a completed one-to-four
unit single family residence, including a condominium, planned unit
development, or townhouse; provided, however, that if such Mortgage
Loan is a Second Mortgage Loan or an Eligible High LTV Loan, such
Mortgage Loan may be included in the Tranche B Borrowing Base only if
the Unit Collateral Value of such Second Mortgage Loan or an Eligible
High LTV Loan when added to the Unit Collateral Value of all other
Second Mortgage Loans then included in the Tranche B Borrowing Base and
the Tranche A Borrowing Base and all Eligible High LTV Loans then
included in the Tranche B Borrowing Base does not exceed Five Million
Dollars ($5,000,000.00).
"Eligible Tranche C Mortgage Loan" means an Eligible Mortgage Loan
owned by Borrower with respect to which each of the following statements shall
be accurate and complete (and Borrower by including such Eligible Mortgage Loan
in any computation of the Collateral Value of the Tranche C Borrowing Base shall
be deemed to so represent to Agent and Lenders at and as of the date of such
computation):
(i) Such Mortgage Loan is an Eligible Mortgage Loan;
(ii) Such Mortgage Loan has not been included in the Tranche C
Borrowing Base for more than 360 days;
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(iii) Such Mortgage Loan is secured by a first Mortgage on
Property consisting of a Construction Home;
(iv) The Mortgage Note, Mortgage and other documents and
instruments evidencing such Mortgage Loan provide that the Mortgage
Loan will become a fully amortizing Mortgage Loan immediately upon
certification by the contractor and Borrower that the Construction Home
has been completed and is ready for occupancy;
(v) The Construction Home will be completed within nine (9)
months from the date on which construction commences;
(vi) Borrower has advanced to or for the benefit of Obligor,
at least ten percent (10%) of the stated principal amount of the
Mortgage Note evidencing such Mortgage Loan;
(vii) Such Mortgage Loan is not included in the Tranche A
Borrowing Base; and
(viii) Such Mortgage Loan, upon completion of the Construction
Home, shall be eligible for inclusion in the Tranche A Borrowing Base.
Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with the regulations from time to time
promulgated with respect thereto.
"ERISA Affiliate" means all members of the group of corporations and
trades or businesses (whether or not incorporated) which, together with
Borrower, are treated as a single employer under Section 414 of the Code.
"ERISA Plan" means any pension benefit plan subject to Title IV of
ERISA or Section 412 of the Code maintained or contributed to by Borrower or any
ERISA Affiliate with respect to which Borrower has a fixed or contingent
liability.
"Event of Default" means any of the events specified in Section 7.01
hereof, provided that any requirement in connection with such event for the
giving of notice or the lapse of time, or the happening of any further
condition, event or act has been satisfied.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100th of one percent) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers
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on such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (ii) if such rate
is not so published for any day, the Federal Funds Rate for such day shall be
the average rate quoted to Agent on such day on such transactions as determined
by Agent.
"FHA" means the Federal Housing Administration or any successor
thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation or any
successor thereto.
"Financing Lease" means (i) any lease of Property if the then present
value of the minimum rental commitment thereunder should, in accordance with
GAAP, be capitalized on a balance sheet of the lessee, and (ii) any other lease
obligations which are capitalized on a balance sheet of the lessee.
"Fiscal Quarter" means each period of three calendar months ending
March 31, June 30, September 30 and December 31 of each year.
"Fiscal Year" means each period of twelve calendar months ending
December 31 of each year.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
Funding Account" means the non-interest bearing demand checking account
established by Borrower with Agent to be used for (i) the initial deposit of
proceeds of Loans; and (ii) the funding or purchase of Mortgage Notes by
Borrower; provided that the Funding Account shall be pledged to Agent for the
benefit of Lenders and that Borrower shall not be entitled to withdraw funds
from the Funding Account and provided further that Agent will transfer funds as
directed by Borrower.
"GAAP" means those generally accepted accounting principles and
practices which are recognized as such by the Financial Accounting Standards
Board (or any generally recognized successor) and which, in the case of Borrower
and Guarantor and its Consolidated Subsidiaries, are applied for all periods
after the date hereof in a manner consistent with the manner in which such
principles and practices were applied to the financing statements described in
Section 4.07. If any change in any accounting principle or practice is required
by the Financial Accounting Standards Board (or any such successor) in order for
such principle or practice to continue as a generally accepted accounting
principle or practice, all reports and financial statements required hereunder
with respect to Borrower or with respect to Borrower and its Consolidated
Subsidiaries may be prepared in accordance with such change, but all
calculations and determinations to be made hereunder may be made in accordance
with such change only after notice of such change is given to each Lender and
Majority Lenders agree to such change insofar as it affects the accounting of
Borrower, Guarantor or of Guarantor and its Consolidated Subsidiaries.
"GNMA" means the Government National Mortgage Association or any
successor thereto.
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"Governmental Authority" means any nation or government, any agency,
department, state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Governmental Requirement" means any law, statute, code, ordinance,
order, rule, regulation, judgment, decree, injunction, franchise, permit,
certificate, license, authorization or other direction or requirement
(including, without limitation, any of the foregoing which relate to
environmental standards or controls, energy :regulations and occupational,
safety and health standards or controls) of any arbitrator, court or other
Governmental Authority, which exercises jurisdiction over any Related Person or
any of its Property.
"Guarantor" means NAB Asset Corporation, a Texas corporation, or any
other Person who has guaranteed some or all of the Obligations and who has been
accepted by Agent as a Guarantor.
"Guaranty" means the Guaranty in the form attached hereto as EXHIBIT
"I," as the same may from time to time be further supplemented, amended or
restated.
"Guaranty Obligation" of any Person means any contract, agreement or
understanding of such Person pursuant to which such Person guarantees, or in
effect guarantees, any Indebtedness, lease, dividends or other obligations (the
"Primary Obligations") of any other Person (the "Primary Obligor") in any
manner, whether directly or indirectly, contingently or absolutely, in whole or
in part, including without limitation agreements:
(i) to purchase such Primary Obligation or any property
constituting direct or indirect security therefor;
(ii) to advance or supply funds (A) for the purchase or
payment of any such Primary Obligation, or (B) to maintain working
capital or other balance sheet conditions of the Primary Obligor or
otherwise to maintain the net worth or solvency of the Primary Obligor;
(iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such Primary Obligation of
the ability of the Primary Obligor to make payment of such Primary
Obligation; or
(iv) otherwise to assure or hold harmless the owner of any
such Primary Obligation against loss in respect thereof;
provided, that "Guaranty Obligation" shall not include endorsements that are
made in the ordinary course of business of negotiable instruments or documents
for deposit or collection. The amount of any Guaranty Obligation shall be deemed
to be the maximum amount for which the guarantor may be liable pursuant to the
agreement that governs such Guaranty Obligation, unless such maximum amount is
not stated or determinable, in which case the amount of such obligation shall be
the maximum reasonably anticipated liability thereon, as determined by such
guarantor in good faith.
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"Indebtedness" of any Person at a particular date means the sum
(without duplication) at such date of (i) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property or services or
which is evidenced by a note, bond, debenture, or similar instrument, (ii) all
obligations of such Person under any Financing Lease, (iii) all obligations of
such Person in respect of letters of credit, acceptances, or similar obligations
issued or created for the account of such Person, (iv) all Guaranty Obligations
of such Person, (v) all liabilities secured by any Lien on any property owned by
such Person, whether or not such Person has assumed or otherwise become liable
for the payment thereof, and (vi) any liability of such Person or any Affiliate
thereof in respect of unfunded vested benefits under an ERISA Plan.
"Investor" means either a Tranche A Investor or a Tranche B investor.
"Jumbo Loan" means a Mortgage Loan for which the original unpaid
principal amount of the underlying Mortgage Note is greater than $350,000 but
does not exceed $600,000.
"Late Payment Rate" means, at the time in question, four percent (4%)
per annum plus the Applicable Rate then in effect.
"Lenders" means each signatory hereto (other than Borrower and
Guarantor), including Bank United in its capacity as a Lender hereunder rather
than as Agent, and the successors of each as holder of a Note (or a portion
thereof) that has been transferred in accordance with Section 10.11.
"LIBOR Rate" means a rate of interest equal to the London Interbank
Offered Rate for U. S. dollar deposits as quoted by Telerate, Bloomberg or any
other rate quoting service, selected by Agent in its sole discretion for an
interest period of one month. In the event such rate ceases to be published,
LIBOR Rate shall mean a comparable rate of interest reasonably selected by
Agent.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (whether statutory or otherwise), or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction in respect of any of the foregoing).
"Loan" means a Tranche A Loan, Tranche B Loan, Tranche C Loan, Tranche
D Loan or Swing-Line Loan as applicable. "Loans" means all Tranche A Loans,
Tranche B Loans, Tranche C Loans, Tranche D Loans and Swing-Line Loans.
"Loan Document" means any, and "Loan Documents" shall mean all, of this
Agreement, the Notes, the Swing-Line Note, the Security Instruments and any and
all other agreements or instruments now or hereafter executed and delivered by
Borrower, Guarantor, or any other Person in connection with, or as security for
the payment or performance of any or all of the Obligations, as any of such may
be renewed, amended or supplemented from time to time.
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"Majority Lenders" means Lenders collectively having Percentage Shares
totaling in the aggregate at least sixty-six and two-thirds percent (66 2/3%).
"Manufactured Home" means a structure, transportable in one or more
sections, which is built on a permanent basis and designed to be used as a
dwelling with a permanent foundation when affixed to real property and connected
to the required utilities, including, without limitation, plumbing and
electrical systems.
"Market Value" at any time shall be determined by Agent, in its sole
discretion, based upon (a) information then available to Agent regarding quotes
to dealers for the purchase of mortgage notes similar to the Mortgage Notes that
have been delivered to Agent pursuant to this Agreement or (b) sales prices
actually received by Borrower for mortgage notes sold by Borrower during the
immediately preceding thirty (30) day period similar to the Mortgage Notes that
have been delivered to Agent pursuant to this Agreement.
"Material Adverse Effect" means any material adverse effect on (i) the
validity or enforceability of this Agreement, the Notes or any other Loan
Document, (ii) the business, operations, total Property or financial condition
of any Related Person, (iii) the collateral under any Security Instrument, or
(iv) the ability of any Related Person to fulfill its obligations under this
Agreement, the Notes, or any other Loan Document to which it is a party.
"Maximum Rate" means, with respect to each Lender, the maximum
nonusurious rate of interest that such Lender is permitted under applicable law
to contract for, take, charge, or receive with respect to its Loans. All
determinations herein of the Maximum Rate, or of any interest rate determined by
reference to the Maximum Rate, shall be made separately for each Lender as
appropriate to assure that the Loan Documents are not construed to obligate any
Person to pay interest to any Lender at a rate in excess of the Maximum Rate
applicable to such Lender.
"Monthly Average LIBOR Rate" means the average of all LIBOR Rates
quoted during a given month. In the event (i) the Note is paid in full and the
Commitment is terminated prior to a month end; or (ii) the initial Advance
hereunder occurs on a date other than the first day of that month on which LIBOR
Rates are quoted, the Monthly Average LIBOR Rate shall mean, in the case of
clause (i), the average of all LIBOR Rates quoted that month up to and including
the last Business Day prior to such payment in full; or, in the case of clause
(ii), the LIBOR Rates quoted on the date of the initial Advance through the end
of that month.
"Mortgage" means a mortgage or deed of trust, on standard forms in form
and substance satisfactory to Agent, securing a Mortgage Note and granting a
perfected first or second priority lien on residential real property consisting
of land and either a Construction Home thereon or a single-family dwelling
thereon which is completed and ready for occupancy.
"Mortgage Assignment" means an instrument duly executed and in
recordable form assigning a mortgage, in blank and like all intervening
instruments that have been executed with respect to such Mortgage and which is
in form acceptable to Agent and satisfies all Requirements of Law.
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"Mortgage Collateral" means all Mortgage Notes (i) which are made
payable to the order of Borrower or have been endorsed (without restriction or
limitation) payable to the order of Borrower, (ii) in which Agent has been
granted and continues to hold a perfected first priority security interest,
(iii) which are in form and substance acceptable to Agent in its reasonable
discretion, (iv) which are secured by Mortgages, and (v) with respect to Tranche
A Eligible Mortgage Loans and Tranche B Eligible Mortgage Loans, conform in all
respects with all the requirements for purchase of such Mortgage Notes under the
Take-Out Commitments and are valid and enforceable in accordance with their
respective terms.
"Mortgage Loan" means a one-to-four-family mortgage loan which is
evidenced by a Mortgage Note and secured by a Mortgage, together with the rights
and obligations of a holder thereof and payments thereon and proceeds therefrom.
"Mortgage Note" means the Note or other evidence of indebtedness
evidencing the indebtedness of an Obligor under a Mortgage Loan.
"Note" means any promissory note delivered by Borrower to a Lender
pursuant to Section 2.02 in the form attached hereto as EXHIBIT "A-1," and all
renewals, modifications and extensions thereof. "Notes" means collectively each
Lender's Note.
"Obligations" means all present and future Indebtedness, obligations,
and liabilities of Borrower to Agent or any Lender, and all renewals and
extensions thereof, or any part thereof, arising pursuant to this Agreement or
any other Loan Document, and all interest accrued thereon, and reasonable
attorneys' fees and other costs incurred in the drafting, negotiation,
enforcement or collection thereof, regardless of whether such indebtedness,
obligations, and liabilities are direct, indirect, fixed contingent, joint,
several or joint and several.
"Obligor" means the Person or Persons obligated to pay the Indebtedness
which is the subject of a Mortgage Loan.
"Operating Account" means the non-interest bearing demand checking
account established by Borrower with Agent to be used for Borrower's operations.
"Past Due Loan" means a Mortgage Loan owned by Borrower with respect to
which each of the following statements shall be accurate and complete (and
Borrower by including such Past Due Loan in any computation of the Collateral
Value of the Tranche D Borrowing Base shall be deemed to so represent to Agent
and Lenders at and as of the date of such computation):
(i) Such Mortgage Loan meets all the requirements set forth in
the definition of an Eligible Mortgage Loan except clause (iv) of such
definition;
(ii) Two or more payments under such Mortgage Loan are more
than thirty (30) days past due the payment due date set forth in the
underlying Mortgage Note and Mortgage;
(iii) Such Mortgage Loan shall not have been included in the
Tranche D Borrowing Base for more than an aggregate period of 360 days;
and
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(iv) Such Mortgage Loan is secured by a first or second
priority Mortgage on Property consisting of a completed one-to-four
unit family residence, including a condominium, planned unit
development or townhouse.
"PBGC" means the Pension Benefit Guaranty Corporation or any
Governmental Authority succeeding to any of its functions.
"Percentage Share" means, with respect to any Lender (a) when used in
Section 2.01, in any Borrowing Request or when no Loans are outstanding
hereunder, the percentage set forth opposite such Lender's name on the signature
pages of this Agreement, and (b) when used otherwise, the percentage obtained by
dividing (i) the sum of the unpaid principal balance of such Lender's Loans at
the time in question by (ii) the sum of the aggregate unpaid principal balance
of all Loans at such time.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, limited liability company, trust,
unincorporated organization, Governmental Authority, or any other form of
entity.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Regulation D" means Regulation D issued by the Board of Governors of
the Federal Reserve System as in effect from time to time.
"Regulation U" means Regulation U issued by the Board of Governors of
the Federal Reserve System as in effect from time to time.
"Regulation X" means Regulation X issued by the Board of Governors of
the Federal Reserve System as in effect from time to time.
"Related Persons" means Borrower, Guarantor and each of Borrower's
Subsidiaries.
"REO" means any interest in real property and the improvements thereon
owned by Borrower as a result of the foreclosure or transfer in lieu of
foreclosure of a Mortgage Loan.
"Reportable Event" means (1) a reportable event described in Sections
4043(b)(5) or (6) of ERISA or the regulations promulgated thereunder, or (2) any
other reportable event described in Section 4043(b) of ERISA or the regulations
promulgated thereunder other than a reportable event not subject to the
provision for 30-day notice to the PBGC pursuant to a waiver by the PBGC under
Section 4043(a) of ERISA.
"Repurchased Defaulted Mortgage" means a defaulted Mortgage Loan
repurchased by Borrower from an investor or out of a pool of Mortgage Loans
pursuant to Borrower's contractual obligation or election by Borrower to do so.
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"Required Mortgage Documents" means as to any Mortgage Loan, the items
described on SCHEDULE A to the Security Agreement.
"Requirement of Law" as to any Person means the charter and by-laws or
other organizational or governing documents of such Person, and any law,
statute, code, ordinance, order, rule, regulation, judgment, decree, injunction,
franchise, permit, certificate, license, authorization or other determination,
direction or requirement (including, without limitation, any of the foregoing
which relate to environmental standards or controls, energy regulations and
occupational, safety and health standards or controls) of any arbitrator, court
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its Property or to which such Person or any of its Property is
subject.
"Reserve Percentage" means the maximum reserve requirement, as
determined by Agent (including without limitation any basic, supplemental,
marginal, emergency or similar reserves), expressed as a percentage and rounded
to the next higher 0.01%, which would then apply to a member bank of the Federal
Reserve System under Regulation D, with deposits comparable in amount to those
held by Agent, with respect to "Eurocurrency liabilities" (as such term is
defined in Regulation D). If such reserve requirement shall change after the
date hereof, the Reserve Percentage shall be automatically increased or
decreased, as the case may be, from time to time as of the effective time of
each such change in such reserve requirement.
"Risk Rating" means the risk rating of a Mortgage Loan determined by
the underwriting guidelines of Borrower or other applicable standards of an
Investor to which such Mortgage Loan is to be sold by the Borrower under a
Take-Out Commitment, provided that such underwriting guidelines or other
applicable standards comply with industry standards in the sole judgment of
Agent.
"Second Mortgage Loan" means a Mortgage Loan secured by a second
priority Mortgage, which Mortgage Loan has a combined loan-to-value ratio at
origination (taking into account the full outstanding principal balance secured
by the first priority Mortgage) not in excess of one hundred percent (100%)
using the appraised value of the single-family dwelling described in such
Mortgage according to the appraisal obtained in connection with the origination
of such second priority Mortgage Loan.
"Security Agreement" means the Security and Collateral Agency Agreement
between Borrower and Agent in the form attached hereto as EXHIBIT "E," as the
same may from time to time be further supplemented, amended or restated.
"Security Instrument" means (i) the Security Agreement and (ii) such
other executed documents as are or may be necessary to grant to Agent a
perfected first prior and continuing security interest in and to all Mortgage
Collateral, and any and all other agreements or instruments now or hereafter
executed and delivered by Borrower in connection with, or as security for the
payment or performance of, all or any of the Obligations, including Borrower's
obligations under the Notes and this Agreement, as such agreements may be
amended, modified or supplemented from time to time.
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"Servicing Agreements" means all agreements between Borrower and
Persons other than Borrower pursuant to which Borrower undertakes to service
Mortgage Loans.
"Servicing Records" means all contracts and other documents, books,
records and other information (including without limitation, computer programs,
tapes, discs, punch cards, data processing software and related property and
rights) maintained with respect to the Servicing Rights.
"Servicing Rights" means all of Borrower's right, title and interest in
and under the Servicing Agreements, including, without limitation, the rights of
Borrower to income and reimbursement thereunder.
"Settlement Account" means the non-interest bearing demand checking
account established by Borrower with Agent to be used for (i) the deposit of
proceeds from the sale of Mortgage Collateral; and (ii) the payment of the
Obligations; provided that (a) the Settlement Account shall be pledged to Agent
for the benefit of Lenders, (b) Borrower shall not be entitled to withdraw funds
from the Settlement Account, (c) as long as no Event of Default has occurred and
is continuing, to the extent that the deposit of proceeds from the sale of
Mortgage Loans exceeds the Unit Collateral Value of such Mortgage Loans and any
payments then due and owing under this Agreement or the Notes, Agent shall
transfer such excess amount to the Operating Account, and (d) if at any time the
aggregate amount of funds in the Settlement Account is insufficient to pay any
and all payments due and owing under this Agreement or the Notes (such amount
being referred to as the "Deficiency"), Agent shall transfer an amount equal to
the Deficiency from the Operating Account to the Settlement Account.
"Submission List" means a list in the form of SCHEDULE I to the form of
Borrowing Request.
"Subordinated Debt" means unsecured Indebtedness of Borrower which
matures at least twelve (12) months after the Drawdown Termination Date and is
subject to a subordination agreement in form and substance satisfactory to Agent
in its sole and absolute discretion, which subordination agreement shall provide
for, among other things, a prohibition on (i) principal payments of such
Indebtedness until the Obligations are paid in full and all commitments of
Lenders to advance funds hereunder have terminated, (ii) interest payments on
such Indebtedness if a Default is then continuing or would arise as a result of
such payment and (iii) the exercise of any rights or remedies by the
subordinating creditor against Borrower, Guarantor (if Guarantor is not the
subordinating creditor) or any of the Collateral until such time as the
obligations have been paid in full.
"Subsidiary" means, with respect to any Person, any corporation,
association, partnership, joint venture, or other business or corporate entity,
enterprise or organization which is directly or indirectly (through one or more
intermediaries) controlled by or owned fifty percent or more by such Person.
"Super-Jumbo Loan" means a Mortgage Loan for which the original
principal amount of the underlying Mortgage Note is greater than $600,000 but
does not exceed $1,000,000.
"Swing-Line Loan" means a loan made by Bank United to Borrower pursuant
to Section 2.01(e).
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"Swing-Line Note" means the promissory note delivered by Borrower to
Bank United pursuant to Section 2.02 in the form attached hereto as EXHIBIT
"A-2," and all renewals, modifications, and extensions thereof.
"Take-Out Commitment" means (a) with respect to any Eligible Tranche A
Mortgage Loan, a written commitment of an Investor to purchase such Mortgage
Loan on terms satisfactory to Agent, in its sole discretion and, (b) with
respect to any Eligible Tranche B Mortgage Loan, a written master commitment or
a loan specific commitment of an Investor to purchase Mortgage Collateral on
terms satisfactory to Agent, in its sole discretion.
"Termination Event" means (1) the occurrence with respect to any ERISA
Plan of a Reportable Event, (2) the withdrawal of the Borrower or any ERISA
Affiliate from a plan during a plan year in which it was a "substantial
employer," as defined in Section 4001(a)(2) of ERISA, (3) the distribution to
affected parties of a notice of intent to terminate any ERISA Plan or the
treatment of any ERISA Plan amendment as a termination under Section 4041 of
ERISA, (4) the institution of proceedings to terminate any ERISA Plan by the
PBGC under Section 4042 of ERISA, or (5) any other event or condition which
might constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any ERISA Plan.
"Total Liabilities" of any Person means, as of any date, all amounts
which would be included as liabilities on a balance sheet of such Person as of
such date prepared in accordance with GAAP; provided however, that as to the
Subordinated Debt only, the Total Liabilities of Borrower shall exclude the
aggregate principal amount outstanding as of such date of the Subordinated Debt.
"Tranche A Borrowing Base" means at any date all Eligible Tranche A
Mortgage Loans which have been delivered to and held by Agent or otherwise
identified as Mortgage Collateral.
"Tranche A Investor" means any Person listed on EXHIBIT "F-1", as such
exhibit may be updated or supplemented from time to time; provided, however,
that Agent shall deliver a list of all Persons approved as Tranche A Investors
by Agent to Lenders upon each amendment of such exhibit by Agent, and a Tranche
A Investor shall be removed from such list upon the written direction of
Majority Lenders.
"Tranche A Loan" has the meaning given it in Section 2.01(a).
"Tranche B Borrowing Base" means at any date all Eligible Tranche B
Mortgage Loans which have been delivered to and held by Agent or otherwise
identified as Mortgage Collateral.
"Tranche B Investor" means any Person listed on EXHIBIT "F-2", as such
exhibit may be amended or supplemented from time to time; provided, however,
that Agent shall deliver a list of all Persons approved as Tranche B Investors
by Agent to Lenders upon each amendment of such exhibit by Agent, and a Tranche
B Investor shall be removed from such list upon the written direction of
majority Lenders.
"Tranche B Loan" has the meaning given it in Section 2.01(b).
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"Tranche C Borrowing Base" means at any date all Eligible Tranche C
Mortgage Loans, which have been delivered to and held by Agent or otherwise
identified as Mortgage Collateral.
"Tranche C Loan" has the meaning given it in Section 2.01(c).
"Tranche C Sublimit" means Twelve Million Dollars ($12,000,000.00).
"Tranche D Borrowing Base" means at any date all Eligible REO, Eligible
Repurchased Defaulted Mortgages, Delinquent Loans, and Past Due Loans which have
been delivered to and held by Agent or otherwise identified as Collateral.
"Tranche D Loan" has the meaning given it in Section 2.01(d).
"Tranche D Sublimit" means Two Million Five Hundred Thousand Dollars
($2,500,000.00).
"UCC" means the Texas Uniform Commercial Code, as the same may
hereafter be amended.
"Unadjusted Tranche A Portion" means, on any date of determination, the
aggregate principal amount of the Tranche A Loans which is in excess of the
Adjusted Tranche A Portion.
"Unadjusted Tranche B Portion" means, on any date of determination, the
aggregate principal amount of the Tranche B Loans which is in excess of the
Adjusted Tranche B Portion.
"Unadjusted Tranche C Portion" means on any date of determination, the
aggregate principal amount of the Tranche C Loans which is in excess of the
Adjusted Tranche C Portion.
"Unit Collateral Value" means
(a) with respect to each Eligible Tranche A Mortgage Loan or Eligible
Tranche B Mortgage Loan included in the Tranche A Borrowing Base or Tranche B
Borrowing Base, as applicable, for not more than 120 days, that is not a Second
Mortgage Loan or an Eligible High LTV Loan, ninety-eight percent (98%) of the
least of: (i) the outstanding principal balance of the Mortgage Note
constituting such Mortgage Loan; (ii) the actual out-of-pocket cost to Borrower
of such Mortgage Loan minus the amount of principal paid under such mortgage
Loan and delivered to Agent for application to the prepayment of the Loans;
(iii) the amount at which an Investor has committed to purchase the Mortgage
Loan pursuant to a Take-Out Commitment not to exceed 100% of the original
principal balance of the Mortgage Note; or (iv) the Market Value of the Mortgage
Note constituting such mortgage Loan; and
(b) with respect to each Eligible Tranche A Mortgage Loan or Eligible
Tranche B Mortgage Loan included in the Tranche A Borrowing Base or Tranche B
Borrowing Base, as applicable, more than 120 days but not in excess of 150 days,
that is not a Second Mortgage Loan or an Eligible High LTV Loan, ninety percent
(90%) of the least of: (i) the outstanding principal balance of the Mortgage
Note constituting such Mortgage Loan; (ii) the actual out-of-pocket cost to
Borrower of such Mortgage Loan minus the amount of principal paid under such
Mortgage Loan and delivered to Agent for application to the prepayment of the
Loans; (iii) the amount at which an
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Investor has committed to purchase the Mortgage Loan pursuant to a Take-Out
Commitment not to exceed 100% of the original principal balance of the Mortgage
Note; or (iv) the Market Value of the Mortgage Note constituting such Mortgage
Loan; and
(c) with respect to each Eligible Tranche A Mortgage Loan or Eligible
Tranche B Mortgage Loan included in the Tranche A Borrowing Base or Tranche B
Borrowing Base, as applicable, more than 150 days but not in excess of 180 days,
that is not a Second Mortgage Loan or an Eligible High LTV Loan, eighty percent
(80%) of the least of: (i) the outstanding principal balance of the Mortgage
Note constituting such Mortgage Loan; (ii) the actual out-of-pocket cost to
Borrower of such Mortgage Loan minus the amount of principal paid under such
Mortgage Loan and delivered to Agent for application to the prepayment of the
Loans; (iii) the amount at which an Investor has committed to purchase the
Mortgage Loan pursuant to a Take-Out Commitment not to exceed 100% of the
original principal balance of the Mortgage Note; or (iv) the Market Value of the
Mortgage Note constituting such Mortgage Loan; and
(d) with respect to each Eligible Tranche A Mortgage Loan or Eligible
Tranche B Mortgage Loan included in the Tranche A Borrowing Base or Tranche B
Borrowing Base, as applicable, more than 180 days but not in excess of 270 days,
that is not a Second Mortgage Loan or an Eligible High LTV Loan, seventy percent
(70%) of the least of: (i) the outstanding principal balance of the Mortgage
Note constituting such Mortgage Loan; (ii) the actual out-of-pocket cost to
Borrower of such Mortgage Loan minus the amount of principal paid under such
Mortgage Loan and delivered to Agent for application to the prepayment of the
Loans; (iii) the amount at which an Investor has committed to purchase the
Mortgage Loan pursuant to a Take-Out Commitment not to exceed 100% of the
original principal balance of the Mortgage Note; or (iv) the Market Value of the
Mortgage Note constituting such Mortgage Loan; and
(e) with respect to each Eligible Tranche A Mortgage Loan or Eligible
Tranche B Mortgage Loan included in the Tranche A Borrowing Base or Tranche B
Borrowing Base, as applicable, for not more than 120 days, that is a Second
Mortgage Loan or an Eligible High LTV Loan, ninety percent (90%) of the least
of: (i) the outstanding principal balance of the Mortgage Note constituting such
Mortgage Loan; (ii) the actual out-of-pocket cost to Borrower of such Mortgage
Loan minus the amount of principal paid under such mortgage Loan and delivered
to Agent for application to the prepayment of the Loans; (iii) the amount at
which an Investor has committed to purchase the Mortgage Loan pursuant to a
Take-Out Commitment not to exceed 100% of the original principal balance of the
Mortgage Note; or (iv) the Market Value of the Mortgage Note constituting such
mortgage Loan; and
(f) with respect to each Eligible Tranche A Mortgage Loan or Eligible
Tranche B Mortgage Loan included in the Tranche A Borrowing Base or Tranche B
Borrowing Base, as applicable, more than 120 days but not in excess of 150 days,
that is a Second Mortgage Loan or an Eligible High LTV Loan, eighty percent
(80%) of the least of: (i) the outstanding principal balance of the Mortgage
Note constituting such Mortgage Loan; (ii) the actual out-of-pocket cost to
Borrower of such Mortgage Loan minus the amount of principal paid under such
Mortgage Loan and delivered to Agent for application to the prepayment of the
Loans; (iii) the amount at which an Investor has committed to purchase the
Mortgage Loan pursuant to a Take-Out Commitment not to
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exceed 100% of the original principal balance of the Mortgage Note; or (iv) the
Market Value of the Mortgage Note constituting such Mortgage Loan; and
(g) with respect to each Eligible Tranche A Mortgage Loan or Eligible
Tranche B Mortgage Loan included in the Tranche A Borrowing Base or Tranche B
Borrowing Base, as applicable, more than 150 days but not in excess of 180 days,
that is a Second Mortgage Loan or an Eligible High LTV Loan, seventy percent
(70%) of the least of: (i) the outstanding principal balance of the Mortgage
Note constituting such Mortgage Loan; (ii) the actual out-of-pocket cost to
Borrower of such Mortgage Loan minus the amount of principal paid under such
Mortgage Loan and delivered to Agent for application to the prepayment of the
Loans; (iii) the amount at which an Investor has committed to purchase the
Mortgage Loan pursuant to a Take-Out Commitment not to exceed 100% of the
original principal balance of the Mortgage Note; or (iv) the Market Value of the
Mortgage Note constituting such Mortgage Loan; and
(h) with respect to each Eligible Tranche A Mortgage Loan or Eligible
Tranche B Mortgage Loan included in the Tranche A Borrowing Base or Tranche B
Borrowing Base, as applicable, more than 180 days but not in excess of 270 days,
that is a Second Mortgage Loan or an Eligible High LTV Loan, sixty percent (60%)
of the least of: (i) the outstanding principal balance of the Mortgage Note
constituting such Mortgage Loan; (ii) the actual out-of-pocket cost to Borrower
of such Mortgage Loan minus the amount of principal paid under such Mortgage
Loan and delivered to Agent for application to the prepayment of the Loans;
(iii) the amount at which an Investor has committed to purchase the Mortgage
Loan pursuant to a Take-Out Commitment not to exceed 100% of the original
principal balance of the Mortgage Note; or (iv) the Market Value of the Mortgage
Note constituting such Mortgage Loan; and
(i) with respect to each Eligible Tranche C Mortgage Loan included in
the Tranche C Borrowing Base, ninety percent (90%) of the least of: (i) the
outstanding principal balance of the Mortgage Note constituting such Eligible
Tranche C Mortgage Loan; (ii) if such Eligible Tranche C Mortgage Loan is
subject to a Take-Out Commitment, the amount at which an Investor has committed
to purchase the Eligible Tranche C Mortgage Loan pursuant to a Take-Out
Commitment not to exceed 100% of the original principal balance of the Mortgage
Note; and (iii) the Market Value of the Mortgage Note constituting such Eligible
Tranche C Mortgage Loan; and
(j) with respect to each Eligible REO included in the Tranche D
Borrowing Base, fifty percent (50%) of the least of: (i) the appraised value of
the Eligible REO at the time of acquisition by Borrower; (ii) the acquisition
cost to Borrower of such Eligible REO; or (iii) the Market Value of such
Eligible REO; and
(k) with respect to each Eligible Repurchased Defaulted Mortgage or
Delinquent Loan included in the Tranche D Borrowing Base, seventy percent (70%)
of the least of: (i) the outstanding principal balance of the Mortgage Note
constituting such Eligible Repurchased Defaulted Mortgage or Delinquent Loan;
(ii) the actual out-of-pocket cost to Borrower for the repurchase of such
Eligible Repurchased Defaulted Mortgage Note or Delinquent Loan; or (iii) the
Market Value of the Mortgage Note constituting such Eligible Repurchased
Defaulted Mortgage or Delinquent Loan; provided that the Unit Collateral Value
of any Delinquent Loan shall not be changed in the event any past-due payments
under such Mortgage Loan are brought current;
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(l) with respect to each Past Due Loan included in the Tranche D
Borrowing Base, fifty percent (50%) of the least of (i) the outstanding
principal balance of the Mortgage Note constituting such Past Due Loan, (ii) the
actual out-of-pocket cost to Borrower of such Past Due Loan minus the amount of
principal paid under such Past Due Loan and delivered to Agent for application
to the prepayment of the Loans; or (iii) the Market Value of the Mortgage Note
constituting such Past Due Loan.
"VA" means the Department of Veteran's Affairs and any successor
thereto.
Section I.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the above-defined meanings when used in the Notes or any
other Loan Document, certificate, report or other document made or delivered
pursuant hereto.
(b) Each term defined in the singular form in Section 1.01 shall mean
the plural thereof when the plural form of such term is used in this Agreement,
the Notes or any other Loan Document, certificate, report or other document made
or delivered pursuant hereto, and each term defined in the plural form in
Section 1.01 shall mean the singular thereof when the singular form of such term
is used herein or therein.
(c) The words "hereof," "herein," "hereunder" and similar terms when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and section, subsection, schedule and
exhibit references herein are references to sections, subsections, schedules and
exhibits to this Agreement unless otherwise specified. The word "or" is not
exclusive, and the word "including" (in its various:; forms) means "including
without limitation.
(d) Unless the context otherwise requires or unless otherwise provided
herein the terms defined in this Agreement which refer to a particular
agreement, instrument or document also refer to and include all renewals,
extensions, modifications, amendments and restatements of such agreement,
instrument or document, provided that nothing contained in this section shall be
construed to authorize any such renewal, extension, modification, amendment or
restatement.
(e) As used herein, in the Notes or in any other Loan Document,
certificate, report or other document made or delivered pursuant hereto,
accounting terms relating to any Person and not specifically defined in this
Agreement or therein shall have the respective meanings given to them under
GAAP.
Section I.3 Exhibits and Schedules. All Exhibits and Schedules attached
to this Agreement are a part hereof for all purposes.
Section I.4 Calculations and Determinations. All calculations under the
Loan Documents of interest and of fees shall be made on the basis of actual days
elapsed (including the first day but excluding the last) and a year of 360 days.
Each determination by Agent or a Lender of amounts to be paid under Sections
2.08 through 2.11 or any other matters which are to be determined hereunder
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by Agent or a Lender (such as any LIBOR Rate, Business Day, or Reserve
Percentage) shall, in the absence of manifest error, be conclusive and binding.
Unless otherwise expressly provided herein or unless Agent otherwise consents
all financial statements and reports furnished to Agent or any Lender hereunder
shall be prepared and all financial computations and determinations pursuant
hereto shall be made in accordance with GAAP. The Agent shall deliver to
Borrower an interest billing statement for each month on or before the fifteenth
day of the next succeeding month, which interest billing statement shall set
forth the interest accrued on the Loans for such month; provided that any
failure or delay in delivering such interest billing or any inaccuracy therein
shall not affect the Obligations.
ARTICLE II
AMOUNT OF TERMS OF CREDITS
Section II.1 Commitment and Loans.
(a) Tranche A Loans. Subject to the terms and conditions contained in
this Agreement, each Lender agrees to make loans ("Tranche A Loans") to Borrower
on a revolving credit basis from time to time on any Business Day from the date
of this Agreement through the Drawdown Termination Date. Each request for
Tranche A Loans pursuant to a Borrowing Request shall be in an aggregate amount
of not less than $10,000. The aggregate principal amount of any Lender's Tranche
A Loans at any time outstanding (after giving effect to the other transactions
contemplated by the Borrowing Request pursuant to which a Tranche A Loan is
requested) shall not exceed the lesser of: (1) such Lender's Percentage Share of
the Collateral Value of the Tranche A Borrowing Base or (2) such Lender's
Percentage Share of the Commitment reduced by the sum of (A) such Lender's
Percentage Share of all Tranche B Loans outstanding at such time, (B) such
Lender's Percentage Share of all Tranche C Loans outstanding at such time, and
(C) such Lender's Percentage Share of all Tranche D Loans outstanding at such
time. At no time shall the aggregate amount of all Loans outstanding at any time
exceed the lesser of (1) the Aggregate Collateral Value of the Borrowing Base,
and (2) the Commitment at such time.
(b) Tranche B Loans. Subject to the terms and conditions contained in
this Agreement, each Lender agrees to make loans ("Tranche B Loans") to Borrower
on a revolving credit basis from time to time on any Business Day from the date
of this Agreement through the Drawdown Termination Date. Each request for
Tranche B Loans pursuant to a Borrowing Request shall be in an aggregate amount
of not less than $10,000. The aggregate principal amount of any Lender's Tranche
B Loans at any time outstanding (after giving effect to the other transactions
contemplated by the Borrowing Request pursuant to which a Tranche B Loan is
requested) shall not exceed the lesser of: (1) such Lender's Percentage Share of
the Collateral Value of the Tranche B Borrowing Base or (2) such Lender's
Percentage Share of the Commitment reduced by the sum of (A) such Lender's
Percentage Share of all Tranche A Loans outstanding at such time, (B) such
Lender's Percentage Share of all Tranche C Loans outstanding at such time, and
(C) such Lender's Percentage Share of all Tranche D Loans outstanding at such
time. At no time shall the aggregate amount of all Loans outstanding at any time
exceed the lesser of (1) the Aggregate Collateral Value of the Borrowing Base,
and (2) the Commitment at such time.
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(c) Tranche C Loans. Subject to the terms and conditions contained in
this Agreement, each Lender agrees to make loans ("Tranche C Loans") to Borrower
to finance the draws advanced from time to time by Borrower pursuant to Eligible
Tranche C Mortgage Loans. Tranche C Loans shall be made on a revolving credit
basis from time to time on any Business Day from the date of this Agreement
through the Drawdown Termination Date. Each request for Tranche C Loans pursuant
to a Borrowing Request shall be in an aggregate amount of not less than $10,000.
The aggregate principal amount of any Lender's Tranche C Loans at any time
outstanding (after giving effect to the other transactions contemplated by the
Borrowing Request pursuant to which a Tranche C Loan is requested) shall not
exceed the lesser of: (1) such Lender's Percentage Share of the Collateral Value
of the Tranche C Borrowing Base or (2) such Lender's Percentage Share of the
Tranche C Sublimit. At no time shall the aggregate amount of all Tranche C Loans
outstanding at any time exceed the lesser of (1) the Collateral Value of the
Tranche C Borrowing Base and (2) the Tranche C Sublimit. At no time shall the
aggregate amount of all Loans outstanding at any time exceed the lesser of (1)
the Aggregate Collateral Value of the Borrowing Base, and (2) the Commitment at
such time.
(d) Tranche D Loans. Subject to the terms and conditions contained in
this Agreement, each Lender agrees to make loans ("Tranche D Loans") to Borrower
on a revolving credit basis from time to time on any Business Day from the date
of this Agreement through the Drawdown Termination Date. Each request for
Tranche D Loans pursuant to a Borrowing Request shall be in an aggregate amount
of not less than $30,000.00. The aggregate principal amount of any Lender's
Tranche D Loans at any time outstanding (after giving effect to the other
transactions contemplated by the Borrowing Request pursuant, to which a Tranche
D Loan is requested) shall not exceed the lesser of: (1) such Lender's
Percentage Share of the Collateral Value of the Tranche D Borrowing Base or (2)
such Lender's Percentage Share of the Tranche D Sublimit. At no time shall the
aggregate amount of all Tranche D Loans outstanding at any time exceed the
lesser of (1) the Collateral Value of the Tranche D Borrowing Base and (2) the
Tranche D Sublimit. At no time shall the aggregate amount of all Loans
outstanding at any time exceed the lesser of (1) the Aggregate Collateral Value
of the Borrowing Base, and (2) the Commitment at such time.
(e) Discretionary Swing-Line Loans. Subject to the terms and conditions
of this Agreement, until the Drawdown Termination Date, Bank United, in its sole
discretion, may lend to Borrower at such times and in such amounts as Borrower
shall request, up to an aggregate principal amount outstanding equal to
$9,000,000. Bank United will not make a Swing-Line Loan if either (i) after
giving effect thereto, the aggregate amount of all Loans outstanding would
exceed the lesser of (1) the Aggregate Collateral Value of the Borrowing Base or
(2) the Commitment or (ii) one or more of the conditions precedent set forth in
Article 3 for the making of any Loan have not been satisfied.
Section II.2 Promissory Notes; Interest on the Notes. The Loans made by
each Lender pursuant to Section 2.01(a), (b), (c) or (d) shall be evidenced by a
Note payable to the order of such Lender. The Swing-Line Loans made by Bank
United pursuant to Section 2.01(e) shall be evidenced by the Swing-Ling Note.
Each Lender's Loans (exclusive of any past due principal) from time to time
outstanding shall bear interest on each day outstanding at the Applicable Rate
in effect on such day; provided, however, that the portion of such Lender's
Loans which is equal to the Balance Funded Amount for such Lender computed for
the immediately preceding Balance Calculation
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Period, shall bear interest on each day outstanding at the Balance Funded Rate.
Each Lender which has any Balance Funded Amount for any Balance Calculation
Period shall provide Agent written notice of such Balance Funded Amount not
later than two Business Days after the end of such Balance Calculation Period,
and Agent shall be entitled to rely on the accuracy of such notice in
calculating the interest accrued for such Balance Calculation Period. For any
Lender which has a Balance Funded Amount, the Balance Funded Rate shall apply
first to such Lender's Tranche D Loans, second to such Lender's Unadjusted
Tranche C Loans, third to such Lender's Unadjusted Tranche B Portion, fourth to
such Lender's Unadjusted Tranche A Portion, fifth to such Lender's Adjusted
Tranche C Portion, sixth to such Lender's Adjusted Tranche B Portion, and last
to such Lender's Adjusted Tranche A Portion. All past due principal of and past
due interest on each Lender's Loans shall bear interest on each day at the Late
Payment Rate in effect on such day.
Section II.3 Notice and Manner of Obtaining Loans. Borrower shall give
Agent notice of each request for Tranche A Loans, Tranche B Loans, Tranche C
Loans or Tranche D Loans pursuant to a Borrowing Request which is received by
Agent not later than 11:00 a.m. (Houston, Texas) time, on the day on which such
Loans are to be advanced. Each Borrowing Request shall constitute a request for
both (1) a Swing-Line Loan to be funded by Bank United and the Loans to be made
by Lenders to refinance that Swing-Line Loan, and (2) if Bank United elects not
to make a Swing-Line Loan, the Loans actually requested by the text of the
Borrowing Request to be funded by the Lenders. If all conditions precedent to
such Loan have been met and Agent has notified each Lender that Bank United has
elected not to make a Swing-Line Loan pursuant to such Borrowing Request, each
Lender will on the date requested promptly remit to Agent at Agent's office in
Houston, Texas the amount of such Lender's Tranche A Loan, Tranche B Loan,
Tranche C Loan or Tranche D Loan, as applicable, in immediately available
dollars, and upon receipt of such funds, unless to its actual knowledge any
conditions precedent to such Loan have been neither met nor waived as provided
herein, Agent shall promptly make such Loan available to Borrower by crediting
the Funding Account with a like amount of immediately available funds. Bank
United shall, not later than 2:00 p.m. (Houston, Texas time) on the date on
which it makes any Swing-Line Loan, deposit the amount thereof into the Funding
Account. Each Borrowing Request shall be irrevocable and binding on Borrower.
Unless Agent shall have received prompt notice from a Lender that such Lender
will not make available to Agent such Lender's Loan, Agent may in its discretion
assume that such Lender has made such Loan available to Agent in accordance with
this section and Agent may if it chooses, in reliance upon such assumption, make
such Loan available to Borrower. If and to the extent such Lender shall not so
make its Loan available to Agent, such Lender and Borrower severally agree to
pay or repay to Agent within three days after demand the amount of such Loan
together with interest thereon, for each day from the date such amount is made
available to Borrower until the date such amount is paid or repaid to Agent, at
(i) the Federal Funds Rate, if such Lender is making such payment and (ii) the
interest rate applicable at the time to the other Loans made on such date, if
Borrower is making such repayment; Agent shall use its best efforts to demand
any such amount from both such Lender and Borrower, provided, that any failure
by Agent to make any such demand on both such Lender and Borrower shall not in
any manner affect such Lender's and Borrower's obligation to pay or repay such
amount, with interest, as set forth herein. The failure of any Lender to make
any Loan to be made by it hereunder shall not relieve any other Lender of its
obligation hereunder, if any, to make its Loan, but no Lender shall be
responsible for the failure of any other Lender to make any Loan to be made by
such other Lender.
Section II.4 Fees.
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In consideration of each Lender's commitment to make Tranche A Loans,
Tranche B Loans, Tranche C Loans and Tranche D Loans, Borrower will pay to Agent
for the account of each Lender a commitment fee determined on a daily basis by
applying a rate of 0.175% per annum on the Commitment on each day from the date
of the initial Loan until the Drawdown Termination Date. This commitment fee
shall be due and payable quarterly in advance beginning on July 1, 1999, and
continuing regularly on each October 1, January 1, April 1 and July 1
thereafter.
Section II.5 Mandatory Repayments.
(a) If at any time the aggregate outstanding principal amount of all
Tranche A Loans exceeds the Collateral Value of the Tranche A Borrowing Base,
Borrower shall repay the amount of such excess within one (1) Business Day after
written notice thereof from Agent.
(b) If at any time the aggregate outstanding principal amount of all
Tranche B Loans exceeds the Collateral Value of the Tranche B Borrowing Base,
Borrower shall repay the amount of such excess within one (1) Business Day after
written notice thereof from Agent.
(c) If at any time the aggregate outstanding principal amount of all
Tranche C Loans exceeds the lesser of (i) the Collateral Value of the Tranche C
Borrowing Base or (ii) the Tranche C Sublimit, Borrower shall repay the amount
of such excess within one (1) Business Day after written notice thereof from
Agent.
(d) If at any time the aggregate outstanding principal amount of all
Tranche D Loans exceeds the lesser of (i) the Collateral Value of the Tranche D
Borrowing Base, or (ii) the Tranche D Sublimit, Borrower shall repay the amount
of such excess within one (1) Business Day after written notice thereof from
Agent.
Section II.6 Payments to Lenders. All payments of interest on the
Notes, all payments of principal, including any principal payment made with
proceeds of Mortgage Collateral, and fees hereunder shall be made directly to
Agent for the account of the Lender to whom such payment is owed in federal or
other immediately available funds before 1:00 pm (Houston, Texas time) on the
respective dates when due via wire transfer to the Settlement Account. Borrower
shall send notice to Agent before 1:00 p.m. (Houston, Texas time) on the day any
payment of principal or interest is received by Agent which sets forth the Loans
against which such payment is to be applied. Any payment (or any payment
received without a notice regarding application of such payment) received by
Agent after such time will be deemed to have been made on the next following
Business Day. Should any such payment become due and payable on a day other than
a Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day, and, in the case of a payment of principal or past due
interest, interest shall accrue and be payable thereon for the period of such
extension as provided in the Loan Document under which such payment is due. Each
payment under a Loan Document shall be payable at the place provided therein
and, if no specific place of payment is provided, shall be payable at the place
of payment of the Notes. When Agent collects or receives money on account of the
obligations, Agent shall distribute all money so collected or received, and
Agent and Lenders shall apply all such money so distributed, as follows:
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(a) first, for the payment of all Obligations which are then due, and
if such money is insufficient to pay all such Obligations, (i) first to any
reimbursements due Agent under Section 5.05, (ii) second to Bank United for the
payment of any outstanding Swing-Line Loans then due if such Swing-Line Loans
are of the type which Lenders are obligated to refund pursuant to Section
2.07(c) below, (iii) third if such payments are on account of the Tranche A
Loans, to the payment of the Tranche A Loans then due, if such payments are on
account of the Tranche B Loans, to the payment of the Tranche B Loans then due,
if such payments are on account of the Tranche C Loans, to the Tranche C Loans
then due, if such payments are on account of the Tranche D Loans, to the payment
of the Tranche D Loans then due, (iv) fourth to Bank United for the payment of
any outstanding Swing-Line Loans then due which are of the type which Lenders
are not obligated to refund pursuant to Section 2.07(c) below, and (v) then to
the partial payment of all other obligations then due in proportion to the
amounts thereof, or as Lenders shall otherwise agree;
(b) then for the prepayment of amounts owing under the Loan Documents
if so specified by Borrower;
(c) then for the prepayment of principal on the Notes, together with
accrued and unpaid interest on the principal so prepaid; and
(d) last, for the payment or prepayment of any other obligations.
All payments applied to principal or interest on any Note shall be applied first
to any interest then due and payable, then to principal then due and payable,
and last to any prepayment of principal and interest. All distributions of
amounts described in any of subsections (b), (c) or (d) above shall be made by
Agent pro rata to Agent and each Lender then owed obligations described in such
subsection in proportion to all amounts owed to all Lenders which are described
in such subsection.
Section II.7 Refinancing of Swing-Line Loans.
(a) Permitted Refinancings of Swing-Line Loans. Bank United, at any
time in its sole and absolute discretion, may, upon notice given to each other
Lender by not later than 12:00 noon (Houston time) on any Business Day, request
that each Lender (including Bank United) make a Tranche A Loan, Tranche B Loan,
Tranche C Loan or Tranche D Loan, as applicable, in an aggregate amount equal to
its Percentage Share of the aggregate unpaid principal amount of any outstanding
Swing-Line Loans for the purpose of refinancing such Swing-Line Loans.
(b) Mandatory Refinancings of Swing-Line Loans. Not later than 12:00
noon (Houston time) on the penultimate Business Day of each week, Bank United
will notify each other Lender of the aggregate amount of Swing-Line Loans which
are then outstanding and the amount of the Tranche A Loan, Tranche B Loan,
Tranche C Loan or Tranche D Loan required to be made by each Lender (including
Bank United) to refinance such outstanding Swing-Line Loans (the aggregate
amount of Loans to be made by each Lender shall equal such Lender's Percentage
Share of such outstanding Swing-Line Loans).
(c) Lenders' Obligation to Fund Refinancings of Swing-Line Loans. Upon
the giving of notices by Bank United under Section 2.07(a) or 2.07(b), each
Lender (including Bank United) shall
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promptly remit to Agent at Agent's office in Dallas, Texas, the amount equal to
its Percentage Share of the aggregate principal amount of Swing-Line Loans to be
refinanced, in immediately available funds, by not later than 3:00 p.m. (Houston
time) on the date such notice was received, provided, however, that a Lender
shall not be obligated to make any such Tranche A Loan, Tranche B Loan, Tranche
C Loan or Tranche D Loan, unless (A) Bank United believed in good faith that all
conditions to making the subject Swing-Line Loan were satisfied at the time such
Swing-Line Loan was made, or (B) if the conditions to such Swing-line Loan were
not satisfied, the satisfaction of such conditions have been waived in a writing
by Majority Lenders in accordance with the provisions of this Agreement. The
proceeds of Tranche A Loans, Tranche B Loans, Tranche C Loans and Tranche D
Loans made pursuant to the preceding sentence shall be paid to Bank United (and
not to Borrower) and applied to the payment of principal of the outstanding
Swing-Line Loans, and Borrower authorizes Agent to charge the Operating Account
or any other account (other than escrow or custodial accounts) maintained by it
with Agent (up to the amount available therein) in order to immediately pay Bank
United the principal amount of such Swing-Line Loans to the extent amounts
received from the other Lenders are not sufficient to repay in full the
principal of the outstanding Swing-Line Loans requested or required to be
refinanced. Upon the making of a Tranche A Loan, Tranche B Loan, Tranche C Loan
or Tranche D Loan by a Lender pursuant to this Section 2.07(c), the amount so
funded shall become due under such Lender's Note and the outstanding principal
amount of the Swing-Line Loans shall be correspondingly reduced. If any portion
of any such amount paid to Bank United should be recovered by or on behalf of
Borrower from Bank United in bankruptcy or otherwise, the loss of the amount so
recovered shall be ratably shared among all the Lenders in the manner
contemplated by Section 9.06. Each Lender's obligation to make Tranche A Loans,
Tranche B Loans, Tranche C Loans and Tranche D Loans pursuant to this Section
2.07(c) shall, subject to the proviso to the first sentence of this Section
2.07(c), be absolute and unconditional and shall not be affected by any
circumstances, including, without limitation, (1) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against Bank
United, Borrower or anyone else for any reason whatsoever; (2) the occurrence or
continuance of an Event of Default or Default; (3) any adverse change in the
condition (financial or otherwise) of Borrower; (4) any breach of this Agreement
by Borrower, Agent or any Lender; or (5) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing; provided, that
in no event shall a Lender be obligated to make a Tranche A Loan, Tranche B
Loan, Tranche C Loan or Tranche D Loan pursuant to this Section 2.07(c) if,
after giving effect thereto, the outstanding principal balance of such Lender's
Loans would exceed its Percentage Share of the Commitment.
Section II.8 Capital Reimbursement. If either (a) the introduction or
implementation of or the compliance with or any change in or in the
interpretation of any law, rule or regulation, or (b) the introduction or
implementation of or the compliance with any request, directive or guideline
from any central bank or other governmental authority (whether or not having the
force of law) affects or would affect the amount of capital required or expected
to be maintained by any Lender or any corporation controlling such Lender, then,
upon demand by such Lender, Borrower will pay to Agent for the account of such
Lender, from time to time as specified by such Lender, such additional amount or
amounts which such Lender shall determine to be appropriate to compensate such
Lender or any corporation controlling such Lender in light of such
circumstances, to the extent that such Lender reasonably determines that the
amount of any such capital would be increased or
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the rate of return on any such capital would be reduced by or in whole or in
part based on the face amount of such Lender's Note or commitments under this
Agreement.
Section II.9 Reimbursable Taxes. Borrower covenants and agrees that:
(a) Borrower will indemnify Agent and each Lender against and reimburse
Agent and each Lender for all present and future income, stamp and other taxes,
levies, costs and charges whatsoever imposed, assessed, levied or collected on
or in respect of this Agreement (whether or not legally or correctly imposed,
assessed, levied or collected), excluding, however, any taxes imposed on or
measured by the overall net income of Agent or such Lender or any lending office
of Agent or such Lender by any jurisdiction in which Agent or such Lender or any
lending office is located (all such non-excluded taxes, levies, costs and
charges being collectively called "Reimbursable Taxes" in this Section). Such
indemnification shall be on an after-tax basis, taking into account any taxes
imposed on the amounts paid as indemnity.
(b) All payments on account of the principal of, and interest on, each
Lender's Loan, each Lender's Note, and the Swing-Line Note and all other amounts
payable by Borrower to Agent and each Lender hereunder, shall be made in full
without set-off or counterclaim and shall be made free and clear of and without
deductions or withholdings of any nature by reason of any Reimbursable Taxes,
all of which will be for the account of Borrower. In the event of Borrower being
compelled by law or other regulations to make any such deduction or withholding
from any payment to Agent or any Lender, Borrower shall pay on the due date of
such payment, by way of additional interest, such additional amounts as are
needed to cause the amount receivable by Agent or such Lender after such
deduction or withholding to equal the amount which would have been receivable in
the absence of such deduction or withholding. If Borrower should make any
deduction or withholding as aforesaid, Borrower shall within 60 days thereafter
forward to Agent or such Lender an official receipt or other official document
evidencing payment of such deduction or withholding.
Section II.10 Notice of Certain Events; Change of Applicable Lending
office. Each Lender agrees to provide written notice to Borrower of the
occurrence of any event (a "Triggering Event") described in Sections 2.08 or
2.09 which would give rise to any costs, expenses, claims, penalties,
liabilities, damages or Reimbursable Taxes, within sixty (60) days of the date
such Lender first learns of the occurrence of such Triggering Event (the
"Trigger Date"). If any Lender fails to provide written notice to Borrower of a
Triggering Event in accordance with the immediately preceding sentence, Borrower
shall be liable for only those costs, expenses, claims, penalties, liabilities,
damages or Reimbursable Taxes with respect to such Lender which arose during the
period beginning 120 days prior to the Trigger Date and ending on the Trigger
Date.
ARTICLE III
CONDITIONS PRECEDENT
The obligation of each Lender to make Loans hereunder is subject to
fulfillment of the conditions precedent stated in this Article III.
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Section III.1 Initial Borrowing. The obligation of each Lender to fund
any Loan hereunder shall be subject to, in addition to the conditions precedent
specified in Section 3.02, delivery to Agent of the following (each of the
following documents being duly executed and delivered and in form and substance
satisfactory to Agent, and, with the exception of the Notes and the Swing-Line
Note, each in a sufficient number of originals that Agent, its counsel and each
Lender may have an executed original of each document):
(a) an executed counterpart of this Agreement and of all instruments,
certificates and opinions referred to in this Article III not theretofore
delivered (except the Borrowing Request which is to be delivered at the time
provided in Subsection 3.02(a) hereof);
(b) the Notes and the Swing-Line Note;
(c) the Security Agreement dated of even date herewith;
(d) the Guaranty dated of even date herewith;
(e) a certificate of the Secretary or Assistant Secretary of each of
Borrower and Guarantor setting forth (i) resolutions of its board of directors
authorizing the execution, delivery, and performance of the Loan Documents to
which it is a party and identifying the officers authorized to sign such
instruments, (ii) specimen signatures of the officers so authorized, and (iii)
articles of incorporation of each of Borrower and Guarantor certified by the
appropriate Secretary of State as of a recent date, and (iv) bylaws of each of
Borrower and Guarantor, certified as being accurate and complete;
(f) a certificate of the existence and good standing for Borrower and
Guarantor in their state of incorporation dated no earlier than May 20, 1999;
and
(g) an opinion of counsel for Borrower and Guarantor in the form of
EXHIBIT "G";
(h) a Borrowing Base Certificate dated as of the date of the first
Borrowing, certified by the chief financial officer of Borrower; and
(i) such other documents as Agent may reasonably request at any time at
or prior to the date of the initial Borrowing hereunder.
Section III.2 All Borrowings. The obligation of each Lender to fund any
Loan pursuant to this Agreement is subject to the following further conditions
precedent:
(a) Borrower shall deliver to Agent a Borrowing Request accompanied by
the Required Mortgage Documents or, if applicable, an Agreement to Pledge;
(b) all Property in which Borrower has granted a Lien to Agent shall
have been physically delivered to the possession of Agent or a bailee acceptable
to Agent to the extent that such possession is required under this Agreement or
necessary or appropriate for the purpose of perfecting
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the Lien of Agent in such collateral or as provided under subsection (x) of the
definition of Eligible Mortgage Loans;
(c) the representations and warranties of each Related Person contained
in this Agreement or any Security Instrument (other than those representations
and warranties which are by their terms limited to the date of the agreement in
which they are initially made) shall be true and correct in all material
respects on and as of the date of such Loan;
(d) no Default or Event of Default shall have occurred and be
continuing and no change or event which constitutes a Material Adverse Effect
shall have occurred as of the date of such Loan;
(e) the Funding Account, the Settlement Account and the Operating
Account shall be established and in existence;
(f) the making of such Loan shall not be prohibited by any Governmental
Requirement;
(g) the delivery to Agent of such other documents and opinions of
counsel, including such documents as may be necessary or desirable to perfect or
maintain the priority of any Lien granted or intended to be granted hereunder or
otherwise and including favorable written opinions of counsel with respect
thereto, as Agent may reasonably request; and
(h) (A) the aggregate amount of all Loans outstanding, after giving
effect to such Loan, does not exceed the lesser of (1) the Aggregate Collateral
Value of the Borrowing Base and (2) the Commitment (B) the aggregate amount of
all Tranche A Loans outstanding, after giving effect to such Loan, does not
exceed the lesser of (1) the Collateral Value of the Tranche A Borrowing Base,
and (2) the Commitment reduced by the sum of A. the aggregate amount of all
Tranche B Loans outstanding, B. the aggregate amount of all Tranche C Loans
outstanding, and C. the aggregate amount of all Tranche D Loans outstanding; (C)
the aggregate amount of all Tranche B Loans outstanding, after giving effect to
such Loan, does not exceed the lesser of: (1) the Collateral Value of the
Tranche B Borrowing Base, and (2) the Commitment reduced by the sum of A. the
aggregate amount of all Tranche A Loans outstanding, B. the aggregate amount of
all Tranche C Loans outstanding, and C. the aggregate amount of all Tranche D
Loans outstanding; (D) the aggregate amount of all Tranche C Loans outstanding,
after giving effect to such Loan, does not exceed the lesser of (1) the
Collateral Value of the Tranche C Borrowing Base, (2) the Commitment reduced by
the sum of A. the aggregate amount of all Tranche A Loans outstanding B. the
aggregate amount of all Tranche B Loans outstanding, and C. the aggregate amount
of all Tranche D Loans outstanding and (3) the Tranche C Sublimit; and (E) the
aggregate amount of all Tranche D Loans outstanding, after giving effect to such
Loan, does not exceed the lesser of (1) the Collateral Value of the Tranche D
Borrowing Base, (2) the Commitment reduced by the sum of (a) the aggregate
amount of all Tranche A Loans outstanding, (b) the aggregate amount of all
Tranche B loans outstanding, and (c) the aggregate amount of all Tranche C Loans
outstanding, and (3) the Tranche D Sublimit. Delivery to Agent of a Borrowing
Request shall be deemed to constitute a representation and warranty by Borrower
on the date thereof and on the date on which the Loan is made, if any, set forth
therein as to the facts specified in Subsections (c) and (d) of this Section
3.02.
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ARTICLE IV
BORROWER REPRESENTATIONS AND WARRANTIES
Each of Borrower and Guarantor represents and warrants as follows:
Section IV.1 Organization and Good Standing. Each Related Person (a) is
a corporation duly incorporated and existing in good standing under the laws of
the jurisdiction of its incorporation, (b) is duly qualified as a foreign
corporation and in good standing in all jurisdictions in which its failure to be
so qualified could have a Material Adverse Effect, (c) has the corporate power
and authority to own its properties and assets and to transact the business in
which it is engaged and is or will be qualified in those states wherein it
proposes to transact business in the future and (d) is in compliance with all.
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, have a Material Adverse Effect.
Section IV.2 Authorization and Power. Each Related Person has the
corporate power and requisite authority to execute, deliver and perform the Loan
Documents to which it is a party; each Related Person is duly authorized to and
has taken all corporate action necessary to authorize it to, execute, deliver
and perform the Loan Documents to which it is a party and is and will continue
to be duly authorized to perform such Loan Documents.
Section IV.3 No Conflicts or Consents. Neither the execution and
delivery by any Related Person of the Loan Documents to which it is a party, nor
the consummation of any of the transactions herein or therein contemplated, nor
compliance with the terms and provisions hereof or with the terms and provisions
thereof, will (a) materially contravene or conflict with any Requirement of Law
to which any Related Person is subject, or any indenture, mortgage, deed of
trust, or other agreement or instrument to which any Related Person is a party
or by which any Related Person may be bound, or to which the Property of any
Related Person may be subject, or (b) result in the creation or imposition of
any Lien, other than the Lien of the Security Agreement, on the Property of any
Related Person. All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and licenses
required to be taken, given or obtained, as the case may be, from any
Governmental Authority that are necessary in connection with the transactions
contemplated by the Loan Documents have been obtained.
Section IV.4 Enforceable Obligations. This Agreement, the Notes, the
Swing-Line Note, and the other Loan Documents to which any Related Person is a
party are the legal, valid and binding obligations of such Related Person,
enforceable in accordance with their respective terms, except as limited by
Debtor Laws.
Section IV.5 Priority of Liens. Upon delivery to Agent of each
Borrowing Request, Agent shall have valid, enforceable, perfected, first
priority Liens and security interests in each Mortgage Note identified therein,
except to the extent that the requirements for perfection have not been
completed with respect to Eligible Mortgage Loans for which Agent has received
an Agreement to Pledge.
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Section IV.6 No Liens. Borrower has good and indefeasible title to the
Mortgage Collateral and to all of the Eligible REO free and clear of all Liens
and other adverse claims of any nature, except for ad valorem taxes and
assessments not yet due and payable and Liens in the Mortgage Collateral or the
Eligible REO in favor of Agent.
Section IV.7 Financial Condition of Borrower and Guarantor. Each of
Borrower and Guarantor has delivered to Agent and each Lender copies of their
annual audited balance sheet as of December 31, 1998, and the related statements
of income, stockholders' equity and cash flows for the period ended such date;
such financial statements fairly present the financial condition of each of
Borrower and Guarantor, respectively as of such date and the results of
operations of Borrower for the period ended on such date and have been prepared
in accordance with GAAP, subject to normal year-end adjustments; as of the date
thereof, there were no obligations, liabilities or Indebtedness (including
material contingent and indirect liabilities and obligations or unusual forward
or long-term commitments) of Borrower which are not reflected in such financial
statements and no change which constitutes a Material Adverse Effect has
occurred in the financial condition or business of (i) Borrower since March 31,
1999 and (ii) Guarantor since March 31, 1999. Borrower has also delivered to
Agent and each Lender its unaudited quarterly balance sheet for the period
ending March 31, 1999 and management reports for the months ended March 31,
1999; such reports fairly and accurately present Borrower's commitment position,
pipeline position, servicing and production as of the end of such months and for
the fiscal year to date for the periods ending on such dates. Guarantor has also
delivered to Agent and each Lender its unaudited quarterly balance sheet for the
period ending March 31, 1999; such report fairly and accurately presents
Guarantor's financial condition for the fiscal period ending on such date.
Section IV.8 Full Disclosure. There is no material fact that Borrower
or Guarantor has not disclosed to Agent and each Lender which could adversely
affect the properties, business, prospects or condition (financial or otherwise)
of the Related Persons, or could adversely affect the Mortgage Collateral or the
Servicing Rights. To the best knowledge of each of Borrower and Guarantor,
neither the financial statements referred to in Section 4.07 hereof, nor any
Borrowing Request, officer's certificate or statement delivered by any Related
Person to Agent and each Lender in connection with this Agreement, contains any
untrue statement of material fact.
Section IV.9 No Default. No Related Person is in default under any loan
agreement, mortgage, security agreement or other material agreement or
obligation to which it is a party or by which any of its Property is bound.
Section IV.10 No Litigation. There are no material actions, suits or
legal, equitable, arbitration or administrative proceedings pending, or to the
knowledge of Borrower or Guarantor threatened, against any Related Person the
adverse determination of which could constitute a Material Adverse Effect.
Section IV.11 Taxes. All tax returns required to be filed by each
Related Person in any jurisdiction have been filed and all taxes, assessments,
fees and other governmental charges upon each Related Person or upon any of its
properties, income or franchises have been paid prior to the time that such
taxes could give rise to a Lien thereon, unless protested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been established on
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the books of such Related Person. No Related Person has any knowledge of any
proposed tax assessment against any Related Person.
Section IV.12 Principal office, etc. The principal office, chief
executive office and principal place of business of each Related Person is at
the address set forth in Section 10.01.
Section IV.13 Compliance with ERISA. No Related Person nor any ERISA
Affiliate of any Related Person currently maintains, contributes to, is required
to contribute to or has any liability, whether absolute or contingent, with
respect to an ERISA Plan. With respect to all other employee benefit plans
maintained or contributed to by each Related Person, each Related Person is in
material compliance with ERISA.
Section IV.14 Subsidiaries. No Related Person presently has any
Subsidiary or owns any stock in any other corporation or association except
those listed in EXHIBIT "H." As of the date hereof, each Related Person owns,
directly or indirectly, the equity interest in each of its Subsidiaries which is
indicated in EXHIBIT "H."
Section IV.15 Indebtedness. Borrower has no indebtedness outstanding
other than the Indebtedness permitted by Section 6.02.
Section IV.16 Permits, Patents, Trademarks, etc.
(a) Each Related Person has all permits and licenses necessary for the
operation of its business.
(b) Each Related Person owns or possesses (or is licensed or otherwise
has the necessary right to use) all patents, trademarks, service marks, trade
names and copyrights, technology, know-how and processes, and all rights with
respect to the foregoing, which are necessary for the operation of its business,
without any known material conflict with the rights of other. The consummation
of the transactions contemplated hereby will not alter or impair in any material
respect any of such rights of each Related Person.
Section IV.17 Status Under Certain Federal Statutes. No Related Person
is (a) a "holding company" or a "subsidiary company" of a "holding company" or
an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," as such terms are defined in the Public Utility Holding Company Act of
1935, as amended, (b) a "public utility," as such term is defined in the Federal
Power Act, as amended, (c) an "investment company," or a company "controlled" by
an "investment company," within the meaning of the Investment Company Act of
1949, as amended or (d) a "rail carrier," or a "person controlled by or
affiliated with a rail carrier," within the meaning of Title 49, U.S.C., and no
Related Person is a "carrier" to which 49 U.S.C. Section 11301(b)(1) is
applicable.
Section IV.18 Securities Act. No Related Person has issued any
unregistered securities in violation of the registration requirements of the
Securities Act of 1933, as amended, or of any other Requirement of Law, and is
not violating any rule, regulation, or requirement under the Securities Act of
1933, as amended, or the Securities and Exchange Act of 1934, as amended. No
Related
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Person is required to qualify an indenture under the Trust Indenture Act of
1939, as amended, in connection with its execution and delivery of the Notes.
Section IV.19 Pollution Control. Each Related Person is in compliance
with, and to the best of each Related Person's knowledge after due inquiry, each
Related Person has, at all times since its incorporation, been in compliance
with, all Requirements of Law relating to pollution control (a) in the United
States and the State of Texas and (b) in each other jurisdiction where it is
presently doing business.
Section IV.20 No Approvals Required. Other than consents and approvals
previously obtained and actions previously taken, neither the execution and
delivery of this Agreement, the Notes, the Swing-Line Note, and the other Loan
Documents to which any Related Person is a party, nor the consummation of any of
the transactions contemplated hereby or thereby requires the consent or approval
of, the giving of notice to, or the registration, recording or filing by any
Related Person of any document with, or the taking of any other action in
respect of, any Governmental Authority which has jurisdiction over each Related
Person or any of its Property, except for (a) the filing of the Uniform
Commercial Code financing statements and other similar filings to perfect the
interest of Agent in the Collateral, and (b) such other consents, approvals,
notices, registrations, filings or action as may be required in the ordinary
course of business of the Related Persons in connection with the performance of
the obligations of the Related Persons hereunder.
Section IV.21 Survival of Representations. All representations and
warranties by each of Borrower and Guarantor herein shall survive delivery of
the Notes, the Swing-Line Note and the funding of the Borrowings, and any
investigation at any time made by or on behalf of Agent or any Lender shall not
diminish the right of Agent or such Lender to rely thereon.
Section IV.22 Individual Mortgage Loans. Borrower hereby represents
with respect to each Mortgage Note and Mortgage Loan that is part of the
Collateral:
(a) Borrower has good and marketable title to each Mortgage Note and
Mortgage, was the sole owner thereof and had full right to pledge the Mortgage
Loan to Agent free and clear of any other Lien;
(b) To the best knowledge of Borrower, there is no default, breach,
violation or event of acceleration existing under any Mortgage or the related
Mortgage Note (other than with respect to Repurchased Defaulted Mortgages) and
there is no event which, with the passage of time or with notice and/or the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration and no such default, breach, violation or
event of acceleration has been waived;
(c) To the best of the knowledge of Borrower, the physical condition of
the Property subject to the Mortgage has not deteriorated since the date of
origination of the related secured Mortgage Loan (normal wear and tear excepted)
and there is no proceeding pending for the total or partial condemnation of any
Mortgaged Property;
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(d) Each Mortgage contains customary and enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for the
realization against the related Property subject to the Mortgage of the benefits
of the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise, by
judicial foreclosure;
(e) Each Mortgage Loan is a first or second lien one-to-four-family
loan, and has been underwritten by the originator thereof in accordance with
such originator's then current underwriting guidelines;
(f) Each Mortgage Note (other than with respect to Eligible Tranche C
Mortgage Loans) is payable in monthly installments of principal and interest,
with interest payable in arrears, and requires a monthly payment which is
sufficient to amortize the original principal balance over the original term and
to pay interest at the related interest rate; and no Mortgage Note (except for
any Mortgage Note evidencing an Eligible Tranche C Mortgage Loan) provides for
any extension of the original term;
(g) Except for Eligible Manufactured Housing Mortgage Loans, no
Mortgage Loan is a loan in respect of the purchase of a Manufactured Home or
mobile home or the land on which a Manufactured Home or mobile home will be
placed;
(h) The origination practices used by the originator of the Mortgage
Loans and the collection practices used by the Borrower with respect to each
Mortgage Loan have been in all material respects legal, proper, prudent and
customary in the loan origination and servicing business;
(i) Each Mortgage Loan was originated in compliance with all applicable
laws and no fraud or misrepresentation was committed by any Person in connection
therewith; and
(j) Any Eligible Manufactured Housing Mortgage Loan originated in the
State of Texas, was originated pursuant to Section 347 of the Texas Finance
Code.
Section IV.23 Environmental Matters. In the ordinary course of each
Related Person's business, the officers and managers of each Related Person
consider the effect of Environmental Laws on the business of such Related
Person, in the course of which they identify and evaluate potential risks and
liabilities accruing to such Related Person due to Environmental Laws. On the
basis of this consideration, each Related Person has reasonably concluded that
neither violation of nor compliance with Environmental Laws can reasonably be
expected to have a material adverse effect on the business or financial
condition of such Related Person or on the ability of Borrower to perform the
Obligations. No Related Person has received any notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected to have a
material adverse effect on the business or financial condition of the Related
Persons, taken as a whole, or on the ability of Borrower to perform the
obligations.
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ARTICLE V
AFFIRMATIVE COVENANTS
Each Related Person shall at all times comply with the covenants
contained in this Article V, from the date hereof and for so long as any part of
the Obligations or the Commitment is outstanding unless Majority Lenders have
agreed otherwise.
Section V.1 Financial Statements and Reports.
(a) Borrower shall furnish to Agent and each Lender the following, all
in form and detail reasonably satisfactory to Majority Lenders:
(i) Promptly after becoming available, and in any event within
ninety (90) days after the close of each Fiscal Year of Borrower, the
Consolidated balance sheet of Borrower and its Consolidated
Subsidiaries as of the end of such year, and the related Consolidated
statements of income, stockholders' equity and cash flows of Borrower
and its Consolidated Subsidiaries for such year, setting forth in each
case in comparative form the corresponding figures for the preceding
Fiscal Year, such financial statements shall be unqualified and shall
be accompanied by the related report of independent certified public
accountants, KPMG Peat Marwick or other independent certified public
accountants of national standing acceptable to Majority Lender's which
report shall be to the effect that such statements have been prepared
in accordance with GAAP applied on a basis consistent with prior
periods except for such changes in such principles with which the
independent public accountants shall have concurred;
(ii) Promptly after becoming available, and in any event
within thirty (30) days after the end of each month, including the
twelfth month in the Fiscal Year of Borrower, a Consolidated balance
sheet of, Borrower and its Consolidated Subsidiaries as of the end of
such month and the related Consolidated statements of income,
stockholders' equity and cash flows of Borrower and its Consolidated
Subsidiaries for such month and the period from the first day of the
then current fiscal year of Borrower through the end of such month,
certified by the chief financial officer or other executive officer of
Borrower to have been prepared in accordance with GAAP applied on a
basis consistent with prior periods, subject to normal year-end
adjustments;
(iii) Promptly upon receipt thereof, a copy of each other
report submitted to Borrower by independent accountants in connection
with any annual, interim or special audit of the books of Borrower;
(iv) Promptly and in any event within thirty (30) days after
the request of Agent at any time and from time to time, a certificate,
executed by the president or chief financial officer of Borrower,
setting forth all of Borrower's warehouse borrowings;
(v) Promptly and in any event within thirty (30) days after
the end of each calendar month in each Fiscal Year of Borrower (except
the last), and within fifteen (15)
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days after the completion of each year-end audit by Borrower's
independent public accountants, a completed Officer's Certificate in
the form of EXHIBIT "D" hereto, executed by the president, chief
financial officer or other executive officer of Borrower;
(vi) Promptly and in any event within thirty (30) days after
the end of each month, (A) a Borrowing Base Certificate, and (B) a
management report regarding (1) Borrower's pipeline and commitment
position, including amount and rate of committed Mortgage Loans and (2)
Borrower's production statistics, including type of product and
origination source (retail or correspondent) in each case in form and
detail as reasonably required by Agent, prepared as of the end of such
month and for the Fiscal Year to date;
(vii) Promptly and in any event within thirty (30) days after
the end of each month a list of all Repurchased Defaulted Mortgages
(including the outstanding principal amounts of each) repurchased by
Borrower during such month, together with a list of all other
Repurchased Defaulted Mortgages (including the outstanding principal
amount of each) then owned by Borrower;
(viii) Promptly and in any event within thirty (30) days after
the end of each month a Securitization Reporting Worksheet for Monthly
Reporting in the form of EXHIBIT "K" hereto, executed by the chief
financial officer of Borrower;
(ix) Promptly and in any event within thirty (30) days after
the closing of any securitization of Mortgage Loans, a Securitization
Reporting Worksheet in the form of EXHIBIT "L" hereto, executed by the
chief financial officer of Borrower;
(x) Promptly and in any event within thirty (30) days after
the end of each month, a report detailing the following information,
with respect to any Mortgage Loans serviced by Borrower during such
month: the aggregate unpaid principal amount of such Mortgage Loans,
the weighted average interest rate of such Mortgage Loans, the weighted
average maturity date of such Mortgage Loans; the principal amount of
each Mortgage Loan which was paid in full during such month; the
aggregate principal amount of such Mortgage Loans which are 30, 60 or
90 days delinquent, the aggregate principal amount of any such Mortgage
Loans either repurchased or foreclosed upon during such month;
(xi) Promptly and in any event within thirty (30) days after
the end of each month, a list of all REO (including the acquisition
cost to Borrower of such REO) purchased by Borrower during such month,
together with a list of all other REO then owned by Borrower;
(xii) Promptly and in any event within thirty (30) days after
the end of each month, a report stating the outstanding principal
amount as of the end of such month of each Eligible Tranche C Mortgage
Loan then included in the Tranche C Borrowing Base; and
(xiii) Such other information concerning the business,
properties or financial condition of any Related Person as Agent or any
Lender may reasonably request.
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(b) Guarantor shall furnish to Agent and each Lender the following, all
in form and detail reasonably satisfactory to Majority Lenders:
(i) Promptly after becoming available, and in any event within
ninety (90) days after the close of each Fiscal Year of Guarantor, the
Consolidated balance sheet of Guarantor and its Consolidated
Subsidiaries as of the end of such year, and the related Consolidated
statements of income, stockholders' equity and cash flows of Guarantor
and its Consolidated Subsidiaries for such year, setting forth in each
case in comparative form the corresponding figures for the preceding
Fiscal Year, accompanied by the related report of independent certified
public accountants, KPMG Peat Marwick or other independent certified
public accountants of national standing acceptable to Majority Lenders
which report shall be to the effect that such statements have been
prepared in accordance with GAAP applied on a basis consistent with
prior periods except for such changes in such principles with which the
independent public accountants shall have concurred;
(ii) Promptly after becoming available, and in any event
within forty-five (45) days after the End of each Fiscal Quarter of
Guarantor, including the last fiscal quarter in the Fiscal Year of
Guarantor, Guarantor's Consolidated and consolidating balance sheet as
of the enc' of such Fiscal Quarter and the related Consolidated and
consolidating statements of income, stockholder's equity and cash flows
of Guarantor and its Consolidated Subsidiaries for such Fiscal Quarter
and the period from the first day of the then current Fiscal Year of
Guarantor through the end of such Fiscal Quarter, and
(iii) Promptly after becoming available, and in any event
within forty-five (45) days after the end of each Fiscal Quarter,
including the last Fiscal Quarter in the Fiscal Year of Guarantor, a
copy of Guarantor's 10-Q as of the end of such Fiscal Quarter filed by
Guarantor with the Securities and Exchange Commission or any similar
governmental authority.
Section V.2 Taxes and Other Liens. Each Related Person shall pay and
discharge promptly all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or upon any of its Property as well as all
claims of any kind (including claims for labor, materials, supplies and rent)
which, if unpaid, might become a Lien upon any or all of its Property; provided,
however, each Related Person shall not be required to pay any such tax,
assessment, charge, levy or claim if the amount, applicability or validity
thereof shall currently be contested in good faith by appropriate proceedings
diligently conducted by or on behalf of such Related Person and if such Related
Person shall have set up reserves therefor adequate under GAAP.
Section V.3 Maintenance. Each Related Person shall (i) maintain its
corporate existence, rights and franchises; (ii) observe and comply in all
material respects with all Governmental Requirements, and (iii) maintain its
Properties (and any Properties leased by or consigned to it or held under title
retention or conditional sales contracts) in good and workable condition at all
times and make all repairs, replacements, additions, betterments and
improvements to its Properties as are needful and proper so that the business
carried on in connection therewith may be conducted properly and efficiently at
all times. Borrower shall maintain good standing as an FHLMC-approved seller and
servicer. Upon achievement, Borrower shall maintain good standing as an FHA- and
VA-
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approved lender and mortgagee, a GNMA-approved issuer and servicer and a
FNMA-approved seller and servicer.
Section V.4 Further Assurances. Borrower shall, within three (3)
Business Days after the request of Agent, cure any defects in the execution and
delivery of the Notes, this Agreement or any other Loan Document and each
Related Person shall, at its expense, promptly execute and deliver to Agent upon
request all such other and further documents, agreements and instruments in
compliance with or accomplishment of the covenants and agreements of each
Related Person in this Agreement and in the other Loan Documents or to further
evidence and more fully describe the collateral intended as security for the
Notes, or to correct any omissions in this Agreement or the other Loan
Documents, or more fully to state the security for the obligations set out
herein or in any of the other Loan Documents, or to make any recordings, to file
any notices, or obtain any consents.
Section V.5 Reimbursement of Expenses. Borrower shall pay (i) all
reasonable legal fees (including, without limitation, allocated costs for
in-house legal service) incurred by Agent in connection with the preparation,
negotiation, syndication, execution and delivery of this Agreement, the Notes,
the Swing-Line Note and the other Loan Documents and any amendments, consents or
waivers executed in connection therewith, (ii) legal fees (including without
limitation, allocated costs for in-house legal service), in an amount of $1,000
for each Lender (other than Bank United) incurred by such Lender in connection
with the preparation, negotiation or execution of this Agreement, the Notes and
the other Loan Documents, (iii) all fees, charges or taxes for the recording or
filing of the Security Instruments, (iv) all out-of-pocket expenses of Agent in
connection with the administration of this Agreement, the Notes, the Swing-Line
Note and the other Loan Documents, including courier expenses incurred in
connection with the Mortgage Collateral, (v) all amounts expended, advanced or
incurred by Agent to satisfy any obligation of Borrower under this Agreement or
any of the other Loan Documents or to collect the Notes or the Swing-Line Note,
or to protect, preserve, exercise or enforce the rights of Agent or any Lender
under this Agreement or any of the other Loan Documents or to collect the Note,
or to protect, preserve, exercise or enforce the rights of Agent or any Lender
under this Agreement or any of the other Loan Documents, (vi) each Lender for
all out-of-pocket costs and expenses (including fees and disbursements of
attorneys and other experts employed or retained by such Person) incurred in
connection with, arising out of, or in any way related to (a) consulting during
a Default with respect to (A) the protection, preservation, exercise or
enforcement of any of its rights in, under or related to the Collateral or the
Loan Documents or (B) the performance of any of its obligations under or related
to the Loan Documents, or (b) protecting, preserving, exercising or enforcing
during a Default any of its rights in, under or related to the Collateral or the
Loan Documents, each of (i) through (v) shall include all underwriting expenses,
collateral liquidation costs, court costs, attorneys' fees (including, without
limitation, for trial, appeal or other proceedings), fees of auditors and
accountants, and investigation expenses reasonably incurred by Agent or any
Lender in connection with any such matters, together with interest at the
post-maturity rate specified in the Note or the Swing-Line Note on each item
specified in clause (i) through (v) from thirty (30) days after the date of
written demand or request for reimbursement until the date of reimbursement.
Section V.6 Insurance. Borrower shall maintain with financially sound
and reputable insurers, insurance with respect to its Properties (including,
without limitation, all Eligible REO) and business against such liabilities,
casualties, risks and contingencies and in such types and amounts
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as is customary in the case of Persons engaged in the same or similar businesses
and similarly situated, including, without limitation, a fidelity bond or bonds
with financially sound and reputable insurers with such coverage and in such
amounts as is customary in the case of Persons engaged in the same or similar
businesses and similarly situated. The improvements on the land covered by each
Mortgage and on each Eligible REO shall be kept continuously insured at all
times by responsible insurance companies against fire and extended coverage
hazards under policies, binders, letters, or certificates of insurance, with a
standard mortgagee clause in favor of Borrower and its assigns. Each such policy
must be in an amount equal to the lesser of the maximum insurable value of the
improvements (including, without limitation, with respect to all Eligible REO)
or the original principal amount of the Mortgage Note, without reduction by
reason of any co-insurance, reduced rate contribution, or similar clause of the
policies or binders. Upon request of Agent, Borrower shall furnish or cause to
be furnished to Agent from time to time a summary of the, insurance coverage of,
Borrower in form and substance satisfactory to Agent and if requested shall
furnish Agent copies of the applicable policies.
Section V.7 Accounts and Records; Servicing Records. Each Related
Person shall keep books of record and account in which full, true and correct
entries will be made of all dealings or transactions in relation to its business
and activities, in accordance with GAAP. Each Related Person shall maintain and
implement administrative and operating procedures (including, without
limitation, an ability to recreate all records pertaining to the performance of
such Related Person's obligations under the Servicing Agreements in the event of
the destruction of the originals of such records) and keep and maintain all
documents, books, records, computer tapes and other information reasonably
necessary or advisable for the performance by each Related Person of its
obligations under the Servicing Agreements.
Section V.8 Right of Inspection. Each Related Person shall permit
authorized representatives of Agent and of each Lender to discuss the business,
operations, assets and financial condition of such Related Person with their
officers and employees, to examine their Servicing Records and books of records
and account and make copies or extracts thereof and to visit and inspect any of
the Properties of each Related Person, all at such reasonable times and as often
as Agent or any Lender may request. Each Related Person will provide its
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 Agent or any Lender or any authorized representatives of Agent
or any Lender may address to them in reference to the financial condition or
affairs of any Related Person as those conditions or affairs relate to this
Agreement. Each Related Person may have its representatives in attendance at any
meetings between the officers or other representatives of Agent or any Lender
and such Related Person's accountants held in accordance with this
authorization.
Section V.9 Notice of Certain Events. Borrower shall promptly notify
Agent and each Lender upon (i) the receipt of any notice from, or the taking of
any other action by, the holder of any promissory note, debenture or other
evidence of Indebtedness of any Related Person with respect to a claimed
default, together with a detailed statement by a responsible officer of Borrower
specifying the notice given or other action taken by such holder and the nature
of the claimed default and what action Borrower is taking or proposes to take
with respect thereto; (ii) the commencement of, or any determination in, any
legal, judicial or regulatory proceedings which, if adversely dispute between
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any Related Person and any Governmental Authority or any other Person which, if
adversely determined, could have a Material Adverse Effect; (iii) any change in
senior management of Borrower or Guarantor; (iv) any material adverse change in
the business, operations, prospects or financial condition of any Related
Person, including, without limitation, the insolvency of any Related Person, (v)
any event or condition which, if adversely determined, could have a Material
Adverse Effect or (vi) the occurrence of any Termination Event.
Section V.10 Performance of Certain Obligations and Information
Regarding Investors. Borrower shall perform and observe in all material respects
each of the provisions of each Take-Out Commitment and each of the Servicing
Agreements on its part to be performed or observed and will cause all things to
be done which are necessary to have each item of Mortgage Collateral covered by
a Take-Out Commitment comply with the requirements of such Take-Out Commitment.
Upon request by Agent, Borrower will deliver to Agent financial information
concerning any Person Lenders are reviewing to determine whether to approve such
Person as an Investor; all such financial information must be delivered to Agent
prior to any request by Borrower for Mortgage Collateral to be delivered to such
Person.
Section V.11 Use of Proceeds; Margin Stock. The proceeds of the first
Borrowing shall be used to repay Borrower's obligations under the Existing
Agreement, and the proceeds of all other Borrowings shall be used by Borrower
solely for the origination or acquisition of mortgage Loans in the ordinary
course of Borrower's business. None of such proceeds shall be used for the
purpose of purchasing or carrying any "margin stock" as defined in Regulation U,
or for the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which might
constitute this transaction a "purpose credit" within the meaning of such
Regulation U. Neither Borrower nor any Person acting on behalf of Borrower shall
take any action in violation of Regulation U or Regulation X or shall violate
Section 7 of the Securities Exchange Act of 1934 or any rule Dr regulation
thereunder, in each case as now in effect or as the same may hereafter be in
effect.
Section V.12 Notice of Default. Borrower shall furnish to Agent and
each Lender immediately upon becoming aware of the existence of any Default or
Event of Default, a written notice specifying the nature and period of existence
thereof and the action which Borrower is taking or proposes to take with respect
thereto.
Section V.13 Compliance with Loan Documents. Each Related Person shall
promptly comply with any and all covenants and provisions of this Agreement the
Notes and the other Loan Documents to be complied with by such Related Person.
Section V.14 Operations and Properties. Each Related Person shall
comply with all rules, regulations and guidelines applicable to it. Borrower
shall act prudently and in accordance with customary industry standards in
managing and operating its Property.
Section V.15 Year 2000 Covenant. Borrower shall ensure that Borrower
and its Affiliates are Year 2000 Compliant in a timely manner, but in no event
later than December 31, 1999. Borrower shall further make reasonable inquiries
of and request reasonable validation that all major contractors, suppliers,
service providers and vendors of Borrower are similarly Year 2000
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Compliant. As used in this paragraph, "major" shall mean properties or entities
the failure of which to be Year 2000 Compliant would have a material adverse
economic impact upon Borrower. The term "Year 2000 Compliant" shall mean that
all software, hardware, equipment, goods or systems utilized by or material to
the physical operations, business operations, or financial reporting of such
property or entity (collectively, the "systems") will properly Perform date
sensitive functions before, during and after the year 2000. In furtherance of
this covenant, Borrower shall, in addition to any other necessary actions,
perform a comprehensive review and assessment of all systems of Borrower, and
shall adopt a detailed plan, with itemized budget, for the testing, remediation,
and monitoring of such systems. Borrower has provided Agent with satisfactory
documentation and shall provide to Agent such additional certifications or other
evidence of Borrower's compliance with the terms of this paragraph as any Lender
may from time to time reasonably require.
Section V.16 REO Closing Proceeds. Borrower shall send a notice to each
and every closing agent and closing attorney employed by Borrower to sell REO on
behalf of Borrower, which notice shall instruct said closing agent or closing
attorney to remit any and all proceeds (net of expenses of the sale) derived
from the sale of REO directly to the Settlement Account.
Section V.17 Environmental Matters.
(a) Each Related Person will comply in all material respects with all
Environmental Laws now or hereafter applicable to such Related Person and shall
obtain, at or prior to the time required by applicable Environmental Laws, all
environmental, health and safety permits, licenses and other authorizations
necessary for its operations and will maintain such authorizations in full force
and effect.
(b) Borrower will promptly furnish to Agent all written notices of
violation, orders, claims, citations, complaints, penalty assessments, suits or
other proceedings received by Borrower, or of which it has notice, pending or
threatened against Borrower, by any governmental authority with respect to any
alleged violation of or non-compliance with any Environmental Laws or any
permits, licenses or authorizations in connection with its ownership or use of
its properties or the operation of its business.
ARTICLE VI
NEGATIVE COVENANTS
Each Related Person shall at all times comply with the covenants
contained in this Article VI, from the date hereof and for so long as any part
of the Obligations or the Commitment is outstanding unless Majority Lenders have
agreed otherwise (which agreement shall not be unreasonably withheld with
respect to Sections 6.06, 6.08 and 6.13):
Section VI.1 No Merger. Borrower and its Subsidiaries shall not merger
or consolidate with or into any Person, nor shall Borrower or its Subsidiaries
acquire by purchase or otherwise all or substantially all of the assets (except
to the extent that such assets consist solely of Mortgage Notes, securities
which evidence undivided interests in pools of Mortgage Notes, and rights to
service mortgage loans) or capital stock of any Person.
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Section VI.2 Limitation on Indebtedness. At no time shall Borrower
incur, create, contract, assume, have outstanding, guarantee or otherwise be or
become, directly or indirectly, liable in respect cf any Indebtedness except:
(a) the Obligations;
(b) trade debt, equipment leases, equipment loans and liens for taxes
and assessments not yet due and payable owed in the ordinary course of business;
(c) Indebtedness of Borrower under gestation agreements, which
Indebtedness shall be incurred on terms satisfactory to Majority Lenders;
(d) Indebtedness in an aggregate amount not to exceed $5,000,000 to
support securitizations of Mortgage Loans transferred by Borrower to a special
purpose entity, which Indebtedness shall be incurred on terms satisfactory to
Majority Lenders; and
(e) the Subordinated Debt.
Section VI.3 Fiscal Year, Method of Accounting. Neither Borrower nor
Guarantor shall change its Fiscal Year or make any material change in its method
of accounting.
Section VI.4 Business. Borrower shall not, directly or indirectly,
engage in any business which differs materially from that currently engaged in
by Borrower or any other business customarily engaged in by other Persons in the
mortgage banking business.
Section VI.5 Liquidations, mergers, Consolidations and Dispositions of
Substantial Assets. Borrower and its Subsidiaries shall not dissolve or
liquidate or sell, transfer, lease or otherwise dispose of any material portion
of their property or assets or business; provided, however, nothing in this
Section 6.05 shall be construed to prohibit Borrower or its Subsidiaries from
selling rights to service mortgage loans and pools of mortgage loans or Mortgage
Notes in the ordinary course of their business.
Section VI.6 Loans, Advances, and Investments. Borrower shall not make
any loan (other than Mortgage Loans), advance, or capital contribution to, or
investment in (including any investment in any Subsidiary, joint venture or
partnership), or purchase or otherwise acquire any of the capital stock,
securities, or evidences of indebtedness of, any Person (collectively,
"Investment"), or otherwise acquire any interest in, or control of, another
Person, except for the following:
(a) Cash Equivalents;
(b) Any acquisition of securities or evidences of indebtedness of
others when acquired by Borrower in settlement of accounts receivable or other
debts arising in the ordinary course of its business, so long as the aggregate
amount of any such securities or evidences of indebtedness is not material to
the business or condition (financial or otherwise) of Borrower;
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(c) Mortgage Notes and REOs acquired in the ordinary course of
Borrower's business; and
(d) Investment in any Subsidiary listed on EXHIBIT "H," so long as
Agent is given 10 days advance notice of each such Investment in a Subsidiary
and the aggregate amount paid, contributed, lent, or otherwise invested in such
Subsidiary does not exceed $200,000.
Section VI.7 Use of Proceeds. Borrower shall not permit the proceeds of
the Loans to be used for any purpose other than those permitted by Section 5.1l
hereof. Borrower shall not, directly or indirectly, use any of the proceeds of
the Loans for the purpose, whether immediate, incidental or ultimate, of buying
any "margin stock" or of maintaining, reducing or retiring any Indebtedness
originally incurred to purchase a stock that is currently any "margin stock," or
for any other purpose which might constitute this transaction a "purpose
credit," in each case within the meaning of Regulation U, or otherwise take or
permit to be taken any action which would involve a violation of such Regulation
U or of Regulation T (12 C.F.R. 220, as amended) or Regulation X (12 C.F.R. 224,
as amended) or any other regulation of such board.
Section VI.8 Actions with Respect to Mortgage Collateral. Borrower
shall not:
(a) Compromise, extend, release, or adjust payments on any Mortgage
Collateral, accept a conveyance of mortgaged property in full or partial
satisfaction of any Mortgage Collateral, or release any Mortgage securing or
underlying any Mortgage Collateral;
(b) Agree to the amendment or termination of any Take-Out Commitment in
which Agent has a security interest or to substitution of a Take-Out Commitment
for a Take-Out Commitment in which Agent has a security interest hereunder, if
such amendment, termination or substitution may reasonably be expected (as
determined by Majority Lenders in their sole discretion) to have a Material
Adverse Effect;
(c) Transfer, sell, assign, or deliver any Mortgage Collateral pledged
to Agent to any Person other than Agent, except pursuant to a Take-Out
Commitment; or
(d) Grant, create, incur, permit or suffer to exist any Lien upon any
Mortgage Collateral except for Liens granted to Agent to secure the Notes and
obligations and such non-consensual Liens as may be deemed to arise as a matter
of law pursuant to any Take-Out Commitment.
Section VI.9 Net Worth. Borrower's Consolidated Tangible Net Worth
shall never be less than Seven Million Five Hundred Thousand Dollars
($7,500,000.00), computed as of the end of each month. As of the end of each
Fiscal Quarter, Guarantor's Consolidated Net Worth shall not be less than Five
Million Dollars ($5,000,000.00).
Section VI.10 Total Liabilities to Tangible Net Worth Ratio. The ratio
of Borrower's Total Liabilities to Borrower's Consolidated Tangible Net Worth
shall never be more than 12.0 to 1.0, computed as of the end of each calendar
month.
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Section VI.11 Transactions with Affiliates. Borrower shall not enter
into any transactions including, without limitation, any purchase, sale, lease
or exchange of property or the rendering of any service, with any Affiliate
unless such transactions are otherwise permitted under this Agreement, are in
the ordinary course of Borrower's business and are upon fair and reasonable
terms no less favorable to Borrower than it would obtain in a comparable arm's
length transaction with a Person not an Affiliate.
Section VI.12 Liens. Borrower shall not grant, create, incur, assume,
permit or suffer to exist any Lien, upon any of its Property, including without
limitation any and all of Borrower's Mortgage Notes, and Servicing Rights and
the proceeds from any thereof, other than (i) Liens which secure payment of the
obligations, and (ii) to the extent not otherwise prohibited hereunder, Liens
which secure payment of the Indebtedness described in Section 6.02(b) or Section
6.02(c) on Property other than Collateral.
Section VI.13 ERISA Plans. Borrower shall not: adopt or agree to
maintain or contribute to any ERISA Plan. Borrower shall promptly notify Agent
and each Lender in writing in the event an ERISA Affiliate adopts an ERISA Plan.
Section VI.14 Change of Principal Office. No Related Person shall move
its principal office, executive office or principal place of business from the
address set forth in Section 10.01 without prior written notice to Agent and
each Lender.
ARTICLE VII
EVENTS OF DEFAULT
Section VII.1 Nature of Event. An Event of Default shall exist if any
one or more of the following occurs:
(a) Borrower fails to make any payment of principal of or interest on
the Notes or the Swing-Line Note, or payment of any fee, expense or other amount
due hereunder, under the Notes, the Swing-Line Note or under any other Loan
Document, on or before the date such payment is due;
(b) Guarantor fails to make any payment of any Obligation on the date
such payment in due;
(c) Default is made in the due observance or performance by any Related
Person of any covenant set forth in Sections 6.09, 6.10 and Section 6.15 and
such default continues unremedied for thirty (30) calendar days after any
executive officer of such Related Person obtains knowledge thereof;
(d) Default is made in the due observance or performance by any Related
Person of any covenant set forth in Article VI that is not described in
subsections (a), (b) or (c) immediately above;
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(e) Default is made in the due observance or performance by any Related
Person of any of the other covenants or agreements contained in this Agreement
and such Default continues for a period of fifteen (15) days after Agent gives
Borrower notice thereof;
(f) Any Related Person defaults in the due observance or performance or
any of the covenants or agreements contained in any other Loan Document to which
it is a party, and (unless such default otherwise constitutes a Default pursuant
to other provisions of this Section 7.01) such default continues unremedied
beyond the expiration of any applicable grace period which may be expressly
allowed under such other Loan Document;
(g) Any material statement, warranty or representation by or on behalf
of any Related Person contained in this Agreement, the Notes, the Swing-Line
Note or any other Loan Document to which it is a party, or in any Borrowing
Request, officer's certificate or other writing furnished in connection with
this Agreement, proves to have been incorrect or misleading in any material
respect as of the date made or deemed made;
(h) Any Related Person:
(i) suffers the entry against it of a judgment, decree or
order for relief by a court of competent jurisdiction in an involuntary
proceeding commenced under any applicable bankruptcy, insolvency or
other similar law of any jurisdiction now or hereafter in effect,
including the federal Bankruptcy Code, as from time to time amended, or
has any such proceeding commenced against it which remains undismissed
for a period of sixty days; or
(ii) commences a voluntary case under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect,
including the federal Bankruptcy Code, as from time to time amended; or
applies for or consents to the entry of an order for relief in an
involuntary case under any such law; or makes a general assignment for
the benefit of creditors; or fails generally to pay (or admits in
writing its inability to pay) its debts as such debts become due; or
takes corporate or other action to authorize any of the foregoing; or
(iii) suffers the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of all or a substantial part of its assets or of any
part of the Mortgage Collateral in a proceeding brought against or
initiated by it, and such appointment or taking possession is neither
made ineffective nor discharged within sixty days after the making
thereof, or such appointment or taking possession is at any time
consented to, requested by, or acquiesced to by it; or
(iv) suffers the entry against it of a final judgment for the
payment of money in excess of $500,000 (not covered by insurance
satisfactory to Agent in its discretion), unless the same is discharged
within thirty days after the date of entry thereof or an appeal or
appropriate proceeding for review thereof is taken within such period
and a stay of execution pending such appeal is obtained; or
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(v) suffers a writ or warrant of attachment or any similar
process to be issued by any court against all or any substantial part
of its assets or any part of the Mortgage Collateral;
(i) Any Related Person fails to make when due or within any applicable
grace period any payment on any Indebtedness (other than the Obligations) with
an unpaid principal balance of over $100,000; or any event or condition occurs
under any provision contained in any agreement under which such obligation is
governed, evidenced or secured (or any other material breach or default under
such obligation or agreement occurs) if the effect thereof is to cause or permit
the holder or trustee of such obligation to cause such obligation to become due
prior to its stated maturity; or any such obligation becomes due (other than by
regularly scheduled payments) prior to its stated maturity; or any of the
foregoing occurs with respect to any one or more items of Indebtedness of any
Related Person with unpaid principal balances exceeding, in the aggregate,
$100,000;
(j) Any default or event of default occurs under any other Indebtedness
of any Related Person to any Lender;
(k) This Agreement, the Notes, the Swing-Line Note or any other Loan
Document shall for any reason cease to be in full force and effect, or be
declared null and void or unenforceable in whole or in part as the result of any
action initiated by any Person other than Agent or any Lender; or the validity
or enforceability of any such document shall be challenged or denied by any
Person other than Agent or any Lender other than by reason of illegality;
(l) Either (i) any "accumulated funding deficiency" (as defined in
Section 412(a) of the Code in excess of $25,000 exists with respect to any ERISA
Plan, whether or not waived by the Secretary of the Treasury or his delegate, or
(ii) any Termination Event occurs with respect to any ERISA Plan and the then
current value of such ERISA Plan's benefits guaranteed under Title IV of ERISA
exceeds the then current value of such ERISA Plan's assets available for the
payment of such benefits by more than $10,000 (or in the case of a Termination
Event involving the withdrawal of a substantial employer, the withdrawing
employer's proportionate share of such excess exceeds such amount) or (iii) any
Related Person or any ERISA Affiliate withdraws from a multiemployer plan
resulting in liability under Title IV of ERISA of an amount in excess of
$10,000; or
(m) A Change of Control occurs.
Section VII.2 Default Remedies. Upon the occurrence of an Event of
Default, Agent may (and upon written instructions from Majority Lenders, Agent
shall) declare the Commitment to be terminated and/or declare the entire
principal and all interest accrued on the Notes and the Swing-Line Note to be,
and the Notes and the Swing-Line Note, together with all Obligations, shall
thereupon become, forthwith due and payable, without any presentment, demand,
protest, notice of protest and nonpayment, notice of acceleration or of intent
to accelerate or other notice of any kind, all of which hereby are expressly
waived. Notwithstanding the foregoing, if an Event of Default specified in
Subsections 7.01(h)(i), (ii) or (iii) above occurs with respect to Borrower, the
Commitment shall automatically and immediately terminate and the Notes, the
Swing-Line Note and all other obligations shall become automatically and
immediately due and payable, both as to principal and interest, without any
action by Agent or any Lender and without presentment, demand, protest, notice
of protest and nonpayment, notice of acceleration or of intent to accelerate, or
any
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other notice of any kind, all of which are hereby expressly waived, anything
contained herein, in any Notes or the Swing-Line Note to the contrary
notwithstanding.
ARTICLE VIII
INDEMNIFICATION
Section VIII.1 Indemnification. Each of Borrower and Guarantor agrees
to indemnify Agent and each Lender and each director, officer, agent, attorney,
employee, representative and Affiliate of Agent and each Lender (each an
"Indemnified Party"), upon demand, from and against any and all liabilities,
obligations, claims, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements (including reasonable fees of attorneys,
accountants, experts and advisors) of any kind or nature whatsoever (in this
Section 8.01 collectively called "liabilities and costs") which to any extent
(in whole or in part) may be imposed on, incurred by, or asserted against any
Indemnified Party growing out of, resulting from or in any other way associated
with any of the Mortgage Collateral, the Loan Documents, any Mortgage Loan
originated for the construction of a Construction Home, and the transactions and
events (including the enforcement or defense thereof) at any time associated
therewith or contemplated therein (including any violation or noncompliance with
any Environmental Laws by any Related Person).
THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH
LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR
IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, OR ARE CAUSED
IN WHOLE OR PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY SUCH
INDEMNIFIED PARTY,
provided only that such indemnified party shall be not entitled under this
section to receive indemnification for that portion, if any, of any liabilities
and costs which is proximately caused by its own individual gross negligence or
willful misconduct. All amounts payable by Borrower and Guarantor shall be
immediately due upon Agent's request for the payment thereof.
Section 8.02 Limitation of Liability. None of Agent, Lenders, their
directors, officers, agents, attorneys, employees, representatives or affiliates
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement. THE FOREGOING EXCULPATION SHALL APPLY TO
ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY SUCH PERSON, PROVIDED THAT SUCH
PERSON SHALL BE LIABLE FOR ITS OWN INDIVIDUAL GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
ARTICLE IX
AGENT
Section IX.1 Appointment and Authority. Each Lender hereby irrevocably
authorizes Agent, and Agent hereby undertakes, to receive payments of principal,
interest and other amounts due hereunder as specified herein to act as
Collateral agent and representative (within the meaning
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of Section 9.105(13) of the UCC) for such Lender under the Security Agreement
with such powers as are reasonably incidental thereto, to act as secured party,
agent, bailee and custodian for the exclusive benefit of Lenders with respect to
the Collateral, and to take all other actions and to exercise such powers under
the Loan Documents as are specifically delegated to Agent by the terms hereof or
thereof, together with all other powers reasonably incidental thereto. The
relationship of Agent to Lenders is only that of one commercial bank acting as
administrative agent for others, the Agent's duties shall be purely ministerial,
and nothing in the Loan Documents shall be construed to constitute Agent a
trustee or other fiduciary for any holder of any of the Notes or of any
participation therein nor to impose on Agent duties and obligations other than
those expressly provided for in the Loan Documents. Agent shall not be required
to exercise any discretion or take any action, and it may request instructions
from Lenders with respect to any such matter, in which case it shall be required
to act or to refrain from acting (and shall be fully protected and free from
liability to all Lenders in so acting or refraining from acting) upon the
instructions of majority Lenders (including itself), provided, however, that
Agent shall not be required to take any action which exposes it to a risk of
personal liability that it considers unreasonable or which is contrary to the
Loan Documents or to applicable law. Upon receipt by Agent from Borrower of any
communication calling for action on the part of Lenders or upon notice from any
Lender to Agent of any Default or Event of Default, Agent shall promptly notify
each Lender thereof. Each Lender hereby authorizes Agent to execute deliver and
perform, in name of and on behalf of such Lender, the Security Agreement. Agent
may execute any of its duties by or through agents or attorneys in fact.
Section IX.2 Agent's Reliance, Etc. Neither Agent nor any of its
directors, officers, agents, attorneys, or employees shall be liable for any
action taken or omitted to be taken by any of them under or in connection with
the Loan Documents, including their negligence of any kind, except that each
shall be liable for its own gross negligence or willful misconduct. Without
limiting the generality of the foregoing, Agent (a) may treat the payee of any
Note as the holder thereof until Agent receives written notice of the assignment
or transfer thereof in accordance with this Agreement, signed by such payee and
in form satisfactory to Agent; (b) may consult with legal counsel (including
counsel for Borrower), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations made
in or in connection with the Loan Documents; (d) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of the Loan Documents on the part of Borrower or the
value or sufficiency of the Collateral or to inspect the Property (including the
books and records) of Borrower; (e) shall not be responsible to any Lender for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of any Loan Document or any instrument or document furnished in
connection therewith; (f) may rely upon the representations and warranties of
Borrower and the Lenders in exercising its powers hereunder; and (g) shall incur
no liability under or in respect of the Loan Documents by acting upon any
notice, consent, certificate or other instrument or writing (including any
telecopy, telegram, cable or telex) believed by it to be genuine and signed or
sent by the proper Person or Persons.
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Section IX.3 Lenders' Credit Decisions. Each Lender acknowledges that
it has, independently and without reliance upon Agent or any other Lender in
full compliance with Lender's responsibilities under all applicable Governmental
Requirements (including but not limited to the due diligence requirements of
Banking Circular 181 promulgated by the Office of the Comptroller of the
Currency) based on its own commercial lending expertise has made its own
analysis of Borrower and the transactions contemplated hereby and its own
independent decision to enter into this Agreement and the other Loan Documents.
Each Lender as a sophisticated commercial lender has based its decision to make
the Loan upon a complete analysis of Borrower's credit quality, the value and
lien status of Collateral and the Loan Documents, conducted at the same level of
due diligence that Lender would undertake if it alone were making the Loan. Each
Lender also acknowledges that it will, independently and without reliance upon
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents. Each Lender's Loan is a
commercial loan transaction made in the ordinary course of Lender's business,
about which Lender, as a commercial lender, is fully informed and actively
involved on a daily basis. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Agent has received notice from a Lender or the Borrower referring to the Loan
Documents, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event the Agent receives such notice,
the Agent shall give notice thereof to the Lenders. The Agent shall take such
action with respect to such Default or Event of Default as directed by the
number of Lenders required for such action.
Section IX.4 Indemnification. Each Lender agrees to indemnify Agent (to
the extent not reimbursed by Borrower within ten (10) days after demand) from
and against such Lender's Percentage Share of any and all liabilities,
obligations, claims, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements (including reasonable fees of attorneys,
accountants, experts and advisors) of any kind or nature whatsoever (in this
section, collectively, "liabilities and costs") which to any extent (in whole or
in part) may be imposed on, incurred by, or asserted against Agent, in its
capacity as Agent, growing out of, resulting from or in any other way associated
with any of the Collateral, the Loan Documents, any Mortgage Loan for the
construction of a one-to-four family residence, and the transactions and events
(including the enforcement thereof) at any time associated therewith or
contemplated therein. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT
SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED UNDER ANY CLAIM
OR THEORY OF STRICT LIABILITY OR ARE CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY KIND BY AGENT OR BY STRICT LIABILITY, PROVIDED
ONLY THAT NO LENDER SHALL BE OBLIGATED UNDER `PHIS SECTION TO INDEMNIFY AGENT
FOR THAT PORTION, IF ANY, OF ANY LIABILITIES AND COSTS WHICH IS PROXIMATELY
CAUSED BY AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS DETERMINED IN A
FINAL JUDGMENT. Cumulative of the foregoing, each Lender agrees to reimburse
Agent promptly upon demand for such Lender's Percentage Share of any costs and
expenses to be paid to Agent by Borrower under Section 5.05 to the extent that
Agent is not timely reimbursed for such expenses by Borrower as provided in such
section. As used in this section the term "Agent" shall refer not only to the
Person designated as such in Section 1.01 but also to each director, officer,
agent, attorney, employee, representative and Affiliate of such Person.
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Section IX.5 Rights as Lender. In its capacity as a Lender, Agent shall
have the same rights and obligations as any Lender and may exercise such rights
as though it were not Agent. Agent may accept deposits from, lend money to, act
as Trustee under indentures of, and generally engage in any kind of business
with Borrower or its Affiliates, all as if it were not Agent hereunder and
without any duty to account therefor to any other Lender.
Section IX.6 Sharing of Set-Offs and Other Payments. Each of Agent and
Lender agrees that if it shall, whether through the exercise of rights under
Security Instruments or rights of banker's lien, set off, or counterclaim
against Borrower or otherwise, obtain payment of a portion of the aggregate
obligations owed to it which, taking into account all distributions made by
Agent under Section 2.06, causes Agent or such Lender to have received more than
it would have received had such payment been received by Agent and distributed
pursuant to Section 2.06, then (a) such Lender shall be deemed to have
simultaneously purchased and shall be obligated to purchase interests in the
obligations as necessary to cause Agent and all Lenders to share all payments as
provided for in Section 2.06, and (b) such other adjustments shall be made from
time to time as shall be equitable to ensure that Agent and all Lenders share
all payments of Obligations as provided in Section 2.06; provided, however, that
nothing herein contained shall in any way affect the right of Agent or any
Lender to obtain payment (whether by exercise of rights of banker's lien,
set-off or counterclaim or otherwise) of indebtedness other than the
Obligations. Borrower expressly consents to the foregoing arrangements and
agrees that any holder of any such interest or other participation in the
obligations, whether or not acquired pursuant to the foregoing arrangements, may
to the fullest extent permitted by law exercise any and all rights of banker's
lien, set-off, or counterclaim as fully as if such holder were a holder of the
obligations in the amount of such interest or other participation. If all or any
part of any funds transferred pursuant to this section is thereafter recovered
from a Lender under this section which received the same, the purchase provided
for in this section shall be deemed to have been rescinded to the extent of such
recovery, together with interest, if any, if interest is required pursuant to
court order to be paid on account of the possession of such funds prior to such
recovery.
Section IX.7 Investments. Whenever Agent in good faith determines that
it is uncertain about how to distribute to Lenders any funds which it has
received, or whenever Agent in good faith determines that there is any dispute
among Lenders about how such funds should be distributed, Agent may choose to
defer distribution of the funds which are the subject of such uncertainty or
dispute. If Agent in good faith `believes that the uncertainty or dispute will
not be promptly resolved, or if Agent is otherwise required to invest funds
pending distribution to Lenders, Agent shall invest such funds pending
distribution; all interest on any such investment shall be distributed upon the
distribution of such investment and in the same proportion and to the same
Persons as such investment. All moneys received by Agent for distribution to
Lenders (including Agent in its separate capacity as a Lender) shall be held by
Agent pending such distribution solely as Agent for such Lenders, and Agent
shall have no equitable title to any portion thereof.
Section IX.8 Benefit of Article IX. The provisions of this Article are
intended solely for the benefit of Agent and Lenders, and shall not be entitled
to rely on any such provision or assert any such provision in a claim or defense
against Agent or any Lender. Agent and Lenders may waive or amend such
provisions as they desire without any notice to or consent of Borrower.
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Section IX.9 Resignation. Agent may resign at any time by giving
written notice thereof to Lenders and Borrower. Each such notice shall set forth
the date of such resignation. Upon any such resignation Majority Lenders shall
have the right to appoint a successor Agent. A successor must be appointed for
any retiring Agent, and such Agent's resignation shall become effective when
such successor accepts such appointment. If, within thirty days after the date
of: the retiring Agent's resignation, no successor Agent has been appointed and
has accepted such appointment, then the retiring Agent may appoint on behalf of
the Lenders a successor Agent, which shall be a Lender or commercial bank
organized or licensed to conduct a banking or trust business under the laws of
the United States of America or of any state thereof. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, the retiring Agent shall be
discharged from its duties and obligations under this Agreement and the other
Loan Documents. The successor Agent shall thereupon succeed to and become vested
with all rights, powers, privileges and duties and obligations as Agent under
the Loan Documents. The retiring Agent shall transfer all Collateral within its
possession or control to the successor Agent and shall execute and deliver such
notices, instructions and assignments as may be necessary or desirable to
transfer the rights of Agent with respect to the Collateral to the successor
Agent. After any retiring Agent's resignation as Agent, the provisions of this
Article IX and the provisions of the Loan Agreement providing for the
indemnification of Agent by Borrower or Lenders, shall continue in effect for
retiring Agent's benefit with respect to any of the actions taken or omitted to
be taken by it while acting as Agent.
Section IX.10 NO REPRESENTATIONS. LENDERS ACKNOWLEDGE AND AGREE THAT
AGENT HAS MADE NO REPRESENTATION OR WARRANTY, WRITTEN OR ORAL, EXPRESS OR
IMPLIED, REGARDING THE ACCURACY OR COMPLETENESS OF ANY INFORMATION RELATING TO
BORROWER OR THE COLLATERAL INCLUDING BUT NOT LIMITED TO THE CREDITWORTHINESS OF
BORROWER OR ANY OBLIGOR, OR THE CONDITION OR COLLECTABILITY OF ANY ASSET. AGENT
AND ITS DIRECTORS, OFFICERS, AGENTS, ATTORNEYS, EMPLOYEES, REPRESENTATIVES AND
AFFILIATES SHALL HAVE NO LIABILITY TO ANY LENDER OR ANY OTHER PERSON RESULTING
FROM ANY SUCH INFORMATION.
ARTICLE X
MISCELLANEOUS
Section X.1 Notices. Any notice or request required or permitted to be
given under or in connection with this Agreement, the Notes or the other Loan
Documents (except as may otherwise be expressly required therein) shall be in
writing and shall be mailed by first class or express mail, postage prepaid, or
sent by telex, telegram, telecopy or other similar form of rapid transmission,
confirmed by mailing (by first class or express mail, postage prepaid) written
confirmation at substantially the same time as such rapid transmission, or
personally delivered to an officer of the receiving party. All such
communications shall be mailed, sent or delivered to the parties hereto at their
respective addresses as follows:
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Borrower: Mortgage Portfolio Services, Inc.
5520 LBJ Freeway
Suite 200
Dallas, Texas 75240
Attn: James E. Hinton
Facsimile: (972) 503-8756
Telephone: (972) 404-4400
Guarantor: NAB Asset Corporation
4144 N. Central Expressway, Suite 900
Dallas, Texas 75204
Attn: Alan Ferree
Facsimile: (214) 821-3689
Telephone: (214) 860-1882
Agent: Bank United
Attn: Frank Hattemer
3200 Southwest Freeway, Suite 2702
Houston, Texas 77027
Facsimile: (713) 543-6022
Telephone: (713) 543-6486
or at such other addresses or to such individual's or department's attention as
any party may have furnished the other party in writing. Any communication so
addressed and mailed shall be deemed to be given when so mailed, except that
Borrowing Requests, and communications related thereto shall not be effective
until actually received by Agent or Borrower, as the case may be; and any notice
so sent by rapid transmission shall be deemed to be given when receipt of such
transmission is acknowledged, and any communication so delivered in person shall
be deemed to be given when receipted for by, or actually received by, an
authorized officer of Borrower or Agent, as the case may be.
Section X.2 Amendments, Etc. No amendment or waiver of any provision of
this Agreement, the Security Instruments, the Notes, or any other Loan Document,
nor consent to any departure by any Related Person from the terms thereof, shall
in any event be effective unless the same shall be in writing and signed by (i)
if such party is Borrower, by Borrower, (ii) if such party is Agent, by Agent
and (iii) if such party is a Lender, by such Lender or by Agent on behalf of
Lenders with the written consent of Majority Lenders (or without further consent
than that already provided herein in the circumstances provided in Section
10.15). Notwithstanding the foregoing or anything to the contrary herein, Agent
shall not, without the prior consent of each individual Lender, execute and
deliver on behalf of such Lender any waiver or amendment which would: (1) waive
any of the conditions specified in Article III (provided that Agent may in its
discretion withdraw any request it has made under Section 3.02(g)), (2) increase
the Percentage Share of the Commitment of such Lender or subject such Lender to
any additional obligations, (3) reduce any fees hereunder, or the principal of,
or interest on, such Lender's Note, (4) postpone any date fixed for any payment
of any fees hereunder, or principal of, or interest on, such Lender's Note, (5)
amend the definition herein of "Majority Lenders" or otherwise change the
aggregate amount of Percentage Shares which
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is required for Agent, Lenders or any of them to take any particular action
under the Loan Documents, (6) release Borrower from its obligation to pay such
Lender's Note, (7) amend the definitions of "Mortgage Collateral," "Collateral
Value of Tranche A Borrowing Base," "Collateral Value of Tranche B Borrowing
Base" or "Aggregate Collateral Value of the Borrowing Base," "Eligible Agency
Mortgage Loan," "Eligible Manufactured Housing Mortgage Loan," "Eligible
Mortgage Loan," "Eligible REO," "Eligible Repurchased Defaulted Mortgage,"
"Eligible Tranche A Mortgage Loan," "Eligible Tranche B Mortgage Loan,"
"Eligible Tranche C Mortgage Loan" or "Unit, Collateral Value," (8) release
Guarantor from any of its obligations under the Loan Documents, or (9) release
any Collateral except in accordance with and pursuant to the Loan Documents.
Each waiver or amendment granted pursuant to this Section shall be effective
only in the specific instance and for the specific purpose given.
Section X.3 CHOICE OF LAW; VENUE. THIS AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF TEXAS. ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT AND MAINTAINED IN THE
APPLICABLE STATE OR FEDERAL COURT IN HARRIS COUNTY, TEXAS. THIS AGREEMENT IS
PERFORMABLE IN HARRIS COUNTY, TEXAS AND THE PARTIES HERETO WAIVE ANY RIGHT THEY
MAY HAVE TO BE SUED ELSEWHERE. THE PARTIES HERETO CONSENT TO PERSONAL
JURISDICTION IN HARRIS COUNTY, TEXAS. SECTION 346 OF THE TEXAS FINANCE CODE
(WHICH REGULATES CERTAIN REVOLVING LOAN ACCOUNTS AND REVOLVING TRIPARTY
ACCOUNTS) SHALL NOT APPLY TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
Section X.4 Invalidity. In the event that any one or more of the
provisions contained in the Notes, this Agreement or any other Loan Document
shall, for any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of such document.
Section X.5 Survival of Agreements. All covenants and agreements herein
and in any other Loan Document not fully performed before the date hereof or the
date thereof, and all representations and warranties herein or therein, shall
survive until payment in full of the Obligations and termination of the
Commitment.
Section X.6 Renewal, Extension or Rearrangement. All provisions of this
Agreement and of the other Loan Documents shall apply with equal force and
effect to each and all promissory notes hereafter executed which in whole or in
part represent a renewal, extension for any period, increase or rearrangement of
any part of the Obligations originally represented by the Notes or of any part
of such other Obligations.
Section X.7 Waivers. No course of dealing on the part of Agent or any
Lender, or any of its officers, employees, consultants or agents, nor any
failure or delay by Agent or such Lender with respect to exercising any right,
power or privilege of Agent or any Lender under the Notes, this Agreement or any
other Loan Document shall operate as a waiver thereof, except as otherwise
provided in Section 10.02 hereof.
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Section X.8 Cumulative Rights. The rights and remedies of Agent and
each Lender under the Notes, this Agreement, and any other Loan Document shall
be cumulative, and the exercise or partial exercise of any such right or remedy
shall not preclude the exercise of any other right or remedy.
Section X.9 Limitation on Interest. Agent, Lenders, each Related Person
and any other parties to the Loan Documents intend to contract in strict
compliance with applicable usury law from time to time in effect. In furtherance
thereof such Persons stipulate and agree that none of the terms and provisions
contained in the Loan Documents shall ever be construed to create a contract to
pay, for the use, forbearance or detention of money, interest in excess of the
maximum amount of interest permitted to be charged by applicable law from time
to time in effect. Neither each Related Person nor any present or future
guarantors, endorsers, or other Persons hereafter becoming liable for payment of
any obligation shall ever be liable for unearned interest thereon or shall ever
be required to pay interest thereon in excess of the maximum amount that may be
lawfully charged under applicable law from time to time in effect, and the
provisions of this section shall control over all other provisions of the Loan
Documents which may be in conflict or apparent conflict herewith. Agent and
Lenders expressly disavow any intention to charge or collect excessive unearned
interest or finance charges in the event the maturity of any Obligation is
accelerated. If (a) the maturity of any obligation is accelerated for any
reason, (b) any Obligation is prepaid and as a result any amounts held to
constitute interest are determined to be in excess of the legal maximum, or (c)
Agent or any Lender or any other holder of any or all of the Obligations shall
otherwise collect moneys which are determined to constitute interest which would
otherwise increase the interest on any or all of the obligations to an amount in
excess of that permitted to be charged by applicable law then in effect, then
all such sums determined to constitute interest in excess of such legal limit
shall, without penalty, be promptly applied to reduce the then outstanding
principal of the related Obligations or, at Agent's or such Lender's or such
holder's option, promptly returned to each Related Person or the other payor
thereof upon such determination. In determining whether or not the interest paid
or payable, under any specific circumstance, exceeds the maximum amount
permitted under applicable law, Agent, Lenders and the each Related Persons (and
any other payors thereof) shall to the greatest extent permitted under
applicable law, (i) characterize any non-principal payment as an expense, fee or
premium rather than as interest, (ii) exclude voluntary prepayments and the
effects thereof, and (iii) amortize, prorate, allocate, and spread the total
amount of interest throughout the entire contemplated term of the instruments
evidencing the Obligations in accordance with the amounts outstanding from time
to time thereunder and the maximum legal rate of interest from time to time in
effect under applicable law in order to lawfully charge the maximum amount of
interest permitted under applicable law. In the event applicable law provides
for an interest ceiling under Section 303 of the Texas Finance Code, that
ceiling shall be the weekly ceiling.
Section X.10 Bank Accounts; Offset. To secure the repayment of the
obligations each Related Person hereby grants to Agent, each Lender and to each
financial institution which hereafter acquires a participation or other interest
in the Loans or Notes (in this section called a "Participant") a security
interest, a lien, and a right of offset, each of which shall be in addition to
all other interests, liens, and rights of Agent, any Lender or Participant at
common law, under the Loan Documents, or otherwise, and each of which shall be
upon and against (a) any and all moneys, securities or other property (and the
proceeds therefrom) of any Related Person now or hereafter held or received by
or in transit to Agent, any Lender or Participant from or for the account any
Related Person, whether
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for safekeeping, custody pledge, transmission, collection or otherwise, (b) any
and all deposits (general or special, time or demand, provisional or final) of
any Related Person with Agent, any Lender or Participant, and (c) any other
credits and claims of any Related Person at any time existing against Agent, any
Lender or Participant, including claims under certificates of deposit. Upon the
occurrence of any Default, each of Agent, Lenders and Participants is hereby
authorized to foreclose upon, offset, appropriate, and apply, at any time and
from time to time, without notice to Borrower, any and all items hereinabove
referred to against the Obligations then due and payable.
Section X.11 Assignments, Participations.
(a) Assignments. Each Lender shall have the, right to sell, assign or
transfer all or any part of such Lender's Note, Loans and rights and the
associated rights and obligations under all Loan Documents to one or more
financial institutions, with minimum assets of $5,000,000,000; provided, that
each such sale, assignment, or transfer shall be with the reasonable consent of
Agent, and the assignee, transferee or recipient shall have, to the extent of
such sale, assignment, or transfer, the same rights, benefits and obligations as
it would if it were such Lender and a holder of such Note, including, without
limitation, the right to vote on decisions requiring consent or approval of all
Lenders or Majority Lenders and the obligation to fund its Percentage Share of
any Loan directly to Agent; provided further, that (i) each Lender in making
each such sale, assignment, or transfer must dispose of a pro rata portion of
each Loan made by such Lender, (ii) each such sale, assignment, or transfer
shall be in a principal amount not less than $5,000,000, or the entire amount of
Lender's Percentage Share, if less than $5,000,000, (iii) each Lender shall at
all times maintain Loans then outstanding in an aggregate amount at least equal
to $5,000,000 (unless Lender transfers 100% of its Percentage Share), (iv) each
Lender may not offer to sell its Note and Loans or interests therein in
violation of any securities laws, and (v) no such assignments shall become
effective until (i) the assigning Lender delivers to Agent copies of all written
assignments and other documents evidencing any such assignment or related
thereto and the assignee Lender becomes a party to this Agreement.
Notwithstanding the provisions of clauses (ii) and (iii) above, a Lender may
make a sale, assignment or transfer, or maintain Loans then outstanding, in an
amount which is less than that required above provided that Borrower and such
Lender have agreed to modify such requirements and have delivered to Agent prior
written evidence of their agreement to make such modification. An assignment fee
in the amount of $2,500 for each such assignment will be payable to Agent by
assignor or assignee. Within five (5) Business Days after its receipt of notice
that the Agent has received copies of any assignment and the other documents
relating thereto, the assignee shall notify Borrower of the outstanding
principal balance of the Notes payable to such Lender and shall execute and
deliver to Agent (for delivery to the relevant assignee) new Notes evidencing
such assignee's assigned Loans and, if the assignor Lender has retained a
portion of its Loans, replacement Notes in the principal amount of the Loans
retained by the assignor Lender (such Notes to be in exchange for, but not in
payment of, the Notes held by such Lender).
(b) Participations. Each Lender shall have the right to grant
participations in all or any part of such Lender's Note, Loans and the
associated rights and obligations under all Loan Documents to one or more
financial institutions with minimum assets of $5,000,000,000; provided that (i)
each Lender granting a participation shall use its best efforts to give prior
notice of any such participation, but in any event shall promptly notify Agent
and Borrower thereof, (ii) each Lender granting a participation shall retain the
right to vote hereunder, and no participant shall be entitled
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to vote hereunder on decisions requiring consent or approval of Majority Lenders
(except as set forth in (iv) below), (iii) each Lender and Borrower shall be
entitled to deal with the Lender granting a participation in the same manner as
if no participation had been granted, and (iv) no participant shall ever have
any right by reason of its participation to exercise any of the rights of
Lenders hereunder, except that any Lender may agree with any participant that
such Lender will not, without the consent of such participant, consent to any
amendment or waiver described in Section 10.02 requiring approval of 100% of the
Lenders.
(c) Distribution of Information. It is understood and agreed that any
Lender may provide to assignees and participants and prospective assignees and
participants financial information and reports and data concerning Borrower's
properties and operations which was provided to such Lender pursuant to this
Agreement.
Section X.12 Exhibits. The exhibits attached to this Agreement are
incorporated herein and shall be considered a part of this Agreement for the
purposes stated herein, except that in the event of any conflict between any of
the provisions of such exhibits and the provisions of this Agreement, the
provisions of this Agreement shall prevail.
Section X.13 Titles of Articles, Sections and Subsections. All titles
or headings to articles, sections, subsections or other divisions of this
Agreement or the exhibits hereto are only for the convenience of the parties and
shall not be construed to have any effect or meaning with respect to the other
content of such articles, sections, subsections or other divisions, such other
content being controlling as to the agreement between the parties hereto.
Section X.14 Counterparts. This Agreement may be executed in
counterparts, and it shall not be necessary that the signatures of both of the
parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all counterparts together shall constitute one
and the same instrument.
Section X.15 ENTIRE AGREEMENT. THE NOTES, THE SWING-LINE NOTE, THIS
AGREEMENT, AND THE OTHER LOAN DOCUMENTS EXECUTED AND DELIVERED AS OF EVEN DATE
HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND THERETO
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
Section X.16 Termination; Limited Survival. In its sole and absolute
discretion Borrower may at any time that no Obligations are owing elect in a
notice delivered to Agent to terminate this Agreement. Upon receipt by Agent of
such a notice, if no Obligations are then owing, this Agreement and all other
Loan Documents shall thereupon be terminated and the parties thereto released
from all prospective obligations thereunder. Notwithstanding the foregoing or
anything herein to the contrary, any waivers or admissions made by any Person in
any Loan Documents, any obligations, and any obligations which any Person may
have to indemnify or compensate Agent and any Lender shall survive any
termination of this Agreement or any other Loan Document. At the request and
expense of Borrower, Agent shall prepare and execute all necessary instruments
to
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reflect and effect such termination of the Loan Documents. Agent is hereby
authorized to execute all such instruments on behalf of all Lenders, without the
joinder of or further action by any Lender.
Section X.17 Joint and Several Liability. All Obligations which are
incurred by two or more Related Persons shall be their joint and several
obligations and liabilities.
Section X.18 Restatement. This Agreement amends and restates the
Existing Agreement in its entirety.
Section X.19 Disclosures. Agent and Lenders may disclose to, and
exchange and discuss with, any other Person any information concerning the
Collateral or Borrower or any Subsidiary (whether received by Agent, Lenders or
any other Person) for the purpose of (a) complying with Governmental
Requirements or any legal proceedings, (b) protecting or preserving the
Collateral, (c) protecting, preserving, exercising or enforcing any of their
rights in, under or related to the Collateral or the Loan Documents, (d)
performing any of their obligations under or related to the Loan Documents, or
(e) consulting with respect to any of the foregoing matters.
SECTION X.20 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES
ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH
OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND ANY OTHER LOAN DOCUMENTS.
SECTION X.21 CONSEQUENTIAL DAMAGES. NEITHER BORROWER, AGENT NOR ANY
LENDER SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND EACH SUCH PERSON HEREBY
WAIVES, RELEASES AND AGREES NOT TO SUE EACH OTHER SUCH PERSON FOR, ANY SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES SUFFERED BY SUCH OTHER PERSON IN CONNECTION
WITH ANY CLAIM RELATED TO THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first above written.
BORROWER: MORTGAGE PORTFOLIO SERVICES, INC.
By: _____________________________________
James E. Hinton,
President
GUARANTOR: NAB ASSET CORPORATION
By: _____________________________________
Alan K. Ferree,
Senior Vice President
AGENT: BANK UNITED
By: _____________________________________
Francis S. Hattemer,
Managing Director
Mortgage Banker Finance
LENDERS:
Percentage Share: _____% BANK UNITED
By: _____________________________________
Francis S. Hattemer,
Managing Director
Mortgage Banker Finance
Percentage Share: _____% RESIDENTIAL FUNDING CORPORATION
By: _____________________________________
Name: _______________________________
Title: ______________________________
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Percentage Share: _____% U.S. BANK NATIONAL ASSOCIATION
By: _____________________________________
Name: _______________________________
Title: ______________________________
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EXHIBIT 10.19
SEPARATION AGREEMENT
This Agreement dated as of June 4, 1999 is between NAB Asset
Corporation ("NAB"), a Texas corporation, and Michael W. Caton ("CATON").
RECITALS
a. NAB and Caton are parties to a certain Employment Agreement dated
December 1, 1996, pursuant to which Caton served as President of NAB (the
"EMPLOYMENT AGREEMENT").
b. Prior to June 5, 1999 Caton was employed by NAB through Administaff,
Inc. ("ADMINISTAFF"), from which NAB leased the full time services of Caton, as
contemplated by Section 7 of the Employment Agreement. As used in this
Agreement, the term "CATON'S EMPLOYMENT" means Caton's employment with NAB, and
also includes his employment with Administaff.
c. By mutual agreement, on June 4, 1999, Caton's Employment terminated.
d. Caton is a director of NAB, NAFCO, CPF and Mortgage Portfolio
Services, Inc. ("MPS"), a Delaware corporation and a subsidiary of NAB.
e. Caton Financial Services, Inc., ("CFS") is a California corporation
of which Caton is the President and the sole director. CFS is in the business of
providing financial consulting and finding services. Caton and his spouse
beneficially own all of the outstanding shares of CFS's capital stock.
f. Caton desires to provide financial and finding services to NAB
through CFS, rather than as an employee of NAB.
g. Simultaneously with the execution and delivery of this Agreement, at
Caton's request, NAB and CFS are entering into a Consulting and Finder's
Agreement of even date herewith (the "CONSULTING AGREEMENT"), from which NAB,
the Consultant and Caton expect to derive material direct and indirect benefit.
h. NAB and Caton desire to terminate the Employment Agreement and to
set forth their agreement as to their respective rights and obligations relating
to the termination of Caton's Employment.
i. Construction Portfolio Funding, Inc. ("CPF") is a Texas corporation
(i) which is a more than 80% owned subsidiary of NAB and (ii) of which Caton is
the holder of 187,500 shares of the common stock ("CATON'S CPF SHARES").
j. NAFCO, Inc. ("NAFCO") is a Delaware corporation (i) which is a more
than 80% owned subsidiary of NAB and (ii) of which Caton is the holder of 500
shares of the common stock ("CATON'S NAFCO SHARES").
k. Caton has requested that NAB purchase Caton's CPF Shares and Caton's
NAFCO
<PAGE> 2
Shares, and NAB is willing to do so on the terms hereinafter set forth.
NOW THEREFORE, in consideration of (i) the mutual promises,
commitments, agreements and undertakings hereunder and (ii) the execution and
delivery of the Consulting Agreement, the parties agree as follows:
SECTION 1. TERMINATION OF EMPLOYMENT AND EMPLOYMENT AGREEMENT
(a) NAB and Caton hereby agree that Caton's Employment terminated on
June 4, 1999.
(b) The Employment Agreement is hereby terminated, effective June 4,
1999. From and after June 4, 1999, NAB and Administaff shall have no further
obligations or liability to Caton, and Caton shall have no further obligations
to NAB, under the Employment Agreement or otherwise arising out of or related in
any manner (directly or indirectly) Caton's Employment, except as provided for
in this Agreement. Without in any manner limiting the generality of the
preceding sentence, NAB is not and shall not be obligated (i) to pay (or cause
Administaff to pay) Caton any additional salary or other compensation pursuant
to Section 3(a) of the Employment Agreement, (ii) to reimburse (or cause
Administaff to reimburse) Caton for any expenses pursuant to Section 3(c) of the
Employment Agreement, (iii) to pay Caton (or cause Administaff to pay) any bonus
or the "LTDIP Amount" under Section 4 of the Employment Agreement, (iv) to pay
(or cause Administaff to pay) Caton any severance or salary continuation under
Section 6 of the Employment Agreement or (v) to provide (or cause Administaff to
provide) any employee benefits to Caton under Section 3(b) or Section 6 of the
Employment Agreement.
SECTION 2. RESIGNATION
Caton hereby resigns as a director of NAB and as an officer and
director of CPF, NAFCO MPS and MPS Funding Corporation (which is also a NAB
subsidiary ("MPSF"), effective the close of business on June 4, 1999. Caton is
simultaneously executing separate resignations to be filed in the minute books
of said companies. NAB shall file, or cause its subsidiaries to file, such
certificates or documents with the applicable state authorities to report
Caton's resignations as may be required by applicable laws or governmental
regulations.
SECTION 3. HEALTH INSURANCE PREMIUMS
Caton and his spouse are currently included in and covered by
Administaff's group health insurance plan, pursuant to Caton's "COBRA" election
to continue such inclusion. NAB shall be obligated to pay or (reimburse
Administaff for) the premiums for such coverage allocable to the period from
June 4, 1999 through May 31, 2000; provided; however, that such obligation shall
terminate if Caton breaches any of his obligations under this Agreement or if
CFS breaches any of its obligations under the Consulting Agreement. Premiums
allocable to any period beginning after May 31, 2000 shall be the responsibility
of Caton, and NAB shall have no obligation to pay (or reimburse Administaff or
Caton for) the same.
SECTION 4. OBLIGATIONS OF CONFIDENTIALITY
(a) Caton acknowledges that, in the course of his employment with NAB,
he has learned Confidential Information, as defined in Section 4(b), relating to
the businesses of NAB and its subsidiaries. Caton shall not disclose or use or
enable anyone else to disclose or use any such
<PAGE> 3
Confidential Information at any time without NAB's prior written approval.
(b) "CONFIDENTIAL INFORMATION" shall include, but not be limited to,
the following types of information and regarding NAB and its subsidiaries:
corporate information, including contractual arrangements, plans, strategies,
tactics, policies, resolutions, copyrights and patent applications, and any
litigation or negotiations; marketing information, including sales or product
plans, strategies, tactics, methods, customers, prospects, or market research
data; financial information, including cost and performance data, debt
arrangement, equity structure, investors, and holdings; operational information,
including trade secrets, secret formulae, control and inspection practices,
credit evaluation criteria, servicing and collection methods and techniques and
personal information, including personnel lists, resumes, personal data,
organizational structure and performance evaluations. Confidential Information
is limited to that information which is not generally known in the industries in
which NAB or any NAB subsidiary operates, and does not include general skills,
knowledge, and experience acquired by Caton during his employment with NAB or
any prior employer.
(c) Caton agrees that all documents of any nature pertaining to
activities of NAB and its subsidiaries or to any of the foregoing matters in his
possession now, including, without limitation, memoranda, notebooks, notes, data
sheets, records and blueprints, are and shall be the property of NAB and that
they and all copies of them shall be surrendered to the NAB whenever requested
by NAB from time to time.
(d) In the event of a breach by Caton of any of the provisions of this
Section 4 (as demonstrated by competent evidence presented to a court having
jurisdiction), in addition to any other remedies it may have, NAB shall be
entitled to an injunction restraining Caton from doing or continuing to do any
such act in violation of this Section 4.
SECTION 5. PURCHASE OF SHARES
If this Agreement becomes effective in accordance with Section 11, on
the Effective Date (as defined in Section 11), Caton shall sell, assign and
transfer to NAB, and NAB shall purchase from Caton, Caton's NAFCO Shares and
Caton's CPF Shares for an aggregate purchase price of $107,594 (the "SHARE
PURCHASE PRICE"), allocated $85,745 to the CPF Shares and $21,849 to the NAFCO
Shares. To effect such sale and transfer, on the Effective Date Caton shall
deliver to NAB the certificates representing such shares, duly endorsed to NAB.
In payment of the Purchase Price on the Effective Date, NAB (i) shall reduce the
Caton Loan (as defined below) by $55,000 to $0 and (ii) shall issue to Caton its
promissory note dated the Effective Date in the principal amount of $52,594 (the
"NOTE"), substantially in the form of Exhibit A attached hereto and made a part
hereof. As used herein, the term "CATON LOAN" means an $80,000 loan made by NAB
to Caton on January 17, 1997, of which Caton has previously repaid $25,000.
SECTION 6. RELEASES; COVENANTS NOT TO SUE; INDEMNIFICATION
(a) As used in this Agreement, the following terms have the following
meanings:
3
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"ADA" means the Americans with Disabilities Act of 1990, as amended.
"ADEA" means the Age Discrimination in Employment Act of 1967, as
amended.
"CLAIMS" means any and all claims, demands, rights, disputes,
controversies, causes of action, rights of action, rights of subrogation, rights
of indemnity, rights to reimbursement, rights to payment, liens and remedies of
any kinds, whether civil, criminal, at law, in equity, vested or contingent,
accrued or unaccrued, or known or unknown, of every nature, type and
description.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"FEHA" means the California Fair Employment and Housing Act.
"NAB CORPORATE PARTIES" means, individually and collectively, NAB,
Administaff, MPS, CPF, NAFCO, MPSF, Consumer Portfolio Services, Inc., Stanwich
Partners, Inc. and Stanwich Financial Services Corp. and their successors and
assigns.
"NAB CORPORATE PARTY AFFILIATES" means, individually and collectively,
the respective officers, directors, employees, shareholders, subsidiaries,
attorneys, accountants, lenders and agents of the NAB Corporate Parties and
their respective successors, assigns, executors, administrators and heirs.
"NAB PARTIES" means, individually and collectively, the NAB Corporate
Parties and the NAB Corporate Party Affiliates, or any of them.
"OBLIGATIONS" means any and all obligations, duties, liabilities,
damages, costs, fees, expenses and debts (of every nature, type and
description), vested or contingent, accrued or unaccrued, or known or unknown.
"TITLE VII" means Title VII of the Civil Rights Act of 1964, as
amended.
(b) Caton hereby releases and forever discharges the NAB Parties from
any and all Claims and/or Obligations which Caton now has or ever has had
against the NAB Parties or which are or may be owed by the NAB Parties to Caton,
on account of, arising out of or relating in any manner (directly or indirectly)
to (i) Caton's Employment (and/or the termination thereof), (ii) the Employment
Agreement, (iii) options, if any, ever held by him to purchase any shares of the
capital stock of any of the NAB Parties, (iv) his having served as an officer or
director of any of the NAB Parties, (v) his status, at any time as a shareholder
of any of the NAB Parties, (vi) any purported or claimed right to receive any
options, equity, phantom equity or other interest in any of the NAB Parties,
(vii) salary, bonuses, fees or other compensation, if any, claimed to be owed to
him by any of the NAB Parties; (viii) claims for reimbursement of expenses by
any of the NAB Parties; (ix) defamation; (x) negligent or intentional infliction
of emotional distress; (xi) unlawful discrimination based upon age, race, sex,
gender, sexual orientation, marital status, religion, ethnic or national origin,
medical condition, disability, handicap or otherwise, (xii) violation of any
section of the
4
<PAGE> 5
Labor Code of California, FEHA, ADEA, ADA, ERISA, Title VII and/or any other
federal, state or local law(s) or regulations; (xiii) unpaid compensation of any
kind; (xv) damages of any kind, including compensatory, general, special or
punitive and/or (xv) costs, fees or other expenses, including attorney's fees
and disbursements, incurred in connection with any of these matters.
(c) NAB (on behalf of itself and MPS, CPF and NAFCO) hereby releases
and forever discharges Caton from any and all Claims and/or Obligations which
NAB now has or ever has had against Caton or which are or may be owed by Caton
to NAB, on account of, arising out of or relating in any manner (directly or
indirectly) to (i) Caton's employment, (ii) the Employment Agreement; (iii) his
having served as an officer or director of any of the NAB Parties, (iv) his
status, at any time as a shareholder of any of the NAB Parties; (v) defamation;
(vi) damages of any kind, including compensatory, general, special or punitive
and/or (vii) costs, fees or other expenses, including attorney's fees and
disbursements, incurred in connection with any of these matters. The Claims and
Obligations released in this Section 6(c) are hereinafter referred to
collectively as the "Section 6(c) Released Claims."
(d) Caton and NAB (and each of its subsidiaries referenced above) agree
that acceptance of this Agreement is made with their full, complete,
unrestricted and informed knowledge and consent; that this Agreement covers any
and all possible Claims and Obligations released in Sections 6(b) and 6(c); and
that the consideration recited above is all that Caton or NAB (and/or any of
their respective successors, assigns, agents, attorneys, heirs or
representatives and/or his spouse) will ever receive from Caton or any of the
NAB Parties, as applicable, for any and all Claims and Obligations of any kind
on account of the Employment Agreement, Caton's Employment, the termination of
Caton's Employment, and/or the other Claims and Obligations released in Sections
6(b) and 6(c).
(e) Caton and NAB agree that the releases contained in this Agreement
extend to any and all Claims and/or Obligations, and they expressly, knowingly,
and voluntarily waive any and all rights under Section 1542 of the Civil Code of
the State of California. Said Section 1542 provides as follows:
1542. General Release - Claims Extinguished.
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.
For all purposes of the Agreement, the term "CREDITOR" as used and referred to
in Section 1542 of the Civil Code of the State of California means and refers to
Caton or the NAB Parties, as applicable.
(f) The releases set forth in Sections 6(b) and 6(c) do not include any
Claims or Obligations arising under this Agreement or the Consulting Agreement.
(g) Caton covenants not to sue, and to cause all others not to sue, any
of the NAB Parties in respect of any of the Section 6(b) Released Claims.
5
<PAGE> 6
(h) NAB covenants not to sue, and to cause all others not to sue, Caton
in respect of any of Section 6(c) Released Claims.
(i) Caton shall indemnify and hold the NAB Parties harmless from and
against any and all losses, liabilities, Obligations, Claims, suits, judgments,
costs and expenses, including reasonable attorney's fees and disbursements, that
may be suffered or incurred by NAB as a result of or relating to any breach by
Caton of any of his covenants, obligations or warranties, or any
misrepresentation by him, under this Agreement. In addition, Caton shall
reimburse the NAB Parties for any and all costs and expenses, including
reasonable attorney's fees and disbursements, incurred by them in successfully
enforcing this indemnity.
(h) NAB shall indemnify and hold Caton harmless from and against any
and all losses, liabilities, obligations, Claims, suits, judgments, costs and
expenses, including reasonable attorney's fees and disbursements, that may be
suffered or incurred by him as a result of or relating to any breach by NAB of
any of its covenants, obligations or warranties, or any misrepresentation by it,
under this Agreement. In addition, NAB shall reimburse Caton for any and all
costs and expenses, including reasonable attorney's fees and disbursements,
incurred by him in successfully enforcing this indemnity.
SECTION 7. ACKNOWLEDGMENTS.
Caton agrees with NAB, and represents and warrants to NAB, that:
(a) For all purposes in connection with the execution and delivery of
this Agreement and the Consulting Agreement, he has had the full and complete
benefit and advice of independent and competent legal counsel chosen and
retained solely by him (such counsel being Glen Mozingo of the firm Mozingo &
Price in Newport Beach, California); he has had such legal counsel fully explain
to him the meaning of each and every part of this Agreement and the Consulting
Agreement and the entire meaning and each and all of the consequences of
execution of this Agreement and the Consulting Agreement, and NAB has advised
and recommended that he consult with such legal counsel concerning this
Agreement.
(b) All agreements and Obligations made and undertaken by him on
account of this Agreement apply to and bind him, his spouse and each of all of
his heirs, assigns, agents, attorneys and/or representatives.
(c) He has not assigned or transferred all or apart of any of the
Claims and/or Obligations released by him in Section 6(b) to any person or
entity, and he alone has the full, complete and unrestricted right to
effectively release all of the Section 6(b) Released Claims.
(d) He is solely responsible for paying any attorney or other person
who has represented and/or advised him on account of the matters which are the
subject of this Agreement and the Consulting Agreement and no such person has or
may have any interest in any of the sums of money
6
<PAGE> 7
and/or other valuable things to be received by Caton on account of this
Agreement or the Consulting Agreement.
(e) This Agreement is entered into by Caton without any reliance upon
any agreement, statement, promise, understanding or other inducement of any kind
other than the express terms of the Consulting Agreement and this Agreement.
(f) Regardless of the adequacy or inadequacy of the consideration
specified in this Agreement, this Agreement (together with the Consulting
Agreement) is intended fully, completely and forever to compromise, settle and
release any and all Claims and/or Obligations referred to in Section 6(b); avoid
all future litigation relating to the same, and be a full, final, binding and
complete agreement, compromise, settlement and release of such matters.
SECTION 8. NOTICES
All notices, requests, demands and other communications which are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given if transmitted by telecopier with receipt
acknowledged, or upon delivery, if delivered personally or by recognized
commercial courier with receipt acknowledged, or upon the expiration of
seventy-two (72) hours after mailing, if mailed by first class, registered or
certified mail, return receipt requested, postage and registry fees prepaid, and
addressed as follows:
If to NAB: NAB Asset Corporation
23361 Madero
Mission Viejo, CA 906901
Telephone: (949) 465-0244
Facsimile: (949) 465-0247
Attn: Chief Financial Officer
with a copy to: Scott A. Junkin, P.C.
One Stamford Landing
62 Southfield Avenue
Stamford, CT 06902
Telephone: (203) 356-9005
Facsimile: (203) 967-3923
If to Caton: Michael W. Caton
22 Terraza Del Mar
Dana Point, CA 92629
Telephone: (949) 489-2888
Facsimile: (949) 489-1440
with a copy to: Glen Mozingo, Esq.
Mozingo & Price
One Newport Place
7
<PAGE> 8
1301 Dove Street - Suite 900
Newport Beach, CA 92660-2448
Telephone: (949) 752-2255
Facsimile: (949) 752-6636
Any of the foregoing parties by notice in writing mailed to the other parties
may change the name and address to which notices, requests, demands and other
communications to it or him shall be mailed.
SECTION 9. THIRD PARTY BENEFICIARIES
Each of the NAB Parties (other than NAB) is intended to be a third-party
beneficiary of this Agreement.
SECTION 10. MISCELLANEOUS
This Agreement (i) constitutes the entire understanding of the parties
with respect to the subject matter hereof, (ii) supersedes all prior agreements,
whether oral or in writing, relating to such subject matter, (iii) shall be
binding upon and inure to the benefit of the NAB Parties, Caton and his assigns,
spouse, heirs and personal representatives, (iv) shall be governed and construed
in accordance with California law, without regard to principles of conflicts of
laws, and, if applicable, in accordance with federal law, (v) may not be amended
except in writing signed by NAB and Caton, (vi) may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument and (vii) shall not
ever, in any manner or for any purposes, by any person or entity, or based upon
any foreseen or unforseen facts, events or circumstances, be subject to any
claim of mistake of fact or mistake of law. The language of this Agreement shall
for all purposes be construed as a whole, according to its fair meaning, not
strictly or against Caton or any of the NAB Parties, and without regard to the
identity, relationship or status of any person who drafted all or any part of
it.
SECTION 11. ADEA PROVISION
CATON AGREES THAT (1) IN SECTION 6(b) OF THIS AGREEMENT HE HAS RELEASED,
WAIVED AND FOREVER GIVEN UP ANY CLAIMS OR AGE DISCRIMINATION UNDER THE ADEA
WHICH HE MAY HAVE AGAINST THE NAB PARTIES (THE "WAIVER"); (2) NAB HAS ADVISED
AND RECOMMENDED IN WRITING, AND NAB HEREBY AGAIN SO ADVISES AND RECOMMENDS, THAT
CATON CONSULT WITH AN ATTORNEY OF HIS CHOICE CONCERNING THIS AGREEMENT; (3)
CATON HAS HAD AMPLE TIME TO SO CONSULT WITH AN ATTORNEY OF HIS CHOICE; (4) PRIOR
TO SIGNING THIS AGREEMENT CATON HAS HAD THE OPPORTUNITY TO TAKE NOT FEWER THAN A
FULL TWENTY-ONE (21) DAYS (THE "CATON SIGNING PERIOD") IN WHICH TO CONSIDER THE
WAIVER, THIS AGREEMENT, AND EACH AND ALL OF THE RESULTS AND CONSEQUENCES OF HIS
EXECUTION OF THIS AGREEMENT; (5) HE HAS A FULL SEVEN (7) DAYS FOLLOWING HIS
EXECUTION OF THIS AGREEMENT IN WHICH TO REVOKE THE WAIVER (THE "REVOCATION
RIGHT"); AND (6) THE WAIVER IS NOT EFFECTIVE OR ENFORCEABLE UNTIL THE EXPIRATION
OF THAT SEVEN (7) DAY REVOCATION PERIOD (THE "REVOCATION PERIOD").
8
<PAGE> 9
IF, WITHIN THE SEVEN (7) DAY REVOCATION PERIOD DESCRIBED IN THE
IMMEDIATELY PRECEDING PARAGRAPH, CATON REVOKES THE WAIVER, NAB SHALL HAVE TEN
(10) BUSINESS DAYS THEREAFTER (THE "TERMINATION PERIOD") IN WHICH TO NOTIFY HIM
OF ITS DECISION TO (1) PERMIT THE REMAINDER OF THE AGREEMENT TO REMAIN IN FULL
FORCE AND EFFECT OR (2) TERMINATE THIS AGREEMENT IN ITS ENTIRETY AND FOR ALL
PURPOSES (THE "TERMINATION RIGHT").
CATON HAS READ THIS AGREEMENT AND THE CONSULTING AGREEMENT AND HAS TAKEN THE
TIME NECESSARY TO REVIEW COMPLETELY AND FULLY UNDERSTAND THIS AGREEMENT. CATON
HAS HAD, OR HAS HAD THE UNRESTRICTED RIGHT AND OPPORTUNITY TO HAVE, THIS
AGREEMENT AND THE CONSULTING AGREEMENT AND EACH AND EVERY RESULT AND CONSEQUENCE
OF THE EXECUTION HEREOF AND THEREOF FULLY EXPLAINED TO HIM BY COMPETENT AND
EXPERIENCED LEGAL COUNSEL CHOSEN SOLELY BY HIM. HE FULLY UNDERSTANDS THIS
AGREEMENT AND THE CONSULTING AGREEMENT, ACCEPTS SUCH AGREEMENTS, AGREES TO SUCH
AGREEMENTS, AND AGREES THAT SUCH AGREEMENTS ARE FULLY BINDING UPON HIM FOR ALL
PURPOSES.
SECTION 12. EFFECTIVE DATE; EFFECTIVENESS
If Caton has signed this Agreement within the Caton Signing Period (as
defined in Section 11) and has not exercised his Revocation Right (as defined in
Section 11) within the Revocation Period (as defined in Section 11), the term
"EFFECTIVE DATE," as used herein, means the next business day following the
expiration of the Revocation Period.
If (A) Caton has signed this Agreement within the Caton Signing Period and
has exercised the Revocation Right within the Revocation Period and (B) NAB has
not exercised the Termination Right (as defined in Section 11) within the
Termination Period (as defined in Section 11), the term "EFFECTIVE DATE," as
used herein, means the next business day following the expiration of the
Termination Period.
This Agreement shall become effective only if (i) NAB shall have executed
this Agreement and (ii) Caton shall have executed this Agreement within the
Caton Signing Period and shall have delivered an original hereof to NAB by no
later than the first business day after the expiration of the Caton Signing
Period and (iii) either (A) Caton shall not have exercised the Revocation Right
within the Revocation Period or (B) if Caton shall exercised the Revocation
Right within the Revocation Period, NAB shall not have exercised the Termination
Right within the Termination Period.
If this Agreement becomes effective in accordance with the preceding
paragraph, NAB and Caton shall execute and deliver to each other acknowledgment
of the same in the form of Exhibit B attached hereto and made a part hereof.
9
<PAGE> 10
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
respective dates indicated below.
Dated: July 6, 1999 NAB ASSET CORPORATION
By: /s/ Charles E. Bradley
-------------------------
Name: Charles E. Bradley
Title: Chairman of the Board
Dated: ____________, 1999 /s/ Michael W. Caton
------------------------------
Michael W. Caton, Individually
10
<PAGE> 1
EXHIBIT 10.20
NAB ASSET CORPORATION
23361 MADERO
MISSION VIEJO, CA 92691
(949) 465-0244 / FAX (949) 465-0247
as of June 4, 1999
Caton Financial Services, Inc.
20 Chelsea Point
Monarch Beach, CA 92629
CONSULTING AND FINDER'S AGREEMENT
Gentlemen:
This letter confirms our mutual agreement with respect to the engagement by
NAB Asset Corporation, a California corporation ("NAB"), of Caton Financial
Services, Inc., a California corporation (the "CONSULTANT"), as a business
consultant to NAB.
Our agreement is as follows:
SECTION 1. TERM OF CONSULTING AND CONSULTING DUTIES.
(a) Engagement as a Consultant. On the terms and conditions set forth in
this Agreement, NAB hereby retains the Consultant on a nonexclusive basis as a
consultant to NAB for a period (the "CONSULTING PERIOD") beginning June 5, 1999
and ending on the earlier to occur of (i) December 4, 2002, or (ii) the date, if
any, on which this Agreement is terminated pursuant to Section 5.
(b) Duties. During the Consulting Period, the Consultant will render such
business advisory services to the NAB Group, including the following: corporate
and financial planning; investment recommendations; identification of possible
sources of debt financing; identification of potential buyers of assets of the
NAB Group; identification of potential business and asset acquisitions; and such
other advisory work in connection with the organization, financing, management
and operations of NAB Group, as NAB may reasonably request. As used in this
Agreement, (i) the term "NAB GROUP" means, at any time, collectively NAB and
each corporation that is a NAB Subsidiary at such time and (ii) the term "NAB
SUBSIDIARY" means, at any time, each corporation more than 50% of whose voting
stock is owned by NAB at such time.
NAB will use the services of the Consultant, and the Consultant shall make
himself available for the performance of services under this Agreement, upon
reasonable notice during the Consulting Period. The Consultant shall perform its
services at the times and places reasonably requested by NAB to meet its needs
and requirements, taking into account other engagements that the Consultant may
have. In no event shall the Consultant be required to render more than 120 hours
of consulting services per calendar quarter under this Agreement (prorated for
any partial quarter).
<PAGE> 2
SECTION 2. COMPENSATION OF THE CONSULTANT.
(a) Consulting Fee Retainer. Subject to the terms and conditions hereof,
commencing as of June 5, 1999, for the Consultant's services under this
Agreement, NAB shall pay the Consultant a non-refundable consulting fee retainer
of Fifteen Thousand One Hundred Fifty Dollars ($15,150) per month during the
Consulting Period, prorated for any partial month. The consulting fee retainer
shall be payable on the last day of each calendar month in arrears. The
aggregate amount paid and/or payable to the Consultant under this Section 2(a)
during the Consulting Period (the "SECTION 2(a) PAYMENTS") shall be applied and
credited to reduce the amount, if any, of Transaction Fees payable to the
Consultant pursuant to Section 2(b); provided, however, that in no event shall
the due dates for the payment of the installments of the consulting fee retainer
be accelerated, regardless of whether any Transaction Fees are earned pursuant
to Section 2(b). If this Agreement is not terminated prior to December 4, 2002,
the amount of the Section 2(a) Payments will be $636,300.
(b) Transaction Fees.
(i) If during the Applicable Period (as defined in Section 2(b)(v) any
member of the NAB Group purchases a finance business (the "ACQUIRED BUSINESS")
from a seller introduced to the NAB Group by the Consultant during the
Consulting Period, then, subject to Sections 2(b)(v) through 2(b)(xi), NAB shall
pay, or cause the purchasing member to pay, the Consultant a fee equal to one
quarter of one percent (0.25%) of the aggregate amount of loans originated by
the Acquired Business during the 12 months ended as of the end of the calendar
month next preceding the calendar month in which such member purchases the
Acquired Business.
(ii) If during the Applicable Period any member of the NAB Group other
than NAB sells any of its assets to a buyer introduced to the NAB Group by the
Consultant during the Consulting Period, then, subject to Sections 2(b)(v)
through 2(b)(xi), NAB shall pay, or cause the selling member to pay, the
Consultant a fee equal to one quarter of one percent (0.25%) of the net sales
proceeds received by the selling member.
(iii) If during the Applicable Period any member of the NAB Group
receives a loan from an institutional lender introduced to the NAB Group by the
Consultant during the Consulting Period, then, subject to Sections 2(b)(v)
through 2(b)(xi), NAB shall pay, or shall cause the borrowing member to pay, the
Consultant a fee equal to one percent (1.0%) of the principal amount of such
loan.
(iv) If during the Applicable Period NAB sells all of the shares of
the capital stock of any other member of the NAB Group owned by NAB to a buyer
introduced to NAB by the Consultant during the Consulting Period, then, subject
to Sections 2(b)(v) through 2(b)(xi), NAB shall pay the Consultant a fee equal
to five percent (5.0%) of NAB's pre-tax gain on the sale of such shares.
(v) As used in this Agreement, (A) the term "APPLICABLE PERIOD" means
the period beginning on the date hereof and ending on a date which is 60 days
after the date on which the Consulting Period terminates, (B) the term
"TRANSACTION" means a sale, purchase or loan transaction of the types referred
to in Sections 2(b)(i) through 2(b)(iv), (C) the term "TRANSACTION FEES" means
the fees, if any, earned by the Consultant and calculated pursuant to one or
more or all
<PAGE> 3
Caton Financial Services, Inc.
as of June 4, 1999
Page 3
of Sections 2(b)(i) through 2(b)(iv) and (D) the term "TRANSACTION PARTY" means
any seller, buyer or lender (other than a member of the NAB Group) referred to
in any of Sections 2(b)(i) through 2(b)(iv) with which a member of the NAB Group
consummates a Transaction.
(vi) The amount of Transaction Fees earned by the Consultant,
if any, shall be reduced by (or be deemed to have been paid by means of) the
Section 2(a) Payments, without acceleration. Any Transaction Fees earned in
excess of the amount of the Section 2(a) Payments ("EXCESS TRANSACTION FEES")
shall be paid in equal or approximately equal consecutive monthly installments
beginning on the last day of each calendar month in which such Excess
Transaction Fees shall have been earned through the closing of a Transaction and
ending on December 31, 2002.
(vii) Without the prior written authorization of an executive
officer of NAB (which authorization may be withheld by NAB in its discretion for
any reason or for no reason), the Consultant shall not contact any potential
Transaction Party to solicit a Transaction.
(viii) The Consultant shall not be entitled to a Transaction
Fee or other compensation in respect of any transaction between a member of the
NAB Group and a third party not "introduced by Caton to the NAB Group" or in
respect of any transaction not involving a corporation which is a member of the
NAB Group at the time of the closing of such transaction. The Consultant shall
be deemed to have introduced a potential Transaction Party to NAB only if,
pursuant to Section 2(b)(vii), NAB shall have authorized the Consultant to
contact such Transaction Party to solicit a Transaction and such authorization
specifically identifies the Transaction Party and acknowledges that, if such
Transaction is consummated, the Consultant shall be deemed to have introduced
such Transaction Party to NAB in respect thereof.
(ix) As noted, the engagement hereunder is non-exclusive, both
for the Consultant and for NAB. NAB shall be entitled at any time to retain one
or more other persons or entities to perform services which are the same as or
similar to the services to be performed by the Consultant hereunder. In such
case, the Consultant shall not be entitled to payment of any portion of the
compensation payable to such other persons or entities or to any Transaction
Fees or other fees in respect of any transactions introduced by such other
persons or entities.
(x) NAB shall have the absolute right, in its discretion, for
any reason or for no reason at all, to accept or reject or decline to consummate
any Transaction proposed by the Consultant or any Transaction Party introduced
by the Consultant, without incurring any liability to the Consultant.
(xi) During the Consulting Period, the Consultant shall not
present any information about a proposed acquisition of a finance company to any
person or entity other than a member of the NAB Group, unless NAB shall have
expressed no interest in pursuing such proposed acquisition. NAB shall be deemed
to have expressed no interest in pursuing such acquisition if it does so in
writing or if it fails to notify the Consultant in writing of NAB's interest in
pursuing the acquisition within 21 days after the Consultant shall have first
presented the proposed acquisition to NAB in writing.
<PAGE> 4
Caton Financial Services, Inc.
as of June 4, 1999
Page 4
(c) Expenses. During the Consulting Period, NAB shall reimburse the
Consultant for its reasonable business expenses incurred during the Consulting
Period in connection with the performance of its duties hereunder, provided that
it obtains NAB's approval before incurring such expenses.
SECTION 3. INDEPENDENT CONTRACTOR; NO AGENCY
In performing its duties under this Agreement, the Consultant (i) shall
be an independent contractor, (ii) shall not be deemed for any purpose to be an
employee or agent of any member of the NAB Group and (iii) shall have no
authority, and shall not purport or attempt, to legally bind or obligate, or
make any commitments on behalf of, any member of the NAB Group.
SECTION 4. CONFIDENTIALITY.
(a) Covenant of the Consultant. During the Consulting Period and at all
times thereafter, the Consultant shall hold and keep confidential all
Confidential Information (as defined in Section 4(b) as to which it is now, or
at any time during the Consulting Period shall become, informed. The Consultant
agrees that it shall not, directly or indirectly, either disclose any
Confidential Information to any person, firm or corporation, or use the same, or
permit the same to be disclosed or used, except in connection with the business
and affairs of the NAB Group.
(b) Definition of Confidential Information. "CONFIDENTIAL INFORMATION"
shall include, but not be limited to, the following types of information and
regarding the NAB Group: corporate information, including contractual
arrangements, plans, strategies, tactics, policies, resolutions, copyrights and
patent applications, and any litigation or negotiations; marketing information,
including sales or product plans, strategies, tactics, methods, customers,
prospects, or market research data; financial information, including cost and
performance data, debt arrangement, equity structure, investors, and holdings;
operational information, including trade secrets, secret formulae, control and
inspection practices, credit evaluation criteria, servicing and collection
methods and techniques and personal information, including personnel lists,
resumes, personal data, organizational structure and performance evaluations.
Confidential Information is limited to that information which is not generally
known in the industries in which any member of the NAB Group operates, and does
not include general skills, knowledge, and experience acquired by Michael W.
Caton ("CATON") (who is the President, the sole director and a beneficial owner
of shares of the Consultant's capital stock) during his employment with NAB or
any prior employer.
SECTION 5. TERMINATION OF ENGAGEMENT.
This Agreement may be terminated at any time by NAB if (i) the
Consultant breaches any of its obligations under Section 2(b) or Section 4 or
(ii) the Consultant willfully neglects or breaches any of its duties and
obligations under Section 1, which neglect or breach shall not have been cured
within 30 days after written notice thereof to the Consultant of (iii) if Caton
breaches any of his covenants or obligations under that certain Separation
Agreement of even date herewith between
<PAGE> 5
Caton Financial Services, Inc.
as of June 4, 1999
Page 5
NAB and him (the "SEPARATION AGREEMENT") or (iv) if the Separation Agreement
does not become effective, pursuant to Section 12 thereof, on or before August
10, 1999 or (v) if at any time Caton and his spouse together own beneficially
less than 80% of the outstanding shares of the capital stock of the Consultant.
This Agreement may be terminated at any time by the Consultant if the Company
breaches any of its obligations under this Agreement, which breach shall not
have been cured within 30 days after written notice thereof to NAB. This
Agreement may also be terminated by written agreement signed by NAB and the
Consultant. From and after the date of termination of this Agreement, NAB and
the Consultant shall have no further liabilities or obligations to each other
under this Agreement, except for (i) any unpaid fees under Section 2(a)
allocable to the period prior to the date of termination (but not to the period
beginning on or after such date), (ii) any unpaid Excess Transaction Fees earned
by the Consultant during the Applicable Period, (iii) any unreimbursed expenses
for which the Consultant is entitled to reimbursement under Section 2(c) and
(iv) claims for damages resulting from or arising out of any breach of this
Agreement.
SECTION 6. NOTICES.
All notices, requests, demands and other communications which are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given if transmitted by telecopier with receipt
acknowledged, or upon delivery, if delivered personally or by recognized
commercial courier with receipt acknowledged, or upon the expiration of
seventy-two (72) hours after mailing, if mailed by first class, registered or
certified mail, return receipt requested, postage and registry fees prepaid, and
addressed as follows:
(a) If to the Consultant:
Caton Financial Services, Inc.
22 Terraza Del Mar
Dana Point, CA 92629
Telephone: (949) 489-1105
Facsimile: (949) 489-1440
(b) If to NAB:
NAB Asset Corporation
23361 Madero
Mission Viejo, CA 92691
Telephone: (949) 465-0244
Facsimile: (949) 465-0247
Attention: Chief Financial Officer
Any of the foregoing parties by notice in writing mailed to the other parties
may change the name and address to which notices, requests, demands and other
communications to it or him shall be mailed.
SECTION 7. MISCELLANEOUS.
<PAGE> 6
Caton Financial Services, Inc.
as of June 4, 1999
Page 6
This Agreement shall be construed and enforced in accordance with, and
governed by, the laws of the State of California, without regard to principles
of conflicts of laws. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof. This Agreement may not be
modified or amended or any term or provision hereof waived or discharged except
in writing signed by the party against whom such amendment, modification, waiver
or discharge is sought to be enforced.
All of the terms of this Agreement, whether so expressed or not, shall be
binding upon the personal representatives, successors, assigns and heirs of the
parties. The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. This Agreement may be
executed in several counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
If you are in agreement with the foregoing, please so indicate by signing
the enclosed copy of this letter and returning it to NAB.
NAB ASSET CORPORATION
By: /s/ Charles E. Bradley
--------------------------------
Name: Charles E. Bradley
Title: Chairman of the Board
Confirmed and accepted:
CATON FINANCIAL SERVICES, INC.
/s/ Michael W. Caton
-------------------------------
Michael W. Caton, President
<PAGE> 1
EXHIBIT 10.21
PROMISSORY NOTE
$921,345.24 May 12, 1999
For value received, STANWICH FINANCIAL SERVICES, CORP. (the "MAKER"), a
Rhode Island corporation, promises to pay to the order of NAB ASSET CORPORATION
(the "HOLDER"), a Texas corporation, the principal amount of Nine Hundred
Twenty-one Thousand Three Hundred Forty-five and 24/100 Dollars ($921,345.24) in
accordance with the terms of this Note.
1. Payment of Principal. The principal of this Note shall be
payable in full on September 30, 2000.
2. Interest. The unpaid principal of this Note outstanding from time to
time shall bear interest, beginning as of the date hereof, at an annual rate of
sixteen percent (16%), computed on the basis of a 365-day year and continuing
until the principal hereof is repaid in full. Interest shall be payable in
arrears quarterly beginning on September 30, 1999.
3. Prepayments. The Maker may prepay this Note in whole or, from time
to time, in part without penalty or premium. All such prepayments shall be
applied against the required installments of principal in order of maturity
thereof.
4. Place of Payments. All payments of principal and interest under this
Note shall be made to the order of Holder at the address specified in numbered
paragraph 12 hereof.
5. Default; Acceleration. Maker agrees that:
(i) if any installment of principal or interest under this Note shall
not be paid when it is due and payable, and such failure to pay is not
cured within fifteen (15) days after notice from Holder of such failure
to pay; or
(ii) if Maker shall suffer or permit the filing by or against the Maker
of any petition for adjudication, arrangement, reorganization or the
like under any bankruptcy or insolvency law (and, in the case of an
involuntary proceeding the same is not dismissed within 30 days), make
an assignment for the benefit of creditors or suffer or permit the
appointment of a receiver for any part of Maker's property,
then, upon the happening of any such event (specified in items (i) and (ii),
above), the entire indebtedness and accrued interest thereon due under this Note
shall, at the option of the Holder, accelerate and become immediately due and
payable without notice.
6. Cost of Collection. The Maker shall reimburse the Holder for all
reasonable costs and expenses, including reasonable attorneys' fees, which may
be incurred by the Holder in collecting any amounts due hereunder.
<PAGE> 2
7. Loss, Theft, Destruction or Mutilation of Note. Upon receipt by the
Maker of evidence reasonably satisfactory to the Maker of the loss, theft,
destruction or mutilation of this Note, and of indemnity or security reasonably
satisfactory to the Maker, and upon reimbursement to the Maker of all reasonable
expenses incidental thereto, and upon surrender and cancellation of this Note,
if mutilated, the Maker will make and deliver a new note of like tenor in lieu
of this Note. Any note made and delivered in accordance with the provision of
this paragraph shall be dated as of the date to which interest has been paid on
this Note, or if no interest has theretofore been paid on this Note, then dated
the date hereof.
8. Governing Law. This Note shall be construed in accordance with and
governed by the laws of the State of California, without regard to principles of
conflicts of laws.
9. Successors and Assigns. All the covenants, stipulations, promises
and agreements contained in this Note by or on behalf of the Maker or the Holder
and all rights of the Maker or the Holder contained in this Note shall bind or
inure to their respective successors, assigns, heirs and personal
representatives, whether so expressed or not.
10. Cumulative Remedies. No course of dealing, or any delay or omission
of the Holder to exercise any right or power hereunder (including, without
limitation, any right or power arising from any default or failure of
performance of the Maker), shall exhaust, impair, waive or otherwise prejudice
any such right or power or prevent its exercise. Every right and remedy given to
the Holder hereunder, by any and all agreements executed and delivered in
connection herewith or by law may be exercised from time to time as often as the
Holder may deem expedient. No waiver by the Holder of any such default, whether
such waiver be full or partial, shall extend to or be taken to affect any
subsequent default, or to impair the rights resulting therefrom except as may be
otherwise expressly provided herein. No remedy hereunder is intended to be
exclusive of any other remedy but each and every remedy shall be cumulative and
in addition to any and every other remedy given hereunder or otherwise existing.
11. Headings. The headings of the paragraphs of this Note are inserted
for convenience only and shall not be deemed to constitute a part hereof.
12. Notices. All notices, requests, demands and other communications
hereunder must be in writing and shall be deemed to have been duly given if
delivered by hand or mailed by first class, registered or certified mail, return
receipt requested, postage and registry fees prepaid, and addressed as follows:
(a) If to Maker: Stanwich Financial Services Corp.
One Stamford Landing
62 Southfield Avenue
Stamford, CT 06902
Attn: President
2
<PAGE> 3
(b) If to Holder: NAB Asset Corporation
23361 Madero
Mission Viejo, CA 92691
Attn: Chief Financial Officer
Any of the foregoing parties by notice in writing mailed to the other parties
may change the name and address to which notices, requests, demands and other
communications to it or him shall be mailed.
13. Consideration. This Note evidences the following indebtedness of
the Maker to the Holder: a loan made by the Holder to the Maker on the date
hereof.
IN WITNESS WHEREOF, the Maker has signed this Note by a duly authorized
officer and dated it as of the day and year first above written.
STANWICH FINANCIAL SERVICES CORP.
By: /s/ Charles E. Bradley
---------------------------------------
Name: Charles E. Bradley, Sr.
Title: President
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1998
<PERIOD-START> APR-01-1999 JAN-01-1998
<PERIOD-END> JUN-30-1999 JUN-30-1998
<CASH> 9,980 6,091
<SECURITIES> 0 0
<RECEIVABLES> 99,953 128,650
<ALLOWANCES> 1,201 499
<INVENTORY> 0 0
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<PP&E> 2,027 1,971
<DEPRECIATION> 1,159 820
<TOTAL-ASSETS> 115,870 140,799
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<BONDS> 0 0
0 0
0 0
<COMMON> 509 509
<OTHER-SE> 5,062 8,090
<TOTAL-LIABILITY-AND-EQUITY> 115,870 140,799
<SALES> 3,840 7,385
<TOTAL-REVENUES> 8,462 16,791
<CGS> 0 0
<TOTAL-COSTS> 7,362 14,415
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 1,351 1,493
<INTEREST-EXPENSE> 1,828 3,756
<INCOME-PRETAX> (2,079) (3,028)
<INCOME-TAX> 0 0
<INCOME-CONTINUING> (2,079) (3,028)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (2,079) (3,028)
<EPS-BASIC> (0.41) (0.59)
<EPS-DILUTED> (0.41) (0.59)
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