<PAGE> 1
Securities and Exchange Commission
Washington, D.C. 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 July 31, 1997
[ ] 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 33-98644
MCA FINANCIAL CORP.
(Exact name of Registrant as specified in its charter)
Michigan 38-3014001
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
23999 Northwestern Hwy., Southfield, MI 48075
(Address of principal executive offices)
(810) 358-5555
(Registrant's Telephone Number, including area code)
N/A
(Former Name, Former Address, and Former Fiscal
Year, if Changed Since Last Report)
Check 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 [XX] NO [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date:
As of July 31, 1997, there were outstanding 581,728 shares of the issuer's
common stock (including shares subject to forfeiture).
<PAGE> 2
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
MCA FINANCIAL CORP.
CONSOLIDATED BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
July 31,1997 January 31,
(Unaudited) 1997
------------ ------------
<S> <C> <C>
Cash $ 1,482,176 $ 3,096,993
Land contracts held for resale 12,754,933 10,351,425
Mortgages held for resale 93,017,837 54,430,155
Accounts receivable - mortgages sold 19,838,020 15,489,908
Accounts receivable 8,207,161 16,997,311
Accounts receivable - related parties 8,599,252 6,827,285
Mortgage servicing rights, net 12,413,772 16,324,263
Excess interest spread receivable 18,541,878 7,987,053
Investments 2,714,742 2,571,750
Property and office equipment, net 5,844,946 5,582,612
Deferred charges and other assets 6,169,976 5,333,058
------------ ------------
Total assets $189,584,693 $144,991,813
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Notes payable $120,372,278 $ 83,975,834
Subordinated debentures 13,954,000 15,542,000
Subordinated notes payable 15,000,000 15,000,000
Accounts payable 22,488,415 15,705,913
Accounts payable-related parties 879,523 1,043,842
Accrued interest and other expenses 4,242,095 2,419,048
Deferred federal income tax 400,000 400,000
------------ ------------
Total liabilities 177,336,311 134,086,637
------------ ------------
COMMITMENTS AND CONTINGENCIES - -
REDEEMABLE COMMON STOCK 427,373 256,373
------------ ------------
STOCKHOLDERS EQUITY
Common Stock
Authorized 3,750,000 shares
No par, stated value $.01 each
Issued and outstanding 503,281 shares at
January 31, 1997 and 513,283 shares at
July 31, 1997 5,133 5,033
Preferred Stock (Series A)
Authorized 500,000 shares, $10 stated value
Issued and outstanding 203,022 shares at
January 31, 1997 and July 31, 1997 2,030,220 2,030,220
Preferred Stock (Series B)
Authorized 750,000 shares, $10 stated value
Issued and outstanding 336,619 shares at
January 31, 1997 and July 31, 1997 3,366,190 3,366,190
Additional paid-in capital 3,750,893 3,664,976
Retained earnings 2,668,573 1,582,384
------------ ------------
Total stockholders equity 11,821,009 10,648,803
------------ ------------
Total liability and stockholders equity $189,584,693 $144,991,813
============ ============
</TABLE>
See notes to consolidated financial statements
<PAGE> 3
MCA FINANCIAL CORP.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Three Months Six Months Six Months
Ended Ended Ended Ended
July 31,1997 July 31,1996 July 31,1997 July 31,1996
------------ ------------ ------------ ------------
REVENUES
<S> <C> <C> <C> <C>
Gain on sale of land contracts $ 804,766 $ 1,044,212 $ 1,337,772 $ 1,644,316
Gain on sale of real estate 119,376 494,797 305,121 846,498
Gain on sale of real estate-related parties 1,063,963 2,295,779 2,023,893 3,985,779
Gain on bulk sales of servicing rights 1,810,892 1,377,831 3,138,760 3,293,317
Mortgage origination fees and gain on
sale of mortgages 15,840,446 5,495,291 25,296,019 8,707,475
Servicing fees 1,303,428 2,177,996 2,964,826 3,878,915
Interest income 2,187,712 2,253,588 4,565,077 3,914,993
Other income 229,089 (118,553) 765,698 167,983
----------- ----------- ----------- -----------
Total revenues 23,359,672 15,020,941 40,397,166 26,439,276
----------- ----------- ----------- -----------
EXPENSES
Payroll 4,514,159 3,798,286 9,421,445 7,525,844
Interest 3,332,482 2,817,347 6,367,419 5,096,157
Commissions 3,123,721 2,104,602 5,566,120 3,771,951
Professional services 1,110,778 517,736 2,067,050 933,029
Depreciation 190,130 153,432 356,074 303,523
Amortization 2,577,870 1,178,787 3,653,096 2,304,496
General and administrative 7,010,878 3,352,324 10,956,935 6,391,373
----------- ----------- ----------- -----------
Total expenses 21,860,018 13,922,514 38,388,139 26,326,373
----------- ----------- ----------- -----------
INCOME BEFORE FEDERAL
INCOME TAXES 1,499,654 1,098,427 2,009,027 112,903
Provision for federal
income taxes 480,000 330,000 680,000 30,000
----------- ----------- ----------- -----------
NET INCOME $ 1,019,654 $ 768,427 $ 1,329,027 $ 82,903
=========== =========== =========== ===========
Earning <loss> per share $ 1.75 $ 1.33 $ 2.14 $ (.08)
=========== =========== =========== ===========
Weighted average number of
shares outstanding 513,283 485,146 508,282 462,776
=========== =========== =========== ===========
</TABLE>
See notes to consolidated financial statements
<PAGE> 4
MCA FINANCIAL CORP.
CONSOLIDATED STATEMENTS OF CHANGES IN COMPONENTS OF STOCKHOLDER'S EQUITY
(Unaudited)
Six Months Ended July 31, 1997 and 1996
<TABLE>
<CAPTION>
Additional
Common Preferred Paid-In Retained
Stock Stock Capital Earnings Total
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Balance, January 31, 1996 $4,486 $5,396,410 $ 3,457,251 $ 1,302,713 $ 10,160,860
Net income - - - 82,903 82,903
Issuance of common stock 515 - 204,909 - 205,424
Preferred stock dividends - - - (242,829) (242,829)
------ ---------- ------------ ------------ ------------
Balance, July 31, 1996 $5,001 $5,396,410 $ 3,662,160 $ 1,142,787 $ 10,206,358
====== ========== ============ ============ ============
Balance, January 31, 1997 $5,033 $5,396,410 $ 3,664,976 $ 1,582,384 $ 10,648,803
Net income - - - 1,329,027 1,329,027
Issuance of common stock 100 - 85,917 - 86,017
Preferred stock dividends - - - (242,838) (242,838)
------ ---------- ------------ ------------ ------------
Balance, July 31, 1997 $5,133 $5,396,410 $ 3,750,893 $ 2,668,573 $ 11,821,009
====== ========== ============ ============ ============
</TABLE>
See notes to consolidated financial statements
<PAGE> 5
MCA FINANCIAL CORP.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Six Months Six Months
Ended Ended
July 31,1997 July 31,1996
--------------- ---------------
<S> <C> <C>
CASH FLOWS FROM OPERATING
ACTIVITIES:
Net income $ 1,329,027 $ 82,903
Adjustments to reconcile net income to
net cash used in operating activities:
Depreciation and amortization 4,009,170 2,608,019
Stock award compensation 86,017 -
(Increase) decrease in land contracts held for resale (2,403,508) 1,873,809
(Increase) decrease in mortgages held for resale (38,587,682) 17,752,047
Increase in mortgages sold (4,348,112) -
Decrease in accounts receivable 8,790,150 2,779,413
(Increase) decrease in accounts receivable -
related parties (1,771,967) 18,620
Increase in interest spread receivable (12,082,710) -
Increase in deferred charges and
other assets (1,261,381) (650,762)
Increase in accounts payable 6,782,502 431,495
(Increase) decrease in accounts payable -
related parties (164,319) 268,086
Increase (decrease) in accrued expenses 1,823,047 (632,846)
-------------- --------------
Net cash provided by (used in) (37,799,766) 24,530,784
operating activities -------------- --------------
CASH FLOWS FROM INVESTING
ACTIVITIES:
Investment in mortgage servicing rights (140,792) (19,335,464)
Proceeds from sale of mortgage servicing rights 2,521,535 10,602,050
Capital expenditures (618,408) (643,558)
(Increase) decrease in investments (142,992) 8,625
Real estate acquisitions - (9,010)
-------------- --------------
Net cash provided by (used in)
investing activities 1,619,343 (9,377,357)
-------------- --------------
CASH FLOWS FROM FINANCING
ACTIVITIES:
Proceeds from notes payable 435,392,628 449,476,350
Payments on notes payable (398,996,184) (474,565,221)
Proceeds from subordinated notes payable - 7,829,529
Net proceeds from subordinated debentures (1,588,000) 2,473,000
Dividends on preferred stock (242,838) (242,829)
-------------- --------------
Net cash provided by (used in) 34,565,606 (15,029,171)
financing activities -------------- --------------
Net increase (decrease) in cash (1,614,817) 124,256
Cash at beginning of period 3,096,993 2,730,408
-------------- --------------
Cash at end of period $ 1,482,176 $ 2,854,664
============== ==============
</TABLE>
See notes to consolidated financial statements
<PAGE> 6
MCA FINANCIAL CORP.
Notes to Consolidated Financial Statements
NOTE 1 - BASIS OF PRESENTATION
The consolidated balance sheet as of July 31, 1997 and the related consolidated
statements of operations, changes in components of stockholders' equity and
cash flows for the three and six months ended July 31, 1997 and 1996 are
unaudited. In the opinion of management, all adjustments necessary for a fair
presentation of such financial statements have been included. Such adjustments
consisted only of normal recurring items. Interim results are not necessarily
indicative of results for a full year.
The financial statements as of July 31, 1997 and for the three and six months
then ended should be read in conjunction with the financial statements and
notes thereto included in the Company's Annual Report on Form 10-K for the year
ended January 31, 1997.
The accounting policies followed by the Company with respect to the unaudited
interim financial statements are consistent with those stated in the 1997 MCA
Financial Corp. Annual Report on Form 10-K.
<PAGE> 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
NOTE ON FORWARD-LOOKING INFORMATION
This report includes "forward-looking" statements within the meaning of
Section 21E of the Securities Exchange Act of 1934, which represent the
Company's expectations or beliefs concerning future events. Statements
containing expressions such as "believes", "expects", "should", "anticipates"
or similar terms are intended to identify "forward-looking" statements, which
involve risks and uncertainties. Although the Company believes its
expectations are based on reasonable assumptions within the bounds of its
knowledge of its business and operations, there can be no assurance that actual
results will not differ materially from expected results. All forward-looking
statements included in this report are qualified by factors that could cause
actual results to differ materially from those expressed. Such factors
include, but are not limited to, changes in interest rates and real estate
markets generally, the Company's ability to attract and retain qualified
personnel to develop its non-conforming lending business, the availability and
cost of financing sources, increasing competition in existing markets and
businesses and the retention of key executives and management personnel.
Readers are cautioned not to place undue reliance on forward-looking
statements, which speak only as of the date of this report. The Company
undertakes no obligation to publicly release any revisions of such
forward-looking statements to reflect events or circumstances occurring after
the date of this report.
FINANCIAL CONDITION
The Company's primary financing needs are for mortgage banking activities,
loan funding activities, operating cash flows and the purchase of mortgage
servicing rights.
Loan funding activities are primarily financed through the use of mortgage
warehouse lines of credit with commercial banks. The Company also provides
funding for loans by using a technique known as "table funding" which is common
in the mortgage banking industry. In this case, funds are advanced directly to
the title company for closing from a third party source of funds, typically
another mortgage bank or a financial institution. This technique avoids the
use of the Company's warehouse lines of credit, but proves less profitable as a
result of fees charged by the third party provider of funds. For the past
quarter, the Company financed approximately 95% of its mortgage originations
using its warehouse lines of credit and approximately 5% with table funding
sources.
The Company currently has a $115 million revolving loan agreement with
Texas Commerce Bank, N.A. This warehousing line of credit provides financing
for funding and originating a variety of residential mortgage loans including,
but not limited to, conforming mortgages, non-conforming mortgages and land
contracts. Interest on bank borrowings are based on LIBOR plus 0.85% to 2.5%
depending on the type of loan. Mortgage loans held for resale are pledged as
collateral. This facility expired on September 3, 1997. The Company has
continued to operate under the terms of the expired agreement and expects a new
agreement to be in place by the end of its third quarter. The Company also has
a $20 million warehousing line of credit with Paine Webber Real Estate
Securities, Inc. ("Paine Webber"). Interest on borrowings under this facility
are based on LIBOR plus 1.5%. This facility is scheduled to expire on November
1, 1997. The Company expects to renew these warehousing lines of credit upon
its respective expiration. At July 31, 1997 a total of $93.6 million was
outstanding under these facilities.
<PAGE> 8
The Company has a $15 million loan and financing agreement with the Board
of Trustees of the Detroit Policemen and Firemen Retirement System. This
subordinated term loan has been provided to expand the Company's non-conforming
lending business. Interest on this borrowing is 10% per annum and is payable
quarterly. Commencing July 1, 2001 equal quarterly installments of principal
and interest will be paid until the loan terminates and is repaid in full on
June 20, 2006. Under conditions of this agreement, the lender was issued
30,197 shares of the Company's common stock. This represented 6% of the
outstanding unrestricted shares at July 18, 1996. As part of the agreement the
lender has the right to "put" these shares back to the Company on August 1,
2006 or upon default under a number of different scenarios.
The Company utilizes mortgage loan repurchase agreements with Paine Webber
Real Estate Securities, Inc. and Prudential Securities Realty Funding
Corporation pursuant to which Paine Webber and Prudential purchase mortgage
loans until such time as the loans are pooled for resale to an end investor at
which time the Company repurchases such loans. Such agreements provide for
interest payments based on the federal funds rate. These agreements can be
terminated on demand.
The Company utilizes a strategy of retaining servicing rights on a portion
of its loan originations in order to provide a steady stream of servicing
revenues and cash flow in future years and as a hedge against inflation and
rising interest rates. To help facilitate this strategy, the company utilizes
three funding sources; a bank credit facility, which was first made available
to the Company in April 1993, and proceeds from $10 million and $6 million
debenture offerings. The $10.0 million series of debentures, as well as the
credit facility are collateralized by certain of the Company's servicing rights
and rights to servicing income. The credit facility, which is currently at
$28.5 million, is with Texas Commerce Bank, N.A. and is enhanced by a stand-by
Note Purchase Agreement between Texas Commerce Bank, N.A. and the Detroit
Policemen and Firemen Retirement System (the "Retirement Fund") whereby the
Retirement Fund has agreed to provide payment to Texas Commerce Bank, N.A. upon
the occurrence of certain events of default by the Company. This credit
enhancement permits the Company to obtain a more favorable interest rate and
collateralization terms from the lending bank. In consideration for the credit
enhancement provided, the Company agreed to pay certain fees to the Retirement
Fund and provide it with an option to purchase up to 5% of the Company's
outstanding common stock, at 70% of the public offering price per share, if the
Company completes a firm commitment underwritten sale of its common stock prior
to April 3, 2000. At July 31, 1997, $18.2 million was outstanding under the
Texas Commerce Bank, N.A. credit facility.
As it does with its mortgage banking activities, the Company also has a
need to finance loan funding activities with respect to its land contract and
mortgage syndication business until such time as these loans are packaged and
sold to investors. The principal sources of this financing are two limited
partnerships which have been established in order to provide up to $4 million
for this purpose. These partnerships will terminate in December 1997. The
Company also has $4 million available as part of its $115 million facility with
Texas Commerce Bank. The Company is considering several alternatives to extend
or replace these financing sources at the time of their respective
terminations. There is no assurance that the Company will be successful in
extending or replacing these financing sources, however.
The Company has $1.0 million available under a credit facility with a
commercial bank for the acquisition and rehabilitation of residential real
property prior to resale. At July 31, 1997, approximately $713,000 was
outstanding under this facility.
During the first six months of fiscal 1998 the Company's operating
activities used $37.8 million. Of this, $38.5 million was used to fund
increases in mortgages held for resale. The Company also used $12.1 million to
increase the balance of interest spread receivable. These uses of cash were
partially offset by an $8.8 million decrease in accounts receivable and a $6.8
million increase in accounts payable.
<PAGE> 9
Investing activities provided $1.6 million during the six months ended July 31,
1997. This primarily is the result of bulk sales of the Company's servicing
rights. Cash flows from financing activities provided $34.6 million. Proceeds
in excess of payments on notes payable provided $36.4 million. This was offset
by a net $1.6 million decrease in subordinated debentures.
RESULTS OF OPERATIONS
OVERVIEW
The Company recognized $1,329,027 in net income for the six months ended
July 31, 1997 as compared to $82,903 of net income for the six months ended
July 31, 1996. Net income increased substantially while total loan origination
volume decreased during the first half of fiscal 1998. While overall loan
originations were down, originations of more profitable non-conforming loans
increased significantly. The Company continues to focus its business on the
expansion of this non-conforming loan business plan and has committed
substantial resources to developing this business.
REVENUES
Overall revenues for the six months ended July 31, 1997 increased 53% to
$40,397,166 as compared to $26,439,276 for the six months ended July 31, 1996.
Gains on sales of land contracts decreased 19% to $1,337,772 from $1,644,316
for the six months ended July 31, 1997 and 1996, respectively. The Company
does not believe this represents a significant trend and by year-end the gains
recorded in fiscal 1998 should exceed fiscal 1997. Overall gains on sale of
real estate were $2,329,014 and $4,832,277 for the six months ended July 31,
1997 and 1996, respectively. This 52% decrease reflects increased competition
in the markets in which the Company competes and the shift of Company resources
into developing its non-conforming lending business. Gains on bulk sales of
servicing rights of $3,138,760 for the first half of fiscal 1998 were
consistent with the $3,293,317 recorded in the first half of fiscal 1997.
Mortgage origination fees and gain on sale of mortgages increased $16,588,544,
or 191% from $8,707,475 for the six months ended July 31, 1996 to $25,296,019
for the six months ended July 31, 1997. Total origination volume actually
dropped in the first half of fiscal 1998 to $442 million from $476 million in
a like period of fiscal 1997. Origination volume of non-conforming loans,
however, increased 236% from $53 million to $179 million for the six months
ended July 31, 1996 and 1997, respectively. The Company expects that the mix
of loan production volume will continue to shift to non-conforming loans, which
generate more revenues and higher margins, as its sales force continues to
develop experience with this type of product. Servicing fees decreased to
$2,964,826 for the six months ended July 31, 1997 as compared to $3,878,915 for
the six months ended July 31, 1996. This results from bulk sales of previously
acquired servicing rights. Interest income increased 17% to $4,565,077 from
$3,914,993 for the six months ended July 31, 1997 and 1996, respectively. This
resulted primarily, from increased production of higher note rate
non-conforming loans held prior to resale.
EXPENSES
Payroll and commissions increased $3,689,770, or 33%, to $14,987,565 from
$11,297,795 for the six months ended July 31, 1997 and 1996, respectively. As
a percentage of revenue, payroll and commissions dropped to 37% from 43%. This
was due primarily to the change in the Company's production mix. Interest
expense increased $1,271,262, or 25%, to $6,367,419 for the six months ended
July 31, 1997 as compared to $5,096,157 for the six months ended July 31, 1996.
The increase resulted from a higher interest rate environment in general,
interest on the $15,000,000 subordinated notes issued to the Retirement Fund
and the higher interest rates the Company is required to pay its warehouse
lenders on non-conforming mortgages. Professional services increased
significantly to $2,067,050 for the first half of fiscal 1998 as compared to
<PAGE> 10
$933,029 during the first half of fiscal 1997. The majority of this
increase related to fees associated with selling a significant portion of the
Company's non-conforming production to a third party for purposes of
securitization. The Company did not engage in this type of transaction in the
first half of fiscal 1997. The $1,348,600 increase in amortization to
$3,653,096 from $2,304,496 for the six months ended July 31, 1997 and 1996,
respectively, relates to amortization of excess interest spread receivable.
This type of asset was not on the Company's balance sheet at July 31, 1996.
General and administrative expenses were $10,956,935 for the six months ended
July 31, 1997 as compared to $6,391,373 during the six months ended July 31,
1996. As a percentage of revenue, general and administrative expenses
increased to 27% from 24% over the same periods. This resulted from setting
up $2.9 million in reserves on the Company's excess interest spread receivable
during the six months ended July 31, 1997.
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a) The Company held its Annual Shareholder's meeting on June 4, 1997.
(b) At the Annual Shareholder's meeting, Thomas P. Cronin and Lee P.
Wells were elected as directors for an additional three year
term. Patrick D. Quinlan, D. Michael Jehle and C. Thompson Wells,
Jr. continue to serve as directors for the remainder of their
three year terms ending on the date of the Company's Annual
Shareholder's meeting in 1998 and Keith D. Pietila and James B.
Quinlan continue to serve as directors for the remainder of their
three year terms ending on the date of the Company's Annual
Shareholder's meeting in 1999.
(c) There were no matters voted upon at the Company's Annual
Shareholder's meeting other than the election of directors.
Each director received 423,146 votes representing all of the
shares present at the Annual Shareholder's meeting. There were no
votes cast against any director.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits: The following exhibit is filed with this report:
10.1 Revolving Credit Loan agreement, dated June 30, 1997 by
and among the Company and its subsidiaries and Texas
Commerce Bank, N.A.
10.2 Mortgage Purchase and Sale Agreement, commencing March 1,
1997 by and among the Company and its subsidiaries and
Prudential Securities Realty Funding Corporation.
27 Financial Data Schedule
(b) Reports on Form 8-K:
The Company was not required to file any current reports on Form
8-K during the quarter ended July 31, 1997.
<PAGE> 11
SIGNATURES
Pursuant to the requirement 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.
MCA FINANCIAL CORP.
Date: September 12, 1997 By: /s/ Patrick D. Quinlan
------------------------------------
Patrick D. Quinlan,
Chairman
(Principal Executive Officer)
Date: September 12, 1997 By: /s/ Keith D. Pietila
------------------------------------
Keith D. Pietila,
Executive Vice President
(Principal Financial and
Accounting Officer)
<PAGE> 12
Exhibit Index
-------------
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
10.1 Revolving Credit Loan agreement, dated June 30, 1997 by and among the
Company and its subsidiaries and Texas Commerce Bank, N.A.
10.2 Mortgage Purchase and Sale Agreement, commencing March 1, 1997 by and
among the Company and its subsidiaries and Prudential Securities Realty
Funding Corporation.
27 Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 10.1
MCA FINANCIAL CORP.
MCA MORTGAGE CORPORATION
MORTGAGE CORPORATION OF AMERICA
- --------------------------------------------------------------------------------
$28,500,000
REVOLVING CREDIT LOAN AGREEMENT
(SECURED)
DATED AS OF JUNE ___, 1997
- --------------------------------------------------------------------------------
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
[TEXAS COMMERCE BANK LOGO]
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Accounting Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.3 Singular and Plural. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.4 Certain Matters of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2. COMMITMENT, INTEREST AND FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1 Revolving Credit Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.2 Borrowing Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.3 Revolving Credit Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.4 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.5 Interest Rates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.6 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.7 Additional Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.8 Change in Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.9 Changes in Commitment and Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.10 Basis of Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.11 Receipt of Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3. SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4. CONDITIONS PRECEDENT TO OBLIGATIONS OF BANK . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.1 Conditions to First Disbursement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.2 Conditions to All Disbursements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5. WARRANTIES AND REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.1 Corporate Existence and Power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.2 Authorization and Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.3 Valid and Binding Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.4 Actions, Suits or Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.5 No Liens, Pledges, Mortgages or Security Interests. . . . . . . . . . . . . . . . . . . . . . 35
5.6 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.7 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.8 Borrowers Have Paid Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.9 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.10 Margin Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.11 Pension Funding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.12 Eligible Servicing Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
5.13 Approved Lender, Mortgagee, Issuer and Servicer. . . . . . . . . . . . . . . . . . . . . . . 37
5.14 Investment Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5.15 Misrepresentation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.1 Financial and Other Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.2 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.3 Pay Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.4 Maintain Corporation and Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.5 Maintain Net Worth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.6 Limit Leverage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.7 Maintain Servicing Portfolio Level. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.9 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.10 Use of Loan Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.11 Senior Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.12 Valuation of Eligible Servicing Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.13 Valuation of Eligible Residuals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.14 Accounting; Access to Records, Books, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.15 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.16 Shareholder Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.1 Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.2 Stock Acquisition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.3 Liens and Encumbrances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.4 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.5 Extension of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.6 Guarantee Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.7 Subordinate Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.8 Property Transfer; Merger or Lease-Back. . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.9 Nature of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.10 Acquire Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.11 Acquire Fixed Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.12 Pension Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.13 Affiliate Transactions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.14 Servicing Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.15 Misrepresentation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8. EVENTS OF DEFAULT; ENFORCEMENT; APPLICATION OF PROCEEDS 47
8.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
8.2 Acceleration of Obligations; Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
8.3 Application of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.4 Termination of Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.5 Cumulative Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.6 Concerning Obligations Payable Upon Demand. . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.7 Marshaling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.1 Usury Not Intended; Credit or Refund of Any Excess Payments. . . . . . . . . . . . . . . . . 51
9.2 Independent Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.3 Covenant Independence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.4 Waivers and Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.6 Survival of Warranties, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.7 Expenses; Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.8 Payments on Saturdays, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.9 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.10 Participations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.11 Disclosure of Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.12 Maintenance of Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.13 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.14 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.15 Integration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.16 Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.17 WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
</TABLE>
iii
<PAGE> 5
REVOLVING CREDIT LOAN AGREEMENT
(SECURED)
THIS REVOLVING CREDIT LOAN AGREEMENT made and delivered this ___ day of
June, 1997, by and among MCA FINANCIAL CORP. ("MCAFC"), a Michigan corporation,
MCA MORTGAGE CORPORATION ("MCAMC"), a Michigan corporation formerly known as
Mortgage Corporation of America, and MORTGAGE CORPORATION OF AMERICA ("MCA"), a
Michigan corporation formerly known as First American Mortgage Associates,
Inc., and TEXAS COMMERCE BANK NATIONAL ASSOCIATION (the "BANK").
WITNESSETH:
WHEREAS, the Borrowers desire to borrow from the Bank up to $28.5 million
of principal outstanding from time to time on a revolving credit basis to
finance the Borrowers' acquisition or retention of servicing rights relating to
residential mortgage loans, to refinance the Borrowers' existing debt
heretofore incurred to another lender for that purpose and to finance the
Borrowers' residual interests in mortgage-backed securities created from
residential mortgage loans pooled by the Borrowers; and
WHEREAS, the Bank is willing to supply such financing (and refinancing)
subject to the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein contained, the Borrowers and the Bank agree as follows:
1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following respective meanings:
"ADVANTA SECURITIZATION ACCESS AGREEMENT" means the Second Amended and
Restated Securitization Access Agreement dated as of June ___, 1997 by and
among the Borrowers, Advanta Mortgage Conduit Services, Inc., and Advanta
Mortgage Corp. USA, as it may hereafter be supplemented, amended or restated
from time to time; provided that no such supplement, amendment or restatement
that directly or indirectly changes the meaning of the term "Remaining Excess
Servicing" shall be effective to change the meaning of that term as it is used
in Section 6.13 of this Agreement unless and until the Borrowers, the Bank and
the Pension Fund shall agree in writing to such change.
"AFFILIATE" means, when used with respect to any person, any other person
which, directly or indirectly, controls or is controlled by or is under common
control with such person. For purposes
<PAGE> 6
of this definition, "control" (including the correlative meanings of the terms
"controlled by" and "under common control with"), with respect to any person,
means possession, directly or indirectly, of the power to direct to cause the
direction of the management and policies of such person, whether through the
ownership of voting securities or by contract.
"AGENCY" means any one of FHLMC, FNMA or GNMA.
"AGENCY CONTRACT" means any one of the FHLMC Servicing Contract, FNMA
Servicing Contracts or GNMA Servicing Contracts.
"AGGREGATE CREDIT LIMIT" is defined in the definition of "Commitment
Amount" below.
"AGREEMENT" means this Revolving Credit Loan Agreement, as amended,
supplemented or otherwise modified from time to time.
"APPLICABLE COVERED RATE" means one and one-fourth percent (1 1/4%) per
annum; provided that from and after the date (if ever) that the Pension Fund
shall purchase the Revolving Credit Note, whether pursuant to the Note Purchase
Agreement or otherwise, the Applicable Covered Rate shall be the same as the
Base Rate.
"APPLICABLE GUIDELINES" means the eligibility guidelines for pools of
mortgage loans (and the mortgage loans in such pools) set forth in Schedule AG
to this Agreement, as such Schedule may be supplemented or amended from time to
time with the written approval of the Borrowers, the Bank and the Pension
Fund's designated consultant (currently Plante & Moran, LLP) -- whether such
approvals are obtained as a part of the Bank's and Pension Fund's designated
consultant's approvals of the Borrowers' request for a Revolving Loan to
finance Eligible Residuals or obtained separately from such a request -- and
any other guidelines for pools of mortgage loans (and the mortgage loans in
such pools) approved in writing by the Borrowers, the Bank and the Pension
Fund's designated consultant.
"APPLICABLE MARGIN" means, for each Borrowing Price Category in the table
below, the interest margin beside that category:
<TABLE>
<CAPTION>
BORROWING PRICE
CATEGORY APPLICABLE MARGIN
-------------------------------------------------------------
<S> <C>
Base Rate 0%
LIBOR Rate +1 1/4%
</TABLE>
"APPROVED RESIDUALS APPRAISER" means Chase Securities, Inc. or another
nationally-recognized appraiser of residual interests in Mortgage Securities
that has been approved in writing by the Borrowers and the Bank.
2
<PAGE> 7
"AVERAGE ADJUSTED BASE RATE" means, for any period, an annual interest
rate equal to the quotient of (a) the sum of the Base Rate plus the Applicable
Margin for each calendar day during that period divided by (b) the number of
days in that period.
"AVERAGE ADJUSTED LIBOR RATE" means, for any period, an annual interest
rate equal to the quotient of (a) the sum of the LIBOR Rate plus the Applicable
Margin for each calendar day during that period divided by (b) the number of
days in that period.
"AVERAGE DEPOSITARY BALANCES" means, for any period, (a) the quotient of
(i) the sum of the Eligible Balances as of the close of business for each
calendar day (which for any day that is not a Business Day are deemed for this
definition to be those balances for the preceding Business Day) during that
period divided by (ii) the number of calendar days during that period minus (b)
amounts necessary to satisfy any deposit insurance, reserve, special deposit,
Tax (other than that the Bank's general corporate income or franchise Taxes),
duty, or other imposition (in each case at the applicable rates) requirements
applicable to the Bank for those accounts, minus (c) amounts required to
compensate the Bank for direct processing and transaction costs and other
services rendered in connection with those accounts in accordance with the
Bank's system of charges for similar accounts, minus (d) unless otherwise paid
directly to the Bank, any amounts in those accounts utilized as of that day in
the calculation of interest on any other Debt payable by any Borrower to the
Bank or any other person.
"AVERAGE PRINCIPAL DEBT" means, for any period, the quotient of (a) the
sum of the principal balances of all outstanding Borrowings under this
Agreement owed to the Bank as of the close of business for each calendar day
(which for any day that is not a Business Day is deemed for this definition to
be the outstanding principal balance of all such Borrowings as of the close of
business for the preceding Business Day) divided by (b) the number of days in
that period.
"BANK" means Texas Commerce Bank National Association, a national banking
association.
"BANKRUPTCY CODE" means Title 11 of the United States Code, as amended
from time to time, or any successor act or code.
"BASE RATE" shall mean, on any day, the prime rate for that day as
announced by the Bank. The prime rate is a reference rate and does not
necessarily represent the Bank's best or lowest rate or a favored rate, and the
Bank disclaims any statement, representation or warranty to the contrary. Any
rate of interest based on the Base Rate shall be adjusted as of the effective
date of each change in the Base Rate. Should any issue ever arise in any forum
or under any circumstances as to the amount of the Base Rate for any
then-current or past day, a certificate of the Bank's chief credit officer
stating the Bank's prime rate for that day shall conclusively establish what
the Base Rate was for that day, absent manifest error.
3
<PAGE> 8
"BASE RATE BORROWING" means any Borrowing bearing interest at the Average
Adjusted Base Rate.
"BORROWER" means any of MCAFC, MCAMC and MCA.
"BORROWING" means a borrowing of a Revolving Loan under this Agreement.
"BORROWING BASE" means, as of any applicable date of determination, the
sum of the following two elements:
(x) one hundred percent (100%) of the lesser of cost or market value of
the Eligible Servicing Rights, based on the then outstanding aggregate
principal balance of the mortgage loans to which such Servicing Rights relate,
with the market value thereof being determined in accordance with Section 6.12
of this Agreement; provided that, in connection with a Servicing Acquisition,
the Borrowing Base value for the Servicing Rights to be acquired shall equal
the aggregate purchase price paid therefor so long as such purchase price shall
be within the range of appraised values for such Servicing Rights obtained by
the Borrowers from one or more independent nationally-recognized mortgage
servicing rights valuation consultants and furnished to the Bank; and provided,
further, that this element of the Borrowing Base value may be determined by
reference to the market value of Eligible Servicing Rights, even if greater
than the cost thereof, if such market value has been determined by an
independent nationally-recognized mortgage servicing rights valuation
consultant and such determination shall be or remain reasonably acceptable to
the Bank; and provided further that the Borrowing Base value of any Servicing
Rights acquired by the Borrowers from any third party but for which for any
reason at least ninety percent (90%) of the full contract purchase price has
not been fully paid and satisfied on or before one hundred eighty (180) days
after the initial payment thereon (whether of a deposit or the down payment
therefor) shall automatically be zero; and provided, further, that the Bank may
elect at any time and from time to time (on either a semiannual or ad hoc
basis) to "mark to market" in accordance with the procedures stated in Section
6.12 any or all of such Servicing Rights for purpose of redetermining this
element of the Borrowing Base. For purposes of determining from time to time
the Borrowing Base value of Originated Servicing, the cost and market value
thereof shall equal one and one-half percent (1 1/2%) of the then aggregate
outstanding principal balance of the mortgage loans to which such Originated
Servicing relates.
plus (y) one hundred percent (100%) of the lesser of GAAP book value or market
value of the interests of the relevant Borrowers in and to Eligible Residuals,
the market value thereof to be determined in accordance with Section 6.13 of
this Agreement; provided, that the Bank may elect at any time and from time to
time (whether on a quarterly or ad hoc basis) to "mark to market" any or all of
such residual interests for purpose of redetermining this element of the
Borrowing Base, with the market value thereof being determined in accordance
with Section 6.13 of this Agreement.
4
<PAGE> 9
"BORROWING BASE CERTIFICATE" means a certificate in the form and content
of Exhibit A to this Agreement or such other form as the Bank may request,
completed in all appropriate respects and executed by the chief executive or
chief financial officer of MCAFC, and setting forth the Borrowers' computation
of the Borrowing Base as of the date of such certificate.
"BORROWING PRICE CATEGORY" means any category of Borrowing determined with
respect to the applicable interest option, i.e., either a Base Rate Borrowing
or LIBOR Borrowing.
"BUSINESS DAY" means a day on which the Bank is open to carry on its
normal commercial lending business.
"CALENDAR MONTH" means an actual calendar month and also includes any
partial calendar month that occurs at any time from the date of this Agreement
to the date that the Obligations are paid in full and the Bank's commitment to
lend under this Agreement has terminated or has been canceled.
"CASH FLOW" of any person means, for any applicable period of
determination, the Net Income for such period, plus, to the extent deducted in
computation of such Net Income, the amount of depreciation and amortization
expense and the amount of deferred tax expense incurred during such period, all
as determined in accordance with GAAP.
"CEILING RATE" means, on any day, the maximum nonusurious rate of interest
permitted for that day by whichever of applicable federal or Texas law permits
the higher interest rate, stated as a rate per annum. On each day, if any,
that Chapter One ("CHAPTER ONE") of Title 79, Texas Revised Civil Statutes,
1925, as amended (the "TEXAS CREDIT CODE") establishes the Ceiling Rate, the
Ceiling Rate shall be the "indicated rate ceiling" (as defined in Chapter One)
for that day. The Bank may from time to time, as to current and future
balances, implement any other ceiling under Chapter One by notice to the
Company, if and to the extent permitted by, Chapter One.
"COLLATERAL" means the collateral described in the Security Agreement.
"COMMITMENT AMOUNT" means, as of any applicable date of determination,
Twenty-eight Million Five Hundred Thousand Dollars ($28,500,000) (or such
lesser amount to which the Commitment Amount may be reduced by the Borrowers
from time to time under Section 2.9(a) of this Agreement); provided that the
total principal outstanding on any day under (i) the credit facilities provided
for in this Agreement and (ii) all other credit facilities provided by the Bank
to the Borrowers (or any one or more of them) from time to time (including the
existing Loan Agreement dated as of September 3, 1996, as amended), shall never
exceed an aggregate One Hundred Fifteen Million Dollars ($115,000,000) (the
"AGGREGATE CREDIT LIMIT").
"CONSOLIDATED" or "CONSOLIDATED" means, when used with reference to any
financial term in this Agreement, the aggregate for two or more persons of the
amounts signified by such term for
5
<PAGE> 10
all such persons determined on a consolidated basis in accordance with GAAP.
Unless otherwise specified herein, references to "consolidated" financial
statements or data of the Borrowers includes consolidation with its
Subsidiaries in accordance with GAAP.
"CONTRACT RATE" means, as of any applicable date of determination, the
interest rate determined in accordance with Section 2.4 of this Agreement.
"CONTROL" has the same meaning in this Agreement as in UCC Section 8.106.
"CONTROL AGREEMENT" means a control agreement substantially in the form of
Schedule CA to this Agreement (or in another form approved by the Bank) among
the Borrowers, the Bank, the Pension Fund and the securities intermediary
maintaining any securities account in which (i) the Bank is granted (or is
intended to be granted) a security interest by the Security Agreement, (ii) the
Pension Fund is granted (or is intended to be granted) a security interest by
the Pension Fund A&R Master Security Agreement or (iii) both the Pension Fund
and the Bank are so granted a security interest.
"DEBT" means, as of any applicable date of determination, all items of
indebtedness, obligation or liability of a person, whether matured or
unmatured, liquidated or unliquidated, direct or indirect, absolute or
contingent, joint or several, that should be classified as liabilities in
accordance with GAAP.
"DEBTOR LAWS" means the U.S. Bankruptcy Code and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, arrangement,
receivership, insolvency, reorganization, or similar Laws from time to time in
effect and generally affecting creditors' rights.
"DEFAULT" means a condition or event which, with the giving of notice or
the passage of time, or both, would become an Event of Default.
"DEFAULT RATE" means, for any day, an annual interest rate equal to the
lesser of either (a) the Base Rate plus three percent (3%) or (b) the Maximum
Rate.
"DISBURSEMENT DATE" means each date upon which the Bank makes a loan to
the Borrower under Section 2.1 of this Agreement.
"ELIGIBLE BALANCES" means, for any calendar day, the sum (which for any
day that is not a Business Day is deemed for this definition to be that sum as
determined as of the close of business on the preceding Business Day) of
collected balances as of the close of business on that day in all identified
non-interest bearing demand deposit accounts of or maintained by Borrowers with
the Bank.
6
<PAGE> 11
"ELIGIBLE RESIDUALS" means the fully-vested residual ownership interests
of the Borrowers (whether such interests are in the form of certificated or
book-entry securities -- in which case such securities must be fully paid and
non-assessable -- or are instead a general intangible or contract right) in the
income stream (which is sometimes called "excess servicing") from Qualifying
Pools of the Borrowers' mortgage loans (whether originated or purchased) from
which Mortgage Securities are from time to time created (whether such
securities are issued by a Borrower, an Affiliate of a Borrower or by a third
party following transfer by such Borrower(s) to the issuer), all tranches of
which Mortgage Securities -- other than the residual or equity tranche owned by
such Borrower and constituting such residual interest -- have been
underwritten, issued, sold to and fully paid for by third party investors.
While all of the Borrowers' interests in the income streams from all Qualifying
Pools of the Borrowers' mortgage loans from which Mortgage Securities are from
time to time created are being pledged to the Bank pursuant to the Security
Agreement, only such of those residual ownership interests of the Borrowers as
to which the Bank is specifically satisfied that neither Advanta Mortgage
Conduit Services, Inc. nor any company affiliated therewith (nor any other
person except the Bank and the Pension Fund) has any security interest therein
or any other claim against such interest, will be considered as having
Collateral value for Borrowing Base purposes -- no such residual interests in
which Advanta Mortgage Conduit Services or any other person (except the Bank
and the Pension Fund) has a security interest shall be Eligible Residuals or be
accorded any value for Borrowing Base purposes. The current market value of
all Eligible Residuals pledged to the Bank pursuant to this Agreement shall be
redetermined no less frequently than quarterly and shall be reflected on each
Borrowing Base Certificate submitted to the Bank.
"ELIGIBLE SERVICING RIGHTS" means those Servicing Rights of a Borrower
which (i) were granted to such Borrower pursuant to Agency Contracts, or were
acquired by such Borrower with the prior written consent and approval of the
applicable Agency, and relate solely to residential mortgage loans which comply
with all requirements for purchase by the applicable Agency or for inclusion in
a mortgage-backed or pass-through security issued or guaranteed by such
applicable Agency, (ii) are not subject to any mortgage, pledge, lien, security
interest or other encumbrance of any kind or character, other than the rights
of the applicable Agency (pursuant to the applicable Agency Agreement), the
lien granted to the Bank pursuant to the Security Agreement and the Pension
Fund's Permitted Lien permitted by the Enhancement Agreement, and (iii) have
been represented by the Borrowers to be Eligible Servicing Rights on a
Borrowing Base Certificate. Notwithstanding the foregoing, Servicing Rights
granted by GNMA shall be "Eligible Servicing Rights" hereunder only to the
extent that (a) such rights relate to mortgage loans originated by a Borrower
and (b) Borrowings secured by such rights do not exceed, on any day, five
percent (5%) of the aggregate balance of the Revolving Loans then outstanding;
provided that such rights shall be sold to an unrelated party within one
hundred twenty (120) days after becoming Eligible Servicing Rights, and shall
in any event cease to have Borrowing Base value at the end of that one hundred
twenty (120) day time period.
7
<PAGE> 12
"ENHANCEMENT AGREEMENT" means the Amended and Restated Credit Enhancement
Umbrella Agreement dated _, 1997 among MCAFC, MCAMC and MCA and the Pension
Fund, as amended, supplemented or otherwise modified from time to time.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor act or code.
"EVENT OF DEFAULT" means any of those conditions or events listed in
Section 8.1 of this Agreement.
"FHLMC" means the Federal Home Loan Mortgage Corporation and any successor
thereto.
"FHLMC SERVICING CONTRACT" means the unitary, indivisible master servicing
contract between a Borrower and FHLMC, as described in the FHLMC Sellers' and
Servicers' Guide, as it may be amended from time to time.
"FINANCING STATEMENTS" means UCC financing statements describing the Bank
as secured party and a Borrower as debtor covering the Collateral and otherwise
in such form, for filing in such jurisdictions and with such filing offices, as
the Bank shall reasonably deem necessary or advisable.
"FIXED CHARGES" means, for any applicable period of determination, the
sum, without duplication, of (a) all interest paid or payable during such
period by a person, plus (b) all debt discount and expense amortized or
required to be amortized during such period by such person, plus (c) the
maximum amount of all rents and other payments paid or required to be paid by
such person during such period under any lease or other contract or arrangement
providing for use of real or personal property in respect of which such person
is obligated as a lessee, user or obligor, where such lease or other contract
or arrangement is required under GAAP to be capitalized, to the extent that,
pursuant to GAAP, such rents and other payments represent interest plus (e) all
dividends and other distributions paid or payable by such person or otherwise
accumulating during such period on any preferred stock of such person.
"FIXED CHARGES COVERAGE RATIO" means the ratio of (x) the aggregate
consolidated Net Income of the Borrowers and their Subsidiaries plus their
aggregate Fixed Charges during the four (4) consecutive previous fiscal
quarters, to (y) their aggregate consolidated Fixed Charges for the same
period.
"FNMA" means the Federal National Mortgage Association and any successor
thereto.
"FNMA SERVICING CONTRACTS" means such contracts relating to the servicing
of residential mortgage loans as have been or may be entered into between a
Borrower and FNMA on the date hereof or at any time hereafter.
8
<PAGE> 13
"GAAP" means, as of any applicable date of determination, generally
accepted accounting principles consistently applied.
"GNMA" means the Government National Mortgage Association and any
successor thereto.
"GNMA SERVICING CONTRACTS" means such contracts relating to the servicing
of residential mortgage loans as have been or may be entered into between a
Borrower and GNMA on the date hereof or at any time hereafter.
"LAWS" means all applicable statutes, laws, treaties, ordinances, rules,
regulations, orders, writs, injunctions, decrees, judgments, opinions, and
interpretations of any Tribunal.
"LENDER LIEN" means any present or future first priority (except as
otherwise specifically provided in the Loan Documents) Lien securing the
Obligations and assigned, conveyed, and granted to or created in favor of the
Bank under or pursuant to the Loan Documents.
"LIBOR" means, for any day, the rate of interest per annum which is equal
to the rate per annum (rounded upwards, if necessary, to the nearest 1/16th of
1%) determined by The Chase Manhattan Bank (which is an Affiliate of the Bank)
to be the average of the interest rates available to it in accordance with the
then-existing practices in the interbank market in London, England at
approximately 11:00 a.m. London time for that day for the offering to The Chase
Manhattan Bank by leading dealers in such interbank market for delivery on that
day of U. S. Dollar deposits of One Million Dollars ($1,000,000) each for a
one (1) month period. If for any reason the Bank cannot determine that rate
for any day, then LIBOR for that day shall be the rate of interest per annum
that is equal to the arithmetic mean of the rates appearing on the Reuters
Screen LIBO Page as of 11:00 a.m., London time, on that date for the offering
by such institutions as are named therein to prime banks in the Eurodollar
interbank market in London, England, for delivery on that day of U.S. dollar
deposits of One Million Dollar ($1,000,000) each for a one (1) month period.
The Bank's determination of LIBOR for each day shall be conclusive and binding,
absent manifest error. For purposes of this Agreement and the Revolving Credit
Note, LIBOR shall fluctuate upward and downward automatically and concurrently
with day-to-day changes in such arithmetic mean, and in the amount of the
change.
"LIBOR BORROWING" means any Borrowing that bears interest at the LIBOR
Rate.
"LIBOR RATE" means, for any day, the sum of LIBOR for that day plus the
Applicable Margin.
"LIEN" means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement or encumbrance of any kind and any other
arrangement for a creditor's claim to be satisfied from assets or proceeds
prior to the claims of other creditors or any owner of the assets covered
thereby.
9
<PAGE> 14
"LOAN DOCUMENTS" means this Agreement, the Revolving Credit Note, the
Security Agreement, the Financing Statements, the Note Purchase Agreement and
all other agreements, documents or instruments now or hereafter executed by or
on behalf of any Borrower or the Pension Fund and delivered in connection with
this Agreement, but excluding the Enhancement Agreement and the security
agreements, documents, and Agency agreements to be delivered thereunder to the
extent such documents or Agency agreements are not to be delivered to the Bank
under this Agreement or the Security Agreement and also excluding the warehouse
loan agreement between the Borrowers and the Bank that is described in Schedule
7.4 and the other papers evidencing, securing or otherwise relating to the
credit facilities provided for in such warehouse loan agreement, as it may be
supplemented, amended or restated from time to time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (i) the
business, operations, properties, condition (financial or otherwise) or
prospects of a Borrower, (ii) the ability of any Borrower to perform its
obligations under, or comply with, this Agreement or any other Loan Document,
or (iii) the legality, validity or enforceability of this Agreement or any
other Loan Document.
"MAXIMUM AMOUNT" and "MAXIMUM RATE" respectively mean, for any day, the
maximum nonusurious amount of interest that, under applicable Law, the Bank is
permitted to contract for, charge, take, reserve, or receive on the
Obligations, and the Ceiling Rate.
"MCA", "MCAFC" and "MCAMC" are each defined in this Agreement's preamble.
"MORTGAGE SECURITY" means a security in respect of an underlying pool of
related mortgage loans that provides for payment by the issuer to the holder of
specified principal installments and a fixed interest rate on the unpaid
balance, with all prepayments being passed through to the holder, and is issued
in certificate or book entry form.
"NET INCOME" means the net income (or loss) of a person for any period
determined in accordance with GAAP but excluding in any event:
(i) any gains or losses on the sale or other disposition, not in the
ordinary course of business, of investments or fixed or capital assets, and any
taxes on the excluded gains and any tax deductions or credits on account on any
excluded losses;
(ii) gains derived by any Borrower in connection with a sale, even if
in the ordinary course of business, of land contracts or residential homes to
partnerships controlled by a Borrower in the event that such Borrower does not
receive payment in full, in cash, for such sale within six (6) months of such
sale; and
10
<PAGE> 15
(iii) in the case of any Borrower, net earnings of any Person in
which such Borrower has an ownership interest, unless such net earnings shall
have actually been received by the Borrower in the form of cash distributions.
"NET WORTH" means, for any person, its stockholder's equity as determined
under GAAP, plus its Subordinated Debt minus accounts receivable from its
Affiliates and shareholders or equity owners.
"NOTE PURCHASE AGREEMENT" means the note purchase agreement in the form
and content of Exhibit B to this Agreement pursuant to which the Pension Fund
agrees, among other things, to purchase the Revolving Credit Note from the Bank
under specified conditions, as such agreement may be amended, supplemented or
otherwise modified from time to time.
"OBLIGATIONS" means the principal of and interest on the Revolving Loans,
and, without duplication, all other indebtedness, obligations and liabilities
of the Borrowers to the Bank under, arising out of or in connection with this
Agreement or any other Loan Documents (including indemnities, fees and
expenses), whether now existing or hereafter incurred, direct or indirect,
absolute or contingent, matured or unmatured, joint or several, whether for
principal, interest, reimbursement obligations, fees, expenses or otherwise,
and the due performance and compliance with the terms and conditions of this
Agreement and the other Loan Documents by the Borrowers and also includes
amounts that would become due but for operation of 11 U.S.C. Section Section
502 and 503 or any other provision of Title 11 of the United States Code, pre-
and post-maturity interest on any of the foregoing, including all post-petition
interest if any Borrower voluntarily or involuntarily files for protection
under any Debtor Law, and all renewals, extensions, and modifications of any of
the foregoing.
"ORIGINATED SERVICING" means Eligible Servicing Rights relating to
mortgage loans which are either originated by a Borrower or acquired on a
loan-by-loan basis from wholesale correspondents and underwritten by a
Borrower; excluding servicing relating to mortgage loans pledged by a Borrower
under a mortgage warehouse loan credit facility while so pledged, and also
excluding servicing relating to mortgage loans sold by a Borrower under a
mortgage loans gestation repurchase agreement and not subsequently repurchased.
"PBGC" means the Pension Benefit Guaranty Corporation or any person
succeeding to the present powers and functions of the Pension Benefit Guaranty
Corporation.
"PENSION FUND" means the Board of Trustees of the Policemen and Firemen
Retirement System of the City of Detroit.
"PERMITTED LIENS" means:
(a) liens and encumbrances in favor of the Bank;
11
<PAGE> 16
(b) liens and encumbrances in favor of the Pension Fund granted
under the Enhancement Agreement which, insofar as they cover or affect the
Collateral, are subordinate and inferior to the Bank's security interests in
the Collateral;
(c) liens against the Borrowers' residual interests in Mortgage
Securities created from residential mortgage loans pooled by the Borrowers
which residual interests (i) are not included in the Borrowing Base and against
whose Collateral value the Borrowers have not requested Revolving Loans and
(ii) are pledged by the Borrowers to another lender (such as, without
limitation, Advanta or The Chase Manhattan Bank or their respective affiliates)
solely for the purpose of securing financing for the Borrowers of such
residuals interests funded by such other lender-pledgee;
(c) liens for taxes, assessments or other governmental charges
incurred in the ordinary course of business and for which no interest, late
charge or penalty is attaching or which is being contested in good faith by
appropriate proceedings and, if requested by the Bank, bonded in an amount and
manner satisfactory to the Bank;
(d) liens, not delinquent, created by statute in connection with
worker's compensation, unemployment insurance, social security and similar
statutory obligations;
(e) liens of mechanics, materialmen, carriers, warehousemen or other
like statutory or common law liens security obligations incurred in good faith
in the ordinary course of business that are not yet due and payable;
(f) encumbrances consisting of existing or future zoning
restrictions, existing recorded rights-of-way, existing recorded easements,
existing recorded private restrictions or existing or future public
restrictions on the use of real property, none of which materially impairs the
use of such property in the operation of the business for which it is used and
none of which is violated in any material respect by any existing or proposed
structure or land use;
(g) purchase money liens upon or in property of a Borrower acquired
after the date of this Agreement; provided, however, that (i) no such lien
shall extend to or cover any other property of any Borrower and (ii) the
aggregate outstanding amount of the indebtedness secured by all such purchase
money liens shall not exceed $100,000 at any time; and
(h) existing liens described on Schedule 7.6 to this Agreement.
"PERSON" OR "PERSON" means any individual, corporation, partnership, joint
venture, association, trust, unincorporated association, joint stock company,
government, municipality, political subdivision or agency, or other entity.
12
<PAGE> 17
"PENSION FUND A&R MASTER SECURITY AGREEMENT" means the Amended and
Restated Master Security Agreement dated as of June ___, 1997, among the
Borrowers and the Pension Fund granting the Pension Fund a security interest in
the Borrowers' servicing rights and residual interests in Mortgage Securities,
among other collateral, and all supplements, amendments and restatements of
such security agreement made from time to time. The security interests, rights
and interests of the Pension Fund -- and of any person claiming by, through or
under the Pension Fund -- under the Pension Fund A&R Master Security Agreement
are and shall be subject to the provisions of the Note Purchase Agreement.
"PRINCIPAL DEBT" means, at any time, the outstanding principal balance of
all Borrowings.
"QUALIFYING POOL" means a pool of mortgage loans that satisfies the
Applicable Guidelines.
"REUTERS SCREEN LIBO PAGE" means the display designated as page "LIBO" on
the Reuters Monitor Money Rates Service or such other internationally
recognized service as the Bank shall select from time to time, or such other
page, if any, as shall replace the LIBO page on any such selected service for
the purpose of displaying London interbank offered rates of major banks.
"REVOLVING CREDIT NOTE" means a promissory note conforming to Section 2.3
of this Agreement and in the form and content of Exhibit C to this Agreement.
"REVOLVING LOAN" means an advance made by the Bank to the Borrowers under
Section 2.1 of this Agreement on a Disbursement Date.
"RESIDUAL RIGHTS ASSIGNMENT" means a written assignment substantially in
the form of Exhibit M (or another form approved by the Bank) from the Borrowers
to Chase Securities of Texas, Inc. assigning and transferring the Borrowers'
specified residual interests in specific Mortgage Securities to such securities
intermediary, designating such security interests as investment property, and
duly executed (or accompanied by a separate document duly executed) by the
sponsor, issuer and master servicer of the related Mortgage Securities and
mortgages pool(s) (and by any other person from whom any payment in respect of
such residual interests may from time to time become due to the Borrowers) to
be held in a securities account for which a Control Agreement is in effect. If
the relevant residual interests are in the form of a security, the Residual
Rights Assignment must also be accompanied by a duly completed and executed
bond power in blank, irrevocably designating an attorney-in-fact, with full
power of substitution, to transfer such security, and in form and substance
approved by the Bank and such securities intermediary.
"SECURITY AGREEMENT" means the security agreement in the form and content
of Exhibit D to this Agreement pursuant to which each Borrower grants to the
Bank a security interest in its Servicing Rights and the other Collateral, as
such security agreement may be amended, supplemented or otherwise modified from
time to time.
13
<PAGE> 18
"SERVICING ACQUISITION" means the acquisition of a portfolio of Servicing
Rights by a Borrower.
"SERVICING CONTRACTS" means and includes all Agency Contracts and all
contracts relating to the servicing of residential mortgage loans as have been
or may be entered into between a Borrower and any residential mortgage loan
investor other than FHLMC, GNMA or FNMA on the date hereof or at any time
hereafter.
"SERVICING PORTFOLIO" means, at any time, the aggregate unpaid principal
balances of mortgage loans not owned by the Borrowers and serviced by any of
the Borrowers for a fee.
"SERVICING RIGHTS" means all of a Borrower's right, title and interest in,
to and under the following contracts, arrangements and understandings, whether
now owed or hereafter acquired:
(a) all agreements, instruments, commitments and documents
evidencing such Borrower's conditional, non-delegable right to service
mortgages owned by FHLMC, and to hold and maintain the related escrow funds, in
exchange for such Borrower's right to retain certain payments otherwise due to
FHLMC pursuant to the terms of the FHLMC Servicing Contract;
(b) all agreements, instruments, commitments and documents
evidencing any rights hereafter acquired by such Borrower to service mortgages
owned on behalf of GNMA, and to hold and maintain the related escrow funds, in
exchange for certain payments otherwise due to GNMA pursuant to the terms of a
GNMA Servicing Contract;
(c) the agreements, instruments, commitments and documents
evidencing any rights hereafter acquired by such Borrower to service mortgages
owned on behalf of FNMA, and to hold and maintain the related escrow funds, in
exchange for certain payments otherwise due to FNMA pursuant to the terms of a
FNMA Servicing Contract that meets the following conditions: (i) the specific
enumerated loans to which such rights apply have been identified on a schedule
submitted by Borrowers and acknowledged by the Bank and the Pension Fund; (ii)
a FNMA Acknowledgment Agreement with respect to those specifically enumerated
loans has been filed with and executed by FNMA and (iii) the proceeds of any
Borrowings to be secured thereby shall be used only for one or more of the
purposes specified in the Acknowledgment Agreement or otherwise permitted by
FNMA;
(d) all agreements, instruments, commitments and documents
evidencing any rights hereafter acquired by such Borrower to service (including
servicing, master servicing and subservicing) mortgages owned on behalf of any
residential mortgage loan investor other than FHLMC, GNMA or FNMA and to hold
and maintain the related escrow funds, in exchange for certain payments
otherwise due to such mortgage investor pursuant to the terms of the mortgage
servicing agreement between such Borrower and such mortgage investor (or its
master servicer); and
14
<PAGE> 19
(e) all books, ledgers, records computer software and programs,
instructional manuals and other written or electronic information used by such
Borrower in connection with the servicing of mortgage loans and real estate
pursuant to the Agency Contracts (but only those FNMA Servicing Contracts that
are described in clause (c) above) or any other Servicing Contract.
"SUBORDINATED DEBT" means any Borrower's Debt on which no principal
payments are due until after the Termination Date and that is both unsecured
and expressly subordinated, in writing and in form and substance acceptable to
Bank in its sole discretion, to the Obligations.
"SUBSIDIARY" means any corporation (whether now existing or hereafter
organized or acquired) in which more than fifty percent (50%) of the
outstanding securities having ordinary voting power for the election of
directors, as of any applicable date of determination, shall be owned directly,
or indirectly through one or more Subsidiaries, by a Borrower.
"TANGIBLE NET WORTH" means, as of any applicable date of determination,
the excess of (i) the sum of (A) the net book value of all assets of a person
(other than patents, patent rights, trademarks, trade names, franchises,
copyrights, licenses, goodwill, and similar intangible assets) after all
appropriate deductions in accordance with GAAP (including, without limitation,
reserves for doubtful receivables, obsolescence, depreciation and
amortization), plus (B) the excess of the fair market value of the Borrowers'
Servicing Rights over the value thereof reflected on the Borrowers' balance
sheet, over (ii) all Debt of such person.
"TAXES" means any tax (including any U.S. interest equalization tax),
levy, impost, duty, charge or fee, or any deduction or withholding for the same
on or from the payment due under any LIBOR Borrowing, other than income and
franchise taxes of the United States and its political subdivisions.
"TERMINATION DATE" means April 30, 1998 (or such earlier date, if any, on
which the Borrower shall permanently terminate the Bank's commitment under
Section 2.9(a) of this Agreement); provided that:
(a) on April 30, 1998, the Termination Date shall be extended for one
year unless the Bank shall give written notice to MCAFC on or before November
30, 1997 that the Bank elects not to extend the Termination Date beyond April
30, 1998;
(b) on April 30, 1999 the Termination Date shall be extended to April 30,
2000, unless either (i) the Bank shall have duly elected pursuant to clause (a)
above not to extend the Termination Date beyond April 30, 1998 or (ii) the Bank
shall give written notice to MCAFC on or before November 30, 1998 that the Bank
elects not to extend the Termination Date beyond April 30, 1999; and
(c) notwithstanding any other provision of this definition (or the Loan
Documents) to the contrary, the absolute latest Termination Date shall be the
earliest of (i) April 30, 2000 (or such later
15
<PAGE> 20
date, if any, to which the Bank and the Borrowers shall otherwise agree (x)
specifically, (y) in writing and (z) with the Pension Fund's written consent,
will be the latest stated termination date), (ii) the date to which the
maturity of the Revolving Loans shall be accelerated by the Bank on account of
an Event of Default or (iii) the date to which the maturity of the Revolving
Loans shall be accelerated, made due or treated as due by operation of Law.
"TRIBUNAL" means any (i) local, state or federal judicial, executive or
legislative instrumentality, (ii) private arbitration board or panel, if any,
having both subject matter jurisdiction and personal jurisdiction over the
relevant subject matter and parties or (iii) central bank.
"UCC" means -- except where the context refers to the Uniform Commercial
Code of another State of the United States of America -- the Uniform
Commercial Code as amended from time to time in force in the State of Texas, as
set forth in the Texas Business and Commerce Code, or any successor code.
1.2 Accounting Terms. All accounting terms not specifically
defined in this Agreement shall be construed in accordance with GAAP consistent
with that applied in preparation of the Financial Statements, and all financial
data pursuant to the Agreement shall be prepared in accordance with such
principles.
1.3 Singular and Plural. Where the context herein requires,
the singular number shall be deemed to include the plural, the masculine gender
shall include the feminine and neuter genders, and vice versa.
1.4 Certain Matters of Construction. The terms "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular section, paragraph or
subdivision. The section titles, table of contents and list of exhibits appear
as a matter of convenience only and shall not affect the interpretation of this
Agreement. Any notice or document to be delivered to, or by, any Borrower
pursuant to this Agreement or any other Loan Document, including any request
for borrowing, shall be deemed properly delivered if delivered to, or by, as
the case may be, the chief executive or chief financial officer of MCAFC, and,
for purposes of this Agreement and the other Loan Documents, each Borrower
hereby appoints and designates each such officer as its agent, with full power
and authority to bind such Borrower.
2. COMMITMENT, INTEREST AND FEES
2.1 Revolving Credit Commitment. Subject to the terms and
conditions of this Agreement, in order to provide funding to the Borrowers (i)
to refinance Servicing Acquisitions previously made and Originated Servicing
currently financed by another lender, to the extent that the same qualify as
Eligible Servicing Rights, (ii) to finance both new Servicing Acquisitions and
new Originated Servicing which qualify as Eligible Servicing Rights and (iii)
to finance Eligible Residuals, the Bank agrees to make loans to the Borrowers
on a revolving basis in such amount as
16
<PAGE> 21
the Borrowers shall request pursuant to Section 2.2 of this Agreement at any
time from the date of this Agreement until the Termination Date, up to an
aggregate principal amount outstanding at any time not to exceed the lesser of
the Commitment Amount or the Borrowing Base; provided, however, that the
principal amount of each Revolving Loan must be in an amount not less than
Fifty Thousand Dollars ($50,000).
2.2 Borrowing Procedures.
(a) Request for Borrowing to Refinance Existing
Servicing Acquisition Debt to Another Lender. To request a Revolving Loan to
fund the initial advance under this Agreement to refinance the Borrowers'
existing Servicing Acquisition and Originated Servicing financing debt to
another lender, the Borrowers shall give the Bank written notice of the
proposed refinancing and the Borrowers' desire for a Revolving Loan to
accomplish such refinancing as soon as practicable prior to the proposed
Disbursement Date for such Revolving Loan. For such refinancing, such notice
shall specify the amount of the existing Servicing Acquisition and Originated
Servicing debt to such other lender to be so refinanced, the principal amount
of the proposed Revolving Loan, its proposed Disbursement Date and wire
transfer instructions and the name, address, phone and fax numbers of the
person with such existing lender to contact to coordinate payoff of such
existing debt and the termination and release of record of the existing
lender's security interest in all collateral for such refinancing.
Notwithstanding anything contained or implied in any such notice requesting a
Revolving Loan to refinance the Borrowers' existing Servicing Acquisition and
Originated Servicing debt with another lender, the amount of the proposed
Revolving Loan shall not exceed the Borrowing Base value of the Collateral in
which the Bank will acquire a first and prior perfected security interest
immediately and automatically upon the termination and release of such existing
lender's security interest therein.
(b) Requests for Borrowings for Acquisitions. To request
Revolving Loans to finance a Servicing Acquisition or Originated Servicing, the
Borrowers shall give the Bank written notice of the proposed Servicing
Acquisition or Originated Servicing financing and the Borrowers' desire for a
Revolving Loan to finance such Servicing Acquisition or Originated Servicing as
soon as practicable before the proposed Disbursement Date for the Revolving
Loan to finance the Borrowers' initial deposit or down payment for the
Servicing being acquired or before the date on which the Borrowers wish to
borrow to finance Originated Servicing for mortgage loans originated by a
Borrower and not pledged under a mortgage warehouse loan or credit facility or
sold under a mortgage gestation repo facility. For each such new Servicing
Acquisition, such notice shall specify in reasonable detail the terms of the
proposed Servicing Acquisition and be accompanied by a copy of the Servicing
Acquisition Contract (or the most current draft thereof, so marked, if such
contract has not been finally negotiated and executed by the relevant
Borrower(s) and such Servicing Rights' seller). And for each such new
Servicing Acquisition -- and for each Originated Servicing financing -- such
notice shall:
17
<PAGE> 22
(1) specify the principal amount of the proposed Revolving
Loan (which, in the case of a Servicing Acquisition, is being requested for the
purpose of financing the Borrowers' initial deposit or down payment for the
Servicing Rights being acquired); and
(2) specify the proposed Disbursement Date for such
Revolving Loan and the deposit account of the Borrowers with the Bank into
which the proceeds of such Revolving Loan are to be deposited.
Likewise, for each additional Revolving Loan to finance the Borrowers' payment
of either part or all of the balance remaining after the initial down payment
of the contract purchase price for such a Servicing Acquisition, the Borrowers
shall give the bank a supplemental written notice:
(x) referring to the relevant initial notice (and any
relevant intervening notices) requesting Revolving Loan(s) to finance other
portions of the purchase price for such Servicing Acquisition and stating the
dates, amounts and corresponding percentages of the portion(s) of the purchase
price (i) previously paid, (ii) to be paid with the requested Revolving Loan's
proceeds and (iii) remaining to be paid (the due date and/or the amount of
future payment(s) may be estimates; provided that if they are, such statement
shall indicate that) ;
(y) updating the description of the terms of such
Servicing Acquisition (or stating that the terms have not changed); and
(z) accompanied by a copy of the final executed
Servicing Acquisition contract (if not previously furnished to the Bank) and a
copy of all supplements, amendments or restatements thereof (if any).
Notwithstanding anything contained or implied in any such notice requesting a
Revolving Loan to finance a new Servicing Acquisition:
(1) the proposed Disbursement Date for:
a) the Revolving Loan to finance the Borrowers' initial
deposit for any such Servicing Acquisition shall not occur before the Servicing
Acquisition contract is duly executed and delivered by the relevant Borrower
and the seller of such Servicing Rights or before the Borrowers have
demonstrated to the Bank that such Servicing Rights constitute Eligible
Servicing Rights; or
b) the Revolving Loan to finance payment of any portion
of the balance of the Servicing Rights' contract purchase price shall not occur
before the date when legal title to the Servicing Rights to be acquired is
transferred to a Borrower or (except in the case of a Revolving Loan to finance
funding of the holdback by an acquiring Borrower of up to ten percent (10%) of
the purchase price of a package of purchased Servicing Rights) later than one
hundred
18
<PAGE> 23
eighty (180) days after the funding date of the Revolving Loan made to finance
the Borrowers' initial deposit or payment for those Servicing Rights; or
c) any such Revolving Loan to finance any part of a
Servicing Acquisition shall not occur before the date on which payment of the
related portion of the purchase price is to be paid to (or for the account of)
the seller of such servicing, and
(2) the aggregate amounts of the Revolving Loans that are
funded and outstanding on any day to finance the purchase of any group of
Servicing Rights to be acquired in a Servicing Acquisition shall in no event
exceed the greater of (i) the aggregate amount of the contractually agreed
purchase price for those Servicing Rights that has accrued and is due and
payable on or before that day plus (without duplication) the sum of all
payments of such contract purchase price for such Servicing Rights already paid
before that day or (ii) the market value of those Servicing Rights as
determined in accordance with Section 6.12 of this Agreement.
(c) Request for Supplemental Borrowing Against Servicing
Rights' Collateral Value. In addition to requests for borrowings made pursuant
to Section 2.2(b) above, but subject to the satisfaction of the conditions set
forth in Section 4 of this Agreement, the Borrowers may request a Revolving
Loan, twice each Calendar Month in an amount not to exceed the portion of the
Borrowing Base relating solely to Originated Servicing, but only to the extent
a Revolving Loan is not then outstanding with respect to such Originated
Servicing. Such request shall specify, in writing, the Originated Servicing to
which such request relates, the principal amount of the proposed Revolving
Loan, the proposed Disbursement Date for such Revolving Loan (which shall not
be earlier than the Business Day following the Bank's receipt of the request)
and the deposit account of the Borrowers with the Bank into which the proceeds
of such Revolving Loan are to be deposited and shall otherwise be reasonably
satisfactory to the Bank.
(d) Request for Borrowing to Finance Eligible Residuals. To
request a Revolving Loan to finance the Borrowers' investment in Eligible
Residuals, the Borrowers shall give the Bank written notice of the pending
issuance of the relevant Mortgage Securities and Borrowers' desire for a
Revolving Loan to accomplish such financing as soon as practicable prior to the
proposed Disbursement Date for such Revolving Loan. For each such new Mortgage
Securities issue, such notice shall:
(i) describe in reasonable detail:
(1) the residual interest the Borrowers wish to finance
(including a listing of the mortgage loans whose securitization -- either by
themselves or together with other mortgage loans in respect of which the Bank
is not documents custodian for a warehouse lender -- will create the residual
interest to be financed, matching the listing of any mortgage loans that the
Borrowers have requested the Bank, in its capacity as documents custodian for
any Borrower's warehouse lender or mortgage loan gestation repurchase agreement
counterparty -- the Bank itself
19
<PAGE> 24
may be such a Borrowers' warehouse lender or repo agreement counterparty -- to
ship to the relevant Mortgage Securities' pool custodian);
(2) the principal amount of the proposed Revolving Loan;
(3) the proposed Disbursement Date for such Revolving
Loan;
(4) identification of the Applicable Guidelines for the
Qualifying Pool involved with all proposed changes, if any, to the Applicable
Guidelines highlighted; and
(5) disbursement advice, including complete funds transfer
information for any Borrower's warehouse lender or mortgage loan gestation
repurchase agreement counterparty holding a security or ownership interest in
the Borrowers' mortgage loans being securitized and identification of the
deposit account of the Borrowers with the Bank into which the balance of the
proceeds of such Revolving Loan are to be deposited, and
(ii) (unless already furnished) be accompanied by:
(1) a copy of the relevant prospectus and prospectus
supplement for the relevant to-be-issued Mortgage Securities (or if such
supplement has not been issued, the most current red herring);
(2) a copy of each agreement between or among the
Borrowers and the Qualifying Pool's issuer, sponsor, master servicer and/or
trustee;
(3) a valuation of the Eligible Residuals by an Approved
Residuals Appraiser;
(4) a description of the rights of the Borrowers to
payment of the Eligible Residuals in the event of bankruptcy or insolvency of
the Qualifying Pool's sponsor or master servicer (including citations to
provisions of the agreements copies required by clause (ii)(2) above that
support -- or are relevant to an understanding of -- such description); and
(5) an Assignment and Consent substantially in the form of
******
Each such notice shall be reasonably satisfactory to the Bank. Notwithstanding
anything contained or implied in any such notice requesting a Revolving Loan to
finance Eligible Residuals:
a) the proposed Disbursement Date shall not occur
prior to the date that legal title to the Eligible Residuals to be financed has
transferred (or, concurrently with the
20
<PAGE> 25
funding of such Revolving Loan, will transfer) to a Borrower, and (X) if such
Eligible Residuals are in the form of a security (whether certificated or
book-entry), such securities have been duly pledged to the Bank and the Bank
has (or, concurrently with the funding of such Revolving Loan, will have) a
first and prior perfected security interest in and Control of them, or (Y) if
such Eligible Residuals are not in the form of a security, the Bank shall be
satisfied that it has obtained (or, concurrently with the funding of such
Revolving Loan, will have) a first and prior perfected security interest in
such residuals as general intangibles; and
b) the amount of the proposed Revolving Loan shall
not exceed the market value of such Eligible Residuals; without limiting the
generality of the foregoing, the Bank must be specifically satisfied that
neither (i) Advanta Mortgage Conduit Services, Inc., (ii) any other Mortgage
Security issuer, sponsor or master servicer nor (iii) any company affiliated
therewith has any security interest in or other claim against such Eligible
Residuals.
(e) Submission Time. Each such initial and subsequent notice
required by this Section 2.2 shall be submitted to the Bank in time to be
received by the Bank by no later than 1:00 PM, Houston time, on the Business
Day immediately preceding the day when funding is requested to be made, and
shall be in form and substance reasonably satisfactory to the Bank.
(f) Bank Obligations. The Bank agrees to make the Revolving
Loan on the Disbursement date established by notice to the Bank from the
Borrowers conforming to the requirements of Section 2.2 by crediting the
deposit account of the Borrowers with the Bank -- and/or (without duplication
of funding) paying to such Person or Persons for the Borrowers' account -- as
is specified in such notice, the proceeds of such Revolving Loan; provided,
however, that the Bank shall not be obligated to make any such Revolving Loan
if:
(1) any of the conditions precedent set forth in Section 4
of this Agreement shall not have been satisfied or waived by the Bank in
accordance with Section 9.4 of this Agreement; or
(2) such proposed Revolving Loan would cause the aggregate
unpaid principal amount of the Revolving Loans outstanding under this Agreement
to exceed the lesser of the Commitment Amount or the Borrowing Base as of the
Disbursement date; and
provided, further, that the Borrowers may request (x) Revolving Loans to be
funded to finance Servicing Acquisitions or Originated Servicing (or both) no
more frequently than twice monthly and (y) Revolving Loans to be funded to
finance Eligible Residuals no more frequently than once monthly and then only
coincident with a determination (or redetermination) of the market value of all
Eligible Residuals then pledged by the Borrowers to the Bank (including any
Eligible Residuals newly pledged in connection with the requested Revolving
Loan.)
21
<PAGE> 26
Notwithstanding anything contained herein to the contrary, the Bank may honor
the Borrowers' request for a Revolving Loan even though there may be concern
regarding the accuracy of any representation made or deemed to be made under,
or the compliance by any Borrower with the terms of, this Agreement or any
other document contemplated hereunder, or the existence or non-existence of any
Default or Event of Default, if the Bank, in its reasonable discretion,
determines that it is prudent to do so and would be even in the absence of the
Note Purchase Agreement. If the unpaid balance of the Revolving Loan should
exceed the Borrowing Base or any other limitation set forth in this Agreement,
such Revolving Loans shall nevertheless constitute part of the Obligations that
is secured by the Collateral and entitled to all benefits thereof.
2.3 Revolving Credit Note. The Revolving Loans shall be evidenced
by the Revolving Credit Note, execute by the Borrowers, dated the date of this
Agreement, payable to the Bank on the Termination Date (unless sooner
accelerated pursuant to the terms of this Agreement), and in the principal
amount of the original Commitment Amount. The date and amount of each
Revolving Loan made by the Bank and of each repayment of principal thereof
received by the Bank shall be recorded by the Bank in its records. The
aggregate unpaid principal amount so recorded by the Bank shall, absent
manifest error, constitute the best evidence of the principal amount owing and
unpaid under the Revolving Credit Note; provided, however, that the failure by
the Bank so to record any such amount or any error in so recording any such
amount shall not limit or otherwise affect the obligations of the Borrowers
under this Agreement or the Revolving Credit Note to repay the principal amount
of all the Revolving Loans together with all interest accrued or accruing
thereon.
2.4 Payments. Unless otherwise provided in this agreement,
Borrowers shall jointly and severally pay the Obligations in accordance with
the following table:
<TABLE>
<CAPTION>
Obligation Payable
---------- -------
<S> <C>
Interest on each Borrowing except at the Default On (a) the fifteenth (15th) day of each Calendar
Rate Month as it was accrued and unpaid through the last
day of the preceding Calendar Month and (b) on the
Termination Date
Interest at the Default Rate regardless of Borrowing On demand as it accrues
Price Category
Any other Obligation When due as provided in the relevant provision of
this Agreement, and in no event later than the
Termination Date
</TABLE>
2.5 Interest Rates.
(a) Rate Election. The Borrowers shall designate in
writing to the Bank from time to time which Borrowings, if any, the Borrowers
elect to be Base Rate Borrowings on or before
22
<PAGE> 27
the Business Day when such election is to become effective. All Borrowings not
so designated shall be LIBOR Rate Borrowings.
(b) Non-Default Rate. Subject to CLAUSE (C) below, all
Principal Debt shall bear an annual interest rate equal to the lesser of either
the Maximum Rate or the rate made applicable by the following table:
<TABLE>
<CAPTION>
Principal Debt Rate
-------------- ----
<S> <C>
Average Principal Debt of all Borrowings owed to the Applicable Covered Rate
Bank during any Calendar Month that does not exceed
the Average Depositary Balances for that Calendar
Month
Average Principal Debt of all Base Rate Borrowings Average Adjusted Base Rate for that Calendar Month
(if any) owed to the Bank during any Calendar Month
that exceeds the Average Depositary Balances for
that Calendar Month
Average Principal Debt of all Borrowings owed to the Average Adjusted LIBOR Rate for that Calendar Month
Bank and not bearing interest under either of the
above two (2) rows of this table for any Calendar
Month
</TABLE>
(c) Default Rate. All past due Principal Debt and past due
interest on the Principal Debt from its date due (whether stated or by
acceleration) until paid shall bear interest at the Default Rate.
(d) Rate Changes. Each change in the LIBOR Rate, Base Rate and
Maximum Rate shall be effective upon the effective date of change without
notice to Borrowers or any other Person.
(e) Calculations. Interest shall be calculated on the basis of
actual days (including the first but excluding the last) over a 360-day year
(i.e., on the 365/360 -- or 366/360 in a leap year -- basis), unless the
calculation would result in an interest rate greater than the Maximum Rate, in
which event interest shall be calculated on the basis of the actual number of
days in that year. All interest rate determinations and calculations by the
Bank shall be conclusive and binding absent manifest error.
(f) Recapture. If the designated interest rate applicable to
any Borrowing exceeds the Maximum Rate, the interest rate on that Borrowing
shall be limited to the Maximum Rate. However, any subsequent reductions in
the designated rate shall not become effective until the total amount of
accrued interest equals the amount of interest that would have accrued if that
designated
23
<PAGE> 28
rate had always been in effect. If at maturity (whether stated or by
acceleration), or at final payment of the Revolving Credit Note, the total
interest paid or accrued is less than the interest that would have accrued if
the designated rate had always been in effect, then, at that time and to the
extent permitted by applicable Law, the Borrowers shall pay an amount equal to
the difference of (i) the lesser or either the amount of interest that would
have accrued if the designated rates had always been in effect or the amount of
interest that would have accrued if the Maximum Rate had always been in effect,
minus (ii) the amount of interest actually paid or accrued on the Revolving
Credit Note.
(g) Maximum Rate; Chapter 15 Inapplicable. Regardless of any
Loan Document provision, the Bank is not entitled to contract for, charge,
take, reserve, receive or apply, as interest on all or any of the Obligations,
any amount in excess of the Maximum Rate. If the Bank ever does so, then any
excess is treated as a partial prepayment of principal, and any remaining
excess shall be refunded to the Borrowers. In determining if the interest paid
or payable exceeds the Maximum Rate, the Borrowers and the Bank shall, to the
extent lawful, (i) treat all Borrowings as a single extension of credit, (ii)
characterize any nonprincipal payment as an expense, fee, or premium rather
than as interest, (iii) exclude voluntary prepayments and their effects and
(iv) amortize, prorate, allocate, and spread the total amount of interest
throughout the full contemplated term of the Obligations. However, if the
Obligations are paid in full before the end of that full contemplated term and
the interest received for the Obligations' actual period of existence exceeds
the Maximum Amount, then the Bank shall refund any excess without being subject
to any penalties provided by any Laws. If Texas Laws are applicable for
purposes of determining the "Maximum Rate" or the "Maximum Amount," then those
terms respectively mean the "indicated rate ceiling", and the amount calculated
by applying the "indicated rate ceiling" from time to time in effect under
Article 1.04, Title 79, Texas Revised Civil Statute, as amended. Chapter 15,
Subtitle 79, Texas Revised Civil Statutes, 1925 (which regulates certain
revolving credit loan accounts and revolving triparty accounts), does not apply
to the Obligations.
2.6 Fees. Upon demand of the Bank from time to time, the
Borrowers shall pay to the Bank the amount of the expenses (including, without
limitation, attorneys' fees, whether of inside or outside counsel, and
disbursements) incurred by the Bank from time to time which are to be paid for
or reimbursed by the Borrowers under Section 9.7 of this Agreement.
2.7 Additional Costs. This section survives the full
satisfaction of the Obligations and termination of the Loan Documents, and
release of Lender Liens.
(a) For any Borrowing, if (i) (A) any change after
the date of this agreement in any present Law or any future Law regarding
capital adequacy or compliance by the Bank with any request, directive, or
requirement now or in the future imposed by any Tribunal regarding capital
adequacy or any change in the risk category of this transaction reduces the
rate of return on its capital as a consequence of its obligations under this
agreement to a level below that which it otherwise could have achieved (taking
into consideration its policies with respect to capital adequacy) by an
24
<PAGE> 29
amount deemed by it to be material (and it may, in determining the amount,
utilize reasonable assumptions and allocations of costs and expenses and use
any reasonable averaging or attribution method), then (ii) that the Bank shall
notify Borrowers and deliver to Borrowers a certificate stating in reasonable
detail the calculation of the amount necessary to compensate it (which
certificate shall be conclusive and binding absent manifest error), and
Borrowers shall pay that amount to the Bank within ten (10) days after demand.
(b) Any Taxes payable by the Bank or ruled (by a Tribunal)
payable by the Bank in respect of any Loan Document shall, if permitted by Law
and if deemed material by the Bank (which may, in determining the material
nature of the amount payable, utilize reasonable assumptions and allocations of
costs and expenses and use any reasonable averaging or attribution method), be
paid by Borrowers, together with interest and penalties, if any (except for
Taxes payable on the overall net income of the Bank and except for interest and
penalties incurred as a result of the gross negligence or willful misconduct of
the Bank). The Bank shall notify Borrowers and deliver to Borrowers a
certificate stating in reasonable detail the calculation of the amount of
payable Taxes (which certificate shall be conclusive and binding absent
manifest error), and Borrowers shall pay that amount to the Bank within ten
(10) days after demand. If the Bank subsequently receives a refund of the
Taxes paid to it by Borrowers, then the Bank shall promptly pay the refund to
Borrowers.
2.8 Change in Laws. If any change, after the date of this
agreement, in any present Law or any future Law shall make it unlawful for the
Bank to make or maintain LIBOR Borrowings, then the Bank shall promptly notify
the Borrowers and (a) as to undisbursed funds, any requested Borrowing shall be
made as a Base Rate Borrowing, (b) any outstanding Borrowing shall be
immediately converted to a Base Rate Borrowing or if any conversion will not
resolve the unlawfulness, the Borrowers shall promptly prepay the Borrowing,
without penalty (although the Borrowers may immediately reborrow it as a Base
Rate Borrowing in accordance with -- and if the Borrowers are qualified to do
so under -- the other provisions of this Agreement, unless that would be
unlawful).
2.9 Changes in Commitment and Prepayments.
(a) Termination or Reduction in Commitment. The Borrowers,
at any time and from time to time (except as may hereinafter be provided), upon
at least five (5) Business Days' prior written notice received by the Bank, may
permanently terminate the Bank's commitment to make Revolving Loans under this
Agreement or permanently reduce the Commitment Amount by an integral multiple of
One Hundred Thousand Dollars ($100,000); provided, however, that the Borrowers,
on the effective date of such termination or reduction, shall pay to the Bank,
in the case of a termination, the aggregate unpaid principal amount of all
Revolving Loans, or, in the case of a reduction, the amount, if any, by which
the aggregate unpaid principal amount of all Revolving Loans exceeds the then
reduced Commitment Amount, together in either case with all interest accrued and
unpaid on the principal amounts so prepaid, but without premium. The notice
shall
25
<PAGE> 30
specify the Termination Date or the reduced Commitment Amount and the effective
date of the reduction, as the case may be. The Borrowers may not revoke any
such notice of termination or reduction without the prior written consent of
the Bank. After any such reduction, the Commitment Amount may not be increased
or otherwise reinstated without the express written agreement of the Bank.
(b) Mandatory Payments. The Borrowers shall pay to the Bank
(a) the amount, if any, by which the aggregate unpaid principal amount of all
Revolving Loans from time to time exceeds the lesser of the Commitment Amount
or the Borrowing Base, plus (b) all interest accrued and unpaid on the
principal amount to be so repaid. Any such payment shall be immediately due
and owing without notice or demand upon the occurrence of any such excess;
provided, however, that any mandatory payment under this Section 2.9(b) shall
not reduce the Commitment Amount.
(c) Optional Prepayments. The Borrowers, at any time and
from time to time, upon at least one (1) Business Day's prior written notice
received by the Bank, may prepay the unpaid principal amount of the Revolving
Loans in whole or in part without premium; provided, however, that any such
optional prepayment under this Section 2.9(c) shall be made in an amount not
less than Fifty Thousand Dollars ($50,000) and applied to reduce the then
unpaid principal of the Revolving Loans; and provided further that any optional
prepayment made under this Section 2.9(c) shall not reduce the Commitment
Amount. The Borrowers may pay or prepay any amount owed under the Revolving
Credit Note without prejudice to its right to reborrow under the terms of this
Agreement.
2.10 Basis of Payments. All sums payable by the Borrowers to the
Bank under this Agreement or the other documents contemplated hereby shall be
paid directly to the Bank at its principal office whose address is set forth in
Section 9.13 hereof, in immediately available United States funds, without
setoff, deduction or counterclaim. In its sole discretion, the Bank may charge
any and all deposit or other accounts (including, without limitation, an
account evidenced by a certificate of deposit but not including escrow or
custodial accounts) of any Borrower with the Bank for all or a part of any
Obligations then due; provided, however, that this authorization shall not
affect the Borrowers' obligation to pay when due any Obligations, whether or
not account balances are sufficient to pay amounts due; and provided further
that the exercise of such authorization will not prejudice the Borrowers' right
to reborrow under the terms of this Agreement.
2.11 Receipt of Payments. Any payment to be made by the
Borrowers will be timely made if received not later than 1:00 p.m. Houston
time on the date such payment is due. Payments received after 1:00 p.m.
Houston time shall be deemed to be made prior to 1:00 p.m. on the next
succeeding Business Day. Any payment made by mail will be deemed tendered and
received only upon actual receipt by the Bank at the address designated for
such payment, whether or not the Bank has authorized payment by mail or any
other manner, and shall not be deemed to have been made in a timely manner
unless received on or before 1:00 p.m. Houston time on the date due for such
payment, time being of the essence. The Borrowers expressly assume all risks
of loss or liability
26
<PAGE> 31
resulting from non-delivery or delay of deliver of any item of payment
transmitted by mail or in any other manner. Acceptance by the Bank of any
payment in an amount less than the amount then due shall be deemed an
acceptance on account only, and the failure to pay the entire amount then due
shall be and continue to be an Event of Default, and at any time thereafter and
until the entire amount then due has been paid, the Bank shall be entitled to
exercise any and all rights conferred upon it herein upon the occurrence of an
Event of Default. The Borrowers waive the right to direct the application of
any and all payments at any time or times hereafter received by the Bank from
or on behalf of the Borrowers except each such payment designated as a payment
under this Agreement shall be applied to the Obligations; provided, however,
that, except as otherwise specified pursuant to Section 9.1, no payment on
account of interest shall be applied on the principal owed under the Revolving
Credit Note. The Borrowers agree that the Bank shall have the continuing
exclusive right to apply and to reapply any and all payments received at any
time or times hereafter against the Obligations in such manner as the Bank may
deem advisable, notwithstanding any entry by the Bank upon any of its books and
records. The Borrowers expressly agree that to the extent that the Bank
receives any payment or benefit and such payment or benefit, or any part
thereof, is subsequently invalidated, declared to be fraudulent or
preferential, set aside or is required to be repaid to a trustee, receiver, or
any other party under any Debtor Law or other state or federal law, common law
or equitable cause, then to the extent of such payment or benefit, the
Obligations or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if such payment or benefit had not been
made and, further, any such repayment by the Bank, to the extent that the Bank
did not directly receive a corresponding cash payment, shall be added to the
Obligations and be an additional Obligations payable upon demand by the Bank.
3. SECURITY
To ensure full and timely performance of the Borrowers' covenants set
forth in this Agreement and to secure the repayment of the Revolving Credit
Note and all other Obligations, the Borrowers agree to grant and assign a lien
upon, and security interest in, the Collateral pursuant to the Security
Agreement, the Financing Statements and such other agreements as the Bank shall
from time to time require, and the Borrowers shall have caused the Pension Fund
to execute and deliver the Note Purchase Agreement to the Bank. The Bank will
grant partial releases of Collateral from time to time upon and subject to the
provisions of Section 21 of the Security Agreement.
4. CONDITIONS PRECEDENT TO OBLIGATIONS OF BANK
4.1 Conditions to First Disbursement. The obligations of the Bank
under this Agreement are subject to the occurrence, prior to or simultaneously
with the date of this Agreement (except as otherwise specifically provided
below), of each of the following conditions:
(a) Documents Executed and Filed. Each Borrower shall have
executed (or caused to be executed) and delivered to the Bank and, as
appropriate, there shall have been filed or recorded with such filing or
recording offices as the Bank shall deem appropriate, the following:
27
<PAGE> 32
(1) the Revolving Credit Note;
(2) the Security Agreement;
(3) a Control Agreement executed by the Borrowers, and the
securities intermediary under any securities account of the Borrowers described
or referred to in the Security Agreement (and also executed by the Pension Fund
in respect of any such securities account that is also described or referred to
in the Pension Fund A&R Master Security Agreement); and
(4) the Financing Statement;
and the Pension Fund shall have executed and delivered the Note Purchase
Agreement to the Bank.
(b) Certified Borrowers' Resolutions. Each Borrower shall have
furnished to the Bank a copy of resolutions of the Board of Directors of such
Borrower authorizing the execution, delivery and performance of this Agreement,
the borrowing hereunder, the Revolving Credit Note and any other Loan Document
contemplated by this Agreement, which shall have been certified by the
Secretary or Assistant Secretary of such Borrower as of the date hereof as
being complete, accurate and in effect.
(c) Certified Pension Fund Resolutions. The Pension Fund shall
have furnished to the Bank a copy of resolutions of its Board of Trustees
ratifying and confirming the Enhancement Agreement and authorizing the
execution, delivery and performance of the Note Purchase Agreement, which shall
have been certified by the Executive Secretary or Administrative Secretary of
the Pension Fund as of the date hereof as being complete, accurate and in
effect.
(d) Certified Articles. Each Borrower shall have furnished to
the Bank a copy of the Articles of Incorporation, including all amendments
thereto and restatements thereof, and all other charter documents of such
Borrower, all of which shall have been certified by the Michigan Department of
Commerce as of a date within thirty (30) days of the date hereof.
(e) Certified Bylaws. Each Borrower shall have furnished to
the Bank a copy of the Bylaws of such Borrower, including all amendments
thereto and restatements thereof, which shall have been certified by the
Secretary or Assistant Secretary of such Borrower as of the date hereof.
(f) Certificate of Good Standing. Each Borrower shall have
furnished to the Bank a certificate of good standing with respect to such
Borrower, which shall have been certified by the Michigan Department of
Commerce as of a date within thirty (30) days of the date hereof.
28
<PAGE> 33
(g) Certificate of Borrowers' Officers' Incumbency. Each
Borrower shall have furnished to the Bank a certificate of the Secretary or
Assistant Secretary of such Borrower, certified as of the date hereof, as to
the incumbency and signature of the officers of such Borrower signing this
Agreement, the Revolving Credit Note and any other Loan Document contemplated
or delivered under this Agreement.
(h) Opinion of Borrowers' Counsel. The Borrowers shall have
furnished to the Bank on or before August 1, 1997 the favorable written opinion
of Butzel Long, legal counsel to the Borrowers, dated when issued, in form and
content acceptable to the Bank and substantially as set forth in Exhibit E to
this Agreement or containing such other or additional opinions as may be
reasonably requested by the Bank.
(i) Certificate of Pension Fund Incumbency. The Pension Fund
shall have furnished to the Bank a certificate of the Executive Secretary or
Administrative Secretary of the Pension Fund, certified as of the date hereof,
as to the incumbency and signature of the trustees or officers thereof signing
the Note Purchase Agreement.
(j) Opinion of Pension Fund's Counsel. The Bank shall have
received the favorable written opinion of Ronald Zajac, P.C., legal counsel to
the Pension Fund, dated when issued, in form and content reasonably acceptable
to the Bank and substantially as set forth in Exhibit F to this Agreement.
(k) UCC Lien Search. The Bank shall have received UCC record
and copy searches, evidencing the appropriate filing and recording of the
Financing Statements and disclosing no notice of any liens or encumbrances
filed against any of the Collateral other than the Financing Statements or the
other Permitted Liens.
(l) Insurance Policies. The Borrowers shall have furnished to
the Bank, in form, content and amounts and with companies satisfactory to the
Bank, copies of the Borrowers' errors and omissions insurance policy (or
policies), mortgage impairment insurance policy and mortgage bankers blanket
bond insurance policy, with loss payable clauses in favor the Bank.
(m) Approval of Bank Counsel. All actions, proceedings,
instruments and documents required to carry out the transactions contemplated
by this Agreement or incidental thereto and all other related legal matters
shall have been reasonably satisfactory to and approved by legal counsel for
the Bank, and said counsel shall have been furnished with such certified copies
of actions and proceedings and such other instruments and documents as it shall
have reasonably requested.
4.2 Conditions to All Disbursements. The obligations of the Bank to
make any Revolving Loan on any Disbursement Date, including, but not limited
to, the Disbursement Date
29
<PAGE> 34
first occurring, are subject to the occurrence, prior to or on the Disbursement
Date related to such Revolving Loan, of each of the following conditions:
(a) Certificate. The Bank shall have received a
certificate, in the form and content of the attached Exhibit G-1, G- 2, G-3 or
G-4 (as applicable) executed by the chief executive or chief financial officer
of MCAFC, certified as of such Disbursement Date and confirming that:
(1) In the case of a request pursuant to Section 2.2(a):
(i) the proceeds of the requested Revolving Loan are
to be used to refinance Servicing Acquisitions previously made and Originated
Servicing currently financed by another lender (to the extent that the same
qualify as Eligible Servicing Rights) who will terminate and release its
security interest in all Servicing Rights that are collateral for such existing
debt being refinanced and, upon disbursement of such proceeds to such other
lender, a Borrower shall own good and marketable title to such Servicing
Rights, free and clear of any lien, pledge, charge or interest of any party
other than the applicable Agency (pursuant to the applicable Agency Contract),
the Bank and, pursuant to the Enhancement Agreement, the Pension Fund, and the
relevant Agencies shall have consented in writing to such refinancing (or if it
is not possible to obtain the requisite consent before the requested funding
date for such refinancing, the Borrowers shall have furnished the Bank written
or verbal assurance satisfactory to the Bank, in its sole discretion, from
FNMA, GNMA and/or FHLMC, as applicable, that such consent is forthcoming, and
in any event the requisite written consent itself must be furnished to the Bank
by no later than forty-five (45) days after funding of the relevant Borrowing);
(ii) all of the Servicing Rights in which the Bank, by
funding such refinancing Revolving Loan, will acquire a security interest shall
be Eligible Servicing Rights;
(iii) all of the Servicing Rights to be so
refinanced by the proposed Servicing Acquisition Loan shall be pledged to the
Bank as Collateral, and to no other person (except pursuant to a Permitted Lien
of the Pension Fund permitted by the Enhancement Agreement), and shall be
subject to this Agreement and the Security Agreement and this Bank will thereby
acquire and have a first and prior perfected security interest therein;
(iv) true and complete copies of all documents
required to be delivered to the Bank and the Pension Fund pursuant to Section
4.2(c) below have been so delivered in a timely fashion; and
(v) all approvals required under Section 4.2(d) below
have been obtained, true and complete copies of which have been delivered to
the Bank;
(2) In the case of a request pursuant to Section 2.2(b),
30
<PAGE> 35
(i) No Servicing Acquisition shall be made unless the
Borrowers have demonstrated to the Bank's reasonable satisfaction that the
Borrowers have fully complied with all conditions and requirements under the
Enhancement Agreement in respect thereto, including, but not limited to,
Section 10.15 thereof and its requirements, among others, that the Pension
Fund's designated consultant (currently Plante & Moran, LLP), shall have
approved -- and that the Pension Fund itself has not exercised its right under
Section 10.15 of the Enhancement Agreement to disapprove -- the proposed
Servicing Acquisition;
(ii) the proceeds of the requested Revolving Loan are
to be used to finance a Servicing Acquisition; and, upon disbursement of such
proceeds to the seller of the related Servicing Rights (other than proceeds
used to fund an initial deposit under the related Servicing Acquisition
contract between such Borrower and the seller of such Servicing Rights) , a
Borrower shall own good and marketable title to such Servicing Rights, free and
clear of any lien, pledge, charge or interest of any party other than the
applicable Agency (pursuant to the applicable Agency Contract), the Bank and,
pursuant to the Enhancement Agreement, the Pension Fund;
(iii) all of the Servicing Rights to be acquired
in the proposed Servicing Acquisition shall be Eligible Servicing Rights;
(iv) all of the Servicing Rights to be acquired in the
proposed Servicing Acquisition shall be pledged to the Bank as Collateral, and
to no other person (except pursuant to a Permitted Lien granted to the Pension
Fund pursuant to the Enhancement Agreement), and shall be subject to the this
Agreement and the Security Agreement;
(v) true and complete copies of all documents
required to be delivered to the Bank and the Pension Fund pursuant to Section
4.2(c) below have been so delivered in a timely fashion; and
(vi) all approvals required under Section 4.2(d) below
have been obtained, true and complete copies of which have been delivered to
the Bank;
(3) In the case of a request pursuant to Section 2.2(c),
(i) there is not then outstanding any Revolving Loan
previously advanced by the Bank with respect to the Originated Servicing to
which such requested Revolving Loan relates; and
(ii) all of the Originated Servicing to which such
requested Revolving Loan relates shall be pledged to the Bank, and to no other
person (except pursuant to a Permitted Lien granted to the Pension Fund under
the Enhancement Agreement), and shall be subject to this Agreement and the
Security Agreement; and
31
<PAGE> 36
(4) In the case of a request pursuant to Section 2.2(a),
2.2(b) or 2.2(c), all acknowledgments or other consents required under Section
4.2(e) below have been obtained, true and complete copies of which have been
delivered to the Bank;
(5) In the case of a request pursuant to Section 2.2(d):
(i) the Eligible Residuals to be financed with such
Borrowing shall satisfy all of the requirements of the definition of "Eligible
Residuals" and their value shall have been appraised by an Approved Residuals
Appraiser in a writing that has been delivered to the Bank;
(ii) there is not then outstanding any Revolving Loan
previously advanced by the Bank with respect to the Eligible Residuals to which
such requested Revolving Loan relates; and
(iii) all of the Eligible Residuals to which such
requested Revolving Loan relates shall be pledged to the Bank, and to no other
person (except pursuant to a Permitted Lien granted to the Pension Fund under
the Enhancement Agreement), and shall be subject to this Agreement and the
Security Agreement; and
(6) In the case of any Borrowing request whatsoever:
(i) no Default or Event of Default has occurred and
is continuing on and as of such Disbursement Date; and
(ii) the warranties and representations set forth in
Section 5 of this Agreement and Section 5 of the Security Agreement are true
and correct on and as of such Disbursement Date.
(b) Borrowing Base Certificate. The Bank shall have received
from the Borrowers a Borrowing Base Certificate, executed by the chief
executive or chief financial officer of MCAFC and certified as of such
Disbursement Date, confirming that, as of such Disbursement Date, the aggregate
unpaid principal amount of all Revolving Loans (including the Revolving Loan to
be made on such Disbursement Date) does not exceed the lesser of the Commitment
Amount or the Borrowing Base as in effect on the close of business on the day
immediately preceding such Disbursement Date. The calculation of the Borrowing
Base in such Borrowing Base Certificate shall be made on a pro forma basis to
include the Eligible Servicing Rights to be financed in the refinancing of the
Borrowers' existing debt to another lender, the Eligible Servicing Rights to be
acquired in the Servicing Acquisition, the Originated Servicing and/or the
Eligible Residuals, with respect to which the requested Revolving Loan is
sought, and (i) all Servicing Rights pledged or to be pledged to the Bank shall
have been duly appraised by an appraisal firm acceptable to and approved by the
Bank within six (6) months preceding the date of such Borrowing Base
Certificate and (ii) all Eligible Residuals pledged or to be pledged to the
Bank shall have been duly appraised
32
<PAGE> 37
by an Approved Residuals Appraiser within three (3) months preceding the date
of such Borrowing Base Certificate.
(c) Delivery of Documents. The Borrowers shall have delivered
to the Bank and to the Pension Fund copies of all documents evidencing the
proposed Servicing Acquisition or Eligible Residuals ownership by a Borrower
(as the case may be), including any valuation received or prepared by, or on
behalf of, the Borrower in connection therewith, and copies of all other
documents related to such Servicing Acquisition or Eligible Residuals ownership
as may be required by or pursuant to the Enhancement Agreement (including,
without limitation, its Section 10.15) or as may be reasonably requested by the
Bank or the Pension Fund, including the written consent or approval of the
Pension Fund's designated consultant (currently Plante & Moran, LLP), and (in
the case of a Servicing Acquisition or refinancing of a Servicing Acquisition)
the written consent or approval of the applicable Agency to the proposed
Servicing Acquisition or refinancing.
(d) Approval of Acquisition. The Borrowers shall have received
written approval of the proposed Servicing Acquisition or residual interest
ownership for which the requested Revolving Loan is sought from each of (i) the
Bank (which approval may be withheld in the Bank's sole discretion) and (ii)
the Pension Fund's designated consultant (currently Plante & Moran, LLP). The
approval provided by the Pension Fund's designated consultant pursuant to
Section 10.15 of the Enhancement Agreement shall be sufficient evidence of the
Pension Fund's approval of a proposed Servicing Acquisition for purposes of
this Section 4.2(d) unless the Pension Fund shall have communicated in writing
its disapproval thereof directly to the Bank..
(e) Agency Acknowledgment. For each Servicing Acquisition,
Originated Servicing Financing or servicing refinancing, the Borrowers shall
have furnished to the Bank either (a) the acknowledgment or consent of FNMA,
GNMA and/or FHLMC, as applicable, to the pledge by the Borrower to the Bank of
the Servicing Rights for the refinancing or acquisition of which the requested
Revolving Loan is sought (or if it is not possible to obtain the requisite
acknowledgment or consent before a requested funding date, written or verbal
assurance satisfactory to the Bank, in its sole discretion, from FNMA, GNMA
and/or FHLMC, as applicable, that such acknowledgment or consent -- as the case
may be -- is forthcoming, and in any event the requisite written acknowledgment
agreement or consent itself must be furnished to the Bank by no later than
forty-five (45) days after funding of the relevant Borrowing), or (b) an
opinion of counsel to the Borrowers, reasonably acceptable and satisfactory to
the Bank and its counsel, that such acknowledgment or consent is not required
in connection with such pledge of Servicing Rights to the Bank. With respect
to Servicing Rights being pledged under this Agreement that have been granted
by GNMA, the Borrowers shall be permitted to deliver to the Bank, in lieu of
delivering the consent or acknowledgment of GNMA, a general power of attorney
in such form as shall be reasonably acceptable to the Bank.
(f) Bank Satisfaction. The Bank shall not know or have any
reason to believe that, as of such Disbursement Date:
33
<PAGE> 38
(1) any Default or Event of Default has occurred and is
continuing;
(2) any warranty or representation set forth in Section 5
of this Agreement or Section 5 of the Security Agreement shall not be true and
correct;
(3) any provision of Law, an order of any court or other
agency of government on any regulation, rule or interpretation thereof shall
have had any material adverse effect on the validity or enforceability of this
Agreement, the Revolving Credit Note, the Security Agreement, the Financing
Statements, the Note Purchase Agreement or the other documents contemplated
hereby; or
(4) there shall have occurred a material adverse change in
the business, operations, properties, condition (financial or otherwise) of any
Borrower or of the Pension Fund.
(g) Approval of Bank Counsel. All actions, proceedings,
instruments and documents required to carry out the transactions contemplated
by this Agreement or incidental thereto and all other related legal matters
shall have been reasonably satisfactory to and approved by legal counsel for
the Bank, and said counsel shall have been furnished with such certified copies
of actions and proceedings and such other instruments an documents as it shall
have reasonably requested.
5. WARRANTIES AND REPRESENTATIONS
On a continuing basis from the date of this Agreement until the later of
the Termination Date or when the Obligations are paid in full and the Borrowers
have performed all of their other obligations hereunder, the Borrowers
represent and warrant to the Bank that:
5.1 Corporate Existence and Power. (a) Each Borrower and each of
its Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the State of Michigan, and has the corporate power
and authority to own its properties and assets and to carry out its business as
now being conducted and is qualified to do business and is in good standing in
every jurisdiction wherein such qualification is necessary, and (b) each
Borrower has the corporate power and authority to execute, deliver and perform
this Agreement, to borrow money in accordance with its terms, to execute,
deliver and perform the Revolving Credit Note and the other Loan Documents, to
grant to the Bank liens and security interests in the Collateral as hereby
contemplated and to do any and all other things required of it hereunder or
under the Security Agreement. Schedule 5.1 attached hereto correctly sets
forth as to each Subsidiary, its name, the number of shares of its capital
stock of each class outstanding and the number of such outstanding shares owned
by a Borrower or Subsidiary (and identifying such Borrower or Subsidiary).
34
<PAGE> 39
5.2 Authorization and Approvals. The execution, delivery and
performance of this Agreement, the borrowings hereunder and the execution,
delivery and performance of the other Loan documents (a) have been duly
authorized by all requisite corporate action of each Borrower, (b) except for
UCC filings and any required consents or acknowledgments from the Agencies, do
not require registration with or consent or approval of, or other action by,
any federal, state or other governmental authority or regulatory body, or, if
such registration, consent or approval is required, the same has been obtained
and disclosed in writing to the Bank, (c) will not violate, conflict with or
constitute (with or without notice or passage of time) a default under, any
provision of Law, any order of any court or other agency of government, the
Articles of Incorporation or Bylaws of any Borrower, any provision of any
contract, mortgage, indenture, note, agreement, lease or other instrument to
which any Borrower is a party, or by which it or any of its properties or
assets are bound, and (d) will not result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the properties
or assets or any Borrower other than in favor of the Bank, and in accordance
with the terms of the Enhancement Agreement, the Pension Fund.
5.3 Valid and Binding Agreement. This Agreement is, and the
Revolving Credit Note, the Security Agreement, the Financing Statements and all
other documents contemplated hereby will be, when delivered, valid and binding
obligations of each Borrower in each case enforceable in accordance with their
terms, except as the enforceability thereof may be limited by applicable Debtor
Law and similar Laws affecting the rights of creditors generally and by general
principles of equity.
5.4 Actions, Suits or Proceedings. There are no actions, suits
or proceedings, at law or in equity, and no proceedings before any arbitrator
or by or before any governmental commission, board, bureau, or other
administrative agency, pending, or, to the best knowledge of any Borrower,
threatened against or affecting any Borrower, any Subsidiary or any properties
or rights of any Borrower which, if adversely determined, would, individually
or collectively, materially impair the right of any Borrower to carry on
business substantially as now conducted or could have a Material Adverse
Effect.
5.5 No Liens, Pledges, Mortgages or Security Interests. Except
for Permitted Liens, none of the Borrower's nor any Subsidiary's assets and
properties, including, without limit, the Collateral, are subject to any
mortgage, pledge, lien, security interest or other encumbrance of any kind or
character.
5.6 Financial Statements. All consolidated and consolidating
balance sheets, statements of income and retained earnings and statements of
cash flows furnished to the Bank for the purpose of, or in connection with,
this Agreement and the transactions contemplated by this Agreement (including
pro forma financial statements previously delivered to the Bank and those
financial statements to be furnished to the Bank pursuant to Section 6.1 of
this Agreement), have been or will be prepared in accordance with GAAP, and do
or will fairly present the financial condition of the Borrowers and
Subsidiaries, as of the dates, and the results of their operations for the
periods, for which the same are furnished to the Bank. No Borrower or
Subsidiary has any material contingent
35
<PAGE> 40
obligations, liabilities for taxes, long-term leases or unusual forward or
long-term commitments not disclosed by, or reserved against in, the Financial
Statements.
5.7 Financial Condition. On a consolidated basis, the
Borrowers are solvent, able to pay their debts as they mature, have capital
sufficient to carry on their businesses, have assets the fair market value of
which exceed their liabilities, and will not be rendered insolvent,
undercapitalized or unable to pay maturing debts by the execution or
performance of this Agreement or the other documents contemplated hereby.
There has been no fact, circumstance or occurrence since March 1, 1997, that
has resulted or would reasonably be expected to result in a Material Adverse
Effect.
5.8 Borrowers Have Paid Taxes. Each Borrower has filed by the
due date therefor all federal, state and local tax returns and other reports it
is required by Law to file, has paid or caused to be paid all taxes,
assessments and other governmental charges that are shown to be due and payable
under such returns, and has made adequate provision for the payment of such
taxes, assessments or other governmental charges which have accrued but are not
yet payable. No Borrower has any knowledge of any actual or proposed
deficiency or assessment in connection with any taxes, assessments or other
governmental charges not adequately disclosed in the Financial Statements.
5.9 Compliance with Laws. Each Borrower has complied with all
applicable Laws and regulations, including any Law relating to the extension of
credit, the servicing of mortgages or environmental matters, and has obtained
all licenses, permits, franchises or other governmental authorizations, to the
extent that failure to comply with such Laws or to obtain such licenses,
permits, franchises or governmental authorizations would materially interfere
with the conduct of its business or its ability to perform its obligations
under this Agreement or the other Loan Documents.
5.10 Margin Stock. No Borrower or Subsidiary is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any "margin stock"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System, and no part of the proceeds of any Revolving Loan hereunder
will be used, directly or indirectly, to purchase or carry any margin stock or
to extend credit to others for the purpose of purchasing or carrying any margin
stock or for any other purpose which might violate the provisions of Regulation
G, T, U or X of said Board of Governors. No Borrower owns any margin stock.
5.11 Pension Funding. No Borrower or Subsidiary has incurred
any accumulated funding deficiency within the meaning of ERISA or incurred any
liability to the PBGC in connection with any employee benefit plan established
or maintained by any Borrower or Subsidiary, and no reportable event or
prohibited transaction, as defined in ERISA, has occurred with respect to such
plans.
36
<PAGE> 41
5.12 Eligible Servicing Rights. The servicing by the Borrowers
of mortgage loans to which the Eligible Servicing Rights relate complies, and
will continue to comply, in all material respects with all requirements under
the applicable Agency Contract and each such Agency Contract is in full force
and effect and there is no default by the Borrower, nor any act or occurrence
which with the passage of time or notice would constitute such a default under
any such Agency Contract.
5.13 Approved Lender, Mortgagee, Issuer and Servicer. Each
Borrower that is the servicer in respect of Servicing Rights that comprise part
of the Collateral is an FHA- and VA-approved lender and mortgagee and a GNMA-,
FNMA- and FHLMC-approved issuer and servicer in good standing and currently
satisfies all applicable GNMA, FNMA and FHLMC net worth requirements.
5.14 Investment Company. No Borrower or Subsidiary is an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Action of 1940, as amended.
5.15 Misrepresentation. No warranty or representation by any
Borrower contained herein or in any certificate or other material document
furnished by any Borrower pursuant hereto contains any untrue statement of
material fact or omits to state a material fact necessary to make such warranty
or representation not misleading in light of the circumstances under which it
was made. There is no fact which the Borrowers have not disclosed to the Bank
in writing which has a Material Adverse Effect nor, so far as the Borrowers can
now foresee, is likely to have a Material Adverse Effect.
6. AFFIRMATIVE COVENANTS
On a continuing basis from the date of this Agreement until the later of
the Termination Date or when the Obligations are paid in full and the Borrowers
have performed all of their other obligations hereunder, the Borrowers covenant
and agree that they will:
6.1 Financial and Other Information.
(a) Annual Financial Reports. Furnish to the Bank, in form
and reporting basis reasonably satisfactory to the Bank, not later than ninety
(90) days after the close of each fiscal year of the Borrowers, beginning with
the fiscal year ending January 31, 1998, financial statements of the Borrowers
on a consolidated and consolidating basis containing the balance sheet of the
Borrowers as of the close of each such fiscal year, statements of income and
retained earnings and, on a consolidated basis only, a statement of cash flows
for each such fiscal year, and such other comments and financial details as are
usually included in similar reports. Such consolidated reports shall be
prepared and audited in accordance with GAAP by independent certified public
accountants of recognized standing selected by the Borrowers and reasonably
acceptable to the Bank and shall contain unqualified opinions as to the fairness
of the statements therein contained.
37
<PAGE> 42
(b) Quarterly Financial Statements. Furnish to the Bank not
later than forty-five (45) days after the close of each quarter of each fiscal
year of the Borrowers, beginning with the fiscal quarter ending July 31, 1997,
financial statements on a consolidated and consolidating basis containing the
balance sheet of the Borrowers as of the end of each such period, statements of
income and retained earnings of the Borrowers and a statement of cash flows of
the Borrowers for the portion of the fiscal year up to the end of such period,
and such other comments and financial details as are usually included in
similar reports. These statements shall be prepared on the same accounting
basis as the statements required in Section 6.1(a) of this Agreement (subject
to normal year-end adjustments) and shall be in such detail as the Bank may
reasonably require, and the accuracy of the statements shall be certified by
the chief executive or chief financial officer of MCAFC.
(c) No Default Certificate. Together with each delivery of the
financial statements required by Sections 6.1(a) and 6.1(b) of this Agreement,
the Borrowers shall furnish to the Bank a certificate of the chief executive or
chief financial officer of MCAFC (a) stating that (i) the warranties and
representations set forth in Section 5 of this Agreement are true and correct
as of such date, and (ii) no Event of Default or Default has occurred, or if
any such Event of Default or Default exists, stating the nature thereof, the
period of existence thereof and what action the Borrowers propose to take with
respect thereto, and (b) setting forth a computation (which computation shall
accompany such certificate and shall be in reasonable detail) showing
compliance with Sections 6.5, 6.6, 6.7 and 6.8 in conformity with the terms of
this Agreement. Each such certificate delivered with the financial statements
required by Section 6.1(a) shall be accompanied by a statement of the auditing
independent accountants to the effect that, based on their review of this
Agreement and such financial statements, they are in agreement with such
officer certificate.
(d) Borrowing Base Certificate. Furnish to the Bank, within
thirty (30) days after the end of each month, a Borrowing Base Certificate as
of the end of such month, executed by the chief executive or chief financial
officer of MCAFC, confirming that the aggregate unpaid principal amount of all
Revolving Loans does not exceed the lesser of the Commitment Amount or the
Borrowing Base as then in effect (or, if such is not the case, accompanied by a
prepayment of the Revolving Credit Note in accordance with Section 2.9(b) of
this Agreement).
(e) Servicing Rights Certificate. Furnish to the Bank, not
later than thirty (30) days after the end of each month, a certificate in the
form attached as Exhibit H executed by the chief executive or chief financial
officer of MCAFC setting forth an updated list, as of the end of such month, of
all Servicing Rights in which the Borrowers have any right, title, or interest,
including all Eligible Servicing Rights, and certifying as to the aggregate
cost and market value of all such Servicing Rights, both as of the last
Business day of the previous month.
(f) Residual Rights Certificate. Furnish to the Bank, not
later than thirty (30) days after the end of each month, a certificate in the
form attached as Exhibit I executed by the chief executive or chief financial
officer of MCAFC setting forth an updated list, as of the end of such
38
<PAGE> 43
month, of all Mortgage Securities residual interests in which the Borrowers
have any right, title, or interest, including all Eligible Residuals,
certifying that all such residual interests are intended to be, and have been,
duly pledged to the Bank and certifying as to the aggregate cost and market
value of all such residual interests (separately as to (i) Eligible Residuals
against which the Borrowers have borrowed and have any Revolving Loans
outstanding under this Agreement and (ii) other residual interests) as of the
last Business day of the previous month.
(g) Adverse Effect. Promptly inform the Bank of (a) the
occurrence of any Default or Event of Default, (b) any litigation which if
determined adversely to a Borrower or Subsidiary and not satisfied in a timely
fashion would have a Material Adverse Effect or constitute a Default, or (c)
any other occurrence which is known or should be known to a Borrower and which
has or could reasonably be expected to have a Material Adverse Effect.
(h) Shareholder Reports. Promptly furnish to the Bank upon
becoming available a copy of all financial statements, reports, notices, proxy
statements and other communications sent by any Borrower or Subsidiary to its
shareholders, and all regular and periodic reports filed by any Borrower or
Subsidiary with any securities exchange, the Securities and Exchange
Commission, the Corporation and Securities Bureau of the Department of Commerce
of the State of Michigan, or any governmental authorities succeeding to any or
all of the functions of said Commission or Bureau.
(i) Management Letters. Furnish to the Bank, promptly upon
receipt thereof, copies of all management letters and other reports of
substance submitted to any Borrower or any of the Subsidiaries by independent
certified accountants in connection with any annual or interim audit of the
books of any Borrower or Subsidiary.
(j) Notices under the Enhancement Agreement. Furnish to the
Bank: (a) any report, certificate or notice of default required to be
delivered to the Pension Fund under the Enhancement Agreement, simultaneously
with the delivery thereof to the Pension Fund; and (b) promptly upon receipt,
any notice of default delivered by the Pension Fund to any Borrower under the
Enhancement Agreement.
(k) Agency Audits. Furnish to the Bank, promptly upon receipt
thereof, a copy of any audit, examination or report performed on or with
respect to any Borrower or Subsidiary by an Agency, the Department of Housing
and Urban Development or any other governmental agency or authority.
(l) Other Information as Requested. Promptly furnish to the
Bank such other information regarding the operations, business, properties and
financial condition of any Borrower and any Subsidiary as the Bank may
reasonably request from time to time.
6.2 Insurance. Keep its insurable properties (including, but not
limited to, the Collateral) and the insurable properties of the Subsidiaries
adequately insured and maintain (a) insurance against
39
<PAGE> 44
fire and other risks customarily insured against under an "all-risk" policy and
such additional risks customarily insured against by companies engaged in the
same or a similar business to that of the Borrowers or the Subsidiaries, as the
case may be, including business interruption, (b) necessary worker's
compensation insurance, (c) public liability and product liability insurance,
and (d) such other insurance as may be required by Law or as may be reasonably
required in writing by the Bank, including as errors and omissions policy,
mortgage impairment insurance policy and mortgage bankers blanket bond
insurance policy (each of the foregoing with loss payable clauses in favor the
Bank), all of which insurance shall be in such amounts, containing such terms,
in such form, for such purposes, prepaid for such time period, and written by
such companies as may be reasonably satisfactory to the Bank. All such
policies shall contain a provision whereby they may not be canceled or amended
except upon thirty (30) days' prior written notice to the Bank. The Borrowers
will promptly deliver to the Bank, at the Bank's request and without charge,
evidence satisfactory to the Bank that such insurance has been so procured.
6.3 Pay Taxes. Pay promptly and within the time that they can
be paid without late charge, penalty or interest all taxes, assessments and
similar imposts and charges of every kind and nature lawfully levied, assessed
or imposed upon any Borrower or Subsidiary, and their property, except to the
extent being contested in good faith and, if required by the Bank, bonded in an
amount and manner satisfactory to the Bank. If any Borrower or Subsidiary
shall fail to pay such taxes and assessments within the time they can be paid
without penalty, late charge or interest, the Bank shall have the option to do
so, and the Borrowers agree to repay the Bank upon demand, with interest at the
Contract Rate, all amounts so expended by the Bank.
6.4 Maintain Corporation and Business. Do or cause to be done
all things necessary to preserve and keep in full force and effect each
Borrower's and Subsidiary's corporate existence, rights, licenses, permits,
governmental authorizations and franchises and comply with all applicable Laws;
continue to conduct and operate its and each of its Subsidiaries' business
substantially as conducted and operated during the present and preceding
calendar year; at all times maintain, preserve and protect all licenses,
permits, governmental authorizations, franchises and trade names and preserve
all the remainder of its and its Subsidiaries' property and keep the same in
good repair, working order and condition.
6.5 Maintain Net Worth.
(a) Maintain MCAFC's consolidated Net Worth as at
least Twenty-five Million Dollars ($25,000,000) plus ninety percent (90%) of
all capital contributions directly or indirectly made to it by or on behalf of
its shareholders on or after January 31, 1997.
(b) Maintain MCAMC's Net Worth as at least Ten Million
Dollars ($10,000,000) plus ninety percent (90%) of all capital contributions
directly or indirectly made to it by or on behalf of its corporate parent,
MCAFC, on or after January 31, 1997.
40
<PAGE> 45
(c) Maintain MCA's Net Worth as at least Five Million Dollars
($5,000,000) plus ninety percent (90%) of all capital contributions directly or
indirectly made to it by or on behalf of its corporate parent, MCAFC, on or
after January 31, 1997.
6.6 Limit Leverage.
(a) Limit MCAFC's ratio of (i) its total Debt to (ii) its
consolidated Net Worth to 10.0 to 1.0 or less.
(b) Limit MCAMC's ratio of its total Debt to its Net Worth to
10.0 to 1.0 or less.
(c) Limit MCA's ratio of its total Debt to its Net Worth to
10.0 to 1.0 or less.
6.7 Maintain Servicing Portfolio Level. Maintain a Servicing
Portfolio of at least One Billion Dollars ($1,000,000,000).
6.8 Maintain Fixed Charges Coverage Ratio. Maintain the Borrowers'
Fixed Charges Coverage Ratio as 1.10 to 1.0 or greater.
6.9 ERISA. (a) At all times meet and cause each of the Subsidiaries
to meet the minimum funding requirements of ERISA with respect to the
Borrowers' and Subsidiaries' employee benefit plans subject to ERISA and to
otherwise comply with all applicable Laws; (b) promptly after any Borrower
knows or has reason to know (i) of the occurrence of any event, which would
constitute a reportable event or prohibited transaction under ERISA, or (ii)
that the PBGC or a Borrower has instituted or will institute proceedings to
terminate an employee pension plan, deliver to the Bank a certificate of the
chief financial officer of MCAFC setting forth the details as to such event or
proceedings and the action which the Borrowers propose to take with respect
thereto, together with a copy of any notice of such event which may be required
to be filed with the PBGC and (c) furnish to the Bank (or cause the plan
administrator to furnish the Bank) a copy of the annual return (including all
schedules and attachments) for each plan covered by ERISA, and filed with the
Internal Revenue Service by the Borrowers not later than ten (10) days after
such report has been so filed.
6.10 Use of Loan Proceeds. Use the proceeds of the loan
hereunder only for the purposes set forth in the recitals of this Agreement.
6.11 Senior Management. Attached hereto as Schedule 6.11 is a
true and complete list of the five officers of MCAFC or MCA who have the
highest degree of management or policy-making authority for the Borrowers.
Promptly after any change in such officers, regardless of reason, the Borrowers
shall notify the Bank in writing of such change and furnish to the Bank a
revised Schedule 6.11 reflecting the individuals then holding such positions.
41
<PAGE> 46
6.12 Valuation of Eligible Servicing Rights. In determining the
value of Eligible Servicing Rights, as required in connection with the delivery
of Borrowing Base Certificates pursuant to Section 4.2(b) or 6.1(d) or of
Servicing Rights Certificate pursuant to Section 6.1(e) or otherwise, the
market value thereof shall be determined in accordance with, or utilizing the
same methodology used in the determination of, appraisals or other valuations
obtained from independent nationally-recognized mortgage servicing rights
valuation consultants, and the Company shall cause its Servicing Rights to be
reappraised by such consultants at least semiannually; provided, however, that
the Bank retains the right, at any time or frequency, to conduct its own
valuation, or to retain its own independent nationally-recognized mortgage
servicing rights valuation consultant to value such servicing rights, in which
case the Borrowers shall cooperate with the Bank or such consultant and, in
connection therewith, provide the right of access and inspection set forth in
Section 6.14 below. In the event a valuation of Eligible Servicing Rights
obtained by or on behalf of the Bank shall be lower than the valuation provided
by the Borrowers, the valuation obtained by or on behalf of the Bank shall be
controlling for purposes of this Agreement and shall establish the current
Borrowing Base. In the event any such valuation results in a lower Borrowing
Base than set forth on the most recently delivered Borrowing Base Certificate,
a revised Borrowing Base Certificate shall be promptly delivered to the Bank,
confirming that the then aggregate unpaid principal amount of all Revolving
Loans does not exceed the lesser of the Commitment Amount or the revised
Borrowing Base as then in effect (or, if such is not the case, accompanied by a
prepayment of the Revolving Credit Note in accordance with Section 2.9(b) of
this Agreement).
6.13 Valuation of Eligible Residuals. In determining the value
of Eligible Residuals, as required in connection with the delivery of Borrowing
Base Certificates pursuant to Section 4.2(b) or 6.1(d) or of Servicing Rights
Certificate pursuant to Section 6.1(e) or otherwise, the market value thereof
shall be determined in accordance with, or utilizing the same methodology used
in the determination of, appraisals or other valuations obtained from Approved
Residuals Appraisers. The valuation of the Borrowers' residual interests in
respect of Mortgage Securities issued at any time and from time to time (past,
present or future) by Advanta Mortgage Conduit Services, Inc. or any of its
affiliates shall be the acting Approved Residuals Appraiser's opinion of the
net present value of the income stream of "Remaining Excess Servicing" -- as
that term is defined in the Advanta Securitization Access Agreement, as such
definition may hereafter be changed with the written approval of the Borrowers,
the Bank and the Pension Fund (but not otherwise) -- to be paid to the
Borrowers pursuant to the Advanta Securitization Access Agreement. Valuations
of Eligible Residuals shall specifically exclude servicing fees and other fees
payable to (or for the account or benefit of) any Borrower for services or for
anything other than the "excess servicing" payable on account of the Borrowers'
residual ownership interest in and to such Eligible Residuals. The Borrowers
shall cause their Eligible Residuals to be reappraised by an Approved Residuals
Appraiser at least quarterly; provided, however, that the Bank retains the
right, at any time, to conduct its own valuation, or to retain its own
independent nationally-recognized residual interests valuation consultant to
value such residual interests, in which case the Borrowers shall cooperate with
the Bank or such valuation consultant and, in connection therewith, provide the
right of access and inspection set forth in Section 6.14 below. In the event a
valuation of Eligible Residuals obtained
42
<PAGE> 47
by or on behalf of the Bank shall be lower than the valuation provided by the
Borrowers, the valuation obtained by or on behalf of the Bank shall be
controlling for purposes of this Agreement and shall establish the current
Borrowing Base. The Bank and the Pension Fund have agreed in the Note Purchase
Agreement that the Pension Fund's consultant (currently Plante & Moran, LLP)
may discuss with the Bank's Eligible Residuals valuation consultant from time
to time the criteria and methodology used or proposed to be used by such
valuation consultant to determine its valuation of the Borrowers' Eligible
Residuals against which Revolving Loans will be made or have been made, and the
Bank has agreed to give the Pension Fund's said consultant fifteen (15) days'
advance notice of any proposed material change in such criteria and/or
methodology before it is implemented and the Borrowers hereby consent to such
advance notice agreement. The Borrowers also join in the agreement between the
Bank and the Pension Fund set forth in the Note Purchase Agreement that if the
Pension Fund's said consultant retains a valuation consultant to value the
Borrowers' Eligible Residuals and such valuation consultant's valuation thereof
is lower than the lower of the valuations made pursuant to this Agreement by
the Borrowers and by the Bank's valuation consultant, then the Borrowers, the
Bank and the Pension Fund's said consultant will promptly attempt to resolve
such difference. If a resolution cannot be reached within five (5) Business
Days of the first written invitation from either the Borrowers, the Bank or the
Pension Fund's said consultant to the others of them to attempt to resolve such
difference, the Pension Fund's valuation consultant's valuation shall be
conclusive and binding and used as the valuation of the Eligible Residuals
until the Eligible Residuals are subsequently revalued pursuant to this
Section. In the event any such revised evaluation results in a lower Borrowing
Base value than is set forth on the most recently delivered Borrowing Base
Certificate, the Borrowers shall promptly deliver a revised Borrowing Base
Certificate to the Bank, confirming that the then aggregate unpaid principal
amount of all Revolving Loans does not exceed the lesser of the Commitment
Amount or the revised Borrowing Base value as then in effect, or, if such is
not the case, accompanied by the Borrowers' prepayment of the Revolving Credit
Note in accordance with Section 2.9(b) of this Agreement.
6.14 Accounting; Access to Records, Books, Etc. Maintain a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in accordance
with GAAP and to comply with the requirements of this Agreement and, at any
reasonable time and from time to time, permit the Bank or any agents or
representatives thereof (i) to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, such person
and (ii) to discuss the affairs, finances and accounts of such person with
their respective directors, officers, employees, and independent auditors, and
by this provision each Borrower does hereby authorize the same.
6.15 Further Assurances. Execute and deliver promptly after
request therefor by the Bank, all further instruments and documents take all
further action that may be necessary or desirable, or that the Bank may
reasonably request, in order to give effect to, and to aid in the exercise and
enforcement of the rights and remedies of the Bank under, this Agreement and
the other Loan Documents.
43
<PAGE> 48
6.16 Shareholder Changes. Attached hereto as Schedule 6.16 is a
true and complete list of the holders of the voting stock of MCAFC and of each
other Borrower, indicating their names and the number of shares so held.
Promptly after any change in the ownership of record of such voting stock (or,
if known, the beneficial ownership of such stock) which, together with any
prior changes which were not reflected in a revised Schedule 6.16, constitutes
a change in ownership of five percent (5%) or more of MCAFC's outstanding
voting stock, the Borrowers shall notify the Bank in writing of such change
(and any prior unreflected changes) and furnish to the Bank a revised Schedule
6.16 reflecting the then existing ownership structure; provided, however, that
after the issuance of MCAFC common stock pursuant to an offering registered
under the Securities Act of 1933, as amended, a revised Schedule 6.16 need be
furnished promptly after MCAFC's discovery of, and then only to reflect,
changes in the beneficial ownership by any person or group (as described in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) which,
together with any prior unreflected changes, constitutes a change in ownership
by such person or group of five percent (5%) or more of the shares of MCAFC
common stock outstanding immediately prior to the date of such change.
7. NEGATIVE COVENANTS
On a continuing basis from the date of this Agreement until the later of
the Termination Date or when the Obligations are paid in full and the Borrowers
have performed all of their other obligations hereunder, each Borrower
covenants and agrees that it will not, and will not permit any Subsidiary to:
7.1 Dividends. Declare or pay any dividends on, or make any other
distribution (whether by reduction of capital or otherwise) with respect to any
shares of its capital stock, except for (a) dividends from a Subsidiary to a
Borrower (including from one Borrower to another Borrower), (b) dividends
required to be paid on shares of MCAFC's Series A Cumulative Convertible
Preferred Stock and (c) dividends required to be paid on shares of MCAFC's
Series B Cumulative Convertible Preferred Stock.
7.2 Stock Acquisition. Purchase, redeem, retire or otherwise
acquire any of the shares of its capital stock, or make any commitment to do
so; provided, however, that shares owned by an officer of a Borrower may be
redeemed pursuant to a contractual arrangement requiring such a redemption upon
the death or permanent disability of such officer, but only to the extent such
redemption is funded, in full, out of insurance proceeds made available to a
Borrower upon such death or permanent disability or if (i) the shares redeemed
are concurrently reissued to other employees for not less than the redemption
price and (ii) payment for the issued shares is in cash; and provided, further,
that shares of Borrowers' capital stock owned by the Pension Fund, and rights
owned by the Pension Fund to acquire the Borrowers' capital stock, may be
acquired by the Borrowers as provided in the Enhancement Agreement and related
agreements.
44
<PAGE> 49
7.3 Liens and Encumbrances. Create, incur, assume, or suffer
to exist any mortgage, pledge, encumbrance, security interest, lien or charge
of any kind upon any of its property or assets (including, without limit, any
charge upon property purchased or acquired under a conditional sales or other
title retaining agreement or lease required to be capitalized under GAAP)
whether now owned or hereafter acquired, other than Permitted Liens.
7.4 Indebtedness. Incur, create, assume or permit to exist any
indebtedness or liability on account of deposits or advances or any
indebtedness or liability for borrowed money, or any other indebtedness or
liability evidenced by notes, bonds, debentures, or similar obligations, or any
other indebtedness or liability whatsoever, including any lease required to be
capitalized under GAAP, except for (a) the Obligations, (b) indebtedness
subordinated to the prior payment in full of the Obligations upon terms and
conditions approved in writing by the Bank, in its sole discretion, (c)
existing indebtedness to the extent set forth on the attached Schedule 7.4, (d)
trade indebtedness incurred and paid in the ordinary course of business, (e)
contingent indebtedness to the extent permitted by Section 7.6 of this
Agreement, (f) indebtedness secured by Permitted Liens, and (g) other
indebtedness for borrowed money which, in the aggregate, does not exceed One
Hundred Thousand Dollars ($100,000) at any time. Notwithstanding anything
contained in this Agreement or the Enhancement Agreement to the contrary, no
Borrower shall cause the credit enhancement provided by the Pension Fund under
the Enhancement Agreement to extend to any indebtedness, liability or other
obligation of the Borrowers other than the Obligations under this Agreement and
the other Loan Documents.
7.5 Extension of Credit. Make loans, advances or extensions of
credit to any Person, except for advances in the ordinary course of business
relating to or arising out of (a) the origination of residential mortgage
loans, (b) providing a mortgage loan warehouse line of credit to a third person
in the ordinary course of the relevant Borrower's business, (c) travel
expenses, (d) commissions payable to sales representatives, (e) a Borrower's
acquisition of a vendor's interest under a land contract, (f) servicing
obligations with regard to mortgage or land contract pools, to the extent
recoverable, and (g) rehabilitation, repair or maintenance expenses, to the
extent reasonable, incurred from time to time by real estate limited
partnerships in which a Borrower has a general partner interest.
7.6 Guarantee Obligations. Except:
(i) by endorsing negotiable instruments in the ordinary course of
business for deposit or collection;
(ii) pursuant to (1) the Enhancement Agreement, (2) the mortgage
warehouse credit facilities that are listed on the schedule of the Borrowers'
existing liens attached as Schedule 7.6 hereto or (3) the Loan and Financing
Agreement dated July 18, 1996 between the Pension Fund, as the lender, and the
Borrowers, as coborrowers jointly and severally liable thereunder, described in
Schedule 7.4; or
45
<PAGE> 50
(iii) in connection with the maintenance of escrow accounts for mortgages
serviced by a Borrower;
guarantee or otherwise, directly or indirectly, in any way be or become
responsible for obligations of any other Person, whether by agreement to
purchase the indebtedness of any other Person, agreement for the furnishing of
funds to any other Person through the furnishing of goods, supplies or
services, by way of stock purchase, capital contribution, advance or loan, for
the purpose of paying or discharging (or causing the payment or discharge of)
the indebtedness of any other Person, or otherwise.
7.7 Subordinate Indebtedness. Subordinate any indebtedness due
to it from a Person to indebtedness of other creditors of such Person.
7.8 Property Transfer; Merger or Lease-Back. (a) Sell, lease,
transfer or otherwise dispose of properties and assets having an aggregate book
value of more than Two Hundred Fifty Thousand Dollars ($250,000) (whether in
one transaction or in a series of transactions), except as to the sale, in the
ordinary course of business, of mortgage loans, mortgage-backed securities,
residential real estate, interests in land contracts or mortgage servicing
rights; (b) change its name, consolidate with or merge into any other
corporation, permit another corporation to merge into it, acquire (whether in
one transaction or in a series of transactions) all or substantially all the
properties or assets of any other Person where the aggregate purchase price
paid for such assets during any fiscal year exceeds One Million Dollars
($1,000,000) (less the aggregate purchase price paid during such fiscal year
for the businesses and commitments acquired pursuant to clause (ii) of the
following proviso), enter into any reorganization or recapitalization or
reclassify its capital stock; or (c) enter into any sale- leaseback
transaction; provided, however, that nothing in this Section 7.8 shall prevent
(i) the merger of one Subsidiary (including a Borrower) with or into any other
Subsidiary or Borrower or (ii) the acquisition of mortgage broker businesses so
long as the aggregate purchase price paid therefor during any fiscal year does
not exceed One Million Dollars ($1,000,000).
7.9 Nature of Business. Make any substantial change in the
nature of its or any Subsidiary's business from that engaged in on the date of
this Agreement or engage in any other businesses other than those in which such
Borrower or Subsidiary is engaged on the date of this Agreement.
7.10 Acquire Securities. Purchase (except as permitted by
Section 7.2) or hold beneficially any stock or other securities of, or make any
investment or acquire any interest whatsoever in, any other Person, except for
the common stock of the Subsidiaries owned, directly or indirectly, by a
Borrower on the date of this Agreement and except for certificates of deposit
with maturities of one year or less of United States commercial banks with
capital, surplus and undivided profits in excess of One Hundred Million Dollars
($100,000,000) and direct obligations of the United States Government maturing
within one year from the date of acquisition thereof; provided that if a
Borrower shall inadvertently purchase or otherwise become the beneficial holder
of any stock or
46
<PAGE> 51
securities in violation of this covenant, that will not constitute an Event of
Default unless such Borrower shall fail or refuse to divest itself thereof on
or before thirty (30) days after first becoming aware of such violation.
7.11 Acquire Fixed Assets. Acquire or expend for, or commit
itself to acquire or expend for fixed assets by lease, purchase or otherwise in
an aggregate amount that exceeds One Million Dollars ($1,000,000) in any fiscal
year.
7.12 Pension Fund. (a) Allow any fact, condition or event to
occur or exist with respect to any employee pension or profit sharing plans
established or maintained by it which might constitute grounds for termination
of any such plan or for the court appointment of a trustee to administer any
such plan, or (b) permit any such plan to be the subject of termination
proceedings (whether voluntary or involuntary) from which termination
proceedings there may result a liability of any Borrower or any Subsidiary to
the PBGC which, in the opinion of the Bank, will have a Material Adverse
Effect.
7.13 Affiliate Transactions. Enter into, or be a party to, or
permit any Subsidiary to enter into or be a party to, any material transaction,
agreement or other arrangement with any Affiliate or shareholder, except (a) in
the ordinary course of business and upon fair and reasonable terms which are
not less favorable to such Borrower or Subsidiary than would obtain in a
comparable arm's length transaction with a Person not an Affiliate or
shareholder of such Borrower or Subsidiary or (b) as otherwise contemplated in
clause (i) of the proviso set forth in Section 7.8; provided that if a Borrower
shall inadvertently enter into a transaction that violates this covenant -- or
if circumstances shall change such that a transaction with an Affiliate that
did not initially violate this covenant does violate it -- that will not
constitute an Event of Default unless the affected Borrower(s) shall fail or
refuse to cure such violation (and all of its material effects) to the Bank's
satisfaction on or before thirty (30) days after first becoming aware of such
violation.
7.14 Servicing Matters. Fail to comply or otherwise breach, in
any material respect, any servicing contract or obligation with respect to any
of the Servicing Rights or commit or suffer to be committed any act which would
adversely affect its ability to service mortgage loans on behalf of any Agency
or any other investor for whom any Borrower services residential mortgage
loans.
7.15 Misrepresentation. Furnish the Bank with any certificate
or other document that contains any untrue statement of a material fact or
omits to state a material fact necessary to make such certificate or document
not misleading in light of the circumstances under which it was furnished.
8. EVENTS OF DEFAULT; ENFORCEMENT; APPLICATION OF PROCEEDS
8.1 Events of Default. The occurrence of any of the following
events shall constitute an Event of Default hereunder:
47
<PAGE> 52
(a) Failure to Pay Monies Due. If the Borrowers shall fail to
pay, when due, any principal or interest under the Revolving Credit Note or any
other Obligations owed under this Agreement or if any Borrower or Subsidiary
shall fail to pay, when due, any other indebtedness, obligation or liability
whatsoever to the Bank, and in the case of (a) any failure to pay interest under
the Revolving Credit Note when due, such failure shall not be cured within five
(5) days (there is no grace period for any payments due other than interest
payments).
(b) Misrepresentation. If any warranty or representation of
the Borrowers in connection with or contained in this Agreement, or if any
financial data or other information now or hereafter furnished to the Bank by
or on behalf of the Borrowers, shall prove to be false or misleading in any
material respect.
(c) Noncompliance with Loan Documents. If any Borrower or
Subsidiary shall fail to perform, in the time and manner required, any of its
obligations or covenants under, or shall fail to comply with any of the
provisions of, this Agreement, the Revolving Credit Note or the Security
Agreement, which does not involve the failure to make a payment when due
specified in Section 8.1(a) and which is not cured within thirty (30) days
after the earlier of the date of notice to such Borrower by the Bank of such
Default or the date the Bank is notified, or should have been notified pursuant
to the Borrower's obligation under Section 6.1(g) hereof, of such Default;
provided, however, that there shall be no cure period with respect to any
failure to perform under, or comply with the provisions of, Sections 6.1
(except Section 6.1(g)), 6.5, 6.6, 6.7, 6.10 and 7.1 through 7.15.
(d) Note Purchase Agreement. If the Pension Fund shall disavow
its obligations under the Note Purchase Agreement or contest the validity or
enforceability of the Note Purchase Agreement or there shall exist an Event of
Default as defined in the Note Purchase Agreement.
(e) Other Defaults. In respect of indebtedness to any Person
other than the Bank, if any Borrower or Subsidiary shall default in the payment
when due of any of its indebtedness which individually or in the aggregate
equals or exceeds One Hundred Thousand Dollars ($100,000) or in the observance
or performance of any term, covenant, or condition in any agreement or
instrument evidencing, securing or relating to such indebtedness which
individually or in the aggregate equals or exceeds One Hundred Thousand Dollars
($100,000), and such default results in acceleration by the holder thereof.
(f) Judgments. If there shall be rendered against any Borrower
or Subsidiary one or more judgments or decrees involving an aggregate liability
of One Hundred Thousand Dollars ($100,000) or more, which has become
non-appealable and shall remain undischarged, unsatisfied by insurance and
unstayed for more than thirty (30) days, whether or not consecutive; or if a
writ of attachment or garnishment against the property of any Borrower or
Subsidiary shall be issued and levied in an action claiming One Hundred
Thousand Dollars ($100,000) or more and not released
48
<PAGE> 53
or appealed and bonded in an amount and manner satisfactory to the Bank within
thirty (30) days after such issuance and levy.
(g) Business Suspension, Bankruptcy, Etc. If any Borrower or
Subsidiary shall voluntarily suspend transaction of its business; or if any
Borrower or Subsidiary shall not pay its debts as they mature or shall make a
general assignment for the benefit of creditors; or proceedings in bankruptcy,
or for reorganization or liquidation of any Borrower or Subsidiary under any
Debtor Law shall be commenced or shall be commenced against any Borrower or
Subsidiary and shall not be discharged within thirty (30) days of commencement;
or a receiver, trustee or custodian shall be appointed for any Borrower or
Subsidiary or for any substantial portion of their respective properties or
assets.
(h) Change of Management or Ownership. If any Borrower or
twenty-five percent (25%) or more of any Borrower's voting stock or a
substantial portion of its assets comes under the practical, beneficial or
effective control of one person or a group (as described in Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended) of persons other than the
existing holders of MCAFC voting stock, whether by reason of death, merger,
consolidation, sale or purchase of stock or assets or otherwise; or if any two
of the individuals who are the officers listed from time to time on Schedule
6.11 shall no longer remain in office, whether by reason of death, resignation
or otherwise, or shall cease for any reason to perform the substantive
functions and duties of that office; and any such change of control or office
holder may adversely affect, in the sole judgment of the Bank, the ability of
such Borrower to carry on its business as conducted before such change.
(i) Material Adverse Change; Insecurity. There shall have
occurred any other material adverse change in the business, operations,
properties, condition (financial or otherwise) or prospects of any Borrower,
including, without limitation, any interruption, regardless of cause, in the
Borrowers' ability to service the mortgage loans covered by the Servicing
Rights for more than fifteen (15) consecutive days, or the Bank shall
otherwise, in good faith, deem itself insecure with regard to the prospects of
having the Obligations repaid by the Borrowers on a timely basis.
8.2 Acceleration of Obligations; Remedies. Upon the occurrence of
an Event of Default, the Bank's commitment to advance funds under this
Agreement shall be terminated and all Obligations shall be due and payable in
full immediately at the option of the Bank without presentment, demand,
protest, notice of dishonor or other notice of any kind, all of which are
hereby expressly waived; provided, however, that upon the occurrence of an
Event of Default described in Section 8.1(d) or 8.1(g), the Bank's commitment
hereunder shall automatically terminate and all such amounts shall
automatically become immediately due and payable without notice or demand.
Unless all of the Obligations are then immediately fully paid, the Bank shall
have and may exercise any one or more of the rights and remedies for which
provision is made for a secured party under the UCC, under the Security
Agreement, the Note Purchase Agreement or under any other documents
contemplated hereby or for which provision is provided by law or in equity,
including, without limitation, the right to take possession and sell, lease or
otherwise dispose of any or all of
49
<PAGE> 54
the Collateral and to set off against the Obligations any amount owing by the
Bank to any Borrower and/or any property of any Borrower in possession of the
Bank (other than funds held in escrow or custodial accounts maintained by a
Borrower with the Bank). The Borrowers agree, upon request of the Bank, to
assemble the Collateral and make it available to the Bank at any place
designated by the bank which is reasonably convenient to the Bank and the
Borrowers; provided, however, in exercising any of the foregoing rights or
remedies as a secured party with respect to the Servicing Rights, the Bank
acknowledges that its rights may be subject to applicable rights, if any, of
the Agencies.
8.3 Application of Proceeds. All of the Obligations shall
constitute one loan secured by the Bank's security interest in the Collateral
and by all other security interests, mortgages, liens, claims, and encumbrances
now and from time to time hereafter granted from the Borrowers to the Bank.
Upon the occurrence of an Event of Default which is not cured within the cure
period, if any, provided under Section 8.1, the Bank may in its sole discretion
apply the Collateral to any portion of the Obligations. The proceeds of any
sale or other disposition of the Collateral authorized by this Agreement shall
be applied by the Bank, first to pay all expenses authorized by the UCC or
otherwise in connection with that sale or other disposition, including all
reasonable attorneys' fees and legal expenses incurred by the Bank in
connection therewith; the balance of the proceeds of such sale or other
disposition shall be applied in the payment of the Obligations, first to
accrued and unpaid interest, then to the other amounts owed to the Bank other
than principal, then to principal, and the surplus, if any, shall be paid over
to the Borrowers or to such other Person or Persons as may be entitled thereto
under applicable Law. The Borrowers shall remain liable for any deficiency,
which the Borrowers shall pay to the Bank immediately upon demand.
8.4 Termination of Commitment. If the Pension Fund shall give
notice of its termination of the Enhancement Agreement or that its credit
enhancement shall not be available with respect to any additional borrowings
hereunder or if the Pension Fund requires the Borrowers to pay off the
Obligations, then, and in any such event, the Bank's commitment to advance
funds under this Agreement shall be automatically terminated, without
presentment, demand, protest, notice or dishonor or other notice of any kind,
all of which are hereby expressly waived by the Borrowers.
8.5 Cumulative Remedies. The remedies provided for herein are
cumulative of the remedies for collection of the Obligations as provided by
law, in equity or by any security agreement, pledge agreement, guaranty or
other document contemplated hereby. Nothing herein contained is intended, nor
shall it be construed, to preclude the Bank from pursuing any other remedy for
the recovery of any other sum to which the Bank may be or become entitled for
the breach of this Agreement by the Borrowers.
8.6 Concerning Obligations Payable Upon Demand. To the extent
that any of the Obligations are payable upon demand under the terms of this
Agreement, nothing contained in this Agreement or any document contemplated
hereby shall be construed to prevent the Bank from making demand, without
notice and with or without reason, for immediate payment of all or any part
50
<PAGE> 55
of such Obligations at any time or times, whether or not a Default or an Event
of Default has occurred.
8.7 Marshaling. Each Borrower, to the extent it may lawfully
do so, on behalf of itself and all who may claim through or under it, including
any and all subsequent creditors, vendees, assignees and lienors, waives and
releases all rights to demand or to have any marshaling of the Collateral upon
any sale, whether made under any power of sale granted herein or in any other
document contemplated hereby or pursuant to judicial proceedings or upon any
foreclosure or any enforcement of this Agreement or any other document
contemplated hereby and consents and agrees that all the Collateral may at any
such sale be offered and sold as an entirety or separately.
9. MISCELLANEOUS
9.1 Usury Not Intended; Credit or Refund of Any Excess Payments. It
is the intent of the Borrowers and the Bank in the execution and performance of
this Agreement and the other Loan Documents to contract in strict compliance
with the usury Laws of the State of Texas and the United States of America from
time to time in effect. In furtherance of that purpose, all of the parties to
this Agreement stipulate and agree that none of the terms and provisions
contained in this Agreement or the other Loan Documents shall ever be construed
to create a contract to pay for the use, forbearance or detention of money with
interest at a rate in excess of the Ceiling Rate, and that for purposes hereof
"interest" shall include the aggregate of all charges which constitute interest
under such Laws that are contracted for, charged, taken, reserved or received
under this Agreement or any of the other Loan Documents. In the event that the
maturity of the Revolving Credit Note is accelerated by reason of any election
by the Bank resulting from any Event of Default under this Agreement or
otherwise, or in the event of any required or permitted prepayment, then such
consideration that constitutes interest may never include more than the maximum
nonusurious amount permitted by applicable Law, and excess interest, if any,
provided for in this Agreement or otherwise shall be canceled automatically as
of the date of such acceleration or prepayment and, if theretofore paid, shall
be credited on the Revolving Credit Note (or, if such note shall have been paid
in full, refunded to the payor of such interest). THE PROVISIONS OF THIS
SECTION SHALL PREVAIL AND CONTROL OVER ALL OTHER PROVISIONS OF THIS AGREEMENT,
THE REVOLVING CREDIT NOTE AND THE OTHER LOAN DOCUMENTS THAT MAY BE IN APPARENT
CONFLICT HEREWITH. In the event the Bank or other owner or holder of the
Revolving Credit Note or any authorized person acting on its or their behalf
shall ever collect monies which are deemed to constitute interest at a rate in
excess of the Ceiling Rate then in effect, all such sums deemed to constitute
interest in excess of the Ceiling Rate shall be immediately returned to their
payor (or, at the option of the holder of the Revolving Credit Note, credited
against the unpaid principal of the Revolving Credit Note) upon such
determination, and, to the extent permitted by applicable Law, neither the Bank
nor any such holder shall be subject to any penalties provided by applicable
Law for contracting for, charging, taking, reserving or receiving interest at a
rate in excess of the Ceiling Rate. In determining whether or not the interest
paid or payable under any specific contingency exceeds the Ceiling Rate, to the
maximum extent permitted under applicable Law, the Borrowers and the Bank shall
(a) apply principal payments first to reduce
51
<PAGE> 56
the principal then unpaid hereunder (in inverse order of their maturities if
principal amounts are payable in installments) and then to reduce any
obligation for other indebtedness of any Borrower to the Bank, (b) characterize
any non-principal payment as an expense, fee or premium rather than as
interest, (c) exclude voluntary prepayments and their effects and (d) "spread"
the total amount of interest throughout the entire contemplated term of the
Revolving Credit Note, and interest owing on the Revolving Credit Note, so that
the interest rate is uniform throughout the entire term of the loan provided
for in this Agreement.
9.2 Independent Rights. No single or partial exercise of any
right, power or privilege hereunder, or any delay in the exercise thereof,
shall preclude other or further exercise of the rights of the parties to this
Agreement.
9.3 Covenant Independence. Each covenant in this Agreement
shall be deemed to be independent of any other covenant, and an exception or
illegality in one covenant shall not create an exception or illegality in
another covenant.
9.4 Waivers and Amendments. No forbearance on the part of the
Bank in enforcing any of its rights under this Agreement, nor any renewal,
extension or rearrangement of any payment or covenant to be made or performed
by any Borrower hereunder, shall constitute a waiver of any of the terms of
this Agreement or of any such right. No Default or Event of Default shall be
waived by the Bank except in a writing signed and delivered by an officer of
the Bank, and no waiver of any other Default or Event of Default shall operate
as a waiver of any Default or Event of Default or of the same Default or Event
of Default on a future occasion. No other amendment, modification or waiver
of, or consent with respect to, any provision of this Agreement or the Note or
other documents contemplated hereby shall be effective unless the same shall be
in writing and signed and delivered by an officer of the Bank.
9.5 Governing Law. This Agreement, and each and every term and
provision hereof, shall be governed by and construed in accordance with the
internal Law of the State of Texas, without regard or reference to its
conflicts of laws rules. If any provisions of this Agreement shall for any
reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision hereof, but this Agreement shall be
construed as if such invalid or unenforceable provisions had never been
contained herein.
9.6 Survival of Warranties, Etc. All of the Borrowers'
covenants, agreements, representations and warranties made in connection with
this Agreement and any document contemplated hereby shall survive the borrowing
and the delivery of the Revolving Credit Note hereunder, shall be deemed
republished by the Borrowers on the date of each Request for a Revolving Loan
and shall be deemed to have been relied upon by the Bank, notwithstanding any
investigation heretofore or hereafter made by the Bank. All statements
contained in any certificate or other document delivered to the Bank at any
time by or on behalf of any Borrower pursuant hereto
52
<PAGE> 57
or in connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrowers in connection with this
Agreement.
9.7 Expenses; Indemnification. Each Borrower agrees that, upon
demand, it will pay, or reimburse the Bank for, all costs and expenses incurred
by the Bank in connection with (i) collecting or attempting to collect the
Obligations or any part thereof, (ii) maintaining or defending the Bank's
security interests or liens (or the priority thereof), (iii) the enforcement of
the Bank's rights or remedies under this Agreement or the other Loan Documents,
(iv) the preparation or making of any amendments, modifications, waivers or
consents with respect to this Agreement or the other Loan Documents and/or (v)
any other matters or proceedings arising out of or in connection with this
Agreement or the other Loan Documents, which costs and expenses include,
without limitation, the payments made by the Bank for taxes, insurance,
assessments, or other costs or expenses which the Borrowers are required to pay
under this Agreement or the other documents contemplated hereby; expenses
related to the examination of the Collateral; audit expenses; valuation
expenses; court costs and reasonable attorneys' fees (whether in-house or
outside counsel is used, whether legal assistants are used, and whether such
costs are incurred in negotiations, formal or informal collection actions,
federal bankruptcy proceedings, probate proceedings, on appeal or otherwise);
and all other costs and expenses of the Bank incurred in connection with any of
the foregoing. Each Borrower further agrees, jointly and severally, to
indemnify the Bank for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever (including reasonable attorneys' fees) which may be
imposed on, incurred by or asserted against the Bank in any way relating to or
arising out of its duties under this Agreement or any other Loan Document or
the transactions contemplated hereby WHETHER CAUSED BY OR RESULTING FROM (I)
THE BANK'S OWN SOLE OR CONCURRENT ORDINARY NEGLIGENCE OR (II) ANY BANK'S ACT OR
OMISSION THAT DOES NOT AMOUNT TO GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY THE
BANK BUT FOR WHICH THE BANK IS, OR COULD BE HELD TO BE, STRICTLY LIABLE.
9.8 Payments on Saturdays, Etc. Whenever any payment to be
made hereunder shall be stated to be due on a Saturday, Sunday or any other day
which is not a Business Day, such payment may be made on the next succeeding
Business Day, and such extension, if any, shall be included in computing
interest in connection with such payment.
9.9 Binding Effect. This Agreement shall inure to the benefit
of and shall be binding upon the parties hereto and their respective successors
and assigns; provided, however, that no Borrower may assign or transfer its
rights or obligations hereunder without the prior written consent of the Bank.
9.10 Participations. The Bank may grant participations in all
or any part of its Revolving Loans, Revolving Credit Note and Commitment Amount
to any bank or other institutional investor (including any Affiliate of the
Bank), without the consent of the Borrowers. The Borrowers hereby acknowledge
and agree that any participant described in this Section 9.10 will, for
purposes of Section 8.2, be included as the Bank hereunder and may rely on, and
possess all rights under, any
53
<PAGE> 58
opinions, certificates, or other instruments or documents delivered under or in
connection with this Agreement or any Loan Document.
9.11 Disclosure of Information. The Borrowers authorize the
Bank to disclose to any participant or permitted assignee or successor (each, a
"TRANSFEREE") and any prospective Transferee any and all financial and other
information in the Bank's possession concerning any Borrower pursuant to this
Agreement or the other Loan Documents or which has been received by the Bank in
connection with its credit evaluation of the Borrowers prior to entering into
this Agreement.
9.12 Maintenance of Records. Each Borrower will keep all of its
records concerning its business operations and accounting at its principal
place of business. Each Borrower will give the Bank prompt written notice of
any change in its principal place of business, or in the location of its
records.
9.13 Notices. All notices and communications provided for
herein or in any document contemplated hereby or required by Law to be given
shall be in writing (unless expressly provided to the contrary) and, if
personally delivered, effective when delivered at the address below (including,
if by telecopy, upon confirmation of receipt) or, in the case of mailing,
effective two (2) days after sending by first class mail, postage prepaid,
addressed as follows:
(1) if to the Borrowers, to:
MCA Financial Corp.
23999 Northwestern Hwy, Suite 230
Southfield, Michigan 48075
Attention: Mr. Keith D. Pietila
Telephone: (248) 358-5555
Telecopy: (248) 358-7507
and
(2) if to the Bank, to:
Texas Commerce Bank National Association
712 Main Street
Houston, Texas 77002 (for messenger deliveries)
P. O. Box 2558
Houston, Texas 77252 (for mail deliveries)
Attention: Ms. Pamela E. Skinner
Telephone: (713) 216-5382
Telecopy: (713) 216-2082
54
<PAGE> 59
or to such other address as a party shall have designated to the other in
writing in accordance with this section. The giving of at least three (3)
days' notice before the Bank shall take any action described in any notice
shall conclusively be deemed reasonable for all purposes; provided, however,
that this shall not be deemed to require the Bank to give five (5) days notice
or any notice if not specifically required in this Agreement.
9.14 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures were upon the same
instrument.
9.15 Integration. This Agreement and the other Loan Documents embody
the entire agreement and understanding between the Borrowers and the Bank, and
supersede all prior agreements and understanding, relating to the subject
matter hereof.
9.16 Limitation of Liability. NEITHER THE BANK NOR ANY OF ITS
AFFILIATES, DIRECTORS, OFFICERS, AGENTS, ATTORNEYS OR EMPLOYEES (COLLECTIVELY,
THE "BANK, ET AL") SHALL BE LIABLE TO THE BORROWERS OR ANY OF THEIR AFFILIATES
FOR ANY ACTION TAKEN, OR OMITTED TO BE TAKEN, BY IT OR THEM OR ANY OF THEM
UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR IN CONNECTION HEREWITH OR
THEREWITH; PROVIDED, HOWEVER THAT NO PERSON SHALL BE RELIEVED HEREBY OF ANY
LIABILITY IMPOSED BY APPLICABLE LAW FOR SUCH PERSON'S OWN GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT; PROVIDED FURTHER THAT THE BORROWERS DO HEREBY RELEASE THE
BANK, ET AL FROM ALL LIABILITY THAT MAY BE CAUSED BY THE SOLE OR CONCURRENT
ORDINARY NEGLIGENCE OF THE BANK, ET AL (OR ANY OF THEM) AND FROM ALL LIABILITY
THAT DOES NOT RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
BANK, ET AL, BUT FOR WHICH THE BANK, ET AL COULD BE HELD -- BUT FOR THIS
PROVISION -- TO BE STRICTLY LIABLE. NO CLAIM MAY BE MADE BY ANY BORROWER OR
ANY OF THEIR AFFILIATES AGAINST THE BANK, ET AL, FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY BREACH OR WRONGFUL CONDUCT
(WHETHER THE CLAIM IS BASED ON CONTRACT OR TORT OR DUTY IMPOSED BY LAW) ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR ANY ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION HEREWITH OR THEREWITH, EVEN IF THE BORROWERS' OR THEIR
AFFILIATES' LOSS, COST, DAMAGE, INJURY OR EXPENSE WAS CAUSED IN WHOLE OR IN
PART BY THE SOLE OR CONCURRENT ORDINARY NEGLIGENCE OF THE BANK, ET AL. THE
BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR ANY
SUCH DAMAGES, WHETHER OR NOT ACCRUED, AND WHETHER OR NOT KNOWN OR SUSPECTED TO
EXIST IN ITS FAVOR.
9.17 WAIVER OF JURY TRIAL. THE BANK AND EACH BORROWER, AFTER
CONSULTING WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR
ARISING OUT OF THIS AGREEMENT, THE REVOLVING CREDIT NOTE, OR ANY OTHER LOAN
DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY
COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
ANY OF THEM. NEITHER THE BANK NOR ANY BORROWER SHALL SEEK TO CONSOLIDATE, BY
COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO
55
<PAGE> 60
HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE BANK NOR THE BORROWERS
EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
[The remainder of this page is intentionally blank.]
56
<PAGE> 61
IN WITNESS WHEREOF, the Borrowers and the Bank have caused this Agreement
to be executed by their duly authorized officers as of the day and year first
written above.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION,
formerly known as Mortgage
Corporation of America
By: By:
-------------------------------- ------------------------------------
Name: Name:
------------------------------ ----------------------------------
Title: Title:
----------------------------- ---------------------------------
MORTGAGE CORPORATION OF
AMERICA, formerly known as First
American Mortgage Associates, Inc.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Unnumbered counterpart signature page for
June ___, 1997 Revolving Credit Loan Agreement (Secured)
among MCA Financial Corp., MCA Mortgage Corporation, Mortgage Corporation of
America
and Texas Commerce Bank National Association
<PAGE> 62
Attachments:
Exhibits:
A - Borrowing Base Certificate form
B - Note Purchase Agreement form
C - Revolving Credit Note form
D - Security Agreement form
E - Opinion of Borrowers' Counsel form
F - Opinion of Pension Fund's Counsel form
G-1 - Disbursement Request Certificate - Servicing Refinancing form
G-2 - Disbursement Request Certificate - Servicing Acquisition form
G-3 - Disbursement Request Certificate - Originated Servicing form
G-4 - Disbursement Request Certificate - Residuals Financing form
H - Servicing Rights Certificate form
I - Residual Rights Certificate form
M - Residual Rights Assignment form
Schedules:
AG - Applicable Guidelines
CA - form of Control Agreement
5.1 - Subsidiaries
6.11 - Senior Management
6.16 - Shareholders
7.4 - Existing indebtedness
7.6 - Existing Liens
<PAGE> 63
EXHIBIT A
MCA FINANCIAL CORP.
BORROWING BASE CERTIFICATE
(Monthly Certification)
The undersigned, ______________________, certifies to Texas Commerce Bank
National Association (the "BANK") that he is the duly appointed Chief Financial
Officer of MCA Financial Corp., a Michigan corporation (the "COMPANY").
Pursuant to Section 6.1(d) of that certain Revolving Credit Loan Agreement
(Secured) among the Company, the other Borrowers and the Bank dated June __,
1997 (the "LOAN AGREEMENT"), the undersigned further certifies to the Bank as
follows:
1. Capitalized terms used in this certificate and not otherwise herein
defined have the meaning ascribed to them in the Loan Agreement.
2. As of ____________, 19__, the aggregate unpaid principal amount of
all outstanding Revolving Loans was $________________.
3. As of _____________, 19___, the Commitment Amount was
$______________.
4. As of _____________, 19__, the Borrowing Base was $______________,
calculated as follows:
<TABLE>
<S> <C> <C>
(a) Eligible Servicing Rights:
(i) With respect to Originated Servicing (1 1/2 % of the then
outstanding principal balance of the underlying mortgage
loans): $______________
(ii) With respect to all other Eligible Servicing Rights:
(1) the lesser of cost ($__________) or market value
($_________) as determined pursuant to Section 6.12 of
the Loan Agreement, UNLESS THIS BOX [ ] IS CHECKED to
(i) certify that market value has been determined
within the preceding 6 months by an independent
nationally-recognized mortgage
</TABLE>
<PAGE> 64
<TABLE>
<S> <C> <C>
servicing rights valuation consultant and (ii)
indicate that the Borrowers elect to use such
valuation in determining the Borrowing Base value, in
which event market value is used: $______________
minus(2) the unpaid portion of the purchase price for all
purchased Eligible Servicing Rights for which
(for whatever reason) the Company has not yet paid 90%
of the purchase price: ($______________)
Subtotal $______________
(b) Eligible Residuals market value determined
as of __________, 199__
$______________
Total $______________
</TABLE>
5. As of ______________, 19__, the aggregate unpaid principal amount of
all outstanding Revolving Loans did not exceed the lesser of the Commitment
Amount or the Borrowing Base.
IN WITNESS WHEREOF, the undersigned has executed this Borrowing Base
Certificate this ____ day of _______________, 19__.
MCA FINANCIAL CORP.
By:__________________________________
Name:_________________________________
Chief Financial Officer
<PAGE> 65
EXHIBIT B
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT (the "AGREEMENT") is made and delivered this
___ day of June, 1997, by and between Texas Commerce Bank National Association,
a national banking association (the "BANK"), and the Board of Trustees of the
Policemen and Firemen Retirement System of the City of Detroit (the "PENSION
FUND").
Recitals
A. MCA Financial Corp. ("MCAFC"), MCA Mortgage Corporation, formerly
known as Mortgage Corporation of America ("MCAMC") and Mortgage Corporation of
America, formerly known as First American Mortgage Associates, Inc. ("MCA"),
together with other subsidiaries, direct or indirect, of MCAFC (MCAFC, MCAMC
and MCA are herein referred to collectively as the "BORROWERS" and individually
as a "BORROWER") propose to enter into a Revolving Credit Loan Agreement with
the Bank dated as of the date hereof (the "6/97 LOAN AGREEMENT"), pursuant to
which the Bank will agree, upon the terms and subject to the conditions stated
in the 6/97 Loan Agreement, to make loans in an aggregate principal amount not
to exceed Twenty-eight Million Five Hundred Thousand Dollars ($28,500,000) at
any time outstanding for the purposes of financing the acquisition and
retention of residential mortgage servicing rights, refinancing acquisitions of
residential mortgage servicing rights previously acquired and currently
financed by another lender and financing residual interests in Mortgage
Securities created from residential mortgage loans accumulated and pooled by
one or more of the Borrowers. The 6/97 Loan Agreement, as supplemented,
amended or restated from time to time is herein referred to as the "CREDIT
AGREEMENT."
B. One of the conditions to the Bank's execution, delivery and
performance of the Credit Agreement is that the Pension Fund provide credit
enhancement with respect to the Borrowers' obligations under the Credit
Agreement in the form of this Agreement.
C. The Pension Fund has agreed to provide the required credit
enhancement as described above in exchange for certain fees and other rights
given, or to be given, by MCAFC, MCAMC and MCA pursuant to the terms of a
Credit Enhancement Umbrella Agreement dated April 30, 1993, as supplemented,
amended or restated from time to time (the "ENHANCEMENT AGREEMENT").
NOW, THEREFORE, (i) in order to induce the Bank to enter into the Credit
Agreement and to make the loans to the Borrowers provided for therein, and (ii)
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the Pension Fund, the Pension Fund and the Bank
agree as follows:
<PAGE> 66
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the meanings set forth below:
"COMERICA NOTE PURCHASE AGREEMENT" is defined in Section 4.2 hereof.
"CREDIT AGREEMENT EVENT OF DEFAULT" means an Event of Default under and as
such term is defined in the Credit Agreement.
"ENHANCEMENT AGREEMENT EVENT OF DEFAULT" means an Event of Default under
and as such term is defined in the Enhancement Agreement.
"MATERIAL ADVERSE EFFECT" means any material adverse effect on (i) the
legality, validity or enforceability of this Agreement or (ii) the ability of
the Pension Fund to perform this Agreement on a timely basis.
"PURCHASE" has the meaning specified in Section 2.1(a) hereof.
"PURCHASE PRICE" has the meaning specified in Section 2.1(a) hereof.
"REVOLVING CREDIT NOTE" means the Revolving Credit Note described in the
Credit Agreement and all renewals, extensions and rearrangements thereof.
1.2 Credit Agreement Definitions. All capitalized terms which are
defined in the Credit Agreement and not otherwise defined herein shall have the
same meanings herein as in the Credit Agreement.
SECTION 2. THE PURCHASE
2.1 The Obligation.
(a) Subject to the terms and conditions set forth in this
Agreement, and provided that the Pension Fund's obligations under the Comerica
Note Purchase Agreement have been terminated by reason of the final and
irrevocable payment of the "Obligations", as defined in the Comerica Note
Purchase Agreement, the Pension Fund hereby unconditionally agrees to purchase
from the Bank the Revolving Credit Note, upon the demand of the Bank, following
the earlier of (i) the occurrence of a Credit Agreement Event of Default or
(ii) the occurrence of an Event of Default under this Agreement, and, in
consideration for such purchase, unconditionally agrees to pay to the Bank an
amount (the "PURCHASE PRICE") equal to the then aggregate outstanding principal
balance of and accrued and unpaid interest (including any interest at the
Default Rate through the date when the purchase of the Revolving Credit Note
shall be consummated) on the Revolving Credit Note,
2
<PAGE> 67
together with an amount equal to all other Obligations then outstanding, in
exchange for delivery of the Revolving Credit Note by the Bank to the Pension
Fund, which payment and exchange shall occur on the third Business Day
following the Bank's demand hereunder (the obligation of the Pension Fund to
purchase the Revolving Credit Note and to make payment therefor as described in
this Section 2.1 being hereinafter called the "PURCHASE"). The Purchase Price
shall be paid by the Pension Fund not later than 11:00 a.m. Houston time on the
date of Purchase, in immediately available funds, to the Bank, against tender
by the Bank of the Revolving Credit Note, endorsed or assigned to the Pension
Fund at the main offices of the Bank at 712 Main Street, Houston, Harris
County, Texas, in the office of the Managing Director of the Bank's Corporate
Mortgage Finance Group (or any successor to such Group as may be designated by
the Bank from time to time) without recourse to or representation or warranty
by the Bank, except that title to such Revolving Credit Note will be
transferred to the Pension Fund free and clear of any pledge, security interest
or other interest of any third party, including any participant in the
Revolving Credit Note, created or consented to by the Bank with respect
thereto. The Pension Fund hereby agrees that the Purchase made by it hereunder
shall be without recourse to or representation or warranty by the Bank other
than as set forth in the preceding sentence or in Section 2.1(d) below or in
connection with any error reflected in the statement to be delivered pursuant
to Section 2.1(b) below.
(b) Simultaneously with the delivery of a demand for Purchase
pursuant to Section 2.1(a), the Bank shall deliver to the Pension Fund a
statement setting forth the following, each as of the date of such demand: the
aggregate amount of principal then outstanding under the Revolving Credit Note;
the amount of accrued and unpaid interest then outstanding under the Revolving
Credit Note, including any such interest at the Default Rate; the Default Rate
then applicable under the Revolving Credit Note and the amount and nature of
each other Obligation then outstanding under the Credit Agreement or any other
Loan Document. The sum of the foregoing amounts as set forth on such statement
shall, absent manifest error, constitute the best evidence of the Purchase
Price payable hereunder.
(c) If on the date specified for the Purchase the Revolving
Credit Note shall have been produced, either endorsed or together with
instruments of assignment thereof to the Pension Fund, at the time, place and
manner specified pursuant to Section 2.1(a), but the Pension Fund shall fail to
pay the Purchase Price as specified in said section, then at 11:00 a.m. Houston
time on the date so specified for such Purchase the title to the Revolving
Credit Note shall pass to the Pension Fund without any further act or demand on
the part of the Pension Fund or the Bank; provided, however, that the Bank
shall hold, and retain a security interest in and to, the Revolving Credit Note
and in and to all of its security as collateral for the payment of the Purchase
Price (including interest on the Revolving Credit Note at the Default Rate from
the date tendered until the Purchase Price shall be paid in full) of the
Revolving Credit Note and such other amounts as shall be payable to the Bank as
a result of the Pension Fund's failure to pay the Purchase Price as provided
herein, and the Pension Fund duly pledges to the Bank, and hereby duly grants
to the Bank a security interest in, the Revolving Credit Note, and in and to
all of its then-existing and future security, for such purpose. If the Pension
Fund shall fail to pay the Purchase Price for the Revolving Credit Note, as
aforesaid,
3
<PAGE> 68
the Pension Fund (i) agrees that it will be unconditionally liable to the Bank
for liquidated damages (for the loss of a bargain and not as a penalty) for the
amount of such Purchase Price, including interest accrued thereon at the
Default Rate from the date so specified for Purchase of the Revolving Credit
Note until paid, as well as for all costs and expenses, if any, incurred by the
Bank in enforcing this Agreement and (ii) to the extent permitted by applicable
Law, irrevocably waives any right or defense the Pension Fund may have to cause
the Bank to prove the case or amount of such damages or to mitigate the same.
(d) Upon the Pension Fund's final and irrevocable payment of
the Purchase Price in full to the Bank, the Bank shall endorse and deliver
(with such documents of sale, assignment, substitution, termination,
notification or otherwise as the Pension Fund may reasonably request) to the
Pension Fund the Revolving Credit Note, the other Loan Documents and all other
documents evidencing the Obligations, including security interests in the
Collateral, and all Collateral being held by or on behalf of the Bank,
including but not limited to securities and instruments of transfer related
thereto and all items in -- and all of the Bank's right, title and interest in
and to -- the "Securities Account", as that term is defined in the Security
Agreement, as are reasonably requested by the Pension Fund. All such documents
shall be endorsed in favor of the Pension Fund without recourse against the
Bank and without any representation or warranty of any kind whatsoever made by
the Bank with respect to the effectiveness or enforceability of such documents,
except that title to such documents will be transferred to the Pension Fund
free and clear of any pledge, security interest or other interest of any third
party, including any participant in the Revolving Credit Note, created or
consented to by the Bank with respect thereto. In addition to the foregoing,
the Bank agrees to execute and deliver, at the Pension fund's sole cost and
expense, such other agreements and documents as the Pension Fund may reasonably
request to permit the Pension Fund to assume and perfect all rights of the Bank
against or with respect to the Borrowers under the Loan Documents.
(e) Upon the purchase of the Revolving Credit Note by the
Pension Fund's final and irrevocable payment of the Purchase Price in full to
the Bank, the Pension Fund acknowledges that its only remedies are to receive
an assignment of the Revolving Credit Note, all of the other Loan Documents and
all other documents evidencing the Obligations, including documents creating or
evidencing security interests in the Collateral, to receive all Collateral
being held by or on behalf of the Bank and to take an assignment, without
recourse, of all of the Bank's rights and remedies thereunder. The Pension
Fund knowingly relinquishes all rights to make any claims of any kind against
the Bank arising out of such assignment, this Agreement or otherwise, except
with respect to (i) a breach of the limited representations, warranties,
covenants and agreement made by the Bank under this Agreement, (ii) an error
reflected in the statement to be delivered pursuant to Section 2.1(b) above or
(iii) a claim or defense made against the Pension Fund by any Borrower or by
any creditor of any Borrower alleging failure by the Bank, prior to the
transfer of the Revolving Credit Note and the other Loan Documents to the
Pension Fund as provided in this Agreement, to perform any obligation to a
Borrower, causing loss, cost, damage or expense to such Borrower or creditor,
and the Pension Fund hereby specifically agrees that (1) any and all such
unrelinquished claims are
4
<PAGE> 69
and shall be separate from and independent of the Pension Fund's obligations
under this Agreement and (2) it is and shall be a condition precedent to the
Pension Fund's right to assert any such unrelinquished claim as a claim or
defense against the Bank in any Tribunal that the Pension Fund shall have first
fully, unconditionally and irrevocably paid the Purchase Price to the Bank.
2.2 Taxes, Authorizations, Etc.
(a) The Pension Fund will pay any stamp or other tax (including
any interest and penalties) with respect to the purchase of the Revolving
Credit Note pursuant to this Agreement. If any such tax is paid by the Bank,
the Pension Fund will, upon demand of the Bank and whether or not such tax
shall be correctly or legally asserted, indemnify the Bank for such payment,
together with any interest, penalties and expenses in connection therewith.
(b) The Pension Fund will obtain any authorization or approval
or other action by, and will give any notice to or make any filing with, any
governmental authority or regulatory body required in connection with the
transfer of the Revolving Credit Note to the Pension Fund upon any purchase
pursuant to this Agreement, and the Bank agrees to reasonably cooperate with
the Pension Fund in connection with the foregoing. Notwithstanding the
foregoing, the Pension Fund will not be responsible for the performance by the
Bank of any of its obligations under any Agency acknowledgment obtained for the
benefit of the Bank pursuant to Section 4.2(e) of the Credit Agreement.
2.3 Obligation Absolute.
(a) Subject to the terms and conditions set forth in this
Agreement, the Pension Fund will purchase the Revolving Credit Note pursuant to
this Agreement regardless of any Law (including any regulation or order) now or
hereafter in effect in any jurisdiction affecting any of the terms of or
obligations under the Revolving Credit Note or the Credit Agreement or any
other Loan Document (other than this Agreement) or the rights of the Bank with
respect thereto. The obligations of the Pension Fund under this Agreement
shall be absolute and unconditional irrespective of:
(i) any lack of genuineness, legality, validity,
enforceability or value of the Revolving Credit Note, the Credit Agreement or
the other Loan Documents or any Collateral for the Revolving Credit Note;
(ii) subject to Section 6.3(b), any change in the time,
manner or place of payment of, or in any other term of the Revolving Credit
Note, the Credit Agreement or any other Loan Document or any other amendment or
waiver of or any consent to departure from the Revolving Credit Note, the
Credit Agreement or any other Loan Document;
5
<PAGE> 70
(iii) subject to Section 6.3(b), any exchange, release
or non-perfection of any Collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for the Revolving Credit Note, the
Credit Agreement or any other Loan Document;
(iv) any failure to pay any taxes which may be payable with
respect to the issuance or transfer of the Revolving Credit Note, or any
failure to obtain any authorization or approval from or other action by, or to
notify or file with, any governmental authority or regulatory body required in
connection with the issuance or transfer of the Revolving Credit Note; or
(v) any impossibility or impracticality of performance,
force majeure, any act of any government, or any other circumstance which might
constitute a defense available to, or a discharge of, any Borrower in respect
of the Revolving Credit Note, the Credit Agreement or any other Loan Document,
including any such defense or discharge arising in connection with any
proceeding for bankruptcy, reorganization or receivership of any Borrower or
its assets, or any other circumstance, event or happening whatsoever, whether
foreseen or unforeseen and whether similar or dissimilar to anything referred
to above in this Section 2.3.
(b) This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment received by the Bank
from or on behalf of any Borrower with respect to the Revolving Credit Note or
the other Loan Documents is rescinded or must otherwise be returned by the Bank
upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise,
all as though such payment had not been made. The obligations of the Pension
Fund under this Agreement shall not be subject to reduction, termination or
other impairment by reason of any setoff, recoupment, counterclaim or defense
which the Pension Fund may have against the Bank or for any other reason.
2.4 Waivers; Right of the Bank.
(a) Except as otherwise provided in Section 2.1 or Section 7of
this Agreement, the Pension Fund hereby waives promptness, diligence, notice of
acceptance, presentment, demand, protest, notice of protest and dishonor,
notice of intent to accelerate, notice of acceleration and any other notice
with respect to this Agreement, the Credit Agreement, the Revolving Credit Note
and the other Loan Documents, and any requirement that the Bank protect,
secure, perfect or insure any lien or any property subject thereto or exhaust
any right or take any action against any Borrower, any other person or any
Collateral. The Pension Fund also hereby waives each and every right or claim
against the Bank, its successors or assigns, to which the Pension Fund may be
entitled by virtue of any suretyship law, including any rights the Pension Fund
may have pursuant to Rule 31 of the Texas Rules of Civil Procedure, Section
17.001 of the Texas Civil Practice and Remedies Code and Chapter 34 of the
Texas Business and Commerce Code, as the same may be amended from time to time;
provided that the Pension Fund does not waive its subrogation rights under
Section 34.04 and the foregoing waiver shall not extend to or be for the
benefit of, or enforced by, any Borrower.
6
<PAGE> 71
(b) In furtherance of the Pension Fund's waivers pursuant to
Section 2.4(a) and without limiting the generality thereof, the Pension Fund
agrees that it shall not be necessary or required that the Bank or any other
holder of the Revolving Credit Note file suit or proceed to obtain or assert a
claim of personal judgment against any Borrower, any guarantor or any other
Person for payment of the revolving Credit Note or make any effort at
collection of the Revolving Credit Note from any Borrower, any guarantor or any
other Person, or foreclose against or seek to realize upon any Collateral for
the Revolving Credit Note, or exercise or assert any other right or remedy to
which the Bank or any other holder of the Revolving Credit Note is or may be
entitled in connection with the Revolving Credit Note or any security or
guaranty therefor, or assert or file at any time any claim against the assets
or estate of any Borrower, any guarantor or any other Person as a condition of
enforcing the obligations of the Pension Fund under this Agreement. Subject to
Section 7 of this Agreement, the Pension Fund agrees that (i) suit may be
brought against any or all Borrowers without affecting, impairing, limiting or
releasing the rights of the Bank or the obligations of the Pension Fund
hereunder, and either with or without making the Pension Fund, any guarantor or
any other Person a party to such suit, as the Bank may elect, and (ii) the Bank
may compromise or settle with any guarantor or any other Person for such sum or
sums as it may elect and may release any guarantor or any other Person from any
and all further liability to the Bank with respect to the Revolving Credit Note
(with or without receiving any payment or other consideration incident to such
release) without affecting, impairing, limiting or releasing the Pension Fund
from its obligations hereunder and the rights of the Bank to demand and collect
the entire Purchase Price due and payable to the bank pursuant to Section 2.1
hereof.
SECTION 3. SUBORDINATION
3.1 Agreement to Subordinate. Except as otherwise set forth in
Section 3.2 below:
(a) Excluding claims arising under or relating to the Pension Fund's
ownership of capital stock, or rights to acquire capital stock, of MCAF, the
Pension Fund hereby (i) subordinates any claim of any nature that it now or
later has against any or all Borrowers arising under or relating to the
Enhancement Agreement and the agreements contemplated thereby to and in favor
of all the Obligations and agrees not to accept payment or satisfaction of any
claim that it now or later has against any of the Borrowers arising under or
relating to the Enhancement Agreement and the agreements contemplated thereby
without the prior written consent of the Bank.
(b) Should any payment, distribution, security or proceeds be
received by the Pension Fund upon or with respect to any claim that it now or
may later have against any or all Borrowers arising under or relating to the
Enhancement Agreement and the agreements contemplated thereby, the Pension Fund
shall immediately deliver the same to the Bank in the form received (except for
endorsement or assignment by the Pension Fund where required by the Bank) for
application to or against the Obligations, whether matured or unmatured, and
until delivered the same shall be held in trust by the Pension Fund as the
property of the Bank.
7
<PAGE> 72
(c) Effective upon and during the continuance of an Event of
Default under this Agreement, the Pension Fund further assigns to the Bank as
collateral for the obligations of the Pension Fund under this Agreement all
claims of any nature that the Pension Fund now or later has against any or all
Borrowers arising under or relating to the Enhancement Agreement and the
agreements contemplated thereby, with full right on the part of the Bank, in
its own name or in the name of the Pension Fund, to collect and enforce these
claims.
3.2 Exceptions to Subordination. Notwithstanding anything contained
in clause (a) or (b) of Section 3.1 to the contrary, the Pension Fund's
agreement pursuant to Section 3.1 to subordinate any and all claims it may have
against any or all Borrowers to the rights of the Bank shall not apply:
(a) to the Pension Fund's right to receive fees and
reimbursement of costs and expenses from time to time under Sections 5.1 and
13.6 and Article 6 of the Enhancement Agreement, or to the Pension Fund's right
to receive reimbursement of reasonably incurred costs and expenses from time to
time under any agreement to be entered into under the Enhancement Agreement, so
long as, in any such instance, there shall not have occurred and be continuing,
at the time such amount is payable, an Event of Default under this Agreement;
(b) to any security interest granted to the Pension Fund
pursuant to the Enhancement Agreement or any agreement contemplated thereby
(although -- as a matter solely (i) between (ii) for the benefit of and (iii)
enforceable by, the Pension Fund, the Bank and persons claiming by, through or
under them, respectively, the Pension Fund and the Bank expressly intending
that there shall be no third party beneficiaries of this declaration and
acknowledgment -- the Pension Fund and the Bank specifically declare and
acknowledge that all of the Pension Fund's liens and security interests in the
Collateral are intended to be, and are, subordinate and inferior to the Bank's
by reason of (1) subrogation of the Bank to, and/or assignment by Comerica Bank
to the Bank of, Comerica Bank's prior perfected security interests in the
Collateral (other than the Eligible Residuals and related property and rights),
(2) the filing in all relevant Uniform Commercial Code filing offices of the
Bank's financing statements prior in time to filing of the Pension Fund's
financing statements in respect of all Collateral of a type in which Comerica
Bank did not have a security interest or (3) possession by (x) the Bank of all
Collateral that is of a type in which perfection may be achieved by possession
and of which the Bank has possession, first for the Bank's own account and only
secondarily as bailee for the Pension Fund or (y) any bailee of all Collateral
that is of a type in which perfection may be achieved by possession and of
which the Bank's bailee has possession pursuant to contractual arrangements
between such bailee and the Bank (or among such bailee, the Bank and the
Pension Fund) that the bailee holds possession of such Collateral primarily for
the Bank, as holder of the first, senior and superior security interest and
right to control such Collateral, and secondarily for the Pension Fund, whose
security interests and control rights in respect thereto are subordinate to the
Bank's); and
8
<PAGE> 73
(c) after the Obligations are irrevocably paid in full or, if
sooner, the Pension Fund shall have finally and irrevocably paid the Purchase
Price in full to the Bank.
3.3 No Commencement of Proceedings. In furtherance of the
subordination provided above, the Pension Fund hereby agrees that, until (i)
the Obligations are irrevocably paid in full or, (ii) if sooner, the Pension
Fund shall have finally and irrevocably paid the Purchase Price in full to the
Bank, it shall not commence, or join with any creditor other than the Bank in
commencing, any proceeding for the dissolution, winding up, liquidation,
arrangement, reorganization, adjustment or composition of any Borrower or its
debts, whether in any bankruptcy, insolvency, arrangement, reorganization,
receivership, relief or similar proceedings or upon an assignment for the
benefit of creditors or any other marshaling of the assets and liabilities of
any Borrower or otherwise, nor will it commence any litigation for the
collection of any debt or other liability owed by any or all Borrowers to the
Pension Fund arising under the Enhancement Agreement or the agreements
contemplated thereby if such litigation could, in the opinion of the Bank, have
a material adverse effect on the business, operations, properties, condition
(financial or otherwise) or prospects of any or all Borrowers.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The Pension Fund represents and warrants to the Bank that:
4.1 Existence and Power. The Pension Fund (a) is duly organized,
validly existing and in good standing under the laws of the State of Michigan,
and has the power and authority to own its properties and assets and to carry
out its business as now being conducted, (b) is qualified to do business and is
in good standing in every jurisdiction wherein such qualification is necessary
and the failure to be so qualified would have a Material Adverse Effect, and (c)
has the power and authority to execute, deliver and perform this Agreement,
including without limitation to purchase the Revolving Credit Note in accordance
with the terms hereof.
4.2 Authorization and Approvals. The execution, delivery and
performance of this Agreement by the Pension Fund (a) have been duly authorized
by all requisite action of the Pension Fund, (b) do not require registration
with or consent or approval of, or other action by, any federal, state or other
governmental authority or regulatory body, or, if such registration, consent or
approval is required, the same has been obtained and disclosed in writing to
the Bank, (c) will not violate, conflict with or constitute (with or without
notice or passage of time, or both) a default under, any provision of
applicable Law (including any rule or regulation and any order of any court or
other agency of government), the organizational documents of the Pension Fund,
any provision or any contract, mortgage, indenture, note, agreement, lease or
other instrument to which the Pension Fund is a party, or by which it or any of
its properties or assets are bound, provided the obligations of the Pension
Fund under the Note Purchase Agreement dated April 30, 1993 between Comerica
Bank and the Pension Fund, as amended (the "Comerica Note Purchase Agreement")
are terminated by reason of the final, irrevocable payment in full of the
"Obligations", as defined in the Comerica Note
9
<PAGE> 74
Purchase Agreement, and (d) will not result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Pension Fund other than in favor of the Bank and as
contemplated hereby. The Pension Fund has not otherwise failed to obtain any
consent, approval, license, permit, franchise or other governmental
authorization necessary to the ownership of its properties or the conduct of
its business which failure would have a Material Adverse Effect.
4.3 Valid and Binding Agreement. This Agreement is the legal, valid
and binding obligation of the Pension Fund enforceable in accordance with its
terms.
4.4 Actions, Suits or Proceedings. Except as disclosed in the
attached Schedule 4.4, there are no actions, suits or proceedings, at law or in
equity, and no proceedings before any arbitrator or by or before any
governmental commission, board, bureau, or other administrative agency,
pending, or, to the best knowledge of the Pension Fund, threatened against or
affecting the Pension Fund or any of its properties or rights which, if
adversely determined, could, individually or collectively, materially impair
the right of the Pension Fund to carry on business substantially as now
conducted or could result in a Material Adverse Effect.
4.5 Financial Condition. The unaudited financial statements of the
Pension Fund for the fiscal year ended June 30, 1996 (including any related
schedules or notes), which have been delivered to the Bank have been prepared
in accordance with generally accepted accounting principles, consistently
applied, and present fairly the financial condition and results of operations
of the Pension Fund as of the dates and for the periods indicated. There has
been no material adverse change in the business, operations, properties or
condition (financial or otherwise) of the Pension Fund since June 30, 1996.
SECTION 5. COVENANTS
From the date of this Agreement until the earlier of the date on which the
Obligations are irrevocably paid in full or the date on which the Pension Fund
shall have finally and irrevocably paid the Purchase Price in full to the Bank,
the Pension Fund covenants and agrees that it will:
5.1 Financial and Other Information.
(a) Annual Financial Reports. Furnish to the Bank, as soon as
reasonably possible after the close of each fiscal year of the Pension Fund,
beginning with the fiscal year ending June 30, 1996, financial statements of
the Pension Fund containing the Pension Fund's balance sheet as of the close of
each such fiscal year and a statement of income for each such fiscal year, and
such other comments and financial details as are usually included in these
reports. Such reports shall be prepared in accordance with generally accepted
accounting principles, consistently applied.
10
<PAGE> 75
(b) Adverse Events; Defaults. Promptly inform the Bank of the
occurrence of any act, circumstance or event, including any litigation, which
could reasonably be expected to have a Material Adverse Effect or of any
default by the Pension Fund of any obligation hereunder.
(c) Notice Under the Enhancement Agreement. Furnish to the
Bank, simultaneously with the delivery thereof to MCAFC, MCAMC or MCA, a copy
of any report, valuation or notice of default delivered by the Pension Fund
under the Enhancement Agreement to MCAFC, MCAMC or MCA.
(d) Other Information as Requested. Promptly furnish to the
Bank such other information regarding the operations, business, properties and
financial condition of the Pension Fund as the Bank may reasonably request from
time to time.
5.2 No Amendment of Enhancement Agreement. Not less than ten (10)
Business Days prior to amending, supplementing or modifying the Enhancement
Agreement or any agreement contemplated thereby, notify the Bank, in writing,
of such proposed amendment, supplement or modification; provided, however, that
no such amendment, supplement or modification shall become effective without
the Bank's prior written consent if, in the Bank's opinion, such amendment,
supplement or modification would materially and adversely affect the Bank; and
provided further that this prior notification requirement shall not apply to
any UCC financing statement, acknowledgment agreement with FHLMC, FNMA or GNMA,
amendment to Annex 1 to the Enhancement Agreement, amendment to Schedule 1
delivered from time to time under the Master Security Agreement contemplated
under the Enhancement Agreement or supplemental security agreement in the form
of Exhibit A to such Master Security Agreement, to the extent any of the
foregoing merely adds to, substitutes or removes any collateral or obligors
covered by such master Security Agreement, so long as a copy of any such
document is furnished to the Bank as soon as reasonably possible after
execution and delivery thereof. The Pension Fund further agrees to promptly
inform the Bank if it extends any enhancement of credit of MCAFC, MCAMC or MCA
for the benefit of any third party.
5.3 Enhancement Agreement Remedies. Not less than five (5) Business Days
prior to exercising any right or remedy available to the Pension Fund upon any
Enhancement Agreement Event of Default, notify the Bank, in writing, of the
existence of such Event of Default and the right or remedy that the Pension
Fund intends to exercise as a result thereof. The Pension Fund will not
exercise any right or remedy upon the occurrence of an Enhancement Agreement
Event of Default unless such right or remedy is specifically described in the
foregoing written notice. Notwithstanding any requirement set forth in this
Section 5.3, the Pension Fund may, by written notice to MCAFC, MCAMC, MCA and
the Bank, declare that the Pension Fund's credit enhancement shall not be
available with respect to any request for advances under the Credit Agreement
received by the Bank subsequent to the first Business Day after the Bank's
receipt of such written notice from the Pension Fund; thereafter, no Borrower
shall have the right to borrow under the Credit Agreement and the Bank shall
make no further loans thereunder.
11
<PAGE> 76
5.4 Further Assurances. Execute and deliver, promptly after request
therefor by the Bank, all further instruments and documents and take all
further action that may be necessary or desirable, or that the Bank may
reasonably request, in order to give effect to, and to aid in the exercise and
enforcement of the rights and remedies of the Bank under, this Agreement.
SECTION 6. OTHER AGREEMENTS AND ACKNOWLEDGMENTS
6.1 Waiver of Subrogation. Until the earlier of the date the
Obligations are irrevocably paid in full or the Pension Fund shall have finally
and irrevocably paid the Purchase Price in full to the Bank, the Pension Fund
hereby (a) waives any and all rights to be subrogated to the position of the
Bank or to have the benefit of any lien, security interest or guaranty now or
later held by the Bank for the Obligations or to enforce any remedy which the
Bank now or later has against any Borrower or any other person, and (b)
disclaims any right of reimbursement, indemnity, contribution or other right of
recourse to or with respect to any Borrower or any other person on account of
any of the Obligations arising out of the Credit Agreement, this Agreement or
any other Loan Document.
6.2 Acknowledgment of No Reliance on Bank. The Pension Fund
hereby acknowledges that, in connection with its decision to execute and deliver
this Agreement: (a) the Bank has made no representations to the Pension Fund as
to the creditworthiness of any or all Borrowers and (b) the Pension Fund has
made its own independent investigation of the financial condition of the
Borrowers and will obtain from the Borrowers on a continuing basis such
financial and other information pertaining to the Borrowers' business,
properties, operations and financial condition as it deems appropriate from time
to time. Except as otherwise set forth in Section 7 of this Agreement, the
Pension Fund waives any duty on the part of the Bank, and agrees that it is not
relying upon nor expecting the Bank, to disclose to the Pension Fund any fact
now or later known by the Bank, whether relating to the operations or condition
of any or all Borrowers, the existence, liabilities or financial condition of
any guarantor, or otherwise, notwithstanding any effect these facts may have
upon the Pension Fund's risk under this Agreement.
6.3 Bank Agreements.
(a) The Bank represents and warrants to the Pension Fund that
the execution, delivery and performance of this Agreement by the Bank (a) have
been duly authorized by all requisite action of the Bank, (b) do not require
registration with or consent or approval of, or other action by, any federal,
state or other governmental authority or regulatory body, and (c) will not
violate, conflict with or constitute (with or without notice or passage of
time, or both) a default under, any provision of Law (including any rule or
regulation and any order of any court or other agency of government) or the
organizational documents of the Bank.
(b) Until the earlier of the date the Obligations are
irrevocably paid in full or the date the Pension Fund has finally and
irrevocably paid the Purchase Price to the Bank: (i) the Bank
12
<PAGE> 77
shall furnish to the Pension Fund, promptly after the delivery thereof to
MCAFC, MCAMC or MCA, a copy of any report, valuation or notice of default
delivered by the Bank under any Loan Document to a Borrower; and (ii) not less
than ten (10) Business Days prior to amending, supplementing or modifying the
Credit Agreement or any other Loan Document, or exchanging or releasing any
Collateral or waiving any term of any Loan Document, notify the Pension Fund,
in writing, of such proposed amendment, supplement, modification, exchange,
release or waiver; provided, however, that no such amendment, supplement,
modification, exchange, release or waiver shall become effective without the
Pension Fund's prior written consent if, in the Pension Fund's opinion, such
amendment, supplement, modification, exchange, release or waiver would
materially and adversely affect the Pension Fund.
(c) The Bank acknowledges that, for the purpose of maintaining
perfection of the Pension Fund's security interest -- which the Bank and the
Pension Fund intend to be and remain subordinate to the Bank's security
interest until the earlier of the date the Borrowers' Obligations to the Bank
shall have been fully paid and satisfied or the date the Pension Fund shall
have finally and irrevocably paid the Purchase Price in full to the Bank -- in
such of the Collateral as the Borrowers have granted or may grant the Pension
Fund a security interest and as shall be in the Bank's possession or control
from time to time, the Bank shall be bailee for the Pension Fund of any
securities and instruments of transfer related thereto and the "Securities
Account" as defined in the Security Agreement and any such other items of
Collateral delivered to the Bank, and, upon final and irrevocable payment of
the Purchase Price, the Bank will deliver all such Collateral to the Pension
Fund pursuant to the provisions of Section 2.1(d) of the Note Purchase
Agreement.
6.4 Other Agreements with the Borrowers. Each party will promptly
inform the other party of any borrowing or other contractual arrangement or
agreement entered into with any Borrower, other than the Credit Agreement or
the Enhancement Agreement and the arrangements and other agreements
contemplated thereunder, and provide such information relating to such new
arrangement or agreement as such other party shall reasonably request. In
connection with the foregoing, the Bank hereby informs the Pension Fund that
MCAFC, MCAMC and MCA currently have (a) a Warehouse Loan Agreement dated as of
September 3, 1996 with the Bank, as a lender and as agent for other lenders, as
supplemented, amended or restated from time to time, currently providing (i) an
$85 million revolving warehouse line of credit for A and B/C mortgage loans
with Gestation, Jumbo, Repurchase, Land Contract, Wet, Second Lien and Indirect
Warehousing Sublines and (ii) a $30 million revolving credit Seasoned Loans
revolving line of credit with a Foreclosure/REO/Repurchase Loans Subline, thus
providing an aggregate commitment to lend up to $115 million or principal
outstanding from time to time on a revolving credit basis, and (b) various
custodial and escrow deposit relationships with the Bank. In connection with
the foregoing, the Pension Fund hereby informs the Bank that MCAFC, MCAMC, MCA
and certain other related entities currently have the Loan and Financing
Agreement dated July 18, 1996 providing for a Fifteen Million Dollar
($15,000,000) unsecured loan.
13
<PAGE> 78
6.5 Pledge of Collateral. The Bank agrees that, upon the Pension
Fund's irrevocable and final payment of the Purchase Price to the Bank, all of
the Bank's liens and security interests in and to the Collateral that secure
any of the Obligations will automatically terminate -- or, if before the Bank
has executed a release thereof, the Pension Fund shall give written notice to
the Bank that the Pension Fund elects to accept assignment of the Bank's liens
and security interests in the Collateral, the Bank will assign them to the
Pension Fund without recourse to or representation or warranty by the Bank
other than that such liens and security interests will be transferred to the
Pension Fund free and clear of any pledge, security interest or other interest
of any third party, including any participant in the Revolving Credit Note,
created or consented to by the Bank -- and the Bank will execute and deliver to
the Pension Fund such papers as the Pension Fund shall reasonably request or
require to evidence or give notice of (i) such termination and the Bank's
release of such liens and security interests or (ii) such assignment (as the
case may be). The Bank agrees that none of the Collateral will be pledged to
secure any obligation of the Borrowers to the Bank other than the Obligations
arising under the Loan Documents and all other agreements, documents and
instruments (if any) related thereto. The Pension Fund agrees that none of the
Collateral will be pledged to secure any obligations of the Borrowers to the
Pension Fund other than those arising under the Enhancement Agreement and all
other agreements, documents and instruments related thereto.
6.6 Valuation of Eligible Residuals. The Bank and the Pension Fund
agree that the Pension Fund's consultant (currently Plante & Moran, LLP) may
discuss with the Bank's Eligible Residuals valuation consultant from time to
time the criteria and methodology used or proposed to be used by such valuation
consultant to determine its valuation of the Borrowers' Eligible Residuals
against which Revolving Loans will be made or have been made, and the Bank
agrees to give the Pension Fund's said consultant fifteen (15) days' advance
notice of any proposed material change in such criteria and/or methodology
before it is implemented. If the Pension Fund's said consultant retains a
valuation consultant to value the Borrowers' Eligible Residuals and such
valuation consultant's valuation thereof is lower than the lower of the
valuations made pursuant to the Credit Agreement by the Borrowers and by the
Bank's valuation consultant, then the Borrowers, the Bank and the Pension
Fund's said consultant will promptly attempt to resolve such difference. If a
resolution cannot be reached within five (5) Business Days of the first written
invitation from either the Borrowers, the Bank or the Pension Fund's said
consultant to the others of them to attempt to resolve such difference, the
Pension Fund's valuation consultant's valuation shall be conclusive and binding
and used as the valuation of the Eligible Residuals pursuant to Section 6.13 of
the Credit Agreement.
SECTION 7. NOTIFICATIONS; CURE
7.1 Notice of Defaults. If either the Pension Fund or the Bank
becomes aware of any fact, situation or circumstance which such party
reasonably believes may become an Enhancement Agreement Event of Default (in
the case of the Pension Fund) or a Credit Agreement Event of Default (in the
case of the Bank), including a default under either such agreement, such party
shall promptly give notice of such fact, situation or circumstance to the other
party. Furthermore, if an
14
<PAGE> 79
Enhancement Agreement Event of Default or a Credit Agreement Event of Default
shall occur, either the Pension Fund (in the case of an Enhancement Agreement
Event of Default) or the Bank (in the case of a Credit Agreement Event of
Default) shall promptly give notice to the other party of such default.
Notwithstanding the foregoing, the failure to give any such notice required by
this Section 7.1 (other than in bad faith) shall not give rise to any liability
on the part of either party to the other party or any other person.
7.2 Form of Notice. All notices required to be given pursuant to
the terms of Section 7.1 hereof shall be given either by telephone or in
writing by telecopy to the address set forth in Section 9.10 hereof and shall
be deemed effective upon receipt thereof, or, in the case of a telecopy, upon
confirmation of receipt, by the party to whom such notice is given. All such
telephonic notices shall be confirmed promptly in writing in the manner set
forth in Section 9.10 hereof.
7.3 Consultations. Upon delivery and receipt of any notice required
to be given by the terms of Section 7.1 hereof, the Pension Fund and the Bank
agree that they shall use their best efforts to consult and cooperate with each
other regarding the Borrowers and the fact, situation or circumstance which
gave rise to such notice. This obligation to cooperate and consult, however,
shall impose no obligation on either party to take any action in conjunction
with, or only with the consent of, the other party or to reach any agreement
whatsoever with the other party with respect to any actions which may or must
be taken.
7.4 Cure of Payment Defaults. Upon the occurrence of a Credit
Agreement Event of Default which occurs as a result of any Borrower's failure
to pay any principal of or interest on the Revolving Loans when due, other than
a payment which is required solely by reason of acceleration upon the default
of a non-payment provision of the Loan Documents, the Bank agrees that the
Pension Fund shall have five (5) Business Days after receipt of the notice
required by the terms of Section 7.1 hereof regarding such Credit Agreement
Event of Default to cure such default. Upon the occurrence of a Credit
Agreement Event of Default which occurs as a result of any Borrower's failure
to make any payment under the Credit Agreement when due other than a payment of
principal of and interest on the Revolving Loans, the Bank agrees that the
Pension Fund shall have fifteen (15) days after receipt of the notice required
by the terms of Section 7.1 hereof regarding such Credit Agreement Event of
Default to cure such default. To effect any cure under this Section 7.4, the
Pension Fund must pay, or cause the Borrowers to pay, the Bank, in immediately
available funds, an amount equal to the amounts not paid by any Borrower when
due, together with interest thereon at the Default Rate specified in the
Revolving Credit Note. Notwithstanding the terms of the Credit Agreement, the
Revolving Credit Note or any other Loan Document, if the Pension Fund cures a
payment default pursuant to this Section 7.4, then the Bank will cease making
loans under the Credit Agreement but will otherwise waive the default;
provided, however, the Bank shall continue to make loans under the Credit
Agreement upon receipt from the Pension Fund of a written request to make
additional loans if such request includes the Pension Fund's affirmation of its
obligations under the Enhancement Agreement and this Agreement notwithstanding
such payment default and if no other Credit Agreement Events of Default have
occurred and are continuing.
15
<PAGE> 80
7.5 Standstill. Upon the occurrence of a Credit Agreement Event of
Default, the Bank agrees that during the Standstill Period (as defined below),
it shall not, without the consent of the Pension Fund, accelerate any of the
Obligations, foreclose or otherwise enforce any collateral security therefor or
otherwise attempt to enforce any of its rights or exercise any of its remedies
under the Credit Agreement, the other Loan Documents or applicable Law;
provided, however, that notwithstanding the foregoing, during the Standstill
Period, the Bank shall be entitled to enforce any rights or exercise any
remedies, each as described above, to the extent that any right or remedy would
be lost if not enforced or exercised prior to the end of the Standstill Period.
As used in this paragraph, "STANDSTILL PERIOD" means, as applicable, (a) the
cure periods set forth in Section 7.4 hereof with respect to those Credit
Agreement Events of Default identified in such section; (b) fifteen (15) days
following the occurrence of a Credit Agreement Event of Default if such default
occurs as a result of the Borrowers' failure to deliver to the Bank the
financial statements of all Borrowers and other information in accordance with
the terms of Section 6.1 of the Credit Agreement; and (c) thirty (30) days
following the occurrence of any Credit Agreement Event of Default other than
those identified in clauses (a) and (b) above. In the event a Credit Agreement
Event of Default is cured within the Standstill Period applicable thereto, then
the Bank will cease making loans under the Credit Agreement but will otherwise
waive the Event of Default; provided, however, the Bank shall continue to make
loans under the Credit Agreement upon receipt from the Pension Fund of a
written request to make additional loans if such request includes the Pension
Fund's affirmation of its obligations under the enhancement Agreement and this
Agreement notwithstanding such Event of Default and if no other Credit
Agreement Events of Default have occurred and are continuing.
7.6 Purchase of Note. Notwithstanding anything contained in this
Agreement to the contrary, upon the occurrence and during the continuation of a
default under the Credit Agreement or the Enhancement Agreement, the Pension
Fund may purchase the Revolving Credit Note by finally and irrevocably paying
the Purchase Price therefor, as calculated in accordance with Section 2.1
hereof. In order to purchase the Revolving Credit Note in accordance with this
Section 7.6, the Pension Fund shall promptly notify the Bank of its desire to
purchase the Revolving Credit Note and such purchase shall be consummated in
accordance with the terms of Section 2.1 hereof.
SECTION 8. EVENTS OF DEFAULT
8.1 Events of Default. The occurrence and continuation of any
of the following events ("EVENTS OF DEFAULT") shall constitute an Event of
Default under this Agreement:
(a) the Pension Fund shall fail to Purchase the Revolving
Credit Note as required under Section 2.1 hereof; or
(b) if any warranty or representation of the Pension Fund in
connection with or contained in this Agreement, or if any financial data or
other information now or hereafter furnished
16
<PAGE> 81
to the Bank by or on behalf of the Pension Fund, shall prove to be false or
misleading in any material respect and as a consequence there shall occur or
reasonably be expected to occur a Material Adverse Effect; or
(c) if the Pension Fund shall fail to perform, in the time and
manner required, any of its obligations or covenants under, or shall fail to
comply with any of the provisions of, this Agreement (other than the covenant
described in Section 8.1(a)), which failure is not cured within five (5) days
after the date of notice to the Pension Fund by the Bank of such default and as
a consequence there shall occur or reasonably be expected to occur a Material
Adverse Effect; or
(d) if the Pension Fund shall voluntarily suspend transaction
of its business or if the Pension Fund shall not pay its debts as they mature
or shall make a general assignment for the benefit of creditors; or proceedings
in bankruptcy, or for reorganization or liquidation of the Pension Fund under
the Bankruptcy Code or under any other state or federal law for the relief of
debtors, shall be commenced or shall be commenced against the Pension Fund and
shall not be discharged within thirty (30) days of commencement; or a receiver,
trustee or custodian shall be appointed for the Pension Fund or for any
substantial portion of its properties or assets under the Bankruptcy Code or
any other state or federal law for the relief of debtors; or a Michigan state
court or a federal court sitting in Michigan, exercising its equity powers,
shall enter a final order substituting another entity for the Board of Trustees
of the Pension Fund and giving that other entity the power to manage and invest
the Pension Fund's assets, and such order shall not be stayed or set aside
within thirty (30) days of its entry; or
(e) there shall have occurred any other Material Adverse
Effect.
8.2 Remedies. Upon the occurrence and at any time during the
continuation of any Event of Default, the Bank may proceed to protect and
enforce its rights either by suit in equity or by action at law or both,
whether for the specific performance of any covenant or agreement contained in
this Agreement or in any other Loan Document or in aid of the exercise of any
power granted in this Agreement or in any other Loan Document; or may proceed
to enforce the payment of the Obligations outstanding under the Revolving
Credit Note and the other Loan Documents in the manner set forth therein; or
may proceed to foreclose upon any liens granted pursuant to the Loan Documents
in the manner set forth therein; it being intended that no remedy conferred
herein or in any of the other Loan Documents is to be exclusive of any other
remedy, and each and every remedy contained herein or in any other Loan
Document shall be cumulative and shall be in addition to every other remedy
given hereunder and under the other Loan Documents or now or hereafter existing
at law or in equity or by statute or otherwise.
17
<PAGE> 82
SECTION 9. MISCELLANEOUS
9.1 Independent Rights. No single or partial exercise of any
right, power or privilege hereunder, or any delay in the exercise thereof, shall
preclude other or further exercise of the rights of the parties to this
Agreement.
9.2 Covenant Independence. Each covenant in this Agreement shall
be deemed to be independent of any other covenant, and an exception or
illegality in one covenant shall not create an exception or illegality in
another covenant.
9.3 Waivers and Amendments. No forbearance on the part of the
Bank in enforcing any of its rights under this Agreement, nor any renewal,
extension or rearrangement of any payment or covenant to be made or performed by
the Pension Fund hereunder, shall constitute a waiver of any of the terms of
this Agreement or of any such right. No Event of Default shall be waived by the
Bank except in a writing signed and delivered by an officer of the Bank, and no
waiver of any Event of Default shall operate as a waiver of any other Event of
Default or of the same Event of Default on a future occasion. No other
amendment, modification or waiver of, or consent with respect to, any provision
of this Agreement or other documents contemplated hereby shall be effective
unless the same shall be in writing and signed and delivered by an officer of
the Bank.
9.4 Governing Law. This Agreement, and each and every term and
provision hereof, shall be governed by and construed in accordance with the
internal law of the State of Texas (without regard to or application of its
conflicts of laws rules). If any provisions of this Agreement shall for any
reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision hereof, but this Agreement shall be
construed as if such invalid or unenforceable provisions had never been
contained herein.
9.5 Survival of Warranties. All of the Pension Fund's and the
Bank's covenants, agreements, representations and warranties made in connection
with this Agreement and any document contemplated hereby shall survive the
execution and delivery of this Agreement.
9.6 Expenses. Each party agrees that, upon demand, it will pay,
or reimburse the other party for, all costs and expenses incurred by such other
party in connection with or resulting from the failure of the first party to
observe its obligations under this Agreement including without limitation court
costs, reasonable attorneys' fees (whether in-house or outside counsel is used,
whether legal assistants are used, and whether such costs are incurred in
negotiations, formal or informal collection actions, federal bankruptcy
proceedings, on appeal or otherwise) and all other costs and expenses incurred
by such other party in connection with such other party's enforcement of its
rights and remedies under this Agreement.
9.7 Binding Effect. This Agreement shall inure to the benefit of
and shall be binding upon the parties hereto and their respective successors and
assigns; provided, however, that neither
18
<PAGE> 83
party may assign or transfer its rights or obligations hereunder without the
prior written consent of the other party, except the Bank may assign to one or
more commercial banks participations aggregating up to forty-nine percent (49%)
of the loans under the Credit Agreement and a pro rata interest in the Bank's
rights and remedies under this Agreement.
9.8 Disclosure of Information. The Pension Fund authorizes the
Bank to disclose to any participant or permitted assignee or successor (each, a
"TRANSFEREE") and any prospective Transferee any and all financial and other
information in the Bank's possession concerning the Pension Fund which has been
delivered to the Bank by the pension Fund pursuant to this Agreement.
9.9 Confidentiality. The Bank agrees that it will not disclose to
any third party, except pursuant to Section 9.8 above and then only if such
Transferee or prospective Transferee has executed an agreement to keep
confidential that information to the same extent as if it were the Bank
hereunder, any of the terms of this Agreement or any financial information or
other information acquired by the Bank hereunder concerning the Pension Fund.
9.10 Notices. All notices and communications provided for herein
(except those provided for in Section 7.1 hereof) or in any document
contemplated hereby or required by Law to be given shall be in writing (unless
expressly provided to the contrary) and, if personally delivered, effective when
delivered at the address below (including if by telecopy upon confirmation of
receipt) or, in the case of mailing, effective two (2) days after sending by
first-class mail, postage prepaid, addressed as follows:
(a) If to the Pension Fund, to:
Plante & Moran, LLP
27400 Northwestern Highway, Ste. 300
Southfield, Michigan 48037-0307
Attention: Jon Woods or Larry Cooley
Telephone No.: (248) 827-0466
Telecopy No.: (248) 352-0018
with copies to:
Board of Trustees of the Policemen and Firemen Retirement
System of the City of Detroit
908 City-County Building
Detroit, Michigan 48226
Attention: Executive Secretary
Telephone No.: (313) 224-3362
Telecopy No.: (313) 224-3522
19
<PAGE> 84
and
Ronald Zajac, Esq.
243 West Congress, Suite 480
Detroit, Michigan 48226
Telephone No.: (313) 961-6342
Telecopy No.: (313) 961-6559
(b) if to the Bank, to:
Texas Commerce Bank National Association
712 Main Street
Houston, Texas 77002 (for messenger deliveries)
P. O. Box 2558
Houston, Texas 77252 (for mail deliveries)
Attention: Ms. Pamela E. Skinner
Telephone No.: (713) 216-5382
Telecopy No.: (713) 216-2082
or to such other address as a party shall have designated to the other in
writing in accordance with this section. The giving of at least three (3)
days' notice before the Bank shall take any action described in any notice
shall conclusively be deemed reasonable for all purposes; provided, however,
that this shall not be deemed to require the Bank to give five (5) days' notice
or any notice if not specifically required in this Agreement; and provided
further that this shall not modify the Bank's notice obligations as set forth
in this Agreement.
9.11 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures were upon the same
instrument.
9.12 Headings. Section headings in this Agreement are included for
the convenience of reference only and shall not constitute a part of this
Agreement for any purpose.
9.13 Integration. This Agreement embodies the entire agreement and
understanding between the Pension Fund and the Bank, and supersedes all prior
agreements and understanding, relating to the subject matter hereof.
9.14 Termination of Agreement. Except as otherwise set forth herein
with respect to continuing rights and obligations, or upon the mutual agreement
of the parties, the rights and obligations under this Agreement shall terminate
if and when either (i) the Obligations are irrevocably paid in full or (ii) the
irrevocable consummation of the Purchase, including the Pension Fund's final
and irrevocable payment of the Purchase Price in full to the Bank and
endorsement and delivery by the Bank of the documents referred to in Section
2.1(d) of this Agreement.
20
<PAGE> 85
9.15 Limitation of Liability. Neither the Bank nor any of its
Affiliates, directors, officers, agents, attorneys or employees shall be liable
to the Pension Fund or any of its Affiliates for any action taken, or omitted
to be taken, by it or them or any of them under this Agreement, the Credit
Agreement or any other Loan Document or in connection herewith or therewith,
except that no person shall be relieved of any liability imposed by Law for
gross negligence or willful misconduct. No claim may be made by the Pension
Fund or any of its Affiliates against the Bank, or any of its Affiliates,
directors, officers, agents, attorneys or employees, for any special, indirect,
consequential or punitive damages in respect of any breach or wrongful conduct
(whether the claim is based on contract or tort or duty imposed by Law) arising
out of or related to this Agreement, the Credit Agreement or any other Loan
Document, or the transactions contemplated hereby or thereby, or any act,
omission or event occurring in connection herewith or therewith. No claim may
be made by the Bank or any of its Affiliates against the Pension Fund, or any
of its Affiliates, trustees, officers, agents, attorneys or employees, for any
special, indirect, consequential or punitive damages in respect of any breach
or wrongful conduct (whether the claim is based on contract or tort or duty
imposed by Law) arising out of or related to this Agreement, the Credit
Agreement or any other Loan Document, or the transactions contemplated hereby
or thereby, or any act, omission or event occurring in connection herewith or
therewith. The Pension Fund hereby waives, releases and agrees not to sue upon
any claim for any such damages, whether or not accrued, and whether or not
known or suspected to exist in its favor. Notwithstanding anything to the
contrary in this Section 9.15, the Pension Fund shall have the right to bring a
claim against the Bank for damages directly incurred by the Pension Fund as a
result of either (i) any material breach by the Bank of any representation and
warranty or any agreement made by the Bank in this Agreement or (ii) a claim or
defense made against the Pension Fund by any Borrower or by any creditor of any
Borrower alleging failure by the Bank, prior to the transfer of the Revolving
Credit Note and the other Loan Documents to the Pension Fund as provided in
this Agreement, to perform any obligation to a Borrower, causing loss, cost,
damage or expense to such Borrower or creditor, it being acknowledged and
agreed by the Pension Fund, however, that (1) any breach by the Bank of any
such representation, warranty, agreement, obligation or liability shall not
constitute a defense to nor excuse the Pension Fund's obligations under this
Agreement to pay the Purchase Price to the Bank under the circumstances and at
the time required by this Agreement and (2), as more fully stated in Section
2.1(e) of this Agreement, it is a condition precedent to the Pension Fund's
right to assert in any Tribunal any claim or defense against the Bank based
upon any such breach that the Pension Fund shall have first, irrevocably and
finally paid the full Purchase Price to the Bank.
9.16 No Third Party Beneficiaries. This Agreement is not intended
to, nor will it, confer upon any person (other than the parties hereto and
their permitted successors and assigns), including any Borrower, any rights or
remedies.
9.17 WAIVER OF JURY TRIAL. THE BANK AND THE PENSION FUND, AFTER
CONSULTING WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BETWEEN THEM
BASED UPON OR ARISING OUT OF THIS AGREEMENT
21
<PAGE> 86
OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF
CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY OF
THEM. NEITHER THE BANK NOR THE PENSION FUND SHALL SEEK TO CONSOLIDATE, BY
COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY THE BANK NOR THE PENSION FUND EXCEPT BY A WRITTEN
INSTRUMENT EXECUTED BY ALL OF THEM.
IN WITNESS WHEREOF, the Pension Fund and the Bank have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first written above.
THE BOARD OF TRUSTEES OF THE POLICEMEN AND
FIREMEN RETIREMENT SYSTEM OF THE CITY OF
DETROIT
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By:
---------------------------------------
Name:
---------------------------------------
Vice President
22
<PAGE> 87
SCHEDULE 4.4
TO NOTE PURCHASE AGREEMENT
LITIGATION
None.
<PAGE> 88
EXHIBIT C
REVOLVING CREDIT NOTE
$28,500,000 Houston, Texas June ___, 1997
FOR VALUE RECEIVED, the undersigned, jointly and severally, promise to pay
to the order of TEXAS COMMERCE BANK NATIONAL ASSOCIATION (the "BANK") at its
main branch office at 712 Main Street in the City of Houston, Harris County,
Texas on June ___, 1998, the principal sum or so much of the principal sum of
Twenty-eight Million Five Hundred Thousand Dollars ($28,500,000) as may from
time to time have been advanced and be outstanding under that certain Revolving
Credit Loan Agreement dated June ___, 1997, among the undersigned and the Bank
(the "AGREEMENT"), plus all accrued but unpaid interest thereon. Capitalized
terms used herein and not otherwise defined shall have their respective
meanings set forth in the Agreement. The Agreement, as it may be supplemented,
amended or restated from time to time, is by this reference incorporated herein
and hereby made a part thereof.
The unpaid principal amount of this Note from time to time outstanding
shall bear interest at the Contract Rate until the Termination Date, and
thereafter at the Default Rate, as those rates respectively may change from
time to time. During the period that any Event of Default has occurred and is
continuing, at the election of the Bank, this Note shall bear interest (without
duplication of calculation or payment) at the Default Rate. Notwithstanding
any increase in the interest rate hereunder, whether as a result of the failure
to make any payment when due or the occurrence of an Event of Default, the
interest rate in effect hereunder shall in no event exceed the Ceiling Rate.
This Note is a revolving credit note under which sums may or must be
repaid from time to time and under which new advances are to be made by the
Bank pursuant to the terms and conditions of the Agreement, and the books and
records of the Bank shall, absent manifest error, constitute the best evidence
of the amount of the indebtedness at any time owing hereunder. The undersigned
makers of this Note and the Bank expressly agree, pursuant to Article 15.10(b)
of Chapter 15 ("CHAPTER 15") of the Texas Credit Code, that Chapter 15 (which
relates to open-end line of credit revolving loan accounts) shall not apply to
this note or to any loan evidenced by this note and that neither this note nor
any such loan shall be governed by Chapter 15 or subject to its provisions in
any manner whatsoever.
Unpaid interest accrued through the last day of the preceding calendar
month shall be due and payable on the fifteenth (15th) day of each consecutive
calendar month, beginning June 15, 1997, until maturity (whether at stated
maturity, by acceleration or otherwise) and, thereafter, on demand. Principal
shall be due and payable as provided in the Agreement; provided that on the
Termination Date, or on the earlier date, if any, to which the maturity of this
Note may be
<PAGE> 89
accelerated pursuant to the Agreement, all advanced and unpaid principal of
this Note and all accrued and unpaid interest on this Note, then outstanding
shall be immediately due and payable.
This Note is secured by the Collateral described in the Agreement and in
the Security Agreement. Reference to the Agreement is made for, among other
things, the conditions under which this Note may or must be paid in whole or in
part prior to its due date or its due date may be accelerated. The Bank is
hereby granted a security interest in all property of any of the undersigned at
any time in the possession of the Bank or any Affiliate of the Bank (or as to
which the Bank or any Affiliate of the Bank at any time controls possession by
documents or otherwise) and in all balances of deposit or other accounts
(including without limit an account evidenced by a certificate of deposit but
not including escrow or custodial accounts) of any of the undersigned from time
to time with the Bank or any Affiliate of the Bank.
If an Event of Default occurs and is not cured within the time, if any,
provided for by the Agreement, the Bank may exercise any one or more of the
rights and remedies granted by the Agreement or any document contemplated
thereby (including the Security Agreement and the Note Purchase Agreement) or
given to a secured party under applicable Law, including without limit the
right to accelerate or demand repayment of this Note and any of the other
Obligations, any may set off against the principal of and interest on this Note
or against any of the other Obligations (i) any amount owing by the Bank to any
of the undersigned, (ii) any property of any of the undersigned at any time in
the possession of the Bank or any Affiliate of the Bank and (iii) any amount in
any deposit or other account (including without limit an account evidenced by a
certificate of any of deposit) of the undersigned with the Bank or any
Affiliate of the Bank; provided that this right of set- off shall not apply to
any funds held in escrow or custodial accounts maintained by any of the
undersigned with the Bank or any Affiliate of the Bank.
The undersigned and all guarantors and indorsers (i) waive presentment,
demand, protest and notice of dishonor, notice of intent to accelerate, notice
of acceleration and (except as otherwise specifically provided in the
Agreement) all other notices, (ii) agree that no extension or indulgence to the
undersigned or release or non-enforcement of any security, whether with or
without notice, shall affect the obligations of any guarantor or indorser, and
(iii) agree to reimburse the holder of this Note for any and all costs and
expenses incurred in collecting or attempting to collect any and all principal
and interest under this Note (including, but not limited to, court costs and
reasonable attorney fees, whether in-house or outside counsel is used and
whether such costs and expenses are incurred in formal or informal collection
actions, federal bankruptcy proceedings, appellate proceedings, probate
proceedings, or otherwise).
2
<PAGE> 90
This note shall be governed by and construed in accordance with the laws
of the State of Texas, without regard to or application of its conflict of laws
rules.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: By:
--------------------------- -------------------------------------
Name: Name:
------------------------- -----------------------------------
Title: Title:
------------------------ ----------------------------------
MORTGAGE CORPORATION
OF AMERICA
By:
-----------------------------
Name:
--------------------------
Title:
--------------------------
3
<PAGE> 91
EXHIBIT D
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("AGREEMENT"), dated June ___, 1997, is made by
MCA FINANCIAL CORP. ("MCAFC"), MCA MORTGAGE CORPORATION, formerly known as
Mortgage Corporation of America ("MCAMC"), and MORTGAGE CORPORATION OF AMERICA,
formerly known as First American Mortgage Associates, Inc. ("MCA", MCAFC, MCAMC
and MCA each being referred to herein as "DEBTOR" and collectively, as
"DEBTORS") in favor of TEXAS COMMERCE BANK NATIONAL ASSOCIATION ("BANK"), as
secured party.
Recitals
A. MCAFC is the parent corporation, direct or indirect, of each of MCAMC
and MCA.
B. Debtors have requested extensions of credit from Bank and Bank has
agreed to extend such credit to Debtors on the terms of a Revolving Credit Loan
Agreement dated June ___, 1997 (such agreement, as amended, modified or
supplemented from time to time, is referred to herein as the "CREDIT
AGREEMENT").
C. It is a condition precedent to the obligations of Bank to extend
credit to Debtors under the Credit Agreement that each Debtor shall have
entered into this Agreement.
THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Debtor hereby agrees with Banks as follows:
1. Credit Agreement. In addition to those terms defined
elsewhere in this Agreement, terms defined in the Credit Agreement shall have
their defined meanings when used herein (unless otherwise defined herein).
2. Defined Terms. In addition to those terms defined
elsewhere in this Agreement, the following terms shall have the following
meanings, unless the context otherwise requires:
"ACCOUNT DEBTOR" shall have the meaning provided in Section 7.
"ACCOUNTS" means any "account" or "chattel paper," as such terms are
defined in Sections 9.106 and 9.105, respectively, of the UCC, relating to the
Servicing Rights, now or hereafter owned by any Debtor, and shall also mean and
include (i) all accounts receivable, contract rights, book debts, notes, drafts
instruments, documents, acceptances and other forms of obligations relating to
the Servicing Rights, now owned or hereafter received or acquired by or
belonging or owing to any
<PAGE> 92
Debtor (including under any trade names, style or divisions thereof) whether
arising out of services rendered by such Debtor or from any other transaction
(including, without limitation, any such obligation which might be
characterized as an account, contract right, general intangible or chattel
paper under the Uniform Commercial Code in effect in any jurisdiction); (ii)
all of any Debtor's rights in, to and under all purchase orders relating to the
Servicing Rights, now owned or hereafter received or acquired by it for
services; and (iii) all monies due to or to become due to Debtor under all
contracts relating to the Servicing Rights for the performance of services by
it (whether or not yet earned by performance on the part of Debtor), now in
existence or hereafter arising, including, without limitation, the right to
receive the proceeds of such purchase orders and contracts and all collateral
security and guarantees of any kind given by any Person with respect to any of
the foregoing.
"CHATTEL PAPER" means all "chattel paper," as such term is defined in
Section 9.105(2) of the UCC, relating to the Servicing Rights, now or hereafter
owned by any Debtor.
"COLLATERAL" shall have the meaning provided in Section 3.
"COLLATERAL BUSINESS RECORDS" means and includes all of each Debtor's
books and records pertaining to any or all of the Collateral, including without
limitation, all books of accounts, ledgers, computer software, computer
printouts and other computerized records and cabinets in which there are
reflected or maintained the Collateral in which Bank has a security interest,
or which relate to any other Collateral Bank may hold from Debtor and all
supporting evidence and documents relating to such security in the form of
written applications, credit information, account cards, loan histories,
payment records, correspondence, invoice copies, delivery receipts, notes and
other evidences of indebtedness, insurance certificates and the like.
"CONTRACT RIGHTS" means all rights of any Debtor (including, without
limitation, all rights to payment) under each Contract.
"CONTRACTS" means, collectively, any and all contracts, instruments,
undertakings, documents or other agreements relating to the Servicing Rights in
or under which any Debtor may now or hereafter have any right, title or
interest, as any of the same may from time to time be amended, supplemented or
otherwise modified.
"GENERAL INTANGIBLES" means all "general intangibles," as such term is
defined in Section 9.106 of the UCC, relating to the Servicing Rights, now or
hereafter owned by any Debtor, including, without limitation, all tax refunds,
customer lists, rights in intellectual property, goodwill, trade names, service
marks, trade secrets, patents, trademarks, copyrights, applications therefor,
permits and licenses now owned or hereafter acquired by such Debtor, but
excluding items described in the definition of "ACCOUNTS."
2
<PAGE> 93
"INSTRUMENTS" means all "instruments," as such term is defined in Section
9.105(9) of the UCC, relating to the Servicing Rights, now or hereafter owned
by any Debtor.
"PAYDOWN" shall have the meaning provided in Section 21.
"PROCEEDS" shall have the meaning provided it under the UCC and, in any
event, shall include, but not be limited to, (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to any Debtor from time to
time with respect to any of the Collateral, (ii) any and all payments (in any
form whatsoever) made or due and payable to any Debtor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental body,
authority, bureau or agency (or any Person acting under color of governmental
authority) and (iii) any and all other amounts from time to time paid or
payable under or in connection with any of the Collateral.
"REQUIREMENT OF LAW" means, as to any Person, the charter and By-Laws or
other organizational or governing documents of such Person, and any material
law, treaty, rule or regulation or determination of arbitration or a 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.
"SECURITIES ACCOUNT" means Debtors' securities account number
_________________ with the Securities Intermediary, as the Securities Account
exists on the date of this Security Agreement and as it may be constituted in
the future, and all free credit balance or other money now or hereafter
credited to the Securities Account, or owing from the Securities Intermediary
to any Debtor in respect of the Securities Account, any money, securities
(certificated or uncertificated), securities entitlements, commodities
contracts, instruments, documents, general intangibles, financial assets or
other investment property distributed from the Securities Account, now or in
the future, all books and records relating to the Securities Account, all
proceeds of the sale, exchange, redemption or exercise of any of the foregoing,
including, but not limited to, any dividend, interest payment or other
distribution of cash or property or otherwise in respect thereof and any rights
incidental to the ownership of any of the foregoing, such as voting,
conversion, subscription and registration rights and rights of recovery for
violations of applicable securities laws
"SECURITIES INTERMEDIARY" means and includes each "securities
intermediary," as such term is defined in Section 8.102(a)(14) of the UCC
relating to any securities account or investment property now or hereafter
owned by any Debtor.
"UCC" means -- except where the context refers to the Uniform Commercial
Code of another State of the United States of America -- the Uniform
Commercial Code as amended from time to time in force in the State of Texas, as
set forth in the Texas Business and Commerce Code, or any successor code.
3
<PAGE> 94
3. Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of all the Obligations, and in order to
induce Bank to enter into the Credit Agreement and make Revolving Loans to
Debtors in accordance with the terms thereof, each Debtor hereby grants to Bank
a continuing security interest in all of the following property now owned, or
at any time hereafter acquired, by such Debtor or in which such Debtor now has
or at any time in the future may acquire any right, title or interest (all of
which is hereinafter collectively referred to as the "COLLATERAL"):
(i) all existing and future Servicing Rights except those
pledged on the date of this Agreement under the Indenture dated December 30,
1994 among MCAFC, MCAMC and First Union National Bank of North Carolina as
Trustee, as collateral for MCAFC's 11% Asset-backed Subordinated Debentures;
(ii) all existing and future Contracts;
(iii) all existing and future Accounts, Contract Rights
and General Intangibles (including, without limitation, (a) all money due and
to become due under any Contract, (b) any damages arising out of or for breach
or default in respect of any Contract or Account, (c) all other amounts from
time to time paid or payable under or in connection with any Contract or
Account, and (d) the right of Debtor to terminate any Contract or to perform or
exercise all remedies thereunder);
(iv) all existing and future ownership interests in
closed-end mortgage loans held by (i) any trust established pursuant to any
investment securities prospectus issued by Advanta Mortgage Conduit Services,
Inc., as sponsor, and Advanta Mortgage Corp. USA, as master servicer,
including, but not limited to the prospectus dated September 6, 1996, or (ii)
any other issuer of Mortgage Securities, whether such ownership interests are
(1) in the form of, or are represented by, securities (whether definitive
certificated securities, certificated securities traded in book-entry form or
book-entry securities), (2) in another form of investment property (as defined
in Section 9.115(a)(6) of the UCC) or (3) simply constitute a general
intangible or contract right, and including, without limitation, (i) all
securities, investment property, general intangibles and contract rights that
comprise all or part of the equity class or tranche of Mortgage Securities
created in whole or in part from a pool or pools of mortgage loans that
includes mortgage loans transferred by (or for the account of) Debtor to the
issuer of any Mortgage Securities, however the same may be designated (i.e.,
whether as "Class R Certificates" or otherwise), (ii) all securities,
investment property, general intangibles and contract rights that from time to
time have been or are delivered or intended to be delivered or negotiated to
Bank or to a bailee, financial intermediary or securities intermediary for Bank
by or on behalf of Debtor, or over which Bank from time to time obtains
control, whether or not the item is described, designated or referred to in a
written notice from Debtor to Bank identifying it as part of the Collateral of
this Security Agreement and (iii) the Collateral described or referred to in a
Schedule of Collateral from time to time furnished by Debtor to Bank (Debtor
hereby authorizing Bank to attach any such Schedule or Schedules so furnished
from time to time
4
<PAGE> 95
to this Security Agreement, although there is no requirement that Bank do so)
- -- provided that the Bank's security interest in the Collateral described in
the foregoing text of this clause (iv) will not attach until the moment that
the related Mortgage Securities are issued, whereupon the Bank's security
interest shall automatically attach to all Collateral described in the
foregoing text that is related to the Mortgage Securities so issued -- and all
interest on, renewals and extensions of, all substitutions for and all general
intangibles arising in respect of such securities, other types of investment
securities, general intangibles or contract rights, irrespective of whether
they are in uncertificated or certificated form;
(v) the Securities Account;
(vi) all Collateral Business Records; and
(vii) to the extent not otherwise included, all Proceeds and
products of any or all of the foregoing.
Notwithstanding the foregoing, the "COLLATERAL" shall not include the funds
held in any escrow or custodial account maintained by any Borrower in
connection with the Servicing Rights, but shall include the right of any
Borrower to maintain such accounts or to direct the place where such accounts
are to be maintained.
4. Rights of Bank; Limitations on Bank's Obligations. It is
expressly agreed by each Debtor that, anything herein to the contrary
notwithstanding, each Debtor shall remain liable under each of its respective
Accounts and Contracts to observe and perform all the conditions and
obligations to be observed and performed by it thereunder, all in accordance
with the terms of any agreement giving rise to such Account and in accordance
with the terms and provisions of each such Contract. Bank shall not have any
obligation or liability under any Account (or agreement giving rise thereto) or
under any Contract by reason of or arising out of this Agreement or its
assignment to Bank or the receipt by Bank of any payment relating to any
Account or Contract pursuant hereto, nor shall Bank be required or obligated in
any manner to perform or fulfill any of the obligations of any Debtor under or
pursuant to any Account (or any agreement giving rise thereto) or under or
pursuant to any Contract, to make any payment, to make any inquiry as to the
nature or the sufficiency of any payment received by Bank or as to the
sufficiency of any performance by any party under any Account (or any agreement
giving rise thereto) or under any Contract, to present or file any claim, to
take any action to enforce any performance or to collect the payment of any
amounts which may have been assigned to Bank or to which Bank may be entitled
at any time or times.
5. Representations and Warranties. Each Debtor hereby
represents and warrants to Bank that from and after the date of this Agreement
until the Obligations are fully satisfied:
5
<PAGE> 96
(a) Title; No Other Security Interests. Except for the security
interest granted hereunder to Bank and Permitted Liens under the Credit
Agreement:
(i) each Debtor owns each item of the Collateral free and
clear of any and all liens, has the unrestricted right to grant the security
interest provided for herein and has granted to Bank a valid and perfected
first priority security interest in the Collateral free of all liens,
encumbrances, transfer restrictions and adverse claims; all consents required
for the pledge of the Collateral as herein provided have been obtained;
(ii) there is no financing statement covering the
Collateral or its proceeds on file in any public office or, if any Debtor
learns otherwise, such Debtor will promptly cause it to be terminated of record
or provide substitute collateral acceptable to Bank;
(iii) no securities intermediary holding or owning any
part of the Collateral of record has been notified by or on behalf of Debtor of
any pledge of or security interest in such Collateral other than the pledge of
and security interest in such Collateral granted to Bank and the pledge of and
security interest in such Collateral granted to the Pension Fund;
and each Debtor will warrant and forever defend the title to the Collateral and
its proceeds and the security interest of the Bank therein against the claims
and demands of all persons whomsoever claiming or to claim the same or any part
thereof (excluding only the prior claims of those holding Permitted Liens that
the Bank has agreed in writing shall be senior, prior and superior to the
Bank's security interest) and will maintain and preserve such security and the
priority and perfection of the Bank's security interest therein so long as this
Security Agreement shall remain in effect..
(b) Addresses. Each Debtor's corporate name and place of
incorporation, chief executive officer and the place where its records
concerning the Accounts and other Collateral are kept, the other addresses of
each Debtor's business, if any, and certain other information relating to each
Debtor are set forth on Schedule I hereto. The states in which Collateral is
located, and each Debtor's chief executive office and principal place of
business in each state, shall not be changed without prior written notice to
Bank, but the Collateral, wherever located, is covered by this Agreement. Each
Debtor shall immediately advise Bank in writing of any change in its name,
address or form of organization.
(c) Trade Names. Any and all trade names under which each
Debtor transacts any part of its business, and all former names of each Debtor,
are those which are set forth on Schedule I hereto.
(d) Accuracy of Information. All information, certificates or
statements given to Bank pursuant to this Agreement are and shall be true and
complete in all respects.
6
<PAGE> 97
(e) Servicing Rights. The servicing by Debtors or mortgage
loans to which the Servicing Rights relate complies, and will continue to
comply, with all requirements under the applicable Contract and each such
Contract is in full force and effect and there is no default by any Debtor, nor
any act or occurrence which with the passage of time or notice (or both) would
constitute such a default, under any such Contract.
(f) Conformity of Records. The books, records, accounts and
reports of each Debtor with respect to the mortgage loans serviced under the
Contracts have been prepared and maintained in accordance with all applicable
requirements set forth in the Contracts and otherwise conform with all
applicable insurance and a legal or regulatory requirements.
6. Covenants. Each Debtor covenants and agrees with Bank that from
and after the date of this Agreement until the obligations are fully satisfied:
(a) Deliver Certificates. If, at any time, any Debtor obtains
possession of any certificate or instrument constituting any of the Collateral
(or its proceeds), such Debtor shall deliver such certificate or instrument to
Bank forthwith for credit to the Securities Account duly endorsed in blank
without restriction and with all signatures guaranteed with a medallion
signature guaranty acceptable at the New York Stock Exchange and with all
necessary transfer tax stamps affixed.
(b) Furnish Endorsements and Other Instruments; Transfer
Investment Property. When and as often as Securities Intermediary may request
it, Debtor shall furnish to Securities Intermediary any endorsements or
instruments which may be necessary or convenient to transfer to Securities
Intermediary or one of its nominees any investment property held by Securities
Intermediary, that is registered in Debtor's name, payable to the order of
Debtor, or specially endorsed to Debtor.
(c) Uncertificated Securities. If any of the Collateral is
uncertificated securities, Debtor shall either (1) procure the issuance of
security certificates to represent such Collateral and endorse and deliver such
certificates as required by Section 6.(a), or (2) cause those securities' issuer
to register Securities Intermediary as their registered owner or (3) cause those
securities' issuer to enter into an agreement, in form and substance
satisfactory to Bank, among Bank, the securities' registered owner and the
issuer to the effect that the issuer will comply with instructions originated by
Bank without further consent by the registered owner.
(d) Nonsecurities Collateral. As to any Collateral that is not
securities and is not capable of being delivered, Debtor shall deliver to Bank
such financing statements or other instruments as are deemed necessary by Bank
to enable it to perfect its security interest in such Collateral under
applicable law.
(e) Further Documentation, Pledge of Instruments. At any time and
from time to time, upon the written request of Banks, and at the sole expense of
Debtors, Debtors will promptly
7
<PAGE> 98
and duly execute and deliver any and all such further instruments and documents
and take such further action as Bank may reasonable request for the purpose of
obtaining the full benefits of this Agreement and of the rights and powers
herein granted, including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code in effect in any
jurisdiction with respect to the security interests granted hereby. A carbon,
photographic or other reproduction of this agreement shall be sufficient as a
financing statement for filing in any jurisdiction.
(f) Defend and Cure Defects. If the validity or priority of
this Security Agreement or of any rights, titles, security interests or other
interests created or evidenced hereby or their priority or perfection shall be
attacked, threatened or questioned, or if any legal proceedings are instituted
with respect thereto, Debtors will give prompt written notice thereof to Bank
and, at Debtor' own cost and expense, will diligently endeavor to cure any
defect that may be developed or claimed, and will take all necessary and proper
steps for the defense of such legal proceedings, and Bank (whether or not named
as a party) is hereby authorized and empowered to take such additional steps as
in its judgment and discretion may be necessary or proper for the defense of
any such legal proceedings or the protection of the validity or (taking into
account, however, any Permitted Liens) the priority of this Security Agreement
and the rights, titles, security interests and other interests created or
evidenced hereby, and all expenses so incurred of every kind and character
shall be a demand obligation owing by Debtors and shall bear interest from date
of expenditure until paid at the Ceiling Rate.
(g) Uncertificated Securities Collateral. This Security
Agreement covers, and all or part of the Collateral is or may be,
uncertificated securities beneficially owned by Debtor and held or owned of
record by one or more securities intermediaries, one of which may be Bank; all
such certificates of deposit, commercial paper or securities are pledged to
Bank in accordance with the provisions of applicable law (including in the case
of U.S. Treasury securities, if any, 1 CFR Section 462, 24 CFR Section 81, 24
CFR Section 350 and 31 CFR Section 306, as each may be amended from time to
time). Debtor hereby appoints Bank as its agent to instruct any securities
intermediary holding or owning any such securities of record to identify such
securities on its books and records as belonging to Bank.
(h) Maintenance of Records. If requested by Bank, Debtors will
mark the Business Records pertaining to the Collateral to evidence this
Agreement and the security interests granted hereby.
(i) Indemnification. Debtors jointly and severally agree to
pay, and to save Bank harmless from, any and all liabilities, costs and
expenses (including, without limitation, legal fees and expenses) (i) with
respect to, or resulting from, any delay in paying any and all excise, sales or
other taxes which may be payable or determined to be payable with respect to
any of the Collateral, (ii) with respect to, or resulting from, any delay in
complying with any Requirement of Law applicable to any of the Collateral or
(iii) in connection with any of the transactions contemplated by this
Agreement. In any suit, proceeding or action brought by Bank under any Account
or
8
<PAGE> 99
Contract for any sum owing thereunder, or to enforce any provisions of such
Account or Contract, Debtors will, jointly and severally, save, indemnify and
keep Bank harmless from and against all expense, loss or damage suffered by
reason of any defense, setoff, counterclaim, recoupment or reduction of
liability whatsoever of the account debtor or obligator thereunder, arising out
of a breach of any Debtor of any obligation thereunder or arising out of any
other agreement, indebtedness or liability at any time owing to or in favor of
such account debtor or obligor or its successors from any Debtor, and all such
obligations of a Debtor shall be and remain enforceable against and only
against Debtors and shall not be enforceable against Bank.
(j) Payment of Obligations. Debtors will pay promptly when due
all taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of its income or profits therefrom, as well as all
claims of any kind against or with respect to the Collateral.
(k) Servicing Matters. No Debtor will fail to comply with or
otherwise breach in any material respect any Contract or related obligation
with respect to any of the Servicing Rights or commit or suffer to be committed
any act which would adversely affect its ability to service mortgage loans on
behalf of any Agency or any other investor for whom such Debtor services
residential mortgage loans. In furtherance of the foregoing, Debtors shall
service or cause to be serviced all mortgage loans to which the Servicing
Rights relate in accordance with standard industry practices and all applicable
Contract, insurance and governmental requirements, including without limitation
taking all actions necessary to enforce the obligations of the obligors under
such mortgage loans. Debtors shall hold all escrow funds collected in respect
of such mortgage loans in trust, without commingling the same with
non-custodial funds, and apply the same for the purposes for which such funds
were collected.
(l) Limitation on Liens on Collateral. Debtors will not
create, incur or permit to exist, and will defend the Collateral against, and
will take such other action as is necessary to remove, any lien on or with
respect to the Collateral other than the security interests created hereby, and
other than Permitted Liens pursuant to the Credit Agreement, and will defend
the right, title and interest of Bank in and to any of the Collateral against
the claims and demands of all persons. Debtors will not sell or otherwise
dispose of any type or item of Collateral except as expressly permitted by this
Agreement or the Credit Agreement.
(m) Limitations on Modifications of Contracts, Accounts; No
Waivers, Extensions. Debtors will not, other than in the ordinary course of
business, (i) amend, modify, terminate or waive any provision of any Contract
or any agreement giving rise to an Account in any manner which might materially
adversely affect the value of such Contract or Account as Collateral, or (ii)
fail to exercise promptly and diligently each and every right which they may
have under each Contract and each agreement giving rise to an Account (other
than any right of termination) in any manner which could materially adversely
affect the value of such Contract.
9
<PAGE> 100
(n) Limitations on Discounts, Compromises, Extension of
Accounts. Other than in the ordinary course of business, Debtors will not
grant any extension of the time of payment of any of the Accounts, compromise,
compound or settle the same for less than the full amount thereof, release,
wholly or partially, any Person liable for the payment thereof or allow any
credit or discount whatsoever thereon.
(o) Right of Inspection. Bank shall at all times have full and
free access during normal business hours to all the books, correspondence and
records of each Debtor, including without limitation, the Business Records, and
Bank or its representatives may examine the same, take extracts therefrom and
make photocopies thereof; provide, however, that prior to the occurrence of an
Event of Default, Bank shall not, without the consent of a Debtor, remove any
of such Debtor's books, correspondence and records from the premises where they
are kept. Each Debtor agrees to render to Bank, at such Debtor's cost and
expense, such clerical and other assistance as may be reasonably requested with
regard thereof. All such inspections shall be undertaken at Bank's sole
expense; provided that upon the occurrence of an Event of Default, Debtors
shall pay the expenses of Bank for such inspections. Bank will take reasonable
steps to maintain the confidentiality of information obtained by it, except as
required by law.
7. Verification and Notification; Deposit With Bank. Bank may
verify Collateral in any reasonable manner and Debtors shall assist Bank in so
doing. Anything contained herein to the contrary notwithstanding, Bank may at
any time after the occurrence of an Event of Default, and Debtors shall,
thereafter, upon request of Bank, notify and direct any person obligated to any
Debtor (an "ACCOUNT DEBTOR") to make all payments whatever to Bank and Bank
shall have the right, at any time, to hold all amounts acquired from any
Account Debtor and any proceeds as part of the Collateral. Bank may also
enforce collection of, settle, compromise, extend or renew the indebtedness of
such Account Debtors. Also upon the occurrence of an Event of Default, any
payment received by any Debtor shall be held by such Debtor in trust for Bank
in the same medium in which received, shall not be commingled with any assets
of Debtor and shall at the request of Banks, be turned over to the Banks not
later than the next Business Day following the day of receipt.
8. Bank's Appointment as Attorney-in-Fact.
(a) General Appointment. Upon the occurrence of an Event
of Default, each Debtor hereby irrevocably constitutes and appoints Bank, with
power of substitution to appoint any Person to act on its behalf, as such
Debtor's true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of such Debtor and in the name of such Debtor
or in its own name, from time to time in Bank's discretion, for the purpose of
carrying out the terms of this Agreement, on behalf of such Debtor, to do the
following:
(i) to ask, demand, collect, receive and give acquittances
and receipts for any and all monies due and to become due under any Contract or
Account and, in the name of each Debtor or its own name or otherwise, to take
possession of and endorse and collect any checks,
10
<PAGE> 101
drafts, notes, acceptances or other instruments for the payment of monies due
under any Contract or Account and to file any claim or to take any other action
or proceeding in any court of law or equity or otherwise deemed appropriate by
Bank for the purpose of collecting any and all such monies due under any
Contract or Account whenever payable;
(ii) to pay or discharge taxes, security interests or other
encumbrances levied or placed on or threatened against the Collateral; and
(iii) (A) to direct any party liable for any payment
under any of the Collateral to make payment of any and all monies due and to
become due thereunder directly to Bank or as Bank shall direct; (B) to receive
payment of and give receipt for any and all monies, claims and other amounts
due and to become due at any time in respect of or arising out of any
Collateral; (C) to sign and endorse any invoices, drafts against debtors,
assignments, verifications and notices in connection with Accounts and other
documents relating to the Collateral; (D) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any thereof and to enforce any other
right in respect of any Collateral; (E) to defend any suit, action or
proceeding brought against any Debtor with respect to any Collateral; (F) to
settle, compromise or adjust any suit, action or proceeding described above
and, in connection therewith, to give such discharges or releases as Bank may
deem appropriate; and (G) to do, at Bank's option and Debtors' expense, at any
time, or from time to time, all acts and things which Bank deems necessary or
desirable to protect, preserve or realize upon the Collateral and Bank's
security interest therein, in order to effect the intent of this Agreement, all
as fully and effectively as Debtors might do.
This power of attorney is a power coupled with an interest and shall be
irrevocable until the Obligations are irrevocably paid in full.
(b) No Obligation on Bank. The powers conferred on Bank
hereunder are solely to protect its interests in the Collateral and shall not
impose any duty upon Bank to exercise any such powers. Bank shall be
accountable only for amounts that it actually receives as a result of the
exercise of such powers and NEITHER BANK NOR ANY OF ITS OFFICERS, DIRECTORS,
EMPLOYEES OR AGENTS SHALL BE RESPONSIBLE TO DEBTORS FOR ANY ACT OR FAILURE TO
ACT, EVEN IF SUCH ACT OR FAILURE TO ACT IS NEGLIGENT, EXCEPT FOR BANK'S OWN
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
9. Performance by Bank of Debtors' Obligations. If any Debtor
fails to perform or comply with any of its agreements contained herein and
Bank, as provided for by the terms of this Agreement, shall perform or comply,
or otherwise cause performance or compliance, with such agreement, the expenses
of Bank incurred in connection with such performance or compliance, together
with interest thereon at the rate determined in accordance with Section 2.5(c)
of the Credit Agreement, shall be payable by Debtors to Bank on demand and
shall constitute Obligations secured hereby.
11
<PAGE> 102
10. Proceeds as Collateral. Upon the occurrence of an Event of
Default, any and all such Proceeds received by Bank (whether from any Debtor or
otherwise) may, in the sole discretion of Bank, be held by Bank as collateral
security for, or then or at any time thereafter applied in whole or in part by
Bank, against all or any part of the Obligations in the manner provided in
Section 13. Any balance of such payments held by Bank and remaining after
payment in full of all the Obligations shall be paid over to Debtors also in
the manner provided in Section 13.
11. Events of Default. The occurrence of an Event of Default
under the Credit Agreement shall be deemed an Event of Default hereunder.
12. Remedies.
(a) General. Upon the occurrence of an Event of
Default, Bank may exercise in addition to all other rights and remedies granted
to it in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a secured
party under the UCC. Without limiting the generality of the foregoing, each
Debtor expressly agrees that in any such event Bank may forthwith collect,
receive, appropriate and realize upon the Collateral, or any part thereof, and
may forthwith sell, lease, assign, or otherwise dispose of and deliver such
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange or broker's
board or at any of Bank's offices or elsewhere at such prices as it may deem
best for cash or on credit or for future delivery without assumption of any
credit risk. Bank shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of such Collateral so sold, free of any right or
equity of redemption in any Debtor, which right or equity is hereby waived or
released to the extent permitted by law. Each Debtor further agrees, at Bank's
request, to assemble the Collateral, make it available to Banks at places which
Banks shall reasonably select, whether at such Debtor's premises or elsewhere,
at Debtors' sole cost and expense. Bank shall pay over the net proceeds of any
such collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred therein or
incidental to the care, safekeeping or otherwise of any or all of the
Collateral or in any way relating to the rights of Bank hereunder, including,
without limitation, attorneys' fees and legal expenses, to Bank for application
by Bank to the payment in whole or in part of the Obligations, in the manner
provided in Section 13, and only after so paying over such net proceeds and
after the payment by Bank of any other amount required by any provision of law,
including Section 9.504(a)(3) of the UCC, will Bank be required to account for
the surplus, if any, to Debtors. To the extent permitted by applicable law,
each Debtor waives all claims, damages, and demands against Banks arising out
of the repossession, retention or sale of the Collateral. Each Debtor agrees
that Bank need not give more than ten days' notice of the time and place of any
public sale or of the time after which a private sale may take place and that
such notice is reasonable notification of such matters.
12
<PAGE> 103
(b) Costs. Debtors also agree to pay all costs of Bank,
including, without limitation, reasonable attorneys' fees (whether in- house or
outside counsel is used, whether legal assistants are used, and whether such
fees are incurred in negotiations, formal or informal collection actions,
federal bankruptcy proceedings, probate proceedings, on appeal or otherwise)
and legal expenses, incurred with respect to the collection of any of the
Obligations and the enforcement by Banks of any of their rights hereunder.
13. Application of Proceeds. All monies collected by Bank upon any
sale or other disposition of the Collateral, together with all other monies
received by Bank hereunder, shall first be applied to the payment of all costs
and expenses incurred by Bank in connection with such sale, the delivery of the
Collateral or the collection of any such monies (including, without limitation,
attorneys' fees and expenses), and the balance of such monies shall be applied
to satisfy the Obligations in accordance with the Credit Agreement. Any
surplus remaining after payment in full of the Obligations shall be returned to
Debtors or to any other person lawfully entitled thereto (including, if
applicable, any subordinated creditor of Debtors). If the proceeds of any sale
or other disposition of the Collateral are insufficient to pay all the
Obligations in full to Bank, Debtors shall be liable for any deficiency,
together with interest thereon at the rate determined in accordance with
Section 2.5(c) of the Credit Agreement.
14. Limitation on Bank's Duty in Respect of Collateral. Bank's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 9.207 of the UCC or otherwise,
shall be to deal with it in the same manner as Bank deals with similar property
for its own account. Neither Bank nor any of its Affiliates, directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon all or any part of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of Debtor or otherwise.
15. If Pension Fund Purchases Note. Bank acknowledges that from
and after the date, if any, when the Pension Fund shall have purchased the Note
from the Bank by finally and irrevocably paying the full Purchase Price (as
defined in the Note Purchase Agreement) to Bank, the Pension Fund will be the
owner of the security interest hereof and Bank will deliver all Collateral then
in its possession or control to the Pension Fund (or its designee) pursuant to
the provisions of Section 2.1(d) of the Note Purchase Agreement.
16. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
17. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13
<PAGE> 104
18. Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
19. No Waiver; Cumulative Remedies. Bank shall not by any act
(except a written instrument pursuant to Section 20 hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Event of Default or in any breach of the terms and
conditions hereof. A waiver by Bank of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which Bank
would otherwise have had on any future occasion. No failure to exercise nor
any delay in exercising on the part of Bank any right, power or privilege
hereunder, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
future exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies hereunder provided are cumulative and may be exercised
singly or concurrently, and are not exclusive of any rights and remedies
provided by the Credit Agreement, any other Loan Document or applicable law.
20. Waivers and Amendments; Successors and Assigns; Governing
Law. None of the terms or provisions of this Agreement may be waived, altered,
modified or amended except by a written instrument, duly executed by each of
the Debtors and Bank. This Agreement and all obligations of each Debtor
hereunder shall be binding upon the successors and assigns of such Debtor, and
shall, together with the rights and remedies of Bank hereunder, inure to the
benefit of Bank and its successors and assigns, provided that no Debtor may
assign or transfer any of its rights or obligations hereunder without the prior
written consent of Bank. This Agreement shall be governed by, and be construed
and interpreted in accordance with, the internal laws (and not the laws of
conflict) of the State of Texas.
21. Partial Releases, Termination; Reinstatement. If no Event
of Default has occurred and is continuing, Bank agrees to execute and deliver
such partial releases of Collateral as Debtors may request from time to time if
the Debtors shall first (or concurrently with such release) pay to Bank (i) for
application to the Obligations, such sum (the "PAYDOWN") as the Bank shall
determine to be equal to the excess (if any) of (x) the outstanding principal
balance of the Revolving Loans over (y) the Borrowing Base value of the
Eligible Servicing Rights and Eligible Residuals that will remain pledged to
the Bank after such requested partial release; provided that if the release is
being requested in connection with a sale or other disposition of the
Collateral requested to be released and the terms of such sale or other
disposition require that the affected Collateral must be released before the
time when cash proceeds of such sale or securitization sufficient to fully pay
the Paydown will become available, then the Bank may elect to grant the
requested release without requiring full payment of the Paydown, in which event
the release instrument shall release the Bank's security interest in the
affected Collateral itself but shall expressly reserve and retain the Bank's
security interest in all proceeds thereof; and (ii) the cost of preparation (or
review and approval) by Bank's legal counsel of such partial releases,
including reasonable attorneys' fees. On such date as all of
14
<PAGE> 105
the Obligations shall have been finally and irrevocably paid in full to Bank
and Bank's commitments to make further Revolving Loans under the Credit
Agreement shall have expired or terminated, this Agreement shall terminate and,
unless the Pension Fund shall have given the Bank written notice of the Pension
Fund's election to accept assignment of such security interest, the security
interest in the Collateral created hereby shall also terminate. This Security
Agreement shall continue in effect, or be reinstated, as the case may be, at
any time that any payment received by Bank in respect of the Obligations is
rescinded or must otherwise be restored or returned by Bank upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Debtor or upon the appointment of an intervenor or conservator of, or trustee
or similar official for, any Debtor or any substantial part of its properties,
all as though such payments had not been made. Upon final termination of this
Agreement and the security interest in the Collateral created hereby, Bank
agrees to execute and deliver a written termination statement in form suitable
for filing in the Uniform Commercial Code filing records in the Office of the
Secretary of State of the State of Michigan (and each other jurisdiction where
any filings have been made with respect to the security interest hereby
granted) and to give written notice to each relevant securities intermediary
that the Bank has no further interest in the Collateral.
22. Notices. All notices, requests and other communications
that are required or may be given under this Agreement shall be given in
accordance with the terms and provisions for notices set forth in the Credit
Agreement.
23. Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which together shall constitute one and the same instrument, and it shall not
be necessary in making proof of this Agreement to produce or account for more
than one such counterpart.
IN WITNESS WHEREOF, Debtors and Bank have caused this Agreement to be
executed by their duly authorized offices on the date first set forth above.
MCA FINANCIAL CORP.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
15
<PAGE> 106
MCA MORTGAGE CORPORATION, formerly
known as Mortgage Corporation of America
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
MORTGAGE CORPORATION OF AMERICA,
formerly known as First American
Mortgage Associates, Inc.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
16
<PAGE> 107
SCHEDULE I TO SECURITY AGREEMENT
PLACE OF BUSINESS, TRADE NAMES AND FORMER NAMES
OF COMPANIES
<TABLE>
<CAPTION>
STILL
STATE OF STATES TRADE NAMES USING
NAME AND TAXPAYER I.D. OWNERSHIP INCORPORATION QUALIFIED AS USED NAME?
FOREIGN CORP. Y/N
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
MCA Financial Approximately 523,283 shares Michigan None None No
Corporation owned by various individuals
38-3014001 and entities disclosed to
the Bank on a separate
schedule
- ----------------------------------------------------------------------------------------------------------------------
MCA Mortgage MCA Financial Corp. Michigan See attached None No
Corporation list
38-2613174
- ----------------------------------------------------------------------------------------------------------------------
Mortgage Corporation MCA Financial Corp. Michigan Indiana, Ohio None No
of America
38-2509529
<CAPTION>
OTHER
CHIEF EXECUTIVE PRINCIPAL
NAME AND TAXPAYER I.D. OFFICE OFFICES
- -----------------------------------------------------------------
<S> <C> <C>
MCA Financial 23999 Northwestern None
Corporation Hwy.
38-3014001 Southfield, MI 48075
- -----------------------------------------------------------------
MCA Mortgage 23999 Northwestern None
Corporation Hwy.
38-2613174 Southfield, MI 48075
- -----------------------------------------------------------------
Mortgage Corporation 23999 Northwestern None
of America Hwy.
38-2509529 Southfield, MI 48075
</TABLE>
<PAGE> 108
MCA MORTGAGE CORPORATION
STATES WHERE MCAMC IS LICENSED TO ORIGINATE
OR ACQUIRE FIRST MORTGAGE LOANS
(OR IS EXEMPT FROM LICENSING)
OK TO ORIGINATE OK TO ACQUIRE LOANS FUNDED & CLOSED
BY LICENSED BROKER OR LENDER
Alabama Alabama
Alaska Alaska
Arkansas Arkansas
Arizona Arizona
California* California**
Colorado Colorado
Florida Connecticut
Georgia Delaware
Illinois Georgia
Indiana Florida
Kentucky Idaho
Louisiana Illinois
Michigan Indiana
Minnesota Kentucky
Mississippi Louisiana
Missouri Maryland
New Mexico Massachusetts
North Carolina Michigan
Ohio Minnesota
Pennsylvania Mississippi
South Carolina Missouri
Tennessee Montana
<PAGE> 109
Texas New Jersey
Utah New Mexico
Virginia New York
Washington North Carolina
West Virginia North Dakota
Wisconsin* Ohio
Oregon
Pennsylvania
Rhode Island
South Carolina
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
* Loan officer must also have license to work directly with borrower
** OK to table-fund and close in MCAMC's name on brokered loans
2
<PAGE> 110
EXHIBIT E
[NOTE: BIFURCATED OPINION MAY BE REQUIRED IF THE FIRM ISSUING THE OPINION
DOES NOT INCLUDE A LAWYER LICENSED IN TEXAS WHO CAN ISSUE THE
ENFORCEABILITY AND PERFECTION OPINIONS SET FORTH IN NUMBERED PARAGRAPHS 4
AND 7 BELOW.]
June ___, 1997
Texas Commerce Bank National Association
712 Main Street
Houston, Texas 77002
Attention: Managing Director, Corporate Mortgage Finance Group
Ladies and Gentlemen:
We have acted as counsel to MCA Financial Corp., a Michigan corporation
("MCAFC"), MCA Mortgage Corporation, a Michigan corporation formerly known as
Mortgage Corporation of America ("MCAMC") and Mortgage Corporation of America
("MCA"), a Michigan corporation formerly known as First American Mortgage
Associates, Inc. (each, a "BORROWER" and together, the "BORROWERS"), in
connection with a Revolving Credit Loan Agreement, dated as of the date hereof
(the "LOAN AGREEMENT"), and the related Security Agreement (the "SECURITY
AGREEMENT") and Revolving Credit Note (the "NOTE") among the Borrowers and you.
The Loan Agreement, the Security Agreement and the Note, together with the
Acknowledgment Agreements among MCAMC as Servicer, MCA as Servicer, you as
secured party and the Federal Home Loan Mortgage Corporation ("FHLMC") and the
UCC financing statements contemplated in the Security Agreement (the "UCC
STATEMENTS") are sometimes referred to as the "LOAN DOCUMENTS." This opinion
letter is provided to you pursuant to Section 4.1(h) of the Loan Agreement.
Except as otherwise indicated, capitalized terms used herein are defined as set
forth in the Loan Agreement.
In addition, we have acted as counsel to MCAF, MCAMC and MCA in connection
with the Credit Enhancement Umbrella Agreement dated as of _________________
(the "UMBRELLA AGREEMENT") among MCAF, MCAMC (then named MCA Mortgage
Corporation), MCA (then named First American Mortgage Associates and the Board
of Trustees of the Policemen and Firemen Retirement System of the City of
Detroit (the "BOARD") and the related Master Security Agreement (the "BOARD
SECURITY AGREEMENT") among MCAF, MCAMC, MCA and the Board and the Piggyback
Rights Agreement (the "PIGGYBACK AGREEMENT") between MCAF and the Board, each
of even date with the Umbrella Agreement. The Umbrella Agreement, the Master
Security Agreement, and the Piggyback Agreement, together with the
Acknowledgment Agreements (as defined in the Master Security
<PAGE> 111
Texas Commerce Bank National Association
June ___, 1997
Page 2
Agreement) among MCAMC as Servicer, MCA as Servicer, the Board as secured party
and the Federal Home Loan Mortgage Corporation ("FHLMC") and the UCC financing
statements contemplated in the Master Security Agreement (the "UCC STATEMENTS")
are sometimes referred to as the "ENHANCEMENT DOCUMENTS." MCAF, MCAMC and MCA
are sometimes collectively referred to herein as the "COMPANIES" or
individually as a "COMPANY."
We have examined the Loan Documents and the Enhancement Documents, the
Articles of Incorporation, as amended, and By-Laws, as amended, of each
Borrower, the corporate proceedings of each Borrower in connection with the
transactions contemplated by the Loan Documents and the Enhancement Documents,
and such other documents and records, and made such examination of law, as we
have deemed necessary in connection with the opinions expressed herein.
This opinion is governed by and is subject to (i) the Legal Opinion Accord
(the "ACCORD") of the American Bar Association Section of Business Law (1991)
and (ii) Section A of Part II of the Report of the Ad Hoc Committee of the
Business Law Section of the State Bar of Michigan on Standardized Legal
Opinions in Business Transactions (1991) ("Part II"). A copy of Part II is
attached hereto and incorporated herein by reference. Without limiting the
generality of the foregoing, the meaning of terms and phrases used in this
opinion (other than those defined in the Umbrella Agreement) is governed by and
is subject to the Accord and Part II.
Based upon the foregoing and upon our examination of such documents and
other matters as we deemed relevant, it is our opinion that:
1. Each Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Michigan, and has
the corporate power and authority to own its properties and assets and to carry
out its business as now being conducted and is qualified to do business and is
in good standing in every jurisdiction where the failure to be so qualified
could have a Material Adverse Effect.
2. Each Borrower has the corporate power and authority to
execute, deliver and perform the Loan Agreement, to borrow money in accordance
with its terms, to execute, deliver and perform the Revolving Credit Note and
the other Loan Documents, to grant to you liens and security interests in the
Collateral as contemplated by the Loan Agreement and to do any and all other
things required of it under the Loan Agreement or under the Security Agreement.
Schedule A attached hereto correctly sets forth, as to each Borrower, the
number of shares of its capital stock of each class outstanding and the
ownership thereof.
3. The execution, delivery and performance of the Loan
Agreement, the borrowings thereunder and the execution, delivery and
performance of the other Loan Documents (a) have been
2
<PAGE> 112
Texas Commerce Bank National Association
June ___, 1997
Page 3
duly authorized by all requisite corporate action of each Borrower, (b) except
for UCC filings and any required consents or acknowledgments from the Agencies,
do not require registration with or consent or approval of, or other action by,
any federal, state or other governmental authority or regulatory body, other
than such registrations, consents or approvals as have been obtained and
disclosed in writing to you, (c) will not violate, conflict with or constitute
(with or without notice or passage of time) a default under (i) the Articles of
Incorporation or Bylaws of any Borrower, (ii) any provision of law or, to our
knowledge, any order of any court or other agency of government applicable to
any Borrower, or (iii) any provision of any contract, mortgage, indenture,
note, agreement, lease or other instrument known to us to which any Borrower is
a party, or by which it or any of its properties or assets are bound, and (d)
will not result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of
any Borrower other than in favor of the Bank and, in accordance with the terms
of the Enhancement Agreement, the Board.
4. The Loan Agreement, the Revolving Credit Note, the Security
Agreement, the Financing Statements and all other documents contemplated by the
Loan Agreement will be, when delivered, valid and binding obligations of each
Borrower in each case enforceable in accordance with their terms, except as the
enforceability thereof may be limited to applicable bankruptcy, insolvency,
reorganization and similar laws affecting the rights of creditors generally and
by general principles of equity, whether applied in a proceeding at law or in
equity.
5. No Borrower or Subsidiary is engaged principally, or as one
of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any "margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, and no
Borrower owns any margin stock.
6. No Borrower or Subsidiary is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
7. The Security Agreement creates a valid security interest in
your favor as security for the payment of the Obligations (as defined in the
Security Agreement) in all of the Borrowers' right, title and interest in and
to all personal property included within the definition of the term Collateral
(as defined in the Security Agreement) in which a security interest can be
granted under the UCC (the "CODE COLLATERAL"). We have examined the Financing
Statements to be filed in the filing offices listed on Schedule B attached
hereto (the "FILING OFFICES") with respect to the security interests granted to
you pursuant to the Security Agreement, and upon the filing of such Financing
Statements in the Filing Offices, and assuming that the representations made in
the Security Agreement with respect to the location of the Code Collateral and
the chief executive office of the Borrowers are and
3
<PAGE> 113
Texas Commerce Bank National Association
June ___, 1997
Page 4
remain true and correct: (a) all filings, registrations and recordings
necessary to perfect the security interest granted to you under such Security
Agreement in respect of all Code Collateral in which a security interest may be
perfected by filing a financing statement in the Filing Offices will have been
accomplished; and (b) the security interests granted to you pursuant to such
Security Agreement in and to such Code Collateral will be perfected by filing
financing statements in the Filing Offices under the UCC.
8. Each of the Companies has all requisite corporate power and
authority to execute and deliver the Enhancement Documents to which it is a
party, to perform its obligations thereunder, to consummate the transactions
contemplated thereby and to grant the liens and security interests in the
collateral contemplated by the Master Security Agreement. The execution and
delivery by each of the Companies of the Enhancement Documents to which it is a
party and the consummation of the transactions contemplated thereby have been
duly authorized by all necessary corporate action on the part of each of the
Companies. The Enhancement Documents have each been duly and validly executed
and delivered by each of the Companies which is a party thereto, and each
agreement constitutes its valid and binding obligation, enforceable against it
in accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws relating to or affecting the rights and remedies of
creditors generally, and subject to general principles of equity, whether
applied in a proceeding at law or in equity.
We hereby confirm to you that we have no knowledge of any action, suit or
proceedings, at law or in equity, before any arbitrator or by or before any
governmental commission, board, bureau or other administrative agency, pending
or threatened against or affecting any Borrower or any properties or rights of
any Borrower which, if adversely determined, would, individually or
collectively, have a Material Adverse Effect.
We are members of the Bar of the State of [TEXAS][MICHIGAN] and we do not
express any opinion herein concerning any law other than the law of the State
of [TEXAS][MICHIGAN] and the Federal law of the United States.
This opinion letter may be relied upon by you only in connection with the
transactions contemplated by the Loan Agreement and may not be used, relied
upon or furnished by or to any other person or for any purpose whatsoever
without our prior written consent.
Very truly yours,
BUTZEL LONG
4
<PAGE> 114
EXHIBIT F
Texas Commerce Bank National Association
712 Main Street
Houston, Texas 77002
Attention: Managing Director, Corporate Mortgage Finance Group
Re: MCA Financial Corp. and related entities;
$28,500,000 Revolving Credit Loan Agreement with Texas Commerce Bank
National Association
Dear Texas Commerce Bank National Association Representative:
I am legal counsel to the Board of Trustees (the "BOARD") of the Policemen
and Firemen Retirement System of the City of Detroit (the "SYSTEM"). I have
reviewed and am familiar with the pension provisions found in (a) the 1918
City of Detroit Charter as amended through June 30, 1974 and continued in
effect by Article XI, Section 102 of the July 1, 1974 City of Detroit Charter,
(b) Article XI of the July 1, 1974 City of Detroit Charter, (c) the pension
ordinances found in Chapter 54 of the City of Detroit Municipal Code, and (d)
other applicable law, including State of Michigan statutes applicable to
investment of funds of public employees' retirement systems, including Act No.
314 of the Public Acts of 1965, as amended (codified as "Investment of Assets
of Public Employees Retirement Systems" (MCLA 38.1132 et seq.)) ("ACT").
I have examined copies of (a) the Note Purchase Agreement, dated June ___,
1997 (the "NOTE PURCHASE AGREEMENT"), between Texas Commerce Bank National
Association (the "BANK") and the System, to be delivered to the Bank pursuant
to the Revolving Credit Loan Agreement dated June ___, 1997, among the Bank,
MCA Financial Corp. and certain direct or indirect subsidiaries of MCA
Financial Corp., and (b) the resolutions (the "RESOLUTIONS") of the Board
authorizing and approving the execution and delivery of the Note Purchase
Agreement and the consummation of the transaction contemplated thereby.
Capitalized terms used in this opinion and not otherwise defined have the
meanings those terms have in the Note Purchase Agreement.
I have also examined such other documents, and made such further
inquiries, as were, in my judgment, necessary in order to enable me to express
the opinions set forth below. In making such examination I have assumed that
all documents delivered to me, and the signatures of parties other than the
System appearing thereon, were genuine, and I have not undertaken to
independently verify the same.
Based on the foregoing, it is my considered opinion that:
<PAGE> 115
1. The System is duly organized and validly existing under the
laws of the State of Michigan.
2. The System through its Board of Trustees is legally
empowered to enter into and perform its obligations under the Note Purchase
Agreement, and such entering into and performance constitutes a qualified
"investment" pursuant to the Act.
3. The Note Purchase Agreement has been duly authorized,
executed and delivered by the System and, provided the obligations of the
System under the Comerica Note Purchase Agreement are terminated by reason of
the final, irrevocable payment in full of the "Obligations" as defined in the
Comerica Note Purchase Agreement, constitutes a legal, valid and binding
obligation of the System, enforceable in a Michigan court of competent
jurisdiction (or in a federal court in Michigan) in accordance with its terms,
except to the extent that enforceability may be limited by bankruptcy,
insolvency or other laws affecting creditors' rights generally (now existing or
hereafter enacted), and by general principles of equity (regardless of whether
enforcement is sought at law or in equity).
4. The Resolutions were duly and regularly adopted by the duly
constituted Board of Trustees of the System, in accordance with all applicable
laws, charter provisions, ordinances, and regulations and have not been
rescinded and remain in full force and effect on the date hereof.
5. There is no action, suit, proceeding or investigation
before any court, public board or body to which the System is a party or, to
the best of my knowledge and information after due inquiry with respect
thereto, which is threatened against the System, or, to my actual knowledge,
any litigation pending in the State of Michigan, any adverse decision of either
of which would have a material adverse effect on the ability of the System to
perform its obligations under the Note Purchase Agreement.
6. The System is a governmental pension plan within the
provisions of the Internal Revenue Code and is not subject to the provisions of
the Employee Retirement Income Security Act of 1974, as amended.
7. The System is not subject to the jurisdiction of the
Pension Benefit Guaranty Corporation ("PBGC"); and in the event of the
insolvency of the System, the PBGC will not have
2
<PAGE> 116
any jurisdiction in insolvency or reorganization proceedings, and the System
will not be subject to PBGC receivership or regulation.
I am a member of the Bar of the State of Michigan and do not express any
opinion herein concerning any law other than the law of the State of Michigan
and the Federal law of the United States.
This opinion letter may be relied upon by you and other present or future
owners or holders of the Obligations and your and their legal counsel only in
connection with the transactions contemplated by the Note Purchase Agreement
and may not be used, relied upon or furnished by or to any other person or for
any purpose whatsoever without my prior consent.
Very truly yours,
RONALD ZAJAC, P.C.
By:
-----------------------------------
3
<PAGE> 117
EXHIBIT G-1
DISBURSEMENT REQUEST CERTIFICATE -
SERVICING REFINANCING
The undersigned, ______________, certifies to Texas Commerce Bank National
Association (the "BANK") that he is the duly appointed Chief Financial Officer
of MCA Financial Corp., a Michigan corporation (the "COMPANY"). Pursuant to
that certain Revolving Credit Loan Agreement (Secured) among the Company, the
other Borrowers named therein and the Bank dated June ___, 1997 (the "LOAN
AGREEMENT"), the Company has delivered a request to the Bank dated as of
________, 199__, for disbursement of a Revolving Loan. In connection with such
request and pursuant to Section 4.2(a) of the Loan Agreement, the undersigned
further certifies to the Bank as follows:
1. Capitalized terms in this Disbursement Request Certificate
and not otherwise herein defined have the meaning ascribed to them in the Loan
Agreement.
2. The proceeds of the requested Revolving Loan are to be used
to refinance Eligible Servicing Rights heretofore financed for the Borrowers by
another lender; the Borrowers own good and marketable title to such Servicing
Rights; upon disbursement of the requested Revolving Loan, the Bank will have a
first and prior perfected security interest in and to such Servicing Rights,
free and clear of any lien, charge or interest of any party other than the
applicable Agency (pursuant to the applicable Agency Contract); and, pursuant
to the Enhancement Agreement, a security interest second and subordinate to the
Bank's security interest, in favor of the Pension Fund.
3. All of the Servicing Rights to be so refinanced are
Eligible Servicing Rights.
4. Upon funding of such Revolving Loan, all of the Servicing
Rights to be so refinanced shall be pledged to the Bank as Collateral, and to
no other person (except pursuant to a Permitted Lien granted to the Pension
Fund pursuant to the Enhancement Agreement), and shall be subject to the Loan
Agreement and the Security Agreement.
5. The Company has delivered to the Bank and the Pension Fund
in a timely fashion true and complete copies of all documents required to be
delivered to them pursuant to Section 4.2(c) of the Loan Agreement.
6. All approvals with respect to the Servicing Rights
refinancing required under Section 4.2(d) of the Loan Agreement have been
obtained, and true and complete copies thereof have been delivered to the Bank.
<PAGE> 118
7. All acknowledgments or other consents required under
Section 4.2(e) of the Loan Agreement have been obtained, and true and complete
copies thereof have been delivered to the Bank.
8. No Default or Event of Default has occurred and is
continuing as of this date.
9. The representations and warranties set forth in Section 5
of the Loan Agreement and Section 5 of the Security Agreement are true and
correct as of this date.
IN WITNESS WHEREOF, the undersigned has executed this Disbursement
Request Certificate this ___ day of _______, 199_.
MCA FINANCIAL CORP.
By:
--------------------------------------
Name:
--------------------------------------
Chief Financial Officer
2
<PAGE> 119
EXHIBIT G-2
DISBURSEMENT REQUEST CERTIFICATE -
SERVICING ACQUISITION
The undersigned, ______________, certifies to Texas Commerce Bank National
Association (the "BANK") that he is the duly appointed Chief Financial Officer
of MCA Financial Corp., a Michigan corporation (the "COMPANY"). Pursuant to
that certain Revolving Credit Loan Agreement (Secured) among the Company, the
other Borrowers named therein and the Bank dated June ___, 1997 (the "LOAN
AGREEMENT"), the Company has delivered a request to the Bank dated as of
________, 199__, for disbursement of a Revolving Loan. In connection with such
request and pursuant to Section 4.2(a) of the Loan Agreement, the undersigned
further certifies to the Bank as follows:
1. Capitalized terms in this Disbursement Request Certificate
and not otherwise herein defined have the meaning ascribed to them in the Loan
Agreement.
2. The proceeds of the requested Revolving Loan are to be used
to finance a Servicing Acquisition; and upon disbursement of such proceeds to
the seller of the related Servicing Rights, a Borrower shall own good and
marketable title to such Servicing Rights, free and clear of any lien, charge
or interest of any party other than the applicable Agency (pursuant to the
applicable Agency Contract), the Bank and, pursuant to the Enhancement
Agreement, the Pension Fund.
3. All of the Servicing Rights to be acquired in the proposed
Servicing Acquisition are Eligible Servicing Rights.
4. All of the Servicing Rights to be acquired in the proposed
Servicing Acquisition shall be pledged to the Bank upon acquisition as
Collateral, and to no other person (except pursuant to a Permitted Lien granted
to the Pension Fund pursuant to the Enhancement Agreement), and shall be
subject to the Loan Agreement and the Security Agreement.
5. The Company has delivered to the Bank and the Pension Fund
in a timely fashion true and complete copies of all documents required to be
delivered to them pursuant to Section 4.2(c) of the Loan Agreement.
6. All approvals with respect to the Servicing Acquisition
required under Section 4.2(d) of the Loan Agreement have been obtained, and
true and complete copies thereof have been delivered to the Bank.
<PAGE> 120
7. All acknowledgments or other consents required under
Section 4.2(e) of the Loan Agreement have been obtained, and true and complete
copies thereof have been delivered to the Bank.
8. No Default or Event of Default has occurred and is
continuing as of this date.
9. The representations and warranties set forth in Section 5
of the Loan Agreement and Section 5 of the Security Agreement are true and
correct as of this date.
IN WITNESS WHEREOF, the undersigned has executed this Disbursement
Request Certificate this ___ day of _______, 199_.
MCA FINANCIAL CORP.
By: _____________________________
Name: ___________________________
Chief Financial Officer
2
<PAGE> 121
EXHIBIT G-3
DISBURSEMENT REQUEST CERTIFICATE -
ORIGINATED SERVICING
The undersigned, ______________, certifies to Texas Commerce Bank National
Association (the "BANK") that he is the duly appointed Chief Financial Officer
of MCA Financial Corp., a Michigan corporation (the "COMPANY"). Pursuant to
that certain Revolving Credit Loan Agreement (Secured) among the Company, the
other Borrowers named therein and the Bank dated June ___, 1997 (the "LOAN
AGREEMENT"), the Company has delivered a request to the Bank dated as of
_______, 199_, for pursuant to Section 4.2(a) of the Loan Agreement, the
undersigned further certifies to the Bank as follows:
1. Capitalized terms used in this Disbursement Request
Certificate and not otherwise herein defined have the meaning ascribed to them
in the Loan Agreement.
2. There is not outstanding on this date any Revolving Loan
previously advanced by the Bank with respect to the Originated Servicing to
which the requested Revolving Loan relates.
3. All of the Originated Servicing to which such requested
Revolving Loan relates shall be pledged to the Bank, and to no other person
(except pursuant to a Permitted Lien granted to the Pension Fund pursuant to
the Enhancement Agreement), and shall be subject to the Loan Agreement and the
Security Agreement.
4. All acknowledgments or other consents required under
Section 4.2(e) of the Loan Agreement have been obtained, and true and complete
copies thereof have been delivered to the Bank.
5. No Default or Event of Default has occurred and is
continuing as of this date.
6. The representations and warranties set forth in Section 5
of the Loan Agreement and Section 5 of the Security Agreement are true and
correct as of this date.
IN WITNESS WHEREOF, the undersigned has executed this Disbursement Request
Certificate this ___ day of _______, 199_.
MCA FINANCIAL CORP.
By: _____________________________
Name: _____________________________
Chief Financial Officer
<PAGE> 122
EXHIBIT G-4
DISBURSEMENT REQUEST CERTIFICATE -
RESIDUALS FINANCING
The undersigned, ______________, certifies to Texas Commerce Bank National
Association (the "BANK") that he is the duly appointed Chief Financial Officer
of MCA Financial Corp., a Michigan corporation (the "COMPANY"). Pursuant to
that certain Revolving Credit Loan Agreement (Secured) among the Company, the
other Borrowers named therein and the Bank dated June ___, 1997 (the "LOAN
AGREEMENT"), the Company has delivered a request to the Bank dated as of
________, 199__, for disbursement of a Revolving Loan. In connection with such
request and pursuant to Section 4.2(a) of the Loan Agreement, the undersigned
further certifies to the Bank as follows:
1. Capitalized terms in this Disbursement Request Certificate
and not otherwise herein defined have the meaning ascribed to them in the Loan
Agreement.
2. The proceeds of the requested Revolving Loan are to be used
to finance Eligible Residuals, and upon issuance of the related Mortgage
Securities, a Borrower shall own good and marketable title to such Eligible
Residuals, free and clear of any lien, charge or interest of any party other
than the Bank's first priority perfected security interest therein and,
pursuant to the Enhancement Agreement, the Pension Fund's junior and
subordinate security interest therein.
3. All of the residual interests to be financed with such
Revolving Loan are Eligible Residuals.
4. All of the residual interests to be financed with such
Revolving Loans shall be pledged to the Bank upon issuance of the related
Mortgage Securities, and to no other person (except pursuant to a Permitted
Lien granted to the Pension Fund pursuant to the Enhancement Agreement), and
shall be subject to the Loan Agreement and the Security Agreement.
5. The Company has delivered to the Bank and the Pension Fund
in a timely fashion true and complete copies of all documents required to be
delivered to them pursuant to Section 4.2(c) of the Loan Agreement.
6. All approvals with respect to the relevant residual
interests' ownership and financing required under Section 4.2(d) of the Loan
Agreement have been obtained, and true and complete copies thereof have been
delivered to the Bank.
7. The relevant Mortgage Securities shall have been issued (or
will be issued concurrently with the funding of the requested Revolving Loan).
<PAGE> 123
8. No Default or Event of Default has occurred and is
continuing as of this date.
9. The representations and warranties set forth in Section 5
of the Loan Agreement and Section 5 of the Security Agreement are true and
correct as of this date.
IN WITNESS WHEREOF, the undersigned has executed this Disbursement
Request Certificate this ___ day of _______, 199_.
MCA FINANCIAL CORP.
By: _______________________________
Name: _____________________________
Chief Financial Officer
2
<PAGE> 124
EXHIBIT H
MCA FINANCIAL CORP.
SERVICING RIGHTS CERTIFICATE
The undersigned, ________________, certifies to Texas Commerce Bank
National Association (the "BANK") that he is the duly appointed Chief Financial
Officer of MCA Financial Corp., a Michigan corporation (the "COMPANY").
Pursuant to Section 6.1(e) of that certain Revolving Credit Loan Agreement
(Secured) among the Company, the other Borrowers named therein and the Bank
dated June __, 1997 (the "LOAN AGREEMENT"), the undersigned further certifies
to the Bank as follows:
1. Capitalized terms used in this certificate and not
otherwise herein defined have the meaning ascribed to them in the Loan
Agreement. As used herein, "SERVICING RIGHTS" excludes books, ledgers,
records, computer software and programs, instructional manuals and other
written or electronic information.
2. Attached hereto as Exhibit A is a list of all Servicing
Rights in which the Borrowers have any right, title or interest as of
_____________, 199__, including all Eligible Servicing Rights. As of such
date, the aggregate principal balance of the mortgage loans to which such
Servicing Rights relate is:
<TABLE>
<S> <C>
(a) with regard to the Eligible Servicing Rights: $___________
(b) with regard to the other Servicing Rights: $___________
Total $
===========
</TABLE>
3. As of _________, 199__, the aggregate cost, net of depreciation,
of all such Servicing Rights was $__________, consisting of:
<TABLE>
<S> <C>
(a) with regard to the Eligible Servicing Rights: $___________
(b) with regard to the other Servicing Rights: $___________
Total $
==========
</TABLE>
4. As of ___________, 199__, the aggregate market value of all such
Servicing Rights, based, solely on the report of ________________ dated
_____________, 199__, and determined pursuant to Section 6.12 of the Loan
Agreement, was $__________, consisting of:
<TABLE>
<S> <C>
(a) with regard to the Eligible Servicing Rights: $___________
</TABLE>
<PAGE> 125
<TABLE>
<S> <C> <C> <C>
(b) with regard to the other Servicing Rights: $___________
Total $
===========
</TABLE>
IN WITNESS WHEREOF, the undersigned has executed this Servicing Rights
Certificate this ___ day of ________, 199__.
MCA FINANCIAL CORP.
By: ____________________________________
Name: __________________________________
Chief Financial Officer
2
<PAGE> 126
EXHIBIT I
MCA FINANCIAL CORP.
RESIDUAL INTERESTS CERTIFICATE
The undersigned, ________________, certifies to Texas Commerce Bank
National Association (the "BANK") that he is the duly appointed Chief Financial
Officer of MCA Financial Corp., a Michigan corporation (the "COMPANY").
Pursuant to Section 6.1(f) of that certain Revolving Credit Loan Agreement
(Secured) among the Company, the other Borrowers named therein and the Bank
dated June __, 1997 (the "LOAN AGREEMENT"), the undersigned further certifies
to the Bank as follows:
1. Capitalized terms used in this certificate and not otherwise
herein defined have the meaning ascribed to them in the Loan Agreement.
2. Attached hereto as Exhibit A is a list of all residual
interests in Mortgage Securities in which the Borrowers have any right, title
or interest as of _____________, 199__, including all Eligible Residual
Interests (separately classified as such on such exhibit). As of such date,
the aggregate appraised value (as most recently appraised by an Approved
Residuals Appraiser) of such residual interests is:
<TABLE>
<S> <C> <C>
(a) with regard to the residual interests that
are not pledged to the Bank: $
-----------------
(b) with regard to the Eligible Residual Interests
pledged to the Bank: $
-----------------
Total $
=================
</TABLE>
IN WITNESS WHEREOF, the undersigned has executed this Servicing Rights
Certificate this ___ day of ________, 199__.
MCA FINANCIAL CORP.
By:
------------------------------------
Name:
------------------------------------
Chief Financial Officer
<PAGE> 127
SCHEDULE CA
CONTROL AGREEMENT
_____________________, 199__
TEXAS COMMERCE BANK NATIONAL ASSOCIATION ("Texas Commerce"), a national banking
association;
THE BOARD OF TRUSTEES OF THE POLICEMEN AND FIREMEN RETIREMENT SYSTEM OF THE
CITY OF DETROIT ("Board"), a pension plan and trust originally established by
the Charter and Municipal Code of the City of Detroit;
MCA FINANCIAL CORPORATION ("MCAFC"), MCA MORTGAGE CORPORATION ("MCAMC") and
MORTGAGE CORPORATION OF AMERICA ("MCA"), all Michigan corporations collectively
referred to as "Debtors" or individually as a "Debtor"; and
CHASE SECURITIES OF TEXAS, INC. ("Securities Intermediary"), a Delaware
corporation;
hereby agree as follows:
P R E A M B L E:
(i) Securities Intermediary and Debtors have entered
into a customer agreement, a copy of which is
attached hereto as Exhibit A (the "Customer
Agreement"), pursuant to which Securities
Intermediary has established its securities
account number in the name of Debtors (the
"Account").
(ii) Debtors and Texas Commerce have entered into the
Security Agreement dated as of June ___, 1997, a
copy of which is attached hereto as Exhibit B
(the "Texas Commerce Security Agreement"), in
which Debtors have granted Texas Commerce a
security interest in the Account.
(iii) Debtors and the Pension Fund have entered into an
Amended and Restated Master Security Agreement
dated as of June ___, 1997, a copy of which is
attached hereto as Exhibit C (the "Pension Fund
Security Agreement"), in which Debtors
<PAGE> 128
have granted the Pension Fund a security interest
in the Account.
(iv) The Pension Fund's security interest in the
Account is subordinate and inferior to the Bank's
security interest in the Account.
(v) Texas Commerce, the Pension Fund, Debtors and
Securities Intermediary are entering into this
Agreement to provide for the control of the
Account and to perfect the first security
interest of Texas Commerce in the Account as more
fully described in the Texas Commerce Security
Agreement and the second security interest of the
Pension Fund in the Account as more fully
described in the Pension Fund Security Agreement.
T E R M S:
SECTION 1. THE ACCOUNT. Securities Intermediary hereby represents and
warrants to Texas Commerce, Pension Fund and Debtors that (i) the Account has
been established in the name of Debtors as recited above, (ii) Exhibit D
attached hereto is a complete and accurate statement of the Account and the
financial assets carried therein and any free credit balance thereunder as of
the date hereof, (iii) Exhibit D does not reflect any financial assets which
are registered in the name of Debtors, payable to Debtors' order, or specially
endorsed to Debtors, which have not been endorsed to Securities Intermediary or
in blank, (iv) the Customer Agreement, the security entitlement arising out of
the financial assets carried in the Account and such free credit balance are
valid and legally binding obligations of Securities Intermediary, (v) except
for the claims and interest of Texas Commerce, of the Pension Fund and of
Debtors in the Account, and the claims and interests (if any) reserved by the
issuer(s) or prior endorser(s) of such financial assets, Securities
Intermediary does not know of any claim to or interest in the Account or in any
financial asset carried therein, (vi) no agreement relating to the Account has
been entered into between the Securities Intermediary and Debtors, other than
this Agreement and the Customer Agreement, (vii) until Texas Commerce shall
have given written notice to the Securities Intermediary that Texas Commerce no
longer holds any security interest or other interest in the Securities Account
(a "Texas Commerce Termination Notice"), the Securities Intermediary recognizes
the Texas Commerce as the sole party entitled to give any instructions with
respect to the Account, (viii) from and after the date (if ever) when Texas
Commerce shall give a Texas Commerce Termination Notice to Securities
Intermediary, the Securities Intermediary will recognize the Pension Fund as
the sole party entitled to give any instructions with respect to the Account
and (ix) until the termination of this Agreement, Securities Intermediary will
treat all property held by it in the Account as financial assets under Article
8 of the Uniform Commercial Code of the State of Texas.
2
<PAGE> 129
SECTION 2. NO WITHDRAWALS. Notwithstanding the provisions of Section 4
below, Securities Intermediary shall neither accept nor comply with any
entitlement order from any Debtor withdrawing any financial assets from the
Account nor deliver any such financial assets to Debtors nor pay any free
credit balance or other amounts owing from Securities Intermediary to any
Debtor with respect to the Account without (i) before Securities Intermediary's
receipt of a Texas Commerce Termination Notice, the specific prior written
consent of Texas Commerce or (ii) after Securities Intermediary's receipt of a
Texas Commerce Termination Notice, the specific prior written consent of the
Pension Fund.
SECTION 3. PRIORITY OF LIEN. Securities Intermediary hereby acknowledges
that it has received a copy of the Texas Commerce Security Agreement, consents
to the terms thereof and recognizes the security interest granted therein to
Texas Commerce by Debtors. Securities Intermediary also hereby acknowledges
that it has received a copy of the Pension Fund Security Agreement, consents to
the terms thereof and recognizes the security interest granted therein to the
Pension Fund by Debtors. Securities Intermediary hereby acknowledges and
recognizes the first and senior priority of the Texas Commerce Security
Agreement and its security interest in favor of Texas Commerce over the
Pension Fund Security Agreement and its security interest in favor of the
Pension Fund. Securities Intermediary hereby confirms that the Account is a
cash account and that it will not advance any margin or other credit to Debtors
therein, either directly or by allowing Debtors to trade in instruments such as
options and commodities contracts that create similar obligations, nor
hypothecate any securities carried in the Account. Securities Intermediary
will not agree with any third party that Securities Intermediary will comply
with entitlement orders concerning the Account originated by such third party
without the prior written consent of Texas Commerce, the Pension Fund and
Debtors.
SECTION 4. CONTROL. Securities Intermediary will comply with entitlement
orders originated by Texas Commerce concerning the Account without further
consent by the Pension Fund or by Debtors. After receipt of the Texas Commerce
Termination Notice, Securities Intermediary will comply with entitlement orders
originated by the Pension Fund concerning the Account without further consent
by Texas Commerce or by Debtors. Securities Intermediary shall not comply with
instructions or entitlement orders originated by Debtors concerning the Account
without the prior written consent of both Texas Commerce and the Pension Fund.
SECTION 5. STATEMENTS, CONFIRMATIONS AND NOTICES OF ADVERSE CLAIMS.
Securities Intermediary will send copies of all statements (not less often than
once each calendar month), confirmations and other correspondence concerning
the Account simultaneously to MCAF, Texas Commerce and the Pension Fund at
their respective addresses set forth by their signature blocks below. If any
person asserts any lien, encumbrance or adverse claim against the Account or in
any financial asset carried therein, Securities Intermediary will promptly
notify Texas Commerce, the Pension Fund and Debtors thereof.
3
<PAGE> 130
SECTION 6. RESPONSIBILITY OF SECURITIES INTERMEDIARY. Securities
Intermediary shall have no responsibility or liability to Debtors for complying
with entitlement orders concerning the Account originated by Texas Commerce or,
after Securities Intermediary's receipt of what it believes to be a Texas
Commerce Termination Notice, the Pension Fund. Neither this Agreement nor the
Security Agreement imposes or creates any obligation or duty on Securities
Intermediary other than those expressly set forth herein.
SECTION 7. TAX REPORTING. All items of income, gain, expense and loss
recognized in the Account shall be reported to the Internal Revenue Service and
all state and local taxing authorities under the name and taxpayer
identification number of MCAF.
SECTION 8. CUSTOMER AGREEMENT. This Agreement supplements the Customer
Agreement among the parties hereto. In the event of a conflict between this
Agreement and the Customer Agreement, the terms of this Agreement will prevail.
Regardless of any provision in the Customer Agreement, Texas shall be deemed to
be the Securities Intermediary's location for the purposes of this Agreement
and the perfection and first priority of Texas Commerce's security interest in
the Account and the perfection and second priority of the Pension Fund's
security interest in the Account.
SECTION 9. TERMINATION. The rights and powers granted herein to Texas
Commerce have been granted in order to perfect its security interest in the
Account, are powers coupled with an interest and will neither be affected by
the termination, liquidation, dissolution, merger or bankruptcy of any Debtor
nor by the lapse of time. The rights and powers granted herein to the Pension
Fund have been granted in order to perfect its security interest in the
Account, are powers coupled with an interest and also will neither be affected
by the termination, liquidation, dissolution, merger or bankruptcy of any
Debtor nor by the lapse of time. The obligations of Securities Intermediary to
Texas Commerce under Sections 2, 3, 4 and 5 above shall continue in effect
until the security interest of Texas Commerce in the Account has been
terminated pursuant to the terms of the Texas Commerce Security Agreement and
Texas Commerce has notified Securities Intermediary of such termination in
writing. Upon receipt of such notice, the obligations of Securities
Intermediary to Texas Commerce under Sections 2, 3, 4 and 5 above with respect
to the operation and maintenance of the Account after the receipt of such
notice shall terminate, Texas Commerce shall have no further right to originate
entitlement orders concerning the Account and Securities Intermediary may --
and upon request made by Debtors or the Pension Fund will -- remove the name of
Texas Commerce from the Account. The obligations of Securities Intermediary to
the Pension Fund under Sections 2, 3, 4 and 5 above shall continue in effect
until the security interest of the Pension Fund in the Account has been
terminated pursuant to the terms of the Pension Fund Security Agreement and the
Pension Fund has notified Securities Intermediary of such termination in
writing. Upon receipt of such notice, the obligations of Securities
Intermediary to the Pension Fund under Sections 2, 3, 4 and 5 above with
respect to the operation and maintenance of the Account after the receipt of
such notice shall terminate, the Pension Fund shall have no further right to
originate entitlement orders concerning the Account and Securities Intermediary
may take
4
<PAGE> 131
such steps as Debtors may request to vest full ownership and control of the
Account in Debtors, including, but not limited to, removing the name of the
Pension Fund from the Account or, if (and only if) the rights of Texas Commerce
have also terminated, transferring all of the financial assets and credit
balances in the Account to another securities account in the name of Debtors or
their designee.
SECTION 10. EXPENSES. All expenses incurred by Securities Intermediary in
the ordinary course of its administration of the Account will be Debtors' sole
responsibility and may not be repaid from or charged against the Collateral
until all obligations secured by the Texas Commerce Security Agreement and all
obligations secured by the Pension Fund Security Agreement have been
indefeasibly repaid in full.
SECTION 11. AMENDMENTS. No amendments, modification or termination of
this Agreement or waiver of any right hereunder shall be binding on any party
hereto unless it is in writing and is signed by the party to be charged.
SECTION 12. SEVERABILITY. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of this Agreement,
or the application of such terms or provisions to persons or circumstances,
other than those to which it is held invalid or unenforceable, shall be
construed in all respects as if such invalid or unenforceable term or provision
were omitted.
SECTION 13. SUCCESSORS. The terms of this Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their
respective corporate successors or heirs and personal representatives.
SECTION 14. RULES OF CONSTRUCTION. In this Agreement, words in the
singular number include the plural, and in the plural include the singular,
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender and the
word "or" is disjunctive but not exclusive. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience. They
do not define, limit or describe the scope or intent of the provisions of this
Agreement.
SECTION 15. NOTICES. Any notice, request or other communication required
or permitted to be given under this Agreement shall be in writing and deemed to
have been properly given when delivered in person (including, if by telecopy,
upon confirmation of receipt), or two (2) business days after being sent by
certified or registered United States mail, return receipt requested, postage
prepaid, addressed to the party at the address set forth next to such party's
signature block below. Any party may change its address for notices in the
manner set forth above.
SECTION 16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
5
<PAGE> 132
SECTION 17. CHOICE OF LAW. The parties hereto agree that certain material
events, occurrences and transactions relating to this Agreement bear a
reasonable relationship to the State of Texas. THE VALIDITY, TERMS,
PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY THOSE LAWS
OF THE STATE OF TEXAS WHICH ARE APPLICABLE TO AGREEMENTS WHICH ARE NEGOTIATED,
EXECUTED, DELIVERED AND PERFORMED SOLELY IN THE STATE OF TEXAS.
SECTION 18. AMENDMENT OF OTHER AGREEMENTS. For purposes of the perfection
of Texas Commerce's first and prior security interest in the Account and the
perfection of the Pension Fund's second and subordinate security interest in
the Account, and the effect of perfection and nonperfection and the priority of
security interests in the Account, Debtors and Securities Intermediary hereby
agree that all prior agreements between them, including the Customer Agreement,
are hereby amended to be governed by the laws of the State of Texas and to
delete any provision thereof permitting Securities Intermediary to grant a
security interest in or pledge any of Debtors' property in the Account, and
that such choice of law provision and such provision deleting Securities
Intermediary's power to grant a security interest in or pledge any property in
the Account will not be amended in this or any other agreement between Debtors
and Securities Intermediary without Texas Commerce's and the Pension Fund's
prior written consent.
SECTION 19. THIS AGREEMENT. This Agreement, the schedules and exhibits
hereto and the agreements and instruments required to be executed and delivered
hereunder set forth the entire agreement of the parties with respect to the
subject matter hereof and supersede and discharge all prior agreements (written
or oral) and negotiations and all contemporaneous oral agreements concerning
such subject matter and negotiations. There are no oral conditions precedent
to the effectiveness of this Agreement. THIS WRITTEN AGREEMENT REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
6
<PAGE> 133
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their undersigned duly authorized officers.
DEBTORS:
MCAFC:
MCA FINANCIAL CORPORATION Address:
23999 Northwestern Hwy., Suite 230
Southfield, MI 48075
By: Attention: Mr. Keith D. Pietila
---------------------- Phone: (248) 358-5555
Name: Fax: (248) 358-7507
--------------------
Title:
-------------------
MCAMC:
MCA MORTGAGE CORPORATION Address:
23999 Northwestern Hwy., Suite 230
Southfield, MI 48075
By: Attention: Mr. Keith D. Pietila
---------------------- Phone: (248) 358-5555
Name: Fax: (248) 358-7507
--------------------
Title:
-------------------
MCA:
MORTGAGE CORPORATION
OF AMERICA Address:
23999 Northwestern Hwy., Suite 230
Southfield, MI 48075
By: Attention: Mr. Keith D. Pietila
---------------------- Phone: (248) 358-5555
Name: Fax: (248) 358-7507
--------------------
Title:
-------------------
[Unnumbered signature page to Control Agreement]
<PAGE> 134
SECURITIES INTERMEDIARY:
CHASE SECURITIES OF TEXAS, INC. Address:
707 Travis Street
9th Floor North
By: Houston, Texas 77002-8094
------------------------- Phone: (713) ________
Name: Fax: (713) _______
-------------------------
Title:
------------------------
Texas Commerce:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION Address:
712 Main Street
Houston, Texas 77002
By: Attention: Ms. Pamela E. Skinner
------------------------- Phone: (713) 216-5382
Name: Fax: (713) 216-2082
-------------------------
Title:
------------------------
[Unnumbered signature page to Control Agreement]
<PAGE> 135
Pension Fund:
BOARD OF TRUSTEES OF THE
POLICEMEN AND FIREMEN
RETIREMENT SYSTEM OF THE
CITY OF DETROIT Address:
908 City-County Building
Detroit, Michigan 48226
By: Attention: Executive Secretary
------------------------- Phone: (313) 224-3362
Name: Fax: (313) 224-3522
-------------------------
Title:
------------------------
By: with copies to:
------------------------- Plante & Moran, LLP
Name: 27400 Northwestern Highway, Ste. 300
------------------------- Southfield, Michigan 48037-0307
Title: Attention: Jon Woods or Larry Cooley
------------------------ Phone: (248) 827-0466
Fax: (248) 352-0018
and
Ronald Zajac, Esq.
243 West Congress, Suite 480
Detroit, Michigan 48226
Phone: (313) 961-6342
Fax: (313) 961-6559
[Unnumbered signature page to Control Agreement]
<PAGE> 136
ATTACHMENTS:
Exhibit A - Customer Agreement
Exhibit B - Texas Commerce Security Agreement
Exhibit C - Pension Fund A&R Master Security Agreement
Exhibit C - Account Statement
<PAGE> 137
EXHIBIT M
(RESIDUALS RIGHTS ASSIGNMENT FORM)
RESIDUALS ASSIGNMENT
For and in consideration of $10 and other good and valuable consideration
paid to MCA FINANCIAL CORP. ("MCAF"), MCA MORTGAGE CORPORATION ("MCAMC") and
MORTGAGE CORPORATION OF AMERICA ("MCA"), each a Michigan corporation, by CHASE
SECURITIES OF TEXAS, INC. ("Chase Securities/Texas"), a Delaware corporation,
the receipt and sufficiency of which each hereby acknowledges, MCAF, MCAMC and
MCA hereby transfer and assign to Chase Securities/Texas, its successors and
assigns: (i) the Synthetic Residual Certificate (the "Certificate"), a copy of
which is attached as Exhibit A hereto and hereby incorporated herein; (ii) all
of MCAF's, MCAMC's and MCA's rights to receive payment of Residual Excess
Servicing and Deferred Premium Payments in respect of any and all Securitized
Loan Pools now or hereafter due to MCAF, MCA and MCAMC, or any of them,
pursuant to and subject to Section 9 of the Securitization Access Agreement
(defined in Exhibit A) (the "Payment Rights"); and (iii) MCAF's, MCAMC's and
MCA's security interest (the "Security Interest") in the Collateral (as defined
in the Security Agreement, which is in turn defined in Exhibit A).
EXECUTED effective as of __________, 199__.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: By:
------------------------- -----------------------------------
Name: Name:
------------------------- -----------------------------------
Title: Title:
------------------------ -----------------------------------
MORTGAGE CORPORATION
OF AMERICA
By:
-------------------------
Name:
-------------------------
Title:
------------------------
CONSENT
Advanta Mortgage Conduit Services, Inc. and Advanta Mortgage Corp., USA
hereby expressly consent to the foregoing transfer and assignment and hereby
recognize Chase Securities
<PAGE> 138
of Texas, Inc., its successors and assigns, as the assignee, transferee, owner
and holder of this Synthetic Residual Certificate and all such related rights
and security thereby transferred and assigned.
EXECUTED effective as of _______________, 1997.
ADVANTA MORTGAGE CONDUIT ADVANTA MORTGAGE
SERVICES, INC. CORP., USA
By: By:
--------------------------- -------------------------------------
Name: Name:
------------------------- ------------------------------------
Title: Title:
------------------------ ------------------------------------
DESIGNATION AS FINANCIAL ASSETS
Pursuant to Section 8.102(9) of the Tex. Bus. & Comm. Code (the Uniform
Commercial Code as it is in force in the State of Texas), MCAF, MCAMC, MCA and
CHASE SECURITIES OF TEXAS, INC. hereby agree that all of the property, rights
and interests transferred and assigned to Chase Securities/Texas by the
foregoing assignment are financial assets.
EXECUTED effective as of __________, 1997.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: By:
--------------------------- ------------------------------------
Name: Name:
------------------------- ------------------------------------
Title: Title:
------------------------ ------------------------------------
MORTGAGE CORPORATION CHASE SECURITIES OF TEXAS, INC.
OF AMERICA
By: By:
--------------------------- -------------------------------------
Name: Name:
------------------------- -------------------------------------
Title: Title:
------------------------ -------------------------------------
<PAGE> 139
SCHEDULE AG
APPLICABLE GUIDELINES
(FOR QUALIFYING POOLS AND THE MORTGAGE LOANS COMPRISING THEM)
Each mortgage loan shall be secured by a closed-end mortgage, in first or
second lien position, to A to D credit borrowers (as defined by Advanta
Mortgage Conduit Services, Inc., a Delaware corporation whose principal
executive offices are at 16875 West Bernardo Drive, San Diego, CA 92127,
telephone (619) 674-1800), on single family 1-4 unit properties.
No less than fifty percent (50%) of any pool shall have been originated with A
and B credit grades.
No ARM pool will be more than two percent (2%) teased at origination
calculated on a weighted average basis.
Each ARM shall be in a first lien position.
Each ARM's interest rate will be tied to either six-month LIBOR or one-year
CMT.
Each ARM will have a two percent (2%) periodic (per annum) cap and a minimum
lifetime cap of six percent (6%).
No more than twenty-five percent (25%) of any pool will consist of two-year
fixed/one-year adjustable, 3/1 or 5/1 intermediate mortgages (Treasury based
Index).
No mortgage loan shall be a simple interest loan.
No more than ten percent (10%) of any pool will consist of mortgage loans with
CLTVs in excess of ninety percent (90%) (without mortgage insurance from a
carrier acceptable to Advanta Mortgage Corp. USA, a Delaware corporation whose
principal executive offices are at 16875 West Bernardo Drive, San Diego, CA
92127.
No less than seventy percent (70% of each pool shall have been originated
under a full documentation program.
No mortgage loan shall be more than thirty (30) days contractually delinquent
as of the securitization cut-off date for the relevant securitization.
<PAGE> 140
SCHEDULE 5.1
SUBSIDIARIES
<TABLE>
<CAPTION>
Company Name Shares Outstanding Shareholder
------------ ------------------ -----------
<S> <C> <C> <C>
I. MCA Mortgage Corporation (MCAMC) 119,909 MCA Financial Corp.
II. Mortgage Corporation of America 50,000 MCA Financial Corp.
III. Complete Financial Corporation 18,750 MCA Financial Corp.
IV. Securities Corporation of 100 MCA Financial Corp.
America
V. MCA Realty Corporation 100 MCA Financial Corp.
</TABLE>
<PAGE> 141
SCHEDULE 6.11
SENIOR MANAGEMENT
Patrick D. Quinlan Chairman, Chief Executive Officer, MCAFC
Keith D. Pietila Executive Vice President, Chief Financial
Officer, MCAFC
Lee P. Wells President, Chief Operating Officer, MCAFC
D. Michael Jehle Executive Vice President, MCAMC
Alexander J. Ajemian Senior Vice President, Controller and
Treasurer
<PAGE> 142
SCHEDULE 6.16
SHAREHOLDERS
OUTSTANDING STOCK IN MCA FINANCIAL CORP. -- 1/31/97
<TABLE>
<CAPTION>
CERTIFICATE NO. OF UNRESTRICTED RESTRICTIONS
NAME NO. SHARES ADDRESS NO. OF SHARES 01/31/97
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Dennis M. Agresta 86 200 3035 Oakshire 1450
125 1500 Berkley, MI 48079
168 750
---
2450
Alexander J. Ajemian 1 400 3038 White Oak Beach 6280
37 800 Highland, MI 48356
91 1080
112 6000
----
8280
Ronald Ballard 97 150 150
Rory C. Ballard 63 1000 16361 Forestview Dr. 1440
160 440 Clinton Twp., MI 48036
---
1440
Mary Deanne Beard 64 1000 307 Chipaway Drive 1000
Alexandria, Indiana 46001
Susan J. Church 40 200 26588 Greythorne Trail 629
92 50 Farmington Hills, MI 48334
134 100
173 279
---
629
Thomas P. Cronin 41 3200 308 Grosse Pointe Blvd. 11200
111 10000 Grosse Pointe Farms, MI 48236
-----
13200
Ronald B. Darga 167 1500 4785 Whitesell 833
Troy, MI 48098
<CAPTION>
RESTRICTIONS RESTRICTIONS
NAME 01/31/98 01/31/99 PERCENTAGE
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C>
Dennis M. Agresta 750 250 0.47%
Alexander J. Ajemian 2000 1.58%
Ronald Ballard 0.03%
Rory C. Ballard 0.28%
Mary Deanne Beard 0.19%
Susan J. Church 0.12%
Thomas P. Cronin 2000 2.52%
Ronald B. Darga 333 334 0.29%
</TABLE>
<PAGE> 143
<TABLE>
<CAPTION>
CERTIFICATE NO. OF UNRESTRICTED RESTRICTIONS
NAME NO. SHARES ADDRESS NO. OF SHARES 01/31/97
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Joseph V. DelCanto 147 98 2828 N.E. Cold Spring Dr. 98
Jensen Beach, FL 34957
James R. Dembek 68 67 27258 Jean 67
Warren, MI 48093
William J. Demetriou 3 4380 1111 Fox Chase Road 4380
Birmingham, MI 48301
Scott A. DeWolf 153 174 2465 Carrington, N.E. 174
Grand Rapids, MI 49505
Matthew T. Donnelly 148 32 211 North St., N.E. 32
Leesburg, VA 22075
Gloria A. Dopp 87 67 21117 Westfarm Court 67
Northville, MI 48167
Arlene Doyle 30 938 48602 Sandifer Court 3330
94 602 Utica, MI 48317
170 1790
----
3330
Ronald L. Dunlap 4 544 6563 Deer Ridge Drive 544
Clarkston, MI 48016
Jeffrey A. Egan 5 2858 6181 Eastmoor 2858
Bloomfield Twp., MI 48301
Harvey R. Faust 6 500 46647 Featherstone Ridge 500
Utica, MI 48087
Teresa S. Fisher 157 19 1851 Rochester Rd. 19
Oakland Twp., MI 48363
James D. Formiller 71 124 3303 43rd St. NW 124
Gig Harbor, WA 98335
Linda Gable-Smith 158 100 1927 Ellwood Avenue 200
89 100 Berkley, MI 48072
---
200
<CAPTION>
RESTRICTIONS RESTRICTIONS
NAME 01/31/98 01/31/99 PERCENTAGE
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C>
Joseph V. DelCanto 0.02%
James R. Dembek 0.01%
William J. Demetriou 0.84%
Scott A. DeWolf 0.03%
Matthew T. Donnelly 0.01%
Gloria A. Dopp 0.01%
Arlene Doyle 0.64%
Ronald L. Dunlap 0.10%
Jeffrey A. Egan 0.55%
Harvey R. Faust 0.10%
Teresa S. Fisher 0.00%
James D. Formiller 0.02%
Linda Gable-Smith 0.04%
</TABLE>
2
<PAGE> 144
<TABLE>
<CAPTION>
CERTIFICATE NO. OF UNRESTRICTED RESTRICTIONS
NAME NO. SHARES ADDRESS NO. OF SHARES 01/31/97
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Robert Grady 42 34 23058 Tuscany 34
East Detroit, MI 48021
Bernard L. Hemker, Sole 36 2858 36938 Valley Ridge Drive 2858
Trustee of Bernard L. Hemker Farmington Hills, MI 48331
Living Trust
Harold C. Hoffman, Jr. 146 184 1831 Marigold Lane 184
Hanover Park, IL 60103
Marisa Hogan-Narro 44 100 20244 Lancaster 100
Harper Woods, MI 48225
Beth Holsbeke 45 134 5391 Folkstone 134
Troy, MI 48098
Dorothy J. Jantz 8 1144 2223 Hollywood 1844
46 400 Grosse Pointe Farms, MI 48236
95 140
133 60
174 100
---
1844
Craig Janutol 9 2858 18 Orchard Lane 2858
Grosse Pointe Farms, MI 48236
D. Michael Jehle 88 4000 2629 Amberly 9666
102 1000 Bloomfield Hills, MI
113 4000 48301
135 1000
163 1000
----
11000
Louis Johnson 75 1092 23511 Noel Drive 1092
Southfield, MI 48075
Larry T. Kleem 180 91 807 Niewahner Dr. 91
Villa Hills, KY 41017
Cheryl Kaye -- formerly 138 40 829 W. Maple, Apt. 903 40
Koslakiewicz Clawson, MI 48017
Holly Quinlan Kubek 161 1000 401 Kercheval Road 1000
Grosse Pointe Farms, MI 48236
<CAPTION>
RESTRICTIONS RESTRICTIONS
NAME 01/31/98 01/31/99 PERCENTAGE
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C>
Robert Grady 0.01%
Bernard L. Hemker, Sole 0.55%
Trustee of Bernard L. Hemker
Living Trust
Harold C. Hoffman, Jr. 0.04%
Marisa Hogan-Narro 0.02%
Beth Holsbeke 0.03%
Dorothy J. Jantz 0.35%
Craig Janutol 0.55%
D. Michael Jehle 1334 2.10%
Louis Johnson 0.21%
Larry T. Kleem 0.02%
Cheryl Kaye -- formerly 0.01%
Koslakiewicz
Holly Quinlan Kubek 0.19%
</TABLE>
3
<PAGE> 145
<TABLE>
<CAPTION>
CERTIFICATE NO. OF UNRESTRICTED RESTRICTIONS
NAME NO. SHARES ADDRESS NO. OF SHARES 01/31/97
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Kevin C. Lasky 48 300 1140 Hillside 500
172 200 Birmingham, MI 48009
---
500
James W. LeBaron 66 500 12136 Warner Road 1290
73 290 Laingsburg, MI 48848
99 500
---
1290
Raymond F. Leggett 169 936 2840 Squirrel Road 936
Bloomfield Twp., MI
48312
Bruce Martin 72 163 P. O. Box 1049 163
Allyn, Washington 98524
Douglas B. McCullough 155 156 1822 State Street 156
Algonac, MI 48001
Anne M. McGraw-Dick 11 534 20436 Mauer 734
122 200 St. Clair Shores, MI
---
734 48080
NML, Inc., a Michigan 33,700 33,700
corporation
Daniel J. O'Connor 164 1097 5577 Hummingbird 1097
Clarkston, MI 48346
William D. O'Halloran 144 343 904 S. Chatham 343
Elmhurst, IL 60126
John P. O'Leary 166 1200 6463 Country Lane Dr. 533
Davisburg, MI 48346
Bertha Peeples 51 200 23230 Avon 375
80 75 Oak Park, MI 48237
175 100
---
375
Joseph P. Papandria 149 200 6006 Prentis Circle 200
Indianapolis, IN 46254
<CAPTION>
RESTRICTIONS RESTRICTIONS
NAME 01/31/98 01/31/99 PERCENTAGE
- ----------------------------------------------------------------------------------
<S> <C> <C> <C>
Kevin C. Lasky 0.10%
James W. LeBaron 0.25%
Raymond F. Leggett 0.18%
Bruce Martin 0.03%
Douglas B. McCullough 0.03%
Anne M. McGraw-Dick 0.14%
NML, Inc., a Michigan 6.44%
corporation
Daniel J. O'Connor 0.21%
William D. O'Halloran 0.07%
John P. O'Leary 333 334 0.23%
Bertha Peeples 0.07%
Joseph P. Papandria 0.04%
</TABLE>
4
<PAGE> 146
<TABLE>
<CAPTION>
CERTIFICATE NO. OF UNRESTRICTED RESTRICTIONS
NAME NO. SHARES ADDRESS NO. OF SHARES 01/31/97
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Keith D. Pietila 13 4666 3592 Pratt Road 26167
35 1500 Ann Arbor, MI 48103
52 2000
84 12001
90 2000
116 6000
----
28167
Detroit Police and Firemens 177 30009 30197
Retirement System 190 188
---
30197
Deborah Pointer 70 134 2775 Buena Vista 134
Highland, MI 48356
Joanne M. Postlethwaite 14 1806 313 Nesbit 1806
Rochester Hills, MI
48073
Harry F. Prisby II 131 533 6924 Cedarbrook Drive 806
152 273 Bloomfield Twp., MI
---
806 48301
John E. Quinlan, Jr.* 16 6666 17525 E. Jefferson 0
Grosse Pointe, MI 48236
Patrick D. Quinlan 83 12001 332 Grosse Pointe Blvd. 22001
105 10000 Grosse Pointe Farms, MI
-----
22001 48236
Patrick D. Quinlan and Cheryl 101 80264 332 Grosse Pointe Blvd. 90134
J. Quinlan, as tenants by the 65 9670 Grosse Pointe Farms, MI
entireties 140 200 48236
---
90134
Patrick D. Quinlan, Jr. 162 1000 394 Kercheval 1000
Grosse Pointe Farms, MI
48236
Katherine Rock Ray 150 200 12854 Fleetwood Dr., S. 200
Carmel, IN 46032
David Rogers 53 100 275 Fairgrove 100
Romeo, MI 48065
<CAPTION>
RESTRICTIONS RESTRICTIONS
NAME 01/31/98 01/31/99 PERCENTAGE
- --------------------------------------------------------------------------------------
<S> <C> <C> <C>
Keith D. Pietila 2000 5.38%
Detroit Police and Firemens 5.73%
Retirement System
Deborah Pointer 0.03%
Joanne M. Postlethwaite 0.35%
Harry F. Prisby II 0.15%
John E. Quinlan, Jr.* 6666 1.27%
always
restricted
Patrick D. Quinlan 4.20%
Patrick D. Quinlan and Cheryl 17.22%
J. Quinlan, as tenants by the
entireties
Patrick D. Quinlan, Jr. 0.19%
Katherine Rock Ray 0.04%
David Rogers 0.02%
</TABLE>
5
<PAGE> 147
<TABLE>
<CAPTION>
CERTIFICATE NO. OF UNRESTRICTED RESTRICTIONS
NAME NO. SHARES ADDRESS NO. OF SHARES 01/31/97
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Leroy G. Rogers 33 10000 4118 Courville 13460
54 400 Detroit, MI 48224
96 60
106 2000
165 1000
----
13460
Richard Schmid 103 1247 1337 E. Lincoln 1247
Birmingham, MI 48009
Nancy J. Smith 74 315 1227 Franciscan Ct. E. 1649
124 1334 Canton, MI 48187
----
1649
Standard Home Mortgage 82 51734 17150 Kercheval 54400
123 4000 Grosse Pointe, MI 48230
----
55734
David E. Stickley 179 219 1005 Carpenters Trace 219
Villa Hills, KY 41017
Cheryl A. Swain 57 400 22822 Highbank 1650
126 1500 Beverly Hills, MI 48025
171 750
---
2650
David A. Vicari 132 516 2127 Lancaster 1183
154 667 Grosse Pointe Woods, MI
---
1183 48236
Janet K. Wells, as Trustee of 81 36000 3 Sycamore 86200
the Janet Knost Wells 98 9000 Grosse Pointe, MI 48230
Revocable Living Trust u/a/d 109 21200
10/18/88 as amended 142 20000
-----
86200
Daniel H. Wells 176 40 780 Harcourt 40
Grosse Pointe Park, MI
48230
<CAPTION>
RESTRICTIONS RESTRICTIONS
NAME 01/31/98 01/31/99 PERCENTAGE
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Leroy G. Rogers 2.57%
Richard Schmid 0.24%
Nancy J. Smith 0.32%
Standard Home Mortgage 1334 10.65%
David E. Stickley 0.04%
Cheryl A. Swain 750 250 0.51%
David A. Vicari 0.23%
Janet K. Wells, as Trustee of 16.47%
the Janet Knost Wells
Revocable Living Trust u/a/d
10/18/88 as amended
Daniel H. Wells 0.01%
</TABLE>
6
<PAGE> 148
<TABLE>
<CAPTION>
CERTIFICATE NO. OF UNRESTRICTED RESTRICTIONS
NAME NO. SHARES ADDRESS NO. OF SHARES 01/31/97
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
David C. Wells 76 451 45 Hawthorne 11011
93 764 Grosse Pointe Shores, MI
110 2000 48236
118 4000
130 4625
151 505
---
12345
David C. Wells and Pamela G. 24 2668 45 Hawthorne 16002
Loomis, as tenants by their 25 13334 Grosse Pointe Shores, MI
-----
entities 16002 48236
Lee P. Wells 85 12000 1038 Whittier 20000
107 8000 Grosse Pointe Park, MI
----
20000 48230
Lee P. Wells and Rhaphael C. 26 2668 1038 Whittier 28372
Wells, as tenants by the 27 13334 Grosse Pointe Park, MI
entireties 67 12170 48230
141 200
---
28372
TOTALS 523283 503281 0
<CAPTION>
RESTRICTIONS RESTRICTIONS
NAME 01/31/98 01/31/99 PERCENTAGE
- --------------------------------------------------------------------------------------
<S> <C> <C> <C>
David C. Wells 1334 2.36%
David C. Wells and Pamela G.
Loomis, as tenants by their
entities
Lee P. Wells 3.82%
Lee P. Wells and Rhaphael C. 5.42%
Wells, as tenants by the
entireties
TOTALS 12168 7834 100.00%
</TABLE>
7
<PAGE> 149
SCHEDULE 7.4
EXISTING INDEBTEDNESS
<TABLE>
<CAPTION>
Maximum Amount Amount
Name Available Outstanding
---- --------- -----------
<S> <C> <C>
Paine Webber $20,000,000 $4,426,335
MCA Funding Partnership $2,000,000 $0
Funding Limited Partnership I $2,000,000 $0
Funding Limited Partnership II $2,000,000 $0
Sterling Bank & Trust $3,000,000 $284,200
11% Asset-Backed Subordinated Debentures due $10,000,000 $10,000,000
June 30, 2000
11% Subordinated Debentures due June 30, 2002 $6,000,000 $2,746,000
11% Subordinated Debentures due June 30, 2003 $10,000,000 $0
Land Contract - Building $542,556 $452,898
Capital Leases N/A $636,298
Texas Commerce Bank $115,000,000 $48,369,064
Franklin Bank $1,000,000 $370,000
Subordinated Note Payable to Pension Fund $15,000,000 $15,000,000
</TABLE>
<PAGE> 150
SCHEDULE 7.6
EXISTING LIENS
1. Liens on warehoused mortgages and land contracts, including the
unseparated mortgage servicing rights related thereto under lines of
credit established with Texas Commerce Bank ($170 million), Heller
Financial, Inc. ($25 million) and with Paine Webber ($20 million).
2. Liens on land contracts, mortgages and real estate properties held in
inventory under lending agreements with MCA Funding Limited
Partnership, MCA Funding Limited Partnership II, PCA Funding Limited
Partnership and Sterling Bank, Franklin Bank and MCA-sponsored
pass-through Pools.
3. Liens on restricted cash accounts consisting of funds held (for
example, in escrow) by a Borrower or its Subsidiaries in the ordinary
course of its business in favor, on behalf or for the benefit of
borrowers, owners of mortgages or land contracts serviced by such
Borrower (such as FHLMC, FNMA, GNMA, or MCA-sponsored pass-through
Pools), or owners of real estate managed by a Borrower or its
subsidiaries (such as MCA-sponsored real estate partnerships and
unaffiliated investors).
4. Assumption of senior liens on real estate investments and land
contracts held for resale.
5. Rights of senior liens on real estate investments and land contracts
held for resale.
6. Existing liens upon equipment granted in connection with the
financing of the acquisition of such equipment, limited to the
equipment financed, which liens are represented by leases which, as
of January 31, 1997, had an aggregate present value of approximately
$636,298.
7. Liens on mortgage and land contract servicing rights and on specified
mortgage notes and land contract vendors' interests under a trust
indenture dated December 30, 1994, between MCAFC and First Union
National Bank in connection with MCAFC's 11% Asset-Backed
Subordinated Debentures due June 30, 2000.
8. Liens on specified residual ownership interests in the income stream
generated from such mortgage-backed securities which are related to
specific borrowings where such residual interests are pledged as
collateral to a lender other than the Bank and are not included in
the Borrowing Base under the Revolving Loan Agreement to which this
Schedule is attached.
9. Liens on specified mortgage servicing rights gratned in connection
with specific borrowings from a lender other than the Bank which are
related to specific borrowings where such mortgage servicing rights
are pledged as collateral to such other lender and are not included
in the Borrowing Base under the Revolving Loan Agreement to which
this Schedule is attached.
<PAGE> 151
10. Liens on mortgage servicing rights and their proceeds under a line of
credit established with Comerica Bank under the Revolving Credit Loan
Agreement (Secured) dated as of April 30, 1993, as amended, providing
a revolving line of credit of up to $28.5 million; provided that such
liens shall be either assigned to the Bank or terminated at the
Bank's funding of the initial Revolving Loan, so that the Bank will
become the owner of such liens -- whether by assignment, by
subrogation or both -- and will enjoy their first priority status as
security for all of the Obligations at all times from and after such
initial Revolving Loan's funding.
11. Liens in favor of the Pension Fund granted under the Enhancement
Agreement which, insofar as they cover or affect the Collateral, are
subordinate and inferior to the Bank's security interests in the
Collateral.
2
<PAGE> 152
INDEX OF DEFINED TERMS
<TABLE>
<S> <C>
"Advanta Securitization Access Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Agency Contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Agency" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Aggregate Credit Limit" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Applicable Covered Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Applicable Margin" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Average Adjusted Base Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Average Adjusted LIBOR Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Average Depositary Balances" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Average Principal Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Bank, Et Al" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
"Bankruptcy Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Bank" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Base Rate Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Base Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Borrower" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrowing Base Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Borrowing Base" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrowing Price Category" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Calendar Month" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Cash Flow" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Ceiling Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Chapter One" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Collateral" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Commitment Amount" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Consolidated" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Contract Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Control" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Default Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Disbursement Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Eligible Balances" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Eligible Residuals" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Servicing Rights" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Enhancement Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
i
<PAGE> 153
<TABLE>
<S> <C>
"ERISA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"FHLMC Servicing Contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"FHLMC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Financing Statements" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Fixed Charges Coverage Ratio" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Fixed Charges" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"FNMA Servicing Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"FNMA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"GAAP" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"GNMA Servicing Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"GNMA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Lender Lien" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"LIBOR Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"LIBOR Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"LIBOR" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Lien" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Loan Documents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Material Adverse Effect" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Maximum Amount" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Maximum Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"MCAFC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"MCAMC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"MCA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Mortgage Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Net Income" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Net Worth" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Note Purchase Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Originated Servicing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"PBGC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Pension Fund A&R Master Security Agreement" . . . . . . . . . . . . . . . . . . . . . . . 13
"Pension Fund" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Permitted Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Principal Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Qualifying Pool" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Reuters Screen LIBO Page" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Revolving Credit Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Revolving Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Security Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Servicing Acquisition" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
ii
<PAGE> 154
<TABLE>
<S> <C>
"Servicing Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Servicing Portfolio" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Servicing Rights" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Subordinated Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Tangible Net Worth" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Termination Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Texas Credit Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Transferee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
"Tribunal" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"UCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
iii
<PAGE> 1
EXHIBIT 10.2
WHOLE LOAN PURCHASE AND SALE AGREEMENT
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
between
MCA Financial Corp.
MCA Inc.
[MCA Mortgage Corp.]
Seller
and
PRUDENTIAL SECURITIES REALTY FUNDING CORPORATION
Purchaser
<PAGE> 2
TABLE OF CONTENTS
PAGE
Section 1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Procedures for Purchases of Mortgage Loans . . . . . . . . . . 8
Section 3. Sale of Mortgage Loans to Takeout Investor . . . . . . . . . . 9
Section 4. Completion Fee . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5. Servicing of the Mortgage Loans. . . . . . . . . . . . . . . . 13
Section 6. Trade Assignments. . . . . . . . . . . . . . . . . . . . . . . 14
Section 7. Transfers of Beneficial Interest in Mortgage Loans by
Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Record Title to Mortgage Loans;
Intent of Parties; Security Interest. . . . . . . . . . . . . 15
Section 9. Representations and Warranties . . . . . . . . . . . . . . . . 16
Section 10. Covenants of Seller. . . . . . . . . . . . . . . . . . . . . . 24
Section 11. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 12. Exclusive Benefit of Parties; Assignment . . . . . . . . . . . 28
Section 13. Amendments; Waivers; Cumulative Rights . . . . . . . . . . . . 28
Section 14. Execution in Counterparts. . . . . . . . . . . . . . . . . . . 28
Section 15. Effect of Invalidity of Provisions . . . . . . . . . . . . . . 28
Section 16. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 17. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 18. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 29
Section 19. Costs of Enforcement . . . . . . . . . . . . . . . . . . . . . 29
Section 20. Consent to Service . . . . . . . . . . . . . . . . . . . . . . 29
Section 21. Submission to Jurisdiction . . . . . . . . . . . . . . . . . . 29
Section 22. Jurisdiction Not Exclusive . . . . . . . . . . . . . . . . . . 29
(i)
<PAGE> 3
Section 23. Construction . . . . . . . . . . . . . . . . . . . . . . . . . 29
EXHIBITS
Exhibit A Trust Receipt
Exhibit B-1 Warehouse Lender's Release
Exhibit B-2 Warehouse Lender's Wire Instructions
Exhibit C-1 Seller's Release
Exhibit C-2 Seller's Wire Instructions
Exhibit D-1 Trade Assignment
Exhibit D-2 Trade Assignment (Blanket)
Exhibit 1 to
Exhibit D-2 Withdrawal of Consent to Blanket Trade Assignment
Exhibit E Purchaser's Wire Instructions
Exhibit F Confirmation
Exhibit G Notice of Rejection of Trade Assignment
Exhibit H Settlement Modification Letter
Exhibit I Takeout Confirmation
(ii)
<PAGE> 4
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement ("Agreement"), dated
as of the date set forth on the cover page hereof, is by and between PRUDENTIAL
SECURITIES REALTY FUNDING CORPORATION ("Purchaser") and the Seller whose name
is set forth on the cover page hereof ("Seller").
PRELIMINARY STATEMENT
Seller may, in its sole discretion, offer to sell to Purchaser from
time to time a 100% undivided ownership interest in certain Mortgage Loans, and
Purchaser, in its sole discretion, may agree to purchase such Mortgage Loans
from Seller in accordance with the terms and conditions set forth in this
Agreement. Seller, subject to the terms hereof, will cause each Mortgage Loan
to be purchased by Takeout Investor. During the period from the purchase of a
Mortgage Loan to the sale of the Mortgage Loan to Takeout Investor, Purchaser
expects to rely entirely upon Seller to service such Mortgage Loan.
The parties hereto hereby agree as follows:
Section 1. Definitions.
Capitalized terms used but not defined herein shall have the meanings
set forth in the Custodial Agreement. As used in this Agreement, the following
terms shall have the following meanings:
"Act of Insolvency": With respect to Seller, (a) the commencement by
Seller as debtor of any case or proceeding under any bankruptcy,
insolvency, reorganization, liquidation, dissolution or similar law,
or Seller's seeking the appointment of a receiver, trustee, custodian
or similar official for Seller or any substantial part of its
property, or (b) the commencement of any such case or proceeding
against Seller, or another's seeking such appointment, or the filing
against Seller of an application for a protective decree which (1) is
consented to or not timely contested by Seller, (2) results in the
entry of an order for relief,such an appointment, the issuance of
such a protective decree or the entry of an order having a similar
effect, or (3) is not dismissed within thirty (30) days, (c) the
making by Seller of a general assignment for the benefit of
creditors, or (d) the admission in writing by Seller that Seller is
unable to pay its debts as they become due or the nonpayment
generally by Seller of its debts as they become due.
<PAGE> 5
"Assignee": As defined in Section 7.
"Business Day": Any day other than (a) a Saturday, Sunday or other
day on which banks located in The City of New York, New York are
authorized or obligated by law or executive order to be closed or (b)
any day on which Prudential Securities Realty Funding Corporation is
closed for business, provided that notice thereof shall have been
given not less than seven (7) calendar days prior to such day, and
provided further that such closing does not conflict with any
business between Seller and Purchaser scheduled for such date prior
to the giving of such notice.
"Collateral": As defined in Section 8(c).
"Commitment Amount": The aggregate outstanding principal amount of
Mortgage Loans to be purchased pursuant to a Takeout Commitment. If
the Commitment Amount is expressed as a fixed amount plus or minus a
percentage in the related Takeout Confirmation, then the amount
required to be delivered by Seller shall be the minimum amount of
such range and the amount required to be purchased by Takeout
Investor shall be the maximum amount of such range.
"Commitment Date": The date set forth in a Takeout Confirmation as
the commitment date.
"Commitment Guidelines": The guidelines, if any, issued by Takeout
Investor regarding the issuance of Takeout Commitments, as amended
from time to time by Takeout Investor.
"Commitment Number": With respect to a Takeout Commitment, the
number identified on the Takeout Confirmation as the commitment
number.
"Completion Fee": With respect to each Mortgage Loan Pool, an amount
equal to the Discount plus the Net Carry Adjustment, less any
reduction pursuant to Section 4(c), which amount shall be payable to
Seller by Purchaser as compensation to Seller for its services
hereunder in connection with the purchase of a Mortgage Loan
Pool.
"Confirmation": A written confirmation of Purchaser's intent to
purchase a Mortgage Loan Pool,
-2-
<PAGE> 6
which written confirmation shall be substantially in the form
attached hereto as Exhibit F.
"Credit File": All Mortgage Loan papers and documents required to be
maintained pursuant to the Sale Agreement, and all other papers and
records of whatever kind or description whether developed or
originated by Seller or others, required to document or service the
Mortgage Loan provided, however, that such Mortgage Loan papers,
documents and records shall not include any Mortgage Loan papers,
documents or records which are contained in the Custodial File.
"Cure Date": With respect to a Mortgage Loan, the date occurring 20
Business Days after the Purchase Date.
"Custodial Account": As defined in Section 5(b).
"Custodial Agreement": The Custodial Agreement, dated as of the date
set forth on the cover sheet thereof, among Seller, Purchaser and
Custodian.
"Custodial File": As defined in the Custodial Agreement.
"Custodian": The Custodian whose name is set forth on the cover page
of the Custodial Agreement and its permitted successors
thereunder.
"Cut-off Date": With respect to a Mortgage Loan, the last day of a
month on which the Settlement Date can occur if accrued interest for
such month is to be collected by Takeout Investor.
"Defective Mortgage Loan": With respect to any Mortgage Loan, either
(i) the Document File does not contain a document required to be
contained therein, (ii) any document within a Document File is, in
the judgment of Takeout Investor, defective or inaccurate in any
material respect, as determined upon evaluation of the Document File
against the requirements of the Sale Agreement or (iii) any document
in the Document File is not legal, valid and binding.
"Discount": With respect to Mortgage Loan Pool sold by Seller to
Purchaser, the amount set forth on the related Confirmation as
the Discount.
-3-
<PAGE> 7
"Document File": The Credit File and the Custodial File.
"Due Date": The day of the month on which the Monthly Payment is due
on a Mortgage Loan.
"Exhibit B-1 Letter": As defined in Section 2(a).
"Exhibit C-1 Letter": As defined in Section 2(a).
"Expiration Date": With respect to any Takeout Commitment, the
expiration date thereof.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor
thereto.
"FNMA": Federal National Mortgage Association or any successor
thereto.
"Losses": Any and all losses, claims, damages, liabilities or
expenses (including reasonable attorneys' fees) incurred by any
person specified; provided, however, that "Losses" shall not include
any losses, claims, damages, liabilities or expenses which would have
been avoided had such person taken reasonable actions to mitigate
such losses, claims, damages, liabilities or expenses.
"Monthly Payment": The scheduled monthly payment of principal and
interest on a Mortgage Loan.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first lien on an estate in fee simple in real property securing a
Mortgage Note.
"Mortgage Interest Rate": The annual rate of interest borne on a
Mortgage Note.
"Mortgage Loan": A conventional single family residential mortgage
loan which is subject to this Agreement, and which satisfies the
requirements of the Sale Agreement as the same may be modified from
time to time.
-4-
<PAGE> 8
"Mortgage Loan Pool": A group of Mortgage Loans purchased by
Purchaser hereunder and subject to a single Confirmation.
"Mortgage Note": The note or other evidence of the indebtedness of
a Mortgagor secured by a Mortgage.
"Mortgaged Property": The property subject to the lien of the
Mortgage securing a Mortgage Note.
"Mortgagor": The obligor on a Mortgage Note.
"NCUA": National Credit Union Administration, or any successor
thereto.
"Net Carry Adjustment": As defined in Section 4(b).
"Notice of Rejection of Trade Assignment": With respect to any
Mortgage Loan that Purchaser elects not to purchase, a notification
by Purchaser to Takeout Investor in the form of Exhibit G.
"OTS": Office of Thrift Supervision or any successor thereto.
"Parent Company": A corporation or other entity owning at least
50% of the outstanding shares of voting stock of Seller.
"Pass-Through Rate": With respect to each Mortgage Loan Pool
purchased by Purchaser hereunder, the rate at which interest from the
Mortgage is passed through to Purchaser which initially shall be the
rate of interest specified in the related Confirmation as the
Pass-Through Rate, subject to adjustment in the manner agreed
to by Purchaser and Seller.
"Price Adjustment": With respect to a Takeout Commitment, the
incremental percentage by which the trade price is adjusted by
applying the appropriate formula set forth in a price adjustment
summary sheet when delivered by Purchaser to Seller which price
adjustment summary sheet may be amended from time to time by
Purchaser's delivery to Seller of a new price adjustment summary
sheet.
"Purchase Date": With respect to any Mortgage Loan Pool purchased
by Purchaser hereunder, the date of
-5-
<PAGE> 9
payment thereof by Purchaser to Seller of the Purchase Price.
"Purchase Price": With respect to each Mortgage Loan Pool purchased
by Purchaser hereunder, an amount equal to the Trade Principal less
an amount equal to the product of the Trade Principal and the
Discount.
"Purchaser": Prudential Securities Realty Funding Corporation and
its successors in interest, including, but not limited to, a party to
whom a Trust Receipt is assigned as provided hereunder and in the
Custodial Agreement.
"Purchaser's Wire Instructions": The wire instructions set forth in
a letter in the form of Exhibit E.
"RTC": Resolution Trust Corporation or any successor thereto.
"Sale Agreement": The agreement providing for the purchase by
Takeout Investor of Mortgage Loans from Seller.
"Seller": The Seller whose name is set forth on the cover page
hereof, and its permitted successors hereunder.
"Seller's Wire Instructions": The wire instructions set forth in a
letter in the form of Exhibit C-2.
"Settlement Date": With respect to any Mortgage Loan, the date of
payment thereof by Takeout Investor to Purchaser of the Takeout
Proceeds.
"Settlement Modification Letter": A letter in the form of Exhibit
H.
"Successor Servicer": An entity designated by Purchaser, in
conformity with Section 17, to replace Seller as issuer and servicer,
mortgagee or seller/servicer of the Mortgage Loans evidenced by a
Trust Receipt.
"Takeout Commitment": A commitment of Seller to sell one or more
Mortgage Loans to Takeout Investor and of
-6-
<PAGE> 10
Takeout Investor to purchase one or more Mortgage Loans from Seller.
"Takeout Confirmation": The written notification to Seller from
Takeout Investor containing all of the relevant details of the
Takeout Commitment, including but not limited to the information set
forth in Exhibit I, which notification may take the form of a trade
confirmation.
"Takeout Investor": An Agency or a Conduit, as applicable.
"Takeout Proceeds": With respect to any Mortgage Loan Pool, the
related Trade Principal plus accrued interest as calculated in
accordance with Section 3(a)(2), as amended by any related
Settlement Modification Letter accepted by Purchaser.
"Third Party Underwriter": Any third party, including but not
limited to a mortgage loan pool insurer, who underwrites the
Mortgage Loan(s) prior to the purchase by Purchaser of the related
Mortgage Loan Pool.
"Third Party Underwriter's Certificate": A certificate issued by a
Third Party Underwriter with respect to a Mortgage Loan, certifying
that such Mortgage Loan complies with its underwriting
requirements.
"Trade Assignment": The assignment by Seller to Purchaser of
Seller's rights under a specific Takeout Commitment, in the form of
Exhibit D-1, or of Seller's rights under all Takeout Commitments, in
the form of Exhibit D-2.
"Trade Price": The trade price set forth on a Takeout Commitment
less any applicable Price Adjustment.
"Trade Principal": With respect to any Mortgage Loan Pool, the
aggregate outstanding principal balance of such Mortgage Loan
multiplied by a percentage equal to the Trade Price.
"Warehouse Lender": Any lender providing financing to Seller for
the purpose of originating or purchasing
-7-
<PAGE> 11
Mortgage Loans which has a security interest in such Mortgage
Loans as collateral for the obligations of Seller to such
lender.
"Warehouse Lender's Wire Instructions": The wire
instructions set forth in a letter in the form of Exhibit B-2.
Section 2. Procedures for Purchases of Mortgage Loans
(a) Purchaser may, in its sole discretion, from time to time,
purchase one or more Mortgage Loan Pools from Seller. Prior to
Purchaser's election to purchase any Mortgage Loan Pool, Purchaser shall
have received from Custodian (i) an original Trust Receipt relating to
all Mortgage Loans (including the Mortgage Loan Pool being purchased)
relating to Cash Window Transactions or Conduit Transactions, as
applicable, the original fully completed and authenticated by Custodian
and (ii) a copy of the Takeout Confirmation related to the Mortgage
Loan(s) in such Mortgage Loan Pool, together with a Trade Assignment in
the form of Exhibit D-1 or Exhibit D-2, executed by Seller and Takeout
Investor and (iii) an original letter in the form of Exhibit B-1 (an
"Exhibit B-1 Letter") from the applicable Warehouse Lender (if any), or
an original letter in the form of Exhibit C-1 (an "Exhibit C-1 Letter")
in the event that there is no Warehouse Lender. Simultaneously with the
payment by Purchaser of the Purchase Price, in accordance with the
Warehouse Lender's Wire Instructions or Seller's Wire Instructions, as
applicable, with respect to a Mortgage Loan pool, Seller hereby conveys
to Purchaser all of Seller's right, title and interest in and to the
related Mortgage Loan(s) free and clear of any lien, claim or
encumbrance. Notwithstanding the satisfaction by Seller of the
conditions specified in this Section 2(a), Purchaser is not obligated to
purchase any Mortgage Loans offered to it hereunder.
(b) If Purchaser elects to purchase any Mortgage Loan Pool,
Purchaser shall pay the amount of the Purchase Price for such Mortgage
Loan Pool by wire transfer of immediately available funds in accordance
with the Warehouse Lender's Wire Instructions or if there is no
Warehouse Lender, Seller's Wire Instructions. Upon such payment and not
otherwise, Purchaser shall be deemed to have accepted the related Trade
Assignment. In the event that Purchaser rejects a Mortgage Loan for
purchase for any reason and/or does not transmit the applicable Purchase
Price, (i) the Trust Receipt delivered by Custodian to Purchaser in
anticipation of such purchase shall automatically be null and void and
the previously existing Trust Receipt for that type of transaction shall
be in full force and effect, (ii) Purchaser shall not
-8-
<PAGE> 12
consummate the transactions contemplated in the applicable Takeout
Confirmation and shall deliver to Takeout Investor (with a copy to Seller and
Custodian) a Notice of Rejection of Trade Assignment, provided, however, that
failure of Purchaser to give such notice shall not affect the rejection by
Purchaser of the Trade Assignment, and (iii) if Purchaser shall nevertheless
receive any portion of the related Takeout Proceeds, Purchaser shall promptly
pay such Takeout Proceeds to Seller in accordance with Seller's Wire
Instructions.
(c) The terms and conditions of the purchase of each Mortgage Loan
Pool shall be as set forth in this Agreement.
Section 3. Sale of Mortgage Loans to Takeout Investor.
(a) With respect to Mortgage Loan(s) that Purchaser has elected to
purchase, Purchaser may, at its option, either (i) instruct Custodian to
deliver to Takeout Investor, in accordance with Takeout Investor's
instructions, the Custodial File in respect of such Mortgage Loans, in the
manner and at the time set forth in the Custodial Agreement, or (ii) provide
for the delivery of the Custodial File through an escrow arrangement
satisfactory to Purchaser and Takeout Investor. Seller shall on or after the
Purchase Date, but in no event later than the related Expiration Date, promptly
deliver to Takeout Investor the related Credit File and thereafter any and all
additional documents requested by Takeout Investor to enable Takeout Investor
to purchase such Mortgage Loan(s) on or before the related Cure Date.
(b) Except when Purchaser has accepted a Settlement Modification
Letter, unless the Takeout Proceeds are received by Purchaser (in immediately
available funds in accordance with Purchaser's Wire Instructions) with respect
to the Mortgage Loans in a Mortgage Pool, on or before the related Cure Date,
the Completion Fee relating to such Mortgage Pool shall not be payable until
the earlier to occur of (1) the date of receipt by Purchaser of the Takeout
Proceeds and (2) the satisfaction by Seller of its obligations pursuant to the
exercise by Purchaser of any remedial election authorized by this Section 3.
Upon receipt by Purchaser, prior to the Cure Date, of a Settlement Modification
Letter, duly executed by Takeout Investor and Seller, Purchaser may, at its
election, agree to the postponement of the Settlement Date and such other
matters as are set forth in the Settlement Modification Letter. If Purchaser
elects to accept a Settlement Modification Letter, Purchaser shall, not later
than two (2) Business Days after receipt of such Settlement Modification Letter
execute the Settlement Modification Letter
-9-
<PAGE> 13
and send, via facsimile, copies of such fully executed Settlement
Modification Letter to Seller and Takeout Investor. Upon execution by
Purchaser of a Settlement Modification Letter, Purchaser shall recalculate the
amount of the Completion Fee, if any, due to Seller using the new terms
included in the Settlement Modification Letter and shall pay to Seller, not
later than two (2) Business Days after Purchaser's receipt of such Settlement
Modification Letter, the amount of such recalculated Completion Fee.
(c)(1) If a breach by Seller of this Agreement results in any
Mortgage Loan being a Defective Mortgage Loan at the time of the
delivery of the related Trust Receipt to Purchaser and in Purchaser's sole
judgement the defects in such Mortgage Loan will not be cured (or in fact are
not cured) by Seller prior to the Cure Date, Purchaser, at its election, may
require that Seller, upon receipt of notice from Purchaser of its exercise of
such right, either (i) immediately repurchase Purchaser's ownership interest in
such Defective Mortgage Loan by remitting to Purchaser (in immediately
available funds in accordance with Purchaser's Wire Instructions) the amount
paid by Purchaser for such Defective Mortgage Loan plus interest at the
Pass-Through Rate on the principal amount thereof from the date of Purchaser's
purchase of the related Mortgage Loan Pool to the date of such repurchase or
(ii) deliver to Custodian a Mortgage Loan in exchange for such Defective
Mortgage Loan, which newly delivered Mortgage Loan shall be in all respects
acceptable to Purchaser in Purchaser's reasonable discretion. If the aggregate
principal balance of all Mortgage Loan(s) that are accepted by Purchaser
pursuant to clause (ii) of the immediately preceding sentence is less than the
aggregate principal balance of all Defective Mortgage Loan(s) that are being
replaced by such Mortgage Loan(s), Seller shall remit with such Mortgage Loan
to Purchaser an amount equal to the difference between the aggregate principal
balance of the new Mortgage Loan(s) accepted by Purchaser and the aggregate
principal balance of the Defective Mortgage Loan(s) being replaced thereby.
(c)(2) If Seller fails to comply with its obligations in the manner
described in Section 3(c)(1), not later than the third day after receipt by
Seller of notice from Purchaser, Seller's rights and obligations to service
Mortgage Loan(s) as provided in this Agreement, shall terminate. If an Act of
Insolvency occurs at any time, Seller's rights and obligations to service the
Mortgage Loan(s), as provided in this Agreement, shall terminate immediately,
without any notice or action by Purchaser. Upon any such termination,
Purchaser is hereby authorized and empowered as the exclusive agent for Seller
to
-10-
<PAGE> 14
sell and transfer such rights to service the Mortgage Loan(s) for such
price and on such terms and conditions as Purchaser shall reasonably determine,
and Seller shall not otherwise attempt to sell or transfer such rights to
service without the prior consent of Purchaser. Seller shall perform all acts
and take all action so that the Mortgage Loan(s) and all files and documents
relating to such Mortgage Loan(s) held by Seller, together with all escrow
amounts relating to such Mortgage Loan(s), are delivered to Successor Servicer.
To the extent that the approval of any Third Party Underwriter or any other
insurer or guarantor is required for any such sale or transfer, Seller shall
fully cooperate with Purchaser to obtain such approval. Upon exercise by
Purchaser of its remedies under this Section 3(c)(2), Seller hereby authorizes
Purchaser to receive all amounts paid by any purchaser of such rights to
service the Mortgage Loan(s) and to remit such amounts to Seller subject to
Purchaser's rights of set-off under this Agreement. Upon exercise by Purchaser
of its remedies under this Section 3(c)(2), Purchaser's obligation to pay and
Seller's right to receive any portion of the Completion Fee relating to such
Mortgage Loan(s) shall automatically be cancelled and become null and void,
provided that such cancellation shall in no way relieve Seller or otherwise
affect the obligation of Seller to indemnify and hold Purchaser harmless as
specified in Section 3(e).
(d) Each Mortgage Loan required to be delivered to Successor
Servicer by Section 3(c)(2) shall be delivered free of any servicing
rights in favor of Seller and free of any title, interest, lien, encumbrance or
claim of any kind of Seller. Seller shall deliver or cause to be delivered all
files and documents relating to each Mortgage Loan held by Seller to Successor
Servicer. Seller shall promptly take such actions and furnish to Purchaser
such documents that Purchaser deems necessary or appropriate to enable
Purchaser to cure any defect in each such Mortgage Loan or to enforce such
Mortgage Loans, as appropriate.
(e) Seller agrees to indemnify and hold Purchaser and its assigns
harmless from and against all Losses resulting from or relating to any
breach or failure to perform by Seller of any representation, warranty,
covenant, term or condition made or to be performed by Seller under this
Agreement.
(f) No exercise by Purchaser of its rights under this Section 3
shall relieve Seller of responsibility or liability for any breach of
this Agreement.
(g) Seller hereby grants Purchaser a right of set-off against the
payment of any amounts that may be due and payable to
-11-
<PAGE> 15
Purchaser from Seller, such right to be upon any and all monies or
other property of Seller held or received by Purchaser, or due and owing from
Purchaser to Seller.
Section 4. Completion Fee.
(a) With respect to each Mortgage Loan Pool that Purchaser elects to
purchase hereunder, Purchase shall pay to Seller a Completion Fee. The
Completion Fee shall be payable by Purchaser as provided in subsection (e)
below.
(b) For purposes of calculating that portion of the Completion Fee
composed of the "Net Carry Adjustment", the Net Carry Adjustment shall
be an amount (which may be a negative number) equal to (A) the product obtained
by multiplying the number of days in the period beginning on the Purchase Date
to but not including the Settlement Date and the difference between (i) the
product of the rate of interest to be borne by the related Mortgage Loans in
the Mortgage Pool and the aggregate principal amount of such Mortgage Loans and
(ii) the daily application of the applicable Pass-Through Rate to the Purchase
Price (B) divided by 360.
(c) If a Mortgage Loan Pool is purchased by Purchaser in the month
prior to the month in which the related Settlement Date occurs, (A) all
interest which accrues on the related Mortgage Loans, on and after the Purchase
Date, through the last day of the month prior to the month in which such
Settlement Date occurs, shall be paid to Purchaser by Seller, as servicer, on
the related Settlement Date and (B) all interest which accrues on the Mortgage
Loans in such Mortgage Loan Pool on and after the first day of the month in
which such Settlement Date occurs, through the day immediately prior to such
Settlement Date, will be paid to Purchaser by Takeout Investor on such
Settlement Date unless such Settlement Date occurs after the Cut-off Date of
such month in which event Seller, as servicer, shall pay such amount to
Purchaser on such Settlement Date. If a Mortgage Loan Pool is purchased by
Purchaser in the same month in which the related Settlement Date occurs, (A)
all interest, if any, which accrues on such Mortgage Loan(s) from the first day
of such month to but not including the related Purchase Date shall be paid by
Purchaser to Seller on such Settlement Date, and (B) all interest which accrues
on such Mortgage Loan(s), on and after the Purchase Date to but not including
the Settlement Date will be paid to Purchaser by Takeout Investor on the
Settlement Date unless such Settlement Date occurs after the Cut-off Date or in
a month in which interest has been prepaid by the Mortgagor in either of which
events Seller, as servicer, shall pay such amount to
-12-
<PAGE> 16
Purchaser on such Settlement Date. For purposes of this paragraph all
interest payments shall be deemed to accrue at the applicable rate set forth
in the related Takeout Commitment.
(d) It is understood by Seller and Purchaser that, if Seller
requests and Purchaser agrees to pay the Completion Fee prior to the
Settlement Date, the amount of such Completion Fee shall be adjusted as
mutually agreed by Seller and Purchaser.
(e) The Completion Fee relating to each Mortgage Loan Pool is
payable on the earlier to occur of (1) the date of receipt by Purchaser of the
Trade Price and (2) the satisfaction by Seller of its obligations pursuant to
this Agreement notwithstanding the exercise by Purchaser of any remedial
election authorized herein.
Section 5. Servicing of the Mortgage Loans.
(a) Seller shall service and administer the Mortgage Loan(s) on
behalf of Purchaser in accordance with prudent mortgage loan servicing
standards and procedures generally accepted in the mortgage banking industry
and in accordance with the requirements of Takeout Investor, provided that
Seller shall at all times comply with applicable law, and the requirements of
any applicable insurer or guarantor including, without limitation, any Third
Party Underwriter, so that the insurance in respect of any Mortgage Loan is not
voided or reduced. Seller shall at all times maintain accurate and complete
records of its servicing of each Mortgage Loan, and Purchaser may, at any time
during Seller's business hours on reasonable notice, examine and make copies of
such records. In addition, if a Mortgage Loan is not purchased by Takeout
Investor on or before the Cure Date, Seller shall at Purchaser's request
deliver to Purchaser monthly reports regarding the status of such Mortgage
Loan, which reports shall include, but shall not be limited to, a description
of each Mortgage Loan in default for more than thirty (30) days, and such other
circumstances with respect to any Mortgage Loan (whether or not such Mortgage
Loan is included in the foregoing list) that could materially adversely affect
any such Mortgage Loan, Purchaser's ownership of any such Mortgage Loan or the
collateral securing any such Mortgage Loan. Seller shall deliver such a report
to Purchaser every thirty (30) days until (i) the purchase by Takeout Investor
of such Mortgage Loan pursuant to the related Takeout Commitment or (ii) the
exercise by Purchaser of any remedial election pursuant to Section 3.
(b) Within five (5) business days of notice from Purchaser, Seller
shall establish and maintain a separate
-13-
<PAGE> 17
custodial account (the "Custodial Account") entitled "[Name of Seller],
in trust for Prudential Securities Realty Funding Corporation and its assignees
under the Mortgage Loan Purchase and Sale Agreement dated [the date of this
Agreement]" and shall promptly deposit into such account in the form received
with any necessary endorsements all collections received in respect of each
Mortgage Loan that are payable to Purchaser as the owner of each such Mortgage
Loan.
(c) Amounts deposited in the Custodial Account with respect to any
Mortgage Loan shall be held in trust for Purchaser as the owner of such
Mortgage Loan and shall be released only as follows:
(1) Except as otherwise provided in Section 5(c)(2), following
receipt by Purchaser or its designee of the Takeout Proceeds
for such Mortgage Loan from Takeout Investor or Seller amounts
deposited in the Custodial Account shall be released in accordance
with Section 3(a)(2). Notwithstanding the foregoing, all amounts
deposited in the Custodial Account shall be paid to Seller upon the
purchase by Takeout Investor of the related Mortgage Loan(s) from
Purchaser if, and to the extent that, the amounts due and payable to
Purchaser hereunder have been set-off against the Purchase Price for
the related Mortgage Loan Pool or the Completion Fee relating to the
Mortgage Loan(s) in such Mortgage Loan Pool. The amounts paid to
Seller (if any) pursuant to this Section 5(c)(1) shall constitute
Seller's sole compensation for servicing the Mortgage Loans as
provided in this Section 5.
(2) If Successor Servicer takes delivery of such Mortgage Loan
(either under the circumstances set forth in Section 3 or
otherwise), all amounts deposited in the Custodial. Account shall
be paid to Purchaser promptly upon such delivery.
(3) If a Mortgage Loan is not purchased by Takeout Investor on or
before the Cure Date, during the period thereafter that Seller
remains as servicer, all amounts deposited in the Custodial Account
shall be released only in accordance with a Purchaser's written
instructions.
Section 6. Trade Assignments. Seller hereby assigns to Purchaser,
free of any security interest, lien, claim or encumbrance of any kind,
Seller's rights, under each Takeout
-14-
<PAGE> 18
Commitment as to which Takeout Investor has consented to assignment, to
deliver the Mortgage Loan(s) specified therein to the related Takeout Investor
and to receive the Takeout Proceeds therefor from such Takeout Investor.
Purchaser shall not be deemed to have accepted any Trade Assignment unless and
until it purchases the related Mortgage Loans, and nothing set forth herein
shall be deemed to impair Purchaser's right to reject any Mortgage Loan for any
reason, in its sole discretion.
Section 7. Transfers of Beneficial Interest in Mortgage Loans by
Purchaser. Purchaser may, in its sole discretion, assign all of its
right, title and interest in or grant a security interest in any Mortgage Loan
sold by Seller hereunder and all rights of Purchaser under this Agreement and
the Custodial Agreement, in respect of such Mortgage Loan to a tri-party
custody and clearing agent ("Assignee"), subject only to an obligation on the
part of Assignee to deliver each such Mortgage Loan to Takeout Investor
pursuant to Section 6 or to Purchaser to permit Purchaser or its designee to
make delivery thereof to a Takeout Investor pursuant to Section 6. It is
anticipated that such assignment to an Assignee will be made by Purchaser, and
Seller hereby irrevocably consents to such assignment. No notice of such
assignment shall be given by Purchaser to Seller or Takeout Investor.
Assignment by Purchaser of the Mortgage Loans as provided in this Section 7
shall not release Purchaser from its obligations otherwise under this
Agreement.
Without limitation of the foregoing, an assignment of the Mortgage
Loans to an Assignee, as described in this Section 7, shall be
effective upon delivery to the Assignee of a duly executed and authenticated
Trust Receipt.
Section 8. Record Title to Mortgage Loans; Intent of Parties;
Security Interest.
(a) From and after the issuance and delivery of the related Trust
Receipt, and subject to the remedies of Purchaser in Section 3, Seller
shall remain the last named payee or endorsee of each Mortgage Note and the
mortgagee or assignee of record of each Mortgage in trust for the benefit of
Purchaser, for the sole purpose of facilitating the servicing of such Mortgage
Loan.
(b) Seller shall maintain a complete set of books and records for
each Mortgage Loan which shall be clearly marked to reflect the
ownership interest in each Mortgage Loan of the holder of the related Trust
Receipt.
-15-
<PAGE> 19
(c) Purchaser and Seller confirm that the transactions contemplated
herein are intended to be sales of the Mortgage Loans by Seller to Purchaser
rather than borrowings secured by the Mortgage Loans. In the event, for any
reason, any transaction is construed by any court or regulatory authority as a
borrowing rather than as a sale, Seller and Purchaser intend that Purchaser or
its Assignee, as the case may be, shall have a perfected first priority
security interest in the Mortgage Loans, the Custodial Account, and all
proceeds thereof, the Takeout Commitments and the proceeds of any and all of
the foregoing (collectively, the "Collateral"), free and clear of adverse
claims. In such case, Seller shall be deemed to have hereby granted to
Purchaser or Assignee, as the case may be, a first priority security interest
in and lien upon the Collateral, free and clear of adverse claims. In such
event, this Agreement shall constitute a security agreement, the Custodian
shall be deemed to be an independent custodian for purposes of perfection of
the security interest granted to Purchaser or Assignee, as the case may be, and
Purchaser or Assignee, as the case may be, shall have all of the rights of a
secured party under applicable law.
Section 9. Representations and Warranties.
(a) Seller hereby represents and warrants to Purchaser as of the date
hereof and as of the date of each issuance and delivery of a Trust Receipt
that:
(i) Seller is duly organized, validly existing and in good
standing under the laws of the state of its organization and has all
licenses necessary to carry on its business as now being conducted and
is licensed, qualified and in good standing in the state where the
Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type
conducted by Seller. Seller has all requisite power and authority
(including, if applicable, corporate power) to execute and deliver this
Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by Seller and
the consummation of the transactions contemplated hereby have been duly
and validly authorized; this Agreement evidences the valid, binding and
enforceable obligation of Seller; and all requisite action (including,
if applicable, corporate action) has been taken by Seller to make this
Agreement valid and binding upon Seller in accordance with its terms;
-16-
<PAGE> 20
(ii) No approval of the transactions contemplated by this
Agreement from the OTS, the NCUA, the FDIC or any similar federal or
state regulatory authority having jurisdiction over Seller is required,
or if required, such approval has been obtained. There are no actions
or proceedings pending or affecting Seller which would adversely affect
its ability to perform hereunder. The transfers, assignments and
conveyances provided for herein are not subject to the bulk transfer or
any similar statutory provisions in effect in any applicable
jurisdiction;
(iii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of Seller and will not
result in the breach of any term or provision of the charter or by-laws
of Seller or result in the breach of any term or provision of, or
conflict with or constitute a default under or result in the
acceleration of any obligation under, any agreement, indenture or loan
or credit agreement or other instrument to which Seller or its property
is subject, or result in the violation of any law, rule, regulation,
order, judgment or decree to which Seller or its property is subject;
(iv) This Agreement, the Custodial Agreement and every document
to be executed by Seller pursuant to this Agreement is and will be
valid, binding and subsisting obligations of Seller, enforceable in
accordance with their respective terms. No consents or approvals are
required to be obtained by Seller or its Parent Company for the
execution, delivery and performance of this Agreement or the Custodial
Agreement by Seller;
(v) Seller has not sold, assigned, transferred, pledged or
hypothecated any interest in any Mortgage Loan sold hereunder to any
person other than Purchaser, and upon delivery of a related Trust
Receipt to Purchaser, Purchaser will be the sole owner thereof, free
and clear of any lien, claim or encumbrance; and
(vi) All information relating to Seller that Seller has
delivered or caused to be delivered to Purchaser, including, but not
limited to, all documents related to this Agreement, the Custodial
Agreement or Seller's financial statements, does not contain any untrue
statement of a material fact or omit to state a
-17-
<PAGE> 21
material fact necessary to make the statements made therein or
herein in light of the circumstances under which they were made, not
misleading.
(b) Seller hereby represents, warrants and covenants to Purchaser with
respect to each Mortgage Loan as of the Purchase Date of such Mortgage Loan
that:
(i) The Mortgage Loan conforms in all respects to the
requirements of this Agreement, the Sale Agreement, the Commitment
Guidelines and the requirements of the related Third Party
Underwriter's Certificate;
(ii) Seller is the sole owner and holder of the Mortgage Loan
free and clear of any and all liens, pledges, charges or security
interests of any nature and has full right and authority, subject to no
interest or participation of, or agreement with, any other party, to
sell and assign the same pursuant to this Agreement;
(iii) No servicing agreement has been entered into with respect
to the Mortgage Loan, or any such servicing agreement has been
terminated and there are no restrictions, contractual or governmental,
which would impair the ability of Purchaser or Purchaser's designees
from servicing the Mortgage Loan;
(iv) The Mortgage is a valid and subsisting first lien on the
property therein described and the Mortgaged Property is free and clear
of all encumbrances and liens having priority over the first lien of
the Mortgage except for liens for real estate taxes and special
assessments not yet due and payable. Any pledge account, security
agreement, chattel mortgage or equivalent document related to, and
delivered to Purchaser with the Mortgage, establishes in Seller a valid
and subsisting first lien on the property described therein, and Seller
has full right to sell and assign the same to Purchaser;
(v) Neither Seller nor any prior holder of the Mortgage has
modified the Mortgage in any material respect; satisfied, canceled or
subordinated the Mortgage in whole or in part; released the Mortgaged
Property in whole or in part from the lien of the Mortgage; or executed
any instrument of release, cancellation, modification or satisfaction
unless such
-18-
<PAGE> 22
release, cancellation, modification or satisfaction does not
adversely affect the value of the Mortgage Loan and is contained in the
related Document File;
(vi) The Mortgage Loan is not in default, and all Monthly
Payments due prior to the Purchase Date and all taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges,
leasehold payments or ground rents have been paid. Seller has not
advanced funds, or induced or solicited any advance of funds by a party
other than the Mortgagor directly or indirectly, for the payment of any
amount required by the Mortgage Loan. The collection practices used by
each entity which has serviced the Mortgage Loan have been in all
respects legal, proper, prudent, and customary in the mortgage
servicing business. With respect to escrow deposits and payments in
those instances where such were required, there exist no deficiencies
in connection therewith for which customary arrangements for repayment
thereof have not been made and no escrow deposits or payments or other
charges or payments have been capitalized under any Mortgage or the
related Mortgage Note;
(vii) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note
and no event which, with the passage of time or with notice and the
expiration of any grace of cure period, would constitute a default,
breach, violation or event of acceleration; and Seller has not waived
any default, breach, violation or event of acceleration;
(viii) The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note
or the Mortgage, or the exercise of any right thereunder, render either
the Mortgage Note or the Mortgage unenforceable, in whole or in part,
or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
(ix) The Mortgage Note and the related Mortgage are genuine and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in
-19-
<PAGE> 23
accordance with its terms. All parties to the Mortgage Note
and the Mortgage had legal capacity to execute the Mortgage Note and
the Mortgage and each Mortgage Note and Mortgage have been duly and
properly executed by the Mortgagor;
(x) The Mortgage Loan meets, or is exempt from, applicable
state or federal laws, regulations and other requirements pertaining to
usury, and the Mortgage Loan is not usurious;
(xi) Any and all requirements of any federal, state or local
law including, without limitation, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the Mortgage Loan have
been complied with, and Seller shall deliver to Purchaser upon demand,
evidence of compliance with all such requirements;
(xii) Either: (i) Seller and every other holder of the
Mortgage, if any, were authorized to transact and do business in the
jurisdiction in which the Mortgaged Property is located at all times
when such party held the Mortgage; or (ii) the loan of mortgage funds,
the acquisition of the Mortgage (if Seller was not the original
lender), the holding of the Mortgage and the transfer of the Mortgage
did not constitute the transaction of business or the doing of business
in such jurisdiction;
(xiii) The proceeds of the Mortgage Loan have been fully
disbursed, there is no requirement for future advances thereunder and
any and all requirements as to completion of any on site or off-site
improvements and as to disbursements of any escrow funds, therefore,
have been complied with. All costs, fees and expenses incurred in
making, closing or recording the Mortgage Loans were paid;
(xiv) The related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of
the benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. There is no homestead or other exemption
available to
-20-
<PAGE> 24
the Mortgagor which would interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage;
(xv) The Mortgage Loan was originated free of any "original
issue discount" with respect to which the owner of the Mortgage Loan
could be deemed to have income pursuant to Sections 1271 et seq. of
the Internal Revenue Code;
(xvi) Each Mortgage Loan was originated by an institution
described in Section 3(a)(41)(A)(ii) of the Securities Exchange Act of
1934, as amended;
(xvii) At origination, the Mortgaged Property was free and
clear of all mechanics, and materialmen's liens or liens in the nature
thereof which are or could be prior to the Mortgage lien, and no rights
are outstanding that under law could give rise to any such lien;
(xviii) All of the improvements which are included for the
purpose of determining the appraised value of the Mortgaged Property
lie wholly within the boundaries and building restriction lines of such
property, and no improvements on adjoining properties encroach upon the
Mortgaged Property;
(xix) At origination, no improvement located on or being part
of the Mortgaged Property was in violation of any applicable zoning law
or regulation and all inspections, licenses and certificates required
to be made or issued with respect to all occupied portions of the
Mortgaged Property, and with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, had been made or obtained from the
appropriate authorities and the Mortgaged Property was lawfully
occupied under applicable law. No improvement located on or being part
of the Mortgaged Property is in violation of any applicable zoning law
or regulation and all inspections, licenses and certificates required
to be made or issued with respect to the Mortgaged Property, and with
respect to the use and occupancy of the same, including but not limited
to certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities and
-21-
<PAGE> 25
the Mortgaged Property is lawfully occupied under applicable
law;
(xx) There is no proceeding pending for the total or partial
condemnation of the Mortgaged Property and said property is undamaged
by waste, fire, earthquake or earth movement, windstorm, flood, tornado
or other casualty;
(xxi) The Custodial File contains and the Credit File contains
or shall contain prior to the Cure Date each of the documents and
instruments specified to be included therein duly executed and in due
and proper form and each such document or instrument is either in form
acceptable to FNMA or is a FNMA/FHLMC uniform instrument. Each
Mortgage Note and Mortgage are on forms approved by FNMA with such
riders as have been approved by FNMA; Seller is currently in possession
of the Custodial File for each Mortgage Loan and is in possession or
shall be prior to the Expiration Date of the Credit File for each
Mortgage Loan and there are no custodial agreements in effect adversely
affecting the rights of Seller to make the deliveries required within
the required time. Seller shall not deliver a Credit File to Takeout
Investor prior to the related Commitment Date;
(xxii) Each Mortgage Loan is covered by a mortgage title
insurance policy acceptable to FNMA, issued by, and the valid and
binding obligation of, a title insurer acceptable to FNMA and qualified
to do business in the jurisdiction where the Mortgaged Property is
located, insuring Seller, its successors and assigns, as to the first
priority lien of the Mortgage in the original principal amount of the
Mortgage Loan, Seller is the named insured and the sole insured of such
mortgage title insurance policy, the assignment to Purchaser of
Seller's interest in such mortgage title insurance policy does not
require the consent of or notification to the insurer, such mortgage
title insurance policy is in full force and effect and will be in full
force and effect and inure to the benefit of Purchaser upon the
consummation of the transactions contemplated by this Agreement and no
claims have been made under such mortgage title insurance policy and no
prior holder of the related Mortgage, including Seller, has done, by
act or omission, anything which would
-22-
<PAGE> 26
impair the coverage of such mortgage title insurance policy;
(xxiii) All buildings upon the Mortgaged Property are insured
against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is
located, pursuant to fire and hazard insurance policies with extended
coverage or other insurance required by the Sale Agreement, in an
amount at least equal to the lesser of (i) the outstanding principal
balance of the Mortgage Loan or (ii) the maximum insurable value
(replacement cost without deduction for depreciation) of the
improvements constituting the Mortgaged Property. If applicable laws
limit the amount of such insurance to the replacement cost of the
improvements constituting the Mortgaged Property or to some other
amount, then such insurance is in an amount equal to the maximum
allowed by such laws. Such insurance amount is sufficient to prevent
the Mortgagor or the loss payee under the policy from becoming a
co-insurer. The insurer issuing such insurance is acceptable pursuant
to the Sale Agreement. All individual insurance policies contain a
standard mortgagee clause naming Seller, its successors and assigns, as
mortgagee and all premiums thereon have been paid. Each Mortgage
obligates the Mortgagor thereunder to maintain all such insurance at
Mortgagor's cost and expense, and upon the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such
insurance at Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor. Any flood insurance required by
applicable law has been obtained;
(xxiv) The original principal amount of the related Mortgage
Note either (a) was not more than 80% of the lesser of (i) the purchase
price of the Mortgaged Property paid by the Mortgagor at the
origination of the Mortgage Loan and (ii) the appraised value of the
Mortgaged Property, such appraised value being, for the purposes
hereof, the amount set forth in an appraisal made in connection with
the origination of such Mortgage Loan, or (b) is and will be insured as
to payment defaults by a policy of primary mortgage guaranty insurance
in accordance with the Sale Agreement and all provisions of such
primary mortgage guaranty insurance policy have been and are being
complied with, such policy is in full force and effect,
-23-
<PAGE> 27
and all premiums due thereunder have been paid. Any Mortgage
Loan subject to any such policy of primary mortgage guaranty insurance
obligates the Mortgagor thereunder to maintain such insurance and pay
all premiums and charges in connection therewith. The original
principal amount of each Mortgage Note was not more than 95% of the
purchase price of the related Mortgaged Property paid by the Mortgagor
at the origination of the Mortgage Loan. No action, event or state of
facts exists or has existed which, because involving or arising from
any dishonest, fraudulent, criminal, negligent or knowingly wrongful
act, error or omission by the Mortgagor or the originator or servicer
of the Mortgage Loan, would result in the exclusion from, denial of, or
defense to coverage which otherwise would be provided by such
insurance;
(xxv) At the time that the related Mortgage Loan was made the
Mortgagor represented that the Mortgagor would occupy such Mortgaged
Property as Mortgagor's primary residence;
(xxvi) The Mortgaged Property consists of a single parcel of
real property; and
(xxvii) There are no circumstances or conditions with respect
to the Mortgage, the Mortgaged Property, the Mortgagor or the
Mortgagor's credit standing that can be reasonably expected to cause
private institutional investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become delinquent
or adversely affect the value or marketability of the Mortgage Loan.
The representations and warranties of Seller in this Section 9 are
unaffected by and supersede any provision in any endorsement of any Mortgage
Loan or in any assignment with respect to such Mortgage Loan to the effect that
such endorsement or assignment is without recourse or without representation or
warranty.
Section 10. Covenants of Seller. Seller hereby covenants and
agrees with Purchaser as follows:
(a) Seller shall deliver to Purchaser:
(i) Within one hundred twenty (120) days after the end of each
fiscal year of Seller, consolidated balance sheets of Seller and its
consolidated subsidiaries and
-24-
<PAGE> 28
the related consolidated statements of income showing the
financial condition of Seller and its consolidated subsidiaries as of
the close of such fiscal year and the results of operations during such
year, and a consolidated statement of cash flows, as of the close of
such fiscal year, setting forth, in each case, in comparative form the
corresponding figures for the preceding year, all the foregoing
consolidated financial statements to be reported on by, and to carry
the report (acceptable in form and content to Purchaser) of an
independent public accountant of national standing acceptable to
Purchaser;
(ii) Within sixty (60) days after the end of each of the first
three fiscal quarters of each fiscal year of Seller, unaudited
consolidated balance sheets and consolidated statements of income, all
to be in a form acceptable to Purchaser, showing the financial
condition and results of operations of Seller and its consolidated
subsidiaries on a consolidated basis as of the end of each such quarter
and for the then elapsed portion of the fiscal year, setting forth, in
each case, in comparative form the corresponding figures for the
corresponding periods of the preceding fiscal year, certified by a
financial officer of Seller (acceptable to Purchaser) as presenting
fairly the financial position and results of operations of Seller and
its consolidated subsidiaries and as having been prepared in accordance
with generally accepted accounting principles consistently applied, in
each case, subject to normal year-end audit adjustments;
(iii) Promptly upon receipt thereof, a copy of each other
report submitted to Seller by its independent public accountants in
connection with any annual, interim or special audit of Seller;
(iv) Promptly upon becoming aware thereof, notice of (1) the
commencement of, or any determination in, any legal, judicial or
regulatory proceedings, (2) any dispute between Seller or its Parent
Company and any governmental or regulatory body, (3) any event or
condition, which, in any case of (1) or (2) if adversely determined,
would have a material adverse effect on (A) the validity or
enforceability of this Agreement, (B) the financial condition or
business operations of Seller, or (C) the ability of Seller to fulfill
its obligations under this Agreement or (4) any
-25-
<PAGE> 29
material adverse change in the business, operations, prospects
or financial condition of Seller, including, without limitation, the
insolvency of Seller or its Parent Company;
(v) Promptly upon becoming available, copies of all financial
statements, reports, notices and proxy statements sent by its Parent
Company, Seller or any of Seller's consolidated subsidiaries in a
general mailing to their respective stockholders and of all reports and
other material (including copies of all registration statements under
the Securities Act of 1933, as amended) filed by any of them with any
securities exchange or with the Securities and Exchange Commission or
any governmental authority succeeding to any or all of the functions of
said Commission;
(vi) Promptly upon becoming available, copies of any press
releases issued by its Parent Company or Seller and copies of any
annual and quarterly financial reports and any reports on Form H-(b)12
which its Parent Company or Seller may be required to file with the OTS
or the RTC or comparable reports which a Parent Company or Seller may
be required to file with the FDIC or any other federal banking agency
containing such financial statements and other information concerning
such Parent Company's or Seller's business and affairs as is required
to be included in such reports in accordance with the rules and
regulations of the OTS, the RTC, the FDIC or such other banking agency,
as may be promulgated from time to time;
(vii) Such supplements to the aforementioned documents and such
other information regarding the operations, business, affairs and
financial condition of its Parent Company, Seller or any of Seller's
consolidated subsidiaries as Purchaser may request;
(viii) A copy of (1) the articles of incorporation of Seller
and any amendments thereto, certified by the Secretary of State of
Seller's state of incorporation, (2) a copy of Seller's by-laws,
together with any amendments thereto, (3) a copy of the resolutions
adopted by Seller's Board of Directors authorizing Seller to enter into
this Agreement and the Custodial Agreement and authorizing one or more
of Seller's officers to execute the documents related to this Agreement
and the Custodial Agreement, and (4) a
-26-
<PAGE> 30
certificate of incumbency and signature of each officer of
Seller executing any document in connection with this Agreement;
(ix) Neither Seller nor any affiliate thereof will acquire at
any time any economic interest in or obligation with respect to any
Mortgage Loan;
(x) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, Seller will report each sale of a
Mortgage Loan to the Purchaser hereunder as a sale of the ownership
interest in the Mortgage Loan. Seller has been advised by or has
confirmed with its independent public accountants that the foregoing
transactions will be so classified under GAAP;
(xi) The consideration received by Seller upon the sale of each
Mortgage Loan Pool will constitute reasonably equivalent value and fair
consideration for the ownership interest in the Mortgage Loans included
therein;
(xii) Seller will be solvent at all relevant times prior to,
and will not be rendered insolvent by, any sale of a Mortgage Loan to
the Purchaser; and
(xiii) Seller will not sell any Mortgage Loan to the Purchaser
with any intent to hinder, delay or defraud any of Seller's creditors.
(b) Seller shall comply, in all material respects, with all laws, rules
and regulations to which it is or may become subject.
(c) Seller shall, upon request of Purchaser, promptly execute and
deliver to Purchaser all such other and further documents and instruments of
transfer, conveyance and assignment, and shall take such other action as
Purchaser may require more effectively to transfer, convey, assign to and vest
in Purchaser and to put Purchaser in possession of the property to be
transferred, conveyed, assigned and delivered hereunder and otherwise to carry
out more effectively the intent of the provisions under this Agreement.
Section 11. Term. This Agreement shall continue in effect until
terminated as to future transactions by written instruction signed by either
Seller or Purchaser and delivered to
-27-
<PAGE> 31
the other, provided that no termination will affect the obligations hereunder
as to any of the Mortgage Loans purchased hereunder.
Section 12. Exclusive Benefit of Parties; Assignment. This
Agreement is for the exclusive benefit of the parties hereto and their
respective successors and assigns and shall not be deemed to give any legal or
equitable right to any other person, including the Custodian. Except as
provided in Section 7, no rights or obligations created by this Agreement may
be assigned by any party hereto without the prior written consent of the other
parties.
Section 13. Amendments; Waivers; Cumulative Rights. This Agreement
may be amended from time to time only by written agreement of Seller and
Purchaser. Any forbearance, failure or delay by either party in exercising
any right, power or remedy hereunder shall not be deemed to be a waiver
thereof, and any single or partial exercise by Purchaser of any right, power
or remedy hereunder shall not preclude the further exercise thereof. Every
right, power and remedy of Purchaser shall continue in full force and effect
until specifically waived by Purchaser in writing. No right, power or remedy
shall be exclusive, and each such right, power or remedy shall be cumulative
and in addition to any other right, power or remedy, whether conferred hereby
or hereafter available at law or in equity or by statute or otherwise.
Section 14. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
Section 15. Effect of Invalidity of Provisions. In case any one or
more of the provisions contained in this Agreement should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflict of laws rules.
Section 17. Notices. Any notices, consents, elections, directions
and other communications given under this Agreement shall be in writing and
shall be deemed to have been duly given when telecopied or delivered by
overnight courier,
-28-
<PAGE> 32
personally delivered, or on the third day following the placing thereof in
the mail, first class postage prepaid, to the respective addresses set forth
on the cover page hereof for Seller and Purchaser, or to such other address
as either party shall give notice to the other party pursuant to this Section
17. Notices to any Assignee shall be given to such address as Assignee shall
provide to Seller in writing.
Section 18. Entire Agreement. This Agreement and the Custodial
Agreement contain the entire agreement between the parties hereto with respect
to the subject matter hereof, and supersede all prior and contemporaneous
agreements between them, oral or written, of any nature whatsoever with
respect to the subject matter hereof.
Section 19. Costs of Enforcement. In addition to any other
indemnity specified in this Agreement, in the event of a breach by Seller of
this Agreement, the Custodial Agreement or a Takeout Commitment, Seller agrees
to pay the reasonable attorneys' fees and expenses of Purchaser and/or
Assignee incurred as a consequence of such breach.
Section 20. Consent to Service. Each party irrevocably consents
to the service of process by registered or certified mail, postage prepaid, to
it at its address given in or pursuant to Section 17.
Section 21. Submission to Jurisdiction. With respect to any
claim arising out of this Agreement each party (a) irrevocably submits to the
nonexclusive jurisdiction of the courts of the State of New York and the
United States District Court located in the Borough of Manhattan in New York
City, and (b) irrevocably waives (i) any objection which it may have at any
time to the laying of venue of any suit, action or proceeding arising out of
or relating hereto brought in any such court, (ii) any claim that any such
suit, action or proceeding brought in any such court has been brought in any
inconvenient forum and (iii) the right to object, with respect to such claim,
suit, action or proceeding brought in any such court, that such court does not
have jurisdiction over such party.
Section 22. Jurisdiction Not Exclusive. Nothing herein will be
deemed to preclude either party hereto from bringing an action or proceeding
in respect of this Agreement in any jurisdiction other than as set forth in
Section 21.
Section 23. Construction. The headings in this Agreement are for
convenience only and are not intended to
-29-
<PAGE> 33
influence its construction. References to Sections, Exhibits and Annexes in
this Agreement are to the Sections of and Exhibits to this Agreement. The
Exhibits are part of this Agreement, and are incorporated herein by reference.
The singular includes the plural, the plural the singular, and the words "and"
and "or" are used in the conjunctive or disjunctive as the sense and
circumstances may require.
IN WITNESS WHEREOF, Purchaser and Seller have duly executed this
Agreement as of the date and year set forth on the cover page hereof.
PRUDENTIAL SECURITIES REALTY FUNDING CORPORATION
By /s/ Michael Pillari
----------------------------------------------
Name: Michael Pillari
-------------------------------------------
Title: FDP
------------------------------------------
[MCA ]
------------------
By /s/John P. O'Leary
----------------------------------------------
Name: John P. O'Leary
Title: S.U.P.
Address (if different from cover page):
-30-
<PAGE> 34
EXHIBIT A
THIS TRUST RECEIPT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF
THIS TRUST RECEIPT OR ANY INTEREST HEREIN WITHOUT REGISTRATION
HEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE ACT.
TRUST RECEIPT
RESIDENTIAL MORTGAGE LOANS
No. Date:
---------------- ----------------------
[ ], as custodian (the "Custodian"), certifies that
PRUDENTIAL SECURITIES REALTY FUNDING CORPORATION ("Purchaser") is the
registered owner of this Trust Receipt evidencing ownership of certain
mortgage loans (the "Mortgage Loans") listed by identifying number on the
schedule attached to this Trust Receipt and further identified in the books
and records of the Custodian, owned of record and serviced by [
] (the "Seller"). The Mortgage Note and Mortgage for each
Mortgage Loan are held by Custodian, pursuant to the terms and conditions
of that certain Custodial Agreement dated as of , 1994 (the
"Agreement") among Purchaser, Seller and Custodian. To the extent not
defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Trust Receipt is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the holder of this Trust Receipt by virtue of the acceptance
hereof assents and by which such holder is bound.
This Trust Receipt supersedes any Trust Receipt applying to the same
transaction type (i.e., Cash Window Transaction or Conduit Transaction)
bearing an earlier date.
This Trust Receipt shall not be valid or become obligatory for any
purpose unless and until the Certificate of Authentication appearing below
has been duly executed by the Custodian.
<PAGE> 35
IN WITNESS WHEREOF, the Custodian has caused this Trust Receipt to be duly
executed under its official seal.
[ ]
------------------- ,
as Custodian
By:
------------------------
Authorized Officer
(Seal)
Attest:
By:
--------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This Trust Receipt is one of
the Trust Receipts issued under
the above-described Agreement.
Dated:
----------------------
By:
-------------------------
Authorized Officer
<PAGE> 36
TRUST RECEIPT NO.
RESIDENTIAL MORTGAGE LOANS
Following are the identifying numbers of the Mortgage Loans subject to this
Trust Receipt:
<PAGE> 37
EXHIBIT B-1
[WAREHOUSE LENDER'S RELEASE]
Prudential Securities Realty Funding Corporation
One Seaport Plaza
New York, New York 10292
Ladies and Gentlemen:
We hereby release all right, interest or claim of any kind, including
any security interest or lien, with respect to the mortgage loan(s) referenced
below, such release to be effective automatically without any further action by
any party, upon receipt, in one or more installments, from Prudential
Securities Realty Funding Corporation, in accordance with the wire instructions
which we delivered to you in a letter dated ____, 199_, in immediately
available funds, of an aggregate amount equal to the product of A multiplied by
B (such product being rounded to the nearest $0.01) multiplied by C.*
Street
Loan Mortgagor Address City State Zip
- ----------------------------------------------------------------
Very truly yours,
[WAREHOUSE LENDER]
By:
--------------------
Name:
------------------
Title:
-----------------
*A = weighted average trade price
B = principal amount of the mortgage loan(s)
C = 1 minus the discount set forth on the related
participation certificate
<PAGE> 38
EXHIBIT B-2
[WAREHOUSE LENDER'S WIRE INSTRUCTIONS]
Prudential Securities Realty
Funding Corporation
One Seaport Plaza
New York, New York 10292
Re: Prudential Securities Realty Funding Corporation Mortgage
Loan Purchase Program with [Sellerl
Ladies and Gentlemen:
Set forth below are [Warehouse Lender's] wire instructions
applicable to the above-referenced Non-Conforming Purchase Program.
Wire Instructions:
Bank Name:
City, State:
ADA #:
Account:
Account Name:
<PAGE> 39
Please acknowledge receipt of this letter in the space provided
below. This letter supersedes and replaces any prior notice specifying the
name of [Warehouse Lender] and setting forth wire instructions and shall
remain in effect until superseded and replaced by a letter, in the form of
this letter, executed by each of us and acknowledged by you.
Very truly yours,
[SELLER]
By:
-------------------
Name:
-----------------
Title:
----------------
[WAREHOUSE LENDER(S)]*
By:
-------------------
Name:
-----------------
Title:
----------------
PRUDENTIAL SECURITIES REALTY FUNDING CORPORATION
By:
----------------------
Name:
--------------------
Title:
-------------------
--------------------------
* The authorized officer of each warehouse lender executing this letter must
be the same authorized officer as signs the Exhibit B-1 Letter. Not
applicable if there is no warehouse lender.
<PAGE> 40
EXHIBIT C-1
[SELLER'S RELEASE]
Prudential Securities Realty Funding Corporation
One Seaport Plaza
New York, New York 10292
Ladies and Gentlemen:
With respect to the mortgage loan(s) referenced below (a) we hereby
certify to you that the mortgage loan(s) is not subject to a lien of any
warehouse lender and (b) we hereby release all right, interest or claim of any
kind with respect to such mortgage loan, such release to be effective
automatically without any further action by any party upon payment from
Purchaser to Seller of an aggregate amount equal to the product of A multiplied
by B (such product being rounded to the newest $0.01) multiplied by C* in
accordance with our wire instructions in effect on the date of such payment.
Street
Loan Mortgagor Address City State Zip
- ---------------------------------------------------------------
Very truly yours,
[SELLER]
By:
-------------------
Name:
-----------------
Title:
----------------
**Confirmed by:
[WAREHOUSE LENDER]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
*A = weighted average trade price
B = principal amount of the mortgage loan(s)
C = 1 minus the discount set forth on the related
participation certificate
- ----------------
** If applicable.
<PAGE> 41
EXHIBIT C-2
[SELLER'S WIRE INSTRUCTIONS]
Prudential Securities Realty
Funding Corporation
One Seaport Plaza
New York, New York 10292
Re: Custodial Agreement dated as of _____________, 1992,
among Prudential Securities Realty Funding Corporation.
[Seller] and Custodian
Ladies and Gentlemen:
Capitalized terms used herein and not defined herein shall have the
meanings ascribed to such terms in the above-referenced Custodial Agreement.
Set forth below are Seller's Wire Instructions applicable to the
above-referenced Custodial Agreement.
Wire Instructions:
Bank Name:
City, State:
ABA #:
Account:
Account Name:
Please acknowledge receipt of this letter in the space provided
below. This letter supersedes and replaces any prior notice specifying the
name of Seller and Seller's Wire Instructions and shall remain in effect until
superseded and
<PAGE> 42
replaced by a letter, in the form of this letter, executed by each of us and
acknowledged by you.
Very truly yours,
[SELLER]*
By:
-----------------------
Name:
---------------------
Title:
--------------------
Receipt acknowledged by:
PRUDENTIAL SECURITIES REALTY
FUNDING CORPORATION
By:
---------------------------
Name:
Title:
- -------------------------------
* The authorized officer executing this letter must be the same authorized
officer as signs the Exhibit C-1 Letter. Applicable only if there is no
Warehouse Lender.
<PAGE> 43
EXHIBIT D-1
[TRADE ASSIGNMENT]
_______________("Takeout Investor")
[Address]
Attention:______________________
Ladies and Gentlemen:
Attached hereto is a correct and complete copy of your
confirmation of commitment (the "Commitment"), trade-dated _____________, 19_,
to purchase $______ of mortgage loans (the "Mortgage Loans") at a purchase price
of ___________. This is to confirm that (i) the Commitment is in full force and
effect, (ii) the Commitment is hereby assigned to Prudential Securities Realty
Funding Corporation ("PSRFC"), (iii) you will accept delivery of such Mortgage
Loans directly from PSRFC, (iv) you will pay PSRFC for such Mortgage Loans, (v)
upon PSRFC's acceptance of this assignment, PSRFC is obligated to make delivery
of such Mortgage Loans to you in accordance with the attached Commitment and
(vi) upon PSRFC's acceptance of this assignment, you will release Seller from
its obligation to deliver the Mortgage Loans to you under the Commitment. Upon
PSRFC's determination not to accept an assignment, PSRFC will notify you that
this assignment is rejected. Not later than 2:00 P.M. Eastern Standard Time one
business day prior to your satisfaction of the Commitment, you shall fax a
purchase confirmation to PSRFC at (212) 214-2163, Attention:_________________.
Payment will be made to PSRFC in immediately available funds.
Very truly yours,
[SELLER]
By:
--------------------
Name:
------------------
Title:
-----------------
Agreed to, confirmed and accepted:
[TAKEOUT INVESTOR]
By:
---------------------
Name:
-------------------
Title:
------------------
<PAGE> 44
EXHIBIT D-2
___________________("Takeout Investor")
[Address]
Attention:_____________________________
Ladies and Gentlemen:
This is to confirm that (i) your commitments ("Commitment"), made
from time to time, to purchase mortgage loans (the "Mortgage Loans") from
Seller may be assigned to Prudential Securities Realty Funding Corporation
("PSRFC"), (ii) you will accept delivery of such Mortgage Loans directly from
PSRFC, (iii) you will pay PSRFC for such Mortgage Loans, (iv) upon PSRFC's
acceptance of this assignment with respect to any Commitment, PSRFC will be
obligated to make delivery of such Mortgage Loans to you in accordance with
such Commitment and (v) upon PSRFC's acceptance of such assignment with respect
to any Commitment, you will release Seller from its obligation to deliver the
related Mortgage Loans to you under such Commitment but Seller will not be
released from any of its other obligation under the Loan Purchase and Sale
Agreement. Your agreement to the foregoing shall remain in effect until
terminated by your giving notice of such termination to Seller in the form
attached hereto as Exhibit 1. Upon PSRFC's determination not to accept a
assignment, PSRFC will notify you that this assignment is rejected with respect
to the related Commitment. Not later than 9:00 A.M. Eastern Standard Time on
the business day that you purchase the Mortgage, you shall fax a purchase list
containing the information required by the Mortgage Loan Settlement Summary to
PSRFC at (212) 214-2163, Attention: ___________________. You may also transmit
such information electronically by 10:00 A.M. on such business day. Payment
will be made to PSRFC in immediately available funds.
Very truly yours,
[SELLER]
By:
---------------------
Name:
-------------------
Title:
------------------
<PAGE> 45
Agreed to, confirmed and accepted:
[TAKEOUT INVESTOR]
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
<PAGE> 46
EXHIBIT 1 to EXHIBIT D-2
[WITHDRAWAL OF CONSENT TO BLANKET TRADE ASSIGNMENT]
[Seller]
[Address]
Ladies and Gentlemen:
The undersigned hereby terminates its agreement to Seller's assignment of
Commitments to PSRFC, which approval was given pursuant to the Trade Assignment
dated _________________. This termination shall be effective as of ____________
but shall not affect the assignment of any Commitment which assignment was
made prior to the date hereof. Capitalized terms not defined herein shall
have the meanings set forth in the Trade Assignment.
Very truly yours,
[TAKEOUT INVESTOR]
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Copy to: [Purchaser]
<PAGE> 47
EXHIBIT E
[PURCHASER'S WIRE INSTRUCTIONS]
[Takeout Investor]
[Address]
Re: Custodial Agreement dated as of ____________, 1992,
among Prudential Securities Realty Funding Corporation,
[Seller] and [Custodian]
Ladies and Gentlemen:
Capitalized terms used herein and not defined herein
shall have the meanings ascribed to such terms in the above-referenced
Custodial Agreement.
Set forth below are the Purchaser's Wire Instructions applicable to
the above-referenced Custodial Agreement.
Wire Instructions:
Bank Name:
City, State:
ABA #:
Account #:
Account Name:
Please acknowledge receipt of this letter in the space provided
below. This letter supersedes and replaces any prior notice specifying the
name of Purchaser and the Purchaser's Wire Instructions and shall remain in
effect until superseded and replaced by a letter, in the form of this letter,
executed by each of us and acknowledged by you.
Very truly yours,
PRUDENTIAL SECURITIES REALTY
FUNDING CORPORATION
By:
--------------------------
Name:
Title:
<PAGE> 48
Receipt acknowledged by:
[TAKEOUT INVESTOR]
By:
-----------------------
Name:
---------------------
Title:
--------------------
cc: [Seller]
[Custodian]
<PAGE> 49
EXHIBIT F
FORM OF CONFIRMATION
TO: [NAME AND ADDRESS OF SELLER]
DATE:
RE: Confirmation of Purchase of Mortgage Loans
Prudential Securities Realty Funding Corporation ("Purchaser") is pleased
to confirm its agreement to purchase and your agreement to sell the Mortgage
Loans relating to the pool number referred to herein, pursuant to the Mortgage
Loan Purchase and Sale Agreement, dated as of _________ __, 199_ (the "Mortgage
Loan Purchase and Sale Agreement"), between Purchaser and Seller,
under the following terms and conditions:
Pool No.
-----------------------------------------------
Check as appropriate:
Cash Window Transaction
-----
Conduit Transaction (Conduit: ) Purchase
-----
Date --------
---------------------------------------------------
Settlement Date
----------------------------------------
Discount
-----------------------------------------------
Purchase Price
-----------------------------------------
Pass-Through Rate
--------------------------------------
Total Principal Amount of the Pool
---------------------
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed in the Mortgage Loan Purchase and Sale Agreement.
Very truly yours,
PRUDENTIAL SECURITIES REALTY
FUNDING CORPORATION
By:
--------------------------
Name:
------------------------
Title:
-----------------------
<PAGE> 50
EXHIBIT G
[NOTICE OF REJECTION OF TRADE ASSIGNMENT]
_______________ ("Takeout Investor") [Address]
Attention:______________________
Ladies and Gentlemen:
Prudential Securities Realty Funding Corporation ("PSRFC") hereby
notifies you that it does not intend to purchase a 100% ownership interest in
$___________________ in mortgage loans (the "Mortgage Loans") that you
committed to purchase from the [Seller] pursuant to your confirmation of
commitment (the "Commitment") trade-dated ______________, 19_ a copy of which
is attached hereto. Accordingly, the assignment of the Commitment by Seller
to PSRFC is hereby rejected, and PSRFC shall have no obligations thereunder.
Very truly yours,
PRUDENTIAL SECURITIES REALTY
FUNDING CORPORATION
By:__________________________
Name:
Title:
CC: [Seller]
[Custodian]
<PAGE> 51
EXHIBIT H
[SETTLEMENT MODIFICATION LETTER]
Prudential Securities Realty Funding Corporation [DATE]
One Seaport Plaza
New York, New York 10292
Attention: _____________________
[SELLER]
[ADDRESS]
Re: The Attached Confirmation of Commitment
Ladies and Gentlemen:
Attached hereto is a correct and complete copy of our
confirmation of commitment ("Commitment"). We hereby confirm that we have
irrevocably approved the Mortgage Loans subject to the Commitment for purchase
by us and we hereby agree to purchase such Mortgage Loan(s) from Prudential
Securities Realty Funding Corporation ("PSRFC") in accordance with the terms
of the Commitment or, if this letter is executed by PSRFC and [SELLER], in
accordance with the terms of the Commitment as amended hereby.
We hereby request that the Commitment be amended as
follows:
(i) the Settlement Date set forth in the Commitment shall
be ___________________;
(ii) the aggregate outstanding principal balance of the Mortgage
Loans shall be $____________________;
(iii) the aggregate amount of accrued interest on the Mortgage
Loans shall be $____________________;
(IV) the trade price shall be _______%; and
(v) the total amount payable to PSRFC shall be $
If we fail to pay you the amount set forth in clause (v) above
on the amended Settlement Date, interest shall accrue on such amount at a rate
equal to the weighted average of the Pass-Through Rates related to such Mortgage
Loans.
<PAGE> 52
If the amendments to the Commitment set forth above are acceptable to
you, please so indicate by executing this letter in the appropriate space
provided below and return it to us via facsimile at
[TAKEOUT INVESTOR]
By:
--------------------------
Title:
Agreed to:
[SELLER]
By:
-------------------------------
Title:
Facsimile #:.
---------------------
Agreed to:
PRUDENTIAL SECURITIES REALTY
FUNDING CORPORATION
By: ________________________________ hereto is a correct and complete copy of
our confirmation of commitment ("Commitment"). We hereby confirm that we have
irrevocably approved the Mortgage Loans subject to the Commitment for purchase
by us and we hereby agree to purchase such Mortgage Loan(s) from Prudential
Securities Realty Funding Corporation ("PSRFC") in accordance with the terms
of the Commitment or, if this letter is executed by PSRFC and [SELLER], in
accordance with the terms of the Commitment as amended hereby.
We hereby request that the Commitment be amended as
follows:
(i) the Settlement Date set forth in the Commitment shall
be ____________________;
(ii) the aggregate outstanding principal balance of the
Mortgage Loans shall be $____________________;
(iii) the aggregate amount of accrued interest on the
Mortgage Loans shall be $____________________;
(iv) the trade price shall be _%; and
(v) the total amount payable to PSRFC shall be $
If we fail to pay you the amount set forth in clause (v)
above on the amended Settlement Date, interest shall accrue on
<PAGE> 53
such amount at a rate equal to the weighted average of the Pass-Through Rates
related to such Mortgage Loans.
If the amendments to the Commitment set forth above are acceptable to you,
please so indicate by executing this letter in the appropriate space provided
below and return it to us via facsimile at
[TAKEOUT INVESTOR]
By:
---------------------------------
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS AND UNAUDITED CONSOLIDATED
BALANCE SHEETS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH UNAUDITED
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-START> FEB-01-1997
<PERIOD-END> JUL-31-1997
<CASH> 1,482
<SECURITIES> 0
<RECEIVABLES> 36,644
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 8,173
<DEPRECIATION> 2,328
<TOTAL-ASSETS> 189,585
<CURRENT-LIABILITIES> 0
<BONDS> 13,954
0
5,396
<COMMON> 5
<OTHER-SE> 6,420
<TOTAL-LIABILITY-AND-EQUITY> 189,585
<SALES> 0
<TOTAL-REVENUES> 40,397
<CGS> 0
<TOTAL-COSTS> 38,388
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6,367
<INCOME-PRETAX> 2,009
<INCOME-TAX> 680
<INCOME-CONTINUING> 1,329
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,329
<EPS-PRIMARY> 2.14
<EPS-DILUTED> 2.14
</TABLE>
