<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 October 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)
(248) 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 October 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>
October 31,1997 January 31,
(Unaudited) 1997
--------------- ------------
<S> <C> <C>
Cash $ 3,713,106 $ 3,096,993
Land contracts held for resale 18,248,802 10,351,425
Mortgages held for resale 144,124,004 54,430,155
Accounts receivable - mortgages sold 1,577,718 15,489,908
Accounts receivable 22,654,475 16,997,311
Accounts receivable - related parties 8,595,130 6,827,285
Mortgage servicing rights, net 5,250,657 16,324,263
Excess interest spread receivable 17,801,421 7,987,053
Investments 2,794,426 2,571,750
Property and office equipment, net 5,886,663 5,582,612
Deferred charges and other assets 6,128,980 5,333,058
--------------- ------------
Total assets $ 236,775,382 $144,991,813
=============== ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Notes payable $ 174,318,336 $ 83,975,834
Subordinated debentures 15,126,000 15,542,000
Subordinated notes payable 15,000,000 15,000,000
Accounts payable 13,705,039 15,705,913
Accounts payable-related parties 669,008 1,043,842
Accrued interest and other expenses 4,581,098 2,419,048
Deferred federal income tax 400,000 400,000
Total liabilities --------------- ------------
223,799,481 134,086,637
--------------- ------------
COMMITMENTS AND CONTINGENCIES - -
REDEEMABLE COMMON STOCK 512,873 256,373
--------------- ------------
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
October 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 October 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 October 31, 1997 3,366,190 3,366,190
Additional paid-in capital 3,750,893 3,664,976
Retained earnings 3,310,592 1,582,384
--------------- ------------
Total stockholders equity 12,463,028 10,648,803
--------------- ------------
Total liability and stockholders equity $ 236,775,382 $144,991,813
=============== ============
</TABLE>
See notes to consolidated financial statements
<PAGE> 3
MCA FINANCIAL CORP.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
Three Months Three Months Nine Months Nine Months
Ended Ended Ended Ended
October 31, 1997 October 31, 1996 October 31, 1997 October 31, 1996
---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
REVENUES
Gain on sale of land contracts $ 1,269,790 $ 1,037,081 $ 2,607,562 $ 2,681,397
Gain on sale of real estate 114,495 701,032 419,616 1,547,530
Gain on sale of real estate-related parties 709,000 1,090,236 2,732,893 5,076,015
Gain on bulk sales of servicing rights 1,359,112 1,133,761 4,497,872 4,427,078
Mortgage origination fees and gain on
sale of mortgages 9,664,437 7,322,288 34,960,456 16,029,763
Servicing fees 1,022,961 2,174,464 3,987,790 6,053,379
Interest income 3,509,886 1,943,182 8,074,963 5,858,175
Other income 451,859 109,431 1,217,554 277,414
----------- ----------- ----------- -----------
Total revenues 18,101,540 15,511,475 58,498,706 41,950,751
----------- ----------- ----------- -----------
EXPENSES
Payroll 4,479,892 4,162,242 13,901,337 11,688,086
Interest 4,218,721 3,421,741 10,586,140 8,517,898
Commissions 3,847,145 2,288,106 9,413,265 6,060,057
Professional services 843,438 321,092 2,910,488 1,254,121
Depreciation 126,954 161,510 483,028 465,033
Amortization 2,589,869 1,460,505 6,242,965 3,765,001
General and administrative 1,110,737 3,460,480 12,067,672 9,851,853
----------- ----------- ----------- -----------
Total expenses 17,216,756 15,275,676 55,604,895 41,602,049
----------- ----------- ----------- -----------
INCOME BEFORE FEDERAL
INCOME TAXES 884,784 235,799 2,893,811 348,702
Provision for federal
income taxes 120,000 70,000 800,000 100,000
----------- ----------- ----------- -----------
NET INCOME $ 764,784 $ 165,799 $ 2,093,811 $ 248,702
=========== =========== =========== ===========
Earning <loss> per share $ 1.25 $ .09 $ 3.39 $ (.25)
=========== =========== =========== ===========
Weighted average number of
shares outstanding 513,283 490,560 509,949 472,150
=========== =========== =========== ===========
</TABLE>
See notes to consolidated financial statements
<PAGE> 4
MCA FINANCIAL CORP.
CONSOLIDATED STATEMENTS OF CHANGES IN COMPONENTS OF STOCKHOLDER'S EQUITY
(Unaudited)
Nine Months Ended October 31, 1997 and 1996
<TABLE>
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 - - - 248,702 248,702
Issuance of common stock 545 - 233,185 - 233,730
Preferred stock dividends - - - (365,603) (365,603)
-------- ---------- ---------- ---------- --------------
Balance, October 31, 1996 $ 5,031 $5,396,410 $3,690,436 $1,185,812 $ 10,277,689
======== ========== ========== ========== ==============
Balance, January 31, 1997 $ 5,033 $5,396,410 $3,664,976 $1,582,384 $10,648,803
Net income - - - 2,093,811 2,093,811
Issuance of common stock 100 - 85,917 - 86,017
Preferred stock dividends - - - (365,603) (365,603)
-------- ---------- ---------- ---------- --------------
Balance, October 31, 1997 $ 5,133 $5,396,410 $3,750,893 $3,310,592 $12,463,028
======== ========== ========== ========== ==============
</TABLE>
See notes to consolidated financial statements.
<PAGE> 5
MCA FINANCIAL CORP.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Nine Months
Ended Ended
October 31, 1997 October 31, 1996
---------------- ----------------
<S> <C> <C>
CASH FLOWS FROM OPERATING
ACTIVITIES:
Net income $ 2,093,811 $ 248,202
Adjustments to reconcile net income to
net cash used in operating activities:
Depreciation and amortization 6,725,993 4,230,034
Stock award compensation 86,017 233,730
(Increase) decrease in land contracts held for resale (7,897,377) 6,965,048
Increase in mortgages held for resale (89,693,849) (19,106,095)
Decrease in mortgages sold 13,912,190 -
Increase in accounts receivable (5,657,164) (13,530,365)
Increase in accounts receivable - related parties (1,767,845) (1,413,219)
Increase in interest spread receivable (13,091,508) -
Increase in deferred charges and
other assets (1,440,882) (1,364,198)
Decrease in accounts payable (2,000,874) (13,182,320)
Increase (decrease) in accounts payable -
related parties (374,834) 185,062
Increase (decrease) in accrued expenses 2,162,050 (160,027)
------------- -------------
Net cash provided by (used in)
operating activities (97,634,797) (36,894,148)
------------- -------------
CASH FLOWS FROM INVESTING
ACTIVITIES:
Investment in mortgage servicing rights - (21,251,343)
Proceeds from sale of mortgage servicing rights 9,009,241 27,372,326
Capital expenditures (787,079) (1,007,373)
(Increase) decrease in investments (222,676) 16,420
Real estate acquisitions - (495,188)
------------- -------------
Net cash provided by (used in)
investing activities 7,999,486 4,634,842
------------- -------------
CASH FLOWS FROM FINANCING
ACTIVITIES:
Proceeds from notes payable 717,084,264 628,384,933
Payments on notes payable (626,741,762) (616,748,945)
Proceeds from subordinated notes payable - 15,000,000
Net proceeds from subordinated debentures (416,000) 4,817,000
Dividends on preferred stock (365,603) (365,603)
------------- -------------
Net cash provided by (used in)
financing activities 89,560,899 31,087,385
------------- -------------
Net increase (decrease) in cash 616,113 (1,171,921)
Cash at beginning of period 3,096,993 2,730,408
------------- -------------
Cash at end of period $ 3,713,106 $ 1,558,487
============= =============
</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 October 31, 1997 and the related
consolidated statements of operations, changes in components of stockholders'
equity and cash flows for the three and nine months ended October 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 October 31, 1997 and for the three and nine
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
year, the Company financed approximately 95% of its mortgage originations using
its warehouse lines of credit and approximately 5% with table funding sources.
On October 31, 1997 the Company executed senior secured warehouse
agreements with a syndicate of warehouse lenders totaling $185 million. Texas
Commerce Bank N.A. is the acting warehouse agent. These warehousing lines of
credit provide financing for funding and originating a variety of residential
mortgage loans including, but not limited to, conforming mortgages,
non-conforming mortgages and land contracts. These facilities are scheduled to
expire October 31, 1998. Interest on bank borrowings are based on LIBOR plus
0.85% to 3.0% depending on the type of loan. Mortgages held for resale are
pledged as collateral. The Company also has a $20 million warehousing line of
credit with Paine Webber Real Estate Securities, Inc. Interest on borrowings
under this facility are based on LIBOR plus 1.5%. Mortgages held for resale
are pledged as collateral. This facility is scheduled to expire on November 1,
1998. At October 31, 1997 a total of $136.9 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
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 October 31, 1997, $26.8 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 $10 million
for this purpose. These partnerships will terminate in December 1997. The
Company also has $10 million available as part of its $185 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 October 31, 1997, approximately $334,000 was
outstanding under this facility.
During the first nine months of fiscal 1998 the Company's operating
activities used $97.6 million. Of this, $89.3 million was used to fund
increases in mortgages held for resale. The Company also used $13.1 million to
increase the balance of interest spread receivable, $7.9 million to fund
increase in land
<PAGE> 9
contracts held for resale and $6.3 million in additional
accounts receivable. These uses of cash were partially offset by a $13.9
million decrease in accounts receivable - mortgages sold and a $2.2 million
increase in accrued expenses. Investing activities provided $8.7 million
during the nine months ended October 31, 1997. This primarily is the result of
bulk sales of the Company's servicing rights. Cash flows from financing
activities provided $89.6 million. Proceeds in excess of payments on notes
payable provided $90.3 million.
RESULTS OF OPERATIONS
OVERVIEW
The Company recognized $2,093,811 in net income for the nine months ended
October 31, 1997 as compared to $248,702 of net income for the nine months
ended October 31, 1996. While loan originations increased 9% in the first
three quarters of fiscal 1998, the 742% increase in net income was the result
of significantly increased originations of non-conforming loans. The Company
continues to focus its business on the expansion of this more profitable
non-conforming loan business and has committed substantial resources to
developing this business.
REVENUES
Overall revenues for the nine months ended October 31, 1997 increased 39%
to $58,498,706 as compared to $41,950,751 for the nine months ended October 31,
1996. Gains sale of land contracts remained consistent, decreasing $73,835 to
$2,607,562 from $2,681,397 for the nine months ended October 31, 1997 and 1996,
respectively. Overall gains on sale of real estate decreased $3,471,036, or
110%, from $6,623,545 for the first three quarters of fiscal 1997 to $3,152,509
for the first three quarters of fiscal 1998. This decrease reflects increased
competition in the markets in which the Company competes and the shift of the
Company resources into developing its non-conforming lending business. Gains
on bulk sales of servicing rights were $4,497,872 and $4,427,078, respectively,
for the nine months ended October 31, 1997 and 1996. Mortgage origination fees
and gain on sale of mortgages increased 118% to $34,960,456 from $16,029,763
for the nine months ended October 31, 1997 and 1996, respectively. Total
origination volume increased to $704 million from $643 million over the same
periods. The increase in origination fees and gain on sale of mortgages
resulted from originations of non-conforming loans increasing 235% to $273
million for the first three quarters of fiscal 1998 as compared to $82 million
for the same period of fiscal 1997. The Company expects to continue to shift
its loan production volume to these more profitable non-conforming mortgages as
its sales force develops experience with this type of product. The Company is
also seeking new markets and experienced individuals for opportunities to open
new offices. Servicing fees decreased from $6,053,379 to $3,987,790 for the
nine months ended October 31, 1996 and 1997, respectively. This 34% decrease
reflects the decrease in the Company's average owned servicing portfolio from,
$2.2 billion in fiscal 1997 to $1.2 billion in fiscal 1998. This resulted from
the Company selling off large portions of the servicing it had acquired in
recent years to employ this capital in expanding non-conforming loan
production. Interest income increased 38% to $8,074,963 from $5,858,175 for
the nine months ended October 31, 1998 and 1997, respectively. This resulted
primarily from increased production of higher note rate non-conforming loans
and longer holding periods prior to resale.
EXPENSES
Payroll and commissions increased 31%, to $23,314,602 from $17,740,143
for the nine months ended October 31, 1997 and 1996, respectively. As a
percentage of revenue, payroll and commissions dropped to 40% from 42% as a
result of the change in the Company's production mix. Interest expense
<PAGE> 10
increased $2,068,242, or 24%, to $10,586,140 for the nine months ended October
31, 1997 as compared to $8,517,898 for the nine months ended October 31, 1996.
The increase resulted from increased production levels, interest on the
$15,000,000 of 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 fees increased 132% from $1,254,121 for
the first three quarters of fiscal 1997 to $2,910,488 for a comparable period
of fiscal 1998. The majority of this increase related to fees associated with
selling a significant portion of the Company's non-conforming mortgage
production to a third party for purposes of securitization. The Company did
not engage in this type of transaction in the first nine months of fiscal 1997.
General and administrative increased $2,215,819, 22%, from $9,851,853 to
$12,067,672 for the nine months ended October 31, 1996 and 1997. As a
percentage of revenue these expenses decreased from 23% to 21% over the same
periods. This corresponded to the 2% decrease in payroll and commissions
resulting from increased originations of non-conforming loans.
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits: The following exhibits are filed with this report:
10.1 Senior Secured Warehouse Credit Agreement, dated
October 31, 1997 by and among the Company and its
subsidiaries and a Syndicate of Warehouse Lenders, Texas
Commerce Bank N.A., Warehouse Agent.
10.2 Senior Secured Seasoned Warehouse Credit Agreement, dated
October 31, 1997 by and among the Company and its
subsidiaries and a Syndicate of Warehouse Lenders, Texas
Commerce Bank N.A., Warehouse Agent.
10.3 Lease Agreement between the Company and Northwestern
Corporate Center Associates Limited Partnership.
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 October 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: December 12, 1997 By: Patrick D. Quinlan
---------------------------
Patrick D. Quinlan,
Chairman
(Principal Executive Officer)
Date: December 12, 1997 By: Keith D. Pietila
---------------------------
Keith D. Pietila,
Executive Vice President
(Principal Financial and
Accounting Officer)
<PAGE> 12
Exhibit Index
-------------
Exhibit No. Description
- ----------- -----------
10.1 Senior Secured Warehouse Credit Agreement, dated October 31,
1997 by and among the Company and its subsidiaries and a
Syndicate of Warehouse Lenders, Texas Commerce Bank N.A.,
Warehouse Agent.
10.2 Senior Secured Seasoned Warehouse Credit Agreement, dated
October 31, 1997 by and among the Company and its subsidiaries
and a Syndicate of Warehouse Lenders, Texas Commerce Bank
N.A., Warehouse Agent.
10.3 Lease Agreement between the Company and Northwestern Corporate
Center Associates Limited Partnership.
27 Financial Data Schedule
<PAGE> 1
EXHIBIT 10.1
[MCA FINANCIAL CORP. LOGO]
MCA FINANCIAL CORP.
MCA MORTGAGE CORPORATION
MORTGAGE CORPORATION OF AMERICA
MORTGAGE CORPORATION OF AMERICA, INC.
- --------------------------------------------------------------------------------
$160,000,000
10/97 SENIOR SECURED
WAREHOUSE CREDIT AGREEMENT
DATED AS OF OCTOBER 31, 1997
- --------------------------------------------------------------------------------
A SYNDICATE OF WAREHOUSE LENDERS
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
WAREHOUSE AGENT
[CHASE LOGO] [TEXAS COMMERCE BANK LOGO]
DUPLICATE ORIGINAL
VOLUME I OF II
<PAGE> 2
LIST OF DOCUMENTS
FOR 10/97 SENIOR SECURED WAREHOUSE CREDIT AGREEMENT
FOR MCA FINANCIAL CORP AND AFFILIATED COMPANIES
1. 10/97 SENIOR SECURED WAREHOUSE CREDIT AGREEMENT dated as of
October 31, 1997 among MCA Financial Corp., MCA Mortgage
Corporation, Mortgage Corporation of America (the "Borrowers")
and Mortgage Corporation of America, Inc. (collectively with the
Borrowers, the "Companies"), the Warehouse Agent and the Warehouse
Lenders, all of the capitalized terms in which have the same
meanings when used in this list, with the following:
Exhibits:
--------
A - Collateral Conversion Notice form
B - Release Request form
C - Request for Advance form
D - Submission List form
E-1 - form for Warehouse Notes other than the Swing Line Note
E-2 - form for the Swing Line Note
F - Take-out Report form
G-1 - Warehouse Security Agreement form
G-2 - UCC-1 Financing Statement form
H - Opinion of Borrowers' Counsel form
I-1 - Disbursement Request Certificate - for refinancing
Eligible Warehouse Collateral
I-2 - Disbursement Request Certificate - for financing new
Eligible Warehouse Collateral
I-3 - Disbursement Request Certificate - for supplemental
Borrowing
J - Warehouse Collateral Certificate form
K - Assignment and Assumption Agreement form
L - Amendment form
Schedules:
---------
AG - Applicable Guidelines
AI - Approved Investors
BB - Borrowing Base Calculations
CP - Collateral Procedures
EC - Eligibility Conditions
LC - the Lenders' Committed Sums and Funding Share Fractions
2.3 - terms of the Companies' liability for Borrowings by
other Companies
10.2(b)- Borrowing Base Certificate
11.1 - Subsidiaries
11.4 - Litigation and Judgements
12.2(d)- Management Report
12.12 - Senior Management
12.15 - Shareholders
13.4 - Existing indebtedness
13.6 - Existing Liens
13.13 - Affiliate Transactions
<PAGE> 3
2. WAREHOUSE NOTES payable to the order of:
a. Texas Commerce Bank National Association ($37,500,000)
b. Residential Funding Corporation ($37,500,000)
c. Guaranty Federal Bank, F.S.B. ($25,000,000)
d. Bank One, Texas, N.A. ($20,000,000)
e. The Bank of New York ($20,000,000)
f. LaSalle National Bank ($20,000,000)
g. Texas Commerce Bank National Association (Swing Line Note,
$30,000,000)
3. CUSTODY AGREEMENT
4. WAREHOUSE SECURITY AGREEMENT
5. WAREHOUSE FINANCING STATEMENTS
a. MCA Financial Corp. (for filing with Michigan Secretary of
State)
b. MCA Mortgage Corporation (for filing with Michigan Secretary of
State)
c. Mortgage Corporation of America (for filing with Michigan
Secretary of State)
d. Mortgage Corporation of America, Inc. (for filing with Michigan
Secretary of State)
6. DISBURSEMENT REQUEST CERTIFICATE - for initial Borrowing (to refinance
Eligible Warehouse Collateral currently financed under Texas Commerce
Bank National Association-only warehouse credit agreement).
7. ASSIGNMENTS OF EXISTING TEXAS COMMERCE BANK NATIONAL ASSOCIATION
FINANCING STATEMENTS giving notice of that bank's security interests in
the Collateral for this facility that presently secures a Texas
Commerce-only warehouse credit facility for the Companies.
8. REQUEST FOR APPROVAL, AND APPROVAL, of Senior Lender by the Board of
Trustees of the Policemen and Firemen Retirement System of the City of
Detroit, as subordinated lender to the Companies pursuant to $15
million Subordinated Promissory Note (Term Loan) dated July 18, 1996
9. OFFICERS' CERTIFICATE for MCA Financial Corp., accompanied by corporate
documents
10. OFFICERS' CERTIFICATE for MCA Mortgage Corporation, accompanied by
corporate documents
11. OFFICERS' CERTIFICATE for Mortgage Corporation of America, accompanied
by corporate documents
12. OFFICERS' CERTIFICATE for Mortgage Corporation of America, Inc.,
accompanied by corporate documents
2
<PAGE> 4
13. CERTIFICATE of the Chief Financial Officer of MCA Financial Corp.,
certifying to a true and correct copy of the December 30, 1994,
Indenture relating to the 11% Asset-Backed Subordinated Debentures,
Series 1994, Due June 30, 2000, accompanied by Indenture
14. OPINION of Butzel Long, as counsel to Companies, addressed to Warehouse
Agent
15. OPINION of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P., as special
counsel, addressed to Warehouse Agent
3
<PAGE> 5
10/97 SENIOR SECURED WAREHOUSE CREDIT AGREEMENT
AMONG
MCA FINANCIAL CORP.,
MCA MORTGAGE CORPORATION, and
MORTGAGE CORPORATION OF AMERICA,
as the Borrowers
together with
MORTGAGE CORPORATION OF AMERICA, INC.
as, collectively, the Companies,
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Warehouse Agent,
and
CERTAIN LENDERS,
as Warehouse Lenders
$160,000,000
DATED AS OF OCTOBER 31, 1997
<PAGE> 6
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. DEFINITIONS...................................................................................................2
1.1 Defined Terms..........................................................................2
1.2 Definitions for Interest Calculations.................................................26
1.3 Accounting Terms. ...................................................................31
1.4 Singular and Plural. ................................................................31
1.5 Certain Matters of Construction. ....................................................31
2. MULTIPLE COMPANIES; MCAI-OHIO'S COLLATERAL...................................................................32
2.1 Companies.............................................................................32
2.2 Basis for Structure...................................................................32
2.3 Joint and Several Obligation..........................................................32
2.4 Contribution Rights...................................................................33
2.5 MCAI-Ohio's Consent to Pledge of its Collateral by MCAFC;
the Borrowers' Promise to Make Loan Proceeds
Proportionately Available to MCAI-Ohio; Further Assurances
Concerning Collateral.................................................................33
3. WAREHOUSE LENDERS' COMMITMENTS...............................................................................34
3.1 Revolving Credit Commitments. .......................................................34
3.2 Expiration or Termination of the Commitments..........................................35
3.3 Limitations on Borrowings.............................................................35
4. SWING LINE COMMITMENT........................................................................................37
4.1 Swing Loans...........................................................................37
4.2 Swing Line Note and Interest on Swing Loans...........................................37
5. BORROWING PROCEDURES.........................................................................................37
5.1 Request for Advance to Refinance Certain Existing Debt................................37
5.2 Requests for Revolving Loans for Originations and Acquisitions........................38
5.3 Request for Supplemental Borrowing Against Eligible Collateral's
Collateral Value......................................................................38
5.4 Requests Are Both for Swing Loans and Revolving Loans.................................39
5.5 Initial Funding of Revolving Loans under the Swing Line;
Refinancing of Swing Loans............................................................39
5.6 Requests for Advance Due by 4 PM......................................................40
5.7 New Collateral (If Any) Due by 11:00 AM on the Day of a Requested
Revolving Loan........................................................................40
5.8 If a Request for Advance or New Collateral Papers are Received Late;
Waiver of Claim for Any Late Funding..................................................41
</TABLE>
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<PAGE> 7
<TABLE>
<S> <C>
6. THE REVOLVING CREDIT NOTES...................................................................................41
7. INTEREST RATES; ADDITIONAL COSTS AND FEES....................................................................41
7.1 Interest..............................................................................41
7.2 Maximum Rate..........................................................................42
7.3 Additional Costs......................................................................42
7.4 Change in Laws........................................................................43
7.5 Chief Credit Officer's Certificate Conclusive.........................................43
7.6 Facility Fee..........................................................................44
7.7 Agent's Fee...........................................................................44
7.8 Custodian's Fee.......................................................................44
7.9 Other Fees and Expenses...............................................................44
8. INTEREST AND PRINCIPAL PAYMENTS; DISTRIBUTIONS...............................................................45
8.1 Payments..............................................................................45
8.2 Pro Rata Distribution of Payments.....................................................47
8.3 Changes in Commitments and Prepayments................................................47
8.4 Acceptance and Application of Payments................................................48
8.5 Invalidated Payments..................................................................48
9. COLLATERAL...................................................................................................49
9.1 Security Interest.....................................................................49
9.2 Delivery of Additional Collateral or Mandatory Prepayment.............................49
9.3 Right of Redemption From Pledge.......................................................49
9.4 Releases of Pledged Loans Sold or Securitized.........................................50
9.5 Return of Collateral at End of Commitment.............................................52
10. CONDITIONS PRECEDENT........................................................................................52
10.1 Initial Revolving Loan................................................................52
10.2 Conditions to All Disbursements. ....................................................54
11. WARRANTIES AND REPRESENTATIONS..............................................................................57
11.1 Corporate Existence and Power. ......................................................57
11.2 Authorization and Approvals. ........................................................57
11.3 Valid and Binding Agreement. ........................................................58
11.4 Actions, Suits or Proceedings.........................................................58
11.5 No Liens, Pledges, Mortgages or Security Interests. .................................58
11.6 Financial Statements. ...............................................................58
11.7 Financial Condition. ................................................................59
11.8 The Companies Have Paid Taxes. ......................................................59
11.9 Compliance with Laws. ...............................................................59
11.10 Margin Stock. .......................................................................59
11.11 No Pension Funding Deficiency. ......................................................59
</TABLE>
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<PAGE> 8
<TABLE>
<S> <C>
11.12 Approved Lender, Mortgagee, Issuer and Servicer. ....................................59
11.13 Investment Company. .................................................................60
11.14 Misrepresentation. ..................................................................60
12. AFFIRMATIVE COVENANTS.......................................................................................60
12.1 Pay Revolving Credit Notes............................................................60
12.2 Furnish Financial and Other Information...............................................60
12.3 Insurance. ..........................................................................62
12.4 Pay Taxes. ..........................................................................63
12.5 Maintain Corporation, Business and Approved Statuses. ...............................63
12.6 Maintain Net Worth....................................................................63
12.7 Limit Leverage........................................................................64
12.8 Maintain Servicing Portfolio Level....................................................64
12.9 Maintain Fixed Charges Coverage Ratio.................................................64
12.10 ERISA. ..............................................................................64
12.11 Use of Loan Proceeds. ...............................................................64
12.12 Senior Management. ..................................................................64
12.13 Accounting; Access to Records, Books, Etc. ..........................................64
12.14 Further Assurances. .................................................................65
12.15 Shareholder Changes. ................................................................65
13. NEGATIVE COVENANTS..........................................................................................65
13.1 Dividends. ..........................................................................65
13.2 Stock Acquisition. ..................................................................66
13.3 Liens and Encumbrances. .............................................................66
13.4 Indebtedness. .......................................................................66
13.5 Extension of Credit. ................................................................66
13.6 Guarantee Obligations. ..............................................................67
13.7 Subordinate Indebtedness. ...........................................................67
13.8 Property Transfer; Merger or Lease-Back. ............................................67
13.9 Nature of Business. .................................................................68
13.10 Acquire Securities. .................................................................68
13.11 Acquire Fixed Assets. ...............................................................68
13.12 Pension Plans. ......................................................................68
13.13 Affiliate Transactions. .............................................................68
13.14 Servicing Matters. ..................................................................69
13.15 Misrepresentation. ..................................................................69
14. EVENTS OF DEFAULT; REMEDIES; APPLICATION OF PROCEEDS........................................................69
14.1 Events of Default. ..................................................................69
14.2 Automatic Termination and Acceleration. .............................................71
14.3 Acceleration for Other Default........................................................71
14.4 Remedies; Remedies Are Cumulative ....................................................71
</TABLE>
iii
<PAGE> 9
<TABLE>
<S> <C>
14.5 Agent and Lenders Not Liable; Waiver of Claims........................................72
14.6 Waiver of Possible Implied Obligations................................................72
14.7 Protective Advances...................................................................72
14.8 Delay Not Waiver......................................................................72
14.9 Application of Proceeds. .............................................................73
14.10 Concerning Obligations Payable Upon Demand............................................74
14.11 Marshaling............................................................................74
14.12 Cure or Waiver........................................................................74
15. RELATIONSHIPS AMONG THE AGENT AND THE LENDERS...............................................................74
15.1 Agent's Duties........................................................................74
15.2 Actions Requiring All Lenders' Consent................................................75
15.4 Agent's Discretionary Actions.........................................................77
15.5 Lenders' Cooperation..................................................................77
15.6 Lenders' Sharing Arrangement..........................................................78
15.7 Lenders' Acknowledgment...............................................................78
15.8 Agent's Representations to Lenders....................................................78
15.9 Agent's Duty of Care, Express Negligence Waiver and Release...........................79
15.10 Calculations of Shares of Principal and Other Sums....................................79
15.11 Qualifications of the Warehouse Agent.................................................80
15.12 Resignation of the Warehouse Agent....................................................80
15.13 Removal of the Warehouse Agent........................................................80
15.14 Effective Date of Resignation or Removal..............................................81
15.15 Successor Agent.......................................................................81
15.16 Merger of the Warehouse Agent.........................................................81
15.17 Participation; Assignment.............................................................81
15.18 Beneficiaries of this Section.........................................................84
16. REIMBURSEMENT OF EXPENSES; INDEMNITY........................................................................84
16.1 Pay Negotiation and Administration Costs..............................................84
16.2 Pay Certain Taxes.....................................................................84
16.3 Expenses; Indemnification. ..........................................................84
17. MISCELLANEOUS...............................................................................................85
17.1 Items to Be Satisfactory to the Warehouse Agent.......................................85
17.2 Usury Not Intended; Credit or Refund of Any Excess Payments...........................85
17.3 Independent Rights. .................................................................86
17.4 Covenant Independence. ..............................................................86
17.5 Relationship of the Parties...........................................................86
17.6 No Waiver.............................................................................87
17.7 Governing Law, Jurisdiction and Venue.................................................87
17.8 Severability..........................................................................88
17.9 Survival of Warranties, Etc. ........................................................88
</TABLE>
iv
<PAGE> 10
<TABLE>
<S> <C>
17.10 Payments on Saturdays, Etc. .........................................................88
17.11 Terms Binding Upon Successors; Survival of Representations............................88
17.12 Disclosure of Information. ..........................................................89
17.13 Maintenance of Records. .............................................................89
17.14 Notices. ............................................................................89
17.15 Counterpart Execution; Amendments.....................................................91
17.16 Integration. ........................................................................91
17.17 General Purpose of Loan...............................................................91
17.18 Limitation of Liability. ............................................................91
17.19 WAIVER OF JURY TRIAL..................................................................92
17.20 Notice Pursuant to Tex. Bus. & Comm. Code Section 26.02...............................92
</TABLE>
v
<PAGE> 11
INDEX OF DEFINED TERMS
<TABLE>
<S> <C>
"10/97 Seasoned Warehouse Credit Agreement".......................................................................2
"10/97 Servicing/Residuals Loan Agreement"........................................................................2
"9/97 Servicing/Residuals Loan Agreement".........................................................................2
"Advanta".........................................................................................................2
"Affiliate".......................................................................................................2
"Agent's Fee"....................................................................................................44
"Agent"...........................................................................................................1
"Agent's Fee".....................................................................................................2
"Aggregate Committed Sum".........................................................................................3
"Aggregate Credit Limit"..........................................................................................3
"Applicable Margin"..............................................................................................26
"Appraisal Law"...................................................................................................3
"Appraisal".......................................................................................................3
"Approved Investor"...............................................................................................4
"Bankruptcy Code".................................................................................................4
"Base Rate Borrowing"............................................................................................27
"Base Rate"......................................................................................................27
"Basic Papers"....................................................................................................4
"Borrowers".......................................................................................................1
"Borrower"........................................................................................................4
"Borrowing Base Certificate".....................................................................................55
"Borrowing Base Deficiency".......................................................................................4
"Borrowing Base Report"...........................................................................................4
"Borrowing Base"..................................................................................................4
"Borrowing Price Category".......................................................................................27
"Borrowing Purpose Category".....................................................................................27
"Borrowing".......................................................................................................4
"Bridged Loan"....................................................................................................4
"Business Day"....................................................................................................6
"Calendar Month"..................................................................................................6
"Cash Flow".......................................................................................................6
"Ceiling Rate"...................................................................................................27
"Certifying Officer's Certificate"................................................................................6
"Chapter 1D".....................................................................................................27
"Collateral Conversion Notice"....................................................................................6
"Collateral Papers"...............................................................................................6
"Collateral Value"................................................................................................6
"Collateral"......................................................................................................6
"Commitment"......................................................................................................7
"Committed Sum"...................................................................................................7
"Companies".......................................................................................................1
"Consolidated"....................................................................................................7
</TABLE>
i
<PAGE> 12
<TABLE>
<S> <C>
"Construction Loan Borrowing".....................................................................................7
"Construction Loan Sublimit"......................................................................................7
"Construction Loan"...............................................................................................7
"Correction Period"...............................................................................................7
"Custodian".......................................................................................................7
"Custody Agreement"...............................................................................................7
"D/E Mortgage Loans Borrowing"....................................................................................8
"D/E Mortgage Loan"...............................................................................................8
"D/E Sublimit"....................................................................................................8
"Dated Assets"...................................................................................................33
"Dated Liabilities"..............................................................................................33
"Debtor Laws".....................................................................................................8
"Debt"............................................................................................................8
"Default".........................................................................................................8
"Disbursement Date"...............................................................................................8
"Dry Borrowing"...................................................................................................8
"Effective Date"..................................................................................................1
"Eligible Assignee"..............................................................................................82
"Eligible Collateral".............................................................................................8
"Eligible Construction Loan"......................................................................................8
"Eligible D/E Mortgage Loan"......................................................................................8
"Eligible Gestation Loan".........................................................................................9
"Eligible High LTV Mortgage Loan".................................................................................9
"Eligible Indirect Warehouse Loan"................................................................................9
"Eligible Jumbo Loan".............................................................................................9
"Eligible Land Contract"..........................................................................................9
"Eligible Mortgage Collateral"....................................................................................9
"Eligible Mortgage Loan"..........................................................................................9
"Eligible Mortgage Security"......................................................................................9
"Eligible Second Mortgage Loan"...................................................................................9
"Eligible Subprime Mortgage Loan".................................................................................9
"Enhancement Agreement"..........................................................................................10
"Environmental Law"..............................................................................................10
"ERISA"..........................................................................................................10
"FAB Principal Equivalent".......................................................................................27
"FAB Rate".......................................................................................................27
"Facility Fee"...................................................................................................44
"Federal Funds Effective Rate"...................................................................................28
"FHA Loan".......................................................................................................10
"FHA"............................................................................................................10
"FHLMC"..........................................................................................................10
"Financial Statements"...........................................................................................58
"Financing Statements"...........................................................................................10
"Fixed Charges Coverage Ratio"...................................................................................11
</TABLE>
ii
<PAGE> 13
<TABLE>
<S> <C>
"Fixed Charges"..................................................................................................11
"FNMA"...........................................................................................................11
"Free Adjusted Balances".........................................................................................28
"Free Redemption Proviso"........................................................................................50
"Free Release Proviso"...........................................................................................51
"Funding Share"..................................................................................................11
"GAAP"...........................................................................................................11
"Gestation Borrowing"............................................................................................11
"Gestation Sublimit".............................................................................................11
"GNMA"...........................................................................................................12
"Governmental Authority".........................................................................................12
"Guide"..........................................................................................................12
"Hazardous Substance"............................................................................................12
"High LTV Loans Borrowing".......................................................................................12
"High LTV Mortgage Loan".........................................................................................12
"Indemnified Liabilities"........................................................................................85
"Indemnified Parties"............................................................................................85
"indicated rate ceiling".........................................................................................27
"Indirect Warehouse Borrowing"...................................................................................12
"Indirect Warehouse Sublimit"....................................................................................13
"IRC"............................................................................................................13
"Jumbo Loan".....................................................................................................13
"Jumbo Sublimit".................................................................................................13
"Land Contract Sublimit".........................................................................................13
"Land Contracts Borrowing".......................................................................................13
"Land Contract"..................................................................................................13
"Laws"...........................................................................................................13
"Lender Lien"....................................................................................................14
"Lenders, Et Al".................................................................................................91
"Lenders".........................................................................................................1
"Lender".........................................................................................................13
"LIBOR Borrowing"................................................................................................29
"LIBOR Rate".....................................................................................................29
"LIBOR"..........................................................................................................29
"Lien"...........................................................................................................14
"Loan Documents".................................................................................................14
"Majority Lenders"...............................................................................................14
"Market Value"...................................................................................................14
"Material Adverse Effect"........................................................................................14
"Maximum Amount".................................................................................................29
"Maximum Rate"...................................................................................................29
"MCAFC"...........................................................................................................1
"MCAI-Ohio".......................................................................................................1
"MCAMC"...........................................................................................................1
</TABLE>
iii
<PAGE> 14
<TABLE>
<S> <C>
"MCA".............................................................................................................1
"Mortgage Collateral"............................................................................................14
"Mortgage Loan"..................................................................................................15
"Mortgage Note"..................................................................................................15
"Mortgage Pool"..................................................................................................15
"Mortgage Security"..............................................................................................15
"Net Income".....................................................................................................15
"Net Worth"......................................................................................................15
"Note Payment/Funding Account"...................................................................................15
"Note"...........................................................................................................15
"Notice of Receipt"..............................................................................................15
"Obligations"....................................................................................................15
"Officer's Certificate"..........................................................................................16
"Past Due Rate"..................................................................................................29
"PBGC"...........................................................................................................16
"Pension Fund"...................................................................................................16
"Permitted Liens"................................................................................................16
"Person".........................................................................................................17
"Pledged to the Warehouse Agent".................................................................................17
"Prime Rate".....................................................................................................29
"Pro Rata".......................................................................................................17
"Redemption Amount"..............................................................................................18
"Release Request"................................................................................................18
"Representative".................................................................................................19
"Repurchase Borrowing"...........................................................................................18
"Repurchased Loans Sublimit".....................................................................................19
"Repurchased Loan"...............................................................................................19
"Request for Advance"............................................................................................19
"Responsible Officer"............................................................................................19
"Reuters Screen LIBO Page".......................................................................................30
"Revolving Credit Notes".........................................................................................19
"Revolving Loan".................................................................................................19
"Seasoned Warehouse Credit Agreement".............................................................................2
"Second Mortgage Loans Borrowing"................................................................................19
"Second Mortgage Loans Sublimit".................................................................................20
"Second Mortgage Loan"...........................................................................................19
"Servicer".......................................................................................................20
"Servicing Portfolio"............................................................................................20
"Servicing Rights"...............................................................................................20
"Servicing/Residuals Agent".......................................................................................2
"Servicing/Residuals Lenders"....................................................................................20
"Servicing/Residuals Loan Agreement".............................................................................20
"Shipping Period"................................................................................................21
"Solvent"........................................................................................................21
</TABLE>
iv
<PAGE> 15
<TABLE>
<S> <C>
"Stated Rate"....................................................................................................30
"Stated Termination Date"........................................................................................21
"Sublimit".......................................................................................................21
"Submission List"................................................................................................21
"Subordinated Debt"..............................................................................................21
"Subsidiary".....................................................................................................21
"Swing Line Limit"...............................................................................................22
"Swing Line Note"................................................................................................22
"Swing Line".....................................................................................................22
"Swing Loan Due Date"............................................................................................22
"Swing Loan".....................................................................................................22
"Take-out Commitment"............................................................................................22
"Take-out Price".................................................................................................22
"Take-out Report"................................................................................................22
"Taxes"..........................................................................................................22
"Termination Date"...............................................................................................23
"Texas Commerce Loan Balances"...................................................................................31
"Texas Commerce"..................................................................................................1
"Texas Finance Code".............................................................................................31
"Tribunal".......................................................................................................23
"UCC"............................................................................................................23
"VA Loan"........................................................................................................23
"VA".............................................................................................................23
"Warehouse Agent".................................................................................................1
"Warehouse Borrowers".............................................................................................1
"Warehouse Collateral Papers"....................................................................................24
"Warehouse Credit Agreement"......................................................................................2
"Warehouse Lenders"...............................................................................................1
"Warehouse Line Borrowing".......................................................................................24
"Warehouse Line Commitment"......................................................................................24
"Warehouse Line Committed Sum"...................................................................................24
"Warehouse Line".................................................................................................24
"Warehouse Loan Documents".......................................................................................24
"Warehouse Note Payment/Funding Account".........................................................................24
"Warehouse Notes"................................................................................................25
"Warehouse Revolving Loan".......................................................................................25
"Warehouse Security Agreement"...................................................................................25
"weekly ceiling".................................................................................................27
"Wet Borrowing"..................................................................................................26
"Wire Instructions"..............................................................................................26
</TABLE>
v
<PAGE> 16
10/97 SENIOR SECURED WAREHOUSE CREDIT AGREEMENT
PREAMBLE
THIS 10/97 SENIOR SECURED WAREHOUSE CREDIT AGREEMENT made and delivered
this 31st day of October, 1997 (the "EFFECTIVE DATE"), by and among (i) 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. (MCAFC, MCAMC and MCA
are herein called the "WAREHOUSE BORROWERS" and, together with MORTGAGE
CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation, and all of
their Subsidiaries, the "COMPANIES" or, within this Agreement only, the
"BORROWERS" and the "COMPANIES", respectively) and (ii) TEXAS COMMERCE BANK
NATIONAL ASSOCIATION ("TEXAS COMMERCE"), a national banking association acting
herein as a lender and as agent for the other lenders herein and Eligible
Assignees (in that latter capacity, Texas Commerce is called the "WAREHOUSE
AGENT" or, within this Agreement only, the "AGENT") and such other lender(s) as
may from time to time be party to this Agreement (Texas Commerce as a lender and
such other lenders are called the "WAREHOUSE LENDERS", or within this Agreement
only, the "LENDERS"),
WITNESSETH:
RECITALS
The Borrowers have asked the Warehouse Lenders and the Warehouse Agent
to establish a senior, secured, warehouse revolving line of credit with
revolving sublines for the Borrowers to borrow from the Warehouse Lenders up to
$160 million of principal outstanding from time to time to finance the
Companies' acquisition or retention of Mortgage Loans and Land Contracts until
they are sold in the secondary market and to refinance the Companies' existing
debt heretofore incurred to Texas Commerce for those same purposes, and the
Warehouse Lenders and the Warehouse Agent agree to do so on the terms and
subject to the conditions of this Agreement.
In addition, Texas Commerce has agreed to provide a separate revolving
swing line of credit to initially and temporarily finance the Borrowers'
borrowings pending their funding by all of the Lenders pursuant to this
Agreement.
The Lenders' and Agent's agreement to establish and continue the
warehouse credit line and its sublines and Texas Commerce's agreement to
establish and continue the swing line, are each made on the terms and subject to
the conditions of this Agreement. If there is any conflict or inconsistency
between any of the terms or provisions of this Agreement and any of the other
Warehouse Loan Documents, this Agreement shall govern and control. If there is
any conflict between any provision of this Agreement and any later supplement,
amendment, restatement or replacement of it, then the latter shall govern and
control.
<PAGE> 17
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the Borrowers, the Warehouse Lenders and the
Warehouse Agent agree as follows:
1. DEFINITIONS
1.1 Defined Terms. The terms defined in this Section are generally
applicable. For convenience of reference, defined terms relating only to the
calculation and payment of interest are defined in SECTION 1.2. Except where
otherwise specifically provided, the following terms have the following meanings
in this Agreement and the other Warehouse Loan Documents:
"10/97 SEASONED WAREHOUSE CREDIT AGREEMENT" means the 10/97 Senior
Secured Seasoned Warehouse Credit Agreement dated as of , 1997 among the
Borrowers, Texas Commerce, as a lender and as agent for the other lenders (the
"SEASONED WAREHOUSE AGENT") and the other lenders party thereto from time to
time (such lenders being herein called the "SEASONED WAREHOUSE LENDERS" and such
credit agreement, as supplemented, amended or restated from time to time, being
herein called the "SEASONED WAREHOUSE CREDIT AGREEMENT").
"10/97 SERVICING/RESIDUALS LOAN AGREEMENT" means the 10/97 Revolving
Credit Loan Agreement (Secured) dated as of October 31, 1997 among the
Borrowers, Texas Commerce, as a lender and as agent for the other lenders
therein (the "SERVICING/RESIDUALS AGENT") and the other lenders party thereto
from time to time (such lenders being herein called the "SERVICING/RESIDUALS
LENDERS" and such loan agreement, as supplemented, amended or restated from time
to time, being herein called the "SERVICING/RESIDUALS LOAN AGREEMENT").
"ADVANTA" means and includes both Advanta Mortgage Conduit Services,
Inc., and Advanta Mortgage Corp. USA.
"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 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.
"AGENT" is defined in this Agreement's Preamble.
"AGENT'S FEE" means, in this Agreement only, the Warehouse Agent's Fee.
"AGREEMENT" means, in this Agreement only, this 10/97 Senior Secured
Warehouse Credit Agreement.
2
<PAGE> 18
"AGGREGATE COMMITTED SUM" means, on any day, the lesser of (a) One
Hundred Sixty Million Dollars ($160,000,000) and (b) the aggregate of the
Warehouse Lenders' individual Committed Sums for that day as stated in the
definition of "Committed Sum" (or such lesser amount to which the Aggregate
Committed Sum may be reduced by Borrowers from time to time under SECTION 8.3);
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 Warehouse Agent and the Lenders (or any one or more of them) to
the Borrowers from time to time (including the facilities provided and to be
provided by the Servicing/Residuals Loan Agreement and the Seasoned Warehouse
Credit Agreement), shall never exceed Two Hundred Thirteen Million Five Hundred
Thousand Dollars ($213,500,000) in the aggregate (the "AGGREGATE CREDIT LIMIT").
"AGGREGATE CREDIT LIMIT" is defined in the definition of "Aggregate
Committed Sum".
"APPRAISAL" means, for any Mortgage Loan or other item of Collateral:
(i) for which applicable Appraisal Laws require an appraisal, a
written appraisal report as that term is defined in the Code of Professional
Ethics of the American Institute of Appraisers, that meets the requirements of
all Appraisal Laws, prepared by a professional appraiser who is a member of the
American Institute of Appraisers and who is acceptable to the Warehouse Agent,
setting forth such appraiser's determination of the market value of the real
property securing such Mortgage Loan or of such other item of Collateral;
(ii) for which applicable Appraisal Laws do not require an appraisal
but do require another specified form or type of evaluation report or opinion, a
written evaluation report that meets -- and that is prepared by a Person
acceptable to the Warehouse Agent that meets -- the requirements of such
Appraisal Laws, setting forth such evaluator's opinion of the market value of
the real property securing such Mortgage Loan or of such other item of
Collateral; or
(iii) for which applicable Appraisal Laws do not require an evaluation
report or opinion, but the Warehouse Agent does, a written evaluation report
that meets the Warehouse Agent's requirements, and that is prepared by a Person
acceptable to the Warehouse Agent, setting forth such evaluator's opinion of the
market value of the real property securing such Mortgage Loan or of such other
item of Collateral;
in form, scope and substance satisfactory to the Warehouse Agent.
"APPRAISAL LAW" means any Law that is applicable to appraisals of
mortgaged residential property in connection with transactions involving that
property, including Title XI of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, the Federal Deposit Insurance Corporation Improvement
Act of 1991, 12 C.F.R. Chapter I, Part 34, Subpart C, 12 C.F.R. Chapter II,
Subchapter A. Part 225, Subpart G, and 12 C.F.R. Chapter III, Subchapter B, Part
323.
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"APPROVED INVESTOR" means (a) FHLMC, FNMA, GNMA, and (b) any other
Person named on SCHEDULE AI, as that Schedule may be supplemented or amended (i)
by the Borrowers and the Warehouse Agent to remove or add other names as the
Warehouse Agent and the Borrowers may agree, (ii) by either the Warehouse Agent
or the Majority Warehouse Lenders to remove any such other Person after the
Warehouse Agent has, or the Majority Warehouse Lenders have, given the Borrowers
notice of, and an opportunity to discuss, the proposed removal of that Person,
or (iii) automatically, without signing by any party, to remove any such Person
who then (A) is not Solvent, (B) fails to pay its debts generally as they become
due, (C) voluntarily seeks, consents to, or acquiesces in the benefit of any
Debtor Law, or (D) becomes a party to or is made the subject of any proceeding
provided for by any Debtor Law, other than as a creditor or claimant, that could
suspend or otherwise adversely affect the rights of any Borrower, the Warehouse
Agent, the Custodian or any Lender in connection with the transactions
contemplated in the Warehouse Loan Documents.
"BANKRUPTCY CODE" means Title 11 of the United States Code, as amended
from time to time, or any successor act or code.
"BASIC PAPERS" means all of the Collateral Papers that must be
delivered to the Custodian -- in the case of Bridged Loans, on or before the
seventh (7th) Business Day after the related Warehouse Revolving Loan is funded
- -- in order for any particular item of Warehouse Collateral to be Eligible
Collateral and have Collateral Value. The Custody Agreement lists the Basic
Papers for each such category of Collateral, and reference is here made to the
Custody Agreement for those listings.
"BORROWER" means any of MCAFC, MCAMC and MCA.
"BORROWING" means, in this Agreement only, a Warehouse Line Borrowing.
"BORROWING BASE" is defined in, and calculated under, SCHEDULE BB.
"BORROWING BASE DEFICIENCY" means, on any day, the amount (if any) by
which the principal of the Warehouse Revolving Loans outstanding on that day
exceeds the Borrowing Base on that day.
"BORROWING BASE CERTIFICATE" is defined in SECTION 10.2(b).
"BORROWING BASE REPORT" means a report executed by the Warehouse Agent
and delivered to the Borrowers and the Warehouse Lenders in accordance with the
provisions of SECTION 9.2.
"BRIDGED LOAN" means a Pledged Loan acquired and owned by a Company:
(a) that would qualify without exception as an Eligible Mortgage Loan
or Land Contract -- Gestation Loans, Repurchased Loans and Construction Loans
may not be Bridged Loans -except that some or all of its Basic Papers have not
been fully executed, organized or delivered to
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the Custodian so as to satisfy all requirements to permit the Borrowers to
borrow against it pursuant to this Agreement without restriction;
(b) that the Companies reasonably expect to fully qualify as Eligible
Mortgage Collateral when the original Basic Papers have been executed and
delivered;
(c) as to which the Companies actually and reasonably expect that
such full qualification can and will be achieved on or before seven (7) Business
Days after a Warehouse Revolving Loan against such Mortgage Loan or Land
Contract is requested and made under this Agreement (and the Companies hereby
agree to take such steps as are reasonably necessary to ensure it achieves full
qualification as an Eligible Mortgage Loan or Eligible Land Contract); and
(d) for which the Companies have delivered to the Warehouse Agent a
copy of a dated summary schedule (by fax on or before the date of the related
Warehouse Revolving Loan) duly executed by an authorized Company officer and in
form acceptable to the Warehouse Agent, (1) listing the Bridged Loans being
Pledged to the Warehouse Agent (i) by Company name and loan number and showing
for each (ii) the borrower's name (for Mortgage Loans) or buyer's name (for Land
Contracts), (iii) the loan or contract date (or, if it has not yet closed, its
scheduled closing date), (iv) the loan or contract amount, (v) the loan or
contract interest rate, (vi) the property address and (vii) whether or not it
has been closed, (2) certifying that, for each such Bridged Loan, the Basic
Papers have been executed and delivered by all appropriate Persons and such
Bridged Loan has been originated, closed, funded and (if applicable) sold and
assigned to a Company -- or, in the case of each Bridged Loan listed as not yet
having been closed, that it will have been originated, closed, funded and (if
applicable) acquired by one of the Companies before or when the proceeds of the
Warehouse Revolving Loan requested to fund such Bridged Loan are disbursed from
the closing escrow -- and (3) certifying that the complete file as to such
Mortgage Loan or Land Contract, including its Basic Papers, is in the possession
of its closer, the relevant Company or the relevant Company's Servicer for such
Bridged Loan, or that such file has been shipped to the Custodian (submission to
the Warehouse Agent of each summary schedule shall be deemed to constitute a
certification by the officer executing it as stated in CLAUSES (2) and (3)
above, whether or not such certifications are actually recited in such summary
schedule).
Each Bridged Loan that satisfies the foregoing requirements shall be an Eligible
Mortgage Loan subject to the condition subsequent of physical delivery of its
Basic Papers to the Custodian within seven (7) Business Days after funding of
the related Warehouse Revolving Loan. Each Bridged Loan against which the
Company requests a Warehouse Revolving Loan shall be irrevocably deemed Pledged
to the Warehouse Agent and shall automatically become pledged Collateral
effective on the date of the related Request for Advance, and the Companies
shall take all steps necessary or appropriate to cause the pledge to the
Warehouse Agent (as agent and Representative of the Warehouse Lenders) and
delivery to the Custodian of such Bridged Loan and its Basic Papers to be
completed, perfected and continued in all respects, including causing the
original promissory note evidencing such Bridged Loan to be physically delivered
to the Warehouse Agent or to its designated bailee (usually, the Custodian)
within seven (7) Business Days after the funding of the related
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Warehouse Revolving Loan, and, if requested by the Warehouse Agent, to give
written notice to any Person in possession of the Basic Papers for such Bridged
Loan of the Warehouse Agent's security interest (as agent and Representative of
the Warehouse Lenders) in it and its security. Upon delivery to the Warehouse
Agent or its designated bailee (usually the Custodian) of the original Basic
Papers relative to a Bridged Loan and the Warehouse Agent's issuance of its
Certification (as defined in the Custody Agreement) as to such Bridged Loan in
accordance with SECTION 3 of the Custody Agreement, such Collateral shall no
longer be subject to this Agreement's limitations applicable to Bridged Loans.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday or a day
when Texas Commerce's main branch (currently located at 712 Main Street) in
Houston, Texas is not open for regular 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 all Warehouse Lenders'
commitments to lend under this Agreement have terminated or have been canceled.
"CASH FLOW" of any Person means, for any determination period, that
Person's 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.
"CERTIFYING OFFICER'S CERTIFICATE" means a certificate signed by (i) an
officer (authorized to sign an Officer's Certificate or a Certifying Officer's
Certificate) of the Companies, the relevant Servicer, the title insurance
company issuing the relevant Lender's Title Insurance Policy (as defined in the
Custody Agreement), the escrow/settlement agent or company for the related
Mortgage Loan(s), or other Person submitting a File to the Warehouse Agent or
(ii) the closing attorney for the related Mortgage Loan(s). (The text of any
particular Certifying Officer's Certificate may be stamped upon a File paper if
such stamped text is manually signed by an officer authorized to sign an
Officer's Certificate or a Certifying Officer's Certificate.)
"COLLATERAL" means, within this Agreement only, the Warehouse
Collateral.
"COLLATERAL CONVERSION NOTICE" means a notice executed by the Borrowers
and delivered to the Warehouse Agent in substantially the form of EXHIBIT A.
"COLLATERAL PAPERS" means, within this Agreement only, the Warehouse
Collateral Papers.
"COLLATERAL VALUE" means the value of Eligible Collateral for purposes
of this Agreement, as determined by the Warehouse Agent in accordance with
SCHEDULE BB.
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"COMMITMENT" means, within this Agreement only, a Lender's Warehouse
Line Commitment.
"COMMITTED SUM" means, within this Agreement only, a Lender's Warehouse
Line Committed Sum.
"COMPANIES" is defined in this Agreement's Preamble and means and
includes Borrowers and all of their Subsidiaries, including MCAI-Ohio.
"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 all such Persons determined on a consolidated
basis in accordance with GAAP. Unless otherwise specified herein, references to
"consolidated" financial statements or data of any Company includes
consolidation with its Subsidiaries in accordance with GAAP.
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CONSTRUCTION LOANS BORROWING" means a Borrowing that is (a) subject to
the Construction Loan Sublimit and (b) supported by the portion of the Borrowing
Base attributable to Eligible Construction Loans.
"CONSTRUCTION LOAN SUBLIMIT" means Five Million Dollars ($5,000,000),
the sublimit to the Warehouse Line for financing of Eligible Construction Loans.
"CORRECTION PERIOD" means twenty-one (21) calendar days for any
Collateral Papers for any Collateral shipped to a Company under SECTION 4.2 of
the Custody Agreement (for correction or servicing.)
"CUSTODIAN" means Texas Commerce, as Custodian under the Custody
Agreement, or any successor custodian under the Custody Agreement.
"CUSTODIAN'S FEE" is defined in SECTION 7.8.
"CUSTODY AGREEMENT" means the Custody Agreement of even date herewith
between the Companies and the Custodian, as it may be supplemented, amended or
restated from time to time. By this reference, the Custody Agreement is
incorporated into this Agreement; provided that, in interpreting this Agreement
or any of the other Warehouse Loan Documents except the Custody Agreement
itself, definitions of terms in this Agreement will control over any
inconsistent definitions in the Custody Agreement.
"DATED ASSETS" is defined in SECTION 2.4.
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"DATED LIABILITIES" is defined in SECTION 2.4.
"D/E MORTGAGE LOAN" means a Subprime Mortgage Loan that has been
assigned a rating of "D" or "E" by the relevant Company pursuant to the
underwriting standards described in the definition of "Eligible Subprime
Mortgage Loan".
"D/E MORTGAGE LOANS BORROWING" means a Borrowing that is (a) subject to
the D/E Sublimit and (b) supported by the portion of the Borrowing Base
attributable to Eligible D/E Mortgage Loans.
"D/E SUBLIMIT" means Twenty Million Dollars ($20,000,000), the sublimit
to the Warehouse Line for financing of Eligible D/E Mortgage Loans.
"DEBT" means, as of any determination date, 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 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.
"DISBURSEMENT DATE" means each date upon which the Warehouse Lenders
make and the Warehouse Agent disburses a Warehouse Revolving Loan (either a
Swing Loan or a regular Warehouse Revolving Loan) to or for the account of the
Borrowers under SECTION 3.1 or 4.
"DRY BORROWING" means a Borrowing for which all of the Basic Papers
have been delivered to the Custodian in accordance with the Custody Agreement.
"EFFECTIVE DATE" is defined in this Agreement's Preamble.
"ELIGIBLE COLLATERAL" means, at any time, Collateral for which the
applicable conditions for inclusion in the Borrowing Base are satisfied.
"ELIGIBLE CONSTRUCTION LOAN" means, at any time, a Mortgage Loan for
which the applicable conditions for eligibility as an Eligible Construction Loan
that are described in SCHEDULE EC are satisfied.
"ELIGIBLE D/E MORTGAGE LOAN" means, at any time, a Mortgage Loan for
which the applicable conditions for eligibility as an Eligible D/E Mortgage Loan
that are described in SCHEDULE EC are satisfied.
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"ELIGIBLE GESTATION LOAN" means, at any time, a Mortgage Loan for which
the applicable conditions for eligibility as an Eligible Gestation Loan that are
described in SCHEDULE EC are satisfied.
"ELIGIBLE HIGH LTV MORTGAGE LOAN" means, at any time, a Mortgage Loan
for which the applicable conditions for eligibility as an Eligible High LTV
Mortgage Loan that are described in SCHEDULE EC are satisfied.
"ELIGIBLE INDIRECT WAREHOUSE LOAN" means, at any time, a Mortgage Loan
for which the applicable conditions for eligibility as an Eligible Indirect
Warehouse Loan that are described in SCHEDULE EC are satisfied.
"ELIGIBLE JUMBO LOAN" means, at any time, a Jumbo Loan for which the
applicable conditions for eligibility as an Eligible Jumbo Loan that are
described in SCHEDULE EC are satisfied.
"ELIGIBLE LAND CONTRACT" means, at any time, a Land Contract for which
the applicable conditions for eligibility as an Eligible Land Contract that are
described in SCHEDULE EC are satisfied.
"ELIGIBLE MORTGAGE COLLATERAL" means, at any time, all Eligible
Mortgage Loans, Eligible Second Mortgage Loans, Eligible Indirect Warehouse
Loans, Eligible Land Contracts, Eligible Construction Loans and Eligible
Mortgage Securities.
"ELIGIBLE MORTGAGE LOAN" means, at any time, a Mortgage Loan for which
the applicable conditions for eligibility as an Eligible Mortgage Loan that are
described in SCHEDULE EC are satisfied.
"ELIGIBLE MORTGAGE SECURITY" means, at any time, a Mortgage Security
for which the applicable conditions for eligibility as an Eligible Mortgage
Security that are described in SCHEDULE EC are satisfied.
"ELIGIBLE REPURCHASED LOAN" means, at any time, a Mortgage Loan for
which the applicable conditions for eligibility as an Eligible Repurchased Loan
that are described in SCHEDULE EC are satisfied.
"ELIGIBLE SECOND MORTGAGE LOAN" means, at any time, a Mortgage Loan for
which the applicable conditions for eligibility as an Eligible Second Mortgage
Loan that are described in SCHEDULE EC are satisfied.
"ELIGIBLE SUBPRIME MORTGAGE LOAN" means, at any time, a Mortgage Loan
for which the applicable conditions for eligibility as an Eligible Subprime
Mortgage Loan that are described in SCHEDULE EC are satisfied.
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"ENHANCEMENT AGREEMENT" means the Amended and Restated Credit
Enhancement Umbrella Agreement dated June 30, 1997 among MCAFC, MCAMC and MCA
and the Pension Fund, as amended, supplemented or otherwise modified from time
to time.
"ENVIRONMENTAL LAW" means any Law that relates to pollution, the
protection of human health and the environment, health and safety, or to
Hazardous Substances, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.), the Solid Waste Disposal Act, as amended (42 U.S.C. Section 6901 et
seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Section
1801, et seq.), the Clean Air Act, as amended (42 U.S.C. Section 7401, et seq.),
the Federal Water Pollution Control Act, as amended (33 U.S.C. Section 1251, et
seq.), the Toxic Substances Control Act, as amended (15 U.S.C. Section 2601 et
seq.), the Safe Drinking Water Act, as amended (42 U.S.C. Section 300f et seq.),
the Atomic Energy Act, as amended (42 U.S.C. Section 2014 et seq.), the Federal
Insecticide, Fungicide and Rodenticide Act, as amended (7 U.S.C. Section 136, et
seq.), the Oil Pollution Act of 1990, as amended (33 U.S.C. Section 2701, et
seq.), the Emergency Planning and Community Right-to-Know Act of 1986, as
amended (42 U.S.C. Section 11001. et seq.), the Occupational Safety and Health
Act, as amended (29 U.S.C. Section 651 et seq.), the Texas Water Code, as
amended, and the Texas Health and Safety Code, as amended, as well as the
regulations adopted and publications promulgated pursuant to the above.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor act or code.
"FACILITY FEE" is defined in SECTION 7.6.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"FHA LOAN" means a Mortgage Loan which is either (a) fully or partially
insured by FHA under the National Housing Act or the Housing Act of 1949, (b)
subject to a current, binding, and enforceable commitment issued by FHA for that
insurance, or (c) eligible for direct endorsement under the FHA Direct
Endorsement Program.
"FHLMC" means the Federal Home Loan Mortgage Corporation and any
successor thereto.
"FILE" means a file in the possession of the Custodian or its designee
(other than a Company or one of its Affiliates) containing all of the Basic
Papers for a Pledged Loan.
"FINANCIAL STATEMENTS" is defined in SECTION 11.6.
"FINANCING STATEMENTS" means UCC financing statements describing the
Warehouse Agent (as agent and Representative of the Warehouse Lenders) as
secured party and a Company as debtor covering the Collateral and otherwise in
such form, for filing in such jurisdictions and with such
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filing offices, as the Warehouse Agent shall reasonably deem necessary or
advisable, in the form of EXHIBIT G-2 or such other form as the Warehouse Agent
shall reasonably require, and includes UCC- 3 (assignments) of Texas Commerce's
existing security interests in the Collateral to the Warehouse Agent, as agent
and Representative of the Lenders under and pursuant to this Agreement.
"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.
"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.
"FOLLOW-UP NOTICE OF RECEIPT" means an instrument substantially in the
form of the Notice of Receipt or Follow-up Notice of Receipt exhibit (named
that) to the Custody Agreement.
"FREE REDEMPTION PROVISO" is defined in SECTION 9.3(a).
"FREE RELEASE PROVISO" is defined in SECTION 9.4(a).
"FUNDING SHARE" means, on any day and for each Lender, that proportion
of each Warehouse Revolving Loan that bears the same ratio to the total amount
of the Warehouse Revolving Loans to be funded on that day as that Lender's
Committed Sum bears to the Aggregate Committed Sum for that day.
"GAAP" means, as of any determination date, generally accepted
accounting principles consistently applied.
"GESTATION BORROWING" means a Borrowing that is (a) subject to the
Gestation Sublimit and (b) supported by the portion of the Borrowing Base
attributable to Eligible Gestation Loans.
"GESTATION SUBLIMIT" means, at any time, fifty percent (50%) of the
total Commitments, the sublimit to the Warehouse Line for financing of Eligible
Gestation Loans.
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"GOVERNMENTAL AUTHORITY" means any foreign governmental authority, the
United States of America, any state of the United States and any political
subdivision of any of the foregoing, and any agency, department, commission,
board, bureau, court or other tribunal.
"GNMA" means the Government National Mortgage Association and any
successor thereto.
"GUIDE" means the following, as applicable under the circumstances, for
(a) FHLMC, the Freddie Mac Sellers' & Servicers' Guide dated September 17, 1984,
(b) FNMA, the Fannie Mae Servicing Guide dated June 30, 1990, and (c) GNMA, as
applicable, either (i) the GNMA I Mortgage Securities Guide, Handbook GNMA
5500.1REV-6, or (ii) the GNMA II Mortgage Securities Guide, Handbook GNMA
5500.2.
"HAZARDOUS SUBSTANCE" means any substance, material or waste (a) the
presence or Release of which requires reporting, investigation or remediation
under any Environmental Law, (b) which is defined or listed as a hazardous
waste, hazardous substance, extremely hazardous waste, restricted hazardous
waste, hazardous material, toxic substance, or other similar or related term
under any Environmental Law, (c) which is toxic, radioactive, or otherwise
classified as hazardous or toxic and is or becomes regulated by any governmental
authority as a threat to human health or the environment, (d) the presence of
which causes or threatens to cause a nuisance upon the property or to adjacent
property, (e) the presence of which on adjacent properties could constitute a
trespass, (f) which is asbestos, (g) which is polychlorinated biphenyls or (h)
which contains petroleum or any petroleum derived product.
"HIGH LTV LOANS BORROWING" means a Borrowing that is (a) subject to the
High LTV Loan Sublimit and (b) supported by the portion of the Borrowing Base
attributable to Eligible High LTV Mortgage Loans.
"HIGH LTV LOAN SUBLIMIT" means Ten Million Dollars ($10,000,000), the
sublimit to the Warehouse Line for financing of Eligible High LTV Mortgage
Loans.
"HIGH LTV MORTGAGE LOAN" means a loan that would qualify as an Eligible
Mortgage Loan except that (i) its loan-to-collateral value ratio is between 100%
and 125% or (ii) it has any other characteristic for which the relevant
Company's underwriting guidelines require that it be classified in the same
category as its 125% loan-to-collateral value ratio Mortgage Loans.
"INDEMNIFIED LIABILITIES" is defined in SECTION 16.3.
"INDEMNIFIED PARTIES" is defined in SECTION 16.3.
"INDIRECT WAREHOUSE BORROWING" means a Borrowing that is (a) subject to
the Indirect Warehouse Sublimit and (b) supported by the portion of the
Borrowing Base attributable to Eligible Indirect Warehouse Loans.
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"INDIRECT WAREHOUSE LOAN" means a Mortgage Loan pledged to a Company by
(or purchased by a Company subject to a repurchase agreement from) a third party
mortgage lender for whom such Company provides a mortgage warehouse line or
credit or a mortgage gestation repurchase facility pursuant to the express
written provisions of which such Company is duly authorized to repledge (or, in
the case of a purchase, pledge) such Mortgage Loan to the Agent (as agent and
Representative of the Warehouse Lenders) to secure the Obligations.
"INDIRECT WAREHOUSE SUBLIMIT" means Ten Million Dollars ($10,000,000),
the sublimit to the Warehouse Line for financing of Eligible Indirect Warehouse
Loans.
"IRC" means the Internal Revenue Code of 1986, as amended.
"JUMBO LOAN" means a Mortgage Loan (other than a FHA Loan or VA Loan)
that complies with all applicable requirements for purchase under the FNMA or
FHLMC standard form of conventional mortgage purchase contract then in effect
except that the amount of it exceeds the maximum loan amount under those
requirements.
"JUMBO SUBLIMIT", at any time, means, except as otherwise approved by
the Warehouse Agent, (a) for all Jumbo Loans, twenty percent (20%) of the total
Commitments, the sublimit to the Warehouse Line for financing of Eligible
Mortgage Loans that are Jumbo Loans and (b) for any Jumbo Loan in excess of
Seven Hundred Fifty Thousand Dollars ($750,000), only Seven Hundred Fifty
Thousand Dollars ($750,000).
"LAND CONTRACT" means a contract pursuant to which a seller has agreed
to sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"LAND CONTRACTS BORROWING" means a Borrowing that is (a) subject to the
Land Contract Sublimit and (b) supported by the portion of the Borrowing Base
attributable to Eligible Land Contracts.
"LAND CONTRACT SUBLIMIT" means Five Million Dollars ($5,000,000), the
sublimit to the Warehouse Line for financing of Eligible Land Contracts.
"LAWS" means all applicable statutes, laws, treaties, ordinances,
rules, regulations, orders, writs, injunctions, decrees, judgments, opinions,
and interpretations of any Tribunal.
"LENDER" means Texas Commerce, Residential Funding Corporation,
Guaranty Federal Bank, F.S.B., Bank One, Texas, N.A., The Bank of New York,
LaSalle National Bank and such other Persons, if any, as from time to time with
the consent of the other parties to this Agreement shall be a party to this
Agreement as a lender.
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"LENDER LIEN" means any present or future first priority (except as
otherwise specifically provided in the Warehouse Loan Documents) Lien securing
the Obligations and assigned, conveyed, and granted to or created in favor of
the Warehouse Agent, as agent and Representative of Warehouse Lenders (including
Texas Commerce) under the Warehouse Loan Documents.
"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.
"LOAN DOCUMENTS", within this Agreement only, means Warehouse Loan
Documents.
"MAJORITY WAREHOUSE LENDERS" means, for any day, the holders of
Warehouse Notes evidencing sixty-six and two-thirds percent (66 2/3%) or more of
(a) the Aggregate Committed Sum if on that day Warehouse Lenders are committed
to lend under this Agreement or (b) the aggregate principal amount of the
Borrowings outstanding hereunder if on or before that day Warehouse Lenders'
Commitments have expired or have been terminated and have not been reinstated.
"MARKET VALUE" means, at any time (a) for Mortgage Loans, except as
provided in CLAUSE (b) below, a market value based upon the then most recent
posted net yield for 30-day mandatory future delivery furnished by FNMA and
published and distributed by Telerate Mortgage Services or Knight-Ridder or (if
that posted net yield is not available from these services) obtained by the
Warehouse Agent from FNMA, (b) for Jumbo Loans or any other Mortgage Loan for
which for any reason the posted rate is not available from FNMA, the value
reasonably determined by the Warehouse Agent, and (c) for Mortgage Securities,
the applicable Take-out Prices, as detailed in the then most recent Take-out
Report delivered by the Companies under this Agreement of all Take-out
Commitments relating to Mortgage Securities.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (i) the
business, operations, properties, condition (financial or otherwise) or
prospects of a Company, (ii) the ability of any Company 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.
"MCA", "MCAFC" and "MCAMC" are each defined in this Agreement's
Preamble.
"MCAI-OHIO" is defined in this Agreement's Preamble. MCAI-Ohio is a
wholly-owned Subsidiary of Mortgage Corporation of America.
"MORTGAGE COLLATERAL" means all Mortgage Loans, Subprime Mortgage
Loans, Construction Loans, Land Contracts, High LTV Mortgage Loans, Mortgage
Securities and related Collateral Papers that are Collateral under the Warehouse
Loan Documents.
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"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"MORTGAGE NOTE" means the promissory note evidencing a Mortgage Loan.
"MORTGAGE POOL" means (a) a "group" or "grouping" of Mortgage Loans
assembled in accordance with, and as that term is used in, the FHLMC Guide, (b)
a "pool" of Mortgage Loans assembled in accordance with, and as that term is
used in, the FNMA Guide or the GNMA I Guide, (c) a "pool" of Mortgage Loans of a
"loan package" consisting of Mortgage Loans assembled in accordance with, and as
those terms as used in, the GNMA II Guide, or (d) any other pool of Mortgage
Loans assembled by an Approved Investor securing, and providing for pass-through
payments of principal and interest on, its Mortgage Securities.
"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 consolidated pretax income (or loss) of a Person
from continuing operations for any period determined in accordance with GAAP.
"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" means a Warehouse Note.
"NOTE PAYMENT/FUNDING ACCOUNT" means, in this Agreement only, the
Warehouse Note Payment/Funding Account.
"NOTICE OF RECEIPT" means an acknowledgment to the Companies and a
certification to the Warehouse Lenders by the Custodian in the relevant form of
the "Notice of Receipt or Follow-up Notice of Receipt" exhibit to the Custody
Agreement that the Custodian has received from (or on behalf of) the Companies
and holds, as custodian, Files for all of the Collateral described in the
Submission List(s) attached to the Notice of Receipt. The Custodian will not
issue a Notice of Receipt for a Bridged Loan until the Custodian shall have
received the Basic Papers for it (when it ceases to be a Bridged Loan and
becomes regular Mortgage Collateral).
"OBLIGATIONS" means the principal of and interest on the Warehouse
Revolving Loans, and, without duplication, all other indebtedness, obligations
and liabilities of the Borrowers to the Warehouse Lenders and the Warehouse
Agent under or arising out of or in connection with this
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Agreement or any other Warehouse 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 Warehouse Loan Documents by the Borrowers and also
includes amounts that would become due but for operation of 11 U.S.C. Sections
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 Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"OFFICER'S CERTIFICATE" means a certificate executed on behalf of a
Company or another relevant Person by its (or if it is a partnership, its
general partner's) President, Treasurer or Assistant Treasurer, any of its Vice
Presidents or such other officer as shall be acceptable to the Warehouse Agent.
"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 Warehouse Agent, as
agent and Representative of the Lenders;
(b) liens and encumbrances in favor of the Seasoned Warehouse
Agent, as agent and Representative of the Seasoned Warehouse Lenders;
(c) liens and encumbrances in favor of the Pension Fund and the
Servicing/Residuals Agent under the Servicing/Residuals Loan Agreement granted
under the Enhancement Agreement which, insofar as they cover or affect the
collateral for the Revolving Credit Loans under (and as that term is defined in)
the Servicing/Residuals Loan Agreement, are subordinate and inferior to the
security interests of the agent for the lenders under the Servicing/Residuals
Loan Agreement in that collateral;
(c) liens against the Borrowers' residual interests in Mortgage
Securities created from residential mortgage loans pooled by Borrowers which
residual interests (i) are not included in the Borrowing Base for, and as that
term is defined in, the Servicing/Residuals Loan Agreement and (ii) are pledged
by the Borrowers to another lender solely for the purpose of securing financing
for Borrowers of such residuals interests funded by such other lender-pledgee;
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(d) 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 Warehouse Agent, bonded in an
amount and manner satisfactory to the Warehouse Agent;
(e) liens, not delinquent, created by statute in connection
with worker's compensation, unemployment insurance, social security and similar
statutory obligations;
(f) 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;
(g) 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;
(h) purchase money liens upon or in property of a Company
acquired after the date of this Agreement; provided that (i) no such lien shall
extend to or cover any other property of any Company and (ii) the aggregate
outstanding amount of the indebtedness secured by all such purchase money liens
shall not exceed One Hundred Thousand Dollars ($100,000) at any time; and
(i) existing liens described on SCHEDULE 13.6 to this Agreement.
"PERSON" OR "PERSON" means any individual, corporation, partnership,
joint venture, association, trust, unincorporated association, joint stock
company, limited liability company, government, municipality, political
subdivision or agency or other entity.
"PLEDGED LOAN" means, on any day, a Mortgage Loan or Land Contract, any
present or future right, title or interest in which is Pledged to the Warehouse
Agent, or is intended to be Pledged to the Warehouse Agent, on that day,
pursuant to, under or otherwise in respect of this Agreement, whether or not it
is Eligible Collateral or has any Collateral Value. Inclusion of any Mortgage
Loan or Land Contract in any part of the Borrowing Base by Warehouse Agent, the
Custodian or any Company shall be prima facie evidence that a Mortgage Loan or
Land Contract is a Pledged Loan.
"PLEDGED TO THE WAREHOUSE AGENT" means mortgaged or pledged to the
Warehouse Agent, as (i) mortgagee for and secured party for itself as a
Warehouse Lender and (ii) agent and Representative of the other Warehouse
Lenders (whichever of such terms are applicable to the relevant type or types of
Warehouse Collateral referred to).
"PRO RATA" means in accordance with the Warehouse Lenders' respective
ownership interests in the Borrowings. On any day, each of the Warehouse Lenders
will own that portion of the
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Borrowings, both principal and accrued interest (and a corresponding undivided
interest in all Warehouse Collateral and all rights to Warehouse Collateral
proceeds equal to that Warehouse Lender's ownership interest in the Borrowings),
that bears the same ratio to the entire advanced and unpaid principal of the
Borrowings then outstanding as that Warehouse Lender's Committed Sum bears to
the Aggregate Committed Sum, subject to this adjustment: if at any time or
times, any Warehouse Lender fails to fund any of its Funding Share of any
Borrowing and one or more of the other Warehouse Lenders funds it (electively in
accordance with the provisions of SECTION 3.1), then:
(a) the respective ownership interests of both (i) the Warehouse
Lender that failed or refused to fund its Funding Share and (ii) the Warehouse
Lender (or Warehouse Lenders) that funded such Funding Share, shall be
proportionately decreased and increased, respectively, to the same extent as if
their respective Committed Sums were changed in direct proportion to the
unreimbursed balance outstanding from time to time thereafter of the amount so
funded;
(b) the non-funding Warehouse Lender's share of all future
distributions of any payments and prepayments on the Notes shall be paid -- pro
rata among them in accordance with their respective unrecovered balances of such
non-funding Warehouse Lender's Funding Share -- to the Warehouse Lender(s) that
so funded such non-funding Warehouse Lender's Funding Share until all such
funding Warehouse Lender(s) have been fully repaid the amount so funded; and
(c) such adjustment shall remain in effect until such time as the
Warehouse Lender(s) that funded such Funding Share have been so fully repaid.
If no other Warehouse Lender funds the share of the Warehouse Lender who fails
to fund its Funding Share of any Borrowing, then the Pro Rata ownership interest
in the Borrowings of the Warehouse Lenders shall be changed, in that case so
that each Warehouse Lender's Pro Rata ownership interest in the Borrowings is
equal to the ratio of that Warehouse Lender's aggregate outstanding Borrowings
to the aggregate outstanding Borrowings for all Warehouse Lenders.
Notwithstanding the change in the Warehouse Lenders' Pro Rata ownership
interests in the Borrowings due to any Warehouse Lender's failure to fund its
Funding Share of any Borrowing(s), such failure to fund shall not diminish any
Warehouse Lender's Funding Share of subsequent Borrowings.
"REDEMPTION AMOUNT" means an amount equal to the Collateral Value of
the Collateral being redeemed, as determined by the Warehouse Agent.
"RELEASE REQUEST" means a Release Request executed and delivered by the
Companies to the Warehouse Agent and the Custodian in substantially in the form
of EXHIBIT B.
"REPURCHASE BORROWING" means a Borrowing that is (a) subject to the
Repurchased Loans Sublimit and (b) supported by the portion of the Borrowing
Base attributable to Eligible Repurchased Loans.
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"REPURCHASED LOAN" means a Mortgage Loan that has been repurchased by a
Company from an investor, or out of a Mortgage Pool, including one on which
Mortgage Securities are based, pursuant to such Company's obligation or right to
do so as Servicer of that Mortgage Loan.
"REPURCHASED LOANS SUBLIMIT" means Two Million Dollars ($2,000,000),
the sublimit to the Warehouse Line for financing of Eligible Repurchased Loans.
"REQUEST FOR ADVANCE" means a request for a Warehouse Revolving Loan in
the form of EXHIBIT C (or in another form approved by the Warehouse Agent)
appropriate to the purpose for which such Warehouse Revolving Loan is being
requested, duly completed, with all required attachments and signed by the
Borrowers.
"REPRESENTATIVE" means the Warehouse Agent, as representative of the
Warehouse Lenders within the meaning of the term "representative" as used in UCC
Section 9.105(13); provided that the Warehouse Agent is not, and shall not be
deemed or held to be, a trustee or fiduciary for the Warehouse Lenders, the
Companies or any Person claiming by, through or under any of them.
"RESPONSIBLE OFFICER" means an officer or other representative of a
Company who has been duly authorized by that Company's Board of Directors (or by
a committee to which, or an officer to whom, the power to so authorize has been
duly delegated by that Company's Board of Directors) to act for and on behalf of
that Company, and as its act and deed, in respect of the relevant subject matter
or circumstances.
"REVOLVING LOAN" means, in this Agreement only, a Warehouse Revolving
Loan.
"REVOLVING CREDIT NOTES" means, in this Agreement only, the Warehouse
Notes.
"SEASONED WAREHOUSE AGENT" is defined in the definition of "10/97
Seasoned Warehouse Credit Agreement."
"SEASONED WAREHOUSE CREDIT AGREEMENT" is defined in the definition of
"10/97 Seasoned Warehouse Credit Agreement."
"SEASONED WAREHOUSE LENDERS" is defined in the definition of "10/97
Seasoned Warehouse Credit Agreement."
"SECOND MORTGAGE LOAN" means a loan that would be a Mortgage Loan, as
defined in this Agreement, except that it is secured by a mortgage, deed of
trust or trust deed that grants a perfected second priority Lien on the
underlying residential real property
"SECOND MORTGAGE LOANS BORROWING" means a Borrowing that is (a) subject
to the Second Mortgage Loans Sublimit and (b) supported by the portion of the
Borrowing Base attributable to Second Mortgage Loans.
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"SECOND MORTGAGE LOANS SUBLIMIT" means Five Million Dollars
($5,000,000), the sublimit to the Warehouse Line for financing of Eligible
Second Mortgage Loans.
"SECURITY AGREEMENT" means, in this Agreement only, the Warehouse
Security Agreement.
"SERVICER" means variously a "seller," "servicer," "issuer," or
"lender," as defined or used in the applicable Guide in respect of a Person
having Servicing Rights.
"SERVICING PORTFOLIO" means, at any time, the total unpaid principal
amount of Mortgage Loans serviced by any Company for a fee other than any
Mortgage Loans serviced by the Companies under a subservicing agreement or a
master servicing agreement.
"SERVICING/RESIDUALS AGENT" is defined in the definition of "10/97
Servicing/Residuals Loan Agreement".
"SERVICING/RESIDUALS LENDERS" is defined in the definition of "10/97
Servicing/Residuals Loan Agreement".
"SERVICING/RESIDUALS LOAN AGREEMENT" is defined in the definition of
"10/97 Servicing/Residuals Loan Agreement".
"SERVICING RIGHTS" means all of a Company's right, title and interest
in, to and under the following contracts, arrangements and understandings,
whether now owned or hereafter acquired:
(a) all agreements, instruments, commitments and documents evidencing
such Company's conditional, non-delegable right to service mortgages owned by
FHLMC, and to hold and maintain the related escrow funds, in exchange for such
Company's right to retain certain payments otherwise due to FHLMC pursuant to
the terms of such Company's servicing contract with FHLMC;
(b) all agreements, instruments, commitments and documents evidencing
any rights hereafter acquired by such Company 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 such
Company's servicing contract with GNMA;
(c) the agreements, instruments, commitments and documents evidencing
any rights hereafter acquired by such Company 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 servicing
contract between such Company and FNMA that meets the following conditions: (i)
the specific enumerated loans to which such rights apply have been identified on
a schedule submitted by the Companies and acknowledged by the Warehouse Agent;
(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 Warehouse Revolving Loans
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to be secured thereby shall be used only for one or more of the purposes
specified in such FNMA acknowledgment agreement or otherwise permitted by FNMA;
(d) all agreements, instruments, commitments and documents evidencing
any rights hereafter acquired by such Company 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 Company and such mortgage investor (or its master servicer); and
(e) all books, ledgers, records, computer software and programs,
instructional manuals and other written or electronic information used by such
Company in connection with the servicing of mortgage loans and real estate
pursuant to the servicing contracts referred to in the preceding clauses of this
definition (but only those servicing contracts with FNMA that are described in
clause (c) above) or any other servicing contract.
"SHIPPING PERIOD" means forty-five (45) calendar days for the
Collateral Papers for any Collateral shipped to or for an investor under the
applicable provisions of the Custody Agreement.
"SOLVENT" means, for any Person, that (a) the fair market value of its
assets exceeds its liabilities, (b) it has sufficient cash flow to enable it to
pay its debts as they mature, and (c) it does not have unreasonably small
capital to conduct its businesses.
"STATED TERMINATION DATE" means October 31, 1998.
"SUBMISSION LIST" means a listing and description in the form of the
appropriate exhibit to EXHIBIT D of Collateral sent and pledged to the Warehouse
Agent by the Companies pursuant to this Agreement.
"SUBORDINATED DEBT" means any Company's Debt on which no principal
payments are due until after the Termination Date and that is both unsecured and
expressly subordinated to the Obligations, in writing and in form and substance
acceptable to the Warehouse Agent.
"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
determination date, shall be owned directly, or indirectly through one or more
Subsidiaries, by a Company.
"SUBLIMIT" means and includes each of the Construction Loan Sublimit,
the Gestation Sublimit, the High LTV Loan Sublimit, the Jumbo Sublimit, the Land
Contract Sublimit, the Repurchased Loans Sublimit, the Second Mortgage Loans
Sublimit, the Indirect Warehouse Sublimit, the D/E Sublimit and the Wet
Sublimit, and also includes the Swing Line Limit.
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"SUBPRIME" is a preface to the term "Mortgage Loan" meaning that such
Mortgage Loan is not eligible for inclusion in a pool from which securities
issued or guaranteed by GNMA, FNMA or FHLMC are to be created, and is not a
Jumbo Loan.
"SWING LINE" means the short term revolving credit facility provided
for in SECTION 4.1 under which the Borrowers may borrow (as Swing Loans) from
Texas Commerce to bridge the Borrowers' daily borrowing requirements under this
Agreement.
"SWING LINE LIMIT" means Thirty Million Dollars ($30,000,000).
"SWING LINE NOTE" means (a) the promissory note dated the date of this
Agreement in substantially the form attached as EXHIBIT E-2, executed and
delivered by the Companies, payable to the order of Texas Commerce and in a face
principal amount equal to the Swing Line Limit, and (b) all renewals,
modifications, extensions, increases and rearrangements of that note and all
substitutions or replacements for it. The Swing Line Note evidences and shall
evidence the Borrowers' joint and several obligation to repay to the order of
Texas Commerce on each Swing Loan Due Date all Swing Loans funded and
outstanding from time to time, plus accrued interest on all outstanding Swing
Loans principal. The Swing Line Note is a Warehouse Note.
"SWING LOAN" means a Borrowing funded and outstanding under the Swing
Line.
"SWING LOAN DUE DATE" for each Swing Loan means the fifth (5th)
Business Day, or such other Business Day before such fifth (5th) Business Day,
as Texas Commerce in its sole discretion shall elect, following the Business Day
when Texas Commerce funds such Borrowing under the Swing Line; provided that
Texas Commerce agrees not to exercise such discretion to choose a due date in a
manner that would materially affect the Borrowers' ability to borrow under this
Agreement unless a Default has occurred that has not been cured by the Borrowers
or declared in writing by the Warehouse Agent to have been waived or any Event
of Default has occurred that the Warehouse Agent has not declared in writing to
have been cured or waived.
"TAKE-OUT COMMITMENT" means a binding commitment from an Approved
Investor to purchase items of Collateral, acceptable in form and substance to
the Warehouse Agent, in favor of any Company with respect to which there is no
condition which cannot be reasonably anticipated to be satisfied or complied
with before its expiration.
"TAKE-OUT PRICE" means, at any time, the amount described and
calculated as provided on SCHEDULE BB.
"TAKE-OUT REPORT" means a report delivered by the Companies to the
Warehouse Agent substantially in the form of EXHIBIT F, or in another form
approved by the Warehouse Agent.
"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
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LIBOR Borrowing, other than income and franchise taxes of the United States and
its political subdivisions.
"TERMINATION DATE" means the first to occur of:
(i) the Stated Termination Date;
(ii) such date, if any, as of which the Borrowers shall permanently
terminate the Warehouse Lenders' Commitments pursuant to the provisions of
SECTION 8.3;
(iii) the date to which the maturity of the Warehouse Revolving Loans
shall be accelerated by the Warehouse Agent on account of an Event of Default;
or
(v) the date to which the maturity of the Warehouse Revolving Loans
shall be accelerated, made due or treated as due by operation of Law.
"TEXAS COMMERCE" is defined in this Agreement's Preamble.
"TRANSFEREE" is defined in SECTION 17.12.
"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.
"VA" means the U.S. Department of Veterans Affairs.
"VA LOAN" means a Mortgage Loan either (a) full or partial payment of
which is guaranteed by VA under the Servicemen's Readjustment Act of 1944 or
Chapter 37 of Title 38 of the United States Code, (b) for which VA has issued a
current binding and enforceable commitment for such a guaranty, or (c) which is
subject to automatic guarantee by VA, which in each case, the applicable
guaranty, commitment to guarantee, or automatic guaranty is for the maximum
amount permitted by Law.
"WAREHOUSE AGENT" is defined in this Agreement's Preamble.
"WAREHOUSE AGENT'S FEE" is defined in SECTION 7.7.
"WAREHOUSE BORROWERS" is defined in this Agreement's Preamble.
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"WAREHOUSE COLLATERAL" means the collateral defined in the Warehouse
Security Agreement.
"WAREHOUSE COLLATERAL PAPERS" means the Mortgage Note or Land Contract
and all of the other papers related to the establishment of a Pledged Loan and
the creation, perfection and maintenance of its Lien and its Lien's priority for
a particular item of Warehouse Collateral, including its Basic Papers and
including any papers securing, guaranteeing or otherwise related to or delivered
in connection with any Pledged Loan, in a form acceptable to the Warehouse Agent
(including any guaranties, lien priority agreements, security agreements,
mortgages, deeds of trust, collateral assignments of a Company's interest in
underlying obligations or security, subordination agreements, negative pledge
agreements, loan agreements and title, mortgage, pool and casualty insurance
policies), as any such papers may be supplemented, amended, restated or replaced
from time to time.
"WAREHOUSE LINE" means the revolving mortgage warehouse line of credit
provided for in this Agreement.
"WAREHOUSE LINE BORROWING" means any borrowing or loan under this
Agreement.
"WAREHOUSE LINE COMMITTED SUM" means, for any day, the maximum amount a
Warehouse Lender is committed on that day to lend to the Borrowers (or for their
account) on a revolving credit basis pursuant to this Agreement, on its terms
and subject to its conditions. From the Effective Date until the Termination
Date or such other date (if any) when all or any of them is changed by operation
of the provisions of any agreement or legal requirement, the Warehouse Line
Committed Sums for the Warehouse Lenders are as set forth on SCHEDULE LC, as it
may be amended and restated from time to time.
"WAREHOUSE LINE COMMITMENT" means, at any time and for any Warehouse
Lender, its commitment to fund its Funding Share of Borrowings, limited in the
aggregate to such Lender's Warehouse Line Committed Sum, as such amounts may be
canceled or terminated under this Agreement. Such term also includes Texas
Commerce's Commitment under SECTION 4 to fund the Swing Line, limited to the
Swing Line Limit, on the terms and subject to the conditions of this Agreement.
"WAREHOUSE LOAN DOCUMENTS" means (a) this Agreement, certificates and
reports delivered under this Agreement, and exhibits and schedules to this
Agreement, (b) all agreements, documents, and instruments in favor of the
Warehouse Agent, the Custodian or the Warehouse Lenders (or the Warehouse Agent
or Custodian on behalf of the Warehouse Lenders) ever delivered under this
Agreement or otherwise delivered in connection with any of the Obligations and
(c) all renewals, extensions, and restatements of, and amendments and
supplements to, any of the foregoing.
"WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers'
non-interest bearing demand checking account no. 0010-0380287 to be maintained
with Texas Commerce to be used for (a) the Warehouse Agent's deposits of
proceeds of Warehouse Revolving Loans made by the
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Warehouse Lenders to the Borrowers, including any Swing Loans funded by Texas
Commerce, and payments constituting the proceeds of principal from any
Collateral; (b) the Warehouse Agent's deposits of principal and interest
payments for the repayment of Warehouse Revolving Loans received from the
Borrowers or for the Borrowers' account and (c) only if and when (i) no Default
has occurred unless it has been either cured by the Borrowers or waived in
writing by the Warehouse Agent and (ii) no Event of Default has occurred unless
the Warehouse Agent has declared in writing that it has been cured or waived,
the Borrowers' withdrawals of proceeds of Warehouse Revolving Loans for the
purposes permitted under this Agreement and the Warehouse Agent's transfer from
the Warehouse Note Payment/Funding Account to the Borrowers' own account(s) (or
to a controlled disbursement account maintained by the Borrowers with the
Warehouse Agent) of proceeds of sales or other dispositions of released
Collateral in excess of the total value of the Borrowing Base then required. The
Warehouse Note Payment/Funding Account is (and shall continuously be) part of
the Collateral for the Obligations. The Warehouse Note Payment/Funding Account
shall be subject to setoff by the Warehouse Agent in accordance with the
provisions of this Agreement. The Companies shall not have any right to directly
withdraw funds from the Note Payment/Funding Account, but instead such funds may
be withdrawn or paid out only against the order of an authorized officer of the
Warehouse Agent, although under the circumstances described in CLAUSE (c) of the
first sentence of this definition and subject to the conditions specified in
that clause, the Warehouse Agent shall use diligent and reasonable efforts to
cause Warehouse Revolving Loans and excess Collateral proceeds that are received
as therein described and that are deposited to the Note Payment/Funding Account
before 12:30 PM on a Business Day to be transferred to an account on which the
designated Borrower(s) does have withdrawal order authority on that same
Business Day.
"WAREHOUSE NOTES" means promissory notes dated the date of this
Agreement, each to be in substantially the form attached as EXHIBIT E-1 (or, in
the case of the Swing Line Note, EXHIBIT E-2), executed and delivered by the
Companies, payable to the order of a Warehouse Lender and in a face principal
amount equal to that Warehouse Lender's Committed Sum, and that shall evidence
the Companies' joint and several obligation to repay to the order of that note's
Warehouse Lender- payee all Borrowings funded by that Warehouse Lender and
outstanding from time to time, plus accrued interest on that principal, and (b)
all renewals, modifications, extensions, increases and rearrangements of such
promissory notes and all substitutions or replacements for them or any of them.
The Swing Line Note is a Warehouse Note.
"WAREHOUSE REVOLVING LOAN" means and includes (i) a loan made by the
Warehouse Lenders and (ii) a Swing Loan made by Texas Commerce, and disbursed by
the Warehouse Agent to the Borrowers under SECTION 3.1 or 4.1, respectively, on
a Disbursement Date.
"WAREHOUSE SECURITY AGREEMENT" means the security agreement in the form
and content of EXHIBIT G-1 to this Agreement pursuant to which each Company
grants to the Warehouse Agent, as agent and Representative of the Warehouse
Lenders, a security interest in its Mortgage Loans, Land Contracts and the other
Collateral, as such security agreement may be amended, supplemented or otherwise
modified from time to time.
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"WET BORROWING" means a Borrowing, other than a Gestation Borrowing,
Repurchase Borrowing or Construction Loans Borrowing, for which the Basic Papers
have not been delivered to the Custodian.
"WET PERIOD" means seven (7) Business Days for the Collateral Papers
for any Bridged Loan.
"WET SUBLIMIT" means thirty percent (30%) of the Aggregate Committed
Sum.
"WIRE INSTRUCTIONS" means, for any Person, the information for wire
transfers of funds to that Person, which (until changed by written notice to all
other parties to this Agreement) are stated for (a) the Borrowers and the
Warehouse Agent beside their names on the signature pages below, and (b) each
Lender, with its name on SCHEDULE LC.
1.2 Definitions for Interest Calculations. For convenience of
reference, definitions used primarily in provisions relating to calculation and
payment of interest are grouped together in this Section. Except where otherwise
specifically provided, the following terms have the following meanings in this
Agreement and the other Warehouse Loan Documents:
"APPLICABLE MARGIN" means, for each Borrowing Purpose Category and
relevant Borrowing Price Category in the table below, the interest margin beside
those categories:
<TABLE>
<CAPTION>
BORROWING PURPOSE CATEGORY BORROWING PRICE
CATEGORY APPLICABLE MARGIN
<S> <C> <C>
Gestation Borrowings Base Rate 0.000%
LIBOR Rate 0.850%
Repurchase Borrowings Base Rate 1.000%
LIBOR Rate 2.500%
Land Contracts Borrowings Base Rate 0.750%
LIBOR Rate 2.250%
Construction Loans Borrowings Base Rate 0.750%
LIBOR Rate 2.250%
Indirect Warehouse Borrowings Base Rate 0.250%
LIBOR Rate 1.500%
High LTV Loans Borrowings Base Rate 0.750%
LIBOR Rate 2.250%
</TABLE>
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<PAGE> 42
<TABLE>
<S> <C> <C>
Other Warehouse Line Base Rate 0.000%
Borrowings
LIBOR Rate 1.250%
</TABLE>
"BASE RATE" means, for any day and for any Borrowing Purpose Category,
an annual interest rate equal to the lesser of (i) the sum of the Prime Rate for
that day plus the Applicable Margin for Base Rate Borrowings in that Borrowing
Purpose Category or (ii) the Ceiling Rate for that day.
"BASE RATE BORROWING" means any Borrowing bearing interest at the Base
Rate.
"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.
"BORROWING PURPOSE CATEGORY" means any category of Borrowing determined
with respect to its purpose, i.e., a Dry Borrowing, Wet Borrowing, Gestation
Borrowing, Repurchase Borrowing, Land Contracts Borrowing, Construction Loans
Borrowing, Indirect Warehouse Borrowing, Second Mortgage Loans Borrowing, D/E
Mortgage Loans Borrowing or High LTV Loans Borrowing.
"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 applicable Texas law establishes the Ceiling Rate, the Ceiling Rate
shall be the "weekly ceiling" (as defined in ss.303 of the Texas Finance Code --
the "TEXAS FINANCE CODE" -- and Chapter 1D of Title 79, Texas Rev. Civ. Stats.
1925 -- "CHAPTER 1D", as amended, respectively) for that day. The Warehouse
Agent and Lenders may from time to time, as to current and future balances,
implement any other ceiling under the Texas Finance Code or Chapter 1D by notice
to the Borrowers, if and to the extent permitted by the Texas Finance Code or
Chapter 1D.
"CHAPTER 1D" is defined in the definition of "Ceiling Rate"
"FAB PRINCIPAL EQUIVALENT" means that portion of aggregate total of
principal Borrowings outstanding on any day that is both (1) not past due and
(2) less than or equal to the Free Adjusted Balances for that day.
"FAB RATE" means , for each Borrowing Purpose Category in the table
below, the annual interest rate stated beside that category:
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<PAGE> 43
<TABLE>
<CAPTION>
BORROWING PURPOSE CATEGORY APPLICABLE FAB RATE
<S> <C>
Gestation Borrowings 0.850%
Repurchase Borrowings 2.500%
Land Contracts Borrowings 2.250%
Construction Loans Borrowings 2.250%
Indirect Warehouse Borrowings 1.500%
High LTV Loans Borrowings 2.250%
Other Warehouse Line Borrowings 1.250%
</TABLE>
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average
of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for that day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for the day of
such transactions received by the Warehouse Agent from three (3) federal funds
brokers of recognized standing selected by the Warehouse Agent. If for any
reason the Warehouse Agent shall determine (and its determination shall be
conclusive absent manifest error) that it is unable to ascertain for any reason
- -- including the Warehouse Agent's inability or failure to obtain sufficient
quotations in accordance with the immediately preceding sentence -- the Federal
Funds Effective Rate for any day, then for each such day that such circumstances
exist, the Federal Funds Effective Rate shall be deemed to be equal to the Prime
Rate for that day minus one percent (-1.0%). Any rate of interest based on the
Federal Funds Effective Rate shall be (a) computed on the basis of a 360-day
year applied for the actual number of days for which the principal amount to
which it applies is outstanding and bears interest in accordance with this
Agreement at such rate of interest based on the Federal Funds Effective Rate
(i.e., on the 365/360 -- 366/360 in a leap year -- day basis) and (b) adjusted
as of the effective date of each change in the Federal Funds Effective Rate.
"FREE ADJUSTED BALANCES" means, for any calendar month, that month's
daily average of all collected balances in all demand deposit accounts
maintained by the Companies (or maintained by the Companies' Affiliates at the
Companies' request) with Texas Commerce during that month (although neither the
Companies nor any of their Affiliates shall have any obligation whatsoever to
maintain any deposits with Texas Commerce) less amounts required and applied (or
to be applied) (a) to satisfy reserve, deposit insurance, special deposit and
Tax requirements (other than for Texas Commerce's general corporate income or
franchise Taxes) allocable to such accounts for that month and (b) to compensate
Texas Commerce for (i) services rendered to the Companies or any of their
Affiliates for that month if and to the extent, if any, that such services are
not separately billed and paid for, or (ii) any agreed reductions in interest,
fees and/or other normal banking charges (including interest, fees and other
amounts due to Texas Commerce under the Servicing/Residuals Loan Agreement or
the Seasoned Warehouse Credit Agreement) other than interest and fees that are
part
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<PAGE> 44
of the Obligations to Texas Commerce, with each element calculated in accordance
with Texas Commerce's system of allocating reserve and deposit insurance
requirements, charges for services and reductions in other normal banking
charges, and as that system may be changed from time to time without notice.
"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
Texas Commerce) 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 Agent 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 Dollars ($1,000,000) each for a one (1) month
period. Any rate of interest based on LIBOR shall be (a) computed on the basis
of a year of three hundred sixty (360) days applied for the actual number of
days for which the borrowing to which it applies is outstanding and bears
interest in accordance with this Agreement at such rate of interest based on
LIBOR Rate (i.e., on the 365/360 -- 366/360 in a leap year -- day basis) and (b)
adjusted as of the effective date of each change in LIBOR. The Warehouse Agent's
determination of LIBOR for each day shall be conclusive and binding, absent
manifest error.
"LIBOR BORROWING" means any Borrowing that bears interest at the LIBOR
Rate.
"LIBOR RATE" means, for any day, an annual interest rate equal to the
lesser of (i) the sum of LIBOR for that day plus the Applicable LIBOR Margin or
(ii) the Ceiling Rate for that day.
"MAXIMUM AMOUNT" and "MAXIMUM RATE" respectively mean, for any day, the
maximum nonusurious amount of interest that, under applicable Law, the relevant
Lender(s) is permitted to contract for, charge, take, reserve, or receive on the
Obligations, and the Ceiling Rate.
"PAST DUE RATE" means, for any day, an annual interest rate equal to
the lesser of (a) the Prime Rate for that day plus three percent (3%) or (b) the
Ceiling Rate for that day.
"PRIME RATE" means, on any day, the prime rate for that day as
announced by Texas Commerce. The Prime Rate is a reference rate and does not
necessarily represent Texas Commerce's best or lowest rate or a favored rate,
and Texas Commerce disclaims any statement, representation or warranty to the
contrary. Any rate of interest based on the Prime Rate shall be (a) computed on
the basis of a year of three hundred sixty (360) days applied for the actual
number of days for which the borrowing to which it applies is outstanding and
bears interest in accordance with
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<PAGE> 45
this Agreement at such rate of interest based on the Prime Rate (i.e., on the
365/360 -- 366/360 in a leap year -- day basis) and (b) adjusted as of the
effective date of each change in the Prime Rate.
"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 Warehouse Agent 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.
"STATED RATE" means, for each Borrowing and for any day, the LIBOR Rate
for that day and for the relevant Borrowing Purpose Category, subject to the
following exceptions:
(a) The annual interest rate to be applied to the FAB Principal
Equivalent that is outstanding on any day and not past due is the mixed FAB Rate
(and not the LIBOR Rate or the Base Rate), calculated by (i) allocating to each
Borrowing Purpose Category that proportion of the FAB Principal Equivalent that
bears the same ratio to the total FAB Principal Equivalent on that day as the
sum of all Borrowings outstanding in that Borrowing Purpose Category on that day
bears to the aggregate of all Borrowings outstanding on that day, (ii) applying
the appropriate FAB Rate for each Borrowing Purpose Category (as set forth in
the table in the definition of "FAB Rate" above) to its allocable proportion of
the FAB Principal Equivalent and (iii) summing the results; provided that to the
extent (if any) that the FAB Principal Equivalent exceeds the Texas Commerce
Loan Balances, upon the Warehouse Agent's receipt from the Companies of each
interest payment on the FAB Principal Equivalent, the Warehouse Agent will pay
to the Lenders other than Texas Commerce, ratably, interest on such excess at a
rate per annum equal to the Applicable Margin for LIBOR Borrowings in the
relevant Borrowing Purpose Category(ies) plus the Federal Funds Effective Rate,
although if doing so would violate Regulation Q, on demand made by the Warehouse
Agent (which demand the Warehouse Agent may make on its own initiative and will
make upon the request of any Lender), the Companies agree to pay to the
Warehouse Agent, as additional interest on the FAB Principal Equivalent, the
amount due to the Lenders other than Texas Commerce pursuant to this CLAUSE (A)
that exceeds the amount the Warehouse Agent can pay them without violating
Regulation Q, so that the Warehouse Agent will have the funds to pay the
interest due the other Lender(s) without violating Regulation Q; provided
further that if any such payment by the Borrowers to the Warehouse Agent would
exceed the Maximum Amount, then (i) interest on said excess of the FAB Principal
Equivalent over the Texas Commerce Loan Balances will be limited to the Maximum
Amount and (ii) the Companies shall pay to the Warehouse Agent pursuant to the
provisions of this CLAUSE (A) only such Maximum Amount.
(b) The Borrowers may elect by written notice to the Warehouse
Agent given on any Business Day to have any specified portion of the principal
of the Borrowings that (i) is not past due and (ii) would otherwise bear
interest at the LIBOR Rate, bear interest at the Base Rate for the relevant
Borrowing Purpose Category(ies), commencing on the next Business Day (or any
later day specified in such notice) and continuing either until an ending date
specified in that notice or, if no
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<PAGE> 46
ending date is specified, until the Borrowers give Agent a written notice
canceling or appropriately modifying that election.
(c) If on any day the interest rate for any portion(s) of the
Borrowings made applicable by any other provision of this Agreement or any other
papers would exceed the Ceiling Rate for that day, then the Stated Rate for each
affected portion of the Borrowings shall be reset to equal the respective
Ceiling Rates for that day and for each day thereafter until the total amount of
interest accrued at the Stated Rate on the unpaid balance of each such affected
portion of the Borrowings equals the total amount of interest that would have
accrued on it if there were no Ceiling Rate. In no event will any portion of the
Borrowings ever bear interest on any day at a rate greater than the Ceiling Rate
for that day nor will Agent ever be obligated to make any payment that would
violate Regulation Q.
For the entire principal of all Borrowings outstanding on any day, "STATED RATE"
means the effective weighted average per annum rate of interest applicable to
the Borrowings for that day, as determined pursuant to the preceding provisions
of this definition.
"TEXAS COMMERCE LOAN BALANCES" means, for any calendar month, the
average aggregate outstanding principal balances of the Warehouse Notes
(including the Swing Line Note) held by Texas Commerce.
"TEXAS FINANCE CODE" is defined in the definition of "Ceiling Rate".
1.3 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.
1.4 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.
1.5 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. Except where
expressly otherwise stated, references in this Agreement to (i) Sections,
Exhibits and Schedules are to Sections, Exhibits and Schedules of and to this
Agreement and (ii) time are to the time in Houston, Texas. 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. Wherever the word
"including" or any of its correlatives appears, unless the context clearly
requires otherwise, it shall be read as if written, "including, but without
limiting the generality of the foregoing statement, subject or concept". 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,
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<PAGE> 47
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. MULTIPLE COMPANIES; MCAI-OHIO'S COLLATERAL
2.1 Companies. Each representation and warranty in the Warehouse Loan
Documents by a Company is deemed to be its separate representation and warranty
and the joint and several representation and warranty of all Companies. Each
covenant and agreement by any Company under the Warehouse Loan Documents is the
joint and several covenant and agreement of all Companies. Any communication
under the Warehouse Loan Documents to any one Company is deemed to have been
concurrently received by each other Company.
2.2 Basis for Structure. The Companies that execute this Agreement
(the Borrowers and, in the capacity and for the purposes stated in the paragraph
immediately above its signature block below, MCAI-Ohio) desire to utilize their
borrowing potential on a combined basis to the same extent possible if they were
merged into a single corporate entity (although MCAI-Ohio has no right to borrow
hereunder). Each such Company has determined that it will specifically and
materially benefit from all Borrowings. The Companies intend, and Agent and
Lenders have required, that all Companies jointly and severally execute and
deliver this Agreement, the Notes, and certain other Warehouse Loan Documents
and -- although MCAI-Ohio cannot borrow hereunder, as aforesaid -- MCAI-Ohio
joins in this Agreement so that Collateral owned by MCAI-Ohio (provided that it
would otherwise qualify as Eligible Collateral) may be considered Eligible
Collateral and so that its value may be included in any relevant Borrowing Base.
The Companies, including MCAI-Ohio, have requested and bargained for the
structure and terms of, and security for, all Borrowings.
2.3 Joint and Several Obligation. Each Company irrevocably and
unconditionally agrees (i) that it is jointly and severally liable to the
Warehouse Agent, the Custodian and the Warehouse Lenders for full payment and
performance of the Obligations, including all obligations of the Companies under
the Warehouse Loan Documents, (ii) to fully pay and perform the Obligations and
all of those obligations of the Companies, and (iii) to INDEMNIFY, AS A PRIMARY
OBLIGOR, THE WAREHOUSE AGENT, THE CUSTODIAN AND EACH WAREHOUSE LENDER AGAINST
ANY LOSS THE WAREHOUSE AGENT, THE CUSTODIAN OR ANY WAREHOUSE LENDER MAY INCUR AS
A RESULT OF ANY OBLIGATIONS OF ANY COMPANY BEING OR BECOMING VOID, VOIDABLE,
UNENFORCEABLE OR INEFFECTIVE FOR ANY REASON WHATSOEVER, WHETHER KNOWN TO THE
WAREHOUSE AGENT, THE CUSTODIAN, ANY WAREHOUSE LENDER OR ANY OTHER PERSON, THE
AMOUNT OF THAT LOSS BEING THE AMOUNT WHICH THE WAREHOUSE AGENT, THE CUSTODIAN OR
THAT WAREHOUSE LENDER, AS THE CASE MAY BE, WOULD OTHERWISE HAVE BEEN ENTITLED TO
RECOVER FROM ANY COMPANY. THIS INDEMNITY SHALL SURVIVE THE PAYMENT AND
PERFORMANCE OF THE OBLIGATIONS AND THE TERMINATION OF THE WAREHOUSE LOAN
DOCUMENTS. With respect to its obligation to repay Borrowings and pay other
obligations of another Company or Companies to the Warehouse Lenders, each
Company agrees to the terms set forth in SCHEDULE 2.3.
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<PAGE> 48
2.4 Contribution Rights. The Companies each intend that their joint
and several obligations under the Warehouse Loan Documents, and that the Liens
therein granted in their Collateral, are not subject to challenge or repudiation
on any basis. Therefore, as of the date any transfer -- as that term is defined
in Bankruptcy Code ss. 101(54) -- is deemed to occur under the Warehouse Loan
Documents, each Company's liabilities under the Warehouse Loan Documents
(including, in MCAI-Ohio's case, the liabilities secured by its Collateral) and
all of such Company's other liabilities, calculated in each case to the full
extent of that Company's probable net exposure when and if those liabilities
become absolute and mature ("DATED LIABILITIES"), are intended by that Company
to be less than the fair valuation of all of its assets as of that date ("DATED
ASSETS"). To that end, each Company (i) grants to and recognizes in each other
Company ratable rights of subrogation and contribution in the amount, if any, by
which the granting Company's Dated Assets (but for the total subrogation and
contribution in its favor under this Section) would exceed the granting
Company's Dated Liabilities, and (ii) acknowledges receipt of and recognizes its
ratable rights to subrogation and contribution from each such other Company in
the amount that the other such Company's Dated Assets (but for the total
subrogation and contribution in its favor under this section) would exceed the
other such Company's Dated Liabilities. Each Company will recognize rights of
subrogation and contribution at least equal to its obligations under the
Warehouse Loan Documents, including, in MCAI-Ohio's case, the obligations
secured by its Collateral. It is a material objective of this Section that each
Company recognize rights to subrogation and contribution rather than be deemed
not to be Solvent by reasons of an arbitrary interpretation of its joint and
several obligations under the Warehouse Loan Documents.
2.5 MCAI-Ohio's Consent to Pledge of its Collateral by MCAFC; the
Borrowers' Promise to Make Loan Proceeds Proportionately Available to MCAI-Ohio;
Further Assurances Concerning Collateral. MCAI-Ohio hereby irrevocably appoints
MCAFC as its agent to pledge to the Warehouse Agent, as agent and Representative
of the Warehouse Lenders, all of MCAI-Ohio's right, title and interest in and to
any and all Collateral from time to time pledged to secure or otherwise securing
the Obligations, or any portion of them, and agrees that MCAFC's pledge of any
thereof from time to time so made to the Warehouse Agent, as agent and
Representative of the Warehouse Lenders, shall automatically constitute the
pledge of all of MCAI-Ohio's right, title and interest therein, whether or not
that (or that MCAFC is acting as agent for MCAI-Ohio) is stated in (or in
connection with) such pledge, to the exact same effect as if MCAI-Ohio had
itself pledged such Collateral, and (iii) acknowledges and agrees that MCAI-Ohio
has received and will receive reasonably equivalent value for all such past,
concurrent and future pledges thereof by reason of the Borrowers' joint and
several promise and agreement to and with MCAI-Ohio, hereby made and confirmed,
to make that share of the proceeds of each Borrowing (or an equal amount in cash
or cash equivalents) which is proportionate to the value of MCAI-Ohio's
Collateral in the Borrowing Base against which such Borrowing is made, available
to MCAI-Ohio (either by relending such proceeds, or by MCAFC's lending or
contributing as new cash capital, an equal amount of cash or cash equivalents,
to MCAI-Ohio) before, at or within a reasonable time after such Borrowing shall
have been funded. In furtherance of the foregoing provisions of this Section,
MCAFC and MCAI-Ohio hereby agree to (i) perform, or cause to be performed, such
acts and (ii) duly to authorize, execute, acknowledge, deliver, file and record
(or cause such actions to be taken with respect to) such
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<PAGE> 49
financing statements, assignments, security agreements, deeds of trust and
mortgages, and supplements, modifications or amendments to any of them, and such
other papers as the Warehouse Agent or the Custodian may reasonably request from
time to time in order to establish and preserve the priority of, perfect and
protect the Liens granted or intended to be granted to the Warehouse Agent (as
agent and Representative of the Warehouse Lenders) in and to any and all such
Collateral and to preserve and protect the Warehouse Agent's rights in respect
of all present and future Collateral for the Obligations.
3. WAREHOUSE LENDERS' COMMITMENTS
3.1 Revolving Credit Commitments. Subject to the terms and conditions
of this Agreement, and provided no Default or Event of Default has occurred that
the Warehouse Agent has not declared in writing to have been cured or waived
(or, if one has occurred and not been so declared cured or waived, if all of the
Warehouse Lenders, in their sole discretion and with or without waiving such
Default or Event of Default, have elected in writing that lending under this
Agreement shall continue nonetheless) the Lenders agree to make Warehouse
Revolving Loans to the Borrowers in such amounts as the Borrowers shall request
pursuant to SECTION 5 at any time from the date of this Agreement until the
Termination Date, up to an aggregate principal amount outstanding at any time of
not more than the Aggregate Committed Sum or the Borrowing Base, whichever is
less, to refinance the Companies' Debt secured by Eligible Collateral that is
currently held by Texas Commerce and to finance the Companies' acquisition or
origination of new Eligible Collateral. On any day before the Termination Date,
the Borrowers may borrow, repay and (having repaid) reborrow Warehouse Revolving
Loans up to the lesser of the Borrowing Base or the Aggregate Committed Sum on
that day; provided that the principal amount of each Warehouse Revolving Loan
must be in an amount not less than Fifty Thousand Dollars ($50,000). The
Commitments, and the fractions to be applied to determine the respective Funding
Shares of each Warehouse Revolving Loan (other than Swing Loans), of the Lenders
that are parties to this Agreement on the Effective Date are set forth on
SCHEDULE LC, and shall remain applicable for each day until SCHEDULE LC is
amended or restated from time to time pursuant to this Agreement. Upon the
joinder of additional Warehouse Lender(s), if any, or adjustments of Commitments
and Funding Shares between or among existing Warehouse Lenders made in
accordance with this Agreement, the parties agree to approve in writing revised
and updated versions of SCHEDULE LC. Each Warehouse Lender shall be obligated to
fund only that Warehouse Lender's own Funding Share of any Warehouse Revolving
Loan (other than Swing Loans) requested, and no Warehouse Lender shall be
obligated to the Borrowers, any other Warehouse Lender or the Warehouse Agent to
fund a greater share of any Warehouse Revolving Loan. No Warehouse Lender shall
be excused from funding its Funding Share of any Warehouse Revolving Loan (other
than Swing Loans) merely because any other Warehouse Lender has failed or
refused to fund its Funding Share of that or any other Warehouse Revolving Loan.
If any Warehouse Lender fails to fund its Funding Share of any Warehouse
Revolving Loan, the other Warehouse Lenders who are willing to do so shall have
the right (but no obligation) to do so in the proportion that the Warehouse
Commitment of each bears to the sum of the Warehouse Commitments of all
Warehouse Lenders that have funded (or are funding) their own Funding Shares of
that Warehouse Revolving Loan and that are willing to fund
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<PAGE> 50
part of the Funding Share of such Warehouse Lender that so failed to fund.
Regardless of whether the other Warehouse Lenders fund the Funding Share of the
Warehouse Lender who has failed to fund, the respective ownership interests of
the Warehouse Lenders in the Warehouse Revolving Loans shall be adjusted as
provided in the definition of "Pro Rata". All Warehouse Revolving Loans under
this Agreement shall constitute a single debt and all of the Collateral shall be
security for all of the Warehouse Notes and the Obligations. The Warehouse
Lenders shall not be obligated to make (or the Warehouse Agent to disburse) any
Warehouse Revolving Loan if any of the conditions precedent set forth in SECTION
10 shall not have been satisfied, or (ii) such proposed Warehouse Revolving Loan
would cause the aggregate unpaid principal amount of the Warehouse Revolving
Loans outstanding under this Agreement to exceed the lesser of the Aggregate
Committed Sum or the Borrowing Base as of the relevant Disbursement Date. The
Borrowers may request funding of (x) Warehouse Revolving Loans no more
frequently than daily and then only coincident with a determination (or
redetermination) of the market value of all Eligible Collateral then Pledged to
the Warehouse Agent by the Companies (including any Eligible Collateral newly
pledged in connection with the requested Warehouse Revolving Loan.)
Notwithstanding anything contained herein to the contrary, the Warehouse Agent
may honor the Borrowers' request for a Warehouse Revolving Loan in the absence
of strict satisfaction of the conditions precedent set forth in SECTION 10.2
relating to the delivery of documents, provided that the Companies have
substantially complied with such conditions and the Warehouse Agent, in its
reasonable discretion, determines that would be prudent and in the Warehouse
Lenders' interest to do so. If the unpaid balance of the Warehouse Revolving
Loans should exceed the Borrowing Base or any other limitation set forth in this
Agreement, such Warehouse Revolving Loans shall nevertheless constitute part of
the Obligations that is secured by the Collateral and entitled to all benefits
thereof.
3.2 Expiration or Termination of the Commitments. Unless extended in
writing or terminated earlier in accordance with this Agreement, the Warehouse
Lenders' Commitments to lend under this Agreement (including Texas Commerce's
Swing Line Commitment) shall automatically expire at the close of business on
the Termination Date, without any requirement for notice or any other action by
the Warehouse Agent, any of the Warehouse Lenders or any other Person.
3.3 Limitations on Borrowings. The Borrowers' rights to borrow
hereunder are subject to the following limitations:
- The total outstanding principal amount of the Warehouse Revolving
Loans may never exceed the lesser of (i) the Aggregate Committed
Sum or (ii) the Borrowing Base.
- The total outstanding principal amount of the Warehouse Revolving
Loans that are Wet Borrowings may never exceed the Wet Sublimit.
- The total outstanding principal amount of the Warehouse Revolving
Loans that are Gestation Borrowings may never exceed the lesser
of (i) the Gestation Sublimit or (ii) the portion of the
Borrowing Base attributable to Eligible Gestation Loans.
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- The total outstanding principal amount of the Warehouse Revolving
Loans that are Repurchase Borrowings may never exceed the lesser
of (i) the Repurchased Loans Sublimit or (ii) the portion of the
Borrowing Base attributable to Eligible Repurchased Loans.
- The total outstanding principal amount of the Warehouse Revolving
Loans that are Construction Loans Borrowings may never exceed the
lesser of (i) the Construction Loan Sublimit or (ii) the portion
of the Borrowing Base attributable to Eligible Construction
Loans.
- The total outstanding principal amount of the Warehouse Revolving
Loans that are Land Contracts Borrowings may never exceed the
lesser of (i) the Land Contract Sublimit or (ii) the portion of
the Borrowing Base attributable to Eligible Land Contracts.
- The total outstanding principal amount of the Warehouse Revolving
Loans that are Second Mortgage Loans Borrowings may never exceed
the lesser of (i) the Second Mortgage Loans Sublimit or (ii) the
portion of the Borrowing Base attributable to Eligible Second
Mortgage Loans.
- The total outstanding principal amount of the Warehouse Revolving
Loans that are D/E Mortgage Loans Borrowings may never exceed the
lesser of (i) the D/E Sublimit or (ii) the portion of the
Borrowing Base attributable to Eligible D/E Mortgage Loans.
- The total outstanding principal amount of the Warehouse Revolving
Loans that are Indirect Warehouse Borrowings may never exceed the
lesser of (i) the Indirect Warehouse Sublimit or (ii) the portion
of the Borrowing Base attributable to Eligible Indirect Mortgage
Loans.
- The total outstanding principal amount of the Warehouse Revolving
Loans that are High LTV Loans Borrowings may never exceed the
lesser of (i) the High LTV Loan Sublimit or (ii) the portion of
the Borrowing Base attributable to Eligible High LTV Loans.
- No Warehouse Lender's direct or indirect portion of the total
outstanding principal amount of the Warehouse Revolving Loans may
ever exceed either (i) its Commitment or (ii) its Funding Share
of the total outstanding principal amount of the Warehouse
Revolving Loans (excluding, except for Texas Commerce, the Swing
Loans).
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4. SWING LINE COMMITMENT.
In addition to its Commitment under SECTION 3.1, Texas Commerce agrees
to fund revolving credit Swing Loans to the Borrowers in principal amounts which
do not on any day in the aggregate exceed the Swing Line Limit, for the purpose
of initially funding requested Revolving Loans, upon and subject to the terms
and conditions of SECTION 4.
4.1 Swing Loans. The Borrowers shall have the right to borrow and
reborrow under the Swing Line if (and only if):
(a) the Swing Loan fully qualifies in all respects for funding
as an ordinary Revolving Loan under this Agreement, including the requirement
that, after giving effect to the requested Swing Loan, none of the limitations
specified in SECTION 3.3 will be exceeded;
(b) the Swing Line Limit is not exceeded;
(c) no Default has occurred that has not been cured before it
has become an Event of Default, and no Event of Default has occurred that the
Warehouse Agent has not declared in writing to have been waived or cured;
(d) the Request for Advance against which the Swing Loan is to
be funded is received by Texas Commerce by no later than 4:00 PM on the Business
Day such Loan is to be funded; and
(e) neither the Borrowers nor Texas Commerce is aware of any
reason why the Revolving Loan requested by the Request for Advance against which
the Swing Loan is to be funded, cannot or will not be fully funded by the
Lenders on the fifth (5th) Business Day (or such other Business Day as shall be
designated by Texas Commerce) following the Business Day on which the Request
for Advance is received by Texas Commerce.
4.2 Swing Line Note and Interest on Swing Loans. All Swing Loans
shall be evidenced by the Swing Line Note and shall bear interest from the date
funded until the date repaid (and accrued interest on them shall be due and
payable) at the same rate(s) and on the same days as would be applicable if such
Swing Loans had been funded by all of the Lenders, instead of having been funded
by Texas Commerce alone as Swing Loans.
5. BORROWING PROCEDURES.
5.1 Request for Advance to Refinance Certain Existing Debt. To
request a Revolving Loan to fund the initial advance under this Agreement to
refinance the Borrowers' existing warehouse debt to Texas Commerce (only), the
Borrowers shall give the Warehouse Agent a Request for Advance for the proposed
refinancing as soon as practicable prior to the proposed Disbursement Date for
such Revolving Loan. For such refinancing, the Request for Advance shall specify
the
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principal amount of the proposed Revolving Loan and its proposed Disbursement
Date. Notwithstanding anything contained or implied in such Request for Advance,
the amount of the proposed Revolving Loan shall not exceed the Collateral Value
of the Collateral to be Pledged to the Warehouse Agent and in which the
Warehouse Agent (as agent and Representative of the Warehouse Lenders) will
acquire a first and prior perfected security interest immediately and
automatically upon funding to Texas Commerce of the payoff amount of the
Borrowers' existing financing of Eligible Collateral by Texas Commerce.
5.2 Requests for Revolving Loans for Originations and Acquisitions.
To request Revolving Loans to finance the acquisition or origination of new
Eligible Collateral (as opposed to refinancing Debt secured by existing
Collateral held by TCB), the Borrowers shall give the Warehouse Agent a Request
for Advance as soon as practicable before the proposed Disbursement Date for the
Revolving Loan to finance the Borrowers' origination or acquisition of such new
Eligible Collateral. For each such origination or acquisition, such Request for
Advance shall be accompanied by a Submission List listing in reasonable detail
the new Eligible Collateral being originated or acquired and shall specify the
principal amount and the proposed Disbursement Date for such Revolving Loan and
the Company's deposit account with the Warehouse Agent into which its proceeds
are to be deposited. Notwithstanding anything contained or implied in any such
Request for Advance requesting a Revolving Loan to finance newly originated or
acquired Eligible Collateral, such Revolving Loan shall not be disbursed before
(i) the Business Day on which the new Collateral is to be originated or
purchased by a Company and legal title to the new Collateral will be acquired by
the originating or acquiring Company and (ii) the Borrowers have demonstrated to
the Warehouse Agent that such new Collateral constitutes Eligible Collateral.
5.3 Request for Supplemental Borrowing Against Eligible Collateral's
Collateral Value. In addition to requests for borrowings made pursuant to
SECTION 5.2, but subject to the satisfaction of the conditions set forth in
SECTION 10, the Borrowers may from time to time request a Revolving Loan in an
amount not to exceed the excess (if any) of (x) the Borrowing Base -- including
the Collateral Value of Eligible Collateral already in the Borrowing Base and
any additional Eligible Collateral newly Pledged to the Warehouse Agent by a
Company -- over (y) the aggregate principal of the Warehouse Revolving Loans
outstanding. Such Request for Advance shall be reasonably satisfactory to the
Warehouse Agent and -- categorized by applicable portions of the Borrowing Base
(for Eligible Gestation Loans, Eligible Repurchased Loans, Eligible Land
Contracts, Eligible Construction Loans, Eligible High LTV Mortgage Loans,
Eligible Indirect Warehouse Loans, Eligible D/E Mortgage Loans or other Eligible
Warehouse Collateral) -- shall specify:
(a) the aggregate Collateral Values comprising the Borrowing
Base;
(b) the sum of the existing Borrowings outstanding that are
supported by the Borrowing Base;
(c) the amount of the excess of (a) over (b); and
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(d) the principal amount of the proposed Revolving Loan, its
proposed Disbursement Date (which shall not be earlier than the Business Day on
which the Warehouse Agent receives such request before 4:00 PM) and the
Borrowers' deposit account with the Warehouse Agent into which the proceeds of
such Revolving Loan are to be deposited.
5.4 Requests Are Both for Swing Loans and Revolving Loans. Each
Request for Advance shall constitute a request for both (1) a Swing Loan to be
funded by Texas Commerce on the Business Day on which the Warehouse Agent
receives such Request for Advance before 4:00 PM (Requests for Advance received
by the Warehouse Agent after 4:00 PM shall be deemed received when Texas
Commerce opens for commercial banking business on the next succeeding Business
Day) and (2) the Revolving Loan actually requested by the text of the Request
for Advance to be funded by the Lenders on the Swing Loan Due Date for that
Swing Loan and to refinance that Swing Loan.
5.5 Initial Funding of Revolving Loans under the Swing Line;
Refinancing of Swing Loans. Texas Commerce shall fund each Revolving Loan
requested by a Request for Advance by making a Swing Loan on the same Business
Day the Revolving Loan is requested if the requirements of SECTION 4.1 are
satisfied. Texas Commerce shall have no obligation to fund that Revolving Loan
as a Swing Loan if and to the extent that such requirements are not satisfied --
and will not do so if it has received actual notice from any other Warehouse
Lender that any such requirements are unsatisfied (unless Texas Commerce
subsequently determines that all such requirements have been satisfied) --
although such requested Revolving Loan shall be funded on the next succeeding
Business Day as a regular Revolving Loan by the Lenders to the extent that all
conditions to its funding are then satisfied. To the extent that satisfaction of
any of the conditions to funding a requested Revolving Loan as a Swing Loan is
within the Warehouse Agent's control, the Warehouse Agent agrees to use
reasonable efforts to cause them to be satisfied. Each Swing Loan shall be
repaid on its Swing Loan Due Date by the Warehouse Agent's paying over to Texas
Commerce out of the Note Payment/Funding Account, and Texas Commerce's applying
against such Swing Loan, an amount equal to the proceeds of the Revolving Loans
funded by all of the Lenders on that day against the same Request for Advance
that was initially funded by such Swing Loan. If at the time such Swing Loan was
funded, Texas Commerce reasonably believed that all of the conditions set forth
in SECTION 4.1 for such Swing Loan were satisfied in all material respects, the
other Warehouse Lenders shall be unconditionally and irrevocably obligated to
timely fund their respective Funding Shares of the Revolving Loan that was so
initially funded as a Swing Loan, to repay to Texas Commerce (and thereby
refinance) on the relevant Swing Loan Due Date all of that Swing Loan except
only Texas Commerce's Funding Share of it, irrespective of whether in the
meantime any Default or Event of Default has occurred or been discovered, and
irrespective of whether in the meantime some or all of the Lenders' Commitments
have lapsed, expired or been canceled, rescinded, terminated with or without
cause, waived, released or excused for any reason whatsoever, so that all of the
following events occur on each Swing Loan Due Date: (i) the principal amount of
the Swing Loans is paid down by the required amount (all accrued interest on
Swing Loans shall be due and payable by the Borrowers to the Warehouse Agent,
for distribution from the Note Payment/Funding Account to Texas Commerce, on the
fifteenth (15th) day of the following calendar
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month), (ii) all Swing Loans are converted to Revolving Loans from the Lenders
and (iii) those Revolving Loans are evidenced by the Revolving Credit Notes
other than the Swing Line Note.
5.6 Requests for Advance Due by 4 PM. A separate Request for Advance
shall be made for each Revolving Loan. On each Business Day that (i) the
Warehouse Agent shall have received a Request for Advance before 4:00 PM (all
times are Houston times), (ii) the other requirements of SECTION 4.1 are
satisfied and (iii) if additional Collateral is required to support such
Revolving Loan pursuant to SECTION 5.7, such additional Collateral shall have
been delivered to the Warehouse Agent, Texas Commerce shall fund the requested
Revolving Loan as a Swing Loan, and shall thereafter give notice to each Lender
of that requested Revolving Loan and that Lender's Funding Share of the
requested Revolving Loan before 2:00 PM on the Swing Loan Due Date for that
Swing Loan, and each Lender shall cause its Funding Share thereof to be
transferred to the Warehouse Agent within two (2) hours after receiving such
notice from the Warehouse Agent or by 4:00 PM, whichever is later, so that the
Warehouse Agent receives it in good collected Houston funds on that same
Business Day, and the Warehouse Agent shall deposit those shares of such
Revolving Loan into the Note Payment/Funding Account when received and shall
repay the related Swing Loan from the Note Payment/Funding Account (or, if a
Lender other than Texas Commerce advises the Warehouse Agent by telephone and
confirms the advice by fax that the Lender has placed all of its Funding Share
on the federal funds wire to the Warehouse Agent, Texas Commerce shall continue
to keep the Swing Loan outstanding to the extent of that Lender's Funding Share
so wired until the Warehouse Agent has actually received such share -- whereupon
the Warehouse Agent shall deposit such share when received into the Note
Payment/Funding Account and repay that still-outstanding portion of the Swing
Loan from the Note Payment/Funding Account -- except that Texas Commerce shall
have no obligation to continue such portion of any Swing Loan outstanding if and
to the extent, if any, that doing so would cause the amount funded by Texas
Commerce and outstanding to exceed either the Swing Line Limit or Texas
Commerce's Committed Sum.)
5.7 New Collateral (If Any) Due by 11:00 AM on the Day of a Requested
Revolving Loan. Unless the Borrowing Base already has sufficient value to
support both (i) the requested Revolving Loan and (ii) all other outstanding
Revolving Loans, by 11:00 AM on the Business Day on which the Borrowers request
that a Revolving Loan be funded, the Borrowers shall (1) deliver to the
Warehouse Agent one or more signed Submission Lists describing the additional
Collateral then being Pledged to the Warehouse Agent and (2) cause such
additional Collateral to be delivered to the Warehouse Agent. If, after giving
effect to a requested Revolving Loan, the outstanding Revolving Loans would
exceed the Borrowing Base, or if the Warehouse Agent determines that any
Collateral submitted to it is incomplete, deficient or defective in any material
respect, then:
(a) the Warehouse Agent shall withhold the requested Revolving
Loan -- or so much thereof as requires the Collateral Value of the Collateral
whose Submission List description, additional Collateral Papers or other
evidence submitted is incomplete or incorrect in any material respect to support
it -- until the Borrowers shall have demonstrated to the Warehouse Agent's
reasonable satisfaction that the relevant Submission Lists and all required
additional Collateral
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Papers and other evidence submitted, are in fact not (or are no longer)
incomplete or incorrect in any material respect; or
(b) in the case of any Borrowing Base insufficiency, unless the
Borrowers instruct the Warehouse Agent in writing not to disburse any of the
requested Revolving Loan, and subject to the provisions and limitations of
SECTIONS 3.1 and 4.1, the Warehouse Agent will disburse such lesser amount(s) as
the Warehouse Agent shall determine is supported by the Borrowing Base and will
notify the Borrowers of such insufficiency, including the Warehouse Agent's
calculation of such insufficiency set forth in reasonable detail.
5.8 If a Request for Advance or New Collateral Papers are Received
Late; Waiver of Claim for Any Late Funding. If either a Request for Advance or
any new Collateral is submitted late, Texas Commerce will use reasonable efforts
to make the requested Revolving Loan as a Swing Loan on the same day it is
requested (provided such new Collateral has been submitted), although neither
the Borrowers nor any other Person shall have any claim or cause of action
against the Warehouse Agent or any of the Lenders if that funding (or any other
funding) does not occur on the same day it is requested.
6. THE REVOLVING CREDIT NOTES
To evidence the Warehouse Revolving Loans to be made by the Lenders
pursuant to this Agreement, the Borrowers agree to execute and deliver to each
Lender a Warehouse Note in the form of EXHIBIT E-1, in a face principal amount
equal to that Lender's Warehouse Committed Sum and dated the Effective Date (or
dated with such other appropriate date as shall be agreed upon by the Borrowers,
that Lender and the Warehouse Agent if the effective date of that Lender's
joinder in this Agreement is after the Effective Date), and to evidence the
Swing Loans to be made by Texas Commerce, the Borrowers agree to execute and
deliver to Texas Commerce the Swing Line Note in the form of EXHIBIT E-2 in face
principal amount equal to the Swing Line Limit. If any Lender's Warehouse
Committed Sum shall be increased for any reason after the Borrowers shall have
issued to that Lender its Warehouse Note, then the Borrowers agree to execute
and deliver to that Lender upon its request a renewal Warehouse Note in a face
principal amount equal to the portion of that Lender's new Warehouse Committed
Sum and dated the same date that such applicable Warehouse Committed Sum change
becomes (or became) effective.
7. INTEREST RATES; ADDITIONAL COSTS AND FEES
7.1 Interest. All Warehouse Revolving Loan principal outstanding and
not past due on any day shall bear interest for that day at the Stated Rate. All
past due principal, interest, fees or other sums shall bear interest at the Past
Due Rate from their respective due dates until paid, or at such lesser rate (if
any) -- although not less than the Stated Rate -- as the Warehouse Agent (unless
otherwise directed by the Majority Warehouse Lenders) shall elect to be
applicable for any one or more days of such period. Without duplication, from
the earlier of the Termination Date or the date of the occurrence (if any) of an
Event of Default described in SECTION 14.1(h), the outstanding
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principal amount of all advanced and unpaid Revolving Loans shall bear interest
at the Past Due Rate, or at such lesser rate (if any) -- although not less than
the Stated Rate -- as the Warehouse Agent (unless otherwise directed by the
Majority Warehouse Lenders) shall elect to be applicable for any one or more
days of such period. All interest rate determinations and calculations by the
Warehouse Agent, absent manifest error, shall be conclusive.
7.2 Maximum Rate. Regardless of any Loan Document provision, neither
the Lenders nor the Warehouse Agent are 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 Warehouse Agent or the Lenders ever
do so, then any excess will be treated as a partial prepayment of principal, and
any remaining excess will be refunded to the Borrowers. In determining if the
interest paid or payable exceeds the Maximum Rate, the Companies and the
Warehouse Agent and the Lenders 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 Lenders shall
refund any excess without being subject to any penalties provided by any Laws.
7.3 Additional Costs. This section shall survive the full
satisfaction of the Obligations and termination of the Loan Documents, and the
release of all Lender Liens.
(a) Rate of Return Maintenance Covenant. If at any time after
the date of this Agreement, any Warehouse Lender that is a bank determines that
(a) any applicable law, rule or regulation regarding capital adequacy has been
adopted or changed since July 1, 1997 or (b) its interpretation or
administration by any Governmental Authority, central bank or comparable agency
has changed since July 1, 1997 and determines that such change or such Warehouse
Lender's compliance with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on that Warehouse Lender's capital as a consequence of its
obligations under this Agreement or any of the other Warehouse Loan Documents to
a level below the rate of return which that Warehouse Lender would have achieved
but for such adoption, change or compliance (taking into consideration that
Warehouse Lender's own capital adequacy policies) by an amount that Warehouse
Lender deems to be material, then upon notice to the Companies by that Warehouse
Lender or the Warehouse Agent summarizing the facts triggering the increase and
calculations of the increase, the Companies jointly and severally promise to pay
to the order of the Warehouse Agent, for the account of such Warehouse Lender,
such additional amount or amounts as will provide that Lender with a rate of
return on its capital equal to that which would have been achieved but for such
adoption, change or compliance (taking into consideration that Lender's own
capital adequacy policies); provided that the amount of such payment shall be
absolutely limited to that amount which, when added to all other sums which
constitute interest under applicable law, produces an interest rate that does
not exceed the Ceiling Rate for the full term that the Warehouse
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Revolving Loans are outstanding. In determining the amount or amounts required
to be paid to achieve that result, such Warehouse Lender may employ such
assumptions and make such allocations of costs and expenses fairly applicable to
the Warehouse Revolving Loans as that Warehouse Lender reasonably elects and may
use any reasonable averaging and attribution method. Any Warehouse Lender's
certificate setting forth the amount or amounts necessary to compensate such
Warehouse Lender as specified above shall be given by the Warehouse Agent to the
Companies as soon as practicable after such Warehouse Lender has made such
determination and shall be conclusive and binding, absent manifest error. The
Companies shall pay the Warehouse Agent, for the account of such Warehouse
Lender, the amount shown as due on any such certificate within fifteen (15) days
after the Warehouse Agent gives it.
(b) Taxes. Any Taxes payable by the Warehouse Agent or any
Lender or ruled (by a Tribunal) payable by the Warehouse Agent or any Lender in
respect of any Loan Document shall, if permitted by Law and if deemed material
by the affected Lender (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 the
Companies, together with interest and penalties, if any, accrued as a result of
any Company's delay in paying them (except for Taxes payable on the overall net
income of such Lender by the jurisdiction where its office is located and except
for interest and penalties incurred as a result of the gross negligence or
willful misconduct of such Lender). The Warehouse Agent shall notify the
Companies and deliver to the Companies a certificate prepared by the affected
Lender stating in reasonable detail the calculation of the amount of payable
Taxes (which certificate shall be conclusive and binding absent manifest error),
and the Companies shall pay that amount to the Warehouse Agent (for the account
of the affected Lender(s) within ten (10) days after demand. If any affected
Lender subsequently receives a refund of the Taxes paid to it by the Companies,
then that Lender shall promptly pay the refund to the Warehouse Agent, who shall
pay it over to the Companies.
7.4 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 any Lender to
make or maintain LIBOR Borrowings, then the Warehouse Agent shall promptly
notify the Borrowers and (a) as to undisbursed funds, any requested Revolving
Loan shall be made as a Base Rate Borrowing, (b) any outstanding Revolving Loan
shall be immediately converted to a Base Rate Borrowing or if any conversion
will not resolve the unlawfulness, the Companies shall promptly prepay the
Revolving Loan, 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).
7.5 Chief Credit Officer's Certificate Conclusive. Should any issue
ever arise in any forum or under any circumstances as to any of the matters
referred to in this Section, a certificate of Texas Commerce's chief credit
officer stating LIBOR, the Prime Rate, the Free Adjusted Balances, the FAB
Principal Equivalent, the Federal Funds Effective Rate, the Past Due Rate, the
Stated Rate and/or the Stated Rate(s) applicable to one or more specified
portions of the Revolving Loans that are or were in effect from time to time,
absent manifest error, shall be conclusive.
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7.6 Facility Fee. The Companies agree to pay to the Warehouse Agent,
for the account of the Lenders (and the Warehouse Agent shall distribute to
them), ratably according to their respective Committed Sums, a cash facility fee
(the "FACILITY FEE") in an amount equal to twenty basis points (0.20%) per annum
on the Aggregate Committed Sum (as it may be changed from time to time pursuant
to the provisions of SECTION 8.3) for the period from the Effective Date to the
Termination Date. The Facility Fee shall be due and payable annually in advance
on the Effective Date and on each anniversary (if any) of the Effective Date
before the Termination Date. The Facility Fee is not compensation for the use or
forbearance or detention of money, although this Section (as well as every other
Section of this Agreement) is subject to the provisions of SECTION 17.2. Each
calculation by the Warehouse Agent of the amount of the Facility Fee shall be
conclusive, absent manifest error. The Borrowers shall pay to the Warehouse
Agent (for the account of the Lenders) on demand any deficiency in payment by
the Borrowers of the Facility Fee.
7.7 Agent's Fee. The Borrowers agree to pay to the Warehouse Agent an
agent's fee (the "AGENT'S FEE") as provided for in the letter agreement between
the Borrowers and the Warehouse Agent executed substantially concurrently with
this Agreement, as such letter agreement may be supplemented or amended from
time to time.
7.8 Custodian's Fee. The Borrowers agree to pay to the Warehouse
Agent a fee for its services as the Custodian (the "CUSTODIAN'S FEE") as
provided for in the letter agreement between the Borrowers and the Warehouse
Agent executed substantially concurrently with this Agreement, as such letter
agreement may be supplemented or amended from time to time.
7.9 Other Fees and Expenses. Upon demand of the Warehouse Agent from
time to time, the Borrowers shall pay to the Warehouse Agent the amount of the
expenses (including attorneys' fees, whether of inside or outside counsel, and
disbursements) incurred by the Warehouse Agent and the Lenders from time to time
which are to be paid for or reimbursed by the Borrowers under SECTIONS 16.1 AND
16.3.
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8. INTEREST AND PRINCIPAL PAYMENTS; DISTRIBUTIONS
8.1 Payments.
(a) Interest and Other Obligations. Unless otherwise provided
in this Agreement, the Borrowers shall jointly and severally pay the Obligations
in accordance with the following table:
<TABLE>
<CAPTION>
Obligation Payable
<S> <C>
Unpaid interest on each Warehouse On (a) the fifteenth (15th) day of each
Revolving Loan except interest at the Past Calendar Month following the Calendar
Due Rate and interest required to be paid Month in which it accrued through the
last pursuant to SECTION 8.3 day of that accrual month and (b) on the
Termination Date
Unpaid Interest accrued at the Past On demand as it accrues
Due Rate
Unpaid interest due pursuant to any When due as provided in SECTION 8.3
Aggregate Committed Sum reduction made
pursuant to SECTION 8.3
Warehouse Revolving Loan principal and any When due as provided in the relevant
other Obligations provision of this Agreement, but in no
event later than the Termination Date
</TABLE>
(b) Mandatory Payments. On the Termination Date, all outstanding
principal of the Notes, and all accrued interest then unpaid on the Notes, shall
be finally due and payable without notice or demand. All principal outstanding
on the Swing Line Note shall be due and payable on each Swing Line Loan Due
Date, and if the Warehouse Agent gives written notice to the Companies that any
such sum is due and has not been repaid by the Lenders despite the requirement
of SECTION 5.5 that the Lenders do so, the Companies shall promptly pay such sum
to the Warehouse Agent. If at any time or from time to time, the aggregate
unpaid principal amount of all Warehouse Revolving Loans exceeds the lesser of
the Aggregate Committed Sum or the Borrowing Base, the excess shall be
immediately due and payable without notice or demand. No mandatory payment under
this SECTION 8.1(b) shall reduce the Aggregate Committed Sum.
(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 Warehouse Agent, may prepay the unpaid principal amount of the Warehouse
Revolving Loans in whole or in part without premium; provided that any such
optional prepayment under this SECTION 8.1(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 Warehouse Revolving Loans; and provided further that any
optional prepayment made under this SECTION 8.1(c) shall not reduce the
Aggregate Committed Sum (interest accrued and unpaid on any such optional
prepayment shall be due and payable on the fifteenth (15th) day of the
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Calendar Month next occurring after the date of such prepayment, or concurrently
with such prepayment if made on the fifteenth (15th) day of a Calendar Month).
The Companies may pay or prepay any amount owed under the Warehouse Notes
without prejudice to the Borrowers' right to reborrow under the terms of this
Agreement.
(d) Time Due; Good Funds. Except as otherwise specifically
provided in this Agreement, all payments under this Agreement, on the Warehouse
Notes (including the Swing Line Note) and under the other Warehouse Loan
Documents shall be paid (i) to the Warehouse Agent for deposit in the Warehouse
Note Payment/Funding Account, (ii) by not later than 1:00 PM on the day when due
(unless the Warehouse Agent shall agree to a payment's being made before a
specific later deadline on such day), (iii) without set-off, counterclaim or
deduction, (iv) in lawful money of the United States of America, (v) in
immediately available funds and (vi) at the office of the Warehouse Agent, at
712 Main Street, Houston, Texas 77002, or by fed funds wire transfer to:
Texas Commerce Bank Account number 0010-___-____
National Association Attention: Pamela E. Skinner
ABA number 1130-0060-9 Phone: (713) 216-5382
Further Credit -- MCA Warehouse Note Payment/Funding Account
or at such other place as the Warehouse Agent shall designate from time to time.
Whenever any payment to be made under this Agreement, any Warehouse Note or any
of the other Loan Documents shall be stated to be due on a day that is not a
Business Day, the due date for that payment shall be automatically extended to
the next day that is a Business Day, and with respect to principal, interest at
the applicable rate (determined in accordance with this Agreement) shall
continue to accrue during the period of such extension. Unless the Warehouse
Agent, acting in its sole discretion, shall agree otherwise, funds received by
the Warehouse Agent after 1:00 PM on a Business Day shall be deemed for all
purposes to have been paid by the Companies on the next succeeding Business Day,
except that if, after so deeming, any applicable Ceiling Rate would be exceeded,
then solely for the purpose of calculating interest accrued, such funds shall be
deemed paid on the date received. Any payment made by mail will be deemed
tendered and received only upon actual receipt by the Warehouse Agent at the
address designated for such payment, whether or not the Warehouse Agent 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 PM, Houston time,
on the date due for such payment, time being of the essence. The Companies
expressly assume all risks of loss or liability resulting from non-delivery or
delay of deliver of any item of payment transmitted by mail or in any other
manner.
(e) Setoff. If and to the extent any payment is not made when
due under this Agreement, any Warehouse Note (including the Swing Line Note) or
any of the other Warehouse Loan Documents, the Companies authorize the Warehouse
Agent and each Lender (for the Pro Rata account and benefit of all of the
Lenders) then or at any time thereafter to charge any amounts so due and unpaid
against any or all of the Companies' accounts with the Warehouse Agent or any of
the
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Lenders (including an account evidenced by a certificate of deposit), subject to
the following qualifications of such rights to so charge such accounts:
(1) such rights shall not apply to any escrow, trust or
other deposit accounts designated as being held by the Companies on behalf of
third party owners of the escrowed funds other than Affiliates of the Companies;
(2) such rights shall not affect the Companies' obligation
to pay when due any Obligations, whether or not account balances are sufficient
to pay amounts due; and
(3) the exercise of such rights will not per se prejudice
the Borrowers' right to reborrow under the terms of this Agreement.
(f) Payments to be Free of Taxes. Any and all payments by the
Companies made pursuant to this Agreement or under any Revolving Credit Note or
other Loan Documents shall be made free and clear of -- and without deduction
for -- any and all present or future Taxes. If the Companies shall be required
by law to deduct any Taxes from or in respect of any sum payable pursuant to
this Agreement or under any Revolving Credit Note or other Loan Document, (i)
the sum payable shall be increased as may be necessary so that after making all
required deductions, the Lenders receive an amount equal to the sums they would
have received had no such deductions been made and (ii) the Borrowers agree to
pay the Taxes to the relevant Governmental Authority.
(g) Payments Satisfy Liability. Each payment received by the
Warehouse Agent in accordance with this Agreement is valid and effective to
satisfy and discharge the Companies' liability under the Loan Documents to the
extent of such payment.
8.2 Pro Rata Distribution of Payments. All payments and prepayments
of the Revolving Credit Notes -- whether voluntary or involuntary and from
whatever source -- received by the Warehouse Agent shall be distributed by the
Warehouse Agent to the Warehouse Lenders Pro Rata with their respective
ownership interests in the Warehouse Revolving Loans as of the date the payment
is credited against the Warehouse Notes in accordance with this Agreement (all
Swing Loan payments shall be distributed to Texas Commerce). The distribution
from the Warehouse Agent to each Lender shall be made by wire transfer in
immediately available funds directly to such Lender or to such account at
another financial institution as is designated from time to time by such Lender
in writing, and shall be made on the same Business Day received (or deemed
received) by the Warehouse Agent. If the Warehouse Agent shall fail or refuse to
make the distribution on the same Business Day as the payment was received, then
the Warehouse Agent shall pay the affected Lender(s) interest on the
undistributed funds at the Federal Funds Effective Rate.
8.3 Changes in Commitments and Prepayments. 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 Warehouse
Agent, may permanently terminate the Warehouse Lenders' Commitments or
permanently reduce (Pro Rata) the Warehouse Lenders' Commitments
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by an integral multiple of One Hundred Thousand Dollars ($100,000); provided
that the Borrowers, on the effective date of such termination or reduction,
shall pay to the Warehouse Agent (for the account of the Warehouse Lenders) in
the case of a termination, the aggregate unpaid principal amount of all
Warehouse Revolving Loans, or, in the case of a reduction, the amount, if any,
by which the aggregate unpaid principal amount of all Warehouse Revolving Loans
exceeds the then reduced Aggregate Committed Sum, together in either case with
all interest accrued and unpaid on the principal amounts so prepaid, but without
premium. The notice shall specify the Termination Date or the reduced Aggregate
Committed Sum 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
Warehouse Agent's prior written consent. After any such reduction, no Warehouse
Lender's Commitment may be increased or otherwise reinstated without the
Warehouse Agent's express written agreement.
8.4 Acceptance and Application of Payments. Acceptance by the
Warehouse Agent 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 Warehouse
Agent shall be entitled to exercise any and all rights conferred upon it herein
upon the occurrence of an Event of Default. The Companies waive the right to
direct the application of any and all payments at any time or times hereafter
received by the Warehouse Agent or any Lender from or on behalf of the Companies
except each such payment designated as a payment under this Agreement shall be
applied to the Obligations; provided that, except as otherwise specified
pursuant to SECTION 17.2, no payment on account of interest shall be applied on
the principal owed under the Warehouse Notes. The Companies agree that the
Warehouse Agent 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 Warehouse Agent may deem advisable,
notwithstanding any entry by the Warehouse Agent or any Warehouse Lender upon
any of its books and records.
8.5 Invalidated Payments. The Companies expressly agree that to the
extent that the Warehouse Agent or any Warehouse Lender 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
Warehouse Agent or any Warehouse Lender(s), to the extent that the Warehouse
Agent and each such affected Lender(s), if any, did not directly receive a
corresponding cash payment, shall be added to the Obligations and be additional
Obligations payable upon demand by the Warehouse Agent.
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9. COLLATERAL
9.1 Security Interest. As security for the payment of the Warehouse
Revolving Loans and for the payment and performance of the Obligations, each of
the Companies has executed and delivered the Security Agreement with the
Warehouse Agent, granting to the Warehouse Agent, as agent and Representative of
the Warehouse Lenders, a first priority security interest in all of that
Company's present and future estate, right, title and interest in and to the
Warehouse Collateral (although neither the Warehouse Lenders, the Warehouse
Agent nor the Custodian assumes any of the Companies' or any other liability or
obligation under or in respect of any Collateral).
9.2 Delivery of Additional Collateral or Mandatory Prepayment. At
least once a week during the term of this Agreement (or more often in the
discretion of the Warehouse Agent if it reasonably determines that market
conditions warrant) and whenever a Request for Advance is made by the Borrowers
(except that the Warehouse Agent shall have no obligation to make such
determination more frequently than once per day), the Warehouse Agent shall (i)
determine pursuant to SCHEDULE BB the aggregate values of the Collateral
comprising the Borrowing Base for each type of Collateral (including any
Collateral pledged on that day) Pledged to the Warehouse Agent under this
Agreement, (ii) issue to the Lenders a Borrowing Base Report stating separately
the Warehouse Agent's determination of the portion of the Borrowing Base
attributable to each type of Collateral and (iii) provide a copy of that
certificate to the Borrowers. If the Warehouse Agent shall determine on any day
that the Borrowing Base is less than the outstanding Revolving Loans, then the
Companies shall immediately either:
(a) Pledge to the Warehouse Agent additional Collateral; and/or
(b) after giving effect to the value of any additional
Collateral Pledged to the Warehouse Agent, pay to the Warehouse Agent cash for
Pro Rata distribution to the Warehouse Lenders;
in aggregate amounts sufficient to completely eliminate the excess of (i) the
sum of all Warehouse Revolving Loans outstanding over (ii) the Borrowing Base;
provided, that the Companies may not elect under the provisions of SECTION
9.2(a) (and instead must make a cash paydown pursuant to SECTION 9.2(b)) if any
Default or Event of Default has occurred that the Warehouse Agent has not
declared in writing to have been cured or waived.
9.3 Right of Redemption From Pledge.
(a) Provided no Event of Default has occurred that the Warehouse
Agent has not declared in writing to have been cured or waived -- although the
Warehouse Agent shall have the right (but no obligation) to allow redemption at
any time if it reasonably believes at that time that doing so would be in the
Warehouse Lenders' interest to do so -- the Companies may from time to time
redeem one or more Pledged Loans from pledge by either:
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(x) paying, or causing to be paid, to the Warehouse Agent
for deposit in the Warehouse Note Payment/Funding Account, for application to
the outstanding principal balance of the Warehouse Revolving Loans and
application to Pro Rata prepayment of the principal balance of the Warehouse
Notes, the Redemption Amount for the Pledged Loans to be released; or
(y) delivering substitute Pledged Loans that (i) are
Eligible Collateral, (ii) will, when included with the existing Warehouse
Collateral (excluding the Pledged Loans to be released), increase the Borrowing
Base to an amount at least equal to the aggregate outstanding Warehouse
Revolving Loans and (iii) will not directly or indirectly result in any
Sublimit's being exceeded;
provided, that if (i) no Default has occurred that has not been waived or cured,
(ii) no Event of Default has occurred that the Agent has not declared in writing
to have been cured or waived and (iii) no Borrowing Base Deficiency would exist
after giving effect to the requested redemption, the Companies may redeem one or
more Pledged Loans without either paying down the Warehouse Revolving Loans or
providing substitute Pledged Loans (this proviso is called the "FREE REDEMPTION
PROVISO").
(b) The Lender Lien against the Pledged Loans redeemed shall
automatically be terminated upon the Warehouse Agent's receipt of the redeeming
payment or substitute Mortgage Collateral (or, if pursuant to the Free
Redemption Proviso, no such payment or substitute Mortgage Collateral is
required, upon the Custodian's release of the related Basic Papers), and the
Warehouse Agent will direct the Custodian to release the related Basic Papers to
the requesting Company against its written request and will confirm such release
in writing if, when and in such form as such Company may reasonably request,
including, if requested and applicable to the Pledged Loans redeemed, UCC-3
Partial Releases.
9.4 Releases of Pledged Loans Sold or Securitized.
(a) For all Pledged Loans to be securitized, sold or transferred
by the Companies to any third party for reasonably equivalent value in a bona
fide transaction (including sales of Pledged Loans subject to a reverse
repurchase agreement for financing purposes), no later than two (2) Business
Days before the date scheduled for the securitization, sale or transfer of such
Pledged Loans, the Companies shall deliver to each of the Warehouse Agent and
the Custodian a written notice in the form of the Payoff Request -- as defined
in, and the form of which is attached as an exhibit to, the Custody Agreement --
stating the scheduled closing date or transfer date and identifying those
Pledged Loans to be so securitized, sold or transferred (and if such closing
date or transfer date is changed, then the Companies will give the Warehouse
Agent and the Custodian prompt notice thereof). Within two (2) Business Days
following the Warehouse Agent's receipt of the Payoff Request, (i) the Warehouse
Agent will provide the Companies with a Payoff Schedule (as defined in the
Custody Agreement) which shows the Redemption Amount for each such Pledged Loan
(notwithstanding that the aggregate Redemption Amounts for the affected Pledged
Loans will
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not include interest through the scheduled closing date, the Companies shall
remain liable for such interest and any related fees, which shall be remitted to
the Warehouse Agent, for distribution to the Warehouse Lenders, on a monthly
basis, in accordance with the provisions of SECTION 8.1) and (ii) the Custodian
will ship the Pledged Loans listed in accordance with the relevant provisions of
the Custody Agreement and the Companies shall either:
(x) cause the investor acquiring such Pledged Loans or the
Mortgage Securities being created from them to pay to the Warehouse Agent for
deposit in the Warehouse Note Payment/Funding Account, for application to the
outstanding principal balance of the Warehouse Revolving Loans and application
to Pro Rata prepayment of the principal balance of the Warehouse Notes, the
Redemption Amount for the Pledged Loans to be released from the Lender Lien; or
(y) deliver substitute Pledged Loans (a) that are Eligible
Collateral, (b) that will, when included with the existing Warehouse Collateral
(excluding the Pledged Loans to be released), increase the Borrowing Base to an
amount at least equal to the aggregate outstanding Warehouse Revolving Loans and
(c) that will not directly or indirectly result in any Sublimit's being
exceeded;
provided, that if (i) no Default has occurred that has not been waived or cured,
(ii) no Event of Default has occurred that the Agent has not declared in writing
to have been cured or waived and (iii) no Borrowing Base Deficiency would exist
after release of the shipped Pledged Loans, the Agent will release its Lien in
such shipped Pledged Loans without any requirement that the Companies first pay
any Redemption Amount or provide any substitute Pledged Loans (this proviso is
called the "FREE RELEASE PROVISO").
(b) The Lender Lien against Pledged Loans:
(1) shipped to be sold as whole loans or to be securitized
as Mortgage Securities not issued or guaranteed by FNMA, GNMA or FHLMC shall
automatically terminate upon the Warehouse Agent's receipt of the relevant
Redemption Amount or substitute Collateral;
(2) shipped to be securitized as Mortgage Securities issued
or guaranteedby FNMA, GNMA or FHLMC shall automatically terminate upon issuance
of the Mortgage Securities created from them -- although the Lender Lien in the
proceeds of such Mortgage Loans, including all of the Companies' right, title
and interest in and to such Mortgage Securities and their proceeds, shall
continue until the Warehouse Agent's receipt of the relevant Redemption Amount
- -- or
(3) if, pursuant to the Free Release Proviso, no such
payment or substitute Collateral is required, the Lender Lien in the Pledged
Loans shipped shall automatically terminate upon the Custodian's release of the
related Basic Papers.
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9.5 Return of Collateral at End of Commitment. If (i) the Lenders'
Commitments to lend shall have expired or been terminated, and (ii) all
Warehouse Revolving Loans, interest and other amounts evidenced by the Warehouse
Notes or owing to any of the Warehouse Lenders or the Warehouse Agent under this
Agreement, the Warehouse Notes and the other Loan Documents shall be fully paid
and satisfied, then the Warehouse Agent shall release the Collateral to the
Borrowers or their designee promptly upon written request made by the Companies
and at their cost, and the Companies shall promptly receipt -- or shall cause
their designee to promptly receipt -- for such released Collateral in writing to
the Warehouse Agent. Acceptance by the Borrowers of any Collateral delivered to
them pursuant to any provision of this Agreement (whether or not the recipient
issues a receipt for it) or shipping by the Warehouse Agent of Collateral in
substantial compliance with shipping instructions given by the Borrowers or
their designee shall be a complete and full acquittance for the Collateral so
delivered or shipped, and the Warehouse Agent and the Warehouse Lenders shall
thereby be released and discharged from any and all liability or responsibility
for it arising then or thereafter.
10. CONDITIONS PRECEDENT
10.1 Initial Revolving Loan. The obligations of the Warehouse Lenders
to make and the Warehouse Agent to disburse the Lenders' respective Funding
Shares of the initial Warehouse Revolving Loan are subject to satisfaction on or
before the Disbursement Date for such Revolving Loan of each of the following
conditions precedent:
(a) Loan Documents and Note Purchase Agreement. The Warehouse
Agent shall have received the following, all of which must be satisfactory in
form and content to the Warehouse Agent:
(1) the Warehouse Notes (including the Swing Line Note)
executed by the Companies;
(2) the Warehouse Security Agreement executed by the
Companies and the Warehouse Agent;
(3) UCC-1 financing statements executed by the Companies;
(4) UCC-3 assignments of Texas Commerce's existing security
interests in all of the Warehouse Collateral executed by Texas Commerce and the
Companies; and
(5) the Custody Agreement executed by the Companies and the
Warehouse Agent;
(b) Certified Companies' Resolutions. Each Company shall have
furnished to the Warehouse Agent a copy of the resolutions of such Company's
Board of Directors authorizing the execution, delivery and performance of this
Agreement, the borrowings hereunder, the
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Warehouse Notes and all other Warehouse Loan Documents contemplated by this
Agreement, which shall have been certified by such Company's Secretary or
Assistant Secretary as of the Effective Date as being complete, accurate and in
effect.
(c) Certified Articles. Each Company shall have furnished to the
Warehouse Agent a copy of the Articles of Incorporation, including all
amendments thereto and restatements thereof, and all other charter documents of
such Company, all of which shall have been certified by the Michigan Department
of Commerce (or, in the case of MCAI-Ohio, the comparable Ohio Governmental
Authority) as of a date after August 31, 1997.
(d) Certified Bylaws. Each Company shall have furnished to the
Warehouse Agent a copy of the Bylaws of such Company, including all amendments
thereto and restatements thereof, which shall have been certified by the
Secretary or Assistant Secretary of such Company as of the Effective Date.
(e) Certificate of Good Standing. Each Company shall have
furnished to the Warehouse Agent a certificate of good standing with respect to
such Company, which shall have been certified by the Michigan Department of
Commerce (or, in the case of MCAI-Ohio, the comparable Ohio Governmental
Authority) as of a date after August 31, 1997.
(f) Certificates of Companies' Officers' Incumbency. Each
Company shall have furnished to the Warehouse Agent a certificate of the
Secretary or Assistant Secretary of such Company, certified as of the Effective
Date, as to the incumbency and signature of the officers of such Company signing
this Agreement, the Warehouse Notes and any other Warehouse Loan Document
contemplated or delivered under this Agreement.
(g) Opinion of Companies' Counsel. The Companies shall have
furnished to the Warehouse Agent on or before the Effective Date or the actual
date of execution and delivery of this Agreement by the Companies (whichever is
later), the favorable written opinion of Butzel Long, legal counsel to the
Companies, dated when issued, in form and content acceptable to the Warehouse
Agent and substantially as set forth in EXHIBIT H or containing such other or
additional opinions as may be reasonably requested by the Warehouse Agent;
provided that if such opinion, insofar as it relates to MCAI-Ohio, shall not be
furnished to the Warehouse Agent concurrently with such opinion as it relates to
the Borrowers, then the Borrowers shall not make any portion of the Loan
proceeds available to MCAI-Ohio, and MCAI-Ohio shall not accept them, until such
opinion relating to MCAI-Ohio shall have been both (i) so furnished to the
Warehouse Agent and (ii) approved by all Warehouse Lenders.
(h) UCC Lien Search. The Warehouse Agent shall have received UCC
record and copy searches, evidencing the appropriate filing and recording of
Texas Commerce's existing Financing Statements in all of the Warehouse
Collateral and their assignment to the Warehouse Agent, as agent and
Representative of the Warehouse Lenders under this Agreement, and disclosing
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no notice of any liens or encumbrances filed against any of the Collateral other
than those assigned Financing Statements or the other Permitted Liens.
(i) Insurance Policies. The Companies shall have furnished to
the Warehouse Agent, in form, content and amounts and with companies
satisfactory to the Warehouse Agent, copies of the Companies' errors and
omissions insurance policy (or policies), mortgage impairment insurance policy
and mortgage bankers blanket bond insurance policy, with loss payable clauses in
favor of the Warehouse Agent (as agent and Representative of the Lenders.)
(j) Approval of Agent's Counsel. All actions, proceedings and
papers 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 Warehouse
Agent, 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.
10.2 Conditions to All Disbursements. The obligations of the Warehouse
Lenders to fund and the Warehouse Agent to disburse the Warehouse Lenders'
respective Funding Shares of any Warehouse Revolving Loan under this Agreement,
other than Swing Loans, and the obligation of Texas Commerce to fund the Swing
Loans are also subject to satisfaction on or before the Disbursement Date for
such Warehouse Revolving Loan of each of the following conditions:
(a) Certificate. The Warehouse Agent shall have received a
certificate, in the form and content of the attached EXHIBIT I-1, I-2 or I-3 (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 5.1:
(i) the proceeds of the requested Revolving Loan
are to be used to refinance Debt secured by Eligible Warehouse Collateral and
currently held by Texas Commerce, who will assign to the Warehouse Agent (as
agent and Representative of the Warehouse Lenders) its security interest in all
collateral for such existing Debt being refinanced and, upon disbursement of
such proceeds to Texas Commerce, a Company shall own good and marketable title
to such Collateral, free and clear of any lien, pledge, charge or interest of
any party other than the Warehouse Agent (as agent and Representative of the
Warehouse Lenders);
(ii) all of the Collateral in which the Warehouse
Agent (as agent and Representative of the Warehouse Lenders), by funding such
Warehouse Revolving Loan, will acquire a security interest shall be Eligible
Warehouse Collateral; and
(iii) all of the Collateral secured by such Debt
to be so refinanced by the proposed Warehouse Revolving Loan shall be Pledged to
the Warehouse Agent, shall be pledged to no other Person and shall be subject to
this Agreement and the Warehouse Security
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Agreement, and the Warehouse Agent, as agent and Representative of the Lenders,
will thereby acquire and have a first and prior perfected security interest
therein.
(2) In the case of a request pursuant to SECTION 5.2:
(i) the proceeds of the requested Revolving Loan are
to be used to finance origination or acquisition by a Company of new Eligible
Warehouse Collateral; and, upon disbursement of such proceeds to the mortgagors
or Land Contract purchasers (as the case may be) in respect of such Collateral
(in the case of an origination) or the seller of such Collateral (in the case of
an acquisition), such Company shall own good and marketable title to such new
Warehouse Collateral, free and clear of any lien, pledge, charge or interest of
any party other than the Warehouse Agent, as agent and Representative of the
Warehouse Lenders;
(ii) all of the Collateral to be originated or acquired
with the proceeds of the requested Warehouse Revolving Loan shall be Eligible
Warehouse Collateral; and
(iii) all of Collateral to be originated or acquired
with the proceeds of the requested Warehouse Revolving Loan shall be Pledged to
the Warehouse Agent as Warehouse Collateral, and to no other Person, and shall
be subject to this Agreement and the Warehouse Security Agreement.
(3) In the case of a request pursuant to SECTION 5.3:
(i) there is not then outstanding any Warehouse
Revolving Loan previously advanced by the Warehouse Lenders (and disbursed by
the Warehouse Agent) -- including any Swing Loan -- with respect to the
Warehouse Collateral to which such requested Warehouse Revolving Loan relates;
and
(ii) all of the Warehouse Collateral to which such
requested Warehouse Revolving Loan relates shall be Pledged to the Warehouse
Agent, and to no other Person, and shall be subject to this Agreement and the
Warehouse Security Agreement.
(4) In the case of any Request for Advance whatsoever:
(i) no Default or Event of Default shall have occurred
and be continuing on and as of such Disbursement Date; and
(ii) the warranties and representations set forth in
SECTION 11 of this Agreement and SECTION 3 of the Warehouse Security Agreement
are true and correct on and as of such Disbursement Date.
(b) Borrowing Base Certificate. The Warehouse Agent shall have
received from the Companies a borrowing base certificate (a "BORROWING BASE
CERTIFICATE") in the form of
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SCHEDULE 10.2(b), executed by a Responsible Officer of MCAFC and certified as of
such Disbursement Date, confirming that, as of such Disbursement Date, the
aggregate unpaid principal amount of all Warehouse Revolving Loans (including
the Revolving Loan to be made on such Disbursement Date) does not exceed the
lesser of the Aggregate Committed Sum or the Borrowing Base as in effect on the
close of business on the Business 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 Warehouse Collateral
to be financed in the refinancing of the Borrowers' existing warehouse debt to
Texas Commerce and the Eligible Warehouse Collateral to be originated or
acquired with the proceeds of the requested Revolving Loan.
(c) Delivery of Documents. The Companies shall have delivered to
the Warehouse Agent and the Custodian (i) a Submission List(s) listing, and --
except in respect of Bridged Loans -- all Basic Papers for, each item of
Warehouse Collateral to be originated or acquired with proceeds of the requested
Warehouse Revolving Loan and copies of all other documents related to such
origination or acquisition as may be required by or pursuant to this Agreement
(including copies of any required Take-out Commitments) or the Custody
Agreement, or as may be reasonably requested by the Warehouse Agent or the
Custodian and (ii) for all Eligible Gestation Collateral, a Conversion Notice.
(d) Agent Satisfaction. The Warehouse Agent shall not know or
have any reason to believe that, as of such Disbursement Date:
(1) any Default or Event of Default has occurred and is
continuing;
(2) any warranty or representation set forth in SECTION 11
of this Agreement or SECTION 3 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, any Warehouse Note, the Warehouse Security Agreement, any Financing
Statements, the Custody 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
Company.
(e) Approval of Agent's 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
Warehouse Agent, 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.
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(f) Updated Opinion of the Companies' Counsel. The Warehouse
Agent shall have received from counsel for the Companies, if reasonably
requested by the Warehouse Agent pursuant to instructions from the Majority
Warehouse Lenders, an updated favorable opinion or opinions, in form and
substance satisfactory to the Warehouse Agent addressed to the Warehouse Lenders
and the Warehouse Agent and dated as of the date of such Warehouse Revolving
Loan, covering and updating such matters that were originally addressed in the
opinion issued pursuant to SECTION 10.1(g) as the Warehouse Agent may reasonably
request.
(g) Fees Paid. The Companies shall have paid the Facility Fee,
Agent's Fee and Custodian's Fee then due and payable in accordance with SECTIONS
7.6, 7.7 and 7.8.
11. 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
Companies have performed all of their other obligations hereunder, the Companies
represent and warrant to the Warehouse Agent, the Custodian and the Warehouse
Lenders that:
11.1 Corporate Existence and Power. (a) Each Company, and each of its
Subsidiaries, is a corporation duly organized, validly existing and in good
standing under the laws of the State of Michigan (or, in the case of MCAI-Ohio,
the State of Ohio), and has the corporate power and authority to own or lease
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 Company has the corporate
power and authority to execute, deliver and perform this Agreement, to borrow
money (in the case of MCAI-Ohio, from the Borrowers) in accordance with its
terms, to execute, deliver and perform the Warehouse Notes and the other Loan
Documents, to grant to the Warehouse Agent (as agent and Representative of the
Lenders) liens and security interests in the Warehouse Collateral as hereby
contemplated and to do any and all other things required of it hereunder or
under the Warehouse Security Agreement and the other Loan Documents. SCHEDULE
11.1 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 Company or Subsidiary (and identifying such
Company or Subsidiary).
11.2 Authorization and Approvals. The execution, delivery and
performance of this Agreement, the Borrowings hereunder and the execution,
delivery and performance of the Warehouse Notes and the other Loan Documents (a)
have been duly authorized by all requisite corporate action of each Company, (b)
except for UCC filings, 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 Warehouse Agent, (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 Company,
any
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provision of any contract, mortgage, indenture, note, agreement, lease or other
instrument to which any Company 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 Company other than in favor of the Warehouse
Agent (as agent and Representative of the Warehouse Lenders).
11.3 Valid and Binding Agreement. This Agreement and the existing
Financing Statements in favor of Texas Commerce in respect of its warehousing
loans to the Companies and duly assigned by UCC-3 Assignments to the Warehouse
Agent, as agent and Representative of the Warehouse Lenders, are, and the
Warehouse Notes (including the Swing Line Note), the Warehouse Security
Agreement and all other documents contemplated hereby when delivered will be,
valid and binding obligations of each Company 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.
11.4 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 Company, threatened against or
affecting any Company, any Subsidiary or any properties or rights of any Company
or any Subsidiary which, if adversely determined, would, individually or
collectively, materially impair the right of any Company to carry on business
substantially as now conducted or could have a Material Adverse Effect. Except
as disclosed on SCHEDULE 11.4, (a) no Company is subject to, or aware of the
threat of, any such pending actions, suits or proceedings affecting that Company
or any Subsidiary and (b) no outstanding or unpaid judgments against any Company
or any Subsidiary exist.
11.5 No Liens, Pledges, Mortgages or Security Interests. Except for
Permitted Liens, none of the Companies' nor any Subsidiary's assets and
properties, including the Collateral, are subject to any mortgage, pledge, lien,
security interest or other encumbrance of any kind or character.
11.6 Financial Statements. All consolidated and consolidating balance
sheets, statements of income and retained earnings and statements of cash flows
furnished to the Warehouse Agent for the purpose of, or in connection with, this
Agreement and the transactions contemplated by this Agreement ("FINANCIAL
STATEMENTS"), including financial statements previously delivered to the
Warehouse Agent and those financial statements to be furnished to the Warehouse
Agent pursuant to SECTION 12.2, have been or will be prepared in accordance with
GAAP, and do or will fairly present the financial condition of the Companies and
the Subsidiaries, as of the dates, and the results of their operations for the
periods, for which the same are furnished to the Warehouse Agent. No Company or
Subsidiary has any material contingent obligations, liabilities for taxes,
long-term leases or unusual forward or long-term commitments not disclosed by,
or reserved against in, the Financial Statements.
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11.7 Financial Condition. On a consolidated basis, the Companies 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 July 31, 1997, that has resulted or would reasonably be
expected to result in a Material Adverse Effect.
11.8 The Companies Have Paid Taxes. Each Company 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 Company 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.
11.9 Compliance with Laws. Each Company 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.
11.10 Margin Stock. No Company 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 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 Company or Subsidiary owns any margin stock.
11.11 No Pension Funding Deficiency. No Company 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 Company or Subsidiary, and no reportable event
or prohibited transaction, as defined in ERISA, has occurred with respect to
such plans.
11.12 Approved Lender, Mortgagee, Issuer and Servicer. Each Company
that is, or is acting as, a Servicer for GNMA, FNMA or FHLMC 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.
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11.13 Investment Company. No Company 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.
11.14 Misrepresentation. No warranty or representation by any Company
contained herein or in any certificate or other material document furnished by
any Company 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 that the Companies have not disclosed to the Warehouse Agent in writing
which has a Material Adverse Effect or, so far as the Companies can now foresee,
is likely to have a Material Adverse Effect.
12. 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
Companies have performed all of their other obligations hereunder, the Companies
covenant and agree that they will:
12.1 Pay Revolving Credit Notes. Punctually pay or cause to be paid
when due the principal of, interest on and all other amounts now or hereafter
owing under this Agreement, the Revolving Credit Notes (including the Swing Line
Note) and the other Loan Documents in accordance with their respective terms.
12.2 Furnish Financial and Other Information. Promptly furnish to the
Warehouse Agent (for distribution to the Lenders) from time to time information
regarding the business and affairs of the Companies, including the following and
such other information as the Warehouse Agent may from time to time reasonably
request:
(a) Annual Financial Reports. not later than ninety (90) days
after the close of each fiscal year of the Companies, beginning with the fiscal
year ending January 31, 1998, financial statements of the Companies, in form and
on a reporting basis reasonably satisfactory to the Warehouse Agent and on a
consolidated and consolidating basis containing the balance sheet of the
Companies 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 Companies and reasonably acceptable to
the Warehouse Agent and shall contain unqualified opinions as to the fairness of
the statements therein contained.
(b) Quarterly Financial Statements. not later than forty-five
(45) days after the close of each quarter of each fiscal year of the Companies,
in form and on a reporting basis reasonably satisfactory to the Warehouse Agent,
beginning with the fiscal quarter ended July 31,
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1997, financial statements on a consolidated and consolidating basis containing
the balance sheet of the Companies as of the end of each such period, statements
of income and retained earnings of the Companies and a statement of cash flows
of the Companies 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. Such statements shall be prepared on the same accounting basis
as the statements required in SECTION 12.2(a) (subject to normal year-end
adjustments) and shall be in such detail as the Warehouse Agent 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 12.2(a) and 12.2(b), a certificate of
the chief executive or chief financial officer of MCAFC (a) stating that (i) the
warranties and representations set forth in SECTION 11 are true and correct as
of such date, and (ii) no Event of Default or Default has occurred, or if any
Event of Default or Default exists, stating the nature thereof, the period of
existence thereof and what action the Companies 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 12.6, 12.7, 12.8 and 12.9 in conformity with the terms of this
Agreement. Each such certificate delivered with the financial statements
required by SECTION 12.2(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) Monthly Management Report. within thirty (30) days after the
end of each month, a management report substantially in the form of SCHEDULE
12.2(d) setting forth the Companies' loan production, commitment and pipeline
positions and servicing portfolio as of the end of such month, executed by a
Responsible Officer of the relevant Company.
(e) Monthly Take-out Report. within thirty (30) days after the
end of each month, a Take-out Report substantially in the form of EXHIBIT F
setting forth the Companies' Take-out coverage and setting forth the Take-out
Prices, as determined in accordance with schedules (in the form attached to
EXHIBIT F) attached to such report, and the total weighted average Take-out
Price as a percentage of par as of the end of such month, executed by a
Responsible Officer of the relevant Company.
(f) Warehouse Collateral Certificate. not later than five (5)
Business Days after the Warehouse Agent's request therefor made from time to
time, a certificate in the form attached as EXHIBIT J executed by a Responsible
Officer of the relevant Company setting forth an updated list, dated as of a
current date acceptable to the Warehouse Agent, of all Warehouse Collateral then
Pledged to the Warehouse Agent according to the Companies' records.
(g) Adverse Effect. written notice promptly informing the
Warehouse Agent of (a) the occurrence of any Default or Event of Default, (b)
any litigation which if determined adversely to a Company or Subsidiary and not
satisfied in a timely fashion would have a Material Adverse Effect or constitute
a Default or an Event of Default, or (c) any other occurrence which is
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known or should be known to a Company and which has or could reasonably be
expected to have a Material Adverse Effect.
(h) Shareholder Reports. promptly upon their becoming available,
a copy of all financial statements, reports, notices, proxy statements and other
communications sent by any Company or Subsidiary to its shareholders, and all
regular and periodic reports filed by any Company or Subsidiary with any
securities exchange, the Securities and Exchange Commission, the Corporation,
Securities and Land Development Bureau of the Department of Consumer and
Industry Services of the State of Michigan (or, as to MCAI-Ohio, the
corresponding Ohio Governmental Authority), or any governmental authorities
succeeding to any or all of the functions of said Commission, Bureau or
comparable Governmental Authority.
(i) Management Letters. promptly upon receipt thereof, copies of
all management letters and other reports of substance submitted to any Company
or any of the Subsidiaries by independent certified accountants in connection
with any annual or interim audit of the books of any Company or Subsidiary.
(j) Agency Audits. promptly upon receipt thereof, a copy of any
audit, examination or report performed on or with respect to any Company or
Subsidiary by GNMA, FNMA, FHLMC, the Department of Housing and Urban Development
or any other governmental agency or authority.
(k) Other Information as Requested. such other information
regarding the operations, business, properties and financial condition of any
Company and any Subsidiary as the Warehouse Agent may reasonably request from
time to time promptly after such request.
12.3 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 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 Companies 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 Warehouse Agent, including an 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 of the Warehouse
Agent, as agent and Representative of the Warehouse Lenders), all of which
insurance shall (i) be in such amounts, (ii) contain such terms, (ii) be in such
form, (iii) be for such purposes, (iv) be prepaid for such time period and (v)
be written by such companies, as may be reasonably satisfactory to the Warehouse
Agent. 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
Warehouse Agent. The Companies will promptly deliver to the Warehouse Agent, at
the Warehouse Agent's request and without charge, evidence satisfactory to the
Warehouse Agent that such insurance has been so procured.
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12.4 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 Company or Subsidiary, and their property, except to the extent
being contested in good faith and, if required by the Warehouse Agent, bonded in
an amount and manner satisfactory to the Warehouse Agent. If any Company or
Subsidiary shall fail to pay such taxes and assessments within the time they can
be paid without penalty, late charge or interest, the Warehouse Agent and the
Lenders shall have the option to do so, and the Companies agree to repay the
Warehouse Agent (for distribution to itself and/or to such other Lenders as
shall have paid them) upon demand, with interest at the Past Due Rate, all
amounts so expended by the Warehouse Agent and the Lenders.
12.5 Maintain Corporation, Business and Approved Statuses. Do or cause
to be done all things necessary to preserve and keep in full force and effect
each Company'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; 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; and as to each Company that at any time on
or after the Effective Date is, or is acting as, a Servicer for GNMA, FNMA or
FHLMC, such Company will continuously (i) be an FHA- and VA-approved lender and
mortgagee and a GNMA-, FNMA- and FHLMC-approved issuer and servicer in good
standing and (ii) satisfy all applicable GNMA, FNMA and FHLMC net worth
requirements.
12.6 Maintain Net Worth.
(a) MCAFC's Minimum Consolidated Net Worth. 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) MCAMC's Minimum Net Worth. 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.
(c) MCA's Minimum Net Worth. 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.
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12.7 Limit Leverage.
(a) MCAFC's Maximum Leverage Ratio. Limit MCAFC's ratio of (i)
its total Debt to (ii) its consolidated Net Worth to 10.0 to 1.0 or less.
(b) MCAMC's Maximum Leverage Ratio. Limit MCAMC's ratio of its
total Debt to its Net Worth to 10.0 to 1.0 or less.
(c) MCA's Maximum Leverage Ratio. Limit MCA's ratio of its total
Debt to its Net Worth to 10.0 to 1.0 or less.
12.8 Maintain Servicing Portfolio Level. Maintain a Servicing
Portfolio of at least Five Hundred Million Dollars ($500,000,000).
12.9 Maintain Fixed Charges Coverage Ratio. Maintain the Fixed Charges
Coverage Ratio as 1.10 to 1.0 or greater.
12.10 ERISA. (a) At all times meet and cause each of the Subsidiaries
to meet the minimum funding requirements of ERISA with respect to the Companies'
and Subsidiaries' employee benefit plans subject to ERISA and to otherwise
comply with all applicable Laws; (b) promptly after any Company 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 Company has instituted or will institute proceedings to terminate an employee
pension plan, deliver to the Warehouse Agent a certificate of the chief
financial officer of MCAFC setting forth the details as to such event or
proceedings and the action which the Companies 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 Warehouse Agent (or cause the
plan administrator to furnish the Warehouse Agent) 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 Companies not later than ten (10)
days after such report has been so filed.
12.11 Use of Loan Proceeds. Use the proceeds of the Revolving Loans
hereunder only for the purposes set forth in the recitals of this Agreement.
12.12 Senior Management. Promptly after any change in any of the five
officers of MCAFC or MCA who have the highest degree of management or
policy-making authority for the Companies, (the individuals who are such
officers of the Effective Date are listed on SCHEDULE 12.12), regardless of the
reason for such change, notify the Warehouse Agent in writing of such change and
furnish to the Warehouse Agent a revised SCHEDULE 12.12 reflecting the
individuals then holding such positions.
12.13 Accounting; Access to Records, Books, Etc. Maintain a system of
accounting established and administered in accordance with sound business
practices to permit preparation of
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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
Warehouse Agent and the Lenders 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 Company does
hereby authorize the same.
12.14 Further Assurances. Execute and deliver promptly after request
therefor by the Warehouse Agent all further instruments and documents, and take
all further action that may be necessary or desirable or that the Warehouse
Agent may reasonably request, in order to give effect to, and to aid in the
exercise and enforcement of, the rights and remedies of the Warehouse Agent and
the Lenders under this Agreement and the other Loan Documents.
12.15 Shareholder Changes. Promptly after any change in the ownership
of record of the voting stock of any Company (or, if known, the beneficial
ownership of such stock) which, together with any prior changes not reflected in
the most current version of SCHEDULE 12.15 furnished to the Warehouse Agent,
constitutes a change in ownership of five percent (5%) or more of MCAFC's
outstanding voting stock -- the version of SCHEDULE 12.15 that is attached to
this Agreement is a true and complete list of the holders of the voting stock of
MCAFC and of each other Company on the Effective Date, showing their names and
the number of shares held -- notify the Warehouse Agent in writing of such
change (and of any prior unreflected changes) and furnish to the Warehouse Agent
a revised SCHEDULE 12.15 reflecting the then-existing ownership structure;
provided that after the issuance of MCAFC common stock pursuant to an offering
registered under the Securities Act of 1933, as amended, a revised SCHEDULE
12.15 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.
13. 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
Companies have performed all of their other obligations hereunder, each Company
covenants and agrees that it will not, and will not permit any Subsidiary to:
13.1 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
Company (including from one Company to another Company), (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
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Preferred Stock, in each case pursuant to the dividend payment requirements
thereof as they exist on the Effective Date.
13.2 Stock Acquisition. Purchase, redeem, retire or otherwise acquire
any of the shares of its capital stock, or make any commitment to do so;
provided that shares owned by an officer of a Company 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 that Company 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 the Companies' capital stock owned by the Pension Fund, and rights
owned by the Pension Fund to acquire the Companies' capital stock, may be
acquired by the Companies as provided in the Enhancement Agreement, the
Companies' loan agreement with the Pension Fund for the Pension Fund's $15
million subordinated debt facility for the Companies and related agreements.
13.3 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.
13.4 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 Warehouse Agent, in its sole discretion,
(c) existing indebtedness to the extent set forth on SCHEDULE 13.4, (d) trade
indebtedness incurred and paid in the ordinary course of business, (e)
contingent indebtedness to the extent permitted by SECTION 13.6, (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.
13.5 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 or acquisition of residential mortgage
loans, (b) providing a mortgage loan warehouse line of credit to a third person
in the ordinary course of the relevant Company's business, (c) travel expenses,
(d) commissions payable to sales representatives, (e) a Company'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
Company has a general partner interest or by Detroit Revitalization, Inc.
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13.6 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 and the servicing and residuals credit facilities
that are listed on the schedule of the Companies' existing liens attached as
SCHEDULE 13.6 or (3) the Loan and Financing Agreement dated July 18, 1996
between the Pension Fund, as the lender, and the Companies, as coborrowers
jointly and severally liable thereunder, described in SCHEDULE 13.4; or
(iii) in connection with the maintenance of escrow accounts for
mortgages serviced by a Company;
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.
13.7 Subordinate Indebtedness. Subordinate any indebtedness due to it
from a Person to indebtedness of other creditors of that Person.
13.8 Property Transfer; Merger or Lease-Back. (a) During any fiscal
year, 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 that
nothing in this SECTION 13.8 shall prevent (i) the merger of one Subsidiary
(including a Company) with or into any other Subsidiary or Company 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).
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13.9 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
Company or Subsidiary is engaged on the date of this Agreement.
13.10 Acquire Securities. Purchase (except as permitted by SECTION
13.2) 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 Company
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 Company
shall inadvertently purchase or otherwise become the beneficial holder of any
stock or securities in violation of this covenant, that will not constitute an
Event of Default unless such Company shall fail or refuse to divest itself
thereof on or before thirty (30) days after first becoming aware of such
violation.
13.11 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.
13.12 Pension Plans. (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 Company or any Subsidiary to the PBGC which, in the opinion of
the Warehouse Agent, will have a Material Adverse Effect.
13.13 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 Company or Subsidiary than it would obtain in a
comparable arm's length transaction with a Person not an Affiliate or
shareholder of such Company or Subsidiary, (b) as set forth on SCHEDULE 13.13 or
(c) as otherwise contemplated in clause (i) of the proviso set forth in SECTION
13.8; provided that if a Company 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 each affected
Company shall fail or refuse to cure such violation (and all of its material
effects) to the Warehouse Agent's satisfaction on or before thirty (30) days
after first becoming aware of such violation.
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13.14 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 GNMA, FNMA,
FHLMC or any other investor for whom any Company services residential mortgage
loans.
13.15 Misrepresentation. Furnish the Warehouse Agent or any Warehouse
Lender 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.
14. EVENTS OF DEFAULT; REMEDIES; APPLICATION OF PROCEEDS
14.1 Events of Default. The occurrence of any of the following events
shall constitute an Event of Default:
(a) Failure to Pay Monies Due. If the Companies shall fail to
pay, when due, any principal or interest under any Revolving Credit Note or any
other Obligations owed under this Agreement or if any Company or Subsidiary
shall fail to pay, when due, any other indebtedness, obligation or liability
whatsoever to the Lenders or the Warehouse Agent under the Loan Documents, and
in the case of (a) any failure to pay interest under the Revolving Credit Notes
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
Companies in connection with or contained in this Agreement, or if any financial
data or other information now or hereafter furnished to the Warehouse Agent or
any Lender by or on behalf of the Companies, shall prove to be false or
misleading in any material respect.
(c) Noncompliance with Loan Documents. If any Company 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 Notes or the Security
Agreement, which does not involve the failure to make a payment when due
specified in SECTION 14.1(a) and which is not cured within thirty (30) days
after the earlier of the date of notice to such Company by the Warehouse Agent
of such Default or the date the Warehouse Agent is notified, or should have been
notified pursuant to the Companies' obligation under SECTION 12.2(g), of such
Default; provided that there shall be no cure period with respect to any failure
to perform under, or comply with the provisions of, SECTIONS 12.2 (except
Section 12.2(g)), 12.6, 12.7, 12.8, 12.11 and 13.1 through 13.15.
(d) Event of Default under Servicing/Residuals Loan Agreement.
If any Event of Default (as therein defined) shall occur under the
Servicing/Residuals Loan Agreement.
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(e) Event of Default under Seasoned Warehouse Credit Agreement.
If any Event of Default (as therein defined) shall occur under the Seasoned
Warehouse Credit Agreement.
(f) Other Defaults. In respect of indebtedness to any Person
other than indebtedness to the Warehouse Lenders under the Warehouse Loan
Documents, the Servicing/Residuals Loan Agreement or the Seasoned Warehouse
Credit Agreement, if any Company or Subsidiary shall either (i) 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 (ii)
default 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 in observance or
performance results in acceleration by the holder thereof.
(g) Judgments. If there shall be rendered against any Company 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 Company or Subsidiary shall be issued
and levied in an action claiming One Hundred Thousand Dollars ($100,000) or more
and not released or appealed and bonded in an amount and manner satisfactory to
the Warehouse Agent within thirty (30) days after such issuance and levy.
(h) Business Suspension, Bankruptcy, Etc. If any Company or
Subsidiary shall voluntarily suspend transaction of its business; or if any
Company or Subsidiary shall not pay its debts as they mature, admit in writing
its inability to pay its debts as they mature or make a general assignment for
the benefit of creditors; or proceedings in bankruptcy, or for reorganization or
liquidation, of any Company or Subsidiary under any Debtor Law (i) shall be
commenced or consented to by any Company or Subsidiary, or (ii) shall be
involuntarily commenced against any Company or Subsidiary and shall not be
discharged within thirty (30) days of commencement; or a receiver, trustee or
custodian shall be appointed for any Company or Subsidiary or for any
substantial portion of their respective properties or assets.
(i) Change of Management or Ownership. If any Company or
twenty-five percent (25%) or more of any Company'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 12.12 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 judgment of the Warehouse Agent, the ability of such Company to carry on its
business as conducted before such change.
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(j) Material Adverse Change; Insecurity. If there shall have
occurred any other material adverse change in the business, operations,
properties, condition (financial or otherwise) or prospects of any Company, or
the Warehouse Agent shall otherwise reasonably deem the Lenders to be insecure
with regard to the prospects of having the Obligations repaid by the Borrowers
on a timely basis.
14.2 Automatic Termination and Acceleration. Upon the occurrence of
an Event of Default described in SECTION 14.1(h), the Warehouse Lenders'
Commitments shall automatically terminate and the Warehouse Notes and all of the
other Obligations shall automatically become immediately due and payable without
notice, presentment, demand or other requirements of any kind (all of which are
hereby expressly waived by the Companies) unless all of the Warehouse Lenders,
each acting in its sole discretion, shall otherwise agree in writing either
before or after such automatic event.
14.3 Acceleration for Other Default. At any time after any Event of
Default has occurred -- other than one of those described in SECTION 14.1(h),
each of which has the automatic effects described in SECTION 14.2 -- that has
not been declared in writing by the Warehouse Agent to have been cured or
waived, the Majority Warehouse Lenders, by written notice to the Companies
(which may be given by the Warehouse Agent), may electively (1) terminate the
Commitments -- in which event the obligation of the Warehouse Lenders to make
Warehouse Revolving Loans shall immediately terminate -- and/or (2) declare all
or any portion of the Warehouse Revolving Loans to be due and payable -- in
which event that portion of the Revolving Loans, both advanced and unpaid
principal and accrued and unpaid interest on it and all other outstanding
amounts, shall immediately be and become due and payable without notice,
presentment, demand or other requirements of any kind (all of which are hereby
expressly waived by the Companies).
14.4 Remedies; Remedies Are Cumulative . Upon any such automatic or
declared acceleration described or referred to in SECTION 14.2 or 14.3, unless
all of the Obligations which thereupon became due are immediately fully paid,
the Warehouse Agent 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 or under any other documents contemplated hereby or
for which provision is provided by law or in equity, including the right of the
Warehouse Agent to take possession and sell, lease or otherwise dispose of any
or all of the Collateral and the right of the Warehouse Agent or any of the
Warehouse Lenders to set off against the Obligations any amount owing by the
Warehouse Agent or that Lender to any Company and/or any property of any Company
in possession of the Warehouse Agent or that Lender (other than funds held in
escrow or custodial accounts maintained by a Company with Texas Commerce). The
Companies agree, upon request of the Warehouse Agent, to assemble the Collateral
and make it available to the Warehouse Agent at any place designated by the
Warehouse Agent which is reasonably convenient to the Warehouse Agent and the
Companies. 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,
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nor shall it be construed, to preclude the Warehouse Agent from pursuing any
other remedy for the recovery of any other sum to which the Warehouse Agent or
the Lenders may be or become entitled for the breach of this Agreement by the
Companies.
14.5 Agent and Lenders Not Liable; Waiver of Claims. Neither the
Warehouse Agent nor any of the Lenders shall incur any liability as a result of
the sale of the Collateral, or any part of it, at any private sale made in
compliance with applicable law and their respective obligations under the
Warehouse Loan Documents. The Companies hereby waive any claims they may have
against the Warehouse Agent or the Lenders arising by reason of the fact that
the price at which the Collateral may have been sold at such private sale was
less than the price that might have been obtained at a public sale, less than
the price that might have been obtained had the Collateral been sold pursuant to
a purchase commitment for it obtained by the Companies, or less than the
aggregate amount of the outstanding Revolving Loans and the unpaid interest
accrued on them, even if the Warehouse Agent accepts the first offer received
and does not offer the Collateral to more than one offeree.
14.6 Waiver of Possible Implied Obligations. The Companies waive any
right to require the Warehouse Agent or any Lender to (1) proceed against any
Person, (2) proceed against or exhaust any of the Collateral or pursue its
rights and remedies as against the Collateral in any particular order or (3)
pursue any other remedy in its power. Except to the extent, if any, required by
applicable Law, neither the Warehouse Agent nor any Warehouse Lender shall be
required to take any steps necessary to preserve any rights of the Companies
against holders of Mortgage Loans or Land Contracts or security interests prior
in lien to the Lien of any Lien instrument included in the Collateral, to
preserve rights against prior parties or to preserve rights against other
parties to servicing contracts.
14.7 Protective Advances. The Warehouse Agent and the Lenders may, but
shall not be obligated to, advance any sums or do any act or thing necessary to
uphold and enforce the Lien and priority of any Lien instrument included in the
Collateral or the security intended to be afforded by it, including payment of
delinquent taxes or assessments and insurance premiums, or to preserve or
reinstate any hedging arrangements or mechanisms. All advances, charges, costs
and expenses, including reasonable attorneys' fees and disbursements, incurred
or paid by the Warehouse Agent or any Lender in exercising any right, power or
remedy conferred by this Agreement or any of the other Loan Documents, or in its
enforcement, together with interest thereon, at the Base Rate plus one percent
(1%) per annum from the time of demand for its payment until ten (10) days
thereafter, and at the Past Due Rate from ten (10) days after demand until
repaid, shall become a part of principal balance outstanding under the Warehouse
Notes (Pro Rata with the respective principal balances of the Warehouse Notes at
the time of expenditure) and shall be secured by all security for the Warehouse
Notes.
14.8 Delay Not Waiver. No failure on the part of the Warehouse Agent
or any Lender to exercise, and no delay in exercising, any right, power or
remedy provided under any of the Loan Documents, at law or in equity, shall
operate as a waiver of it, nor shall any single or partial exercise
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by the Warehouse Agent or any Lender of any right, power or remedy provided
under any of the Loan Documents, at law or in equity, preclude any other or
further exercise of it or the exercise of any other right, power or remedy.
14.9 Application of Proceeds. All of the Obligations shall constitute
one loan secured by the Warehouse Agent's security interest (as agent and
Representative of the Warehouse Lenders) in the Collateral and by all other
security interests, mortgages, liens, claims and encumbrances now and from time
to time hereafter granted from the Companies to the Warehouse Agent (as agent
and Representative of the Lenders.) The proceeds of any sale or other
enforcement of the Lender Lien in all or any part of the Collateral shall be
applied by the Warehouse Agent:
First, to the payment of the costs and expenses of such sale or
enforcement, including reasonable compensation to the Warehouse Agent's counsel
and agents, and all expenses, liabilities and advances made or incurred by or on
behalf of the Warehouse Agent in connection therewith;
Second, to the payment of any accrued and unpaid fees and other amounts
due (other than principal and interest) under the Revolving Credit Notes
(including the Swing Line Note), this Agreement, the Security Agreement or the
other Loan Documents;
Third, to the payment of interest accrued and unpaid on the Revolving
Credit Notes (including the Swing Line Note), Pro Rata;
Fourth, to the payment of the outstanding principal balances of the
Revolving Credit Notes (including the Swing Line Note), Pro Rata -- at this
application level, collections from and proceeds of Collateral shall be applied
first to the repayment of Borrowings outstanding in the related Borrowing
Purpose Category (e.g., proceeds from the sale or other disposition of Land
Contracts Pledged to the Warehouse Agent shall be applied to Land Contracts
Borrowings until all Land Contracts Borrowings have been repaid) and any
remaining proceeds of that type of Collateral shall be applied to repay
outstanding Borrowings in other Borrowing Purpose Categories in the following
order:
- Wet Borrowings
- Repurchase Borrowings
- D/E Mortgage Loans Borrowings
- Land Contracts Borrowings
- High LTV Loans Borrowings
- Second Mortgage Loans Borrowings
- Construction Loans Borrowings
- Indirect Warehouse Borrowings
- Gestation Borrowings
- Other Borrowings
- -- and
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Finally, to the payment to the Borrowers, or to their successors or
assigns, or as a court of competent jurisdiction may direct, of the surplus, if
any, then remaining from such proceeds.
If the proceeds of any such sale are insufficient to cover the costs and
expenses of such sale, as aforesaid, and the payment in full of the Warehouse
Notes and the Obligations and all other amounts (if any) due under the Loan
Documents, then the Companies shall remain liable for any deficiency, and shall
be obligated to pay it without notice or demand.
14.10 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 Warehouse Agent from making demand,
without notice and with or without reason, for immediate payment of all or any
part of such Obligations at any time or times, whether or not a Default or an
Event of Default has occurred.
14.11 Marshaling. Each Company, 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.
14.12 Cure or Waiver. If:
(a) an Event of Default shall occur but subsequently the
required number of Lenders shall waive the rights of the Lenders and the
Warehouse Agent to exercise remedies on account of such Event of Default
(whether temporarily or permanently and whether conditionally or absolutely);
provided that neither the Lenders nor the Warehouse Agent shall have any
obligation to do so; and
(b) the Borrowers shall request in writing that the Warehouse
Agent declare such Event of Default to have been cured or waived;
then (but not otherwise) the Warehouse Agent shall make such declaration in
writing and shall deliver a copy of the declaration to the Borrowers and each
Lender.
15. RELATIONSHIPS AMONG THE AGENT AND THE LENDERS.
15.1 Agent's Duties. In its capacity as servicer of the Warehouse
Revolving Loans and until the Warehouse Revolving Loans are fully paid and
satisfied, the Warehouse Agent shall:
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(a) hold the Warehouse Loan Documents (other than the Warehouse
Notes, each of which shall be held by and belong solely to its payee) and the
Warehouse Collateral for the benefit of itself and each other Warehouse Lender,
and each Lender (including Texas Commerce) shall be deemed to have an interest
in the Loan Documents (other than the Warehouse Notes, as stated above) and in
the Lender Lien in and to the Collateral on any day in proportion to its Pro
Rata interest in the Warehouse Revolving Loans on that day;
(b) send timely bills to the Companies for accrued interest, the
Facility Fee and other sums due, receive all payments of principal, interest and
other sums on account of the Warehouse Revolving Loans or with respect to them
or the Commitments and remit them to the Lenders in accordance with the
provisions of SECTION 8.2;
(c) send the Warehouse Lenders copies of supplements and
amendments to SCHEDULE AI promptly after they are made;
(d) notify the Lenders of any election made by the Borrowers
pursuant to SECTION 8.3 to terminate or reduce the Warehouse Lenders'
Commitments.
(e) use reasonable diligence to obtain from the Companies and
promptly remit to each Lender that proportion of the Facility Fee received by
the Warehouse Agent that bears the same ratio to the total Facility Fee so
received as that Lender's Committed Sum for the relevant period bears to the
Aggregate Committed Sum for the same period and (ii) such Lender's Pro Rata
share of interest, principal and other sums received by the Warehouse Agent on
account of the Warehouse Revolving Loans or with respect to them, in accordance
with this Agreement;
(f) use reasonable diligence to recover from the Companies all
expenses incurred that are reimbursable by the Companies, and promptly remit to
each Lender its share (if any) thereof;
(g) enforce the terms of this Agreement, including, with the
approval or at the direction of the Majority Warehouse Lenders, the remedies
afforded the Lenders pursuant to SECTION 14.4; and
(h) hold all security interests ratably for itself as agent and
Representative of and on behalf of the Warehouse Lender(s).
15.2 Actions Requiring All Lenders' Consent. Without the written
consent or ratification of all Warehouse Lenders, the Warehouse Agent shall not:
(a) extend the due date or reduce the amount of any mandatory
principal payment.
(b) release any Lien held under the Loan Documents other than
in accordance with the Loan Documents.
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(c) waive, compromise or settle any claim against the Companies
or release any of them from any obligation or liability under the Warehouse Loan
Documents.
(d) agree to any change in the interest rate or fee provisions
- -- excluding the Warehouse Agent's Fee and the Custodian's Fee -- of this
Agreement.
(e) increase the Aggregate Committed Sum or increase the maximum
principal amount of the Warehouse Revolving Loans above the Aggregate Committed
Sum.
(f) change any Lender's Pro Rata share of the Warehouse
Revolving Loans other than in accordance with the express provisions of the
Warehouse Loan Documents.
(g) extend the Termination Date.
(h) change any provision of this Agreement that specifically
requires the approval of, or other action by, all Warehouse Lenders, including
(i) the provisions of this SECTION 15.2, (ii) the parenthetical in the first
sentence of SECTION 3.1 requiring all Warehouse Lenders' to elect in writing to
continue lending under this Agreement despite the existence of an uncured and
unwaived Default or Event of Default, (iii) the last clause of SECTION 14.2
requiring all Warehouse Lenders' written consent to override the automatic
acceleration of maturity of the Obligations and termination of the Warehouse
Lenders' Commitments after an Event of Default described in SECTION 14.1(H),
(iv) the last sentence of SECTION 15.17(A) requiring all Warehouse Lenders'
consent or ratification of any amendment to that Section (concerning
participations), (v) the proviso in the first sentence of SECTION 17.11
prohibiting the Companies' assignment or delegation of their rights, benefits or
duties hereunder without all Warehouse Lenders' consent or confirmation and (vi)
the last sentence of SECTION 17.19 requiring all Warehouse Lenders' execution of
a written instrument to modify or relinquish the jury trial waiver provisions of
that Section.
15.3 Actions Requiring Majority Lenders' Consent. Without the written
consent or ratification of the Majority Warehouse Lenders, the Warehouse Agent
shall not:
(a) notify the Borrowers that the Commitments are terminated or
that the maturity of all or any part of the Warehouse Revolving Loans has been
accelerated unless an Event of Default described in SECTION 14.1(H) has occurred
(in which event the Commitments shall automatically terminate and the maturity
of the Warehouse Revolving Loans shall be automatically accelerated and the
Warehouse Agent may so notify the Borrowers, but no such notice shall be
required for any purpose).
(b) exercise any of the remedies for default described in
SECTION 14.4.
(c) cause or permit any material change in the terms of any
affirmative or negative covenants in this Agreement.
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(d) cause or permit any material change in the eligibility
standards for Collateral hereunder, including approving any material increase in
the maximum principal amount thereof.
(e) make or consent to any materially adverse amendment,
modification or waiver of any of the terms, covenants, provisions or conditions
of the Loan Documents.
(f) waive any material default under the Loan Documents.
(g) materially change the definition of any type of Eligible
Collateral.
(h) materially change any date on which any payments by the
Companies are due under the Loan Documents.
(i) approve any Change of Control.
(j) approve any replacement for any Company's president and
chief executive officer or its chief operating officer or any reassignment of
such officers' principal duties, responsibilities or functions.
(k) amend any provision of this Agreement.
15.4 Agent's Discretionary Actions. Except as provided in SECTIONS
15.2 and 15.3, in its capacity as servicer and without seeking or obtaining the
consent of any of the other Warehouse Lenders (although it may elect to obtain
such consent before acting it if deems that desirable), the Warehouse Agent may:
(a) agree or consent to any change in the handling of the
Collateral which in the Warehouse Agent's reasonable judgment is unlikely to
have a Material Adverse Effect;
(b) release, reconvey or change, in whole or in part, any
Collateral or Lien which is required to be released or reconveyed in accordance
with the Loan Documents; and
(c) do or perform any act or thing which, in the Warehouse
Agent's reasonable judgment, is necessary or appropriate to enable the Warehouse
Agent to properly discharge and perform its duties under this Agreement and the
other Loan Documents, or which in its reasonable judgment is necessary or
appropriate to preserve or protect the validity, integrity or enforceability of
the Loan Documents, the Liens created by the Loan Documents, such Liens'
priority, the Collateral or the interest of the Lenders in them.
15.5 Lenders' Cooperation. The Lenders agree to cooperate among
themselves and with the Warehouse Agent and from time to time upon the Warehouse
Agent's request, to execute and deliver such papers as may be reasonably
necessary to enable the Warehouse Agent, in its capacities
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as agent, servicer and documents custodian, to effectively administer and
service the Revolving Loans and each Lender's Warehouse Note in the manner
contemplated by this Agreement.
15.6 Lenders' Sharing Arrangement. Each of the Lenders agrees that if
it should receive any amount (whether by voluntary payment, realization upon
security, the exercise of the right of set-off, or otherwise) which is
applicable to the payment of the principal of, or interest on, the Warehouse
Revolving Loans, or fees, of an amount that with respect to the related sum or
sums received (or receivable) by the other Lenders is in greater proportion than
that Lender's Pro Rata ownership of the Warehouse Revolving Loans, then such
Lender receiving such excess amount shall purchase from the other Lenders an
interest in the obligations of the Companies under this Agreement or any of the
Warehouse Loan Documents in such amount as shall result in a proportional
participation by all of the Warehouse Lenders in such excess amount; provided
that if all or any portion of such excess amount is thereafter recovered from
such Warehouse Lender, such purchase shall be rescinded, the purchase price
restored to the extent of such recovery and allocations of interest on and fees
(if any) related to such excess shall be equitably adjusted among the affected
Warehouse Lenders.
15.7 Lenders' Acknowledgment. Each Lender other than Texas Commerce
hereby acknowledges that Texas Commerce has made no representations or
warranties with respect to the Revolving Loans other than as expressly set forth
in this Agreement and that Texas Commerce shall have no responsibility (in its
capacity as a Warehouse Lender, the Warehouse Agent, the Custodian or in any
other capacity or role) for:
(a) the collectability of the Revolving Loans;
(b) the validity, enforceability or any legal effect of any of
the Loan Documents, any Collateral Papers or any insurance, bond or similar
device purportedly protecting any obligation to the Lenders or any Collateral;
or
(c) the financial condition of the Companies or any of their
Subsidiaries or Affiliates, the status, health or viability of any industry in
which any of them is involved, the prospects for repayment of the Revolving
Loans, the value of any Collateral (except for the Warehouse Agent's
calculations of the Borrowing Base as stated in its Borrowing Base Reports
issued to the Warehouse Lenders from time to time), the effectiveness of any of
the provisions of the Loan Documents (including the financial covenants, tests
and hedging requirements) or any aspect of their implementation or
administration at any time to reduce or control risks of any type, to produce
returns, profits, yields or spreads or to reduce or control losses or the
accuracy of any information supplied by or to be supplied in connection with any
of the Companies or any of their Subsidiaries or Affiliates, or otherwise with
respect to the Revolving Loans, any Collateral or any source of equity or other
financing for any of such companies.
15.8 Agent's Representations to Lenders. The Warehouse Agent hereby
represents and warrants to the Warehouse Lenders (other than itself) that:
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(a) the Warehouse Agent has delivered to each Lender true copies
of the originals of those Loan Documents which have been specifically requested
by that Lender; and
(b) the Warehouse Agent has no current actual knowledge that any
Event of Default has occurred and is continuing on the Effective Date of this
Agreement or on the date of any Swing Loan.
15.9 Agent's Duty of Care, Express Negligence Waiver and Release. At
all times until the Warehouse Revolving Loans have been paid in full, the
Warehouse Agent shall exercise the same degree of care in handling the Warehouse
Revolving Loans and the Collateral as Texas Commerce exercises with respect to
loans that are held solely by Texas Commerce for its own account, and the
Warehouse Agent, in its capacity as agent and servicer, shall have no
responsibility to the Lenders other than to exercise such standard of care and,
in any event, Texas Commerce shall have no liability with respect to any other
Warehouse Lender's Pro Rata interest in the Revolving Loans except for Texas
Commerce's own gross negligence or willful misconduct. Except in the case of its
own fraud, gross negligence or willful misconduct, neither the Warehouse Agent,
any Lender, nor any of their officers, directors, employees, attorneys or agents
shall be liable for any action taken or omitted to be taken by it or them under
this Agreement or any of the other Loan Documents reasonably believed by it or
them to be within the discretion or power conferred upon it or them by the Loan
Documents or be responsible for consequences of any error of judgment, THE
LENDERS EXPRESSLY INTENDING TO HEREBY WAIVE AND RELEASE ALL PRESENT AND FUTURE
CLAIMS AND RIGHTS AGAINST THE WAREHOUSE AGENT FOR DAMAGES OR INJURIES CAUSED BY
THE WAREHOUSE AGENT'S OWN SOLE OR CONCURRENT ORDINARY NEGLIGENCE AND THAT SUCH
WAIVER AND RELEASE BE BINDING UPON THE LENDERS AND THEIR SUCCESSORS, SUBROGEES
AND ASSIGNS. Except as otherwise specifically and expressly set forth in this
Agreement, the Warehouse Agent shall not be responsible in any manner to anyone
for the effectiveness, enforceability, genuineness, validity or due execution
(except by the Warehouse Agent) of this Agreement, any supplement, amendment or
restatement of it or of any other Loan Documents or for any representation,
warranty, document, certificate, report or statement made or furnished (except
by the Warehouse Agent) in, under or in connection with this Agreement or any of
the other Loan Documents or be under any obligation to anyone to ascertain or to
inquire as to the performance or observation of any of the terms, covenants or
conditions of this Agreement or of the other Loan Documents on the part of the
Companies or anyone else. Without limiting the generality of the foregoing
provisions of this Section, the Warehouse Agent, in its capacities as agent and
servicer and Collateral custodian, may seek and rely upon the advice of legal
counsel in taking or refraining from taking any action under any of the Loan
Documents or otherwise in respect of the Revolving Loans and the Collateral or
in dealing with any party to any of the Loan Documents or the Collateral, and
shall be fully protected in relying upon such advice.
15.10 Calculations of Shares of Principal and Other Sums. Except as
provided to the contrary in SECTION 7.3(A) ("Rate of Return Maintenance
Covenant"), SECTION 6.7 ("Warehouse Agent's Fee"), SECTION 7.8 ("Custodian's
Fee"), SECTION 14.9 ("Application of Proceeds") and SECTION 16 ("Reimbursement
of Expenses; Indemnity"), Texas Commerce's and each other Lender's
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respective shares of principal, interest and other sums received by the
Warehouse Agent on account of the Warehouse Revolving Loans or with respect to
them shall be calculated on the basis of each Lender's (including Texas
Commerce's) respective Pro Rata ownership interests in the Revolving Loans from
time to time.
15.11 Qualifications of the Warehouse Agent. The Warehouse Agent shall
at all times be a commercial bank or trust company organized and doing business
under the laws of the United States of America or any state, district or
territory of it authorized under such laws to exercise corporate trust powers,
having a combined capital and unimpaired surplus of at least One Hundred Million
Dollars ($100,000,000), having -- or if owned by a bank holding company, such
bank holding company having -- either (i) a rating of C or better by Thomson
Bank Watch, Inc. or (ii) a rating of either "A" or better by Standard & Poor's
Ratings Group or "A" or better by Moody's Investors Service, Inc. for its most
senior class of unsecured debt and subject to supervision or examination by any
federal, state, district or territorial Governmental Authority. If such
commercial bank or trust company publishes reports of conditions at least
annually, pursuant to law or to the requirements of its supervising or
examination Governmental Authority, then for the purposes of this Section, the
combined capital and unimpaired surplus of such commercial bank or trust company
shall be deemed to be its combined capital and unimpaired surplus as set forth
in its most recent report of condition so published. Notwithstanding the
foregoing, Residential Funding Corporation shall be eligible for selection and
service as successor or substitute Warehouse Agent. In case the Warehouse Agent
shall cease at any time to be eligible in accordance with the provisions of this
Section, the Warehouse Agent shall resign immediately in the manner and with the
effect hereinafter specified in this SECTION 15.
15.12 Resignation of the Warehouse Agent. The Warehouse Agent, or any
agent or agents hereafter appointed, at any time may resign by giving written
notice of resignation to the Borrowers and the Lenders and complying with the
applicable provisions of this SECTION 15. Upon receiving such notice of
resignation, a successor Agent shall be promptly appointed by all of the Lenders
- -- excluding for purposes of this Section a Lender that is then the Warehouse
Agent -- by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Agent and one copy to the successor Agent. No such
successor Agent shall be appointed that has not been approved in writing by the
Borrowers, which approval shall not unreasonably be conditioned, delayed or
withheld, unless an Event of Default has occurred that has not been declared in
writing by the Agent to have been cured or waived (in which event no such
Borrowers' approval shall be required).
15.13 Removal of the Warehouse Agent. If (a) the Warehouse Agent shall
cease to be eligible in accordance with the provisions of SECTION 15.11 and
shall fail to resign after written request by all of the Lenders other than the
Lender that is then the Warehouse Agent; (b) a receiver of the Warehouse Agent
or of its property shall be appointed or any Governmental Authority shall take
charge or control of the Warehouse Agent or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation or (c) the Warehouse
Agent shall be grossly negligent in the performance of its material duties and
obligations under this Agreement or the Security
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Agreement or engage in willful misconduct concerning any such material duties
and obligations, then, in any such case, upon the unanimous consent of all the
Lenders -- excluding for purposes of this Section a Lender that is then the
Warehouse Agent -- the Warehouse Agent may be removed and a successor Agent
appointed by written instrument, in duplicate, one copy of which shall be
delivered to the Warehouse Agent so removed and one copy to the successor Agent.
No such successor Agent shall be appointed that has not been approved in writing
by the Borrowers, which approval shall not unreasonably be conditioned, delayed
or withheld, unless an Event of Default has occurred that has not been declared
in writing by the Agent to have been cured or waived (in which event no such
Borrowers' approval shall be required).
15.14 Effective Date of Resignation or Removal. No resignation or
removal of the Warehouse Agent shall be effective until a successor agent is
appointed pursuant to the provisions of this SECTION 15 and has accepted the
appointment as provided in this SECTION 15.
15.15 Successor Agent. Any successor Agent appointed as provided in
this SECTION 15 shall execute and deliver to the Borrowers, the Lenders and its
predecessor Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the predecessor Agent shall become effective and such
successor Agent, without any further act, deed or conveyance, shall become
vested with all the rights and obligations of its predecessor, with like effect
as if originally named as the Warehouse Agent; provided that upon the written
request of the Borrowers, all of the Lenders or the successor Agent, the
Warehouse Agent ceasing to act shall execute and deliver (a) an instrument
transferring to such successor Agent all of the rights of the Warehouse Agent so
ceasing to act and (b) to such successor Agent such instruments as are necessary
to transfer the Collateral to such successor Agent (including assignments of all
Collateral or Loan Documents). Upon the request of any such successor Agent made
from time to time, the Borrowers shall execute any and all papers which the
successor Agent shall request or require to more fully and certainly vest in and
confirm to such successor Agent all such rights. No successor Agent shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor Agent shall be eligible under the provisions of SECTION 15.11.
15.16 Merger of the Warehouse Agent. Any Person into which the
Warehouse Agent may be merged or converted or with which it may be consolidated,
or any Person surviving or resulting from any merger, conversion or
consolidation to which the Warehouse Agent shall be a party or any Person
succeeding to the commercial banking business of the Warehouse Agent, shall be
the successor Agent without the execution or filing of any paper or any further
act on the part of any of the parties.
15.17 Participation; Assignment.
(a) Participations. Each Warehouse Lender reserves the rights,
with or without notice to the Companies, the Warehouse Agent or the other
Lenders, (i) to pledge any or all of its interests under this Agreement to a
Federal Reserve Bank, (ii) to assign or grant participations in some or all of
its interests under this Agreement in connection with any funding facility
pursuant to
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which such Warehouse Lender ordinarily obtains financing for similar lending
arrangements, provided that such Warehouse Lender remains obligated to perform
its obligations under this Agreement and, when no default on its part under such
funding facility has occurred and is continuing, retains the sole authority to
approve any amendment, modification or waiver of any Loan Documents and (iii) to
sell to any bank, savings and loan, savings bank, credit union, other deposit-
taking financial institution or commercial lending institution, participations
in such Lender's Warehouse Revolving Loans, Warehouse Note or Commitment.
Participants shall have no rights under the Loan Documents other than certain
voting rights as provided below. Each Lender shall be entitled to obtain (on
behalf of its participants) the benefits of this Agreement with respect to all
participants in its Warehouse Revolving Loans outstanding from time to time;
provided that the Companies shall not be obligated to pay any amount in excess
of the amount that would be due to such Warehouse Lender calculated as though no
participation had been made. No Warehouse Lender shall sell any participating
interest under which the participant shall have any rights to approve any
amendment, modification or waiver of any Loan Documents, except to the extent
such amendment, modification or waiver (i) extends the due date for payment of
any amount in respect of principal, interest or fees -- other than the Warehouse
Agent's fees and the Custodian's fees -- under the Loan Documents or (ii)
reduces the interest rate or the amount of principal or fees applicable to the
Revolving Loans (except such reductions as are contemplated by this Agreement).
In those cases (if any) where a Warehouse Lender grants rights to any of its
participants to approve amendments, modifications or waivers of any Warehouse
Loan Documents pursuant to the immediately preceding sentence, such Lender must
include a voting mechanism as to all such approval rights in the relevant
participation agreement(s) whereby a readily-determinable fraction of such
Lender's portion of the Warehouse Revolving Loans (whether held by such Lender
or participated) shall control the vote for all of such Lender's portion of the
Warehouse Revolving Loans; provided, that if no such voting mechanism is
provided for or is fully and immediately effective, then the vote of such Lender
itself shall be the vote for all of such Lender's portion of the Warehouse
Revolving Loans. Except in the case of the sale of a participating interest to a
Warehouse Lender, the relevant participation agreement shall not permit the
participant to transfer, pledge, assign, sell any subparticipation in or
otherwise alienate or encumber its participation interest in the Warehouse
Revolving Loans. Each Lender agrees to (i) notify the Warehouse Agent whenever
such Lender intends to sell any participation interest (and when any
participation sold is redeemed), (ii) coordinate and cooperate with the
Warehouse Agent and the other Lenders to prevent exceeding such limitation on
assignments of participations and (ii) not assign any participation interest
without reserving the absolute right to repurchase the participation sold for an
amount not to exceed par plus accrued interest and the participant's unpaid
allocable share (if any) of fees earned, plus reimbursement of reasonable
expenses (including reasonable attorneys' fees) incurred by the participant in
connection therewith. Any purported amendment of this Section without the
written consent or ratification of all of the Warehouse Lenders and the
Warehouse Agent shall be ineffective.
(b) Assignments. Each Lender may assign any or all of its rights
and obligations under the Warehouse Loan Documents to any "ELIGIBLE ASSIGNEE" --
which means (a) a commercial bank having total assets in excess of One Billion
Dollars ($1,000,000,000) or (b) a finance company, insurance company or other
financial institution or fund, acceptable to the Warehouse Agent, that
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is regularly engaged in making, purchasing or investing in loans and has total
assets in excess of One Billion Dollars ($1,000,000,000), in each case with the
consent of the Warehouse Agent and the Borrowers (which consent shall not be
unreasonably withheld or delayed); provided that (1) no such assignment shall
result in a Warehouse Lender's having an aggregate Committed Sum of less than
Five Million Dollars ($5,000,000), (2) neither the Borrowers nor the Warehouse
Agent shall have any obligation to consent to there being more than a total of
ten (10) Lenders (a participant under a participation sold in conformity with
the provisions of SECTION 15.17(A) is not a Lender), and (3) each such
assignment shall be substantially in the form of EXHIBIT K, with the assignor to
exchange its Warehouse Note for a new Warehouse Note and the Eligible Assignee
to receive a new Warehouse Note and with the assignor to have no further right
or obligation with respect to the rights and obligations assigned to and assumed
by the Eligible Assignee (except that none of the assignor's rights under
SECTION 2.3, 7.3 OR 16 shall thereby be (i) assigned unless specifically
described in such assignment, or (ii) diminished or impaired.) The Companies
agree to cooperate with the prompt execution and delivery of documents
reasonably necessary to such assignment process, including the issuance of new
Warehouse Note(s) to the assignor (if retaining an interest hereunder) and the
Eligible Assignee immediately upon delivery to the Borrowers of the assignor's
Warehouse Note(s). Upon such assignment, the assignee shall be a Lender for all
purposes under this Agreement and the other Warehouse Loan Documents, if the
assignment is an assignment of all of the assignor's interest in the Warehouse
Revolving Loans and their security, the assignor shall be automatically released
from all of its obligations and liabilities hereunder, and, whether it is such
an assignment of the assignor's entire interest or only a partial assignment,
the Committed Sums shall be adjusted appropriately, and the parties agree to
approve in writing revised and updated versions of SCHEDULE LC.
(c) Foreign Lender. If any interest in this Agreement is
transferred to any Person that is organized under the legal requirements of any
jurisdiction other than the United States of America or any State thereof, the
transferor Lender shall cause such Person, concurrently with the effectiveness
of such transfer, (i) to represent to the transferor Lender (for the benefit of
the transferor Lender, the Warehouse Agent and the Borrowers) that under
applicable laws no taxes will be required to be withheld by the Warehouse Agent,
the Borrowers or the transferor Lender with respect to any payments to be made
to such Person under this Agreement, (ii) to furnish to each of the transferor
Lender, the Warehouse Agent and the Companies two duly completed copies of
either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service
Form 1001 (wherein such Person claims entitlement to complete exemption from
U.S. federal withholding tax on all interest payments hereunder) and (iii) to
agree (for the benefit of the transferor Lender, the Warehouse Agent and the
Companies) to provide the transferor Lender, the Warehouse Agent and the
Companies a new Form 4224 or Form 1001 upon the obsolescence of any previously
delivered form and comparable statements in accordance with applicable United
States laws and regulations and amendments duly executed and completed by such
Person and to comply from time to time with all applicable legal requirements
with regard to such withholding tax exemption.
(d) No Cost to Borrowers. The Borrowers shall not be required to
incur any cost or expense incident to any sale to a Person of any interest in
the Warehouse Revolving Loans
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pursuant to this Section and all such costs and expenses shall be for the
account of either (i) the Lender selling its rights in the Warehouse Revolving
Loans to such Person or (ii) such Person.
15.18 Beneficiaries of this Section. Other than the provisions of
SECTIONS 15.17 and 15.11 which are also intended to bind, benefit and be
enforceable by and against the Borrowers, this SECTION 15 is intended to bind
and benefit only the Warehouse Agent, Texas Commerce and the other Lenders, and
does not benefit and shall not be enforceable by the Companies or any other
Person whatsoever.
16. REIMBURSEMENT OF EXPENSES; INDEMNITY.
16.1 Pay Negotiation and Administration Costs. The Companies agree to
pay all of the Warehouse Agent's, and up to Five Hundred Dollars ($500) of each
Warehouse Lender's, out-of-pocket costs and expenses, including reasonable
attorneys' fees, in connection with the negotiation, documentation and
administration of this Agreement, the Warehouse Notes, the Warehouse Security
Agreement and other Warehouse Loan Documents and the making and repayment of the
Warehouse Revolving Loans and the payment of interest thereon.
16.2 Pay Certain Taxes. The Companies agree to pay, and hold the
Warehouse Agent, the Lenders and any other owners or holders of any of the
Warehouse Notes harmless from and against, any and all present and future stamp,
documentary and other similar taxes (excluding income and franchise taxes of the
United States and its political subdivisions) with respect to the foregoing
matters and save them each harmless from and against any and all liabilities
with respect to or resulting from any delay or omission to pay such taxes.
16.3 Expenses; Indemnification. Each Company agrees that, upon demand,
it will pay, or reimburse the Warehouse Agent and each Lender for, all costs and
expenses incurred by the Warehouse Agent or such Lender in connection with (i)
collecting or attempting to collect the Obligations or any part thereof, (ii)
maintaining or defending the security interests or liens (or the priority
thereof) of the Warehouse Agent (as agent and Representative of the Warehouse
Lenders), (iii) the enforcement of the Warehouse Agent's and the Lenders' 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 the payments made by
the Warehouse Agent and the Lenders 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
Warehouse Agent and the Lenders incurred in connection with any of the
foregoing. The Companies also jointly and severally agree to indemnify, pay,
defend and hold harmless the
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Warehouse Agent, each Lender, each subsequent owner or holder of any of the
Warehouse Notes and any of their respective officers, directors, employees or
agents (the "INDEMNIFIED PARTIES") from and against the "INDEMNIFIED
LIABILITIES", which means any and all claims, liabilities, obligations, losses,
damages, penalties, judgments, suits, costs, expenses and disbursements
(including reasonable attorneys' fees and disbursements) of any kind whatsoever
which may be imposed upon, incurred by or asserted against any of the
Indemnified Parties in any way relating to or arising out of any of the Loan
Documents or any of the transactions contemplated thereby to the extent that any
such Indemnified Liabilities result (directly or indirectly) from any claims
made, or any actions, suits or proceedings commenced or threatened, by or on
behalf of any creditor (excluding any of the Indemnified Parties), security
holder, shareholder, customer (including any Person having any dealings of any
kind with the Companies), trustee, conservator, receiver, director, officer,
employee and/or agent of the Companies acting in such capacity, the Companies or
any Governmental Authority (excluding the Federal Reserve Board, the Federal
Deposit Insurance Corporation, the Comptroller of the Currency and any other
banking regulatory body or authority having jurisdiction over the Warehouse
Agent or any Lender that is a bank) or any other Person; provided that to the
extent, if any, that any of such claims, liabilities, etc. is caused by any
Indemnified Party's gross negligence or willful misconduct, the indemnity
payable to that Indemnified Party shall be equitably and proportionately
reduced, ALTHOUGH TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, SUCH
INDEMNITY SHALL NOT BE REDUCED ON ACCOUNT OF SUCH CLAIMS, LIABILITIES, ETC.
BEING CAUSED OR CONTRIBUTED TO BY ANY INDEMNIFIED PARTY'S SOLE OR CONCURRENT
ORDINARY NEGLIGENCE THAT DOES NOT AMOUNT TO GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, IT BEING THE COMPANIES' INTENTION TO HEREBY INDEMNIFY THE
INDEMNIFIED PARTIES AGAINST THEIR OWN SOLE OR CONCURRENT ORDINARY NEGLIGENCE.
17. MISCELLANEOUS
17.1 Items to Be Satisfactory to the Warehouse Agent. All items
required by this Agreement or the Warehouse Security Agreement to be delivered
to the Warehouse Agent or the Custodian shall be in form and content
satisfactory to the Warehouse Agent or the Custodian (as applicable) and the
Warehouse Agent or the Custodian may reject any of them that do not meet the
requirements of this Agreement.
17.2 Usury Not Intended; Credit or Refund of Any Excess Payments. It
is the intent of the Companies, the Warehouse Agent, the Custodian and the
Warehouse Lenders 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 any of the Warehouse
Notes is accelerated by reason of any election of the Majority
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Warehouse Lenders resulting from any Event of Default, or in the event of any
required or permitted prepayment, then such consideration that constitutes
interest may never include more than the Maximum Amount, 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 such 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 WAREHOUSE
NOTES AND THE OTHER LOAN DOCUMENTS THAT MAY BE IN APPARENT CONFLICT HEREWITH. In
the event the Warehouse Agent or any of the Lenders 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 holders of the Warehouse Notes, credited against the unpaid principal of the
Warehouse Notes) upon such determination, and, to the extent permitted by
applicable law, the Warehouse Agent and the Lenders shall not be subject to any
penalties provided by any legal requirement 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 legal requirements, the Borrowers and the Warehouse Agent and the
Lenders shall (a) characterize any non-principal payment as an expense, fee or
premium rather than as interest, (b) exclude voluntary prepayments and their
effects and (c) "spread" the total amount of interest throughout the entire
contemplated term of the Warehouse Notes, and interest owing on such Warehouse
Notes so that the interest rate is uniform throughout their entire term.
17.3 Independent Rights. No single or partial exercise of any right,
power or privilege hereunder, or any delay in the exercise thereof, shall
preclude any other or further exercise of the rights of the parties to this
Agreement.
17.4 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.
17.5 Relationship of the Parties. This Agreement provides for the
making of Warehouse Revolving Loans by the Warehouse Lenders (through the
Warehouse Agent) in their capacities as lenders, to the Borrowers, each as a
borrower, and for the payment of interest and repayment of principal by the
Companies to the Lenders (through the Warehouse Agent). The relationship between
(a) the Lenders and the Warehouse Agent and (b) the Companies is limited to that
of creditor and secured party, on the one hand, and debtors, on the other hand.
The provisions in this Agreement and the other Loan Documents for compliance
with financial covenants and delivery of financial statements are intended
solely for the benefit of the Lenders and the Warehouse Agent to protect their
interests as lenders and lenders' agent, respectively, in assuring payment of
interest and repayment of principal, and nothing contained in this Agreement or
any of the other Loan Documents shall be construed as permitting or obligating
any Lender or the Warehouse Agent to act as a financial or business advisor or
consultant to the Borrowers, as permitting or obligating any Lender or the
Warehouse Agent to control the Borrowers or to conduct the Borrowers'
operations, as
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creating any fiduciary obligation on the part of any Lender or the Warehouse
Agent to the Borrowers, or as creating any joint venture, agency, or other
relationship between or among any of the parties other than as explicitly and
specifically stated in this Agreement. The Companies acknowledge that they have
had the opportunity to obtain the advice of experienced counsel of their own
choosing in connection with the negotiation and execution of this Agreement and
the other Loan Documents and to obtain the advice of such counsel with respect
to all matters contained in the Loan Documents including the provision for
waiver of trial by jury. The Companies further acknowledge that they are
experienced with respect to financial and credit matters and have made their own
independent decisions to apply to the Lenders for credit and to execute and
deliver this Agreement and the other Loan Documents.
17.6 No Waiver. No forbearance on the part of the Warehouse Agent in
enforcing any of the Lenders' (or the Warehouse Agent's) rights under this
Agreement, nor any renewal, extension or rearrangement of any payment or
covenant to be made or performed by any Company hereunder, shall constitute a
waiver of any of the terms of this Agreement or of any such right. Warehouse
Agent may remedy any default without waiving the default remedied. No Default or
Event of Default shall be waived by the Warehouse Agent or the Lenders except in
a writing signed and delivered by a Vice President or more senior officer of the
Warehouse Agent. No waiver of any Default or Event of Default shall be deemed to
be a waiver of any other Default or Event of Default or of the same Default or
Event of Default on a future occasion. No failure to exercise or delay in
exercising any power or right under any Loan Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No course of dealing between the Companies and the Warehouse
Agent or any of the Lenders shall operate as a waiver of any rights of the
Warehouse Agent or any of the Lenders. No amendment, modification or waiver of
any provision of any Loan Documents nor consent to any departure therefrom shall
be effective unless it is in writing and signed and delivered by a Vice
President or more senior officer of the Warehouse Agent, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. Except as otherwise specifically provided in this
Agreement, no notice to or demand on the Companies or any other Person shall
entitle the Companies or any other Person to any other or further notice or
demand in similar or other circumstances.
17.7 Governing Law, Jurisdiction and Venue. THIS AGREEMENT, THE
WAREHOUSE NOTES AND THE OTHER WAREHOUSE LOAN DOCUMENTS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (WITHOUT REFERENCE
TO ITS CONFLICTS OF LAWS PRINCIPLES) AND THE UNITED STATES OF AMERICA FROM TIME
TO TIME IN EFFECT. The Companies, the Warehouse Agent and the Lenders each
hereby irrevocably submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of Texas, Houston Division, and the
state district courts of Texas for purposes of all legal proceedings arising out
of or relating to the Loan Documents and all related transactions; except that
the Lenders do not submit themselves to the jurisdiction of the state district
courts of Texas in any suit first filed by Companies, or any of them. To the
fullest extent permitted by applicable law, Companies, the Warehouse Agent and
the Lenders each irrevocably
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waives any objection that he, she or it may now or hereafter have to the laying
of venue for any such proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in an inconvenient
forum and agrees that service of process may be made upon him, her or it in any
such proceeding by registered or certified mail; except that the Lenders do not
waive such objections with regard to any suit first filed by Companies, or any
of them. Harris County, Texas shall be a proper place of venue for suit hereon.
Nothing herein shall affect any applicable right of any party at any time to
initiate any suit in the United States District Court for the Southern District
of Texas, Houston Division, or to remove any pending suit to that Court. Nothing
herein shall affect the right of the Warehouse Agent or any Lender to accomplish
service of process in any manner permitted by applicable law or the right of the
Warehouse Agent to commence legal proceedings or otherwise proceed against the
Companies in any other jurisdiction or court.
17.8 Severability. 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.
17.9 Survival of Warranties, Etc. All of Companies' 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 Warehouse Notes hereunder, shall be deemed republished by
Companies on the date of each Request for a Revolving Loan and again on the date
that each Borrowing is funded, and shall be deemed to have been relied upon by
the Warehouse Agent and the Lenders, notwithstanding any investigation
heretofore or hereafter made by the Warehouse Agent or any Lender. All
statements contained in any certificate or other document delivered to the
Warehouse Agent or any Lender at any time by or on behalf of any Borrower
pursuant hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by Companies in connection with this
Agreement.
17.10 Payments on Saturdays, Etc. Whenever any payment to be made
hereunder shall be stated to be due on a Saturday, a 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.
17.11 Terms Binding Upon Successors; Survival of Representations. The
terms and provisions of this Agreement shall bind and benefit the parties hereto
and their respective permitted successors and assigns; provided that Companies
may not assign or delegate any of their rights, benefits or duties under any
part of this Agreement or any of the other Warehouse Loan Documents, and any
attempted assignment made without the written consent or written confirmation of
all the Lenders shall be void. All representations, warranties, covenants and
agreements herein contained on the part of the Companies shall survive the
making of any Revolving Loan and the execution of the Revolving Credit Notes and
shall be effective so long as the Commitments are outstanding or any obligation
of the Borrowers hereunder or under the Revolving Credit Notes or any of the
other Loan Documents remains to be paid or performed.
88
<PAGE> 104
17.12 Disclosure of Information. Companies authorize the Warehouse
Agent and the Lenders to disclose to any Lender's participant or Eligible
Assignee (a "TRANSFEREE"), and to any prospective Transferee, any and all
financial and other information in the Warehouse Agent's or any Lender's
possession concerning any Company pursuant to this Agreement or the other Loan
Documents or which has been received by the Warehouse Agent or any Lender in
connection with its credit evaluation of Companies before or after entering into
this Agreement.
17.13 Maintenance of Records. Each Company will keep all of its records
concerning its business operations and accounting at its principal place of
business. Each Company will give the Warehouse Agent prompt written notice of
any change in its principal place of business, or in the location of its
records.
17.14 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 fax,
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 Companies, to:
MCA Financial Corp.
23999 Northwestern Hwy, Suite 230
Southfield, Michigan 48075
Attention: Mr. Keith D. Pietila
Phone: (248) 358-5555
Fax: (248) 358-7507
(2) if to the Warehouse Agent 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
Phone: (713) 216-5382
Fax: (713) 216-2082
89
<PAGE> 105
(iii) if to Residential Funding Corporation to:
Residential Funding Corporation
4800 Montgomery Lane, Suite 300
Bethesda, Maryland 20814
Attention: Ms. Barbara Repetti
Phone: (301) 215-6206
Fax: (310) 215-6288
(iv) if to Guaranty Federal Bank, F.S.B. to:
Guaranty Federal Bank, F.S.B.
8333 Douglas Avenue
Dallas, Texas 75225
Attention: Mr. Gregory S. Leftwich
Phone: (214) 360-1684
Fax: (214) 360-1660
(v) if to Bank One, Texas, N.A. to:
Bank One, Texas, N.A.
1717 Main Street, 3rd Floor
Dallas, Texas 75201
Attention: Mr. Brian Hilberth
Phone: (214) 290-3162
Fax: (214) 290-2054
(vi) if to The Bank of New York to:
The Bank of New York
17th Floor, One Wall Street
New York, New York 10286
Attention: Patricia Dominus
Phone: (212) 635-6467
Fax: (212) 634-6468
90
<PAGE> 106
(vi) if to LaSalle National Bank to:
LaSalle National Bank
135 South LaSalle Street, Suite 309
Chicago, Illinois 60603
Attention: Mr. Gary Timmerman
Phone: (312) 904-5230
Fax: (312) 904-2903
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 Warehouse Agent shall take any action described in any notice
shall conclusively be deemed reasonable for all purposes; provided that this
shall not be deemed to require the Warehouse Agent to give three (3) days'
notice or any notice if not specifically required in this Agreement.
17.15 Counterpart Execution; Amendments. This Agreement may be executed
in one or more counterparts, each of which when so executed shall be deemed to
be an original, but all of which when taken together shall constitute one and
the same instrument. This Agreement may not be amended, modified or supplemented
unless such amendment, modification or supplement is set forth in a writing
signed by the Companies, the Agent and such of the Warehouse Lenders whose
consent or approval is required by the applicable provisions of SECTIONS 15.2
through 15.4. EXHIBIT L is a form that may be modified appropriately for use for
amendments hereto.
17.16 Integration. This Agreement and the other Loan Documents embody
the entire agreement and understanding among the Borrowers, the Lenders and the
Warehouse Agent, and supersede all prior agreements and understanding, relating
to the subject matter hereof.
17.17 General Purpose of Loan. Each Borrower warrants and represents to
the Warehouse Agent, Lenders and all other future owners and holders of the
Warehouse Notes that all Warehouse Revolving Loans are and will be for business,
commercial, investment or other similar purpose and not primarily for personal,
family, household or agricultural use, as such terms are used in Chapter 1D or
in the Texas Finance Code.
17.18 Limitation of Liability. NEITHER THE LENDERS, THE WAREHOUSE AGENT
NOR ANY OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, AGENTS, ATTORNEYS
OR EMPLOYEES (COLLECTIVELY, THE "LENDERS, 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 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 COMPANIES DO
HEREBY RELEASE THE LENDERS, ET AL FROM ALL LIABILITY THAT MAY BE CAUSED BY THE
SOLE OR CONCURRENT ORDINARY NEGLIGENCE OF THE LENDERS, ET AL (OR ANY OF THEM)
AND FROM ALL LIABILITY THAT DOES NOT RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE LENDERS, ET AL, BUT FOR WHICH THE LENDERS, ET AL COULD BE HELD
- -- BUT
91
<PAGE> 107
FOR THIS PROVISION -- TO BE STRICTLY LIABLE. NO CLAIM MAY BE MADE BY ANY COMPANY
OR ANY OF THEIR AFFILIATES AGAINST THE LENDERS, 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 COMPANIES' 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 LENDERS, ET AL. EACH
COMPANY 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.
17.19 WAIVER OF JURY TRIAL. EACH OF THE LENDERS, THE WAREHOUSE AGENT
AND THE COMPANIES, AFTER CONSULTING WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY (i) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY A JURY, AND (ii) WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO
THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST, IN ANY LITIGATION
BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY WAREHOUSE 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 LENDERS, THE WAREHOUSE AGENT NOR ANY COMPANY 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. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN
BY THE COMPANIES, THE WAREHOUSE AGENT AND EACH LENDER, AND THIS WAIVER IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT OF A JURY TRIAL WOULD OTHERWISE ACCRUE. THE WAREHOUSE AGENT IS HEREBY
AUTHORIZED AND REQUESTED TO SUBMIT THIS AGREEMENT TO ANY COURT HAVING
JURISDICTION OVER THE SUBJECT MATTER AND THE PARTIES HERETO, SO AS TO SERVE AS
CONCLUSIVE EVIDENCE OF THE FOREGOING WAIVER OF THE RIGHT TO JURY TRIAL. FURTHER,
EACH COMPANY HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF ANY OF THE
LENDERS OR THE WAREHOUSE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO ANY
SHAREHOLDER, DIRECTOR, OFFICER, AGENT OR REPRESENTATIVE OF ANY OF THEM THAT THE
WAREHOUSE AGENT OR THE LENDERS WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY TRIAL PROVISION. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED
IN ANY RESPECT OR RELINQUISHED BY THE LENDERS, THE WAREHOUSE AGENT OR THE
COMPANIES EXCEPT BY A WRITTEN INSTRUMENT SPECIFICALLY SO MODIFYING OR
RELINQUISHING SPECIFIC PROVISIONS HEREOF, EXECUTED BY ALL OF THEM.
17.20 Notice Pursuant to Tex. Bus. & Comm. Code Section 26.02. THIS
AGREEMENT AND THE OTHER WAREHOUSE LOAN DOCUMENTS TOGETHER CONSTITUTE A WRITTEN
LOAN AGREEMENT WHICH 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.
[The remainder of this page is intentionally blank.]
92
<PAGE> 108
EXECUTED as of the Effective Date.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION,
formerly known as Mortgage
Corporation of America
By: Keith D. Pietila By: Lee P. Wells
-------------------------- ---------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
------------------------ -------------------------
Title:EVP Title: PRESIDENT
----------------------- ------------------------
MORTGAGE CORPORATION OF TEXAS COMMERCE BANK NATIONAL
AMERICA, formerly known as First ASSOCIATION, as a Lender and as the
American Mortgage Associates, Inc. Agent
By: Keith D. Pietila By: Pamela E. Skinner
-------------------------- ---------------------------
Name: KEITH D. PIETILA Name: PAMELA E. SKINNER
------------------------ -------------------------
Title: VP Title: VICE PRESIDENT
----------------------- -------------------------
(Wire instructions for the Companies)
Texas Commerce Bank National Association
- ----------------------------------
- ----------------------------------
ABA No.: 113000609
-------------------------
Attention:
------------------------
For credit account: 00100380279 (MCA Operating Account)
---------------
Unnumbered counterpart signature page for
10/97 Senior Secured Warehouse Credit Agreement
<PAGE> 109
RESIDENTIAL FUNDING CORPORATION, GUARANTY FEDERAL BANK, F.S.B.,
as a Lender as a Lender
By: Barbara Repetti By: James B. Clapp
------------------------------ ------------------------------
Name: BARBARA REPETTI Name: JAMES B. CLAPP
---------------------------- ----------------------------
Title: DIRECTOR Title: ASSISTANT VICE PRESIDENT
--------------------------- ---------------------------
BANK ONE, TEXAS, N.A., THE BANK OF NEW YORK,
as a Lender as a Lender
By: Brian Hilberth By: Patricia M. Dominus
------------------------------ ------------------------------
Name: BRIAN HILBERTH Name: PATRICIA M. DOMINUS
---------------------------- ----------------------------
Title: VICE PRESIDENT Title: VICE PRESIDENT
--------------------------- ---------------------------
LASALLE NATIONAL BANK,
as a Lender
By: Gary D. Timmerman
------------------------------
Name: GARY D. TIMMERMAN
----------------------------
Title: FIRST VICE PRESIDENT
---------------------------
Unnumbered counterpart signature page for
10/97 Senior Secured Warehouse Credit Agreement
<PAGE> 110
MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio
corporation, joins the other Companies, the Warehouse Agent and the Warehouse
Lenders in executing this Agreement for the purposes of making the agreements
stated in SECTION 2 of this Agreement.
(address)
23999 Northwestern Highway, Suite 230
Southfield, MI 48075 MORTGAGE CORPORATION OF
Attn: Lee P. Wells AMERICA, INC.
Tel: (810) 358-5555
Fax: (810) 358-7507
By: Lee P. Wells
-------------------------
(Wire Instructions) Lee P. Wells
Texas Commerce Bank Title: President
- ---------------------------------------- ----------------------
National Association
- ----------------------------------------
ABA No. 113000609
---------------------------------
Attention:
------------------------------
For Credit Account: 00100380279 (MCA Operating Account)
---------------------
<PAGE> 111
Attachments:
<TABLE>
<CAPTION>
Exhibits:
- ----------
<S> <C>
A - Collateral Conversion Notice form
B - Release Request form
C - Request for Advance form
D - Submission List form
E-1 - form for Warehouse Notes other than the Swing Line Note
E-2 - form for the Swing Line Note
F - Take-out Report form
G-1 - Warehouse Security Agreement form
G-2 - UCC-1 Financing Statement form
H - Opinion of Borrowers' Counsel form
I-1 - Disbursement Request Certificate - for refinancing Eligible Warehouse Collateral
I-2 - Disbursement Request Certificate - for financing new Eligible Warehouse Collateral
I-3 - Disbursement Request Certificate - for supplemental Borrowing
J - Warehouse Collateral Certificate form
K - Assignment and Assumption Agreement form
L - Amendment form
Schedules:
- ----------
AG - Applicable Guidelines
AI - Approved Investors
BB - Borrowing Base Calculations
CP - Collateral Procedures
LC - the Lenders' Committed Sums and Funding Share Fractions
2.3 - terms of the Companies' liability for Borrowings by other Companies
11.1 - Subsidiaries
11.4 - Litigation and Judgments
12.2(d) - Management Report
12.12 - Senior Management
12.15 - Shareholders
13.4 - Existing indebtedness
13.6 - Existing Liens
13.13 - Affiliate Transactions
</TABLE>
<PAGE> 112
EXHIBIT A
COLLATERAL CONVERSION NOTICE
WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199___
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
================================================================================
This notice is delivered pursuant to SECTION 10.2(C) of the 10/97
Senior Secured Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, Texas Commerce Bank National Association ("TEXAS COMMERCE"), as a
lender and as agent (the "WAREHOUSE AGENT") for the other lenders party thereto,
and the other lenders party thereto (including Texas Commerce, the "WAREHOUSE
LENDERS"). Terms defined in the Warehouse Credit Agreement have the same
meanings when used -- unless otherwise defined -- in this notice.
The Companies hereby notify the Warehouse Agent that (a) the Custodian
has issued its initial certification for inclusion of the Eligible Mortgage
Loans described on the attached ANNEX A in one or more Mortgage Pools and (b)
the Companies are delivering to the Warehouse Agent one or more valid and
enforceable Take-out Commitments that comply with PART C on SCHEDULE EC to the
Warehouse Credit Agreement for those Eligible Mortgage Loans.
On and as of the date of this notice, the Companies certify, represent
and warrant to the Warehouse Agent and the Lenders that: (a) all of the items
that the Companies are required to furnish to the Warehouse Agent under the
Warehouse Credit Agreement in connection with this notice accompany it, all of
those items are accurate and what they purport to be, and all of the Eligible
Mortgage Loans described on the attached ANNEX 1 comply with all requirements
necessary to constitute Eligible Gestation Loans; (b) the Companies'
representations and warranties in the Warehouse Loan Documents are true and
correct in all material respects except to the extent that (i) a representation
or warranty speaks to a specific date or (ii) the facts on which a
representation or
<PAGE> 113
warranty is based have changed by transactions or conditions contemplated or
permitted by the Warehouse Loan Documents, and (c) no Default or Event of
Default exists.
MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION,
MORTGAGE CORPORATION OF AMERICA and MORTGAGE
CORPORATION OF AMERICA, INC., as the Companies
By
------------------------------------------
(Name)
--------------------------------------
(1)(Title)
-----------------------------------
- -------------
(1) Must be a Responsible Officer of all four Companies.
2
<PAGE> 114
ANNEX A TO
COLLATERAL CONVERSION NOTICE DATED _______________
(List of Eligible Mortgage Loans for which the Custodian
has newly issued its initial certification for inclusion
in one or more Mortgage Pools)
<PAGE> 115
EXHIBIT B
RELEASE REQUEST
WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199___
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
================================================================================
This request is delivered under the 10/97 Senior Secured Warehouse
Credit Agreement dated as of October 31, 1997 (as supplemented, amended or
restated, the "WAREHOUSE CREDIT AGREEMENT"), among the Companies, Texas Commerce
Bank National Association ("TEXAS COMMERCE"), as a lender and as agent (the
"WAREHOUSE AGENT") for the other lenders party thereto, and the other lenders
party thereto (including Texas Commerce, the "WAREHOUSE LENDERS"). Terms defined
in the Warehouse Credit Agreement have the same meanings when used -- unless
otherwise defined -- in this request.
The Companies request that Warehouse Agent release the Lender Liens
under the Warehouse Loan Documents in the Collateral described on the attached
SCHEDULE 1.
On and as of the date of this request, the Companies certify, represent
and warrant to the Warehouse Agent and the Warehouse Lenders that (a) Companies'
representations and warranties in the Warehouse Loan Documents are true and
correct in all material respects except to the extent that (i) a representation
or warranty speaks to a specific date or (ii) the facts on which a
representation or warranty is based have changed by transactions or conditions
contemplated or
<PAGE> 116
permitted by the Warehouse Loan Documents, and (b) no Default, Event of Default
or Borrowing Base Deficiency exists or will exist after giving effect to the
requested release.
MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION,
MORTGAGE CORPORATION OF AMERICA and MORTGAGE
CORPORATION OF AMERICA, INC., as the Companies
By
------------------------------------------
(Name)
--------------------------------------
(1)(Title)
-----------------------------------
- -------------------
(1) Must be a Responsible Officer of all four Companies.
2
<PAGE> 117
EXHIBIT C
REQUEST FOR ADVANCE
[Letterhead of a Borrower]
[date]
Texas Commerce Bank National Association
712 Main Street
Houston, Texas 77002
Attention: Ms. Pamela E. Skinner
Ladies and Gentlemen:
MCA Financial Corp., MCA Mortgage Corporation and Mortgage Corporation
of America (the "Borrowers"), all Michigan corporations, joined by Mortgage
Corporation of America, Inc., an Ohio corporation (collectively, the
"Companies"), Texas Commerce Bank National Association as a lender and as agent
(the "Warehouse Agent") for the other lenders party thereto, and such other
lenders executed a 10/97 Senior Secured Warehouse Credit Agreement dated October
31, 1997 (which, as it may have been or may hereafter be supplemented, amended
or restated from time to time, is called the "WAREHOUSE CREDIT AGREEMENT"). Any
term defined in the Warehouse Credit Agreement and used but not defined
differently in this Request for Advance has the same meaning here as there.
[MCAFC][MCAMC][MCA] hereby requests a Warehouse Revolving Loan (and a
Swing Loan) in the amount of $ to be made on , 19 (or, if the Warehouse Agent is
closed for regular commercial banking business on that day, on the next day when
it is not).
After giving effect to the requested Warehouse Revolving Loan, (i) the
aggregate outstanding principal balance of all Warehouse Revolving Loans will
not exceed either the Aggregate Committed Sum or the Borrowing Base and (ii) no
Sublimit will be exceeded.
If new Collateral is required to support the requested Warehouse
Revolving Loan (i.e., to cause the Borrowing Base to be at least equal to the
aggregate principal of the Warehouse Revolving Loans that will be outstanding
after giving effect to the requested Warehouse Revolving Loan), it is described
on a schedule attached hereto and the Borrowers hereby GRANT the Warehouse Agent
(as agent and Representative of the Warehouse Lenders) a security interest in
all such new Collateral, and it is hereby Pledged to the Warehouse Agent,
effective immediately.
<PAGE> 118
Texas Commerce Bank National Association
[date]
Page 2
The Borrowers acknowledge that the Warehouse Agent and the Warehouse
Lenders will rely on the truth of each statement in this request and its
attachments in funding the requested Warehouse Revolving Loan.
No Default has occurred that has not been cured, and no Event of
Default has occurred that the Warehouse Agent has not declared in writing to
have been cured or waived.
All items that the Companies are required to furnish to the Warehouse
Agent or the Custodian for this requested Warehouse Revolving Loan and otherwise
have been delivered, or will be delivered before this requested Warehouse
Revolving Loan is funded, in all respects as required by the Warehouse Credit
Agreement and the other Warehouse Loan Documents and conform in all respects
with all applicable requirements of the Warehouse Credit Agreement and the other
Warehouse Loan Documents. All Files, Collateral Papers and Take-out Commitments
(if any) described or referred to in the Submission List(s) (if any) submitted
to the Warehouse Agent or the Custodian with this Request for Advance conform in
all respects with all applicable requirements of the Warehouse Credit Agreement
and the other Warehouse Loan Documents.
The undersigned officer hereby certifies that all of Companies'
representations and warranties (a) in the Warehouse Credit Agreement and all of
the other Warehouse Loan Documents (except only to the extent that (i) such a
representation or warranty speaks to a specific date or (ii) the facts on which
a such representation or warranty is based have changed by transactions or
conditions contemplated or expressly permitted by the Warehouse Loan Documents)
and (b) in this Request for Advance, are true and correct on the date of this
Request for Advance, and that all conditions precedent to the requested
Borrowing are satisfied.
[MCA FINANCIAL CORP.]
[MCA FINANCIAL CORPORATION]
[MORTGAGE CORPORATION OF AMERICA]
By
------------------------------
(Name)
----------------------------
(1)(Title)
------------------------
Attached (check relevant items):
NEW COLLATERAL SCHEDULES (IF ANY) FOR: DISBURSEMENT REQUEST CERTIFICATE(S) FOR:
- -------------------------------
(1) Must be the President, Treasurer or Assistant Treasurer, a Vice
President or the Controller of the Company.
<PAGE> 119
Texas Commerce Bank National Association
[date]
Page 3
[ ]Warehouse Collateral Refinancing [ ] refinancing Eligible Warehouse
[ ]Gestation Borrowing Collateral
[ ]Repurchase Borrowing [ ] financing new Eligible Warehouse
[ ]Construction Loans Borrowing Collateral
[ ]Land Contracts Borrowing [ ] supplemental Borrowing against
[ ]Wet Borrowing existing existing Borrowing Base
[ ]Dry Borrowing
[ ]High LTV Loans Borrowing
[ ]Wet Borrowing
[ ]Dry Borrowing
[ ]Indirect Warehouse Borrowing
[ ]Wet Borrowing
[ ]Dry Borrowing
[ ]D/E Mortgage Loans Borrowing
[ ]Wet Borrowing
[ ]Dry Borrowing
[ ]Other Warehouse Collateral Borrowing
[ ]Wet Borrowing
[ ]Dry Borrowing
<PAGE> 120
SCHEDULE TO REQUEST FOR ADVANCE
DATED ________________, 199___; FOR $________________________
[Complete EACH applicable "Amount" box or mark N.A.]
<TABLE>
<CAPTION>
BORROWING PURPOSE CATEGORY AMOUNT(1) BORROWING PRICE
CATEGORY (2)
<S> <C> <C>
Warehouse Line Dry Borrowing (regular or Subprime $ [ ] Base Rate
but not a Gestation Borrowing, Repurchase Borrowing,
Land Contracts Borrowing, Construction Loans
Borrowing, Indirect Warehouse Loans Borrowing, or
High LTV Borrowing)
Warehouse Line Dry Borrowing (Gestation Borrowing) $ [ ] Base Rate
Warehouse Line Dry Borrowing $ [ ] Base Rate
(Repurchase Borrowing)
Warehouse Line Dry Borrowing (Land Contracts $ [ ] Base Rate
Borrowing)
Warehouse Line Dry Borrowing (Construction Loans $ [ ] Base Rate
Borrowing)
Warehouse Line Dry Borrowing (Indirect Warehouse $ [ ] Base Rate
Loans Borrowing)
Warehouse Line Dry Borrowing (High LTV Borrowing) $ [ ] Base Rate
Warehouse Line Wet Borrowing (regular or Subprime $ [ ] Base Rate
but not a Repurchase Borrowing, Land Contracts
Borrowing, Construction Loans Borrowing, Indirect
Warehouse Loans Borrowing or High LTV Borrowing)
Warehouse Line Wet Borrowing (Indirect Warehouse $ [ ] Base Rate
Loans Borrowing)
============================
Warehouse Line Wet Borrowing (Land Contracts $ [ ] Base Rate
Borrowing)
============================
Warehouse Line Wet Borrowing (High LTV $ [ ] Base Rate
Borrowing)
============================
TOTAL $
</TABLE>
- -------------------------
(1) Must be at least $100,000 and a $10,000 multiple.
(2)Unless the "Base Rate" box is checked, on each day before maturity
(i) to the extent that the sum of the requested Borrowing and all other
Borrowings then outstanding is equal to or less than the FAB Principal
Equivalent, each portion of the requested Borrowing will bear interest at the
FAB Rate applicable to the Borrowing Purpose Category for that portion, and (ii)
each portion of the requested Borrowing that, when aggregated with all other
Borrowings outstanding on that day, exceeds the FAB Principal Equivalent, will
bear interest at the LIBOR Rate applicable to the Borrowing Purpose Category for
that portion.
<PAGE> 121
EXHIBIT D
SUBMISSION LIST
WAREHOUSE AGENT: Texas Commerce Bank DATE:___________, 199_
National Association
CUSTODIAN: Texas Commerce Bank
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America
and Mortgage Corporation of
America, Inc.
===============================================================================
This Submission List is delivered under the 10/97 Senior Secured
Warehouse Credit Agreement dated as of October 31, 1997 (as supplemented,
amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the Companies,
Texas Commerce Bank National Association ("TEXAS COMMERCE"), as a lender and as
agent (the "WAREHOUSE AGENT") for the other lenders party thereto, and the other
lenders party thereto (including Texas Commerce, the "WAREHOUSE LENDERS"). Terms
defined in the Warehouse Credit Agreement have the same meanings when used --
unless otherwise defined -- in this Submission List.
Under SECTION 4.3 and other applicable provisions of the Warehouse
Credit Agreement, the Companies submit the following Warehouse Collateral under,
and subject such Warehouse Collateral to the Lender Liens created by, the
Warehouse Loan Documents [check applicable box(es)]:
[ ] HIGH LTV MORTGAGE LOANS FOR DRY BORROWING (NOT A REPURCHASE
BORROWING). The Companies (a) are delivering to the Custodian the
Basic Papers for the High LTV Mortgage Loans described on the
attached ANNEX 1, (b) represent that those High LTV Mortgage
Loans and all related Warehouse Collateral Papers conform to the
Eligibility Conditions of PART C of SCHEDULE EC to the Warehouse
Credit Agreement and (c) confirm that they are subject to the
Lender Liens created in connection with the Warehouse Credit
Agreement.
[ ] HIGH LTV MORTGAGE LOANS FOR WET BORROWING (NOT A REPURCHASE
BORROWING). The Companies (a) are delivering to the Warehouse
Agent and the Custodian this Submission List for the High LTV
Mortgage Loans that are also Bridged Loans and are described on
the attached ANNEX 2, (b) shall deliver to the Custodian before
the
<PAGE> 122
expiration of the Wet Period for the Warehouse Revolving Loans
made on the basis of those High LTV Mortgage Loans/Bridged Loans
the Basic Papers for each of those High LTV Mortgage Loans, (c)
represent that those High LTV Mortgage Loans/Bridged Loans and
all related Warehouse Collateral Papers conform to the
Eligibility Conditions of PART C of SCHEDULE EC to the Warehouse
Credit Agreement and (d) confirm that those High LTV Mortgage
Loans/ Bridged Loans and all related Warehouse Collateral Papers
are subject to the Lender Liens created in connection with the
Warehouse Credit Agreement.
[ ] SECOND MORTGAGE LOANS FOR DRY BORROWING (NOT A REPURCHASE
BORROWING). The Companies (a) are delivering to the Custodian the
Basic Papers for the Second Mortgage Loans described on the
attached ANNEX 3, (b) represent that those Second Mortgage Loans
and all related Warehouse Collateral Papers conform to the
Eligibility Conditions of PART H of SCHEDULE EC to the Warehouse
Credit Agreement and (c) confirm that those Second Mortgage Loans
and all related Warehouse Collateral Papers are subject to the
Lender Liens created in connection with the Warehouse Credit
Agreement.
[ ] SECOND MORTGAGE LOANS FOR WET BORROWING (NOT A REPURCHASE
BORROWING). The Companies (a) are delivering to the Warehouse
Agent and the Custodian this Submission List for the Second
Mortgage Loans that are also Bridged Loans and that are described
on the attached ANNEX 4, (b) shall deliver to the Custodian
before the expiration of the Wet Period for the Warehouse
Revolving Loans made on the basis of those Second Mortgage
Loans/Bridged Loans the Basic Papers for each of those Second
Mortgage Loans/Bridged Loans, (c) represent that those Second
Mortgage Loans/Bridged Loans and all related Warehouse Collateral
Papers conform to the Eligibility Conditions of PART H of
SCHEDULE EC to the Warehouse Credit Agreement and (d) confirm
that those Second Mortgage Loans/Bridged Loans and all related
Warehouse Collateral Papers are subject to the Lender Liens
created in connection with the Warehouse Credit Agreement.
[ ] CONSTRUCTION LOANS FOR DRY BORROWING (NOT A REPURCHASE
BORROWING). The Companies (a) are delivering to the Custodian the
Basic Papers required by PART F of SCHEDULE EC to the Warehouse
Credit Agreement for the Construction Loans described on the
attached ANNEX 5, (b) represent that those Construction Loans and
all related Warehouse Collateral Papers conform to the
Eligibility Conditions of PART F of SCHEDULE EC to the Warehouse
Credit Agreement and (c) confirm that those Construction Loans
and all related Warehouse Collateral Papers are subject to the
Lender Liens created in connection with the Warehouse Credit
Agreement.
[ ] INDIRECT WAREHOUSE LOANS FOR DRY BORROWING (NOT A REPURCHASE
BORROWING). The Companies (a) are delivering to the Custodian the
Basic Papers for the Indirect Warehouse Loans described on the
attached ANNEX 6, (b) represent that those Indirect
2
<PAGE> 123
Warehouse Loans and all related Warehouse Collateral Papers
conform to the Eligibility Conditions of PART I of SCHEDULE EC to
the Warehouse Credit Agreement and (c) confirm that those
Indirect Warehouse Loans and all related Warehouse Collateral
Papers are subject to the Lender Liens created in connection with
the Warehouse Credit Agreement.
[ ] INDIRECT WAREHOUSE LOANS FOR WET BORROWING (NOT A REPURCHASE
BORROWING). The Companies (a) are delivering to the Warehouse
Agent and the Custodian this Submission List for the Indirect
Warehouse Loans that are also Bridged Loans and that are
described on the attached ANNEX 7, (b) shall deliver to the
Custodian before the expiration of the Wet Period for the
Warehouse Revolving Loans made on the basis of those Indirect
Warehouse Loans/Bridged Loans the Basic Papers for each of those
Indirect Warehouse Loans/Bridged Loans, (c) represent that those
Indirect Warehouse Loans/Bridged Loans and all related Warehouse
Collateral Papers conform to the Eligibility Conditions of PART I
of SCHEDULE EC to the Warehouse Credit Agreement and (d) confirm
that those Indirect Warehouse Loans/Bridged Loans and all related
Warehouse Collateral Papers are subject to the Lender Liens
created in connection with the Warehouse Credit Agreement.
[ ] D/E MORTGAGE LOANS FOR DRY BORROWING (NOT A REPURCHASE
BORROWING). The Companies (a) are delivering to the Custodian the
Basic Papers for the D/E Mortgage Loans described on the attached
ANNEX 8, (b) represent that those D/E Mortgage Loans and all
related Warehouse Collateral Papers conform to the Eligibility
Conditions of PART L of SCHEDULE EC to the Warehouse Credit
Agreement and (c) confirm that those D/E Mortgage Loans and all
related Warehouse Collateral Papers are subject to the Lender
Liens created in connection with the Warehouse Credit Agreement.
[ ] D/E MORTGAGE LOANS FOR WET BORROWING (NOT A REPURCHASE
BORROWING). The Companies (a) are delivering to the Warehouse
Agent and the Custodian this Submission List for the D/E Mortgage
Loans that are also Bridged Loans and that are described on the
attached ANNEX 9, (b) shall deliver to the Custodian before the
expiration of the Wet Period for the Warehouse Revolving Loans
made on the basis of those D/E Mortgage Loans/Bridged Loans the
Basic Papers for each of those D/E Mortgage Loans/Bridged Loans,
(c) represent that those D/E Mortgage Loans and all related
Warehouse Collateral Papers conform to the Eligibility Conditions
of PART L of SCHEDULE EC to the Warehouse Credit Agreement and
(d) confirm that those D/E Mortgage Loans/Bridged Loans and all
related Warehouse Collateral Papers are subject to the Lender
Liens created in connection with the Warehouse Credit Agreement.
[ ] JUMBO LOANS FOR DRY BORROWING (NOT A REPURCHASE BORROWING). The
Companies (a) are delivering to the Custodian the Basic Papers
for the Jumbo Loans described
3
<PAGE> 124
on the attached ANNEX 10, (b) represent that those Jumbo Loans
and all related Warehouse Collateral Papers conform to the
Eligibility Conditions of PART J of SCHEDULE EC to the Warehouse
Credit Agreement and (c) confirm that those Jumbo Loans and all
related Warehouse Collateral Papers are subject to the Lender
Liens created in connection with the Warehouse Credit Agreement.
[ ] JUMBO LOANS FOR WET BORROWING (NOT A REPURCHASE BORROWING). The
Companies (a) are delivering to the Warehouse Agent and the
Custodian this Submission List for the Jumbo Loans that are also
Bridged Loans and that are described on the attached ANNEX 11,
(b) shall deliver to the Custodian before the expiration of the
Wet Period for the Warehouse Revolving Loans made on the basis of
those Jumbo Loans/Bridged Loans the Basic Papers for each of
those Jumbo Loans/Bridged Loans, (c) represent that those Jumbo
Loans/Bridged Loans and all related Warehouse Collateral Papers
conform to the Eligibility Conditions of PART J of SCHEDULE EC to
the Warehouse Credit Agreement and (d) confirm that those Jumbo
Loans/Bridged Loans and all related Warehouse Collateral Papers
are subject to the Lender Liens created in connection with the
Warehouse Credit Agreement.
[ ] OTHER MORTGAGE LOANS FOR DRY BORROWING (NOT ELIGIBLE D/E MORTGAGE
LOANS AND NOT A REPURCHASE BORROWING). The Companies (a) are
delivering to the Custodian the Warehouse Collateral Papers for
the Mortgage Loans described on the attached ANNEX 12, (b)
represent that those Mortgage Loans and all related Warehouse
Collateral Papers conform to the Eligibility Conditions of PART A
(for those that are regular Mortgage Loans) or PART B (for those
that are Subprime Mortgage Loans) of SCHEDULE EC to the Warehouse
Credit Agreement and (c) confirm that those Mortgage Loans and
all related Warehouse Collateral Papers are subject to the Lender
Liens created in connection with the Warehouse Credit Agreement.
[ ] OTHER MORTGAGE LOANS FOR DRY BORROWING (REPURCHASE BORROWING).
The Companies (a) are delivering to the Custodian the Warehouse
Collateral Papers for the Repurchased Loans described on the
attached ANNEX 13, (b) represent that those Repurchased Loans and
all related Warehouse Collateral Papers conform to the
Eligibility Conditions of PART G of SCHEDULE EC to the Warehouse
Credit Agreement and (c) confirm that those Mortgage Loans and
all related Warehouse Collateral Papers are subject to the Lender
Liens created in connection with the Warehouse Credit Agreement.
[ ] OTHER MORTGAGE LOANS FOR WET BORROWING (NOT ELIGIBLE D/E
MORTGAGE LOANS AND NOT A REPURCHASE BORROWING). The Companies (a)
are delivering to the Warehouse Agent and the Custodian this
Submission List for the Bridged Loans described on the attached
ANNEX 14, (b) shall deliver to the Custodian before the
expiration of the Wet Period for the Warehouse Revolving Loans
made on the basis of those Bridged Loans, the Basic Papers for
each of those Bridged Loans, (c) represent that those
4
<PAGE> 125
Bridged Loans and all related Warehouse Collateral Papers conform
to the Eligibility Conditions of PART A (for those that are
regular Mortgage Loans) or PART B (for those that are Subprime
Mortgage Loans) of SCHEDULE EC to the Warehouse Credit Agreement
and (d) confirm that those Bridged Loans and all related
Warehouse Collateral Papers are subject to the Lender Liens
created in connection with the Warehouse Credit Agreement.
[ ] LAND CONTRACTS FOR DRY BORROWING. The Companies (a) are
delivering to the Custodian the Warehouse Collateral Papers for
the Land Contracts described on the attached ANNEX 15, (b)
represent that those Land Contracts and all related Warehouse
Collateral Papers conform to the Eligibility Conditions of PART K
of SCHEDULE EC to the Warehouse Credit Agreement and (c) confirm
that those Land Contracts and all related Collateral Papers are
subject to the Lender Liens created in connection with the
Warehouse Credit Agreement.
[ ] LAND CONTRACTS FOR WET BORROWING. The Companies (a) are
delivering to the Warehouse Agent and the Custodian this
Submission List for the Land Contracts that are Bridged Loans and
that are described on the attached ANNEX 16, (b) shall deliver to
the Custodian before the expiration of the Wet Period for the
Warehouse Revolving Loans made on the basis of those Land
Contracts that are Bridged Loans, the Basic Papers for each of
those Land Contracts, (c) represent that those Land Contracts and
all related Warehouse Collateral Papers conform to the
Eligibility Conditions of PART K of SCHEDULE EC to the Warehouse
Credit Agreement and (d) confirm that those Land Contracts and
all related Warehouse Collateral Papers are subject to the Lender
Liens created in connection with the Warehouse Credit Agreement.
[ ] GESTATION LOANS FOR DRY BORROWING. The Companies (a) have
delivered to the Custodian the Warehouse Collateral Papers for
the Mortgage Loans described on the attached ANNEX 17, (b)
represent that those Mortgage Loans and all related Warehouse
Collateral Papers conform to the Eligibility Conditions of PART D
of SCHEDULE EC to the Warehouse Credit Agreement (including the
requirements that the Custodian has certified them for inclusion
in Mortgage Pools, the Companies have delivered a Collateral
Conversion Notice for them to the Warehouse Agent and they are
covered by Take-out Commitments) and (c) confirm that those
Mortgage Loans and all related Warehouse Collateral Papers are
subject to the Lender Liens created in connection with the
Warehouse Credit Agreement.
[ ] MORTGAGE SECURITIES FOR DRY BORROWING. Borrowers (a) are
delivering to the Custodian the Warehouse Collateral Papers
required for the Mortgage Securities described on the attached
ANNEX 18 (the Mortgage Pools for which consist of Mortgage Loans
that were, before issuance of those Mortgage Securities, Eligible
Mortgage Loans constituting part of the Collateral), (b)
represent that those Mortgage
5
<PAGE> 126
Securities conform to the Eligibility Conditions of PART E of
SCHEDULE EC to the Warehouse Credit Agreement and (c) confirm
that those Mortgage Securities and all related Collateral Papers
are subject to the Lender Liens created in connection with the
Warehouse Credit Agreement.
On and as of the date of this Submission List, the Companies certify,
represent and warrant to, and covenant with, Warehouse Agent and the Warehouse
Lenders that:
(a) For any Collateral described above, the Companies (i) hold each
of the Collateral Papers required by the applicable provisions of
SECTION 2.5 of the Custody Agreement, (ii) hold those Collateral
Papers in trust for the Warehouse Agent (as agent and
Representative of the Warehouse Lenders), (iii) upon written
request or instructions from the Warehouse Agent from time to
time and at any time, shall deliver those items to the Warehouse
Agent or any other Person designated by the Warehouse Agent, and
(iv) may not deliver those items, or grant, transfer, or assign
any interest in any of them to any Person except the Warehouse
Agent or the Custodian without first obtaining the Warehouse
Agent's written consent.
(b) All of the items that the Companies are required to furnish to
the Warehouse Agent or the Custodian under the Warehouse Credit
Agreement in connection with this notice accompany its copy
delivered to the Warehouse Agent and the Custodian, respectively,
all of those items are accurate and what they purport to be, and
all of the Collateral described in this notice or its schedules
or annexes conforms in all respects to the requirements of the
Warehouse Credit Agreement, including, without limitation, the
requirements of eligibility applicable to that Collateral on
SCHEDULE EC to the Warehouse Credit Agreement.
(c) The representations and warranties of the Companies in the
Warehouse Loan Documents are true and correct in all material
respects except to the extent that (i) a representation or
warranty speaks to a specific date or (ii) the facts on which a
representation or warranty is based have changed by transactions
or conditions contemplated or permitted by the Warehouse Loan
Documents.
6
<PAGE> 127
(d) No Default or Event of Default exists.
MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION,
MORTGAGE CORPORATION OF AMERICA and MORTGAGE
CORPORATION OF AMERICA, INC., as the Companies
By
--------------------------------------------
(Name)
----------------------------------------
(1)(Title)
------------------------------------
- ----------------------------
(1) Must be a Responsible Officer of all four Companies.
7
<PAGE> 128
ANNEX 1 TO SUBMISSION LIST DATED _________
HIGH LTV MORTGAGE LOANS FOR DRY BORROWING (NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 129
ANNEX 2 TO SUBMISSION LIST DATED _________
HIGH LTV MORTGAGE LOANS FOR WET BORROWING (NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 130
ANNEX 3 TO SUBMISSION LIST DATED _________
SECOND MORTGAGE LOANS FOR DRY BORROWING (NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 131
ANNEX 4 TO SUBMISSION LIST DATED _________
SECOND MORTGAGE LOANS FOR WET BORROWING (NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 132
ANNEX 5 TO SUBMISSION LIST DATED _________
CONSTRUCTION LOANS FOR DRY BORROWING (NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 133
ANNEX 6 TO SUBMISSION LIST DATED _________
INDIRECT WAREHOUSE LOANS FOR DRY BORROWING (NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 134
ANNEX 7 TO SUBMISSION LIST DATED _________
INDIRECT WAREHOUSE LOANS FOR WET BORROWING (NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 135
ANNEX 8 TO SUBMISSION LIST DATED _________
D/E MORTGAGE LOANS FOR DRY BORROWING (NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 136
ANNEX 9 TO SUBMISSION LIST DATED _________
D/E MORTGAGE LOANS FOR WET BORROWING (NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 137
ANNEX 10 TO SUBMISSION LIST DATED _________
JUMBO LOANS FOR DRY BORROWING (NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 138
ANNEX 11 TO SUBMISSION LIST DATED _________
JUMBO LOANS FOR WET BORROWING (NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 139
ANNEX 12 TO SUBMISSION LIST DATED _________
OTHER MORTGAGE LOANS FOR DRY BORROWING
(NOT ELIGIBLE D/E MORTGAGE LOANS AND NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 140
ANNEX 13 TO SUBMISSION LIST DATED _________
OTHER MORTGAGE LOANS FOR DRY BORROWING (REPURCHASE BORROWING)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 141
ANNEX 14 TO SUBMISSION LIST DATED _________
OTHER MORTGAGE LOANS FOR WET BORROWING
(NOT ELIGIBLE D/E MORTGAGE LOANS AND NOT A REPURCHASE BORROWING)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 142
ANNEX 15 TO SUBMISSION LIST DATED _________
LAND CONTRACTS FOR DRY BORROWING
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 143
ANNEX 16 TO SUBMISSION LIST DATED _________
LAND CONTRACTS FOR WET BORROWING
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 144
ANNEX 17 TO SUBMISSION LIST DATED _________
GESTATION LOANS FOR DRY BORROWING
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY MORTGAGE SECURITY DESCRIPTION FACE AMOUNT
- -------------------------------------------------------------------------------
<S> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 145
ANNEX 18 TO SUBMISSION LIST DATED _________
MORTGAGE SECURITIES FOR DRY BORROWING
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
COMPANY MORTGAGE SECURITY DESCRIPTION FACE AMOUNT
- -------------------------------------------------------------------------------
<S> <C> <C>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 146
EXHIBIT E-1
(THE "10/97 [LENDER NAME] WAREHOUSE NOTE")
$ Houston, Texas October 31, 1997
--------------------
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers,
jointly and severally promise to pay to the order of [LENDER NAME] ("PAYEE"), a
[LENDER ENTITY FORM], at the main branch of Texas Commerce Bank National
Association, 712 Main Street, Houston, Harris County, Texas 77002, or at such
other place as the Warehouse Agent may hereafter designate in writing, in
immediately available funds and in lawful money of the United States of America,
the principal sum of [LENDER'S COMMITTED SUM] (or the unpaid balance of all
principal advanced against this note, if that amount is less), together with
interest on the unpaid principal balance of this note from time to time
outstanding until maturity at the Stated Rate (or at such lesser rate, if any,
as the holder of this note -- the "HOLDER", whether or not Payee is such holder
- -- may in its sole discretion from time to time elect to be applicable for any
day or days), and interest on all past due amounts, both principal and accrued
interest, at the Past Due Rate; provided that for the full term of this note the
interest rate produced by the aggregate of all sums paid or agreed to be paid to
Holder for the use, forbearance or detention of the debt evidenced hereby shall
not exceed the Ceiling Rate.
1. Definitions. In addition to the definitions given above, the
definitions given in the 10/97 Senior Secured Warehouse Credit Agreement dated
October 31, 1997, as it may be supplemented, amended or restated from time to
time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b) Texas Commerce
Bank National Association (for itself as a lender and as Warehouse Agent for the
other lenders party thereto) and (c) the other lender(s) party thereto, for
capitalized terms that are used in this note shall apply here as well as there.
2. Rates Change Automatically and Without Notice. Without notice to
Makers or any other Person and to the full extent allowed by applicable law from
time to time in effect, the Stated Rate, the Past Due Rate and the Ceiling Rate
shall each automatically fluctuate upward and downward as and in the amount by
which the interest rate applicable to this note as provided for in the Credit
Agreement, the Past Due Rate as defined in the Credit Agreement and such maximum
nonusurious rate of interest permitted by applicable law, respectively,
fluctuate.
3. Calculation of Interest. Interest on the amount of each advance
against this note shall be computed on the amount of that advance and from the
date it is made. Such interest shall be computed on the basis of the actual
number of days elapsed on the basis of a year of 360 days (i.e.,
Page 1 of 4 Pages
<PAGE> 147
on the 365/360--or 366/360 in a leap year--day basis), unless that would cause
the Ceiling Rate for any day to be exceeded, in which event and to the extent
necessary to eliminate or minimize that result, interest shall be calculated on
the 365/365 -- or 366/366 in a leap year -- day basis. All interest rate
determinations and calculations by the Holder, absent manifest error, shall be
conclusive.
4. Excess Interest Will be Refunded or Credited. If, for any reason
whatever, the interest paid or received on this note during its full term
produces a rate which exceeds the Ceiling Rate, Holder shall refund to the payor
or, at Holder's option, credit against the principal of this note such portion
of said interest as shall be necessary to cause the interest paid on this note
to produce a rate equal to the Ceiling Rate.
5. Interest Will be Spread. To the extent (if any) necessary to
avoid violation of applicable usury laws (or to minimize the extent of the
violation if complete avoidance is impossible for any reason, it being the
intent and purpose of Makers and all Holders to comply strictly with all
applicable usury and other laws), all sums paid or agreed to be paid to Holder
for the use, forbearance or detention of the indebtedness evidenced hereby
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note.
6. Payment Schedule. Interest on and principal of this note shall be
due and payable as provided in SECTION 8.1 of the Credit Agreement.
7. Prepayment. Makers may prepay this note in accordance with and
subject to the provisions of SECTION 8.1(c) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, this Note and its Security. This note is
one of the Warehouse Notes, is issued pursuant to the Credit Agreement (to which
reference is made for all purposes) and may be referred to as the "10/97 [LENDER
NAME] WAREHOUSE NOTE", and as it may hereafter be renewed, extended, rearranged,
increased, decreased, modified or replaced in accordance with the Credit
Agreement may be referred to as the "CURRENT [LENDER NAME] WAREHOUSE NOTE".
Holder is entitled to the benefits of and security provided for in the Credit
Agreement. Such security includes, among other security, the security interests
granted by the Warehouse Security Agreement referred to in SECTION 9.1 of the
Credit Agreement.
9. Revolving Credit. Upon and subject to the terms and conditions of
the Credit Agreement, Makers may borrow, repay and reborrow against this note
under the circumstances, in the manner and for the purposes specified in the
Credit Agreement, but for no other purposes. Advances against this note by Payee
or other Holder shall be governed by the terms of the Credit Agreement. The
unpaid principal balance of this note at any time shall be the total of all
principal lent or advanced against this note less the sum of all principal
payments and permitted prepayments made on this note by or for the account of
Makers. Absent manifest error, Holder's computer
Page 2 of 4 Pages
<PAGE> 148
records shall on any day conclusively evidence the unpaid balance of this note
and its advances and payments history posted up to that day. All loans and
advances and all payments and permitted prepayments made hereon may be (but are
not required to be) endorsed by or on behalf of Holder on the schedule which is
attached as Annex I hereto (which is hereby made a part hereof for all purposes)
or otherwise recorded in Holder's computer or manual records; provided, that any
failure to make notation of (a) any principal advance or accrual of interest
shall not cancel, limit or otherwise affect Makers' obligations or any Holder's
rights with respect to that advance or accrual, or (b) any payment or permitted
prepayment of principal or interest shall not cancel, limit or otherwise affect
Makers' entitlement to credit for that payment as of the date of its receipt by
Holder. Makers and Payee expressly agree, pursuant to Chapter 346 ("CHAPTER
346") of the Texas Finance Code, that Chapter 346 (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 346 or subject to its provisions in any manner
whatsoever.
10. Legal Costs. If any Holder or the Warehouse Agent retains an
attorney in connection with any Default or Event of Default or to collect,
enforce or defend this note or any papers intended to secure or guarantee it in
any lawsuit or in any probate, reorganization, bankruptcy or other proceeding,
or if any Maker or anyone claiming by, through or under any Maker sues any
Holder in connection with this note or any such papers and does not prevail,
then Makers jointly and severally agree to pay to each such Holder and the
Warehouse Agent, respectively, in addition to principal and interest, all
reasonable costs and expenses incurred by such Holder or the Warehouse Agent in
trying to collect this note or in any such suit or proceeding, 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. An amount equal to ten percent
(10%) of the unpaid principal and accrued interest owing on this note when and
if this note is placed in the hands of an attorney for collection after default
is stipulated to be reasonable attorneys' fees unless a Holder, the Warehouse
Agent or a Maker timely pleads otherwise to a court of competent jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other than
the Holder or the Payee), guarantors and sureties severally waive notice
(including, but not limited to, notice of intent to accelerate and notice of
acceleration, notice of protest and notice of dishonor), demand, presentment for
payment, protest, diligence in collecting and the filing of suit for the purpose
of fixing liability and consent that the time of payment hereof may be extended
and re-extended from time to time without notice to any of them. Each such
Person agrees that his, her or its liability on or with respect to this note
shall not be affected by any release of or change in any guaranty or security at
any time existing or by any failure to perfect or maintain perfection of any
lien against or security interest in any such security or the partial or
complete unenforceability of any guaranty or other surety obligation, in each
case in whole or in part, with or without notice and before or after maturity.
Page 3 of 4 Pages
<PAGE> 149
12. Not Purpose Credit. None of the proceeds of this note shall ever
be used, directly or indirectly, 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 or for the purpose of reducing or retiring any debt
which was originally incurred to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock or
which would constitute this transaction a "purpose credit" within the meaning of
said Regulation U, as now or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Warehouse Agent that all loans evidenced by
this note are and will be for business, commercial, investment or other similar
purpose and not primarily for personal, family, household or agricultural use,
as such terms are used in Chapter 1D or in the Texas Finance Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: By:
------------------------- --------------------------
Name: Name:
------------------------ ------------------------
Title: Title:
----------------------- -----------------------
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By: By:
------------------------- --------------------------
Name: Name:
------------------------ ------------------------
Title: Title:
----------------------- -----------------------
Page 4 of 4 Pages
<PAGE> 150
ANNEX 1
to $
10/97 [LENDER NAME] Warehouse Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Payment Applied
Date of Payment or on (or advance vs.) Payment Applied Name of Person
Advance Principal on Interest Principal Balance Interest Paid to Making Notation
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 151
EXHIBIT E-2
(THE "10/97 SWING LINE NOTE")
$30,000,000 Houston, Texas October 31, 1997
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers, jointly
and severally promise to pay to the order of TEXAS COMMERCE BANK NATIONAL
ASSOCIATION ("PAYEE"), a national banking association, at its main branch at 712
Main Street, Houston, Harris County, Texas 77002, or at such other place as the
Warehouse Agent may hereafter designate in writing, in immediately available
funds and in lawful money of the United States of America, the principal sum of
Thirty Million Dollars ($30,000,000) (or the unpaid balance of all principal
advanced against this note, if that amount is less), together with interest on
the unpaid principal balance of this note from time to time outstanding until
maturity at the Stated Rate (or at such lesser rate, if any, as the holder of
this note -- the "HOLDER", whether or not Payee is such holder -- may in its
sole discretion from time to time elect to be applicable for any day or days),
and interest on all past due amounts, both principal and accrued interest, at
the Past Due Rate; provided that for the full term of this note the interest
rate produced by the aggregate of all sums paid or agreed to be paid to Holder
for the use, forbearance or detention of the debt evidenced hereby shall not
exceed the Ceiling Rate.
1. Definitions. In addition to the definitions given above, the
definitions given in the 10/97 Senior Secured Warehouse Credit Agreement dated
October 31, 1997, as it may be supplemented, amended or restated from time to
time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b) Texas Commerce
Bank National Association (for itself as a lender and as Warehouse Agent for the
other lenders party thereto) and (c) the other lender(s) party thereto, for
capitalized terms that are used in this note shall apply here as well as there.
2. Rates Change Automatically and Without Notice. Without notice to
Makers or any other Person and to the full extent allowed by applicable law from
time to time in effect, the Stated Rate, the Past Due Rate and the Ceiling Rate
shall each automatically fluctuate upward and downward as and in the amount by
which the interest rate applicable to this note as provided for in the Credit
Agreement, the Past Due Rate as defined in the Credit Agreement and such maximum
nonusurious rate of interest permitted by applicable law, respectively,
fluctuate.
3. Calculation of Interest. Interest on the amount of each advance
against this note shall be computed on the amount of that advance and from the
date it is made. Such interest shall be computed on the basis of the actual
number of days elapsed on the basis of a year of 360 days (i.e.,
Page 1 of 4 Pages
<PAGE> 152
on the 365/360 -- or 366/360 in a leap year -- day basis), unless that would
cause the Ceiling Rate for any day to be exceeded, in which event and to the
extent necessary to eliminate or minimize that result, interest shall be
calculated on the 365/365 -- or 366/366 in a leap year -- day basis. All
interest rate determinations and calculations by the Holder, absent manifest
error, shall be conclusive.
4. Excess Interest Will be Refunded or Credited. If, for any reason
whatever, the interest paid or received on this note during its full term
produces a rate which exceeds the Ceiling Rate, Holder shall refund to the payor
or, at Holder's option, credit against the principal of this note such portion
of said interest as shall be necessary to cause the interest paid on this note
to produce a rate equal to the Ceiling Rate.
5. Interest Will be Spread. To the extent (if any) necessary to
avoid violation of applicable usury laws (or to minimize the extent of the
violation if complete avoidance is impossible for any reason, it being the
intent and purpose of Makers and all Holders to comply strictly with all
applicable usury and other laws), all sums paid or agreed to be paid to Holder
for the use, forbearance or detention of the indebtedness evidenced hereby
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note.
6. Payment Schedule. Interest on and principal of this note shall be
due and payable as provided in SECTION 8.1 of the Credit Agreement.
7. Prepayment. Maker may prepay this note in accordance with and
subject to the provisions of SECTION 8.1(C) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, this Note and its Security. This note is
the Swing Line Note and one of the Warehouse Notes, is issued pursuant to the
Credit Agreement (to which reference is made for all purposes) and may be
referred to as the "10/97 WAREHOUSE SWING LINE NOTE", and as it may hereafter be
renewed, extended, rearranged, increased, decreased, modified or replaced in
accordance with the Credit Agreement may be referred to as the "CURRENT
WAREHOUSE SWING LINE NOTE". Holder is entitled to the benefits of and security
provided for in the Credit Agreement. Such security includes, among other
security, the security interests granted by the Warehouse Security Agreement
referred to in SECTION 9.1 of the Credit Agreement.
9. Revolving Credit. Upon and subject to the terms and conditions of
the Credit Agreement, Makers may borrow, repay and reborrow against this note
under the circumstances, in the manner and for the purposes specified in the
Credit Agreement, but for no other purposes. Advances against this note by Payee
or other Holder shall be governed by the terms of the Credit Agreement. The
unpaid principal balance of this note at any time shall be the total of all
principal lent or advanced against this note less the sum of all principal
payments and permitted prepayments made on this note by or for the account of
Makers. Absent manifest error, Holder's computer
Page 2 of 4 Pages
<PAGE> 153
records shall on any day conclusively evidence the unpaid balance of this note
and its advances and payments history posted up to that day. All loans and
advances and all payments and permitted prepayments made hereon may be (but are
not required to be) endorsed by or on behalf of Holder on the schedule which is
attached as Annex I hereto (which is hereby made a part hereof for all purposes)
or otherwise recorded in Holder's computer or manual records; provided, that any
failure to make notation of (a) any principal advance or accrual of interest
shall not cancel, limit or otherwise affect Makers' obligations or any Holder's
rights with respect to that advance or accrual, or (b) any payment or permitted
prepayment of principal or interest shall not cancel, limit or otherwise affect
Makers' entitlement to credit for that payment as of the date of its receipt by
Holder. Makers and Payee expressly agree, pursuant to Chapter 346 ("CHAPTER
346") of the Texas Credit Code, that Chapter 346 (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 346 or subject to its provisions in any manner whatsoever.
10. Legal Costs. If any Holder or the Warehouse Agent retains an
attorney in connection with any Default or Event of Default or to collect,
enforce or defend this note or any papers intended to secure or guarantee it in
any lawsuit or in any probate, reorganization, bankruptcy or other proceeding,
or if any Maker or anyone claiming by, through or under any Maker sues any
Holder in connection with this note or any such papers and does not prevail,
then Makers jointly and severally agree to pay to each such Holder and the
Warehouse Agent, respectively, in addition to principal and interest, all
reasonable costs and expenses incurred by such Holder or the Warehouse Agent in
trying to collect this note or in any such suit or proceeding, 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. An amount equal to ten percent
(10%) of the unpaid principal and accrued interest owing on this note when and
if this note is placed in the hands of an attorney for collection after default
is stipulated to be reasonable attorneys' fees unless a Holder, the Warehouse
Agent or a Maker timely pleads otherwise to a court of competent jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other than
the Holder or the Payee), guarantors and sureties severally waive notice
(including, but not limited to, notice of intent to accelerate and notice of
acceleration, notice of protest and notice of dishonor), demand, presentment for
payment, protest, diligence in collecting and the filing of suit for the purpose
of fixing liability and consent that the time of payment hereof may be extended
and re-extended from time to time without notice to any of them. Each such
Person agrees that his, her or its liability on or with respect to this note
shall not be affected by any release of or change in any guaranty or security at
any time existing or by any failure to perfect or maintain perfection of any
lien against or security interest in any such security or the partial or
complete unenforceability of any guaranty or other surety obligation, in each
case in whole or in part, with or without notice and before or after maturity.
Page 3 of 4 Pages
<PAGE> 154
12. Not Purpose Credit. None of the proceeds of this note shall ever
be used, directly or indirectly, 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 or for the purpose of reducing or retiring any debt
which was originally incurred to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock or
which would constitute this transaction a "purpose credit" within the meaning of
said Regulation U, as now or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Warehouse Agent that all loans evidenced by
this note are and will be for business, commercial, investment or other similar
purpose and not primarily for personal, family, household or agricultural use,
as such terms are used in Chapter 1D or in the Texas Finance Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: By:
------------------------- --------------------------
Name: Name:
------------------------ ------------------------
Title: Title:
----------------------- -----------------------
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By: By:
------------------------- --------------------------
Name: Name:
------------------------ ------------------------
Title: Title:
----------------------- -----------------------
Page 4 of 4 Pages
<PAGE> 155
ANNEX 1
to $30,000,000
10/97 Warehouse Swing Line Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Payment Applied
Date of Payment or on (or advance vs.) Payment Applied Name of Person
Advance Principal on Interest Principal Balance Interest Paid to Making Notation
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
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- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
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</TABLE>
<PAGE> 156
EXHIBIT F
TAKE-OUT REPORT
WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199___
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
================================================================================
This report is delivered pursuant to SECTION 12.2(e) of the 10/97
Senior Secured Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), between
the Companies, Texas Commerce Bank National Association ("TEXAS COMMERCE"), as a
lender and as agent (the "WAREHOUSE AGENT") for the other lenders party thereto,
and the other lenders party thereto (including Texas Commerce, the "WAREHOUSE
LENDERS"). Terms defined in the Warehouse Credit Agreement have the same
meanings when used -- unless otherwise defined -- in this report.
The following is accurate and complete as of the date of this report in
respect of Take-out Prices, determined in accordance with each attached SCHEDULE
1, and the total weighted average Take-out Price is _____% of par:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
(1)MORTGAGE COLLATERAL INTEREST RATE TAKE-OUT PRICE
GROUP
- -------------------------------------------------------------------------------
<S> <C> <C>
(a) % %
- -------------------------------------------------------------------------------
(b) % %
- -------------------------------------------------------------------------------
(c) % %
- -------------------------------------------------------------------------------
</TABLE>
By
----------------------------
(Name)
-------------------------
(2)(Title)
---------------------
- ---------------
(1) "Mortgage Collateral Groups" are groupings of Mortgage Loans or
Mortgage Securities by type, coupon, term and other characteristics (if any)
commonly used by the Companies to categorize Mortgage Loans and Mortgage
Securities into Take-Out Commitment coverage groups.
(2) Must be a Responsible Officer of all four Companies.
<PAGE> 157
SCHEDULE 1
TAKE-OUT PRICE DETERMINATION
Complete the following table for each Mortgage Collateral Group for
Mortgage Loans and each Mortgage Collateral Group for Mortgage Securities, in
each case indicating the group letter designation from the report to which this
schedule is attached.
The following table relates to the Mortgage Collateral Group designated
as ___________ on the attached report.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
INVESTOR COMMITMENT NUMBER (a) PRINCIPAL BALANCE OF (b) PERCENTAGE OF PAR (c) TAKE-OUT PRICE* --
TAKE-OUT COMMITMENTS COLUMN (a) TIMES
COLUMN (b)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
$ % $
- ------------------------------------------------------------------------------------------------------------------------
$ % $
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
Totals $ $
========================================================================================================================
</TABLE>
The total weighted average Take-out Price (determined by dividing the total in
Column (c) above by the total in Column (a) above) is _______% of par.
- --------------------------
* For each commitment price stated as a yield rather than as a percentage
of par, convert the yield to a percentage price by the use of the "Net
Yield Tables for GNMA Mortgage-Backed Securities" published by
Financial Publishing Company or the "Mortgage Yield Conversion Tables"
published by FNMA, as applicable.
<PAGE> 158
EXHIBIT G-1
WAREHOUSE SECURITY AGREEMENT
THIS WAREHOUSE SECURITY AGREEMENT is entered into as of October 31,
1997, between MCA FINANCIAL CORP., a Michigan corporation, MCA MORTGAGE
CORPORATION, a Michigan corporation, MORTGAGE CORPORATION OF AMERICA, a Michigan
corporation and MORTGAGE CORPORATION OF AMERICA, INC., an Ohio corporation
("DEBTORS"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as a lender and as
agent for the other lenders (in such capacities, "SECURED PARTY").
Debtors, the Warehouse Lenders parties thereto as such and Secured
Party have entered into the 10/97 Senior Secured Warehouse Credit Agreement
dated as of October 31, 1997 (as supplemented, amended or restated, the
"WAREHOUSE CREDIT AGREEMENT"). As a continuing inducement to Warehouse Lenders
to extend credit to Debtors under the Warehouse Credit Agreement, and as a
condition precedent to that credit, Debtors are executing and delivering this
Agreement to Secured Party.
ACCORDINGLY, for adequate and sufficient consideration, Debtors and
Secured Party agree as follows:
SECTION 1. DEFINITIONS AND REFERENCES. Unless stated otherwise, (a) terms
defined in the Warehouse Credit Agreement or the UCC have the same meanings when
used in this Agreement, and (b) to the extent permitted by Law, if in conflict
(i) the definition of a term in the Warehouse Credit Agreement controls over the
definition of that term in the UCC, and (ii) the definition of a term in Article
9 of the UCC controls over the definition of that term elsewhere in the UCC.
COLLATERAL is defined in SECTION 2.2 of this Agreement.
DEBTORS is defined in the preamble to this Agreement and includes,
without limitation, each Debtor, each Debtor as a debtor-in-possession, and any
receiver, trustee, liquidator, conservator, custodian, or similar party
appointed for any Debtor or for substantially all of any Debtor's assets under
any Debtor Law.
OBLIGOR means any Person obligated with respect to any Collateral
(whether as an account debtor, obligor on an instrument, issuer of securities,
or otherwise).
SECURED PARTY is defined in the preamble to this Agreement and includes
its successor appointed and acting as Warehouse Agent for Warehouse Lenders
under the Warehouse Loan Documents.
<PAGE> 159
SECURITY INTEREST means the security interest granted and the pledge
and assignment made under SECTION 2.1 of this Agreement, which is a Lender Lien
under the Warehouse Credit Agreement.
SECTION 2. SECURITY INTEREST AND COLLATERAL.
2.1 Security Interest. To secure the full payment and performance of
the Obligations, each Debtor hereby grants to Secured Party, as agent and
Representative of Warehouse Lenders, a security interest in all of that Debtor's
present and future right, title and interest in and to the Collateral, whether
now owned or hereafter acquired, and pledges and assigns the Collateral to
Secured Party as Representative of Warehouse Lenders, all upon and subject to
the terms and conditions of this Agreement. The grant of the Security Interest
does not subject Secured Party or any Lender to the terms of any Collateral
Paper or in any way transfer, modify, or otherwise affect (a) any Debtor's
obligations with respect to any Collateral or (b) the Lender Liens under the
Warehouse Credit Agreement.
2.2 Collateral. As used in this Agreement, the term "Collateral"
means the present and future items and types of property described below,
whether now owned or acquired in the future by any Debtor. This description of
Collateral does not permit any action prohibited by any Loan Document.
- Mortgage Collateral from time to time identified to Secured
Party as Collateral.
- All Collateral Papers in any way related to any of the
Mortgage Collateral from time to time identified to Secured
Party as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of
trust, or trust deeds securing those Mortgage Loans, whether
deposited with or held by or for Secured Party under this
Agreement, identified by a Debtor as Collateral for a Wet
Borrowing or otherwise.
- Private mortgage insurance (including, without limitation,
all commitments to issue any such insurance) covering, and
all commitments issued by FHA to insure or issued by VA to
guarantee, any Mortgage Loans identified as Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Loans identified as Collateral.
- Casualty insurance assigned to any Debtor in connection with
any Mortgage Loans identified as Collateral.
2
<PAGE> 160
- Mortgage Securities deposited with or held by or for Secured
Party under the Warehouse Loan Documents or registered by
book entry in Secured Party's name under the Warehouse Loan
Documents.
- Guaranties related to Mortgage Securities identified as
Collateral.
- Take-out Commitments held by any Debtor for any Mortgage
Loans or Mortgage Securities identified as collateral,
rights to deliver those Mortgage Loans or Mortgage
Securities, as the case may be, to the investors or other
purchasers under those Take-out Commitments, and all
proceeds resulting from the sale of any of those Mortgage
Loans or Mortgage Securities under those Take-out
Commitments.
- Any Collateral otherwise described in this Agreement that
may from time to time be delivered (a) to an investor (or
its custodian or other designee) under SECTION 4.1 of the
Custody Agreement until purchased and paid for by that
investor or (b) to a Company for correction or servicing
under SECTION 4.2 of the Custody Agreement.
- The Warehouse Note Payment/Funding Account, all other
accounts that any Debtor maintains with Secured Party,
Warehouse Agent, or any Lender, and all amounts deposited in
them or represented by them.
- Personal property, contract rights, accounts, and general
intangibles of any kind whatsoever relating to any
Collateral.
- All files, surveys, certificates, correspondence,
appraisals, tapes, discs, cards, accounting records, and
other information and data of any Debtor relating to any
collateral, including, without limitation, all information,
data, tapes, discs, and cards necessary to administer and
service any Collateral.
- Cash and noncash proceeds of any Collateral.
SECTION 3. REPRESENTATIONS AND WARRANTIES. By entering into this Agreement,
and by each subsequent delivery of additional Collateral under this Agreement,
each Debtor reaffirms the representations and warranties contained in the
Warehouse Credit Agreement. Each Debtor further represents and warrants to
Secured Party as Representative of Warehouse Lenders as follows:
3.1 Concerning Debtors. The facts concerning Debtors' names, taxpayer
identification numbers, ownership, state of incorporation, states in which
Debtors are qualified as foreign corporations, trade names used, chief executive
offices' locations and other principal offices' locations that are stated on
Schedule I hereto and its attached list, are true and correct in all respects.
3
<PAGE> 161
3.2 Concerning the Collateral. All Collateral (a) is genuine and in
all respects what it purports to be, (b) is the legal, valid, and binding
obligation of each Obligor (except as enforceability may be limited by Debtor
Laws), (c) is free from any claim for credit, deduction, or allowance of any
Obligor and free from any defense, dispute, setoff, or counterclaim (other than
for payments made in respect of it), (d) if a Mortgage Loan was originated and
is in compliance with all Laws (including, without limitation, all usury Laws,
the Real Estate Settlement Procedures Act of 1974, the Equal Credit Opportunity
Act, the Federal Trust in Lending Act, Regulation Z promulgated by the Board of
Governors of the Federal Reserve System, and all applicable federal and state
consumer protection Laws, (e) if a Mortgage Security, is duly authorized and
validly issued, the transfer of which is not subject to any restrictions other
than under the Warehouse Loan Documents, (f) if a Take-out commitment or other
contract, is in full force and effect without any material default having
occurred by any party to it, and (g) conforms to the applicable requirements of
eligibility under SCHEDULE EC to the Warehouse Credit Agreement.
3.3 Ownership and Priority. Debtors have full legal and beneficial
ownership of all Collateral, free and clear of all liens except Permitted Liens.
3.4 Creation and Perfection. The Security Interest is created and
perfected on (a) each promissory note that evidences a Mortgage Loan or Land
Contract ever identified as Collateral and delivered to Secured Party, (b) each
promissory note that evidences a Mortgage Loan identified by a Debtor to Secured
Party as supporting a Wet Borrowing for twenty-one (21) days after the
Disbursement Date for that Borrowing, (c) each Mortgage Security in certificated
form that is delivered to Secured Party, (d) each Mortgage Security in book
entry form when notice of the Security Interest is given to the financial
institution in whose favor that security has been issued and that institution
confirms that notice, (e) all Collateral shipped to any investor under SECTION
3.1 of the Custody Agreement (and the Security Interest shall continue to be
perfected until Secured Party receives either payment or Mortgage Securities
under that section), (f) all Collateral shipped to a Debtor for correction or
servicing under SECTION 4.2 of the Custody Agreement (and the Security Interest
shall continue to be perfected for twenty-one (21) days after that shipment),
and (g) all other Collateral upon possession or the filing of financing
statements by Secured Party.
SECTION 4. COVENANTS. Until all commitments by Secured Party and Warehouse
Lenders to extend credit under the Warehouse Credit Agreement have been canceled
or terminated and the Obligations are fully paid and performed, Debtors covenant
and agree with Secured Party as Representative of Warehouse Lenders as follows:
4.1 Concerning the Collateral. Debtors (a) shall fully perform all of
their duties under and in connection with each transaction to which any
Collateral relates, (b) shall promptly notify Secured Party about any change in
any fact or circumstances represented or warranted by any Debtor about any
Collateral, (c) shall promptly notify Secured Party of any claim, action, or
proceeding affecting title to any Collateral or the Security Interest and, at
Secured Party's request and Debtors' expense, appear in and defend that action
or proceeding, (d) shall hold in trust for Secured Party (as
4
<PAGE> 162
agent and Representative of the Warehouse Lenders) all Collateral not delivered
to Secured Party (without excusing any failure to deliver Collateral Papers to
Secured Party as required by this Agreement) and mark that Collateral on the
relevant Debtor's records that it is subject to the Security Interest (but the
failure to do so does not impair the Security Interest or its priority), (e)
other than collections under SECTION 4.3 below, shall pay and deliver to Secured
Party all items and types of property into which any Collateral may be converted
(all of which shall automatically be and remain subject to the Security
Interest) and properly endorse, assign, or take such other action as Secured
Party may request in order to maintain and continue the Security Interest in
that property, (f) may not compromise, extend, release, or adjust payments on
any Collateral, accept a conveyance of mortgaged property in full or partial
satisfaction of any Collateral, or release any mortgage, deed of trust, or trust
deed securing or underlying any Collateral, and (g) may not agree to the
amendment, termination, or substitution of any Take-out Commitment covered by
the Security Interest if that amendment, termination or substitution would have
a Material Adverse Effect.
4.2 Insurance. Debtors shall keep the collateral fully insured in the
amounts, against the risks, and with insurers as may be approved by Secured
Party, with loss payable to Secured Party as its interest (as agent and
Representative of Warehouse Lenders) may appear.
4.3 Collections. Debtors shall, at their sole cost and expense,
whether requested to by Secured Party or in the absence of such a request, take
all actions reasonably necessary to obtain payment, when due and payable, of all
amounts due or to become due from Obligers with respect to any Collateral.
Debtors may not agree to any rebate, refund, compromise or extension with
respect to any Collateral or accept any prepayment on account of any Collateral
other than in a manner and to the extent consistent with or as may otherwise be
provided in various servicing agreements to which it is a party or subject.
(a) No Event of Default. While no Event of Default exists,
Debtors shall make all of those collections, shall maintain such escrow accounts
and otherwise comply with the servicing agreements to which it is a party or
subject, and may otherwise comply with the servicing agreements to which it is a
party or subject, and may otherwise retain and use the proceeds of those
collections in the ordinary course of their business.
(b) Default. While an Event of Default exists, and upon the
request of Secured Party, Debtors shall (i) notify and direct each Obligor to
make payments on the collateral to Secured Party for deposit into such accounts
as it may designate so as to be held as Collateral under this Agreement and (ii)
otherwise turn over to Secured Party, in the form received and with any
necessary endorsements, all payments they receive in respect of any Collateral
for deposit into such accounts as Secured Party may designate to be held as
collateral under this Agreement. Secured Party may at any time apply any amounts
in those accounts as a payment of the Obligations, other than mortgage escrow
payments that are deposited into escrow accounts in accordance with the
applicable Guide or servicing contract.
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<PAGE> 163
4.4 Concerning Debtors. Without first giving Secured Party thirty
(30) days notice (or fewer if agreed to in writing by Secured Party) of the
intention to do any of the following and performing such acts and executing and
delivering to Secured Party such additional documents as Secured Party requests
in order to continue or maintain the existence and priority of the Security
Interest, no Debtor may (a) use or transact business under any corporate,
assumed, or trade name, except as represented in the Warehouse Credit Agreement,
(b) relocate its chief executive offices or principal place of business or (c)
move or surrender possession of its books and records regarding the Collateral.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES. If an Event of Default exists,
then Secured Party may, at its election (but subject to the terms and conditions
of the Warehouse Credit Agreement), exercise any and all rights available to a
secured party under the UCC, in addition to any and all other rights afforded by
the Warehouse Loan Documents, at law, in equity, or otherwise, including,
without limitation (a) requiring Debtors to assemble all or part of the
Collateral and make it available to Secured Party at a place to be designated by
Secured Party which is reasonably convenient to Debtors and Secured Party, (b)
selling the Collateral as provided below in this Section, (c) surrendering any
policies of insurance on all or part of the Collateral and receiving and
applying the unearned premiums as a credit on the Obligations, (d) applying by
appropriate judicial proceedings for appointment of a receiver for all or part
of the Collateral (and Debtors hereby consent to any such appointment) and (e)
applying to the Obligations any cash held by Secured Party or any Lender under
the Warehouse Loan Documents.
5.1 Sale of Collateral. If and to the extent permitted or required by
applicable law, Secured Party may, without notice except as hereinafter
provided, sell the Collateral or any part thereof at public or private sale
(with or without appraisal or having the Collateral at the place of sale) for
cash, upon credit, or for future delivery, and at such price or prices as
Secured Party may deem best, and Secured Party (as agent and Representative of
the Warehouse Lenders) may be the purchaser of any and all of the Collateral so
sold and may apply upon the purchase price therefor any of the Obligations and
thereafter hold the same absolutely free from any right or claim of whatsoever
kind. Secured Party is authorized at any such sale, if Secured Party deems it
advisable or is required by applicable law so to do, (i) to restrict the
prospective bidders on or purchasers of any of the Collateral to a limited
number of sophisticated investors who will represent and agree that they are
purchasing for their own account for investment and not with a view to the
distribution or resale of any of the Collateral, (ii) to cause to be placed on
certificates for any or all of the Collateral a legend to the effect that such
security has not been registered under the Securities Act of 1933, as amended,
and may not be disposed of in violation of the provisions of said Act, and (iii)
to impose such other limitations or conditions in connection with any such sale
as Secured Party deems necessary or advisable in order to comply with said Act
or any other applicable law. Debtors agree to execute and deliver such documents
and take such other action as Secured Party deems necessary or advisable in
order that any such sale may be made in compliance with applicable law. Upon any
such sale, Secured Party shall have the right to deliver, assign and transfer to
the purchaser thereof the Collateral so sold. Each purchaser at any such sale
shall hold the property sold absolutely free from any claim or right of
whatsoever kind, including any equity or right of redemption, stay or appraisal
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<PAGE> 164
which Debtors have or may have under any rule of law or statute now existing or
hereafter adopted. To the extent notice is required by applicable law, Secured
Party shall give Debtors written notice at the address set forth in the
Warehouse Credit Agreement (which shall satisfy any requirement of notice or
reasonable notice in any applicable statute) of Secured Party's intention to
make any such public or private sale. Reasonable notification of the time and
place of any public sale of the collateral, or reasonable notification of the
time after which any private sale or other intended disposition of the
Collateral is to be made, shall be sent to the affected Debtor and to any other
Person entitled to notice under the UCC. If any Collateral threatens to decline
speedily in value or is of the type customarily sold on a recognized market,
Secured Party may sell or otherwise dispose of the Collateral without
notification, advertisement, or other notice of any kind. Notice sent or given
not less than five (5) calendar days before the taking of the action to which
the notice relates is reasonable notification and notice for the purposes of
this Section. Such notice (if any is required by applicable law), in case of
public sale, shall state the time and place fixed for such sale or, in case of
private sale or other disposition other than a public sale, the time after which
the private sale or other such disposition is to be made. Any public sale shall
be held at such time or times, within ordinary business hours and at such place
or places, as Secured Party may fix in the notice of such sale. At any sale the
Collateral may be sold in one lot as an entirety or in separate parcels as
Secured Party may determine. Secured Party shall not be obligated to make any
sale pursuant to any such notice. Secured Party may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at any time and place fixed for such
sale, and such sale may be made at any time or place to which the same may be so
adjourned. In case of any sale of all or any part of the Collateral on credit or
for future delivery, the Collateral so sold may be retained by Secured Party
until the selling price is paid by the purchaser thereof, but Secured Party
shall incur no liability in case of the failure of such purchaser to take up and
pay for the Collateral so sold, and in case of any such failure, such Collateral
may again be sold upon like notice. Each and every method of disposition
described in this Section shall constitute disposition in a commercially
reasonable manner. Debtors shall remain jointly and severally liable for any
deficiency. The Companies hereby acknowledge and agree that Mortgage Loans and
Mortgage Securities are property of a type customarily sold on a recognized
market. The Companies also hereby agree that any sale of a Mortgage Loan or
Mortgage Security pursuant to a Take-out Commitment, and any other sale of
Collateral arranged by any Company (whether before or after an Event of
Default), shall be conclusively presumed to be commercially reasonable.
5.2 Additional Rights of Secured Party. Secured Party shall have all
the rights of a secured party after default under the Uniform Commercial Code of
Texas and in conjunction with, in addition to or in substitution for those
rights and remedies:
(a) it shall not be necessary that the Collateral or any part
thereof be present at the location of any sale pursuant to the provisions of
this Section;
(b) before application of proceeds of disposition of the
Collateral to the Obligations, such proceeds shall be applied to the reasonable
expenses of retaking, holding, preparing for sale or lease, selling, leasing and
the like and the reasonable attorneys' fees and legal
7
<PAGE> 165
expenses incurred by Secured Party, each Debtor, to the extent applicable, to
remain liable for any deficiency;
(c) the sale by Secured Party of less than the whole of the
Collateral shall not exhaust the rights of Secured Party hereunder, and Secured
Party is specifically empowered to make successive sale or sales hereunder until
the whole of the Collateral shall be sold; and, if the proceeds of such sale of
less than the whole of the Collateral shall be less than the aggregate of the
Obligations, this Agreement and the Security Interest created hereby shall
remain in full force and effect as to the unsold portion of the Collateral just
as though no sale had been made;
(d) in the event any sale hereunder is not completed or is
defective in the opinion of Secured Party, such sale shall not exhaust the
rights of Secured Party hereunder and Secured Party shall have the right to
cause a subsequent sale or sales to be made hereunder;
(e) any and all statements of fact or other recitals made in any
bill of sale or assignment or other instrument evidencing any foreclosure sale
hereunder as to nonpayment of any indebtedness or as to the occurrence of any
default, or as to Secured Party having declared all of such indebtedness to be
due and payable, or as to notice of time, place and terms of sale and the
Collateral to be sold having been duly given, as to any other act or thing
having been duly done by Secured Party, shall be taken as prima facie evidence
of the truth of the facts so stated and recited;
(f) Secured Party may appoint or delegate any one or more
persons as agent to perform any act or acts necessary or incident to any sale
held by Secured Party, including the sending of notices and the conduct of sale,
but in the name and on behalf of Secured Party; and
(g) demand of performance, advertisement and presence of
property at sale are hereby WAIVED and Secured Party (as agent and
Representative of the Warehouse Lenders) is hereby authorized to sell hereunder
any evidence of debt it may hold as security for the Obligations. All demands
and presentments of any kind or nature are expressly WAIVED by Debtors. Debtors
WAIVE the right to require Secured Party to pursue any other remedy for the
benefit of Debtors and agree that Secured Party may proceed against any Debtor
for the amount of the Obligations owed to the Warehouse Lenders or the Warehouse
Agent without taking any action against any other Debtor or any other Person and
without selling or otherwise proceeding against or applying any of the
Collateral.
5.3 Application of Proceeds. Secured Party shall apply the proceeds
of any sale or other disposition of the collateral under this SECTION 5 in the
order and manner specified in SECTION 14.9 of the Warehouse Credit Agreement.
Any surplus remaining shall be delivered to the relevant Debtor or as a court of
competent jurisdiction may direct. If the proceeds are insufficient to pay the
Obligations in full, Debtors remain liable for any deficiency.
SECTION 6. OTHER RIGHTS.
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<PAGE> 166
6.1 Performance. If Debtors fail to pay when due all Taxes on any of
the Collateral, or to preserve the priority of the Security Interest in any of
the Collateral, or to keep the Collateral insured as required by this Agreement,
or otherwise fail to perform any of their obligations under any Warehouse Loan
Documents or Collateral Papers with respect to the Collateral, then Secured
Party may, at its option, but without being required to do so, pay such Taxes,
prosecute or defend any suits in relation to the Collateral, or insure and keep
insured the Collateral in any amount deemed appropriate by Secured Party, or
take all other action which Debtors are required, but have failed or refused, to
take under the Warehouse Loan Documents or Collateral Papers. Any sum which may
be expended or paid by Secured Party under this Section (including, without
limitation, court costs and attorneys' fees) shall bear interest from the dates
of expenditure or payment at the Past Due Rate until paid and, together with
such interest, shall be payable by Debtors to Secured Party upon demand and is
part of the Obligations.
6.2 Collection.
(a) Actions. When Secured Party is entitled under SECTION 4.3
above to make collection on any Collateral, it may in its own name or in the
name of any Debtor (i) compromise or extend the time of payment with respect to
any Collateral for such amounts and upon such terms as Secured Party may
determine, (ii) demand, collect, receive, receipt for, sue for, compound, and
give acquittance for any and all amounts due or to become due with respect to
Collateral, (iii) take control of cash and other proceeds of any Collateral,
(iv) endorse any Debtor's name on any notes, acceptances, checks, drafts, money
orders, or other evidences of payment on Collateral that may come into Secured
Party's possession, (v) sign any Debtor's name on any invoice or bill of lading
relating to any Collateral, on any drafts against Obligors or other Persons
making payment with respect to Collateral, on assignments and verifications of
accounts or other Collateral and on notices to Obligors making payment with
respect to Collateral, (vi) send requests for verification or obligations to any
Obligor, (vii) do all other acts and things necessary to carry out the intent of
this Agreement, and (viii) authorize any Servicer in respect of any Collateral
to perform any one or more of the foregoing on Secured Party's behalf.
(b) If any Obligor fails or refuses to make payment on any
Collateral when due, Secured Party is authorized, in its sole discretion, either
in its name or in any Debtor's name, to take such action as Secured Party deems
appropriate for the collection of any amounts owed with respect to Collateral or
upon which a delinquency exists. Regardless of any other provision, however,
Secured Party is never liable for its failure to collect, or for its failure to
exercise diligence in the collection of, any amounts owed with respect to
Collateral and is not under any duty whatever to anyone except Debtors and the
Warehouse Lenders to account for funds that it actually receives. Without
limiting the generality of the foregoing, Secured Party has no responsibility
for ascertaining any maturities, calls, conversions, exchanges, offers, tenders,
or similar matters relating to any Collateral, or for informing Debtors with
respect to any of such matters (irrespective of whether Secured Party actually
has, or may be deemed to have, knowledge thereof). Secured Party's receipt
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<PAGE> 167
to any Obligor is a full and complete release, discharge, and acquittance to
that Obligor, to the extent of any amount so paid to Secured Party.
6.3 Power of Attorney. Each Debtor irrevocably appoints Secured
Party, acting on behalf of Warehouse Lenders, as its attorney-in-fact (with full
power of substitution) for, on behalf, and in the name of such Debtor to (a)
endorse and deliver to any Person any check, instrument, or other document
received by Secured Party or any Lender that represents payment in respect of
any Collateral, (b) prepare, complete, execute, deliver, and record any
assignment of any mortgage, deed of trust, or trust deed securing any
Collateral, (c) endorse and deliver or otherwise transfer any promissory note
evidencing any Collateral and do every other thing necessary or desirable to
effect transfer of all or any Collateral, (d) take all necessary and appropriate
action with respect to any of the Obligations or any Collateral, (e) commence,
prosecute, settle, discontinue, defend, or otherwise dispose of any claim
relating to any Collateral, and (f) sign such Debtor's name wherever appropriate
to effect the performance of this Agreement and the Warehouse Credit Agreement.
This Section shall be liberally, not restrictively, construed to give the
greatest latitude to Secured Party's power as such Debtor's attorney-in-fact to
collect, sell and deliver any Collateral and all documents relating to it. the
powers and authorities conferred on Secured Party in this Section (w) are
discretionary and not obligatory on the part of Secured Party, (x) may be
exercised by Secured Party through any Person who, at the time of the execution
of particular documents, is an officer of Secured Party, (y) may not be
exercised by Secured Party unless a Default or an Event of Default exists, and
(z) is granted for a valuable consideration, coupled with an interest, and
irrevocable until, and all Persons dealing with Secured Party, any of its
officers acting under this Section, or any substitute are fully protected in
treating the powers and authorities conferred by this Section as existing and
continuing in full force and effect until advised by Secured Party that, all
commitments under the Warehouse Credit Agreement to extend credit have been
terminated or canceled and the Obligations are fully paid and performed.
SECTION 7. MISCELLANEOUS.
7.1 Miscellaneous. Because this Agreement is a "Warehouse Loan
Document" referred to in the Warehouse Credit Agreement, the provisions relating
to Warehouse Loan Documents in SECTIONS 1 and 17 of the Warehouse Credit
Agreement are incorporated into this Agreement by reference the same as if
included in this Agreement verbatim.
7.2 Term. This Agreement terminates upon full and indefeasible
payment and performance of the Obligations. No Obligor is ever obligated to make
inquiry of the termination but is fully protected in making any payments on the
Collateral directly to Secured Party.
7.3 Matters Not Relevant. The Security Interest, Debtors'
obligations, and Secured Party's and Warehouse Lenders' rights under this
Agreement are not released, diminished, impaired, or adversely affected by any
one or more of the following: (a) Secured Party's or any Lender's taking or
accepting any additional, or any release, surrender, exchange, subordination, or
loss of any other, guaranty, assurance, or security for any of the Obligations;
(b) any full or partial release of any other Person obligated on any of the
Obligations; (c) the modification or assignment of, or waiver of compliance
with, any other Loan Document; (d) any present or future insolvency,
bankruptcy, or
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<PAGE> 168
lack of corporate, partnership, or trust power of any other Person obligated on
any of the Obligations; (e) any renewal, extension or rearrangement of any of
the Obligations, or any adjustment, indulgence, forbearance, or compromise
granted to any Person obligated on any of the Obligations; (f) any Person's
neglect, delay, omission, failure, or refusal to take or prosecute any action
in connection with any of the Obligations; (g) any existing or future right,
claim or defense (other than the defense of full and final payment of the
Obligations) of any Debtor or any other Person against Secured Party or any
Lender; (h) the unenforceability of any of the Obligations against any Person
obligated or any part of the Obligations because it exceeds the amount
permitted by Law, the act of creating it is ultra vires, or the officers,
partners, or trustees creating it exceeded their authority or violated their
fiduciary duties, or otherwise; (i) any payment of the Obligations is held to
constitute a preference under any Debtor Law or for any other reason Secured
Party of any Lender is required to refund any payment or make payment to
another Person; or (j) any Person's failure to notify any Debtor about the
foregoing events or occurrences; and each Debtor waives any notice of any kind
under any circumstances whatsoever with respect to this Agreement or any of the
Obligations other than as specifically provided in this Agreement.
7.4 Waivers. Except to the extent expressly otherwise provided in the
Warehouse Loan Documents, each Debtor waives (a) any right to require Secured
Party or any Lender to proceed against any other Person, to exhaust its rights
in the Collateral, or to pursue any other right which Secured Party or any
Lender may have, and (b) all rights of marshaling in respect of the Collateral.
7.5 Financing Statement. Secured Party may, at any time, file this
Agreement or a carbon photographic, or other reproduction of this Agreement as a
financing statement, but Secured Party's failure to do so does not impair the
validity or enforceability of this Agreement.
7.6 Parties. This Agreement binds and benefits Debtors, Secured Party
and each Warehouse Lender, and their respective successors and permitted
assigns. Only those Persons may rely or raise any defense about this Agreement.
(a) Assignments. Debtors may not assign any rights or
obligations under this Agreement without first obtaining the written
consent of Secured Party and all Warehouse Lenders. Secured Party's rights
under this Agreement may be assigned to any successor agent appointed under
the Warehouse Credit Agreement.
(b) Secured Party. Secured Party is the agent for each Warehouse
Lender. Secured Party may, without the joinder of any Warehouse Lender, exercise
any rights in favor of any of them under this Agreement. The rights of Secured
Party and Warehouse Lenders vis-a-vis each other may be subject to other
agreements between them. Neither Debtors nor their respective successors or
permitted assigns need to inquire about any such agreement or be subject to the
terms of it unless they join in it and, therefore, are not entitled to the
benefits of any such agreement or entitled to rely upon or raise as a defense
the failure of any party to comply with it.
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<PAGE> 169
7.7 Entire Agreement. THIS AGREEMENT AND THE OTHER WAREHOUSE LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUSLY, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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<PAGE> 170
EXECUTED as of the date first stated above.
MCA FINANCIAL CORP., TEXAS COMMERCE BANK NATIONAL
MCA MORTGAGE CORPORATION, ASSOCIATION, in its capacity as
MORTGAGE CORPORATION OF Warehouse Agent and
AMERICA, as Debtors as Secured Party
By: By:
------------------------------- ------------------------------
Name: Name:
---------------------------- ---------------------------
Title: Title:
---------------------------- ---------------------------
MORTGAGE CORPORATION OF
AMERICA, INC., as Debtor
By:
-------------------------------
Name:
----------------------------
Title:
----------------------------
13
<PAGE> 171
SCHEDULE I TO WAREHOUSE SECURITY AGREEMENT
PLACE OF BUSINESS, TRADE NAMES AND FORMER NAMES
OF BORROWERS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
STILL USING
STATE OF STATES QUALIFIED TRADE NAME?
NAME AND TAXPAYER I.D. OWNERSHIP INCORPORATION AS FOREIGN CORP. NAMES USED Y/N
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
MCA Financial Corporation Approximately 523,283 shares Michigan None None No
38-3014001 owned by various individuals and
entities disclosed to the
Warehouse Agent on a separate
schedule
- ------------------------------------------------------------------------------------------------------------------------------------
MCA Mortgage Corporation MCA Financial Corp. Michigan See attached list None No
38-2613174
- ------------------------------------------------------------------------------------------------------------------------------------
Mortgage Corporation of MCA Financial Corp. Michigan Indiana, Ohio None No
America
38-2509529
- ------------------------------------------------------------------------------------------------------------------------------------
Mortgage Corporation of Mortgage Corporation of America Ohio None None No
America, Inc.
37-1371271
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------
OTHER
CHIEF EXECUTIVE PRINCIPAL
NAME AND TAXPAYER I.D. OFFICE OFFICES
- ------------------------------------------------------------------
<S> <C> <C>
MCA Financial Corporation 23999 Northwestern Hwy. None
38-3014001 Southfield, MI 48075
- ------------------------------------------------------------------
MCA Mortgage Corporation 23999 Northwestern Hwy. None
38-2613174 Southfield, MI 48075
- ------------------------------------------------------------------
Mortgage Corporation of 23999 Northwestern Hwy. None
America Southfield, MI 48075
38-2509529
- ------------------------------------------------------------------
Mortgage Corporation of 23999 Northwestern Hwy. None
America, Inc. Southfield, MI 48075
37-1371271
- ------------------------------------------------------------------
</TABLE>
<PAGE> 172
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
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
<PAGE> 173
EXHIBIT G-2
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
<S> <C>
DEBTOR'S NAME AND MAILING ADDRESS:
------------------------------------------
------------------------------------------
------------------------------------------
FED. TAX ID NO. --------------------------
- ----------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING Texas Commerce Bank National Association, as
ADDRESS: Warehouse Agent(1)
------------------------------------------
------------------------------------------
FED. TAX ID NO. --------------------------
- ----------------------------------------------------------------------------------
FOR FILING OFFICER:
- ----------------------------------------------------------------------------------
</TABLE>
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE
BY DEBTOR (THE "COLLATERAL"):
- Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Second Mortgage Loans from time to time identified to Secured
Party as Collateral.
- Construction Loans from time to time identified to Secured Party
as Collateral.
- Land Contracts from time to time identified to Secured Party as
Collateral.
- All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust,
or trust deeds securing, those Mortgage Loans, Second Mortgage
Loans or Construction Loans, and all Land Contracts, whether
deposited with or held by or for Secured Party identified by
Debtor (or another Company) as Collateral for a Wet Borrowing, or
otherwise.
- Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all
commitments issued by FHA to insure or issued by VA to guarantee,
any Mortgage Loans or Construction Loans identified as
Collateral.
- ----------------
(1) Secured Party is serving as Warehouse Agent under the
Warehouse Credit Agreement, and the security interest
evidenced by this financing statement, as amended from time
to time, is granted to Secured Party in that capacity and as
secured party on behalf of all of the Warehouse Lenders,
including Texas Commerce, Residential Funding Corporation,
Guaranty Federal Bank, F.S.B., Bank One, Texas, N.A., The
Bank of New York and LaSalle National Bank
<PAGE> 174
- Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- Casualty insurance assigned to Debtor in connection with any
Mortgage Collateral identified as Collateral.
- Mortgage Securities deposited with or held by or for Secured
Party under the Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Warehouse Loan Documents.
- Guaranties related to Mortgage Securities identified as
Collateral.
- Take-out Commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities,
as the case may be, to the investors or other purchasers under
those Take-out Commitments, and all proceeds resulting from the
sale of any of those Mortgage Loans, Construction Loans, Second
Mortgage Loans or Mortgage Securities under those Take-out
Commitments.
- Any Collateral otherwise described in the security agreement to
which this financing statement relates that may from time to time
be delivered (a) to an investor (or its custodian or other
designee) under Section 4.1 of the Custody Agreement until
purchased and paid for by that investor or (b) to a Company for
correction or servicing under Section 4.2 of the Custody
Agreement.
- The Warehouse Note Payment/Funding Account, all other accounts
that Debtor maintains with Secured Party, Warehouse Agent, or any
Lender, and all amounts deposited in them or represented by them.
- Personal property, contract rights, accounts, and general
intangibles of any kind whatsoever relating to any Collateral.
- All files, surveys, certificates, correspondence, appraisals,
tapes, discs, cards, accounting records, and other information
and data of Debtor relating to any Collateral, including, without
limitation, all information, data, tapes, discs, and cards
necessary to administer and service any Collateral.
- Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
- ---------------------------------- TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Warehouse Agent for
Warehouse Lenders
By By
-------------------------------- ------------------------------------
(Name) (Name)
-------------------------------- --------------------------------
(Title) (Title)
--------------------------- -------------------------------
<PAGE> 175
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
____________________________, AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS WAREHOUSE AGENT, AS SECURED PARTY
<PAGE> 176
EXHIBIT H
OPINION OF COUNSEL
The opinion delivered by counsel to the Companies must be in form and
substance acceptable to Warehouse Agent and its special counsel and cover the
following matters:
1. Each Company is duly organized, validly existing, and in good
standing under the Laws of the jurisdiction in which it is incorporated as
stated in the Recitals to the Warehouse Credit Agreement.
2. Each Company is duly qualified to transact business and is in
good standing as a foreign corporation or other entity in each jurisdiction so
indicated on SCHEDULE I to the Security Agreement and in each other jurisdiction
where, to the best of that counsel's knowledge, the nature and extent of that
Company's business and properties require due qualification and good standing.
3. To the best of that counsel's knowledge, except as described on
SCHEDULE 11.1 to the Warehouse Credit Agreement (a) no Company has any
Subsidiaries and (b) no Company has used or transacted business under any other
corporate or trade name in the six-month period preceding the date of the
Warehouse Credit Agreement.
4. Each Company possesses all requisite corporate power and
authority to own or lease its property and to conduct its business as is now
being conducted, or is contemplated by the Warehouse Credit Agreement to be
conducted.
5. The execution and delivery of each Company of each Loan Document
to which it is a party and the performance by it of its related obligations (a)
are within its corporate power, (b) have been duly authorized by all necessary
corporate action on its behalf, (c) except for any action or filing that has
been taken or made on or before the date of this opinion, require no action by
or filing with any Tribunal, (d) do not violate any provision of its articles of
incorporation, charter or bylaws, (e) do not violate any provision of Law
applicable to it or any material agreements to which it is a party and of which
that counsel is aware, and (f) except for Lender Liens, do not result in the
creation or imposition of any Lien on any asset of any Company.
6. Upon execution and delivery by all parties to it, each Loan
Document constitutes a legal and binding obligation of each Company party to it,
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable Debtor Laws and general principles of equity.
7. Except as disclosed on SCHEDULE 11.4 to the Warehouse Credit
Agreement (a) no Company is subject to, or aware of the threat of, any
Litigation that is reasonably likely to be
<PAGE> 177
determined adversely to it or, if so adversely determined, would have a Material
Adverse Effect, and (b) no outstanding or unpaid judgments against any Company
exist.
8. No Company is subject to regulation under the Investment Company
Act of 1940, as amended, or the Public Utility Holding Company Act of 1935,
amended.
9. Each Company is approved and qualified and in good standing as an
issuer, mortgagee, or seller/servicer, as described below, and meets all
requirements applicable to its status as such: (a) GNMA approved issuer of
Mortgage Securities guaranteed by GNMA; (b) FNMA approved seller/servicer of
Mortgage Loans, eligible to originate, purchase, hold, sell, and service
Mortgage Loans to be sold to FNMA; (c) FHLMC approved seller/servicer of
Mortgage Loans, eligible to originate, purchase, hold, sell and service Mortgage
Loans to be sold to FHLMC; (d) FHA approved mortgagee, eligible to originate,
purchase, hold, sell and service FHA Loans; and (e) VA approved mortgagee,
eligible to originate, purchase, hold, sell and service VA Loans.
10. Lender Liens are created and perfected upon (a) each note that is
delivered to Warehouse Agent, (B) each Land Contract that is delivered to
Warehouse Agent, (b) each Mortgage Security in certificated form that is
delivered to Warehouse Agent or its bailee, (c) each note and related Take-out
Commitment provided as Collateral for a Wet Borrowing for twenty-one (21) days
after the applicable Disbursement Date, (d) all Mortgage Collateral shipped to
any investor under a Bailee Letter (as defined in the Custody Agreement), which
perfection continues until Warehouse Agent receives Mortgage Securities or
payment is made to Warehouse Agent under that Bailee Letter, (e) all Mortgage
Collateral shipped to any Company for correction or servicing, which perfection
continues for twenty-one (21) days, and (f) the Warehouse Note Payment/Funding
Account upon the execution and delivery of the Security Agreement by Companies.
11. With respect to FNMA and FHLMC Mortgage Securities that are held
in book entry form and are identified on a Submission List or are otherwise
designated by any of the Companies as Collateral under the Warehouse Credit
Agreement, a Lender Lien is created and perfected upon those Mortgage Securities
(a) when written notification is sent to the securities intermediary (on whose
books the appropriate Companies' ownership of those Mortgage Securities is
entered) of the assignment and pledge of those Mortgage Securities to Warehouse
Agent (as agent and Representative of Warehouse Lenders), and (b) that
securities intermediary indicates by book entry the securities entitlement of
the Warehouse Agent. As used in this paragraph, "SECURITIES INTERMEDIARY" means
a depository institution, clearing corporation, securities broker or other
Person that regularly accepts in the course of its business FNMA and FHLMC
Mortgage Securities as a custodial service for its customers, and maintains
accounts in the names of those customers reflecting ownership of or interests in
those Mortgage Securities.
12. With respect to the GNMA Mortgage Securities that are identified
on a Submission List or are otherwise designated by any of the Companies as
Collateral under the Warehouse Credit Agreement and are held in book entry form
through Participants Trust Company ("PTC"), a Lender Lien is created and
perfected upon those Mortgage Securities when (a) PTC, by making the
2
<PAGE> 178
appropriate entries to its books, transfers those Mortgage Securities to the
account of The Chase Manhattan Bank, acting as a participant in PTC and as
agent/custodian for Warehouse Agent (as agent and Representative of Warehouse
Lenders) pursuant to a custodian agreement ("Custodian") and (b) Custodian, by
book entry or otherwise, identifies the GNMA Mortgage Securities as belonging
to, or subjected to a security interest of, Warehouse Agent (as agent and
Representative of Warehouse Lenders) and provides confirmation of that action to
Warehouse Agent .
3
<PAGE> 179
EXHIBIT I-1
DISBURSEMENT REQUEST CERTIFICATE
(to refinance Eligible Warehouse Collateral)
================================================================================
This certificate is delivered pursuant to SECTION 5.1 of the 10/97
Senior Secured Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, the Warehouse Agent and the Warehouse Lenders. Terms defined in the
Warehouse Credit Agreement have the same meaning when used, unless otherwise
defined, in this certificate.
I certify to Warehouse Agent and Warehouse Lenders that on the date of
this certificate:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. The proceeds of the requested Revolving Loan are to be used to
refinance Debt secured by Eligible Warehouse Collateral currently held by Texas
Commerce, who will assign to the Warehouse Agent (as agent and Representative of
the Warehouse Lenders) its security interest in all collateral for such existing
Debt being refinanced and, upon disbursement of such proceeds to Texas Commerce,
a Company will own good and marketable title to such Collateral, free and clear
of any lien, pledge, charge or interest of any party other than the Warehouse
Agent (as agent and Representative of the Warehouse Lenders).
3. All of the Collateral in which the Warehouse Agent (as agent and
Representative of the Warehouse Lenders), by disbursing such refinancing
Warehouse Revolving Loan, will acquire a security interest shall be Eligible
Warehouse Collateral.
4. All of the Collateral to be so refinanced by the proposed
Warehouse Revolving Loan shall be Pledged to the Warehouse Agent as Collateral,
and to no other Person, and shall be subject to the Warehouse Credit Agreement
and the Warehouse Security Agreement, and the Warehouse Agent, as agent and
Representative of the Lenders, will thereby acquire and have a first and prior
perfected security interest therein.
5. No Default or Event of Default has occurred and is continuing.
<PAGE> 180
6. The warranties and representations set forth in SECTION 11 of the
Warehouse Credit Agreement and SECTION 3 of the Warehouse Security Agreement are
true and correct on and as of the date hereof.
By
---------------------------------
(Name)
-----------------------------
(1)(Title)
-------------------------
(Date)
-----------------------------
- ------------------
(1) Must be a Responsible Officer of all four Companies.
2
<PAGE> 181
EXHIBIT I-2
DISBURSEMENT REQUEST CERTIFICATE
(to finance new Eligible Warehouse Collateral)
================================================================================
This certificate is delivered pursuant to SECTION 5.2 of the 10/97
Senior Secured Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, the Warehouse Agent and the Warehouse Lenders. Terms defined in the
Warehouse Credit Agreement have the same meaning when used, unless otherwise
defined, in this certificate.
I certify to Warehouse Agent and Warehouse Lenders that on the date of
this certificate:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. The proceeds of the requested Revolving Loan are to be used to
finance origination or acquisition by a Company of new Eligible Warehouse
Collateral; and, upon disbursement of such proceeds to the mortgagors or Land
Contract purchasers (as the case may be) in respect of such Collateral (in the
case of an origination) or the seller of such Collateral (in the case of an
acquisition), such Company shall own good and marketable title to such new
Warehouse Collateral, free and clear of any lien, pledge, charge or interest of
any party other than the Warehouse Agent, as agent and Representative of the
Warehouse Lenders.
3. All of the Collateral to be originated or acquired with the
proceeds of the requested Revolving Loan shall be Eligible Warehouse Collateral.
4. All of Collateral to be originated or acquired with the proceeds
of the requested Revolving Loan shall be Pledged to the Warehouse Agent as
Warehouse Collateral, and to no other Person, and shall be subject to the
Warehouse Credit Agreement and the Warehouse Security Agreement.
5. No Default or Event of Default has occurred and is continuing.
<PAGE> 182
6. The warranties and representations set forth in SECTION 11 of the
Warehouse Credit Agreement and SECTION 3 of the Warehouse Security Agreement are
true and correct on and as of the date hereof.
By
---------------------------------
(Name)
-----------------------------
(1)(Title)
-------------------------
(Date)
-----------------------------
- ------------------
(1) Must be a Responsible Officer of all four Companies.
2
<PAGE> 183
EXHIBIT I-3
DISBURSEMENT REQUEST CERTIFICATE
(for supplemental Borrowing)
================================================================================
This certificate is delivered pursuant to SECTION 5.3 of the 10/97
Senior Secured Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, the Warehouse Agent and the Warehouse Lenders. Terms defined in the
Warehouse Credit Agreement have the same meaning when used, unless otherwise
defined, in this certificate.
I certify to Warehouse Agent and Warehouse Lenders that on the date of
this certificate:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. There is not now outstanding any Warehouse Revolving Loan
previously advanced by the Warehouse Lenders (and disbursed by the Warehouse
Agent) -- including any Swing Loan -- with respect to the Warehouse Collateral
to which such requested Warehouse Revolving Loan relates.
3. All of the Warehouse Collateral to which such requested Warehouse
Revolving Loan relates shall be Pledged to the Warehouse Agent, and to no other
Person, and shall be subject to the Warehouse Credit Agreement and the Warehouse
Security Agreement.
4. No Default or Event of Default has occurred and is continuing.
5. The warranties and representations set forth in SECTION 11 of the
Warehouse Credit Agreement and SECTION 3 of the Warehouse Security Agreement are
true and correct on and as of the date hereof.
By
---------------------------------
(Name)
-----------------------------
(1)(Title)
-------------------------
(Date)
-----------------------------
- ------------------
(1) Must be a Responsible Officer of all four Companies.
<PAGE> 184
EXHIBIT J
MCA FINANCIAL CORP.
WAREHOUSE COLLATERAL CERTIFICATE
The undersigned, ______________, certifies to Texas Commerce Bank
National Association ("TEXAS COMMERCE"), as a lender and as agent (the
"WAREHOUSE AGENT") for certain other Warehouse Lenders, that he is the duly
appointed Chief Financial Officer of MCA Financial Corp., a Michigan corporation
(the "COMPANY"). Pursuant to the 10/97 Senior Secured Warehouse Credit Agreement
among the Company, the other Companies named therein, the Warehouse Agent and
Texas Commerce as a lender and the other Warehouse Lenders party thereto dated
October 31, 1997 (as it may have been supplemented, amended or restated from
time to time, the "WAREHOUSE CREDIT AGREEMENT"), the Company has delivered a
request to the Warehouse Agent dated as of ________, 199__, for disbursement of
a Warehouse Revolving Loan. Pursuant to SECTION 12.2(f) of the Warehouse Credit
Agreement, the undersigned further certifies to the Warehouse Lenders and the
Warehouse Agent as follows:
1. Capitalized terms used in this certificate and not otherwise
herein defined have the meaning ascribed to them in the Warehouse Credit
Agreement. As used herein, "WAREHOUSE COLLATERAL" 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 Warehouse
Collateral currently Pledged to the Warehouse Agent, according to the Companies'
records, categorized separately in the categories listed as items (a) - (m)
below. As of such date, the aggregate principal balances of such Mortgage Loans
and Land Contracts are:
(a) for Eligible Mortgage Loans that are
Bridged Loans: $
-------
(b) for Eligible Land Contracts that are
Bridged Loans: $
-------
(c) for all Bridged Loans [(a) + (b)]: $
-------
(d) for other Eligible Land Contracts
(i.e., that are not Bridged Loans): $
-------
(e) for Eligible Construction Loans: $
-------
(f) for Eligible Gestation Loans: $
-------
(g) for Eligible High LTV Mortgage Loans: $
-------
<PAGE> 185
(h) for Eligible Jumbo Loans: $
-------
(i) for Eligible Repurchased Loans: $
-------
(j) for Eligible Second Mortgage Loans: $
-------
(k) for Eligible Indirect Mortgage Loans: $
-------
(l) for Eligible D/E Mortgage Loans: $ -------
(m) for all other Eligible Mortgage Loans
(regular Warehouse Loans): $
-------
Total $
=======
IN WITNESS WHEREOF, the undersigned has executed this Warehouse
Collateral Certificate this ___ day of ________, 199__.
MCA FINANCIAL CORP.
By:
-----------------------------------
Name:
---------------------------------
Chief Financial Officer
2
<PAGE> 186
EXHIBIT K
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Agreement is entered into effective as of ______________ between
_________________ ("ASSIGNOR") and ___________________________________
("ASSIGNEE").
MCA FINANCIAL CORP., a Michigan corporation, MCA MORTGAGE CORPORATION,
a Michigan corporation, MORTGAGE CORPORATION OF AMERICA, a Michigan
corporation, and MORTGAGE CORPORATION OF AMERICA, INC. (the "COMPANIES"),
certain lenders (the "WAREHOUSE LENDERS") and TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as agent for the Warehouse Lenders (the "WAREHOUSE AGENT"), are
parties to the 10/97 Senior Secured Warehouse Credit Agreement dated as of
October 31, 1997 (as supplemented, amended or restated, the "WAREHOUSE CREDIT
AGREEMENT"), all of the defined terms in which have the same meanings when
used, unless otherwise defined, in this Agreement. This Agreement is entered
into as required by SECTION 15.17(B) of the Warehouse Credit Agreement and is
not effective unless the conditions of that Section of the Warehouse Credit
Agreement are satisfied and this Agreement is consented to by the Borrowers and
the Warehouse Agent (pursuant to the provisions of the Warehouse Credit
Agreement, the consent of Mortgage Corporation of America, Inc. is not
required).
ACCORDINGLY, for adequate and sufficient consideration, Assignor and
Assignee agree as follows:
1. ASSIGNMENT AND ASSUMPTION. By this Agreement, and effective as of
_____________________, 199__, (the "ASSIGNMENT EFFECTIVE DATE"), Assignor sells
and assigns to Assignee (without recourse to Assignor) and Assignee purchases
and assumes from Assignor a _____% interest (the "ASSIGNED INTEREST") in and to
all of Assignor's rights and obligations under the Warehouse Credit Agreement
(except any rights and obligations pertaining to Assignor's role as Warehouse
Agent, if applicable) as of the Assignment Effective Date, including, without
limitation, the Assigned Interest in (a) Assignor's Commitment as of the
Assignment Effective Date, (b) Notes held by Assignor as of the Assignment
Effective Date, (c) all principal Debt owed to Assignor on the Assignment
Effective Date, (d) all interest accruing in respect of the Assigned Interest
after the Assignment Effective Date, and (e) all Facility Fees accruing in
respect of the Assigned Interest under SECTION 7.6 of the Warehouse Credit
Agreement after the Assignment Effective Date.
2. ASSIGNOR PROVISIONS. Assignor (a) represents and warrants to
Assignee that as of the Assignment Effective Date (i) $________________ is
outstanding (without reduction for any assignments that have not yet become
effective) under the Warehouse Credit Agreement, (ii) Assignor is the legal and
beneficial owner of the Assigned Interest, which is free and clear of any
adverse claim, and (iii) Assignor has not yet been notified of an existing
Default or Event of Default, and (b) makes no representation or warranty to
Assignee and assumes no responsibility to Assignee
<PAGE> 187
with respect to (i) any statements, warranties, or representations made in or in
connection with any Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency, or value of any Loan Document, or
(iii) the financial condition of any Company or the performance or observance by
any Company of any of its obligations under any Loan Document.
3. ASSIGNEE PROVISIONS. Assignee (a) represents and warrants to
Assignor, the Companies, the Warehouse Agent and the Warehouse Lenders that
Assignee is legally authorized to enter into this Agreement, (b) confirms that
it has received a copy of the Warehouse Credit Agreement, copies of the
Companies' current Financial Statements and such other documents and information
as it deems appropriate to make its own credit analysis and decision to enter
into this Agreement, (c) agrees with Assignor, the Companies, the Warehouse
Agent and the Warehouse Lenders that Assignee shall, independently and without
reliance upon Warehouse Agent, Assignor, or any other Lender, and based on such
documents and information as Assignee deems appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Warehouse
Loan Documents, (d) appoints and authorizes Warehouse Agent to take such action
as agent on its behalf and to exercise such powers under the Warehouse Loan
Documents as are delegated to Warehouse Agent by the terms of the Warehouse Loan
Documents and all other reasonably incidental powers, (e) agrees with Assignor,
the Companies, the Warehouse Agent and the Warehouse Lenders that Assignee shall
perform and comply with all provisions of the Warehouse Loan Documents
applicable to the Warehouse Lenders in accordance with their respective terms
and (f) if Assignee is not organized under the Laws of the United States of
America or one of its states, it hereby makes the representations and warranties
to Assignor, the Companies, the Warehouse Agent and the Warehouse Lenders that
are set forth in SECTION 15.17(c) of the Warehouse Credit Agreement and agrees
to be bound by the terms of that Section.
4. WAREHOUSE CREDIT AGREEMENT AND COMMITMENTS. From and after the
Assignment Effective Date (a) Assignee shall be a party to the Warehouse Credit
Agreement and (to the extent provided in this Agreement) have the rights and
obligations of a Lender under the Warehouse Loan Documents and (b) Assignor
shall (to the extent provided in this Agreement) relinquish its rights --
excluding, however, its rights to recover costs, be reimbursed for expenses and
be indemnified under SECTIONS 2.3, 7.3 and 16 of the Warehouse Credit Agreement,
none of which is Assignor releasing) and be released from its obligations under
the Warehouse Loan Documents. On the Assignment Effective Date, after giving
effect to this and certain other assignment and assumption agreements that
become effective on the Assignment Effective Date, but without giving effect to
any other assignments that have not yet become effective, Assignor's Committed
Sum and Assignee's Committed Sum will be as follows:
<TABLE>
<CAPTION>
=================================
LENDER COMMITTED SUM
---------------------------------
<S> <C>
Assignor $
---------------------------------
Assignee $
=================================
</TABLE>
2
<PAGE> 188
5. NOTES. Assignor and Assignee request Companies to issue new
Notes to Assignor and Assignee in the amounts of their respective Committed
Sums under PARAGRAPH 4 above and otherwise issued in accordance with the
Warehouse Credit Agreement. Upon delivery of those Notes, Assignor shall return
to Companies all Notes previously delivered to Assignor under the Warehouse
Credit Agreement.
6. PAYMENTS AND ADJUSTMENTS. From and after the Assignment Effective
Date, Warehouse Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
Assignee. Assignor and Assignee shall make all appropriate adjustments in
payments for periods before the Assignment Effective Date by Warehouse Agent or
with respect to the making of this assignment directly between themselves.
Assignor and Assignee agree to share any payments and proceeds received by
either of them with respect to the Obligations ratably between them in
accordance with the provisions and intent of this Agreement.
7. CONDITIONS PRECEDENT. PARAGRAPHS 1 through 6 above are not
effective until (i) counterparts of this Agreement are executed and delivered by
Assignor and Assignee to, and are executed in the spaces below by, Companies and
Warehouse Agent, and (ii) Assignor, Assignee, Companies, and Warehouse Agent
comply with each of the requirements of SECTION 15.17(b) of the Warehouse Credit
Agreement.
8. INCORPORATED PROVISIONS. Although this Agreement is not a Loan
Document, the provisions of SECTIONS 1 and 17 of the Warehouse Credit Agreement
applicable to Warehouse Loan Documents are incorporated into this Agreement by
reference, the same as if this Agreement were a Loan Document and those
provisions were set forth in this Agreement verbatim.
9. COMMUNICATIONS. For purposes of SECTION 17.14 of the Warehouse
Credit Agreement, Assignee's address, telephone number and fax number, until
changed under that Section, are set out under its signature below.
10. AMENDMENTS, ETC. No amendment, waiver, or discharge to or under
this Agreement is valid unless it is in writing, signed by the party against
whom it is sought to be enforced, and is otherwise in conformity with the
requirements of the Warehouse Credit Agreement.
11. ENTIRETY. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN
ASSIGNOR AND ASSIGNEE ABOUT ITS SUBJECT MATTER AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF ASSIGNOR
AND ASSIGNEE. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN ASSIGNOR AND
ASSIGNEE.
12. PARTIES. This Agreement binds and benefits Assignor, Assignee and
their respective successors and assigns that are permitted under the Warehouse
Credit Agreement.
3
<PAGE> 189
EXECUTED as of _________ __, 199_, but effective as of the date first
stated above.
, as Assignor , as Assignee
- ----------------------- -------------------------
By By
------------------------------- --------------------------------------
(Name) (Name)
--------------------------- ----------------------------------
(Title) (Title)
-------------------------- ---------------------------------
(Address)
-------------------------------
-------------------------------
-------------------------------
Attn:
--------------------------
(Phone No.) ( ) -
--- --- ---------
(Fax No.) ( ) -
--- --- ---------
As of the Assignment Effective Date, the Borrowers and the Warehouse
Agent consent to this Agreement and the transactions contemplated in it.
MCA FINANCIAL CORP., TEXAS COMMERCE BANK NATIONAL
MCA MORTGAGE CORPORATION ASSOCIATION, as the Warehouse Agent
and MORTGAGE CORPORATION
OF AMERICA, as the Borrowers
By By
------------------------------ ---------------------------------
(Name) Pamela E. Skinner, Vice President
--------------------------
(1)(Title)
---------------------
- ---------------------------------
(1) Must be a Responsible Officer of all four Companies.
4
<PAGE> 190
EXHIBIT L
[ NUMBER ] AMENDMENT TO WAREHOUSE CREDIT AGREEMENT
THIS AMENDMENT is entered into as of _________________________, 199___,
between MCA FINANCIAL CORP., a Michigan corporation, MCA MORTGAGE CORP., a
Michigan corporation, MORTGAGE CORPORATION OF AMERICA, a Michigan corporation,
and MORTGAGE CORPORATION OF AMERICA, INC., an Ohio corporation (the
"COMPANIES"), certain lenders (the "WAREHOUSE LENDERS") and TEXAS COMMERCE BANK
NATIONAL ASSOCIATION (in its capacity as Warehouse Agent for Warehouse Lenders,
the "WAREHOUSE AGENT").
The Companies, the Warehouse Agent and the Warehouse Lenders are
parties to the 10/97 Senior Secured Warehouse Credit Agreement dated as of
October 31, 1997 (as supplemented, amended or restated, the "WAREHOUSE CREDIT
AGREEMENT"), providing for loans to Companies on a revolving basis. The
Companies have requested an amendment to the Warehouse Credit Agreement in order
to, among other things, [STATE PURPOSE OF AMENDMENT] . Accordingly, for adequate
and sufficient consideration, the parties to this amendment agree as follows:
1. DEFINITIONS. Unless stated otherwise, (a) each term defined in
the Warehouse Credit Agreement has the same meaning when used in this amendment
and (b) all references to "Sections", "Schedules", and "Exhibits" are references
to the Warehouse Credit Agreement's sections, schedules and exhibits.
2. AMENDMENTS.
[INSERT AMENDMENTS]
3. CONDITIONS PRECEDENT. The foregoing shall not be effective unless
(a) the Warehouse Agent shall have received counterparts of this amendment
executed by the Companies, the Warehouse Agent and the Warehouse Lenders, and
(b) [STATE OTHER CONDITIONS PRECEDENT].
4. RATIFICATIONS. This amendment modifies and supersedes all
inconsistent terms and provisions of the other Warehouse Loan Documents. Except
as expressly modified and superseded by this amendment, the terms and provisions
of the other Warehouse Loan Documents are ratified and confirmed and continue in
full force and effect. The Companies, the Warehouse Agent and all Warehouse
Lenders agree that the Warehouse Loan Documents, as amended by this amendment,
continue to be legal, valid and binding and enforceable in accordance with their
respective terms. The Companies ratify and confirm that all Liens granted to the
Warehouse Agent (as agent and Representative of the Warehouse Lenders) were
intended to, do, and continue to secure the full payment and performance of the
Obligations. The Companies shall perform such acts and duly authorize, execute,
acknowledge, deliver, file and record such additional documents as the
<PAGE> 191
Warehouse Agent or any Warehouse Lender may reasonably request in order to
perfect such Liens and preserve and protect the rights of the Warehouse Agent
and the Warehouse Lenders in respect of all present and future Collateral.
5. GRANT OF SECURITY INTEREST. The Companies hereby GRANT to the
Warehouse Agent, as agent and Representative of the Warehouse Lenders, a
security interest in the Collateral, and hereby ratify and reconfirm the grant
of a security interest therein made by the Warehouse Security Agreement.
6. REPRESENTATIONS AND WARRANTIES. The Companies represent and
warrant to the Warehouse Agent and the Warehouse Lenders that (a) the Companies
have all requisite power and authority to execute, deliver and keep, observe and
perform their respective obligations under this amendment and the other
Warehouse Loan Documents, (b) this amendment and the other Warehouse Loan
Documents to be delivered under this amendment have been duly authorized,
executed, and delivered by the Companies, (c) no action of, or filing with, any
Tribunal is required to authorize, or is otherwise required in connection with,
the execution, delivery and performance by the Companies of this amendment and
those other Warehouse Loan Documents, (d) this amendment and those other
Warehouse Loan Documents are valid and binding upon the Companies and are
enforceable against the Companies in accordance with their respective terms,
except as limited by the Bankruptcy Code and all other similar Laws affecting
the rights of creditors generally, (e) the execution, delivery, and performance
by the Companies of this amendment and those other Warehouse Loan Documents do
not require the consent of any other Person and do not and will not constitute a
violation of any Laws, agreements or understandings to which any of the
Companies is a party or by which any Company is bound, (f) the representations
and warranties in the Warehouse Credit Agreement, as amended by this amendment,
and each other Warehouse Loan Document are true and correct in all material
respects on and as of the date of this amendment as though made as of the date
of this amendment and (g) as of the date of this amendment, and after giving
effect to this amendment, no Default or Event of Default exists.
7. REFERENCES. All references in the Warehouse Loan Documents to the
"Credit Agreement" or the "Warehouse Credit Agreement" refer to the Warehouse
Credit Agreement as amended by this amendment. Because this amendment is a
"Warehouse Loan Document" referred to in the Warehouse Credit Agreement, the
provisions relating to Warehouse Loan Documents in SECTIONS 1 and 17 of the
Warehouse Credit Agreement are incorporated into this amendment by reference the
same as if included in this amendment verbatim.
8. COUNTERPARTS. This amendment may be executed in any number of
counterparts with the same effect as if all signatories had signed the same
document, and all of those counterparts must be construed together to constitute
one and the same document; but in making proof of this amendment, it shall not
be necessary to produce or account for more than one such counterpart.
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9. PARTIES BOUND. This amendment shall bind and benefit the
Companies, the Warehouse Agent, each Warehouse Lender and (subject to SECTION
17.11 of the Warehouse Credit Agreement) their respective successors and
assigns.
10. ENTIRETY. THIS AMENDMENT, THE CREDIT AGREEMENT AS AMENDED BY IT
AND THE OTHER WAREHOUSE LOAN DOCUMENTS TOGETHER CONSTITUTE A WRITTEN LOAN
AGREEMENT WHICH 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.
Executed on ________________, effective as of the date first stated
above.
MCA FINANCIAL CORP, TEXAS COMMERCE BANK NATIONAL
MCA MORTGAGE CORPORATION, ASSOCIATION, as Warehouse Agent and
MORTGAGE CORPORATION OF a Warehouse Lender
AMERICA AND MORTGAGE
CORPORATION OF AMERICA, INC., By:
as the Companies -----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
-----------------------------------
Name:
--------------------------------
Title:
--------------------------------
RESIDENTIAL FUNDING CORPORATION, GUARANTY FEDERAL BANK, F.S.B.,
as a Warehouse Lender as a Warehouse Lender
By: By:
----------------------------------- -------------------------------
Name: Name:
--------------------------------- -----------------------------
Title: Title:
--------------------------------- -----------------------------
Unnumbered signature page to
____ Amendment to Warehouse Credit Agreement
<PAGE> 193
BANK ONE, TEXAS, N.A., THE BANK OF NEW YORK,
as a Warehouse Lender as a Warehouse Lender
By: By:
----------------------------------- -------------------------------
Name: Name:
----------------------------------- -----------------------------
Title: Title:
----------------------------------- -----------------------------
LASALLE NATIONAL BANK,
as a Warehouse Lender
By:
-----------------------------------
Name:
--------------------------------
Title:
--------------------------------
Unnumbered signature page to
____ Amendment to Warehouse Credit Agreement
<PAGE> 194
SCHEDULE AG
APPLICABLE GUIDELINES
<PAGE> 195
SCHEDULE AI
APPROVED INVESTORS
Aames Capital APPROVED BUT INACTIVE INVESTORS:
Access
AccuBanc Advanta broker div.
Advanta Conduit Capstead
Amresco ContiMortgage
Bank One EquiCredit
Bank of Boston HTP Financial
Chase Financial Liberty Lending
Chase Securities Beneficial
CityScape First Federal of Woost.
Countrywide Paxton Capital
Delta Funding Portfolio Acceptance
Express Mortgage Washtenaw Mortgage
First Colony
First Finance
First Plus Financial
First Union
Flagstar
GE Capital
Green Tree Financial
Independent National
Industry (IMC)
Interfirst
The Money Store
Mortgage Corp. of America
MorEquity
National Lending
North American
Option One
Preferred Financial
Saxon Mortgage
Sterling Bank & Trust
Unicor
Walsh Securities
<PAGE> 196
SCHEDULE BB
BORROWING BASE SCHEDULE
BORROWING BASE CALCULATIONS
A. BORROWING BASE means the sum of the Collateral Values determined as set
forth below for each item in the following groupings of collateral
types:
1. For each Eligible Second Mortgage Loan, ninety-eight percent
(98%) of the least of its (i) face amount, (ii) face amount less
discounts (the net amount funded by the Companies with respect
thereto), (iii) Take-out Price or (iv) at the election of the
Warehouse Agent or Majority Warehouse Lenders at any time, Market
Value, limited in the aggregate to the Second Mortgage Loans
Sublimit;
2. For each Eligible High LTV Mortgage Loan, ninety-eight percent
(98%) of the least of its (i) face amount, (ii) face amount less
discounts (the net amount funded by the Companies with respect
thereto), (iii) Take-out Price or (iv) at the election of the
Warehouse Agent or Majority Warehouse Lenders at any time, Market
Value, limited in the aggregate to the High LTV Loan Sublimit;
3. For each Eligible Gestation Loan, ninety-nine percent (99%) of
the Take-out Price for such Eligible Gestation Loan matched
either to a security settlement or to a whole loan settlement,
limited in the aggregate to the Gestation Sublimit;
4. For each Eligible Repurchased Loan, eighty-five percent (85%) of
the least of (i) the face amount of the underlying promissory
note, (ii) its unpaid principal balance or (iii) the net amount
funded by the Companies with respect to its repurchase, limited
in the aggregate to the Repurchased Loans Sublimit;
5. For each Eligible Construction Loan, the least of (ii)
ninety-five percent (95%) of the total cost of acquisition of the
underlying real estate and construction of the improvements, (ii)
eighty percent (80%) of the appraised value of the underlying
real estate and the when-completed value of residential
improvements being constructed on it, (iii) ninety percent (90%)
of construction hard costs or (iv) ninety-five percent (95%) of
the purchase price committed to be paid by a buyer under an
executed real estate purchase and sale agreement or earnest money
contract for the purchase of such property upon (or before)
completion of the construction of such improvements, limited in
the aggregate to the Construction Loan Sublimit;
6. For each Eligible Mortgage Loan not described in one of the
preceding paragraphs of this SECTION A, ninety-eight percent
(98%) of the least of its (i) face amount, (ii) face amount less
discounts (the net amount funded by the Companies with respect
<PAGE> 197
thereto), (iii) Take-out Price or (iv) at the election of
Warehouse Agent or Majority Warehouse Lenders at any time, Market
Value;
7. For each Eligible Land Contract, ninety-five percent (95%) of the
lesser of (i) the appraised value of the subject property, (ii)
the contract purchase price or (iii) the actual amount funded by
the Companies with respect to such Eligible Land Contract,
limited in the aggregate to the Land Contract Sublimit;
B. TAKE-OUT PRICE. For the Mortgage Collateral for which Companies elect:
1. To deliver to the Warehouse Agent a Take-out Commitment
designating specific Mortgage Collateral for purchase, the amount
that the relevant Approved Investor has committed to pay for that
Mortgage Collateral.
2. Not to deliver to the Warehouse Agent a Take-out Commitment
designating a specific item of Mortgage Collateral for purchase,
an amount determined by Mortgage Collateral Group as follows:
(a) MORTGAGE COLLATERAL GROUP means all Mortgage Collateral
bearing the same interest rate without regard to whether
that Mortgage Collateral consists of Mortgage Loans or
Mortgage Securities. In determining any such grouping,
Mortgage Securities are grouped with other Mortgage
Collateral in accordance with the interest rates of the
underlying and related pools of Mortgage Loans and not by
the interest rates appearing on the face of any of the
Mortgage Securities.
(b) The Take-out Price for each Mortgage Collateral Group shall
be the corresponding weighted average Take-out Price,
expressed as a percentage, determined from all of the
respective Take-out Commitments for the sale of the items
comprising that Mortgage Collateral Group held by the
Companies at that time, and not designated for specific
Mortgage Collateral under PART B.1. above, calculated as
follows:
- All Take-out Commitments are first grouped to
correspond to each related Mortgage Collateral Group,
with the result that for each Mortgage Collateral Group
there will be a corresponding group of Take-out
Commitments;
- The aggregate principal balance of Take-out Commitments
in each Mortgage Collateral Group is then determined;
and
- The principal balance of each Take-out Commitment in
each Mortgage Collateral Group is then multiplied by
the related
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percentage of par and the sum of the products thereof
is divided by the aggregate principal balance of
Take-out Commitments in that Mortgage Collateral Group
to determine the weighted average Take-out Price for
that Mortgage Collateral Group.
(c) For all Mortgage Collateral, the weighted average Take-out
Price, expressed as a percentage, shall be determined by
dividing (i) the total Take-out Price for all Mortgage
Collateral Groups determined above by (ii) the total
principal amount of all Take-out Commitments determined
above.
If the price in a Take-out Commitment is stated as a yield and
not as a percentage of par, a yield so stated shall be converted
to a percentage price by the use of the "Net Yield Tables for
GNMA Mortgage Securities" published by Financial Publishing
Company or the "Mortgage Yield Conversion Tables" published by
FNMA, as applicable and acceptable to Warehouse Agent.
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<PAGE> 199
SCHEDULE CP
COLLATERAL PROCEDURES
A. MORTGAGE LOAN OR CONSTRUCTION LOAN FOR DRY BORROWING. Delivery of a
Mortgage Loan or a Construction Loan to support a Dry Borrowing
requires delivery to the Custodian of the following Collateral Papers,
each of which must be in form and substance satisfactory to the
Warehouse Agent, in the following manner:
1. A Submission List that, among other things, identifies the
documents being delivered to the Custodian for that Dry
Borrowing.
2. The original promissory note evidencing that Mortgage Loan or
Construction Loan, properly payable or endorsed to the
appropriate Company, and endorsed in blank by that Company.
3. An assignment from that Company of the mortgage, deed of trust,
or trust deed securing that Mortgage Loan or Construction Loan,
executed in blank by that Company, and in recordable form.
4. A copy of each intervening assignment to that Company of that
mortgage, deed of trust, or trust deed certified in a Certifying
Officer's Certificate furnished to the Agent as being either (i)
a true and correct copy of the original recorded in the
jurisdiction where the property is located or (ii) a true and
correct copy of the original that has been sent for recording in
such jurisdiction.
5. A copy of that original mortgage, deed of trust, or trust deed
certified in a Certifying Officer's Certificate furnished to the
Agent as being a true and correct copy of the original and that
the original has been sent for recording in the jurisdiction
where the property is located.
6. Except in the case of a Repurchase Borrowing, a Construction
Loans Borrowing or an Eligible Mortgage Loan with a "B" or "C"
credit grade under the relevant Company's underwriting
guidelines, either (i) a Take-out Commitment specifically
designating that Mortgage Loan or Construction Loan for purchase
or (b) Take-out Commitments with the Take-out prices indicated
(unless a master Take-out Commitment has already been delivered
to, and is on file with, the Warehouse Agent).
7. Except in the case of a Repurchase Borrowing, and unless the
Warehouse Agent has initiated the wire transfer for originating
that Mortgage Loan or Construction Loan, a copy of the check
evidencing that origination.
<PAGE> 200
8. A data processing printout reflecting that Mortgage Loan's or
Construction Loan's loan number, mortgagor, origination date,
original amount, outstanding principal balance, interest rate,
type of loan and requested advance amount.
9. Any and all other files, documents, instruments, certificates,
correspondence or other records that are requested by the
Warehouse Agent or the Custodian.
B. MORTGAGE LOAN FOR WET BORROWING. Delivery of a Bridged Loan for a Wet
Borrowing requires delivery to the Warehouse Agent and the Custodian of
the following Collateral Papers, each of which must be in form and
substance satisfactory to the Warehouse Agent, in the following manner:
1. A Submission List that, among other things, identifies the
documents that must be delivered to the Custodian before the
expiration of the Wet Period for that Wet Borrowing.
2. Unless Warehouse Agent has approved a wire transfer initiated by
a Company for originating that Bridged Loan, either a copy of the
check evidencing that origination or (b) evidence that the check
for that origination is held by a title company pending
disbursement.
3. A data processing print-out reflecting that Bridged Loan's loan
number, mortgagor, origination date, original amount, outstanding
principal balance, interest rate, type of loan and requested
advance amount.
4. Unless that Bridged Loan is an Eligible Mortgage Loan with a "B"
or "C" credit grade under the relevant Company's underwriting
guidelines (for which Take-out Commitment coverage is not
required), evidence reasonably satisfactory to the Agent that
such Bridged Loan is covered by a Take-out Commitment.
C. MORTGAGE SECURITY FOR DRY BORROWING. Delivery of a Mortgage Security
for a Dry Borrowing requires delivery to the Custodian of the following
Collateral Papers, each of which must be in form and substance
satisfactory to Warehouse Agent, in the following manner:
1. A Submission List that, among other things, identifies the
documents being delivered to the Custodian for that Dry
Borrowing.
2. For a Mortgage Security that is not in book entry form:
(a) The original Mortgage Security.
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(b) An updated bond power endorsed, or another appropriate
instrument of assignment executed by the appropriate Company
in blank.
3. For a Mortgage Security that is in book entry form, confirmation
of either:
(a) The appropriate entry (i) in the records of a Federal
Reserve Bank of the nominal ownership by Warehouse Agent (as
agent and Representative of Warehouse Lenders) of any FNMA
Mortgage Security that constitutes a "FNMA BOOK ENTRY
SECURITY", as defined in the Book Entry Procedures for FNMA
Securities, 24 C.F.R. Sections 81.41-81.49 (the "FNMA BOOK
ENTRY PROCEDURES"), or a FHLMC Mortgage Security that
constitutes a "FHLMC BOOK ENTRY SECURITY," as defined in
the Federal Home Loan Mortgage Corporation Book Entry
Regulations, 1 C.F.R. Sections 462.1-462.8 (the "FHLMC BOOK
ENTRY REGULATIONS"), and (ii) by Warehouse Agent in its
records of the appropriate Company's ownership of that book
entry Mortgage Security subject to a Lender Lien; or
(b) The (i) appropriate entry by The Chase Manhattan Bank, in
its capacity as custodian for Participants Trust Company
("PTC"), GNMA's central depositary, in its records of the
nominal ownership by Warehouse Agent (as agent and
Representative of Warehouse Lenders) of any GNMA-guaranteed
Mortgage Security, (ii) the appropriate entry by Warehouse
Agent in its records of the appropriate Company's ownership
of that book entry Mortgage Security subject to a Lender
Lien and (iii) receipt by Warehouse Agent of a confirmation
of transaction in the form of a written advice specifying
the amount and description of that book entry Mortgage
Security subject to that Lien.
4. Either (a) a Take-out Commitment specifically designating that
Mortgage Security for purchase or (b) Take-out commitments with
the Take-out prices indicated (unless a master Take-out
Commitment has already been delivered to, and is on file with,
Warehouse Agent).
D. LAND CONTRACTS BORROWING. Delivery of a Land Contract to support a Land
Contracts Borrowing requires delivery to the Custodian of the following
Collateral Papers, each of which must be in form and substance
satisfactory to Warehouse Agent, in the following manner:
1. A Submission List that, among other things, identifies the
documents being delivered to Custodian for that Land Contracts
Borrowing.
2. A certified copy of the original Land Contract.
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3. An original assignment of the Land Contract executed by the
relevant Company and in recordable form (including any notary
acknowledgment required for recordation), assigning the seller's
right, title and interest in and to that Land Contract in blank.
4. A copy of a deed or quitclaim showing the relevant Company to be
owner of the underlying real property.
5. A data processing printout reflecting that Land Contract's
contract number, purchaser's name, origination date, original
amount, outstanding principal balance, interest rate and
requested advance amount.
6. Any and all other files, documents, instruments, certificates,
correspondence or other records that are requested by Warehouse
Agent.
The certification of each such certified copy shall be manually
signed by a duly authorized officer or representative of the Person certifying
such document's authenticity as a true copy of the original unless the
certification is by a governmental entity for whose certification applicable
Laws, rules, regulations or orders of -- or applicable to -- such governmental
authority make such a manual signature unnecessary.
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<PAGE> 203
SCHEDULE EC
ELIGIBILITY CONDITIONS
A. ELIGIBLE MORTGAGE LOAN means a Mortgage Loan:
1. For which, if a Wet Borrowing was made for it, the applicable Wet
Period has not expired.
2. That is an FHA Loan, VA Loan, Jumbo Loan, or other Mortgage Loan
that complies with all applicable requirements for purchase under
the FHLMC Guide or the FNMA Guide.
3. The promissory note evidencing which (a) is the standard form
approved by VA, FHA, FNMA, or FHLMC or a form otherwise
acceptable to the Warehouse Agent, (b) has a maturity within 30
years of its origination, (c) is payable or endorsed (without
restrictions or limitation) to a Company's order, (d) is endorsed
in blank by that Company, (e) is fully funded, and (f) is valid
and enforceable without offset, counterclaim, defense, or right
of rescission or avoidance of any kind other than for valid
payments made on it and any exceptions to enforceability under
Debtor Laws.
4. For which no default in the payment of principal or interest or
any other default has continued uncured for thirty (30) calendar
days, no foreclosure or other similar proceedings have commenced,
and no claim for any credit, allowance, or adjustment exists.
5. That is secured by a mortgage, deed of trust, or trust deed that
has been or will be sent for recording and that (a) is the
standard form approved by VA, FHA, FNMA, or FHLMC or a form
otherwise acceptable to Warehouse Agent and (b) grants a first
priority Lien on residential real property described below that
will be perfected upon recording.
6. For which the underlying residential real property (a) consists
of land and (i) a one- to four-family dwelling, (ii) a
condominium unit, or (iii) a manufactured home unit, but not (iv)
a mobile home, a co-op, or a multi-family dwelling for more than
four families, (b) is, if required by Appraisal Laws, covered by
an Appraisal, and (c) is insured against loss or damage by fire
and all other hazards normally included in standard extended
coverage insurance (including flood insurance if the property is
in a federally designated flood plain) in accordance with the
Collateral Papers for it and the appropriate Company is named as
a loss-payee for that insurance.
<PAGE> 204
7. Unless it is a Repurchased Loan, a Second Mortgage Loan or a
Mortgage Loan that has a "B" or "C" credit grade under the
relevant Company's underwriting guidelines (for which no Take-out
Commitment coverage is required), that conforms in all respects
with all of the requirements of a valid and enforceable Take-out
Commitment held by the appropriate Company as reported on
Take-out Reports delivered under the Warehouse Credit Agreement.
8. The Collateral Papers for which (a) are delivered to the
Custodian within ninety (90) calendar days after the date of the
related promissory note, (b) are in compliance with all Laws, (c)
are otherwise in compliance with the requirements of the
Warehouse Loan Documents and otherwise in form and substance
acceptable to Warehouse Agent, and (d) are subject to Lender
Liens.
9. That has been Pledged to the Warehouse Agent for no more than one
hundred eighty (180) calendar days.
10. That has not, and no Collateral Paper for which has, been (a)
sold to an investor and repurchased by any Company, (b) rejected
by an investor, (c) delivered to an investor or any Person for
more than the Shipping Period, or (d) delivered to any Company
for correction or servicing for more than the Correction Period.
11. That is (a) not an Eligible Repurchased Loan and (b) not subject
to a repurchase agreement.
B. ELIGIBLE SUBPRIME LOAN means a Mortgage Loan:
1. For which, if a Wet Borrowing was made for it, the applicable Wet
Period has not expired.
2. That has been assigned a rating of "B", "C", "D" or "E" by the
relevant Company pursuant to underwriting standards acceptable to
the Agent, and based upon such Mortgage Loan's status as not
complying with all applicable requirements for purchase under
either the FHLMC Guide or the FNMA Guide, and therefore being
saleable only to investors other than FHLMC or FNMA.
3. Unless it has been assigned a rating of "B" or "C" by the
relevant Company pursuant to underwriting standards acceptable to
the Agent, that conforms in all respects with all of the
requirements of a valid and enforceable Take-out Commitment
issued by Advanta and held by the appropriate Company to which it
has been allocated for purchase as reported on Take-out Reports
delivered under the Warehouse Credit Agreement
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<PAGE> 205
4. The promissory note evidencing which (a) is the standard form
approved by VA, FHA, FNMA, or FHLMC or a form otherwise
acceptable to the Agent, (b) has a maturity within 30 years of
its origination, (c) is payable or endorsed (without restriction
or limitation) to a Company's order, (d) is endorsed in blank by
that Company, (e) is fully funded, and (f) is valid and
enforceable without offset, counterclaim, defense, or right of
rescission or avoidance of any kind other than for valid payments
made on it and any exceptions to enforceability under Debtor
Laws.
5. For which no foreclosure or other similar proceedings have
commenced, and no claim for any credit, allowance, or adjustment
exists, and for which no default in the payment of principal or
interest or any other default has continued uncured for sixty
(60) calendar days.
6. That is secured by a mortgage, deed of trust, or trust deed that
(a) is the standard form approved by VA, FHA, FNMA or FHLMC or a
form otherwise acceptable to the Warehouse Agent and (b) grants a
first or second priority Lien on residential real property
described below that will be perfected upon recording.
7. For which the underlying residential real property (a) consists
of land and (i) a one-to-four-family dwelling, (ii) a
condominium unit, or (iii) a manufactured home unit, but not (iv)
a mobile home, a co-op, or a multi-family dwelling for more than
four families, (b) is, if required by Appraisal Laws, covered by
an Appraisal, and (c) is insured against loss or damage by fire
and all other hazards normally included in standard extended
coverage insurance (including flood insurance if the property is
in a federally designated flood plain) in accordance with the
Collateral Papers for it, and the appropriate Company is named as
a loss-payee for that insurance.
8. The Collateral Papers for which (a) are delivered to the Agent
within ninety (90) calendar days after the date of the related
promissory note, (b) are in compliance with all laws, (c) are
otherwise in compliance with the requirements of the Loan
Documents and otherwise in form and substance acceptable to the
Agent, and (d) are subject to Lender Liens.
9. That has been Pledged to the Warehouse Agent for no more than one
hundred eighty (180) calendar days.
10. That has not, and no Collateral Paper for which has, been (a)
sold to an investor and repurchased by any Company, (b) rejected
by an investor, (c) delivered to an investor or any Person for
more than the Shipping Period, or (d) delivered to any Borrower
for correction or servicing for more than the Correction Period.
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11. That is (a) not an Eligible Repurchased Loan and (b) not subject
to a repurchase agreement.
C. ELIGIBLE HIGH LTV MORTGAGE LOAN means a Mortgage Loan:
1. That would be an Eligible Mortgage Loan except that the ratio of
its original principal amount to the value of its collateral is
between 100% and 125%.
2. That has a Fair, Isaac and Company, Inc. credit score of at least
625 (or the equivalent based on another nationally-recognized
credit scoring company's system whose use by the Borrowers has
been approved in writing by the Warehouse Agent).
3. That conforms in all respects with all of the requirements of a
valid and enforceable Take-out Commitment held by the appropriate
Company to which it has been allocated for purchase as reported
on Take-out Reports delivered under the Warehouse Credit
Agreement
4. That has been Pledged to the Warehouse Agent for no more than
thirty (30) days.
D. ELIGIBLE GESTATION LOAN means an Eligible Mortgage Loan:
1. For which Custodian has issued its certification or initial
certification for inclusion of that Mortgage Loan in a Mortgage
Pool from which Mortgage Securities issued or guaranteed by FNMA,
GNMA or FHLMC are to be created.
2. For which the Companies have delivered to the Warehouse Agent a
Collateral Conversion Notice.
3. That conforms in all respects with all of the requirements of a
valid and enforceable Take-out Commitment held by the appropriate
Company to which it has been allocated for purchase as reported
on Take-out Reports delivered under the Warehouse Credit
Agreement.
4. That has been Pledged to the Warehouse Agent for no more than
thirty (30) calendar days.
E. ELIGIBLE MORTGAGE SECURITY means a Mortgage Security:
1. That is valid and enforceable without offset, counterclaim,
defense, or right of rescission or avoidance of any kind.
2. That is guaranteed or issued by either (a) FNMA, FHLMC, or GNMA
or (b) any other Person if (i) Companies first obtain Majority
Warehouse Lenders' written
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<PAGE> 207
approval in their sole discretion and (ii) that other Person has
not later been rejected by Majority Warehouse Lenders in their
sole discretion.
3. Under which no default exists.
4. That conforms in all respects with all of the requirements of a
valid and enforceable Take-out Commitment held by the appropriate
Company to which it has been allocated for purchase as reported
on Take-out Reports delivered under the Warehouse Credit
Agreement.
5. Issued in connection with a Mortgage Pool composed of Mortgage
Loans that were, before the issuance of that Mortgage Security,
Eligible Mortgage Loans constituting part of the Collateral.
6. The Collateral Papers for which (a) have been delivered to
Custodian, (b) are in compliance with all Laws, (c) are otherwise
in form and substance acceptable to Warehouse Agent, and (d) are
subject to Lender Liens.
7. That has been Pledged to the Warehouse Agent for a time period
that, when added to the longest time period any Mortgage Loan to
which it relates was Pledged to the Warehouse Agent, is no more
than one hundred eighty (180) calendar days.
F. ELIGIBLE CONSTRUCTION LOAN means a loan:
1. That is evidenced by a valid promissory note and is secured by a
mortgage, deed of trust, or trust deed that grants a perfected
first priority Lien on the underlying residential real property
and all improvements constructed and to be constructed thereon,
and that is given to evidence and secure advances of loan
proceeds to or for account of the owner of such real property who
intends to reside in it upon completion of such construction, to
pay the costs of construction of new residential improvements to
such underlying real property and/or the acquisition cost of such
underlying real property.
2. That is an FHA Loan, VA Loan, Jumbo Loan, or other Mortgage Loan
that complies, or after construction is substantially completed
will comply, with all applicable requirements for purchase under
the FHLMC Guide or the FNMA Guide or by another Approved
Investor.
3. The promissory note evidencing which (a) is the standard form
approved by VA, FHA, FNMA, or FHLMC or a form otherwise
acceptable to Warehouse Agent, (b) has a maturity within 30 years
(plus a reasonable period for construction of such improvements)
of its origination, (c) is payable or endorsed (without
restrictions or limitation) to a Company's order, (d) is endorsed
in blank by that Company, (e) is
5
<PAGE> 208
fully funded, or will be upon completion of construction of such
improvements, and (f) is valid and enforceable without offset,
counterclaim, defense, or right of rescission or avoidance of any
kind other than for valid payments made on it and any exceptions
to enforceability under Debtor Laws.
4. Whose loan-to-value ratio does not exceed eighty percent (80%)
and the total amount of which does not exceed ninety percent
(90%) of the hard construction costs for such improvements,
including land cost.
5. In respect of the underlying real property or improvements no
mechanic's lien claim for nonpayment of any labor or materials
for such construction has been asserted that has been outstanding
for more than thirty (30) days and has not been satisfied and
released.
6. For which no default in the payment of principal or interest or
any other default has continued uncured for thirty (30) calendar
days, no foreclosure or other similar proceedings have commenced,
and no claim for any credit, allowance, or adjustment exists.
7. That is secured by a mortgage, deed of trust, or trust deed that
has been or will be sent for recording and that (a) is the
standard form approved by VA, FHA, FNMA, or FHLMC or a form
otherwise acceptable to Warehouse Agent and (b) grants a first
priority Lien on residential real property described below that
will be perfected upon recording.
8. For which the underlying residential real property (a) consists
of land and (i) a one- to four-family dwelling, or (ii) a
manufactured home unit, but not (iii) a mobile home, a
condominium unit, a co-op, or a multi-family dwelling for more
than four families, (b) is, if required by Appraisal Laws,
covered by an Appraisal, and (c) is insured against loss or
damage by fire and all other hazards normally included in
standard extended coverage insurance (including flood insurance
if the property is in a federally designated flood plain) in
accordance with the Collateral Papers for it and the appropriate
Company is named as a loss-payee for that insurance (which
coverage may be provided through an appropriate builder's risk
insurance policy during construction of such improvements).
9. That conforms in all respects with all of the requirements of a
valid and enforceable Take-out Commitment held by the appropriate
Company as reported on Take-out Reports delivered under the
Warehouse Credit Agreement, or is otherwise hedged in a fashion
and by a device that is acceptable to and approved by the
Warehouse Agent.
10. The Collateral Papers for which (a) are delivered to the
Custodian within ninety (90) calendar days after the date of the
related promissory note, (b) are in compliance with
6
<PAGE> 209
all Laws, (c) are otherwise in compliance with the requirements
of the Warehouse Loan Documents and otherwise in form and
substance acceptable to the Warehouse Agent, and (d) are subject
to Lender Liens.
11. That has been Pledged to the Warehouse Agent for no more than two
hundred seventy (270) calendar days.
12. That has not, and no Collateral Paper for which has, been (a)
sold to an investor and repurchased by any Company, (b) rejected
by an investor, (c) delivered to an investor or any Person for
more than the Shipping Period, or (d) delivered to any Company
for correction or servicing for more than the Correction Period.
13. That is (a) not an Eligible Repurchased Loan and (b) not subject
to a repurchase agreement.
G. ELIGIBLE REPURCHASED LOAN means a Mortgage Loan:
1. That has been repurchased by a Company from an investor, or out
of a Mortgage Pool, including one on which Mortgage Securities
are based, pursuant to such Company's obligation or right to do
so as Servicer of that Mortgage Loan.
2. That is an FHA Loan, VA Loan, Jumbo Loan, or other Mortgage Loan
that complies with all applicable requirements for purchase under
the FHLMC Guide or the FNMA Guide or is a Subprime Mortgage Loan.
3. The promissory note evidencing which (a) is the standard form
approved by VA, FHA, FNMA, or FHLMC or a form otherwise
acceptable to Warehouse Agent, (b) has a maturity within 30 years
of its origination, (c) is payable or endorsed (without
restriction or limitation) to a Company's order, (d) is endorsed
in blank by that Company, (e) is fully funded, and (f) is valid
and enforceable without offset, counterclaim, defense, or right
of rescission or avoidance of any kind other than for valid
payments made on it and any exceptions to enforceability under
Debtor Laws.
4. For which no claim for any credit, allowance, or adjustment
exists.
5. That is secured by a mortgage, deed of trust, or trust deed that
(a) is the standard form approved by VA, FHA, FNMA, or FHLMC or a
form otherwise acceptable to the Warehouse Agent and (b) grants a
first priority Lien on residential real property described below
that has been or will be perfected upon recording.
6. For which the underlying residential real property (a) consists
of land and (i) a one-to-four-family dwelling, (ii) a
condominium unit, or (iii) a manufactured home unit, but not (iv)
a mobile home, a co-op, or a multi-family dwelling for more than
four
7
<PAGE> 210
families, (b) is, if required by Appraisal Laws, covered by an
Appraisal, and (c) is insured against loss or damage by fire and
all other hazards normally included in standard extended coverage
insurance (including flood insurance if the property is in a
federally designated flood plain) in accordance with the
Collateral Papers for it, and the appropriate Company is named as
a loss-payee for that insurance.
7. The Collateral Papers for which (a) are in compliance with all
Laws, (b) are otherwise in compliance with the requirements of
the Warehouse Loan Documents and otherwise in form and substance
acceptable to the Warehouse Agent, and (c) are subject to Lender
Liens.
8. That has been Pledged to the Warehouse Agent for no more than
ninety (90) calendar days.
9. That has not, and no Collateral Paper for which has, been (a)
delivered to an investor or any Person for more than the Shipping
Period, or (b) delivered to any Company for correction or
servicing for more than the Correction Period.
10. That is not subject to a repurchase agreement.
H. ELIGIBLE SECOND MORTGAGE LOAN means a Mortgage Loan that would qualify
as an Eligible Mortgage Loan except only that the Lien against the real
property security is a second priority lien.
I. ELIGIBLE INDIRECT WAREHOUSE LOAN means an Eligible Mortgage Loan
pledged to a Company by (or purchased by a Company subject to a
repurchase agreement from) a third party mortgage lender for whom such
Company provides a mortgage warehouse line or credit or a mortgage
gestation repurchase facility pursuant to the express written
provisions of which such Company is duly authorized to repledge (or, in
the case of a purchase, pledge) such Eligible Mortgage Loan to the
Warehouse Agent (as agent and Representative of the Lenders) to secure
the Obligations and in respect of which such Company has advanced to
(or for the account of) such third party mortgage lender no more than
ninety-eight percent (98%) of the least of such Eligible Mortgage
Loan's (i) face amount, (ii) face amount less discounts (the net amount
funded by such third party mortgage lender with respect thereto) or
(iii) Take-out Price.
J. ELIGIBLE JUMBO LOAN means a Mortgage Loan that complies with all
applicable requirements for purchase under the FNMA or FHLMC standard
form of conventional mortgage purchase contract then in effect except
that the amount of it exceeds the maximum loan amount under those
requirements, and that otherwise satisfies all requirements to be an
Eligible Mortgage Loan.
K. ELIGIBLE LAND CONTRACT means a Land Contract:
8
<PAGE> 211
1. Which (a) is in form acceptable to Warehouse Agent, (b) has a
maturity within twenty (20) years of its origination, (c) has a
Company as the original "Seller" or is properly assigned (without
restriction or limitation) to a Company and is collaterally
assigned to the Warehouse Agent (as agent and Representative of
the Warehouse Lenders), (d) is fully funded, and (f) is valid and
enforceable without offset, counterclaim, defense or right of
recision or avoidance of any kind other than for valid payments
made on it and any exceptions to enforceability under Debtor
Laws.
2. For which no default in the payment of principal or interest or
any other default has continued uncured for sixty (60) calendar
days, no foreclosure or other similar proceedings have commenced,
and no claim for any credit, allowance or adjustment exists.
3. For which the underlying residential real property (a) consists
of land and (i) a one-to-four family dwelling, (ii) a
condominium unit or (iii) a manufactured home unit, but not (iv)
a mobile home, a co-op, or a multi-family dwelling for more than
four families, (b) is, if required by Appraisal Laws, covered by
an Appraisal, and (c) is insured against loss or damage by fire
and all other hazards normally included in standard extended
coverage insurance (including without limitation, flood insurance
if the property is in a federally designated flood plain) in
accordance with the Collateral Papers for it, and the appropriate
Company is named as a loss payee for that insurance.
4. The Collateral Papers for which (a) are delivered to the
Custodian within ninety (90) calendar days after the date of the
related Land Contract, (b) are in compliance with all Laws, (c)
are otherwise in compliance with the requirements of the
Warehouse Loan Documents and otherwise in form and substance
acceptable to the Warehouse Agent, and (d) are subject to Lender
Liens.
5. That has been Pledged to the Warehouse Agent for no more than one
hundred eighty (180) calendar days.
6. That has not, and no Collateral Paper for which has, been (a)
sold to an investor and repurchased by any Company, (b) rejected
by an investor, (c) delivered to an investor or any Person for
more than the Shipping Period, or (b) delivered to any Company
for correction or servicing for more than the Correction Period.
7. That is not subject to a repurchase agreement.
L. ELIGIBLE D/E MORTGAGE LOAN means an Eligible Subprime Mortgage Loan:
9
<PAGE> 212
1. That has been assigned a rating of "D" or "E" by the relevant
Company pursuant to the underwriting standards described in the
foregoing definition of "Eligible Subprime Mortgage Loan"; and
2. That is eligible for securitization by Advanta and covered by a
Take-Out Commitment issued by Advanta.
10
<PAGE> 213
SCHEDULE LC
LENDERS AND COMMITMENTS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
LENDER WAREHOUSE LINE
COMMITMENT
- -------------------------------------------------------------------------------
<S> <C>
Texas Commerce Bank National Association $37,500,000
712 Main Street
Houston, Texas 77002
Attn: Pamela E. Skinner, Vice President
Fed. Tax I.D. No. 74-0800980
Phone: (713) 216-5382
Fax: (713) 216-2082
(Wire Instructions)
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
712 MAIN STREET
HOUSTON, TEXAS 77002
ABA # 1130-0060-9
NOTIFY: PAMELA E. SKINNER
FOR CREDIT ACCOUNT ,
----------------
ACCOUNT # 0010
----------------------
- -------------------------------------------------------------------------------
Residential Funding Corporation $37,500,000
4800 Montgomery Lane, Suite 300
Bethesda, Maryland 20814
Attention: Ms. Barbara Repetti
Phone: (301) 215-6206
Fax: (310) 215-6288
(Wire Instructions)
- -------------------
- -------------------
ABA #
--------------
NOTIFY: BARBARA REPETTI
FOR CREDIT ACCOUNT RESIDENTIAL FUNDING
CORPORATION,
ACCOUNT #
---------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 214
<TABLE>
- -------------------------------------------------------------------------------
<S> <C>
Guaranty Federal Bank, F.S.B. $25,000,000
8333 Douglas Avenue
Dallas, Texas 75225
Attention: Mr. Gregory S. Leftwich
Phone: (214) 360-1684
Fax: (214) 360-1660
(Wire Instructions)
- ---------------------
- ---------------------
ABA #
--------------
NOTIFY: GREGORY S. LEFTWICH
FOR CREDIT ACCOUNT ,
----------------------
ACCOUNT #
---------------------------
- -------------------------------------------------------------------------------
Bank One, Texas, N.A. $20,000,000
1717 Main Street, 3rd Floor
Dallas, Texas 75201
Attention: Mr. Brian Hilberth
Phone: (214) 290-3162
Fax: (214) 290-2054
(Wire Instructions)
BANK ONE, TEXAS, N.A.
1717 MAIN STREET, 3RD FLOOR
DALLAS, TEXAS 75201
ABA # 1110-0061-4
NOTIFY: BRIAN HILBERTH
FOR CREDIT ACCOUNT ,
----------------------
ACCOUNT #
---------------------------
- -------------------------------------------------------------------------------
The Bank of New York $20,000,000
17th Floor, One Wall Street
New York, New York 10286
Attention: Ms. Patricia Dominus
Phone: (212) 635-6467
Fax: (212) 634-6468
(Wire Instructions)
THE BANK OF NEW YORK
17TH FLOOR, ONE WALL STREET
NEW YORK, NEW YORK 10286
ABA # 0210-0001-8
NOTIFY: PATRICIA DOMINUS
FOR CREDIT ACCOUNT ,
----------------------
ACCOUNT #
---------------------------
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 215
<TABLE>
- -------------------------------------------------------------------------------
<S> <C>
LaSalle National Bank $20,000,000
135 South LaSalle Street, Suite 309
Chicago, Illinois 60603
Attention: Mr. Gary Timmerman
Phone: (312) 904-5230
Fax: (312) 904-2903
(Wire Instructions)
LASALLE NATIONAL BANK
- ---------------------------
CHICAGO, ILLINOIS
-------
ABA # - -
---- ---- -
NOTIFY:
-----------------
FOR CREDIT ACCOUNT ,
----------------------
ACCOUNT #
---------------------------
- -------------------------------------------------------------------------------
TOTAL $160,000,000
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 216
SCHEDULE 2.3
TERMS OF COMPANIES' OBLIGATIONS TO PAY BORROWINGS BY OTHER COMPANIES
Each Company hereby agrees to the following terms with respect to
Borrowings by any Borrower and the other obligations of any other Company:
1. Each Company irrevocably, unconditionally and absolutely
guarantees to the Warehouse Lenders the due and prompt payment, and not just the
collectibility, of the principal of, and interest on the Borrowings and all fees
and late charges and all other indebtedness, if any, in respect of the
Borrowings by each other Company, and all other obligations of such other
Company to the Warehouse Lenders and the Warehouse Agent, when due, whether at
maturity, by acceleration or otherwise all at the times and places and at the
rates described in, and otherwise according to the terms of, the Warehouse Notes
and the Warehouse Credit Agreement, whether now existing or hereafter created or
arising.
2. Each Company further hereby irrevocably, unconditionally and
absolutely guarantees to the Warehouse Lenders the due and prompt performance by
each other Company of all duties, agreements and obligations of such other
Company contained in the Warehouse Credit Agreement, the Warehouse Notes and the
other Warehouse Loan Documents, and the due and prompt payment of all costs and
expenses incurred, including attorneys' fees, court costs and all other
litigation expenses (including expert witness fees, exhibit preparation and
courier, postage, communication and document copying expenses), in enforcing the
payment and performance of the Warehouse Credit Agreement and the other
Warehouse Loan Documents from such other Company (the payment and performance of
the items set forth in PARAGRAPHS 1 and 2 of this Schedule are collectively
referred to as the "OTHER COMPANY DEBT").
3. In the event any other Company shall at any time fail to pay the
Warehouse Lenders any Other Company Debt when due, whether by acceleration or
otherwise, each Company hereby promises to pay such amount to the Warehouse
Lenders forthwith, together with all collection costs and expenses, including
attorneys' fees, court costs and all other litigation expenses (including expert
witness fees, exhibit preparation and courier, postage, communication and
document copying expenses) .
4. Each Company hereby (a) agrees to any modifications of any terms
or conditions of any Other Company Debt and/or to any extensions or renewals of
time of payment or performance by any other Company; (b) agrees that it shall
not be necessary for the Warehouse Lenders or the Warehouse Agent to resort to
legal remedies against any other Company, nor to take any action against any
other Person obligated (an "OBLIGOR") or on or against any Collateral or any
other security for payment or performance of the Other Company Debt before
proceeding against such Company; (c) agrees that no release of any other Company
or any other guarantor or Obligor, or of any Collateral or other security for
the Other Company Debt, whether by operation of law or by any act of the
Warehouse Agent or Warehouse Lenders, with or without notice to such Company,
shall
<PAGE> 217
release such Company and (d) waives notice of demand, dishonor, notice of
dishonor, protest, and notice of protest and waives, to the extent permitted by
law, all benefit of valuation, appraisement, and exemptions under the laws of
the State of Texas or any other state or territory of the United States.
5. The obligations of each Company for the Other Company Debt shall
be primary, absolute and unconditional, and shall remain in full force and
effect without regard to, and shall not be impaired or affected by: (a) the
genuineness, validity, regularity or enforceability of, or any amendment or
change in, the Warehouse Credit Agreement, any Warehouse Note or any other
Warehouse Loan Documents, or any change in or extension of the manner, place or
terms of payment of all or any portion of the Other Company Debt; (b) the taking
or failure to take any action to enforce the Warehouse Credit Agreement, any
Warehouse Note or any other Warehouse Loan Documents, or the exercise or failure
to exercise any remedy, power or privilege contained therein or available at law
or otherwise, or the waiver by the Warehouse Agent or any Warehouse Lender of
any provisions of the Warehouse Credit Agreement, any Warehouse Note or any
other Warehouse Loan Document; (c) any impairment, modification, change, release
or limitation in any manner of the liability of any other Company or its estate
in bankruptcy, or of any remedy for the enforcement of any other Company's
liability, resulting from the operation of any present or future provision of
the bankruptcy laws or any other statute or regulation, or the dissolution,
bankruptcy, insolvency, or reorganization of any other Company; (d) the merger
or consolidation of any other Company, or any sale or transfer by any other
Company of all or part of its assets or property; (e) any claim such Company may
have against any other Company or any other Obligor, including any claim of
contribution; (f) the release, in whole or in part, of any other guarantor (if
more than one), any other Company or any other Obligor or (g) any other action
or circumstance which (with or without notice to or knowledge of such Company)
might in any manner or to any extent vary the risks of such Company or otherwise
constitute a legal or equitable discharge or defense, it being understood and
agreed by each Company that its obligations for the Other Company Debt shall not
be discharged except by the full payment and performance of the Other Company
Debt.
6. The Warehouse Agent shall have the right to determine how, when
and what application of payments and credits, if any, whether derived from any
Company or from any other source, shall be made on the Obligations and any other
indebtedness owed by any Company and/or any other Obligor to the Lenders.
7. The obligations of each Company hereunder shall continue to be
effective, or be automatically reinstated, as the case may be, if at any time
the performance or the payment, as the case may be, in whole or in part, of any
of the Other Company Debt is rescinded or must otherwise be restored or returned
by any Lender (as a preference, fraudulent conveyance or otherwise) upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Company or any other Person or upon or as a result of the appointment of a
custodian, receiver, trustee or other officer with similar powers with respect
to any Company or any other Person, or any substantial part of its property, or
otherwise, all as though such payments had not been made. If an Event of Default
shall at any time have occurred and be continuing or shall exist and declaration
of default or acceleration
<PAGE> 218
under or with respect to the Other Company Debt shall at such time be prevented
by reason of the pendency against any Company or any other Person of a case or
proceeding under a bankruptcy or insolvency law, each Company agrees that its
obligations for the Other Company Debt shall be deemed to have been declared in
default or accelerated with the same effect as if such Obligations had been
declared in default and accelerated in accordance with their respective terms
and each Company shall forthwith perform or pay, as the case may be, as required
hereunder in accordance with the terms hereunder without further notice or
demand.
8. Each Company hereby irrevocably waives any claim or other rights
that it may now or hereafter acquire against any other Company that arises from
the existence, payment, performance or enforcement of such Company's obligations
for the Other Company Debt, including any right of subrogation, reimbursement,
exoneration or indemnification, any right to participate in any claim or remedy
of the Warehouse Lenders or the Warehouse Agent against any other Company or any
Collateral or other security that the Warehouse Agent or any Warehouse Lender
now has or hereafter acquires, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, including the right to take
or receive from such other Company directly or indirectly, in cash or other
property or by set-off or in any manner, payment or security on account of such
claim or other rights. If any amount shall be paid to any Company in violation
of the preceding sentence and the Other Company Debt shall not have been paid
and performed in full, such amount shall be deemed to have been paid to such
Company for the benefit of, and held in trust for, the Warehouse Lenders and
shall forthwith be paid to the Warehouse Agent (for distribution to the
Warehouse Lenders) to be credited and applied to the Other Company Debt, whether
matured or unmatured. Notwithstanding the blanket waiver of subrogation rights
as set forth above, each Company hereby specifically acknowledges that any
subrogation rights which it may have against any other Company or any Collateral
or other security that the Warehouse Lenders or the Warehouse Agent now has or
hereafter acquires may be destroyed by a nonjudicial foreclosure of the
Collateral or other security. This may give such Company a defense to a
deficiency judgment against it. Such Company hereby irrevocably waives such
defense. Each Company acknowledges that it will receive direct and indirect
benefits from the arrangements contemplated by the Warehouse Credit Agreement
and that the waivers set forth in this Schedule are knowingly made in
contemplation of such benefits.
9. No postponement or delay on the part of the Warehouse Agent or
any Warehouse Lender in the enforcement of any right with respect to the
Obligations of any Company, including the Other Company Debt, shall constitute a
waiver of such right and all rights of the Warehouse Lenders or the Warehouse
Agent hereunder shall be cumulative and not alternative and shall be in addition
to any other rights granted to the Warehouse Lenders and the Warehouse Agent in
any other agreement or by law.
10. Any Debt of any Company now or hereafter held by any other
Company is hereby subordinated to the Obligations, and such Debt of any Company
to such other Company shall, if the Warehouse Agent so requests, be collected,
enforced and received by the Company to which it is
<PAGE> 219
owed as trustee for the Warehouse Lenders and their agent, the Warehouse Agent,
and be paid over to the Warehouse Agent (for distribution to the Warehouse
Lenders) on account of the Debt of the other Company to the Warehouse Lenders.
<PAGE> 220
SCHEDULE 10.2(B)
MCA FINANCIAL CORP.
BORROWING BASE CERTIFICATE
The undersigned, ______________________, certifies to Texas Commerce
Bank National Association, as a lender and as agent (the "WAREHOUSE AGENT") for
the other lenders under the 10/97 Senior Secured Warehouse Credit Agreement
among MCA Financial Corp. ("MCAFC"), MCA Mortgage Corporation and Mortgage
Corporation of America (all Michigan corporations) and Mortgage Corporation of
America , Inc. (an Ohio corporation), the Warehouse Agent and the Warehouse
Lenders dated October 31, 1997 (as supplemented, amended or restated from time
to time, the "WAREHOUSE CREDIT AGREEMENT"), and to the other lenders, that he is
the duly appointed Chief Financial Officer of MCA. Pursuant to SECTION 10.2(B)
of the Warehouse Credit Agreement, the undersigned further certifies to the
Warehouse Agent and the Warehouse Lenders as follows:
Capitalized terms used in the Warehouse Credit Agreement that are also used but
not defined differently in this certificate have the same meanings here as
there.
1. As of ____________, 19__, the aggregate unpaid principal amount of all
outstanding Warehouse Revolving Loans was $________________.
2. As of _____________, 19___, the Aggregate Committed Sum was
$______________.
3. As of _____________, 19__, the Borrowing Base was $______________, with
its constituent portions calculated in accordance with SCHEDULE BB to
the Warehouse Credit Agreement as follows:
(a) Borrowing Base portion attributable to
Eligible Construction Loans: $
---------
(b) Borrowing Base portion attributable to
Eligible Gestation Loans: $
---------
(c) Borrowing Base portion attributable to
Eligible High LTV Mortgage Loans: $
----------
(d) Borrowing Base portion attributable to
Eligible Jumbo Loans: $
---------
(e) Borrowing Base portion attributable to
Eligible Land Contracts: $
---------
(f) Borrowing Base portion attributable to
<PAGE> 221
Eligible Repurchased Loans: $
---------
(g) Borrowing Base portion attributable to
Eligible Second Mortgage Loans: $
---------
(h) Borrowing Base portion attributable to
Eligible Indirect Warehouse Loans: $
---------
(i) Borrowing Base portion attributable to
Eligible D/E Mortgage Loans: $
---------
(j) Borrowing Base portion attributable to
other Eligible Mortgage Loans (i.e.
those not included in any of the
foregoing categories): $
---------
Total $
---------
4. As of ______________, 19__, the aggregate unpaid principal amount of
all outstanding Warehouse Revolving Loans did not exceed the lesser of
the Aggregate Committed Sum or the Borrowing Base.
IN WITNESS WHEREOF, the undersigned has executed this Borrowing Base
Certificate this ____ day of _______________, 19__.
MCA FINANCIAL CORP.
By:
--------------------------------
Name:
------------------------------
(1)Title:
--------------------------
- --------------------
(1) Must be a Responsible Officer of MCAFC
<PAGE> 222
SCHEDULE 11.4
LITIGATION AND JUDGMENTS
None
<PAGE> 223
SCHEDULE 11.1
SUBSIDIARIES
<TABLE>
<CAPTION>
Company Name Shares Outstanding Shareholder
------------ -------------------- -----------
<S> <C> <C> <C>
I. MCA Mortgage 119,909 MCA Financial Corp.
Corporation (MCAMC)
II. Mortgage Corporation of 50,000 MCA Financial Corp.
America
III. Complete Financial 18,750 MCA Financial Corp.
Corporation
IV. Securities Corporation of 100 MCA Financial Corp.
America
V. MCA Realty Corporation 100 MCA Financial Corp.
VI. Mortgage Corporation of 500 Mortgage Corporation
America, Inc. of America
</TABLE>
<PAGE> 224
SCHEDULE 12.2(d)
MANAGEMENT REPORT
WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199___
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
===============================================================================
This report is delivered under the 10/97 Senior Secured Warehouse
Credit Agreement dated as of October 31, 1997 (as supplemented, amended or
restated, the "WAREHOUSE CREDIT AGREEMENT"), among the Companies, the Warehouse
Agent and the Warehouse Lenders. Terms defined in the Warehouse Credit Agreement
have the same meaning when used, unless otherwise defined, in this report.
I certify to the Warehouse Agent and the Warehouse Lenders that on the
date of this report:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. The attached SCHEDULE 1 is an accurate list of the Companies'
Mortgage Loan production for the Calendar Month before the date of this report,
describing in reasonable detail the geographic mix of all retail and
correspondent production for both the Calendar Month before the date of this
certificate and for the year to date, and such other matters as the Warehouse
Agent may have reasonably requested.
3. The attached SCHEDULE 2 is an accurate and complete schedule of
the Companies' "open commitment and pipeline positions" (as commonly understood
in the industry) for Mortgage Loans, describing in reasonable detail (i) with
regard to "open commitment" positions, the names of investors, type, original
principal amount, rate, price/yield, and expiration date, and (ii) with regard
to "open pipeline" positions, the amount of the pipeline, the total locked
amount and rate of price committed Mortgage Loans in the pipeline, the
percentage of the locked amount that is covered, the types of coverage
(mandatory or optional), future contracts, hedged positions, repurchase
agreements, the profit or loss, and such other matters as the Warehouse Agent
may have reasonably requested.
4. The attached SCHEDULE 3 is an accurate and complete schedule of
the Companies' Servicing Portfolio, describing in reasonable detail the number
of Mortgage Loans being serviced,
<PAGE> 225
the total unpaid principal balance of those Mortgage Loans (total and by
investor), investor type, geographic concentration, weighted average coupon,
foreclosure experience, and such other matters as Warehouse Agent may have
reasonably requested.
By
-------------------------------
(Name)
----------------------------
(1)(Title)
------------------------
- -----------------
(1) Must be a Responsible Officer of all four Companies.
<PAGE> 226
SCHEDULE 12.12
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> 227
SCHEDULE 12.15
SHAREHOLDERS
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
<S> <C>
Dennis M. Agresta 2,450
Alexander J. Ajemian 11,613
Ronald Ballard 150
Rory C. Ballard 1,000
William D. Banfield 125
Mary Deanne Beard 1,000
Isaac R. Bryant 437
Susan J. Church 929
Paul S. Condra 300
Carole Cribar 350
Thomas P. Cronin 14,865
Ronald B. Darga 4,833
Joseph DelCanto 98
James R. Dembek 67
William J. Demetriou 4,380
Detroit Police and Firemen's Retirement System 30,197
Scott A. DeWolf 327
Matthew T. Donnelly 32
Gloria A. Dopp 67
Arlene A. Doyle 4,233
Ronald L. Dunlap 544
Jeffrey A. Egan 2,858
</TABLE>
<PAGE> 228
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
<S> <C>
Harvey R. Faust 500
Teresa S. Fisher 314
Karl F. Fleming 5,000
James D. Formiller 124
Donald J. Frommeyer 3,000
Robert Grady 34
Aaron T. Hamp 150
James M. Healy 5,333
Bernard L. Hemker, Sole Trustee of Bernard L. 2,858
Hemker Living Trust
Hal Hoffman 184
Marisa Hogan-Narro 100
Beth Holsbeke 134
Donald P. Houghtalin 250
Philip A. Jaffe 3,333
Dorothy J. Jantz 2,144
Craig Janutol 2,858
Karen L. Jefferson 600
D. Michael Jehle 25,000
Louis Johnson 1,092
Cheryl Kaye 40
Larry Kleem 391
John E. Koerner 600
Michael H. Kooi 245
Holly Quinlan Kubek 4,333
Dennis R. Kuhn 5,333
</TABLE>
2
<PAGE> 229
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
<S> <C>
John E. Kull 600
Kevin C. Lasky 3,833
James W. LeBaron 1,290
Raymond Leggett 936
Philip H. Levin 300
Cheryl A. Luark 350
Shellie L. Maitre 150
Bruce Martin 163
Douglas B. McCullough 268
Anne M. McGraw-Dick 734
William A. McKinney 600
Michael R. Myers 5,000
NML, Inc. 33,700
Daniel J. O'Connor 6,097
William D. O'Halloran 1,560
John P. O'Leary 8,044
Joseph Papandria 200
Bertha L. Peeples 525
Keith D. Pietila 31,500
Harold A. Poore 90
Deborah Pointer 134
Joanne M. Postlethwaite 1,806
Harry F. Prisby II 1,081
John E. Quinlan, Jr. 6,666
Patrick D. Quinlan, Sr. 20,001
</TABLE>
3
<PAGE> 230
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
<S> <C>
Patrick D. Quinlan and Cheryl J. Quinlan, as 90,134
tenants by the entireties
Patrick D. Quinlan, Jr. 4,333
Katherine Rock Ray 200
David Rogers 100
Leroy G. Rogers 13,460
Richard Schmid 1,247
Ann M. Schwartz 600
Charles H. Silver 72
Linda Gable Smith 350
Nancy J. Smith 1,649
Standard Home Mortgage, Inc. 55,734
David Stickley 219
M. Kathryn Swaim 730
Chad P. Swaim 600
Cheryl A. Swain 3,250
Bridget M. Teed-Oparka 600
Joseph W. Thimm 300
Charles J. VanStreacher III 4,000
David A. Vicari 1,183
Denise M. Weber 4,000
C. Thompson Wells 3,333
Daniel H. Wells 40
Janet K. Wells, as Trustee of the Janet Knost 86,200
Wells Revocable Living Trust u/a/d 10/18/88 as
amended
David C. Wells 14,415
</TABLE>
4
<PAGE> 231
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
<S> <C>
David C. Wells and Pamela G. Loomis, as tenants 16,002
by their entities
Lee P. Wells 23,333
Lee P. Wells and Rhaphael C. Wells, as tenants by 28,372
the entireties
Margaret A White 350
Joseph M. Woodall 4,000
TOTALS 629,239
</TABLE>
5
<PAGE> 232
SCHEDULE 13.4
EXISTING INDEBTEDNESS
<TABLE>
<CAPTION>
MAXIMUM AMOUNT AMOUNT
NAME AVAILABLE OUTSTANDING
---- -------------- -------------
<S> <C> <C>
Paine Webber $ 20,000,000 $ 18,687,830
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 $ 0
11% Asset-Backed Subordinated $ 10,000,000 $ 10,000,000
Debentures due June 30, 2000
11% Subordinated Debentures due June $ 6,000,000 $ 3,954,000
30, 2002
11% Subordinated Debentures due June $ 10,000,000 $ 0
30, 2003
Land Contract - Building $ 542,556 $ 452,416
Capital Leases N/A $ 401,990
Texas Commerce Bank - warehouse [$115,000,000] [$74,064,060]
- revolving credit 28,500,000 18,223,311
Franklin Bank $ 1,000,000 $ 833,421
Subordinated Note Payable to Pension $ 15,000,000 $ 15,000,000
Fund
Advanta Mortgage N/A $ 6,800,000
</TABLE>
<PAGE> 233
SCHEDULE 13.6
EXISTING LIENS
1. Liens on warehoused mortgages and land contracts, including the
unseparated mortgage servicing rights related thereto, under lines of
credit established with Paine Webber ($20 million), where such
mortgages and land contracts are pledged as collateral to such other
lender and are not included in the Borrowing Base under the Warehouse
Credit Agreement to which this Schedule is attached.
2. Liens on warehoused seasoned mortgages and land contracts, including
the unseparated mortgage servicing rights related thereto under a line
of credit established with Texas Commerce (i.e., under the Seasoned
Warehouse Credit Agreement), where such seasoned mortgages and land
contracts are pledged as collateral to Texas Commerce and are not
included in the Borrowing Base under the Warehouse Credit Agreement to
which this Schedule is attached.
3. Liens on land contracts and mortgages and real estate properties held
in inventory under lending agreements with MCA Funding Limited
Partnership, MCA Funding Limited Partnership II, P.A. Funding Limited
Partnership and Sterling Bank, Franklin Bank and MCA-sponsored
pass-through pools, where such land contracts and mortgages are pledged
as collateral to such other lender and are not included in the
Borrowing Base under the Warehouse Credit Agreement to which this
Schedule is attached.
4. 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).
5. Assumption of senior liens on real estate investments and land
contracts held for resale , where such real estate investments and land
contracts are not included in the Borrowing Base under the Warehouse
Credit Agreement to which this Schedule is attached.
6. Rights of senior liens on real estate investments and land contracts
held for resale, where such real estate investments and land contracts
are not included in the Borrowing Base under the Warehouse Credit
Agreement to which this Schedule is attached.
7. 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 July 31,
1997, had an aggregate present value of approximately $401,990.
<PAGE> 234
8. 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, where the related mortgages and land
contracts are owned by others and are not included in the Borrowing
Base under the Warehouse Credit Agreement to which this Schedule is
attached.
9. Liens on specified residual ownership interests in the income stream
generated by such mortgage-backed securities as are related to specific
borrowings where such residual interests are pledged as collateral for
credit other than under the Warehouse Credit Agreement to which this
Schedule is attached.
10. Liens on specified mortgage servicing rights as are related to specific
borrowings to secure which such mortgage servicing rights are pledged
as collateral to a lender, and the related mortgages and land contracts
are owned by others and are not included in the Borrowing Base under
the Warehouse Credit Agreement to which this Schedule is attached.
11. Liens on mortgage servicing rights and their proceeds under the
Revolving Credit Loan Agreement (Secured) dated as of October 31, 1997,
as amended, providing a revolving line of credit of up to $28.5
million, where the related mortgages and land contracts are owned by
others and are not included in the Borrowing Base under the Warehouse
Credit Agreement to which this Schedule is attached.
12. Liens in favor of the Pension Fund granted under the Enhancement
Agreement which do not cover or affect any of the Warehouse Collateral.
3
<PAGE> 235
SCHEDULE 13.13
AFFILIATE TRANSACTIONS
1. MCAFC purchases various real estate parcels from unrelated third
parties which are subsequently sold to limited partnerships whose
general partner is owned by two MCAFC shareholders. Gains are
recognized on these sales.
2. The Companies pay commissions for the acquisition of properties from
unrelated third parties to a company owned by three shareholders of
MCAFC.
3. MCAFC earns management fees for administrative services provided to
U.S. Mutual Financial Corporation ("USMC"). Certain shareholders of
MCAFC are directors or major shareholders of USMC.
4. MCAFC has made charitable contributions to a non-profit organization,
Detroit Revitalization, Inc. ("DRI"), which is engaged in the business
of acquiring, renovating and selling affordable homes in the City of
Detroit to assist in reversing the trend toward deterioration of the
housing stock within the city. MCAFC also purchases various real estate
parcels from unrelated third parties which are subsequently sold to
DRI. Certain shareholders of MCAFC are former directors of DRI.
5. From time to time, the Companies have retained Consulting Services
America ("C.S.A.") as consultants for specific strategic planning and
organizational development projects. The major shareholder and chief
executive officer of C.S.A. is a brother of two shareholder/directors
of MCAFC.
6. From time to time, the Companies have made working capital loans to
affiliated entities.
<PAGE> 236
(THE "10/97 TEXAS COMMERCE WAREHOUSE NOTE")
$37,500,000 Houston, Texas October 31, 1997
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers, jointly
and severally promise to pay to the order of TEXAS COMMERCE BANK NATIONAL
ASSOCIATION ("PAYEE"), a national banking association, at the main branch of
Texas Commerce Bank National Association, 712 Main Street, Houston, Harris
County, Texas 77002, or at such other place as the Warehouse Agent may
hereafter designate in writing, in immediately available funds and in lawful
money of the United States of America, the principal sum of Thirty-seven
Million Five Hundred Thousand Dollars ($37,500,000) (or the unpaid balance of
all principal advanced against this note, if that amount is less), together
with interest on the unpaid principal balance of this note from time to time
outstanding until maturity at the Stated Rate (or at such lesser rate, if any,
as the holder of this note -- the "HOLDER", whether or not Payee is such
holder -- may in its sole discretion from time to time elect to be applicable
for any day or days), and interest on all past due amounts, both principal and
accrued interest, at the Past Due Rate; provided that for the full term of this
note the interest rate produced by the aggregate of all sums paid or agreed to
be paid to Holder for the use, forbearance or detention of the debt evidenced
hereby shall not exceed the Ceiling Rate.
1. Definitions. In addition to the definitions given above, the
definitions given in the 10/97 Senior Secured Warehouse Credit Agreement dated
October 31, 1997, as it may be supplemented, amended or restated from time to
time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b) Texas Commerce
Bank National Association (for itself as a lender and as Warehouse Agent for the
other lenders) and (c) the other lender(s) party thereto, for capitalized terms
that are used in this note shall apply here as well as there.
2. Rates Change Automatically and Without Notice. Without notice
to Makers or any other Person and to the full extent allowed by applicable law
from time to time in effect, the Stated Rate, the Past Due Rate and the Ceiling
Rate shall each automatically fluctuate upward and downward as and in the
amount by which the interest rate applicable to this note as provided for in the
Credit Agreement, the Past Due Rate as defined in the Credit Agreement and such
maximum nonusurious rate of interest permitted by applicable law, respectively,
fluctuate.
3. Calculation of Interest. Interest on the amount of each advance
against this note shall be computed on the amount of that advance and from the
date it is made. Such interest shall be computed on the basis of the actual
number of days elapsed on the basis of a year of 360 days (i.e., on the
365/360--or 366/360 in a leap year--day basis), unless that would cause the
Ceiling Rate for any day to be exceeded, in which event and to the extent
necessary to eliminate or minimize that
Page 1 of 4 Pages
<PAGE> 237
result, interest shall be calculated on the 365/365 -- or 366/366 in a leap
year -- day basis. All interest rate determinations and calculations by the
Holder, absent manifest error, shall be conclusive.
4. Excess Interest Will be Refunded or Credited. If, for any
reason whatever, the interest paid or received on this note during its full
term produces a rate which exceeds the Ceiling Rate, Holder shall refund to the
payor or, at Holder's option, credit against the principal of this note such
portion of said interest as shall be necessary to cause the interest paid on
this note to produce a rate equal to the Ceiling Rate.
5. Interest Will be Spread. To the extent (if any) necessary to
avoid violation of applicable usury laws (or to minimize the extent of the
violation if complete avoidance is impossible for any reason, it being the
intent and purpose of Makers and all Holders to comply strictly with all
applicable usury and other laws), all sums paid or agreed to be paid to Holder
for the use, forbearance or detention of the indebtedness evidenced hereby
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note.
6. Payment Schedule. Interest on and principal of this note shall
be due and payable as provided in SECTION 8.1 of the Credit Agreement.
7. Prepayment. Makers may prepay this note in accordance with and
subject to the provisions of SECTION 8.1(c) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, this Note and its Security. This note is
one of the Warehouse Notes, is issued pursuant to the Credit Agreement (to
which reference is made for all purposes) and may be referred to as the "10/97
TEXAS COMMERCE WAREHOUSE NOTE", and as it may hereafter be renewed, extended,
rearranged, increased, decreased, modified or replaced in accordance with the
Credit Agreement may be referred to as the "CURRENT TEXAS COMMERCE WAREHOUSE
NOTE". Holder is entitled to the benefits of and security provided for in
the Credit Agreement. Such security includes, among other security, the
security interests granted by the Warehouse Security Agreement referred to in
SECTION 9.1 of the Credit Agreement.
9. Revolving Credit. Upon and subject to the terms and conditions
of the Credit Agreement, Makers may borrow, repay and reborrow against this
note under the circumstances, in the manner and for the purposes specified in
the Credit Agreement, but for no other purposes. Advances against this note by
Payee or other Holder shall be governed by the terms of the Credit Agreement.
The unpaid principal balance of this note at any time shall be the total of all
principal lent or advanced against this note less the sum of all principal
payments and permitted prepayments made on this note by or for the account of
Makers. Absent manifest error, Holder's computer records shall on any day
conclusively evidence the unpaid balance of this note and its advances and
payments history posted up to that day. All loans and advances and all
payments and permitted
Page 2 of 4 Pages
<PAGE> 238
prepayments made hereon may be (but are not required to be) endorsed by or on
behalf of Holder on the schedule which is attached as Annex I hereto (which is
hereby made a part hereof for all purposes) or otherwise recorded in Holder's
computer or manual records; provided, that any failure to make notation of (a)
any principal advance or accrual of interest shall not cancel, limit or
otherwise affect Makers' obligations or any Holder's rights with respect to
that advance or accrual, or (b) any payment or permitted prepayment of
principal or interest shall not cancel, limit or otherwise affect Makers'
entitlement to credit for that payment as of the date of its receipt by Holder.
Makers and Payee expressly agree, pursuant to Chapter 346 ("CHAPTER 346") of
the Texas Credit Code, that Chapter 346 (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 346 or subject to its provisions in any manner whatsoever.
10. Legal Costs. If any Holder or the Warehouse Agent retains an
attorney in connection with any Default or Event of Default or to collect,
enforce or defend this note or any papers intended to secure or guarantee it in
any lawsuit or in any probate, reorganization, bankruptcy or other proceeding,
or if any Maker or anyone claiming by, through or under any Maker sues any
Holder in connection with this note or any such papers and does not prevail,
then Makers jointly and severally agree to pay to each such Holder and the
Warehouse Agent, respectively, in addition to principal and interest, all
reasonable costs and expenses incurred by such Holder or the Warehouse Agent in
trying to collect this note or in any such suit or proceeding, 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. An amount equal to
ten percent (10%) of the unpaid principal and accrued interest owing on this
note when and if this note is placed in the hands of an attorney for collection
after default is stipulated to be reasonable attorneys' fees unless a Holder,
the Warehouse Agent or a Maker timely pleads otherwise to a court of competent
jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other
than the Holder or the Payee), guarantors and sureties severally waive notice
(including, but not limited to, notice of intent to accelerate and notice of
acceleration, notice of protest and notice of dishonor), demand, presentment
for payment, protest, diligence in collecting and the filing of suit for the
purpose of fixing liability and consent that the time of payment hereof may be
extended and re-extended from time to time without notice to any of them. Each
such Person agrees that his, her or its liability on or with respect to this
note shall not be affected by any release of or change in any guaranty or
security at any time existing or by any failure to perfect or maintain
perfection of any lien against or security interest in any such security or the
partial or complete unenforceability of any guaranty or other surety
obligation, in each case in whole or in part, with or without notice and before
or after maturity.
12. Not Purpose Credit. None of the proceeds of this note shall
ever be used, directly or indirectly, 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 or for the purpose of
Page 3 of 4 Pages
<PAGE> 239
reducing or retiring any debt which was originally incurred to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock or which would constitute this
transaction a "purpose credit" within the meaning of said Regulation U, as now
or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Warehouse Agent that all loans evidenced by
this note are and will be for business, commercial, investment or other similar
purpose and not primarily for personal, family, household or agricultural use,
as such terms are used in Chapter 1D or in the Texas Finance Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: Keith D. Pietila By: Lee P. Wells
---------------------------- ----------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
-------------------------- --------------------------
Title: EVP Title: PRESIDENT
------------------------- -------------------------
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By: Keith D. Pietila By: Lee P. Wells
---------------------------- ----------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
-------------------------- --------------------------
Title: VP Title: PRESIDENT
------------------------- -------------------------
Page 4 of 4 Pages
<PAGE> 240
ANNEX 1
to $37,500,000
10/97 Texas Commerce Warehouse Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Payment Applied
Date of Payment or on (or advance vs.) Payment Applied Name of Person
Advance Principal on Interest Principal Balance Interest Paid to Making Notation
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 241
(THE "10/97 RESIDENTIAL FUNDING CORPORATION WAREHOUSE NOTE")
$37,500,000 Houston, Texas October 31, 1997
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers, jointly
and severally promise to pay to the order of RESIDENTIAL FUNDING CORPORATION
("PAYEE"), a Delaware corporation, at the main branch of Texas Commerce Bank
National Association, 712 Main Street, Houston, Harris County, Texas 77002, or
at such other place as the Warehouse Agent may hereafter designate in writing,
in immediately available funds and in lawful money of the United States of
America, the principal sum of Thirty-seven Million Five Hundred Thousand
Dollars ($37,500,000) (or the unpaid balance of all principal advanced against
this note, if that amount is less), together with interest on the unpaid
principal balance of this note from time to time outstanding until maturity at
the Stated Rate (or at such lesser rate, if any, as the holder of this note --
the "HOLDER", whether or not Payee is such holder -- may in its sole discretion
from time to time elect to be applicable for any day or days), and interest on
all past due amounts, both principal and accrued interest, at the Past Due
Rate; provided that for the full term of this note the interest rate produced
by the aggregate of all sums paid or agreed to be paid to Holder for the use,
forbearance or detention of the debt evidenced hereby shall not exceed the
Ceiling Rate.
1. Definitions. In addition to the definitions given above, the
definitions given in the 10/97 Senior Secured Warehouse Credit Agreement dated
October 31, 1997, as it may be supplemented, amended or restated from time to
time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b) Texas Commerce
Bank National Association (for itself as a lender and as Warehouse Agent for
the other lenders) and (c) the other lender(s) party thereto, for capitalized
terms that are used in this note shall apply here as well as there.
2. Rates Change Automatically and Without Notice. Without notice
to Makers or any other Person and to the full extent allowed by applicable law
from time to time in effect, the Stated Rate, the Past Due Rate and the Ceiling
Rate shall each automatically fluctuate upward and downward as and in the
amount by which the interest rate applicable to this note as provided for in
the Credit Agreement, the Past Due Rate as defined in the Credit Agreement and
such maximum nonusurious rate of interest permitted by applicable law,
respectively, fluctuate.
3. Calculation of Interest. Interest on the amount of each
advance against this note shall be computed on the amount of that advance and
from the date it is made. Such interest shall be computed on the basis of the
actual number of days elapsed on the basis of a year of 360 days (i.e., on the
365/360--or 366/360 in a leap year--day basis), unless that would cause the
Ceiling Rate for any day to be exceeded, in which event and to the extent
necessary to eliminate or minimize that
Page 1 of 4 Pages
<PAGE> 242
result, interest shall be calculated on the 365/365 -- or 366/366 in a leap
year -- day basis. All interest rate determinations and calculations by the
Holder, absent manifest error, shall be conclusive.
4. Excess Interest Will be Refunded or Credited. If, for any
reason whatever, the interest paid or received on this note during its full
term produces a rate which exceeds the Ceiling Rate, Holder shall refund to the
payor or, at Holder's option, credit against the principal of this note such
portion of said interest as shall be necessary to cause the interest paid on
this note to produce a rate equal to the Ceiling Rate.
5. Interest Will be Spread. To the extent (if any) necessary to
avoid violation of applicable usury laws (or to minimize the extent of the
violation if complete avoidance is impossible for any reason, it being the
intent and purpose of Makers and all Holders to comply strictly with all
applicable usury and other laws), all sums paid or agreed to be paid to Holder
for the use, forbearance or detention of the indebtedness evidenced hereby
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note.
6. Payment Schedule. Interest on and principal of this note shall
be due and payable as provided in SECTION 8.1 of the Credit Agreement.
7. Prepayment. Makers may prepay this note in accordance with and
subject to the provisions of SECTION 8.1(c) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, this Note and its Security. This note is
one of the Warehouse Notes, is issued pursuant to the Credit Agreement (to
which reference is made for all purposes) and may be referred to as the "10/97
RESIDENTIAL FUNDING CORPORATION WAREHOUSE NOTE", and as it may hereafter be
renewed, extended, rearranged, increased, decreased, modified or replaced in
accordance with the Credit Agreement may be referred to as the "CURRENT
RESIDENTIAL FUNDING CORPORATION WAREHOUSE NOTE". Holder is entitled to the
benefits of and security provided for in the Credit Agreement. Such security
includes, among other security, the security interests granted by the Warehouse
Security Agreement referred to in SECTION 9.1 of the Credit Agreement.
9. Revolving Credit. Upon and subject to the terms and conditions
of the Credit Agreement, Makers may borrow, repay and reborrow against this
note under the circumstances, in the manner and for the purposes specified in
the Credit Agreement, but for no other purposes. Advances against this note by
Payee or other Holder shall be governed by the terms of the Credit Agreement.
The unpaid principal balance of this note at any time shall be the total of all
principal lent or advanced against this note less the sum of all principal
payments and permitted prepayments made on this note by or for the account of
Makers. Absent manifest error, Holder's computer records shall on any day
conclusively evidence the unpaid balance of this note and its advances and
payments history posted up to that day. All loans and advances and all
payments and permitted
Page 2 of 4 Pages
<PAGE> 243
prepayments made hereon may be (but are not required to be) endorsed by or on
behalf of Holder on the schedule which is attached as Annex I hereto (which
is hereby made a part hereof for all purposes) or otherwise recorded in Holder's
computer or manual records; provided, that any failure to make notation of (a)
any principal advance or accrual of interest shall not cancel, limit or
otherwise affect Makers' obligations or any Holder's rights with respect to
that advance or accrual, or (b) any payment or permitted prepayment of
principal or interest shall not cancel, limit or otherwise affect Makers'
entitlement to credit for that payment as of the date of its receipt by Holder.
Makers and Payee expressly agree, pursuant to Chapter 346 ("CHAPTER 346") of
the Texas Credit Code, that Chapter 346 (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 346 or subject to its provisions in any manner whatsoever.
10. Legal Costs. If any Holder or the Warehouse Agent retains an
attorney in connection with any Default or Event of Default or to collect,
enforce or defend this note or any papers intended to secure or guarantee it in
any lawsuit or in any probate, reorganization, bankruptcy or other proceeding,
or if any Maker or anyone claiming by, through or under any Maker sues any
Holder in connection with this note or any such papers and does not prevail,
then Makers jointly and severally agree to pay each such Holder and the
Warehouse Agent, respectively, in addition to principal and interest, all
reasonable costs and expenses incurred by such Holder or the Warehouse Agent in
trying to collect this note or in any such suit or proceeding, 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. An amount equal to
ten percent (10%) of the unpaid principal and accrued interest owing on this
note when and if this note is placed in the hands of an attorney for collection
after default is stipulated to be reasonable attorneys' fees unless a Holder,
the Warehouse Agent or a Maker timely pleads otherwise to a court of competent
jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other
than the Holder or the Payee), guarantors and sureties severally waive notice
(including, but not limited to, notice of intent to accelerate and notice of
acceleration, notice of protest and notice of dishonor), demand, presentment
for payment, protest, diligence in collecting and the filing of suit for the
purpose of fixing liability and consent that the time of payment hereof may be
extended and re-extended from time to time without notice to any of them. Each
such Person agrees that his, her or its liability on or with respect to this
note shall not be affected by any release of or change in any guaranty or
security at any time existing or by any failure to perfect or maintain
perfection of any lien against or security interest in any such security or the
partial or complete unenforceability of any guaranty or other surety
obligation, in each case in whole or in part, with or without notice and before
or after maturity.
12. Not Purpose Credit. None of the proceeds of this note shall
ever be used, directly or indirectly, 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 or for the purpose of
Page 3 of 4 Pages
<PAGE> 244
reducing or retiring any debt which was originally incurred to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock or which would constitute this
transaction a "purpose credit" within the meaning of said Regulation U, as
now or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Warehouse Agent that all loans evidenced by
this note are and will be for business, commercial, investment or other similar
purpose and not primarily for personal, family, household or agricultural use,
as such terms are used in Chapter 1D or in the Texas Finance Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: Keith D. Pietila By: Lee P. Wells
---------------------------- ----------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
-------------------------- --------------------------
Title: EVP Title: PRESIDENT
------------------------- -------------------------
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By: Keith D. Pietila By: Lee P. Wells
---------------------------- ----------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
-------------------------- --------------------------
Title: VP Title: PRESIDENT
------------------------- -------------------------
Page 4 of 4 Pages
<PAGE> 245
ANNEX 1
to $37,500,000
10/97 Residential Funding Corporation Warehouse Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Payment Applied
Date of Payment or on (or advance vs.) Payment Applied Name of Person
Advance Principal on Interest Principal Balance Interest Paid to Making Notation
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 246
(THE "10/97 GUARANTY FEDERAL WAREHOUSE NOTE")
$25,000,000 Houston, Texas October 31, 1997
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers, jointly
and severally promise to pay to the order of GUARANTY FEDERAL BANK, F.S.B.
("PAYEE"), a federal savings bank at the main branch of Texas Commerce Bank
National Association, 712 Main Street, Houston, Harris County, Texas 77002, or
at such other place as the Warehouse Agent may hereafter designate in writing,
in immediately available funds and in lawful money of the United States of
America, the principal sum of Twenty-five Million Dollars
($25,000,000) (or the unpaid balance of all principal advanced against this
note, if that amount is less), together with interest on the unpaid principal
balance of this note from time to time outstanding until maturity at the Stated
Rate (or at such lesser rate, if any, as the holder of this note -- the
"HOLDER", whether or not Payee is such holder -- may in its sole discretion
from time to time elect to be applicable for any day or days), and interest on
all past due amounts, both principal and accrued interest, at the Past Due
Rate; provided that for the full term of this note the interest rate produced
by the aggregate of all sums paid or agreed to be paid to Holder for the use,
forbearance or detention of the debt evidenced hereby shall not exceed the
Ceiling Rate.
1. Definitions. In addition to the definitions given above, the
definitions given in the 10/97 Senior Secured Warehouse Credit Agreement dated
October 31, 1997, as it may be supplemented, amended or restated from time to
time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b) Texas Commerce
Bank National Association (for itself as a lender and as Warehouse
Agent for the other lenders) and (c) the other lender(s) party thereto, for
capitalized terms that are used in this note shall apply here as well as there.
2. Rates Change Automatically and Without Notice. Without notice
to Makers or any other Person and to the full extent allowed by applicable law
from time to time in effect, the Stated Rate, the Past Due Rate and the Ceiling
Rate shall each automatically fluctuate upward and downward as and in the
amount by which the interest rate applicable to this note as provided for in
the Credit Agreement, the Past Due Rate as defined in the Credit Agreement and
such maximum nonusurious rate of interest permitted by applicable law,
respectively, fluctuate.
3. Calculation of Interest. Interest on the amount of each
advance against this note shall be computed on the amount of that advance and
from the date it is made. Such interest shall be computed on the basis of the
actual number of days elapsed on the basis of a year of 360 days (i.e., on the
365/360--or 366/360 in a leap year--day basis), unless that would cause the
Ceiling Rate for any day to be exceeded, in which event and to the extent
necessary to eliminate or minimize that
Page 1 of 4 Pages
<PAGE> 247
result, interest shall be calculated on the 365/365 -- or 366/366 in a leap
year -- day basis. All interest rate determinations and calculations by the
Holder, absent manifest error, shall be conclusive.
4. Excess Interest Will be Refunded or Credited. If, for any
reason whatever, the interest paid or received on this note during its full
term produces a rate which exceeds the Ceiling Rate, Holder shall refund to the
payor or, at Holder's option, credit against the principal of this note such
portion of said interest as shall be necessary to cause the interest paid on
this note to produce a rate equal to the Ceiling Rate.
5. Interest Will be Spread. To the extent (if any) necessary to
avoid violation of applicable usury laws (or to minimize the extent of the
violation if complete avoidance is impossible for any reason, it being the
intent and purpose of Makers and all Holders to comply strictly with all
applicable usury and other laws), all sums paid or agreed to be paid to Holder
for the use, forbearance or detention of the indebtedness evidenced hereby
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note.
6. Payment Schedule. Interest on and principal of this note shall
be due and payable as provided in SECTION 8.1 of the Credit Agreement.
7. Prepayment. Makers may prepay this note in accordance with and
subject to the provisions of SECTION 8.1(c) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, this Note and its Security. This note is
one of the Warehouse Notes, is issued pursuant to the Credit Agreement (to
which reference is made for all purposes) and may be referred to as the "10/97
GUARANTY FEDERAL WAREHOUSE NOTE", and as it may hereafter be renewed,
extended, rearranged, increased, decreased, modified or replaced in accordance
with the Credit Agreement may be referred to as the "CURRENT GUARANTY FEDERAL
WAREHOUSE NOTE". Holder is entitled to the benefits of and security provided
for in the Credit Agreement. Such security includes, among other security, the
security interests granted by the Warehouse Security Agreement referred to in
SECTION 9.1 of the Credit Agreement.
9. Revolving Credit. Upon and subject to the terms and conditions
of the Credit Agreement, Makers may borrow, repay and reborrow against this
note under the circumstances, in the manner and for the purposes specified in
the Credit Agreement, but for no other purposes. Advances against this note by
Payee or other Holder shall be governed by the terms of the Credit Agreement.
The unpaid principal balance of this note at any time shall be the total of all
principal lent or advanced against this note less the sum of all principal
payments and permitted prepayments made on this note by or for the account of
Makers. Absent manifest error, Holder's computer records shall on any day
conclusively evidence the unpaid balance of this note and its advances and
payments history posted up to that day. All loans and advances and all
payments and permitted
Page 2 of 4 Pages
<PAGE> 248
prepayments made hereon may be (but are not required to be) endorsed by or on
behalf of Holder on the schedule which is attached as Annex I hereto (which is
hereby made a part hereof for all purposes) or otherwise recorded in Holder's
computer or manual records; provided, that any failure to make notation of (a)
any principal advance or accrual of interest shall not cancel, limit or
otherwise affect Makers' obligations or any Holder's rights with respect to
that advance or accrual, or (b) any payment or permitted prepayment of
principal or interest shall not cancel, limit or otherwise affect Makers'
entitlement to credit for that payment as of the date of its receipt by Holder.
Makers and Payee expressly agree, pursuant to Chapter 346 ("CHAPTER 346") of
the Texas Credit Code, that Chapter 346 (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 346 or subject to its provisions in any manner whatsoever.
10. Legal Costs. If any Holder or the Warehouse Agent retains an
attorney in connection with any Default or Event of Default or to collect,
enforce or defend this note or any papers intended to secure or guarantee it
in any lawsuit or in any probate, reorganization, bankruptcy or other
proceeding, or if any Maker or anyone claiming by, through or under any
Maker sues any Holder in connection with this note or any such papers and does
not prevail, then Makers jointly and severally agree to pay to each such
Holder and the Warehouse Agent, respectively, in addition to principal and
interest, all reasonable costs and expenses incurred by such Holder or the
Warehouse Agent in trying to collect this note or in any such suit or
proceeding, 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. An amount equal to ten percent (10%) of the unpaid principal and
accrued interest owing on this note when and if this note is placed in the
hands of an attorney for collection after default is stipulated to be
reasonable attorneys' fees unless a Holder, the Warehouse Agent or a Maker
timely pleads otherwise to a court of competent jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other
than the Holder or the Payee), guarantors and sureties severally waive notice
(including, but not limited to, notice of intent to accelerate and notice of
acceleration, notice of protest and notice of dishonor), demand, presentment for
payment, protest, diligence in collecting and the filing of suit for the
purpose of fixing liability and consent that the time of payment hereof may be
extended and re-extended from time to time without notice to any of them. Each
such Person agrees that his, her or its liability on or with respect to this
note shall not be affected by any release of or change in any guaranty or
security at any time existing or by any failure to perfect or
maintain perfection of any lien against or security interest in any such
security or the partial or complete unenforceability of any guaranty or other
surety obligation, in each case in whole or in part, with or without notice and
before or after maturity.
12. Not Purpose Credit. None of the proceeds of this note shall
ever be used, directly or indirectly, 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 or for the purpose of
Page 3 of 4 Pages
<PAGE> 249
reducing or retiring any debt which was originally incurred to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock or which would constitute this
transaction a "purpose credit" within the meaning of said Regulation U, as now
or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Warehouse Agent that all loans evidenced by
this note are and will be for business, commercial, investment or other similar
purpose and not primarily for personal, family, household or agricultural use,
as such terms are used in Chapter 1D or in the Texas Finance Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: Keith D. Pietila By: Lee P. Wells
---------------------------- ----------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
-------------------------- --------------------------
Title: EVP Title: PRESIDENT
------------------------- -------------------------
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By: Keith D. Pietila By: Lee P. Wells
---------------------------- ----------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
-------------------------- --------------------------
Title: VP Title: PRESIDENT
------------------------- -------------------------
Page 4 of 4 Pages
<PAGE> 250
ANNEX 1
to $25,000,000
10/97 Guaranty Federal Warehouse Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Payment Applied
Date of Payment or on (or advance vs.) Payment Applied Name of Person
Advance Principal on Interest Principal Balance Interest Paid to Making Notation
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 251
(THE "10/97 BANK ONE WAREHOUSE NOTE")
$20,000,000 Houston, Texas October 31, 1997
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers, jointly
and severally promise to pay to the order of BANK ONE, TEXAS, N.A.
("PAYEE"), a national banking association at the main branch of Texas Commerce
Bank National Association, 712 Main Street, Houston, Harris County,
Texas 77002, or at such other place as the Warehouse Agent may hereafter
designate in writing, in immediately available funds and in lawful money of the
United States of America, the principal sum of Twenty Million Dollars
($20,000,000) (or the unpaid balance of all principal advanced against this
note, if that amount is less), together with interest on the unpaid principal
balance of this note from time to time outstanding until maturity at the Stated
Rate (or at such lesser rate, if any, as the holder of this note -- the
"HOLDER", whether or not Payee is such holder -- may in its sole discretion
from time to time elect to be applicable for any day or days), and interest on
all past due amounts, both principal and accrued interest, at the Past Due
Rate; provided that for the full term of this note the interest rate produced
by the aggregate of all sums paid or agreed to be paid to Holder for the use,
forbearance or detention of the debt evidenced hereby shall not exceed the
Ceiling Rate.
1. Definitions. In addition to the definitions given above, the
definitions given in the 10/97 Senior Secured Warehouse Credit Agreement dated
October 31, 1997, as it may be supplemented, amended or restated from time to
time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b) Texas Commerce
Bank National Association (for itself as a lender and as Warehouse
Agent for the other lenders) and (c) the other lender(s) party thereto, for
capitalized terms that are used in this note shall apply here as well as there.
2. Rates Change Automatically and Without Notice. Without notice
to Makers or any other Person and to the full extent allowed by applicable law
from time to time in effect, the Stated Rate, the Past Due Rate and the Ceiling
Rate shall each automatically fluctuate upward and downward as and in the
amount by which the interest rate applicable to this note as provided for in
the Credit Agreement, the Past Due Rate as defined in the Credit Agreement and
such maximum nonusurious rate of interest permitted by applicable law,
respectively, fluctuate.
3. Calculation of Interest. Interest on the amount of each
advance against this note shall be computed on the amount of that advance and
from the date it is made. Such interest shall be computed on the basis of the
actual number of days elapsed on the basis of a year of 360 days (i.e., on the
365/360--or 366/360 in a leap year--day basis), unless that would cause the
Ceiling Rate for any day to be exceeded, in which event and to the extent
necessary to eliminate or minimize that
Page 1 of 4 Pages
<PAGE> 252
result, interest shall be calculated on the 365/365 -- or 366/366 in a leap
year -- day basis. All interest rate determinations and calculations by the
Holder, absent manifest error, shall be conclusive.
4. Excess Interest Will be Refunded or Credited. If, for any
reason whatever, the interest paid or received on this note during its full
term produces a rate which exceeds the Ceiling Rate, Holder shall refund to the
payor or, at Holder's option, credit against the principal of this note such
portion of said interest as shall be necessary to cause the interest paid on
this note to produce a rate equal to the Ceiling Rate.
5. Interest Will be Spread. To the extent (if any) necessary to
avoid violation of applicable usury laws (or to minimize the extent of the
violation if complete avoidance is impossible for any reason, it being the
intent and purpose of Makers and all Holders to comply strictly with all
applicable usury and other laws), all sums paid or agreed to be paid to Holder
for the use, forbearance or detention of the indebtedness evidenced hereby
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note.
6. Payment Schedule. Interest on and principal of this note shall
be due and payable as provided in SECTION 8.1 of the Credit Agreement.
7. Prepayment. Makers may prepay this note in accordance with and
subject to the provisions of SECTION 8.1(c) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, this Note and its Security. This note is
one of the Warehouse Notes, is issued pursuant to the Credit Agreement (to
which reference is made for all purposes) and may be referred to as the "10/97
BANK ONE WAREHOUSE NOTE", and as it may hereafter be renewed, extended,
rearranged, increased, decreased, modified or replaced in accordance with the
Credit Agreement may be referred to as the "CURRENT BANK ONE WAREHOUSE NOTE".
Holder is entitled to the benefits of and security provided for in the Credit
Agreement. Such security includes, among other security, the security
interests granted by the Warehouse Security Agreement referred to in SECTION
9.1 of the Credit Agreement.
9. Revolving Credit. Upon and subject to the terms and conditions
of the Credit Agreement, Makers may borrow, repay and reborrow against this
note under the circumstances, in the manner and for the purposes specified in
the Credit Agreement, but for no other purposes. Advances against this note by
Payee or other Holder shall be governed by the terms of the Credit Agreement.
The unpaid principal balance of this note at any time shall be the total of all
principal lent or advanced against this note less the sum of all principal
payments and permitted prepayments made on this note by or for the account of
Makers. Absent manifest error, Holder's computer records shall on any day
conclusively evidence the unpaid balance of this note and its advances and
payments history posted up to that day. All loans and advances and all
payments and permitted
Page 2 of 4 Pages
<PAGE> 253
prepayments made hereon may be (but are not required to be) endorsed by or on
behalf of Holder on the schedule which is attached as Annex I hereto (which is
hereby made a part hereof for all purposes) or otherwise recorded in Holder's
computer or manual records; provided, that any failure to make notation of (a)
any principal advance or accrual of interest shall not cancel, limit or
otherwise affect Makers' obligations or any Holder's rights with respect to
that advance or accrual, or (b) any payment or permitted prepayment of
principal or interest shall not cancel, limit or otherwise affect Makers'
entitlement to credit for that payment as of the date of its receipt by Holder.
Makers and Payee expressly agree, pursuant to Chapter 346 ("CHAPTER 346") of
the Texas Credit Code, that Chapter 346 (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 346 or subject to its provisions in any manner whatsoever.
10. Legal Costs. If any Holder or the Warehouse Agent retains an
attorney in connection with any Default or Event of Default or to collect,
enforce or defend this note or any papers intended to secure or guarantee it
in any lawsuit or in probate, reorganization, bankruptcy or other proceeding,
or if any Maker or anyone claiming by, through or under any Maker sues any
Holder in connection with this note or any such papers and does not prevail,
then Makers jointly and severally agree to pay to each such Holder and
the Warehouse Agent, respectively, in addition to principal and interest, all
reasonable costs and expenses incurred by such Holder or the Warehouse Agent in
trying to collect this note or in any such suit or proceeding, 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. An amount equal to
ten percent (10%) of the unpaid principal and accrued interest owing on this
note when and if this note is placed in the hands of an attorney for collection
after default is stipulated to be reasonable attorneys' fees unless a Holder,
the Warehouse Agent or a Maker timely pleads otherwise to a court of competent
jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other
than the Holder or the Payee), guarantors and sureties severally waive notice
(including, but not limited to, notice of intent to accelerate and notice of
acceleration, notice of protest and notice of dishonor), demand, presentment for
payment, protest, diligence in collecting and the filing of suit for the
purpose of fixing liability and consent that the time of payment hereof may be
extended and re-extended from time to time without notice to any of them. Each
such Person agrees that his, her or its liability on or with respect to this
note shall not be affected by any release of or change in any guaranty or
security at any time existing or by any failure to perfect or
maintain perfection of any lien against or security interest in any such
security or the partial or complete unenforceability of any guaranty or other
surety obligation, in each case in whole or in part, with or without notice and
before or after maturity.
12. Not Purpose Credit. None of the proceeds of this note shall
ever be used, directly or indirectly, 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 or for the purpose of
Page 3 of 4 Pages
<PAGE> 254
reducing or retiring any debt which was originally incurred to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock or which would constitute this
transaction a "purpose credit" within the meaning of said Regulation U, as now
or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Warehouse Agent that all loans evidenced by
this note are and will be for business, commercial, investment or other similar
purpose and not primarily for personal, family, household or agricultural use,
as such terms are used in Chapter 1D or in the Texas Finance Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: Keith D. Pietila By: Lee P. Wells
---------------------------- ----------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
-------------------------- --------------------------
Title: EVP Title: PRESIDENT
------------------------- -------------------------
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By: Keith D. Pietila By: Lee P. Wells
---------------------------- ----------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
-------------------------- --------------------------
Title: VP Title: PRESIDENT
------------------------- -------------------------
Page 4 of 4 Pages
<PAGE> 255
ANNEX 1
to $20,000,000
10/97 Bank One Warehouse Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Payment Applied
Date of Payment or on (or advance vs.) Payment Applied Name of Person
Advance Principal on Interest Principal Balance Interest Paid to Making Notation
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 256
(THE "10/97 BANK OF NEW YORK WAREHOUSE NOTE")
$20,000,000 Houston, Texas October 31, 1997
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers, jointly
and severally promise to pay to the order of THE BANK OF NEW YORK
("PAYEE"), a New York banking corporation, at the main branch of Texas Commerce
Bank National Association, 712 Main Street, Houston, Harris County, Texas
77002, or at such other place as the Warehouse Agent may hereafter designate in
writing, in immediately available funds and in lawful money of the United
States of America, the principal sum of Twenty Million Dollars ($20,000,000)
(or the unpaid balance of all principal advanced against this note, if that
amount is less), together with interest on the unpaid principal balance of this
note from time to time outstanding until maturity at the Stated Rate (or at
such lesser rate, if any, as the holder of this note -- the "HOLDER", whether
or not Payee is such holder -- may in its sole discretion from time to time
elect to be applicable for any day or days), and interest on all past due
amounts, both principal and accrued interest, at the Past Due Rate; provided
that for the full term of this note the interest rate produced by the aggregate
of all sums paid or agreed to be paid to Holder for the use, forbearance or
detention of the debt evidenced hereby shall not exceed the Ceiling Rate.
1. Definitions. In addition to the definitions given above, the
definitions given in the 10/97 Senior Secured Warehouse Credit Agreement dated
October 31, 1997, as it may be supplemented, amended or restated from time to
time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b) Texas Commerce
Bank National Association (for itself as a lender and as Warehouse
Agent for the other lenders) and (c) the other lender(s) party thereto, for
capitalized terms that are used in this note shall apply here as well as there.
2. Rates Change Automatically and Without Notice. Without notice
to Makers or any other Person and to the full extent allowed by applicable law
from time to time in effect, the Stated Rate, the Past Due Rate and the Ceiling
Rate shall each automatically fluctuate upward and downward as and in the
amount by which the interest rate applicable to this note as provided for in
the Credit Agreement, the Past Due Rate as defined in the Credit Agreement and
such maximum nonusurious rate of interest permitted by applicable law,
respectively, fluctuate.
3. Calculation of Interest. Interest on the amount of each
advance against this note shall be computed on the amount of that advance and
from the date it is made. Such interest shall be computed on the basis of the
actual number of days elapsed on the basis of a year of 360 days (i.e., on the
365/360--or 366/360 in a leap year--day basis), unless that would cause the
Ceiling Rate for any day to be exceeded, in which event and to the extent
necessary to eliminate or minimize that
Page 1 of 4 Pages
<PAGE> 257
result, interest shall be calculated on the 365/365 -- or 366/366 in a leap
year -- day basis. All interest rate determinations and calculations by the
Holder, absent manifest error, shall be conclusive.
4. Excess Interest Will be Refunded or Credited. If, for any
reason whatever, the interest paid or received on this note during its full
term produces a rate which exceeds the Ceiling Rate, Holder shall refund to the
payor or, at Holder's option, credit against the principal of this note such
portion of said interest as shall be necessary to cause the interest paid on
this note to produce a rate equal to the Ceiling Rate.
5. Interest Will be Spread. To the extent (if any) necessary to
avoid violation of applicable usury laws (or to minimize the extent of the
violation if complete avoidance is impossible for any reason, it being the
intent and purpose of Makers and all Holders to comply strictly with all
applicable usury and other laws), all sums paid or agreed to be paid to Holder
for the use, forbearance or detention of the indebtedness evidenced hereby
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note.
6. Payment Schedule. Interest on and principal of this note shall
be due and payable as provided in SECTION 8.1 of the Credit Agreement.
7. Prepayment. Makers may prepay this note in accordance with and
subject to the provisions of SECTION 8.1 (c) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, this Note and its Security. This note is
one of the Warehouse Notes, is issued pursuant to the Credit Agreement (to
which reference is made for all purposes) and may be referred to as the
"10/97 BANK OF NEW YORK WAREHOUSE NOTE", and as it may hereafter be renewed,
extended, rearranged, increased, decreased, modified or replaced in accordance
with the Credit Agreement may be referred to as the "CURRENT BANK OF NEW YORK
WAREHOUSE NOTE". Holder is entitled to the benefits of and security provided
for in the Credit Agreement. Such security includes, among other security, the
security interests granted by the Warehouse Security Agreement referred to in
SECTION 9.1 of the Credit Agreement.
9. Revolving Credit. Upon and subject to the terms and conditions
of the Credit Agreement, Makers may borrow, repay and reborrow against this
note under the circumstances, in the manner and for the purposes specified in
the Credit Agreement, but for no other purposes. Advances against this note by
Payee or other Holder shall be governed by the terms of the Credit Agreement.
The unpaid principal balance of this note at any time shall be the total of all
principal lent or advanced against this note less the sum of all principal
payments and permitted prepayments made on this note by or for the account of
Makers. Absent manifest error, Holder's computer records shall on any
day conclusively evidence the unpaid balance of this note and its advances and
payments history posted up to that day. All loans and advances and all
payments and permitted
Page 2 of 4 Pages
<PAGE> 258
prepayments made hereon may be (but are not required to be) endorsed by or on
behalf of Holder on the schedule which is attached as Annex I hereto (which is
hereby made a part hereof for all purposes) or otherwise recorded in Holder's
computer or manual records; provided, that any failure to make notation of (a)
any principal advance or accrual of interest shall not cancel, limit or
otherwise affect Makers' obligations or any Holder's rights with respect to
that advance or accrual, or (b) any payment or permitted prepayment of
principal or interest shall not cancel, limit or otherwise affect Makers'
entitlement to credit for that payment as of the date of its receipt by Holder.
Makers and Payee expressly agree, pursuant to Chapter 346 ("CHAPTER 346") of
the Texas Credit Code, that Chapter 346 (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 346 or subject to its provisions in any manner whatsoever.
10. Legal Costs. If any Holder or the Warehouse Agent retains an
attorney in connection with any Default or Event of Default or to collect,
enforce or defend this note or any papers intended to secure or guarantee it
in any lawsuit or in probate, reorganization, bankruptcy or other proceeding,
or if any Maker or anyone claiming by, through or under any Maker sues any
Holder in connection with this note or any such papers and does not prevail,
then Makers jointly and severally agree to pay to each such Holder and
the Warehouse Agent, respectively, in addition to principal and interest, all
reasonable costs and expenses incurred by such Holder or the Warehouse Agent in
trying to collect this note or in any such suit or proceeding, 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. An amount equal to
ten percent (10%) of the unpaid principal and accrued interest owing on this
note when and if this note is placed in the hands of an attorney for collection
after default is stipulated to be reasonable attorneys' fees unless a Holder,
the Warehouse Agent or a Maker timely pleads otherwise to a court of competent
jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other
than the Holder or the Payee), guarantors and sureties severally waive notice
(including, but not limited to, notice of intent to accelerate and notice of
acceleration, notice of protest and notice of dishonor), demand, presentment for
payment, protest, diligence in collecting and the filing of suit for the
purpose of fixing liability and consent that the time of payment hereof may be
extended and re-extended from time to time without notice to any of them. Each
such Person agrees that his, her or its liability on or with respect to this
note shall not be affected by any release of or change in any guaranty or
security at any time existing or by any failure to perfect or maintain
perfection of any lien against or security interest in any such security or the
partial or complete unenforceability of any guaranty or other surety
obligation, in each case in whole or in part, with or without notice and before
or after maturity.
12. Not Purpose Credit. None of the proceeds of this note shall
ever be used, directly or indirectly, 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 or for the purpose of
Page 3 of 4 Pages
<PAGE> 259
reducing or retiring any debt which was originally incurred to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock or which would constitute this
transaction a "purpose credit" within the meaning of said Regulation U, as now
or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Warehouse Agent that all loans evidenced by
this note are and will be for business, commercial, investment or other similar
purpose and not primarily for personal, family, household or agricultural use,
as such terms are used in Chapter 1D or in the Texas Finance Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: Keith D. Pietila By: Lee P. Wells
---------------------------- ----------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
-------------------------- --------------------------
Title: EVP Title: PRESIDENT
------------------------- -------------------------
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By: Keith D. Pietila By: Lee P. Wells
---------------------------- ----------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
-------------------------- --------------------------
Title: VP Title: PRESIDENT
------------------------- -------------------------
Page 4 of 4 Pages
<PAGE> 260
ANNEX 1
to $20,000,000
10/97 Bank of New York Warehouse Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Payment Applied
Date of Payment or on (or advance vs.) Payment Applied Name of Person
Advance Principal on Interest Principal Balance Interest Paid to Making Notation
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 261
(THE "10/97 LASALLE WAREHOUSE NOTE")
ORIGINAL
$20,000,000 Houston, Texas October 31, 1997
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers, jointly
and severally promise to pay to the order of LASALLE NATIONAL BANK ("PAYEE"), a
national banking association, at the main branch of Texas Commerce Bank National
Association, 712 Main Street, Houston, Harris County, Texas 77002, or at such
other place as the Warehouse Agent may hereafter designate in writing, in
immediately available funds and in lawful money of the United States of America,
the principal sum of Twenty Million Dollars ($20,000,000) (or the unpaid balance
of all principal advanced against this note, if that amount is less), together
with interest on the unpaid principal balance of this note from time to time
outstanding until maturity at the Stated Rate (or at such lesser rate, if any,
as the holder of this note -- the "HOLDER", whether or not Payee is such holder
- -- may in its sole discretion from time to time elect to be applicable for any
day or days), and interest on all past due amounts, both principal and accrued
interest, at the Past Due Rate; provided that for the full term of this note the
interest rate produced by the aggregate of all sums paid or agreed to be paid to
Holder for the use, forbearance or detention of the debt evidenced hereby shall
not exceed the Ceiling Rate.
1. Definitions. In addition to the definitions given above, the
definitions given in the 10/97 Senior Secured Warehouse Credit Agreement dated
October 31, 1997, as it may be supplemented, amended or restated from time to
time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b) Texas Commerce
Bank National Association (for itself as a lender and as Warehouse Agent for the
other lenders) and (c) the other lender(s) party thereto, for capitalized terms
that are used in this note shall apply here as well as there.
2. Rates Change Automatically and Without Notice. Without notice
to Makers or any other Person and to the full extent allowed by applicable law
from time to time in effect, the Stated Rate, the Past Due Rate and the Ceiling
Rate shall each automatically fluctuate upward and downward as and in the amount
by which the interest rate applicable to this note as provided for in the Credit
Agreement, the Past Due Rate as defined in the Credit Agreement and such maximum
nonusurious rate of interest permitted by applicable law, respectively,
fluctuate.
3. Calculation of Interest. Interest on the amount of each advance
against this note shall be computed on the amount of that advance and from the
date it is made. Such interest shall be computed on the basis of the actual
number of days elapsed on the basis of a year of 360 days (i.e., on the
365/360--or 366/360 in a leap year--day basis), unless that would cause the
Ceiling Rate for any day to be exceeded, in which event and to the extent
necessary to eliminate or minimize that
Page 1 of 4 Pages
<PAGE> 262
result, interest shall be calculated on the 365/365 -- or 366/366 in a leap year
- -- day basis. All interest rate determinations and calculations by the Holder,
absent manifest error, shall be conclusive.
4. Excess Interest will be Refunded or Credited. If, for any
reason whatever, the interest paid or received on this note during its full term
produces a rate which exceeds the Ceiling Rate, Holder shall refund to the payor
or, at Holder's option, credit against the principal of this note such portion
of said interest as shall be necessary to cause the interest paid on this note
to produce a rate equal to the Ceiling Rate.
5. Interest will be Spread. To the extent (if any) necessary to
avoid violation of applicable usury laws (or to minimize the extent of the
violation if complete avoidance is impossible for any reason, it being the
intent and purpose of Makers and all Holders to comply strictly with all
applicable usury and other laws), all sums paid or agreed to be paid to Holder
for the use, forbearance or detention of the indebtedness evidenced hereby
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note.
6. Payment Schedule. Interest on and principal of this note shall
be due and payable as provided in SECTION 8.1 of the Credit Agreement.
7. Prepayment. Makers may prepay this note in accordance with and
subject to the provisions of SECTION 8.1(C) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, This Note and its Security. This note is
one of the Warehouse Notes, is issued pursuant to the Credit Agreement (to which
reference is made for all purposes) and may be referred to as the "10/97 LASALLE
WAREHOUSE NOTE", and as it may hereafter be renewed, extended, rearranged,
increased, decreased, modified or replaced in accordance with the Credit
Agreement may be referred to as the "CURRENT LASALLE WAREHOUSE NOTE". Holder is
entitled to the benefits of and security provided for in the Credit Agreement.
Such security includes, among other security, the security interests granted by
the Warehouse Security Agreement referred to in the SECTION 9.1 of the Credit
Agreement.
9. Revolving Credit. Upon and subject to the terms and
conditions of the Credit Agreement, Makers may borrow, repay and reborrow
against this note under the circumstances, in the manner and for the purposes
specified in the Credit Agreement, but for no other purposes. Advances against
this note by Payee or other Holder shall be governed by the terms of the Credit
Agreement. The unpaid principal balance of this note at any time shall be the
total of all principal lent or advanced against this note less the sum of all
principal payments and permitted prepayments made on this note by or for the
account of Makers. Absent manifest error, Holder's computer records shall on
any day conclusively evidence the unpaid balance of this note and its advances
and payments history posted up to that day. All loans and advances and all
payments and permitted
Page 2 of 4 Pages
<PAGE> 263
prepayments made hereon may be (but are not required to be) endorsed by or on
behalf of Holder on the schedule which is attached as ANNEX I hereto (which is
hereby made a part hereof for all purposes) or otherwise recorded in Holder's
computer or manual records; provided, that any failure to make notation of (a)
any principal advance or accrual of interest shall not cancel, limit or
otherwise affect Makers' obligations or any Holder's rights with respect to
that advance or accrual, or (b) any payment or permitted prepayment of
principal or interest shall not cancel, limit or otherwise affect Makers'
entitlement to credit for that payment as of the date of its receipt by
Holder. Makers and Payee expressly agree, pursuant to Chapter 346 ("CHAPTER
346") of the Texas Credit Code, that Chapter 346 (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 346 or subject to its provisions in any manner
whatsoever.
10. Legal Costs. If any Holder or the Warehouse Agent retains an
attorney in connection with any Default or Event of Default or to collect,
enforce or defend this note or any papers intended to secure or guarantee it in
any lawsuit or in any probate, reorganization, bankruptcy or other proceeding,
or if any Maker or anyone claiming by, through or under any Maker sues any
Holder in connection with this note or any such papers and does not prevail,
then Makers jointly and severally agree to pay to each such Holder and the
Warehouse Agent, respectively, in addition to principal and interest, all
reasonable costs and expenses incurred by such Holder or the Warehouse Agent in
trying to collect this note or in any such suit or proceeding, 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. An amount equal to ten percent
(10%) of the unpaid principal and accrued interest owing on this note when and
if this note is placed in the hands of an attorney for collection after default
is stipulated to be reasonable attorneys' fees unless a Holder, the Warehouse
Agent or a Maker timely pleads otherwise to a court of competent jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other
than the Holder or the Payee), guarantors and sureties severally waive notice
(including, but not limited to, notice of intent to accelerate and notice of
acceleration, notice of protest and notice of dishonor), demand, presentment for
payment, protest, diligence in collecting and the filing of suit for the purpose
of fixing liability and consent that the time of payment hereof may be extended
and re-extended from time to time without notice to any of them. Each such
Person agrees that his, her or its liability on or with respect to this note
shall not be affected by any release of or change in any guaranty or security at
any time existing or by any failure to perfect or maintain perfection of any
lien against or security interest in any such security or the partial or
complete unenforceability of any guaranty or other surety obligation, in each
case in whole or in part, with or without notice and before or after maturity.
12. Not Purpose Credit. None of the proceeds of this note shall
ever be used, directly or indirectly, 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 or for the purpose of
Page 3 of 4 Pages
<PAGE> 264
reducing or retiring any debt which was originally incurred to purchase or carry
any margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock or which would constitute this transaction a "purpose
credit" within the meaning of said Regulation U, as now or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Warehouse Agent that all loans evidenced by
this note are and will be for business commercial, investment or other similar
purpose and not primarily for personal, family, household or agricultural use,
as such terms are used in Chapter 1D or in the Texas Finance Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: Keith D. Pietila By: Lee P. Wells
-------------------------- -------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
------------------------ -----------------------
Title: EVP Title: PRESIDENT
----------------------- ----------------------
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By: Keith D. Pietila By: Lee P. Wells
-------------------------- -------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
------------------------ -----------------------
Title: VP Title: PRESIDENT
----------------------- ----------------------
Page 4 of 4 Pages
<PAGE> 265
ANNEX 1
to $20,000,000
10/97 LaSalle Warehouse Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Payment Applied
Date of Payment or on (or advance vs.) Payment Applied Name of Person
Advance Principal on Interest Principal Balance Interest Paid to Making Notation
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 266
(THE "10/97 SWING LINE NOTE")
$30,000,000 Houston, Texas October 31, 1997
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers, jointly
and severally promise to pay to the order of TEXAS COMMERCE BANK NATIONAL
ASSOCIATION ("PAYEE"), a national banking association, at its main branch at 712
Main Street, Houston, Harris County, Texas 77002, or at such other place as the
Warehouse Agent may hereafter designate in writing, in immediately available
funds and in lawful money of the United States of America, the principal sum of
Thirty Million Dollars ($30,000,000)(or the unpaid balance of all principal
advanced against this note, if that amount is less), together with interest on
the unpaid principal balance of this note from time to time outstanding
until maturity at the Stated Rate (or at such lesser rate, if any, as the
holder of this note -- the "HOLDER", whether or not Payee is such holder -- may
in its sole discretion from time to time elect to be applicable for any day or
days), and interest on all past due amounts, both principal and accrued
interest, at the Past Due Rate; provided that for the full term of this note
the interest rate produced by the aggregate of all sums paid or agreed to be
paid to Holder for the use, forbearance or detention of the debt evidenced
hereby shall not exceed the Ceiling Rate.
1. Definitions. In addition to the definitions given above, the
definitions given in the 10/97 Senior Secured Warehouse Credit Agreement dated
October 31, 1997, as it may be supplemented, amended or restated from time to
time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b) Texas Commerce
Bank National Association (for itself as a lender and as Warehouse Agent for the
other lenders) and (c) the other lender(s) party thereto, for capitalized terms
that are used in this note shall apply here as well as there.
2. Rates Change Automatically and Without Notice. Without
notice to Makers or any other Person and to the full extent allowed by
applicable law from time to time in effect, the Stated Rate, the Past Due Rate
and the Ceiling Rate shall each automatically fluctuate upward and downward as
and in the amount by which the interest rate applicable to this note as
provided for in the Credit Agreement, the Past Due Rate as defined in the
Credit Agreement and such maximum nonusurious rate of interest permitted by
applicable law, respectively, fluctuate.
3. Calculation of Interest. Interest on the amount of each
advance against this note shall be computed on the amount of that advance and
from the date it is made. Such interest shall be computed on the basis of the
actual number of days elapsed on the basis of a year of 360 days (i.e., on the
365/360 -- or 366/360 in a leap year -- day basis), unless that would cause the
Ceiling Rate for any day to be exceeded, in which event and to the extent
necessary to eliminate or minimize that
Page 1 of 4 Pages
<PAGE> 267
result, interest shall be calculated on the 365/365 -- or 366/366 in a leap year
- -- day basis. All interest rate determinations and calculations by the Holder,
absent manifest error, shall be conclusive.
4. Excess Interest Will be Refunded or Credited. If, for any
reason whatever, the interest paid or received on this note during its full term
produces a rate which exceeds the Ceiling Rate, Holder shall refund to the payor
or, at Holder's option, credit against the principal of this note such portion
of said interest as shall be necessary to cause the interest paid on this note
to produce a rate equal to the Ceiling Rate.
5. Interest Will be Spread. To the extent (if any) necessary to
avoid violation of applicable usury laws (or to minimize the extent of the
violation if complete avoidance is impossible for any reason, it being the
intent and purpose of Makers and all Holders to comply strictly with all
applicable usury and other laws), all sums paid or agreed to be paid to Holder
for the use, forbearance or detention of the indebtedness evidenced hereby
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note.
6. Payment Schedule. Interest on and principal of this note shall
be due and payable as provided in SECTION 8.1 of the Credit Agreement.
7. Prepayment. Maker may prepay this note in accordance with and
subject to the provisions of SECTION 8.1(C) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, this Note and its Security. This note is
the Swing Line Note and one of the Warehouse Notes, is issued pursuant to the
Credit Agreement (to which reference is made for all purposes) and may be
referred to as the "10/97 WAREHOUSE SWING LINE NOTE", and as it may hereafter be
renewed, extended, rearranged, increased, decreased, modified or replaced in
accordance with the Credit Agreement may be referred to as the "CURRENT
WAREHOUSE SWING LINE NOTE". Holder is entitled to the benefits of and security
provided for in the Credit Agreement. Such security includes, among other
security, the security interests granted by the Warehouse Security Agreement
referred to in SECTION 9.1 of the Credit Agreement.
9. Revolving Credit. Upon and subject to the terms and conditions
of the Credit Agreement, Makers may borrow, repay and reborrow against this note
under the circumstances, in the manner and for the purposes specified in the
Credit Agreement, but for no other purposes. Advances against this note by Payee
or other Holder shall be governed by the terms of the Credit Agreement. The
unpaid principal balance of this note at any time shall be the total of all
principal lent or advanced against this note less the sum of all principal
payments and permitted prepayments made on this note by or for the account of
Makers. Absent manifest error, Holder's computer records shall on any day
conclusively evidence the unpaid balance of this note and its advances and
payments history posted up to that day. All loans and advances and all payments
and permitted
Page 2 of 4 Pages
<PAGE> 268
prepayments made hereon may be (but are not required to be) endorsed by or on
behalf of Holder on the schedule which is attached as Annex I hereto (which
is hereby made a part hereof for all purposes) or otherwise recorded in Holder's
computer or manual records; provided, that any failure to make notation of (a)
any principal advance or accrual of interest shall not cancel, limit or
otherwise affect Makers' obligations or any Holder's rights with respect to that
advance or accrual, or (b) any payment or permitted prepayment of principal or
interest shall not cancel, limit or otherwise affect Makers' entitlement to
credit for that payment as of the date of its receipt by Holder. Makers and
Payee expressly agree, pursuant to Chapter 346 ("CHAPTER 346") of the Texas
Credit Code, that Chapter 346 (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 346 or subject to its provisions in any manner whatsoever.
10. Legal Costs. If any Holder or the Warehouse Agent retains an
attorney in connection with any Default or Event of Default or to collect,
enforce or defend this note or any papers intended to secure or guarantee it in
any lawsuit or in probate, reorganization, bankruptcy or other proceeding, or if
any Maker or anyone claiming by, through or under any Maker sues any Holder in
connection with this note or in any such papers and does not prevail, then
Makers jointly and severally agree to pay each such Holder and the Warehouse
Agent, respectively, in addition to principal and interest, all reasonable
costs and expenses incurred by such Holder or the Warehouse Agent in trying to
collect this note or in any such suit or proceeding, 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. An amount equal to ten percent
(10%) of the unpaid principal and accrued interest owing on this note when and
if this note is placed in the hands of an attorney for collection after default
is stipulated to be reasonable attorneys' fees unless a Holder, the Warehouse
Agent or a Maker timely pleads otherwise to a court of competent jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other
than the Holder or the Payee), guarantors and sureties severally waive notice
(including, but not limited to, notice of intent to accelerate and notice for
acceleration, notice of protest and notice of dishonor), demand, presentment
for payment, protest, diligence in collecting and the filing of suit for the
purpose of fixing liability and consent that the time of payment hereof may be
extended and re-extended from time to time without notice to any of them. Each
such Person agrees that his, her or its liability on or with respect to this
note shall not be affected by any release of or change in any guaranty or
security at any time existing or by any failure to perfect or maintain
perfection of any lien against or security interest in any such security or the
partial or complete unenforceability of any guaranty or other surety obligation,
in each case in whole or in part, with or without notice and before or after
maturity.
12. Not Purpose Credit. None of the proceeds of this note shall
ever be used, directly or indirectly, 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 or for the purpose of
Page 3 of 4 Pages
<PAGE> 269
reducing or retiring any debt which was originally incurred to purchase or carry
any margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock or which would constitute this transaction a "purpose
credit" within the meaning of said Regulation U, as now or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Warehouse Agent that all loans evidenced by
this note are and will be for business, commercial, investment or other similar
purpose and not primarily for personal, family, household or agricultural use,
as such terms are used in Chapter 1D or in the Texas Finance Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: Keith D. Pietila By: Lee P. Wells
------------------------ -------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
---------------------- -----------------------
Title: EVP TITLE: PRESIDENT
--------------------- ----------------------
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By: Keith D. Pietila By: Lee P. Wells
------------------------ -------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
---------------------- -------------------------
Title: VP TITLE: PRESIDENT
--------------------- -------------------------
Page 4 of 4 Pages
<PAGE> 270
ANNEX 1
to $30,000,000
10/97 Warehouse Swing Line Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Payment Applied
Date of Payment or on (or advance vs.) Payment Applied Name of Person
Advance Principal on Interest Principal Balance Interest Paid to Making Notation
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 271
CUSTODY AGREEMENT
PREAMBLE
THIS CUSTODY AGREEMENT (within itself only, this "CUSTODY AGREEMENT",
and as it may be supplemented, amended or restated from time to time, this
"AGREEMENT") entered into as of October 31, 1997 by and between (i) MCA
FINANCIAL CORP. ("MCAFC"), a Michigan corporation, MCA MORTGAGE CORPORATION
("MCAMC"), a Michigan corporation formerly known as Mortgage Corporation of
America, MORTGAGE CORPORATION OF AMERICA ("MCA"), a Michigan corporation
formerly known as First American Mortgage Associates, Inc., and MORTGAGE
CORPORATION OF AMERICA, INC. ("MCAI- OHIO"), an Ohio corporation (collectively,
the "COMPANIES"), and (ii) TEXAS COMMERCE BANK NATIONAL ASSOCIATION ("TEXAS
COMMERCE"), a national banking association, as a Warehouse Lender and as agent
for the other Warehouse Lenders (in that capacity, Texas Commerce is called the
"WAREHOUSE AGENT"), acting herein as documents custodian (in that capacity, the
"CUSTODIAN") for the Warehouse Agent and the Warehouse Lenders under the Credit
Agreement (defined below), recites and provides as follows:
RECITALS
The Companies, Texas Commerce and the other lenders parties thereto
(collectively, the "WAREHOUSE LENDERS") have entered into a 10/97 Senior
Secured Warehouse Credit Agreement dated as of October 31, 1997 (as it may be
supplemented, amended or restated from time to time, the "WAREHOUSE CREDIT
AGREEMENT") pursuant to which the Warehouse Lenders have agreed to extend
credit to the Companies with the requirement that, to the extent that any
Warehouse Revolving Loan is made (or to be made) to the Companies (other than
MCAI-Ohio, which is not eligible to borrow under the Warehouse Credit Agreement
- -- the Companies other than MCAI-Ohio are herein called the "BORROWERS") or for
the account of any of the Companies against the collateral value of property
owned by any of the Companies of a type in which a security interest may be
perfected by possession, that property must be delivered to the Warehouse Agent
as custodian and as agent and Representative of the Warehouse Lenders.
The Warehouse Lenders, the Warehouse Agent and the Companies desire
that the Companies deposit with the Custodian from time to time (among other
items of collateral) the Basic Papers for all pledged Warehouse Collateral
owned or held by the Companies, to be held by the Warehouse Agent acting as
documents custodian and as agent and Representative of the Warehouse Lenders,
as collateral under the Warehouse Credit Agreement until such Warehouse
Collateral is sold as whole loans, or securitized and the securities sold, to
secondary market investors, and possession and custody of the Basic Papers for
such Warehouse Collateral have been delivered to such an investor (or its
custodian or other designee) or redeemed by the Companies, as contemplated by
and in accordance with the terms of this Agreement.
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Capitalized terms defined in the Warehouse Credit Agreement that are
used but not defined differently herein have the same meanings here as there,
and reference is here made to the Warehouse Credit Agreement for all purposes.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. DEFINITIONS.
1.1 For the purposes of this Agreement, the following terms shall
have the indicated meanings, and the definitions of such terms are equally
applicable to their singular and plural forms.
"APPRAISAL REPORT" means a report, prepared in connection with the
appraisal of Mortgaged Premises, setting forth the determination of the fair
market value of such Mortgaged Premises.
"BAILEE AGREEMENT" means a written agreement among the Warehouse
Agent, an investor and the Company setting forth agreements among them to
coordinate and govern shipment of Pledged Loans by the Warehouse Agent to such
investor and the manner and terms of payment for Pledged Loans shipped.
"BAILEE LETTER" means a transmittal letter for shipments of Pledged
Loans by the Warehouse Agent to an investor (or an investor's custodian or
other designee), in the form of EXHIBIT A.
"BASIC PAPERS" means all of the Warehouse Collateral Papers that are
required to be delivered to the Warehouse Agent -- in the case of Bridged
Loans, on or before the eighth (8th) Business Day after the related Warehouse
Revolving Loan -- in order for any particular item of Warehouse Collateral to
be Eligible Collateral and have Collateral Value under the Warehouse Credit
Agreement.
"CERTIFICATION" means a certification by the Warehouse Agent in the
form of the relevant provisions of EXHIBIT B that the Warehouse Agent has
received, examined and holds as custodian the Basic Papers for a particular
item or items of Collateral identified in the certification, and that they
appear regular on their faces based on the Warehouse Agent's examination of
them.
"CERTIFYING OFFICER'S CERTIFICATE" means a certificate signed by (i)
an officer (authorized to sign an Officer's Certificate or a Certifying
Officer's Certificate) of a Company (which is the owner of the relevant
Mortgage Loan), the relevant Servicer, the title insurance company issuing the
relevant Lender's Title Insurance Policy, the escrow/settlement agent or
company for the related Mortgage Loan(s), or other Person submitting a File to
the Warehouse Agent or (ii) the closing
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attorney for the related Mortgage Loan(s). (The text of any particular
Certifying Officer's Certificate may be stamped upon a File paper if such
stamped text is manually signed by an officer authorized to sign an Officer's
Certificate or a Certifying Officer's Certificate.)
"CUSTOMER" means and includes each maker of a Mortgage Note or
purchaser under a Land Contract, and each cosigner, guarantor, endorser, surety
and assumptor thereof, whether or not such Person has personal liability for
its payment in whole or in part.
"DAILY SUMMARY OF PLEDGED LOANS" means, for any day, a written report
issued by the Warehouse Agent identifying the Pledged Loans held by the
Warehouse Agent on that day, and indicating (i) which Pledged Loans (if any) so
held have not been listed in a Notice of Receipt issued by the Warehouse Agent
and (ii) which of those nonlisted Pledged Loans have not been listed because
their Files are incomplete or apparently incomplete.
"DOCUMENT RETURN LETTER" means an instrument in substantially the form
of EXHIBIT G.
"EXCEPTION FILE" is defined in SECTION 3.2.
"FILE" means either (i) a file containing all of the Basic Papers for
the relevant type of Collateral or (ii) all of such Basic Papers, as the
context requires.
"FOLLOW-UP NOTICE OF RECEIPT" means an instrument substantially in the
form of EXHIBIT C with the relevant boxes in such form checked and a copy of
the relevant Document Return Letter attached.
"FNMA GUIDELINES" means the guidelines contained in the FNMA Seller's
Guide and FNMA Servicer's Guide pertaining to one to four family, conventional
residential mortgage loans and such other rules, regulations and guidelines
adopted by FNMA that establish eligibility requirements for the purchase by
FNMA of conventional residential mortgage loans or which establish loan
servicing requirements for mortgage loans purchased by FNMA, as amended or
supplemented from time to time.
"FLOOD INSURANCE POLICY" means (i) any policy of insurance issued in
accordance with the Flood Disaster Protection Act of 1973, as amended from time
to time or, if repealed, any superseding legislation governing similar
insurance coverage, or (ii) any other policy of insurance providing similar
coverage against loss sustained by floods or similar hazard that conforms to
the flood insurance requirements prescribed by FNMA Guidelines.
"LENDER'S TITLE INSURANCE POLICY" means an American Land Title
Association or California Land Title Association (extended coverage) form or a
Texas Land Title Association form lender's title insurance policy, including
all riders or endorsements thereto, together with such additional endorsements
as are required by FNMA Guidelines, in an amount not less than the original
principal balance of the relevant Mortgage Loan, insuring the holder of that
Mortgage Loan that the related
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Mortgage constitutes a valid first lien on the covered Mortgaged Premises,
subject only to Permitted Encumbrances.
"LETTER OF TRANSMITTAL" means a letter to a Company from an originator
or a seller of a Mortgage Loan in substantially the form of EXHIBIT B,
transferring papers that constitute, or are to become a part of, the File for a
Pledged Loan.
"LOAN NUMBER" means the loan number assigned to a Pledged Loan by the
Company that owns it and customarily used by it in its internal and external
communications referring to that Pledged Loan.
"MORTGAGE" means a mortgage, deed of trust, deed to secure debt,
security deed or other mortgage instrument or similar evidence of Lien legally
effective in the U.S. jurisdiction where the relevant real property is located
to create and constitute either (i) a valid and enforceable Lien, subject only
to Permitted Encumbrances (which, in the case of permitted second priority
Mortgages, includes a first and prior Lien to secure an existing Mortgage Loan
held by another lender), on the fee simple estate in improved real property, or
(ii) if the Mortgaged Premises is a cooperative housing unit, a first and prior
perfected security interest in the stock in the relevant cooperative housing
corporation and the related lease or occupancy agreement that together evidence
the ownership of and right to occupy a residential dwelling unit in the
apartment building owned by such cooperative housing corporation.
"MORTGAGE ASSIGNMENT" means an assignment of a Mortgage or Land
Contract (whichever the context requires), in form sufficient under the laws of
the U.S. jurisdiction where the real property covered by such Mortgage or Land
Contract is located to give notice to the world of the assignment of such
Mortgage or Land Contract, perfect the assignment and establish its priority
relative to other transactions in respect of such Mortgage or Land Contract
assigned.
"MORTGAGED PREMISES" means the property securing a pledged Mortgage
Loan or the property that is the subject matter of a pledged Land Contract,
whichever the context requires.
"NOTICE OF RECEIPT" means an acknowledgment to the Companies and a
certification to the Lenders by the Warehouse Agent substantially in the form
of EXHIBIT C , with the appropriate boxes checked, that the Warehouse Agent has
received from (or on behalf of) the Companies and holds, as custodian, Files
for the Collateral described in the copies of the Submission List(s) attached
thereto. The Warehouse Agent shall not issue a Notice of Receipt for a Bridged
Loan until the Warehouse Agent shall have received the Basic Papers for it
(when it ceases to be a Bridged Loan and becomes regular Collateral).
"PAYOFF REQUEST" means the authorization to be signed and delivered by
the Companies to the Warehouse Agent as provided in SECTION 4.1, and in
substantially the form of EXHIBIT E.
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"PAYOFF SCHEDULE" means a schedule prepared by the Warehouse Agent as
provided in SECTION 4.1 setting forth certain information as to Pledged Loans
for which the Companies have delivered a Payoff Request, and in substantially
the form of EXHIBIT F.
"PERMITTED ENCUMBRANCES" means, in respect of the real property
securing a Pledged Loan:
- for any Eligible Second Mortgage Loan, the Lien of one senior
Mortgage Loan funded before or concurrently with such Eligible Second Mortgage
Loan; and
- for any Pledged Loan, (i) liens for real estate taxes and
governmental-improvement assessments not delinquent, (ii) easements and
restrictions that do not adversely affect the marketability of title to the
related Mortgaged Premises or prohibit or interfere with the use of such
Mortgaged Premises as a single-family residential dwelling, (iii) as to
Mortgaged Premises that constitute a unit in a condominium or are part of a
horizontal or vertical property regime, a declaration of condominium or other
similar document that evidences the creation of such condominium or horizontal
or vertical property regime, (iv) reservations as to oil, gas or mineral
rights, provided such rights do not include the right to remove buildings or
other improvements on or near the surface of such Mortgaged Premises or to mine
or drill on the surface thereof or otherwise enter the surface for purposes of
removing oil, gas or minerals, (v) agreements for the installation, maintenance
or repair of public utilities, provided such agreements do not create or
evidence liens on such Mortgaged Premises or authorize or permit any Person to
file or acquire claims of liens against such Mortgaged Premises and (vi) such
other exceptions (if any) as are acceptable under FNMA Guidelines; provided
that any encumbrance not permitted pursuant to the standards of any Take-out
Commitment to which the subject Pledged Loan is dedicated (or which the
Companies have directly or indirectly represented to the Warehouse Agent covers
such Pledged Loan) shall not be a Permitted Encumbrance.
"PRELIMINARY TITLE REPORT" means a title report prepared by a company
qualified to issue the Lender's Title Insurance Policy that sets forth (i) the
legal description of the relevant Mortgaged Premises and (ii) the complete
status of title as to such Mortgaged Premises.
"PRIMARY MORTGAGE INSURANCE POLICY" means a mortgage insurance policy,
issued by a private mortgage insurance company having an AAA or AA rating from
Standard & Poor's Ratings Group or Fitch Investor Services, Inc. or Aaa or Aa
rating from Moody's Investors Service, Inc. for claims-paying ability, in form
and substance satisfactory to the Companies insuring the holder of a Mortgage
Loan against all or a portion of the loss sustained by reason of a default by a
Customer in the payment of principal and interest thereon, together with all
riders and endorsements thereto.
"PRINCIPAL BALANCE" means, for any day, the advanced and unpaid
principal balance of a Mortgage Note or Land Contract on that day.
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"STANDARD HAZARD INSURANCE POLICY" means as to each Mortgage Loan an
insurance policy in an amount not less than the principal amount of the related
Mortgage Note or the maximum insurable value of the related Mortgaged Premises
that a lender can require the relevant Customer to maintain by applicable law,
whichever is less, providing coverage against loss to such Mortgaged Premises
sustained by reason of fire or other hazards covered by a standard extended
coverage endorsement, including all riders and endorsements thereto, and which
conforms to the relevant Company's underwriting guidelines.
"SUMMARY OF PLEDGED LOANS" means an instrument substantially in the
form of EXHIBIT D.
1.2 Other definitional rules applicable to this Agreement are as
follows:
(a) Accounting terms not otherwise defined shall have the
meanings given them under GAAP.
(b) Except where otherwise specified, all times of day
are local times in Houston, Texas.
(c) Wherever the word "including" or a similar word is
used, it shall be read as if it were written, "including by way of example but
without in any way limiting the generality of the foregoing concept or
description".
2. DELIVERY OF FILES TO THE WAREHOUSE AGENT.
2.1 REAFFIRMATION OF WAREHOUSE AGENT'S LIEN. As security for the
payment of each Warehouse Revolving Loan now or hereafter made, each of the
Companies hereby reaffirms the continuing first priority Lien granted by it to
the Warehouse Agent (as agent and Representative of the Warehouse Lenders) in
the Warehouse Credit Agreement in and against (i) all Collateral now or
hereafter pledged by it to the Warehouse Agent, (ii) all Files and other
Pledged Loan (or other Collateral) papers now or hereafter delivered to the
Warehouse Agent (as such), to the Custodian or to any other agent, bailee or
designee of the Warehouse Agent and (iii) the proceeds thereof. The parties
agree that the Lien reaffirmed herein shall continue and remain perfected under
the provisions of the applicable UCC, real estate law and/or other applicable
Law, notwithstanding that the Warehouse Agent, the Custodian or any other
agent, bailee or designee of the Warehouse Agent may deliver one or more of the
Warehouse Collateral Papers or other papers evidencing or relating to any such
Collateral to a Company (or to its servicer or designee) for the purpose of (x)
correcting or completing such papers or the related File or (y) collecting or
other servicing or handling of such Collateral, as provided herein.
2.2 DELIVERIES OF WAREHOUSE COLLATERAL PAPERS TO THE WAREHOUSE
AGENT. Each shipment of Warehouse Collateral Papers to the Warehouse Agent
shall be accompanied by a Submission List, containing the relevant Company's
Loan Number for it and other information concerning the related
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Pledged Loan as called for in the form of Submission List specified by the
Warehouse Credit Agreement. In respect of each Pledged Loan included in any
Submission List, the Companies shall deliver (or cause to be delivered) to the
Warehouse Agent from time to time a Letter of Transmittal and the File
containing all of the Basic Papers (originals where specified), being the
relevant group of papers described below, related to that Pledged Loan. The
Basic Papers required to be included in each File shall consist of all
documents designated in SECTION 2.4 or 2.6 for the relevant type of Pledged
Loan by a single asterisk (*), and are required as to every Pledged Loan of
that type, except for those Basic Papers described as "if applicable", in which
case they shall be required only if applicable. Together with each File
submitted, the Companies shall also electronically submit to the Warehouse
Agent a Standard Warehouse Transmission File in the manner and format specified
in SCHEDULE TF (Schedule TF may include fields for Loans of a type or types
that are not as Eligible Collateral, but that shall not be construed to
authorize the Companies to pledge the same or to imply that any nonpermitted
Loans that may be Pledged to the Warehouse Agent from time to time shall have
any Collateral Value.) Except only for Warehouse Collateral Papers sent to the
Warehouse Agent on a follow-up basis after correction or to complete the File
after the File has been sent to the Warehouse Agent (and identified as such in
the Companies' attached transmittal letter or memorandum), the Companies shall
place all Warehouse Collateral Papers delivered to the Warehouse Agent in an
appropriate file folder, properly secured, and clearly marked with the debtor's
or buyer's last name and the Loan Number, and such delivered Files shall be
placed in a fireproof vault on the premises of the Warehouse Agent, clearly
marked as property of the Warehouse Agent in its capacity as Warehouse Agent
under the Warehouse Credit Agreement, and shall not be commingled with any
other assets of or held by the Warehouse Agent. All Warehouse Collateral
Papers shall be placed in the File in the same order as they are referred to in
the Letter of Transmittal. In addition, the Companies shall not deliver to the
Warehouse Agent, nor shall the Warehouse Agent assume custody of, the File for
any Pledged Loan that does not contain all of the Basic Papers. If such an
incomplete File is delivered to the Warehouse Agent, the Warehouse Agent shall
either (i) notify the Companies that the Warehouse Agent is temporarily
retaining the File without accepting custody of it pending the Warehouse
Agent's receipt of the missing Basic Papers or (ii) return it to the Companies
or their designee.
2.3 DELIVERIES OF MORTGAGE NOTES WITHOUT COMPANIES' ENDORSEMENT.
No Pledged Loan shall be delivered without the endorsement, in blank, of
whichever Company owns it, except pursuant to the provisions of this Section.
No Mortgage Note or Land Contract for a Pledged Loan shall be submitted to the
Warehouse Agent without a Company's endorsement. Each Company hereby appoints
the Warehouse Agent as its attorney- in-fact -- which appointment is coupled
with an interest and shall be irrevocable until the Obligations shall have been
fully paid and satisfied and the Warehouse Lenders have no commitment to lend
to the Borrowers -- to stamp any such Mortgage Note or Land Contract when
received to identify it as a Pledged Loan owned and submitted by such Company
(with a stamp of such Company's name), and the transfer warranties made to the
Warehouse Agent by the pledgor Company as provided in UCC Section 3.416 in
respect of each such Mortgage Note or Land Contract so stamped will, by
operation of this Agreement, automatically, irrevocably and conclusively be
deemed to extend to and benefit any subsequent
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transferee of such Mortgage Note or Land Contract, to the same effect as if
such transfer of such Mortgage Note or Land Contract to the Warehouse Agent
were made by and with the manual indorsement of the pledgor Company.
2.4 BASIC PAPERS FOR A MORTGAGE LOAN. The Basic Papers for a
pledged Mortgage Loan are:
(a) (*) Letter of Transmittal;
(b) (*) the original Mortgage Note, bearing all
intervening endorsements and endorsed by its payee (or, if there are any
endorsements, its last previous endorsee) either in blank or in another manner
acceptable to the Warehouse Agent;
(c) (*) (if applicable) the original assumption
agreement;
(d) (*) (if applicable) the recorded original of the
power of attorney for the maker of the Mortgage Note, or a certified copy
accompanied by evidence of the original's recordation, or -- if the original
has been sent for recording -- a copy certified to be a true and complete copy
of the power of attorney submitted for recordation;
(e) (*) a certified copy of the mortgage, deed of
trust or trust deed securing such Mortgage Note accompanied by a Certifying
Officer's Certificate stating that the original has been properly sent for
recordation;
(f) (*) the recorded original of a Mortgage
Assignment assigning the Mortgage in a manner acceptable to the Warehouse Agent
(including, if applicable, all intervening assignments); or a certified copy
accompanied by a Certifying Officer's Certificate that the original has been
properly recorded, or a signed original of a Mortgage Assignment, or (except as
to any assignment in blank), if the original has been sent for recording, a
copy certified to be a true and complete copy of the Mortgage Assignment
submitted for recordation;
(g) (*) (for Subprime Mortgage Loans only) a copy of
the pages from an original Appraisal Report setting forth (i) the appraisal
number, (ii) the property description, (iii) the appraiser's opinion of value
and (iv) the appraiser's signature.
2.5 ADDITIONAL PAPERS FOR A MORTGAGE LOAN. Although the following
papers are not required to be submitted to the Warehouse Agent, by submitting
any Mortgage Loan to the Warehouse Agent, the submitting Company shall be
deemed to represent to the Warehouse Agent and the Warehouse Lenders that that
Company or that Mortgage Loan's Servicer (if not that Companies) has possession
of them:
(A) the recorded original of the Mortgage;
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(B) (for Mortgage Loans that are not Subprime Mortgage
Loans only) the original Take-out Commitment covering such Mortgage Loan;
(C) the original Appraisal Report;
(D) except in respect of a second lien Mortgage Loan for
which the applicable Company's underwriting guidelines do not require lender's
title insurance, an original lender's or mortgagee's title insurance policy, a
commitment to issue one or (if applicable) a Preliminary Title Report;
(E) (i) for any FHA Mortgage Loan, the original or a copy
of the HUD-1 Settlement Statement signed by the maker(s) of the Mortgage Note
and by its escrow/settlement agent with the certifications by each that are
required by HUD Mortgagee Letter 86-10 dated May 5, 1986, or (ii) for any other
Mortgage Loan, a copy of the HUD-1 Settlement Statement accompanied by a
Certifying Officer's Certificate signed by the escrow/settlement agent stating
substantially that the statement is an accurate account of the Mortgage Loan
transaction (or a copy of such statement signed by the maker(s) of the Mortgage
Note); provided that the Companies shall not be required to have possession
thereof before thirty (30) days after original submission of the Basic Papers
for such a Mortgage Loan to the Warehouse Agent; and
(F) unless the applicable Company's underwriting
guidelines do not require a Primary Mortgage Insurance Policy for the relevant
type of Mortgage Loans, if the original loan-to-value ratio of the Mortgage
Loan was greater than eighty percent (80%), a certificate of Primary Mortgage
Insurance Policy.
2.6 BASIC PAPERS FOR A LAND CONTRACT. The Basic Papers for a
pledged Land Contract are:
(a) (*) Letter of Transmittal;
(b) (*) the original Land Contract, including all
intervening assignments to assign it to the relevant Company and either
including or having attached to it an assignment by such Company either in
blank or in another manner acceptable to the Warehouse Agent;
(c) (*) (if applicable) the recorded original of the
power of attorney for the buyer under the Land Contract appointing the person
who executed the Land Contract as such buyer's or debtor's attorney-in-fact, or
a certified copy accompanied by evidence of the original's recordation, or --
if the original has been sent for recording -- a copy certified to be a true
and complete copy of the power of attorney submitted for recordation;
(d) (*) the original warranty deed by which the real
property that is the subject of the Land Contract was conveyed to the relevant
Company;
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(e) (*) a quitclaim or special warranty deed
conveying such real property in blank, duly executed and acknowledged by the
relevant Company and in the appropriate form for recordation in the official
real property records of the U.S. jurisdiction where such real property is
located and otherwise sufficient to convey the fee simple estate in and to such
real property to any grantee whose name is inserted into the blank in such
deed, subject to no Liens except Liens for nondelinquent real estate taxes and
assessments against such real property only, and to no title exceptions other
than those permitted by the relevant Company's underwriting guidelines for Land
Contracts; and
(f) (*) an assignment of all of the seller's estate,
right, title and interest in and under the Land Contract, in blank, duly
executed and acknowledged by the relevant Company and in the appropriate form
for recordation in the official real property records of the U.S. jurisdiction
where such real property is located.
2.7 FOLLOW-UP BY THE COMPANIES. The Companies shall deliver or
cause to be delivered to the Warehouse Agent originals of all File documents
when copies, commitments or preliminary reports were initially submitted,
except for Mortgages, lender's or mortgagee's title insurance policies,
commitments or Preliminary Title Reports, Appraisal Reports, HUD-1 Settlement
Statements, survey plats, architectural and engineering reports and
environmental inspection reports, originals of which shall not be delivered
unless the Warehouse Agent shall specifically request them on a case-by-case
basis.
3. WAREHOUSE AGENT'S RECEIPT, EXAMINATION, RECEIPT FOR AND CERTIFICATION
OF FILES.
3.1 Warehouse Agent's Examination of Basic Papers. Within one (1)
Business Day after each receipt of Files or as promptly as practicable
thereafter, the Warehouse Agent shall examine each File so received to confirm
that the Basic Papers in such File appear on their faces to satisfy the
following relevant requirements:
(a) each Mortgage Note and Mortgage or Land Contract in
the File bears an original signature or signatures purporting to be the
signature or signatures of the Person or Persons named as the maker and
mortgagor or grantor under such promissory note or the debtor or buyer under
such Land Contract or, in the case of copies of the Mortgage permitted under a
relevant provision of SECTION 2, that such copies bear a reproduction of such
signature or signatures.
(b) except for the endorsement to the Warehouse Agent, no
Mortgage Note, Mortgage, or Mortgage Assignment (including any intervening
assignments and endorsements) or Land Contract in the File contains any
endorsements evidencing any claims, liens, security interests, encumbrances or
restrictions on transfer.
(c) each Mortgage Note or Land Contract in the File bears
an original of an endorsement by the named holder or payee endorsing such
promissory note or Land Contract (i) in a manner acceptable to the Warehouse
Agent or (ii) in blank, with an original signature that purports
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to be the signature of the named note payee, note holder, Land Contract
assignee or its representative.
(d) any power of attorney in the File (A) bears an
original signature purporting to be the signature of the maker of the Mortgage
Note and the mortgagor or grantor of the Mortgage or the buyer under the Land
Contract and (B) bears evidence that such power of attorney was recorded in the
appropriate records depository for the jurisdiction where the relevant
Mortgaged Premises are located or in case of copies permitted under a relevant
provision of SECTION 2, that such copies bear a reproduction of such signatures
and such evidence of recordation.
(e) the original of each Mortgage Assignment (including
any intervening assignments) in the File bears an original signature purporting
to be the signature of the named mortgagee or beneficiary, Land Contract seller
or Land Contract assignee (and any other necessary party) or its
representative, or in the case of copies permitted under a relevant provision
of SECTION 2, that such copies bear a reproduction of such signature or
signatures.
(f) the information set forth on the Submission List
concerning such File is correct (insofar as the accuracy of such information
can be determined from an examination of the File delivered to the Warehouse
Agent).
(g) the principal amount of the indebtedness secured by
any Mortgage in the File is identical to the original principal amount of the
Mortgage Note that it purports to secure.
(h) the description of the real property set forth in
whichever of the Lender's Title Insurance Policy, the written commitment for
the issuance of a Lender's Title Insurance Policy, or the Preliminary Title
Report is included in the File in compliance with the relevant provision of
SECTION 2 is substantially identical to the real property description contained
in the relevant Mortgage (if any) in that File.
(i) if a Preliminary Title Report is included in the File
in compliance with the relevant provision of SECTION 2, the location of the
Mortgaged Property is in a state listed on EXHIBIT H.
(j) the Lender's Title Insurance Policy (or the written
commitment to issue a Lender's Title Insurance Policy) is not less than the
original principal amount of the Mortgage Note and such Lender's Title
Insurance Policy purports to insure that the Mortgage constitutes a first lien,
senior in priority to all other deeds of trust, mortgages, deeds to secure
debt, financing statements and security agreements and to any mechanics' liens,
judgment liens or writs of attachment (or if the Lender's Title Insurance
Policy has not been issued, the written commitment for such insurance appears
to obligate the insurer to issue a policy which will insure the Mortgage as
specified in this Section.
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3.2 WAREHOUSE AGENT'S NOTICE OF RECEIPT AND CERTIFICATION;
EXCEPTION FILES. If the Warehouse Agent has determined that such Basic Papers
satisfy on their faces the requirements for that type of Pledged Loans stated
in this Agreement, the Warehouse Agent shall issue the Warehouse Agent's signed
Notice of Receipt with a copy of the relevant Submission List attached, send a
copy of it to the Companies and retain another signed counterpart original of
it to serve as the Warehouse Agent's Certification to the Warehouse Lenders of
the relevant Files. The Warehouse Agent shall make such original
Certifications available to the Warehouse Lenders on their request. If upon
examination of the Basic Papers included in any File, the Warehouse Agent
either (i) determines that the Basic Papers on their faces do not satisfy those
requirements, or (ii) is unable to confirm that the Basic Papers on their faces
satisfy those requirements, then and in either such case, the Warehouse Agent
shall retain such File (an "EXCEPTION FILE") instead of returning it to the
Companies and shall both (1) strike through such Pledged Loan on the Submission
List attached to the Notice of Receipt issued by the Warehouse Agent for the
group of Files in which such Exception File was submitted and (2) advise the
Companies -- either telephonically or electronically, mailing a written
confirmation notice to the relevant Company on the same Business Day -- of the
defect or apparent defect in that File. The Warehouse Agent agrees to provide
the relevant Company a weekly written summary report listing the preceding
week's Exception Files and indicating their defects or apparent defects. Upon
correction or completion of any such Exception File, the Warehouse Agent shall
issue a Follow-up Notice of Receipt for it.
3.3 POSSESSION OF FILES. Following the Warehouse Agent's receipt
of each File or any papers subsequently added to it, the Warehouse Agent shall
retain possession and custody of them, for and on behalf of the Warehouse
Lenders, Pro Rata, and as the agent and bailee for the Warehouse Lenders for
the purpose of maintaining continuous perfection of the Lien of the Warehouse
Agent, as Representative of the Warehouse Lenders. Upon such receipt the
Warehouse Agent shall also make appropriate notations in the Warehouse Agent's
books and records to reflect that the File has been pledged to the Warehouse
Agent for and on behalf of the Warehouse Lenders, Pro Rata, which has acquired
and holds a Lien and security interest on and in such File, for and on behalf
of the Warehouse Lenders, Pro Rata.
3.4 CERTIFICATION OF PAPERS PREVIOUSLY CERTIFIED BY THE WAREHOUSE
AGENT. If Mortgage Loans are purchased from a seller for which Texas Commerce
was document custodian for the Pledged Loans sold, Texas Commerce makes no
warranty as to the condition of the Files, the completeness, accuracy or any
other characteristics of the Files or the circumstances or documentation under
which the Pledged Loans were previously certified, other than as set forth in
this Agreement and no previous certification by Texas Commerce to or for any
other Person or entity will be construed to benefit any party to this Agreement
or anyone claiming by, through or under any such party.
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4. RELEASE OF FILES BY THE WAREHOUSE AGENT.
4.1 TO OTHERS. For all Pledged Loans to be securitized, sold or
transferred pursuant to SECTION 9.4(A) of the Warehouse Credit Agreement, the
Companies shall deliver a Payoff Request as required by that Section and
instructions for shipping the Basic Papers for the affected Pledged Loans to
the relevant investor (or its custodian or other designee) in the form of
SCHEDULE 4.1, whereupon the Warehouse Agent shall ship them either pursuant to
such written Bailee Agreement as shall have theretofore been entered into among
the relevant Company, such investor and the Warehouse Agent or, if no such
Bailee Agreement is in force, under cover of a Bailee Letter substantially in
the form of EXHIBIT A. At the time of -- or immediately before -- the transfer
of the Pledged Loans so designated, the relevant Company will cause the issuer
or transferee to deposit, or -- in the case of a redemption -- will itself
deposit, with the Warehouse Agent, in immediately available funds, all or such
portion of the proceeds of such securitization, sale or other transfer to which
the Company that owns such Pledged Loans is entitled, plus (unless, pursuant to
the Free Release Proviso, no paydown of the Warehouse Revolving Loans is
required) such additional funds as are necessary to satisfy and pay the
aggregate Redemption Amount for such Pledged Loans stated in the completed
Payoff Schedule. Upon the Warehouse Agent's receipt of the aggregate
Redemption Amount for such Pledged Loans to be released that is due the
Warehouse Lenders as shown in the completed Payoff Schedule (or, if pursuant to
the Free Release Proviso, no paydown of the Revolving Warehouse Loans is
required therefor, upon the relevant Company's request), the Warehouse Agent is
hereby authorized to deliver to the transferee designated by the Companies
possession and custody of the Files relating to the Pledged Loans that are
referred to in the Payoff Request. Upon receipt by the Warehouse Agent of such
funds or request (as applicable), each of the Warehouse Lenders and the
Warehouse Agent agrees with the Companies that all claims, rights, liens and
security interests of the Warehouse Lenders and the Warehouse Agent, as agent
and Representative of the Warehouse Lenders, however arising, in and to the
Pledged Loans referred to in the Payoff Schedule, shall terminate. It is
understood that the Warehouse Agent may also function as an agent, bailee
and/or document custodian for the transferee, in which event the Warehouse
Agent will not physically deliver the affected Files, but may instead issue its
trust receipt to the transferee acknowledging that it is holding the affected
Files for the benefit of the transferee, but in such event, the Companies'
obligations pursuant to this Section are not diminished or modified. The trust
receipt may be in the form of either a written or electronic receipt in favor
of the transferee. Except in respect of GNMA, FNMA, FHLMC or Advanta, unless
the Warehouse Agent shall otherwise agree on a case-by-case basis, the
Warehouse Agent will not ship any more Files to any investor to which the
Warehouse Agent has already shipped Files for Pledged Loans having aggregate
Collateral Values in excess of Five Million Dollars ($5,000,000) which are
still outstanding (i.e. which such investor has neither purchased and paid for
nor returned to the Warehouse Agent).
4.2 TO THE COMPANIES FOR CORRECTION OR SERVICING. From time to
time and as appropriate for the correction, foreclosure or other servicing of
any of the Pledged Loans, the Warehouse Agent is hereby authorized, but is not
obligated, upon written request of the Companies
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- -- or on the Warehouse Agent's own initiative in any case where corrections are
necessary or appropriate -- to release to them the Files or the Warehouse
Collateral Papers specified in such request for correction or servicing. Each
Company hereby agrees to request all such releases of Files or specific
Warehouse Collateral Papers by a written request made in the form of EXHIBIT I,
and to receipt for Files or Warehouse Collateral Papers returned to the Company
by the Agent other than pursuant to such a written request by completing and
returning the Companies' trust receipt in the form of EXHIBIT I, and
specifically hereby acknowledges that each such written request or
acknowledgment shall also constitute a trust receipt whereby it holds the
Warehouse Collateral Papers returned to it in trust and as agent and bailee for
the Warehouse Lenders and their agent, the Warehouse Agent, and that the
Warehouse Lenders and the Warehouse Agent shall continue to have, and the
Companies shall jointly and severally be obligated to defend, a security
interest in the Warehouse Collateral Papers pursuant to the Warehouse Credit
Agreement. Each Company agrees to promptly return to the Warehouse Agent the
File or such Warehouse Collateral Papers when such Company's need therefor in
connection with such foreclosure, servicing or correction no longer exists (but
not later than ten (10) days without the Warehouse Agent's consent -- or
twenty-one (21) days in any case -- after receipt thereof by such Company),
unless the Pledged Loan shall be liquidated, in which case, upon receipt of a
certification to that effect from such Company to the Warehouse Agent and the
receipt by the Warehouse Agent of the proceeds of such liquidation, such
Company's trust receipt shall be released by the Warehouse Agent to such
Company. Unless the Agent shall otherwise agree, the Companies may not obtain
releases of Files and Warehouse Collateral Papers by the Warehouse Agent when
the aggregate Collateral Values of Mortgage Loans (excluding Mortgage Loans
that have been liquidated) whose Files and Warehouse Collateral Papers were
previously released by the Agent and have not returned to the Agent exceeds the
lesser of (i) ten percent (10%) of the amount of Warehouse Revolving Loans
outstanding from time to time or (ii) One Million Dollars ($1,000,000).
4.3 TO THE COMPANIES AFTER REDEMPTION. Upon the Companies'
satisfaction of the requirements for redemption of Pledged Loans pursuant to
SECTION 9.3 of the Warehouse Credit Agreement pursuant to the Company's written
redemption request delivered to each of the Agent and the Custodian, the
Custodian will release and ship the such redeemed Pledged Loans' Files to the
Company designated in the redemption request.
4.4 EXPRESS NEGLIGENCE INDEMNIFICATION. The Warehouse Agent shall
not be liable for executing, for failing to execute or for any mistake in the
execution of any request or instructions in connection with the certification,
release or shipment of any Warehouse Collateral Papers, except in the case of
the gross negligence or willful misconduct of the Warehouse Agent. THE
COMPANIES HEREBY EXPRESSLY, JOINTLY AND SEVERALLY INDEMNIFY THE WAREHOUSE AGENT
FROM ITS OWN SIMPLE NEGLIGENCE IN CONNECTION WITH THE RECEIPT, CERTIFICATION,
RELEASE OR SHIPMENT OF ANY FILE OR WAREHOUSE COLLATERAL PAPER.
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5. RIGHT OF INSPECTION BY THE COMPANIES.
Upon reasonable notice to the Warehouse Agent, the Companies or their
duly authorized representative, may at any time, during ordinary business
hours, inspect and examine the Files in the possession and custody of the
Warehouse Agent at such place or places where such Files are deposited.
6. WAREHOUSE AGENT'S FEES.
The Companies will pay the fees of the Warehouse Agent accrued under
this Agreement pursuant to a separate arrangement between them. The duties of
the Warehouse Agent hereunder shall be independent of the Companies'
performance of their obligations to the Warehouse Agent to pay such fees.
7. TERMINATION OF AGREEMENT.
This Agreement shall become effective on and as of the date hereof and
shall terminate upon the Warehouse Agent's receipt of written
notice of termination signed by the Company and all of the Warehouse Lenders --
determined for purposes of this Section as excluding the Warehouse Agent -- and
delivery of all Files then held by the Warehouse Agent to a successor custodian
or, if authorized in writing by the Warehouse Agent, to the Companies or their
designee. Notwithstanding termination, the Warehouse Agent's security interest
(as agent and Representative of the Warehouse Lenders) in the Pledged Loans and
their proceeds shall continue in effect until all Warehouse Revolving Loans
secured thereby and all other obligations of the Companies to the Warehouse
Lenders have been paid and satisfied in full. The termination of this
Agreement shall not operate to remove Texas Commerce as Warehouse Agent for
purposes of the Warehouse Credit Agreement.
8. RESIGNATION OR REMOVAL OF CUSTODIAN.
8.1 QUALIFICATIONS OF CUSTODIAN. The "custodian" of the Warehouse
Collateral Papers shall be the Warehouse Agent, unless the Warehouse Agent
shall resign as "custodian" (which does not necessarily obligate the Warehouse
Agent to resign as Warehouse Agent -- the two roles may be bifurcated). The
"custodian" shall satisfy the same qualifications as is required of the
Warehouse Agent according to the terms of the Warehouse Credit Agreement and
shall at all times be a commercial bank or trust company organized and doing
business under the laws of the United States of America or any state, district
or territory of it authorized under such laws to exercise corporate trust
powers, having a combined capital and unimpaired surplus of at least Fifty
Million Dollars ($50,000,000), having -- or if owned by a bank holding company,
such bank holding company having -- either (i) a rating of C or better by
Thomson Bank Watch, Inc. or (ii) a rating of either "A" or better by Standard
and Poor's Ratings Group or "A" or better by Moody's Investors Service, Inc.
for its most senior class of unsecured debt and subject to supervision or
examination by a federal, state, district or territorial Governmental
Authority. The "custodian" shall have an office and place
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of business in Houston, Texas, if there is such a commercial bank or trust
company willing and able to act as the Custodian on reasonable and customary
terms. If such commercial bank or trust company publishes reports of
conditions at least annually, pursuant to law or to the requirements of its
supervising or examination Governmental Authority, then for the purposes of
this Section, the combined capital and unimpaired surplus of such commercial
bank or trust company shall be deemed to be its combined capital and unimpaired
surplus as set forth in its most recent report of condition so published.
Notwithstanding the foregoing, Residential Funding Corporation shall be
eligible for selection and service as successor or substitute Custodian and
shall not be required to have an office and place of business in Houston,
Texas. In case the Custodian shall cease at any time to be eligible in
accordance with the provisions of this Section, the Custodian shall resign
immediately in the manner and with the effect hereinafter specified in this
SECTION 8.
8.2 RESIGNATION OF THE CUSTODIAN OR ANY SUCCESSOR CUSTODIAN. The
Warehouse Agent, or any agent or agents hereafter appointed, at any time may
resign as "custodian" of the Warehouse Collateral Papers under this Agreement
by giving thirty (30) days written notice of resignation to the Companies and
the Warehouse Lenders and complying with the applicable provisions of this
SECTION 8. Upon resignation of the Warehouse Agent as custodian, the Companies
shall have twenty (20) days in which to appoint and designate a successor
acceptable to and approved by the Majority Warehouse Lenders and the Warehouse
Agent shall deliver all Files to the Person so designated within ten (10) days.
If the Companies fail to designate such an approved successor custodian within
such 20-day period, then the Warehouse Agent shall retain possession and
custody of the Files at the address provided in SECTION 10 until such time as
the Majority Warehouse Lenders have designated a new custodian. Appointment of
the successor custodian shall be accomplished by written instrument, in
triplicate, one copy of which instrument shall be delivered to the resigning
"custodian," one copy to the Warehouse Agent (if the Warehouse Agent is not the
resigning "custodian") and one copy to the successor Warehouse Agent.
8.3 REMOVAL OF THE CUSTODIAN OR ANY SUCCESSOR CUSTODIAN. If (a)
the Warehouse Agent or successor custodian shall cease to be eligible in
accordance with the provisions of SECTION 8.1 and shall fail to resign after
written request by the Majority Warehouse Lenders; (b) a receiver of the
Warehouse Agent or successor custodian or of its property shall be appointed or
any Governmental Authority shall take charge or control of the Warehouse Agent
or successor custodian or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation or (c) the Warehouse Agent or
successor custodian shall be grossly negligent in the performance of its
material duties and obligations under this Agreement or engage in willful
misconduct concerning any such material duties and obligations, then, in any
such case, upon the unanimous consent of all the Warehouse Lenders -- excluding
for purposes of this section the Warehouse Agent or successor custodian -- and
the Companies, the Warehouse Agent or successor custodian may be removed as
"custodian" of the Warehouse Collateral Papers and a successor custodian
appointed by written instrument, in triplicate, one copy of which shall be
delivered to the custodian so removed, one copy to the Warehouse Agent (if the
Warehouse Agent is not the custodian removed) and one copy to the successor
custodian.
8.4 EFFECTIVE DATE OF RESIGNATION OR REMOVAL. No resignation or
removal of the Warehouse Agent or successor custodian as "custodian" of the
Warehouse Collateral Papers shall
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be effective until a successor custodian is appointed pursuant to the
provisions of this SECTION 8 and has accepted the appointment as provided in
this SECTION 8. The Warehouse Agent, or any successor custodian hereafter
appointed, shall continue to act as custodian under this Agreement until it
delivers the Files to a duly appointed successor.
8.5 SUCCESSOR CUSTODIAN. Any successor custodian appointed as
provided in this SECTION 8 shall execute and deliver to the Companies, the
Warehouse Lenders, the Warehouse Agent and to its predecessor custodian an
instrument accepting such appointment, and thereupon the resignation or removal
of the predecessor custodian shall become effective and such successor
custodian, without any further act, deed or conveyance, shall become vested
with all the rights and obligations of its predecessor, with like effect as if
originally named as the custodian and shall assume all the duties and
obligations in this Agreement as Warehouse Agent (but not the duties and
obligations of the Warehouse Agent under the Warehouse Credit Agreement unless
the successor custodian is also a successor Warehouse Agent); provided that
upon the written request of the Companies, the Majority Warehouse Lenders or
the successor custodian, the custodian ceasing to act shall execute and deliver
(a) an instrument transferring to such successor custodian all of the rights of
the custodian so ceasing to act and (b) to such successor custodian such
instruments as are necessary to transfer the Collateral to such successor
custodian (including assignments of all Collateral or documents related to the
Collateral). Upon the request of any such successor custodian made from time
to time, the Companies shall execute any and all papers which the successor
custodian shall request or require to more fully and certainly vest in and
confirm to such successor custodian all such rights. No successor custodian
shall accept appointment as provided in this Section unless at the time of such
acceptance such successor custodian shall be eligible under the provisions of
SECTION 8.1.
8.6 MERGER OF THE CUSTODIAN OR ANY SUCCESSOR CUSTODIAN. Any
Person into which the Warehouse Agent or any successor custodian may be merged
or converted or with which it may be consolidated, or any Person surviving or
resulting from any merger, conversion or consolidation to which the Warehouse
Agent or successor custodian shall be a party or any Person succeeding to the
commercial banking business of the Warehouse Agent or such successor custodian,
shall be the successor custodian without the execution or filing of any paper
or any further act on the part of any of the parties.
8.7 APPOINTMENT OF SUCCESSOR CUSTODIAN; TRANSFER OF PLEDGED LOANS.
The Warehouse Agent shall, as part of the transfer of the Files, assign the
Mortgages and endorse the Mortgage Notes and the Land Contracts (without
recourse or warranty) to the successor custodian. The Warehouse Agent shall
not be responsible for the fees of any successor custodian, all such fees to be
paid by the Companies.
9. LIMITATION ON OBLIGATIONS OF WAREHOUSE AGENT; EXPRESS NEGLIGENCE.
The Warehouse Agent agrees to use its best judgment and good faith in
the performance of any obligations and duties required under this Agreement and
shall incur no liability to any other party to this Agreement for its acts or
omissions hereunder, except as may result from its gross negligence or willful
misconduct. The Warehouse Agent shall be entitled to rely upon the advice
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of its legal counsel from time to time and shall not be liable for any action
or inaction by it in reliance upon such advice. The Warehouse Agent shall also
be entitled to rely upon any notice, document, correspondence, request or
directive received by it from any other party to this Agreement that the
Warehouse Agent believes to be genuine and to have been signed or presented by
the proper and duly authorized officer or representative thereof, and shall not
be obligated to inquire as to the authority or power of any Person so executing
or presenting such documents or as to the truthfulness of any statements set
forth therein. THE COMPANIES JOINTLY AND SEVERALLY AGREE TO INDEMNIFY, DEFEND
AND HOLD HARMLESS THE WAREHOUSE AGENT AND EACH WAREHOUSE LENDER FROM AND
AGAINST ANY CLAIM, LEGAL ACTION, LIABILITY OR LOSS THAT IS INITIATED AGAINST OR
INCURRED BY THE WAREHOUSE AGENT OR ANY WAREHOUSE LENDER, INCLUDING COURT COSTS
AND REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS, IN CONNECTION WITH THE
WAREHOUSE AGENT'S PERFORMANCE OF ITS DUTIES UNDER THIS AGREEMENT, INCLUDING
THOSE CAUSED IN WHOLE OR IN PART BY THE ORDINARY NEGLIGENCE OF THE WAREHOUSE
AGENT, EXCLUDING, AS TO THE WAREHOUSE AGENT, ONLY THOSE CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THE WAREHOUSE AGENT. The Warehouse Agent
shall at its own expense maintain at all times during the existence of this
Agreement and keep in full force and effect (a) fidelity insurance, (b) theft
of documents insurance, and (c) forgery insurance. All such insurance shall be
with standard coverage and subject to deductibles as is customary for insurance
typically maintained by banks which act as custodians and be in such amounts
and with insurance companies reasonably acceptable to the Companies.
10. NOTICES.
Any notice, demand or consent, required or permitted by this Agreement
shall be in writing and shall be effective and deemed delivered only when
received by the party to which it is sent. Any such notice, demand or consent
shall be delivered in person or transmitted by a recognized private courier
service or deposited with the United State Postal Service, certified mail,
postage prepaid, return receipt requested, addressed as follows, unless such
address is changed by written notice hereunder:
If to the Companies:
MCA Financial Corp.
23999 Northwestern Hwy, Suite 230
Southfield, Michigan 48075
Attention: Mr. Keith D. Pietila
Phone: (248) 358-5555
Fax: (248) 358-7507
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If to the Warehouse Agent:
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
Phone: (713) 216-5382
Fax: (713) 216-2082
11. WAREHOUSE LENDERS' PARTICIPATIONS.
The Warehouse Lenders shall be entitled at any time or from time to
time, on the terms and conditions of SECTION 15.17 of the Warehouse
Credit Agreement, to sell participations in Warehouse Revolving Loans and
Commitments under the Warehouse Credit Agreement, provided that the Warehouse
Agent retains the exclusive authority, notwithstanding any such participation
arrangements, to execute this Agreement (including all Exhibits).
12. CONTROLLING LAW.
This Agreement and all questions relating to validity, interpretation,
performance and enforcement, shall be governed by and construed, interpreted
and enforced in accordance with the laws of the State of Texas, notwithstanding
any Texas or other conflict-of-law provisions to the contrary.
13. AGREEMENT FOR THE EXCLUSIVE BENEFIT OF PARTIES.
This Agreement is for the exclusive benefit of the parties hereto and
the Warehouse Lenders (including in the case of the Warehouse Lenders, the
Warehouse Lenders' participants), and their respective successors and permitted
assigns, and shall not be deemed to create or confer any legal or equitable
right, remedy, or claim upon any other Person whatsoever.
14. ENTIRE AGREEMENT.
This Agreement contains the entire agreement among the parties hereto
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof, including any prior custody agreements. The express
terms hereof control and supersede any course of performance and/or usage of
the trade inconsistent with any of them terms hereof. This Agreement may not
be amended, modified or supplemented unless such amendment, modification or
supplement is set forth in a writing signed by the Companies, the Agent and
such of the Warehouse Lenders whose consent or approval is required by the
applicable provisions of SECTIONS 15.2 through 15.4 of the Warehouse Credit
Agreement.
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15. EXHIBITS.
All Exhibits referred to herein or attached hereto are hereby
incorporated by reference into, and made a part of, this Agreement.
16. INDULGENCES, NOT WAIVERS.
Neither the failure nor any delay on the part of a party hereto to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or of any other right, remedy, power or privilege or with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it
is writing and is signed by the parties asserted to have granted such waiver.
17. TITLES NOT TO AFFECT INTERPRETATION.
The titles of sections and subsections contained in this Agreement are
for convenience only, and they neither form a part of this Agreement nor are
they to be used in the construction or interpretation hereof.
18. PROVISIONS SEPARABLE.
The provisions of this Agreement are independent of and separable from
each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other provisions
may be invalid or unenforceable in whole or in part.
19. RELATIONSHIP OF THE COMPANIES TO THE WAREHOUSE AGENT.
19.1 The Warehouse Agent and each other party hereto shall be
entitled to deal with the Companies and with any and all Warehouse Collateral
Papers, payments, instructions, notices or other instruments, without regard to
the ownership or other interests of the Companies in the Pledged Loans, and THE
COMPANIES JOINTLY AND SEVERALLY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS
THE WAREHOUSE AGENT AND EACH WAREHOUSE LENDER FROM AND AGAINST ALL CLAIMS,
DEMANDS, ACTIONS, LIABILITIES, COSTS AND DAMAGES WHICH THEY, OR ANY OF THEM,
MAY INCUR OR BE SUBJECTED TO AS A RESULT OF OR RELATING TO ACTIONS OR INACTIONS
TAKEN PURSUANT HERETO, INCLUDING THOSE ARISING IN WHOLE OR IN PART DUE TO THE
ORDINARY NEGLIGENCE OF THE INDEMNIFIED PARTY, EXCLUDING ONLY CLAIMS SOLELY
CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNIFIED
PARTIES.
(The remainder of this page is intentionally blank)
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first set forth above.
MCA FINANCIAL CORP. MCA MORTGAGE COMPANY
By: Keith D. Pietila By: Lee P. Wells
--------------------------------- ----------------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
------------------------------- --------------------------------
Title: EXECUTIVE VICE PRESIDENT Title: PRESIDENT
------------------------------ -------------------------------
MORTGAGE CORPORATION MORTGAGE CORPORATION OF AMERICA,
OF AMERICA INC.
By: Keith D. Pietila By: Lee P. Wells
--------------------------------- ----------------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
------------------------------- --------------------------------
Title: VICE PRESIDENT Title: PRESIDENT
------------------------------ -------------------------------
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Warehouse Agent
By: Pamela E. Skinner
---------------------------------
Name: PAMELA E. SKINNER
-------------------------------
Title: VICE PRESIDENT
------------------------------
Unnumbered counterpart signature page to
Custody Agreement between (i) MCA Financial Corp.,
MCA Mortgage Corp., Mortgage Corporation of
America and Mortgage Corporation of America, Inc. and
(ii) Texas Commerce Bank National Association, Warehouse Agent
<PAGE> 292
Attached:
Exhibit A - Forms of Bailee Letters
Exhibit B - Form of Letter of Transmittal
Exhibit C - Form of Notice/Followup Notice of Receipt
Exhibit D - Form of Summary of Pledged Loans
Exhibit E - Form for Payoff Requests
Exhibit F - Form for Payoff Schedule
Exhibit G - Form of Document Return Letter
Exhibit H - Preliminary Title Report States
Exhibit I - Form of Trust Receipt
Schedule 4.1 - Form of Shipping Request
Schedule TF - Standard Warehouse Transmission File instructions
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EXHIBIT A
TO CUSTODY AGREEMENT
[FORM OF BAILEE LETTER FOR SHIPMENTS
OF LOANS TO INVESTORS FOR PURCHASE]
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
P. O. BOX 2558
HOUSTON, TEXAS 77252-8041
[date]
[Investor's name and address]
Re: "Bailee Letter" for [COMPANY NAME]'s Loan(s) shipped herewith
for your inspection and purchase
Ladies and Gentlemen:
WHAT AND WHOSE LOANS ARE ENCLOSED?
Pursuant to the request of [COMPANY NAME] (the "MORTGAGE COMPANY"), Texas
Commerce Bank National Association (the "WAREHOUSE AGENT/CUSTODIAN"), as agent
and documents custodian for a syndicate of lenders (the "WAREHOUSE LENDERS") to
the Mortgage Company, hereby delivers to you with this letter the promissory
notes or Land Contracts evidencing the loans ("LOANS") described on the
attached Schedule of Shipped Loans and related loan documents (collectively,
the "LOAN PAPERS").
THE SHIPPED LOANS ARE STILL PLEDGED TO THE WAREHOUSE LENDERS
To secure the Mortgage Company's debt and other obligations to the Warehouse
Lenders, the Mortgage Company has pledged (among other collateral) the Loans to
the Warehouse Lenders, and has collaterally assigned to the Warehouse
Agent/Custodian and granted the Warehouse Agent/Custodian (as agent and
representative of the Warehouse Lenders) a security interest in (i) the Loan
Papers, (ii) the Loans that they evidence and (iii) all related security and
rights. The Warehouse Lenders and the Warehouse Agent/Custodian expressly
retain and reserve all of their rights in the Loans and the Loan Papers until
you have purchased and actually made payment to the Warehouse Agent/Custodian
for them in accordance with this letter.
YOU ARE OUR BAILEE
During the period from your receipt of Loans until you have either so purchased
and paid for them or you have returned them to our possession, you are and will
be bailee for the Warehouse Lenders and the Warehouse Agent/Custodian as their
agent and secured party on their behalf, for the purpose of perfecting and
maintaining perfection of the security interest that the Mortgage Company has
granted to the Warehouse Lenders and the Warehouse Agent/Custodian in (or
pursuant to) the 10/97
<PAGE> 294
[Investor's name]
[Date]
Page [number]
Senior Secured Warehouse Credit Agreement dated as of October 31, 1997 among
the Mortgage Company, the Warehouse Lenders and the Warehouse Agent/Custodian,
as supplemented, amended or restated from time to time (the "WAREHOUSE CREDIT
AGREEMENT").
PERSONS AUTHORIZED TO ACT
Only the persons named on the attached Schedule of Warehouse Agent/Custodian's
Authorized Persons (the "WAREHOUSE AGENT/CUSTODIAN'S AUTHORIZED PERSONS") have
authority to request or direct you to take any action, or to make any agreement
with you, with respect to the Loans. You may not honor any notice, direction
or other communication from the Mortgage Company (or anyone else) concerning
the Loans and Loan Papers unless it is confirmed by one of the Warehouse
Agent/Custodian's Authorized Persons (WRITTEN CONFIRMATION IS REQUIRED TO
CHANGE ANY RELEASE PRICE (DEFINED BELOW) OR TO AUTHORIZE ANY ACTION THAT
INVOLVES MORE THAN THREE (3) LOANS; otherwise, telephone confirmation is
sufficient).
PAY-OFF PRICE PAYMENT IS REQUIRED FOR RELEASE
WHEN YOU HAVE PAID THE WAREHOUSE AGENT/CUSTODIAN FOR THE LOANS, THE
WAREHOUSE LENDERS' (AND THEIR AGENT, THE WAREHOUSE AGENT/CUSTODIAN'S) SECURITY
INTEREST IN THE LOANS (AND THEIR LOAN PAPERS) SHALL AUTOMATICALLY TERMINATE.
THE PAYMENT THAT MUST BE MADE TO THE WAREHOUSE AGENT/CUSTODIAN BEFORE THE
WAREHOUSE LENDERS' SECURITY INTEREST IN EACH LOAN PURCHASED WILL BE RELEASED IS
ITS "PAY-OFF PRICE", WHICH IS THE GREATER OF:
(x) THE MINIMUM PAYMENT REQUIRED FOR RELEASE OF THE WAREHOUSE LENDERS'
SECURITY INTEREST (THE "RELEASE PRICE") IN EACH LOAN, AS SET FORTH IN THE
"RELEASE PRICE" COLUMN OF THE SCHEDULE OF SHIPPED LOANS; OR
(y) THE PURCHASE PRICE THAT YOU AND THE MORTGAGE COMPANY HAVE AGREED
YOU WILL PAY FOR SUCH LOAN (THE "AGREED PURCHASE PRICE").
SECURITY INTEREST NOT RELEASED UNTIL FULL PAY-OFF PRICE IS PAID
If you pay the Warehouse Agent/Custodian only the Agreed Purchase Price for a
Loan whose Release Price is more than that, THE WAREHOUSE LENDER'S SECURITY
INTEREST IN THAT LOAN WILL NOT BE RELEASED unless and until either you or the
Mortgage Company pays the difference AND gives the Warehouse Agent/Custodian a
written notice saying what the payment is for -- the notice must give the
Warehouse Agent/Custodian enough information to enable it to both (i) identify
the Loan with the payment and
<PAGE> 295
[Investor's name]
[Date]
Page [number]
(ii) determine that the amount of the payment equals the excess of the Loan's
Release Price over its Agreed Purchase Price.
NO OTHER DELIVERY BEFORE PAYMENT
Until the Warehouse Agent/Custodian has received payment of the full Pay-Off
Price for a Loan, you may not deliver any of its Loan Papers to anyone other
than the Warehouse Agent/Custodian without authorization from a Warehouse
Agent/Custodian's Authorized Person.
IF YOU'VE ALREADY PAID THE PAY-OFF PRICE
If (but only if) you have already paid the Pay-Off Price for a Loan to the
Warehouse Agent/Custodian, then the enclosed Loan Papers for that Loan are
being delivered to you free of such security interest or any trust, bailment or
any other claim by the Warehouse Lenders and their agent, the Warehouse
Agent/Custodian.
LOAN PAPERS ARE DELIVERED CONDITIONALLY AND IN TRUST; YOUR AGREEMENT TO PAY FOR
OR RETURN THEM
However, for each Loan for which you have NOT already paid the full Pay-Off
Price, we are delivering the enclosed Loan Papers to you IN TRUST and on the
express condition that you will promptly:
(a) examine them; and
(b) decide whether you will purchase any or all of the Loans;
and that, with respect to each Loan, you will promptly either:
(c) remit by federal funds immediately available to the Warehouse
Lender directed to Texas Commerce Bank National Association,
ABA No. 1130-0060-9 Attention: ________________________,
Corporate Mortgage Finance Group (713) ___________, Re:
[COMPANY NAME] Account No. ____________________________) the
Pay-off Price for that Loan; or
(d) return the promissory note or Land Contract and all of the
other papers relating to that Loan to us.
21-DAY NOTICE OF YOUR PURCHASE DECISION; YOU AGREE TO BUY LOANS YOU DON'T
SPECIFICALLY REJECT
It is very important that you promptly notify us in writing of your decision
with respect to each Loan so that we will know at all times which specific
Loans will remain as part of the Warehouse Lenders' collateral and which will
not. Accordingly, you agree to give the Warehouse Agent/Custodian written
notice on or before twenty-one (21) days after the date of this letter that
identifies
<PAGE> 296
[Investor's name]
[Date]
Page [number]
which (if any) of the enclosed Loans you elect not to purchase, and you agree
to purchase all of the enclosed Loans that you do not list in that notice.
OUR ABSOLUTE RIGHT TO REQUIRE RETURN OF LOANS NOT SOONER PAID FOR
NOTWITHSTANDING ANY OTHER PROVISION OF THIS LETTER, UNLESS THE
WAREHOUSE AGENT/CUSTODIAN HAS ALREADY RECEIVED THE PAY-OFF PRICE FOR EACH OF
THE LOANS, THE ENCLOSED LOAN PAPERS ARE DELIVERED TO YOU UPON THE EXPRESS AND
CONTROLLING CONDITION THAT YOU WILL RETURN ANY OR ALL OF THEM TO US, AS
WAREHOUSE AGENT/CUSTODIAN, PROMPTLY UPON YOUR RECEIPT OF OUR WRITTEN DIRECTION
TO DO SO, REGARDLESS OF WHETHER OR NOT YOU HAVE DECIDED TO PURCHASE THE LOAN OR
LOANS TO WHICH THE LOAN PAPERS REQUIRED TO BE RETURNED TO US RELATE, EXCLUDING
ONLY THOSE LOANS (IF ANY) FOR WHICH YOU HAVE ALREADY PAID US THE PAY-OFF PRICE.
YOU AGREE TO KEEP THE LOAN PAPERS SAFE
You agree to keep all of the enclosed Loan Papers safe from fire, loss, theft
and other casualty and agree to bear any loss, cost or expense the Warehouse
Agent/Custodian or the Warehouse Lenders may incur as a result of any such
event.
THIS LETTER CONTROLS
If any other paper you receive from us, the Mortgage Company or anyone else in
respect of the Loans is inconsistent with this letter, then this letter shall
control unless a Warehouse Agent/ Custodian's Authorized Person confirms IN
WRITING that the other paper controls.
PLEASE CONFIRM RECEIPT
Please immediately indicate your receipt of this letter and the enclosed Loan
Papers, and your acceptance of and agreement to the trust and the terms and
conditions stated above, by dating and
<PAGE> 297
[Investor's name]
[Date]
Page [number]
signing the enclosed copy of this letter and returning it to us (although your
doing so will not be necessary to the effectiveness of any of this letter's
terms, provisions or conditions).
Very truly yours,
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Warehouse Agent/Custodian
By:_____________________________________
Name:___________________________________
Title:__________________________________
Attached:
Schedule of Loans shipped
Schedule of Warehouse Agent/Custodian's Authorized Persons
RECEIPT ACKNOWLEDGED AND TRUST, TERMS AND CONDITIONS ACCEPTED AND AGREED TO ON
________________________________, 19____:
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
<PAGE> 298
SCHEDULE OF LOANS SHIPPED
DATE: ___________________
MORTGAGOR NAME LOAN NUMBER RELEASE PRICE
<PAGE> 299
SCHEDULE OF WAREHOUSE AGENT/CUSTODIAN'S AUTHORIZED PERSONS
(Persons authorized to direct or confirm the Mortgage Company's directions
concerning Loans shipped to you by
Texas Commerce Bank National Association, as Warehouse Agent
under the Senior Secured Warehouse Credit Agreement with
MCA Financial Corp., MCA Mortgage Corp., Mortgage
Corporation of America and Mortgage Corporation
of America, Inc.)
Effective Date:__________________
Confirmed by:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
Warehouse Agent/Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
<PAGE> 300
[FORM OF BAILEE LETTER FOR SHIPMENTS
OF LOANS TO STRUCTURED SECURITIES
CUSTODIAN FOR SECURITIZATION]
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
P. O. BOX 2558
HOUSTON, TEXAS 77252-8041
[date]
[Structured Securities issuer's custodian's name and address]
Re: [COMPANY NAME]'s Loan(s) shipped herewith for inspection and
securitization
Ladies and Gentlemen:
WHAT AND WHOSE LOANS ARE ENCLOSED?
Pursuant to the request of [COMPANY NAME] (the "MORTGAGE COMPANY"), Texas
Commerce Bank National Association (the "WAREHOUSE AGENT/CUSTODIAN"), as agent
and documents custodian for a syndicate of lenders (the "WAREHOUSE LENDERS") to
the Mortgage Company, hereby delivers to you with this letter the promissory
notes evidencing the loans ("LOANS") described on the attached schedule of
loans shipped and related loan documents (collectively, the "LOAN PAPERS").
THE SHIPPED LOANS ARE STILL PLEDGED TO THE WAREHOUSE LENDERS
To secure the Mortgage Company's debt and other obligations to the Warehouse
Lenders, the Mortgage Company has pledged (among other collateral) the Loans to
the Warehouse Lenders, and has collaterally assigned to the Warehouse
Agent/Custodian and granted the Warehouse Agent/Custodian (as agent and
representative of the Warehouse Lenders) a security interest in (i) the Loan
Papers, (ii) the Loans that they evidence and (iii) all related security and
rights.
The Warehouse Lenders and the Warehouse Agent/Custodian expressly
retain and reserve all of their rights in the Loans and the Loan Papers until
the issuer of structured securities for whom you are custodian (the "ISSUER")
has accepted them for securitization and actually issued the structured
security to be created from a Loan pool that includes these Loans (the "SUBJECT
SECURITY").
YOU ARE OUR BAILEE
During the period from your receipt of Loans until the Subject Security has
been issued or you have returned them to our possession, you are and will be
bailee for the Warehouse Lenders and the Warehouse Agent/Custodian (as their
agent and secured party on their behalf), for the purpose of perfecting and
maintaining perfection of the security interest that the Mortgage Company has
granted to the Warehouse Lenders and the Warehouse Agent/Custodian in (or
pursuant to) the
<PAGE> 301
[Securities issuer's custodian's name]
[date]
Page 2
10/97 Senior Secured Warehouse Credit Agreement dated as of October 31, 1997
among the Mortgage Company, the Warehouse Lenders and the Warehouse
Agent/Custodian, as supplemented, amended or restated from time to time (the
"WAREHOUSE CREDIT AGREEMENT").
PERSONS AUTHORIZED TO ACT
Only the persons named on the attached Schedule of Warehouse Agent/Custodian's
Authorized Persons (the "WAREHOUSE AGENT/CUSTODIAN'S AUTHORIZED PERSONS") have
authority to request or direct you to take any action, or to make any agreement
with you, with respect to the Loans. You may not honor any notice, direction
or other communication from the Mortgage Company (or anyone else) concerning
the Collateral unless it is confirmed by one of the Warehouse Agent/Custodian's
Authorized Persons (WRITTEN CONFIRMATION IS REQUIRED TO CHANGE ANY RELEASE
PRICE (DEFINED BELOW) OR TO AUTHORIZE ANY ACTION THAT INVOLVES MORE THAN THREE
(3) LOANS; otherwise, telephone confirmation is sufficient).
UNTIL THE WAREHOUSE AGENT/CUSTODIAN HAS RECEIVED PAYMENT OF THE FULL
PAY-OFF PRICE (DEFINED BELOW) FOR A LOAN, YOU MAY NOT DELIVER ANY OF ITS LOAN
PAPERS TO ANYONE OTHER THAN THE WAREHOUSE AGENT/CUSTODIAN WITHOUT AUTHORIZATION
FROM A WAREHOUSE AGENT/CUSTODIAN'S AUTHORIZED PERSON. The "PAY-OFF PRICE" for
any Loan is the greater of:
(x) the minimum payment required for release of the Warehouse Lender's
security interest (the "RELEASE PRICE") in each Loan, as set forth in the
"Release Price" column of the Schedule of Shipped Loans; or
(y) the purchase price that you and the Mortgage Company have agreed
the Mortgage Company will effectively receive for such Loan (the "AGREED
PURCHASE PRICE") from the proceeds of sale of the Subject Security.
SUBJECT SECURITY'S ISSUANCE TERMINATES EXISTING SECURITY INTEREST IN LOANS
THEMSELVES BUT NOT THEIR PROCEEDS
If and when the Subject Security is issued, the Warehouse Lender's security
interest in the Loans and in their Loan Papers that are delivered to you
herewith shall automatically terminate; provided that the Warehouse Lenders'
and the Warehouse Agent/Custodian's security interest in the Loans' proceeds
shall NOT terminate, and shall automatically attach to and continue in all of
the Mortgage Company's right, title and interest in and to the
<PAGE> 302
[Securities issuer's custodian's name]
[date]
Page 3
Subject Security when issued, and in and to the Subject Security's proceeds,
until such time as the full Pay-off Price shall have been paid to the Warehouse
Agent/Custodian.
LOAN PAPERS ARE DELIVERED CONDITIONALLY AND IN TRUST; YOUR AGREEMENT TO ACCEPT
OR RETURN THEM
We are delivering the enclosed Loan Papers to you IN TRUST and on the express
condition that:
(a) you will promptly examine them; and
(b) the Issuer will promptly decide whether to accept the Loans
into the pool of Loans from which the Subject Security will be
created;
and that, with respect to each Loan, you will promptly either:
(c) advise the Warehouse Agent/Custodian immediately when the
Subject Security based on a pool that includes such Loan has
been issued; or
(d) return the promissory note and all of the other papers
relating to that Loan to us.
YOU AGREE TO KEEP THE LOAN PAPERS SAFE
It is very important that you promptly notify us in writing of the Issuer's
decision with respect to each Loan so that we will know at all times which
specific Loans will remain as part of the Warehouse Lenders' collateral and
which will not. Accordingly, YOU AGREE TO GIVE THE WAREHOUSE AGENT/CUSTODIAN
WRITTEN NOTICE ON OR BEFORE TWENTY-ONE (21) DAYS AFTER THE DATE OF THIS LETTER
THAT IDENTIFIES WHICH (IF ANY) OF THE ENCLOSED LOANS THAT THE ISSUER ELECTS NOT
TO INCLUDE IN THE POOL OF LOANS ON WHICH THE SUBJECT SECURITY WILL BE BASED,
AND THE ISSUER WILL INCLUDE THEREIN ALL OF THE ENCLOSED LOANS THAT YOU DO NOT
LIST IN THAT NOTICE.
OUR ABSOLUTE RIGHT TO REQUIRE RETURN OF LOANS NOT SOONER SECURITIZED
NOTWITHSTANDING ANY OTHER PROVISION OF THIS LETTER, UNLESS THE
WAREHOUSE AGENT/CUSTODIAN HAS ALREADY RECEIVED THE PAY-OFF PRICE FOR EACH OF
THE LOANS OR THE SUBJECT SECURITY BASED ON THEM HAS ALREADY BEEN ISSUED BY THE
ISSUER, THE ENCLOSED LOAN PAPERS ARE DELIVERED TO YOU UPON THE EXPRESS AND
CONTROLLING CONDITION THAT YOU WILL RETURN ANY OR ALL OF THEM TO US, AS
WAREHOUSE AGENT/CUSTODIAN, PROMPTLY UPON YOUR RECEIPT OF OUR WRITTEN DIRECTION
TO DO SO, REGARDLESS OF WHETHER OR NOT THE ISSUER HAS DECIDED TO INCLUDE SUCH
LOANS IN THE POOL OF LOANS FROM WHICH THE SUBJECT SECURITY WILL BE CREATED,
EXCLUDING ONLY THOSE LOANS (IF ANY) FROM WHICH SUCH A SECURITY HAS ALREADY BEEN
CREATED AND ISSUED.
<PAGE> 303
[Securities issuer's custodian's name]
[date]
Page 4
You agree to keep all of the enclosed Loan Papers safe from fire, loss, theft
and other casualty and agree to bear any loss, cost or expense we or the
Warehouse Lenders may incur as a result of any such event.
THIS LETTER CONTROLS
If any other paper you receive from us, the Mortgage Company or anyone else in
respect of the Loans is inconsistent with this letter, then this letter shall
control unless a Warehouse Agent/ Custodian's Authorized Person confirms IN
WRITING that the other paper controls.
PLEASE CONFIRM RECEIPT
Please immediately indicate your receipt of this letter and the enclosed Loan
Papers, and your acceptance of and agreement to the trust and the terms and
conditions stated above, by dating and signing the enclosed copy of this letter
and returning it to us (although your doing so will not be necessary to the
effectiveness of any of this letter's terms, provisions or conditions).
Very truly yours,
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Warehouse Agent/Custodian
By:_____________________________________
Name:___________________________________
Title:__________________________________
Attached:
Schedule of Loans shipped
Schedule of Warehouse Agent/Custodian's Authorized Persons
RECEIPT ACKNOWLEDGED AND TRUST, TERMS AND CONDITIONS ACCEPTED AND AGREED TO ON
________________________________, 19____:
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
<PAGE> 304
SCHEDULE OF LOANS SHIPPED
DATE: ___________________
MORTGAGOR NAME LOAN NUMBER RELEASE PRICE
<PAGE> 305
SCHEDULE OF WAREHOUSE AGENT/CUSTODIAN'S AUTHORIZED PERSONS
(Persons authorized to direct -- or to confirm the Mortgage Company's
directions --
for and on behalf of the Warehouse Agent/Custodian concerning Loans shipped
to you by Texas Commerce Bank National Association, as Warehouse
Agent/Custodian
under the Custody Agreement dated October 31, 1997, as amended, with
MCA Financial Corp., MCA Mortgage Corporation, Mortgage Corporation of America
and Mortgage Corporation of America, Inc.)
Effective Date:__________________
Confirmed by:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
Warehouse Agent/Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
<PAGE> 306
EXHIBIT B
COMPANIES'
LETTER OF TRANSMITTAL
<PAGE> 307
EXHIBIT C
NOTICE OF RECEIPT or FOLLOW-UP NOTICE OF RECEIPT
[date]
MCA Financial Corp., MCA Mortgage Corp.,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
23999 Northwestern Hwy, Suite 230
Southfield, Michigan 48075
Re: Custody Agreement dated October 31, 1997 (as it may have been
supplemented, amended or restated, the "Custody Agreement") by
and among MCA Financial Corp., MCA Mortgage Corp. and Mortgage
Corporation of America (the "Borrowers") joined by Mortgage
Corporation of America, Inc. (collectively, the "Companies"),
and Texas Commerce Bank National Association ("TEXAS
COMMERCE"), as a lender and as agent (the "WAREHOUSE AGENT")
for the other lenders (collectively with Texas Commerce, the
"WAREHOUSE LENDERS") under the 10/97 Senior Secured Warehouse
Credit Agreement dated as of October 31, 1997 (as it may have
been or may be supplemented, amended or restated from time to
time, the "WAREHOUSE CREDIT AGREEMENT")
Ladies and Gentlemen:
All initially capitalized terms used herein have the same meanings
here as in the Custody Agreement.
[ ] This is a Notice of Receipt for Basic Papers.
In accordance with SECTION 3.2 of the Custody Agreement, the Warehouse
Agent hereby:
(1) acknowledges to the Companies receipt of all Basic Papers for
each of the Pledged Loans listed in the attached Submission List (the
"SUBMITTED LOANS"); and
(2) as to each of the Submitted Loans, certifies to the Warehouse
Lenders that the Warehouse Agent has reviewed its File and has determined,
based on its examination of the papers in such File that (i) all of such File's
Basic Papers [ ](check if applicable) except for Basic Papers temporarily
returned to the Companies or their designee under a trust receipt, for
correction, collection or other servicing action), are in such File and such
File is in the Warehouse Agent's possession, (ii) the Basic Papers appear
regular on their faces and to relate to such Submitted Loan, (iii) the
information set forth in the Submission List respecting such Submitted Loan
appears correct, and (iv) the Basic Papers appear on their faces to satisfy the
requirements stated in SECTION 3.1 of the Custody Agreement.
[ ] This is a Follow-up Notice of Receipt. In accordance with SECTION 3.2
of the Custody Agreement, the Warehouse Agent hereby:
(1) acknowledges to the Companies and certifies to the Warehouse
Lenders receipt from the Companies of the documents listed in the attached copy
of the Warehouse Agent's Document Return Letter to the Companies dated ________
(the "RETURNED DOCUMENTS") by which such Returned Documents were sent by the
Warehouse Agent to the Companies for the purpose(s) stated in such Document
Return Letter; and
(2) as to each of the Pledged Loans to which the Returned
Documents relate, the Warehouse Agent certifies to the Warehouse Lenders that
the Warehouse Agent has reviewed such Pledged Loan's File and has determined,
based on its examination of the papers in such File (including the Returned
Documents) that (i) all of such File's Basic Papers [ ] (check if applicable)
are now in such File and such File is in the Warehouse Agent's possession,
<PAGE> 308
(ii) the Basic Papers appear regular on their faces and to relate to such
Pledged Loan and (iii) the Basic Papers for such Pledged Loan appear on their
faces to satisfy the requirements stated in SECTION 3.1 of the Custody
Agreement.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:_____________________________________
Name:___________________________________
Title:__________________________________
(The Warehouse Agent)
Attached:
[ ] (for Notice of Receipt) Submission List(s)
[ ] (for Follow-up Notice of Receipt) Copy of relevant Document Return Letter
<PAGE> 309
EXHIBIT D
SUMMARY OF PLEDGED LOANS
[date]
MCA Financial Corp., MCA Mortgage Corp.,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
23999 Northwestern Hwy, Suite 230
Southfield, Michigan 48075
Re: Custody Agreement dated October 31, 1997 (as it may have been
supplemented, amended or restated, the "Custody Agreement") by
and among MCA Financial Corp., MCA Mortgage Corp. and Mortgage
Corporation of America (the "Borrowers") joined by Mortgage
Corporation of America, Inc. (collectively, the "Companies"),
and Texas Commerce Bank National Association ("TEXAS
COMMERCE"), as a lender and as agent (the "WAREHOUSE AGENT")
for the other lenders (collectively with Texas Commerce, the
"WAREHOUSE LENDERS") under the 10/97 Senior Secured Warehouse
Credit Agreement dated as of October 31, 1997 (as it may have
been or may be supplemented, amended or restated from time to
time, the "WAREHOUSE CREDIT AGREEMENT")
Ladies and Gentlemen:
We confirm that as of the above date we hold as the agent and
Representative of the Warehouse Lenders under the captioned Custody Agreement
the Pledged Loans described on the attached Loan ID Report.
[NOTE: TEXAS COMMERCE IS TO ATTACH REPORT SHOWING LOAN (OR LAND
CONTRACT) NUMBER, CUSTOMER LAST NAME, FACE AMOUNT OF MORTGAGE NOTE OR
ORIGINAL LAND CONTRACT AMOUNT, BALANCE AND STATUS,
I.E., THE NOTICE OF RECEIPT FOR THE BASIC PAPERS].
All initially capitalized terms used herein have the same meanings
here as in the Custody Agreement.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Warehouse Agent
By:_____________________________________
Name:___________________________________
Title:__________________________________
<PAGE> 310
EXHIBIT E
PAYOFF REQUEST
PURPOSE:________________________________
FINAL LIST
<TABLE>
<CAPTION>
CURRENT ORIGINAL
LOAN NOTE NOTE DATE
NUMBER BORROWER NAME BALANCE BALANCE FUNDED
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 311
EXHIBIT F
PAYOFF SCHEDULE
as of ___________________________
<TABLE>
<CAPTION>
CURRENT ORIGINAL
FILE NOTE COMPANY
NUMBER BORROWER NAME BALANCE BORROWING EXCEPTION
AMOUNT
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 312
EXHIBIT G
DOCUMENT RETURN LETTER
Date:___________________
To:
MCA Financial Corp., MCA Mortgage Corp.,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
23999 Northwestern Hwy, Suite 230
Southfield, Michigan 48075
Re: Custody Agreement dated October 31, 1997 (as it may have been
supplemented, amended or restated, the "Custody Agreement") by
and among MCA Financial Corp., MCA Mortgage Corp. and Mortgage
Corporation of America (the "Borrowers") joined by Mortgage
Corporation of America, Inc. (collectively, the "Companies"),
and Texas Commerce Bank National Association ("TEXAS
COMMERCE"), as a lender and as agent (the "WAREHOUSE AGENT")
for the other lenders (collectively with Texas Commerce, the
"WAREHOUSE LENDERS") under the 10/97 Senior Secured Warehouse
Credit Agreement dated as of October 31, 1997 (as it may have
been or may be supplemented, amended or restated from time to
time, the "WAREHOUSE CREDIT AGREEMENT")
Re: Loan Number __ __ __ - __ __ __ __ __
The Warehouse Agent hereby returns to the Companies the following
documents received by the Warehouse Agent pursuant to the attached Letter of
Transmittal for the following reasons:
DOCUMENT FOLLOW-UP ACTION REQUIRED
_____________________________________________ ________________________________
_____________________________________________ ________________________________
_____________________________________________ ________________________________
_____________________________________________ ________________________________
_____________________________________________ ________________________________
_____________________________________________ ________________________________
_____________________________________________ ________________________________
_____________________________________________ ________________________________
The above deficiencies should be corrected immediately and the
corrected documents promptly returned to the Warehouse Agent. Pending such
return, you are to hold such documents as bailee and in trust for Texas
Commerce Bank National Association, as Warehouse Agent and Representative of
the Warehouse Lenders. If a delay is anticipated, Texas Commerce Bank National
Association, as Warehouse Agent, must be notified.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Warehouse Agent
By:_____________________________________
Authorized Officer
<PAGE> 313
EXHIBIT H
PRELIMINARY TITLE REPORT STATES
A Preliminary Title Report may be delivered for Mortgaged Property
located in the following states:
1. California
<PAGE> 314
EXHIBIT I
TRUST RECEIPT AND AGREEMENT
WAREHOUSE AGENT: Texas Commerce Bank DATE:_________________, 199__
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
================================================================================
This trust receipt and agreement is delivered under the Custody
Agreement dated as of October 31, 1997 executed between the Warehouse Agent (as
the "CUSTODIAN" therein) and the Companies pursuant to the 10/97 Senior Secured
Warehouse Credit Agreement (as supplemented, amended or restated, the
"WAREHOUSE CREDIT AGREEMENT"), between the Companies and Texas Commerce Bank
National Association, as Warehouse Agent for the Warehouse Lenders. Terms
defined in the Warehouse Credit Agreement and the Custody Agreement have the
same meanings when used -- unless otherwise defined -- in this trust receipt
and agreement.
In accordance with the Custody Agreement, the Companies hereby:
(check one)
[ ] request
[ ] acknowledge
delivery by Warehouse Agent to the Company designated below of:
(check one)
[ ] the entire File of Warehouse Collateral Papers
[ ] the following specific Warehouse Collateral Papers from the File:
_______________________________________________________________________
for the Mortgage Loans or Land Contracts referred to below and for the purpose
of making the corrections or performing the servicing functions described as
follows:
Description of Collateral: ____________________________________
Original Amount: $________________________
<PAGE> 315
Company to Deliver to: ____________________________________
Corrections or servicing
functions: ____________________________________
____________________________________
____________________________________
The Companies agree that (a) these Warehouse Collateral Papers are
delivered to the Companies solely for the purpose of making these corrections,
(b) these Warehouse Collateral Papers are, and shall continue to be, subject to
Lender Liens under the Warehouse Loan Documents, (c) the Companies shall hold
these Warehouse Collateral Papers as bailee and trustee for the Warehouse
Agent, as agent and Representative of the Warehouse Lenders, and (d) the
Companies may not deliver any of these Warehouse Collateral Papers to a third
party unless (i) it is necessary in order to complete the corrections, and (ii)
the Companies notify that third party that the Warehouse Collateral Papers are,
and continue to be, subject to Lender Liens under the Warehouse Loan Documents,
and obtain from that third party its agreement to hold those Warehouse
Collateral Papers as bailee and trustee for the Warehouse Agent, as agent and
Representative of the Warehouse Lenders until they have been returned to the
Custodian or the amount of the Borrowing Base attributable to the related
Mortgage Loans or Land Contracts has been fully paid to Warehouse Agent to be
applied to the Obligations. The Companies agree to return possession of these
papers to the Warehouse Agent by no later than ten (10) days after their
receipt by any of the Companies unless this box is checked [ ] to indicate that
the Agent has consented (on a case by case basis) to the Companies' retaining
such possession for a longer period, AND IN ANY EVENT TO RETURN POSSESSION OF
THESE PAPERS TO THE WAREHOUSE AGENT NO LATER THAN TWENTY-ONE (21) DAYS AFTER
RECEIPT unless the Pledged Loans to which they relate are sooner redeemed in
accordance with SECTION 9.3 of the Warehouse Credit Agreement.
On and as of the date of this receipt and agreement, the Companies
certify, represent and warrant to the Warehouse Agent, as agent and
Representative of the Warehouse Lenders, that (a) the Companies'
representations and warranties in the Warehouse Loan Documents are true and
correct in all material respects except to the extent that (i) a representation
or warranty speaks to a specific date or (ii) the facts on which a
representation or warranty is based have changed by transactions or conditions
contemplated or permitted by the Warehouse Loan Documents, (b) no Default or
Event of Default exists or will exist after giving effect to this requested
shipment, and (c) unless (check if applicable) [ ] the Warehouse Agent has
otherwise agreed, this shipment will not result in Warehouse Collateral Papers
with more than a total face amount of One Million Dollars ($1,000,000) being
outstanding for correction or servicing.
<PAGE> 316
The Companies acknowledge receipt of the Warehouse Collateral Papers
referred to above.
MCA FINANCIAL CORP.,
MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF
AMERICA, as the Borrowers
By______________________________________
(Name)__________________________________
(1)(Title)______________________________
__________________________________
(1) Must be a Responsible Officer of all three Companies.
<PAGE> 317
MCA FINANCIAL CORP.,
MCA MORTGAGE CORPORATION,
MORTGAGE CORPORATION OF
AMERICA and MORTGAGE
CORPORATION OF AMERICA, INC., as the
Companies
By______________________________________
(Name)__________________________________
(1)(Title)______________________________
__________________________________
(1) Must be a Responsible Officer of all four Companies.
<PAGE> 318
SCHEDULE 4.1
SHIPPING REQUEST
WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199___
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
SHIPMENT # _______________________ SHIPMENT $_____________________
POOL #____________________ # OF LOANS _____________________
================================================================================
This request is delivered under the Custody Agreement dated as of
October 31, 1997 executed between the Warehouse Agent (as the "CUSTODIAN"
therein) and the Companies pursuant to the 10/97 Senior Secured Warehouse
Credit Agreement dated as of October 31, 1997 (as supplemented, amended or
restated, the "WAREHOUSE CREDIT AGREEMENT"), between the Companies, Texas
Commerce Bank National Association ("TEXAS COMMERCE"), as a lender and as agent
(the "WAREHOUSE AGENT") for the other lenders party thereto, and the lenders
party thereto (including Texas Commerce, the "WAREHOUSE LENDERS"). Terms
defined in the Warehouse Credit Agreement and the Custody Agreement have the
same meanings when used -- unless otherwise defined -- in this notice.
1. The Companies request that Custodian (a) forward the shiplist
and collateral files for the Mortgage Loans or Land Contracts identified below
to the following Approved Investor or its custodian or Servicer:
__________________________________
__________________________________
__________________________________
__________________________________
The Companies also request that the Custodian complete the endorsement of the
related promissory notes or Land Contracts from the Companies to that Approved
Investor or its Servicer or custodian as follows: _____________________________
The Custodian should ship the whole collateral file (consisting of all Basic
Papers in the Custodian's possession for this Warehouse Collateral) by either
Federal Express or such other courier service as the Companies have designated
to the Custodian as "approved" for that purpose. The courier used
<PAGE> 319
must be acting as an independent contractor bailee solely on behalf of the
Warehouse Agent for the benefit of the Custodian, the Warehouse Agent and the
Warehouse Lenders, but none of the Warehouse Agent, the Custodian or the
Warehouse Lenders is responsible for any delays in shipment caused by any
actions or inactions by that courier. The Companies' completed air bill for
shipment accompanies this request.
2. On and as of the date of this request, the Companies certify,
represent and warrant to the Warehouse Agent, the Custodian and the Warehouse
Lenders that (a) the Companies' representations and warranties in the Warehouse
Loan Documents are true and correct in all material respects except to the
extent that (i) a representation or warranty speaks to a specific date or (ii)
the facts on which a representation
or warranty is based have changed by transactions or conditions contemplated or
permitted by the Warehouse Loan Documents, and (b) no Default or Event of
Default exists or, after giving effect to this requested shipment, will exist.
MCA FINANCIAL CORP., MCA MORTGAGE
CORPORATION, MORTGAGE CORPORATION OF
AMERICA and MORTGAGE CORPORATION OF
AMERICA, INC., as the Companies
By______________________________________
(Name)__________________________________
(1)(Title)______________________________
__________________________________
(1) Must be a Responsible Officer of all four Companies.
<PAGE> 320
SCHEDULE TF
STANDARD WAREHOUSE TRANSMISSION FILE
20. TEXAS COMMERCE BANK'S STANDARD WAREHOUSE TRANSMISSION FILE IS A FIXED
LENGTH RECORD LAYOUT TO ENSURE INTEGRITY OF DATA TRANSMITTED.
21. TEXAS COMMERCE BANK WILL REQUIRE A TRANSMISSION FILE FOR: (1) WET
FUNDINGS, (2) DRY FUNDINGS, (3) TRANSFERS FROM WET TO DRY, (4)
PAYDOWNS AND (5) INVENTORY PURPOSES. THE SAME STANDARD WAREHOUSE
TRANSMISSION FILE LAYOUT IS USED FOR ALL ACTIVITIES.
22. ALL FIELDS ON THE TRANSMISSION FILE SHOULD BE POPULATED WITH
CONSIDERATION GIVEN TO THE BELOW TRANSACTIONS:
(A.) WET FUNDINGS: PLACE A "W" IN THE LOAN STATUS FIELD.
(B.) DRY FUNDINGS: PLACE A "D" IN THE LOAN STATUS FIELD.
(C.) TRANSFERS: PLACE A "T" IN THE LOAN STATUS FIELD AND PLACE IN
THE MASTER NOTE FIELD THE NOTE NUMBER THE LOAN IS TRANSFERRING
TO.
(D.) PAYDOWNS: PLACE A "P" IN THE LOAN STATUS FIELD AND PLACE THE
PAYDOWN DATE IN THE PAID DATE FIELD.
(E.) INVENTORY TRANSMISSION: PLACE AN "I" IN THE LOAN STATUS
FIELD. TEXAS COMMERCE BANK WILL REQUIRE A WEEKLY, OR AT A
MINIMUM A MONTHLY, FULL INVENTORY FILE TRANSMISSION IN ORDER
TO RECONCILE.
23. CONTACT TEXAS COMMERCE'S MORTGAGE WAREHOUSE OPERATIONS STAFF FOR
ACCESS NUMBERS AND PROTOCOLS FOR DATA TRANSMISSIONS.
24. IN ORDER TO EXPEDITE PROCESSING AND MEET YOUR CRITICAL BUSINESS
DEADLINES TEXAS COMMERCE BANK WILL REQUIRE THAT ONCE A STANDARD FORMAT
HAS BEEN AGREED UPON, ALL SUBSEQUENT TRANSMISSIONS MUST CONFORM TO THE
FORMAT. SHOULD ANY CHANGES BECOME NECESSARY, PLEASE CONTACT TEXAS
COMMERCE BANK FOR CONSULTATION AND TIME SCHEDULES FOR IMPLEMENTATION
OF ANY AGREED-UPON CHANGES.
<PAGE> 321
<TABLE>
<CAPTION>
MAX
FIELD DESCRIPTION FIELD TYPE START LAST LENGTH
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
File Number Unique loan number C 1 20 20
- -----------------------------------------------------------------------------------------------------------------------------
Mortgagor Last Name Borrower surname C 21 55 35
- -----------------------------------------------------------------------------------------------------------------------------
Mortgagor First Name Borrower first name C 56 80 25
- -----------------------------------------------------------------------------------------------------------------------------
Co-Mtgr. Last Name Co-Borrower surname C 81 115 35
(if applicable)
- -----------------------------------------------------------------------------------------------------------------------------
Co-Mtgr. First Name Co-Borrower first name C 116 140 25
(if applicable)
- -----------------------------------------------------------------------------------------------------------------------------
Property Address Property address C 141 170 30
- -----------------------------------------------------------------------------------------------------------------------------
Property City Property city C 171 200 30
- -----------------------------------------------------------------------------------------------------------------------------
Property State Standard state abbreviation C 201 202 2
- -----------------------------------------------------------------------------------------------------------------------------
Property Zip Zip Code (zip + four, if available) C 203 212 10
- -----------------------------------------------------------------------------------------------------------------------------
Loan type USE (RES.) C 213 219 7
- -----------------------------------------------------------------------------------------------------------------------------
Loan Term Loan term, in months C 220 222 3
- -----------------------------------------------------------------------------------------------------------------------------
Note Date Original note date D 223 230 8
(MM/DD/YY)
- -----------------------------------------------------------------------------------------------------------------------------
Fund Date Collateral funding date D 231 238 8
(MM/DD/YY)
- -----------------------------------------------------------------------------------------------------------------------------
Paid Date Collateral paid date (paydown) D 239 246 8
(MM/DD/YY)
- -----------------------------------------------------------------------------------------------------------------------------
Original Amount Loan amount F 247 258 12
(xxxxxxxx.xx)
- -----------------------------------------------------------------------------------------------------------------------------
Warehouse Amount Collateral funding amount F 259 270 12
(xxxxxxxx.xx)
- -----------------------------------------------------------------------------------------------------------------------------
Note Rate Loan rate F 271 277 7
(xx.xxxx)
- -----------------------------------------------------------------------------------------------------------------------------
Loan Status W-WETS; D-DRYS; T-TRANSFERS C 278 278 1
--------------------------------
P-PAYDOWNS; I-INVENTORY
- -----------------------------------------------------------------------------------------------------------------------------
Master Note C 279 282 4
- -----------------------------------------------------------------------------------------------------------------------------
Type Paper A, B, C, or D C 283 284 2
- -----------------------------------------------------------------------------------------------------------------------------
Combined LTV As a Percentage (%) F 285 291 7
(xx.xxxx)
- -----------------------------------------------------------------------------------------------------------------------------
Lien Position 1 or 2 C 292 292 1
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 322
<TABLE>
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------
Jumbo Loan "J" for Jumbo - "S" for Super Jumbo C 293 293 1
Leave blank if neither
- -----------------------------------------------------------------------------------------------------------------------------
Dwelling Type SEE LIST OF ACCEPTABLE DWELLING TYPES C 294 295 2
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
STANDARD FILE NAME CONVENTION: ABC MM DDC.TXT
(ABC) IDENTIFIES ABC MORTGAGE COMPANY, (MM) IDENTIFIES THE MONTH, (DD)
IDENTIFIES THE DAY, AND THE FINAL CHARACTER (A,B,C,ETC.) IDENTIFIES THE
TRANSMISSION SEQUENCE OF THE DAY.
****THIS FILE IS AN ASCII TEXT FILE IN WHICH THE RECORDS HAVE A FIXED LENGTH
AND END WITH A CARRIAGE RETURN AND LINE FEED. (EACH FIELD HAS A SPECIFIC
LENGTH) COMMAS ARE PROHIBITED IN NUMERIC FIELDS.
<PAGE> 323
WAREHOUSE SECURITY AGREEMENT
THIS WAREHOUSE SECURITY AGREEMENT is entered into as of October 31,
1997, between MCA FINANCIAL CORP., a Michigan corporation, MCA MORTGAGE
CORPORATION, a Michigan corporation, MORTGAGE CORPORATION OF AMERICA, a Michigan
corporation and MORTGAGE CORPORATION OF AMERICA, INC., an Ohio corporation
("DEBTORS"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as a lender and as
agent for the other lenders (in such capacities, "SECURED PARTY").
Debtors, the Warehouse Lenders parties thereto as such and Secured
Party have entered into the 10/97 Senior Secured Warehouse Credit Agreement
dated as of October 31, 1997 (as supplemented, amended or restated, the
"WAREHOUSE CREDIT AGREEMENT"). As a continuing inducement to Warehouse Lenders
to extend credit to Debtors under the Warehouse Credit Agreement, and as a
condition precedent to that credit, Debtors are executing and delivering this
Agreement to Secured Party.
ACCORDINGLY, for adequate and sufficient consideration, Debtors and
Secured Party agree as follows:
SECTION 1. DEFINITIONS AND REFERENCES. Unless stated otherwise, (a) terms
defined in the Warehouse Credit Agreement or the UCC have the same meanings when
used in this Agreement, and (b) to the extent permitted by Law, if in conflict
(i) the definition of a term in the Warehouse Credit Agreement controls over the
definition of that term in the UCC, and (ii) the definition of a term in Article
9 of the UCC controls over the definition of that term elsewhere in the UCC.
COLLATERAL is defined in SECTION 2.2 of this Agreement.
DEBTORS is defined in the preamble to this Agreement and includes,
without limitation, each Debtor, each Debtor as a debtor-in-possession, and any
receiver, trustee, liquidator, conservator, custodian, or similar party
appointed for any Debtor or for substantially all of any Debtor's assets under
any Debtor Law.
OBLIGOR means any Person obligated with respect to any Collateral
(whether as an account debtor, obligor on an instrument, issuer of securities,
or otherwise).
SECURED PARTY is defined in the preamble to this Agreement and includes
its successor appointed and acting as Warehouse Agent for Warehouse Lenders
under the Warehouse Loan Documents.
<PAGE> 324
SECURITY INTEREST means the security interest granted and the pledge
and assignment made under SECTION 2.1 of this Agreement, which is a Lender Lien
under the Warehouse Credit Agreement.
SECTION 2. SECURITY INTEREST AND COLLATERAL.
2.1 Security Interest. To secure the full payment and performance of
the Obligations, each Debtor hereby grants to Secured Party, as agent and
Representative of Warehouse Lenders, a security interest in all of that Debtor's
present and future right, title and interest in and to the Collateral, whether
now owned or hereafter acquired, and pledges and assigns the Collateral to
Secured Party as Representative of Warehouse Lenders, all upon and subject to
the terms and conditions of this Agreement. The grant of the Security Interest
does not subject Secured Party or any Lender to the terms of any Collateral
Paper or in any way transfer, modify, or otherwise affect (a) any Debtor's
obligations with respect to any Collateral or (b) the Lender Liens under the
Warehouse Credit Agreement.
2.2 Collateral. As used in this Agreement, the term "Collateral"
means the present and future items and types of property described below,
whether now owned or acquired in the future by any Debtor. This description of
Collateral does not permit any action prohibited by any Loan Document.
- Mortgage Collateral from time to time identified to Secured
Party as Collateral.
- All Collateral Papers in any way related to any of the
Mortgage Collateral from time to time identified to Secured
Party as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of
trust, or trust deeds securing those Mortgage Loans, whether
deposited with or held by or for Secured Party under this
Agreement, identified by a Debtor as Collateral for a Wet
Borrowing or otherwise.
- Private mortgage insurance (including, without limitation,
all commitments to issue any such insurance) covering, and
all commitments issued by FHA to insure or issued by VA to
guarantee, any Mortgage Loans identified as Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Loans identified as Collateral.
- Casualty insurance assigned to any Debtor in connection with
any Mortgage Loans identified as Collateral.
2
<PAGE> 325
- Mortgage Securities deposited with or held by or for Secured
Party under the Warehouse Loan Documents or registered by
book entry in Secured Party's name under the Warehouse Loan
Documents.
- Guaranties related to Mortgage Securities identified as
Collateral.
- Take-out Commitments held by any Debtor for any Mortgage
Loans or Mortgage Securities identified as collateral,
rights to deliver those Mortgage Loans or Mortgage
Securities, as the case may be, to the investors or other
purchasers under those Take-out Commitments, and all
proceeds resulting from the sale of any of those Mortgage
Loans or Mortgage Securities under those Take-out
Commitments.
- Any Collateral otherwise described in this Agreement that
may from time to time be delivered (a) to an investor (or
its custodian or other designee) under SECTION 4.1 of the
Custody Agreement until purchased and paid for by that
investor or (b) to a Company for correction or servicing
under SECTION 4.2 of the Custody Agreement.
- The Warehouse Note Payment/Funding Account, all other
accounts that any Debtor maintains with Secured Party,
Warehouse Agent, or any Lender, and all amounts deposited in
them or represented by them.
- Personal property, contract rights, accounts, and general
intangibles of any kind whatsoever relating to any
Collateral.
- All files, surveys, certificates, correspondence,
appraisals, tapes, discs, cards, accounting records, and
other information and data of any Debtor relating to any
collateral, including, without limitation, all information,
data, tapes, discs, and cards necessary to administer and
service any Collateral.
- Cash and noncash proceeds of any Collateral.
SECTION 3. REPRESENTATIONS AND WARRANTIES. By entering into this Agreement,
and by each subsequent delivery of additional Collateral under this Agreement,
each Debtor reaffirms the representations and warranties contained in the
Warehouse Credit Agreement. Each Debtor further represents and warrants to
Secured Party as Representative of Warehouse Lenders as follows:
3.1 Concerning Debtors. The facts concerning Debtors' names, taxpayer
identification numbers, ownership, state of incorporation, states in which
Debtors are qualified as foreign corporations, trade names used, chief executive
offices' locations and other principal offices' locations that are stated on
Schedule I hereto and its attached list, are true and correct in all respects.
3
<PAGE> 326
3.2 Concerning the Collateral. All Collateral (a) is genuine and in
all respects what it purports to be, (b) is the legal, valid, and binding
obligation of each Obligor (except as enforceability may be limited by Debtor
Laws), (c) is free from any claim for credit, deduction, or allowance of any
Obligor and free from any defense, dispute, setoff, or counterclaim (other than
for payments made in respect of it), (d) if a Mortgage Loan was originated and
is in compliance with all Laws (including, without limitation, all usury Laws,
the Real Estate Settlement Procedures Act of 1974, the Equal Credit Opportunity
Act, the Federal Trust in Lending Act, Regulation Z promulgated by the Board of
Governors of the Federal Reserve System, and all applicable federal and state
consumer protection Laws, (e) if a Mortgage Security, is duly authorized and
validly issued, the transfer of which is not subject to any restrictions other
than under the Warehouse Loan Documents, (f) if a Take-out commitment or other
contract, is in full force and effect without any material default having
occurred by any party to it, and (g) conforms to the applicable requirements of
eligibility under SCHEDULE EC to the Warehouse Credit Agreement.
3.3 Ownership and Priority. Debtors have full legal and beneficial
ownership of all Collateral, free and clear of all liens except Permitted Liens.
3.4 Creation and Perfection. The Security Interest is created and
perfected on (a) each promissory note that evidences a Mortgage Loan or Land
Contract ever identified as Collateral and delivered to Secured Party, (b) each
promissory note that evidences a Mortgage Loan identified by a Debtor to Secured
Party as supporting a Wet Borrowing for twenty-one (21) days after the
Disbursement Date for that Borrowing, (c) each Mortgage Security in certificated
form that is delivered to Secured Party, (d) each Mortgage Security in book
entry form when notice of the Security Interest is given to the financial
institution in whose favor that security has been issued and that institution
confirms that notice, (e) all Collateral shipped to any investor under SECTION
3.1 of the Custody Agreement (and the Security Interest shall continue to be
perfected until Secured Party receives either payment or Mortgage Securities
under that section), (f) all Collateral shipped to a Debtor for correction or
servicing under SECTION 4.2 of the Custody Agreement (and the Security Interest
shall continue to be perfected for twenty-one (21) days after that shipment),
and (g) all other Collateral upon possession or the filing of financing
statements by Secured Party.
SECTION 4. COVENANTS. Until all commitments by Secured Party and Warehouse
Lenders to extend credit under the Warehouse Credit Agreement have been canceled
or terminated and the Obligations are fully paid and performed, Debtors covenant
and agree with Secured Party as Representative of Warehouse Lenders as follows:
4.1 Concerning the Collateral. Debtors (a) shall fully perform all of
their duties under and in connection with each transaction to which any
Collateral relates, (b) shall promptly notify Secured Party about any change in
any fact or circumstances represented or warranted by any Debtor about any
Collateral, (c) shall promptly notify Secured Party of any claim, action, or
proceeding affecting title to any Collateral or the Security Interest and, at
Secured Party's request and Debtors' expense, appear in and defend that action
or proceeding, (d) shall hold in trust for Secured Party (as
4
<PAGE> 327
agent and Representative of the Warehouse Lenders) all Collateral not delivered
to Secured Party (without excusing any failure to deliver Collateral Papers to
Secured Party as required by this Agreement) and mark that Collateral on the
relevant Debtor's records that it is subject to the Security Interest (but the
failure to do so does not impair the Security Interest or its priority), (e)
other than collections under SECTION 4.3 below, shall pay and deliver to Secured
Party all items and types of property into which any Collateral may be converted
(all of which shall automatically be and remain subject to the Security
Interest) and properly endorse, assign, or take such other action as Secured
Party may request in order to maintain and continue the Security Interest in
that property, (f) may not compromise, extend, release, or adjust payments on
any Collateral, accept a conveyance of mortgaged property in full or partial
satisfaction of any Collateral, or release any mortgage, deed of trust, or trust
deed securing or underlying any Collateral, and (g) may not agree to the
amendment, termination, or substitution of any Take-out Commitment covered by
the Security Interest if that amendment, termination or substitution would have
a Material Adverse Effect.
4.2 Insurance. Debtors shall keep the collateral fully insured in the
amounts, against the risks, and with insurers as may be approved by Secured
Party, with loss payable to Secured Party as its interest (as agent and
Representative of Warehouse Lenders) may appear.
4.3 Collections. Debtors shall, at their sole cost and expense,
whether requested to by Secured Party or in the absence of such a request, take
all actions reasonably necessary to obtain payment, when due and payable, of all
amounts due or to become due from Obligers with respect to any Collateral.
Debtors may not agree to any rebate, refund, compromise or extension with
respect to any Collateral or accept any prepayment on account of any Collateral
other than in a manner and to the extent consistent with or as may otherwise be
provided in various servicing agreements to which it is a party or subject.
(a) No Event of Default. While no Event of Default exists,
Debtors shall make all of those collections, shall maintain such escrow accounts
and otherwise comply with the servicing agreements to which it is a party or
subject, and may otherwise comply with the servicing agreements to which it is a
party or subject, and may otherwise retain and use the proceeds of those
collections in the ordinary course of their business.
(b) Default. While an Event of Default exists, and upon the
request of Secured Party, Debtors shall (i) notify and direct each Obligor to
make payments on the collateral to Secured Party for deposit into such accounts
as it may designate so as to be held as Collateral under this Agreement and (ii)
otherwise turn over to Secured Party, in the form received and with any
necessary endorsements, all payments they receive in respect of any Collateral
for deposit into such accounts as Secured Party may designate to be held as
collateral under this Agreement. Secured Party may at any time apply any amounts
in those accounts as a payment of the Obligations, other than mortgage escrow
payments that are deposited into escrow accounts in accordance with the
applicable Guide or servicing contract.
5
<PAGE> 328
4.4 Concerning Debtors. Without first giving Secured Party thirty
(30) days notice (or fewer if agreed to in writing by Secured Party) of the
intention to do any of the following and performing such acts and executing and
delivering to Secured Party such additional documents as Secured Party requests
in order to continue or maintain the existence and priority of the Security
Interest, no Debtor may (a) use or transact business under any corporate,
assumed, or trade name, except as represented in the Warehouse Credit Agreement,
(b) relocate its chief executive offices or principal place of business or (c)
move or surrender possession of its books and records regarding the Collateral.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES. If an Event of Default exists,
then Secured Party may, at its election (but subject to the terms and conditions
of the Warehouse Credit Agreement), exercise any and all rights available to a
secured party under the UCC, in addition to any and all other rights afforded by
the Warehouse Loan Documents, at law, in equity, or otherwise, including,
without limitation (a) requiring Debtors to assemble all or part of the
Collateral and make it available to Secured Party at a place to be designated by
Secured Party which is reasonably convenient to Debtors and Secured Party, (b)
selling the Collateral as provided below in this Section, (c) surrendering any
policies of insurance on all or part of the Collateral and receiving and
applying the unearned premiums as a credit on the Obligations, (d) applying by
appropriate judicial proceedings for appointment of a receiver for all or part
of the Collateral (and Debtors hereby consent to any such appointment) and (e)
applying to the Obligations any cash held by Secured Party or any Lender under
the Warehouse Loan Documents.
5.1 Sale of Collateral. If and to the extent permitted or required by
applicable law, Secured Party may, without notice except as hereinafter
provided, sell the Collateral or any part thereof at public or private sale
(with or without appraisal or having the Collateral at the place of sale) for
cash, upon credit, or for future delivery, and at such price or prices as
Secured Party may deem best, and Secured Party (as agent and Representative of
the Warehouse Lenders) may be the purchaser of any and all of the Collateral so
sold and may apply upon the purchase price therefor any of the Obligations and
thereafter hold the same absolutely free from any right or claim of whatsoever
kind. Secured Party is authorized at any such sale, if Secured Party deems it
advisable or is required by applicable law so to do, (i) to restrict the
prospective bidders on or purchasers of any of the Collateral to a limited
number of sophisticated investors who will represent and agree that they are
purchasing for their own account for investment and not with a view to the
distribution or resale of any of the Collateral, (ii) to cause to be placed on
certificates for any or all of the Collateral a legend to the effect that such
security has not been registered under the Securities Act of 1933, as amended,
and may not be disposed of in violation of the provisions of said Act, and (iii)
to impose such other limitations or conditions in connection with any such sale
as Secured Party deems necessary or advisable in order to comply with said Act
or any other applicable law. Debtors agree to execute and deliver such documents
and take such other action as Secured Party deems necessary or advisable in
order that any such sale may be made in compliance with applicable law. Upon any
such sale, Secured Party shall have the right to deliver, assign and transfer to
the purchaser thereof the Collateral so sold. Each purchaser at any such sale
shall hold the property sold absolutely free from any claim or right of
whatsoever kind, including any equity or right of redemption, stay or appraisal
6
<PAGE> 329
which Debtors have or may have under any rule of law or statute now existing or
hereafter adopted. To the extent notice is required by applicable law, Secured
Party shall give Debtors written notice at the address set forth in the
Warehouse Credit Agreement (which shall satisfy any requirement of notice or
reasonable notice in any applicable statute) of Secured Party's intention to
make any such public or private sale. Reasonable notification of the time and
place of any public sale of the collateral, or reasonable notification of the
time after which any private sale or other intended disposition of the
Collateral is to be made, shall be sent to the affected Debtor and to any other
Person entitled to notice under the UCC. If any Collateral threatens to decline
speedily in value or is of the type customarily sold on a recognized market,
Secured Party may sell or otherwise dispose of the Collateral without
notification, advertisement, or other notice of any kind. Notice sent or given
not less than five (5) calendar days before the taking of the action to which
the notice relates is reasonable notification and notice for the purposes of
this Section. Such notice (if any is required by applicable law), in case of
public sale, shall state the time and place fixed for such sale or, in case of
private sale or other disposition other than a public sale, the time after which
the private sale or other such disposition is to be made. Any public sale shall
be held at such time or times, within ordinary business hours and at such place
or places, as Secured Party may fix in the notice of such sale. At any sale the
Collateral may be sold in one lot as an entirety or in separate parcels as
Secured Party may determine. Secured Party shall not be obligated to make any
sale pursuant to any such notice. Secured Party may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at any time and place fixed for such
sale, and such sale may be made at any time or place to which the same may be so
adjourned. In case of any sale of all or any part of the Collateral on credit or
for future delivery, the Collateral so sold may be retained by Secured Party
until the selling price is paid by the purchaser thereof, but Secured Party
shall incur no liability in case of the failure of such purchaser to take up and
pay for the Collateral so sold, and in case of any such failure, such Collateral
may again be sold upon like notice. Each and every method of disposition
described in this Section shall constitute disposition in a commercially
reasonable manner. Debtors shall remain jointly and severally liable for any
deficiency. The Companies hereby acknowledge and agree that Mortgage Loans and
Mortgage Securities are property of a type customarily sold on a recognized
market. The Companies also hereby agree that any sale of a Mortgage Loan or
Mortgage Security pursuant to a Take-out Commitment, and any other sale of
Collateral arranged by any Company (whether before or after an Event of
Default), shall be conclusively presumed to be commercially reasonable.
5.2 Additional Rights of Secured Party. Secured Party shall have all
the rights of a secured party after default under the Uniform Commercial Code of
Texas and in conjunction with, in addition to or in substitution for those
rights and remedies:
(a) it shall not be necessary that the Collateral or any part
thereof be present at the location of any sale pursuant to the provisions of
this Section;
(b) before application of proceeds of disposition of the
Collateral to the Obligations, such proceeds shall be applied to the reasonable
expenses of retaking, holding, preparing for sale or lease, selling, leasing and
the like and the reasonable attorneys' fees and legal
7
<PAGE> 330
expenses incurred by Secured Party, each Debtor, to the extent applicable, to
remain liable for any deficiency;
(c) the sale by Secured Party of less than the whole of the
Collateral shall not exhaust the rights of Secured Party hereunder, and Secured
Party is specifically empowered to make successive sale or sales hereunder until
the whole of the Collateral shall be sold; and, if the proceeds of such sale of
less than the whole of the Collateral shall be less than the aggregate of the
Obligations, this Agreement and the Security Interest created hereby shall
remain in full force and effect as to the unsold portion of the Collateral just
as though no sale had been made;
(d) in the event any sale hereunder is not completed or is
defective in the opinion of Secured Party, such sale shall not exhaust the
rights of Secured Party hereunder and Secured Party shall have the right to
cause a subsequent sale or sales to be made hereunder;
(e) any and all statements of fact or other recitals made in any
bill of sale or assignment or other instrument evidencing any foreclosure sale
hereunder as to nonpayment of any indebtedness or as to the occurrence of any
default, or as to Secured Party having declared all of such indebtedness to be
due and payable, or as to notice of time, place and terms of sale and the
Collateral to be sold having been duly given, as to any other act or thing
having been duly done by Secured Party, shall be taken as prima facie evidence
of the truth of the facts so stated and recited;
(f) Secured Party may appoint or delegate any one or more
persons as agent to perform any act or acts necessary or incident to any sale
held by Secured Party, including the sending of notices and the conduct of sale,
but in the name and on behalf of Secured Party; and
(g) demand of performance, advertisement and presence of
property at sale are hereby WAIVED and Secured Party (as agent and
Representative of the Warehouse Lenders) is hereby authorized to sell hereunder
any evidence of debt it may hold as security for the Obligations. All demands
and presentments of any kind or nature are expressly WAIVED by Debtors. Debtors
WAIVE the right to require Secured Party to pursue any other remedy for the
benefit of Debtors and agree that Secured Party may proceed against any Debtor
for the amount of the Obligations owed to the Warehouse Lenders or the Warehouse
Agent without taking any action against any other Debtor or any other Person and
without selling or otherwise proceeding against or applying any of the
Collateral.
5.3 Application of Proceeds. Secured Party shall apply the proceeds
of any sale or other disposition of the collateral under this SECTION 5 in the
order and manner specified in SECTION 14.9 of the Warehouse Credit Agreement.
Any surplus remaining shall be delivered to the relevant Debtor or as a court of
competent jurisdiction may direct. If the proceeds are insufficient to pay the
Obligations in full, Debtors remain liable for any deficiency.
8
<PAGE> 331
SECTION 6. OTHER RIGHTS.
6.1 Performance. If Debtors fail to pay when due all Taxes on any of
the Collateral, or to preserve the priority of the Security Interest in any of
the Collateral, or to keep the Collateral insured as required by this Agreement,
or otherwise fail to perform any of their obligations under any Warehouse Loan
Documents or Collateral Papers with respect to the Collateral, then Secured
Party may, at its option, but without being required to do so, pay such Taxes,
prosecute or defend any suits in relation to the Collateral, or insure and keep
insured the Collateral in any amount deemed appropriate by Secured Party, or
take all other action which Debtors are required, but have failed or refused, to
take under the Warehouse Loan Documents or Collateral Papers. Any sum which may
be expended or paid by Secured Party under this Section (including, without
limitation, court costs and attorneys' fees) shall bear interest from the dates
of expenditure or payment at the Past Due Rate until paid and, together with
such interest, shall be payable by Debtors to Secured Party upon demand and is
part of the Obligations.
6.2 Collection.
(a) Actions. When Secured Party is entitled under SECTION 4.3
above to make collection on any Collateral, it may in its own name or in the
name of any Debtor (i) compromise or extend the time of payment with respect to
any Collateral for such amounts and upon such terms as Secured Party may
determine, (ii) demand, collect, receive, receipt for, sue for, compound, and
give acquittance for any and all amounts due or to become due with respect to
Collateral, (iii) take control of cash and other proceeds of any Collateral,
(iv) endorse any Debtor's name on any notes, acceptances, checks, drafts, money
orders, or other evidences of payment on Collateral that may come into Secured
Party's possession, (v) sign any Debtor's name on any invoice or bill of lading
relating to any Collateral, on any drafts against Obligors or other Persons
making payment with respect to Collateral, on assignments and verifications of
accounts or other Collateral and on notices to Obligors making payment with
respect to Collateral, (vi) send requests for verification or obligations to any
Obligor, (vii) do all other acts and things necessary to carry out the intent of
this Agreement, and (viii) authorize any Servicer in respect of any Collateral
to perform any one or more of the foregoing on Secured Party's behalf.
(b) If any Obligor fails or refuses to make payment on any
Collateral when due, Secured Party is authorized, in its sole discretion, either
in its name or in any Debtor's name, to take such action as Secured Party deems
appropriate for the collection of any amounts owed with respect to Collateral or
upon which a delinquency exists. Regardless of any other provision, however,
Secured Party is never liable for its failure to collect, or for its failure to
exercise diligence in the collection of, any amounts owed with respect to
Collateral and is not under any duty whatever to anyone except Debtors and the
Warehouse Lenders to account for funds that it actually receives. Without
limiting the generality of the foregoing, Secured Party has no responsibility
for ascertaining any maturities, calls, conversions, exchanges, offers, tenders,
or similar matters relating to any Collateral, or for informing Debtors with
respect to any of such matters (irrespective of whether Secured Party actually
has, or may be deemed to have, knowledge thereof). Secured Party's receipt
9
<PAGE> 332
to any Obligor is a full and complete release, discharge, and acquittance to
that Obligor, to the extent of any amount so paid to Secured Party.
6.3 Power of Attorney. Each Debtor irrevocably appoints Secured
Party, acting on behalf of Warehouse Lenders, as its attorney-in-fact (with full
power of substitution) for, on behalf, and in the name of such Debtor to (a)
endorse and deliver to any Person any check, instrument, or other document
received by Secured Party or any Lender that represents payment in respect of
any Collateral, (b) prepare, complete, execute, deliver, and record any
assignment of any mortgage, deed of trust, or trust deed securing any
Collateral, (c) endorse and deliver or otherwise transfer any promissory note
evidencing any Collateral and do every other thing necessary or desirable to
effect transfer of all or any Collateral, (d) take all necessary and appropriate
action with respect to any of the Obligations or any Collateral, (e) commence,
prosecute, settle, discontinue, defend, or otherwise dispose of any claim
relating to any Collateral, and (f) sign such Debtor's name wherever appropriate
to effect the performance of this Agreement and the Warehouse Credit Agreement.
This Section shall be liberally, not restrictively, construed to give the
greatest latitude to Secured Party's power as such Debtor's attorney-in-fact to
collect, sell and deliver any Collateral and all documents relating to it. The
powers and authorities conferred on Secured Party in this Section (w) are
discretionary and not obligatory on the part of Secured Party, (x) may be
exercised by Secured Party through any Person who, at the time of the execution
of particular documents, is an officer of Secured Party, (y) may not be
exercised by Secured Party unless a Default or an Event of Default exists, and
(z) is granted for a valuable consideration, coupled with an interest, and
irrevocable until, and all Persons dealing with Secured Party, any of its
officers acting under this Section, or any substitute are fully protected in
treating the powers and authorities conferred by this Section as existing and
continuing in full force and effect until advised by Secured Party that, all
commitments under the Warehouse Credit Agreement to extend credit have been
terminated or canceled and the Obligations are fully paid and performed.
SECTION 7. MISCELLANEOUS.
7.1 Miscellaneous. Because this Agreement is a "Warehouse Loan
Document" referred to in the Warehouse Credit Agreement, the provisions relating
to Warehouse Loan Documents in SECTIONS 1 and 17 of the Warehouse Credit
Agreement are incorporated into this Agreement by reference the same as if
included in this Agreement verbatim.
7.2 Term. This Agreement terminates upon full and indefeasible
payment and performance of the Obligations. No Obligor is ever obligated to make
inquiry of the termination but is fully protected in making any payments on the
Collateral directly to Secured Party.
7.3 Matters Not Relevant. The Security Interest, Debtors'
obligations, and Secured Party's and Warehouse Lenders' rights under this
Agreement are not released, diminished, impaired, or adversely affected by any
one or more of the following: (a) Secured Party's or any Lender's taking or
accepting any additional, or any release, surrender, exchange, subordination, or
loss of any other, guaranty, assurance, or security for any of the Obligations;
(b) any full or partial release of any
10
<PAGE> 333
other Person obligated on any of the Obligations; (c) the modification or
assignment of, or waiver of compliance with, any other Loan Document; (d) any
present or future insolvency, bankruptcy, or lack of corporate, partnership, or
trust power of any other Person obligated on any of the Obligations; (e) any
renewal, extension or rearrangement of any of the Obligations, or any
adjustment, indulgence, forbearance, or compromise granted to any Person
obligated on any of the Obligations; (f) any Person's neglect, delay, omission,
failure, or refusal to take or prosecute any action in connection with any of
the Obligations; (g) any existing or future right, claim or defense (other than
the defense of full and final payment of the Obligations) of any Debtor or any
other Person against Secured Party or any Lender; (h) the unenforceability of
any of the Obligations against any Person obligated or any part of the
Obligations because it exceeds the amount permitted by Law, the act of creating
it is ultra vires, or the officers, partners, or trustees creating it exceeded
their authority or violated their fiduciary duties, or otherwise; (i) any
payment of the Obligations is held to constitute a preference under any Debtor
Law or for any other reason Secured Party of any Lender is required to refund
any payment or make payment to another Person; or (j) any Person's failure to
notify any Debtor about the foregoing events or occurrences; and each Debtor
waives any notice of any kind under any circumstances whatsoever with respect to
this Agreement or any of the Obligations other than as specifically provided in
this Agreement.
7.4 Waivers. Except to the extent expressly otherwise provided in the
Warehouse Loan Documents, each Debtor waives (a) any right to require Secured
Party or any Lender to proceed against any other Person, to exhaust its rights
in the Collateral, or to pursue any other right which Secured Party or any
Lender may have, and (b) all rights of marshaling in respect of the Collateral.
7.5 Financing Statement. Secured Party may, at any time, file this
Agreement or a carbon photographic, or other reproduction of this Agreement as a
financing statement, but Secured Party's failure to do so does not impair the
validity or enforceability of this Agreement.
7.6 Parties. This Agreement binds and benefits Debtors, Secured Party
and each Warehouse Lender, and their respective successors and permitted
assigns. Only those Persons may rely or raise any defense about this Agreement.
(a) Assignments. Debtors may not assign any rights or
obligations under this Agreement without first obtaining the written consent
of Secured Party and all Warehouse Lenders. Secured Party's rights under this
Agreement may be assigned to any successor agent appointed under the Warehouse
Credit Agreement.
(b) Secured Party. Secured Party is the agent for each Warehouse
Lender. Secured Party may, without the joinder of any Warehouse Lender, exercise
any rights in favor of any of them under this Agreement. The rights of Secured
Party and Warehouse Lenders vis-a-vis each other may be subject to other
agreements between them. Neither Debtors nor their respective successors or
permitted assigns need to inquire about any such agreement or be subject to the
terms of it unless they join in it and, therefore, are not entitled to the
benefits of any such agreement or entitled to rely upon or raise as a defense
the failure of any party to comply with it.
11
<PAGE> 334
7.7 Entire Agreement. THIS AGREEMENT AND THE OTHER WAREHOUSE LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUSLY, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[The remainder of this page is intentionally blank.]
12
<PAGE> 335
EXECUTED as of the date first stated above.
MCA FINANCIAL CORP., TEXAS COMMERCE BANK NATIONAL
MCA MORTGAGE CORPORATION, ASSOCIATION, in its capacity as
MORTGAGE CORPORATION OF Warehouse Agent and
AMERICA, as Debtors as Secured Party
By: Lee P. Wells By: Pamela E. Skinner
------------------------------- ------------------------------
Name: LEE P. WELLS Name: PAMELA E. SKINNER
----------------------------- ----------------------------
Title: PRESIDENT Title: VICE PRESIDENT
---------------------------- ---------------------------
MORTGAGE CORPORATION OF
AMERICA, INC., as Debtor
By: Lee D. Wells
-------------------------------
Name: LEE D. WELLS
-----------------------------
Title: PRESIDENT
----------------------------
13
<PAGE> 336
SCHEDULE I TO WAREHOUSE SECURITY AGREEMENT
PLACE OF BUSINESS, TRADE NAMES AND FORMER NAMES
OF BORROWERS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
STILL USING
STATE OF STATES QUALIFIED TRADE NAME?
NAME AND TAXPAYER I.D. OWNERSHIP INCORPORATION AS FOREIGN CORP. NAMES USED Y/N
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
MCA Financial Corporation Approximately 523,283 shares Michigan None None No
38-3014001 owned by various individuals and
entities disclosed to the Warehouse
Agent on a separate schedule
- -----------------------------------------------------------------------------------------------------------------------------------
MCA Mortgage Corporation MCA Financial Corp. Michigan See attached list None No
38-2613174
- -----------------------------------------------------------------------------------------------------------------------------------
Mortgage Corporation of MCA Financial Corp. Michigan Indiana, Ohio None No
America
38-2509529
- -----------------------------------------------------------------------------------------------------------------------------------
Mortgage Corporation of Mortgage Corporation of America Ohio None None No
America, Inc.
37-1371271
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------
OTHER
CHIEF EXECUTIVE PRINCIPAL
NAME AND TAXPAYER I.D. OFFICE OFFICES
- ------------------------------------------------------------------
<S> <C> <C>
MCA Financial Corporation 23999 Northwestern Hwy. None
38-3014001 Southfield, MI 48075
- ------------------------------------------------------------------
MCA Mortgage Corporation 23999 Northwestern Hwy. None
38-2613174 Southfield, MI 48075
- ------------------------------------------------------------------
Mortgage Corporation of 23999 Northwestern Hwy. None
America Southfield, MI 48075
38-2509529
- ------------------------------------------------------------------
Mortgage Corporation of 23999 Northwestern Hwy. None
America, Inc. Southfield, MI 48075
37-1371271
- ------------------------------------------------------------------
</TABLE>
1
<PAGE> 337
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
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
<PAGE> 338
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
<S> <C>
DEBTOR'S NAME AND MAILING ADDRESS: MCA Financial Corp.
23999 Northwestern Highway, Suite 230
Southfield, MI 48075
FED. TAX ID NO. 38-3014001
- ----------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING Texas Commerce Bank National Association, as
ADDRESS: Warehouse Agent(1)
712 Main Street
Houston, TX 77002
FED. TAX ID NO. 74-0800980
- ----------------------------------------------------------------------------------
FOR FILING OFFICER:
- ----------------------------------------------------------------------------------
</TABLE>
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE
BY DEBTOR (THE "COLLATERAL"):
- Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Second Mortgage Loans from time to time identified to Secured
Party as Collateral.
- Construction Loans from time to time identified to Secured Party
as Collateral.
- Land Contracts from time to time identified to Secured Party as
Collateral.
- All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust,
or trust deeds securing, those Mortgage Loans, Second Mortgage
Loans or Construction Loans, and all Land Contracts, whether
deposited with or held by or for Secured Party identified by
Debtor (or another Company) as Collateral for a Wet Borrowing, or
otherwise.
- Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all
commitments issued by FHA to insure or issued by VA to guarantee,
any Mortgage Loans or Construction Loans identified as
Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- ----------------
(1) Secured Party is serving as Warehouse Agent under the
Warehouse Credit Agreement, and the security interest
evidenced by this financing statement, as amended from time
to time, is granted to Secured Party in that capacity and as
secured party on behalf of all of the Warehouse Lenders,
including Texas Commerce, Residential Funding Corporation,
Guaranty Federal Bank, F.S.B., Bank One, Texas, N.A., The
Bank of New York and LaSalle National Bank
<PAGE> 339
- Casualty insurance assigned to Debtor in connection with any
Mortgage Collateral identified as Collateral.
- Mortgage Securities deposited with or held by or for Secured
Party under the Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Warehouse Loan Documents.
- Guaranties related to Mortgage Securities identified as
Collateral.
- Take-out Commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities,
as the case may be, to the investors or other purchasers under
those Take-out Commitments, and all proceeds resulting from the
sale of any of those Mortgage Loans, Construction Loans, Second
Mortgage Loans or Mortgage Securities under those Take-out
Commitments.
- Any Collateral otherwise described in the security agreement to
which this financing statement relates that may from time to time
be delivered (a) to an investor (or its custodian or other
designee) under Section 4.1 of the Custody Agreement until
purchased and paid for by that investor or (b) to a Company for
correction or servicing under Section 4.2 of the Custody
Agreement.
- The Warehouse Note Payment/Funding Account, all other accounts
that Debtor maintains with Secured Party, Warehouse Agent, or any
Lender, and all amounts deposited in them or represented by them.
- Personal property, contract rights, accounts, and general
intangibles of any kind whatsoever relating to any Collateral.
- All files, surveys, certificates, correspondence, appraisals,
tapes, discs, cards, accounting records, and other information
and data of Debtor relating to any Collateral, including, without
limitation, all information, data, tapes, discs, and cards
necessary to administer and service any Collateral.
- Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
MCA FINANCIAL CORP. TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Warehouse Agent for
Warehouse Lenders
By Keith D. Pietila By Pamela E. Skinner
-------------------------------- ------------------------------------
(Name) KEITH D. PIETILA (Name) PAMELA E. SKINNER
-------------------------------- --------------------------------
(Title) EVP (Title) VICE PRESIDENT
--------------------------- -------------------------------
<PAGE> 340
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
MCA FINANCIAL CORP., AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS WAREHOUSE COLLATERAL AGENT, AS SECURED PARTY
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CREDIT AGREEMENT" means the 10/97 Senior Secured Warehouse Credit
Agreement dated as of October __, 1997 among the Companies, Texas Commerce Bank
National Association, as a Warehouse Lender and as agent for the other
Warehouse Lenders, and the other Warehouse Lenders.
"CUSTODY AGREEMENT" means the Custody Agreement dated as of October __,
1997 between the Companies and the Custodian, as it may be supplemented,
amended or restated from time to time. By this reference, the Custody
Agreement is incorporated into this Agreement; provided that, in interpreting
this Agreement or any of the other Warehouse Loan Documents except the Custody
Agreement itself, definitions of terms in this Agreement will control over any
inconsistent definitions in the Custody Agreement.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed to
sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"OBLIGATIONS" means the principal of and interest on the Warehouse
Revolving Loans, and, without duplication, all other indebtedness, obligations
and liabilities of the Borrowers to the Warehouse Lenders and the Warehouse
Agent under or arising out of or in connection with this Agreement or any other
Warehouse 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
1
<PAGE> 341
Agreement and the other Warehouse Loan Documents by the Borrowers and also
includes amounts that would become due but for operation of 11 U.S.C. Sections
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 Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"VA" means the U.S. Department of Veterans Affairs.
"WAREHOUSE LOAN DOCUMENTS" means (a) the Credit Agreement, certificates
and reports delivered under the Credit Agreement, and exhibits and schedules to
the Credit Agreement, (b) all agreements, documents, and instruments in favor
of the Warehouse Agent, the Custodian or the Warehouse Lenders (or the
Warehouse Agent or Custodian on behalf of the Warehouse Lenders) ever delivered
under this Agreement or otherwise delivered in connection with any of the
Obligations and (c) all renewals, extensions, and restatements of, and
amendments and supplements to, any of the foregoing.
"WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers' non-interest
bearing demand checking account no. 0010-________ to be maintained with Texas
Commerce.
"WAREHOUSE REVOLVING LOAN" means and includes (i) a loan made by the
Warehouse Lenders and (ii) a Swing Loan made by Texas Commerce, and disbursed
by the Warehouse Agent to the Borrowers under SECTION 3.1 or 4.1 of the Credit
Agreement, respectively, on a Disbursement Date.
2
<PAGE> 342
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
<S> <C>
DEBTOR'S NAME AND MAILING ADDRESS: MCA Mortgage Corporation
23999 Northwestern Highway, Suite 230
Southfield, MI 48075
FED. TAX ID NO. 38-2613174
- ----------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING Texas Commerce Bank National Association, as
ADDRESS: Warehouse Agent(1)
712 Main Street
Houston, TX 77002
FED. TAX ID NO. 74-0800980
- ----------------------------------------------------------------------------------
FOR FILING OFFICER:
- ----------------------------------------------------------------------------------
</TABLE>
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE
BY DEBTOR (THE "COLLATERAL"):
- Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Second Mortgage Loans from time to time identified to Secured
Party as Collateral.
- Construction Loans from time to time identified to Secured Party
as Collateral.
- Land Contracts from time to time identified to Secured Party as
Collateral.
- All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust,
or trust deeds securing, those Mortgage Loans, Second Mortgage
Loans or Construction Loans, and all Land Contracts, whether
deposited with or held by or for Secured Party identified by
Debtor (or another Company) as Collateral for a Wet Borrowing, or
otherwise.
- Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all
commitments issued by FHA to insure or issued by VA to guarantee,
any Mortgage Loans or Construction Loans identified as
Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- ----------------
(2) Secured Party is serving as Warehouse Agent under the
Credit Agreement, and the security interest
evidenced by this financing statement, as amended from time
to time, is granted to Secured Party in that capacity and as
secured party on behalf of all of the Warehouse Lenders,
including Texas Commerce, Residential Funding Corporation,
Guaranty Federal Bank, F.S.B., Bank One, Texas, N.A., The
Bank of New York and LaSalle National Bank
<PAGE> 343
- Casualty insurance assigned to Debtor in connection with any
Mortgage Collateral identified as Collateral.
- Mortgage Securities deposited with or held by or for Secured
Party under the Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Warehouse Loan Documents.
- Guaranties related to Mortgage Securities identified as
Collateral.
- Take-out Commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities,
as the case may be, to the investors or other purchasers under
those Take-out Commitments, and all proceeds resulting from the
sale of any of those Mortgage Loans, Construction Loans, Second
Mortgage Loans or Mortgage Securities under those Take-out
Commitments.
- Any Collateral otherwise described in the security agreement to
which this financing statement relates that may from time to time
be delivered (a) to an investor (or its custodian or other
designee) under Section 4.1 of the Custody Agreement until
purchased and paid for by that investor or (b) to a Company for
correction or servicing under Section 4.2 of the Custody
Agreement.
- The Warehouse Note Payment/Funding Account, all other accounts
that Debtor maintains with Secured Party, Warehouse Agent, or any
Lender, and all amounts deposited in them or represented by them.
- Personal property, contract rights, accounts, and general
intangibles of any kind whatsoever relating to any Collateral.
- All files, surveys, certificates, correspondence, appraisals,
tapes, discs, cards, accounting records, and other information
and data of Debtor relating to any Collateral, including, without
limitation, all information, data, tapes, discs, and cards
necessary to administer and service any Collateral.
- Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
MCA FINANCIAL CORP. TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Warehouse Agent for
Warehouse Lenders
By Lee P. Wells By Pamela E. Skinner
-------------------------------- ------------------------------------
(Name) LEE P. WELLS (Name) PAMELA E. SKINNER
-------------------------------- --------------------------------
(Title) PRESIDENT (Title) VICE PRESIDENT
--------------------------- -------------------------------
<PAGE> 344
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
MCA MORTGAGE CORPORATION, AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS WAREHOUSE COLLATERAL AGENT, AS SECURED PARTY
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CREDIT AGREEMENT" means the 10/97 Senior Secured Warehouse Credit
Agreement dated as of October 31, 1997 among the Companies, Texas Commerce Bank
National Association, as a Warehouse Lender and as agent for the other
Warehouse Lenders, and the other Warehouse Lenders.
"CUSTODY AGREEMENT" means the Custody Agreement dated as of October 31,
1997 between the Companies and the Custodian, as it may be supplemented,
amended or restated from time to time. By this reference, the Custody
Agreement is incorporated into this Agreement; provided that, in interpreting
this Agreement or any of the other Warehouse Loan Documents except the Custody
Agreement itself, definitions of terms in this Agreement will control over any
inconsistent definitions in the Custody Agreement.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed to
sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"OBLIGATIONS" means the principal of and interest on the Warehouse
Revolving Loans, and, without duplication, all other indebtedness, obligations
and liabilities of the Borrowers to the Warehouse Lenders and the Warehouse
Agent under or arising out of or in connection with this Agreement or any other
Warehouse 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
1
<PAGE> 345
Agreement and the other Warehouse Loan Documents by the Borrowers and also
includes amounts that would become due but for operation of 11 U.S.C. Sections
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 Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"VA" means the U.S. Department of Veterans Affairs.
"WAREHOUSE LOAN DOCUMENTS" means (a) the Credit Agreement, certificates
and reports delivered under the Credit Agreement, and exhibits and schedules to
the Credit Agreement, (b) all agreements, documents, and instruments in favor
of the Warehouse Agent, the Custodian or the Warehouse Lenders (or the
Warehouse Agent or Custodian on behalf of the Warehouse Lenders) ever delivered
under this Agreement or otherwise delivered in connection with any of the
Obligations and (c) all renewals, extensions, and restatements of, and
amendments and supplements to, any of the foregoing.
"WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers' non-interest
bearing demand checking account no. 0010-0380287 to be maintained with Texas
Commerce.
"WAREHOUSE REVOLVING LOAN" means and includes (i) a loan made by the
Warehouse Lenders and (ii) a Swing Loan made by Texas Commerce, and disbursed
by the Warehouse Agent to the Borrowers under SECTION 3.1 or 4.1 of the Credit
Agreement, respectively, on a Disbursement Date.
2
<PAGE> 346
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
<S> <C>
DEBTOR'S NAME AND MAILING ADDRESS: Mortgage Corporation of America
23999 Northwestern Highway, Suite 230
Southfield, MI 48075
FED. TAX ID NO. 38-2509529
- ----------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING Texas Commerce Bank National Association, as
ADDRESS: Warehouse Agent(3)
712 Main Street
Houston, TX 77002
FED. TAX ID NO. 74-0800980
- ----------------------------------------------------------------------------------
FOR FILING OFFICER:
- ----------------------------------------------------------------------------------
</TABLE>
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE
BY DEBTOR (THE "COLLATERAL"):
- Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Second Mortgage Loans from time to time identified to Secured
Party as Collateral.
- Construction Loans from time to time identified to Secured Party
as Collateral.
- Land Contracts from time to time identified to Secured Party as
Collateral.
- All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust,
or trust deeds securing, those Mortgage Loans, Second Mortgage
Loans or Construction Loans, and all Land Contracts, whether
deposited with or held by or for Secured Party identified by
Debtor (or another Company) as Collateral for a Wet Borrowing, or
otherwise.
- Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all
commitments issued by FHA to insure or issued by VA to guarantee,
any Mortgage Loans or Construction Loans identified as
Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- ----------------
(3) Secured Party is serving as Warehouse Agent under the
Credit Agreement, and the security interest
evidenced by this financing statement, as amended from time
to time, is granted to Secured Party in that capacity and as
secured party on behalf of all of the Warehouse Lenders,
including Texas Commerce, Residential Funding Corporation,
Guaranty Federal Bank, F.S.B., Bank One, Texas, N.A., The
Bank of New York and LaSalle National Bank
<PAGE> 347
- Casualty insurance assigned to Debtor in connection with any
Mortgage Collateral identified as Collateral.
- Mortgage Securities deposited with or held by or for Secured
Party under the Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Warehouse Loan Documents.
- Guaranties related to Mortgage Securities identified as
Collateral.
- Take-out Commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities,
as the case may be, to the investors or other purchasers under
those Take-out Commitments, and all proceeds resulting from the
sale of any of those Mortgage Loans, Construction Loans, Second
Mortgage Loans or Mortgage Securities under those Take-out
Commitments.
- Any Collateral otherwise described in the security agreement to
which this financing statement relates that may from time to time
be delivered (a) to an investor (or its custodian or other
designee) under Section 3.1 of the Custody Agreement until
purchased and paid for by that investor or (b) to a Company for
correction or servicing under Section 3.2 of the Custody
Agreement.
- The Warehouse Note Payment/Funding Account, all other accounts
that Debtor maintains with Secured Party, Warehouse Agent, or any
Lender, and all amounts deposited in them or represented by them.
- Personal property, contract rights, accounts, and general
intangibles of any kind whatsoever relating to any Collateral.
- All files, surveys, certificates, correspondence, appraisals,
tapes, discs, cards, accounting records, and other information
and data of Debtor relating to any Collateral, including, without
limitation, all information, data, tapes, discs, and cards
necessary to administer and service any Collateral.
- Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
MCA FINANCIAL CORP. TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Warehouse Agent for
Warehouse Lenders
By Keith D. Pietila By Pamela E. Skinner
-------------------------------- ------------------------------------
(Name) KEITH D. PIETILA (Name) PAMELA E. SKINNER
-------------------------------- --------------------------------
(Title) VP (Title) VICE PRESIDENT
--------------------------- -------------------------------
<PAGE> 348
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
MORTGAGE CORPORATION OF AMERICA, AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS WAREHOUSE COLLATERAL AGENT, AS SECURED PARTY
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CREDIT AGREEMENT" means the 10/97 Senior Secured Warehouse Credit
Agreement dated as of October __, 1997 among the Companies, Texas Commerce Bank
National Association, as a Warehouse Lender and as agent for the other
Warehouse Lenders, and the other Warehouse Lenders.
"CUSTODY AGREEMENT" means the Custody Agreement dated as of October __,
1997 between the Companies and the Custodian, as it may be supplemented,
amended or restated from time to time. By this reference, the Custody
Agreement is incorporated into this Agreement; provided that, in interpreting
this Agreement or any of the other Warehouse Loan Documents except the Custody
Agreement itself, definitions of terms in this Agreement will control over any
inconsistent definitions in the Custody Agreement.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed to
sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"OBLIGATIONS" means the principal of and interest on the Warehouse
Revolving Loans, and, without duplication, all other indebtedness, obligations
and liabilities of the Borrowers to the Warehouse Lenders and the Warehouse
Agent under or arising out of or in connection with this Agreement or any other
Warehouse 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
1
<PAGE> 349
Agreement and the other Warehouse Loan Documents by the Borrowers and also
includes amounts that would become due but for operation of 11 U.S.C. Sections
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 Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"VA" means the U.S. Department of Veterans Affairs.
"WAREHOUSE LOAN DOCUMENTS" means (a) the Credit Agreement, certificates
and reports delivered under the Credit Agreement, and exhibits and schedules to
the Credit Agreement, (b) all agreements, documents, and instruments in favor
of the Warehouse Agent, the Custodian or the Warehouse Lenders (or the
Warehouse Agent or Custodian on behalf of the Warehouse Lenders) ever delivered
under this Agreement or otherwise delivered in connection with any of the
Obligations and (c) all renewals, extensions, and restatements of, and
amendments and supplements to, any of the foregoing.
"WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers' non-interest
bearing demand checking account no. 0010-________ to be maintained with Texas
Commerce.
"WAREHOUSE REVOLVING LOAN" means and includes (i) a loan made by the
Warehouse Lenders and (ii) a Swing Loan made by Texas Commerce, and disbursed
by the Warehouse Agent to the Borrowers under SECTION 3.1 or 4.1 of the Credit
Agreement, respectively, on a Disbursement Date.
2
<PAGE> 350
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
<S> <C>
DEBTOR'S NAME AND MAILING ADDRESS: MCA Mortgage Corporation
23999 Northwestern Highway, Suite 230
Southfield, MI 48075
FED. TAX ID NO. 37-1371271
- ----------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING Texas Commerce Bank National Association, as
ADDRESS: Warehouse Agent(4)
712 Main Street
Houston, TX 77002
FED. TAX ID NO. 74-0800980
- ----------------------------------------------------------------------------------
FOR FILING OFFICER:
- ----------------------------------------------------------------------------------
</TABLE>
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE
BY DEBTOR (THE "COLLATERAL"):
- Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Second Mortgage Loans from time to time identified to Secured
Party as Collateral.
- Construction Loans from time to time identified to Secured Party
as Collateral.
- Land Contracts from time to time identified to Secured Party as
Collateral.
- All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust,
or trust deeds securing, those Mortgage Loans, Second Mortgage
Loans or Construction Loans, and all Land Contracts, whether
deposited with or held by or for Secured Party identified by
Debtor (or another Company) as Collateral for a Wet Borrowing, or
otherwise.
- Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all
commitments issued by FHA to insure or issued by VA to guarantee,
any Mortgage Loans or Construction Loans identified as
Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- ----------------
(4) Secured Party is serving as Warehouse Agent under the
Credit Agreement, and the security interest
evidenced by this financing statement, as amended from time
to time, is granted to Secured Party in that capacity and as
secured party on behalf of all of the Warehouse Lenders,
including Texas Commerce, Residential Funding Corporation,
Guaranty Federal Bank, F.S.B., Bank One, Texas, N.A., The
Bank of New York and LaSalle National Bank
<PAGE> 351
- Casualty insurance assigned to Debtor in connection with any
Mortgage Collateral identified as Collateral.
- Mortgage Securities deposited with or held by or for Secured
Party under the Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Warehouse Loan Documents.
- Guaranties related to Mortgage Securities identified as
Collateral.
- Take-out Commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities,
as the case may be, to the investors or other purchasers under
those Take-out Commitments, and all proceeds resulting from the
sale of any of those Mortgage Loans, Construction Loans, Second
Mortgage Loans or Mortgage Securities under those Take-out
Commitments.
- Any Collateral otherwise described in the security agreement to
which this financing statement relates that may from time to time
be delivered (a) to an investor (or its custodian or other
designee) under Section 3.1 of the Custody Agreement until
purchased and paid for by that investor or (b) to a Company for
correction or servicing under Section 3.2 of the Custody
Agreement.
- The Warehouse Note Payment/Funding Account, all other accounts
that Debtor maintains with Secured Party, Warehouse Agent, or any
Lender, and all amounts deposited in them or represented by them.
- Personal property, contract rights, accounts, and general
intangibles of any kind whatsoever relating to any Collateral.
- All files, surveys, certificates, correspondence, appraisals,
tapes, discs, cards, accounting records, and other information
and data of Debtor relating to any Collateral, including, without
limitation, all information, data, tapes, discs, and cards
necessary to administer and service any Collateral.
- Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
MORTGAGE CORPORATION OF TEXAS COMMERCE BANK NATIONAL
AMERICA, INC. ASSOCIATION, as Warehouse Agent for
Warehouse Lenders
By D. Michael Jehle By Pamela E. Skinner
-------------------------------- ------------------------------------
(Name) D. MICHAEL JEHLE (Name) PAMELA E. SKINNER
-------------------------------- --------------------------------
(Title) EXEC. VICE PRESIDENT (Title) VICE PRESIDENT
--------------------------- -------------------------------
<PAGE> 352
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
MORTGAGE CORPORATION OF AMERICA, INC., AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS WAREHOUSE COLLATERAL AGENT, AS SECURED PARTY
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CREDIT AGREEMENT" means the 10/97 Senior Secured Warehouse Credit
Agreement dated as of October 31, 1997 among the Companies, Texas Commerce Bank
National Association, as a Warehouse Lender and as agent for the other
Warehouse Lenders, and the other Warehouse Lenders.
"CUSTODY AGREEMENT" means the Custody Agreement dated as of October 31,
1997 between the Companies and the Custodian, as it may be supplemented,
amended or restated from time to time. By this reference, the Custody
Agreement is incorporated into this Agreement; provided that, in interpreting
this Agreement or any of the other Warehouse Loan Documents except the Custody
Agreement itself, definitions of terms in this Agreement will control over any
inconsistent definitions in the Custody Agreement.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed to
sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"OBLIGATIONS" means the principal of and interest on the Warehouse
Revolving Loans, and, without duplication, all other indebtedness, obligations
and liabilities of the Borrowers to the Warehouse Lenders and the Warehouse
Agent under or arising out of or in connection with this Agreement or any other
Warehouse 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
1
<PAGE> 353
Agreement and the other Warehouse Loan Documents by the Borrowers and also
includes amounts that would become due but for operation of 11 U.S.C. Sections
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 Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"VA" means the U.S. Department of Veterans Affairs.
"WAREHOUSE LOAN DOCUMENTS" means (a) the Credit Agreement, certificates
and reports delivered under the Credit Agreement, and exhibits and schedules to
the Credit Agreement, (b) all agreements, documents, and instruments in favor
of the Warehouse Agent, the Custodian or the Warehouse Lenders (or the
Warehouse Agent or Custodian on behalf of the Warehouse Lenders) ever delivered
under this Agreement or otherwise delivered in connection with any of the
Obligations and (c) all renewals, extensions and reinstatements of, and
amendments and supplements to, any of the foregoing.
"WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers' non-interest
bearing demand checking account no. 0010-0380287 to be maintained with Texas
Commerce.
"WAREHOUSE REVOLVING LOAN" means and includes (i) a loan made by the
Warehouse Lenders and (ii) a Swing Loan made by Texas Commerce, and disbursed
by the Warehouse Agent to the Borrowers under SECTION 3.1 or 4.1 of the Credit
Agreement, respectively, on a Disbursement Date.
2
<PAGE> 354
DISBURSEMENT REQUEST CERTIFICATE
(to refinance Eligible Seasoned Warehouse Collateral)
================================================================================
This certificate is delivered pursuant to SECTION 4.1 of the 10/97 Senior
Secured Seasoned Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders.
Terms defined in the Warehouse Credit Agreement have the same meaning when used,
unless otherwise defined, in this certificate.
I certify to Seasoned Warehouse Agent and Seasoned Warehouse Lenders that
on the date of this certificate:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. The proceeds of the requested Revolving Loan are to be used to
refinance Debt secured by Eligible Seasoned Warehouse Collateral currently held
by Texas Commerce, who will assign to the Seasoned Warehouse Agent (as agent and
Representative of the Seasoned Warehouse Lenders) its security interest in all
collateral for such existing Debt being refinanced and, upon disbursement of
such proceeds to Texas Commerce, a Company will own good and marketable title to
such Collateral, free and clear of any lien, pledge, charge or interest of any
party other than the Seasoned Warehouse Agent (as agent and Representative of
the Seasoned Warehouse Lenders).
3. All of the Collateral in which the Seasoned Warehouse Agent (as agent
and Representative of the Seasoned Warehouse Lenders), by disbursing such
refinancing Seasoned Warehouse Revolving Loan, will acquire a security interest
shall be Eligible Seasoned Warehouse Collateral.
4. All of the Collateral to be so refinanced by the proposed Seasoned
Warehouse Revolving Loan shall be Pledged to the Seasoned Warehouse Agent as
Collateral, and to no other Person, and shall be subject to the Warehouse Credit
Agreement and the Seasoned Warehouse Security Agreement, and the Seasoned
Warehouse Agent, as agent and Representative of the Lenders, will thereby
acquire and have a first and prior perfected security interest therein.
5. No Default or Event of Default has occurred and is continuing.
<PAGE> 355
6. The warranties and representations set forth in SECTION 10 of the
Warehouse Credit Agreement and SECTION 3 of the Seasoned Warehouse Security
Agreement are true and correct on and as of the date hereof.
By Lee P. Wells
---------------------
(Name) LEE P. WELLS
------------------
(1) (Title) PRESIDENT
-------------
(Date) 11/5/97
------------------
- ---------------------
(1) Must be a Responsible Officer of all four Companies.
2
<PAGE> 356
<TABLE>
<S><C>
UNIFORM COMMERCIAL CODE REORDER FROM
STATEMENTS OF CONTINUATION, PARTIAL RELEASE, ASSIGNMENT, ETC. - FORM UCC-3 REGISTRE, INC.
514 PIERCE ST.
P.O. BOX 218
ANOKA, MN 55303
(612) 421-1713
INSTRUCTIONS:
1. PLEASE TYPE this form. Fold only along perforation for mailing.
2. Remove Secured Party and Debtor copies and send other 3 copies with
interleaved carbon paper to the filing officer.
3. Enclose filing fee.
4. If the space provided for any item(s) on the form is inadequate the item(s)
should be continued on additional sheets, preferably 5" x 8" or 8" x 10".
Only one copy of such additional sheets need be presented to the filing
officer with a set of three copies of Form UCC-3. Long schedules of
collateral, etc., may be on any size paper that is convenient for the
secured party.
5. At the time of filing, filing officer will return third copy as an
acknowledgement.
- ------------------------------------------------------------------------------------------------------------------------------------
For Filing Officer
(Date, Time, Number,
This STATEMENT is presented to THE FILING OFFICER for filing pursuant to the Uniform Commercial Code: and Filing Office)
- --------------------------------------------------------------------------------------------------------
DEBTOR(S) (LAST NAME FIRST) AND ADDRESS(ES) SECURED PARTY(IES) AND ADDRESS(ES)
MCA Financial Corp. Texas Commerce Bank National
23999 Northwestern Highway Association, as Collateral Agent
Suite 230 712 Main Street
Southfield, MI 48075 Houston, TX 77002
- --------------------------------------------------------------------------------------------------------
This Statement refers to original Financing Statement No. 3604922
-----------------------------------------------
Date filed: October 29, 1996 Filed with Secretary of State
---------- -- ----------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
A. [ ] CONTINUATION........ The original financing statement between the
foregoing Debtor and Secured Party, bearing the
file number shown above, is still effective.
B. [ ] PARTIAL RELEASE..... From the collateral described in the financing
statement bearing the file number shown above,
the Secured Party releases the property indicated
below.
C. [X] ASSIGNMENT.......... The Secured Party certifies that the Secured Party
has assigned to the Assignee whose name and
address is shown below, Secured Party's rights
under the financing statement bearing the file
number shown above in the property indicated below.
D. [ ] TERMINATION......... The Secured Party certifies that the Secured Party
no longer claims a security interest under the
financing statement bearing the file number shown
above.
E. [ ] AMENDMENT........... The financing statement bearing the above file
number is amended.
[ ] To show the Secured Party's new address as
indicated below;
[ ] To show the Debtor's new address as indicated
below;
[ ] As set forth below:
- --------------------------------------------------------------------------------
See Exhibit A attached hereto.
- --------------------------------------------------------------------------------
TEXAS COMMERCE BANK NATIONAL (Secured
__________________________________(Debtor) ASSOCIATION, as Collateral Agent Party)
(Signature of Debtor, if required)
Dated: _________________________, 19__ By: [SIG]
-------------------------------------
(Signature of Secured Party)
</TABLE>
FILING OFFICER-ALPHABETICAL
THIS FORM OF FINANCING STATEMENT IS APPROVED BY THE SECRETARY OF STATE.
STANDARD FORM-UNIFORM COMMERCIAL CODE-FORM UCC-3 REV. 7-74
<PAGE> 357
EXHIBIT A TO FINANCING STATEMENT FROM
MCA FINANCIAL CORP., AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
AS COLLATERAL AGENT, AS SECURED PARTY
Texas Commerce Bank National Association, as agent and representative of
Warehouse Lenders under the 10/97 Senior Secured Warehouse Credit Agreement, as
amended from time to time, including itself, Residential Funding Corporation,
Guaranty Federal Bank, F.S.B., Bank One, Texas, N.A., The Bank of New York and
LaSalle National Bank
712 Main Street
Houston, TX 77002
<PAGE> 358
<TABLE>
<S><C>
UNIFORM COMMERCIAL CODE REORDER FROM
STATEMENTS OF CONTINUATION, PARTIAL RELEASE, ASSIGNMENT, ETC. -- FORM UCC-3 REGISTRE, INC.
514 PIERCE ST.
P.O. BOX 218
ANOKA, MN 55303
(612) 421-1713
INSTRUCTIONS:
1. PLEASE TYPE this form. Fold only along perforation for mailing.
2. Remove Secured Party and Debtor copies and send other 3 copies with
interleaved carbon paper to the filing officer.
3. Enclose filing fee.
4. If the space provided for any item(s) on the form is inadequate the
item(s) should be continued on additional sheets, preferably 5" x 8" or 8"
x 10". Only one copy of such additional sheets need be presented to the
filing officer with a set of three copies of Form UCC-3. Long schedules of
collateral, etc., may be on any size paper that is convenient for the
secured party.
5. At the time of filing, filing officer will return third copy as an
acknowledgment.
- ------------------------------------------------------------------------------------------------------------------------------------
For Filing Officer
(Date, Time, Number,
This STATEMENT is presented to THE FILING OFFICER for filing pursuant to the Uniform Commercial Code: and Filing Office)
- ----------------------------------------------------------------------------------------------------------
Debtor(s) (Last Name First) and address(es) Secured Party(ies) and address(es)
Mortgage Corporation of Texas Commerce Bank National
America Association, as Collateral Agent
23999 Northwestern Highway 712 Main Street
Suite 230 Houston, TX 77002
Southfield, MI 48075
- ----------------------------------------------------------------------------------------------------------
This Statement refers to original Financing Statement No. 3604923
------------------------------------------------
Date filed: October 29, 1996 Filed with Secretary of State
---------- -- ----------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
A. [ ] CONTINUATION..... The original financing statement between the foregoing Debtor and Secured Party, bearing the file number
shown above, is still effective.
B. [ ] PARTIAL RELEASE.. From the collateral described in the financing statement bearing the file number shown above, the Secured
Party releases the property indicated below.
C. [X] ASSIGNMENT....... The Secured Party certifies that the Secured Party has assigned to the Assignee whose name and address is
shown below, Secured Party's rights under the financing statement bearing the file number shown above in
the property indicated below.
D. [ ] TERMINATION...... The Secured Party certifies that the Secured Party no longer claims a security interest under the
financing statement bearing the file number shown above.
E. [ ] AMENDMENT........ The financing statement bearing the above file number is amended.
[ ] To show the Secured Party's new address as indicated below;
[ ] To show the Debtor's new address as indicated below;
[ ] As set forth below:
- ------------------------------------------------------------------------------------------------------------------------------------
See Exhibit A attached hereto.
- ------------------------------------------------------------------------------------------------------------------------------------
TEXAS COMMERCE BANK NATIONAL
- ------------------------------------------------(Debtor) ASSOCIATION, as Collateral Agent (Secured)
(Signature of Debtor, if required) -------------------------------- Party)
Dated: 19 By: [SIG]
-----------------------------------, --------- -------------------------------------
(Signature of Secured Party)
FILING OFFICER-ALPHABETICAL
THIS FORM OF FINANCING STATEMENT IS APPROVED BY THE SECRETARY OF STATE.
STANDARD FORM-UNIFORM COMMERCIAL CODE-FORM UCC-3 REV. 7-74
</TABLE>
<PAGE> 359
EXHIBIT A TO FINANCING STATEMENT FROM
MORTGAGE CORPORATION OF AMERICA, AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
AS COLLATERAL AGENT, AS SECURED PARTY
Texas Commerce Bank National Association, as agent and representative of
Warehouse Lenders under the 10/97 Senior Secured Warehouse Credit Agreement, as
amended from time to time, including itself, Residential Funding Corporation,
Guaranty Federal Bank, F.S.B., Bank One, Texas, N.A, The Bank of New York and
LaSalle National Bank
712 Main Street
Houston, TX 77002
<PAGE> 360
<TABLE>
<S><C>
UNIFORM COMMERCIAL CODE REORDER FROM
STATEMENTS OF CONTINUATION, PARTIAL RELEASE, ASSIGNMENT, ETC. -- FORM UCC-3 REGISTRE, INC.
514 PIERCE ST.
P.O. BOX 218
ANOKA, MN 55303
(612) 421-1713
INSTRUCTIONS:
1. PLEASE TYPE this form. Fold only along perforation for mailing.
2. Remove Secured Party and Debtor copies and send other 3 copies with
interleaved carbon paper to the filing officer.
3. Enclose filing fee.
4. If the space provided for any item(s) on the form is inadequate the
item(s) should be continued on additional sheets, preferably 5" x 8" or 8" x
10". Only one copy of such additional sheets need be presented to the
filing officer with a set of three copies of Form UCC-3. Long schedules of
collateral, etc., may be on any size paper that is convenient for the
secured party.
5. At the time of filing, filing officer will return third copy as an
acknowledgment.
- ------------------------------------------------------------------------------------------------------------------------------------
For Filing Officer
(Date, Time, Number,
This STATEMENT is presented to THE FILING OFFICER for filing pursuant to the Uniform Commercial Code: and Filing Office)
- ----------------------------------------------------------------------------------------------------------
Debtor(s) (Last Name First) and address(es) Secured Party(ies) and address(es)
Mortgage Corporation of Texas Commerce Bank National
America , Inc. Association, as Collateral Agent
23999 Northwestern Highway 712 Main Street
Suite 230 Houston, TX 77002
Southfield, MI 48075
- ----------------------------------------------------------------------------------------------------------
This Statement refers to original Financing Statement No. 3604876
------------------------------------------------
Date filed: October 29, 1996 Filed with Secretary of State
---------- -- ----------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
A. [ ] CONTINUATION..... The original financing statement between the foregoing Debtor and Secured Party, bearing the file number
shown above, is still effective.
B. [ ] PARTIAL RELEASE.. From the collateral described in the financing statement bearing the file number shown above, the Secured
Party releases the property indicated below.
C. [X] ASSIGNMENT....... The Secured Party certifies that the Secured Party has assigned to the Assignee whose name and address is
shown below, Secured Party's rights under the financing statement bearing the file number shown above in
the property indicated below.
D. [ ] TERMINATION...... The Secured Party certifies that the Secured Party no longer claims a security interest under the
financing statement bearing the file number shown above.
E. [ ] AMENDMENT........ The financing statement bearing the above file number is amended.
[ ] To show the Secured Party's new address as indicated below;
[ ] To show the Debtor's new address as indicated below;
[ ] As set forth below:
- ------------------------------------------------------------------------------------------------------------------------------------
See Exhibit A attached hereto.
- ------------------------------------------------------------------------------------------------------------------------------------
TEXAS COMMERCE BANK NATIONAL
- ------------------------------------------------(Debtor) ASSOCIATION, as Collateral Agent (Secured)
(Signature of Debtor, if required) -------------------------------- Party)
Dated: 19 By: [SIG]
-----------------------------------, --------- -------------------------------------
(Signature of Secured Party)
FILING OFFICER-ALPHABETICAL
THIS FORM OF FINANCING STATEMENT IS APPROVED BY THE SECRETARY OF STATE.
STANDARD FORM-UNIFORM COMMERCIAL CODE-FORM UCC-3 REV. 7-74
</TABLE>
<PAGE> 361
EXHIBIT A TO FINANCING STATEMENT FROM
MORTGAGE CORPORATION OF AMERICA, INC., AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
AS COLLATERAL AGENT, AS SECURED PARTY
Texas Commerce Bank National Association, as agent and representative of
Warehouse Lenders under the 10/97 Senior Secured Warehouse Credit Agreement, as
amended from time to time, including itself, Residential Funding Corporation,
Guaranty Federal Bank, F.S.B., Bank One, Texas, N.A., The Bank of New York and
LaSalle National Bank
712 Main Street
Houston, TX 77002
<PAGE> 362
<TABLE>
<S><C>
UNIFORM COMMERCIAL CODE REORDER FROM
STATEMENTS OF CONTINUATION, PARTIAL RELEASE, ASSIGNMENT, ETC. -- FORM UCC-3 REGISTRE, INC.
514 PIERCE ST.
P.O. BOX 218
ANOKA, MN 55303
(612) 421-1713
INSTRUCTIONS:
1. PLEASE TYPE this form. Fold only along perforation for mailing.
2. Remove Secured Party and Debtor copies and send other 3 copies with
interleaved carbon paper to the filing officer.
3. Enclose filing fee.
4. If the space provided for any item(s) on the form is inadequate the
item(s) should be continued on additional sheets, preferably 5" x 8" or 8"
x 10". Only one copy of such additional sheets need be presented to the
filing officer with a set of three copies of Form UCC-3. Long schedules
of collateral, etc., may be on any size paper that is convenient for the
secured party.
5. At the time of filing, filing officer will return third copy as an
acknowledgment.
- ------------------------------------------------------------------------------------------------------------------------------------
For Filing Officer
(Date, Time, Number,
This STATEMENT is presented to THE FILING OFFICER for filing pursuant to the Uniform Commercial Code: and Filing Office)
- ----------------------------------------------------------------------------------------------------------
Debtor(s) (Last Name First) and address(es) Secured Party(ies) and address(es)
MCA Mortgage Corporation Texas Commerce Bank National
23999 Northwestern Highway Association, as Collateral Agent
Suite 230 712 Main Street
Southfield, MI 48075 Houston, TX 77002
- ----------------------------------------------------------------------------------------------------------
This Statement refers to original Financing Statement No. 3604875
------------------------------------------------
Date filed: October 29, 1996 Filed with Secretary of State
---------- -- ----------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
A. [ ] CONTINUATION..... The original financing statement between the foregoing Debtor and Secured Party, bearing the file number
shown above, is still effective.
B. [ ] PARTIAL RELEASE.. From the collateral described in the financing statement bearing the file number shown above, the Secured
Party releases the property indicated below.
C. [X] ASSIGNMENT....... The Secured Party certifies that the Secured Party has assigned to the Assignee whose name and address is
shown below, Secured Party's rights under the financing statement bearing the file number shown above in
the property indicated below.
D. [ ] TERMINATION...... The Secured Party certifies that the Secured Party no longer claims a security interest under the
financing statement bearing the file number shown above.
E. [ ] AMENDMENT........ The financing statement bearing the above file number is amended.
[ ] To show the Secured Party's new address as indicated below;
[ ] To show the Debtor's new address as indicated below;
[ ] As set forth below:
- ------------------------------------------------------------------------------------------------------------------------------------
See Exhibit A attached hereto.
- ------------------------------------------------------------------------------------------------------------------------------------
TEXAS COMMERCE BANK NATIONAL
- ------------------------------------------------(Debtor) ASSOCIATION, as Collateral Agent (Secured)
(Signature of Debtor, if required) -------------------------------- Party)
Dated: 19 By: [SIG]
-----------------------------------, --------- -------------------------------------
(Signature of Secured Party)
FILING OFFICER-ALPHABETICAL
THIS FORM OF FINANCING STATEMENT IS APPROVED BY THE SECRETARY OF STATE.
STANDARD FORM-UNIFORM COMMERCIAL CODE-FORM UCC-3 REV. 7-74
</TABLE>
<PAGE> 363
EXHIBIT A TO FINANCING STATEMENT FROM
MCA MORTGAGE CORPORATION, AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
AS COLLATERAL AGENT, AS SECURED PARTY
Texas Commerce Bank National Association, as agent and representative of
Warehouse Lenders under the 10/97 Senior Secured Warehouse Credit Agreement, as
amended from time to time, including itself, Residential Funding Corporation,
Guaranty Federal Bank, F.S.B., Bank One, Texas, N.A., The Bank of New York and
LaSalle National Bank
712 Main Street
Houston, TX 77002
<PAGE> 364
<TABLE>
<S><C>
REGISTRE, INC.
UCC 3 - STATE OF MICHIGAN 514 PIERCE ST.
P.O. BOX 218
ANOKA, MN 55303
(612) 421-1713
This FINANCING STATEMENT is presented for filing FOR FILING OFFICER
pursuant to the Michigan Uniform Commercial Code. (Please Type All Information) (Date, Time, Number, and Filing Officer)
- -----------------------------------------------------------------------------------------------------------------------------------
1. Debtor(s) (Last Name First, If individual) & Address(es) Soc. Security #/Tax ID# DO NOT WRITE IN THIS SPACE
Mortgage Corporation of America, Inc.
23999 Northwestern Highway, Suite 230
Southfield, MI 48075
- ---------------------------------------------------------------------------------------
2. Secured Party(ies) & Address(es) Secured Party #
74-0800980
Texas Commerce Bank National Association,
as Collateral Agent
712 Main Street
Houston, TX 77002
--------------------------------------
4. No. of Add'l 5. State Account
Sheets No.
- --------------------------------------------------------------------------------------- --------------------------------------
3. MAIL ACKNOWLEDGEMENT COPY TO:
6. THIS STATEMENT REFERS TO THE
ORIGINAL FINANCING STATEMENT BEARING
James W. Robertson THE FOLLOWING:
Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
600 Travis Street Sec. of State File Number D149894
3200 Texas Commerce Tower -----------
Houston, TX 77002-3095 Reg. of Deeds File Number
-----------
Liber Page
---------- --------
- ------------------------------------------------------------------------------------------------------------------------------------
7. [ ] AMENDMENT - The Financing Statement bearing the file number(s) shown in Item 6 is amended as set forth in Item 13 below.
8. [X] ASSIGNMENT - All of Secured Party's right under the Financing Statement bearing the file number shown in Item 6 has been
assigned to the assignee whose name and address appears in Item 13 below.
9. [ ] PARTIAL ASSIGNMENT - A portion of the Secured Party's right under the Financing Statement bearing the file number shown in
Item 6 to the property described in Item 13 below has been assigned to the assignee whose name and address appears in
Item 13.
10. [ ] CONTINUATION - The original Financing Statement bearing the file number shown in Item 6 is still effective. A CONTINUATION
CANNOT BE FILED MORE THAN SIX MONTHS PRIOR TO EXPIRATION DATE.
11. [ ] PARTIAL RELEASE - The Secured Party(ies) release(s) the following collateral described in Item 13 below from the original
Financing Statement bearing the file number as shown in Item 6.
12. [ ] TERMINATION - The Secured Party(ies) of record no longer claim(s) a security interest under the Financing Statement bearing
the file number shown in Item 6.
13. Texas Commerce Bank National Association, as agent and representative of Warehouse Lenders under the 10/97 Senior Secured
Warehouse Credit Agreement, as amended from time to time, including itself, Residential Funding Corporation, Guaranty Federal
Bank, F.S.B., Bank One, Texas, N.A., The Bank of New York and LaSalle National Bank
712 Main Street
Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Collateral Agent
x x [SIG]
- ----------------------------------------------- -------------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies) or Assignee(s) of Record
x x
- ----------------------------------------------- -------------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies) or Assignee(s) of Record
IF YOU WISH THE ACKNOWLEDGEMENT COPY TO BE MAILED TO AN ADDRESS OTHER THAN THE SECURED PARTY SHOWN IN ITEM 2, PROVIDE COMPLETE
MAILING INFORMATION IN ITEM 3.
FILING OFFICER COPY
</TABLE>
<PAGE> 365
UCC 3 - STATE OF MICHIGAN REGISTRE, INC.
514 PIERCE ST.
P.O. BOX 218
ANOKA, MN. 55303
(612) 421-1713
<TABLE>
<S><C>
This FINANCING STATEMENT is presented for filing FOR FILING OFFICER
pursuant to the Michigan Uniform Commercial Code. (Please Type All Information) (Date, Time, Number, and Filing Officer)
- ------------------------------------------------------------------------------------------------------------------------------------
DO NOT WRITE IN THIS SPACE
1. DEBTOR(S) (LAST NAME FIRST, IF INDIVIDUAL) & ADDRESS(ES) SOC. SECURITY #/TAX ID #
Mortgage Corporation of America 38-2509529
23999 Northwestern Highway, Suite 230
Southfield, MI 48075
- -------------------------------------------------------------------------------
2. SECURED PARTY(IES) & ADDRESS(ES) SECURED PARTY#
74-0800980
--------------------------------------------
Texas Commerce Bank National Association, 4. NO. OF ADD'L SHEETS 5. STATE ACCOUNT NO.
as Collateral Agent --------------------------------------------
712 Main Street
Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
3. MAIL ACKNOWLEDGEMENT COPY TO: 6. THIS STATEMENT REFERS TO THE
ORIGINAL FINANCING STATEMENT
BEARING THE FOLLOWING:
James W. Robertson
Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. Sec. of State File Number D149893
600 Travis Street Reg. of Deeds File Number _________
3200 Texas Commerce Tower Liber _____________ Page___________
Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
7. [ ] AMENDMENT - The Financing Statement bearing the file number(s) shown in
Item 6 is amended as set forth in Item 13 below.
8. [X] ASSIGNMENT - All of Secured Party's right under the Financing Statement
bearing the file number shown in Item 6 has been assigned to the assignee
whose name and address appears in Item 13 below.
9. [ ] PARTIAL ASSIGNMENT - A portion of the Secured Party's right under the
Financing Statement bearing the file number shown in Item 6 to the
property described in Item 13 below has been assigned to the assignee
whose name and address appears in Item 13.
10.[ ] CONTINUATION - The original Financing Statement bearing the file number
shown in Item 6 is still effective. A CONTINUATION CANNOT BE FILED MORE
THAN SIX MONTHS PRIOR TO EXPIRATION DATE.
11.[ ] PARTIAL RELEASE - The Secured Party(ies) release(s) the following
collateral described in Item 13 below from the original Financing
Statement bearing the file number as shown in Item 6.
12.[ ] TERMINATION - The Secured Party(ies) of record no longer claim(s) a
security interest under the Financing Statement bearing the file number
shown in Item 6.
13. Texas Commerce Bank National Association, as agent and representative of
Warehouse Lenders under the 10/97 Senior Secured Warehouse Credit Agreement,
as amended from time to time, including itself, Residential Funding
Corporation, Guaranty Federal Bank, F.S.B., Bank One, Texas, N.A., The Bank
of New York and LaSalle National Bank
712 Main Street
Houston, TX 77002
- -------------------------------------------------------------------------------
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION,
as Collateral Agent
x x [SIG]
---------------------------------------------- ------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured
Party(ies) or Assignee(s) of
Record
x x [SIG]
---------------------------------------------- ------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured
Party(ies) or Assignee(s) of
Record
IF YOU WISH THE ACKNOWLEDGEMENT COPY TO BE MAILED TO AN ADDRESS OTHER THAN THE
SECURED PARTY SHOWN IN ITEM 2, PROVIDE COMPLETE MAILING INFORMATION IN ITEM 3.
</TABLE>
FILING OFFICER COPY
<PAGE> 366
<TABLE>
<CAPTION>
<S><C>
REGISTRE, INC.
UCC 3 - STATE OF MICHIGAN 514 PIERCE ST.
P.O. BOX 218
ANOKA, MN 55303
(612) 421-1713 N
This FINANCING STATEMENT is presented for filing FOR FILING OFFICER
pursuant to the Michigan Uniform Commercial Code. (Please Type All Information) (Date, Time, Number, and Filing Officer)
- -----------------------------------------------------------------------------------------------------------------------------------
1. Debtor(s) (Last Name First, If Individual) & Address(es) Soc. Security #/Tax ID# DO NOT WRITE IN THIS SPACE
38-3014001
MCA Financial Corp.
23999 Northwestern Highway, Suite 230
Southfield, MI 48075
- ---------------------------------------------------------------------------------------
2. Secured Party(ies) & Address(es) Secured Party #
74-0800980
Texas Commerce Bank National Association,
as Collateral Agent
712 Main Street
Houston, TX 77002
--------------------------------------
4. No. of Add'l 5. State Account
Sheets No.
- --------------------------------------------------------------------------------------- --------------------------------------
3. MAIL ACKNOWLEDGEMENT COPY TO:
6. THIS STATEMENT REFERS TO THE
ORIGINAL FINANCING STATEMENT BEARING
James W. Robertson THE FOLLOWING:
Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
600 Travis Street Sec. of State File Number D149895
3200 Texas Commerce Tower -----------
Houston, TX 77002-3095 Reg. of Deeds File Number
-----------
Liber Page
---------- --------
- ------------------------------------------------------------------------------------------------------------------------------------
7. [ ] AMENDMENT - The Financing Statement bearing the file number(s) shown in Item 6 is amended as set forth in Item 13 below.
8. [X] ASSIGNMENT - All of Secured Party's right under the Financing Statement bearing the file number shown in Item 6 has been
assigned to the assignee whose name and address appears in Item 13 below.
9. [ ] PARTIAL ASSIGNMENT - A portion of the Secured Party's right under the Financing Statement bearing the file number shown in
Item 6 to the property described in Item 13 below has been assigned to the assignee whose name and address appears in
Item 13.
10. [ ] CONTINUATION - The original Financing Statement bearing the file number shown in Item 6 is still effective. A CONTINUATION
CANNOT BE FILED MORE THAN SIX MONTHS PRIOR TO EXPIRATION DATE.
11. [ ] PARTIAL RELEASE - The Secured Party(ies) release(s) the following collateral described in Item 13 below from the original
Financing Statement bearing the file number as shown in Item 6.
12. [ ] TERMINATION - The Secured Party(ies) of record no longer claim(s) a security interest under the Financing Statement bearing
the file number shown in Item 6.
13. Texas Commerce Bank National Association, as agent and representative of Warehouse Lenders under the 10/97 Senior Secured
Warehouse Credit Agreement, as amended from time to time, including itself, Residential Funding Corporation, Guaranty Federal
Bank, F.S.B., Bank One, Texas, N.A., The Bank of New York and LaSalle National Bank
712 Main Street
Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Collateral Agent
x x [SIG]
- ----------------------------------------------- -------------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies) or Assignee(s) of Record
x x
- ----------------------------------------------- -------------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies) or Assignee(s) of Record
IF YOU WISH THE ACKNOWLEDGEMENT COPY TO BE MAILED TO AN ADDRESS OTHER THAN THE SECURED PARTY SHOWN IN ITEM 2, PROVIDE COMPLETE
MAILING INFORMATION IN ITEM 3.
FILING OFFICER COPY
</TABLE>
<PAGE> 367
2222
<TABLE>
<S><C>
REGISTRE, INC.
UCC 3 - STATE OF MICHIGAN 514 PIERCE ST.
P.O. BOX 218
ANOKA, MN 55303
(612) 421-1713 N
This FINANCING STATEMENT is presented for filing FOR FILING OFFICER
pursuant to the Michigan Uniform Commercial Code. (Please Type All Information) (Date, Time, Number, and Filing Officer)
- -----------------------------------------------------------------------------------------------------------------------------------
1. Debtor(s) (Last Name First, If Individual) & Address(es) Soc. Security #/Tax ID# DO NOT WRITE IN THIS SPACE
38-2613174
MCA Mortgage Corporation
23999 Northwestern Highway, Suite 230
Southfield, MI 48075
- ---------------------------------------------------------------------------------------
2. Secured Party(ies) & Address(es) Secured Party #
74-0800980
Texas Commerce Bank National Association,
as Collateral Agent
712 Main Street
Houston, TX 77002
--------------------------------------
4. No. of Add'l 5. State Account
Sheets No.
- --------------------------------------------------------------------------------------- --------------------------------------
3. MAIL ACKNOWLEDGEMENT COPY TO:
6. THIS STATEMENT REFERS TO THE
ORIGINAL FINANCING STATEMENT BEARING
James W. Robertson THE FOLLOWING:
Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
600 Travis Street Sec. of State File Number D149892
3200 Texas Commerce Tower -----------
Houston, TX 77002-3095 Reg. of Deeds File Number
-----------
Liber Page
---------- --------
- ------------------------------------------------------------------------------------------------------------------------------------
7. [ ] AMENDMENT - The Financing Statement bearing the file number(s) shown in Item 6 is amended as set forth in Item 13 below.
8. [X] ASSIGNMENT - All of Secured Party's right under the Financing Statement bearing the file number shown in Item 6 has been
assigned to the assignee whose name and address appears in Item 13 below.
9. [ ] PARTIAL ASSIGNMENT - A portion of the Secured Party's right under the Financing Statement bearing the file number shown in
Item 6 to the property described in Item 13 below has been assigned to the assignee whose name and address appears in
Item 13.
10. [ ] CONTINUATION - The original Financing Statement bearing the file number shown in Item 6 is still effective. A CONTINUATION
CANNOT BE FILED MORE THAN SIX MONTHS PRIOR TO EXPIRATION DATE.
11. [ ] PARTIAL RELEASE - The Secured Party(ies) release(s) the following collateral described in Item 13 below from the original
Financing Statement bearing the file number as shown in Item 6.
12. [ ] TERMINATION - The Secured Party(ies) of record no longer claim(s) a security interest under the Financing Statement bearing
the file number shown in Item 6.
13. Texas Commerce Bank National Association, as agent and representative of Warehouse Lenders under the 10/97 Senior Secured
Warehouse Credit Agreement, as amended from time to time, including itself, Residential Funding Corporation, Guaranty Federal
Bank, F.S.B., Bank One, Texas, N.A., The Bank of New York and LaSalle National Bank
712 Main Street
Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Collateral Agent
x x [SIG]
- ----------------------------------------------- -------------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies) or Assignee(s) of Record
x x
- ----------------------------------------------- -------------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies) or Assignee(s) of Record
IF YOU WISH THE ACKNOWLEDGEMENT COPY TO BE MAILED TO AN ADDRESS OTHER THAN THE SECURED PARTY SHOWN IN ITEM 2, PROVIDE COMPLETE
MAILING INFORMATION IN ITEM 3.
FILING OFFICER COPY
</TABLE>
<PAGE> 368
<TABLE>
<S><C>
IMPORTANT - READ INSTRUCTIONS ON BACK BEFORE FILLING OUT FORM - DO NOT DETACH STUB
======================================= THIS STATEMENT IS PRESENTED TO A FILING
- --------------------------------------- OFFICER FOR FILING PURSUANT TO THE
- --------------------------------------- UNIFORM COMMERCIAL CODE.
======================================= 11. / / CHECK TO REQUEST SAME DEBTOR
SEARCH CERTIFICATE (INSTRUCTION B.11)
- ------------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR (IF PERSONAL) LAST NAME FIRST NAME M.I. 1A. PREFIX 1B. SUFFIX
MCA Financial Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
1C. MAILING ADDRESS 1D. CITY, STATE 1E. ZIP CODE
23999 Northwestern Highway, Suite 230 Southfield, MI 48075
- ------------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF PERSONAL) LAST NAME FIRST NAME M.I. 2A. PREFIX 2B. SUFFIX
- ------------------------------------------------------------------------------------------------------------------------------------
2C. MAILING ADDRESS 2D. CITY, STATE 2E. ZIP CODE
====================================================================================================================================
3. SECURED PARTY (IF PERSONAL) LAST NAME FIRST NAME M.I.
Texas Commerce Bank National Association, as Collateral Agent
- ------------------------------------------------------------------------------------------------------------------------------------
3A. MAILING ADDRESS 3B. CITY, STATE 3C. ZIP CODE
712 Main Street Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
4. ADDITIONAL SECURED PARTY (IF ANY)
- ------------------------------------------------------------------------------------------------------------------------------------
4A. MAILING ADDRESS 4B. CITY, STATE 4C. ZIP CODE
====================================================================================================================================
5. ORIGINAL FINANCING STATEMENT NUMBER 5A. ORIGINAL DATE FILED 6. CHECK THIS FINANCING STATEMENT CHANGE IS TO BE
96-203064 October 11, 1996 IF FILED IN THE REAL ESTATE RECORDS.
APPLICABLE / / NO. OF ADDITIONAL SHEETS PRESENTED____.
- ------------------------------------------------------------------------------------------------------------------------------------
7. A. / / AMENDMENT - THE FINANCING STATEMENT IS AMENDED AS SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(A))
- ------------------------------------------------------------------------------------------------------------------------------------
B. TOTAL ASSIGNMENT - ALL OF SECURED PARTY'S RIGHTS UNDER THE FINANCING STATEMENT HAVE BEEN ASSIGNED TO THE ASSIGNEE
/X/ WHOSE NAME AND ADDRESS ARE SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(B))
- ------------------------------------------------------------------------------------------------------------------------------------
C. PARTIAL ASSIGNMENT - SOME OF SECURED PARTY'S RIGHTS HAVE BEEN ASSIGNED TO THE ASSIGNEE SHOWN IN ITEM 8 BELOW.
/ / (INSTRUCTION B.7(C))
- ------------------------------------------------------------------------------------------------------------------------------------
D. / / CONTINUATION - THE ORIGINAL STATEMENT IS STILL EFFECTIVE. (INSTRUCTION B.7(D))
- ------------------------------------------------------------------------------------------------------------------------------------
E. / / TOTAL RELEASE - THE SECURED PARTY RELEASES ALL OF THEIR INTEREST IN THE COLLATERAL. (INSTRUCTION B.7(E))
- ------------------------------------------------------------------------------------------------------------------------------------
F. / / PARTIAL RELEASE - THE SECURED PARTY RELEASES THE FOLLOWING COLLATERAL DESCRIBED IN ITEM 8 BELOW. (INSTRUCTION B.7(F))
- ------------------------------------------------------------------------------------------------------------------------------------
G. / / TERMINATION - THE SECURED PARTY(IES) OF RECORD NO LONGER CLAIMS A SECURITY INTEREST AND THE FINANCING STATEMENT IS
TERMINATED. (INSTRUCTION B.7(G))
====================================================================================================================================
8. Texas Commerce Bank National Association, as agent and representative of Warehouse Lenders under the 10/97 Senior Secured
Warehouse Credit Agreement, as amended from time to time, including itself, Residential Funding Corporation, Guaranty Federal
Bank, F.S.B., Bank One, Texas, N.A., The Bank of New York and LaSalle National Bank
712 Main Street
Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
9. SIGNATURE(S) THIS SPACE FOR USE OF FILING OFFICER
OF (DATE, TIME, NUMBER, FILING OFFICER)
DEBTOR(S)
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
SIGNATURE(S) TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
OF
SECURED PARTY(IES) as Collateral Agent
- -------------------------------------------------------------------------------------
By: [SIG]
=====================================================================================
10. Return copy to:
NAME James W. Robertson
ADDRESS Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
CITY 600 Travis Street
STATE 3200 Texas Commerce Tower
ZIP Houston, TX 77002-3095
====================================================================================================================================
STANDARD FORM - FORM UCC-3 (REV. 9/1/92) (C) 1992 OFFICE OF THE SECRETARY OF STATE OF TEXAS
PRINTED BY JULIUS BLUMBERG, INC., N.Y.C. 10013
(1) FILING OFFICER COPY - NUMERICAL
</TABLE>
<PAGE> 369
<TABLE>
<S><C>
IMPORTANT - READ INSTRUCTIONS ON BACK BEFORE FILLING OUT FORM - DO NOT DETACH STUB
======================================= THIS STATEMENT IS PRESENTED TO A FILING
- --------------------------------------- OFFICER FOR FILING PURSUANT TO THE
- --------------------------------------- UNIFORM COMMERCIAL CODE.
======================================= 11. / / CHECK TO REQUEST SAME DEBTOR
SEARCH CERTIFICATE (INSTRUCTION B.11)
- ------------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR (IF PERSONAL) LAST NAME FIRST NAME M.I. 1A. PREFIX 1B. SUFFIX
Mortgage Corporation of America
- ------------------------------------------------------------------------------------------------------------------------------------
1C. MAILING ADDRESS 1D. CITY, STATE 1E. ZIP CODE
23999 Northwestern Highway, Suite 230 Southfield, MI 48075
- ------------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF PERSONAL) LAST NAME FIRST NAME M.I. 2A. PREFIX 2B. SUFFIX
- ------------------------------------------------------------------------------------------------------------------------------------
2C. MAILING ADDRESS 2D. CITY, STATE 2E. ZIP CODE
====================================================================================================================================
3. SECURED PARTY (IF PERSONAL) LAST NAME FIRST NAME M.I.
Texas Commerce Bank National Association, as Collateral Agent
- ------------------------------------------------------------------------------------------------------------------------------------
3A. MAILING ADDRESS 3B. CITY, STATE 3C. ZIP CODE
712 Main Street Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
4. ADDITIONAL SECURED PARTY (IF ANY)
- ------------------------------------------------------------------------------------------------------------------------------------
4A. MAILING ADDRESS 4B. CITY, STATE 4C. ZIP CODE
====================================================================================================================================
5. ORIGINAL FINANCING STATEMENT NUMBER 5A. ORIGINAL DATE FILED 6. CHECK THIS FINANCING STATEMENT CHANGE IS TO BE
96-203070 October 11, 1996 IF FILED IN THE REAL ESTATE RECORDS.
APPLICABLE / / NO. OF ADDITIONAL SHEETS PRESENTED____.
- ------------------------------------------------------------------------------------------------------------------------------------
7. A. / / AMENDMENT - THE FINANCING STATEMENT IS AMENDED AS SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(A))
- ------------------------------------------------------------------------------------------------------------------------------------
B. TOTAL ASSIGNMENT - ALL OF SECURED PARTY'S RIGHTS UNDER THE FINANCING STATEMENT HAVE BEEN ASSIGNED TO THE ASSIGNEE
/X/ WHOSE NAME AND ADDRESS ARE SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(B))
- ------------------------------------------------------------------------------------------------------------------------------------
C. PARTIAL ASSIGNMENT - SOME OF SECURED PARTY'S RIGHTS HAVE BEEN ASSIGNED TO THE ASSIGNEE SHOWN IN ITEM 8 BELOW.
/ / (INSTRUCTION B.7(C))
- ------------------------------------------------------------------------------------------------------------------------------------
D. / / CONTINUATION - THE ORIGINAL STATEMENT IS STILL EFFECTIVE. (INSTRUCTION B.7(D))
- ------------------------------------------------------------------------------------------------------------------------------------
E. / / TOTAL RELEASE - THE SECURED PARTY RELEASES ALL OF THEIR INTEREST IN THE COLLATERAL. (INSTRUCTION B.7(E))
- ------------------------------------------------------------------------------------------------------------------------------------
F. / / PARTIAL RELEASE - THE SECURED PARTY RELEASES THE FOLLOWING COLLATERAL DESCRIBED IN ITEM 8 BELOW. (INSTRUCTION B.7(F))
- ------------------------------------------------------------------------------------------------------------------------------------
G. / / TERMINATION - THE SECURED PARTY(IES) OF RECORD NO LONGER CLAIMS A SECURITY INTEREST AND THE FINANCING STATEMENT IS
TERMINATED. (INSTRUCTION B.7(G))
====================================================================================================================================
8. Texas Commerce Bank National Association, as agent and representative of Warehouse Lenders under the 10/97 Senior Secured
Warehouse Credit Agreement, as amended from time to time, including itself, Residential Funding Corporation, Guaranty Federal
Bank, F.S.B., Bank One, Texas, N.A., The Bank of New York and LaSalle National Bank
712 Main Street
Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
9. SIGNATURE(S) THIS SPACE FOR USE OF FILING OFFICER
OF (DATE, TIME, NUMBER, FILING OFFICER)
DEBTOR(S)
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
SIGNATURE(S) TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
OF
SECURED PARTY(IES) as Collateral Agent
- --------------------------------------------------------------------------------------
By: [SIG]
======================================================================================
10. Return copy to:
NAME James W. Robertson
ADDRESS Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
CITY 600 Travis Street
STATE 3200 Texas Commerce Tower
ZIP Houston, TX 77002-3095
====================================================================================================================================
STANDARD FORM - FORM UCC-3 (REV. 9/1/92) (C) 1992 OFFICE OF THE SECRETARY OF STATE OF TEXAS
PRINTED BY JULIUS BLUMBERG, INC., N.Y.C. 10013
(1) FILING OFFICER COPY - NUMERICAL
</TABLE>
<PAGE> 370
<TABLE>
<S><C>
IMPORTANT - READ INSTRUCTIONS ON BACK BEFORE FILLING OUT FORM - DO NOT DETACH STUB
======================================= THIS STATEMENT IS PRESENTED TO A FILING
- --------------------------------------- OFFICER FOR FILING PURSUANT TO THE
- --------------------------------------- UNIFORM COMMERCIAL CODE.
======================================= 11. / / CHECK TO REQUEST SAME DEBTOR
SEARCH CERTIFICATE (INSTRUCTION B.11)
- ------------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR (IF PERSONAL) LAST NAME FIRST NAME M.I. 1A. PREFIX 1B. SUFFIX
Mortgage Corporation of America, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
1C. MAILING ADDRESS 1D. CITY, STATE 1E. ZIP CODE
23999 Northwestern Highway, Suite 230 Southfield, MI 48075
- ------------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF PERSONAL) LAST NAME FIRST NAME M.I. 2A. PREFIX 2B. SUFFIX
- ------------------------------------------------------------------------------------------------------------------------------------
2C. MAILING ADDRESS 2D. CITY, STATE 2E. ZIP CODE
====================================================================================================================================
3. SECURED PARTY (IF PERSONAL) LAST NAME FIRST NAME M.I.
Texas Commerce Bank National Association, as Collateral Agent
- ------------------------------------------------------------------------------------------------------------------------------------
3A. MAILING ADDRESS 3B. CITY, STATE 3C. ZIP CODE
712 Main Street Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
4. ADDITIONAL SECURED PARTY (IF ANY)
- ------------------------------------------------------------------------------------------------------------------------------------
4A. MAILING ADDRESS 4B. CITY, STATE 4C. ZIP CODE
====================================================================================================================================
5. ORIGINAL FINANCING STATEMENT NUMBER 5A. ORIGINAL DATE FILED 6. CHECK THIS FINANCING STATEMENT CHANGE IS TO BE
96-203345 October 11, 1996 IF FILED IN THE REAL ESTATE RECORDS.
APPLICABLE / / NO. OF ADDITIONAL SHEETS PRESENTED____.
- ------------------------------------------------------------------------------------------------------------------------------------
7. A. / / AMENDMENT - THE FINANCING STATEMENT IS AMENDED AS SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(A))
- ------------------------------------------------------------------------------------------------------------------------------------
B. TOTAL ASSIGNMENT - ALL OF SECURED PARTY'S RIGHTS UNDER THE FINANCING STATEMENT HAVE BEEN ASSIGNED TO THE ASSIGNEE
/X/ WHOSE NAME AND ADDRESS ARE SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(B))
- ------------------------------------------------------------------------------------------------------------------------------------
C. PARTIAL ASSIGNMENT - SOME OF SECURED PARTY'S RIGHTS HAVE BEEN ASSIGNED TO THE ASSIGNEE SHOWN IN ITEM 8 BELOW.
/ / (INSTRUCTION B.7(C))
- ------------------------------------------------------------------------------------------------------------------------------------
D. / / CONTINUATION - THE ORIGINAL STATEMENT IS STILL EFFECTIVE. (INSTRUCTION B.7(D))
- ------------------------------------------------------------------------------------------------------------------------------------
E. / / TOTAL RELEASE - THE SECURED PARTY RELEASES ALL OF THEIR INTEREST IN THE COLLATERAL. (INSTRUCTION B.7(E))
- ------------------------------------------------------------------------------------------------------------------------------------
F. / / PARTIAL RELEASE - THE SECURED PARTY RELEASES THE FOLLOWING COLLATERAL DESCRIBED IN ITEM 8 BELOW. (INSTRUCTION B.7(F))
- ------------------------------------------------------------------------------------------------------------------------------------
G. / / TERMINATION - THE SECURED PARTY(IES) OF RECORD NO LONGER CLAIMS A SECURITY INTEREST AND THE FINANCING STATEMENT IS
TERMINATED. (INSTRUCTION B.7(G))
====================================================================================================================================
8. Texas Commerce Bank National Association, as agent and representative of Warehouse Lenders under the 10/97 Senior Secured
Warehouse Credit Agreement, as amended from time to time, including itself, Residential Funding Corporation, Guaranty Federal
Bank, F.S.B., Bank One, Texas, N.A., The Bank of New York and LaSalle National Bank
712 Main Street
Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
9. SIGNATURE(S) THIS SPACE FOR USE OF FILING OFFICER
OF (DATE, TIME, NUMBER, FILING OFFICER)
DEBTOR(S)
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
SIGNATURE(S) TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
OF
SECURED PARTY(IES) as Collateral Agent
- --------------------------------------------------------------------------------------
By: [SIG]
======================================================================================
10. Return copy to:
NAME James W. Robertson
ADDRESS Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
CITY 600 Travis Street
STATE 3200 Texas Commerce Tower
ZIP Houston, TX 77002-3095
====================================================================================================================================
STANDARD FORM - FORM UCC-3 (REV. 9/1/92) (C) 1992 OFFICE OF THE SECRETARY OF STATE OF TEXAS
PRINTED BY JULIUS BLUMBERG, INC., N.Y.C. 10013
(1) FILING OFFICER COPY - NUMERICAL
</TABLE>
<PAGE> 371
<TABLE>
<S><C>
IMPORTANT - READ INSTRUCTIONS ON BACK BEFORE FILLING OUT FORM - DO NOT DETACH STUB
======================================= THIS STATEMENT IS PRESENTED TO A FILING
- --------------------------------------- OFFICER FOR FILING PURSUANT TO THE
- --------------------------------------- UNIFORM COMMERCIAL CODE.
======================================= 11. / / CHECK TO REQUEST SAME DEBTOR
SEARCH CERTIFICATE (INSTRUCTION B.11)
- ------------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR (IF PERSONAL) LAST NAME FIRST NAME M.I. 1A. PREFIX 1B. SUFFIX
MCA Mortgage Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
1C. MAILING ADDRESS 1D. CITY, STATE 1E. ZIP CODE
23999 Northwestern Highway, Suite 230 Southfield, MI 48075
- ------------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF PERSONAL) LAST NAME FIRST NAME M.I. 2A. PREFIX 2B. SUFFIX
- ------------------------------------------------------------------------------------------------------------------------------------
2C. MAILING ADDRESS 2D. CITY, STATE 2E. ZIP CODE
====================================================================================================================================
3. SECURED PARTY (IF PERSONAL) LAST NAME FIRST NAME M.I.
Texas Commerce Bank National Association, as Collateral Agent
- ------------------------------------------------------------------------------------------------------------------------------------
3A. MAILING ADDRESS 3B. CITY, STATE 3C. ZIP CODE
712 Main Street Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
4. ADDITIONAL SECURED PARTY (IF ANY)
- ------------------------------------------------------------------------------------------------------------------------------------
4A. MAILING ADDRESS 4B. CITY, STATE 4C. ZIP CODE
====================================================================================================================================
5. ORIGINAL FINANCING STATEMENT NUMBER 5A. ORIGINAL DATE FILED 6. CHECK THIS FINANCING STATEMENT CHANGE IS TO BE
96-203344 October 11, 1996 IF FILED IN THE REAL ESTATE RECORDS.
APPLICABLE / / NO. OF ADDITIONAL SHEETS PRESENTED____.
- ------------------------------------------------------------------------------------------------------------------------------------
7. A. / / AMENDMENT - THE FINANCING STATEMENT IS AMENDED AS SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(A))
- ------------------------------------------------------------------------------------------------------------------------------------
B. TOTAL ASSIGNMENT - ALL OF SECURED PARTY'S RIGHTS UNDER THE FINANCING STATEMENT HAVE BEEN ASSIGNED TO THE ASSIGNEE
/X/ WHOSE NAME AND ADDRESS ARE SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(B))
- ------------------------------------------------------------------------------------------------------------------------------------
C. PARTIAL ASSIGNMENT - SOME OF SECURED PARTY'S RIGHTS HAVE BEEN ASSIGNED TO THE ASSIGNEE SHOWN IN ITEM 8 BELOW.
/ / (INSTRUCTION B.7(C))
- ------------------------------------------------------------------------------------------------------------------------------------
D. / / CONTINUATION - THE ORIGINAL STATEMENT IS STILL EFFECTIVE. (INSTRUCTION B.7(D))
- ------------------------------------------------------------------------------------------------------------------------------------
E. / / TOTAL RELEASE - THE SECURED PARTY RELEASES ALL OF THEIR INTEREST IN THE COLLATERAL. (INSTRUCTION B.7(E))
- ------------------------------------------------------------------------------------------------------------------------------------
F. / / PARTIAL RELEASE - THE SECURED PARTY RELEASES THE FOLLOWING COLLATERAL DESCRIBED IN ITEM 8 BELOW. (INSTRUCTION B.7(F))
- ------------------------------------------------------------------------------------------------------------------------------------
G. / / TERMINATION - THE SECURED PARTY(IES) OF RECORD NO LONGER CLAIMS A SECURITY INTEREST AND THE FINANCING STATEMENT IS
TERMINATED. (INSTRUCTION B.7(G))
====================================================================================================================================
8. Texas Commerce Bank National Association, as agent and representative of Warehouse Lenders under the 10/97 Senior Secured
Warehouse Credit Agreement, as amended from time to time, including itself, Residential Funding Corporation, Guaranty Federal
Bank, F.S.B., Bank One, Texas, N.A., The Bank of New York and LaSalle National Bank
712 Main Street
Houston, TX 77002
- ------------------------------------------------------------------------------------------------------------------------------------
9. SIGNATURE(S) THIS SPACE FOR USE OF FILING OFFICER
OF (DATE, TIME, NUMBER, FILING OFFICER)
DEBTOR(S)
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
SIGNATURE(S) TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
OF
SECURED PARTY(IES) as Collateral Agent
- --------------------------------------------------------------------------------------
By: [SIG]
======================================================================================
10. Return copy to:
NAME James W. Robertson
ADDRESS Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
CITY 600 Travis Street
STATE 3200 Texas Commerce Tower
ZIP Houston, TX 77002-3095
====================================================================================================================================
STANDARD FORM - FORM UCC-3 (REV. 9/1/92) (C) 1992 OFFICE OF THE SECRETARY OF STATE OF TEXAS
PRINTED BY JULIUS BLUMBERG, INC., N.Y.C. 10013
(1) FILING OFFICER COPY - NUMERICAL
</TABLE>
<PAGE> 1
EXHIBIT 10.2
[MCA FINANCIAL CORP. LOGO]
MCA FINANCIAL CORP.
MCA MORTGAGE CORPORATION
MORTGAGE CORPORATION OF AMERICA
MORTGAGE CORPORATION OF AMERICA, INC.
- --------------------------------------------------------------------------------
$25,000,000
10/97 SENIOR SECURED
SEASONED WAREHOUSE CREDIT AGREEMENT
DATED AS OF OCTOBER 31, 1997
- --------------------------------------------------------------------------------
A SYNDICATE OF SEASONED WAREHOUSE LENDERS
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
SEASONED WAREHOUSE AGENT
[CHASE LOGO] [TEXAS COMMERCE BANK LOGO]
DUPLICATE ORIGINAL
VOLUME I OF II
<PAGE> 2
LIST OF DOCUMENTS
FOR 10/97 SENIOR SECURED SEASONED WAREHOUSE CREDIT AGREEMENT
FOR MCA FINANCIAL CORP. AND AFFILIATED COMPANIES
1. 10/97 SENIOR SECURED SEASONED WAREHOUSE CREDIT AGREEMENT dated as of
October 31, 1997 among MCA Financial Corp., MCA Mortgage
Corporation, Mortgage Corporation of America (the "Borrowers") and
Mortgage Corporation of America, Inc. (collectively with the Borrowers,
the "Companies"), the Seasoned Warehouse Agent and the Seasoned
Warehouse Lenders, all of the capitalized terms in which have the same
meanings when used in this list, with the following:
Exhibits:
--------
A - Release Request form
B - Request for Advance form
C - Submission List form
D - form for Seasoned Warehouse Notes
E-1 - Seasoned Warehouse Security Agreement form
E-2 - UCC-1 Financing Statement form
F - Opinion of Borrowers' Counsel form
G-1 - Disbursement Request Certificate - for refinancing Eligible
Seasoned Warehouse Collateral
G-2 - Disbursement Request Certificate - for financing additional
Eligible Seasoned Warehouse Collateral
G-3 - Disbursement Request Certificate - for supplemental
Borrowing
H - Seasoned Warehouse Collateral Certificate form
I - Assignment and Assumption Agreement form
J - Amendment form
Schedules:
---------
AG - Applicable Guidelines
AI - Approved Investors
BB - Borrowing Base Calculations
CP - Collateral Procedures
EC - Eligibility Conditions
LC - the Lenders' Committed Sums and Funding Share Fractions
9.2(b) - Borrowing Base Certificate
10.1 - Subsidiaries
10.4 - Litigation and Judgments
11.2(d)- Management Report
11.12 - Senior Management
11.15 - Shareholders
12.4 - Existing indebtedness
12.6 - Existing Liens
12.13 - Affiliate Transactions
<PAGE> 3
2. SEASONED WAREHOUSE NOTE payable to the order of Texas Commerce Bank
National Association ($25,000,000)
3. SEASONED WAREHOUSE CUSTODY AGREEMENT
4. SEASONED WAREHOUSE SECURITY AGREEMENT
5. SEASONED WAREHOUSE FINANCING STATEMENTS
a. MCA Financial Corp. (for filing with Michigan Secretary of State)
b. MCA Mortgage Corporation (for filing with Michigan Secretary of
State)
c. Mortgage Corporation of America (for filing with Michigan
Secretary of State)
d. Mortgage Corporation of America, Inc. (for filing with Michigan
Secretary of State)
6. DISBURSEMENT REQUEST CERTIFICATE - for initial Borrowing (to refinance
Eligible Seasoned Warehouse Collateral)
7. REQUEST FOR APPROVAL, AND APPROVAL, of Senior Lender by the Board of
Trustees of the Policemen and Firemen Retirement System of the City of
Detroit, as subordinated lender to the Companies pursuant to $15
million Subordinated Promissory Note (Term Loan) dated July 18, 1996
8. OFFICERS' CERTIFICATE for MCA Financial Corp., accompanied by corporate
documents
9. OFFICERS' CERTIFICATE for MCA Mortgage Corporation, accompanied by
corporate documents
10. OFFICERS' CERTIFICATE for Mortgage Corporation of America, accompanied
by corporate documents
11. OFFICERS' CERTIFICATE for Mortgage Corporation of America, Inc.,
accompanied by corporate documents
12. CERTIFICATE of the Chief Financial Officer of MCA Financial Corp.,
certifying to a true and correct copy of the December 30, 1994,
Indenture relating to the 11% Asset-Backed Subordinated Debentures,
Series 1994, Due June 30, 2000, accompanied by Indenture
13. OPINION of Butzel Long, as counsel to Companies, addressed to Seasoned
Warehouse Agent
2
<PAGE> 4
10/97 SENIOR SECURED
SEASONED WAREHOUSE CREDIT AGREEMENT
AMONG
MCA FINANCIAL CORP.,
MCA MORTGAGE CORPORATION, and
MORTGAGE CORPORATION OF AMERICA,
as the Borrowers
together with
MORTGAGE CORPORATION OF AMERICA, INC.
as, collectively, the Companies,
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Seasoned Warehouse Agent,
and
CERTAIN LENDERS,
as Seasoned Warehouse Lenders
$25,000,000
DATED AS OF OCTOBER 31, 1997
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Definitions for Interest Calculations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1.3 Accounting Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1.4 Singular and Plural. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1.5 Certain Matters of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2. MULTIPLE COMPANIES; MCAI-OHIO'S COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.1 Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.2 Basis for Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.3 Joint and Several Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.4 Contribution Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.5 MCAI-Ohio's Consent to Pledge of its Collateral by MCAFC;
the Borrowers' Promise to Make Loan Proceeds Proportionately
Available to MCAI-Ohio; Further Assurances Concerning Collateral . . . . . . . . . . . . . . . . . 28
3. SEASONED WAREHOUSE LENDERS' COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.1 Revolving Credit Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.2 Expiration or Termination of the Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.3 Limitations on Borrowings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4. BORROWING PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.1 Request for Advance to Refinance Certain Existing Debt . . . . . . . . . . . . . . . . . . . . . . 31
4.2 Requests for Revolving Loans for Additional Eligible Seasoned
Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.3 Request for Supplemental Borrowing Against Eligible Seasoned Collateral's Collateral
Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.4 Requests for Advance Due by 1:00 PM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4.5 New Collateral (If Any) Due by 11:00 AM on the Day of a Requested Revolving Loan. . . . . . . . . . 32
4.6 If a Request for Advance or New Collateral Papers are Received Late;
Waiver of Claim for Any Late Funding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5. THE REVOLVING CREDIT NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6. INTEREST RATES; ADDITIONAL COSTS AND FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.1 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.2 Maximum Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.3 Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
</TABLE>
i
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<TABLE>
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6.4 Change in Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.5 Chief Credit Officer's Certificate Conclusive. . . . . . . . . . . . . . . . . . . . . . . . 36
6.6 Facility Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.7 Agent's Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.8 Custodian's Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.9 Other Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7. INTEREST AND PRINCIPAL PAYMENTS; DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.1 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.2 Pro Rata Distribution of Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.3 Changes in Commitments and Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.4 Acceptance and Application of Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.5 Invalidated Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8. COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.1 Security Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.2 Delivery of Additional Collateral or Mandatory Prepayment. . . . . . . . . . . . . . . . . . 41
8.3 Right of Redemption From Pledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.4 Releases of Pledged Loans Sold or Securitized . . . . . . . . . . . . . . . . . . . . . . . . 42
8.5 Return of Collateral at End of Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . 44
9. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.1 Initial Revolving Loan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.2 Conditions to All Disbursements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10. WARRANTIES AND REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.1 Corporate Existence and Power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.2 Authorization and Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.3 Valid and Binding Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.4 Actions, Suits or Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.5 No Liens, Pledges, Mortgages or Security Interests. . . . . . . . . . . . . . . . . . . . . 50
10.6 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.7 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.8 The Companies Have Paid Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.9 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.10 Margin Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.11 No Pension Funding Deficiency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
10.12 Approved Lender, Mortgagee, Issuer and Servicer. . . . . . . . . . . . . . . . . . . . . . 52
10.13 Investment Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
10.14 Misrepresentation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.1 Pay Revolving Credit Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
</TABLE>
ii
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11.2 Furnish Financial and Other Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.3 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.4 Pay Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
11.5 Maintain Corporation and Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
11.6 Maintain Net Worth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
11.7 Limit Leverage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.8 Maintain Servicing Portfolio Level. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.9 Maintain Fixed Charges Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.10 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.11 Use of Loan Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.12 Senior Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.13 Accounting; Access to Records, Books, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 57
11.14 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
11.15 Shareholder Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12.1 Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.2 Stock Acquisition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.3 Liens and Encumbrances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.4 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.5 Extension of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.6 Guarantee Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
12.7 Subordinate Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
12.8 Property Transfer; Merger or Lease-Back . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
12.9 Nature of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.10 Acquire Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.11 Acquire Fixed Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.12 Pension Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.13 Affiliate Transactions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.14 Servicing Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
12.15 Misrepresentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
13. EVENTS OF DEFAULT; REMEDIES; APPLICATION OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
13.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
13.2 Automatic Termination and Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.3 Acceleration for Other Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.4 Remedies; Remedies Are Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.5 Agent and Lenders Not Liable; Waiver of Claims . . . . . . . . . . . . . . . . . . . . . . . . . 64
13.6 Waiver of Possible Implied Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
13.7 Protective Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
13.8 Delay Not Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
13.9 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
13.10 Concerning Obligations Payable Upon Demand. . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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13.11 Marshaling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
13.12 Cure or Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
14. RELATIONSHIPS AMONG THE AGENT AND THE LENDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
14.1 Agent's Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
14.2 Actions Requiring All Lenders' Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
14.4 Agent's Discretionary Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
14.5 Lenders' Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
14.6 Lenders' Sharing Arrangement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
14.7 Lenders' Acknowledgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
14.8 Agent's Representations to Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
14.9 Agent's Duty of Care, Express Negligence Waiver and Release. . . . . . . . . . . . . . . . . . . 71
14.10 Calculations of Shares of Principal and Other Sums. . . . . . . . . . . . . . . . . . . . . . . . 71
14.11 Qualifications of the Seasoned Warehouse Agent. . . . . . . . . . . . . . . . . . . . . . . . . . 72
14.12 Resignation of the Seasoned Warehouse Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . 72
14.13 Removal of the Seasoned Warehouse Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
14.14 Effective Date of Resignation or Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.15 Successor Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.16 Merger of the Seasoned Warehouse Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.17 Participation; Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.18 Beneficiaries of this Section. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
15. REIMBURSEMENT OF EXPENSES; INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
15.1 Pay Negotiation and Administration Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
15.2 Pay Certain Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
15.3 Expenses; Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
16. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
16.1 Items to Be Satisfactory to the Seasoned Warehouse Agent. . . . . . . . . . . . . . . . . . . . . 77
16.2 Usury Not Intended; Credit or Refund of Any Excess Payments. . . . . . . . . . . . . . . . . . . 77
16.3 Independent Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
16.4 Covenant Independence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
16.5 Relationship of the Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
16.6 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
16.7 Governing Law, Jurisdiction and Venue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
16.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
16.9 Survival of Warranties, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
16.10 Payments on Saturdays, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
16.11 Terms Binding Upon Successors; Survival of Representations. . . . . . . . . . . . . . . . . . . . 80
16.12 Disclosure of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
16.13 Maintenance of Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
16.14 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
16.15 Counterpart Execution; Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
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16.16 Integration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
16.17 General Purpose of Loan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
16.18 Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
16.19 WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
16.20 Notice Pursuant to Tex. Bus. & Comm. Code Section 26.02. . . . . . . . . . . . . . . . . . . . 84
</TABLE>
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<PAGE> 10
INDEX OF DEFINED TERMS
<TABLE>
<S> <C>
"10/97 Servicing/Residuals Loan Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"10/97 Warehouse Credit Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"9/97 Servicing/Residuals Loan Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Agent's Fee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
"Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Agent's Fee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Aggregate Committed Sum" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Aggregate Credit Limit" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Applicable Margin" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Appraisal Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Appraisal" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Approved Investor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"B/C Paper Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Bankruptcy Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Base Rate Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Base Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Basic Papers" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrowers" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Borrowing Base Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
"Borrowing Base Deficiency" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrowing Base Report" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrowing Base" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Borrowing Price Category" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Calendar Month" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Cash Flow" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Ceiling Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Certifying Officer's Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Chapter 1D" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
"Collateral Papers" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Collateral Value" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Collateral" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Commitment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Committed Sum" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Companies" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Consolidated" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Correction Period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Custody Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
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"Dated Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
"Dated Liabilities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
"Debtor Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Disbursement Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Effective Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Eligible Assignee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
"Eligible Foreclosure Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Foreclosure/REO/Repurchase Collateral" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Jumbo Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Land Contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Mortgage Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Mortgage Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible REO" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Repurchased Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Seasoned Collateral" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Eligible Subprime Mortgage Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Enhancement Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Environmental Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"ERISA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"FAB Principal Equivalent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
"FAB Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
"Facility Fee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
"Federal Funds Effective Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
"FHA Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"FHA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"FHLMC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"File" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Financial Statements" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
"Financing Statements" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Fixed Charges Coverage Ratio" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Fixed Charges" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"FNMA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Foreclosure Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Foreclosure/REO/Repurchase Loans Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Foreclosure/REO/Repurchase Loans Sublimit" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Free Adjusted Balances" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
"Free Redemption Proviso" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
"Free Release Proviso" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
"Funding Share" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"GAAP" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"GNMA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
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<TABLE>
<S> <C>
"Governmental Authority" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Guide" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Hazardous Substance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Indemnified Liabilities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
"Indemnified Parties" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
"indicated rate ceiling" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"IRC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Jumbo Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Land Contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Lender Lien" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Lenders, Et Al" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
"Lenders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Lender" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"LIBOR Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"LIBOR Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"LIBOR" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"Lien" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Loan Documents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Majority Seasoned Warehouse Lenders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Market Value" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Material Adverse Effect" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Maximum Amount" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"Maximum Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"MCAFC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"MCAI-Ohio" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"MCAMC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"MCA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Mortgage Collateral" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Mortgage Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Mortgage Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Mortgage Pool" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Mortgage Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Net Income" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Net Worth" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Note Payment/Funding Account" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Notice of Receipt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Obligations" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Officer's Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Past Due Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"PBGC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Pension Fund" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
iii
<PAGE> 13
<TABLE>
<S> <C>
"Permitted Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Person". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Pledged Loans Curtailment Report" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Pledged to the Seasoned Warehouse Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Prime Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
"Pro Rata" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Redemption Amount" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Release Request" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"REO" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Representative" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Repurchased Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Request for Advance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Responsible Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Reuters Screen LIBO Page" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
"Revolving Credit Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Revolving Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Seasoned Warehouse Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Seasoned Warehouse Borrowers". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Seasoned Warehouse Collateral Papers" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Lenders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Seasoned Warehouse Line Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Line Commitment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Line Committed Sum" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Line" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Loan Documents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Note Payment/Funding Account" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Seasoned Warehouse Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"Seasoned Warehouse Revolving Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"Seasoned Warehouse Security Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"Servicer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Servicing Portfolio" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Servicing Rights" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Servicing/Residuals Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Servicing/Residuals Lenders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Servicing/Residuals Loan Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
"Shipping Period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Solvent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Stated Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
"Stated Termination Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Sublimit" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Submission List" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Subordinated Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
iv
<PAGE> 14
<TABLE>
<S> <C>
"Taxes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"Termination Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"Texas Commerce Loan Balances" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
"Texas Commerce" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Texas Finance Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
"Tribunal" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"UCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"VA Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"VA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
"Warehouse Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Warehouse Credit Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Warehouse Lenders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Warehouse Revolving Loan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
"weekly ceiling" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
"Wire Instructions" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
v
<PAGE> 15
10/97 SENIOR SECURED
SEASONED WAREHOUSE CREDIT AGREEMENT
PREAMBLE
THIS 10/97 SENIOR SECURED SEASONED WAREHOUSE CREDIT AGREEMENT made and
delivered this 31st day of October, 1997 (the "EFFECTIVE DATE"), by and among
(i) 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. (MCAFC,
MCAMC and MCA are herein called the "SEASONED WAREHOUSE BORROWERS" and,
together with MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio
corporation, and all of their Subsidiaries, the "COMPANIES" or, within this
Agreement only, the "BORROWERS" and the "COMPANIES", respectively) and (ii)
TEXAS COMMERCE BANK NATIONAL ASSOCIATION ("TEXAS COMMERCE"), a national banking
association acting herein as a lender and as agent for the other Lenders and
Eligible Assignees (in that latter capacity, Texas Commerce is called the
"SEASONED WAREHOUSE AGENT" or, within this Agreement only, the "AGENT") and
such other lender(s) as may from time to time be party to this Agreement
(Texas Commerce as a lender and such other lenders are called the "SEASONED
WAREHOUSE LENDERS", or within this Agreement only, the "LENDERS"),
WITNESSETH:
RECITALS
The Borrowers have asked the Seasoned Warehouse Lenders and the
Seasoned Warehouse Agent to establish a senior, secured, warehouse revolving
line of credit with a revolving subline for the Borrowers to borrow from the
Seasoned Warehouse Lenders up to $30 million of principal outstanding from time
to time to finance the Companies' retention of seasoned Mortgage Loans and Land
Contracts until they are sold in the secondary market and to refinance the
Companies' existing debt heretofore incurred to Texas Commerce for those same
purposes, and the Seasoned Warehouse Lenders and the Seasoned Warehouse Agent
agree to do so on the terms and subject to the conditions of this Agreement.
The Lenders' and Agent's agreement to establish and continue the
warehouse credit line and its subline is made on the terms and subject to the
conditions of this Agreement. If there is any conflict or inconsistency
between any of the terms or provisions of this Agreement and any of the other
Seasoned Warehouse Loan Documents, this Agreement shall govern and control. If
there is any conflict between any provision of this Agreement and any later
supplement, amendment, restatement or replacement of it, then the latter shall
govern and control.
<PAGE> 16
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the Borrowers, the Seasoned Warehouse Lenders and
the Seasoned Warehouse Agent agree as follows:
1. DEFINITIONS
1.1 Defined Terms. The terms defined in this Section are
generally applicable. For convenience of reference, defined terms relating
only to the calculation and payment of interest are defined in SECTION 1.2.
Except where otherwise specifically provided, the following terms have the
following meanings in this Agreement and the other Seasoned Warehouse Loan
Documents:
"10/97 SERVICING/RESIDUALS LOAN AGREEMENT" means the 10/97 Revolving
Credit Loan Agreement (Secured) dated as of October 31, 1997 among the
Borrowers, Texas Commerce, as a lender and as agent for the other lenders
therein (the "SERVICING/RESIDUALS AGENT") and the other lenders party thereto
from time to time (such lenders being herein called the "SERVICING/RESIDUALS
LENDERS" and such loan agreement, as supplemented, amended or restated from
time to time, being herein called the "SERVICING/RESIDUALS LOAN AGREEMENT").
"10/97 WAREHOUSE CREDIT AGREEMENT" means the 10/97 Senior Secured
Warehouse Credit Agreement dated as of October 31, 1997 among the Borrowers,
Texas Commerce, as a lender and as agent for the other lenders (the "WAREHOUSE
AGENT") and the other lenders party thereto from time to time (such lenders
being herein called the "WAREHOUSE LENDERS" and such credit agreement, as
supplemented, amended or restated from time to time, being herein called the
"WAREHOUSE CREDIT AGREEMENT")
"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 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.
"AGENT" is defined in this Agreement's Preamble.
"AGENT'S FEE" means, in this Agreement only, the Seasoned Warehouse
Agent's Fee.
"AGREEMENT" means, in this Agreement only, this 10/97 Senior Secured
Seasoned Warehouse Credit Agreement.
"AGGREGATE COMMITTED SUM" means, on any day, the lesser of (a)
Twenty-five Million Dollars ($25,000,000) and (b) the aggregate of the Seasoned
Warehouse Lenders' individual
2
<PAGE> 17
Committed Sums for that day as stated in the definition of "Committed Sum" (or
such lesser amount to which the Aggregate Committed Sum may be reduced by the
Borrowers from time to time under SECTION 7.3); 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 Agent
and the Lenders (or any one or more of them) to the Borrowers from time to time
(including the facilities provided and to be provided by the
Servicing/Residuals Loan Agreement and the Warehouse Credit Agreement), shall
never exceed Two Hundred Thirteen Million Five Hundred Thousand Dollars
($213,500,000) in the aggregate (the "AGGREGATE CREDIT LIMIT").
"AGGREGATE CREDIT LIMIT" is defined in the definition of "Aggregate
Committed Sum".
"APPRAISAL" means, for any Mortgage Loan or other item of Collateral:
(i) for which applicable Appraisal Laws require an appraisal, a
written appraisal report as that term is defined in the Code of Professional
Ethics of the American Institute of Appraisers, that meets the requirements of
all Appraisal Laws, prepared by a professional appraiser who is a member of the
American Institute of Appraisers and who is acceptable to the Seasoned
Warehouse Agent, setting forth such appraiser's determination of the market
value of the real property securing the Mortgage Loan or other item of
Collateral;
(ii) for which applicable Appraisal Laws do not require an appraisal
but do require another specified form or type of evaluation report or opinion,
a written evaluation report that meets -- and that is prepared by a Person
acceptable to the Seasoned Warehouse Agent -- the requirements of such
Appraisal Laws, setting forth such evaluator's opinion of the market value of
the real property securing such Mortgage Loan or of such other item of
Collateral; or
(iii) for which applicable Appraisal Laws do not require an
evaluation report or opinion, but the Seasoned Warehouse Agent does, a written
evaluation report that meets the Seasoned Warehouse Agent's requirements, and
that is prepared by a Person acceptable to the Seasoned Warehouse Agent,
setting forth such evaluator's opinion of the market value of the real property
securing such Mortgage Loan or of such other item of Collateral;
in form, scope and substance satisfactory to the Seasoned Warehouse Agent.
"APPRAISAL LAW" means any Law that is applicable to appraisals of
mortgaged residential property in connection with transactions involving that
property, including Title XI of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989, the Federal Deposit Insurance Corporation
Improvement Act of 1991, 12 C.F.R. Chapter I, Part 34, Subpart C, 12 C.F.R.
Chapter II, Subchapter A. Part 225, Subpart G, and 12 C.F.R. Chapter III,
Subchapter B, Part 323.
"APPROVED INVESTOR" means (a) FHLMC, FNMA, GNMA, and (b) any other
Person named on SCHEDULE AI, as that Schedule may be supplemented or amended
(i) by the Borrowers and the Seasoned Warehouse Agent to remove or add other
names as the Seasoned Warehouse Agent and
3
<PAGE> 18
the Borrowers may agree, (ii) by either the Seasoned Warehouse Agent or the
Majority Seasoned Warehouse Lenders to remove any such other Person after the
Seasoned Warehouse Agent has, or the Majority Seasoned Warehouse Lenders have,
given the Borrowers notice of, and an opportunity to discuss, the proposed
removal of that Person, or (iii) automatically, without signing by any party,
to remove any such Person who then (A) is not Solvent, (B) fails to pay its
debts generally as they become due, (C) voluntarily seeks, consents to, or
acquiesces in the benefit of any Debtor Law, or (D) becomes a party to or is
made the subject of any proceeding provided for by any Debtor Law, other than
as a creditor or claimant, that could suspend or otherwise adversely affect the
rights of any Borrower, the Seasoned Warehouse Agent, the Custodian or any
Lender in connection with the transactions contemplated in the Seasoned
Warehouse Loan Documents.
"BANKRUPTCY CODE" means Title 11 of the United States Code, as amended
from time to time, or any successor act or code.
"BASIC PAPERS" means all of the Collateral Papers that must be
delivered to the Custodian in order for any particular item of Seasoned
Warehouse Collateral to be Eligible Seasoned Collateral and have Collateral
Value. The Custody Agreement lists the Basic Papers for each such category of
Collateral, and reference is here made to the Custody Agreement for those
listings.
"B/C PAPER LOAN" means a Mortgage Loan owned by a Company that has
been assigned a rating of "B" or "C" by the relevant Company pursuant to
underwriting standards acceptable to the Seasoned Warehouse Agent, and based
upon such Mortgage Loan's status as not complying with all applicable
requirements for purchase under either the FHLMC Guide or the FNMA Guide, and
therefore being saleable only to investors other than FHLMC or FNMA.
"BORROWER" is defined in this Agreement's Preamble.
"BORROWING" means, in this Agreement only, a Seasoned Warehouse Line
Borrowing.
"BORROWING BASE" is defined in, and calculated under, SCHEDULE BB.
"BORROWING BASE DEFICIENCY" means, on any day, the amount (if any) by
which the principal of the Seasoned Warehouse Revolving Loans outstanding on
that day exceeds the Borrowing Base on that day.
"BORROWING BASE CERTIFICATE" is defined in SECTION 9.2(b).
"BORROWING BASE REPORT" means a report executed by the Seasoned
Warehouse Agent and delivered to the Borrowers and the Seasoned Warehouse
Lenders in accordance with the provisions of SECTION 8.2.
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"BUSINESS DAY" means any day that is not a Saturday, a Sunday or a day
when Texas Commerce's main branch (currently located at 712 Main Street) in
Houston, Texas is not open for regular 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 all Seasoned Warehouse
Lenders' commitments to lend under this Agreement have terminated or have been
canceled.
"CASH FLOW" of any Person means, for any determination period, that
Person's 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.
"CERTIFYING OFFICER'S CERTIFICATE" means a certificate signed by (i)
an officer (authorized to sign an Officer's Certificate or a Certifying
Officer's Certificate) of the Companies, the relevant Servicer, the title
insurance company issuing the relevant Lender's Title Insurance Policy (as
defined in the Custody Agreement), the escrow/settlement agent or company for
the related Mortgage Loan(s), or other Person submitting a File to the Seasoned
Warehouse Agent or (ii) the closing attorney for the related Mortgage Loan(s).
(The text of any particular Certifying Officer's Certificate may be stamped
upon a File paper if such stamped text is manually signed by an officer
authorized to sign an Officer's Certificate or a Certifying Officer's
Certificate.)
"COLLATERAL" means, within this Agreement only, the Seasoned Warehouse
Collateral.
"COLLATERAL PAPERS" means, within this Agreement only, the Seasoned
Warehouse Collateral Papers.
"COLLATERAL VALUE" means the value of Eligible Seasoned Collateral for
purposes of this Agreement, as determined by the Seasoned Warehouse Agent in
accordance with SCHEDULE BB.
"COMMITMENT" means, within this Agreement only, a Lender's Seasoned
Warehouse Line Commitment.
"COMMITTED SUM" means, within this Agreement only, a Lender's Seasoned
Warehouse Line Committed Sum.
"COMPANIES" is defined in this Agreement's Preamble and means and
includes Borrowers and all of their Subsidiaries, including MCAI-Ohio.
"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 all such Persons determined on a
consolidated basis in accordance with GAAP. Unless otherwise
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<PAGE> 20
specified herein, references to "consolidated" financial statements or data of
any Company includes consolidation with its Subsidiaries in accordance with
GAAP.
"CORRECTION PERIOD" means twenty-one (21) calendar days for any
Collateral Papers for any Collateral shipped to a Company under SECTION 3.2 of
the Custody Agreement (for correction or servicing.)
"CUSTODIAN" means Texas Commerce, as Custodian under the Custody
Agreement, or any successor custodian under the Custody Agreement.
"CUSTODIAN'S FEE" is defined in SECTION 6.8.
"CUSTODY AGREEMENT" means the Seasoned Warehouse Custody Agreement of
even date herewith between the Companies and the Custodian, as it may be
supplemented, amended or restated from time to time. By this reference, the
Custody Agreement is incorporated into this Agreement; provided that, in
interpreting this Agreement or any of the other Seasoned Warehouse Loan
Documents except the Custody Agreement itself, definitions of terms in this
Agreement will control over any inconsistent definitions in the Custody
Agreement.
"DATED ASSETS" is defined in SECTION 2.4.
"DATED LIABILITIES" is defined in SECTION 2.4.
"DEBT" means, as of any determination date, 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 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.
"DISBURSEMENT DATE" means each date upon which the Seasoned Warehouse
Lenders make and the Seasoned Warehouse Agent disburses a Seasoned Warehouse
Revolving Loan to or for the account of the Borrowers under SECTION 3.1.
"EFFECTIVE DATE" is defined in this Agreement's Preamble.
"ELIGIBLE B/C PAPER LOAN" means, at any time, a Mortgage Loan for
which the applicable conditions for eligibility as an Eligible B/C Paper Loan
that are described in SCHEDULE EC are satisfied.
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"ELIGIBLE FORECLOSURE LOAN" means, at any time, a Foreclosure Loan for
which the applicable conditions for eligibility as an Eligible Foreclosure Loan
that are described on SCHEDULE EC are satisfied.
"ELIGIBLE FORECLOSURE/REO/REPURCHASE COLLATERAL" means, for any day,
all Eligible Foreclosure Loans, Eligible REO and Eligible Repurchased Loans on
that day.
"ELIGIBLE JUMBO LOAN" means, at any time, a Jumbo Loan for which the
applicable conditions for eligibility as an Eligible Jumbo Loan that are
described in SCHEDULE EC are satisfied.
"ELIGIBLE LAND CONTRACT" means, at any time, a Land Contract for which
the applicable conditions for eligibility as an Eligible Land Contract that are
described in SCHEDULE EC are satisfied.
"ELIGIBLE MORTGAGE SECURITY" means, at any time, a Mortgage Security
for which the applicable conditions for eligibility as an Eligible Mortgage
Security that are described in SCHEDULE EC are satisfied.
"ELIGIBLE MORTGAGE LOAN" means, at any time, a Mortgage Loan for which
the applicable conditions for eligibility as an Eligible Mortgage Loan that are
described in SCHEDULE EC are satisfied.
"ELIGIBLE REO" means, at any time, a Mortgage Loan for which the
applicable conditions for eligibility as Eligible REO that are described in
SCHEDULE EC are satisfied.
"ELIGIBLE REPURCHASED LOAN" means, at any time, a Mortgage Loan for
which the applicable conditions for eligibility as an Eligible Repurchased Loan
that are described in SCHEDULE EC are satisfied.
"ELIGIBLE SEASONED COLLATERAL" means, at any time, Collateral for
which the applicable conditions for inclusion in the Borrowing Base are
satisfied.
"ELIGIBLE SUBPRIME MORTGAGE LOAN" means, at any time, a Mortgage Loan
for which the applicable conditions for eligibility as an Eligible Subprime
Mortgage Loan that are described in SCHEDULE EC are satisfied.
"ENHANCEMENT AGREEMENT" means the Amended and Restated Credit
Enhancement Umbrella Agreement dated June 30, 1997 among MCAFC, MCAMC and MCA
and the Pension Fund, as amended, supplemented or otherwise modified from time
to time.
"ENVIRONMENTAL LAW" means any Law that relates to pollution, the
protection of human health and the environment, health and safety, or to
Hazardous Substances, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42
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<PAGE> 22
U.S.C. Section 9601, et seq.), the Solid Waste Disposal Act, as amended (42
U.S.C. Section 6901 et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Section 1801, et seq.), the Clean Air Act, as amended (42
U.S.C. Section 7401, et seq.), the Federal Water Pollution Control Act, as
amended (33 U.S.C. Section 1251, et seq.), the Toxic Substances Control Act, as
amended (15 U.S.C. Section 2601 et seq.), the Safe Drinking Water Act, as
amended (42 U.S.C. Section 300f et seq.), the Atomic Energy Act, as amended (42
U.S.C. Section 2014 et seq.), the Federal Insecticide, Fungicide and
Rodenticide Act, as amended (7 U.S.C. Section 136, et seq.), the Oil Pollution
Act of 1990, as amended (33 U.S.C. Section 2701, et seq.), the Emergency
Planning and Community Right-to-Know Act of 1986, as amended (42 U.S.C. Section
11001. et seq.), the Occupational Safety and Health Act, as amended (29 U.S.C.
Section 651 et seq.), the Texas Water Code, as amended, and the Texas Health
and Safety Code, as amended, as well as the regulations adopted and
publications promulgated pursuant to the above.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor act or code.
"FACILITY FEE" is defined in SECTION 6.6.
"FHA" means the Federal Housing Administration within the United
States Department of Housing and Urban Department.
"FHA LOAN" means a Mortgage Loan which is either (a) fully or
partially insured by FHA under the National Housing Act or the Housing Act of
1949, (b) subject to a current, binding, and enforceable commitment issued by
FHA for that insurance, or (c) eligible for direct endorsement under the FHA
Direct Endorsement Program.
"FHLMC" means the Federal Home Loan Mortgage Corporation and any
successor thereto.
"FILE" means a file in the possession of the Custodian or its designee
(other than a Company or one of its Affiliates) containing all of the Basic
Papers for a Pledged Loan.
"FINANCIAL STATEMENTS" is defined in SECTION 10.6.
"FINANCING STATEMENTS" means UCC financing statements describing the
Seasoned Warehouse Agent (as agent and Representative of the Seasoned Warehouse
Lenders) as secured party and a Company as debtor covering the Collateral and
otherwise in such form, for filing in such jurisdictions and with such filing
offices, as the Seasoned Warehouse Agent shall reasonably deem necessary or
advisable, in the form of EXHIBIT E-2 or such other form as the Seasoned
Warehouse Agent shall reasonably require, and includes UCC-3 (assignments) of
Texas Commerce's existing security interests in the Collateral to the Seasoned
Warehouse Agent, as agent and Representative of the Lenders under and pursuant
to this Agreement.
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"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.
"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.
"FORECLOSURE LOAN" means a Mortgage Loan owned by one of the Companies
that is in the process of being foreclosed.
"FOLLOW-UP NOTICE OF RECEIPT" means an instrument substantially in the
form of the Notice of Receipt or Follow-up Notice of Receipt exhibit (named
that) to the Custody Agreement.
"FORECLOSURE/REO/REPURCHASE LOANS BORROWING" means a Borrowing that is
(a) subject to the Foreclosure/REO/Repurchase Loans Sublimit and (b) supported
by the portion of the Borrowing Base attributable to Foreclosure/REO/Repurchase
Loans.
"FORECLOSURE/REO/REPURCHASE LOANS SUBLIMIT" means Five Million Dollars
($5,000,000), the sublimit to the Seasoned Warehouse Line for financing of the
Companies' Eligible Foreclosure Loans, Eligible REO and Eligible Repurchase
Loans.
"FREE REDEMPTION PROVISO" is defined in SECTION 8.3(a).
"FREE RELEASE PROVISO" is defined in SECTION 8.4(a).
"FUNDING SHARE" means, on any day and for each Lender, that proportion
of each Seasoned Warehouse Revolving Loan that bears the same ratio to the
total amount of the Seasoned Warehouse Revolving Loans to be funded on that day
as that Lender's Committed Sum bears to the Aggregate Committed Sum for that
day.
"GAAP" means, as of any determination date, generally accepted
accounting principles consistently applied.
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"GOVERNMENTAL AUTHORITY" means any foreign governmental authority, the
United States of America, any state of the United States and any political
subdivision of any of the foregoing, and any agency, department, commission,
board, bureau, court or other tribunal.
"GNMA" means the Government National Mortgage Association and any
successor thereto.
"GUIDE" means the following, as applicable under the circumstances,
for (a) FHLMC, the Freddie Mac Sellers' & Servicers' Guide dated September 17,
1984, (b) FNMA, the Fannie Mae Servicing Guide dated June 30, 1990, and (c)
GNMA, as applicable, either (i) the GNMA I Mortgage Securities Guide, Handbook
GNMA 5500.1REV-6, or (ii) the GNMA II Mortgage Securities Guide, Handbook GNMA
5500.2.
"HAZARDOUS SUBSTANCE" means any substance, material or waste (a) the
presence or Release of which requires reporting, investigation or remediation
under any Environmental Law, (b) which is defined or listed as a hazardous
waste, hazardous substance, extremely hazardous waste, restricted hazardous
waste, hazardous material, toxic substance, or other similar or related term
under any Environmental Law, (c) which is toxic, radioactive, or otherwise
classified as hazardous or toxic and is or becomes regulated by any
governmental authority as a threat to human health or the environment, (d) the
presence of which causes or threatens to cause a nuisance upon the property or
to adjacent property, (e) the presence of which on adjacent properties could
constitute a trespass, (f) which is asbestos, (g) which is polychlorinated
biphenyls or (h) which contains petroleum or any petroleum derived product.
"INDEMNIFIED LIABILITIES" is defined in SECTION 15.3.
"INDEMNIFIED PARTIES" is defined in SECTION 15.3.
"IRC" means the Internal Revenue Code of 1986, as amended.
"JUMBO LOAN" means a Mortgage Loan (other than a FHA Loan or VA Loan)
that complies with all applicable requirements for purchase under the FNMA or
FHLMC standard form of conventional mortgage purchase contract then in effect
except that the amount of it exceeds the maximum loan amount under those
requirements.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed
to sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"LAWS" means all applicable statutes, laws, treaties, ordinances,
rules, regulations, orders, writs, injunctions, decrees, judgments, opinions,
and interpretations of any Tribunal.
"LENDER" means Texas Commerce and such other Persons, if any, as from
time to time with the consent of the other parties to this Agreement shall be a
party to this Agreement as a lender.
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"LENDER LIEN" means any present or future first priority (except as
otherwise specifically provided in the Seasoned Warehouse Loan Documents) Lien
securing the Obligations and assigned, conveyed, and granted to or created in
favor of the Seasoned Warehouse Agent, as agent and Representative of the
Seasoned Warehouse Lenders (including -- and initially meaning only -- Texas
Commerce) under the Seasoned Warehouse Loan Documents.
"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.
"LOAN DOCUMENTS", within this Agreement only, means Seasoned Warehouse
Loan Documents.
"MAJORITY SEASONED WAREHOUSE LENDERS" means, for any day, the holders
of Seasoned Warehouse Notes evidencing sixty-six and two-thirds percent (66
2/3%) or more of (a) the Aggregate Committed Sum if on that day Seasoned
Warehouse Lenders are committed to lend under this Agreement or (b) the
aggregate principal amount of the Borrowings outstanding hereunder if on or
before that day Seasoned Warehouse Lenders' Commitments have expired or have
been terminated and have not been reinstated.
"MARKET VALUE" means, at any time (a) for Mortgage Loans, except as
provided in CLAUSE (B) below, a market value based upon the then most recent
posted net yield for 30-day mandatory future delivery furnished by FNMA and
published and distributed by Telerate Mortgage Services or Knight-Ridder or (if
that posted net yield is not available from these services) obtained by the
Seasoned Warehouse Agent from FNMA, (b) for Jumbo Loans or any other Mortgage
Loan for which for any reason the posted rate is not available from FNMA, the
value reasonably determined by the Seasoned Warehouse Agent, (c) for Mortgage
Securities, the value reasonably determined by the Seasoned Warehouse Agent,
and (d) for REO, the lesser of (i) the written opinion of value of a reputable
and experienced real estate broker selected by the relevant Company or (ii) the
amount of the relevant Company 's claim against or receivable from any VA
mortgage guaranty, FHA mortgage insurance or private mortgage insurance
recoverable in respect of that REO.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (i) the
business, operations, properties, condition (financial or otherwise) or
prospects of a Company, (ii) the ability of any Company 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.
"MCA", "MCAFC" and "MCAMC" are each defined in this Agreement's
Preamble.
"MCAI-OHIO" is defined in this Agreement's Preamble. MCAI-Ohio is a
wholly-owned Subsidiary of Mortgage Corporation of America.
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"MORTGAGE COLLATERAL" means all Mortgage Loans, Land Contracts,
Mortgage Securities, REO and related Collateral Papers that are Collateral
under the Seasoned Warehouse Loan Documents.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan or a commercial loan, is evidenced by a valid promissory
note, and is secured by a mortgage, deed of trust or trust deed that grants a
perfected first priority Lien on the underlying residential real property.
"MORTGAGE NOTE" means the promissory note evidencing a Mortgage Loan.
"MORTGAGE POOL" means (a) a "group" or "grouping" of Mortgage Loans
assembled in accordance with, and as that term is used in, the FHLMC Guide, (b)
a "pool" of Mortgage Loans assembled in accordance with, and as that term is
used in, the FNMA Guide or the GNMA I Guide, (c) a "pool" of Mortgage Loans of
a "loan package" consisting of Mortgage Loans assembled in accordance with, and
as those terms are used in, the GNMA II Guide, or (d) any other pool of
Mortgage Loans assembled by an Approved Investor securing, and providing for
pass-through payments of principal and interest on, its Mortgage Securities.
"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 consolidated pretax income (or loss) of a
Person from continuing operations for any period determined in accordance with
GAAP.
"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" means a Seasoned Warehouse Note.
"NOTE PAYMENT/FUNDING ACCOUNT" means, in this Agreement only, the
Seasoned Warehouse Note Payment/Funding Account.
"NOTICE OF RECEIPT" means an acknowledgment to the Companies and a
certification to the Seasoned Warehouse Lenders by the Custodian in the
relevant form of the "Notice of Receipt or Follow-up Notice of Receipt" exhibit
to the Custody Agreement that the Custodian has received from (or on behalf of)
the Companies and holds, as custodian, Files for all of the Collateral
described in the Submission List(s) attached to the Notice of Receipt.
"OBLIGATIONS" means the principal of and interest on the Seasoned
Warehouse Revolving Loans, and, without duplication, all other indebtedness,
obligations and liabilities of the Borrowers
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to the Seasoned Warehouse Lenders and the Seasoned Warehouse Agent under or
arising out of or in connection with this Agreement or any other Seasoned
Warehouse 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
Seasoned Warehouse Loan Documents by the Borrowers and also includes amounts
that would become due but for operation of 11 U.S.C. Sections 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 Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"OFFICER'S CERTIFICATE" means a certificate executed on behalf of a
Company or another relevant Person by its (or if it is a partnership, its
general partner's) President, Treasurer or Assistant Treasurer, any of its Vice
Presidents or such other officer as shall be acceptable to the Seasoned
Warehouse Agent.
"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 Seasoned
Warehouse Agent, as agent and Representative of the Seasoned Warehouse Lenders;
(b) liens and encumbrances in favor of the Warehouse
Agent, as agent and Representative of the Warehouse Lenders;
(c) liens and encumbrances in favor of the Pension Fund
and the Servicing/Residuals Agent under the Servicing/Residuals Loan Agreement
granted under the Enhancement Agreement which, insofar as they cover or affect
the collateral for the Revolving Credit Loans under (and as that term is
defined in) the Servicing/Residuals Loan Agreement, are subordinate and
inferior to the security interests of the agent for the lenders under the
Servicing/Residuals Loan Agreement in that collateral;
(c) liens against the Borrowers' residual interests in
Mortgage Securities created from residential mortgage loans pooled by Borrowers
which residual interests (i) are not included in the Borrowing Base for, and as
that term is defined in, the Servicing/Residuals Loan Agreement and (ii) are
pledged by the Borrowers to another lender solely for the purpose of securing
financing for Borrowers of such residuals interests funded by such other
lender-pledgee;
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(d) 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 Seasoned Warehouse Agent,
bonded in an amount and manner satisfactory to the Seasoned Warehouse Agent;
(e) liens, not delinquent, created by statute in
connection with worker's compensation, unemployment insurance, social security
and similar statutory obligations;
(f) 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;
(g) 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;
(h) purchase money liens upon or in property of a Company
acquired after the date of this Agreement; provided that (i) no such lien shall
extend to or cover any other property of any Company and (ii) the aggregate
outstanding amount of the indebtedness secured by all such purchase money liens
shall not exceed One Hundred Thousand Dollars ($100,000) at any time; and
(i) existing liens described on SCHEDULE 12.6 to this
Agreement.
"PERSON" OR "PERSON" means any individual, corporation, partnership,
joint venture, association, trust, unincorporated association, joint stock
company, limited liability company, government, municipality, political
subdivision or agency or other entity.
"PLEDGED LOAN" means, on any day, a Mortgage Loan, Land Contract or
REO, any present or future right, title or interest in which is Pledged to the
Seasoned Warehouse Agent, or is intended to be Pledged to the Seasoned
Warehouse Agent, on that day, pursuant to, under or otherwise in respect of
this Agreement, whether or not it is Eligible Seasoned Collateral or has any
Collateral Value. Inclusion of any Mortgage Loan, Land Contract or REO in any
part of the Borrowing Base by Seasoned Warehouse Agent, the Custodian or any
Company shall be prima facie evidence that a Mortgage Loan, Land Contract or
REO is a Pledged Loan.
"PLEDGED LOANS CURTAILMENT REPORT" means a written report from a
Company or a Servicer for a Company to the Seasoned Warehouse Agent reflecting
principal payments and prepayments made on Pledged Loans in the preceding month
and their resulting new principal balances.
"PLEDGED TO THE SEASONED WAREHOUSE AGENT" means mortgaged or pledged
to the Seasoned Warehouse Agent, as (i) mortgagee and secured party for itself
as a Seasoned Warehouse Lender and
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(ii) agent and Representative of the other Seasoned Warehouse Lenders
(whichever of such terms are applicable to the relevant type or types of
Seasoned Warehouse Collateral referred to).
"PRO RATA" means in accordance with the Seasoned Warehouse Lenders'
respective ownership interests in the Borrowings. On any day, each of the
Seasoned Warehouse Lenders will own that portion of the Borrowings, both
principal and accrued interest (and a corresponding undivided interest in all
Seasoned Warehouse Collateral and all rights to Seasoned Warehouse Collateral
proceeds equal to that Seasoned Warehouse Lender's ownership interest in the
Borrowings), that bears the same ratio to the entire advanced and unpaid
principal of the Borrowings then outstanding as that Seasoned Warehouse
Lender's Committed Sum bears to the Aggregate Committed Sum, subject to this
adjustment: if at any time or times, any Seasoned Warehouse Lender fails to
fund any of its Funding Share of any Borrowing and one or more of the other
Seasoned Warehouse Lenders funds it (electively in accordance with the
provisions of SECTION 3.1), then:
(a) the respective ownership interests of both (i) the Seasoned
Warehouse Lender that failed or refused to fund its Funding Share and (ii) the
Seasoned Warehouse Lender (or Seasoned Warehouse Lenders) that funded such
Funding Share, shall be proportionately decreased and increased, respectively,
to the same extent as if their respective Committed Sums were changed in direct
proportion to the unreimbursed balance outstanding from time to time thereafter
of the amount so funded;
(b) the non-funding Seasoned Warehouse Lender's share of all
future distributions of any payments and prepayments on the Notes shall be paid
- -- pro rata among them in accordance with their respective unrecovered balances
of such non-funding Seasoned Warehouse Lender's Funding Share -- to the
Seasoned Warehouse Lender(s) that so funded such non-funding Seasoned Warehouse
Lender's Funding Share until all such funding Seasoned Warehouse Lender(s) have
been fully repaid the amount so funded; and
(c) such adjustment shall remain in effect until such time as the
Seasoned Warehouse Lender(s) that funded such Funding Share have been so fully
repaid.
If no other Seasoned Warehouse Lender funds the share of the Seasoned Warehouse
Lender who fails to fund its Funding Share of any Borrowing, then the Pro Rata
ownership interest in the Borrowings of the Seasoned Warehouse Lenders shall be
changed, in that case so that each Seasoned Warehouse Lender's Pro Rata
ownership interest in the Borrowings is equal to the ratio of that Seasoned
Warehouse Lender's aggregate outstanding Borrowings to the aggregate
outstanding Borrowings for all Seasoned Warehouse Lenders. Notwithstanding the
change in the Seasoned Warehouse Lenders' Pro Rata ownership interests in the
Borrowings due to any Seasoned Warehouse Lender's failure to fund its Funding
Share of any Borrowing(s), such failure to fund shall not diminish any Seasoned
Warehouse Lender's Funding Share of subsequent Borrowings.
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"REDEMPTION AMOUNT" means an amount equal to the Collateral Value of
the Collateral being redeemed, as determined by the Seasoned Warehouse Agent.
"RELEASE REQUEST" means a Release Request executed and delivered by
the Companies to the Seasoned Warehouse Agent and the Custodian substantially
in the form of EXHIBIT A.
"REO" means one- to four-family residential real estate owned by one
of the Companies as a result of foreclosure or a deed in lieu of foreclosure of
a Mortgage Loan owned by such Company, together with all VA mortgage guaranty,
FHA mortgage insurance or private mortgage insurance claims and receivables in
respect thereto.
"REPRESENTATIVE" means the Seasoned Warehouse Agent, as representative
of the Seasoned Warehouse Lenders within the meaning of the term
"representative" as used in UCC Section 9.105(13); provided that the Seasoned
Warehouse Agent is not, and shall not be deemed or held to be, a trustee or
fiduciary for the Seasoned Warehouse Lenders, the Companies or any Person
claiming by, through or under any of them.
"REPURCHASED LOAN" means a Mortgage Loan that has been repurchased by
a Company from an investor, or out of a Mortgage Pool, including one on which
Mortgage Securities are based, pursuant to such Company's obligation or right
to do so as Servicer of that Mortgage Loan.
"REQUEST FOR ADVANCE" means a request for a Seasoned Warehouse
Revolving Loan in the form of EXHIBIT B (or in another form approved by the
Seasoned Warehouse Agent) appropriate to the purpose for which such Seasoned
Warehouse Revolving Loan is being requested, duly completed, with all required
attachments and signed by the Borrowers.
"RESPONSIBLE OFFICER" means an officer or other representative of a
Company who has been duly authorized by that Company's Board of Directors (or
by a committee to which, or an officer to whom, the power to so authorize has
been duly delegated by that Company's Board of Directors) to act for and on
behalf of that Company, and as its act and deed, in respect of the relevant
subject matter or circumstances.
"REVOLVING LOAN" means, in this Agreement only, a Seasoned Warehouse
Revolving Loan.
"REVOLVING CREDIT NOTES" means, in this Agreement only, the Seasoned
Warehouse Notes.
"SEASONED WAREHOUSE AGENT" is defined in this Agreement's Preamble.
"SEASONED WAREHOUSE AGENT'S FEE" is defined in SECTION 6.7.
"SEASONED WAREHOUSE BORROWERS" are defined in this Agreement's
Preamble.
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"SEASONED WAREHOUSE COLLATERAL PAPERS" means the Mortgage Note, Land
Contract or papers evidencing or securing any right, title or interest in and
to REO, and all of the other papers related to the establishment of a Pledged
Loan and the creation, perfection and maintenance of its Lien and its Lien's
priority for a particular item of Seasoned Warehouse Collateral, including its
Basic Papers and including any papers evidencing, securing, guaranteeing or
otherwise related to or delivered in connection with any Pledged Loan, in a
form acceptable to the Seasoned Warehouse Agent (including any guaranties, lien
priority agreements, security agreements, mortgages, deeds of trust, collateral
assignments of a Company's interest in underlying obligations or security,
subordination agreements, negative pledge agreements, loan agreements and
title, mortgage, pool and casualty insurance policies), as any such papers may
be supplemented, amended, restated or replaced from time to time.
"SEASONED WAREHOUSE LINE" means the revolving mortgage warehouse line
of credit provided for in this Agreement.
"SEASONED WAREHOUSE LINE BORROWING" means any borrowing or loan under
this Agreement, including any protective advances whether or not requested by
the Borrowers.
"SEASONED WAREHOUSE LINE COMMITTED SUM" means, for any day, the
maximum amount a Seasoned Warehouse Lender is committed on that day to lend to
the Borrowers (or for their account) on a revolving credit basis pursuant to
this Agreement, on its terms and subject to its conditions. From the Effective
Date until the Termination Date or such other date (if any) when all or any of
them is changed by operation of the provisions of any agreement or legal
requirement, the Seasoned Warehouse Line Committed Sums for the Seasoned
Warehouse Lenders are as set forth on SCHEDULE LC, as it may be amended and
restated from time to time.
"SEASONED WAREHOUSE LINE COMMITMENT" means, at any time and for any
Seasoned Warehouse Lender, its commitment to fund its Funding Share of
Borrowings, limited in the aggregate to such Lender's Seasoned Warehouse Line
Committed Sum, as such amounts may be canceled or terminated under this
Agreement.
"SEASONED WAREHOUSE LOAN DOCUMENTS" means (a) this Agreement,
certificates and reports delivered under this Agreement, and exhibits and
schedules to this Agreement, (b) all agreements, documents, and instruments in
favor of the Seasoned Warehouse Agent, the Custodian or the Seasoned Warehouse
Lenders (or the Seasoned Warehouse Agent or Custodian on behalf of the Seasoned
Warehouse Lenders) ever delivered under this Agreement or otherwise delivered
in connection with any of the Obligations and (c) all renewals, extensions, and
restatements of, and amendments and supplements to, any of the foregoing.
"SEASONED WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers'
non-interest bearing demand checking account no. 0010-2673408 to be maintained
with Texas Commerce to be used for (a) the Seasoned Warehouse Agent's deposits
of proceeds of Seasoned Warehouse Revolving Loans made by the Seasoned
Warehouse Lenders to the Borrowers, and payments
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constituting the proceeds of principal from any Collateral; (b) the Seasoned
Warehouse Agent's deposits of principal and interest payments for the repayment
of Seasoned Warehouse Revolving Loans received from the Borrowers or for the
Borrowers' account; and (c) only if and when (i) no Default has occurred unless
it has been either cured by the Borrowers or waived in writing by the Seasoned
Warehouse Agent and (ii) no Event of Default has occurred unless the Seasoned
Warehouse Agent has declared in writing that it has been cured or waived, the
Borrowers' withdrawals of proceeds of Seasoned Warehouse Revolving Loans for
the purposes permitted under this Agreement and the Seasoned Warehouse Agent's
transfer from the Seasoned Warehouse Note Payment/Funding Account to the
Borrowers' own account(s) (or to a controlled disbursement account maintained
by the Borrowers with the Seasoned Warehouse Agent) of proceeds of sales or
other dispositions of released Collateral in excess of the total value of the
Borrowing Base then required. The Seasoned Warehouse Note Payment/Funding
Account is (and shall continuously be) part of the Collateral for the
Obligations. The Seasoned Warehouse Note Payment/Funding Account shall be
subject to setoff by the Seasoned Warehouse Agent in accordance with the
provisions of this Agreement. The Companies shall not have any right to
directly withdraw funds from the Note Payment/Funding Account, but instead such
funds may be withdrawn or paid out only against the order of an authorized
officer of the Seasoned Warehouse Agent, although under the circumstances
described in CLAUSE (C) of the first sentence of this definition and subject to
the conditions specified in that clause, the Seasoned Warehouse Agent shall use
diligent and reasonable efforts to cause Seasoned Warehouse Revolving Loans and
excess Collateral proceeds that are received as therein described and that are
deposited to the Note Payment/Funding Account before 12:30 PM on a Business Day
to be transferred to an account on which the designated Borrower(s) does have
withdrawal order authority on that same Business Day.
"SEASONED WAREHOUSE NOTES" means promissory notes dated the date of
this Agreement, each to be in substantially the form attached as EXHIBIT D,
executed and delivered by the Companies, payable to the order of a Seasoned
Warehouse Lender and in a face principal amount equal to that Seasoned
Warehouse Lender's Committed Sum, and that shall evidence the Companies' joint
and several obligation to repay to the order of that note's Seasoned Warehouse
Lender-payee all Borrowings funded by that Seasoned Warehouse Lender and
outstanding from time to time, plus accrued interest on that principal, and (b)
all renewals, modifications, extensions, increases and rearrangements of such
promissory notes and all substitutions or replacements for them or any of them.
"SEASONED WAREHOUSE REVOLVING LOAN" means a loan made by the Seasoned
Warehouse Lenders and disbursed by the Seasoned Warehouse Agent to the
Borrowers under SECTION 3.1 on a Disbursement Date.
"SEASONED WAREHOUSE SECURITY AGREEMENT" means the security agreement
in the form and content of EXHIBIT E-1 to this Agreement pursuant to which each
Company grants to the Seasoned Warehouse Agent, as agent and Representative of
the Seasoned Warehouse Lenders, a security interest in its Mortgage Loans, Land
Contracts and the other Collateral, as such security agreement may be amended,
supplemented or otherwise modified from time to time.
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"SECURITY AGREEMENT" means, in this Agreement only, the Seasoned
Warehouse Security Agreement.
"SERVICER" means variously a "seller," "servicer," "issuer," or
"lender," as defined or used in the applicable Guide in respect of a Person
having Servicing Rights.
"SERVICING PORTFOLIO" means, at any time, the total unpaid principal
amount of Mortgage Loans serviced by any Company for a fee other than any
Mortgage Loans serviced by the Companies under a subservicing agreement or a
master servicing agreement.
"SERVICING/RESIDUALS AGENT" is defined in the definition of "10/97
Servicing/Residuals Loan Agreement".
"SERVICING/RESIDUALS LENDERS" is defined in the definition of "10/97
Servicing/Residuals Loan Agreement".
"SERVICING/RESIDUALS LOAN AGREEMENT" is defined in the definition of
"10/97 Servicing/Residuals Loan Agreement".
"SERVICING RIGHTS" means all of a Company's right, title and interest
in, to and under the following contracts, arrangements and understandings,
whether now owned or hereafter acquired:
(a) all agreements, instruments, commitments and
documents evidencing such Company's conditional, non-delegable right to service
mortgages owned by FHLMC, and to hold and maintain the related escrow funds, in
exchange for such Company's right to retain certain payments otherwise due to
FHLMC pursuant to the terms of such Company's servicing contract with FHLMC;
(b) all agreements, instruments, commitments and
documents evidencing any rights hereafter acquired by such Company 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 such Company's servicing contract with GNMA;
(c) the agreements, instruments, commitments and
documents evidencing any rights hereafter acquired by such Company 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 servicing contract between such Company and FNMA that meets the
following conditions: (i) the specific enumerated loans to which such rights
apply have been identified on a schedule submitted by the Companies and
acknowledged by the Seasoned Warehouse Agent; (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 Seasoned Warehouse
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Revolving Loans to be secured thereby shall be used only for one or more of the
purposes specified in such FNMA acknowledgment agreement or otherwise permitted
by FNMA;
(d) all agreements, instruments, commitments and
documents evidencing any rights hereafter acquired by such Company 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 Company and such mortgage investor
(or its master servicer); and
(e) all books, ledgers, records, computer software and
programs, instructional manuals and other written or electronic information
used by such Company in connection with the servicing of mortgage loans and
real estate pursuant to the servicing contracts referred to in the preceding
clauses of this definition (but only those servicing contracts with FNMA that
are described in clause (c) above) or any other servicing contract.
"SHIPPING PERIOD" means forty-five (45) calendar days for the
Collateral Papers for any Collateral shipped to or for an investor under the
applicable provisions of the Custody Agreement.
"SOLVENT" means, for any Person, that (a) the fair market value of its
assets exceeds its liabilities, (b) it has sufficient cash flow to enable it to
pay its debts as they mature, and (c) it does not have unreasonably small
capital to conduct its businesses.
"STATED TERMINATION DATE" means January 31, 2000.
"SUBMISSION LIST" means a listing and description in the form of the
appropriate annex to EXHIBIT C of Collateral sent and pledged to the Seasoned
Warehouse Agent by the Companies pursuant to this Agreement.
"SUBORDINATED DEBT" means any Company's Debt on which no principal
payments are due until after the Termination Date and that is both unsecured
and expressly subordinated to the Obligations, in writing and in form and
substance acceptable to the Seasoned Warehouse Agent.
"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 determination date, shall be owned directly, or indirectly
through one or more Subsidiaries, by a Company.
"SUBLIMIT" means the Foreclosure/REO/Repurchase Loans Sublimit.
"SUBPRIME" is a preface to the term "Mortgage Loan" meaning that such
Mortgage Loan is not eligible for purchase by GNMA, FNMA or FHLMC.
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"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 the first to occur of:
(i) the Stated Termination Date;
(ii) such date, if any, as of which the Borrowers shall permanently
terminate the Seasoned Warehouse Lenders' Commitments pursuant to the
provisions of SECTION 7.3;
(iii) the date to which the maturity of the Seasoned Warehouse
Revolving Loans shall be accelerated by the Seasoned Warehouse Agent on account
of an Event of Default; or
(v) the date to which the maturity of the Seasoned Warehouse
Revolving Loans shall be accelerated, made due or treated as due by operation
of Law.
"TEXAS COMMERCE" is defined in this Agreement's Preamble.
"TRANSFEREE" is defined in SECTION 16.12.
"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.
"VA" means the U.S. Department of Veterans Affairs.
"VA LOAN" means a Mortgage Loan either (a) full or partial payment of
which is guaranteed by VA under the Servicemen's Readjustment Act of 1944 or
Chapter 37 of Title 38 of the United States Code, (b) for which VA has issued a
current binding and enforceable commitment for such a guaranty, or (c) which is
subject to automatic guarantee by VA, which in each case, the applicable
guaranty, commitment to guarantee, or automatic guaranty is for the maximum
amount permitted by Law.
"WAREHOUSE AGENT" is defined in the definition of "10/97 Warehouse
Credit Agreement."
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"WAREHOUSE COLLATERAL" means collateral securing Debt under the
Warehouse Credit Agreement.
"WAREHOUSE CREDIT AGREEMENT" is defined in the definition of "10/97
Warehouse Credit Agreement."
"WAREHOUSE LENDERS" is defined in the definition of "10/97 Warehouse
Credit Agreement."
"WIRE INSTRUCTIONS" means, for any Person, the information for wire
transfers of funds to that Person, which (until changed by written notice to
all other parties to this Agreement) are stated for (a) the Borrowers and the
Seasoned Warehouse Agent beside their names on the signature pages below, and
(b) each Lender, with its name on SCHEDULE LC.
1.2 Definitions for Interest Calculations. For convenience of
reference, definitions used primarily in provisions relating to calculation and
payment of interest are grouped together in this Section. Except where otherwise
specifically provided, the following terms have the following meanings in this
Agreement and the other Seasoned Warehouse Loan Documents:
"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 1.000%
LIBOR Rate 3.000%
</TABLE>
"BASE RATE" means, for any day, an annual interest rate equal to the
lesser of (i) the sum of the Prime Rate for that day plus the Applicable Margin
for Base Rate Borrowings or (ii) the Ceiling Rate for that day.
"BASE RATE BORROWING" means any Borrowing bearing interest at the Base
Rate.
"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.
"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 applicable Texas law establishes the Ceiling Rate, the Ceiling Rate
shall be the "weekly ceiling" (as defined in Section 303 of the Texas Finance
Code -- the "TEXAS FINANCE CODE" -- and Chapter 1D of Title 79, Texas Rev. Civ.
Stats. 1925 -- "CHAPTER 1D", as amended, respectively) for that day. The
Seasoned Warehouse Agent and Lenders may
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from time to time, as to current and future balances, implement any other
ceiling under the Texas Finance Code or Chapter 1D by notice to the Borrowers,
if and to the extent permitted by the Texas Finance Code or Chapter 1D.
"CHAPTER 1D" is defined in the definition of "Ceiling Rate"
"FAB PRINCIPAL EQUIVALENT" means that portion of aggregate total of
principal Borrowings outstanding on any day that is both (1) not past due and
(2) less than or equal to the Free Adjusted Balances for that day.
"FAB RATE" means three percent (3%) per annum.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published for
that day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for
the day of such transactions received by the Seasoned Warehouse Agent from
three (3) federal funds brokers of recognized standing selected by the Seasoned
Warehouse Agent. If for any reason the Seasoned Warehouse Agent shall
determine (and its determination shall be conclusive absent manifest error)
that it is unable to ascertain for any reason -- including the Seasoned
Warehouse Agent's inability or failure to obtain sufficient quotations in
accordance with the immediately preceding sentence -- the Federal Funds
Effective Rate for any day, then for each such day that such circumstances
exist, the Federal Funds Effective Rate shall be deemed to be equal to the
Prime Rate for that day minus one percent (-1.0%). Any rate of interest based
on the Federal Funds Effective Rate shall be (a) computed on the basis of a
360-day year applied for the actual number of days for which the principal
amount to which it applies is outstanding and bears interest in accordance with
this Agreement at such rate of interest based on the Federal Funds Effective
Rate (i.e., on the 365/360 -- 366/360 in a leap year -- day basis) and (b)
adjusted as of the effective date of each change in the Federal Funds Effective
Rate.
"FREE ADJUSTED BALANCES" means, for any calendar month, that month's
daily average of all collected balances in all demand deposit accounts
maintained by the Companies (or maintained by the Companies' Affiliates at the
Companies' request) with Texas Commerce during that month (although neither the
Companies nor any of their Affiliates shall have any obligation whatsoever to
maintain any deposits with Texas Commerce) less amounts required and applied
(or to be applied) (a) to satisfy reserve, deposit insurance, special deposit
and Tax requirements (other than for Texas Commerce's general corporate income
or franchise Taxes) allocable to such accounts for that month and (b) to
compensate Texas Commerce for (i) services rendered to the Companies or any of
their Affiliates for that month if and to the extent, if any, that such
services are not separately billed and paid for, or (ii) any agreed reductions
in interest, fees and/or other normal banking charges (including interest, fees
and other amounts due to Texas Commerce under the Servicing/Residuals Loan
Agreement or the Warehouse Credit Agreement) other than interest and fees that
are part of the Obligations to Texas Commerce, with each element calculated in
accordance with Texas
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Commerce's system of allocating reserve and deposit insurance requirements,
charges for services and reductions in other normal banking charges, and as
that system may be changed from time to time without notice.
"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
Texas Commerce) 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 Agent 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 Dollars ($1,000,000) each for a one (1)
month period. Any rate of interest based on LIBOR shall be (a) computed on the
basis of a year of three hundred sixty (360) days applied for the actual number
of days for which the borrowing to which it applies is outstanding and bears
interest in accordance with this Agreement at such rate of interest based on
LIBOR Rate (i.e., on the 365/360 -- 366/360 in a leap year -- day basis) and
(b) adjusted as of the effective date of each change in LIBOR. The Seasoned
Warehouse Agent's determination of LIBOR for each day shall be conclusive and
binding, absent manifest error.
"LIBOR BORROWING" means any Borrowing that bears interest at the LIBOR
Rate.
"LIBOR RATE" means, for any day, an annual interest rate equal to the
lesser of (i) the sum of LIBOR for that day plus the Applicable LIBOR Margin or
(ii) the Ceiling Rate for that day.
"MAXIMUM AMOUNT" and "MAXIMUM RATE" respectively mean, for any day,
the maximum nonusurious amount of interest that, under applicable Law, the
relevant Lender(s) is permitted to contract for, charge, take, reserve, or
receive on the Obligations, and the Ceiling Rate.
"PAST DUE RATE" means, for any day, an annual interest rate equal to
the lesser of (a) the Prime Rate for that day plus three percent (3%) or (b)
the Ceiling Rate for that day.
"PRIME RATE" means, on any day, the prime rate for that day as
announced by Texas Commerce. The Prime Rate is a reference rate and does not
necessarily represent Texas Commerce's best or lowest rate or a favored rate,
and Texas Commerce disclaims any statement, representation or warranty to the
contrary. Any rate of interest based on the Prime Rate shall be (a) computed
on the basis of a year of three hundred sixty (360) days applied for the actual
number of days for which the borrowing to which it applies is outstanding and
bears interest in accordance with this Agreement at such rate of interest based
on the Prime Rate (i.e., on the 365/360 -- 366/360 in a leap year -- day basis)
and (b) adjusted as of the effective date of each change in the Prime Rate.
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"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 Seasoned Warehouse Agent 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.
"STATED RATE" means, for each Borrowing and for any day, the LIBOR
Rate for that day and for the relevant Borrowing Purpose Category, subject to
the following exceptions:
(a) The annual interest rate to be applied to the FAB Principal
Equivalent that is outstanding on any day and not past due is the FAB Rate (and
not the LIBOR Rate or the Base Rate); provided that to the extent (if any) that
the FAB Principal Equivalent exceeds the Texas Commerce Loan Balances, upon the
Seasoned Warehouse Agent's receipt from the Companies of each interest payment
on the FAB Principal Equivalent, the Seasoned Warehouse Agent will pay to the
Lenders other than Texas Commerce (if any), ratably, interest on such excess at
a rate per annum equal to the Applicable Margin for LIBOR Borrowings plus the
Federal Funds Effective Rate, although if doing so would violate Regulation Q,
on demand made by the Seasoned Warehouse Agent (which demand the Seasoned
Warehouse Agent may make on its own initiative and will make upon the request
of any Lender), the Companies agree to pay to the Seasoned Warehouse Agent, as
additional interest on the FAB Principal Equivalent, the amount due to the
Lenders other than Texas Commerce pursuant to this CLAUSE (A) that exceeds the
amount the Seasoned Warehouse Agent can pay them without violating Regulation
Q, so that the Seasoned Warehouse Agent will have the funds to pay the interest
due the other Lender(s) without violating Regulation Q; provided further that
if any such payment by the Borrowers to the Seasoned Warehouse Agent would
exceed the Maximum Amount, then (i) interest on said excess of the FAB
Principal Equivalent over the Texas Commerce Loan Balances will be limited to
the Maximum Amount and (ii) the Companies shall pay to the Seasoned Warehouse
Agent pursuant to the provisions of this CLAUSE (A) only such Maximum Amount.
(b) The Borrowers may elect by written notice to the Seasoned
Warehouse Agent given on any Business Day to have any specified portion of the
principal of the Borrowings that (i) is not past due and (ii) would otherwise
bear interest at the LIBOR Rate, bear interest at the Base Rate, commencing on
the next Business Day (or any later day specified in such notice) and
continuing either until an ending date specified in that notice or, if no
ending date is specified, until the Borrowers give the Seasoned Warehouse
Agent a written notice canceling or appropriately modifying that election.
(c) If on any day the interest rate for any portion(s) of the
Borrowings made applicable by any other provision of this Agreement or any
other papers would exceed the Ceiling Rate for that day, then the Stated Rate
for each affected portion of the Borrowings shall be reset to equal the
respective Ceiling Rates for that day and for each day thereafter until the
total amount of interest accrued at the Stated Rate on the unpaid balance of
each such affected portion of the Borrowings equals the total amount of
interest that would have accrued on it if there were no Ceiling Rate. In no
event will any portion of the Borrowings ever bear interest on any day at a
rate greater
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<PAGE> 40
than the Ceiling Rate for that day nor will Agent ever be obligated to make any
payment that would violate Regulation Q.
For the entire principal of all Borrowings outstanding on any day, "STATED
RATE" means the effective weighted average per annum rate of interest
applicable to the Borrowings for that day, as determined pursuant to the
preceding provisions of this definition.
"TEXAS COMMERCE LOAN BALANCES" means, for any calendar month, the
average aggregate outstanding principal balances of the Seasoned Warehouse Note
held by Texas Commerce.
"TEXAS FINANCE CODE" is defined in the definition of "Ceiling Rate".
1.3 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.
1.4 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.
1.5 Certain Matters of Construction. The terms
"herein," "hereof," "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular section, paragraph or
subdivision. Except where expressly otherwise stated, references in this
Agreement to (i) Sections, Exhibits and Schedules are to Sections, Exhibits and
Schedules of and to this Agreement and (ii) time are to the time in Houston,
Texas. 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. Wherever the word "including" or any of its correlatives appears,
unless the context clearly requires otherwise, it shall be read as if written,
"including, but without limiting the generality of the foregoing statement,
subject or concept". 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. MULTIPLE COMPANIES; MCAI-OHIO'S COLLATERAL
2.1 Companies. Each representation and warranty in the
Seasoned Warehouse Loan Documents by a Company is deemed to be its separate
representation and warranty and the joint and several representation and
warranty of all Companies. Each covenant and agreement by any Company under
the Seasoned Warehouse Loan Documents is the joint and several covenant and
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<PAGE> 41
agreement of all Companies. Any communication under the Seasoned Warehouse
Loan Documents to any one Company is deemed to have been concurrently received
by each other Company.
2.2 Basis for Structure. The Companies that execute this Agreement (the
Borrowers and, in the capacity and for the purposes stated in the paragraph
immediately above its signature block below, MCAI-Ohio) desire to utilize their
borrowing potential on a combined basis to the same extent possible if they were
merged into a single corporate entity (although MCAI-Ohio has no right to borrow
hereunder). Each such Company has determined that it will specifically and
materially benefit from all Borrowings. The Companies intend, and Agent and
Lenders have required, that all Companies jointly and severally execute and
deliver this Agreement, the Notes, and certain other Seasoned Warehouse Loan
Documents and -- although MCAI-Ohio cannot borrow hereunder, as aforesaid --
MCAI-Ohio joins in this Agreement so that Collateral owned by MCAI-Ohio
(provided that it would otherwise qualify as Eligible Seasoned Collateral) may
be considered Eligible Seasoned Collateral and so that its value may be included
in any relevant Borrowing Base. The Companies, including MCAI-Ohio, have
requested and bargained for the structure and terms of, and security for, all
Borrowings.
2.3 Joint and Several Obligation. Each Company irrevocably and
unconditionally agrees (i) that it is jointly and severally liable to the
Seasoned Warehouse Agent, the Custodian and the Seasoned Warehouse Lenders for
full payment and performance of the Obligations, including all obligations of
the Companies under the Seasoned Warehouse Loan Documents, (ii) to fully pay and
perform the Obligations and all of those obligations of the Companies, and (iii)
to INDEMNIFY, AS A PRIMARY OBLIGOR, THE SEASONED WAREHOUSE AGENT, THE CUSTODIAN
AND EACH SEASONED WAREHOUSE LENDER AGAINST ANY LOSS THE SEASONED WAREHOUSE
AGENT, THE CUSTODIAN OR ANY SEASONED WAREHOUSE LENDER MAY INCUR AS A RESULT OF
ANY OBLIGATIONS OF ANY COMPANY BEING OR BECOMING VOID, VOIDABLE, UNENFORCEABLE
OR INEFFECTIVE FOR ANY REASON WHATSOEVER, WHETHER KNOWN TO THE SEASONED
WAREHOUSE AGENT, THE CUSTODIAN, ANY SEASONED WAREHOUSE LENDER OR ANY OTHER
PERSON, THE AMOUNT OF THAT LOSS BEING THE AMOUNT WHICH THE SEASONED WAREHOUSE
AGENT, THE CUSTODIAN OR THAT SEASONED WAREHOUSE LENDER, AS THE CASE MAY BE,
WOULD OTHERWISE HAVE BEEN ENTITLED TO RECOVER FROM ANY COMPANY. THIS INDEMNITY
SHALL SURVIVE THE PAYMENT AND PERFORMANCE OF THE OBLIGATIONS AND THE TERMINATION
OF THE SEASONED WAREHOUSE LOAN DOCUMENTS. With respect to its obligation to
repay Borrowings and to pay other obligations of another Company or Companies to
the Seasoned Warehouse Lenders, each Company agrees to the terms set forth in
SCHEDULE 2.3.
2.4 Contribution Rights. The Companies each intend that their joint and
several obligations under the Seasoned Warehouse Loan Documents, and that the
Liens therein granted in their Collateral, are not subject to challenge or
repudiation on any basis. Therefore, as of the date any transfer -- as that
term is defined in Bankruptcy Code Section 101(54) -- is deemed to occur under
the Seasoned Warehouse Loan Documents, each Company's liabilities under the
Seasoned Warehouse Loan Documents (including, in MCAI-Ohio's case, the
liabilities secured by its Collateral) and all of such Company's other
liabilities, calculated in each case to the full extent of that Company's
probable net exposure when and if those liabilities become absolute and mature
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("DATED LIABILITIES"), are intended by that Company to be less than the fair
valuation of all of its assets as of that date ("DATED ASSETS"). To that end,
each Company (i) grants to and recognizes in each other Company ratable rights
of subrogation and contribution in the amount, if any, by which the granting
Company's Dated Assets (but for the total subrogation and contribution in its
favor under this Section) would exceed the granting Company's Dated
Liabilities, and (ii) acknowledges receipt of and recognizes its ratable rights
to subrogation and contribution from each such other Company in the amount that
the other such Company's Dated Assets (but for the total subrogation and
contribution in its favor under this section) would exceed the other such
Company's Dated Liabilities. Each Company will recognize rights of subrogation
and contribution at least equal to its obligations under the Seasoned
Warehouse Loan Documents, including, in MCAI-Ohio's case, the obligations
secured by its Collateral. It is a material objective of this Section that
each Company recognize rights to subrogation and contribution rather than be
deemed not to be Solvent by reasons of an arbitrary interpretation of its joint
and several obligations under the Seasoned Warehouse Loan Documents.
2.5 MCAI-Ohio's Consent to Pledge of its Collateral by MCAFC; the
Borrowers' Promise to Make Loan Proceeds Proportionately Available to MCAI-Ohio;
Further Assurances Concerning Collateral. MCAI-Ohio hereby irrevocably appoints
MCAFC as its agent to pledge to the Seasoned Warehouse Agent, as agent and
Representative of the Seasoned Warehouse Lenders, all of MCAI-Ohio's right,
title and interest in and to any and all Collateral from time to time pledged to
secure or otherwise securing the Obligations, or any portion of them, and agrees
that MCAFC's pledge of any thereof from time to time so made to the Seasoned
Warehouse Agent shall automatically constitute the pledge of all of MCAI-Ohio's
right, title and interest therein, whether or not that (or that MCAFC is acting
as agent for MCAI-Ohio) is stated in (or in connection with) such pledge, to the
exact same effect as if MCAI-Ohio had itself pledged such Collateral, and (iii)
acknowledges and agrees that MCAI-Ohio has received and will receive reasonably
equivalent value for all such past, concurrent and future pledges thereof by
reason of the Borrowers' joint and several promise and agreement to and with
MCAI-Ohio, hereby made and confirmed, to make that share of the proceeds of each
Borrowing (or an equal amount in cash or cash equivalents) which is
proportionate to the value of MCAI-Ohio's Collateral in the Borrowing Base
against which such Borrowing is made, available to MCAI-Ohio (either by
relending such proceeds, or by MCAFC's lending or contributing as new cash
capital, an equal amount of cash or cash equivalents, to MCAI-Ohio) before, at
or within a reasonable time after such Borrowing shall have been funded. In
furtherance of the foregoing provisions of this Section, MCAFC and MCAI-Ohio
hereby agree to (i) perform, or cause to be performed, such acts and (ii) duly
authorize, execute, acknowledge, deliver, file and record (or cause such actions
to be taken with respect to) such financing statements, assignments, security
agreements, deeds of trust and mortgages, and supplements, modifications or
amendments to any of them, and such other papers as the Seasoned Warehouse Agent
or the Custodian may reasonably request from time to time in order to establish
and preserve the priority of, perfect and protect the Liens granted or intended
to be granted to the Seasoned Warehouse Agent (as agent and Representative of
the Seasoned Warehouse Lenders) in and to any and all such Collateral and to
preserve and protect the Seasoned Warehouse Agent's rights in respect of all
present and future Collateral for the Obligations.
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3. SEASONED WAREHOUSE LENDERS' COMMITMENTS
3.1 Revolving Credit Commitments. Subject to the terms
and conditions of this Agreement, and provided no Default or Event of Default
has occurred that the Seasoned Warehouse Agent has not declared in writing to
have been cured or waived (or, if one has occurred and not been so declared
cured or waived, if all of the Seasoned Warehouse Lenders, in their sole
discretion and with or without waiving such Default or Event of Default, have
elected in writing that lending under this Agreement shall continue
nonetheless) the Lenders agree to make Seasoned Warehouse Revolving Loans to
the Borrowers in such amounts as the Borrowers shall request pursuant to
SECTION 4 at any time from the date of this Agreement until the Termination
Date, up to an aggregate principal amount outstanding at any time of not more
than the Aggregate Committed Sum or the Borrowing Base, whichever is less, to
refinance the Companies' Debt secured by Eligible Seasoned Collateral that is
currently held by Texas Commerce and to finance the Companies' other Eligible
Seasoned Collateral from time to time acquired or, due to aging, that has
ceased to be "Eligible Collateral" under the Warehouse Credit Agreement. On
any day before the Termination Date, the Borrowers may borrow, repay and
(having repaid) reborrow Seasoned Warehouse Revolving Loans up to the lesser of
the Borrowing Base or the Aggregate Committed Sum on that day; provided that
the principal amount of each Seasoned Warehouse Revolving Loan must be in an
amount not less than Fifty Thousand Dollars ($50,000). The Commitments, and
the fractions to be applied to determine the respective Funding Shares of each
Seasoned Warehouse Revolving Loan, of the Lenders that are parties to this
Agreement on the Effective Date are set forth on SCHEDULE LC, and shall remain
applicable for each day until SCHEDULE LC is amended or restated from time to
time pursuant to this Agreement. Upon the joinder of additional Seasoned
Warehouse Lender(s), if any, or adjustments of Commitments and Funding Shares
between or among existing Seasoned Warehouse Lenders made in accordance with
this Agreement, the parties agree to approve in writing revised and updated
versions of SCHEDULE LC. Each Seasoned Warehouse Lender shall be obligated to
fund only that Seasoned Warehouse Lender's own Funding Share of any Seasoned
Warehouse Revolving Loan requested, and no Seasoned Warehouse Lender shall be
obligated to the Borrowers, any other Seasoned Warehouse Lender or the Seasoned
Warehouse Agent to fund a greater share of any Seasoned Warehouse Revolving
Loan. No Seasoned Warehouse Lender shall be excused from funding its
applicable Funding Share of any Seasoned Warehouse Revolving Loan merely
because any other Seasoned Warehouse Lender has failed or refused to fund its
Funding Share of that or any other Seasoned Warehouse Revolving Loan. If any
Seasoned Warehouse Lender fails to fund its Funding Share of any Seasoned
Warehouse Revolving Loan, the other Seasoned Warehouse Lenders who are willing
to do so shall have the right (but no obligation) to do so in the proportion
that the Warehouse Commitment of each bears to the sum of the Warehouse
Commitments of all Seasoned Warehouse Lenders that have funded (or are funding)
their own Funding Shares of that Seasoned Warehouse Revolving Loan and that are
willing to fund part of the Funding Share of such Seasoned Warehouse Lender
that so failed to fund. Regardless of whether the other Seasoned Warehouse
Lenders fund the Funding Share(s) of the Seasoned Warehouse Lender who has
failed to fund, the respective ownership interests of the Seasoned Warehouse
Lenders in the Seasoned Warehouse Revolving Loans shall be adjusted as provided
in the definition of "Pro Rata". All Seasoned
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Warehouse Revolving Loans under this Agreement shall constitute a single debt
and all of the Collateral shall be security for all of the Seasoned Warehouse
Notes and the Obligations. The Seasoned Warehouse Lenders shall not be
obligated to make (or the Seasoned Warehouse Agent to disburse) any Seasoned
Warehouse Revolving Loan if any of the conditions precedent set forth in
SECTION 9 shall not have been satisfied, or (ii) such proposed Seasoned
Warehouse Revolving Loan would cause the aggregate unpaid principal amount of
the Seasoned Warehouse Revolving Loans outstanding under this Agreement to
exceed the lesser of the Aggregate Committed Sum or the Borrowing Base as of
the relevant Disbursement Date. The Borrowers may request funding of (x)
Seasoned Warehouse Revolving Loans no more frequently than daily and then only
coincident with a determination (or redetermination) of the market value of all
Eligible Seasoned Collateral then Pledged to the Seasoned Warehouse Agent by
the Companies (including any Eligible Seasoned Collateral newly pledged in
connection with the requested Seasoned Warehouse Revolving Loan.)
Notwithstanding anything contained herein to the contrary, the Warehouse Agent
may honor the Borrowers' request for a Warehouse Revolving Loan in the absence
of strict satisfaction of the conditions precedent set forth in SECTION 9.2
relating to the delivery of documents, provided that the Companies have
substantially complied with such conditions and the Warehouse Agent, in its
reasonable discretion, determines that would be prudent and in the Warehouse
Lenders' interest to do so. If the unpaid balance of the Seasoned Warehouse
Revolving Loans should exceed the Borrowing Base or any other limitation set
forth in this Agreement, such Seasoned Warehouse Revolving Loans shall
nevertheless constitute part of the Obligations that is secured by the
Collateral and entitled to all benefits thereof.
3.2 Expiration or Termination of the Commitments.
Unless extended in writing or terminated earlier in accordance with this
Agreement, the Seasoned Warehouse Lenders' Commitments to lend under this
Agreement and the other Seasoned Warehouse Loan Documents shall automatically
expire at the close of business on the Termination Date, without any
requirement for notice or any other action by the Seasoned Warehouse Agent, any
of the Seasoned Warehouse Lenders or any other Person.
3.3 Limitations on Borrowings. The Borrowers'
rights to borrow hereunder are subject to the following limitations:
- The total outstanding principal amount of the Seasoned
Warehouse Revolving Loans may never exceed the lesser of (i)
the Aggregate Committed Sum or (ii) the Borrowing Base.
- The total outstanding principal amount of the Seasoned
Warehouse Revolving Loans that are Foreclosure/REO/Repurchase
Loans Borrowings may never exceed the lesser of (i) the
Foreclosure/REO/Repurchase Loans Sublimit or (ii) the portion
of the Borrowing Base attributable to Eligible
Foreclosure/REO/Repurchase Collateral.
- No Seasoned Warehouse Lender's direct or indirect portion of
the total outstanding principal amount of the Seasoned
Warehouse Revolving Loans may ever exceed
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either (i) its Commitment or (ii) the portion of the sum of
its Funding Share of the total outstanding principal amount of
the Seasoned Warehouse Revolving Loans.
4. BORROWING PROCEDURES.
4.1 Request for Advance to Refinance Certain Existing Debt. To
request a Revolving Loan to fund the initial advance under this Agreement to
refinance the Borrowers' existing seasoned warehouse debt to Texas Commerce
(only), the Borrowers shall give the Seasoned Warehouse Agent a Request for
Advance for the proposed refinancing as soon as practicable prior to the
proposed Disbursement Date for such Revolving Loan. For such refinancing, the
Request for Advance shall specify the principal amount of the proposed Revolving
Loan and its proposed Disbursement Date. Notwithstanding anything contained or
implied in such Request for Advance, the amount of the proposed Revolving Loan
shall not exceed the Collateral Value of the Collateral to be Pledged to the
Seasoned Warehouse Agent and in which the Seasoned Warehouse Agent (as agent and
Representative of the Seasoned Warehouse Lenders) will acquire a first and prior
perfected security interest immediately and automatically upon funding to Texas
Commerce of the payoff amount of the Borrowers' existing financing of Eligible
Seasoned Collateral by Texas Commerce.
4.2 Requests for Revolving Loans for Additional Eligible
Seasoned Collateral. To request Revolving Loans to finance additional Eligible
Seasoned Collateral (as opposed to refinancing Debt secured by existing Eligible
Seasoned Collateral held by Texas Commerce), the Borrowers shall give the
Seasoned Warehouse Agent a Request for Advance as soon as practicable before the
proposed Disbursement Date for the Revolving Loan to finance such additional
Eligible Seasoned Collateral. For each grouping of additional Eligible Seasoned
Collateral, such Request for Advance shall be accompanied by a Submission List
listing in reasonable detail the additional Eligible Seasoned Collateral and
shall specify the principal amount and the proposed Disbursement Date for such
Revolving Loan and the Company's deposit account with the Seasoned Warehouse
Agent into which its proceeds are to be deposited. Notwithstanding anything
contained or implied in any such Request for Advance requesting a Revolving Loan
to finance additional Eligible Seasoned Collateral, such Revolving Loan shall
not be disbursed before (i) the Business Day on which the new Collateral is
released from all other Liens against it except only the Lender Lien created by
its being Pledged to the Seasoned Warehouse Agent and (ii) the Borrowers have
demonstrated to the Seasoned Warehouse Agent that such new Collateral
constitutes Eligible Seasoned Collateral.
4.3 Request for Supplemental Borrowing Against Eligible
Seasoned Collateral's Collateral Value. In addition to requests for borrowings
made pursuant to SECTION 4.2, but subject to the satisfaction of the conditions
set forth in SECTION 9, the Borrowers may from time to time request a Revolving
Loan in an amount not to exceed the excess (if any) of (x) the Borrowing Base --
including the Collateral Value of Eligible Seasoned Collateral already in the
Borrowing Base and any additional Eligible Seasoned Collateral newly Pledged to
the Seasoned Warehouse Agent by a Company -- over (y) the aggregate principal
of the Seasoned Warehouse Revolving Loans outstanding. Such Request for
Advance shall be reasonably satisfactory to the Seasoned Warehouse
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Agent and -- categorized by applicable portions of the Borrowing Base (i.e.,
for either (i) Foreclosure/REO Repurchase Loans or (ii) other Eligible
Warehouse Collateral) -- shall specify:
(a) the portions of the Borrowing Base allocable to the two
different classes of Collateral (i.e., (i) Foreclosure/REO Repurchase Collateral
and (ii) other Eligible Warehouse Collateral)
(b) the aggregate Collateral Values comprising the Borrowing
Base;
(c) the sum of the existing Borrowings outstanding that are
supported by the Borrowing Base;
(d) the amount of the excess of (b) over (c); and
(e) the principal amount of the proposed Revolving Loan, its
proposed Disbursement Date (which shall not be earlier than the Business Day
on which the Seasoned Warehouse Agent receives such request before 1:00 PM) and
the Borrowers' deposit account with the Seasoned Warehouse Agent into which the
proceeds of such Revolving Loan are to be deposited.
4.4 Requests for Advance Due by 1:00 PM. A separate Request for
Advance shall be made for each Revolving Loan. On each Business Day that (i)
the Seasoned Warehouse Agent shall have received a Request for Advance before
1:00 PM (all times are Houston times) and (ii) if additional Collateral is
required to support such Revolving Loan pursuant to SECTION 4.5, such
additional Collateral shall have been delivered to the Seasoned Warehouse
Agent, Texas Commerce shall give notice to each Lender of that requested
Revolving Loan and that Lender's Funding Share of the requested Revolving Loan
before 2:00 PM on that same day, and each Lender shall cause its Funding Share
thereof to be transferred to the Seasoned Warehouse Agent within two (2) hours
after receiving such notice from the Seasoned Warehouse Agent or by 4:00 PM,
whichever is later, so that the Seasoned Warehouse Agent receives it in good
collected Houston funds on that same Business Day, and the Seasoned Warehouse
Agent shall deposit those shares of such Revolving Loan into the Note
Payment/Funding Account when received and shall disburse an amount equal
thereto into the Borrowers' designated deposit account with the Seasoned
Warehouse Agent.
4.5 New Collateral (If Any) Due by 11:00 AM on the Day of a Requested
Revolving Loan. Unless the Borrowing Base already has sufficient value to
support both (i) the requested Revolving Loan and (ii) all other outstanding
Revolving Loans, by 11:00 AM on the Business Day on which the Borrowers request
that a Revolving Loan be funded, the Borrowers shall (1) deliver to the
Seasoned Warehouse Agent one or more signed Submission Lists describing the
additional Collateral then being Pledged to the Seasoned Warehouse Agent and
(2) cause such additional Collateral to be delivered to the Seasoned Warehouse
Agent. If, after giving effect to a requested Revolving Loan, the outstanding
Revolving Loans would exceed the Borrowing Base, or if the Seasoned Warehouse
Agent determines that any Collateral submitted to it is incomplete, deficient
or defective in any material respect, then:
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(a) the Seasoned Warehouse Agent shall withhold the requested
Revolving Loan -- or so much thereof as requires the Collateral Value of the
Collateral whose Submission List description, additional Collateral Papers or
other evidence submitted are incomplete or incorrect in any material respect --
until the Borrowers shall have demonstrated to the Warehouse Agent's reasonable
satisfaction that the relevant Submission Lists and all required additional
Collateral Papers and other evidence submitted, are in fact not (or are no
longer) incomplete or incorrect in any material respect; or
(b) in the case of any Borrowing Base insufficiency, unless the
Borrowers instruct the Seasoned Warehouse Agent in writing not to disburse any
of the requested Revolving Loan, and subject to the provisions and limitations
of SECTION 3.1, the Seasoned Warehouse Agent will disburse such lesser amount(s)
as the Seasoned Warehouse Agent shall determine is supported by the Borrowing
Base and will notify the Borrowers of such insufficiency, including the Seasoned
Warehouse Agent's calculation of such insufficiency set forth in reasonable
detail.
4.6 If a Request for Advance or New Collateral Papers are
Received Late; Waiver of Claim for Any Late Funding. If either a Request for
Advance or any additional Collateral is submitted late, Texas Commerce will use
reasonable efforts to disburse the requested Revolving Loan on the same day it
is requested (provided such additional Collateral has been submitted), although
neither the Borrowers nor any other Person shall have any claim or cause of
action against the Seasoned Warehouse Agent or any of the Lenders if that
funding (or any other funding) does not occur on the same day it is requested.
5. THE REVOLVING CREDIT NOTES
To evidence the Seasoned Warehouse Revolving Loans to be made by the
Lenders pursuant to this Agreement, the Borrowers agree to execute and deliver
to each Lender a Seasoned Warehouse Note in the form of EXHIBIT D, in a face
principal amount equal to that Lender's Warehouse Committed Sum and dated the
Effective Date (or dated with such other appropriate date as shall be agreed
upon by the Borrowers, that Lender and the Seasoned Warehouse Agent if the
effective date of that Lender's joinder in this Agreement is after the
Effective Date). If any Lender's Warehouse Committed Sum shall be increased
for any reason after the Borrowers shall have issued to that Lender its
Seasoned Warehouse Note, then the Borrowers agree to execute and deliver to
that Lender upon its request a renewal Seasoned Warehouse Note in a face
principal amount equal to the portion of that Lender's new Warehouse Committed
Sum and dated the same date that such applicable Warehouse Committed Sum change
becomes (or became) effective.
6. INTEREST RATES; ADDITIONAL COSTS AND FEES
6.1 Interest. All Seasoned Warehouse Revolving Loan principal
outstanding and not past due on any day shall bear interest for that day at the
Stated Rate. All past due principal, interest, fees or other sums shall bear
interest at the Past Due Rate from their respective due dates until paid, or
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at such lesser rate (if any) -- although not less than the Stated Rate -- as
the Seasoned Warehouse Agent (unless otherwise directed by the Majority
Seasoned Warehouse Lenders) shall elect to be applicable for any one or more
days of such period. Without duplication, from the earlier of the Termination
Date or the date of the occurrence (if any) of an Event of Default described in
SECTION 13.1(h), the outstanding principal amount of all advanced and unpaid
Revolving Loans shall bear interest at the Past Due Rate, or at such lesser
rate (if any) -- although not less than the Stated Rate -- as the Seasoned
Warehouse Agent (unless otherwise directed by the Majority Seasoned Warehouse
Lenders) shall elect to be applicable for any one or more days of such period.
All interest rate determinations and calculations by the Seasoned Warehouse
Agent, absent manifest error, shall be conclusive.
6.2 Maximum Rate. Regardless of any Loan Document provision, neither
the Lenders nor the Seasoned Warehouse Agent are 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 Seasoned
Warehouse Agent or the Lenders ever do so, then any excess will be treated as a
partial prepayment of principal, and any remaining excess will be refunded to
the Borrowers. In determining if the interest paid or payable exceeds the
Maximum Rate, the Companies and the Seasoned Warehouse Agent and the Lenders
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 Lenders shall refund any excess without
being subject to any penalties provided by any Laws.
6.3 Additional Costs. This section shall survive the full satisfaction
of the Obligations and termination of the Loan Documents, and the release of all
Lender Liens.
(a) Rate of Return Maintenance Covenant. If at any time after
the date of this Agreement, any Seasoned Warehouse Lender that is a bank
determines that (a) any applicable law, rule or regulation regarding capital
adequacy has been adopted or changed since July 1, 1997 or (b) its
interpretation or administration by any Governmental Authority, central bank
or comparable agency has changed since July 1, 1997 and determines that such
change or such Seasoned Warehouse Lender's compliance with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such Governmental Authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on that Seasoned
Warehouse Lender's capital as a consequence of its obligations under this
Agreement or any of the other Seasoned Warehouse Loan Documents to a level
below the rate of return which that Seasoned Warehouse Lender would have
achieved but for such adoption, change or compliance (taking into
consideration that Seasoned Warehouse Lender's own capital adequacy policies)
by an amount that Seasoned Warehouse Lender deems to be material, then upon
notice to the Borrowers by that Seasoned Warehouse Lender or the Seasoned
Warehouse Agent summarizing the facts triggering the increase and calculations
of the
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increase, the Companies jointly and severally promise to pay to the order of
the Seasoned Warehouse Agent, for the account of such Seasoned Warehouse
Lender, such additional amount or amounts as will provide that Seasoned
Warehouse Lender with a rate of return on its capital equal to that which would
have been achieved but for such adoption, change or compliance (taking into
consideration that Seasoned Warehouse Lender's own capital adequacy policies);
provided that the amount of such payment shall be absolutely limited to that
amount which, when added to all other sums which constitute interest under
applicable law, produces an interest rate that does not exceed the Ceiling Rate
for the full term that the Seasoned Warehouse Revolving Loans are outstanding.
In determining the amount or amounts required to be paid to achieve that
result, such Seasoned Warehouse Lender may employ such assumptions and make
such allocations of costs and expenses fairly applicable to the Seasoned
Warehouse Revolving Loans as that Seasoned Warehouse Lender reasonably elects
and may use any reasonable averaging and attribution method. Any Seasoned
Warehouse Lender's certificate setting forth the amount or amounts necessary to
compensate such Seasoned Warehouse Lender as specified above shall be given by
the Seasoned Warehouse Agent to the Companies as soon as practicable after such
Seasoned Warehouse Lender has made such determination and shall be conclusive
and binding, absent manifest error. The Companies shall pay the Seasoned
Warehouse Agent, for the account of such Seasoned Warehouse Lender, the amount
shown as due on any such certificate within fifteen (15) days after the
Seasoned Warehouse Agent gives it.
(b) Taxes. Any Taxes payable by the Seasoned Warehouse Agent or
any Seasoned Warehouse Lender or ruled (by a Tribunal) payable by the Seasoned
Warehouse Agent or any Seasoned Warehouse Lender in respect of any Loan Document
shall, if permitted by Law and if deemed material by the affected Seasoned
Warehouse Lender (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 the
Companies, together with interest and penalties, if any, accrued as a result of
any Company's delay in paying them (except for Taxes payable on the overall net
income of such Seasoned Warehouse Lender by the jurisdiction where its office is
located and except for interest and penalties incurred as a result of the gross
negligence or willful misconduct of such Seasoned Warehouse Lender). The
Seasoned Warehouse Agent shall notify the Companies and deliver to the Companies
a certificate prepared by the affected Seasoned Warehouse Lender stating in
reasonable detail the calculation of the amount of payable Taxes (which
certificate shall be conclusive and binding absent manifest error), and the
Companies shall pay that amount to the Seasoned Warehouse Agent (for the account
of the affected Seasoned Warehouse Lender(s) within ten (10) days after demand.
If any affected Seasoned Warehouse Lender subsequently receives a refund of the
Taxes paid to it by the Companies, then that Seasoned Warehouse Lender shall
promptly pay the refund to the Seasoned Warehouse Agent, who shall pay it over
to the Companies.
6.4 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 any Seasoned
Warehouse Lender to make or maintain LIBOR Borrowings, then the Seasoned
Warehouse Agent shall promptly notify the Borrowers and (a) as to undisbursed
funds, any requested Revolving Loan shall be made as a Base Rate Borrowing, (b)
any outstanding Revolving Loan shall be immediately converted to a Base Rate
Borrowing or
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if any conversion will not resolve the unlawfulness, the Companies shall
promptly prepay the Revolving Loan, 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).
6.5 Chief Credit Officer's Certificate Conclusive. Should any issue
ever arise in any forum or under any circumstances as to any of the matters
referred to in this Section, a certificate of Texas Commerce's chief credit
officer stating LIBOR, the Prime Rate, the Free Adjusted Balances, the FAB
Principal Equivalent, the Federal Funds Effective Rate, the Past Due Rate, the
Stated Rate and/or the Stated Rate(s) applicable to one or more specified
portions of the Revolving Loans that are or were in effect from time to time,
absent manifest error, shall be conclusive.
6.6 Facility Fee. The Companies agree to pay to the Seasoned
Warehouse Agent, for the account of the Seasoned Warehouse Lenders (and for the
Seasoned Warehouse Agent to distribute to them), ratably according to their
respective Committed Sums, a cash facility fee (the "FACILITY FEE") in an amount
equal to one percent (1%) per annum on the Aggregate Committed Sum (as it may be
changed from time to time pursuant to the provisions of SECTION 7.3) for the
period from the Effective Date to the Termination Date. The Facility Fee shall
be due and payable annually in advance on the Effective Date and on each
anniversary (if any) of the Effective Date before the Termination Date. The
Facility Fee is not compensation for the use or forbearance or detention of
money, although this Section (as well as every other Section of this Agreement)
is subject to the provisions of SECTION 16.2. Each calculation by the Seasoned
Warehouse Agent of the amount of the Facility Fee shall be conclusive, absent
manifest error. The Borrowers shall pay to the Seasoned Warehouse Agent (for
the account of the Seasoned Warehouse Lenders) on demand any deficiency in
payment by the Borrowers of the Facility Fee.
6.7 Agent's Fee. The Borrowers agree to pay to the Seasoned Warehouse
Agent an agent's fee (the "AGENT'S FEE") as provided for in the letter agreement
between the Borrowers and the Seasoned Warehouse Agent executed substantially
concurrently with this Agreement, as such letter agreement may be supplemented
or amended from time to time. (Unless and until there are any Seasoned
Warehouse Lenders in addition to Texas Commerce, there will be no Agent's Fee.)
6.8 Custodian's Fee. The Borrowers agree to pay to the Seasoned
Warehouse Agent a fee for its services as the Custodian (the "CUSTODIAN'S FEE")
as provided for in the letter agreement between the Borrowers and the Seasoned
Warehouse Agent executed substantially concurrently with this Agreement, as such
letter agreement may be supplemented or amended from time to time.
6.9 Other Fees and Expenses. Upon demand of the Seasoned Warehouse
Agent from time to time, the Borrowers shall pay to the Seasoned Warehouse Agent
the amount of the expenses (including attorneys' fees, whether of inside or
outside counsel, and disbursements) incurred by the Seasoned Warehouse Agent and
the Seasoned Warehouse Lenders from time to time which are to be paid for or
reimbursed by the Borrowers under SECTIONS 15.1 AND 15.3.
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7. INTEREST AND PRINCIPAL PAYMENTS; DISTRIBUTIONS
7.1 Payments.
(a) Interest and Other Obligations. Unless
otherwise provided in this Agreement, the Borrowers shall jointly and
severally pay the Obligations in accordance with the following table:
<TABLE>
<CAPTION>
Obligation Payable
---------------------------------------------------------------------------------------------------------
<S> <C>
Unpaid interest on each Seasoned Warehouse Revolving On (a) the fifteenth (15th) day of each Calendar
Loan except interest at the Past Due Rate and Month following the Calendar Month in which it
interest required to be paid pursuant to SECTION 7.3 accrued through the last day of that accrual month
and (b) on the Termination Date
---------------------------------------------------------------------------------------------------------
Unpaid interest accrued at the Past Due Rate On demand as it accrues
---------------------------------------------------------------------------------------------------------
Unpaid interest due pursuant to any Aggregate When due as provided in SECTION 7.3
Committed Sum reduction made pursuant to SECTION 7.3
---------------------------------------------------------------------------------------------------------
Seasoned Warehouse Revolving Loan principal and any When due as provided in the relevant provision of
other Obligations this Agreement, but in no event later than the
Termination Date
---------------------------------------------------------------------------------------------------------
</TABLE>
(b) Mandatory Payments. On the Termination Date, all
outstanding principal of the Notes, and all accrued interest then unpaid on the
Notes, shall be finally due and payable without notice or demand. If at any
time or from time to time, the aggregate unpaid principal amount of all Seasoned
Warehouse Revolving Loans exceeds the lesser of the Aggregate Committed Sum or
the Borrowing Base, the excess shall be immediately due and payable without
notice or demand. No mandatory payment under this SECTION 7.1(b) shall reduce
the Aggregate Committed Sum.
(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
Seasoned Warehouse Agent, may prepay the unpaid principal amount of the Seasoned
Warehouse Revolving Loans in whole or in part without premium; provided that any
such optional prepayment under this SECTION 7.1(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 Seasoned Warehouse Revolving Loans; and provided
further that any optional prepayment made under this SECTION 7.1(c) shall not
reduce the Aggregate Committed Sum (interest accrued and unpaid on any such
optional prepayment shall be due and payable on the fifteenth (15th) day of the
Calendar Month next occurring after the date of such prepayment, or concurrently
with such prepayment if made on the fifteenth (15th) day of a Calendar Month).
The Companies may pay or prepay any amount owed under the Seasoned Warehouse
Notes without prejudice to the Borrowers' right to reborrow under the terms of
this Agreement.
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(d) Time Due; Good Funds. Except as otherwise specifically
provided in this Agreement, all payments under this Agreement, on the Seasoned
Warehouse Notes and under the other Seasoned Warehouse Loan Documents shall be
paid (i) to the Seasoned Warehouse Agent for deposit in the Seasoned Warehouse
Note Payment/Funding Account, (ii) by not later than 1:00 PM on the day when due
(unless the Seasoned Warehouse Agent shall agree to a payment's being made
before a specific later deadline on such day), (iii) without set- off,
counterclaim or deduction, (iv) in lawful money of the United States of America,
(v) in immediately available funds and (vi) at the office of the Seasoned
Warehouse Agent, at 712 Main Street, Houston, Texas 77002, or by fed funds wire
transfer to:
<TABLE>
<S> <C>
Texas Commerce Bank Account number 0010-___-____
National Association Attention: Pamela E. Skinner
ABA number 1130-0060-9 Phone: (713) 216-5382
Further Credit -- MCA Seasoned Warehouse Note Payment/Funding Account
</TABLE>
or at such other place as the Seasoned Warehouse Agent shall designate from
time to time. Whenever any payment to be made under this Agreement, any
Seasoned Warehouse Note or any of the other Loan Documents shall be stated to
be due on a day that is not a Business Day, the due date for that payment shall
be automatically extended to the next day that is a Business Day, and with
respect to principal, interest at the applicable rate (determined in accordance
with this Agreement) shall continue to accrue during the period of such
extension. Unless the Seasoned Warehouse Agent, acting in its sole discretion,
shall agree otherwise, funds received by the Seasoned Warehouse Agent after
1:00 PM on a Business Day shall be deemed for all purposes to have been paid by
the Companies on the next succeeding Business Day, except that if, after so
deeming, any applicable Ceiling Rate would be exceeded, then solely for the
purpose of calculating interest accrued, such funds shall be deemed paid on the
date received. Any payment made by mail will be deemed tendered and received
only upon actual receipt by the Seasoned Warehouse Agent at the address
designated for such payment, whether or not the Seasoned Warehouse Agent 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 PM, Houston
time, on the date due for such payment, time being of the essence. The
Companies expressly assume all risks of loss or liability resulting from
non-delivery or delay of deliver of any item of payment transmitted by mail or
in any other manner.
(e) Setoff. If and to the extent any payment is not made
when due under this Agreement, any Seasoned Warehouse Note or any of the other
Seasoned Warehouse Loan Documents, the Companies authorize the Seasoned
Warehouse Agent and each Seasoned Warehouse Lender (for the Pro Rata account and
benefit of all of the Seasoned Warehouse Lenders) then or at any time thereafter
to charge any amounts so due and unpaid against any or all of the Companies'
accounts with the Seasoned Warehouse Agent or any of the Seasoned Warehouse
Lenders (including an account evidenced by a certificate of deposit), subject to
the following qualifications of such rights to so charge such accounts:
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<PAGE> 53
(1) such rights shall not apply to any escrow, trust or
other deposit accounts designated as being held by the Companies on behalf of
third party owners of the escrowed funds other than Affiliates of the Companies;
(2) such rights shall not affect the Companies'
obligation to pay when due any Obligations, whether or not account balances
are sufficient to pay amounts due; and
(3) the exercise of such rights will not per se prejudice
the Borrowers' right to reborrow under the terms of this Agreement.
(f) Payments to be Free of Taxes. Any and all payments by the
Companies made pursuant to this Agreement or under any Revolving Credit Note or
other Loan Documents shall be made free and clear of -- and without deduction
for -- any and all present or future Taxes. If the Companies shall be required
by law to deduct any Taxes from or in respect of any sum payable pursuant to
this Agreement or under any Revolving Credit Note or other Loan Document, (i)
the sum payable shall be increased as may be necessary so that after making all
required deductions, the Seasoned Warehouse Lenders receive an amount equal to
the sums they would have received had no such deductions been made and (ii) the
Borrowers agree to pay the Taxes to the relevant Governmental Authority.
(g) Payments Satisfy Liability. Each payment received by the
Seasoned Warehouse Agent in accordance with this Agreement is valid and
effective to satisfy and discharge the Companies' liability under the Loan
Documents to the extent of such payment.
7.2 Pro Rata Distribution of Payments. All payments and prepayments
of the Revolving Credit Notes -- whether voluntary or involuntary and from
whatever source -- received by the Seasoned Warehouse Agent shall be
distributed by the Seasoned Warehouse Agent to the Seasoned Warehouse Lenders
Pro Rata with their respective ownership interests in the Seasoned Warehouse
Revolving Loans as of the date the payment is credited against the Seasoned
Warehouse Notes in accordance with this Agreement. The distribution from the
Seasoned Warehouse Agent to each Seasoned Warehouse Lender shall be made by
wire transfer in immediately available funds directly to such Seasoned
Warehouse Lender or to such account at another financial institution as is
designated from time to time by such Seasoned Warehouse Lender in writing, and
shall be made on the same Business Day received (or deemed received) by the
Seasoned Warehouse Agent. If the Seasoned Warehouse Agent shall fail or
refuse to make the distribution on the same Business Day as the payment was
received, then the Seasoned Warehouse Agent shall pay the affected Seasoned
Warehouse Lender(s) interest on the undistributed funds at the Federal Funds
Effective Rate.
7.3 Changes in Commitments and Prepayments. 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 Seasoned
Warehouse Agent, may permanently terminate the Seasoned Warehouse Lenders'
Commitments or permanently reduce (Pro Rata) the Seasoned Warehouse Lenders'
Commitments by an integral multiple of One Hundred Thousand Dollars ($100,000);
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<PAGE> 54
provided that the Borrowers, on the effective date of such termination or
reduction, shall pay to the Seasoned Warehouse Agent (for the account of the
Seasoned Warehouse Lenders) in the case of a termination, the aggregate unpaid
principal amount of all Seasoned Warehouse Revolving Loans, or, in the case of
a reduction, the amount, if any, by which the aggregate unpaid principal amount
of all Seasoned Warehouse Revolving Loans exceeds the then reduced Aggregate
Committed Sum, together in either case with all interest accrued and unpaid on
the principal amounts so prepaid, but without premium. The notice shall
specify the Termination Date or the reduced Aggregate Committed Sum 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 Seasoned
Warehouse Agent's prior written consent. After any such reduction, no Seasoned
Warehouse Lender's Commitment may be increased or otherwise reinstated without
the Seasoned Warehouse Agent's express written agreement.
7.4 Acceptance and Application of Payments. Acceptance by the
Seasoned Warehouse Agent 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
Seasoned Warehouse Agent shall be entitled to exercise any and all rights
conferred upon it herein upon the occurrence of an Event of Default. The
Companies waive the right to direct the application of any and all payments at
any time or times hereafter received by the Seasoned Warehouse Agent or any
Seasoned Warehouse Lender from or on behalf of the Companies except each such
payment designated as a payment under this Agreement shall be applied to the
Obligations; provided that, except as otherwise specified pursuant to SECTION
16.2, no payment on account of interest shall be applied on the principal owed
under the Seasoned Warehouse Notes. The Companies agree that the Seasoned
Warehouse Agent 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 Seasoned Warehouse Agent may deem advisable,
notwithstanding any entry by the Seasoned Warehouse Agent or any Seasoned
Warehouse Lender upon any of its books and records.
7.5 Invalidated Payments. The Companies expressly agree
that to the extent that the Seasoned Warehouse Agent or any Seasoned Warehouse
Lender 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 Seasoned Warehouse Agent or any Seasoned Warehouse
Lender(s), to the extent that the Seasoned Warehouse Agent and each such
affected Seasoned Warehouse Lender(s), if any, did not directly receive a
corresponding cash payment, shall be added to the Obligations and be additional
Obligations payable upon demand by the Seasoned Warehouse Agent.
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<PAGE> 55
8. COLLATERAL
8.1 Security Interest. As security for the payment of the Seasoned
Warehouse Revolving Loans and for the payment and performance of the
Obligations, each of the Companies has executed and delivered the Security
Agreement with the Seasoned Warehouse Agent, granting to the Seasoned Warehouse
Agent, as agent and Representative of the Seasoned Warehouse Lenders, a first
priority security interest in all of that Company's present and future estate,
right, title and interest in and to the Seasoned Warehouse Collateral (although
neither the Seasoned Warehouse Lenders, the Seasoned Warehouse Agent nor the
Custodian assumes any of the Companies' or any other liability or obligation
under or in respect of any Collateral).
8.2 Delivery of Additional Collateral or Mandatory Prepayment. At
least once a week during the term of this Agreement (or more often in the
discretion of the Seasoned Warehouse Agent if it reasonably determines that
market conditions warrant) and whenever a Request for Advance is made by the
Borrowers (except that the Seasoned Warehouse Agent shall have no obligation to
make such determination more frequently than once per day), the Seasoned
Warehouse Agent shall (i) determine pursuant to SCHEDULE BB the aggregate values
of the Collateral comprising the portions of the Borrowing Base allocable to
each class of Collateral (either (i) Eligible Foreclosure/REO/Repurchase
Collateral or (ii) other Eligible Collateral, including any Collateral pledged
on that day) Pledged to the Seasoned Warehouse Agent under this Agreement, (ii)
issue to the Seasoned Warehouse Lenders a Borrowing Base Report stating
separately the Seasoned Warehouse Agent's determination of the portion of the
Borrowing Base attributable to each such class of Collateral and (iii) provide a
copy of that certificate to the Borrowers. If the Seasoned Warehouse Agent
shall determine on any day that the Borrowing Base is less than the outstanding
Revolving Loans, then the Companies shall immediately either:
(a) Pledge to the Seasoned Warehouse Agent additional
Collateral; and/or
(b) after giving effect to the value of any additional
Collateral Pledged to the Seasoned Warehouse Agent, pay to the Seasoned
Warehouse Agent cash for Pro Rata distribution to the Seasoned Warehouse
Lenders;
in aggregate amounts sufficient to completely eliminate the excess of (i) the
sum of all Seasoned Warehouse Revolving Loans outstanding over (ii) the
Borrowing Base;
provided, that the Companies may not elect under the provisions of SECTION
8.2(a) (and instead must make a cash paydown pursuant to SECTION 8.2(b)) if any
Default or Event of Default has occurred that the Seasoned Warehouse Agent has
not declared in writing to have been cured or waived.
8.3 Right of Redemption From Pledge.
(a) Provided no Event of Default has occurred that the
Seasoned Warehouse Agent has not declared in writing to have been cured or
waived -- although the Seasoned Warehouse
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<PAGE> 56
Agent shall have the right (but no obligation) to allow redemption at any time
if it reasonably believes at that time that doing so would be in the Seasoned
Warehouse Lenders' interest to do so -- the Companies may from time to time
redeem one or more Pledged Loans from pledge by either:
(x) paying, or causing to be paid, to the Seasoned
Warehouse Agent for deposit in the Seasoned Warehouse Note Payment/Funding
Account, for application to the outstanding principal balance of the Seasoned
Warehouse Revolving Loans and application to Pro Rata prepayment of the
principal balance of the Seasoned Warehouse Notes, the Redemption Amount for
the Pledged Loans to be released; or
(y) delivering substitute Pledged Loans that (i) are
Eligible Seasoned Collateral, (ii) will, when included with the existing
Seasoned Warehouse Collateral (excluding the Pledged Loans to be released),
increase the Borrowing Base to an amount at least equal to the aggregate
outstanding Seasoned Warehouse Revolving Loans and (iii) will not directly or
indirectly result in any Sublimit's being exceeded;
provided, that if (i) no Default has occurred that has not been waived or
cured, (ii) no Event of Default has occurred that the Agent has not declared in
writing to have been cured or waived and (iii) no Borrowing Base Deficiency
would exist after giving effect to the requested redemption, the Companies may
redeem one or more Pledged Loans without either paying down the Seasoned
Warehouse Revolving Loans or providing substitute Pledged Loans (this proviso
is called the "FREE REDEMPTION PROVISO").
(b) The Lender Lien against the Pledged Loans redeemed shall
automatically be terminated upon the Seasoned Warehouse Agent's receipt of the
redeeming payment or substitute Mortgage Collateral (or, if pursuant to the
Free Redemption Proviso, no such payment or substitute Mortgage Collateral is
required, upon the Custodian's release of the related Basic Papers), and the
Seasoned Warehouse Agent will direct the Custodian to release the related Basic
Papers to the requesting Company against its written request and will confirm
such release in writing if, when and in such form as such Company may reasonably
request, including, if requested and applicable to the Pledged Loans redeemed,
UCC-3 Partial Releases.
8.4 Releases of Pledged Loans Sold or Securitized.
(a) For all Pledged Loans to be securitized, sold or transferred by
the Companies to any third party for reasonably equivalent value in a bona fide
transaction (including sales of Pledged Loans subject to a reverse repurchase
agreement for financing purposes), no later than two (2) Business Days before
the date scheduled for the securitization, sale or transfer of such Pledged
Loans, the Companies shall deliver to each of the Seasoned Warehouse Agent and
the Custodian a written notice in the form of the Payoff Request -- as defined
in, and the form of which is attached as an exhibit to, the Custody Agreement --
stating the scheduled closing date or transfer date and identifying those
Pledged Loans to be so securitized, sold or transferred (and if such closing
date or transfer date is changed, then the Companies will give the Seasoned
Warehouse Agent and the
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<PAGE> 57
Custodian prompt notice thereof). Within two (2) Business Days following the
Seasoned Warehouse Agent's receipt of the Payoff Request, (i) the Seasoned
Warehouse Agent will provide the Companies with a Payoff Schedule (as defined
in the Custody Agreement) which shows the Redemption Amount for each such
Pledged Loan (notwithstanding that the aggregate Redemption Amounts for the
affected Pledged Loans will not include interest through the scheduled closing
date, the Companies shall remain liable for such interest and any related fees,
which shall be remitted to the Seasoned Warehouse Agent, for distribution to
the Seasoned Warehouse Lenders, on a monthly basis, in accordance with the
provisions of SECTION 7.1) and (ii) the Custodian will ship the Pledged Loans
listed in accordance with the relevant provisions of the Custody Agreement and
the Companies shall either:
(x) cause the investor acquiring such Pledged Loans
or the Mortgage Securities being created from them to pay to the Seasoned
Warehouse Agent for deposit in the Seasoned Warehouse Note Payment/Funding
Account, for application to the outstanding principal balance of the Seasoned
Warehouse Revolving Loans and application to Pro Rata prepayment of the
principal balance of the Seasoned Warehouse Notes, the Redemption Amount for
the Pledged Loans to be released from the Lender Lien; or
(y) deliver substitute Pledged Loans (a) that are
Eligible Seasoned Collateral, (b) that will, when included with the existing
Seasoned Warehouse Collateral (excluding the Pledged Loans to be released),
increase the Borrowing Base to an amount at least equal to the aggregate
outstanding Seasoned Warehouse Revolving Loans and (c) that will not directly
or indirectly result in any Sublimit's being exceeded;
provided, that if (i) no Default has occurred that has not been waived or
cured, (ii) no Event of Default has occurred that the Agent has not declared in
writing to have been cured or waived and (iii) no Borrowing Base Deficiency
would exist after release of the shipped Pledged Loans, the Agent will release
its Lien in such shipped Pledged Loans without any requirement that the
Companies first pay any Redemption Amount or provide any substitute Pledged
Loans (this proviso is called the "FREE RELEASE PROVISO").
(b) The Lender Lien against Pledged Loans:
(1) shipped to be sold as whole loans or to be securitized as
Mortgage Securities not issued or guaranteed by FNMA, GNMA or FHLMC shall
automatically terminate upon the Seasoned Warehouse Agent's receipt of the
relevant Redemption Amount or substitute Collateral;
(2) shipped to be securitized as Mortgage Securities issued
or guaranteed by FNMA, GNMA or FHLMC shall automatically terminate upon
issuance of the Mortgage Securities created from them -- although the Lender
Lien in the proceeds of such Mortgage Loans, including all of the Companies'
right, title and interest in and to such Mortgage Securities and their
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<PAGE> 58
proceeds, shall continue until the Seasoned Warehouse Agent's receipt of the
relevant Redemption Amount -- or
(3) if, pursuant to the Free Release Proviso, no such
payment or substitute Collateral is required, the Lender Lien in the Pledged
Loans shipped shall automatically terminate upon the Custodian's release of
the related Basic Papers.
8.5 Return of Collateral at End of Commitment. If (i) the Lenders'
Commitments to lend shall have expired or been terminated, and (ii) all Seasoned
Warehouse Revolving Loans, interest and other amounts evidenced by the Seasoned
Warehouse Notes or owing to any of the Seasoned Warehouse Lenders or the
Seasoned Warehouse Agent under this Agreement, the Seasoned Warehouse Notes and
the other Loan Documents shall be fully paid and satisfied, then the Seasoned
Warehouse Agent shall release the Collateral to the Borrowers or their designee
promptly upon written request made by the Companies and at their cost, and the
Companies shall promptly receipt -- or shall cause their designee to promptly
receipt -- for such released Collateral in writing to the Seasoned Warehouse
Agent. Acceptance by the Borrowers of any Collateral delivered to them pursuant
to any provision of this Agreement (whether or not the recipient issues a
receipt for it) or shipping by the Seasoned Warehouse Agent of Collateral in
substantial compliance with shipping instructions given by the Borrowers or
their designee shall be a complete and full acquittance for the Collateral so
delivered or shipped, and the Seasoned Warehouse Agent and the Seasoned
Warehouse Lenders shall thereby be released and discharged from any and all
liability or responsibility for it arising then or thereafter.
9. CONDITIONS PRECEDENT
9.1 Initial Revolving Loan. The obligations of the
Seasoned Warehouse Lenders to make and the Seasoned Warehouse Agent to disburse
the Lenders' respective Funding Shares of the initial Seasoned Warehouse
Revolving Loan are subject to satisfaction on or before the Disbursement Date
for such Revolving Loan of each of the following conditions precedent:
(a) Loan Documents and Note Purchase Agreement. The
Seasoned Warehouse Agent shall have received the following, all of which must
be satisfactory in form and content to the Seasoned Warehouse Agent:
(1) the Seasoned Warehouse Notes, executed by the
Companies;
(2) the Seasoned Warehouse Security Agreement,
executed by the Companies and the Seasoned Warehouse Agent;
(3) UCC-1 financing statements executed by the
Companies;
(4) UCC-3 assignments of Texas Commerce's existing
security interests in all of the Seasoned Warehouse Collateral, executed by
Texas Commerce and the Companies; and
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<PAGE> 59
(5) the Custody Agreement, executed by the Companies
and the Seasoned Warehouse Agent;
(b) Certified Companies' Resolutions. Each Company shall
have furnished to the Seasoned Warehouse Agent a copy of the resolutions of such
Company's Board of Directors authorizing the execution, delivery and performance
of this Agreement, the borrowings hereunder, the Seasoned Warehouse Notes and
all other Seasoned Warehouse Loan Documents contemplated by this Agreement,
which shall have been certified by such Company's Secretary or Assistant
Secretary as of the Effective Date as being complete, accurate and in effect.
(c) Certified Articles. Each Company shall have furnished
to the Seasoned Warehouse Agent a copy of the Articles of Incorporation,
including all amendments thereto and restatements thereof, and all other
charter documents of such Company, all of which shall have been certified by
the Michigan Department of Commerce (or, in the case of MCAI-Ohio, the
comparable Ohio Governmental Authority) as of a date within thirty (30) days of
the date hereof.
(d) Certified Bylaws. Each Company shall have furnished to
the Seasoned Warehouse Agent a copy of the Bylaws of such Company (or, in the
case of MCAI-Ohio, the comparable Ohio Governmental Authority), including all
amendments thereto and restatements thereof, which shall have been certified by
the Secretary or Assistant Secretary of such Company as of the date hereof.
(e) Certificate of Good Standing. Each Company shall have
furnished to the Seasoned Warehouse Agent a certificate of good standing
with respect to such Company, which shall have been certified by the Michigan
Department of Commerce (or, in the case of MCAI-Ohio, the comparable Ohio
Governmental Authority) as of a date within thirty (30) days of the Effective
Date.
(f) Certificates of Companies' Officers' Incumbency. Each
Company shall have furnished to the Seasoned Warehouse Agent a certificate of
the Secretary or Assistant Secretary of such Company, certified as of the
Effective Date, as to the incumbency and signature of the officers of such
Company signing this Agreement, the Seasoned Warehouse Notes and any other
Warehouse Loan Document contemplated or delivered under this Agreement.
(g) Opinion of Companies' Counsel. The Companies shall have
furnished to the Seasoned Warehouse Agent on or before the Effective Date or the
actual date of execution and delivery of this Agreement by the Companies
(whichever is later), the favorable written opinion of Butzel Long, legal
counsel to the Companies, dated when issued, in form and content acceptable to
the Seasoned Warehouse Agent and substantially as set forth in EXHIBIT F or
containing such other or additional opinions as may be reasonably requested by
the Seasoned Warehouse Agent; provided that if such opinion, insofar as it
relates to MCAI-Ohio, shall not be furnished to the Seasoned Warehouse Agent
concurrently with such opinion as it relates to the Borrowers, then the
Borrowers shall not make any portion of the Loan proceeds available to
MCAI-Ohio, and MCAI-Ohio shall not
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accept them, until such opinion relating to MCAI-Ohio shall have been both (i)
so furnished to the Warehouse Agent and (ii) approved by all Seasoned Warehouse
Lenders.
(h) UCC Lien Search. The Seasoned Warehouse Agent shall have
received UCC record and copy searches, evidencing the appropriate filing and
recording of Texas Commerce's existing Financing Statements in all of the
Seasoned Warehouse Collateral and their assignment to the Seasoned Warehouse
Agent, as agent and Representative of the Seasoned Warehouse Lenders under this
Agreement, and disclosing no notice of any liens or encumbrances filed against
any of the Collateral other than those assigned Financing Statements or the
other Permitted Liens.
(i) Insurance Policies. The Companies shall have furnished to the
Seasoned Warehouse Agent, in form, content and amounts and with companies
satisfactory to the Seasoned Warehouse Agent, copies of the Companies' errors
and omissions insurance policy (or policies), mortgage impairment insurance
policy and mortgage bankers blanket bond insurance policy, with loss payable
clauses in favor of the Seasoned Warehouse Agent (as agent and Representative of
the Lenders.)
(j) Approval of Agent's Counsel. All actions, proceedings and papers
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 Seasoned
Warehouse Agent, 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.
9.2 Conditions to All Disbursements. The obligations of the Seasoned
Warehouse Lenders to fund and the Seasoned Warehouse Agent to disburse the
Seasoned Warehouse Lenders' respective Funding Shares of any Seasoned Warehouse
Revolving Loan under this Agreement are also subject to satisfaction on or
before the Disbursement Date for such Seasoned Warehouse Revolving Loan of each
of the following conditions:
(a) Certificate. The Seasoned Warehouse Agent shall have
received a certificate, in the form and content of the attached EXHIBIT G-1, G-2
or G-3 (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 4.1:
(i) the proceeds of the requested Revolving Loan are
to be used to refinance Debt secured by Eligible Seasoned Warehouse Collateral
and currently held by Texas Commerce, who will assign to the Seasoned
Warehouse Agent (as agent and Representative of the Seasoned Warehouse Lenders)
its security interest in all collateral for such existing Debt being
refinanced and, upon disbursement of such proceeds to Texas Commerce, a
Company shall own good and marketable title to such Collateral, free and clear
of any lien, pledge, charge or interest of
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any party other than the Seasoned Warehouse Agent (as agent and Representative
of the Seasoned Warehouse Lenders);
(ii) all of the Collateral in which the Seasoned
Warehouse Agent (as agent and Representative of the Seasoned Warehouse
Lenders), by funding such Seasoned Warehouse Revolving Loan, will acquire a
security interest shall be Eligible Seasoned Warehouse Collateral; and
(iii) all of the Collateral secured by such Debt to be so
refinanced by the proposed Seasoned Warehouse Revolving Loan shall be Pledged to
the Seasoned Warehouse Agent, shall be pledged to no other Person and shall be
subject to this Agreement and the Seasoned Warehouse Security Agreement, and the
Seasoned Warehouse Agent, as agent and Representative of the Lenders, will
thereby acquire and have a first and prior perfected security interest therein.
(2) In the case of a request pursuant to SECTION 4.2:
(i) the proceeds of the requested Revolving Loan are to be
used to finance origination or acquisition by a Company of new Eligible Seasoned
Warehouse Collateral; and, upon disbursement of such proceeds to the mortgagors
or Land Contract purchasers (as the case may be) in respect of such Collateral
(in the case of an origination) or the seller of such Collateral (in the case of
an acquisition), such Company shall own good and marketable title to such new
Seasoned Warehouse Collateral, free and clear of any lien, pledge, charge or
interest of any party other than the Seasoned Warehouse Agent, as agent and
Representative of the Seasoned Warehouse Lenders;
(ii) all of the Collateral to be originated or acquired
with the proceeds of the requested Seasoned Warehouse Revolving Loan shall be
Eligible Seasoned Warehouse Collateral; and
(iii) all of Collateral to be originated or
acquired with the proceeds of the requested Seasoned Warehouse Revolving Loan
shall be Pledged to the Seasoned Warehouse Agent as Seasoned Warehouse
Collateral, and to no other Person, and shall be subject to this Agreement and
the Seasoned Warehouse Security Agreement.
(3) In the case of a request pursuant to SECTION 4.3:
(i) there is not then outstanding any Seasoned
Warehouse Revolving Loan previously advanced by the Seasoned Warehouse Lenders
(and disbursed by the Seasoned Warehouse Agent) with respect to the Seasoned
Warehouse Collateral to which such requested Seasoned Warehouse Revolving Loan
relates; and
(ii) all of the Seasoned Warehouse Collateral to which
such requested Seasoned Warehouse Revolving Loan relates shall be Pledged to
the Seasoned Warehouse
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Agent, and to no other Person, and shall be subject to this Agreement and the
Seasoned Warehouse Security Agreement.
(4) In the case of any Request for Advance
whatsoever:
(i) no Default or Event of Default shall have
occurred and be continuing on and as of such Disbursement Date; and
(ii) the warranties and representations set
forth in SECTION 10 of this Agreement and SECTION 3 of the Seasoned Warehouse
Security Agreement are true and correct on and as of such Disbursement Date.
(b) Borrowing Base Certificate. The Seasoned Warehouse Agent shall
have received from the Companies a borrowing base certificate (a "BORROWING BASE
CERTIFICATE") in the form of SCHEDULE 9.2(b), executed by a Responsible Officer
of MCAFC and certified as of such Disbursement Date, confirming that, as of such
Disbursement Date, the aggregate unpaid principal amount of all Seasoned
Warehouse Revolving Loans (including the Revolving Loan to be made on such
Disbursement Date) does not exceed the lesser of the Aggregate Committed Sum or
the Warehouse Borrowing Base as in effect on the close of business on the
Business 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 Seasoned Warehouse Collateral to be financed
in the refinancing of the Borrowers' existing warehouse debt to Texas Commerce
and the Eligible Seasoned Warehouse Collateral to be originated or acquired with
the proceeds of the requested Revolving Loan.
(c) Delivery of Documents. The Companies shall have
delivered to the Seasoned Warehouse Agent and the Custodian (i) a Submission
List(s) listing, and all Basic Papers for, each item of Seasoned Warehouse
Collateral to be originated or acquired with proceeds of the requested Seasoned
Warehouse Revolving Loan and copies of all other documents related to such
origination or acquisition as may be required by or pursuant to this Agreement
or the Custody Agreement, or as may be reasonably requested by the Seasoned
Warehouse Agent or the Custodian.
(d) Agent Satisfaction. The Seasoned Warehouse Agent shall not
know or have any reason to believe that, as of such Disbursement Date:
(1) any Default or Event of Default has occurred and is
continuing;
(2) any warranty or representation set forth in SECTION 10 of
this Agreement or SECTION 3 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, any Seasoned Warehouse Note, the
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Seasoned Warehouse Security Agreement, any Financing Statements, the Custody
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 Company.
(e) Approval of Agent's 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
Seasoned Warehouse Agent, 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.
(f) Updated Opinion of the Companies' Counsel. The Seasoned
Warehouse Agent shall have received from counsel for the Companies, if
reasonably requested by the Seasoned Warehouse Agent pursuant to instructions
from the Majority Seasoned Warehouse Lenders, an updated favorable opinion or
opinions, in form and substance satisfactory to the Seasoned Warehouse Agent
addressed to the Seasoned Warehouse Lenders and the Seasoned Warehouse Agent and
dated as of the date of such Seasoned Warehouse Revolving Loan, covering and
updating such matters that were originally addressed in the opinion issued
pursuant to SECTION 9.1(g) as the Seasoned Warehouse Agent may reasonably
request.
(g) Fees Paid. The Companies shall have paid the Facility Fee,
Agent's Fee and Custodian's Fee then due and payable in accordance with
SECTIONS 6.6, 6.7 and 6.8.
10. 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 Companies
have performed all of their other obligations hereunder, the Companies represent
and warrant to the Seasoned Warehouse Agent, the Custodian and the Seasoned
Warehouse Lenders that:
10.1 Corporate Existence and Power. (a) Each Company, and
each of its Subsidiaries, is a corporation duly organized, validly existing and
in good standing under the laws of the State of Michigan (or, in the case of
MCAI-Ohio, the State of Ohio), and has the corporate power and authority to own
or lease 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 Company has
the corporate power and authority to execute, deliver and perform this
Agreement, to borrow money (in the case of MCAI-Ohio, from the Borrowers) in
accordance with its terms, to execute, deliver and perform the Seasoned
Warehouse Notes and the other Loan Documents, to grant to the Seasoned Warehouse
Agent (as agent and Representative of the Lenders) liens and security interests
in the Seasoned Warehouse Collateral as hereby contemplated and to do any and
all other things required of it hereunder or under the
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Seasoned Warehouse Security Agreement and the other Loan Documents. SCHEDULE
10.1 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 Company or Subsidiary (and identifying such
Company or Subsidiary).
10.2 Authorization and Approvals. The execution, delivery and
performance of this Agreement, the Borrowings hereunder and the execution,
delivery and performance of the Seasoned Warehouse Notes and the other Loan
Documents (a) have been duly authorized by all requisite corporate action of
each Company, (b) except for UCC filings, 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
Seasoned Warehouse Agent, (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 Company, any provision of any contract, mortgage,
indenture, note, agreement, lease or other instrument to which any Company 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 Company other
than in favor of the Seasoned Warehouse Agent (as agent and Representative of
the Seasoned Warehouse Lenders).
10.3 Valid and Binding Agreement. This Agreement and the
existing Financing Statements in favor of Texas Commerce in respect of its
warehousing loans to the Companies and duly assigned by UCC-3 Assignments to the
Seasoned Warehouse Agent, as agent and Representative of the Seasoned Warehouse
Lenders, are, and the Seasoned Warehouse Notes, the Seasoned Warehouse Security
Agreement and all other documents contemplated hereby when delivered will be,
valid and binding obligations of each Company 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.
10.4 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 Company,
threatened against or affecting any Company, any Subsidiary or any properties or
rights of any Company or any Subsidiary which, if adversely determined, would,
individually or collectively, materially impair the right of any Company to
carry on business substantially as now conducted or could have a Material
Adverse Effect. Except as disclosed on SCHEDULE 10.4, (a) no Company is subject
to, or aware of the threat of, any such pending actions, suits or proceedings
affecting that Company or any Subsidiary and (b) no outstanding or unpaid
judgments against any Company or any Subsidiary exist.
10.5 No Liens, Pledges, Mortgages or Security Interests.
Except for Permitted Liens, none of the Companies' nor any Subsidiary's assets
and properties, including the Collateral, are subject to any mortgage, pledge,
lien, security interest or other encumbrance of any kind or character.
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10.6 Financial Statements. All consolidated and consolidating balance
sheets, statements of income and retained earnings and statements of cash flows
furnished to the Seasoned Warehouse Agent for the purpose of, or in connection
with, this Agreement and the transactions contemplated by this Agreement
("FINANCIAL STATEMENTS"), including financial statements previously delivered to
the Seasoned Warehouse Agent and those financial statements to be furnished to
the Seasoned Warehouse Agent pursuant to SECTION 11.2, have been or will be
prepared in accordance with GAAP, and do or will fairly present the financial
condition of the Companies and the Subsidiaries, as of the dates, and the
results of their operations for the periods, for which the same are furnished to
the Seasoned Warehouse Agent. No Company or Subsidiary has any material
contingent obligations, liabilities for taxes, long-term leases or unusual
forward or long-term commitments not disclosed by, or reserved against in, the
Financial Statements.
10.7 Financial Condition. On a consolidated basis, the Companies 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.
10.8 The Companies Have Paid Taxes. Each Company 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 Company 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.
10.9 Compliance with Laws. Each Company 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.
10.10 Margin Stock. No Company 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 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
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of Regulation G, T, U or X of said Board of Governors. No Company or
Subsidiary owns any margin stock.
10.11 No Pension Funding Deficiency. No Company 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 Company or Subsidiary, and no reportable event
or prohibited transaction, as defined in ERISA, has occurred with respect to
such plans.
10.12 Approved Lender, Mortgagee, Issuer and Servicer. Each
Company that is, or is acting as, a Servicer for GNMA, FNMA or FHLMC 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.
10.13 Investment Company. No Company 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.
10.14 Misrepresentation. No warranty or representation by any
Company contained herein or in any certificate or other material document
furnished by any Company 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 that the Companies have not disclosed to the
Seasoned Warehouse Agent in writing which has a Material Adverse Effect or, so
far as the Companies can now foresee, is likely to have a Material Adverse
Effect.
11. 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 Companies
have performed all of their other obligations hereunder, the Companies covenant
and agree that they will:
11.1 Pay Revolving Credit Notes. Punctually pay or cause to be
paid when due the principal of, interest on and all other amounts now or
hereafter owing under this Agreement, the Revolving Credit Notes and the other
Loan Documents in accordance with their respective terms.
11.2 Furnish Financial and Other Information. Promptly furnish
to the Seasoned Warehouse Agent (for distribution to the Lenders) from time to
time information regarding the business and affairs of the Companies, including
the following and such other information as the Seasoned Warehouse Agent may
from time to time reasonably request:
(a) Annual Financial Reports. not later than
ninety (90) days after the close of each fiscal year of the Companies,
beginning with the fiscal year ending January 31, 1998, financial
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statements of the Companies, in form and on a reporting basis reasonably
satisfactory to the Seasoned Warehouse Agent and on a consolidated and
consolidating basis containing the balance sheet of the Companies 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 Companies and reasonably acceptable to the Seasoned
Warehouse Agent and shall contain unqualified opinions as to the fairness of
the statements therein contained.
(b) Quarterly Financial Statements. not later than forty-five
(45) days after the close of each quarter of each fiscal year of the Companies,
in form and on a reporting basis reasonably satisfactory to the Seasoned
Warehouse Agent, beginning with the fiscal quarter ended July 31, 1997,
financial statements on a consolidated and consolidating basis containing the
balance sheet of the Companies as of the end of each such period, statements of
income and retained earnings of the Companies and a statement of cash flows of
the Companies 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. Such statements shall be prepared on the same accounting basis as the
statements required in SECTION 11.2(a) (subject to normal year-end adjustments)
and shall be in such detail as the Seasoned Warehouse Agent 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 11.2(a) and 11.2(b), a certificate
of the chief executive or chief financial officer of MCAFC (a) stating that (i)
the warranties and representations set forth in SECTION 10 are true and correct
as of such date, and (ii) no Event of Default or Default has occurred, or if any
Event of Default or Default exists, stating the nature thereof, the period of
existence thereof and what action the Companies 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 11.6, 11.7, 11.8 and 11.9 in conformity with the terms of this
Agreement. Each such certificate delivered with the financial statements
required by SECTION 11.2(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) Monthly Management Report. within thirty (30) days after
the end of each month, a management report substantially in the form of SCHEDULE
11.2(d) setting forth the Companies' loan production, commitment and pipeline
positions and servicing portfolio as of the end of such month, executed by a
Responsible Officer of the relevant Company.
(e) Monthly Pledged Loans Curtailment Report. within thirty
(30) days after the end of each month, a Pledged Loans Curtailment Report.
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(f) Seasoned Warehouse Collateral Certificate. not later than five
(5) Business Days after the Seasoned Warehouse Agent's request therefor made
from time to time, a certificate in the form attached as EXHIBIT H executed by a
Responsible Officer of the relevant Company setting forth an updated list, dated
as of a current date acceptable to the Seasoned Warehouse Agent, of all Seasoned
Warehouse Collateral then Pledged to the Seasoned Warehouse Agent according to
the Companies' records.
(g) Adverse Effect. written notice promptly informing the
Seasoned Warehouse Agent of (a) the occurrence of any Default or Event of
Default, (b) any litigation which if determined adversely to a Company or
Subsidiary and not satisfied in a timely fashion would have a Material Adverse
Effect or constitute a Default or an Event of Default, or (c) any other
occurrence which is known or should be known to a Company and which has or could
reasonably be expected to have a Material Adverse Effect.
(h) Shareholder Reports. promptly upon their becoming available,
a copy of all financial statements, reports, notices, proxy statements and other
communications sent by any Company or Subsidiary to its shareholders, and all
regular and periodic reports filed by any Company or Subsidiary with any
securities exchange, the Securities and Exchange Commission, the Corporation,
Securities and Land Development Bureau of the Department of Consumer and
Industry Services of the State of Michigan (or, as to MCAI-Ohio, the
corresponding Ohio Governmental Authority), or any governmental authorities
succeeding to any or all of the functions of said Commission, Bureau or
comparable Governmental Authority.
(i) Management Letters. promptly upon receipt thereof, copies of
all management letters and other reports of substance submitted to any Company
or any of the Subsidiaries by independent certified accountants in connection
with any annual or interim audit of the books of any Company or Subsidiary.
(j) Agency Audits. promptly upon receipt thereof, a copy of any
audit, examination or report performed on or with respect to any Company or
Subsidiary by GNMA, FNMA, FHLMC, the Department of Housing and Urban Development
or any other governmental agency or authority.
(k) Other Information as Requested. such other information
regarding the operations, business, properties and financial condition of any
Company and any Subsidiary as the Seasoned Warehouse Agent may reasonably
request from time to time promptly after such request.
11.3 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 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 Companies 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
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other insurance as may be required by Law or as may be reasonably required in
writing by the Seasoned Warehouse Agent, including an 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 of
the Seasoned Warehouse Agent, as agent and Representative of the Seasoned
Warehouse Lenders), all of which insurance shall (i) be in such amounts, (ii)
contain such terms, (ii) be in such form, (iii) be for such purposes, (iv) be
prepaid for such time period and (v) be written by such companies, as may be
reasonably satisfactory to the Seasoned Warehouse Agent. 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 Seasoned Warehouse Agent.
The Companies will promptly deliver to the Seasoned Warehouse Agent, at the
Seasoned Warehouse Agent's request and without charge, evidence satisfactory to
the Seasoned Warehouse Agent that such insurance has been so procured.
11.4 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 Company or Subsidiary, and their property, except to the
extent being contested in good faith and, if required by the Seasoned Warehouse
Agent, bonded in an amount and manner satisfactory to the Seasoned Warehouse
Agent. If any Company or Subsidiary shall fail to pay such taxes and
assessments within the time they can be paid without penalty, late charge or
interest, the Seasoned Warehouse Agent and the Lenders shall have the option to
do so, and the Companies agree to repay the Seasoned Warehouse Agent (for
distribution to itself and/or to such other Lenders as shall have paid them)
upon demand, with interest at the Past Due Rate, all amounts so expended by the
Seasoned Warehouse Agent and the Lenders.
11.5 Maintain Corporation and Business. Do or cause to be done
all things necessary to preserve and keep in full force and effect each
Company'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.
11.6 Maintain Net Worth.
(a) MCAFC's Minimum Consolidated Net Worth. 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) MCAMC's Minimum Net Worth. 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.
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(c) MCA's Minimum Net Worth. 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.
11.7 Limit Leverage.
(a) MCAFC's Maximum Leverage Ratio. Limit MCAFC's ratio of (i) its
total Debt to (ii) its consolidated Net Worth to 10.0 to 1.0 or less.
(b) MCAMC's Maximum Leverage Ratio. Limit MCAMC's ratio of its
total Debt to its Net Worth to 10.0 to 1.0 or less.
(c) MCA's Maximum Leverage Ratio. Limit MCA's ratio of its total
Debt to its Net Worth to 10.0 to 1.0 or less.
11.8 Maintain Servicing Portfolio Level. Maintain a Servicing Portfolio
of at least Five Hundred Million Dollars ($500,000,000).
11.9 Maintain Fixed Charges Coverage Ratio. Maintain the Fixed Charges
Coverage Ratio as 1.10 to 1.0 or greater.
11.10 ERISA. (a) At all times meet and cause each of the Subsidiaries to
meet the minimum funding requirements of ERISA with respect to the Companies'
and Subsidiaries' employee benefit plans subject to ERISA and to otherwise
comply with all applicable Laws; (b) promptly after any Company 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 Company has instituted or will institute proceedings to terminate an employee
pension plan, deliver to the Seasoned Warehouse Agent a certificate of the chief
financial officer of MCAFC setting forth the details as to such event or
proceedings and the action which the Companies 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 Seasoned Warehouse Agent (or
cause the plan administrator to furnish the Seasoned Warehouse Agent) 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 Companies
not later than ten (10) days after such report has been so filed.
11.11 Use of Loan Proceeds. Use the proceeds of the Revolving Loans
hereunder only for the purposes set forth in the recitals of this Agreement.
11.12 Senior Management. Promptly after any change in any of the five
officers of MCAFC or MCA who have the highest degree of management or
policy-making authority for the Companies, (the individuals who are such
officers of the Effective Date are listed on SCHEDULE 11.12), regardless of the
reason for such change, notify the Seasoned Warehouse Agent in writing of such
change and
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furnish to the Seasoned Warehouse Agent a revised SCHEDULE 11.12 reflecting the
individuals then holding such positions.
11.13 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 Seasoned Warehouse Agent and
the Lenders 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 Company does hereby
authorize the same.
11.14 Further Assurances. Execute and deliver promptly after request
therefor by the Seasoned Warehouse Agent all further instruments and documents,
and take all further action that may be necessary or desirable or that the
Seasoned Warehouse Agent may reasonably request, in order to give effect to,
and to aid in the exercise and enforcement of, the rights and remedies of the
Seasoned Warehouse Agent and the Lenders under this Agreement and the other
Loan Documents.
11.15 Shareholder Changes. Promptly after any change in the ownership of
record of the voting stock of any Company (or, if known, the beneficial
ownership of such stock) which, together with any prior changes not reflected
in the most current version of SCHEDULE 11.15 furnished to the Seasoned
Warehouse Agent, constitutes a change in ownership of five percent (5%) or more
of MCAFC's outstanding voting stock -- the version of SCHEDULE 11.15 that is
attached to this Agreement is a true and complete list of the holders of the
voting stock of MCAFC and of each other Company on the Effective Date, showing
their names and the number of shares held -- notify the Seasoned Warehouse
Agent in writing of such change (and of any prior unreflected changes) and
furnish to the Seasoned Warehouse Agent a revised SCHEDULE 11.15 reflecting the
then-existing ownership structure; provided that after the issuance of MCAFC
common stock pursuant to an offering registered under the Securities Act of
1933, as amended, a revised SCHEDULE 11.15 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.
12. 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
Companies have performed all of their other obligations hereunder, each Company
covenants and agrees that it will not, and will not permit any Subsidiary to:
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12.1 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 Company (including from one Company to another Company), (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, in each case pursuant to the
dividend payment requirements thereof as they exist on the Effective Date.
12.2 Stock Acquisition. Purchase, redeem, retire or otherwise acquire
any of the shares of its capital stock, or make any commitment to do so;
provided that shares owned by an officer of a Company 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 that Company 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 the Companies' capital stock owned by the Pension Fund, and rights
owned by the Pension Fund to acquire the Companies' capital stock, may be
acquired by the Companies as provided in the Enhancement Agreement, the
Companies' loan agreement with the Pension Fund for the Pension Fund's $15
million subordinated debt facility for the Companies and related agreements.
12.3 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.
12.4 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 Seasoned Warehouse Agent, in its sole
discretion, (c) existing indebtedness to the extent set forth on SCHEDULE 12.4,
(d) trade indebtedness incurred and paid in the ordinary course of business,
(e) contingent indebtedness to the extent permitted by SECTION 12.6,
(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.
12.5 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 or acquisition of residential mortgage
loans, (b) providing a mortgage loan warehouse line of credit to a third person
in the ordinary course of the relevant Company's business, (c) travel
expenses, (d)
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commissions payable to sales representatives, (e) a Company'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
Company has a general partner interest or by Detroit Revitalization, Inc.
12.6 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 and the servicing and residuals credit facilities that are
listed on the schedule of the Companies' existing liens attached as SCHEDULE
12.6 or (3) the Loan and Financing Agreement dated July 18, 1996 between the
Pension Fund, as the lender, and the Companies, as coborrowers jointly and
severally liable thereunder, described in SCHEDULE 12.4; or
(iii) in connection with the maintenance of escrow accounts for mortgages
serviced by a Company;
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.
12.7 Subordinate Indebtedness. Subordinate any indebtedness due to it
from a Person to indebtedness of other creditors of that Person.
12.8 Property Transfer; Merger or Lease-Back. (a) During any fiscal
year, 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 that
nothing in this SECTION 12.8 shall prevent (i) the merger of one Subsidiary
(including a Company) with or into any other
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Subsidiary or Company 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).
12.9 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
Company or Subsidiary is engaged on the date of this Agreement.
12.10 Acquire Securities. Purchase (except as permitted by SECTION 12.2)
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 Company 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 Company shall inadvertently
purchase or otherwise become the beneficial holder of any stock or securities in
violation of this covenant, that will not constitute an Event of Default unless
such Company shall fail or refuse to divest itself thereof on or before thirty
(30) days after first becoming aware of such violation.
12.11 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.
12.12 Pension Plans. (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 Company or any Subsidiary to the PBGC which, in the opinion of
the Seasoned Warehouse Agent, will have a Material Adverse Effect.
12.13 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 Company or Subsidiary than it would obtain in a
comparable arm's length transaction with a Person not an Affiliate or
shareholder of such Company or Subsidiary, (b) as set forth on SCHEDULE 12.13 or
(c) as otherwise contemplated in clause (i) of the proviso set forth in SECTION
12.8; provided that if a Company 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 each affected
Company shall fail or refuse to cure such violation (and all of its material
effects) to
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the Seasoned Warehouse Agent's satisfaction on or before thirty (30) days after
first becoming aware of such violation.
12.14 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 GNMA, FNMA,
FHLMC or any other investor for whom any Company services residential mortgage
loans.
12.15 Misrepresentation. Furnish the Seasoned Warehouse Agent
or any Seasoned Warehouse Lender 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.
13. EVENTS OF DEFAULT; REMEDIES; APPLICATION OF PROCEEDS
13.1 Events of Default. The occurrence of any of the following events
shall constitute an Event of Default:
(a) Failure to Pay Monies Due. If the Companies shall fail to pay,
when due, any principal or interest under any Revolving Credit Note or any other
Obligations owed under this Agreement or if any Company or Subsidiary shall fail
to pay, when due, any other indebtedness, obligation or liability whatsoever to
the Lenders or the Seasoned Warehouse Agent under the Loan Documents, and in the
case of (a) any failure to pay interest under the Revolving Credit Notes 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 Companies in connection with or contained in this
Agreement, or if any financial data or other information now or hereafter
furnished to the Seasoned Warehouse Agent or any Lender by or on behalf of the
Companies, shall prove to be false or misleading in any material respect.
(c) Noncompliance with Loan Documents. If any Company
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 Notes or the Security
Agreement, which does not involve the failure to make a payment when due
specified in SECTION 13.1(a) and which is not cured within thirty (30) days
after the earlier of the date of notice to such Company by the Seasoned
Warehouse Agent of such Default or the date the Seasoned Warehouse Agent is
notified, or should have been notified pursuant to the Companies' obligation
under SECTION 11.2(g), of such Default; provided that there shall be no cure
period with respect to any failure to perform under, or comply with the
provisions of, SECTIONS 11.2 (except Section 11.2(g)), 11.6, 11.7, 11.8, 11.11
and 12.1 through 12.15.
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(d) Event of Default under Servicing/Residuals Loan Agreement. If
any Event of Default (as therein defined) shall occur under the
Servicing/Residuals Loan Agreement.
(e) Event of Default under Seasoned Warehouse Credit Agreement. If
any Event of Default (as therein defined) shall occur under the Seasoned
Warehouse Credit Agreement.
(f) Other Defaults. In respect of indebtedness to any Person other
than indebtedness to the Seasoned Warehouse Lenders under the Seasoned Warehouse
Loan Documents, the Servicing/Residuals Loan Agreement or the Seasoned Warehouse
Credit Agreement, if any Company or Subsidiary shall either (i) 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 (ii)
default 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 in observance or
performance results in acceleration by the holder thereof.
(g) Judgments. If there shall be rendered against any Company 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 Company or Subsidiary shall be issued
and levied in an action claiming One Hundred Thousand Dollars ($100,000) or more
and not released or appealed and bonded in an amount and manner satisfactory to
the Seasoned Warehouse Agent within thirty (30) days after such issuance and
levy.
(h) Business Suspension, Bankruptcy, Etc. If any Company or
Subsidiary shall voluntarily suspend transaction of its business; or if any
Company or Subsidiary shall not pay its debts as they mature, admit in writing
its inability to pay its debts as they mature or make a general assignment for
the benefit of creditors; or proceedings in bankruptcy, or for reorganization or
liquidation, of any Company or Subsidiary under any Debtor Law (i) shall be
commenced or consented to by any Company or Subsidiary, or (ii) shall be
involuntarily commenced against any Company or Subsidiary and shall not be
discharged within thirty (30) days of commencement; or a receiver, trustee or
custodian shall be appointed for any Company or Subsidiary or for any
substantial portion of their respective properties or assets.
(i) Change of Management or Ownership. If any Company or
twenty-five percent (25%) or more of any Company'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 11.12 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;
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and any such change of control or office holder may adversely affect, in the
judgment of the Seasoned Warehouse Agent, the ability of such Company to carry
on its business as conducted before such change.
(j) Material Adverse Change; Insecurity. If
there shall have occurred any other material adverse change in the business,
operations, properties, condition (financial or otherwise) or prospects of any
Company, or the Seasoned Warehouse Agent shall otherwise reasonably deem the
Lenders to be insecure with regard to the prospects of having the Obligations
repaid by the Borrowers on a timely basis.
13.2 Automatic Termination and Acceleration. Upon the
occurrence of an Event of Default described in SECTION 13.1(h), the Seasoned
Warehouse Lenders' Commitments shall automatically terminate and the Seasoned
Warehouse Notes and all of the other Obligations shall automatically become
immediately due and payable without notice, presentment, demand or other
requirements of any kind (all of which are hereby expressly waived by the
Companies) unless all of the Seasoned Warehouse Lenders, each acting in its
sole discretion, shall otherwise agree in writing either before or after such
automatic event.
13.3 Acceleration for Other Default. At any time after
any Event of Default has occurred -- other than one of those described in
SECTION 13.1(h), each of which has the automatic effects described in SECTION
13.2 -- that has not been declared in writing by the Seasoned Warehouse Agent
to have been cured or waived, the Majority Seasoned Warehouse Lenders, by
written notice to the Companies (which may be given by the Seasoned Warehouse
Agent), may electively (1) terminate the Commitments -- in which event the
obligation of the Seasoned Warehouse Lenders to make Seasoned Warehouse
Revolving Loans shall immediately terminate -- and/or (2) declare all or any
portion of the Seasoned Warehouse Revolving Loans to be due and payable -- in
which event that portion of the Revolving Loans, both advanced and unpaid
principal and accrued and unpaid interest on it and all other outstanding
amounts, shall immediately be and become due and payable without notice,
presentment, demand or other requirements of any kind (all of which are hereby
expressly waived by the Companies).
13.4 Remedies; Remedies Are Cumulative. Upon any such
automatic or declared acceleration described or referred to in SECTION 13.2 or
13.3, unless all of the Obligations which thereupon became due are immediately
fully paid, the Seasoned Warehouse Agent 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 or under any other documents
contemplated hereby or for which provision is provided by law or in equity,
including the right of the Seasoned Warehouse Agent to take possession and
sell, lease or otherwise dispose of any or all of the Collateral and the right
of the Seasoned Warehouse Agent or any of the Seasoned Warehouse Lenders to set
off against the Obligations any amount owing by the Seasoned Warehouse Agent or
that Lender to any Company and/or any property of any Company in possession of
the Seasoned Warehouse Agent or that Lender (other than funds held in escrow or
custodial accounts maintained by a Company with Texas Commerce). The Companies
agree, upon request of the Seasoned
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Warehouse Agent, to assemble the Collateral and make it available to the
Seasoned Warehouse Agent at any place designated by the Seasoned Warehouse
Agent which is reasonably convenient to the Seasoned Warehouse Agent and the
Companies. 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 Seasoned Warehouse Agent from pursuing any other remedy for the recovery of
any other sum to which the Seasoned Warehouse Agent or the Lenders may be or
become entitled for the breach of this Agreement by the Companies.
13.5 Agent and Lenders Not Liable; Waiver of
Claims. Neither the Seasoned Warehouse Agent nor any of the Lenders shall
incur any liability as a result of the sale of the Collateral, or any part of
it, at any private sale made in compliance with applicable law and their
respective obligations under the Seasoned Warehouse Loan Documents. The
Companies hereby waive any claims they may have against the Seasoned Warehouse
Agent or the Lenders arising by reason of the fact that the price at which the
Collateral may have been sold at such private sale was less than the price that
might have been obtained at a public sale, less than the price that might have
been obtained had the Collateral been sold pursuant to a purchase commitment
for it obtained by the Companies, or less than the aggregate amount of the
outstanding Revolving Loans and the unpaid interest accrued on them, even if
the Seasoned Warehouse Agent accepts the first offer received and does not
offer the Collateral to more than one offeree.
13.6 Waiver of Possible Implied Obligations. The
Companies waive any right to require the Seasoned Warehouse Agent or any Lender
to (1) proceed against any Person, (2) proceed against or exhaust any of the
Collateral or pursue its rights and remedies as against the Collateral in any
particular order or (3) pursue any other remedy in its power. Except to the
extent, if any, required by applicable Law, neither the Seasoned Warehouse
Agent nor any Seasoned Warehouse Lender shall be required to take any steps
necessary to preserve any rights of the Companies against holders of Mortgage
Loans or Land Contracts or security interests prior in lien to the Lien of any
Lien instrument included in the Collateral, to preserve rights against prior
parties or to preserve rights against other parties to servicing contracts.
13.7 Protective Advances. The Seasoned Warehouse
Agent and the Lenders may, but shall not be obligated to, advance any sums or
do any act or thing necessary to uphold and enforce the Lien and priority of
any Lien instrument included in the Collateral or the security intended to be
afforded by it, including payment of delinquent taxes or assessments and
insurance premiums, or to preserve or reinstate any hedging arrangements or
mechanisms. All advances, charges, costs and expenses, including reasonable
attorneys' fees and disbursements, incurred or paid by the Seasoned Warehouse
Agent or any Lender in exercising any right, power or remedy conferred by this
Agreement or any of the other Loan Documents, or in its enforcement, together
with interest thereon, at the Base Rate plus one percent (1%) per annum from
the time of demand for its payment until ten (10) days thereafter, and at the
Past Due Rate from ten (10) days after demand until repaid, shall become a part
of principal balance outstanding under the Seasoned Warehouse Notes (Pro Rata
with
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the respective principal balances of the Seasoned Warehouse Notes at the time
of expenditure) and shall be secured by all security for the Seasoned Warehouse
Notes.
13.8 Delay Not Waiver. No failure on the part of the Seasoned
Warehouse Agent or any Lender to exercise, and no delay in exercising, any
right, power or remedy provided under any of the Loan Documents, at law or in
equity, shall operate as a waiver of it, nor shall any single or partial
exercise by the Seasoned Warehouse Agent or any Lender of any right, power or
remedy provided under any of the Loan Documents, at law or in equity, preclude
any other or further exercise of it or the exercise of any other right, power or
remedy.
13.9 Application of Proceeds. All of the Obligations shall
constitute one loan secured by the Seasoned Warehouse Agent's security interest
(as agent and Representative of the Seasoned Warehouse Lenders) in the
Collateral and by all other security interests, mortgages, liens, claims and
encumbrances now and from time to time hereafter granted from the Companies to
the Seasoned Warehouse Agent (as agent and Representative of the Seasoned
Warehouse Lenders.) The proceeds of any sale or other enforcement of the Lender
Lien in all or any part of the Collateral shall be applied by the Seasoned
Warehouse Agent:
First, to the payment of the costs and expenses of such sale or
enforcement, including reasonable compensation to the Seasoned Warehouse
Agent's counsel and agents, and all expenses, liabilities and advances made or
incurred by or on behalf of the Seasoned Warehouse Agent in connection
therewith;
Second, to the payment of any accrued and unpaid fees and other
amounts due (other than principal and interest) under the Revolving Credit
Notes, this Agreement, the Security Agreement or the other Loan Documents;
Third, to the payment of interest accrued and unpaid on the Revolving
Credit Notes, Pro Rata;
Fourth, to the payment of the outstanding principal balances of the
Revolving Credit Notes, Pro Rata -- at this application level, collections from
and proceeds of Collateral shall be applied first to the repayment of
Foreclosure/REO/Repurchase Borrowings outstanding and any remaining proceeds
shall be applied to repay other outstanding Borrowings; and
Finally, to the payment to the Borrowers, or to their successors or
assigns, or as a court of competent jurisdiction may direct, of the surplus, if
any, then remaining from such proceeds.
If the proceeds of any such sale are insufficient to cover the costs and
expenses of such sale, as aforesaid, and the payment in full of the Seasoned
Warehouse Notes and the Obligations and all other amounts (if any) due under
the Loan Documents, then the Companies shall remain liable for any deficiency,
and shall be obligated to pay it without notice or demand.
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13.10 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 Seasoned Warehouse Agent from making
demand, without notice and with or without reason, for immediate payment of all
or any part of such Obligations at any time or times, whether or not a Default
or an Event of Default has occurred.
13.11 Marshaling. Each Company, 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.
13.12 Cure or Waiver. If:
(a) an Event of Default shall occur but subsequently the
required number of Lenders shall waive the rights of the Lenders and the
Seasoned Warehouse Agent to exercise remedies on account of such Event of
Default (whether temporarily or permanently and whether conditionally or
absolutely); provided that neither the Lenders nor the Seasoned Warehouse Agent
shall have any obligation to do so; and
(b) the Borrowers shall request in writing that the Seasoned
Warehouse Agent declare such Event of Default to have been cured or waived; then
(but not otherwise) the Seasoned Warehouse Agent shall make such declaration in
writing and shall deliver a copy of the declaration to the Borrowers and each
Lender.
14. RELATIONSHIPS AMONG THE AGENT AND THE LENDERS.
14.1 Agent's Duties. In its capacity as servicer of the Seasoned
Warehouse Revolving Loans and until the Seasoned Warehouse Revolving Loans are
fully paid and satisfied, the Seasoned Warehouse Agent shall:
(a) hold the Seasoned Warehouse Loan Documents (other than the
Seasoned Warehouse Notes, each of which shall be held by and belong solely to
its payee) and the Seasoned Warehouse Collateral for the benefit of itself and
each other Seasoned Warehouse Lender, and each Lender (including Texas Commerce)
shall be deemed to have an interest in the Loan Documents (other than the
Seasoned Warehouse Notes, as stated above) and in the Lender Lien in and to the
Collateral on any day in proportion to its Pro Rata interest in the Seasoned
Warehouse Revolving Loans on that day;
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(b) send timely bills to the Companies for accrued interest, the
Facility Fee and other sums due and receive all payments of principal, interest
and other sums on account of the Seasoned Warehouse Revolving Loans or with
respect to them or the Commitments and remit them to the Seasoned Warehouse
Lenders in accordance with the provisions of SECTION 7.2;
(c) send the Seasoned Warehouse Lenders copies of supplements and
amendments to SCHEDULE AI promptly after they are made;
(d) notify the Lenders of any election made by the Borrowers pursuant
to SECTION 7.3 to terminate or reduce the Seasoned Warehouse Lenders'
Commitments.
(e) use reasonable diligence to obtain from the Companies and
promptly remit to each Lender that proportion of the Facility Fee received by
the Seasoned Warehouse Agent that bears the same ratio to the total Facility Fee
so received as that Lender's Committed Sum for the relevant period bears to the
Aggregate Committed Sum for the same period and (ii) such Lender's Pro Rata
share of interest, principal and other sums received by the Seasoned Warehouse
Agent on account of the Seasoned Warehouse Revolving Loans or with respect to
them, in accordance with this Agreement;
(f) use reasonable diligence to recover from the Companies all
expenses incurred that are reimbursable by the Companies, and promptly remit to
each Lender its share (if any) thereof;
(g) enforce the terms of this Agreement, including, with the approval
or at the direction of the Majority Seasoned Warehouse Lenders, the remedies
afforded the Lenders pursuant to SECTION 13.4; and
(h) hold all security interests ratably for itself as agent and
Representative of and on behalf of the Seasoned Warehouse Lender(s).
14.2 Actions Requiring All Lenders' Consent. Without the written
consent or ratification of all Seasoned Warehouse Lenders, the Seasoned
Warehouse Agent shall not:
(a) extend the due date or reduce the amount of any mandatory
principal payment.
(b) release any material Lien held under the Loan Documents other
than in accordance with the Loan Documents.
(c) waive, compromise or settle any material claim against the
Companies or release any of them from any material obligation or liability under
the Seasoned Warehouse Loan Documents.
(d) agree to any change in the interest rate or fee provisions --
excluding the Seasoned Warehouse Agent's Fee and the Custodian's Fee -- of this
Agreement.
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(e) increase the Aggregate Committed Sum or
increase the maximum principal amount of the Seasoned Warehouse Revolving Loans
above the Aggregate Committed Sum.
(f) change any Lender's Pro Rata share of the
Seasoned Warehouse Revolving Loans other than in accordance with the express
provisions of the Seasoned Warehouse Loan Documents.
(g) extend the Termination Date.
(h) change any provision of this Agreement that
specifically requires the approval of, or other action by, all Seasoned
Warehouse Lenders, including (i) the provisions of this SECTION 14.2, (ii) the
parenthetical in the first sentence of SECTION 3.1 requiring all Seasoned
Warehouse Lenders' to elect in writing to continue lending under this Agreement
despite the existence of an uncured and unwaived Default or Event of Default,
(iii) the last clause of SECTION 13.2 requiring all Seasoned Warehouse Lenders'
written consent to override the automatic acceleration of maturity of the
Obligations and termination of the Seasoned Warehouse Lenders' Commitments
after an Event of Default described in SECTION 13.1(h), (iv) the last sentence
of SECTION 14.17(a) requiring all Seasoned Warehouse Lenders' consent or
ratification of any amendment to that Section (concerning participations), (v)
the proviso in the first sentence of SECTION 16.11 prohibiting the Companies'
assignment or delegation of their rights, benefits or duties hereunder without
all Seasoned Warehouse Lenders' consent or confirmation and (vi) the last
sentence of SECTION 16.19 requiring all Seasoned Warehouse Lenders' execution
of a written instrument to modify or relinquish the jury trial waiver
provisions of that Section.
14.3 Actions Requiring Majority Lenders' Consent. Without
the written consent or ratification of the Majority Seasoned Warehouse Lenders,
the Seasoned Warehouse Agent shall not:
(a) notify the Borrowers that the Commitments are
terminated or that the maturity of all or any part of the Seasoned Warehouse
Revolving Loans has been accelerated unless an Event of Default described in
SECTION 13.1(h) has occurred (in which event the Commitments shall
automatically terminate and the maturity of the Seasoned Warehouse Revolving
Loans shall be automatically accelerated and the Seasoned Warehouse Agent may
so notify the Borrowers, but no such notice shall be required for any purpose).
(b) exercise any of the remedies for default described in
SECTION 13.4.
(c) cause or permit any material change in the terms of any
affirmative or negative covenants in this Agreement.
(d) cause or permit any material change in the eligibility
standards for Collateral hereunder, including approving any material increase
in the maximum principal amount thereof.
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(e) make or consent to any materially adverse amendment,
modification or waiver of any of the terms, covenants, provisions or conditions
of the Loan Documents.
(f) waive any material default under the Loan Documents.
(g) materially change the definition of any type of
Eligible Seasoned Collateral.
(h) materially change any date on which any payments by the
Companies are due under the Loan Documents.
(i) approve any Change of Control.
(j) approve any replacement for any Company's president and chief
executive officer or its chief operating officer or any reassignment of such
officers' principal duties, responsibilities or functions.
(k) amend any provision of this Agreement.
14.4 Agent's Discretionary Actions. Except as provided in SECTIONS 14.2
and 14.3, in its capacity as servicer and without seeking or obtaining the
consent of any of the other Seasoned Warehouse Lenders (although it may elect to
obtain such consent before acting it if deems that desirable), the Seasoned
Warehouse Agent may:
(a) agree or consent to any change in the handling of the
Collateral which in the Seasoned Warehouse Agent's reasonable judgment is
unlikely to have a Material Adverse Effect;
(b) release, reconvey or change, in whole or in part, any
Collateral or Lien which is required to be released or reconveyed in accordance
with the Loan Documents; and
(c) do or perform any act or thing which, in the Seasoned
Warehouse Agent's reasonable judgment, is necessary or appropriate to enable
the Seasoned Warehouse Agent to properly discharge and perform its duties
under this Agreement and the other Loan Documents, or which in its reasonable
judgment is necessary or appropriate to preserve or protect the validity,
integrity or enforceability of the Loan Documents, the Liens created by the
Loan Documents, such Liens' priorities, the Collateral or the interest of the
Lenders in them.
14.5 Lenders' Cooperation. The Lenders agree to cooperate among
themselves and with the Seasoned Warehouse Agent and from time to time upon the
Seasoned Warehouse Agent's request, to execute and deliver such papers as may be
reasonably necessary to enable the Seasoned Warehouse Agent, in its capacities
as agent, servicer and documents custodian, to effectively administer and
service the Revolving Loans and each Lender's Seasoned Warehouse Note in the
manner contemplated by this Agreement.
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14.6 Lenders' Sharing Arrangement. Each of the Lenders agrees that if it
should receive any amount (whether by voluntary payment, realization upon
security, the exercise of the right of set-off, or otherwise) which is
applicable to the payment of the principal of, or interest on, the Seasoned
Warehouse Revolving Loans, or fees, of an amount that with respect to the
related sum or sums received (or receivable) by the other Lenders is in greater
proportion than that Lender's Pro Rata ownership of the Seasoned Warehouse
Revolving Loans, then such Lender receiving such excess amount shall purchase
from the other Lenders an interest in the obligations of the Companies under
this Agreement or any of the Seasoned Warehouse Loan Documents in such amount as
shall result in a proportional participation by all of the Seasoned Warehouse
Lenders in such excess amount; provided that if all or any portion of such
excess amount is thereafter recovered from such Seasoned Warehouse Lender, such
purchase shall be rescinded, the purchase price restored to the extent of such
recovery and allocations of interest on and fees (if any) related to such excess
shall be equitably adjusted among the affected Seasoned Warehouse Lenders.
14.7 Lenders' Acknowledgment. Each Lender other than Texas Commerce
hereby acknowledges that Texas Commerce has made no representations or
warranties with respect to the Revolving Loans other than as expressly set forth
in this Agreement and that Texas Commerce shall have no responsibility (in its
capacity as a Seasoned Warehouse Lender, the Seasoned Warehouse Agent, the
Custodian or in any other capacity or role) for:
(a) the collectability of the Revolving Loans;
(b) the validity, enforceability or any legal effect of any of the
Loan Documents, any Collateral Papers or any insurance, bond or similar device
purportedly protecting any obligation to the Lenders or any Collateral; or
(c) the financial condition of the Companies or any of their
Subsidiaries or Affiliates, the status, health or viability of any industry in
which any of them is involved, the prospects for repayment of the Revolving
Loans, the value of any Collateral (except for the Seasoned Warehouse Agent's
calculations of the Borrowing Base as stated in its Borrowing Base Reports
issued to the Seasoned Warehouse Lenders from time to time), the effectiveness
of any of the provisions of the Loan Documents (including the financial
covenants, tests and hedging requirements) or any aspect of their implementation
or administration at any time to reduce or control risks of any type, to produce
returns, profits, yields or spreads or to reduce or control losses or the
accuracy of any information supplied by or to be supplied in connection with any
of the Companies or any of their Subsidiaries or Affiliates, or otherwise with
respect to the Revolving Loans, any Collateral or any source of equity or other
financing for any of such companies.
14.8 Agent's Representations to Lenders. The Seasoned Warehouse Agent
hereby represents and warrants to the Seasoned Warehouse Lenders (other than
itself) that:
(a) the Seasoned Warehouse Agent has delivered to each Lender true
copies of the originals of those Loan Documents which have been specifically
requested by that Lender; and
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(b) the Seasoned Warehouse Agent has no current actual knowledge
that any Event of Default has occurred and is continuing on the Effective Date
of this Agreement or on the date of any Swing Loan.
14.9 Agent's Duty of Care, Express Negligence Waiver and Release. At all
times until the Seasoned Warehouse Revolving Loans have been paid in full, the
Seasoned Warehouse Agent shall exercise the same degree of care in handling the
Seasoned Warehouse Revolving Loans and the Collateral as Texas Commerce
exercises with respect to loans that are held solely by Texas Commerce for its
own account, and the Seasoned Warehouse Agent, in its capacity as agent and
servicer, shall have no responsibility to the Lenders other than to exercise
such standard of care and, in any event, Texas Commerce shall have no liability
with respect to any other Seasoned Warehouse Lender's Pro Rata interest in the
Revolving Loans except for Texas Commerce's own gross negligence or willful
misconduct. Except in the case of its own fraud, gross negligence or willful
misconduct, neither the Seasoned Warehouse Agent, any Lender, nor any of their
officers, directors, employees, attorneys or agents shall be liable for any
action taken or omitted to be taken by it or them under this Agreement or any of
the other Loan Documents reasonably believed by it or them to be within the
discretion or power conferred upon it or them by the Loan Documents or be
responsible for consequences of any error of judgment, THE LENDERS EXPRESSLY
INTENDING TO HEREBY WAIVE AND RELEASE ALL PRESENT AND FUTURE CLAIMS AND RIGHTS
AGAINST THE SEASONED WAREHOUSE AGENT FOR DAMAGES OR INJURIES CAUSED BY THE
SEASONED WAREHOUSE AGENT'S OWN SOLE OR CONCURRENT ORDINARY NEGLIGENCE AND THAT
SUCH WAIVER AND RELEASE BE BINDING UPON THE LENDERS AND THEIR SUCCESSORS,
SUBROGEES AND ASSIGNS. Except as otherwise specifically and expressly set forth
in this Agreement, the Seasoned Warehouse Agent shall not be responsible in any
manner to anyone for the effectiveness, enforceability, genuineness, validity or
due execution (except by the Seasoned Warehouse Agent) of this Agreement, any
supplement, amendment or restatement of it or of any other Loan Documents or for
any representation, warranty, document, certificate, report or statement made or
furnished (except by the Seasoned Warehouse Agent) in, under or in connection
with this Agreement or any of the other Loan Documents or be under any
obligation to anyone to ascertain or to inquire as to the performance or
observation of any of the terms, covenants or conditions of this Agreement or of
the other Loan Documents on the part of the Companies or anyone else. Without
limiting the generality of the foregoing provisions of this Section, the
Seasoned Warehouse Agent, in its capacities as agent and servicer and Collateral
custodian, may seek and rely upon the advice of legal counsel in taking or
refraining from taking any action under any of the Loan Documents or otherwise
in respect of the Revolving Loans and the Collateral or in dealing with any
party to any of the Loan Documents or the Collateral, and shall be fully
protected in relying upon such advice.
14.10 Calculations of Shares of Principal and Other Sums. Except as
provided to the contrary in SECTION 6.3(a) ("Rate of Return Maintenance
Covenant"), SECTION 6.7 ("Seasoned Warehouse Agent's Fee"), SECTION 6.8
("Custodian's Fee"), SECTION 13.9 ("Application of Proceeds") and SECTION 15
("Reimbursement of Expenses; Indemnity"), Texas Commerce's and each other
Lender's respective shares of principal, interest and other sums received by the
Seasoned
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Warehouse Agent on account of the Seasoned Warehouse Revolving Loans or with
respect to them shall be calculated on the basis of each Lender's (including
Texas Commerce's) respective Pro Rata ownership interests in the Revolving
Loans from time to time.
14.11 Qualifications of the Seasoned Warehouse Agent. The Seasoned
Warehouse Agent shall at all times be a commercial bank or trust company
organized and doing business under the laws of the United States of America or
any state, district or territory of it authorized under such laws to exercise
corporate trust powers, having a combined capital and unimpaired surplus of at
least One Hundred Million Dollars ($100,000,000), having -- or if owned by a
bank holding company, such bank holding company having -- either (i) a rating of
C or better by Thomson Bank Watch, Inc. or (ii) a rating of either "A" or better
by Standard & Poor's Ratings Group or "A" or better by Moody's Investors
Service, Inc. for its most senior class of unsecured debt and subject to
supervision or examination by any federal, state, district or territorial
Governmental Authority. If such commercial bank or trust company publishes
reports of conditions at least annually, pursuant to law or to the requirements
of its supervising or examination Governmental Authority, then for the purposes
of this Section, the combined capital and unimpaired surplus of such commercial
bank or trust company shall be deemed to be its combined capital and unimpaired
surplus as set forth in its most recent report of condition so published. In
case the Seasoned Warehouse Agent shall cease at any time to be eligible in
accordance with the provisions of this Section, the Seasoned Warehouse Agent
shall resign immediately in the manner and with the effect hereinafter specified
in this SECTION 14.
14.12 Resignation of the Seasoned Warehouse Agent. The Seasoned Warehouse
Agent, or any agent or agents hereafter appointed, at any time may resign by
giving written notice of resignation to the Borrowers and the Lenders and
complying with the applicable provisions of this SECTION 14. Upon receiving
such notice of resignation, a successor Agent shall be promptly appointed by all
of the Lenders -- excluding for purposes of this Section a Lender that is then
the Seasoned Warehouse Agent -- by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Agent and one copy to the
successor Agent. No such successor Agent shall be appointed that has not been
approved in writing by the Borrowers, which approval shall not unreasonably be
conditioned, delayed or withheld, unless an Event of Default has occurred that
has not been declared in writing by the Agent to have been cured or waived (in
which event no such Borrowers' approval shall be required).
14.13 Removal of the Seasoned Warehouse Agent. If (a) the Seasoned
Warehouse Agent shall cease to be eligible in accordance with the provisions of
SECTION 14.11 and shall fail to resign after written request by all of the
Lenders other than the Lender that is then the Seasoned Warehouse Agent; (b) a
receiver of the Seasoned Warehouse Agent or of its property shall be appointed
or any Governmental Authority shall take charge or control of the Seasoned
Warehouse Agent or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation or (c) the Seasoned Warehouse Agent shall be grossly
negligent in the performance of its material duties and obligations under this
Agreement or the Security Agreement or engage in willful misconduct concerning
any such material duties and obligations, then, in any such case, upon the
unanimous consent of all the Lenders -- excluding for purposes of this Section a
Lender that is then the Seasoned Warehouse
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Agent -- the Seasoned Warehouse Agent may be removed and a successor Agent
appointed by written instrument, in duplicate, one copy of which shall be
delivered to the Seasoned Warehouse Agent so removed and one copy to the
successor Agent. No such successor Agent shall be appointed that has not been
approved in writing by the Borrowers, which approval shall not unreasonably be
conditioned, delayed or withheld, unless an Event of Default has occurred that
has not been declared in writing by the Agent to have been cured or waived (in
which event no such Borrowers' approval shall be required).
14.14 Effective Date of Resignation or Removal. No resignation or removal
of the Seasoned Warehouse Agent shall be effective until a successor agent is
appointed pursuant to the provisions of this SECTION 14 and has accepted the
appointment as provided in this SECTION 14.
14.15 Successor Agent. Any successor Agent appointed as provided in this
SECTION 14 shall execute and deliver to the Borrowers, the Lenders and its
predecessor Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the predecessor Agent shall become effective and such
successor Agent, without any further act, deed or conveyance, shall become
vested with all the rights and obligations of its predecessor, with like effect
as if originally named as the Seasoned Warehouse Agent; provided that upon the
written request of the Borrowers, all of the Lenders or the successor Agent, the
Seasoned Warehouse Agent ceasing to act shall execute and deliver (a) an
instrument transferring to such successor Agent all of the rights of the
Seasoned Warehouse Agent so ceasing to act and (b) to such successor Agent such
instruments as are necessary to transfer the Collateral to such successor Agent
(including assignments of all Collateral or Loan Documents). Upon the request of
any such successor Agent made from time to time, the Borrowers shall execute any
and all papers which the successor Agent shall request or require to more fully
and certainly vest in and confirm to such successor Agent all such rights. No
successor Agent shall accept appointment as provided in this Section unless at
the time of such acceptance such successor Agent shall be eligible under the
provisions of SECTION 14.11.
14.16 Merger of the Seasoned Warehouse Agent. Any Person into
which the Seasoned Warehouse Agent may be merged or converted or with which it
may be consolidated, or any Person surviving or resulting from any merger,
conversion or consolidation to which the Seasoned Warehouse Agent shall be a
party or any Person succeeding to the commercial banking business of the
Seasoned Warehouse Agent, shall be the successor Agent without the execution or
filing of any paper or any further act on the part of any of the parties.
14.17 Participation; Assignment.
(a) Participations. Each Seasoned Warehouse Lender
reserves the rights, with or without notice to the Companies, the Seasoned
Warehouse Agent or the other Lenders, (i) to pledge any or all of its interests
under this Agreement to a Federal Reserve Bank and (ii) to sell to any bank,
savings and loan, savings bank, credit union, other deposit-taking financial
institution or commercial lending institution, participations in such Lender's
Seasoned Warehouse Revolving Loans, Seasoned Warehouse Note or Commitment.
Participants shall have no rights under the Loan
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Documents other than certain voting rights as provided below. Each Lender
shall be entitled to obtain (on behalf of its participants) the benefits of
this Agreement with respect to all participants in its Seasoned Warehouse
Revolving Loans outstanding from time to time; provided that the Companies
shall not be obligated to pay any amount in excess of the amount that would be
due to such Seasoned Warehouse Lender calculated as though no participation had
been made. No Seasoned Warehouse Lender shall sell any participating interest
under which the participant shall have any rights to approve any amendment,
modification or waiver of any Loan Documents, except to the extent such
amendment, modification or waiver (i) extends the due date for payment of any
amount in respect of principal, interest or fees -- other than the Seasoned
Warehouse Agent's fees and the Custodian's fees -- under the Loan Documents or
(ii) reduces the interest rate or the amount of principal or fees applicable to
the Revolving Loans (except such reductions as are contemplated by this
Agreement). In those cases (if any) where a Seasoned Warehouse Lender grants
rights to any of its participants to approve amendments, modifications or
waivers of any Seasoned Warehouse Loan Documents pursuant to the immediately
preceding sentence, such Lender must include a voting mechanism as to all such
approval rights in the relevant participation agreement(s) whereby a
readily-determinable fraction of such Lender's portion of the Seasoned
Warehouse Revolving Loans (whether held by such Lender or participated) shall
control the vote for all of such Lender's portion of the Seasoned Warehouse
Revolving Loans; provided, that if no such voting mechanism is provided for or
is fully and immediately effective, then the vote of such Lender itself shall
be the vote for all of such Lender's portion of the Seasoned Warehouse
Revolving Loans. Except in the case of the sale of a participating interest to
a Seasoned Warehouse Lender, the relevant participation agreement shall not
permit the participant to transfer, pledge, assign, sell any subparticipation
in or otherwise alienate or encumber its participation interest in the Seasoned
Warehouse Revolving Loans. Each Lender agrees to (i) notify the Seasoned
Warehouse Agent whenever such Lender intends to sell any participation interest
(and when any participation sold is redeemed), (ii) coordinate and cooperate
with the Seasoned Warehouse Agent and the other Lenders to prevent exceeding
such limitation on assignments of participations and (ii) not assign any
participation interest without reserving the absolute right to repurchase the
participation sold for an amount not to exceed par plus accrued interest and
the participant's unpaid allocable share (if any) of fees earned, plus
reimbursement of reasonable expenses (including reasonable attorneys' fees)
incurred by the participant in connection therewith. Any purported amendment
of this Section without the written consent or ratification of all of the
Seasoned Warehouse Lenders and the Seasoned Warehouse Agent shall be
ineffective.
(b) Assignments. Each Lender may assign any or all of its
rights and obligations under the Seasoned Warehouse Loan Documents to any
"ELIGIBLE ASSIGNEE" -- which means (a) a commercial bank having total assets in
excess of One Billion Dollars ($1,000,000,000) or (b) a finance company,
insurance company or other financial institution or fund, acceptable to the
Seasoned Warehouse Agent, that is regularly engaged in making, purchasing or
investing in loans and has total assets in excess of One Billion Dollars
($1,000,000,000), in each case with the consent of the Seasoned Warehouse Agent
and the Borrowers (which consent shall not be unreasonably withheld or delayed);
provided that (1) no such assignment shall result in a Seasoned Warehouse
Lender's having an aggregate Committed Sum of less than Five Million Dollars
($5,000,000), (2)
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neither the Borrowers nor the Seasoned Warehouse Agent shall have any obligation
to consent to there being more than a total of ten (10) Lenders (a participant
under a participation sold in conformity with the provisions of SECTION 14.17(a)
is not a Lender), and (3) each such assignment shall be substantially in the
form of EXHIBIT J, with the assignor to exchange its Seasoned Warehouse Note for
a new Seasoned Warehouse Note and the Eligible Assignee to receive a new
Seasoned Warehouse Note and with the assignor to have no further right or
obligation with respect to the rights and obligations assigned to and assumed by
the Eligible Assignee (except that none of the assignor's rights under SECTION
2.3, 6.3 OR 15 shall thereby be (i) assigned unless specifically described in
such assignment, or (ii) diminished or impaired.) The Companies agree to
cooperate with the prompt execution and delivery of documents reasonably
necessary to such assignment process, including the issuance of new Seasoned
Warehouse Note(s) to the assignor (if retaining an interest hereunder) and the
Eligible Assignee immediately upon delivery to the Borrowers of the assignor's
Seasoned Warehouse Note(s). Upon such assignment, the assignee shall be a
Lender for all purposes under this Agreement and the other Seasoned Warehouse
Loan Documents, if the assignment is an assignment of all of the assignor's
interest in the Seasoned Warehouse Revolving Loans and their security, the
assignor shall be automatically released from all of its obligations and
liabilities hereunder, and, whether it is such an assignment of the assignor's
entire interest or only a partial assignment, the Committed Sums shall be
adjusted appropriately, and the parties agree to approve in writing revised and
updated versions of SCHEDULE LC.
(c) Foreign Lender. If any interest in this Agreement is
transferred to any Person that is organized under the legal requirements of any
jurisdiction other than the United States of America or any State thereof, the
transferor Lender shall cause such Person, concurrently with the effectiveness
of such transfer, (i) to represent to the transferor Lender (for the benefit of
the transferor Lender, the Seasoned Warehouse Agent and the Borrowers) that
under applicable laws no taxes will be required to be withheld by the Seasoned
Warehouse Agent, the Borrowers or the transferor Lender with respect to any
payments to be made to such Person under this Agreement, (ii) to furnish to each
of the transferor Lender, the Seasoned Warehouse Agent and the Companies two
duly completed copies of either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such Person claims entitlement to
complete exemption from U. S. federal withholding tax on all interest payments
hereunder) and (iii) to agree (for the benefit of the transferor Lender, the
Seasoned Warehouse Agent and the Companies) to provide the transferor Lender,
the Seasoned Warehouse Agent and the Companies a new Form 4224 or Form 1001 upon
the obsolescence of any previously delivered form and comparable statements in
accordance with applicable United States laws and regulations and amendments
duly executed and completed by such Person and to comply from time to time with
all applicable legal requirements with regard to such withholding tax exemption.
(d) No Cost to Borrowers. The Borrowers shall not be required to
incur any cost or expense incident to any sale to a Person of any interest in
the Seasoned Warehouse Revolving Loans pursuant to this Section and all such
costs and expenses shall be for the account of either (i) the Lender selling its
rights in the Seasoned Warehouse Revolving Loans to such Person or (ii) such
Person.
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14.18 Beneficiaries of this Section. Other than the provisions
of SECTIONS 14.17 and 14.11 which are also intended to bind, benefit and be
enforceable by and against the Borrowers, this SECTION 14 is intended to bind
and benefit only the Seasoned Warehouse Agent, Texas Commerce and the other
Lenders, and does not benefit and shall not be enforceable by the Companies or
any other Person whatsoever.
15. REIMBURSEMENT OF EXPENSES; INDEMNITY.
15.1 Pay Negotiation and Administration Costs. The Companies agree to
pay all of the Seasoned Warehouse Agent's, and up to Five Hundred Dollars ($500)
of each Seasoned Warehouse Lender's, out-of-pocket costs and expenses, including
reasonable attorneys' fees, in connection with the negotiation, documentation,
enforcement, amendment, waiver and administration of this Agreement, the
Seasoned Warehouse Notes, the Seasoned Warehouse Security Agreement and other
Seasoned Warehouse Loan Documents and the making and repayment of the Seasoned
Warehouse Revolving Loans and the payment of interest thereon.
15.2 Pay Certain Taxes. The Companies agree to pay, and hold the
Seasoned Warehouse Agent, the Lenders and any other owners or holders of any of
the Seasoned Warehouse Notes harmless from and against, any and all present and
future stamp, documentary and other similar taxes (excluding income and
franchise taxes of the United States and its political subdivisions) with
respect to the foregoing matters and save them each harmless from and against
any and all liabilities with respect to or resulting from any delay or omission
to pay such taxes.
15.3 Expenses; Indemnification. Each Company agrees that, upon demand,
it will pay, or reimburse the Seasoned Warehouse Agent and each Lender for, all
costs and expenses incurred by the Seasoned Warehouse Agent or such Lender in
connection with (i) collecting or attempting to collect the Obligations or any
part thereof, (ii) maintaining or defending the security interests or liens (or
the priority thereof) of the Seasoned Warehouse Agent (as agent and
Representative of the Seasoned Warehouse Lenders), (iii) the enforcement of the
Seasoned Warehouse Agent's and the Lenders' 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 the payments made by the Seasoned Warehouse Agent and the
Lenders 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 Seasoned Warehouse
Agent and the Lenders incurred in connection with any of the foregoing. The
Companies also jointly and severally agree to indemnify, pay, defend and hold
harmless the Seasoned
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Warehouse Agent, each Lender, each subsequent owner or holder of any of the
Seasoned Warehouse Notes and any of their respective officers, directors,
employees or agents (the "INDEMNIFIED PARTIES") from and against the
"INDEMNIFIED LIABILITIES", which means any and all claims, liabilities,
obligations, losses, damages, penalties, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' fees and disbursements) of any
kind whatsoever which may be imposed upon, incurred by or asserted against any
of the Indemnified Parties in any way relating to or arising out of any of the
Loan Documents or any of the transactions contemplated thereby to the extent
that any such Indemnified Liabilities result (directly or indirectly) from any
claims made, or any actions, suits or proceedings commenced or threatened, by
or on behalf of any creditor (excluding any of the Indemnified Parties),
security holder, shareholder, customer (including any Person having any
dealings of any kind with the Companies), trustee, conservator, receiver,
director, officer, employee and/or agent of the Companies acting in such
capacity, the Companies or any Governmental Authority (excluding the Federal
Reserve Board, the Federal Deposit Insurance Corporation, the Comptroller of
the Currency and any other banking regulatory body or authority having
jurisdiction over the Seasoned Warehouse Agent or any Lender that is a bank) or
any other Person; provided that to the extent, if any, that any of such claims,
liabilities, etc. is caused by any Indemnified Party's gross negligence or
willful misconduct, the indemnity payable to that Indemnified Party shall be
equitably and proportionately reduced, ALTHOUGH TO THE FULL EXTENT PERMITTED
UNDER APPLICABLE LAW, SUCH INDEMNITY SHALL NOT BE REDUCED ON ACCOUNT OF SUCH
CLAIMS, LIABILITIES, ETC. BEING CAUSED OR CONTRIBUTED TO BY ANY INDEMNIFIED
PARTY'S SOLE OR CONCURRENT ORDINARY NEGLIGENCE THAT DOES NOT AMOUNT TO GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, IT BEING THE COMPANIES' INTENTION TO HEREBY
INDEMNIFY THE INDEMNIFIED PARTIES AGAINST THEIR OWN SOLE OR CONCURRENT ORDINARY
NEGLIGENCE.
16. MISCELLANEOUS
16.1 Items to Be Satisfactory to the Seasoned Warehouse Agent. All items
required by this Agreement or the Seasoned Warehouse Security Agreement to be
delivered to the Seasoned Warehouse Agent or the Custodian shall be in form and
content satisfactory to the Seasoned Warehouse Agent or the Custodian (as
applicable) and the Seasoned Warehouse Agent or the Custodian may reject any of
them that do not meet the requirements of this Agreement.
16.2 Usury Not Intended; Credit or Refund of Any Excess Payments. It is
the intent of the Companies, the Seasoned Warehouse Agent, the Custodian and the
Seasoned Warehouse Lenders 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
any of the Seasoned Warehouse Notes is accelerated
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<PAGE> 92
by reason of any election of all of the Majority Seasoned Warehouse Lenders
resulting from any Event of Default, or in the event of any required or
permitted prepayment, then such consideration that constitutes interest may
never include more than the Maximum Amount, 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 such 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 SEASONED
WAREHOUSE NOTES AND THE OTHER LOAN DOCUMENTS THAT MAY BE IN APPARENT CONFLICT
HEREWITH. In the event the Seasoned Warehouse Agent or any of the Lenders
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 holders of the Seasoned Warehouse Notes,
credited against the unpaid principal of the Seasoned Warehouse Notes) upon
such determination, and, to the extent permitted by applicable law, the
Seasoned Warehouse Agent and the Lenders shall not be subject to any penalties
provided by any legal requirement 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 legal requirements, the Borrowers and the Seasoned Warehouse Agent
and the Lenders shall (a) characterize any non-principal payment as an expense,
fee or premium rather than as interest, (b) exclude voluntary prepayments and
their effects and (c) "spread" the total amount of interest throughout the
entire contemplated term of the Seasoned Warehouse Notes, and interest owing on
such Seasoned Warehouse Notes so that the interest rate is uniform throughout
their entire term.
16.3 Independent Rights. No single or partial exercise of any right,
power or privilege hereunder, or any delay in the exercise thereof, shall
preclude any other or further exercise of the rights of the parties to this
Agreement.
16.4 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.
16.5 Relationship of the Parties. This Agreement provides for the making
of Seasoned Warehouse Revolving Loans by the Seasoned Warehouse Lenders (through
the Seasoned Warehouse Agent) in their capacities as lenders, to the Borrowers,
each as a borrower, and for the payment of interest and repayment of principal
by the Companies to the Lenders (through the Seasoned Warehouse Agent). The
relationship between (a) the Lenders and the Seasoned Warehouse Agent and (b)
the Companies is limited to that of creditor and secured party, on the one hand,
and debtors, on the other hand. The provisions in this Agreement and the other
Loan Documents for compliance with financial covenants and delivery of financial
statements are intended solely for the benefit of the Lenders and the Seasoned
Warehouse Agent to protect their interests as lenders and lenders' agent,
respectively, in assuring payment of interest and repayment of principal, and
nothing contained in this Agreement or any of the other Loan Documents shall be
construed as permitting
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<PAGE> 93
or obligating any Lender or the Seasoned Warehouse Agent to act as a financial
or business advisor or consultant to the Borrowers, as permitting or obligating
any Lender or the Seasoned Warehouse Agent to control the Borrowers or to
conduct the Borrowers' operations, as creating any fiduciary obligation on the
part of any Lender or the Seasoned Warehouse Agent to the Borrowers, or as
creating any joint venture, agency, or other relationship between or among any
of the parties other than as explicitly and specifically stated in this
Agreement. The Companies acknowledge that they have had the opportunity to
obtain the advice of experienced counsel of their own choosing in connection
with the negotiation and execution of this Agreement and the other Loan
Documents and to obtain the advice of such counsel with respect to all matters
contained in the Loan Documents including the provision for waiver of trial by
jury. The Companies further acknowledge that they are experienced with respect
to financial and credit matters and have made their own independent decisions to
apply to the Lenders for credit and to execute and deliver this Agreement and
the other Loan Documents.
16.6 No Waiver. No forbearance on the part of the Seasoned Warehouse
Agent in enforcing any of the Lenders' (or the Seasoned Warehouse Agent's)
rights under this Agreement, nor any renewal, extension or rearrangement of any
payment or covenant to be made or performed by any Company hereunder, shall
constitute a waiver of any of the terms of this Agreement or of any such right.
Seasoned Warehouse Agent may remedy any default without waiving the default
remedied. No Default or Event of Default shall be waived by the Seasoned
Warehouse Agent or the Lenders except in a writing signed and delivered by a
Vice President or more senior officer of the Seasoned Warehouse Agent. No
waiver of any Default or Event of Default shall be deemed to be a waiver of any
other Default or Event of Default or of the same Default or Event of Default on
a future occasion. No failure to exercise or delay in exercising any power or
right under any Loan Documents shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. No course
of dealing between the Companies and the Seasoned Warehouse Agent or any of the
Lenders shall operate as a waiver of any rights of the Seasoned Warehouse Agent
or any of the Lenders. No amendment, modification or waiver of any provision of
any Loan Documents nor consent to any departure therefrom shall be effective
unless it is in writing and signed and delivered by a Vice President or more
senior officer of the Seasoned Warehouse Agent, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. Except as otherwise specifically provided in this Agreement,
no notice to or demand on the Companies or any other Person shall entitle the
Companies or any other Person to any other or further notice or demand in
similar or other circumstances.
16.7 Governing Law, Jurisdiction and Venue. THIS AGREEMENT, THE SEASONED
WAREHOUSE NOTES AND THE OTHER SEASONED WAREHOUSE LOAN DOCUMENTS SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS
(WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PRINCIPLES) AND THE UNITED STATES
OF AMERICA FROM TIME TO TIME IN EFFECT. The Companies, the Seasoned Warehouse
Agent and the Lenders each hereby irrevocably submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
Texas,
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<PAGE> 94
Houston Division, and the state district courts of Texas for purposes of all
legal proceedings arising out of or relating to the Loan Documents and all
related transactions; except that the Lenders do not submit themselves to the
jurisdiction of the state district courts of Texas in any suit first filed by
Companies, or any of them. To the fullest extent permitted by applicable law,
Companies, the Seasoned Warehouse Agent and the Lenders each irrevocably waives
any objection that he, she or it may now or hereafter have to the laying of
venue for any such proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in an inconvenient
forum and agrees that service of process may be made upon him, her or it in any
such proceeding by registered or certified mail; except that the Lenders do not
waive such objections with regard to any suit first filed by Companies, or any
of them. Harris County, Texas shall be a proper place of venue for suit hereon.
Nothing herein shall affect any applicable right of any party at any time to
initiate any suit in the United States District Court for the Southern District
of Texas, Houston Division, or to remove any pending suit to that Court.
Nothing herein shall affect the right of the Seasoned Warehouse Agent or any
Lender to accomplish service of process in any manner permitted by applicable
law or the right of the Seasoned Warehouse Agent to commence legal proceedings
or otherwise proceed against the Companies in any other jurisdiction or court.
16.8 Severability. 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.
16.9 Survival of Warranties, Etc. All of Companies' 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 Seasoned Warehouse Notes hereunder, shall be deemed
republished by Companies on the date of each Request for a Revolving Loan and
again on the date that each Borrowing is funded, and shall be deemed to have
been relied upon by the Seasoned Warehouse Agent and the Lenders,
notwithstanding any investigation heretofore or hereafter made by the Seasoned
Warehouse Agent or any Lender. All statements contained in any certificate or
other document delivered to the Seasoned Warehouse Agent or any Lender at any
time by or on behalf of any Borrower pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by Companies in connection with this Agreement.
16.10 Payments on Saturdays, Etc. Whenever any payment to be made
hereunder shall be stated to be due on a Saturday, a 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.
16.11 Terms Binding Upon Successors; Survival of Representations. The
terms and provisions of this Agreement shall bind and benefit the parties hereto
and their respective permitted successors and assigns; provided that Companies
may not assign or delegate any of their rights, benefits or duties under any
part of this Agreement or any of the other Seasoned Warehouse Loan
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<PAGE> 95
Documents, and any attempted assignment made without the written consent or
written confirmation of all the Lenders shall be void. All representations,
warranties, covenants and agreements herein contained on the part of the
Companies shall survive the making of any Revolving Loan and the execution of
the Revolving Credit Notes and shall be effective so long as the Commitments
are outstanding or any obligation of the Borrowers hereunder or under the
Revolving Credit Notes or any of the other Loan Documents remains to be paid or
performed.
16.12 Disclosure of Information. Companies authorize the Seasoned
Warehouse Agent and the Lenders to disclose to any Lender's participant or
Eligible Assignee (a "TRANSFEREE"), and to any prospective Transferee, any and
all financial and other information in the Seasoned Warehouse Agent's or any
Lender's possession concerning any Company pursuant to this Agreement or the
other Loan Documents or which has been received by the Seasoned Warehouse Agent
or any Lender in connection with its credit evaluation of Companies before or
after entering into this Agreement.
16.13 Maintenance of Records. Each Company will keep all of its records
concerning its business operations and accounting at its principal place of
business. Each Company will give the Seasoned Warehouse Agent prompt written
notice of any change in its principal place of business, or in the location of
its records.
16.14 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 fax,
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 Companies, to:
MCA Financial Corp.
23999 Northwestern Hwy, Suite 230
Southfield, Michigan 48075
Attention: Mr. Keith D. Pietila
Phone: (248) 358-5555
Fax: (248) 358-7507
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<PAGE> 96
(2) if to the Seasoned Warehouse Agent 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
Phone: (713) 216-5382
Fax: (713) 216-2082
(3) if to Texas Commerce 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
Phone: (713) 216-5382
Fax: (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 Seasoned Warehouse Agent shall take any action
described in any notice shall conclusively be deemed reasonable for all
purposes; provided that this shall not be deemed to require the Seasoned
Warehouse Agent to give three (3) days' notice or any notice if not
specifically required in this Agreement.
16.15 Counterpart Execution; Amendments. This Agreement may be executed
in one or more counterparts, each of which when so executed shall be deemed to
be an original, but all of which when taken together shall constitute one and
the same instrument. This Agreement may not be amended, modified or
supplemented unless such amendment, modification or supplement is set forth in a
writing signed by the Companies, the Agent and such of the Seasoned Warehouse
Lenders whose consent or approval is required by the applicable provisions of
SECTIONS 14.2 through 14.4. EXHIBIT J is a form that may be modified
appropriately for use for amendments hereto.
16.16 Integration. This Agreement and the other Loan Documents embody the
entire agreement and understanding among the Borrowers, the Lenders and the
Seasoned Warehouse Agent, and supersede all prior agreements and understanding,
relating to the subject matter hereof.
16.17 General Purpose of Loan. Each Borrower warrants and represents to
the Seasoned Warehouse Agent, Lenders and all other future owners and holders of
the Seasoned Warehouse Notes that all Seasoned Warehouse Revolving Loans are and
will be for business, commercial,
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<PAGE> 97
investment or other similar purpose and not primarily for personal, family,
household or agricultural use, as such terms are used in Chapter 1D or in the
Texas Finance Code.
16.18 Limitation of Liability. NEITHER THE LENDERS, THE SEASONED
WAREHOUSE AGENT NOR ANY OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS,
AGENTS, ATTORNEYS OR EMPLOYEES (COLLECTIVELY, THE "LENDERS, 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 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
COMPANIES DO HEREBY RELEASE THE LENDERS, ET AL FROM ALL LIABILITY THAT MAY BE
CAUSED BY THE SOLE OR CONCURRENT ORDINARY NEGLIGENCE OF THE LENDERS, ET AL (OR
ANY OF THEM) AND FROM ALL LIABILITY THAT DOES NOT RESULT FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THE LENDERS, ET AL, BUT FOR WHICH THE
LENDERS, ET AL COULD BE HELD -- BUT FOR THIS PROVISION -- TO BE STRICTLY LIABLE.
NO CLAIM MAY BE MADE BY ANY COMPANY OR ANY OF THEIR AFFILIATES AGAINST THE
LENDERS, 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 COMPANIES' 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 LENDERS, ET AL. EACH COMPANY 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.
16.19 WAIVER OF JURY TRIAL. EACH OF THE LENDERS, THE SEASONED WAREHOUSE
AGENT AND THE COMPANIES, AFTER CONSULTING WITH COUNSEL, KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY (i) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY OF ANY
ISSUE TRIABLE OF RIGHT BY A JURY, AND (ii) WAIVES ANY RIGHT TO TRIAL BY JURY
FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST, IN ANY
LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY SEASONED WAREHOUSE
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 LENDERS, THE SEASONED WAREHOUSE
AGENT NOR ANY COMPANY 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. THIS WAIVER OF RIGHT TO
TRIAL BY JURY IS SEPARATELY GIVEN BY THE COMPANIES, THE SEASONED WAREHOUSE AGENT
AND EACH LENDER, AND THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT OF A JURY TRIAL WOULD OTHERWISE
ACCRUE. THE SEASONED WAREHOUSE AGENT IS HEREBY AUTHORIZED AND REQUESTED TO
SUBMIT THIS AGREEMENT TO ANY COURT HAVING JURISDICTION OVER THE SUBJECT MATTER
AND THE PARTIES HERETO, SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF THE FOREGOING
WAIVER OF THE RIGHT TO JURY TRIAL. FURTHER, EACH COMPANY HEREBY CERTIFIES THAT
NO REPRESENTATIVE OR AGENT OF ANY OF THE LENDERS OR THE SEASONED WAREHOUSE AGENT
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO ANY SHAREHOLDER, DIRECTOR, OFFICER,
AGENT OR REPRESENTATIVE OF ANY OF THEM THAT THE SEASONED WAREHOUSE AGENT
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OR THE LENDERS WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY THE LENDERS, THE SEASONED WAREHOUSE AGENT OR THE
COMPANIES EXCEPT BY A WRITTEN INSTRUMENT SPECIFICALLY SO MODIFYING OR
RELINQUISHING SPECIFIC PROVISIONS HEREOF, EXECUTED BY ALL OF THEM.
16.20 Notice Pursuant to Tex. Bus. & Comm. Code Section 26.02. THIS
AGREEMENT AND THE OTHER SEASONED WAREHOUSE LOAN DOCUMENTS TOGETHER CONSTITUTE A
WRITTEN LOAN AGREEMENT WHICH 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.
[The remainder of this page is intentionally blank.]
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EXECUTED as of the Effective Date.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION,
formerly known as Mortgage
Corporation of America
By: Keith D. Pietila By: Lee P. Wells
-------------------------------- ----------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
----------------------------- ---------------------
Title: EVP Title: PRESIDENT
---------------------------- ---------------------
MORTGAGE CORPORATION OF TEXAS COMMERCE BANK NATIONAL
AMERICA, formerly known as First ASSOCIATION, as a Lender and
as the American Mortgage Associates, Inc. Agent
By: Keith D. Pietila By: Pamela E. Skinner
------------------------------- ------------------------
Name: KEITH D. PIETILA Name: PAMELA E. SKINNER
------------------------------ ----------------------
Title: VP Title: VICE PRESIDENT
---------------------------- ---------------------
(Wire instructions for the Companies)
Texas Commerce Bank
- ----------------------------
National Association
- ----------------------------
ABA No.: 113000609
- ----------------------------
Attention:
--------------------------------
For credit account: 00100380279 MCA Operating Account)
--------------------------------------
Unnumbered counterpart signature page for
10/97 Senior Secured Seasoned Warehouse Credit Agreement
<PAGE> 100
MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio
corporation, joins the other Companies, the Seasoned Warehouse Agent and the
Seasoned Warehouse Lenders in executing this Agreement for the purposes of
making the agreements stated in SECTION 2 of this Agreement.
(address)
23999 Northwestern Highway, Suite 230
Southfield, MI 48075 MORTGAGE CORPORATION OF
Attn: Lee P. Wells AMERICA, INC.
Tel: (810) 358-5555
Fax: (810) 358-7507
By: Lee P. Wells
------------------------
LEE P. WELLS
Title: PRESIDENT
(Wire Instructions) ---------------------
Texas Commerce Bank
- ---------------------------
National Association
- ---------------------------
ABA No. 113000609
-------------------
Attention:
-----------------
For Credit Account: 00100380279 (MCA Operating Account)
-----------------
<PAGE> 101
Attachments:
<TABLE>
<S> <C>
Exhibits:
- --------
A - Release Request form
B - Request for Advance form
C - Submission List form
D - form for Seasoned Warehouse Notes
E-1 - Seasoned Warehouse Security Agreement form
E-2 - UCC-1 Financing Statement form
F - Opinion of Borrowers' Counsel form
G-1 - Disbursement Request Certificate - for refinancing Eligible Seasoned Warehouse Collateral
G-2 - Disbursement Request Certificate - for financing additional Eligible Seasoned Warehouse Collateral
G-3 - Disbursement Request Certificate - for supplemental Borrowing
H - Seasoned Warehouse Collateral Certificate form
I - Assignment and Assumption Agreement form
J - Amendment form
Schedules:
- ---------
AG - Applicable Guidelines
AI - Approved Investors
BB - Borrowing Base Calculations
CP - Collateral Procedures
EC - Eligibility Conditions
LC - the Lenders' Committed Sums and Funding Share Fractions
9.2(b) - Borrowing Base Certificate
10.1 - Subsidiaries
10.4 - Litigation and Judgments
11.2(d) - Management Report
11.12 - Senior Management
11.15 - Shareholders
12.4 - Existing indebtedness
12.6 - Existing Liens
12.13 - Affiliate Transactions
</TABLE>
<PAGE> 102
EXHIBIT A
RELEASE REQUEST
SEASONED WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199___
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
This request is delivered under the 10/97 Senior Secured Seasoned
Warehouse Credit Agreement dated as of October 31, 1997 (as supplemented,
amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the Companies,
Texas Commerce Bank National Association ("TEXAS COMMERCE"), as a lender and as
agent (the "SEASONED WAREHOUSE AGENT") for the other lenders party thereto, and
the other lenders party thereto (including Texas Commerce, the "SEASONED
WAREHOUSE LENDERS"). Terms defined in the Warehouse Credit Agreement have the
same meanings when used -- unless otherwise defined -- in this request.
The Companies request that Seasoned Warehouse Agent release the Lender
Liens under the Seasoned Warehouse Loan Documents in the Collateral described
on the attached SCHEDULE 1.
On and as of the date of this request, the Companies certify,
represent and warrant to the Seasoned Warehouse Agent and the Seasoned
Warehouse Lenders that (a) Companies' representations and warranties in the
Seasoned Warehouse Loan Documents are true and correct in all material respects
except to the extent that (i) a representation or warranty speaks to a specific
date or (ii) the facts on which a representation or warranty is based have
changed by transactions or conditions contemplated or permitted by the Seasoned
Warehouse Loan Documents, and (b) no
<PAGE> 103
Default, Event of Default or Borrowing Base Deficiency exists or will
exist after giving effect to the requested release.
MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION,
MORTGAGE CORPORATION OF AMERICA and MORTGAGE
CORPORATION OF AMERICA, INC., as the Companies
By________________________________________
(Name)____________________________________
(1)(Title)________________________________
___________
(1) Must be a Responsible Officer of all four Companies.
<PAGE> 104
EXHIBIT B
REQUEST FOR ADVANCE
[Letterhead of a Borrower]
[date]
Texas Commerce Bank National Association
712 Main Street
Houston, Texas 77002
Attention: Ms. Pamela E. Skinner
Ladies and Gentlemen:
MCA Financial Corp., MCA Mortgage Corporation and Mortgage Corporation
of America (the "Borrowers"), all Michigan corporations, joined by Mortgage
Corporation of America, Inc., an Ohio corporation (collectively, the
"Companies"), Texas Commerce Bank National Association as a lender and as agent
(the "Seasoned Warehouse Agent") for the other lenders party thereto, and such
other lenders party thereto executed a 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated October 31, 1997 (which, as it may have been or may
hereafter be supplemented, amended or restated from time to time, is called the
"WAREHOUSE CREDIT AGREEMENT"). Any term defined in the Warehouse Credit
Agreement and used but not defined differently in this Request for Advance has
the same meaning here as there.
[MCAFC][MCAMC][MCA] hereby requests a Seasoned Warehouse Revolving
Loan in the amount of $______________ to be made on ________, 19__ (or, if the
Seasoned Warehouse Agent is closed for regular commercial banking business on
that day, on the next day when it is not).
After giving effect to the requested Seasoned Warehouse Revolving
Loan, (i) the aggregate outstanding principal balance of all Seasoned Warehouse
Revolving Loans will not exceed either the Aggregate Committed Sum or the
Borrowing Base and (ii) no Sublimit will be exceeded.
If new Collateral is required to support the requested Seasoned
Warehouse Revolving Loan (i.e., to cause the Borrowing Base to be at least
equal to the aggregate principal of the Seasoned Warehouse Revolving Loans that
will be outstanding after giving effect to the requested Seasoned Warehouse
Revolving Loan), it is described on a schedule attached hereto and the
Borrowers hereby GRANT the Seasoned Warehouse Agent (as agent and
Representative of the Seasoned Warehouse Lenders) a security interest in all
such new Collateral, and it is hereby Pledged to the Seasoned Warehouse Agent,
effective immediately.
<PAGE> 105
Texas Commerce Bank National Association
[date]
Page 2
The Borrowers acknowledge that the Seasoned Warehouse Agent and the
Seasoned Warehouse Lenders will rely on the truth of each statement in this
request and its attachments in funding the requested Seasoned Warehouse
Revolving Loan.
No Default has occurred that has not been cured, and no Event of
Default has occurred that the Seasoned Warehouse Agent has not declared in
writing to have been cured or waived.
All items that the Companies are required to furnish to the Seasoned
Warehouse Agent or the Custodian for this requested Seasoned Warehouse
Revolving Loan and otherwise have been delivered, or will be delivered before
this requested Seasoned Warehouse Revolving Loan is funded, in all respects as
required by the Warehouse Credit Agreement and the other Seasoned Warehouse
Loan Documents and conform in all respects with all applicable requirements of
the Warehouse Credit Agreement and the other Seasoned Warehouse Loan Documents.
All Files and Collateral Papers described or referred to in the Submission
List(s) (if any) submitted to the Seasoned Warehouse Agent or the Custodian
with this Request for Advance conform in all respects with all applicable
requirements of the Warehouse Credit Agreement and the other Seasoned Warehouse
Loan Documents.
The undersigned officer hereby certifies that all of Companies'
representations and warranties (a) in the Warehouse Credit Agreement and all of
the other Seasoned Warehouse Loan Documents (except only to the extent that (i)
such a representation or warranty speaks to a specific date or (ii) the facts
on which a such representation or warranty is based have changed by
transactions or conditions contemplated or expressly permitted by the Seasoned
Warehouse Loan Documents) and (b) in this Request for Advance, are true and
correct on the date of this Request for Advance, and that all conditions
precedent to the requested Borrowing are satisfied.
[MCA FINANCIAL CORP.]
[MCA FINANCIAL CORPORATION]
[MORTGAGE CORPORATION OF AMERICA]
By:_____________________________
Name:___________________________
(1) Title_______________________
Attached (check relevant items):
____________________
(1) Must be the President, Treasurer or Assistant Treasurer, a Vice
President or the Controller of the Company.
<PAGE> 106
Texas Commerce Bank National Association
[date]
Page 3
<TABLE>
<CAPTION>
<S> <C>
NEW COLLATERAL SCHEDULES (IF ANY) FOR: DISBURSEMENT REQUEST CERTIFICATE(S) FOR:
[ ] Seasoned Warehouse Collateral Refinancing [ ] refinancing Eligible Seasoned Warehouse Collateral
[ ] Foreclosure/REO/Repurchase Borrowing [ ] financing additional Eligible Seasoned Warehouse
[ ] Other Seasoned Warehouse Borrowing Collateral
[ ] supplemental Borrowing against existing
Borrowing Base
</TABLE>
<PAGE> 107
SCHEDULE TO REQUEST FOR ADVANCE
DATED ________________, 199___; FOR $________________________
[Complete EACH applicable "Amount" box or mark N.A.]
AMOUNT(1) BORROWING PRICE
CATEGORY (2)
$ [ ] Base Rate
$ [ ] Base Rate
$ TOTAL
____________________
(1) Must be at least $100,000 and a $10,000 multiple.
(2) Unless the Base Rate box is checked, on each day before
maturity (i) to the extent that the sum of the requested Borrowing and all other
Borrowings then outstanding is equal to or less than the FAB Principal
Equivalent, each portion of the requested Borrowing will bear interest at the
FAB Rate applicable to the Borrowing Purpose Category for that portion, and (ii)
each portion of the requested Borrowing that, when aggregated with all other
Borrowings outstanding on that day, exceeds the FAB Principal Equivalent, will
bear interest at the LIBOR Rate applicable to the Borrowing Purpose Category for
that portion.
<PAGE> 108
EXHIBIT C
SUBMISSION LIST
SEASONED WAREHOUSE
AGENT: Texas Commerce Bank DATE:____________, 199____
National Association
CUSTODIAN: Texas Commerce Bank
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America
and Mortgage Corporation of
America, Inc.
================================================================================
This Submission List is delivered under the 10/97 Senior Secured
Seasoned Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, Texas Commerce Bank National Association ("TEXAS COMMERCE"), as a
lender and as agent (the "SEASONED WAREHOUSE AGENT") for the other lenders
party thereto, and the other lenders party thereto (including Texas Commerce,
the "SEASONED WAREHOUSE LENDERS"). Terms defined in the Warehouse Credit
Agreement have the same meanings when used -- unless otherwise defined -- in
this Submission List.
Under SECTION 4.3 and other applicable provisions of the Credit
Agreement, the Companies submit the following Seasoned Warehouse Collateral
under, and subject such Seasoned Warehouse Collateral to the Lender Liens
created by, the Seasoned Warehouse Loan Documents [check applicable box(es)]:
[ ] ELIGIBLE FORECLOSURE LOANS FOR FORECLOSURE/REO/REPURCHASE
BORROWING. The Companies (a) are delivering to the Custodian
the Basic Papers for the Foreclosure Loans described on the
attached ANNEX 1, (b) represent that those Foreclosure Loans
and all related Seasoned Warehouse Collateral Papers conform
to the Eligibility Conditions of PART 5 of SCHEDULE EC to the
Credit Agreement and (c) confirm that they are subject to the
Lender Liens created in connection with the Credit Agreement.
[ ] ELIGIBLE REO FOR FORECLOSURE/REO/REPURCHASE BORROWING. The
Companies (a) are delivering to the Custodian the Basic Papers
for the REO described on the attached ANNEX 2, (b) represent
that that REO and all related Seasoned Warehouse Collateral
Papers conform to the Eligibility Conditions of PART 6 of
SCHEDULE EC to
<PAGE> 109
the Credit Agreement and (c) confirm that they are subject
to the Lender Liens created in connection with the Credit
Agreement.
[ ] ELIGIBLE REPURCHASED LOANS FOR FORECLOSURE/REO/REPURCHASE
BORROWING. The Companies (a) are delivering to the Custodian
the Basic Papers for the Repurchased Loans described on the
attached ANNEX 3, (b) represent that those Repurchased Loans
and all related Seasoned Warehouse Collateral Papers conform
to the Eligibility Conditions of PART 4 of SCHEDULE EC to
the Credit Agreement and (c) confirm that those Repurchase
Loans and all related Seasoned Warehouse Collateral Papers are
subject to the Lender Liens created in connection with the
Credit Agreement.
[ ] ELIGIBLE MORTGAGE LOANS FOR SEASONED WAREHOUSE BORROWING (NOT
FORECLOSURE/REO/REPURCHASE BORROWING). The Companies (a) are
delivering to the Custodian the Seasoned Warehouse Collateral
Papers for the Mortgage Loans described on the attached ANNEX
4, (b) represent that those Mortgage Loans and all related
Seasoned Warehouse Collateral Papers conform to the
Eligibility Conditions of PART 1 of SCHEDULE EC to the Credit
Agreement and (c) confirm that those Mortgage Loans and all
related Seasoned Warehouse Collateral Papers are subject to
the Lender Liens created in connection with the Credit
Agreement.
[ ] ELIGIBLE LAND CONTRACTS FOR SEASONED WAREHOUSE BORROWING (NOT
FORECLOSURE/REO/REPURCHASE BORROWING). The Companies (a) are
delivering to the Custodian the Seasoned Warehouse Collateral
Papers for the Land Contracts described on the attached ANNEX
5, (b) represent that those Land Contracts and all related
Seasoned Warehouse Collateral Papers conform to the
Eligibility Conditions of PART 7 of SCHEDULE EC to the Credit
Agreement and (c) confirm that those Land Contracts and all
related Collateral Papers are subject to the Lender Liens
created in connection with the Credit Agreement.
[ ] ELIGIBLE MORTGAGE SECURITIES FOR SEASONED WAREHOUSE BORROWING
(NOT FORECLOSURE/REO/REPURCHASE BORROWING). Borrowers (a) are
delivering to the Custodian the Seasoned Warehouse Collateral
Papers required for the Mortgage Securities described on the
attached ANNEX 6, (b) represent that those Mortgage Securities
conform to the Eligibility Conditions of PART 3 of SCHEDULE EC
to the Credit Agreement and (c) confirm that those Mortgage
Securities and all related Collateral Papers are subject to
the Lender Liens created in connection with the Credit
Agreement.
On and as of the date of this Submission List, the Companies certify,
represent and warrant to, and covenant with, Seasoned Warehouse Agent and the
Seasoned Warehouse Lenders that:
2
<PAGE> 110
(a) For any Collateral described above, the Companies (i) hold
each of the Collateral Papers required by the applicable
provisions of SECTION 1.5 of the Custody Agreement, (ii) hold
those Collateral Papers in trust for the Seasoned Warehouse
Agent (as agent and Representative of the Seasoned Warehouse
Lenders), (iii) upon written request or instructions from the
Seasoned Warehouse Agent from time to time and at any time,
shall deliver those items to the Seasoned Warehouse Agent or
any other Person designated by the Seasoned Warehouse Agent,
and (iv) may not deliver those items, or grant, transfer, or
assign any interest in any of them to any Person except the
Seasoned Warehouse Agent or the Custodian without first
obtaining the Seasoned Warehouse Agent's written consent.
(b) All of the items that the Companies are required to furnish to
the Seasoned Warehouse Agent or the Custodian under the Credit
Agreement in connection with this notice accompany its copy
delivered to the Seasoned Warehouse Agent and the Custodian,
respectively, all of those items are accurate and what they
purport to be, and all of the Collateral described in this
notice or its schedules or annexes conforms in all respects to
the requirements of the Credit Agreement, including, without
limitation, the requirements of eligibility applicable to that
Collateral on SCHEDULE EC to the Credit Agreement.
(c) The representations and warranties of the Companies in the
Seasoned Warehouse Loan Documents are true and correct in all
material respects except to the extent that (i) a
representation or warranty speaks to a specific date or (ii)
the facts on which a representation or warranty is based have
changed by transactions or conditions contemplated or
permitted by the Seasoned Warehouse Loan Documents.
(d) No Default or Event of Default exists.
MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION,
MORTGAGE CORPORATION OF AMERICA and MORTGAGE
CORPORATION OF AMERICA, INC., as the Companies
By__________________________________________
(Name)______________________________________
(1)(Title)__________________________________
____________
(1) Must be a Responsible Officer of all four Companies.
3
<PAGE> 111
ANNEX 1 TO SUBMISSION LIST DATED ____________
ELIGIBLE FORECLOSURE LOANS FOR FORECLOSURE/REO/REPURCHASE BORROWING
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 112
ANNEX 2 TO SUBMISSION LIST DATED __________
ELIGIBLE REO FOR FORECLOSURE/REO/REPURCHASE BORROWING
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 113
ANNEX 3 TO SUBMISSION LIST DATED __________
ELIGIBLE REPURCHASED LOANS FOR FORECLOSURE/REO/REPURCHASE BORROWING
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 114
ANNEX 4 TO SUBMISSION LIST DATED ____________
ELIGIBLE MORTGAGE LOANS FOR SEASONED WAREHOUSE BORROWING
(NOT FORECLOSURE/REO/REPURCHASE BORROWING)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 115
ANNEX 5 TO SUBMISSION LIST DATED ___________
ELIGIBLE LAND CONTRACTS FOR SEASONED WAREHOUSE BORROWING
(NOT FORECLOSURE/REO/REPURCHASE BORROWING)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 116
ANNEX 6 TO SUBMISSION LIST DATED ____________
ELIGIBLE MORTGAGE SECURITIES FOR SEASONED WAREHOUSE BORROWING
(NOT FORECLOSURE/REO/REPURCHASE BORROWING)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
COMPANY LOAN # BORROWER NAME FACE AMOUNT CREDIT
GRADE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 117
EXHIBIT D
(THE "10/97 [LENDER NAME] SEASONED WAREHOUSE NOTE")
$_________________________ Houston, Texas
October 31, 1997
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers, jointly
and severally promise to pay to the order of [LENDER NAME] ("PAYEE"), a [LENDER
ENTITY FORM], at the main branch of Texas Commerce Bank National Association,
712 Main Street, Houston, Harris County, Texas 77002, or at such other place as
the Seasoned Warehouse Agent may hereafter designate in writing, in immediately
available funds and in lawful money of the United States of America, the
principal sum of [LENDER'S COMMITTED SUM] (or the unpaid balance of all
principal advanced against this note, if that amount is less), together with
interest on the unpaid principal balance of this note from time to time
outstanding until maturity at the Stated Rate (or at such lesser rate, if any,
as the holder of this note -- the "HOLDER", whether or not Payee is such holder
- -- may in its sole discretion from time to time elect to be applicable for any
day or days), and interest on all past due amounts, both principal and accrued
interest, at the Past Due Rate; provided that for the full term of this note
the interest rate produced by the aggregate of all sums paid or agreed to be
paid to Holder for the use, forbearance or detention of the debt evidenced
hereby shall not exceed the Ceiling Rate.
1. Definitions. In addition to the definitions given above, the
definitions given in the 10/97 Senior Secured Seasoned Warehouse Credit
Agreement dated October 31, 1997, as it may be supplemented, amended or restated
from time to time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b) Texas
Commerce Bank National Association (for itself as a lender and as Seasoned
Warehouse Agent for the other lenders party thereto) and (c) the other lender(s)
party thereto, for capitalized terms that are used in this note shall apply here
as well as there.
2. Rates Change Automatically and Without Notice. Without notice to
Makers or any other Person and to the full extent allowed by applicable law from
time to time in effect, the Stated Rate, the Past Due Rate and the Ceiling Rate
shall each automatically fluctuate upward and downward as and in the amount by
which the interest rate applicable to this note as provided for in the Credit
Agreement, the Past Due Rate as defined in the Credit Agreement and such maximum
nonusurious rate of interest permitted by applicable law, respectively,
fluctuate.
3. Calculation of Interest. Interest on the amount of each advance
against this note shall be computed on the amount of that advance and from the
date it is made. Such interest shall be computed on the basis of the actual
number of days elapsed on the basis of a year of 360 days (i.e.,
Page 1 of 4 Pages
<PAGE> 118
on the 365/360 -- or 366/360 in a leap year -- day basis), unless that would
cause the Ceiling Rate for any day to be exceeded, in which event and to the
extent necessary to eliminate or minimize that result, interest shall be
calculated on the 365/365 -- or 366/366 in a leap year -- day basis. All
interest rate determinations and calculations by the Holder, absent manifest
error, shall be conclusive.
4. Excess Interest Will be Refunded or Credited. If, for any reason
whatever, the interest paid or received on this note during its full term
produces a rate which exceeds the Ceiling Rate, Holder shall refund to the payor
or, at Holder's option, credit against the principal of this note such portion
of said interest as shall be necessary to cause the interest paid on this note
to produce a rate equal to the Ceiling Rate.
5. Interest Will be Spread. To the extent (if any) necessary to avoid
violation of applicable usury laws (or to minimize the extent of the violation
if complete avoidance is impossible for any reason, it being the intent and
purpose of Makers and all Holders to comply strictly with all applicable usury
and other laws), all sums paid or agreed to be paid to Holder for the use,
forbearance or detention of the indebtedness evidenced hereby shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
in equal parts throughout the full term of this note, so that the interest rate
is uniform throughout the full term of this note.
6. Payment Schedule. Interest on and principal of this note shall be
due and payable as provided in SECTION 7.1 of the Credit Agreement.
7. Prepayment. Makers may prepay this note in accordance with and
subject to the provisions of SECTION 7.1(c) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, this Note and its Security. This note is one
of the Seasoned Warehouse Notes, is issued pursuant to the Credit Agreement (to
which reference is made for all purposes) and may be referred to as the "10/97
[LENDER NAME] SEASONED WAREHOUSE NOTE", and as it may hereafter be renewed,
extended, rearranged, increased, decreased, modified or replaced in accordance
with the Credit Agreement may be referred to as the "CURRENT [LENDER NAME]
SEASONED WAREHOUSE NOTE". Holder is entitled to the benefits of and security
provided for in the Credit Agreement. Such security includes, among other
security, the security interests granted by the Seasoned Warehouse Security
Agreement referred to in SECTION 8.1 of the Credit Agreement.
9. Revolving Credit. Upon and subject to the terms and conditions of
the Credit Agreement, Makers may borrow, repay and reborrow against this note
under the circumstances, in the manner and for the purposes specified in the
Credit Agreement, but for no other purposes. Advances against this note by Payee
or other Holder shall be governed by the terms of the Credit Agreement. The
unpaid principal balance of this note at any time shall be the total of all
principal lent or advanced against this note less the sum of all principal
payments and permitted prepayments made on this note by or for the account of
Makers. Absent manifest error, Holder's computer
Page 2 of 4 Pages
<PAGE> 119
records shall on any day conclusively evidence the unpaid balance of this note
and its advances and payments history posted up to that day. All loans and
advances and all payments and permitted prepayments made hereon may be (but are
not required to be) endorsed by or on behalf of Holder on the schedule which is
attached as Annex I hereto (which is hereby made a part hereof for all
purposes) or otherwise recorded in Holder's computer or manual records;
provided, that any failure to make notation of (a) any principal advance or
accrual of interest shall not cancel, limit or otherwise affect Makers'
obligations or any Holder's rights with respect to that advance or accrual, or
(b) any payment or permitted prepayment of principal or interest shall not
cancel, limit or otherwise affect Makers' entitlement to credit for that
payment as of the date of its receipt by Holder. Makers and Payee expressly
agree, pursuant to Chapter 346 ("CHAPTER 346") of the Texas Finance Code, that
Chapter 346 (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 346 or subject
to its provisions in any manner whatsoever.
10. Legal Costs. If any Holder or the Seasoned Warehouse Agent retains
an attorney in connection with any Default or Event of Default or to collect,
enforce or defend this note or any papers intended to secure or guarantee it in
any lawsuit or in any probate, reorganization, bankruptcy or other proceeding,
or if any Maker or anyone claiming by, through or under any Maker sues any
Holder in connection with this note or any such papers and does not prevail,
then Makers jointly and severally agree to pay to each such Holder and the
Seasoned Warehouse Agent, respectively, in addition to principal and interest,
all reasonable costs and expenses incurred by such Holder or the Seasoned
Warehouse Agent in trying to collect this note or in any such suit or
proceeding, 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. An amount equal to ten percent (10%) of the unpaid principal and
accrued interest owing on this note when and if this note is placed in the hands
of an attorney for collection after default is stipulated to be reasonable
attorneys' fees unless a Holder, the Seasoned Warehouse Agent or a Maker timely
pleads otherwise to a court of competent jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other than
the Holder or the Payee), guarantors and sureties severally waive notice
(including, but not limited to, notice of intent to accelerate and notice of
acceleration, notice of protest and notice of dishonor), demand, presentment for
payment, protest, diligence in collecting and the filing of suit for the purpose
of fixing liability and consent that the time of payment hereof may be extended
and re-extended from time to time without notice to any of them. Each such
Person agrees that his, her or its liability on or with respect to this note
shall not be affected by any release of or change in any guaranty or security at
any time existing or by any failure to perfect or maintain perfection of any
lien against or security interest in any such security or the partial or
complete unenforceability of any guaranty or other surety obligation, in each
case in whole or in part, with or without notice and before or after maturity.
Page 3 of 4 Pages
<PAGE> 120
12. Not Purpose Credit. None of the proceeds of this note shall ever be
used, directly or indirectly, 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 or for the purpose of reducing or retiring any debt
which was originally incurred to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock or
which would constitute this transaction a "purpose credit" within the meaning of
said Regulation U, as now or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Seasoned Warehouse Agent that all loans
evidenced by this note are and will be for business, commercial, investment or
other similar purpose and not primarily for personal, family, household or
agricultural use, as such terms are used in Chapter 1D or in the Texas Finance
Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By:________________________ By:____________________
Name:______________________ Name:__________________
Title:_____________________ Title:_________________
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By:_______________________ By:____________________
Name:_____________________ Name:__________________
Title:____________________ Title:_________________
Page 4 of 4 Pages
<PAGE> 121
ANNEX 1
to $_________________
10/97 [LENDER NAME] Seasoned Warehouse Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Payment Applied on
Date of Payment or (or advance vs.) Payment Applied on Name of Person
Advance Principal Interest Principal Balance Interest Paid to Making Notation
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 122
EXHIBIT E-1
SEASONED WAREHOUSE SECURITY AGREEMENT
THIS SEASONED WAREHOUSE SECURITY AGREEMENT is entered into as of
October 31, 1997, between MCA FINANCIAL CORP., a Michigan corporation, MCA
MORTGAGE CORPORATION, a Michigan corporation, MORTGAGE CORPORATION OF AMERICA,
a Michigan corporation and MORTGAGE CORPORATION OF AMERICA, INC., an Ohio
corporation ("DEBTORS"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as a
lender and as agent for the other lenders party thereto (in such capacities,
"SECURED PARTY").
Debtors, the Seasoned Warehouse Lenders parties thereto as such and
Secured Party have entered into the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 (as supplemented, amended or
restated, the "WAREHOUSE CREDIT AGREEMENT"). As a continuing inducement to
Seasoned Warehouse Lenders to extend credit to Debtors under the Credit
Agreement, and as a condition precedent to that credit, Debtors are executing
and delivering this Agreement to Secured Party.
ACCORDINGLY, for adequate and sufficient consideration, Debtors and
Secured Party agree as follows:
SECTION 1. DEFINITIONS AND REFERENCES. Unless stated otherwise, (a)
terms defined in the Warehouse Credit Agreement or the UCC have the same
meanings when used in this Agreement, and (b) to the extent permitted by Law,
if in conflict (i) the definition of a term in the Credit Agreement controls
over the definition of that term in the UCC, and (ii) the definition of a term
in Article 9 of the UCC controls over the definition of that term elsewhere in
the UCC.
COLLATERAL is defined in SECTION 2.2 of this Agreement.
DEBTORS is defined in the preamble to this Agreement and includes,
without limitation, each Debtor, each Debtor as a debtor-in- possession, and
any receiver, trustee, liquidator, conservator, custodian, or similar party
appointed for any Debtor or for substantially all of any Debtor's assets under
any Debtor Law.
OBLIGOR means any Person obligated with respect to any Collateral
(whether as an account debtor, obligor on an instrument, issuer of securities,
or otherwise).
SECURED PARTY is defined in the preamble to this Agreement and
includes its successor appointed and acting as Seasoned Warehouse Agent for
Seasoned Warehouse Lenders under the Seasoned Warehouse Loan Documents.
<PAGE> 123
SECURITY INTEREST means the security interest granted and the pledge
and assignment made under SECTION 2.1 of this Agreement, which is a Lender Lien
under the Credit Agreement.
SECTION 2. SECURITY INTEREST AND COLLATERAL.
2.1 Security Interest. To secure the full payment and performance of
the Obligations, each Debtor hereby grants to Secured Party, as agent and
Representative of Seasoned Warehouse Lenders, a security interest in all of that
Debtor's present and future right, title and interest in and to the Collateral,
whether now owned or hereafter acquired, and pledges and assigns the Collateral
to Secured Party as Representative of the Seasoned Warehouse Lenders, all upon
and subject to the terms and conditions of this Agreement. The grant of the
Security Interest does not subject Secured Party or any Lender to the terms of
any Collateral Paper or in any way transfer, modify, or otherwise affect (a) any
Debtor's obligations with respect to any Collateral or (b) the Lender Liens
under the Credit Agreement.
2.2 Collateral. As used in this Agreement, the term "Collateral" means
the present and future items and types of property described below, whether now
owned or acquired in the future by any Debtor. This description of Collateral
does not permit any action prohibited by any Loan Document.
- Mortgage Collateral from time to time identified to Secured
Party as Collateral.
- All Collateral Papers in any way related to any of the
Mortgage Collateral from time to time identified to Secured
Party as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of
trust, or trust deeds securing those Mortgage Loans,
whether deposited with or held by or for Secured Party
under this Agreement or otherwise.
- Private mortgage insurance (including, without limitation,
all commitments to issue any such insurance) covering, and
all commitments issued by FHA to insure or issued by VA to
guarantee, any Mortgage Loans identified as Collateral.
- Security of any kind pledged by a mortgagor for any
Mortgage Loans identified as Collateral.
- Casualty insurance assigned to any Debtor in connection
with any Mortgage Loans identified as Collateral.
- Mortgage Securities deposited with or held by or for
Secured Party under the Seasoned Warehouse Loan Documents
or registered by book entry in Secured Party's name under
the Seasoned Warehouse Loan Documents.
2
<PAGE> 124
- Guaranties related to Mortgage Securities identified as
Collateral.
- Any take-out commitments held by any Debtor for any
Mortgage Loans or Mortgage Securities identified as
collateral, rights to deliver those Mortgage Loans or
Mortgage Securities, as the case may be, to the investors
or other purchasers under those take-out commitments, and
all proceeds resulting from the sale of any of those
Mortgage Loans or Mortgage Securities under those take-out
commitments.
- Any Collateral otherwise described in this Agreement that
may from time to time be delivered (a) to an investor (or
its custodian or other designee) under SECTION 3.1 of the
Custody Agreement until purchased and paid for by that
investor or (b) to a Company for correction or servicing
under SECTION 3.2 of the Custody Agreement.
- The Seasoned Warehouse Note Payment/Funding Account, all
other accounts that any Debtor maintains with Secured
Party, Seasoned Warehouse Agent, or any Lender, and all
amounts deposited in them or represented by them.
- Personal property, contract rights, accounts, and general
intangibles of any kind whatsoever relating to any
Collateral.
- All files, surveys, certificates, correspondence,
appraisals, tapes, discs, cards, accounting records, and
other information and data of any Debtor relating to any
collateral, including, without limitation, all information,
data, tapes, discs, and cards necessary to administer and
service any Collateral.
- Cash and noncash proceeds of any Collateral.
SECTION 3. REPRESENTATIONS AND WARRANTIES. By entering into this
Agreement, and by each subsequent delivery of additional Collateral under this
Agreement, each Debtor reaffirms the representations and warranties contained
in the Credit Agreement. Each Debtor further represents and warrants to
Secured Party as Representative of the Seasoned Warehouse Lenders as follows:
3.1 Concerning Debtors. The facts concerning Debtors' names, taxpayer
identification numbers, ownership, state of incorporation, states in which
Debtors are qualified as foreign corporations, trade names used, chief executive
offices' locations and other principal offices' locations that are stated on
Schedule I hereto and its attached list, are true and correct in all respects.
3.2 Concerning the Collateral. All Collateral (a) is genuine and in all
respects what it purports to be, (b) is the legal, valid, and binding obligation
of each Obligor (except as enforceability may be limited by Debtor Laws), (c) is
free from any claim for credit, deduction, or allowance of any
3
<PAGE> 125
Obligor and free from any defense, dispute, setoff, or counterclaim (other than
for payments made in respect of it), (d) if a Mortgage Loan was originated and
is in compliance with all Laws (including, without limitation, all usury Laws,
the Real Estate Settlement Procedures Act of 1974, the Equal Credit Opportunity
Act, the Federal Trust in Lending Act, Regulation Z promulgated by the Board of
Governors of the Federal Reserve System, and all applicable federal and state
consumer protection Laws, (e) if a Mortgage Security, is duly authorized and
validly issued, the transfer of which is not subject to any restrictions other
than under the Seasoned Warehouse Loan Documents and (f) conforms to the
applicable requirements of eligibility under SCHEDULE EC to the Credit
Agreement.
3.3 Ownership and Priority. Debtors have full legal and beneficial
ownership of all Collateral, free and clear of all liens except Permitted Liens.
3.4 Creation and Perfection. The Security Interest is created and
perfected on (a) each promissory note that evidences a Mortgage Loan or Land
Contract ever identified as Collateral and delivered to Secured Party, (b) each
Mortgage Security in certificated form that is delivered to Secured Party, (c)
each Mortgage Security in book entry form when notice of the Security Interest
is given to the financial institution in whose favor that security has been
issued and that institution confirms that notice, (d) all Collateral shipped to
any investor under SECTION 3.1 of the Custody Agreement (and the Security
Interest shall continue to be perfected until Secured Party receives either
payment or Mortgage Securities under that section), (e) all Collateral shipped
to a Debtor for correction or servicing under SECTION 3.2 of the Custody
Agreement (and the Security Interest shall continue to be perfected for
twenty-one (21) days after that shipment), and (f) all other Collateral upon
possession or the filing of financing statements by Secured Party.
SECTION 4. COVENANTS. Until all commitments by Secured Party and Seasoned
Warehouse Lenders to extend credit under the Credit Agreement have been canceled
or terminated and the Obligations are fully paid and performed, Debtors covenant
and agree with Secured Party as agent and Representative of Seasoned Warehouse
Lenders as follows:
4.1 Concerning the Collateral. Debtors (a) shall fully perform all of
their duties under and in connection with each transaction to which any
Collateral relates, (b) shall promptly notify Secured Party about any change in
any fact or circumstances represented or warranted by any Debtor about any
Collateral, (c) shall promptly notify Secured Party of any claim, action, or
proceeding affecting title to any Collateral or the Security Interest and, at
Secured Party's request and Debtors' expense, appear in and defend that action
or proceeding, (d) shall hold in trust for Secured Party (as agent and
Representative of the Seasoned Warehouse Lenders) all Collateral not delivered
to Secured Party (without excusing any failure to deliver Collateral Papers to
Secured Party as required by this Agreement) and mark that Collateral on the
relevant Debtor's records that it is subject to the Security Interest (but the
failure to do so does not impair the Security Interest or its priority), (e)
other than collections under SECTION 4.3 below, shall pay and deliver to Secured
Party all items and types of property into which any Collateral may be converted
(all of which shall automatically be and remain subject to the Security
Interest) and properly endorse, assign, or take such other action as Secured
Party may request in order to maintain and continue the Security Interest in
that property and (f) may
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<PAGE> 126
not compromise, extend, release or adjust payments on any Collateral, accept a
conveyance of mortgaged property in full or partial satisfaction of any
Collateral or release any mortgage, deed of trust, or trust deed securing or
underlying any Collateral.
4.2 Insurance. Debtors shall keep the collateral fully insured in the
amounts, against the risks, and with insurers as may be approved by Secured
Party, with loss payable to Secured Party as its interest (as agent and
Representative of Seasoned Warehouse Lenders) may appear.
4.3 Collections. Debtors shall, at their sole cost and expense, whether
requested to by Secured Party or in the absence of such a request, take all
actions reasonably necessary to obtain payment, when due and payable, of all
amounts due or to become due from Obligers with respect to any Collateral.
Debtors may not agree to any rebate, refund, compromise or extension with
respect to any Collateral or accept any prepayment on account of any Collateral
other than in a manner and to the extent consistent with or as may otherwise be
provided in various servicing agreements to which it is a party or subject.
(a) No Event of Default. While no Event of Default exists,
Debtors shall make all of those collections, shall maintain such escrow
accounts and otherwise comply with the servicing agreements to which it is a
party or subject, and may otherwise comply with the servicing agreements to
which it is a party or subject, and may otherwise retain and use the proceeds
of those collections in the ordinary course of their business.
(b) Default. While an Event of Default exists, and upon the
request of Secured Party, Debtors shall (i) notify and direct each
Obligor to make payments on the collateral to Secured Party for deposit into
such accounts as it may designate so as to be held as Collateral under this
Agreement and (ii) otherwise turn over to Secured Party, in the form received
and with any necessary endorsements, all payments they receive in respect of
any Collateral for deposit into such accounts as Secured Party may designate to
be held as collateral under this Agreement. Secured Party may at any time
apply any amounts in those accounts as a payment of the Obligations, other than
mortgage escrow payments that are deposited into escrow accounts in accordance
with the applicable Guide or servicing contract.
4.4 Concerning Debtors. Without first giving Secured Party thirty (30)
days notice (or fewer if agreed to in writing by Secured Party) of the intention
to do any of the following and performing such acts and executing and delivering
to Secured Party such additional documents as Secured Party requests in order to
continue or maintain the existence and priority of the Security Interest, no
Debtor may (a) use or transact business under any corporate, assumed, or trade
name, except as represented in the Credit Agreement, (b) relocate its chief
executive offices or principal place of business or (c) move or surrender
possession of its books and records regarding the Collateral.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES. If an Event of Default exists, then
Secured Party may, at its election (but subject to the terms and conditions of
the Credit Agreement),
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<PAGE> 127
exercise any and all rights available to a secured party under the UCC, in
addition to any and all other rights afforded by the Seasoned Warehouse Loan
Documents, at law, in equity, or otherwise, including, without limitation (a)
requiring Debtors to assemble all or part of the Collateral and make it
available to Secured Party at a place to be designated by Secured Party which
is reasonably convenient to Debtors and Secured Party, (b) selling the
Collateral as provided below in this Section, (c) surrendering any policies of
insurance on all or part of the Collateral and receiving and applying the
unearned premiums as a credit on the Obligations, (d) applying by appropriate
judicial proceedings for appointment of a receiver for all or part of the
Collateral (and Debtors hereby consent to any such appointment) and (e)
applying to the Obligations any cash held by Secured Party or any Lender under
the Seasoned Warehouse Loan Documents.
5.1 Sale of Collateral. If and to the extent permitted
or required by applicable law, Secured Party may, without notice except as
hereinafter provided, sell the Collateral or any part thereof at public or
private sale (with or without appraisal or having the Collateral at the place
of sale) for cash, upon credit, or for future delivery, and at such price or
prices as Secured Party may deem best, and Secured Party (as agent and
Representative of the Seasoned Warehouse Lenders) may be the purchaser of any
and all of the Collateral so sold and may apply upon the purchase price
therefor any of the Obligations and thereafter hold the same absolutely free
from any right or claim of whatsoever kind. Secured Party is authorized at any
such sale, if Secured Party deems it advisable or is required by applicable law
so to do, (i) to restrict the prospective bidders on or purchasers of any of
the Collateral to a limited number of sophisticated investors who will
represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or resale of any of the
Collateral, (ii) to cause to be placed on certificates for any or all of the
Collateral a legend to the effect that such security has not been registered
under the Securities Act of 1933, as amended, and may not be disposed of in
violation of the provisions of said Act, and (iii) to impose such other
limitations or conditions in connection with any such sale as Secured Party
deems necessary or advisable in order to comply with said Act or any other
applicable law. Debtors agree to execute and deliver such documents and take
such other action as Secured Party deems necessary or advisable in order that
any such sale may be made in compliance with applicable law. Upon any such
sale, Secured Party shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale
shall hold the property sold absolutely free from any claim or right of
whatsoever kind, including any equity or right of redemption, stay or appraisal
which Debtors have or may have under any rule of law or statute now existing or
hereafter adopted. To the extent notice is required by applicable law, Secured
Party shall give Debtors written notice at the address set forth in the Credit
Agreement (which shall satisfy any requirement of notice or reasonable notice
in any applicable statute) of Secured Party's intention to make any such public
or private sale. Reasonable notification of the time and place of any public
sale of the collateral, or reasonable notification of the time after which any
private sale or other intended disposition of the Collateral is to be made,
shall be sent to the affected Debtor and to any other Person entitled to notice
under the UCC. If any Collateral threatens to decline speedily in value or is
of the type customarily sold on a recognized market, Secured Party may sell or
otherwise dispose of the Collateral without notification, advertisement, or
other notice of any kind. Notice sent or given not less than five (5) calendar
days before the taking of the action to which the notice relates is reasonable
notification and
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<PAGE> 128
notice for the purposes of this Section. Such notice (if any is required by
applicable law), in case of public sale, shall state the time and place fixed
for such sale or, in case of private sale or other disposition other than a
public sale, the time after which the private sale or other such disposition is
to be made. Any public sale shall be held at such time or times, within
ordinary business hours and at such place or places, as Secured Party may fix
in the notice of such sale. At any sale the Collateral may be sold in one lot
as an entirety or in separate parcels as Secured Party may determine. Secured
Party shall not be obligated to make any sale pursuant to any such notice.
Secured Party may, without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by announcement at any
time and place fixed for such sale, and such sale may be made at any time or
place to which the same may be so adjourned. In case of any sale of all or any
part of the Collateral on credit or for future delivery, the Collateral so sold
may be retained by Secured Party until the selling price is paid by the
purchaser thereof, but Secured Party shall incur no liability in case of the
failure of such purchaser to take up and pay for the Collateral so sold, and in
case of any such failure, such Collateral may again be sold upon like notice.
Each and every method of disposition described in this Section shall constitute
disposition in a commercially reasonable manner. Debtors shall remain jointly
and severally liable for any deficiency. The Companies hereby acknowledge and
agree that Mortgage Loans and Mortgage Securities are property of a type
customarily sold on a recognized market. The Companies also hereby agree that
any sale of a Mortgage Loan or Mortgage Security pursuant to a Take-out
Commitment, and any other sale of Collateral arranged by any Company (whether
before or after an Event of Default), shall be conclusively presumed to be
commercially reasonable.
5.2 Additional Rights of Secured Party. Secured Party shall have all
the rights of a secured party after default under the Uniform Commercial Code of
Texas and in conjunction with, in addition to or in substitution for those
rights and remedies:
(a) it shall not be necessary that the Collateral or any part
thereof be present at the location of any sale pursuant to the provisions of
this Section;
(b) before application of proceeds of disposition of the Collateral
to the Obligations, such proceeds shall be applied to the reasonable expenses of
retaking, holding, preparing for sale or lease, selling, leasing and the like
and the reasonable attorneys' fees and legal expenses incurred by Secured Party,
each Debtor, to the extent applicable, to remain liable for any deficiency;
(c) the sale by Secured Party of less than the whole of the
Collateral shall not exhaust the rights of Secured Party hereunder, and Secured
Party is specifically empowered to make successive sale or sales hereunder until
the whole of the Collateral shall be sold; and, if the proceeds of such sale of
less than the whole of the Collateral shall be less than the aggregate of the
Obligations, this Agreement and the Security Interest created hereby shall
remain in full force and effect as to the unsold portion of the Collateral just
as though no sale had been made;
7
<PAGE> 129
(d) in the event any sale hereunder is not completed or is
defective in the opinion of Secured Party, such sale shall not exhaust the
rights of Secured Party hereunder and Secured Party shall have the right to
cause a subsequent sale or sales to be made hereunder;
(e) any and all statements of fact or other recitals made
in any bill of sale or assignment or other instrument evidencing any foreclosure
sale hereunder as to nonpayment of any indebtedness or as to the occurrence of
any default, or as to Secured Party having declared all of such indebtedness to
be due and payable, or as to notice of time, place and terms of sale and the
Collateral to be sold having been duly given, as to any other act or thing
having been duly done by Secured Party, shall be taken as prima facie evidence
of the truth of the facts so stated and recited;
(f) Secured Party may appoint or delegate any one or more
persons as agent to perform any act or acts necessary or incident to any sale
held by Secured Party, including the sending of notices and the conduct of sale,
but in the name and on behalf of Secured Party; and
(g) demand of performance, advertisement and presence of
property at sale are hereby WAIVED and Secured Party (as agent and
Representative of the Seasoned Warehouse Lenders) is hereby authorized to sell
hereunder any evidence of debt it may hold as security for the Obligations. All
demands and presentments of any kind or nature are expressly WAIVED by Debtors.
Debtors WAIVE the right to require Secured Party to pursue any other remedy for
the benefit of Debtors and agree that Secured Party may proceed against any
Debtor for the amount of the Obligations owed to the Seasoned Warehouse Lenders
or the Seasoned Warehouse Agent without taking any action against any other
Debtor or any other Person and without selling or otherwise proceeding against
or applying any of the Collateral.
5.3 Application of Proceeds. Secured Party shall apply the proceeds of
any sale or other disposition of the collateral under this SECTION 5 in the
order and manner specified in SECTION 13.9 of the Credit Agreement. Any
surplus remaining shall be delivered to the relevant Debtor or as a court of
competent jurisdiction may direct. If the proceeds are insufficient to pay the
Obligations in full, Debtors remain liable for any deficiency.
SECTION 6. OTHER RIGHTS.
6.1 Performance. If Debtors fail to pay when due all Taxes on any of the
Collateral, or to preserve the priority of the Security Interest in any of the
Collateral, or to keep the Collateral insured as required by this Agreement, or
otherwise fail to perform any of their obligations under any Seasoned Warehouse
Loan Documents or Collateral Papers with respect to the Collateral, then
Secured Party may, at its option, but without being required to do so, pay such
Taxes, prosecute or defend any suits in relation to the Collateral, or insure
and keep insured the Collateral in any amount deemed appropriate by Secured
Party, or take all other action which Debtors are required, but have failed or
refused, to take under the Seasoned Warehouse Loan Documents or Collateral
Papers. Any sum which may be expended or paid by Secured Party under this
Section (including, without limitation, court costs and attorneys' fees) shall
bear interest from the dates of expenditure or
8
<PAGE> 130
payment at the Past Due Rate until paid and, together with such interest, shall
be payable by Debtors to Secured Party upon demand and is part of the
Obligations.
6.2 Collection.
(a) Actions. When Secured Party is entitled under
SECTION 4.3 above to make collection on any Collateral, it may in its own name
or in the name of any Debtor (i) compromise or extend the time of payment with
respect to any Collateral for such amounts and upon such terms as Secured Party
may determine, (ii) demand, collect, receive, receipt for, sue for, compound,
and give acquittance for any and all amounts due or to become due with respect
to Collateral, (iii) take control of cash and other proceeds of any Collateral,
(iv) endorse any Debtor's name on any notes, acceptances, checks, drafts, money
orders, or other evidences of payment on Collateral that may come into Secured
Party's possession, (v) sign any Debtor's name on any invoice or bill of lading
relating to any Collateral, on any drafts against Obligors or other Persons
making payment with respect to Collateral, on assignments and verifications of
accounts or other Collateral and on notices to Obligors making payment with
respect to Collateral, (vi) send requests for verification or obligations to any
Obligor, (vii) do all other acts and things necessary to carry out the intent of
this Agreement, and (viii) authorize any Servicer in respect of any Collateral
to perform any one or more of the foregoing on Secured Party's behalf.
(a) If any Obligor fails or refuses to make payment on
any Collateral when due, Secured Party is authorized, in its sole discretion,
either in its name or in any Debtor's name, to take such action as Secured Party
deems appropriate for the collection of any amounts owed with respect to
Collateral or upon which a delinquency exists. Regardless of any other
provision, however, Secured Party is never liable for its failure to collect, or
for its failure to exercise diligence in the collection of, any amounts owed
with respect to Collateral and is not under any duty whatever to anyone except
Debtors and the Seasoned Warehouse Lenders to account for funds that it actually
receives. Without limiting the generality of the foregoing, Secured Party has
no responsibility for ascertaining any maturities, calls, conversions,
exchanges, offers, tenders, or similar matters relating to any Collateral, or
for informing Debtors with respect to any of such matters (irrespective of
whether Secured Party actually has, or may be deemed to have, knowledge
thereof). Secured Party's receipt to any Obligor is a full and complete
release, discharge, and acquittance to that Obligor, to the extent of any amount
so paid to Secured Party.
6.3 Power of Attorney. Each Debtor irrevocably appoints
Secured Party, acting on behalf of Seasoned Warehouse Lenders, as its
attorney-in-fact (with full power of substitution) for, on behalf, and in the
name of such Debtor to (a) endorse and deliver to any Person any check,
instrument, or other document received by Secured Party or any Lender that
represents payment in respect of any Collateral, (b) prepare, complete, execute,
deliver, and record any assignment of any mortgage, deed of trust, or trust deed
securing any Collateral, (c) endorse and deliver or otherwise transfer any
promissory note evidencing any Collateral and do every other thing necessary or
desirable to effect transfer of all or any Collateral, (d) take all necessary
and appropriate action with respect to any of the Obligations or any Collateral,
(e) commence, prosecute, settle, discontinue,
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<PAGE> 131
defend, or otherwise dispose of any claim relating to any Collateral, and (f)
sign such Debtor's name wherever appropriate to effect the performance of this
Agreement and the Credit Agreement. This Section shall be liberally, not
restrictively, construed to give the greatest latitude to Secured Party's power
as such Debtor's attorney-in-fact to collect, sell and deliver any Collateral
and all documents relating to it. The powers and authorities conferred on
Secured Party in this Section (w) are discretionary and not obligatory on the
part of Secured Party, (x) may be exercised by Secured Party through any Person
who, at the time of the execution of particular documents, is an officer of
Secured Party, (y) may not be exercised by Secured Party unless a Default or an
Event of Default exists, and (z) is granted for a valuable consideration,
coupled with an interest, and irrevocable until, and all Persons dealing with
Secured Party, any of its officers acting under this Section, or any substitute
are fully protected in treating the powers and authorities conferred by this
Section as existing and continuing in full force and effect until advised by
Secured Party that, all commitments under the Credit Agreement to extend credit
have been terminated or canceled and the Obligations are fully paid and
performed.
SECTION 7. MISCELLANEOUS.
7.1 Miscellaneous. Because this Agreement is a "Warehouse Loan Document"
referred to in the Credit Agreement, the provisions relating to Seasoned
Warehouse Loan Documents in SECTIONS 1 and 16 of the Credit Agreement are
incorporated into this Agreement by reference the same as if included in this
Agreement verbatim.
7.2 Term. This Agreement terminates upon full and indefeasible payment
and performance of the Obligations. No Obligor is ever obligated to make
inquiry of the termination but is fully protected in making any payments on the
Collateral directly to Secured Party.
7.3 Matters Not Relevant. The Security Interest, Debtors' obligations,
and Secured Party's and Seasoned Warehouse Lenders' rights under this Agreement
are not released, diminished, impaired, or adversely affected by any one or more
of the following: (a) Secured Party's or any Lender's taking or accepting any
additional, or any release, surrender, exchange, subordination, or loss of any
other, guaranty, assurance, or security for any of the Obligations; (b) any full
or partial release of any other Person obligated on any of the Obligations; (c)
the modification or assignment of, or waiver of compliance with, any other Loan
Document; (d) any present or future insolvency, bankruptcy, or lack of
corporate, partnership, or trust power of any other Person obligated on any of
the Obligations; (e) any renewal, extension or rearrangement of any of the
Obligations, or any adjustment, indulgence, forbearance, or compromise granted
to any Person obligated on any of the Obligations; (f) any Person's neglect,
delay, omission, failure, or refusal to take or prosecute any action in
connection with any of the Obligations; (g) any existing or future right, claim
or defense (other than the defense of full and final payment of the Obligations)
of any Debtor or any other Person against Secured Party or any Lender; (h) the
unenforceability of any of the Obligations against any Person obligated or any
part of the Obligations because it exceeds the amount permitted by Law, the act
of creating it is ultra vires, or the officers, partners, or trustees creating
it exceeded their authority or violated their fiduciary duties, or otherwise;
(i) any payment of the Obligations is
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<PAGE> 132
held to constitute a preference under any Debtor Law or for any other reason
Secured Party of any Lender is required to refund any payment or make payment
to another Person; or (j) any Person's failure to notify any Debtor about the
foregoing events or occurrences; and each Debtor waives any notice of any kind
under any circumstances whatsoever with respect to this Agreement or any of the
Obligations other than as specifically provided in this Agreement.
7.4 Waivers. Except to the extent expressly otherwise provided in the
Seasoned Warehouse Loan Documents, each Debtor waives (a) any right to require
Secured Party or any Lender to proceed against any other Person, to exhaust its
rights in the Collateral, or to pursue any other right which Secured Party or
any Lender may have, and (b) all rights of marshaling in respect of the
Collateral.
7.5 Financing Statement. Secured Party may, at any time, file this
Agreement or a carbon photographic, or other reproduction of this Agreement as a
financing statement, but Secured Party's failure to do so does not impair the
validity or enforceability of this Agreement.
7.6 Parties. This Agreement binds and benefits Debtors, Secured Party
and each Seasoned Warehouse Lender, and their respective successors and
permitted assigns. Only those Persons may rely or raise any defense about this
Agreement.
(a) Assignments. Debtors may not assign any rights or obligations
under this Agreement without first obtaining the written consent of Secured
Party and all Seasoned Warehouse Lenders. Secured Party's rights under this
Agreement may be assigned to any successor agent appointed under the Credit
Agreement.
(b) Secured Party. Secured Party is the agent for each Seasoned
Warehouse Lender. Secured Party may, without the joinder of any Seasoned
Warehouse Lender, exercise any rights in favor of any of them under this
Agreement. The rights of Secured Party and Seasoned Warehouse Lenders vis-a-vis
each other may be subject to other agreements between them. Neither Debtors nor
their respective successors or permitted assigns need to inquire about any such
agreement or be subject to the terms of it unless they join in it and,
therefore, are not entitled to the benefits of any such agreement or entitled to
rely upon or raise as a defense the failure of any party to comply with it.
7.7 Entire Agreement. THIS AGREEMENT AND THE OTHER SEASONED WAREHOUSE
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUSLY, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
The remainder of this page is intentionally blank
11
<PAGE> 133
EXECUTED as of the date first stated above.
MCA FINANCIAL CORP., TEXAS COMMERCE BANK NATIONAL
MCA MORTGAGE CORPORATION, ASSOCIATION, in its capacity as
MORTGAGE CORPORATION OF Seasoned Warehouse Agent and
AMERICA, as Debtors as Secured Party
By:__________________________________ By:____________________________
Name:________________________________ Name:__________________________
Title:_______________________________ Title:_________________________
12
<PAGE> 134
MORTGAGE CORPORATION OF
AMERICA, INC., as Debtor
By:________________________________________________
Name:______________________________________________
Title:_____________________________________________
13
<PAGE> 135
SCHEDULE I TO SEASONED WAREHOUSE SECURITY AGREEMENT
PLACE OF BUSINESS, TRADE NAMES AND FORMER NAMES
OF BORROWERS
<TABLE>
<CAPTION>
STATE OF STATES
NAME AND TAXPAYER I.D. OWNERSHIP INCORPORATION QUALIFIED AS
FOREIGN CORP.
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
MCA Financial Corporation Approximately 523,283 shares Michigan None
38-3014001 owned by various individuals
and entities disclosed to
the Seasoned Warehouse Agent
on a separate schedule
- --------------------------------------------------------------------------------------------------
MCA Mortgage MCA Financial Corp. Michigan See attached list
Corporation
38-2613174
- --------------------------------------------------------------------------------------------------
Mortgage Corporation MCA Financial Corp. Michigan Indiana, Ohio
of America
38-2509529
- --------------------------------------------------------------------------------------------------
Mortgage Corporation Mortgage Corporation of Ohio None
of America, Inc. America
37-1371271
- --------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
STILL USING OTHER
NAME AND TAXPAYER I.D. TRADE NAME? CHIEF EXECUTIVE PRINCIPAL
NAMES USED Y/N OFFICE OFFICES
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
MCA Financial Corporation None No 23999 Northwestern Hwy. None
38-3014001 Southfield, MI 48075
- --------------------------------------------------------------------------------------
MCA Mortgage Corporation None No 23999 Northwestern Hwy. None
38-2613174 Southfield, MI 48075
- --------------------------------------------------------------------------------------
Mortgage Corporation None No 23999 Northwestern Hwy. None
of America Southfield, MI 48075
38-2509529
- --------------------------------------------------------------------------------------
Mortgage Corporation None No 23999 Northwestern Hwy. None
of America, Inc. Southfield, MI 48075
37-1371271
- --------------------------------------------------------------------------------------
</TABLE>
<PAGE> 136
MCA MORTGAGE CORPORATION
STATES WHERE MCAMC IS LICENSED TO ORIGINATE
OR ACQUIRE FIRST MORTGAGE LOANS
(OR IS EXEMPT FROM LICENSING)
<TABLE>
<CAPTION>
OK TO ORIGINATE OK TO ACQUIRE LOANS FUNDED & CLOSED
BY LICENSED BROKER OR LENDER
<S> <C>
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
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
</TABLE>
* Loan officer must also have license to work directly with borrower
** OK to table-fund and close in MCAMC's name on brokered loans
<PAGE> 137
EXHIBIT E-2
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
<S> <C>
DEBTOR'S NAME AND MAILING ADDRESS: --------------------------------
--------------------------------
--------------------------------
FED. TAX ID NO.
- --------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING ADDRESS: Texas Commerce Bank National
Association, as Seasoned
Warehouse Agent(1)
FED. TAX ID NO.
- --------------------------------------------------------------------------------
FOR FILING OFFICER:
- --------------------------------------------------------------------------------
</TABLE>
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE BY
DEBTOR (THE "COLLATERAL"):
- - Mortgage Loans from time to time identified to Secured Party as
Collateral.
- - Second Mortgage Loans from time to time identified to Secured Party as
Collateral.
- - Construction Loans from time to time identified to Secured Party as
Collateral.
- - Land Contracts from time to time identified to Secured Party as
Collateral.
- - All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust, or
trust deeds securing, those Mortgage Loans, Second Mortgage Loans or
Construction Loans, and all Land Contracts, whether deposited with or
held by or for Secured Party or otherwise.
- - Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all commitments
issued by FHA to insure or issued by VA to guarantee, any Mortgage
Loans or Construction Loans identified as Collateral.
- - Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- ----------------
(1) Secured Party is serving as Seasoned Warehouse Agent under the Credit
Agreement, and the security interest evidenced by this financing statement,
as amended from time to time, is granted to Secured Party in that capacity
and as secured party on behalf of all of the Seasoned Warehouse Lenders,
including Texas Commerce
<PAGE> 138
- - Casualty insurance assigned to Debtor in connection with any Mortgage
Collateral identified as Collateral.
- - Mortgage Securities deposited with or held by or for Secured Party
under the Seasoned Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Seasoned Warehouse Loan
Documents.
- - Guaranties related to Mortgage Securities identified as Collateral.
- - Any take-out commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities, as
the case may be, to the investors or other purchasers under those
take-out commitments, and all proceeds resulting from the sale of any
of those Mortgage Loans, Construction Loans, Second Mortgage Loans or
Mortgage Securities under those take-out commitments.
- - Any Collateral otherwise described in the security agreement to which
this financing statement relates that may from time to time be
delivered (a) to an investor (or its custodian or other designee)
under Section 3.1 of the Custody Agreement until purchased and paid
for by that investor or (b) to a Company for correction or servicing
under Section 3.2 of the Custody Agreement.
- - The Seasoned Warehouse Note Payment/Funding Account, all other
accounts that Debtor maintains with Secured Party, Seasoned Warehouse
Agent, or any Lender, and all amounts deposited in them or represented
by them.
- - Personal property, contract rights, accounts, and general intangibles
of any kind whatsoever relating to any Collateral.
- - All files, surveys, certificates, correspondence, appraisals, tapes,
discs, cards, accounting records, and other information and data of
Debtor relating to any Collateral, including, without limitation, all
information, data, tapes, discs, and cards necessary to administer and
service any Collateral.
- - Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
____________________________________ TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as Seasoned
Warehouse Agent for Seasoned
Warehouse Lenders
By_________________________________ By_______________________________
(Name)_____________________________ (Name)___________________________
(Title)____________________________ (Title)__________________________
<PAGE> 139
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
____________________________, AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS SEASONED WAREHOUSE AGENT, AS SECURED PARTY
<PAGE> 140
EXHIBIT F
OPINION OF COUNSEL
The opinion delivered by counsel to the Companies must be in form and
substance acceptable to Seasoned Warehouse Agent and its special counsel and
cover the following matters:
1. Each Company is duly organized, validly existing, and in good standing
under the Laws of the jurisdiction in which it is incorporated as stated in the
Recitals to the Warehouse Credit Agreement.
2. Each Company is duly qualified to transact business and is in good
standing as a foreign corporation or other entity in each jurisdiction so
indicated on SCHEDULE I to the Security Agreement and in each other jurisdiction
where, to the best of that counsel's knowledge, the nature and extent of that
Company's business and properties require due qualification and good standing.
3. To the best of that counsel's knowledge, except as described on
SCHEDULE 10.1 to the Credit Agreement (a) no Company has any Subsidiaries and
(b) no Company has used or transacted business under any other corporate or
trade name in the six-month period preceding the date of the Warehouse Credit
Agreement.
4. Each Company possesses all requisite corporate power and authority to
own or lease its property and to conduct its business as is now being conducted,
or is contemplated by the Warehouse Credit Agreement to be conducted.
5. The execution and delivery of each Company of each Loan Document to
which it is a party and the performance by it of its related obligations (a) are
within its corporate power, (b) have been duly authorized by all necessary
corporate action on its behalf, (c) except for any action or filing that has
been taken or made on or before the date of this opinion, require no action by
or filing with any Tribunal, (d) do not violate any provision of its articles of
incorporation, charter or bylaws, (e) do not violate any provision of Law
applicable to it or any material agreements to which it is a party and of which
that counsel is aware, and (f) except for Lender Liens, do not result in the
creation or imposition of any Lien on any asset of any Company.
6. Upon execution and delivery by all parties to it, each Loan Document
constitutes a legal and binding obligation of each Company party to it,
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable Debtor Laws and general principles of equity.
7. Except as disclosed on SCHEDULE 10.4 to the Credit Agreement (a) no
Company is subject to, or aware of the threat of, any Litigation that is
reasonably likely to be determined
<PAGE> 141
adversely to it or, if so adversely determined, would have a Material Adverse
Effect, and (b) no outstanding or unpaid judgments against any Company exist.
8. No Company is subject to regulation under the Investment Company Act
of 1940, as amended, or the Public Utility Holding Company Act of 1935, amended.
9. Each Company is approved and qualified and in good standing as an
issuer, mortgagee, or seller/servicer, as described below, and meets all
requirements applicable to its status as such: (a) GNMA approved issuer of
Mortgage Securities guaranteed by GNMA; (b) FNMA approved seller/servicer of
Mortgage Loans, eligible to originate, purchase, hold, sell, and service
Mortgage Loans to be sold to FNMA; (c) FHLMC approved seller/servicer of
Mortgage Loans, eligible to originate, purchase, hold, sell and service Mortgage
Loans to be sold to FHLMC; (d) FHA approved mortgagee, eligible to originate,
purchase, hold, sell and service FHA Loans; and (e) VA approved mortgagee,
eligible to originate, purchase, hold, sell and service VA Loans.
10. Lender Liens are created and perfected upon (a) each note that is
delivered to Seasoned Warehouse Agent, (B) each Land Contract that is delivered
to Seasoned Warehouse Agent, (b) each Mortgage Security in certificated form
that is delivered to Seasoned Warehouse Agent or its bailee, (c) all Mortgage
Collateral shipped to any investor under a Bailee Letter (as defined in the
Custody Agreement), which perfection continues until Seasoned Warehouse Agent
receives Mortgage Securities or payment is made to Seasoned Warehouse Agent
under that Bailee Letter, (d) all Mortgage Collateral shipped to any Company for
correction or servicing, which perfection continues for twenty-one (21) days,
and (e) the Seasoned Warehouse Note Payment/Funding Account upon the execution
and delivery of the Security Agreement by Companies.
11. With respect to FNMA and FHLMC Mortgage Securities that are held in
book entry form and are identified on a Submission List or are otherwise
designated by any Companies as Collateral under the Credit Agreement, a Lender
Lien is created and perfected upon those Mortgage Securities (a) when written
notification is sent to the securities depositary (on whose books the
appropriate Companies' ownership of those Mortgage Securities is entered) of the
assignment and pledge of those Mortgage Securities to Seasoned Warehouse Agent
(as agent and Representative of Seasoned Warehouse Lenders), and (b) that
securities intermediary indicates by book entry the securities entitlement of
the Seasoned Warehouse Agent. As used in this paragraph, "SECURITIES
INTERMEDIARY" means a depository institution, clearing corporation, securities
broker or other Person that regularly accepts in the course of its business FNMA
and FHLMC Mortgage Securities as a custodial service for its customers, and
maintains accounts in the names of those customers reflecting ownership of or
interests in those Mortgage Securities.
12. With respect to the GNMA Mortgage Securities that are identified on a
Submission List or are otherwise designated by any of the Companies as
Collateral under the Credit Agreement and are held in book entry form through
Participants Trust Company ("PTC"), a Lender Lien is created and perfected upon
those Mortgage Securities when (a) PTC, by making the appropriate entries to its
books, transfers those Mortgage Securities to the account of The Chase Manhattan
2
<PAGE> 142
Bank, acting as a participant in PTC and as agent/custodian for Seasoned
Warehouse Agent (as agent and Representative of Seasoned Warehouse Lenders)
pursuant to a custodian agreement ("Custodian") and (b) Custodian, by book
entry or otherwise, identifies the GNMA Mortgage Securities as belonging to, or
subjected to a security interest of, Seasoned Warehouse Agent (as agent and
Representative of Seasoned Warehouse Lenders) and provides confirmation of that
action to Seasoned Warehouse Agent.
3
<PAGE> 143
EXHIBIT G-1
DISBURSEMENT REQUEST CERTIFICATE
(to refinance Eligible Seasoned Warehouse Collateral)
This certificate is delivered pursuant to SECTION 4.1 of the 10/97 Senior
Secured Seasoned Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders.
Terms defined in the Warehouse Credit Agreement have the same meaning when used,
unless otherwise defined, in this certificate.
I certify to Seasoned Warehouse Agent and Seasoned Warehouse Lenders that
on the date of this certificate:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. The proceeds of the requested Revolving Loan are to be used to
refinance Debt secured by Eligible Seasoned Warehouse Collateral currently held
by Texas Commerce, who will assign to the Seasoned Warehouse Agent (as agent and
Representative of the Seasoned Warehouse Lenders) its security interest in all
collateral for such existing Debt being refinanced and, upon disbursement of
such proceeds to Texas Commerce, a Company will own good and marketable title to
such Collateral, free and clear of any lien, pledge, charge or interest of any
party other than the Seasoned Warehouse Agent (as agent and Representative of
the Seasoned Warehouse Lenders).
3. All of the Collateral in which the Seasoned Warehouse Agent (as agent
and Representative of the Seasoned Warehouse Lenders), by disbursing such
refinancing Seasoned Warehouse Revolving Loan, will acquire a security interest
shall be Eligible Seasoned Warehouse Collateral.
4. All of the Collateral to be so refinanced by the proposed Seasoned
Warehouse Revolving Loan shall be Pledged to the Seasoned Warehouse Agent as
Collateral, and to no other Person, and shall be subject to the Warehouse Credit
Agreement and the Seasoned Warehouse Security Agreement, and the Seasoned
Warehouse Agent, as agent and Representative of the Lenders, will thereby
acquire and have a first and prior perfected security interest therein.
5. No Default or Event of Default has occurred and is continuing.
<PAGE> 144
6. The warranties and representations set forth in SECTION 10 of the
Warehouse Credit Agreement and SECTION 3 of the Seasoned Warehouse Security
Agreement are true and correct on and as of the date hereof.
By____________________________
(Name)________________________
(1) (Title)___________________
(Date)________________________
________________
(1) Must be a Responsible Officer of all four Companies.
2
<PAGE> 145
EXHIBIT G-2
DISBURSEMENT REQUEST CERTIFICATE
(to finance additional Eligible Seasoned Warehouse Collateral)
This certificate is delivered pursuant to SECTION 4.2 of the 10/97 Senior
Secured Seasoned Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders.
Terms defined in the Warehouse Credit Agreement have the same meaning when used,
unless otherwise defined, in this certificate.
I certify to Seasoned Warehouse Agent and Seasoned Warehouse Lenders that
on the date of this certificate:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. The proceeds of the requested Revolving Loan are to be used to Eligible
Seasoned Warehouse Collateral in addition to that previously Pledged to the
Seasoned Warehouse Agent; and, the undersigned Company owns such Collateral
free and clear of any lien, pledge, charge or interest of any party other than
the Seasoned Warehouse Agent, as agent and Representative of the Seasoned
Warehouse Lenders.
3. All of the Collateral Pledged to the Seasoned Warehouse Agent is
Eligible Seasoned Warehouse Collateral.
4. All of Collateral to be originated or acquired with the proceeds of the
requested Revolving Loan shall be Pledged to the Seasoned Warehouse Agent as
Seasoned Warehouse Collateral, and to no other Person, and shall be subject to
the Warehouse Credit Agreement and the Seasoned Warehouse Security Agreement.
5. No Default or Event of Default has occurred and is continuing.
<PAGE> 146
6. The warranties and representations set forth in SECTION 10 of the
Warehouse Credit Agreement and SECTION 3 of the Seasoned Warehouse Security
Agreement are true and correct on and as of the date hereof.
By__________________________
(Name)______________________
(1) (Title)_________________
(Date)______________________
____________________
(1) Must be a Responsible Officer of all four Companies.
2
<PAGE> 147
EXHIBIT G-3
DISBURSEMENT REQUEST CERTIFICATE
(for supplemental Borrowing)
This certificate is delivered pursuant to SECTION 4.3 of the 10/97 Senior
Secured Seasoned Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders.
Terms defined in the Warehouse Credit Agreement have the same meaning when used,
unless otherwise defined, in this certificate.
I certify to Seasoned Warehouse Agent and Seasoned Warehouse Lenders that
on the date of this certificate:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. There is not now outstanding any Seasoned Warehouse Revolving Loan
previously advanced by the Seasoned Warehouse Lenders (and disbursed by the
Seasoned Warehouse Agent) with respect to the Seasoned Warehouse Collateral to
which such requested Seasoned Warehouse Revolving Loan relates.
3. All of the Seasoned Warehouse Collateral to which such requested
Seasoned Warehouse Revolving Loan relates shall be Pledged to the Seasoned
Warehouse Agent, and to no other Person, and shall be subject to the Warehouse
Credit Agreement and the Seasoned Warehouse Security Agreement.
4. No Default or Event of Default has occurred and is continuing.
5. The warranties and representations set forth in SECTION 10 of the
Warehouse Credit Agreement and SECTION 3 of the Seasoned Warehouse Security
Agreement are true and correct on and as of the date hereof.
By_______________________
(Name)___________________
(1)(Title)_______________
(Date)___________________
____________________
(1) Must be a Responsible Officer of all four Companies.
<PAGE> 148
EXHIBIT H
MCA FINANCIAL CORP.
SEASONED WAREHOUSE COLLATERAL CERTIFICATE
The undersigned, ______________, certifies to Texas Commerce Bank National
Association ("TEXAS COMMERCE"), as a lender and as agent (the "SEASONED
WAREHOUSE AGENT") for certain other Seasoned Warehouse Lenders, that he is the
duly appointed Chief Financial Officer of MCA Financial Corp., a Michigan
corporation (the "COMPANY"). Pursuant to the 10/97 Senior Secured Seasoned
Warehouse Credit Agreement among the Company, the other Companies named therein,
the Seasoned Warehouse Agent and Texas Commerce as a lender and the other
Seasoned Warehouse Lenders party thereto dated October 31, 1997 (as it may have
been supplemented, amended or restated from time to time, the "WAREHOUSE CREDIT
AGREEMENT"), the Company has delivered a request to the Seasoned Warehouse Agent
dated as of ________, 199__, for disbursement of a Seasoned Warehouse Revolving
Loan. Pursuant to SECTION 11.2(f) of the Warehouse Credit Agreement, the
undersigned further certifies to the Seasoned Warehouse Lenders and the Seasoned
Warehouse Agent as follows:
1. Capitalized terms used in this certificate and not otherwise herein
defined have the meaning ascribed to them in the Warehouse Credit Agreement. As
used herein, "SEASONED WAREHOUSE COLLATERAL" 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 Seasoned Warehouse
Collateral currently Pledged to the Seasoned Warehouse Agent, according to the
Companies' records, categorized separately in the categories listed as items (a)
- - (m) below. As of such date, the aggregate principal balances of such Mortgage
Loans, REO and Land Contracts are:
(a) for Eligible Mortgage Loans that are
Foreclosure/REO/Repurchase Collateral: $________________
(b) for Eligible Land Contracts that are
Foreclosure/REO/Repurchase Collateral: $________________
(c) for Eligible REO that is Foreclosure/
REO/Repurchase Collateral: $________________
(d) for Eligible Repurchased Loans that
are Foreclosure/REO/Repurchase
Collateral: $________________
(e) for all Eligible Foreclosure/REO/Repurchase
Collateral ((a)+(b)+(c)+(d): $_________
<PAGE> 149
(f) for all other Eligible Land Contracts
(not Foreclosure/REO/Repurchase
Collateral) $_______________
(g) for all Eligible Mortgage Securities $_______________
(h) for all other Eligible Mortgage Loans
(regular Seasoned Warehouse Loans
and Mortgage Securities): $_______________
Total
$
================
IN WITNESS WHEREOF, the undersigned has executed this Seasoned Warehouse
Collateral Certificate this ___ day of ________, 199__.
MCA FINANCIAL CORP.
By:________________________
Name:______________________
Chief Financial Officer
2
<PAGE> 150
EXHIBIT I
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Agreement is entered into effective as of ______________ between
_________________ ("ASSIGNOR") and ___________________________________
("ASSIGNEE").
MCA FINANCIAL CORP., a Michigan corporation, MCA MORTGAGE CORPORATION, a
Michigan corporation, MORTGAGE CORPORATION OF AMERICA, a Michigan corporation
and MORTGAGE CORPORATION OF AMERICA, INC. (the "COMPANIES"), certain lenders
(the "SEASONED WAREHOUSE LENDERS") and TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as agent for the Seasoned Warehouse Lenders (the "SEASONED WAREHOUSE AGENT"),
are parties to the 10/97 Senior Secured Seasoned Warehouse Credit Agreement
dated as of October 31, 1997 (as supplemented, amended or restated, the
"WAREHOUSE CREDIT AGREEMENT"), all of the defined terms in which have the same
meanings when used, unless otherwise defined, in this Agreement. This Agreement
is entered into as required by SECTION 14.17(b) of the Warehouse Credit
Agreement and is not effective unless the conditions of that Section of the
Warehouse Credit Agreement are satisfied and this Agreement is consented to by
the Borrowers and the Seasoned Warehouse Agent (pursuant to the provisions of
the Warehouse Credit Agreement, the consent of Mortgage Corporation of America,
Inc. is not required).
ACCORDINGLY, for adequate and sufficient consideration, Assignor and
Assignee agree as follows:
1. ASSIGNMENT AND ASSUMPTION. By this Agreement, and effective as of
_____________________, 199__, (the "ASSIGNMENT EFFECTIVE DATE"), Assignor sells
and assigns to Assignee (without recourse to Assignor) and Assignee purchases
and assumes from Assignor a _____% interest (the "ASSIGNED INTEREST") in and to
all of Assignor's rights and obligations under the Warehouse Credit Agreement
(except any rights and obligations pertaining to Assignor's role as Seasoned
Warehouse Agent, if applicable) as of the Assignment Effective Date, including,
without limitation, the Assigned Interest in (a) Assignor's Commitment as of the
Assignment Effective Date, (b) Notes held by Assignor as of the Assignment
Effective Date, (c) all principal Debt owed to Assignor on the Assignment
Effective Date, (d) all interest accruing in respect of the Assigned Interest
after the Assignment Effective Date, and (e) all Facility Fees accruing in
respect of the Assigned Interest under SECTION 6.6) of the Warehouse Credit
Agreement after the Assignment Effective Date.
2. ASSIGNOR PROVISIONS. Assignor (a) represents and warrants to Assignee
that as of the Assignment Effective Date (i) $________________ is outstanding
(without reduction for any assignments that have not yet become effective) under
the Warehouse Credit Agreement, (ii) Assignor is the legal and beneficial owner
of the Assigned Interest, which is free and clear of any adverse claim, and
(iii) Assignor has not yet been notified of an existing Default or Event of
Default, and (b) makes no representation or warranty to Assignee and assumes no
responsibility to Assignee
<PAGE> 151
with respect to (i) any statements, warranties, or representations made in or
in connection with any Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency, or value of any Loan Document, or
(iii) the financial condition of any Company or the performance or observance
by any Company of any of its obligations under any Loan Document.
3. ASSIGNEE PROVISIONS. Assignee (a) represents and warrants to
Assignor, the Companies, the Seasoned Warehouse Agent and the Seasoned Warehouse
Lenders that Assignee is legally authorized to enter into this Agreement, (b)
confirms that it has received a copy of the Warehouse Credit Agreement, copies
of the Companies' current Financial Statements and such other documents and
information as it deems appropriate to make its own credit analysis and decision
to enter into this Agreement, (c) agrees with Assignor, the Companies, the
Seasoned Warehouse Agent and the Seasoned Warehouse Lenders that Assignee shall,
independently and without reliance upon Seasoned Warehouse Agent, Seasoned
Warehouse Agent, Assignor, or any other Lender, and based on such documents and
information as Assignee deems appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Seasoned Warehouse
Loan Documents, (d) appoints and authorizes Seasoned Warehouse Agent to take
such action as agent on its behalf and to exercise such powers under the
Seasoned Warehouse Loan Documents as are delegated to Seasoned Warehouse Agent
by the terms of the Seasoned Warehouse Loan Documents and all other reasonably
incidental powers, (e) agrees with Assignor, the Companies, the Seasoned
Warehouse Agent and the Seasoned Warehouse Lenders that Assignee shall perform
and comply with all provisions of the Seasoned Warehouse Loan Documents
applicable to the Seasoned Warehouse Lenders in accordance with their respective
terms and (f) if Assignee is not organized under the Laws of the United States
of America or one of its states, it hereby makes the representations and
warranties to Assignor, the Companies, the Seasoned Warehouse Agent and the
Seasoned Warehouse Lenders that are set forth in SECTION 14.17(c) of the
Warehouse Credit Agreement and agrees to be bound by the terms of that Section.
4. WAREHOUSE CREDIT AGREEMENT AND COMMITMENTS. From and after the
Assignment Effective Date (a) Assignee shall be a party to the Warehouse Credit
Agreement and (to the extent provided in this Agreement) have the rights and
obligations of a Lender under the Seasoned Warehouse Loan Documents and (b)
Assignor shall (to the extent provided in this Agreement) relinquish its rights
- -- excluding, however, its rights to recover costs, be reimbursed for expenses
and be indemnified under SECTIONS 2.3, 6.3 and 15 of the Warehouse Credit
Agreement, none of which is Assignor releasing) and be released from its
obligations under the Seasoned Warehouse Loan Documents. On the Assignment
Effective Date, after giving effect to this and certain other assignment and
assumption agreements that become effective on the Assignment Effective Date,
but without giving effect to any other assignments that have not yet become
effective, Assignor's Committed Sum and Assignee's Committed Sum will be as
follows:
2
<PAGE> 152
LENDER COMMITTED SUM
Assignor $
Assignee $
5. NOTES. Assignor and Assignee request Companies to issue new Notes to
Assignor and Assignee in the amounts of their respective Committed Sums under
PARAGRAPH 4 above and otherwise issued in accordance with the Warehouse Credit
Agreement. Upon delivery of those Notes, Assignor shall return to Companies all
Notes previously delivered to Assignor under the Warehouse Credit Agreement.
6. PAYMENTS AND ADJUSTMENTS. From and after the Assignment Effective
Date, Seasoned Warehouse Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to Assignee. Assignor and Assignee shall make all appropriate
adjustments in payments for periods before the Assignment Effective Date by
Seasoned Warehouse Agent or with respect to the making of this assignment
directly between themselves. Assignor and Assignee agree to share any payments
and proceeds received by either of them with respect to the Obligations ratably
between them in accordance with the provisions and intent of this Agreement.
7. CONDITIONS PRECEDENT. PARAGRAPHS 1 through 6 above are not effective
until (i) counterparts of this Agreement are executed and delivered by Assignor
and Assignee to, and are executed in the spaces below by, Companies and Seasoned
Warehouse Agent, and (ii) Assignor, Assignee, Companies, and Seasoned Warehouse
Agent comply with each of the requirements of SECTION 14.17(b) of the Warehouse
Credit Agreement.
8. INCORPORATED PROVISIONS. Although this Agreement is not a Loan
Document, the provisions of SECTIONS 1 and 16 of the Warehouse Credit Agreement
applicable to Seasoned Warehouse Loan Documents are incorporated into this
Agreement by reference, the same as if this Agreement were a Loan Document and
those provisions were set forth in this Agreement verbatim.
9. COMMUNICATIONS. For purposes of SECTION 16.14 of the Warehouse Credit
Agreement, Assignee's address, telephone number and fax number, until changed
under that Section, are set out under its signature below.
10. AMENDMENTS, ETC. No amendment, waiver, or discharge to or under this
Agreement is valid unless it is in writing, signed by the party against whom it
is sought to be enforced, and is otherwise in conformity with the requirements
of the Warehouse Credit Agreement.
11. ENTIRETY. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN
ASSIGNOR AND ASSIGNEE ABOUT ITS SUBJECT MATTER AND MAY
3
<PAGE> 153
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF ASSIGNOR AND ASSIGNEE. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN ASSIGNOR AND ASSIGNEE.
12. PARTIES. This Agreement binds and benefits Assignor, Assignee and
their respective successors and assigns that are permitted under the Warehouse
Credit Agreement.
EXECUTED as of _________ __, 199_, but effective as of the date first
stated above.
_________________________, as Assignor _________________________, as
Assignee
By______________________ By________________________________
(Name)__________________ (Name)____________________________
(Title)_________________ (Title)___________________________
(Address) ______________________
______________________
______________________
Attn:_________________
(Phone No.) (___) ___-____________
(Fax No.) (___) ___-____________
As of the Assignment Effective Date, the Borrowers and the Seasoned
Warehouse Agent consent to this Agreement and the transactions contemplated in
it.
MCA FINANCIAL CORP., TEXAS COMMERCE BANK NATIONAL
MCA MORTGAGE CORPORATION ASSOCIATION, as the Seasoned Warehouse
Agent and MORTGAGE CORPORATION
OF AMERICA, as the Borrowers
By__________________________ By_______________________________________
(Name)______________________ Pamela E. Skinner, Vice President
(1)(Title)__________________
____________________
(1) Must be a Responsible Officer of all four Companies.
4
<PAGE> 154
EXHIBIT J
[ NUMBER ] AMENDMENT TO WAREHOUSE CREDIT AGREEMENT
THIS AMENDMENT is entered into as of _________________________, 199___,
between MCA FINANCIAL CORP., a Michigan corporation, MCA MORTGAGE CORP., a
Michigan corporation, MORTGAGE CORPORATION OF AMERICA, a Michigan corporation,
and MORTGAGE CORPORATION OF AMERICA, INC., an Ohio corporation (the
"COMPANIES"), certain lenders (the "SEASONED WAREHOUSE LENDERS") and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION (in its capacity as Seasoned Warehouse Agent
for Seasoned Warehouse Lenders, the "SEASONED WAREHOUSE AGENT").
The Companies, the Seasoned Warehouse Agent and the Seasoned Warehouse
Lenders are parties to the 10/97 Senior Secured Seasoned Warehouse Credit
Agreement dated as of October 31, 1997 (as supplemented, amended or restated,
the "WAREHOUSE CREDIT AGREEMENT"), providing for loans to Companies on a
revolving basis. The Companies have requested an amendment to the Warehouse
Credit Agreement in order to, among other things, [STATE PURPOSE OF
AMENDMENT]. Accordingly, for adequate and sufficient consideration, the
parties to this amendment agree as follows:
1. DEFINITIONS. Unless stated otherwise, (a) each term defined in the
Warehouse Credit Agreement has the same meaning when used in this amendment and
(b) all references to "Sections", "Schedules", and "Exhibits" are references to
the Warehouse Credit Agreement's sections, schedules and exhibits.
2. AMENDMENTS.
[INSERT AMENDMENTS]
3. CONDITIONS PRECEDENT. The foregoing shall not be effective unless (a)
the Seasoned Warehouse Agent shall have received counterparts of this amendment
executed by the Companies, the Seasoned Warehouse Agent and the Seasoned
Warehouse Lenders, and (b) [STATE OTHER CONDITIONS PRECEDENT].
4. RATIFICATIONS. This amendment modifies and supersedes all inconsistent
terms and provisions of the other Seasoned Warehouse Loan Documents. Except as
expressly modified and superseded by this amendment, the terms and provisions of
the other Seasoned Warehouse Loan Documents are ratified and confirmed and
continue in full force and effect. The Companies, the Seasoned Warehouse Agent
and all Seasoned Warehouse Lenders agree that the Seasoned Warehouse Loan
Documents, as amended by this amendment, continue to be legal, valid and binding
and enforceable in accordance with their respective terms. The Companies ratify
and confirm that all Liens granted to the Seasoned Warehouse Agent (as agent and
Representative of the Seasoned
<PAGE> 155
Warehouse Lenders) were intended to, do, and continue to secure the full payment
and performance of the Obligations. The Companies shall perform such acts and
duly authorize, execute, acknowledge, deliver, file and record such additional
documents as the Seasoned Warehouse Agent or any Seasoned Warehouse Lender may
reasonably request in order to perfect such Liens and preserve and protect the
rights of the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders in
respect of all present and future Collateral.
5. GRANT OF SECURITY INTEREST. The Companies hereby GRANT to the
Seasoned Warehouse Agent, as agent and Representative of the Seasoned Warehouse
Lenders, a security interest in the Collateral, and hereby ratify and reconfirm
the grant of a security interest therein made by the Seasoned Warehouse Security
Agreement.
6. REPRESENTATIONS AND WARRANTIES. The Companies represent and warrant
to the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders that (a) the
Companies have all requisite power and authority to execute, deliver and keep,
observe and perform their respective obligations under this amendment and the
other Seasoned Warehouse Loan Documents, (b) this amendment and the other
Seasoned Warehouse Loan Documents to be delivered under this amendment have been
duly authorized, executed, and delivered by the Companies, (c) no action of, or
filing with, any Tribunal is required to authorize, or is otherwise required in
connection with, the execution, delivery and performance by the Companies of
this amendment and those other Seasoned Warehouse Loan Documents, (d) this
amendment and those other Seasoned Warehouse Loan Documents are valid and
binding upon the Companies and are enforceable against the Companies in
accordance with their respective terms, except as limited by the Bankruptcy Code
and all other similar Laws affecting the rights of creditors generally, (e) the
execution, delivery, and performance by the Companies of this amendment and
those other Seasoned Warehouse Loan Documents do not require the consent of any
other Person and do not and will not constitute a violation of any Laws,
agreements or understandings to which any of the Companies is a party or by
which any Company is bound, (f) the representations and warranties in the
Warehouse Credit Agreement, as amended by this amendment, and each other
Warehouse Loan Document are true and correct in all material respects on and as
of the date of this amendment as though made as of the date of this amendment
and (g) as of the date of this amendment, and after giving effect to this
amendment, no Default or Event of Default exists.
7. REFERENCES. All references in the Seasoned Warehouse Loan Documents
to the "Credit Agreement" or the "Warehouse Credit Agreement" refer to the
Warehouse Credit Agreement as amended by this amendment. Because this amendment
is a "Warehouse Loan Document" referred to in the Warehouse Credit Agreement,
the provisions relating to Seasoned Warehouse Loan Documents in SECTIONS 1 and
16.20 of the Credit Agreement are incorporated into this amendment by reference
the same as if included in this amendment verbatim.
8. COUNTERPARTS. This amendment may be executed in any number of
counterparts with the same effect as if all signatories had signed the same
document, and all of those counterparts must
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<PAGE> 156
be construed together to constitute one and the same document; but in making
proof of this amendment, it shall not be necessary to produce or account for
more than one such counterpart.
9. PARTIES BOUND. This amendment shall bind and benefit the Companies,
the Seasoned Warehouse Agent, each Seasoned Warehouse Lender and (subject to
SECTION 16.11 of the Warehouse Credit Agreement) their respective successors and
assigns.
10. ENTIRETY. THIS AMENDMENT, THE CREDIT AGREEMENT AS AMENDED BY IT AND
THE OTHER SEASONED WAREHOUSE LOAN DOCUMENTS TOGETHER CONSTITUTE A WRITTEN LOAN
AGREEMENT WHICH 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.
Executed on ________________, effective as of the date first stated
above.
MCA FINANCIAL CORP, TEXAS COMMERCE BANK NATIONAL
MCA MORTGAGE CORPORATION, ASSOCIATION, as Seasoned Warehouse Agent
MORTGAGE CORPORATION OF and
AMERICA AND MORTGAGE a Seasoned Warehouse Lender
CORPORATION OF AMERICA, INC., By_________________________________
as the Companies (Name)_____________________________
(Title)____________________________
By_________________________________
(Name)_____________________________
(Title)____________________________
RESIDENTIAL FUNDING CORPORATION, GUARANTY FEDERAL BANK, F.S.B.,
as a Seasoned Warehouse Lender as a Seasoned Warehouse Lender
By_________________________________ By__________________________________
(Name)_____________________________ (Name)______________________________
(Title)____________________________ (Title)_____________________________
Unnumbered signature page to
__Amendment to Warehouse Credit Agreement
<PAGE> 157
BANK ONE, TEXAS, N.A., THE BANK OF NEW YORK,
as a Seasoned Warehouse Lender as a Seasoned Warehouse Lender
By_________________________________ By______________________________
(Name)_____________________________ (Name)__________________________
(Title)____________________________ (Title)_________________________
LASALLE NATIONAL BANK,
as a Seasoned Warehouse Lender
By_________________________________
(Name)_____________________________
(Title)____________________________
Unnumbered signature page to
____ Amendment to Warehouse Credit Agreement
<PAGE> 158
SCHEDULE AG
APPLICABLE GUIDELINES
<PAGE> 159
SCHEDULE AI
APPROVED INVESTORS
<TABLE>
<S> <C>
Aames Capital APPROVED BUT INACTIVE INVESTORS:
Access
AccuBanc Advanta broker div.
Advanta Conduit Capstead
Amresco ContiMortgage
Bank One EquiCredit
Bank of Boston HTP Financial
Chase Financial Liberty Lending
Chase Securities Beneficial
CityScape First Federal of Woost.
Countrywide Paxton Capital
Delta Funding Portfolio Acceptance
Express Mortgage Washtenaw Mortgage
First Colony
First Finance
First Plus Financial
First Union
Flagstar
GE Capital
Green Tree Financial
Independent National
Industry (IMC)
Interfirst
The Money Store
Mortgage Corp. of America
MorEquity
National Lending
North American
Option One
Preferred Financial
Saxon Mortgage
Sterling Bank & Trust
Unicor
Walsh Securities
</TABLE>
<PAGE> 160
SCHEDULE BB
BORROWING BASE SCHEDULE
BORROWING BASE CALCULATIONS
A. BORROWING BASE means the sum of the Collateral Values determined as set
forth below for each item in the following groupings of collateral types:
1. For each Eligible Mortgage Loan (not Foreclosure/REO/Repurchase
Collateral), the lesser of (x) one hundred percent (100%) of the
lesser of (i) its face amount less discounts (the net amount funded by
the Companies with respect thereto) and (ii) its unpaid principal
balance, or (y) at the election of the Seasoned Warehouse Agent or
Majority Seasoned Warehouse Lenders at any time, ninety-eight percent
(98%) of its Market Value;
2. For each Eligible Land Contract, eighty-seven and one-half percent
(87 1/2%) of the least of (i) the appraised value of the subject
property, (ii) the unpaid principal balance of the contract purchase
price and (iii) the actual amount funded by the Companies with respect
to such Eligible Land Contract, or (iii) at the election of the
Seasoned Warehouse Agent or Majority Seasoned Warehouse Lenders at any
time, Market Value;
3. For each Eligible Repurchased Loan, eighty-five percent (85%) of the
least of (i) the face amount of the underlying promissory note, (ii)
its unpaid principal balance and (iii) the net amount funded by the
Companies with respect to its repurchase, or (iv) at the election of
the Seasoned Warehouse Agent or Majority Seasoned Warehouse Lenders at
any time, Market Value;
4. For each item of Eligible REO, eighty-five percent (85%) of the least
of (i) the appraised value of the REO and its existing improvements,
or (ii) the face amount of the Mortgage foreclosed pursuant to which
foreclosure the relevant Company became owner of the REO or (iii) at
the election of Agent or Majority Seasoned Warehouse Lenders at any
time, Market Value;
5. For each Eligible Foreclosure Loan, eighty-five percent (85%) of the
least of (i) the face amount of the underlying promissory note and
(ii) its unpaid principal balance, or (iii) at the election of the
Seasoned Warehouse Agent or Majority Seasoned Warehouse Lenders at any
time, Market Value.
6. For each Eligible Mortgage Security, eighty-five percent (85%) of the
least of (i) its face principal amount and (ii) its unpaid principal
balance, or (iii) at the election of
<PAGE> 161
the Seasoned Warehouse Agent or Majority Seasoned Warehouse Lenders at
any time, its Market Value.
2
<PAGE> 162
SCHEDULE CP
COLLATERAL PROCEDURES
B. MORTGAGE LOAN. Delivery of a Mortgage Loan for inclusion in the Borrowing
Base (including a Foreclosure Loan or a Repurchased Loan) requires delivery
to the Custodian of the following Collateral Papers, each of which must be
in form and substance satisfactory to the Seasoned Warehouse Agent, in the
following manner:
1. A Submission List that, among other things, identifies the
documents being delivered to the Custodian for that Borrowing.
2. The original promissory note evidencing that Mortgage Loan properly
payable or endorsed to the appropriate Company, and endorsed in blank
by that Company.
3. An assignment from that Company of the mortgage, deed of trust, or
trust deed securing that Mortgage Loan, executed in blank by that
Company, and in recordable form.
4. A copy of each intervening assignment to that Company of that
mortgage, deed of trust, or trust deed certified in a Certifying
Officer's Certificate furnished to the Agent as being either (i) a
true and correct copy of the original recorded in the jurisdiction
where the property is located or (ii) a true and correct copy of the
original that has been sent for recording in such jurisdiction.
5. A copy of that original mortgage, deed of trust, or trust deed
certified in a Certifying Officer's Certificate furnished to the Agent
as being a true and correct copy of the original and that the original
has been sent for recording in the jurisdiction where the property is
located.
6. A data processing printout reflecting that Mortgage Loan's loan
number, mortgagor, origination date, original amount, outstanding
principal balance, interest rate, type of loan and requested advance
amount.
7. Any and all other files, documents, instruments, certificates,
correspondence or other records that are requested by the Seasoned
Warehouse Agent or the Custodian.
C. MORTGAGE SECURITY. Delivery of a Mortgage Security for inclusion in the
Borrowing Base requires delivery to the Custodian of the following
Collateral Papers, each of which must be in form and substance satisfactory
to Seasoned Warehouse Agent, in the following manner:
1. A Submission List that, among other things, identifies the documents
being delivered to the Custodian.
<PAGE> 163
2. For a Mortgage Security that is not in book entry form:
(a) The original Mortgage Security.
(b) An updated bond power endorsed, or another appropriate
instrument of assignment executed by the appropriate Company
in blank.
3. For a Mortgage Security that is in book entry form,
confirmation of either:
(a) The appropriate entry (i) in the records of a
Federal Reserve Bank of the nominal ownership by Seasoned
Warehouse Agent (as agent and Representative of Seasoned
Warehouse Lenders) of any FNMA Mortgage Security that
constitutes a "FNMA BOOK ENTRY SECURITY", as defined in the
Book Entry Procedures for FNMA Securities, 24 C.F.R.
Sections 81.41-81.49 (the "FNMA BOOK ENTRY PROCEDURES"),
or a FHLMC Mortgage Security that constitutes a "FHLMC
BOOK ENTRY SECURITY," as defined in the Federal Home Loan
Mortgage Corporation Book Entry Regulations, 1 C.F.R.
Sections 462.1-462.8 (the "FHLMC BOOK ENTRY REGULATIONS"),
and (ii) by Seasoned Warehouse Agent in its records of the
appropriate Company's ownership of that book entry Mortgage
Security subject to a Lender Lien; or
(b) The (i) appropriate entry by The Chase Manhattan Bank, in
its capacity as custodian for Participants Trust Company
("PTC"), GNMA's central depositary, in its records of the
nominal ownership by Seasoned Warehouse Agent (as agent and
Representative of Seasoned Warehouse Lenders) of any
GNMA-guaranteed Mortgage Security, (ii) the appropriate
entry by Seasoned Warehouse Agent in its records of the
appropriate Company's ownership of that book entry Mortgage
Security subject to a Lender Lien and (iii) receipt by
Seasoned Warehouse Agent of a confirmation of transaction in
the form of a written advice specifying the amount and
description of that book entry Mortgage Security subject to
that Lien.
D. LAND CONTRACT. Delivery of a Land Contract for inclusion in the Borrowing
Base requires delivery to the Custodian of the following Collateral Papers,
each of which must be in form and substance satisfactory to Seasoned
Warehouse Agent, in the following manner:
1. A Submission List that, among other things, identifies the documents
being delivered to Custodian for that Land Contracts Borrowing.
2. A certified copy of the original Land Contract.
2
<PAGE> 164
3. An original assignment of the Land Contract executed by the relevant
Company and in recordable form (including any notary acknowledgment
required for recordation), assigning the seller's right, title and
interest in and to that Land Contract in blank.
4. A copy of a deed or quitclaim showing the relevant Company to be
owner of the underlying real property.
5. A data processing printout reflecting that Land Contract's contract
number, purchaser's name, origination date, original amount,
outstanding principal balance, interest rate and requested advance
amount.
6. Any and all other files, documents, instruments, certificates,
correspondence or other records that are requested by Seasoned
Warehouse Agent.
E. REO. Delivery of REO for inclusion in the Borrowing Base requires delivery
to the Seasoned Warehouse Agent of the following Collateral Papers, each of
which must be in form and substance satisfactory to the Seasoned Warehouse
Agent, in the following manner:
1. A Submission List that, among other things, identifies the
documents being delivered to the Custodian for that Borrowing and
identifies the REO and any and all related claims and receivables held
or to be held by the relevant Company under or in respect of any VA
mortgage guaranty or FHA or private mortgage insurance as Collateral.
2. A data processing printout reflecting the loan number, mortgagor,
origination date, original amount and date of foreclosure of the
foreclosed Mortgage Loan that produced the REO.
3. A certified copy of the original recorded mortgage, deed of trust,
or trust deed covering the REO and securing the foreclosed Mortgage
Loan that produced the REO.
4. A certified copy of the trustee's or sheriff's deed conveying the
REO to the relevant Company following foreclosure.
5. A certified copy of any VA guaranty or commitment to guarantee, FHA
insurance certificate or commitment to insure or private mortgage
insurance certificate or commitment to insure, such foreclosed
Mortgage Loan.
6. A statement of the amount of the relevant Company's claim, if any,
against VA, FHA or a private mortgage insurer in respect of such
foreclosed Mortgage Loan.
7. A copy of a current real estate broker's opinion of value of such
REO.
3
<PAGE> 165
8. A copy of a current certificate of casualty insurance coverage of
the improvements to such REO.
The certification of each such certified copy shall be manually signed
by a duly authorized officer or representative of the Person certifying such
document's authenticity as a true copy of the original unless the certification
is by a governmental entity for whose certification applicable Laws, rules,
regulations or orders of -- or applicable to -- such governmental authority make
such a manual signature unnecessary.
4
<PAGE> 166
SCHEDULE EC
ELIGIBILITY CONDITIONS
1. ELIGIBLE SEASONED LOAN means and includes any:
(a) Mortgage Loan for which the Collateral Agent has received the
Collateral Papers and that is an Eligible Mortgage Loan;
(b) Mortgage Security that is an Eligible Mortgage Security;
(c) Mortgage Loan for which the Collateral Agent has received the
Collateral Papers and that is an Eligible Repurchased Loan;
(d) Land Contract for which the Collateral Agent has received the
Collateral Papers and that is an Eligible Land Contract;
(e) Foreclosure Loan for which the Collateral Agent has received the
Collateral Papers and that is a Mortgage Loan owned by one of the
Borrowers and that is in the process of being foreclosed; and
(f) REO owned by one of the Companies as a result of foreclosure or a
deed in lieu of foreclosure of a Mortgage Loan owned by such
Borrower, together with all VA mortgage guaranty, FHA mortgage
insurance or private mortgage insurance claims and receivables in
respect thereto and (i) on the claim under the VA mortgage
guaranty, FHA mortgage insurance or private mortgage insurance
recoverable in respect of which the Seasoned Warehouse Agent is
-- and since the initial filing of such claim has continuously
been -- named as mortgage holder and claim payee and (ii) for
which the Collateral Agent has received the Collateral Papers.
2. ELIGIBLE MORTGAGE LOAN means a Mortgage Loan:
(a) The promissory note evidencing which (i) is the standard form
approved by VA, FHA, FNMA, or FHLMC or a form otherwise
acceptable to Collateral Agent, (ii) has a maturity within 30
years of its origination, (iii) is payable or endorsed (without
restriction or limitation) to a Company's order, (iv) is endorsed
in blank by that Company, (v) is fully funded, and (vi) is valid
and enforceable without offset, counterclaim, defense, or right
of rescission or avoidance of any kind other than for valid
payments made on it and any exceptions to enforceability under
Debtor Laws.
<PAGE> 167
(b) For which no foreclosure or other similar proceedings have
commenced, and no claim for any credit, allowance, or adjustment
exists, and for which no default in the payment of principal or
interest or any other default has continued uncured for sixty
(60) calendar days.
(c) That is secured by a mortgage, deed of trust, or trust deed
that (i) is the standard form approved by VA, FHA, FNMA, or FHLMC
or a form otherwise acceptable to the Seasoned Warehouse Agent
and (ii) grants a first priority Lien on residential real
property described below that will be perfected upon recording.
(d) For which the underlying residential real property (1) consists
of land and (i) a one-to-four-family dwelling, (ii) a condominium
unit, or (iii) a manufactured home unit, but not (iv) a mobile
home, a co-op, or a multi-family dwelling for more than four
families, (2) is, if required by Appraisal Laws, covered by an
Appraisal, and (3) is insured against loss or damage by fire and
all other hazards normally included in standard extended coverage
insurance (including flood insurance if the property is in a
federally designated flood plain) in accordance with the
Collateral Papers for it, and the appropriate Company is named as
a loss- payee for that insurance.
(e) The Collateral Papers for which (i) have been delivered to the
Seasoned Warehouse Agent, (ii) are in compliance with all laws,
(iii) are otherwise in compliance with the requirements of the
Loan Documents and otherwise in form and substance acceptable to
the Seasoned Warehouse Agent, and (iv) are subject to Lender
Liens.
(f) That has not, and no Collateral Paper for which has, been (i)
delivered to an investor or any Person for more than the Shipping
Period, or (ii) delivered to any Borrower for correction for more
than the Correction Period.
(g) That is (i) not an Eligible Repurchased Loan and (ii) not
subject to a repurchase agreement.
3. ELIGIBLE MORTGAGE SECURITY means a Mortgage Security:
(a) That is valid and enforceable without offset, counterclaim,
defense, or right of rescission or avoidance of any kind.
(b) That is guaranteed or issued by either (i) FNMA, FHLMC, or GNMA
or (ii) any other Person if (1) Companies first obtain Majority
Seasoned Warehouse Lenders' written approval in their sole
discretion and (2) that other Person
2
<PAGE> 168
has not later been rejected by Majority Seasoned Warehouse
Lenders in their sole discretion.
(c) Under which no default exists.
(d) The Collateral Papers for which (i) have been delivered to
Custodian, (ii) are in compliance with all Laws, (iii) are
otherwise in form and substance acceptable to Seasoned Warehouse
Agent, and (iv) are subject to Lender Liens.
4. ELIGIBLE REPURCHASED LOAN means a Mortgage Loan:
(a) That has been repurchased by a Company from an investor, or out
of a Mortgage Pool, including one on which Mortgage Securities
are based, pursuant to such Company's obligation or right to do
so as Servicer of that Mortgage Loan.
(b) That is an FHA Loan, VA Loan, Jumbo Loan or other Mortgage Loan
that complies with all applicable requirements for purchase under
the FHLMC Guide or the FNMA Guide or is a Subprime Mortgage Loan.
(c) The promissory note evidencing which (i) is the standard form
approved by VA, FHA, FNMA, or FHLMC or a form otherwise
acceptable to Seasoned Warehouse Agent, (ii) has a maturity
within 30 years of its origination, (iii) is payable or endorsed
(without restriction or limitation) to a Company's order, (iv) is
endorsed in blank by that Company, (v) is fully funded, and (vi)
is valid and enforceable without offset, counterclaim, defense,
or right of rescission or avoidance of any kind other than for
valid payments made on it and any exceptions to enforceability
under Debtor Laws.
(d) For which no claim for any credit, allowance, or adjustment
exists.
(e) That is secured by a mortgage, deed of trust, or trust deed that
(a) is the standard form approved by VA, FHA, FNMA, or FHLMC or a
form otherwise acceptable to the Seasoned Warehouse Agent and (b)
grants a first priority Lien on residential real property
described below that has been or will be perfected upon
recording.
(f) For which the underlying residential real property (a) consists
of land and (i) a one-to-four-family dwelling, (ii) a condominium
unit, or (iii) a manufactured home unit, but not (iv) a mobile
home, a co-op, or a multi-family dwelling for more than four
families, (b) is, if required by Appraisal Laws, covered by an
Appraisal, and (c) is insured against loss or damage by
3
<PAGE> 169
fire and all other hazards normally included in standard
extended coverage insurance (including flood insurance if
the property is in a federally designated flood plain) in
accordance with the Collateral Papers for it, and the
appropriate Company is named as a loss-payee for that
insurance.
(g) The Collateral Papers for which (a) are in compliance
with all Laws, (b) are otherwise in compliance with the
requirements of the Seasoned Warehouse Loan Documents and
otherwise in form and substance acceptable to the Seasoned
Warehouse Agent, and (c) are subject to Lender Liens.
(h) That has not, and no Collateral Paper for which has, been
(a) delivered to an investor or any Person for more than the
Shipping Period, or (b) delivered to any Company for
correction or servicing for more than the Correction Period.
(i) That is not subject to a repurchase agreement.
5. ELIGIBLE FORECLOSURE LOAN means a Mortgage Loan that would be an
Eligible Mortgage Loan except that the relevant Company has
commenced foreclosure proceedings.
6. ELIGIBLE REO means improved residential real property formerly
comprising the subject matter of and security for a Mortgage Loan
owned by one of the Companies, fee simple title to which real
property has been acquired by the relevant Company through
foreclosure or deed in lieu of foreclosure, and which the Company
is using reasonable and diligent efforts to liquidate.
7. ELIGIBLE LAND CONTRACT means a Land Contract:
(a) Which (a) is in form acceptable to Seasoned Warehouse Agent,
(b) has a maturity within twenty (20) years of its
origination, (c) has a Company as the original "Seller" or
is properly assigned (without restriction or limitation) to
a Company and is collaterally assigned to the Seasoned
Warehouse Agent (as agent and Representative of the Seasoned
Warehouse Lenders), (d) is fully funded, and (f) is valid
and enforceable without offset, counterclaim, defense or
right of recision or avoidance of any kind other than for
valid payments made on it and any exceptions to
enforceability under Debtor Laws.
(b) For which no default in the payment of principal or interest
or any other default has continued uncured for sixty (60)
calendar days, no foreclosure or other similar proceedings
have commenced, and no claim for any credit, allowance or
adjustment exists.
4
<PAGE> 170
(c) For which the underlying residential real property (a)
consists of land and (i) a one-to-four family dwelling, (ii)
a condominium unit or (iii) a manufactured home unit, but
not (iv) a mobile home, a co-op, or a multi-family dwelling
for more than four families, (b) is, if required by
Appraisal Laws, covered by an Appraisal, and (c) is insured
against loss or damage by fire and all other hazards
normally included in standard extended coverage insurance
(including without limitation, flood insurance if the
property is in a federally designated flood plain) in
accordance with the Collateral Papers for it, and the
appropriate Company is named as a loss payee for that
insurance.
(d) The Collateral Papers for which (i) are in compliance with
all Laws, (ii) are otherwise in compliance with the
requirements of the Seasoned Warehouse Loan Documents and
otherwise in form and substance acceptable to the Seasoned
Warehouse Agent, and (iii) are subject to Lender Liens.
(e) That has not, and no Collateral Paper for which has, been
(i) sold to an investor and repurchased by any Company, (ii)
rejected by an investor, (iii) delivered to an investor or
any Person for more than the Shipping Period, or (iv)
delivered to any Company for correction or servicing for
more than the Correction Period.
(f) That is not subject to a repurchase agreement.
5
<PAGE> 171
SCHEDULE LC
LENDERS AND COMMITMENTS
<TABLE>
<CAPTION>
LENDER SEASONED WAREHOUSE LINE COMMITMENT
- ------------------------------------------------------------------------------------------------------------
<S> <C>
Texas Commerce Bank National Association $25,000,000
712 Main Street
Houston, Texas 77002
Attn: Pamela E. Skinner, Vice President
Fed. Tax I.D. No. 74-0800980
Phone: (713) 216-5382
Fax: (713) 216-2082
(Wire Instructions)
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
712 MAIN STREET
HOUSTON, TEXAS 77002
ABA # 1130-0060-9
NOTIFY: PAMELA E. SKINNER
FOR CREDIT ACCOUNT__________________,
ACCOUNT # 0010______________________
- ------------------------------------------------------------------------------------------------------------
TOTAL $25,000,000
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 172
SCHEDULE 2.3
TERMS OF COMPANIES' OBLIGATIONS TO PAY BORROWINGS BY OTHER COMPANIES
Each Company hereby agrees to the following terms with respect to
Borrowings by any Borrower and the other obligations of any other Company:
1. Each Company irrevocably, unconditionally and absolutely guarantees to
the Seasoned Warehouse Lenders the due and prompt payment, and not just the
collectibility, of the principal of, and interest, fees and late charges and all
other indebtedness, if any, on, the Borrowings by each other Company, and all
other obligations of such other Company to the Seasoned Warehouse Lenders and
the Seasoned Warehouse Agent, when due, whether at maturity, by acceleration or
otherwise all at the times and places and at the rates described in, and
otherwise according to the terms of the Seasoned Warehouse Notes and the
Seasoned Warehouse Credit Agreement, whether now existing or hereafter created
or arising.
2. Each Company further hereby irrevocably, unconditionally and absolutely
guarantees to the Seasoned Warehouse Lenders the due and prompt performance by
each other Company of all duties, agreements and obligations of such other
Company contained in the Seasoned Warehouse Credit Agreement, the Seasoned
Warehouse Notes and the other Seasoned Warehouse Loan Documents, and the due and
prompt payment of all costs and expenses incurred, including attorneys' fees,
court costs and all other litigation expenses (including expert witness fees,
exhibit preparation and courier, postage, communication and document copying
expenses), in enforcing the payment and performance of the Seasoned Warehouse
Credit Agreement and the other Seasoned Warehouse Loan Documents from such other
Company (the payment and performance of the items set forth in PARAGRAPHS 1 and
2 of this Schedule are collectively referred to as the "OTHER COMPANY DEBT").
3. In the event any other Company shall at any time fail to pay the
Seasoned Warehouse Lenders any Other Company Debt when due, whether by
acceleration or otherwise, each Company hereby promises to pay such amount to
the Seasoned Warehouse Lenders forthwith, together with all collection costs and
expenses, including attorneys' fees, court costs and all other litigation
expenses (including expert witness fees, exhibit preparation and courier,
postage, communication and document copying expenses) .
4. Each Company hereby (a) agrees to any modifications of any terms or
conditions of any Other Company Debt and/or to any extensions or renewals of
time of payment or performance by any other Company; (b) agrees that it shall
not be necessary for the Seasoned Warehouse Lenders or the Seasoned Warehouse
Agent to resort to legal remedies against any other Company, nor to take any
action against any other Person obligated (an "OBLIGOR") on or against any
Collateral or any other security for payment or performance of the Other Company
Debt before proceeding against such Company; (c) agrees that no release of any
other Company or any other guarantor or Obligor, or of any Collateral or other
security for the Other Company Debt, whether by operation of law or by any act
of the Seasoned Warehouse Agent or Seasoned Warehouse Lenders, with or without
notice to
<PAGE> 173
such Company, shall release such Company and (d) waives notice of demand,
dishonor, notice of dishonor, protest, and notice of protest and waive, to the
extent permitted by law, all benefit of valuation, appraisement, and exemptions
under the laws of the State of Texas or any other state or territory of the
United States.
5. The obligations of each Company for the Other Company Debt shall be
primary, absolute and unconditional, and shall remain in full force and effect
without regard to, and shall not be impaired or affected by: (a) the
genuineness, validity, regularity or enforceability of, or any amendment or
change in the Seasoned Warehouse Credit Agreement, any Seasoned Warehouse Note
or any other Seasoned Warehouse Loan Documents, or any change in or extension of
the manner, place or terms of payment of, all or any portion of the Other
Company Debt; (b) the taking or failure to take any action to enforce the
Seasoned Warehouse Credit Agreement, any Seasoned Warehouse Note or any other
Seasoned Warehouse Loan Documents, or the exercise or failure to exercise any
remedy, power or privilege contained therein or available at law or otherwise,
or the waiver by the Seasoned Warehouse Agent or any Seasoned Warehouse Lender
of any provisions of the Seasoned Warehouse Credit Agreement, any Seasoned
Warehouse Note or any other Seasoned Warehouse Loan Document; (c) any
impairment, modification, change, release or limitation in any manner of the
liability of any other Company or its estate in bankruptcy, or of any remedy for
the enforcement of any other Company's liability, resulting from the operation
of any present or future provision of the bankruptcy laws or any other statute
or regulation, or the dissolution, bankruptcy, insolvency, or reorganization of
any other Company; (d) the merger or consolidation of any other Company, or any
sale or transfer by any other Company of all or part of its assets or property;
(e) any claim such Company may have against any other Company or any other
Obligor, including any claim of contribution; (f) the release, in whole or in
part, of any other guarantor (if more than one), any other Company or any other
Obligor or (g) any other action or circumstance which (with or without notice to
or knowledge of such Company) might in any manner or to any extent vary the
risks of such Company or otherwise constitute a legal or equitable discharge or
defense, it being understood and agreed by each Company that its obligations for
the Other Company Debt shall not be discharged except by the full payment and
performance of the Other Company Debt.
6. The Seasoned Warehouse Agent shall have the right to
determine how, when and what application of payments and credits, if any,
whether derived from any Company or from any other source, shall be made on the
Obligations and any other indebtedness owed by any Company and/or any other
Obligor to the Lenders.
7. The obligations of each Company hereunder shall continue
to be effective, or be automatically reinstated, an the case may be, if at any
time the performance or the payment, an the case may be, in whole or in part, of
any of the Other Company Debt is rescinded or must otherwise be restored or
returned by any Lender (as a preference, fraudulent conveyance or otherwise)
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
any Company or any other person or upon or as a result of the appointment of a
custodian, receiver, trustee or other officer with similar powers with respect
to any Company or any other Person, or any substantial part of its property, or
otherwise, all as though such payments had not been made. If an Event of Default
shall
<PAGE> 174
at any time have occurred and be continuing or shall exist and declaration of
default or acceleration under or with respect to the Other Company Debt shall
at such time be prevented by reason of the pendency against any Company or any
other Person of a case or proceeding under a bankruptcy or insolvency law, each
Company agrees that its obligations for the Other Company Debt shall be deemed
to have been declared in default or accelerated with the same effect as if such
obligations had been declared in default and accelerated in accordance with
their respective terms and each Company shall forthwith perform or pay, as the
case may be, as required hereunder in accordance with the terms hereunder
without further notice or demand.
8. Each Company hereby irrevocably waives any claim or other rights that
it may now or hereafter acquire against any other Company that arises from the
existence, payment, performance or enforcement of such Company's obligations for
the Other Company Debt, including any right of subrogation, reimbursement,
exoneration or indemnification, any right to participate in any claim or remedy
of the Seasoned Warehouse Lenders or the Seasoned Warehouse Agent against the
other Company or any Collateral or other security that the Seasoned Warehouse
Agent or any Seasoned Warehouse Lender now has or hereafter acquires, whether or
not such claim, remedy or right arises in equity or under contract, statute or
common law, including the right to take or receive from the other Company
directly or indirectly, in cash or other property or by set-off or in any
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to any Company in violation of the preceding sentence and
the Other Company Debt shall not have been paid and performed in full, such
amount shall be deemed to have been paid to such Company for the benefit of, and
held in trust for, the Seasoned Warehouse Lenders and shall forthwith be paid to
the Seasoned Warehouse Agent (for distribution to the Seasoned Warehouse
Lenders) to be credited and applied to the Other Company Debt, whether matured
or unmatured. Notwithstanding the blanket waiver of subrogation rights as set
forth above, each Company hereby specifically acknowledges that any subrogation
rights which it may have against any other Company or any Collateral or other
security that the Seasoned Warehouse Lenders or any Seasoned Warehouse Agent now
has or hereafter acquires may be destroyed by a nonjudicial foreclosure of the
Collateral or other security. This may give such Company a defense to a
deficiency judgment against it. Such Company hereby irrevocably waives such
defense. Each Company acknowledges that it will receive direct and indirect
benefits from the arrangements contemplated by the Seasoned Warehouse Credit
Agreement and that the waivers set forth in this Schedule are knowingly made in
contemplation of such benefits.
9. No postponement or delay on the part of the Seasoned Warehouse Agent or
any Seasoned Warehouse Lender in the enforcement of any right with respect to
the Obligations of any Company, including the Other Company Debt, shall
constitute a waiver of such right and all rights of the Seasoned Warehouse
Lenders or the Seasoned Warehouse Agent hereunder shall be cumulative and not
alternative and shall be in addition to any other rights granted to the Seasoned
Warehouse Lenders and the Seasoned Warehouse Agent in any other agreement or by
law.
10. Any Debt of any Company now or hereafter held by any other Company is
hereby subordinated to the Obligations, and such Debt of any Company to such
other Company shall, if the Seasoned Warehouse Agent so requests, be collected,
enforced and received by the Company to
<PAGE> 175
which it is owed as trustee for the Seasoned Warehouse Lenders and their agent,
the Seasoned Warehouse Agent, and be paid over to the Seasoned Warehouse Agent
(for distribution to the Seasoned Warehouse Lenders) on account of the Debt of
the other Company to the Seasoned Warehouse Lenders.
<PAGE> 176
SCHEDULE 9.2(b)
MCA FINANCIAL CORP.
BORROWING BASE CERTIFICATE
The undersigned, ______________________, certifies to Texas Commerce
Bank National Association, as a lender and as agent (the "SEASONED WAREHOUSE
AGENT") for the other lenders party thereto under the 10/97 Senior Secured
Seasoned Warehouse Credit Agreement among MCA Financial Corp. ("MCAFC"), MCA
Mortgage Corporation and Mortgage Corporation of America (all Michigan
corporations) and Mortgage Corporation of America , Inc. (an Ohio corporation),
the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders dated October
31, 1997 (as supplemented, amended or restated from time to time, the
"WAREHOUSE CREDIT AGREEMENT"), and to the other lenders party thereto, that he
is the duly appointed Chief Financial Officer of MCA. Pursuant to SECTION
9.2(b) of the Warehouse Credit Agreement, the undersigned further certifies to
the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders as follows:
Capitalized terms used in the Warehouse Credit Agreement that are also used but
not defined differently in this certificate have the same meanings here as
there.
1. As of ____________, 19__, the aggregate unpaid principal amount of all
outstanding Seasoned Warehouse Revolving Loans was $________________.
2. As of _____________, 19___, the Aggregate Committed Sum was
$______________.
3. As of _____________, 19__, the Borrowing Base was $______________, with
its constituent portions calculated in accordance with SCHEDULE BB to
the Warehouse Credit Agreement as follows:
(a) Borrowing Base portion attributable to
Eligible Foreclosure Loans: $___________
(b) Borrowing Base portion attributable to
Eligible REO: $___________
(c) Borrowing Base portion attributable to
Eligible Repurchased Loans: $___________
(d) Borrowing Base portion attributable to
Eligible Foreclosure/REO/Repurchase
Collateral ((a)+(b)+(c): $___________
(e) Borrowing Base portion attributable to
other Eligible Mortgage Loans: $___________
<PAGE> 177
(f) Borrowing Base portion attributable to
Eligible Land Contracts: $_____________
(g) Borrowing Base portion attributable to
Eligible Mortgage Securities: $_____________
Total $_____________
4. As of ______________, 19__, the aggregate unpaid principal amount of
all outstanding Seasoned Warehouse Revolving Loans did not exceed the
lesser of the Aggregate Committed Sum or the Borrowing Base.
IN WITNESS WHEREOF, the undersigned has executed this Borrowing Base
Certificate this ____ day of _______________, 19__.
MCA FINANCIAL CORP.
By:______________________
Name:____________________
(1) Title:_______________
____________________
(1) Must be a Responsible Officer of MCAFC
<PAGE> 178
SCHEDULE 10.1
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.
VI. Mortgage Corporation of America, 500 Mortgage Corporation of
Inc. America
</TABLE>
<PAGE> 179
SCHEDULE 10.4
LITIGATION AND JUDGMENTS
None
<PAGE> 180
SCHEDULE 11.2(d)
MANAGEMENT REPORT
SEASONED WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199___
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
This report is delivered under the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 (as supplemented, amended or
restated, the "WAREHOUSE CREDIT AGREEMENT"), among the Companies, the Seasoned
Warehouse Agent and the Seasoned Warehouse Lenders. Terms defined in the
Warehouse Credit Agreement have the same meaning when used, unless otherwise
defined, in this report.
I certify to the Seasoned Warehouse Agent and the Seasoned Warehouse
Lenders that on the date of this report:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. The attached SCHEDULE 1 is an accurate list of the Companies' Mortgage
Loan production for the Calendar Month before the date of this report,
describing in reasonable detail the geographic mix of all retail and
correspondent production for both the Calendar Month before the date of this
certificate and for the year to date, and such other matters as the Seasoned
Warehouse Agent may have reasonably requested.
3. The attached SCHEDULE 2 is an accurate and complete schedule of the
Companies' "open commitment and pipeline positions" (as commonly understood in
the industry) for Mortgage Loans, describing in reasonable detail (i) with
regard to "open commitment" positions, the names of investors, type, original
principal amount, rate, price/yield, and expiration date, and (ii) with regard
to "open pipeline" positions, the amount of the pipeline, the total locked
amount and rate of price committed Mortgage Loans in the pipeline, the
percentage of the locked amount that is covered, the types of coverage
(mandatory or optional), future contracts, hedged positions, repurchase
agreements, the profit or loss, and such other matters as the Seasoned Warehouse
Agent may have reasonably requested.
<PAGE> 181
4. The attached SCHEDULE 3 is an accurate and complete schedule of the
Companies' Servicing Portfolio, describing in reasonable detail the number of
Mortgage Loans being serviced, the total unpaid principal balance of those
Mortgage Loans (total and by investor), investor type, geographic concentration,
weighted average coupon, foreclosure experience, and such other matters as
Seasoned Warehouse Agent may have reasonably requested.
By_________________________
(Name)_____________________
(1)(Title)_________________
____________________
(1) Must be a Responsible Officer of all four Companies.
<PAGE> 182
SCHEDULE 11.12
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> 183
SCHEDULE 11.15
SHAREHOLDERS
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
<S> <C>
Dennis M. Agresta 2,450
Alexander J. Ajemian 11,613
Ronald Ballard 150
Rory C. Ballard 1,000
William D. Banfield 125
Mary Deanne Beard 1,000
Isaac R. Bryant 437
Susan J. Church 929
Paul S. Condra 300
Carole Cribar 350
Thomas P. Cronin 14,865
Ronald B. Darga 4,833
Joseph DelCanto 98
James R. Dembek 67
William J. Demetriou 4,380
Detroit Police and Firemen's Retirement System 30,197
Scott A. DeWolf 327
Matthew T. Donnelly 32
Gloria A. Dopp 67
Arlene A. Doyle 4,233
Ronald L. Dunlap 544
Jeffrey A. Egan 2,858
</TABLE>
<PAGE> 184
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
<S> <C>
Harvey R. Faust 500
Teresa S. Fisher 314
Earl F. Fleming 5,000
James D. Formiller 124
Donald J. Frommeyer 3,000
Robert Grady 34
Aaron T. Hamp 150
James M. Healy 5,333
Bernard L. Hemker, Sole Trustee of Bernard L. Hemker 2,858
Living Trust
Hal Hoffman 184
Marisa Hogan-Narro 100
Beth Holsbeke 134
Donald P. Houghtalin 250
Philip A. Jaffe 3,333
Dorothy J. Jantz 2,144
Craig Janutol 2,858
Karen L. Jefferson 600
D. Michael Jehle 25,000
Louis Johnson 1,092
Cheryl Kaye 40
Larry Kleem 391
John E. Koerner 600
Michael H. Kooi 245
Holly Quinlan Kubek 4,333
Dennis R. Kuhn 5,333
</TABLE>
2
<PAGE> 185
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
<S> <C>
John E. Kull 600
Kevin C. Lasky 3,833
James W. LeBaron 1,290
Raymond Leggett 936
Philip H. Levin 300
Cheryl A. Luark 350
Shellie L. Maitre 150
Bruce Martin 163
Douglas B. McCullough 268
Anne M. McGraw-Dick 734
William A. McKinney 600
Michael R. Myers 5,000
NML, Inc. 33,700
Daniel J. O'Connor 6,097
William D. O'Halloran 1,560
John P. O'Leary 8,044
Joseph Papandria 200
Bertha L. Peeples 525
Keith D. Pietila 31,500
Harold A. Poore 90
Deborah Pointer 134
Joanne M. Postlethwaite 1,806
Harry F. Prisby II 1,081
John E. Quinlan, Jr. 6,666
Patrick D. Quinlan, Sr. 20,001
</TABLE>
3
<PAGE> 186
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
<S> <C>
Patrick D. Quinlan and Cheryl J. Quinlan, as tenants by 90,134
the entireties
Patrick D. Quinlan, Jr. 4,333
Katherine Rock Ray 200
David Rogers 100
Leroy G. Rogers 13,460
Richard Schmid 1,247
Ann M. Schwartz 600
Charles H. Silver 72
Linda Gable Smith 350
Nancy J. Smith 1,649
Standard Home Mortgage, Inc. 55,734
David Stickley 219
M. Kathryn Swaim 730
Chad P. Swaim 600
Cheryl A. Swain 3,250
Bridget M. Teed-Oparka 600
Joseph W. Thimm 300
Charles J. VanStreacher III 4,000
David A. Vicari 1,183
Denise M. Weber 4,000
C. Thompson Wells 3,333
Daniel H. Wells 40
Janet K. Wells, as Trustee of the Janet Knost Wells 86,200
Revocable Living Trust u/a/d 10/18/88 as amended
David C. Wells 14,415
</TABLE>
4
<PAGE> 187
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
<S> <C>
David C. Wells and Pamela G. Loomis, as tenants by their 16,002
entities
Lee P. Wells 23,333
Lee P. Wells and Rhaphael C. Wells, as tenants by the 28,372
entireties
Margaret A White 350
Joseph M. Woodall 4,000
TOTALS 629,239
</TABLE>
5
<PAGE> 188
SCHEDULE 12.4
EXISTING INDEBTEDNESS
<TABLE>
<CAPTION>
Maximum Amount Amount
Name Available Outstanding
---- --------- -----------
<S> <C> <C>
Paine Webber $20,000,000 $18,687,830
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 $0
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 $3,954,000
11% Subordinated Debentures due June 30, 2003 $10,000,000 $0
Land Contract - Building $542,556 $452,416
Capital Leases N/A $401,990
Texas Commerce Bank - warehouse [$115,000,000] [$74,064,060]
- revolving credit 28,500,000 18,223,311
Franklin Bank $1,000,000 $833,421
Subordinated Note Payable to Pension Fund $15,000,000 $15,000,000
Advanta Mortgage N/A $6,800,000
</TABLE>
<PAGE> 189
SCHEDULE 12.6
EXISTING LIENS
1. Liens on warehoused mortgages and land contracts, including the
unseparated mortgage servicing rights related thereto, under lines of
credit established with Paine Webber ($20 million), where such mortgages
and land contracts are pledged as collateral to such other lender and are
not included in the Borrowing Base under the Credit Agreement to which this
Schedule is attached.
2. Liens on warehoused seasoned mortgages and land contracts, including the
unseparated mortgage servicing rights related thereto under a line of
credit established with Texas Commerce (i.e., under the Warehouse Credit
Agreement), where such mortgages and land contracts are pledged as
collateral to Texas Commerce and are not included in the Borrowing Base
under the Seasoned Warehouse Credit Agreement to which this Schedule is
attached.
3. Liens on land contracts and 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, where
such land contracts and mortgages are pledged as collateral to such other
lender and are not included in the Borrowing Base under the Credit
Agreement to which this Schedule is attached.
4. 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).
5. Assumption of senior liens on real estate investments and land contracts
held for resale, where such real estate investments and land contracts are
not included in the Borrowing Base under the Credit Agreement to which this
Schedule is attached.
6. Rights of senior liens on real estate investments and land contracts held
for resale, where such real estate investments and land contracts are not
included in the Borrowing Base under the Credit Agreement to which this
Schedule is attached.
7. 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 July 31, 1997, had an
aggregate present value of approximately $401,990.
8. 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
<PAGE> 190
MCAFC and First Union National Bank in connection with MCAFC's 11%
Asset-Backed Subordinated Debentures due June 30, 2000, where the related
mortgages and land contracts are owned by others and are not included in
the Borrowing Base under the Credit Agreement to which this Schedule is
attached.
9. Liens on specified residual ownership interests in the income stream
generated by such mortgage-backed securities as are related to specific
borrowings where such residual interests are pledged as collateral for
credit other than under the Credit Agreement to which this Schedule is
attached.
10. Liens on specified mortgage servicing rights as are related to specific
borrowings to secure which such mortgage servicing rights are pledged as
collateral to a lender, and the related mortgages and land contracts are
owned by others and are not included in the Borrowing Base under the Credit
Agreement to which this Schedule is attached.
11. Liens on mortgage servicing rights and their proceeds under the Revolving
Credit Loan Agreement (Secured) dated as of October 31, 1997, as amended,
providing a revolving line of credit of up to $28.5 million, where the
related mortgages and land contracts are owned by others and are not
included in the Borrowing Base under the Credit Agreement to which this
Schedule is attached.
12. Liens in favor of the Pension Fund granted under the Enhancement Agreement
which do not cover or affect any of the Seasoned Warehouse Collateral.
3
<PAGE> 191
SCHEDULE 12.13
AFFILIATE TRANSACTIONS
1. MCAFC purchases various real estate parcels from unrelated third parties
which are subsequently sold to limited partnerships whose general partner
is owned by two MCAFC shareholders. Gains are recognized on these sales.
2. The Companies pay commissions for the acquisition of properties from
unrelated third parties to a company owned by three shareholders of MCAFC.
3. MCAFC earns management fees for administrative services provided to U.S.
Mutual Financial Corporation ("USMC"). Certain shareholders of MCAFC are
directors or major shareholders of USMC.
4. MCAFC has made charitable contributions to a non-profit organization,
Detroit Revitalization, Inc. ("DRI"), which is engaged in the business of
acquiring, renovating and selling affordable homes in the City of Detroit
to assist in reversing the trend toward deterioration of the housing stock
within the city. MCAFC also purchases various real estate parcels from
unrelated third parties which are subsequently sold to DRI. Certain
shareholders of MCAFC are former directors of DRI.
5. From time to time, the Companies have retained Consulting Services America
("C.S.A.") as consultants for specific strategic planning and
organizational development projects. The major shareholder and chief
executive officer of C.S.A. is a brother of two shareholder/directors of
MCAFC.
6. From time to time, the Companies have made working capital loans to
affiliated entities.
1
<PAGE> 192
(THE "10/97 TEXAS COMMERCE SEASONED WAREHOUSE NOTE")
$25,000,000 Houston, Texas October 31, 1997
FOR VALUE RECEIVED, MCA FINANCIAL CORP., MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF AMERICA (the "BORROWERS"), all Michigan corporations,
and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio corporation
(the Borrowers and MCAI-Ohio being called the "MAKERS"), as comakers, jointly
and severally promise to pay to the order of TEXAS COMMERCE BANK NATIONAL
ASSOCIATION ("PAYEE"), a national banking association, at the main branch of
Texas Commerce Bank National Association, 712 Main Street, Houston, Harris
County, Texas 77002, or at such other place as the Seasoned Warehouse Agent may
hereafter designate in writing, in immediately available funds and in lawful
money of the United States of America, the principal sum of Twenty-five Million
Dollars ($25,000,000) (or the unpaid balance of all principal advanced against
this note, if that amount is less), together with intererst on the unpaid
principal balance of this note from time to time outstanding until maturity at
the Stated Rate (or at such lesser rate, if any, as the holder of this note --
the "HOLDER", whether or not Payee is such holder -- may in its sole discretion
from time to time elect to be applicable for any day or days), and interest on
all past due amounts, both principal and accrued interest, at the Past Due
Rate; provided that for the full term of this note the interest rate produced
by the aggregate of all sums paid or agreed to be paid to Holder for the use,
forbearance or detention of the debt evidenced hereby shall not exceed the
Ceiling Rate.
1. Definitions. In addition to the definitions given above, the
definitions given in the 10/97 Senior Secured Seasoned Warehouse Credit
Agreement dated October 31, 1997, as it may be supplemented, amended or restated
from time to time (the "WAREHOUSE CREDIT AGREEMENT") among (a) Makers, (b)
Texas Commerce Bank National Association (for itself as a lender and as
Seasoned Warehouse Agent for the other lenders party thereto) and (c) the other
lender(s) party thereto, for capitalized terms that are used in this note shall
apply here as well as there.
2. Rates Change Automatically and Without Notice. Without notice
to Makers or any other Person and to the full extent allowed by applicable law
from time to time in effect, the Stated Rate, the Past Due Rate and the Ceiling
Rate shall each automatically fluctuate upward and downward as and in the
amount by which the interest rate applicable to this note as provided for in
the Credit Agreement, the Past Due Rate as defined in the Credit Agreement and
such maximum nonusurious rate of interest permitted by applicable law,
respectively, fluctuate.
3. Calculation of Interest. Interest on the amount of each advance
against this note shall be computed on the amount of that advance and from the
date it is made. Such interest shall be computed on the basis of the actual
number of days elapsed on the basis of a year of 360 days (i.e., on the
365/360 -- or 366/360 in a leap year -- day basis), unless that would cause the
Ceiling Rate for any day to be exceeded, in which event and to the extent
necessary to eliminate or minimize that
Page 1 of 4 Pages
<PAGE> 193
result, interest shall be calculated on the 365/365 -- or 366/366 in a leap
year -- day basis. All interest rate determinations and calculations by the
Holder, absent manifest error, shall be conclusive.
4. Excess Interest Will be Refunded or Credited. If, for any
reason whatever, the interest paid or received on this note during its full
term produces a rate which exceeds the Ceiling Rate, Holder shall refund to the
payor or, at Holder's option, credit against the principal of this note such
portion of said interest as shall be necessary to cause the interest paid on
this note to produce a rate equal to the Ceiling Rate.
5. Interest Will be Spread. To the extent (if any) necessary to
avoid violation of applicable usury laws (or to minimize the extent of the
violation if complete avoidance is impossible for any reason, it being the
intent and purpose of Makers and all Holders to comply strictly with all
applicable usury and other laws), all sums paid or agreed to be paid to Holder
for the use, forbearance or detention of the indebtedness evidenced hereby
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of this note, so
that the interest rate is uniform throughout the full term of this note.
6. Payment Schedule. Interest on and principal of this note shall
be due and payable as provided in SECTION 7.1 of the Credit Agreement.
7. Prepayment. Makers may prepay this note in accordance with and
subject to the provisions of SECTION 7.1(c) of the Credit Agreement. All
prepayments shall be applied first to accrued interest, the balance to
principal.
8. The Credit Agreement, this Note and its Security. This note is
one of the Seasoned Warehouse Notes, is issued pursuant to the Credit Agreement
(to which reference is made for all purposes) and may be referred to as the
"10/97 TEXAS COMMERCE SEASONED WAREHOUSE NOTE", and as it may hereafter be
renewed, extended, rearranged, increased, decreased, modified or replaced in
accordance with the Credit Agreement may be referred to as the "CURRENT TEXAS
COMMERCE SEASONED WAREHOUSE NOTE". Holder is entitled to the benefits of and
security provided for in the Credit Agreement. Such security includes, among
other security, the security interests granted by the Seasoned Warehouse
Security Agreement referred to in SECTION 8.1 of the Credit Agreement.
9. Revolving Credit. Upon and subject to the terms and conditions
of the Credit Agreement, Makers may borrow, repay and reborrow against this
note under the circumstances, in the manner and for the purposes specified in
the Credit Agreement, but for no other purposes. Advances against this note by
Payee or other Holder shall be governed by the terms of the Credit Agreement.
The unpaid principal balance of this note at any time shall be the total of all
principal lent or advanced against this note less the sum of all principal
payments and permitted prepayments made on this note by or for the account of
Makers. Absent manifest error, Holder's computer records shall on any day
conclusively evidence the unpaid balance of this note and its advances and
payments history posted up to that day. All loans and advances and all
payments permitted
Page 2 of 4 Pages
<PAGE> 194
prepayments made hereon may be (but are not required to be) endorsed by or on
behalf of Holder on the schedule which is attached as ANNEX I hereto (which is
hereby made a part hereof for all purposes) or otherwise recorded in Holder's
computer or manual records; provided, that any failure to make notation of (a)
any principal advance or accrual of interest shall not cancel, limit or
otherwise affect Makers' obligations or any Holder's rights with respect to
that advance or accrual, or (b) any payment or permitted prepayment of
principal or interest shall not cancel, limit or otherwise affect Makers'
entitlement to credit for that payment as of the date of its receipt by
Holder. Makers and Payee expressly agree, pursuant to Chapter 346 ("CHAPTER
346") of the Texas Finance Code, that Chapter 346 (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 346 or subject to its provisions in any manner
whatsoever.
10. Legal Costs. If any Holder or the Seasoned Warehouse Agent
retains an attorney in connection with any Default or Event of Default or to
collect, enforce or defend this note or any papers intended to secure or
guarantee it in any lawsuit or in any probate, reorganization, bankruptcy or
other proceeding, or if any Maker or anyone claiming by, through or under any
Maker sues any Holder in connection with this note or any such papers and does
not prevail, then Makers jointly and severally agree to pay to each such Holder
and the Seasoned Warehouse Agent, respectively, in addition to principal and
interest, all reasonable costs and expenses incurred by such Holder or the
Seasoned Warehouse Agent in trying to collect this note or in any such suit or
proceeding, 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. An amount equal to ten percent (10%) of the unpaid principal and
accrued interest owing on this note when and if this note is placed in the
hands of an attorney for collection after default is stipulated to be
reasonable attorneys' fees unless a Holder, the Seasoned Warehouse Agent or a
Maker timely pleads otherwise to a court of competent jurisdiction.
11. Waivers. Makers and any and all co-makers, endorsers (other
than the Holder or the Payee), guarantors and sureties severally waive notice
(including, but not limited to, notice of intent to accelerate and notice of
acceleration, notice of protest and notice of dishonor), demand, presentment for
payment, protest, diligence in collecting and the filing of suit for the
purpose of fixing liability and consent that the time of payment hereof may be
extended and re-extended from time to time without notice to any of them. Each
such Person agrees that his, her or its liability on or with respect to this
note shall not be affected by any release of or change in any guaranty or
security at any time existing or by any failure to perfect or maintain
perfection of any lien against or security interest in any such security or the
partial or complete unenforceability of any guaranty or other surety
obligation, in each case in whole or in part, with or without notice and before
or after maturity.
12. Not Purpose Credit. None of the proceeds of this note shall
ever be used, directly or indirectly, 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 or for the purpose of
Page 3 of 4 Pages
<PAGE> 195
reducing or retiring any debt which was originally incurred to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock or which would constitute this
transaction a "purpose credit" within the meaning of said Regulation U, as now
or hereafter in effect.
13. General Purpose of Loan. Each Maker warrants and represents to
Payee, all other Holders and the Seasoned Warehouse Agent that all loans
evidenced by this note are and will be for business, commercial, investment or
other similar purpose and not primarily for personal, family, household or
agricultural use, as such terms are used in Chapter 1D or in the Texas Finance
Code.
MCA FINANCIAL CORP. MCA MORTGAGE CORPORATION
By: /s/ Keith D Pietila By: /s/ Lee P. Wells
------------------- ------------------
Name: KEITH D PIETILA Name: LEE P. WELLS
----------------- ----------------
Title: EVP Title: PRESIDENT
----------------- ----------------
MORTGAGE CORPORATION MORTGAGE CORPORATION
OF AMERICA OF AMERICA, INC.
By: /s/ Keith D Pietila By: /s/ Lee P. Wells
------------------- -----------------
Name: KEITH D PIETILA Name: LEE P. WELLS
------------------- -----------------
Title: VP Title: PRESIDENT
------------------ ----------------
Page 4 of 4 Pages
<PAGE> 196
ANNEX 1
to $25,000,000
10/97 Texas Commerce Seasoned Warehouse Note
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
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Date of Payment or on (or advance vs.) Payment Applied Name of Person
Advance Principal on Interest Principal Balance Interest Paid to Making Notation
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<S> <C> <C> <C> <C> <C>
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</TABLE>
<PAGE> 197
SEASONED WAREHOUSE CUSTODY AGREEMENT
PREAMBLE
THIS SEASONED WAREHOUSE CUSTODY AGREEMENT (within itself only, this
"SEASONED WAREHOUSE CUSTODY AGREEMENT", and as it may be supplemented, amended
or restated from time to time, this "AGREEMENT") entered into as of October 31,
1997 by and between (i) MCA FINANCIAL CORP. ("MCAFC"), a Michigan corporation,
MCA MORTGAGE CORPORATION ("MCAMC"), a Michigan corporation formerly known as
Mortgage Corporation of America, MORTGAGE CORPORATION OF AMERICA ("MCA"), a
Michigan corporation formerly known as First American Mortgage Associates,
Inc., and MORTGAGE CORPORATION OF AMERICA, INC. ("MCAI-OHIO"), an Ohio
corporation (collectively, the "COMPANIES"), and (ii) TEXAS COMMERCE BANK
NATIONAL ASSOCIATION ("TEXAS COMMERCE"), a national banking association, as a
Seasoned Warehouse Lender and as agent for the other Seasoned Warehouse Lenders
(in that capacity, Texas Commerce is called the "SEASONED WAREHOUSE AGENT"),
acting herein as documents custodian (in that capacity, the "CUSTODIAN") for
the Seasoned Warehouse Agent and the Seasoned Warehouse Lenders under the
Credit Agreement (defined below), recites and provides as follows:
RECITALS
The Companies, Texas Commerce and the other lenders parties thereto
(collectively, the "SEASONED WAREHOUSE LENDERS") have entered into a 10/97
Senior Secured Seasoned Warehouse Credit Agreement dated as of October 31, 1997
(as it may be supplemented, amended or restated from time to time, the
"SEASONED WAREHOUSE CREDIT AGREEMENT") pursuant to which the Seasoned Warehouse
Lenders have agreed to extend credit to the Companies with the requirement
that, to the extent that any Warehouse Revolving Loan is made (or to be made)
to the Companies (other than MCAI-Ohio, which is not eligible to borrow under
the Seasoned Warehouse Credit Agreement -- the Companies other than MCAI-Ohio
are herein called the "BORROWERS") or for the account of any of the Companies
against the collateral value of property owned by any of the Companies of a
type in which a security interest may be perfected by possession, that property
must be delivered to the Seasoned Warehouse Agent as custodian and as agent and
Representative of the Seasoned Warehouse Lenders.
The Seasoned Warehouse Lenders, the Seasoned Warehouse Agent and the
Companies desire that the Companies deposit with the Custodian from time to
time (among other items of collateral) the Basic Papers for all pledged
Warehouse Collateral owned or held by the Companies, to be held by the Seasoned
Warehouse Agent acting as documents custodian and as agent and
Representative of the Seasoned Warehouse Lenders, as collateral under the
Seasoned Warehouse Credit Agreement until such Warehouse Collateral is sold as
whole loans, or securitized and the securities sold, to secondary market
investors, and possession and custody of the Basic Papers for such Warehouse
<PAGE> 198
Collateral have been delivered to such an investor (or its custodian or
other designee) or redeemed by the Companies, as contemplated by and in
accordance with the terms of this Agreement.
Capitalized terms defined in the Seasoned Warehouse Credit Agreement
that are used but not defined differently herein have the same meanings here as
there, and reference is here made to the Seasoned Warehouse Credit Agreement
for all purposes.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. DEFINITIONS.
1.1 For the purposes of this Agreement, the following terms shall have
the indicated meanings, and the definitions of such terms are equally
applicable to their singular and plural forms.
"APPRAISAL REPORT" means a report, prepared in connection with the
appraisal of Mortgaged Premises, setting forth the determination of the fair
market value of such Mortgaged Premises.
"BAILEE AGREEMENT" means a written agreement among the Seasoned
Warehouse Agent, an investor and the Company setting forth agreements among
them to coordinate and govern shipment of Pledged Loans by the Seasoned
Warehouse Agent to such investor and the manner and terms of payment for
Pledged Loans shipped.
"BAILEE LETTER" means a transmittal letter for shipments of Pledged
Loans by the Seasoned Warehouse Agent to an investor (or an investor's
custodian or other designee), in the form of EXHIBIT A.
"BASIC PAPERS" means all of the Warehouse Collateral Papers that are
required to be delivered to the Seasoned Warehouse Agent -- in the case of
Bridged Loans, on or before the eighth (8th) Business Day after the related
Warehouse Revolving Loan -- in order for any particular item of Warehouse
Collateral to be Eligible Collateral and have Collateral Value under the
Seasoned Warehouse Credit Agreement.
"CERTIFICATION" means a certification by the Seasoned Warehouse Agent
in the form of the relevant provisions of EXHIBIT B that the Seasoned Warehouse
Agent has received, examined and holds as custodian the Basic Papers for a
particular item or items of Collateral identified in the certification, and
that they appear regular on their faces based on the Seasoned Warehouse Agent's
examination of them.
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<PAGE> 199
"CERTIFYING OFFICER'S CERTIFICATE" means a certificate signed by (i) an
officer (authorized to sign an Officer's Certificate or a Certifying Officer's
Certificate) of a Company (which is the owner of the relevant Mortgage Loan),
the relevant Servicer, the title insurance company issuing the relevant
Lender's Title Insurance Policy, the escrow/settlement agent or company for the
related Mortgage Loan(s), or other Person submitting a File to the Seasoned
Warehouse Agent or (ii) the closing attorney for the related Mortgage Loan(s).
(The text of any particular Certifying Officer's Certificate may be stamped
upon a File paper if such stamped text is manually signed by an officer
authorized to sign an Officer's Certificate or a Certifying Officer's
Certificate.)
"CUSTOMER" means and includes each maker of a Mortgage Note or
purchaser under a Land Contract, and each cosigner, guarantor, endorser, surety
and assumptor thereof, whether or not such Person has personal liability for
its payment in whole or in part.
"DAILY SUMMARY OF PLEDGED LOANS" means, for any day, a written report
issued by the Seasoned Warehouse Agent identifying the Pledged Loans held by
the Seasoned Warehouse Agent on that day, and indicating (i) which Pledged
Loans (if any) so held have not been listed in a Notice of Receipt issued by
the Seasoned Warehouse Agent and (ii) which of those nonlisted Pledged Loans
have not been listed because their Files are incomplete or apparently
incomplete.
"DOCUMENT RETURN LETTER" means an instrument in substantially the form
of EXHIBIT G.
"EXCEPTION FILE" is defined in SECTION 3.2.
"FILE" means either (i) a file containing all of the Basic Papers for
the relevant type of Collateral or (ii) all of such Basic Papers, as the
context requires.
"FOLLOW-UP NOTICE OF RECEIPT" means an instrument substantially in the
form of EXHIBIT C with the relevant boxes in such form checked and a copy of
the relevant Document Return Letter attached.
"FNMA GUIDELINES" means the guidelines contained in the FNMA Seller's
Guide and FNMA Servicer's Guide pertaining to one to four family, conventional
residential mortgage loans and such other rules, regulations and guidelines
adopted by FNMA that establish eligibility requirements for the purchase by
FNMA of conventional residential mortgage loans or which establish loan
servicing requirements for mortgage loans purchased by FNMA, as amended or
supplemented from time to time.
"FLOOD INSURANCE POLICY" means (i) any policy of insurance issued in
accordance with the Flood Disaster Protection Act of 1973, as amended from time
to time or, if repealed, any superseding legislation governing similar
insurance coverage, or (ii) any other policy of insurance providing similar
coverage against loss sustained by floods or similar hazard that conforms to
the flood insurance requirements prescribed by FNMA Guidelines.
3
<PAGE> 200
"LENDER'S TITLE INSURANCE POLICY" means an American Land Title
Association or California Land Title Association (extended coverage) form or a
Texas Land Title Association form lender's title insurance policy, including
all riders or endorsements thereto, together with such additional endorsements
as are required by FNMA Guidelines, in an amount not less than the original
principal balance of the relevant Mortgage Loan, insuring the holder of that
Mortgage Loan that the related Mortgage constitutes a valid first lien on the
covered Mortgaged Premises, subject only to Permitted Encumbrances.
"LETTER OF TRANSMITTAL" means a letter to a Company from an originator
or a seller of a Mortgage Loan in substantially the form of EXHIBIT B,
transferring papers that constitute, or are to become a part of, the File for a
Pledged Loan.
"LOAN NUMBER" means the loan number assigned to a Pledged Loan by the
Company that owns it and customarily used by it in its internal and external
communications referring to that Pledged Loan.
"MORTGAGE" means a mortgage, deed of trust, deed to secure debt,
security deed or other mortgage instrument or similar evidence of Lien legally
effective in the U.S. jurisdiction where the relevant real property is located
to create and constitute either (i) a valid and enforceable Lien, subject only
to Permitted Encumbrances (which, in the case of permitted second priority
Mortgages, includes a first and prior Lien to secure an existing Mortgage Loan
held by another lender), on the fee simple estate in improved real property, or
(ii) if the Mortgaged Premises is a cooperative housing unit, a first and prior
perfected security interest in the stock in the relevant cooperative housing
corporation and the related lease or occupancy agreement that together evidence
the ownership of and right to occupy a residential dwelling unit in the
apartment building owned by such cooperative housing corporation.
"MORTGAGE ASSIGNMENT" means an assignment of a Mortgage or Land
Contract (whichever the context requires), in form sufficient under the laws of
the U.S. jurisdiction where the real property covered by such Mortgage or Land
Contract is located to give notice to the world of the assignment of such
Mortgage or Land Contract, perfect the assignment and establish its priority
relative to other transactions in respect of such Mortgage or Land Contract
assigned.
"MORTGAGED PREMISES" means the property securing a pledged Mortgage
Loan or the property that is the subject matter of a pledged Land Contract,
whichever the context requires.
"NOTICE OF RECEIPT" means an acknowledgment to the Companies and a
certification to the Lenders by the Seasoned Warehouse Agent substantially in
the form of EXHIBIT C , with the appropriate boxes checked, that the Seasoned
Warehouse Agent has received from (or on behalf of) the Companies and holds, as
custodian, Files for the Collateral described in the copies of the Submission
List(s) attached thereto. The Seasoned Warehouse Agent shall not issue a
Notice of Receipt for a Bridged Loan until the Seasoned Warehouse Agent shall
have received the Basic Papers for it (when it ceases to be a Bridged Loan and
becomes regular Collateral).
4
<PAGE> 201
"PAYOFF REQUEST" means the authorization to be signed and delivered by
the Companies to the Seasoned Warehouse Agent as provided in SECTION 4.1, and
in substantially the form of EXHIBIT E.
"PAYOFF SCHEDULE" means a schedule prepared by the Seasoned Warehouse
Agent as provided in SECTION 4.1 setting forth certain information as to
Pledged Loans for which the Companies have delivered a Payoff Request, and in
substantially the form of EXHIBIT F.
"PERMITTED ENCUMBRANCES" means, in respect of the real property
securing a Pledged Loan:
- for any Eligible Second Mortgage Loan, the Lien of one senior
Mortgage Loan funded before or concurrently with such Eligible Second Mortgage
Loan; and
- for any Pledged Loan, (i) liens for real estate taxes and
governmental-improvement assessments not delinquent, (ii) easements and
restrictions that do not adversely affect the marketability of title to the
related Mortgaged Premises or prohibit or interfere with the use of such
Mortgaged Premises as a single-family residential dwelling, (iii) as to
Mortgaged Premises that constitute a unit in a condominium or are part of a
horizontal or vertical property regime, a declaration of condominium or other
similar document that evidences the creation of such condominium or horizontal
or vertical property regime, (iv) reservations as to oil, gas or mineral
rights, provided such rights do not include the right to remove buildings or
other improvements on or near the surface of such Mortgaged Premises or to mine
or drill on the surface thereof or otherwise enter the surface for purposes of
removing oil, gas or minerals, (v) agreements for the installation, maintenance
or repair of public utilities, provided such agreements do not create or
evidence liens on such Mortgaged Premises or authorize or permit any Person to
file or acquire claims of liens against such Mortgaged Premises and (vi) such
other exceptions (if any) as are acceptable under FNMA Guidelines; provided
that any encumbrance not permitted pursuant to the standards of any Take-out
Commitment to which the subject Pledged Loan is dedicated (or which the
Companies have directly or indirectly represented to the Seasoned Warehouse
Agent covers such Pledged Loan) shall not be a Permitted Encumbrance.
"PRELIMINARY TITLE REPORT" means a title report prepared by a company
qualified to issue the Lender's Title Insurance Policy that sets forth (i) the
legal description of the relevant Mortgaged Premises and (ii) the complete
status of title as to such Mortgaged Premises.
"PRIMARY MORTGAGE INSURANCE POLICY" means a mortgage insurance policy,
issued by a private mortgage insurance company having an AAA or AA rating from
Standard & Poor's Ratings Group or Fitch Investor Services, Inc. or Aaa or Aa
rating from Moody's Investors Service, Inc. for claims-paying ability, in form
and substance satisfactory to the Companies insuring the holder of a Mortgage
Loan against all or a portion of the loss sustained by reason of a default by a
Customer in the payment of principal and interest thereon, together with all
riders and endorsements thereto.
5
<PAGE> 202
"PRINCIPAL BALANCE" means, for any day, the advanced and unpaid
principal balance of a Mortgage Note or Land Contract on that day.
"STANDARD HAZARD INSURANCE POLICY" means as to each Mortgage Loan an
insurance policy in an amount not less than the principal amount of the related
Mortgage Note or the maximum insurable value of the related Mortgaged Premises
that a lender can require the relevant Customer to maintain by applicable law,
whichever is less, providing coverage against loss to such Mortgaged Premises
sustained by reason of fire or other hazards covered by a standard extended
coverage endorsement, including all riders and endorsements thereto, and which
conforms to the relevant Company's underwriting guidelines.
"SUMMARY OF PLEDGED LOANS" means an instrument substantially in the
form of EXHIBIT D.
1.2 Other definitional rules applicable to this Agreement are as
follows:
(a) Accounting terms not otherwise defined shall have the meanings
given them under GAAP.
(b) Except where otherwise specified, all times of day are local times
in Houston, Texas.
(c) Wherever the word "including" or a similar word is used, it shall
be read as if it were written, "including by way of example but without in
any way limiting the generality of the foregoing concept or description".
2. DELIVERY OF FILES TO THE SEASONED WAREHOUSE AGENT.
2.1 REAFFIRMATION OF SEASONED WAREHOUSE AGENT'S LIEN. As security for
the payment of each Warehouse Revolving Loan now or hereafter made, each of the
Companies hereby reaffirms the continuing first priority Lien granted by it to
the Seasoned Warehouse Agent (as agent and Representative of the Seasoned
Warehouse Lenders) in the Seasoned Warehouse Credit Agreement in and against
(i) all Collateral now or hereafter pledged by it to the Seasoned Warehouse
Agent, (ii) all Files and other Pledged Loan (or other Collateral) papers now
or hereafter delivered to the Seasoned Warehouse Agent (as such), to the
Custodian or to any other agent, bailee or designee of the Seasoned Warehouse
Agent and (iii) the proceeds thereof. The parties agree that the Lien
reaffirmed herein shall continue and remain perfected under the provisions of
the applicable UCC, real estate law and/or other applicable Law,
notwithstanding that the Seasoned Warehouse Agent, the Custodian or any other
agent, bailee or designee of the Seasoned Warehouse Agent may deliver one or
more of the Warehouse Collateral Papers or other papers evidencing or relating
to any such Collateral to a Company (or to its servicer or designee) for the
purpose of (x) correcting or completing such papers or the related File or (y)
collecting or other servicing or handling of such Collateral, as provided
herein.
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<PAGE> 203
2.2 DELIVERIES OF WAREHOUSE COLLATERAL PAPERS TO THE SEASONED
WAREHOUSE AGENT. Each shipment of Warehouse Collateral Papers to the Seasoned
Warehouse Agent shall be accompanied by a Submission List, containing the
relevant Company's Loan Number for it and other information concerning the
related Pledged Loan as called for in the form of Submission List specified by
the Seasoned Warehouse Credit Agreement. In respect of each Pledged Loan
included in any Submission List, the Companies shall deliver (or cause to be
delivered) to the Seasoned Warehouse Agent from time to time a Letter of
Transmittal and the File containing all of the Basic Papers (originals where
specified), being the relevant group of papers described below, related to that
Pledged Loan. The Basic Papers required to be included in each File shall
consist of all documents designated in SECTION 2.4 or 2.6 for the relevant type
of Pledged Loan by a single asterisk (*), and are required as to every Pledged
Loan of that type, except for those Basic Papers described as "if applicable",
in which case they shall be required only if applicable. Together with each
File submitted, the Companies shall also electronically submit to the Seasoned
Warehouse Agent a Standard Warehouse Transmission File in the manner and format
specified in SCHEDULE TF (Schedule TF may include fields for Loans of a type or
types that are not as Eligible Collateral, but that shall not be construed to
authorize the Companies to pledge the same or to imply that any nonpermitted
Loans that may be Pledged to the Seasoned Warehouse Agent from time to time
shall have any Collateral Value.) Except only for Warehouse Collateral Papers
sent to the Seasoned Warehouse Agent on a follow-up basis after correction or
to complete the File after the File has been sent to the Seasoned Warehouse
Agent (and identified as such in the Companies' attached transmittal letter or
memorandum), the Companies shall place all Warehouse Collateral Papers
delivered to the Seasoned Warehouse Agent in an appropriate file folder,
properly secured, and clearly marked with the debtor's or buyer's last name and
the Loan Number, and such delivered Files shall be placed in a fireproof vault
on the premises of the Seasoned Warehouse Agent, clearly marked as property of
the Seasoned Warehouse Agent in its capacity as Seasoned Warehouse Agent under
the Seasoned Warehouse Credit Agreement, and shall not be commingled with any
other assets of or held by the Seasoned Warehouse Agent. All Warehouse
Collateral Papers shall be placed in the File in the same order as they are
referred to in the Letter of Transmittal. In addition, the Companies shall not
deliver to the Seasoned Warehouse Agent, nor shall the Seasoned Warehouse Agent
assume custody of, the File for any Pledged Loan that does not contain all of
the Basic Papers. If such an incomplete File is delivered to the Seasoned
Warehouse Agent, the Seasoned Warehouse Agent shall either (i) notify the
Companies that the Seasoned Warehouse Agent is temporarily retaining the File
without accepting custody of it pending the Seasoned Warehouse Agent's receipt
of the missing Basic Papers or (ii) return it to the Companies or their
designee.
2.3 DELIVERIES OF MORTGAGE NOTES WITHOUT COMPANIES' ENDORSEMENT. No
Pledged Loan shall be delivered without the endorsement, in blank, of whichever
Company owns it, except pursuant to the provisions of this Section. No
Mortgage Note or Land Contract for a Pledged Loan shall be submitted to the
Seasoned Warehouse Agent without a Company's endorsement. Each Company hereby
appoints the Seasoned Warehouse Agent as its attorney-in-fact -- which
appointment is coupled with an interest and shall be irrevocable until the
Obligations shall have been
7
<PAGE> 204
fully paid and satisfied and the Seasoned Warehouse Lenders have no commitment
to lend to the Borrowers -- to stamp any such Mortgage Note or Land Contract
when received to identify it as a Pledged Loan owned and submitted by such
Company (with a stamp of such Company's name), and the transfer warranties made
to the Seasoned Warehouse Agent by the pledgor Company as provided in UCC
Section 3.416 in respect of each such Mortgage Note or Land Contract so stamped
will, by operation of this Agreement, automatically, irrevocably and
conclusively be deemed to extend to and benefit any subsequent transferee of
such Mortgage Note or Land Contract, to the same effect as if such transfer of
such Mortgage Note or Land Contract to the Seasoned Warehouse Agent were made
by and with the manual indorsement of the pledgor Company.
2.4 BASIC PAPERS FOR A MORTGAGE LOAN. The Basic Papers for a pledged
Mortgage Loan are:
(a) (*) Letter of Transmittal;
(b) (*) the original Mortgage Note, bearing all intervening
endorsements and endorsed by its payee (or, if there are any endorsements,
its last previous endorsee) either in blank or in another manner acceptable
to the Seasoned Warehouse Agent;
(c) (*) (if applicable) the original assumption agreement;
(d) (*) (if applicable) the recorded original of the power of
attorney for the maker of the Mortgage Note, or a certified copy
accompanied by evidence of the original's recordation, or -- if the
original has been sent for recording -- a copy certified to be a true and
complete copy of the power of attorney submitted for recordation;
(e) (*) a certified copy of the mortgage, deed of trust or trust deed
securing such Mortgage Note accompanied by a Certifying Officer's
Certificate stating that the original has been properly sent for
recordation;
(f) (*) the recorded original of a Mortgage Assignment assigning the
Mortgage in a manner acceptable to the Seasoned Warehouse Agent (including,
if applicable, all intervening assignments); or a certified copy
accompanied by a Certifying Officer's Certificate that the original has
been properly recorded, or a signed original of a Mortgage Assignment, or
(except as to any assignment in blank), if the original has been sent for
recording, a copy certified to be a true and complete copy of the Mortgage
Assignment submitted for recordation;
(g) (*) (for Subprime Mortgage Loans only) a copy of the pages from an
original Appraisal Report setting forth (i) the appraisal number, (ii) the
property description, (iii) the appraiser's opinion of value and (iv) the
appraiser's signature.
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<PAGE> 205
2.5 ADDITIONAL PAPERS FOR A MORTGAGE LOAN. Although the following
papers are not required to be submitted to the Seasoned Warehouse Agent, by
submitting any Mortgage Loan to the Seasoned Warehouse Agent, the submitting
Company shall be deemed to represent to the Seasoned Warehouse Agent and the
Seasoned Warehouse Lenders that that Company or that Mortgage Loan's Servicer
(if not that Companies) has possession of them:
(A) the recorded original of the Mortgage;
(B) (for Mortgage Loans that are not Subprime Mortgage Loans only) the
original Take-out Commitment covering such Mortgage Loan;
(C) the original Appraisal Report;
(D) except in respect of a second lien Mortgage Loan for which the
applicable Company's underwriting guidelines do not require lender's title
insurance, an original lender's or mortgagee's title insurance policy, a
commitment to issue one or (if applicable) a Preliminary Title Report;
(E) (i) for any FHA Mortgage Loan, the original or a copy of the HUD-1
Settlement Statement signed by the maker(s) of the Mortgage Note and by its
escrow/settlement agent with the certifications by each that are required by
HUD Mortgagee Letter 86-10 dated May 5, 1986, or (ii) for any other Mortgage
Loan, a copy of the HUD-1 Settlement Statement accompanied by a Certifying
Officer's Certificate signed by the escrow/settlement agent stating
substantially that the statement is an accurate account of the Mortgage Loan
transaction (or a copy of such statement signed by the maker(s) of the Mortgage
Note); provided that the Companies shall not be required to have possession
thereof before thirty (30) days after original submission of the Basic Papers
for such a Mortgage Loan to the Seasoned Warehouse Agent; and
(F) unless the applicable Company's underwriting guidelines do not
require a Primary Mortgage Insurance Policy for the relevant type of Mortgage
Loans, if the original loan-to-value ratio of the Mortgage Loan was greater
than eighty percent (80%), a certificate of Primary Mortgage Insurance Policy.
2.6 BASIC PAPERS FOR A LAND CONTRACT. The Basic Papers for a pledged
Land Contract are:
(a) (*) Letter of Transmittal;
(b) (*) the original Land Contract, including all intervening
assignments to assign it to the relevant Company and either including or having
attached to it an assignment by such Company either in blank or in another
manner acceptable to the Seasoned Warehouse Agent;
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<PAGE> 206
(c) (*) (if applicable) the recorded original of the power of
attorney for the buyer under the Land Contract appointing the person who
executed the Land Contract as such buyer's or debtor's attorney-in-fact, or a
certified copy accompanied by evidence of the original's recordation, or -- if
the original has been sent for recording -- a copy certified to be a true and
complete copy of the power of attorney submitted for recordation;
(d) (*) the original warranty deed by which the real property that is
the subject of the Land Contract was conveyed to the relevant Company;
(e) (*) a quitclaim or special warranty deed conveying such real
property in blank, duly executed and acknowledged by the relevant Company and
in the appropriate form for recordation in the official real property records
of the U.S. jurisdiction where such real property is located and otherwise
sufficient to convey the fee simple estate in and to such real property to any
grantee whose name is inserted into the blank in such deed, subject to no Liens
except Liens for nondelinquent real estate taxes and assessments against such
real property only, and to no title exceptions other than those permitted by
the relevant Company's underwriting guidelines for Land Contracts; and
(f) (*) an assignment of all of the seller's estate, right, title and
interest in and under the Land Contract, in blank, duly executed and
acknowledged by the relevant Company and in the appropriate form for
recordation in the official real property records of the U.S. jurisdiction
where such real property is located.
2.7 FOLLOW-UP BY THE COMPANIES. The Companies shall deliver or cause
to be delivered to the Seasoned Warehouse Agent originals of all File documents
when copies, commitments or preliminary reports were initially submitted,
except for Mortgages, lender's or mortgagee's title insurance policies,
commitments or Preliminary Title Reports, Appraisal Reports, HUD-1 Settlement
Statements, survey plats, architectural and engineering reports and
environmental inspection reports, originals of which shall not be delivered
unless the Seasoned Warehouse Agent shall specifically request them on a
case-by-case basis.
3. SEASONED WAREHOUSE AGENT'S RECEIPT, EXAMINATION, RECEIPT FOR AND
CERTIFICATION OF FILES.
3.1 Seasoned Warehouse Agent's Examination of Basic Papers. Within
one (1) Business Day after each receipt of Files or as promptly as practicable
thereafter, the Seasoned Warehouse Agent shall examine each File so received to
confirm that the Basic Papers in such File appear on their faces to satisfy the
following relevant requirements:
(a) each Mortgage Note and Mortgage or Land Contract in the File
bears an original signature or signatures purporting to be the signature or
signatures of the Person or Persons named as the maker and mortgagor or grantor
under such promissory note or the debtor or buyer under such Land Contract or,
in the case of copies of the Mortgage permitted under a relevant provision of
SECTION 2, that such copies bear a reproduction of such signature or
signatures.
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(b) except for the endorsement to the Seasoned Warehouse Agent, no
Mortgage Note, Mortgage, or Mortgage Assignment (including any intervening
assignments and endorsements) or Land Contract in the File contains any
endorsements evidencing any claims, liens, security interests, encumbrances or
restrictions on transfer.
(c) each Mortgage Note or Land Contract in the File bears an original
of an endorsement by the named holder or payee endorsing such promissory note
or Land Contract (i) in a manner acceptable to the Seasoned Warehouse Agent or
(ii) in blank, with an original signature that purports to be the signature of
the named note payee, note holder, Land Contract assignee or its
representative.
(d) any power of attorney in the File (A) bears an original signature
purporting to be the signature of the maker of the Mortgage Note and the
mortgagor or grantor of the Mortgage or the buyer under the Land Contract and
(B) bears evidence that such power of attorney was recorded in the appropriate
records depository for the jurisdiction where the relevant Mortgaged Premises
are located or in case of copies permitted under a relevant provision of
SECTION 2, that such copies bear a reproduction of such signatures and such
evidence of recordation.
(e) the original of each Mortgage Assignment (including any
intervening assignments) in the File bears an original signature purporting to
be the signature of the named mortgagee or beneficiary, Land Contract seller or
Land Contract assignee (and any other necessary party) or its representative,
or in the case of copies permitted under a relevant provision of SECTION 2,
that such copies bear a reproduction of such signature or signatures.
(f) the information set forth on the Submission List concerning such
File is correct (insofar as the accuracy of such information can be determined
from an examination of the File delivered to the Seasoned Warehouse Agent).
(g) the principal amount of the indebtedness secured by any Mortgage
in the File is identical to the original principal amount of the Mortgage Note
that it purports to secure.
(h) the description of the real property set forth in whichever of the
Lender's Title Insurance Policy, the written commitment for the issuance of a
Lender's Title Insurance Policy, or the Preliminary Title Report is included in
the File in compliance with the relevant provision of SECTION 2 is
substantially identical to the real property description contained in the
relevant Mortgage (if any) in that File.
(i) if a Preliminary Title Report is included in the File in
compliance with the relevant provision of SECTION 2, the location of the
Mortgaged Property is in a state listed on EXHIBIT H.
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(j) the Lender's Title Insurance Policy (or the written commitment to
issue a Lender's Title Insurance Policy) is not less than the original
principal amount of the Mortgage Note and such Lender's Title Insurance Policy
purports to insure that the Mortgage constitutes a first lien, senior in
priority to all other deeds of trust, mortgages, deeds to secure debt,
financing statements and security agreements and to any mechanics' liens,
judgment liens or writs of attachment (or if the Lender's Title Insurance
Policy has not been issued, the written commitment for such insurance appears
to obligate the insurer to issue a policy which will insure the Mortgage as
specified in this Section.
3.2 SEASONED WAREHOUSE AGENT'S NOTICE OF RECEIPT AND CERTIFICATION;
EXCEPTION FILES. If the Seasoned Warehouse Agent has determined that such
Basic Papers satisfy on their faces the requirements for that type of Pledged
Loans stated in this Agreement, the Seasoned Warehouse Agent shall issue the
Seasoned Warehouse Agent's signed Notice of Receipt with a copy of the relevant
Submission List attached, send a copy of it to the Companies and retain another
signed counterpart original of it to serve as the Seasoned Warehouse Agent's
Certification to the Seasoned Warehouse Lenders of the relevant Files. The
Seasoned Warehouse Agent shall make such original Certifications available to
the Seasoned Warehouse Lenders on their request. If upon examination of the
Basic Papers included in any File, the Seasoned Warehouse Agent either (i)
determines that the Basic Papers on their faces do not satisfy those
requirements, or (ii) is unable to confirm that the Basic Papers on their faces
satisfy those requirements, then and in either such case, the Seasoned
Warehouse Agent shall retain such File (an "EXCEPTION FILE") instead of
returning it to the Companies and shall both (1) strike through such Pledged
Loan on the Submission List attached to the Notice of Receipt issued by the
Seasoned Warehouse Agent for the group of Files in which such Exception File
was submitted and (2) advise the Companies -- either telephonically or
electronically, mailing a written confirmation notice to the relevant Company
on the same Business Day -- of the defect or apparent defect in that File. The
Seasoned Warehouse Agent agrees to provide the relevant Company a weekly
written summary report listing the preceding week's Exception Files and
indicating their defects or apparent defects. Upon correction or completion of
any such Exception File, the Seasoned Warehouse Agent shall issue a Follow-up
Notice of Receipt for it.
3.3 POSSESSION OF FILES. Following the Seasoned Warehouse Agent's
receipt of each File or any papers subsequently added to it, the Seasoned
Warehouse Agent shall retain possession and custody of them, for and on behalf
of the Seasoned Warehouse Lenders, Pro Rata, and as the agent and bailee for
the Seasoned Warehouse Lenders for the purpose of maintaining continuous
perfection of the Lien of the Seasoned Warehouse Agent, as Representative of
the Seasoned Warehouse Lenders. Upon such receipt the Seasoned Warehouse Agent
shall also make appropriate notations in the Seasoned Warehouse Agent's books
and records to reflect that the File has been pledged to the Seasoned Warehouse
Agent for and on behalf of the Seasoned Warehouse Lenders, Pro Rata, which has
acquired and holds a Lien and security interest on and in such File, for and on
behalf of the Seasoned Warehouse Lenders, Pro Rata.
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3.4 CERTIFICATION OF PAPERS PREVIOUSLY CERTIFIED BY THE SEASONED
WAREHOUSE AGENT. If Mortgage Loans are purchased from a seller for which Texas
Commerce was document custodian for the Pledged Loans sold, Texas Commerce
makes no warranty as to the condition of the Files, the completeness, accuracy
or any other characteristics of the Files or the circumstances or documentation
under which the Pledged Loans were previously certified, other than as set
forth in this Agreement and no previous certification by Texas Commerce to or
for any other Person or entity will be construed to benefit any party to this
Agreement or anyone claiming by, through or under any such party.
4. RELEASE OF FILES BY THE SEASONED WAREHOUSE AGENT.
4.1 TO OTHERS. For all Pledged Loans to be securitized, sold or
transferred pursuant to SECTION 9.4(A) of the Seasoned Warehouse Credit
Agreement, the Companies shall deliver a Payoff Request as required by that
Section and instructions for shipping the Basic Papers for the affected Pledged
Loans to the relevant investor (or its custodian or other designee) in the form
of SCHEDULE 4.1, whereupon the Seasoned Warehouse Agent shall ship them either
pursuant to such written Bailee Agreement as shall have theretofore been
entered into among the relevant Company, such investor and the Seasoned
Warehouse Agent or, if no such Bailee Agreement is in force, under cover of a
Bailee Letter substantially in the form of EXHIBIT A. At the time of -- or
immediately before -- the transfer of the Pledged Loans so designated, the
relevant Company will cause the issuer or transferee to deposit, or -- in the
case of a redemption -- will itself deposit, with the Seasoned Warehouse Agent,
in immediately available funds, all or such portion of the proceeds of such
securitization, sale or other transfer to which the Company that owns such
Pledged Loans is entitled, plus (unless, pursuant to the Free Release Proviso,
no paydown of the Warehouse Revolving Loans is required) such additional funds
as are necessary to satisfy and pay the aggregate Redemption Amount for such
Pledged Loans stated in the completed Payoff Schedule. Upon the Seasoned
Warehouse Agent's receipt of the aggregate Redemption Amount for such Pledged
Loans to be released that is due the Seasoned Warehouse Lenders as shown in the
completed Payoff Schedule (or, if pursuant to the Free Release Proviso, no
paydown of the Revolving Warehouse Loans is required therefor, upon the
relevant Company's request), the Seasoned Warehouse Agent is hereby authorized
to deliver to the transferee designated by the Companies possession and custody
of the Files relating to the Pledged Loans that are referred to in the Payoff
Request. Upon receipt by the Seasoned Warehouse Agent of such funds or request
(as applicable), each of the Seasoned Warehouse Lenders and the Seasoned
Warehouse Agent agrees with the Companies that all claims, rights, liens and
security interests of the Seasoned Warehouse Lenders and the Seasoned Warehouse
Agent, as agent and Representative of the Seasoned Warehouse Lenders, however
arising, in and to the Pledged Loans referred to in the Payoff Schedule, shall
terminate. It is understood that the Seasoned Warehouse Agent may also
function as an agent, bailee and/or document custodian for the transferee, in
which event the Seasoned Warehouse Agent will not physically deliver the
affected Files, but may instead issue its trust receipt to the transferee
acknowledging that it is holding the affected Files for the benefit of the
transferee, but in such event, the Companies' obligations pursuant to this
Section are not diminished or modified. The trust receipt may be in the form
of either a
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written or electronic receipt in favor of the transferee. Except in respect of
GNMA, FNMA, FHLMC or Advanta, unless the Seasoned Warehouse Agent shall
otherwise agree on a case-by-case basis, the Seasoned Warehouse Agent will not
ship any more Files to any investor to which the Seasoned Warehouse Agent has
already shipped Files for Pledged Loans having aggregate Collateral Values in
excess of Five Million Dollars ($5,000,000) which are still outstanding (i.e.
which such investor has neither purchased and paid for nor returned to the
Seasoned Warehouse Agent).
4.2 TO THE COMPANIES FOR CORRECTION OR SERVICING. From time to time
and as appropriate for the correction, foreclosure or other servicing of any of
the Pledged Loans, the Seasoned Warehouse Agent is hereby authorized, but is
not obligated, upon written request of the Companies -- or on the Seasoned
Warehouse Agent's own initiative in any case where corrections are necessary or
appropriate -- to release to them the Files or the Warehouse Collateral Papers
specified in such request for correction or servicing. Each Company hereby
agrees to request all such releases of Files or specific Warehouse Collateral
Papers by a written request made in the form of EXHIBIT I, and to receipt for
Files or Warehouse Collateral Papers returned to the Company by the Agent other
than pursuant to such a written request by completing and returning the
Companies' trust receipt in the form of EXHIBIT I, and specifically hereby
acknowledges that each such written request or acknowledgment shall also
constitute a trust receipt whereby it holds the Warehouse Collateral Papers
returned to it in trust and as agent and bailee for the Seasoned Warehouse
Lenders and their agent, the Seasoned Warehouse Agent, and that the Seasoned
Warehouse Lenders and the Seasoned Warehouse Agent shall continue to have, and
the Companies shall jointly and severally be obligated to defend, a security
interest in the Warehouse Collateral Papers pursuant to the Seasoned Warehouse
Credit Agreement. Each Company agrees to promptly return to the Seasoned
Warehouse Agent the File or such Warehouse Collateral Papers when such
Company's need therefor in connection with such foreclosure, servicing or
correction no longer exists (but not later than ten (10) days without the
Seasoned Warehouse Agent's consent -- or twenty-one (21) days in any case --
after receipt thereof by such Company), unless the Pledged Loan shall be
liquidated, in which case, upon receipt of a certification to that effect from
such Company to the Seasoned Warehouse Agent and the receipt by the Seasoned
Warehouse Agent of the proceeds of such liquidation, such Company's trust
receipt shall be released by the Seasoned Warehouse Agent to such Company.
Unless the Agent shall otherwise agree, the Companies may not obtain releases
of Files and Warehouse Collateral Papers by the Seasoned Warehouse Agent when
the aggregate Collateral Values of Mortgage Loans (excluding Mortgage Loans
that have been liquidated) whose Files and Warehouse Collateral Papers were
previously released by the Agent and have not returned to the Agent exceeds the
lesser of (i) ten percent (10%) of the amount of Warehouse Revolving Loans
outstanding from time to time or (ii) One Million Dollars ($1,000,000).
4.3 TO THE COMPANIES AFTER REDEMPTION. Upon the Companies'
satisfaction of the requirements for redemption of Pledged Loans pursuant to
SECTION 9.3 of the Seasoned Warehouse Credit Agreement pursuant to the
Company's written redemption request delivered to each of the Agent and the
Custodian, the Custodian will release and ship the such redeemed Pledged Loans'
Files to the Company designated in the redemption request.
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4.4 EXPRESS NEGLIGENCE INDEMNIFICATION. The Seasoned Warehouse Agent
shall not be liable for executing, for failing to execute or for any mistake in
the execution of any request or instructions in connection with the
certification, release or shipment of any Warehouse Collateral Papers, except
in the case of the gross negligence or willful misconduct of the Seasoned
Warehouse Agent. THE COMPANIES HEREBY EXPRESSLY, JOINTLY AND SEVERALLY
INDEMNIFY THE SEASONED WAREHOUSE AGENT FROM ITS OWN SIMPLE NEGLIGENCE IN
CONNECTION WITH THE RECEIPT, CERTIFICATION, RELEASE OR SHIPMENT OF ANY FILE OR
WAREHOUSE COLLATERAL PAPER.
5. RIGHT OF INSPECTION BY THE COMPANIES.
Upon reasonable notice to the Seasoned Warehouse Agent, the Companies
or their duly authorized representative, may at any time, during ordinary
business hours, inspect and examine the Files in the possession and custody of
the Seasoned Warehouse Agent at such place or places where such Files are
deposited.
6. SEASONED WAREHOUSE AGENT'S FEES.
The Companies will pay the fees of the Seasoned Warehouse Agent accrued
under this Agreement pursuant to a separate arrangement between them. The
duties of the Seasoned Warehouse Agent hereunder shall be independent of the
Companies' performance of their obligations to the Seasoned Warehouse Agent to
pay such fees.
7. TERMINATION OF AGREEMENT.
This Agreement shall become effective on and as of the date hereof and
shall terminate upon the Seasoned Warehouse Agent's receipt of written notice
of termination signed by the Company and all of the Seasoned Warehouse Lenders
- -- determined for purposes of this Section as excluding the Seasoned Warehouse
Agent -- and delivery of all Files then held by the Seasoned Warehouse Agent to
a successor custodian or, if authorized in writing by the Seasoned Warehouse
Agent, to the Companies or their designee. Notwithstanding termination, the
Seasoned Warehouse Agent's security interest (as agent and Representative of
the Seasoned Warehouse Lenders) in the Pledged Loans and their proceeds shall
continue in effect until all Warehouse Revolving Loans secured thereby and all
other obligations of the Companies to the Seasoned Warehouse Lenders have been
paid and satisfied in full. The termination of this Agreement shall not
operate to remove Texas Commerce as Seasoned Warehouse Agent for purposes of
the Seasoned Warehouse Credit Agreement.
8. RESIGNATION OR REMOVAL OF CUSTODIAN.
8.1 QUALIFICATIONS OF CUSTODIAN. The "custodian" of the Warehouse
Collateral Papers shall be the Seasoned Warehouse Agent, unless the Seasoned
Warehouse Agent shall resign as
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"custodian" (which does not necessarily obligate the Seasoned Warehouse Agent
to resign as Seasoned Warehouse Agent -- the two roles may be bifurcated). The
"custodian" shall satisfy the same qualifications as is required of the
Seasoned Warehouse Agent according to the terms of the Seasoned Warehouse
Credit Agreement and shall at all times be a commercial bank or trust company
organized and doing business under the laws of the United States of America or
any state, district or territory of it authorized under such laws to exercise
corporate trust powers, having a combined capital and unimpaired surplus of at
least Fifty Million Dollars ($50,000,000), having -- or if owned by a bank
holding company, such bank holding company having -- either (i) a rating of C
or better by Thomson Bank Watch, Inc. or (ii) a rating of either "A" or better
by Standard and Poor's Ratings Group or "A" or better by Moody's Investors
Service, Inc. for its most senior class of unsecured debt and subject to
supervision or examination by a federal, state, district or territorial
Governmental Authority. The "custodian" shall have an office and place of
business in Houston, Texas, if there is such a commercial bank or trust company
willing and able to act as the Custodian on reasonable and customary terms. If
such commercial bank or trust company publishes reports of conditions at least
annually, pursuant to law or to the requirements of its supervising or
examination Governmental Authority, then for the purposes of this Section, the
combined capital and unimpaired surplus of such commercial bank or trust
company shall be deemed to be its combined capital and unimpaired surplus as
set forth in its most recent report of condition so published. Notwithstanding
the foregoing, Residential Funding Corporation shall be eligible for selection
and service as successor or substitute Custodian and shall not be required to
have an office and place of business in Houston, Texas. In case the Custodian
shall cease at any time to be eligible in accordance with the provisions of
this Section, the Custodian shall resign immediately in the manner and with the
effect hereinafter specified in this SECTION 8.
8.2 RESIGNATION OF THE CUSTODIAN OR ANY SUCCESSOR CUSTODIAN. The
Seasoned Warehouse Agent, or any agent or agents hereafter appointed, at any
time may resign as "custodian" of the Warehouse Collateral Papers under this
Agreement by giving thirty (30) days written notice of resignation to the
Companies and the Seasoned Warehouse Lenders and complying with the applicable
provisions of this SECTION 8. Upon resignation of the Seasoned Warehouse Agent
as custodian, the Companies shall have twenty (20) days in which to appoint and
designate a successor acceptable to and approved by the Majority Seasoned
Warehouse Lenders and the Seasoned Warehouse Agent shall deliver all Files to
the Person so designated within ten (10) days. If the Companies fail to
designate such an approved successor custodian within such 20-day period, then
the Seasoned Warehouse Agent shall retain possession and custody of the Files
at the address provided in SECTION 10 until such time as the Majority Seasoned
Warehouse Lenders have designated a new custodian. Appointment of the
successor custodian shall be accomplished by written instrument, in triplicate,
one copy of which instrument shall be delivered to the resigning "custodian,"
one copy to the Seasoned Warehouse Agent (if the Seasoned Warehouse Agent is
not the resigning "custodian") and one copy to the successor Seasoned Warehouse
Agent.
8.3 REMOVAL OF THE CUSTODIAN OR ANY SUCCESSOR CUSTODIAN. If (a) the
Seasoned Warehouse Agent or successor custodian shall cease to be eligible in
accordance with the provisions of SECTION 8.1 and shall fail to resign after
written request by the Majority Seasoned Warehouse Lenders; (b) a receiver of
the Seasoned Warehouse Agent or successor custodian or of its property shall be
appointed or any Governmental Authority shall take charge or control of the
Seasoned
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Warehouse Agent or successor custodian or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation or (c) the Seasoned
Warehouse Agent or successor custodian shall be grossly negligent in the
performance of its material duties and obligations under this Agreement or
engage in willful misconduct concerning any such material duties and
obligations, then, in any such case, upon the unanimous consent of all the
Seasoned Warehouse Lenders -- excluding for purposes of this section the
Seasoned Warehouse Agent or successor custodian -- and the Companies, the
Seasoned Warehouse Agent or successor custodian may be removed as "custodian"
of the Warehouse Collateral Papers and a successor custodian appointed by
written instrument, in triplicate, one copy of which shall be delivered to the
custodian so removed, one copy to the Seasoned Warehouse Agent (if the Seasoned
Warehouse Agent is not the custodian removed) and one copy to the successor
custodian.
8.4 EFFECTIVE DATE OF RESIGNATION OR REMOVAL. No resignation or
removal of the Seasoned Warehouse Agent or successor custodian as "custodian"
of the Warehouse Collateral Papers shall be effective until a successor
custodian is appointed pursuant to the provisions of this SECTION 8 and has
accepted the appointment as provided in this SECTION 8. The Seasoned Warehouse
Agent, or any successor custodian hereafter appointed, shall continue to act as
custodian under this Agreement until it delivers the Files to a duly appointed
successor.
8.5 SUCCESSOR CUSTODIAN. Any successor custodian appointed as
provided in this SECTION 8 shall execute and deliver to the Companies, the
Seasoned Warehouse Lenders, the Seasoned Warehouse Agent and to its predecessor
custodian an instrument accepting such appointment, and thereupon the
resignation or removal of the predecessor custodian shall become effective and
such successor custodian, without any further act, deed or conveyance, shall
become vested with all the rights and obligations of its predecessor, with like
effect as if originally named as the custodian and shall assume all the duties
and obligations in this Agreement as Seasoned Warehouse Agent (but not the
duties and obligations of the Seasoned Warehouse Agent under the Seasoned
Warehouse Credit Agreement unless the successor custodian is also a successor
Seasoned Warehouse Agent); provided that upon the written request of the
Companies, the Majority Seasoned Warehouse Lenders or the successor custodian,
the custodian ceasing to act shall execute and deliver (a) an instrument
transferring to such successor custodian all of the rights of the custodian so
ceasing to act and (b) to such successor custodian such instruments as are
necessary to transfer the Collateral to such successor custodian (including
assignments of all Collateral or documents related to the Collateral). Upon
the request of any such successor custodian made from time to time, the
Companies shall execute any and all papers which the successor custodian shall
request or require to more fully and certainly vest in and confirm to such
successor custodian all such rights. No successor custodian shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor custodian shall be eligible under the provisions of SECTION 8.1.
8.6 MERGER OF THE CUSTODIAN OR ANY SUCCESSOR CUSTODIAN. Any Person
into which the Seasoned Warehouse Agent or any successor custodian may be
merged or converted or with which it may be consolidated, or any Person
surviving or resulting from any merger, conversion or consolidation to which
the Seasoned Warehouse Agent or successor custodian shall be a party or any
Person succeeding to the commercial banking business of the Seasoned Warehouse
Agent or such
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successor custodian, shall be the successor custodian without the execution or
filing of any paper or any further act on the part of any of the parties.
8.7 APPOINTMENT OF SUCCESSOR CUSTODIAN; TRANSFER OF PLEDGED LOANS.
The Seasoned Warehouse Agent shall, as part of the transfer of the Files,
assign the Mortgages and endorse the Mortgage Notes and the Land Contracts
(without recourse or warranty) to the successor custodian. The Seasoned
Warehouse Agent shall not be responsible for the fees of any successor
custodian, all such fees to be paid by the Companies.
9. LIMITATION ON OBLIGATIONS OF SEASONED WAREHOUSE AGENT; EXPRESS
NEGLIGENCE.
The Seasoned Warehouse Agent agrees to use its best judgment and good
faith in the performance of any obligations and duties required under this
Agreement and shall incur no liability to any other party to this Agreement for
its acts or omissions hereunder, except as may result from its gross negligence
or willful misconduct. The Seasoned Warehouse Agent shall be entitled to rely
upon the advice of its legal counsel from time to time and shall not be liable
for any action or inaction by it in reliance upon such advice. The Seasoned
Warehouse Agent shall also be entitled to rely upon any notice, document,
correspondence, request or directive received by it from any other party to
this Agreement that the Seasoned Warehouse Agent believes to be genuine and to
have been signed or presented by the proper and duly authorized officer or
representative thereof, and shall not be obligated to inquire as to the
authority or power of any Person so executing or presenting such documents or
as to the truthfulness of any statements set forth therein. THE COMPANIES
JOINTLY AND SEVERALLY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE SEASONED
WAREHOUSE AGENT AND EACH SEASONED WAREHOUSE LENDER FROM AND AGAINST ANY CLAIM,
LEGAL ACTION, LIABILITY OR LOSS THAT IS INITIATED AGAINST OR INCURRED BY THE
SEASONED WAREHOUSE AGENT OR ANY SEASONED WAREHOUSE LENDER, INCLUDING COURT
COSTS AND REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS, IN CONNECTION WITH THE
SEASONED WAREHOUSE AGENT'S PERFORMANCE OF ITS DUTIES UNDER THIS AGREEMENT,
INCLUDING THOSE CAUSED IN WHOLE OR IN PART BY THE ORDINARY NEGLIGENCE OF THE
SEASONED WAREHOUSE AGENT, EXCLUDING, AS TO THE SEASONED WAREHOUSE AGENT, ONLY
THOSE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE SEASONED
WAREHOUSE AGENT. The Seasoned Warehouse Agent shall at its own expense
maintain at all times during the existence of this Agreement and keep in full
force and effect (a) fidelity insurance, (b) theft of documents insurance, and
(c) forgery insurance. All such insurance shall be with standard coverage and
subject to deductibles as is customary for insurance typically maintained by
banks which act as custodians and be in such amounts and with insurance
companies reasonably acceptable to the Companies.
10. NOTICES.
Any notice, demand or consent, required or permitted by this Agreement
shall be in writing and shall be effective and deemed delivered only when
received by the party to which it is sent. Any such notice, demand or consent
shall be delivered in person or transmitted by a recognized private courier
service or deposited with the United State Postal Service, certified mail,
postage prepaid, return receipt requested, addressed as follows, unless such
address is changed by written notice hereunder:
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If to the Companies:
MCA Financial Corp.
23999 Northwestern Hwy, Suite 230
Southfield, Michigan 48075
Attention: Mr. Keith D. Pietila
Phone: (248) 358-5555
Fax: (248) 358-7507
If to the Seasoned Warehouse Agent:
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
Phone: (713) 216-5382
Fax: (713) 216-2082
11. SEASONED WAREHOUSE LENDERS' PARTICIPATIONS.
The Seasoned Warehouse Lenders shall be entitled at any time or from
time to time, on the terms and conditions of SECTION 15.17 of the Seasoned
Warehouse Credit Agreement, to sell participations in Warehouse Revolving Loans
and Commitments under the Seasoned Warehouse Credit Agreement, provided that
the Seasoned Warehouse Agent retains the exclusive authority, notwithstanding
any such participation arrangements, to execute this Agreement (including all
Exhibits).
12. CONTROLLING LAW.
This Agreement and all questions relating to validity, interpretation,
performance and enforcement, shall be governed by and construed, interpreted
and enforced in accordance with the laws of the State of Texas, notwithstanding
any Texas or other conflict-of-law provisions to the contrary.
13. AGREEMENT FOR THE EXCLUSIVE BENEFIT OF PARTIES.
This Agreement is for the exclusive benefit of the parties hereto and
the Seasoned Warehouse Lenders (including in the case of the Seasoned Warehouse
Lenders, the Seasoned Warehouse Lenders' participants), and their respective
successors and permitted assigns, and shall not be deemed to create or confer
any legal or equitable right, remedy, or claim upon any other Person
whatsoever.
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14. ENTIRE AGREEMENT.
This Agreement contains the entire agreement among the parties hereto
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof, including any prior custody agreements. The express
terms hereof control and supersede any course of performance and/or usage of
the trade inconsistent with any of them terms hereof. This Agreement may not
be amended, modified or supplemented unless such amendment, modification or
supplement is set forth in a writing signed by the Companies, the Agent and
such of the Seasoned Warehouse Lenders whose consent or approval is required by
the applicable provisions of SECTIONS 15.2 through 15.4 of the Seasoned
Warehouse Credit Agreement.
15. EXHIBITS.
All Exhibits referred to herein or attached hereto are hereby
incorporated by reference into, and made a part of, this Agreement.
16. INDULGENCES, NOT WAIVERS.
Neither the failure nor any delay on the part of a party hereto to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or of any other right, remedy, power or privilege or with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it
is writing and is signed by the parties asserted to have granted such waiver.
17. TITLES NOT TO AFFECT INTERPRETATION.
The titles of sections and subsections contained in this Agreement are
for convenience only, and they neither form a part of this Agreement nor are
they to be used in the construction or interpretation hereof.
18. PROVISIONS SEPARABLE.
The provisions of this Agreement are independent of and separable from
each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other provisions
may be invalid or unenforceable in whole or in part.
19. RELATIONSHIP OF THE COMPANIES TO THE SEASONED WAREHOUSE AGENT.
19.1 The Seasoned Warehouse Agent and each other party hereto shall be
entitled to deal with the Companies and with any and all Warehouse Collateral
Papers, payments, instructions, notices or other instruments, without regard to
the ownership or other interests of the Companies in the Pledged Loans, and THE
COMPANIES JOINTLY AND SEVERALLY AGREE TO INDEMNIFY, DEFEND AND HOLD
20
<PAGE> 217
HARMLESS THE SEASONED WAREHOUSE AGENT AND EACH SEASONED WAREHOUSE LENDER FROM
AND AGAINST ALL CLAIMS, DEMANDS, ACTIONS, LIABILITIES, COSTS AND DAMAGES WHICH
THEY, OR ANY OF THEM, MAY INCUR OR BE SUBJECTED TO AS A RESULT OF OR RELATING
TO ACTIONS OR INACTIONS TAKEN PURSUANT HERETO, INCLUDING THOSE ARISING IN WHOLE
OR IN PART DUE TO THE ORDINARY NEGLIGENCE OF THE INDEMNIFIED PARTY, EXCLUDING
ONLY CLAIMS SOLELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
INDEMNIFIED PARTIES.
(The remainder of this page is intentionally blank)
21
<PAGE> 218
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first set forth above.
MCA FINANCIAL CORP. MCA MORTGAGE COMPANY
By: Keith D. Pietila By: Lee P. Wells
------------------------------- -----------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
----------------------------- ---------------------------
Title: EVP Title: PRESIDENT
---------------------------- --------------------------
MORTGAGE CORPORATION MORTGAGE CORPORATION OF AMERICA,
OF AMERICA INC.
By: Keith D. Pietila By: Lee P. Wells
------------------------------- -----------------------------
Name: KEITH D. PIETILA Name: LEE P. WELLS
----------------------------- ---------------------------
Title: VP Title: PRESIDENT
---------------------------- --------------------------
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Seasoned Warehouse Agent
By: Pamela E. Skinner
-------------------------------
Name: PAMELA E. SKINNER
-----------------------------
Title: VICE PRESIDENT
----------------------------
Unnumbered counterpart signature page to
Seasoned Warehouse Custody Agreement between (i) MCA Financial Corp.,
MCA Mortgage Corp., Mortgage Corporation of
America and Mortgage Corporation
of America, Inc. and
(ii) Texas Commerce Bank National Association, Seasoned Warehouse Agent
<PAGE> 219
Attached:
Exhibit A - Forms of Bailee Letters
Exhibit B - Form of Letter of Transmittal
Exhibit C - Form of Notice/Followup Notice of Receipt
Exhibit D - Form of Summary of Pledged Loans
Exhibit E - Form for Payoff Requests
Exhibit F - Form for Payoff Schedule
Exhibit G - Form of Document Return Letter
Exhibit H - Preliminary Title Report States
Exhibit I - Form of Trust Receipt
Schedule 4.1 - Form of Shipping Request
Schedule TF - Standard Warehouse Transmission File instructions
23
<PAGE> 220
EXHIBIT A
TO SEASONED WAREHOUSE CUSTODY AGREEMENT
[FORM OF BAILEE LETTER FOR SHIPMENTS
OF LOANS TO INVESTORS FOR PURCHASE]
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
P. O. BOX 2558
HOUSTON, TEXAS 77252-8041
[date]
[Investor's name and address]
Re: "Bailee Letter" for [COMPANY NAME]'s Loan(s) shipped herewith for your
inspection and purchase
Ladies and Gentlemen:
WHAT AND WHOSE LOANS ARE ENCLOSED?
Pursuant to the request of [COMPANY NAME] (the "MORTGAGE COMPANY"), Texas
Commerce Bank National Association (the "SEASONED WAREHOUSE AGENT/CUSTODIAN"),
as agent and documents custodian for a syndicate of lenders (the "SEASONED
WAREHOUSE LENDERS") to the Mortgage Company, hereby delivers to you with this
letter the promissory notes or Land Contracts evidencing the loans ("LOANS")
described on the attached Schedule of Shipped Loans and related loan documents
(collectively, the "LOAN PAPERS").
THE SHIPPED LOANS ARE STILL PLEDGED TO THE SEASONED WAREHOUSE LENDERS
To secure the Mortgage Company's debt and other obligations to the Seasoned
Warehouse Lenders, the Mortgage Company has pledged (among other collateral)
the Loans to the Seasoned Warehouse Lenders, and has collaterally assigned
to the Seasoned Warehouse Agent/Custodian and granted the Seasoned Warehouse
Agent/Custodian (as agent and representative of the Seasoned Warehouse Lenders)
a security interest in (i) the Loan Papers, (ii) the Loans that they evidence
and (iii) all related security and rights. The Seasoned Warehouse Lenders and
the Seasoned Warehouse Agent/Custodian expressly retain and reserve all of
their rights in the Loans and the Loan Papers until you have purchased and
actually made payment to the Seasoned Warehouse Agent/Custodian for them in
accordance with this letter.
YOU ARE OUR BAILEE
During the period from your receipt of Loans until you either so purchased and
paid for them or you have returned them to our possession, you are and will be
bailee for the Seasoned Warehouse Lenders and the Seasoned Warehouse
Agent/Custodian as their agent and secured party on their behalf, for the
purpose of perfecting and maintaining perfection of the security interest that
the
<PAGE> 221
[Investor s name]
[Date]
Page [number]
Mortgage Company has granted to the Seasoned Warehouse Lenders and the
Seasoned Warehouse Agent/Custodian in (or pursuant to) the 10/97 Senior Secured
Seasoned Warehouse Credit Agreement dated as of October 31, 1997 among the
Mortgage Company, the Seasoned Warehouse Lenders and the Seasoned Warehouse
Agent/Custodian, as supplemented, amended or restated from time to time (the
"SEASONED WAREHOUSE CREDIT AGREEMENT").
PERSONS AUTHORIZED TO ACT
Only the persons named on the attached Schedule of Seasoned Warehouse
Agent/Custodian's Authorized Persons (the "SEASONED WAREHOUSE AGENT/CUSTODIAN'S
AUTHORIZED PERSONS") have authority to request or direct you to take any
action, or to make any agreement with you, with respect to the Loans. You may
not honor any notice, direction or other communication from the Mortgage
Company (or anyone else) concerning the Loans and Loan Papers unless it is
confirmed by one of the Seasoned Warehouse Agent/Custodian's Authorized Persons
(WRITTEN CONFIRMATION IS REQUIRED TO CHANGE ANY RELEASE PRICE (DEFINED BELOW)
OR TO AUTHORIZE ANY ACTION THAT INVOLVES MORE THAN THREE (3) LOANS; otherwise,
telephone confirmation is sufficient).
PAY-OFF PRICE PAYMENT IS REQUIRED FOR RELEASE
WHEN YOU HAVE PAID THE SEASONED WAREHOUSE AGENT/CUSTODIAN FOR THE
LOANS, THE SEASONED WAREHOUSE LENDERS' (AND THEIR AGENT, THE SEASONED WAREHOUSE
AGENT/CUSTODIAN'S) SECURITY INTEREST IN THE LOANS (AND THEIR LOAN PATERS) SHALL
AUTOMATICALLY TERMINATE, THE PAYMENT THAT MUST BE MADE TO THE SEASONED
WAREHOUSE AGENT/CUSTODIAN BEFORE THE SEASONED WAREHOUSE LENDERS' SECURITY
INTEREST IN EACH LOAN PURCDHASED WILL BE RELEASED IS ITS "PAY-OFF PRICE", WHICH
IS THE GREATER OF:
(X) THE MINIMUM PAYMENT REQUIRED FOR RELEASE OF THE SEASONED WAREHOUSE
LENDERS' SECURITY INTEREST (THE "RELEASE PRICE") IN EACH LOAN, AS SET FORTH IN
THE "RELEASE PRICE" COLUMN OF THE SCHEDULE OF SHIPPED LOANS; OR
(Y) THE PURCHASE PRICE THAT YOU AND THE MORTGAGE COMPANY HAVE AGREED
YOU WILL PAY FOR SUCH LOAN (THE "AGREED PURCHASE PRICE").
SECURITY INTEREST NOT RELEASED UNTIL FULL PAY-OFF PRICE IS PAID
If you pay the Seasoned Warehouse Agent/Custodian only the Agreed Purchase
Price for a Loan whose Release Price is more than that, THE SEASONED WAREHOUSE
LENDER'S SECURITY INTEREST IN THAT LOAN WILL NOT BE RELEASED unless and until
either you or
<PAGE> 222
[Investor's name]
[Date]
Page [number]
the Mortgage Company pays the difference AND gives the Seasoned Warehouse
Agent/Custodian a written notice saying what the payment is for -- the notice
must give the Seasoned Warehouse Agent/Custodian enough information to enable
it to both (i) identify the Loan with the payment and (ii) determine that the
amount of the payment equals the excess of the Loan's Release Price over its
Agreed Purchase Price.
NO OTHER DELIVERY BEFORE PAYMENT
Until the Seasoned Warehouse Agent/Custodian has received payment of the
full Pay-Off Price for a Loan,you may not deliver any of its Loan Papers to
anyone other than the Seasoned Warehouse Agent/Custodian without authorization
from a Seasoned Warehouse Agent/Custodian's Authorized Person.
IF YOU'VE ALREADY PAID THE PAY-OFF PRICE
If (but only if) you have already paid the Pay-Off Price for a Loan to the
Seasoned Warehouse Agent/Custodian, then the enclosed Loan Papers for that Loan
are being delivered to you free of such security interest or any trust,
bailment or any other claim by the Seasoned Warehouse Lenders and their agent,
the Seasoned Warehouse Agent/Custodian.
LOAN PAPERS ARE DELIVERED CONDITIONALLY AND IN TRUST; YOUR AGREEMENT TO PAY
FOR OR RETURN THEM
However, for each Loan for which you have NOT
already paid the full Pay-Off Price, we are delivering
the enclosed Loan Papers to you IN TRUST and on the
express condition that you will promptly:
(a) examine them; and
(b) decide whether you will purchase any or all of
the Loans;
and that, with respect to each Loan, you will promptly either:
(c) remit by federal funds immediately available to the Seasoned
Warehouse Lender directed to Texas Commerce Bank National
Association, ABA No. 1130-0060-9 Attention: ______________________,
Corporate Mortgage Finance Group (713) ___________, Re: [COMPANY
NAME] Account No. ___________________________) the Pay-off Price
for that Loan; or
(d) return the promissory note or Land Contract and all of the
other papers relating to that Loan to us.
21-DAY NOTICE OF YOUR PURCHASE DECISION; YOU AGREE TO BUY LOANS YOU DON'T
SPECIFICALLY REJECT
It is very important that you promptly notify
us in writing of your decision with respect to each
Loan so that we will know at all
<PAGE> 223
[Investor's name]
[Date]
Page [number]
times which specific Loans will remain as part of the Seasoned Warehouse
Lenders' collateral and which will not. Accordingly, you agree to give the
Seasoned Warehouse Agent/Custodian written notice on or before twenty-one (21)
days after the date of this letter that identifies which (if any) of the
enclosed Loans you elect not to purchase, and you agree to purchase all of the
enclosed Loans that you do not list in that notice.
OUR ABSOLUTE RIGHT TO REQUIRE RETURN OF LOANS NOT SOONER PAID FOR
NOTWITHSTANDING ANY OTHER PROVISION OF THIS LETTER, UNLESS THE
SEASONED WAREHOUSE AGENT/CUSTODIAN HAS ALREADY RECEIVED THE PAY-OFF PRICE FOR
EACH OF THE LOANS, THE ENCLOSED LOAN PAPERS ARE DELIVERED TO YOU UPON THE
EXPRESS AND CONTROLLING CONDITION THAT YOU WILL RETURN ANY OR ALL OF THEM TO
US, AS SEASONED WAREHOUSE AGENT/CUSTODIAN, PROMPTLY UPON YOUR RECEIPT OF OUR
WRITTEN DIRECTION TO DO SO, REGARDLESS OF WHETHER OR NOT YOU HAVE DECIDED TO
PURCHASE THE LOAN OR LOANS TO WHICH THE LOAN PAPERS REQUIRED TO BE RETURNED
TO US RELATE, EXCLUDING ONLY THOSE LOANS (IF ANY) FOR WHICH YOU HAVE ALREADY
PAID US THE PAY-OFF PRICE.
YOU AGREE TO KEEP THE LOAN PAPERS SAFE
You Agree to keep all of the enclosed Loan Papers safe from fire, loss, theft
and other casualty and agree to bear any loss, cost or expense the Seasoned
Warehouse Agent/Custodian or the Seasoned Warehouse Lenders may incur as a
result of any such event.
THIS LETTER CONTROLS
If any other paper you receive from us, the Mortgage Company or anyone else
in respect of the Loans is inconsistent with this letter, then this letter
shall control unless a Seasoned Warehouse Agent/ Custodian's Authorized Person
confirms IN WRITING that the other paper controls.
PLEASE CONFIRM RECEIPT
Please immediately indicate your receipt of this letter and the enclosed
Loan Papers, and your acceptance of and agreement to the trust and the terms
and conditions stated above, by dating and
<PAGE> 224
[Investor's name]
[Date]
Page [number]
signing the enclosed copy of this letter and returning it to us (although your
doing so will not be necessary to the effectiveness of any of this letter's
terms, provisions or conditions).
Very truly yours,
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Seasoned Warehouse
Agent/Custodian
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Attached:
Schedule of Loans shipped
Schedule of Seasoned Warehouse Agent/Custodian's Authorized Persons
RECEIPT ACKNOWLEDGED AND TRUST, TERMS AND CONDITIONS ACCEPTED AND AGREED TO ON
__________________, 19__:
--------------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
<PAGE> 225
SCHEDULE OF LOANS SHIPPED
DATE:_______
MORTGAGOR NAME LOAN NUMBER RELEASE PRICE
<PAGE> 226
SCHEDULE OF SEASONED WAREHOUSE AGENT/CUSTODIAN'S AUTHORIZED PERSONS
(Persons authorized to direct or confirm the Mortgage Company's directions
concerning Loans shipped to you by
Texas Commerce Bank National Association, as Seasoned Warehouse Agent
under the Senior Secured Seasoned Warehouse Credit Agreement with
MCA Financial Corp., MCA Mortgage Corp., Mortgage
Corporation of America and Mortgage Corporation
of America, Inc.)
Effective Date:__________________
Confirmed by:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
Seasoned Warehouse Agent/Custodian
By:
-------------------------
Name:
-----------------------
Title:
----------------------
<PAGE> 227
[FORM OF BAILEE LETTER FOR SHIPMENTS
OF LOANS TO STRUCTURED SECURITIES
CUSTODIAN FOR SECURITIZATION]
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
P. O. BOX 2558
HOUSTON, TEXAS 77252-8041
[date]
[Structured Securities issuer's custodian's name and address]
Re: [COMPANY NAME]'s Loan(s) shipped herewith for inspection and
securitization
Ladies and Gentlemen:
WHAT AND WHOSE LOANS ARE ENCLOSED?
Pursuant to the request of [COMPANY NAME] (the "MORTGAGE COMPANY"), Texas
Commerce Bank National Association (the "SEASONED WAREHOUSE AGENT/CUSTODIAN"),
as agent and documents custodian for a syndicate of lenders (the "SEASONED
WAREHOUSE LENDERS") to the Mortgage Company, hereby delivers to you with this
letter the promissory notes evidencing the loans ("LOANS") described on the
attached schedule of loans shipped and related loan documents (collectively,
the "LOAN PAPERS").
THE SHIPPED LOANS ARE STILL PLEDGED TO THE SEASONED WAREHOUSE LENDERS
To secure the Mortgage Company's debt and other obligations to the Seasoned
Warehouse Lenders, the Mortgage Company has pledged (among other collateral)
the Loans to the Seasoned Warehouse Lenders, and has collaterally assigned to
the Seasoned Warehouse Agent/Custodian and granted the Seasoned Warehouse
Agent/Custodian (as agent and representative of the Seasoned Warehouse Lenders)
a security interest in (i) the Loan Papers, (ii) the Loans that they evidence
and (iii) all related security and rights.
The Seasoned Warehouse Lenders and the Seasoned Warehouse
Agent/Custodian expressly retain and reserve all of their rights in the Loans
and the Loan Papers until the issuer of structured securities for whom you are
custodian (the "ISSUER") has accepted them for securitization and actually
issued the structured security to be created from a Loan pool that includes
these Loans (the "SUBJECT SECURITY").
YOU ARE OUR BAILEE
During the period from your receipt of Loans until the Subject Security has
been issued or you have returned them to our possession, you are and will be
bailee for the Seasoned Warehouse Lenders and the Seasoned Warehouse
Agent/Custodian (as their agent and secured party on their
<PAGE> 228
[Securities issuer's custodian's name]
[date]
Page 2
behalf), for the purpose of perfecting and maintaining perfection of the
security interest that the Mortgage Company has granted to the Seasoned
Warehouse Lenders and the Seasoned Warehouse Agent/Custodian in (or pursuant
to) the 10/97 Senior Secured Seasoned Warehouse Credit Agreement dated as of
October 31, 1997 among the Mortgage Company, the Seasoned Warehouse Lenders
and the Seasoned Warehouse Agent/Custodian, as supplemented, amended or
restated from time to time (the "SEASONED WAREHOUSE CREDIT AGREEMENT").
PERSONS AUTHORIZED TO ACT
Only the persons named on the attached Schedule of Seasoned Warehouse
Agent/Custodian's Authorized Persons (the "SEASONED WAREHOUSE AGENT/CUSTODIAN'S
AUTHORIZED PERSONS") have authority to request or direct you to take any
action, or to make any agreement with you, with respect to the Loans. You may
not honor any notice, direction or other communication from the Mortgage
Company (or anyone else) concerning the Collateral unless it is confirmed by
one of the Seasoned Warehouse Agent/Custodian's Authorized Persons (WRITTEN
CONFIRMATION IS REQUIRED TO CHANGE ANY RELEASE PRICE (DEFINED BELOW) OR TO
AUTHORIZE ANY ACTION THAT INVOLVES MORE THAN THREE (3) LOANS; otherwise,
telephone confirmation is sufficient).
UNTIL THE SEASONED WAREHOUSE AGENT/CUSTODIAN HAS RECEIVED PAYMENT OF
THE FULL PAY-OFF PRICE (DEFINED BELOW) FOR A LOAN, YOU MAY NOT DELIVER ANY OF
ITS LOAN PAPERS TO ANYONE OTHER THAN THE SEASONED WAREHOUSE AGENT/CUSTODIAN
WITHOUT AUTHORIZATION FROM A SEASONED WAREHOUSE AGENT/CUSTODIAN'S AUTHORIZED
PERSON. The "PAY-OFF PRICE" for any Loan is the greater of:
(x) the minimum payment required for release of the Seasoned Warehouse
Lender's security interest (the "RELEASE PRICE") in each Loan, as set forth in
the "Release Price" column of the Schedule of Shipped Loans; or
(y) the purchase price that you and the Mortgage Company have agreed
the Mortgage Company will effectively receive for such Loan (the "AGREED
PURCHASE PRICE") from the proceeds of sale of the Subject Security.
SUBJECT SECURITY'S INSUANCE TERMINATES EXISTING SECURITY INTEREST IN LOANS
THEMSELVES BUT NOT THEIR PROCEEDS
If and when the Subject Security is issued, the Seasoned Warehouse Lender's
security interest in the Loans and in their Loan Papers that are delivered to
you herewith shall automatically terminate; provided that the Seasoned
Warehouse Lenders' and the Seasoned Warehouse Agent/Custodian's security
interest in the Loans' proceeds shall NOT terminate, and shall automatically
attach to and continue in all of the Mortgage Company's right, title and
interest in and to the Subject Security when issued, and in and to the Subject
Security's
<PAGE> 229
[Securities issuer's custodian's name]
[date]
Page 3
proceeds, until such time as the full Pay-off Price shall have been paid to the
Seasoned Warehouse Agent/Custodian.
LOAN PAPERS AREDELIVERED CONDITIONALLY IN TRUST AND IN TRUST; YOUR AGREEMENT TO
ACCEPT OR RETURN THEM
We are delivering the enclosed Loan Papers to you and on the express condition
that:
(a) you will promptly examine them; and
(b) the Issuer will promptly decide whether to
accept the Loans into the pool of Loans from
which the Subject Security will be created;
and that, with respect to each Loan, you will promptly either:
(c) advise the Seasoned Warehouse Agent/Custodian immediately when the
Subject Security based on a pool that includes such Loan has been
issued; or
(d) return the promissory note and all of the other papers relating to
that Loan to us.
YOU AGREE TO KEEP THE LOAN PAPERS SAFE
It is very important that you promptly notify us in writing of the Issuer's
decision with respect to each loan so that we will know at all times which
specific Loans will remain as part of the Seasoned Warehouse Lenders'
collateral and which will not. Accordingly, YOU AGREE TO GIVE THE SEASONED
WAREHOUSE AGENT/CUSTODIAN WRITTEN NOTICE ON OR BEFORE TWENTY-ONE (21) DAYS
AFTER THE DATE OF THIS LETTER THAT IDENTIFIES WHICH (IF ANY) OF THE ENCLOSED
LOANS THAT THE ISSUER ELECTS NOT TO INCLUDE IN THE POOL OF LOANS ON WHICH THE
SUBJECT SECURITY WILL BE BASED, AND THE ISSUER WILL INCLUDE THEREIN ALL OF THE
ENCLOSED LOANS THAT YOU DO NOT LIST IN THAT NOTICE.
<PAGE> 230
[Securities issuer's custodian's name]
[date]
Page 4
OUR ABSOLUTE RIGHT TO REQUIRE RETURN OF LOANS NOT SOONER SECURITIZED
NOTWITHSTANDING ANY OTHER PROVISION OF THIS LETTER, UNLESS THE
SEASONED WAREHOUSE AGENT/CUSTODIAN HAS ALREADY RECEIVED THE PAY-OFF PRICE FOR
EACH OF THE LOANS OR THE SUBJECT SECURITY BASED ON THEM HAS ALREADY BEEN
ISSUED BY THE ISSUER, THE ENCLOSED LOAN PAPERS ARE DELIVERED TO YOU UPON THE
EXPRESS AND CONTROLLING CONDITION THAT YOU WILL RETURN ANY OR ALL OF THEM TO
US, AS SEASONED WAREHOUSE AGENT/CUSTODIAN, PROMPTLY UPON YOUR RECEIPT OF OUR
WRITTEN DIRECTION TO DO SO, REGARDLESS OF WHETHER OR NOT THE ISSUER HAS
DECIDED TO INCLUDE SUCH LOANS IN THE POOL OF LOANS FROM WHICH THE SUBJECT
SECURITY WILL BE CREATED, EXCLUDING ONLY THOSE LOANS (IF ANY) FROM WHICH SUCH
A SECURITY HAS ALREADY BEEN CREATED AND ISSUED.
You agree to keep all of the enclosed Loan Papers safe from fire, loss, theft
and other casualty and agree to bear any loss, cost or expense we or the
Seasoned Warehouse Lenders may incur as a result of any such event.
THIS LETTER CONTROLS
If any other paper you receive from us, the Mortgage Company or anyone else in
respect of the Loans is inconsistent with this letter, then this letter shall
control unless a Seasoned Warehouse Agent/ Custodian's Authorized Person
confirms IN WRITING that the other paper controls.
PLEASE CONFIRM RECEIPT
Please immediately indicate your receipt of this letter and the enclosed Loan
Papers, and your acceptance of and agreement to the trust and the terms and
conditions stated above, by dating and
<PAGE> 231
[Securities issuer's custodian's name]
[date]
Page 5
signing the enclosed copy of this letter and returning it to us (although your
doing so will not be necessary to the effectiveness of any of this letter's
terms, provisions or conditions).
Very truly yours,
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Seasoned Warehouse
Agent/Custodian
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Attached:
Schedule of Loans shipped
Schedule of Seasoned Warehouse Agent/Custodian's Authorized Persons
RECEIPT ACKNOWLEDGED AND TRUST, TERMS AND CONDITIONS ACCEPTED AND AGREED TO ON
__________, 19__:
-------------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
<PAGE> 232
SCHEDULE OF LOANS SHIPPED
DATE:_____________
Mortgagor Name Loan Number Release Price
<PAGE> 233
SCHEDULE OF SEASONED WAREHOUSE AGENT/CUSTODIAN'S AUTHORIZED PERSONS
(Persons authorized to direct -- or to confirm the Mortgage Company's
directions -- for and on behalf of the Seasoned Warehouse Agent/Custodian
concerning Loans shipped to you by Texas Commerce Bank National
Association, as Seasoned Warehouse Agent/Custodian under the Seasoned
Warehouse Custody Agreement dated October 31, 1997, as amended, with MCA
Financial Corp., MCA Mortgage Corporation, Mortgage Corporation of America
and Mortgage Corporation of America, Inc.)
Effective Date:__________________
Confirmed by:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
Seasoned Warehouse Agent/Custodian
By:
---------------------------
Name:
-------------------------
Title:
------------------------
<PAGE> 234
EXHIBIT B
COMPANIES'
LETTER OF TRANSMITTAL
<PAGE> 235
EXHIBIT C
NOTICE OF RECEIPT or FOLLOW-UP NOTICE OF RECEIPT
[date]
MCA Financial Corp., MCA Mortgage Corp.,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
23999 Northwestern Hwy, Suite 230
Southfield, Michigan 48075
Re: Seasoned Warehouse Custody Agreement dated October 31, 1997 (as it may
have been supplemented, amended or restated, the "Seasoned Warehouse
Custody Agreement") by and among MCA Financial Corp., MCA Mortgage
Corp. and Mortgage Corporation of America (the "Borrowers") joined by
Mortgage Corporation of America, Inc. (collectively, the "Companies"),
and Texas Commerce Bank National Association ("TEXAS COMMERCE"), as a
lender and as agent (the "SEASONED WAREHOUSE AGENT") for the other
lenders (collectively with Texas Commerce, the "SEASONED WAREHOUSE
LENDERS") under the 10/97 Senior Secured Seasoned Warehouse Credit
Agreement dated as of October 31, 1997 (as it may have been or may be
supplemented, amended or restated from time to time, the "SEASONED
WAREHOUSE CREDIT AGREEMENT")
Ladies and Gentlemen:
All initially capitalized terms used herein have the same meanings here
as in the Seasoned Warehouse Custody Agreement.
[ ] This is a Notice of Receipt for Basic Papers.
In accordance with SECTION 3.2 of the Seasoned Warehouse Custody
Agreement, the Seasoned Warehouse Agent hereby:
(1) acknowledges to the Companies receipt of all Basic Papers for each
of the Pledged Loans listed in the attached Submission List (the "SUBMITTED
LOANS"); and
(2) as to each of the Submitted Loans, certifies to the Seasoned
Warehouse Lenders that the Seasoned Warehouse Agent has reviewed its File
and has determined, based on its examination of the papers in such File
that (i) all of such File's Basic Papers [ ](check if applicable) except
for Basic Papers temporarily returned to the Companies or their designee
under a trust receipt, for correction, collection or other servicing
action), are in such File and such File is in the Seasoned Warehouse
Agent's possession, (ii) the Basic Papers appear regular on their faces and
to relate to such Submitted Loan, (iii) the information set forth in the
Submission List respecting such Submitted Loan appears correct, and (iv)
the Basic Papers appear on their faces to satisfy the requirements stated
in SECTION 3.1 of the Seasoned Warehouse Custody Agreement.
[ ] This is a Follow-up Notice of Receipt. In accordance with SECTION 3.2
of the Seasoned Warehouse Custody Agreement, the Seasoned Warehouse Agent
hereby:
(1) acknowledges to the Companies and certifies to the Seasoned
Warehouse Lenders receipt from the Companies of the documents listed in the
attached copy of the Seasoned Warehouse Agent's Document Return Letter to the
Companies dated ________ (the "RETURNED DOCUMENTS") by which such Returned
Documents were sent by the Seasoned Warehouse Agent to the Companies for the
purpose(s) stated in such Document Return Letter; and
<PAGE> 236
(2) as to each of the Pledged Loans to which the Returned Documents
relate, the Seasoned Warehouse Agent certifies to the Seasoned Warehouse
Lenders that the Seasoned Warehouse Agent has reviewed such Pledged Loan's File
and has determined, based on its examination of the papers in such File
(including the Returned Documents) that (i) all of such File's Basic Papers [ ]
(check if applicable) are now in such File and such File is in the Seasoned
Warehouse Agent's possession, (ii) the Basic Papers appear regular on their
faces and to relate to such Pledged Loan and (iii) the Basic Papers for such
Pledged Loan appear on their faces to satisfy the requirements stated in
SECTION 3.1 of the Seasoned Warehouse Custody Agreement.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
(The Seasoned Warehouse Agent)
Attached:
[ ] (for Notice of Receipt) Submission List(s)
[ ] (for Follow-up Notice of Receipt) Copy of relevant Document Return Letter
<PAGE> 237
EXHIBIT D
SUMMARY OF PLEDGED LOANS
[date]
MCA Financial Corp., MCA Mortgage Corp.,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
23999 Northwestern Hwy, Suite 230
Southfield, Michigan 48075
Re: Seasoned Warehouse Custody Agreement dated October 31, 1997 (as it
may have been supplemented, amended or restated, the "Seasoned
Warehouse Custody Agreement") by and among MCA Financial Corp., MCA
Mortgage Corp. and Mortgage Corporation of America (the
"Borrowers") joined by Mortgage Corporation of America, Inc.
(collectively, the "Companies"), and Texas Commerce Bank National
Association ("TEXAS COMMERCE"), as a lender and as agent (the
"SEASONED WAREHOUSE AGENT") for the other lenders (collectively
with Texas Commerce, the "SEASONED WAREHOUSE LENDERS") under the
10/97 Senior Secured Seasoned Warehouse Credit Agreement dated as
of October 31, 1997 (as it may have been or may be supplemented,
amended or restated from time to time, the "SEASONED WAREHOUSE
CREDIT AGREEMENT")
Ladies and Gentlemen:
We confirm that as of the above date we hold as the agent and
Representative of the Seasoned Warehouse Lenders under the captioned Seasoned
Warehouse Custody Agreement the Pledged Loans described on the attached Loan ID
Report.
[NOTE: TEXAS COMMERCE IS TO ATTACH REPORT SHOWING LOAN (OR LAND
CONTRACT) NUMBER, CUSTOMER LAST NAME, FACE AMOUNT OF MORTGAGE NOTE OR
ORIGINAL LAND CONTRACT AMOUNT, BALANCE AND STATUS, I.E., THE NOTICE OF
RECEIPT FOR THE BASIC PAPERS].
All initially capitalized terms used herein have the same meanings here
as in the Seasoned Warehouse Custody Agreement.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Seasoned Warehouse Agent
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
<PAGE> 238
EXHIBIT E
PAYOFF REQUEST
PURPOSE:
--------------------------------
FINAL LIST
<TABLE>
<CAPTION>
CURRENT ORIGINAL
LOAN NOTE NOTE DATE
NUMBER BORROWER NAME BALANCE BALANCE FUNDED
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 239
EXHIBIT F
PAYOFF SCHEDULE
as of
-------------------------------
<TABLE>
<CAPTION>
CURRENT ORIGINAL
FILE NOTE COMPANY
NUMBER BORROWER NAME BALANCE BORROWING EXCEPTION
AMOUNT
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 240
EXHIBIT G
DOCUMENT RETURN LETTER
Date:______________
To:
MCA Financial Corp., MCA Mortgage Corp.,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
23999 Northwestern Hwy, Suite 230
Southfield, Michigan 48075
Re: Seasoned Warehouse Custody Agreement dated October 31, 1997 (as it may
have been supplemented, amended or restated, the "Seasoned Warehouse
Custody Agreement") by and among MCA Financial Corp., MCA Mortgage Corp.
and Mortgage Corporation of America (the "Borrowers") joined by Mortgage
Corporation of America, Inc. (collectively, the "Companies"), and Texas
Commerce Bank National Association ("TEXAS COMMERCE"), as a lender and as
agent (the "SEASONED WAREHOUSE AGENT") for the other lenders (collectively
with Texas Commerce, the "SEASONED WAREHOUSE LENDERS") under the 10/97
Senior Secured Seasoned Warehouse Credit Agreement dated as of October 31,
1997 (as it may have been or may be supplemented, amended or restated from
time to time, the "SEASONED WAREHOUSE CREDIT AGREEMENT")
Re: Loan Number __ __ __ - __ __ __ __ __
The Seasoned Warehouse Agent hereby returns to the Companies the
following documents received by the Seasoned Warehouse Agent pursuant to the
attached Letter of Transmittal for the following reasons:
DOCUMENT FOLLOW-UP ACTION REQUIRED
____________________________________________________ __________
____________________________________________________ __________
____________________________________________________ __________
____________________________________________________ __________
____________________________________________________ __________
____________________________________________________ __________
____________________________________________________ __________
The above deficiencies should be corrected immediately and the corrected
documents promptly returned to the Seasoned Warehouse Agent. Pending such
return, you are to hold such documents as bailee and in trust for Texas
Commerce Bank National Association, as Seasoned Warehouse Agent and
Representative of the Seasoned Warehouse Lenders. If a delay is anticipated,
Texas Commerce Bank National Association, as Seasoned Warehouse Agent, must be
notified.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Seasoned Warehouse Agent
By: ________________________________
Authorized Officer
<PAGE> 241
EXHIBIT H
PRELIMINARY TITLE REPORT STATES
A Preliminary Title Report may be delivered for Mortgaged Property
located in the following states:
1. California
<PAGE> 242
EXHIBIT I
TRUST RECEIPT AND AGREEMENT
SEASONED WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199__
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
________________________________________________________________________________
This trust receipt and agreement is delivered under the Seasoned
Warehouse Custody Agreement dated as of October 31, 1997 executed between the
Seasoned Warehouse Agent (as the "CUSTODIAN" therein) and the Companies pursuant
to the 10/97 Senior Secured Seasoned Warehouse Credit Agreement (as
supplemented, amended or restated, the "SEASONED WAREHOUSE CREDIT AGREEMENT"),
between the Companies and Texas Commerce Bank National Association, as Seasoned
Warehouse Agent for the Seasoned Warehouse Lenders. Terms defined in the
Seasoned Warehouse Credit Agreement and the Seasoned Warehouse Custody Agreement
have the same meanings when used -- unless otherwise defined -- in this trust
receipt and agreement.
In accordance with the Seasoned Warehouse Custody Agreement, the
Companies hereby:
(check one)
[ ] request
[ ] acknowledge
delivery by Seasoned Warehouse Agent to the Company designated below of:
(check one)
[ ] the entire File of Warehouse Collateral Papers
[ ] the following specific Warehouse Collateral Papers from the File:
_________________________________
for the Mortgage Loans or Land Contracts referred to below and for the purpose
of making the corrections or performing the servicing functions described as
follows:
Description of Collateral: _________________
Original Amount: $_____________
<PAGE> 243
Company to Deliver to:
---------------------
Corrections or servicing
functions: ---------------------
---------------------
---------------------
The Companies agree that (a) these Warehouse Collateral Papers are
delivered to the Companies solely for the purpose of making these corrections,
(b) these Warehouse Collateral Papers are, and shall continue to be, subject to
Lender Liens under the Warehouse Loan Documents, (c) the Companies shall hold
these Warehouse Collateral Papers as bailee and trustee for the Seasoned
Warehouse Agent, as agent and Representative of the Seasoned Warehouse Lenders,
and (d) the Companies may not deliver any of these Warehouse Collateral Papers
to a third party unless (i) it is necessary in order to complete the
corrections, and (ii) the Companies notify that third party that the Warehouse
Collateral Papers are, and continue to be, subject to Lender Liens under the
Warehouse Loan Documents, and obtain from that third party its agreement to hold
those Warehouse Collateral Papers as bailee and trustee for the Seasoned
Warehouse Agent, as agent and Representative of the Seasoned Warehouse Lenders
until they have been returned to the Custodian or the amount of the Borrowing
Base attributable to the related Mortgage Loans or Land Contracts has been fully
paid to Seasoned Warehouse Agent to be applied to the Obligations. The
Companies agree to return possession of these papers to the Seasoned Warehouse
Agent by no later than ten (10) days after their receipt by any of the Companies
unless this box is checked [ ] to indicate that the Agent has consented (on a
case by case basis) to the Companies' retaining such possession for a longer
period, AND IN ANY EVENT TO RETURN POSSESSION OF THESE PAPERS TO THE SEASONED
WAREHOUSE AGENT NO LATER THAN TWENTY-ONE (21) DAYS AFTER RECEIPT unless the
Pledged Loans to which they relate are sooner redeemed in accordance with
SECTION 9.3 of the Seasoned Warehouse Credit Agreement.
On and as of the date of this receipt and agreement, the Companies
certify, represent and warrant to the Seasoned Warehouse Agent, as agent and
Representative of the Seasoned Warehouse Lenders, that (a) the Companies'
representations and warranties in the Warehouse Loan Documents are true and
correct in all material respects except to the extent that (i) a representation
or warranty speaks to a specific date or (ii) the facts on which a
representation or warranty is based have changed by transactions or conditions
contemplated or permitted by the Warehouse Loan Documents, (b) no Default or
Event of Default exists or will exist after giving effect to this requested
shipment, and (c) unless (check if applicable) [ ] the Seasoned Warehouse Agent
has otherwise agreed, this shipment will not result in Warehouse Collateral
Papers with more than a total face amount of One Million Dollars ($1,000,000)
being outstanding for correction or servicing.
<PAGE> 244
The Companies acknowledge receipt of the Warehouse Collateral Papers
referred to above.
MCA FINANCIAL CORP.,
MCA MORTGAGE CORPORATION and
MORTGAGE CORPORATION OF
AMERICA, as the Borrowers
By
-----------------------------------
(Name)
--------------------------------
(1)(Title)
------------------------------
- -----------------------------------
(1) Must be a Responsible Officer of all three Companies.
<PAGE> 245
MCA FINANCIAL CORP.,
MCA MORTGAGE CORPORATION,
MORTGAGE CORPORATION OF
AMERICA and MORTGAGE
CORPORATION OF AMERICA, INC., as the Companies
By
------------------------------------
(Name)
--------------------------------
(1)(Title)
------------------------------
- ------------------------------
(1) Must be a Responsible Officer of all four Companies.
<PAGE> 246
SCHEDULE 4.1
SHIPPING REQUEST
SEASONED WAREHOUSE AGENT: Texas Commerce Bank DATE:____________, 199___
National Association
COMPANIES: MCA Financial Corp.,
MCA Mortgage Corporation,
Mortgage Corporation of America and
Mortgage Corporation of America, Inc.
SHIPMENT # SHIPMENT $
---------------- -------------------
POOL # # OF LOANS
-------------------- -------------------
================================================================================
This request is delivered under the Seasoned Warehouse Custody Agreement
dated as of October 31, 1997 executed between the Seasoned Warehouse Agent (as
the "CUSTODIAN" therein) and the Companies pursuant to the 10/97 Senior Secured
Seasoned Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "SEASONED WAREHOUSE CREDIT AGREEMENT"),
between the Companies, Texas Commerce Bank National Association ("TEXAS
COMMERCE"), as a lender and as agent (the "SEASONED WAREHOUSE AGENT") for the
other lenders party thereto, and the lenders party thereto (including Texas
Commerce, the "SEASONED WAREHOUSE LENDERS"). Terms defined in the Seasoned
Warehouse Credit Agreement and the Seasoned Warehouse Custody Agreement have the
same meanings when used -- unless otherwise defined -- in this notice.
1. The Companies request that Custodian (a) forward the shiplist and
collateral files for the Mortgage Loans or Land Contracts identified below to
the following Approved Investor or its custodian or Servicer:
--------------------
--------------------
--------------------
--------------------
The Companies also request that the Custodian complete the endorsement
of the related promissory notes or Land Contracts from the Companies to that
Approved Investor or its Servicer or custodian as follows:
-----------------
The Custodian should ship the whole collateral file (consisting of all
Basic Papers in the Custodian's possession for this Warehouse Collateral) by
either Federal Express or such other courier service as
<PAGE> 247
the Companies have designated to the Custodian as "approved" for that purpose.
The courier used must be acting as an independent contractor bailee solely on
behalf of the Seasoned Warehouse Agent for the benefit of the Custodian, the
Seasoned Warehouse Agent and the Seasoned Warehouse Lenders, but none of the
Seasoned Warehouse Agent, the Custodian or the Seasoned Warehouse Lenders is
responsible for any delays in shipment caused by any actions or inactions by
that courier. The Companies' completed air bill for shipment accompanies this
request.
2. On and as of the date of this request, the Companies certify,
represent and warrant to the Seasoned Warehouse Agent, the Custodian and the
Seasoned Warehouse Lenders that (a) the Companies' representations and
warranties in the Warehouse Loan Documents are true and correct in all material
respects except to the extent that (i) a representation or warranty speaks to a
specific date or (ii) the facts on which a representation or warranty is based
have changed by transactions or conditions contemplated or permitted by the
Warehouse Loan Documents, and (b) no Default or Event of Default exists or,
after giving effect to this requested shipment, will exist.
MCA FINANCIAL CORP., MCA MORTGAGE
CORPORATION, MORTGAGE CORPORATION OF
AMERICA and MORTGAGE CORPORATION OF
AMERICA, INC., as the Companies
By
--------------------------------
(Name)
----------------------------
1(Title)
--------------------------
- ------------------------------
(1) Must be a Responsible Officer of all four Companies.
<PAGE> 248
SCHEDULE TF
STANDARD WAREHOUSE TRANSMISSION FILE
20. TEXAS COMMERCE BANK'S STANDARD WAREHOUSE TRANSMISSION FILE IS A FIXED
LENGTH RECORD LAYOUT TO ENSURE INTEGRITY OF DATA TRANSMITTED.
21. TEXAS COMMERCE BANK WILL REQUIRE A TRANSMISSION FILE FOR:
(1) WET FUNDINGS, (2) DRY FUNDINGS, (3) TRANSFERS FROM WET TO DRY, (4)
PAYDOWNS AND (5) INVENTORY PURPOSES. THE SAME STANDARD WAREHOUSE
TRANSMISSION FILE LAYOUT IS USED FOR ALL ACTIVITIES.
22. ALL FIELDS ON THE TRANSMISSION FILE SHOULD BE POPULATED WITH
CONSIDERATION GIVEN TO THE BELOW TRANSACTIONS:
(A.) WET FUNDINGS: PLACE A "W" IN THE LOAN STATUS FIELD.
(B.) DRY FUNDINGS: PLACE A "D" IN THE LOAN STATUS FIELD.
(C.) TRANSFERS: PLACE A "T" IN THE LOAN STATUS FIELD AND PLACE IN
THE MASTER NOTE FIELD THE NOTE NUMBER THE LOAN IS TRANSFERRING
TO.
(D.) PAYDOWNS: PLACE A "P" IN THE LOAN STATUS FIELD AND PLACE THE
PAYDOWN DATE IN THE PAID DATE FIELD.
(E.) INVENTORY TRANSMISSION: PLACE AN "I" IN THE LOAN STATUS
FIELD. TEXAS COMMERCE BANK WILL REQUIRE A WEEKLY, OR AT A
MINIMUM A MONTHLY, FULL INVENTORY FILE TRANSMISSION IN ORDER TO
RECONCILE.
23. CONTACT TEXAS COMMERCE'S MORTGAGE WAREHOUSE OPERATIONS STAFF FOR
ACCESS NUMBERS AND PROTOCOLS FOR DATA TRANSMISSIONS.
24. IN ORDER TO EXPEDITE PROCESSING AND MEET YOUR CRITICAL BUSINESS
DEADLINES TEXAS COMMERCE BANK WILL REQUIRE THAT ONCE A STANDARD FORMAT
HAS BEEN AGREED UPON, ALL SUBSEQUENT TRANSMISSIONS MUST CONFORM TO THE
FORMAT. SHOULD ANY CHANGES BECOME NECESSARY, PLEASE CONTACT TEXAS
COMMERCE BANK FOR CONSULTATION AND TIME SCHEDULES FOR IMPLEMENTATION
OF ANY AGREED-UPON CHANGES.
<PAGE> 249
<TABLE>
<CAPTION>
MAX
FIELD DESCRIPTION FIELD TYPE START LAST LENGTH
<S> <C> <C> <C> <C> <C>
File Number Unique loan number C 1 20 20
Mortgagor Last Name Borrower surname C 21 55 35
Mortgagor First Name Borrower first name C 56 80 25
Co-Mtgr. Last Name Co-Borrower surname C 81 115 35
(if applicable)
Co-Mtgr. First Name Co-Borrower first name C 116 140 25
(if applicable)
Property Address Property address C 141 170 30
Property City Property city C 171 200 30
Property State Standard state abbreviation C 201 202 2
Property Zip Zip Code (zip + four, if available) C 203 212 10
Loan type USE (RES.) C 213 219 7
Loan Term Loan term, in months C 220 222 3
Note Date Original note date D 223 230 8
(MM/DD/YY)
Fund Date Collateral funding date D 231 238 8
(MM/DD/YY)
Paid Date Collateral paid date (paydown) D 239 246 8
(MM/DD/YY)
Original Amount Loan amount F 247 258 12
(xxxxxxxx.xx)
Warehouse Amount Collateral funding amount F 259 270 12
(xxxxxxxx.xx)
Note Rate Loan rate F 271 277 7
(xx.xxxx)
Loan Status W-WETS; D-DRYS; T-TRANSFERS C 278 278 1
P-PAYDOWNS; I-INVENTORY
Master Note C 279 282 4
Type Paper A, B, C, or D C 283 284 2
Combined LTV As a Percentage (%) F 285 291 7
(xx.xxxx)
Lien Position 1 or 2 C 292 292 1
</TABLE>
<PAGE> 250
<TABLE>
<S> <C> <C> <C> <C>
Jumbo Loan "J" for Jumbo - "S" for Super Jumbo C 293 293 1
Leave blank if neither
Dwelling Type SEE LIST OF ACCEPTABLE DWELLING TYPES C 294 295 2
STANDARD FILE NAME CONVENTION: ABC MM DDC.TXT
</TABLE>
(ABC) IDENTIFIES ABC MORTGAGE COMPANY, (MM) IDENTIFIES THE MONTH, (DD)
IDENTIFIES THE DAY, AND THE FINAL CHARACTER (A,B,C,ETC.) IDENTIFIES THE
TRANSMISSION SEQUENCE OF THE DAY.
****THIS FILE IS AN ASCII TEXT FILE IN WHICH THE RECORDS HAVE A FIXED LENGTH
AND END WITH A CARRIAGE RETURN AND LINE FEED. (EACH FIELD HAS A SPECIFIC
LENGTH) COMMAS ARE PROHIBITED IN NUMERIC FIELDS.
<PAGE> 251
SEASONED WAREHOUSE SECURITY AGREEMENT
THIS SEASONED WAREHOUSE SECURITY AGREEMENT is entered into as of
October 31, 1997, between MCA FINANCIAL CORP., a Michigan corporation, MCA
MORTGAGE CORPORATION, a Michigan corporation, MORTGAGE CORPORATION OF AMERICA,
a Michigan corporation and MORTGAGE CORPORATION OF AMERICA, INC., an Ohio
corporation ("DEBTORS"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as a
lender and as agent for the other lenders party thereto (in such capacities,
"SECURED PARTY").
Debtors, the Seasoned Warehouse Lenders parties thereto as such and
Secured Party have entered into the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 (as supplemented, amended or
restated, the "WAREHOUSE CREDIT AGREEMENT"). As a continuing inducement to
Seasoned Warehouse Lenders to extend credit to Debtors under the Credit
Agreement, and as a condition precedent to that credit, Debtors are executing
and delivering this Agreement to Secured Party.
ACCORDINGLY, for adequate and sufficient consideration, Debtors and
Secured Party agree as follows:
SECTION 1. DEFINITIONS AND REFERENCES. Unless stated otherwise, (a)
terms defined in the Warehouse Credit Agreement or the UCC have the same
meanings when used in this Agreement, and (b) to the extent permitted by Law,
if in conflict (i) the definition of a term in the Credit Agreement controls
over the definition of that term in the UCC, and (ii) the definition of a term
in Article 9 of the UCC controls over the definition of that term elsewhere in
the UCC.
COLLATERAL is defined in SECTION 2.2 of this Agreement.
DEBTORS is defined in the preamble to this Agreement and includes,
without limitation, each Debtor, each Debtor as a debtor-in-possession, and
any receiver, trustee, liquidator, conservator, custodian, or similar party
appointed for any Debtor or for substantially all of any Debtor's assets under
any Debtor Law.
OBLIGOR means any Person obligated with respect to any Collateral
(whether as an account debtor, obligor on an instrument, issuer of securities,
or otherwise).
SECURED PARTY is defined in the preamble to this Agreement and
includes its successor appointed and acting as Seasoned Warehouse Agent for
Seasoned Warehouse Lenders under the Seasoned Warehouse Loan Documents.
<PAGE> 252
SECURITY INTEREST means the security interest granted and the pledge
and assignment made under SECTION 2.1 of this Agreement, which is a Lender Lien
under the Credit Agreement.
SECTION 2. SECURITY INTEREST AND COLLATERAL.
2.1 Security Interest. To secure the full payment and performance of
the Obligations, each Debtor hereby grants to Secured Party, as agent and
Representative of Seasoned Warehouse Lenders, a security interest in all of that
Debtor's present and future right, title and interest in and to the Collateral,
whether now owned or hereafter acquired, and pledges and assigns the Collateral
to Secured Party as Representative of the Seasoned Warehouse Lenders, all upon
and subject to the terms and conditions of this Agreement. The grant of the
Security Interest does not subject Secured Party or any Lender to the terms of
any Collateral Paper or in any way transfer, modify, or otherwise affect (a) any
Debtor's obligations with respect to any Collateral or (b) the Lender Liens
under the Credit Agreement.
2.2 Collateral. As used in this Agreement, the term "Collateral" means
the present and future items and types of property described below, whether now
owned or acquired in the future by any Debtor. This description of Collateral
does not permit any action prohibited by any Loan Document.
- Mortgage Collateral from time to time identified to Secured
Party as Collateral.
- All Collateral Papers in any way related to any of the
Mortgage Collateral from time to time identified to Secured
Party as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of
trust, or trust deeds securing those Mortgage Loans,
whether deposited with or held by or for Secured Party
under this Agreement or otherwise.
- Private mortgage insurance (including, without limitation,
all commitments to issue any such insurance) covering, and
all commitments issued by FHA to insure or issued by VA to
guarantee, any Mortgage Loans identified as Collateral.
- Security of any kind pledged by a mortgagor for any
Mortgage Loans identified as Collateral.
- Casualty insurance assigned to any Debtor in connection
with any Mortgage Loans identified as Collateral.
- Mortgage Securities deposited with or held by or for
Secured Party under the Seasoned Warehouse Loan Documents
or registered by book entry in Secured Party's name under
the Seasoned Warehouse Loan Documents.
2
<PAGE> 253
- Guaranties related to Mortgage Securities identified as
Collateral.
- Any take-out commitments held by any Debtor for any
Mortgage Loans or Mortgage Securities identified as
collateral, rights to deliver those Mortgage Loans or
Mortgage Securities, as the case may be, to the investors
or other purchasers under those take-out commitments, and
all proceeds resulting from the sale of any of those
Mortgage Loans or Mortgage Securities under those take-out
commitments.
- Any Collateral otherwise described in this Agreement that
may from time to time be delivered (a) to an investor (or
its custodian or other designee) under SECTION 3.1 of the
Custody Agreement until purchased and paid for by that
investor or (b) to a Company for correction or servicing
under SECTION 3.2 of the Custody Agreement.
- The Seasoned Warehouse Note Payment/Funding Account, all
other accounts that any Debtor maintains with Secured
Party, Seasoned Warehouse Agent, or any Lender, and all
amounts deposited in them or represented by them.
- Personal property, contract rights, accounts, and general
intangibles of any kind whatsoever relating to any
Collateral.
- All files, surveys, certificates, correspondence,
appraisals, tapes, discs, cards, accounting records, and
other information and data of any Debtor relating to any
collateral, including, without limitation, all information,
data, tapes, discs, and cards necessary to administer and
service any Collateral.
- Cash and noncash proceeds of any Collateral.
SECTION 3. REPRESENTATIONS AND WARRANTIES. By entering into this
Agreement, and by each subsequent delivery of additional Collateral under this
Agreement, each Debtor reaffirms the representations and warranties contained
in the Credit Agreement. Each Debtor further represents and warrants to
Secured Party as Representative of the Seasoned Warehouse Lenders as follows:
3.1 Concerning Debtors. The facts concerning Debtors' names, taxpayer
identification numbers, ownership, state of incorporation, states in which
Debtors are qualified as foreign corporations, trade names used, chief executive
offices' locations and other principal offices' locations that are stated on
Schedule I hereto and its attached list, are true and correct in all respects.
3.2 Concerning the Collateral. All Collateral (a) is genuine and in all
respects what it purports to be, (b) is the legal, valid, and binding obligation
of each Obligor (except as enforceability may be limited by Debtor Laws), (c) is
free from any claim for credit, deduction, or allowance of any
3
<PAGE> 254
Obligor and free from any defense, dispute, setoff, or counterclaim (other than
for payments made in respect of it), (d) if a Mortgage Loan was originated and
is in compliance with all Laws (including, without limitation, all usury Laws,
the Real Estate Settlement Procedures Act of 1974, the Equal Credit Opportunity
Act, the Federal Trust in Lending Act, Regulation Z promulgated by the Board of
Governors of the Federal Reserve System, and all applicable federal and state
consumer protection Laws, (e) if a Mortgage Security, is duly authorized and
validly issued, the transfer of which is not subject to any restrictions other
than under the Seasoned Warehouse Loan Documents and (f) conforms to the
applicable requirements of eligibility under SCHEDULE EC to the Credit
Agreement.
3.3 Ownership and Priority. Debtors have full legal and beneficial
ownership of all Collateral, free and clear of all liens except Permitted Liens.
3.4 Creation and Perfection. The Security Interest is created and
perfected on (a) each promissory note that evidences a Mortgage Loan or Land
Contract ever identified as Collateral and delivered to Secured Party, (b) each
Mortgage Security in certificated form that is delivered to Secured Party, (c)
each Mortgage Security in book entry form when notice of the Security Interest
is given to the financial institution in whose favor that security has been
issued and that institution confirms that notice, (d) all Collateral shipped to
any investor under SECTION 3.1 of the Custody Agreement (and the Security
Interest shall continue to be perfected until Secured Party receives either
payment or Mortgage Securities under that section), (e) all Collateral shipped
to a Debtor for correction or servicing under SECTION 3.2 of the Custody
Agreement (and the Security Interest shall continue to be perfected for
twenty-one (21) days after that shipment), and (f) all other Collateral upon
possession or the filing of financing statements by Secured Party.
SECTION 4. COVENANTS. Until all commitments by Secured Party and Seasoned
Warehouse Lenders to extend credit under the Credit Agreement have been canceled
or terminated and the Obligations are fully paid and performed, Debtors covenant
and agree with Secured Party as agent and Representative of Seasoned Warehouse
Lenders as follows:
4.1 Concerning the Collateral. Debtors (a) shall fully perform all of
their duties under and in connection with each transaction to which any
Collateral relates, (b) shall promptly notify Secured Party about any change in
any fact or circumstances represented or warranted by any Debtor about any
Collateral, (c) shall promptly notify Secured Party of any claim, action, or
proceeding affecting title to any Collateral or the Security Interest and, at
Secured Party's request and Debtors' expense, appear in and defend that action
or proceeding, (d) shall hold in trust for Secured Party (as agent and
Representative of the Seasoned Warehouse Lenders) all Collateral not delivered
to Secured Party (without excusing any failure to deliver Collateral Papers to
Secured Party as required by this Agreement) and mark that Collateral on the
relevant Debtor's records that it is subject to the Security Interest (but the
failure to do so does not impair the Security Interest or its priority), (e)
other than collections under SECTION 4.3 below, shall pay and deliver to Secured
Party all items and types of property into which any Collateral may be converted
(all of which shall automatically be and remain subject to the Security
Interest) and properly endorse, assign, or take such other action as Secured
Party may request in order to maintain and continue the Security Interest in
that property and (f) may
4
<PAGE> 255
not compromise, extend, release or adjust payments on any Collateral, accept a
conveyance of mortgaged property in full or partial satisfaction of any
Collateral or release any mortgage, deed of trust, or trust deed securing or
underlying any Collateral.
4.2 Insurance. Debtors shall keep the collateral fully insured in the
amounts, against the risks, and with insurers as may be approved by Secured
Party, with loss payable to Secured Party as its interest (as agent and
Representative of Seasoned Warehouse Lenders) may appear.
4.3 Collections. Debtors shall, at their sole cost and expense, whether
requested to by Secured Party or in the absence of such a request, take all
actions reasonably necessary to obtain payment, when due and payable, of all
amounts due or to become due from Obligers with respect to any Collateral.
Debtors may not agree to any rebate, refund, compromise or extension with
respect to any Collateral or accept any prepayment on account of any Collateral
other than in a manner and to the extent consistent with or as may otherwise be
provided in various servicing agreements to which it is a party or subject.
(a) No Event of Default. While no Event of Default exists,
Debtors shall make all of those collections, shall maintain such escrow
accounts and otherwise comply with the servicing agreements to which it is a
party or subject, and may otherwise comply with the servicing agreements to
which it is a party or subject, and may otherwise retain and use the proceeds
of those collections in the ordinary course of their business.
(b) Default. While an Event of Default exists,
and upon the request of Secured Party, Debtors shall (i) notify and direct each
Obligor to make payments on the collateral to Secured Party for deposit into
such accounts as it may designate so as to be held as Collateral under this
Agreement and (ii) otherwise turn over to Secured Party, in the form received
and with any necessary endorsements, all payments they receive in respect of
any Collateral for deposit into such accounts as Secured Party may designate to
be held as collateral under this Agreement. Secured Party may at any time
apply any amounts in those accounts as a payment of the Obligations, other than
mortgage escrow payments that are deposited into escrow accounts in accordance
with the applicable Guide or servicing contract.
4.4 Concerning Debtors. Without first giving Secured Party thirty (30)
days notice (or fewer if agreed to in writing by Secured Party) of the intention
to do any of the following and performing such acts and executing and delivering
to Secured Party such additional documents as Secured Party requests in order to
continue or maintain the existence and priority of the Security Interest, no
Debtor may (a) use or transact business under any corporate, assumed, or trade
name, except as represented in the Credit Agreement, (b) relocate its chief
executive offices or principal place of business or (c) move or surrender
possession of its books and records regarding the Collateral.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES. If an Event of Default exists, then
Secured Party may, at its election (but subject to the terms and conditions of
the Credit Agreement),
5
<PAGE> 256
exercise any and all rights available to a secured party under the UCC, in
addition to any and all other rights afforded by the Seasoned Warehouse Loan
Documents, at law, in equity, or otherwise, including, without limitation (a)
requiring Debtors to assemble all or part of the Collateral and make it
available to Secured Party at a place to be designated by Secured Party which
is reasonably convenient to Debtors and Secured Party, (b) selling the
Collateral as provided below in this Section, (c) surrendering any policies of
insurance on all or part of the Collateral and receiving and applying the
unearned premiums as a credit on the Obligations, (d) applying by appropriate
judicial proceedings for appointment of a receiver for all or part of the
Collateral (and Debtors hereby consent to any such appointment) and (e)
applying to the Obligations any cash held by Secured Party or any Lender under
the Seasoned Warehouse Loan Documents.
5.1 Sale of Collateral. If and to the extent permitted
or required by applicable law, Secured Party may, without notice except as
hereinafter provided, sell the Collateral or any part thereof at public or
private sale (with or without appraisal or having the Collateral at the place
of sale) for cash, upon credit, or for future delivery, and at such price or
prices as Secured Party may deem best, and Secured Party (as agent and
Representative of the Seasoned Warehouse Lenders) may be the purchaser of any
and all of the Collateral so sold and may apply upon the purchase price
therefor any of the Obligations and thereafter hold the same absolutely free
from any right or claim of whatsoever kind. Secured Party is authorized at any
such sale, if Secured Party deems it advisable or is required by applicable law
so to do, (i) to restrict the prospective bidders on or purchasers of any of
the Collateral to a limited number of sophisticated investors who will
represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or resale of any of the
Collateral, (ii) to cause to be placed on certificates for any or all of the
Collateral a legend to the effect that such security has not been registered
under the Securities Act of 1933, as amended, and may not be disposed of in
violation of the provisions of said Act, and (iii) to impose such other
limitations or conditions in connection with any such sale as Secured Party
deems necessary or advisable in order to comply with said Act or any other
applicable law. Debtors agree to execute and deliver such documents and take
such other action as Secured Party deems necessary or advisable in order that
any such sale may be made in compliance with applicable law. Upon any such
sale, Secured Party shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale
shall hold the property sold absolutely free from any claim or right of
whatsoever kind, including any equity or right of redemption, stay or appraisal
which Debtors have or may have under any rule of law or statute now existing or
hereafter adopted. To the extent notice is required by applicable law, Secured
Party shall give Debtors written notice at the address set forth in the Credit
Agreement (which shall satisfy any requirement of notice or reasonable notice
in any applicable statute) of Secured Party's intention to make any such public
or private sale. Reasonable notification of the time and place of any public
sale of the collateral, or reasonable notification of the time after which any
private sale or other intended disposition of the Collateral is to be made,
shall be sent to the affected Debtor and to any other Person entitled to notice
under the UCC. If any Collateral threatens to decline speedily in value or is
of the type customarily sold on a recognized market, Secured Party may sell or
otherwise dispose of the Collateral without notification, advertisement, or
other notice of any kind. Notice sent or given not less than five (5) calendar
days before the taking of the action to which the notice relates is reasonable
notification and
6
<PAGE> 257
notice for the purposes of this Section. Such notice (if any is required by
applicable law), in case of public sale, shall state the time and place fixed
for such sale or, in case of private sale or other disposition other than a
public sale, the time after which the private sale or other such disposition is
to be made. Any public sale shall be held at such time or times, within
ordinary business hours and at such place or places, as Secured Party may fix
in the notice of such sale. At any sale the Collateral may be sold in one lot
as an entirety or in separate parcels as Secured Party may determine. Secured
Party shall not be obligated to make any sale pursuant to any such notice.
Secured Party may, without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by announcement at any
time and place fixed for such sale, and such sale may be made at any time or
place to which the same may be so adjourned. In case of any sale of all or any
part of the Collateral on credit or for future delivery, the Collateral so sold
may be retained by Secured Party until the selling price is paid by the
purchaser thereof, but Secured Party shall incur no liability in case of the
failure of such purchaser to take up and pay for the Collateral so sold, and in
case of any such failure, such Collateral may again be sold upon like notice.
Each and every method of disposition described in this Section shall constitute
disposition in a commercially reasonable manner. Debtors shall remain jointly
and severally liable for any deficiency. The Companies hereby acknowledge and
agree that Mortgage Loans and Mortgage Securities are property of a type
customarily sold on a recognized market. The Companies also hereby agree that
any sale of a Mortgage Loan or Mortgage Security pursuant to a Take-out
Commitment, and any other sale of Collateral arranged by any Company (whether
before or after an Event of Default), shall be conclusively presumed to be
commercially reasonable.
5.2 Additional Rights of Secured Party. Secured Party shall have all
the rights of a secured party after default under the Uniform Commercial Code of
Texas and in conjunction with, in addition to or in substitution for those
rights and remedies:
(a) it shall not be necessary that the Collateral or any part
thereof be present at the location of any sale pursuant to the provisions of
this Section;
(b) before application of proceeds of disposition of the Collateral
to the Obligations, such proceeds shall be applied to the reasonable expenses of
retaking, holding, preparing for sale or lease, selling, leasing and the like
and the reasonable attorneys' fees and legal expenses incurred by Secured Party,
each Debtor, to the extent applicable, to remain liable for any deficiency;
(c) the sale by Secured Party of less than the whole of the
Collateral shall not exhaust the rights of Secured Party hereunder, and Secured
Party is specifically empowered to make successive sale or sales hereunder until
the whole of the Collateral shall be sold; and, if the proceeds of such sale of
less than the whole of the Collateral shall be less than the aggregate of the
Obligations, this Agreement and the Security Interest created hereby shall
remain in full force and effect as to the unsold portion of the Collateral just
as though no sale had been made;
7
<PAGE> 258
(d) in the event any sale hereunder is not completed or is
defective in the opinion of Secured Party, such sale shall not exhaust the
rights of Secured Party hereunder and Secured Party shall have the right to
cause a subsequent sale or sales to be made hereunder;
(e) any and all statements of fact or other recitals made
in any bill of sale or assignment or other instrument evidencing any foreclosure
sale hereunder as to nonpayment of any indebtedness or as to the occurrence of
any default, or as to Secured Party having declared all of such indebtedness to
be due and payable, or as to notice of time, place and terms of sale and the
Collateral to be sold having been duly given, as to any other act or thing
having been duly done by Secured Party, shall be taken as prima facie evidence
of the truth of the facts so stated and recited;
(f) Secured Party may appoint or delegate any one or more
persons as agent to perform any act or acts necessary or incident to any sale
held by Secured Party, including the sending of notices and the conduct of sale,
but in the name and on behalf of Secured Party; and
(g) demand of performance, advertisement and presence of
property at sale are hereby WAIVED and Secured Party (as agent and
Representative of the Seasoned Warehouse Lenders) is hereby authorized to sell
hereunder any evidence of debt it may hold as security for the Obligations. All
demands and presentments of any kind or nature are expressly WAIVED by Debtors.
Debtors WAIVE the right to require Secured Party to pursue any other remedy for
the benefit of Debtors and agree that Secured Party may proceed against any
Debtor for the amount of the Obligations owed to the Seasoned Warehouse Lenders
or the Seasoned Warehouse Agent without taking any action against any other
Debtor or any other Person and without selling or otherwise proceeding against
or applying any of the Collateral.
5.3 Application of Proceeds. Secured Party shall apply the
proceeds of any sale or other disposition of the collateral under this SECTION 5
in the order and manner specified in SECTION 13.9 of the Credit Agreement. Any
surplus remaining shall be delivered to the relevant Debtor or as a court of
competent jurisdiction may direct. If the proceeds are insufficient to pay the
Obligations in full, Debtors remain liable for any deficiency.
SECTION 6. OTHER RIGHTS.
6.1 Performance. If Debtors fail to pay when due all Taxes on
any of the Collateral, or to preserve the priority of the Security Interest in
any of the Collateral, or to keep the Collateral insured as required by this
Agreement, or otherwise fail to perform any of their obligations under any
Seasoned Warehouse Loan Documents or Collateral Papers with respect to the
Collateral, then Secured Party may, at its option, but without being required to
do so, pay such Taxes, prosecute or defend any suits in relation to the
Collateral, or insure and keep insured the Collateral in any amount deemed
appropriate by Secured Party, or take all other action which Debtors are
required, but have failed or refused, to take under the Seasoned Warehouse Loan
Documents or Collateral Papers. Any sum which may be expended or paid by
Secured Party under this Section (including, without limitation, court costs and
attorneys' fees) shall bear interest from the dates of expenditure or
8
<PAGE> 259
payment at the Past Due Rate until paid and, together with such interest, shall
be payable by Debtors to Secured Party upon demand and is part of the
Obligations.
6.2 Collection.
(a) Actions. When Secured Party is entitled under
SECTION 4.3 above to make collection on any Collateral, it may in its own name
or in the name of any Debtor (i) compromise or extend the time of payment with
respect to any Collateral for such amounts and upon such terms as Secured Party
may determine, (ii) demand, collect, receive, receipt for, sue for, compound,
and give acquittance for any and all amounts due or to become due with respect
to Collateral, (iii) take control of cash and other proceeds of any Collateral,
(iv) endorse any Debtor's name on any notes, acceptances, checks, drafts, money
orders, or other evidences of payment on Collateral that may come into Secured
Party's possession, (v) sign any Debtor's name on any invoice or bill of lading
relating to any Collateral, on any drafts against Obligors or other Persons
making payment with respect to Collateral, on assignments and verifications of
accounts or other Collateral and on notices to Obligors making payment with
respect to Collateral, (vi) send requests for verification or obligations to any
Obligor, (vii) do all other acts and things necessary to carry out the intent of
this Agreement, and (viii) authorize any Servicer in respect of any Collateral
to perform any one or more of the foregoing on Secured Party's behalf.
(a) If any Obligor fails or refuses to make payment on
any Collateral when due, Secured Party is authorized, in its sole discretion,
either in its name or in any Debtor's name, to take such action as Secured Party
deems appropriate for the collection of any amounts owed with respect to
Collateral or upon which a delinquency exists. Regardless of any other
provision, however, Secured Party is never liable for its failure to collect, or
for its failure to exercise diligence in the collection of, any amounts owed
with respect to Collateral and is not under any duty whatever to anyone except
Debtors and the Seasoned Warehouse Lenders to account for funds that it actually
receives. Without limiting the generality of the foregoing, Secured Party has
no responsibility for ascertaining any maturities, calls, conversions,
exchanges, offers, tenders, or similar matters relating to any Collateral, or
for informing Debtors with respect to any of such matters (irrespective of
whether Secured Party actually has, or may be deemed to have, knowledge
thereof). Secured Party's receipt to any Obligor is a full and complete
release, discharge, and acquittance to that Obligor, to the extent of any amount
so paid to Secured Party.
6.3 Power of Attorney. Each Debtor irrevocably appoints
Secured Party, acting on behalf of Seasoned Warehouse Lenders, as its
attorney-in-fact (with full power of substitution) for, on behalf, and in the
name of such Debtor to (a) endorse and deliver to any Person any check,
instrument, or other document received by Secured Party or any Lender that
represents payment in respect of any Collateral, (b) prepare, complete, execute,
deliver, and record any assignment of any mortgage, deed of trust, or trust deed
securing any Collateral, (c) endorse and deliver or otherwise transfer any
promissory note evidencing any Collateral and do every other thing necessary or
desirable to effect transfer of all or any Collateral, (d) take all necessary
and appropriate action with respect to any of the Obligations or any Collateral,
(e) commence, prosecute, settle, discontinue,
9
<PAGE> 260
defend, or otherwise dispose of any claim relating to any Collateral, and (f)
sign such Debtor's name wherever appropriate to effect the performance of this
Agreement and the Credit Agreement. This Section shall be liberally, not
restrictively, construed to give the greatest latitude to Secured Party's power
as such Debtor's attorney-in-fact to collect, sell and deliver any Collateral
and all documents relating to it. The powers and authorities conferred on
Secured Party in this Section (w) are discretionary and not obligatory on the
part of Secured Party, (x) may be exercised by Secured Party through any Person
who, at the time of the execution of particular documents, is an officer of
Secured Party, (y) may not be exercised by Secured Party unless a Default or an
Event of Default exists, and (z) is granted for a valuable consideration,
coupled with an interest, and irrevocable until, and all Persons dealing with
Secured Party, any of its officers acting under this Section, or any substitute
are fully protected in treating the powers and authorities conferred by this
Section as existing and continuing in full force and effect until advised by
Secured Party that, all commitments under the Credit Agreement to extend credit
have been terminated or canceled and the Obligations are fully paid and
performed.
SECTION 7. MISCELLANEOUS.
7.1 Miscellaneous. Because this Agreement is a "Warehouse Loan Document"
referred to in the Credit Agreement, the provisions relating to Seasoned
Warehouse Loan Documents in SECTIONS 1 and 16 of the Credit Agreement are
incorporated into this Agreement by reference the same as if included in this
Agreement verbatim.
7.2 Term. This Agreement terminates upon full and indefeasible payment
and performance of the Obligations. No Obligor is ever obligated to make
inquiry of the termination but is fully protected in making any payments on the
Collateral directly to Secured Party.
7.3 Matters Not Relevant. The Security Interest, Debtors' obligations,
and Secured Party's and Seasoned Warehouse Lenders' rights under this Agreement
are not released, diminished, impaired, or adversely affected by any one or more
of the following: (a) Secured Party's or any Lender's taking or accepting any
additional, or any release, surrender, exchange, subordination, or loss of any
other, guaranty, assurance, or security for any of the Obligations; (b) any full
or partial release of any other Person obligated on any of the Obligations; (c)
the modification or assignment of, or waiver of compliance with, any other Loan
Document; (d) any present or future insolvency, bankruptcy, or lack of
corporate, partnership, or trust power of any other Person obligated on any of
the Obligations; (e) any renewal, extension or rearrangement of any of the
Obligations, or any adjustment, indulgence, forbearance, or compromise granted
to any Person obligated on any of the Obligations; (f) any Person's neglect,
delay, omission, failure, or refusal to take or prosecute any action in
connection with any of the Obligations; (g) any existing or future right, claim
or defense (other than the defense of full and final payment of the Obligations)
of any Debtor or any other Person against Secured Party or any Lender; (h) the
unenforceability of any of the Obligations against any Person obligated or any
part of the Obligations because it exceeds the amount permitted by Law, the act
of creating it is ultra vires, or the officers, partners, or trustees creating
it exceeded their authority or violated their fiduciary duties, or otherwise;
(i) any payment of the Obligations is
10
<PAGE> 261
held to constitute a preference under any Debtor Law or for any other reason
Secured Party of any Lender is required to refund any payment or make payment
to another Person; or (j) any Person's failure to notify any Debtor about the
foregoing events or occurrences; and each Debtor waives any notice of any kind
under any circumstances whatsoever with respect to this Agreement or any of the
Obligations other than as specifically provided in this Agreement.
7.4 Waivers. Except to the extent expressly otherwise provided in the
Seasoned Warehouse Loan Documents, each Debtor waives (a) any right to require
Secured Party or any Lender to proceed against any other Person, to exhaust its
rights in the Collateral, or to pursue any other right which Secured Party or
any Lender may have, and (b) all rights of marshaling in respect of the
Collateral.
7.5 Financing Statement. Secured Party may, at any time, file this
Agreement or a carbon photographic, or other reproduction of this Agreement as a
financing statement, but Secured Party's failure to do so does not impair the
validity or enforceability of this Agreement.
7.6 Parties. This Agreement binds and benefits Debtors, Secured Party
and each Seasoned Warehouse Lender, and their respective successors and
permitted assigns. Only those Persons may rely or raise any defense about this
Agreement.
(a) Assignments. Debtors may not assign any rights or obligations
under this Agreement without first obtaining the written consent of Secured
Party and all Seasoned Warehouse Lenders. Secured Party's rights under this
Agreement may be assigned to any successor agent appointed under the Credit
Agreement.
(b) Secured Party. Secured Party is the agent for each Seasoned
Warehouse Lender. Secured Party may, without the joinder of any Seasoned
Warehouse Lender, exercise any rights in favor of any of them under this
Agreement. The rights of Secured Party and Seasoned Warehouse Lenders vis-a-vis
each other may be subject to other agreements between them. Neither Debtors nor
their respective successors or permitted assigns need to inquire about any such
agreement or be subject to the terms of it unless they join in it and,
therefore, are not entitled to the benefits of any such agreement or entitled to
rely upon or raise as a defense the failure of any party to comply with it.
7.7 Entire Agreement. THIS AGREEMENT AND THE OTHER SEASONED WAREHOUSE
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUSLY, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
The remainder of this page is intentionally blank
11
<PAGE> 262
EXECUTED as of the date first stated above.
MCA FINANCIAL CORP., TEXAS COMMERCE BANK NATIONAL
MCA MORTGAGE CORPORATION, ASSOCIATION, in its capacity as
MORTGAGE CORPORATION OF Seasoned Warehouse Agent and
AMERICA, as Debtors as Secured Party
By: Lee P. Wells By: Pamela E. Skinner
------------------------- -----------------------------
Name: LEE P. WELLS Name: PAMELA E. SKINNER
----------------------- ---------------------------
Title: PRESIDENT Title: VICE PRESIDENT
---------------------- --------------------------
12
<PAGE> 263
MORTGAGE CORPORATION OF
AMERICA, INC., as Debtor
By: Lee P. Wells
------------------------------
Name: LEE P. WELLS
----------------------------
Title: PRESIDENT
---------------------------
13
<PAGE> 264
SCHEDULE I TO SEASONED WAREHOUSE SECURITY AGREEMENT
PLACE OF BUSINESS, TRADE NAMES AND FORMER NAMES
OF BORROWERS
<TABLE>
<CAPTION>
STATE OF STATES
NAME AND TAXPAYER I.D. OWNERSHIP INCORPORATION QUALIFIED AS
FOREIGN CORP.
- --------------------------------------------------------------------------------------
<S> <C> <C> <C>
MCA Financial Approximately 523,283 shares Michigan None
Corporation owned by various individuals
38-3014001 and entities disclosed to
the Seasoned Warehouse Agent
on a separate schedule
- --------------------------------------------------------------------------------------
MCA Mortgage MCA Financial Corp. Michigan See attached
Corporation list
38-2613174
- --------------------------------------------------------------------------------------
Mortgage Corporation MCA Financial Corp. Michigan Indiana, Ohio
of America
38-2509529
- --------------------------------------------------------------------------------------
Mortgage Corporation Mortgage Corporation of Ohio None
of America, Inc. America
37-1371271
- --------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
STILL USING OTHER
NAME AND TAXPAYER I.D. TRADE NAME? CHIEF EXECUTIVE PRINCIPAL
NAMES USED Y/N OFFICE OFFICES
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
MCA Financial None No 23999 Northwestern None
Corporation Hwy.
38-3014001 Southfield, MI 48075
- --------------------------------------------------------------------------------------
MCA Mortgage None No 23999 Northwestern None
Corporation Hwy.
38-2613174 Southfield, MI 48075
- --------------------------------------------------------------------------------------
Mortgage Corporation None No 23999 Northwestern None
of America Hwy.
38-2509529 Southfield, MI 48075
- --------------------------------------------------------------------------------------
Mortgage Corporation None No 23999 Northwestern None
of America, Inc. Hwy.
37-1371271 Southfield, MI 48075
- --------------------------------------------------------------------------------------
</TABLE>
<PAGE> 265
MCA MORTGAGE CORPORATION
STATES WHERE MCAMC IS LICENSED TO ORIGINATE
OR ACQUIRE FIRST MORTGAGE LOANS
(OR IS EXEMPT FROM LICENSING)
<TABLE>
<CAPTION>
OK TO ORIGINATE OK TO ACQUIRE LOANS FUNDED & CLOSED
BY LICENSED BROKER OR LENDER
<S> <C>
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
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
</TABLE>
* Loan officer must also have license to work directly with borrower
** OK to table-fund and close in MCAMC's name on brokered loans
<PAGE> 266
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
<S> <C>
DEBTOR'S NAME AND MAILING ADDRESS: MCA Financial Corp.
23999 Northwestern Highway, Suite 230
Southfield, MI 48075
FED. TAX ID NO. 38-3014001
- ----------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING Texas Commerce Bank National Association, as
ADDRESS: Warehouse Agent(1)
712 Main Street
Houston, TX 77002
FED. TAX ID NO. 74-0800980
- ----------------------------------------------------------------------------------
FOR FILING OFFICER:
- ----------------------------------------------------------------------------------
</TABLE>
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE
BY DEBTOR (THE "COLLATERAL"):
- Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Second Mortgage Loans from time to time identified to Secured
Party as Collateral.
- Construction Loans from time to time identified to Secured Party
as Collateral.
- Land Contracts from time to time identified to Secured Party as
Collateral.
- All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust,
or trust deeds securing, those Mortgage Loans, Second Mortgage
Loans or Construction Loans, and all Land Contracts, whether
deposited with or held by or for Secured Party or otherwise.
- Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all
commitments issued by FHA to insure or issued by VA to guarantee,
any Mortgage Loans or Construction Loans identified as
Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- Casualty insurance assigned to Debtor in connection with any
Mortgage Collateral identified as Collateral.
- ----------------
(1) Secured Party is serving as Warehouse Agent under the
Seasoned Credit Agreement, and the security interest
evidenced by this financing statement, as amended from time
to time, is granted to Secured Party in that capacity and as
secured party on behalf of all of the Seasoned Warehouse
Lenders, including Texas Commerce
<PAGE> 267
- - Mortgage Securities deposited with or held by or for Secured Party
under the Seasoned Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Seasoned Warehouse Loan
Documents.
- - Guaranties related to Mortgage Securities identified as Collateral.
- - Any take-out commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities, as
the case may be, to the investors or other purchasers under those
take-out commitments, and all proceeds resulting from the sale of any
of those Mortgage Loans, Construction Loans, Second Mortgage Loans or
Mortgage Securities under those take-out commitments.
- - Any Collateral otherwise described in the security agreement to which
this financing statement relates that may from time to time be
delivered (a) to an investor (or its custodian or other designee)
under Section 3.1 of the Custody Agreement until purchased and paid
for by that investor or (b) to a Company for correction or servicing
under Section 3.2 of the Custody Agreement.
- - The Seasoned Warehouse Note Payment/Funding Account, all other
accounts that Debtor maintains with Secured Party, Seasoned Warehouse
Agent, or any Lender, and all amounts deposited in them or represented
by them.
- - Personal property, contract rights, accounts, and general intangibles
of any kind whatsoever relating to any Collateral.
- - All files, surveys, certificates, correspondence, appraisals, tapes,
discs, cards, accounting records, and other information and data of
Debtor relating to any Collateral, including, without limitation, all
information, data, tapes, discs, and cards necessary to administer and
service any Collateral.
- - Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
MCA FINANCIAL CORP. TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Seasoned Warehouse
Agent for Seasoned Warehouse Lenders
By Keith D. Pietila By Pamela E. Skinner
-------------------------------- ------------------------------------
(Name) KEITH D. PIETILA (Name) PAMELA E. SKINNER
-------------------------------- --------------------------------
(Title) EVP (Title) VICE PRESIDENT
--------------------------- -------------------------------
<PAGE> 268
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
MCA FINANCIAL CORP., AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS SEASONED WAREHOUSE AGENT, AS SECURED PARTY
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CREDIT AGREEMENT" means the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 among the Companies, Texas
Commerce Bank National Association, as a Seasoned Warehouse Lender and as agent
for the other Seasoned Warehouse Lenders, and the other Seasoned Warehouse
Lenders.
"CUSTODY AGREEMENT" means the Seasoned Warehouse Custody Agreement of even
date herewith between the Companies and the Custodian, as it may be
supplemented, amended or restated from time to time. By this reference, the
Custody Agreement is incorporated into this Agreement; provided that, in
interpreting this Agreement or any of the other Seasoned Warehouse Loan
Documents except the Custody Agreement itself, definitions of terms in this
Agreement will control over any inconsistent definitions in the Custody
Agreement.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed to
sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"OBLIGATIONS" means the principal of and interest on the Seasoned
Warehouse Revolving Loans, and, without duplication, all other indebtedness,
obligations and liabilities of the Borrowers to the Seasoned Warehouse Lenders
and the Seasoned Warehouse Agent under or arising out of or in connection with
this Agreement or any other Seasoned Warehouse 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,
<PAGE> 269
reimbursement obligations, fees, expenses or otherwise, and the due performance
and compliance with the terms and conditions of this Agreement and the other
Seasoned Warehouse Loan Documents by the Borrowers and also includes amounts
that would become due but for operation of 11 U.S.C. Sections 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
Company voluntarily or involuntarily files for protection under any Debtor Law,
and all renewals, extensions, and modifications of any of the foregoing.
"SEASONED WAREHOUSE LOAN DOCUMENTS" means (a) the Credit Agreement,
certificates and reports delivered under the Credit Agreement, and exhibits and
schedules to the Credit Agreement, (b) all agreements, documents, and
instruments in favor of the Seasoned Warehouse Agent, the Custodian or the
Seasoned Warehouse Lenders (or the Seasoned Warehouse Agent or Custodian on
behalf of the Seasoned Warehouse Lenders) ever delivered under this Agreement
or otherwise delivered in connection with any of the Obligations and (c) all
renewals, extensions, and restatements of, and amendments and supplements to,
any of the foregoing.
"SEASONED WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers'
non-interest bearing demand checking account no. 0010-2673408 to be maintained
with Texas Commerce.
"SEASONED WAREHOUSE REVOLVING LOAN" means a loan made by the Seasoned
Warehouse Lenders and disbursed by the Seasoned Warehouse Agent to the
Borrowers under Section 3.1 of the Credit Agreement on a Disbursement Date.
"VA" means the U.S. Department of Veterans Affairs.
2
<PAGE> 270
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
<S> <C>
DEBTOR'S NAME AND MAILING ADDRESS: MCA Financial Corp.
23999 Northwestern Highway, Suite 230
Southfield, MI 48075
FED. TAX ID NO. 38-2613174
- ----------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING Texas Commerce Bank National Association, as
ADDRESS: Seasoned Warehouse Agent(1)
712 Main Street
Houston, TX 77002
FED. TAX ID NO. 74-0800980
- ----------------------------------------------------------------------------------
FOR FILING OFFICER:
- ----------------------------------------------------------------------------------
</TABLE>
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE
BY DEBTOR (THE "COLLATERAL"):
- Mortgage Loans from time to time identified to Secured Party as
Collateral.
- Second Mortgage Loans from time to time identified to Secured
Party as Collateral.
- Construction Loans from time to time identified to Secured Party
as Collateral.
- Land Contracts from time to time identified to Secured Party as
Collateral.
- All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust,
or trust deeds securing, those Mortgage Loans, Second Mortgage
Loans or Construction Loans, and all Land Contracts, whether
deposited with or held by or for Secured Party or otherwise.
- Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all
commitments issued by FHA to insure or issued by VA to guarantee,
any Mortgage Loans or Construction Loans identified as
Collateral.
- Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- Casualty insurance assigned to Debtor in connection with any
Mortgage Collateral identified as Collateral.
- ----------------
(1) Secured Party is serving as Seasoned Warehouse Agent under
the Credit Agreement, and the security interest
evidenced by this financing statement, as amended from time
to time, is granted to Secured Party in that capacity and as
secured party on behalf of all of the Seasoned Warehouse
Lenders, including Texas Commerce
<PAGE> 271
- - Mortgage Securities deposited with or held by or for Secured Party
under the Seasoned Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Seasoned Warehouse Loan
Documents.
- - Guaranties related to Mortgage Securities identified as Collateral.
- - Any take-out commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities, as
the case may be, to the investors or other purchasers under those
take-out commitments, and all proceeds resulting from the sale of any
of those Mortgage Loans, Construction Loans, Second Mortgage Loans or
Mortgage Securities under those take-out commitments.
- - Any Collateral otherwise described in the security agreement to which
this financing statement relates that may from time to time be
delivered (a) to an investor (or its custodian or other designee)
under Section 3.1 of the Custody Agreement until purchased and paid
for by that investor or (b) to a Company for correction or servicing
under Section 3.2 of the Custody Agreement.
- - The Seasoned Warehouse Note Payment/Funding Account, all other
accounts that Debtor maintains with Secured Party, Seasoned Warehouse
Agent, or any Lender, and all amounts deposited in them or represented
by them.
- - Personal property, contract rights, accounts, and general intangibles
of any kind whatsoever relating to any Collateral.
- - All files, surveys, certificates, correspondence, appraisals, tapes,
discs, cards, accounting records, and other information and data of
Debtor relating to any Collateral, including, without limitation, all
information, data, tapes, discs, and cards necessary to administer and
service any Collateral.
- - Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
MCA MORTGAGE CORPORATION TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Seasoned Warehouse
Agent for Seasoned Warehouse Lenders
By Lee P. Wells By Pamela E. Skinner
-------------------------------- ------------------------------------
(Name) LEE P. WELLS (Name) PAMELA E. SKINNER
-------------------------------- --------------------------------
(Title) PRESIDENT (Title) VICE PRESIDENT
--------------------------- -------------------------------
<PAGE> 272
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
MCA MORTGAGE CORPORATION, AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS SEASONED WAREHOUSE AGENT, AS SECURED PARTY
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CREDIT AGREEMENT" means the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 among the Companies, Texas
Commerce Bank National Association, as a Seasoned Warehouse Lender and as agent
for the other Seasoned Warehouse Lenders, and the other Seasoned Warehouse
Lenders.
"CUSTODY AGREEMENT" means the Seasoned Warehouse Custody Agreement of even
date herewith between the Companies and the Custodian, as it may be
supplemented, amended or restated from time to time. By this reference, the
Custody Agreement is incorporated into this Agreement; provided that, in
interpreting this Agreement or any of the other Seasoned Warehouse Loan
Documents except the Custody Agreement itself, definitions of terms in this
Agreement will control over any inconsistent definitions in the Custody
Agreement.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed to
sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"OBLIGATIONS" means the principal of and interest on the Seasoned
Warehouse Revolving Loans, and, without duplication, all other indebtedness,
obligations and liabilities of the Borrowers to the Seasoned Warehouse Lenders
and the Seasoned Warehouse Agent under or arising out of or in connection with
this Agreement or any other Seasoned Warehouse 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,
<PAGE> 273
reimbursement obligations, fees, expenses or otherwise, and the due performance
and compliance with the terms and conditions of this Agreement and the other
Seasoned Warehouse Loan Documents by the Borrowers and also includes amounts
that would become due but for operation of 11 U.S.C. Sections 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 Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"SEASONED WAREHOUSE LOAN DOCUMENTS" means (a) the Credit Agreement,
certificates and reports delivered under the Credit Agreement, and exhibits and
schedules to the Credit Agreement, (b) all agreements, documents, and
instruments in favor of the Seasoned Warehouse Agent, the Custodian or the
Seasoned Warehouse Lenders (or the Seasoned Warehouse Agent or Custodian on
behalf of the Seasoned Warehouse Lenders) ever delivered under this Agreement
or otherwise delivered in connection with any of the Obligations and (c) all
renewals, extensions, and restatements of, and amendments and supplements to,
any of the foregoing.
"SEASONED WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers'
non-interest bearing demand checking account no. 0010-2673408 to be maintained
with Texas Commerce.
"SEASONED WAREHOUSE REVOLVING LOAN" means a loan made by the Seasoned
Warehouse Lenders and disbursed by the Seasoned Warehouse Agent to the
Borrowers under SECTION 3.1 of the Credit Agreement on a Disbursement Date.
"VA" means the U.S. Department of Veterans Affairs.
2
<PAGE> 274
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
<S> <C>
DEBTOR'S NAME AND MAILING ADDRESS: Mortgage Corporation of America
23999 Northwestern Highway, Suite 230
Southfield, MI 48075
FED. TAX ID NO. 38-2509529
- ----------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING Texas Commerce Bank National Association, as
ADDRESS: Seasoned Warehouse Agent(1)
712 Main Street
Houston, TX 77002
FED. TAX ID NO. 74-0800980
- ----------------------------------------------------------------------------------
FOR FILING OFFICER:
- ----------------------------------------------------------------------------------
</TABLE>
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE
BY DEBTOR (THE "COLLATERAL"):
- - Mortgage Loans from time to time identified to Secured Party as
Collateral.
- - Second Mortgage Loans from time to time identified to Secured Party as
Collateral.
- - Construction Loans from time to time identified to Secured Party as
Collateral.
- - Land Contracts from time to time identified to Secured Party as
Collateral.
- - All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust, or
trust deeds securing, those Mortgage Loans, Second Mortgage Loans or
Construction Loans, and all Land Contracts, whether deposited with or
held by or for Secured Party or otherwise.
- - Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all commitments
issued by FHA to insure or issued by VA to guarantee, any Mortgage
Loans or Construction Loans identified as Collateral.
- - Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- - Casualty insurance assigned to Debtor in connection with any
Mortgage Collateral identified as Collateral.
- ----------------
(1) Secured Party is serving as Seasoned Warehouse Agent under the
Credit Agreement, and the security interest evidenced by this
financing statement, as amended from time to time, is
granted to Secured Party in that capacity and as secured
party on behalf of all of the Seasoned Warehouse Lenders,
including Texas Commerce
<PAGE> 275
- - Mortgage Securities deposited with or held by or for Secured Party
under the Seasoned Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Seasoned Warehouse Loan
Documents.
- - Guaranties related to Mortgage Securities identified as Collateral.
- - Any take-out commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities, as
the case may be, to the investors or other purchasers under those
take-out commitments, and all proceeds resulting from the sale of any
of those Mortgage Loans, Construction Loans, Second Mortgage Loans or
Mortgage Securities under those take-out commitments.
- - Any Collateral otherwise described in the security agreement to which
this financing statement relates that may from time to time be
delivered (a) to an investor (or its custodian or other designee)
under Section 3.1 of the Custody Agreement until purchased and paid
for by that investor or (b) to a Company for correction or servicing
under Section 3.2 of the Custody Agreement.
- - The Seasoned Warehouse Note Payment/Funding Account, all other
accounts that Debtor maintains with Secured Party, Seasoned Warehouse
Agent, or any Lender, and all amounts deposited in them or represented
by them.
- - Personal property, contract rights, accounts, and general intangibles
of any kind whatsoever relating to any Collateral.
- - All files, surveys, certificates, correspondence, appraisals, tapes,
discs, cards, accounting records, and other information and data of
Debtor relating to any Collateral, including, without limitation, all
information, data, tapes, discs, and cards necessary to administer and
service any Collateral.
- - Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
MORTGAGE CORPORATION OF AMERICA TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as Seasoned
Warehouse Agent for Seasoned
Warehouse Lenders
By Keith D. Pietila By Pamela E. Skinner
------------------------------- -------------------------------
(Name) KEITH D. PIETILA (Name) PAMELA E. SKINNER
--------------------------- ---------------------------
(Title) VP (Title) VICE PRESIDENT
-------------------------- --------------------------
2
<PAGE> 276
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
MORTGAGE CORPORATION OF AMERICA, AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS SEASONED WAREHOUSE AGENT, AS SECURED PARTY
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CREDIT AGREEMENT" means the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 among the Companies, Texas
Commerce Bank National Association, as a Seasoned Warehouse Lender and as agent
for the other Seasoned Warehouse Lenders, and the other Seasoned Warehouse
Lenders.
"CUSTODY AGREEMENT" means the Seasoned Warehouse Custody Agreement of even
date herewith between the Companies and the Custodian, as it may be
supplemented, amended or restated from time to time. By this reference, the
Custody Agreement is incorporated into this Agreement; provided that, in
interpreting this Agreement or any of the other Seasoned Warehouse Loan
Documents except the Custody Agreement itself, definitions of terms in this
Agreement will control over any inconsistent definitions in the Custody
Agreement.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed to
sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"OBLIGATIONS" means the principal of and interest on the Seasoned
Warehouse Revolving Loans, and, without duplication, all other indebtedness,
obligations and liabilities of the Borrowers to the Seasoned Warehouse Lenders
and the Seasoned Warehouse Agent under or arising out of or in connection with
this Agreement or any other Seasoned Warehouse 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,
<PAGE> 277
reimbursement obligations, fees, expenses or otherwise, and the due performance
and compliance with the terms and conditions of this Agreement and the other
Seasoned Warehouse Loan Documents by the Borrowers and also includes amounts
that would become due but for operation of 11 U.S.C. Sections 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 Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"SEASONED WAREHOUSE LOAN DOCUMENTS" means (a) the Credit Agreement,
certificates and reports delivered under the Credit Agreement, and exhibits and
schedules to the Credit Agreement, (b) all agreements, documents, and
instruments in favor of the Seasoned Warehouse Agent, the Custodian or the
Seasoned Warehouse Lenders (or the Seasoned Warehouse Agent or Custodian on
behalf of the Seasoned Warehouse Lenders) ever delivered under this Agreement
or otherwise delivered in connection with any of the Obligations and (c) all
renewals, extensions, and restatements of, and amendments and supplements to,
any of the foregoing.
"SEASONED WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers'
non-interest bearing demand checking account no. 0010-2673408 to be maintained
with Texas Commerce.
"SEASONED WAREHOUSE REVOLVING LOAN" means a loan made by the Seasoned
Warehouse Lenders and disbursed by the Seasoned Warehouse Agent to the
Borrowers under SECTION 3.1 of the Credit Agreement on a Disbursement Date.
"VA" means the U.S. Department of Veterans Affairs.
2
<PAGE> 278
FINANCING STATEMENT
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER
FOR FILING UNDER THE UNIFORM COMMERCIAL CODE.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
<S> <C>
DEBTOR'S NAME AND MAILING ADDRESS: Mortgage Corporation of America, Inc.
23999 Northwestern Highway, Suite 230
Southfield, MI 48075
FED. TAX ID NO. 37-1371271
- --------------------------------------------------------------------------------
SECURED PARTY'S NAME AND MAILING ADDRESS: Texas Commerce Bank National
Association, as Seasoned Warehouse
Agent(1)
712 Main Street
Houston, TX 77002
FED. TAX ID NO. 74-0800980
- --------------------------------------------------------------------------------
FOR FILING OFFICER:
- --------------------------------------------------------------------------------
</TABLE>
THIS FINANCING STATEMENT COVERS THE FOLLOWING PRESENT AND FUTURE TYPES AND
ITEMS OF PROPERTY AND INTERESTS, WHETHER NOW OWNED OR ACQUIRED IN THE FUTURE BY
DEBTOR (THE "COLLATERAL"):
- - Mortgage Loans from time to time identified to Secured Party as
Collateral.
- - Second Mortgage Loans from time to time identified to Secured Party as
Collateral.
- - Construction Loans from time to time identified to Secured Party as
Collateral.
- - Land Contracts from time to time identified to Secured Party as
Collateral.
- - All Collateral Papers in any way related to any of the above
identified as Collateral, including, without limitation, all
promissory notes evidencing, and all mortgages, deeds of trust, or
trust deeds securing, those Mortgage Loans, Second Mortgage Loans or
Construction Loans, and all Land Contracts, whether deposited with or
held by or for Secured Party or otherwise.
- - Private mortgage insurance (including, without limitation, all
commitments to issue any such insurance) covering, and all commitments
issued by FHA to insure or issued by VA to guarantee, any Mortgage
Loans or Construction Loans identified as Collateral.
- - Security of any kind pledged by a mortgagor for any Mortgage
Collateral identified as Collateral.
- - Casualty insurance assigned to Debtor in connection with any Mortgage
Collateral identified as Collateral.
- ----------------
(1) Secured Party is serving as Seasoned Warehouse Agent under the
Credit Agreement, and the security interest evidenced by this
financing statement, as amended from time to time, is granted to
Secured Party in that capacity and as secured party on behalf of
all of the Seasoned Warehouse Lenders, including Texas Commerce
<PAGE> 279
- - Mortgage Securities deposited with or held by or for Secured Party
under the Seasoned Warehouse Loan Documents or registered by book
entry in Secured Party's name under the Seasoned Warehouse Loan
Documents.
- - Guaranties related to Mortgage Securities identified as Collateral.
- - Any take-out commitments held by Debtor for any Mortgage Collateral
identified as Collateral, rights to deliver those Mortgage Loans,
Construction Loans, Second Mortgage Loans or Mortgage Securities, as
the case may be, to the investors or other purchasers under those
take-out commitments, and all proceeds resulting from the sale of any
of those Mortgage Loans, Construction Loans, Second Mortgage Loans or
Mortgage Securities under those take-out commitments.
- - Any Collateral otherwise described in the security agreement to which
this financing statement relates that may from time to time be
delivered (a) to an investor (or its custodian or other designee)
under Section 3.1 of the Custody Agreement until purchased and paid
for by that investor or (b) to a Company for correction or servicing
under Section 3.2 of the Custody Agreement.
- - The Seasoned Warehouse Note Payment/Funding Account, all other
accounts that Debtor maintains with Secured Party, Seasoned Warehouse
Agent, or any Lender, and all amounts deposited in them or represented
by them.
- - Personal property, contract rights, accounts, and general intangibles
of any kind whatsoever relating to any Collateral.
- - All files, surveys, certificates, correspondence, appraisals, tapes,
discs, cards, accounting records, and other information and data of
Debtor relating to any Collateral, including, without limitation, all
information, data, tapes, discs, and cards necessary to administer and
service any Collateral.
- - Cash and noncash proceeds of any Collateral.
DEBTOR: SECURED PARTY:
MORTGAGE CORPORATION OF AMERICA, INC. TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Seasoned
Warehouse Agent for Seasoned
Warehouse Lenders
By Lee P. Wells By Pamela E. Skinner
------------------------------- -------------------------------
(Name) LEE P. WELLS (Name) PAMELA E. SKINNER
--------------------------- ---------------------------
(Title) PRESIDENT (Title) VICE PRESIDENT
-------------------------- --------------------------
2
<PAGE> 280
SCHEDULE I
DEFINITIONS ATTACHED TO FINANCING STATEMENT FROM
MORTGAGE CORPORATION OF AMERICA, INC., AS DEBTOR, TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
IN ITS CAPACITY AS SEASONED WAREHOUSE AGENT, AS SECURED PARTY
"CONSTRUCTION LOAN" means a loan that would qualify as a Mortgage Loan
except only for the fact that it is a one-time closing loan to the homeowner
(and not to his or her contractor) to finance new residential construction or
residential improvements.
"CREDIT AGREEMENT" means the 10/97 Senior Secured Seasoned Warehouse
Credit Agreement dated as of October 31, 1997 among the Companies, Texas
Commerce Bank National Association, as a Seasoned Warehouse Lender and as agent
for the other Seasoned Warehouse Lenders, and the other Seasoned Warehouse
Lenders.
"CUSTODY AGREEMENT" means the Seasoned Warehouse Custody Agreement of even
date herewith between the Companies and the Custodian, as it may be
supplemented, amended or restated from time to time. By this reference, the
Custody Agreement is incorporated into this Agreement; provided that, in
interpreting this Agreement or any of the other Seasoned Warehouse Loan
Documents except the Custody Agreement itself, definitions of terms in this
Agreement will control over any inconsistent definitions in the Custody
Agreement.
"FHA" means the Federal Housing Administration within the United States
Department of Housing and Urban Department.
"LAND CONTRACT" means a contract pursuant to which a seller has agreed to
sell residential land to a purchaser on an installment sale basis with a
promise to deliver a deed to such purchaser when the entire installment sale
price is paid.
"MORTGAGE LOAN" means a loan that is not a construction loan, a
non-residential loan, a multi-family residential loan or a commercial loan, is
evidenced by a valid promissory note, and is secured by a mortgage, deed of
trust or trust deed that grants a perfected first priority Lien on the
underlying residential real property.
"OBLIGATIONS" means the principal of and interest on the Seasoned
Warehouse Revolving Loans, and, without duplication, all other indebtedness,
obligations and liabilities of the Borrowers to the Seasoned Warehouse Lenders
and the Seasoned Warehouse Agent under or arising out of or in connection with
this Agreement or any other Seasoned Warehouse 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,
<PAGE> 281
reimbursement obligations, fees, expenses or otherwise, and the due performance
and compliance with the terms and conditions of this Agreement and the other
Seasoned Warehouse Loan Documents by the Borrowers and also includes amounts
that would become due but for operation of 11 U.S.C. Sections 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 Company voluntarily or involuntarily files for protection under
any Debtor Law, and all renewals, extensions, and modifications of any of the
foregoing.
"SEASONED WAREHOUSE LOAN DOCUMENTS" means (a) the Credit Agreement,
certificates and reports delivered under the Credit Agreement, and exhibits and
schedules to the Credit Agreement, (b) all agreements, documents, and
instruments in favor of the Seasoned Warehouse Agent, the Custodian or the
Seasoned Warehouse Lenders (or the Seasoned Warehouse Agent or Custodian on
behalf of the Seasoned Warehouse Lenders) ever delivered under this Agreement
or otherwise delivered in connection with any of the Obligations and (c) all
renewals, extensions, and restatements of, and amendments and supplements to,
any of the foregoing.
"SEASONED WAREHOUSE NOTE PAYMENT/FUNDING ACCOUNT" means the Borrowers'
non-interest bearing demand checking account no. 0010-2673408 to be maintained
with Texas Commerce.
"SEASONED WAREHOUSE REVOLVING LOAN" means a loan made by the Seasoned
Warehouse Lenders and disbursed by the Seasoned Warehouse Agent to the
Borrowers under SECTION 3.1 of the Credit Agreement on a Disbursement Date.
"VA" means the U.S. Department of Veterans Affairs.
2
<PAGE> 282
DISBURSEMENT REQUEST CERTIFICATE
(to refinance Eligible Warehouse Collateral)
This certificate is delivered pursuant to SECTION 5.1 of the 10/97
Senior Secured Warehouse Credit Agreement dated as of October 31, 1997 (as
supplemented, amended or restated, the "WAREHOUSE CREDIT AGREEMENT"), among the
Companies, the Warehouse Agent and the Warehouse Lenders. Terms defined in the
Credit Agreement have the same meaning when used, unless otherwise
defined, in this certificate.
I certify to Warehouse Agent and Warehouse Lenders that on the date of
this certificate:
1. I am the undersigned officer of the Companies and deliver this
certificate on their behalf.
2. The proceeds of the requested Revolving Loan are to be used to
refinance Debt secured by Eligible Warehouse Collateral currently held by Texas
Commerce, who will assign to the Warehouse Agent (as agent and secured party
for the Warehouse Lenders) its security interest in all collateral for
such existing Debt being refinanced and, upon disbursement of such proceeds to
Texas Commerce, a Company will own good and marketable title to such
Collateral, free and clear of any lien, pledge, charge or interest of any party
other than the Warehouse Agent (as agent and secured party for the Warehouse
Lenders).
3. All of the Collateral in which the Warehouse Agent (as agent and
secured party for the Warehouse Lenders), by disbursing such refinancing
Warehouse Revolving Loan, will acquire a security interest shall be Eligible
Warehouse Collateral.
4. All of the Collateral to be so refinanced by the proposed
Warehouse Revolving Loan shall be Pledged to the Warehouse Agent as Collateral,
and to no other Person, and shall be subject to the Warehouse Credit Agreement
and the Warehouse Security Agreement, and the Warehouse Agent, as agent and
secured party for the Lenders, will thereby acquire and have a first and
prior perfected security interest therein.
5. No Default or Event of Default has occurred and is continuing.
<PAGE> 283
6. The warranties and representations set forth in SECTION 11 of the
Warehouse Credit Agreement and SECTION 3 of the Warehouse Security Agreement are
true and correct on and as of the date hereof.
By Lee P. Wells
---------------------------------
(Name) LEE P. WELLS
-----------------------------
(1)(Title) PRESIDENT
-------------------------
(Date) 11/5/97
-----------------------------
- ------------------
(1) Must be a Responsible Officer of all four Companies.
2
<PAGE> 284
REQUEST FOR APPROVAL
The undersigned Borrowers and Senior Lender hereby request approval of
the following Senior Lender and Senior Debt; and (x) certify, represent,
warrant and covenant that the information and documents submitted herewith in
Section 1, 2 and 3 are true and accurate, and (y) agree (except where
separately stated as to the Senior Lender or Borrowers) to the provisions of
Section 4, 5, 6 and 7. Terms defined in the Subordinated Promissory Note (Term
Loan) dated July 18, 1996, as amended, modified, extended or restated from time
to time ("Note") have the same meanings when used herein, unless otherwise
defined herein.
4. Name of Senior Lender:
Texas Commerce Bank National Association (a national
banking association) and such other lenders as may become party to the 10/97
Senior Secured Seasoned Warehouse Credit Agreement, as amended, from time to
time (acting herein by and through their agent and representative, Texas
Commerce Bank National Association)
5. Terms and Conditions of Senior Debt:
(a) Type of Senior Debt:
Warehouse revolving credit to finance MCA Financial
Corp.'s, MCA Mortgage Corporation's, Mortgage Corporation of America's and
Mortgage Corporation of America, Inc.'s owned seasoned mortgage loans, land
contracts and mortgage securities, including up to $5,000,000 in financing for
foreclosure, REO or buyback mortgage loans
(b) Maximum Principal Amount of Senior Debt that
may be outstanding (including any formulas):
$25,000,000
(c) Interest Rate of Senior Debt:
Varying rates indexed to LIBOR or Texas Commerce Bank National Association's
Prime Rate as it changes
(d) Use of Proceeds of Senior Debt:
To finance and refinance MCA Financial Corp.'s, MCA
Mortgage Corporation's, Mortgage Corporation of America's and Mortgage
Corporation of America, Inc.'s seasoned mortgage loans, land contracts and
mortgage securities, including up to $5,000,000 in financing for foreclosure,
REO or buyback mortgage loans
<PAGE> 285
(e) Expiration/Termination/Due Date of Senior Debt:
October 31, 1998, subject to extension by agreement of the parties to the loan
agreement.
6. Copies of Senior Debt Documents: The undersigned
hereby certify that attached hereto are true and accurate copies of the Senior
Debt Documents.
7. Amendment/Modification/Waivers: The Senior Lender and
Borrowers hereby certify, represent, warrant and covenant that no
amendments, modifications or waivers of any terms, conditions, covenants,
agreements, duties, provisions or undertakings under the Senior Debt Document
will be made without Lender's written consent, and no waiver of any breach,
failure, violation or other non-observance or non-performance under the Senior
Debt Documents will be made without Lender's written consent, in any such case
that results in an increase of the amount of the Senior Debt to which the
Indebtedness is subordinated. The Lender's consent shall not be unreasonably
withheld. In the event of any such increase, the provisions of Section 12C of
the Subordinated Promissory Note (Term Loan) shall apply.
8. Notice of Senior Debt Default: The Senior Lender hereby
certifies, represents, warrants and covenants that it will deliver to
Lender, a copy of any notice to any of the Borrowers, which sets forth a Senior
Debt Default, provided further the failure to deliver such notice shall not
affect the Subordination Agreements.
9. Senior Debt to Net Worth Ratio: The Borrowers hereby
certify, represent, warrant and covenant that if this Request for
Approval is approved, that after giving effect thereto, there will not be, on
the date of execution of the Counterpart, (x) any violation of the Senior Debt
to Net Worth Ratio, or (y) any Senior Lender Default.
10. Defaults: The Borrowers hereby certify, represent,
warrant and covenant that if this Request for Approval is approved,
that after giving effect thereto, on the date of the execution of a
Counterpart, that no Event of Default exists or will be created thereby.
[The remainder of this page is intentionally blank.]
2
<PAGE> 286
This Request for Approval is delivered in connection with the Note.
This Request for Approval is executed on ________________, 1997, but effective
as of the date of delivery of a Counterpart.
Senior Lender:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION(1) MCA FINANCIAL CORP.
By: Susan L. Needham By: Lee P. Wells
--------------------- ------------------------
Name: SUSAN L. NEEDHAM Name: LEE P. WELLS
------------------- ----------------------
Title: VICE PRESIDENT Title: PRESIDENT
------------------ ---------------------
MCA MORTGAGE CORPORATION
By: Lee P. Wells
------------------------
Name: LEE P. WELLS
----------------------
Title: PRESIDENT
---------------------
MORTGAGE CORPORATION OF AMERICA
By: Lee P. Wells
------------------------
Name: LEE P. WELLS
----------------------
Title: PRESIDENT
---------------------
MORTGAGE CORPORATION OF AMERICA, INC.
By: Lee P. Wells
------------------------
Name: LEE P. WELLS
----------------------
Title: PRESIDENT
---------------------
- -------------------------
(1) in its capacity as a lender and as agent and representive of the other
lenders that are parties to the 10/97 Senior Secured Seasoned Warehouse Credit
Agreement, as amended, including, initially, only itself
3
<PAGE> 287
MCA REALTY CORPORATION
By: Lee P. Wells
------------------------
Name: LEE P. WELLS
----------------------
Title: PRESIDENT
---------------------
COMPLETE FINANCIAL CORP.
By: Lee P. Wells
------------------------
Name: LEE P. WELLS
----------------------
Title: PRESIDENT
---------------------
SECURITIES CORPORATION OF AMERICA
By: Lee P. Wells
------------------------
Name: LEE P. WELLS
----------------------
Title: PRESIDENT
---------------------
4
<PAGE> 288
SENIOR LENDER APPROVAL
The undersigned Authorized Agent of Lender hereby:
1. Approves the Senior Lender and Senior Debt in
reliance on the foregoing, provided however, (x) a breach by the Borrowers of
Section 6 and 7 shall not affect the rights of the Senior Lender under the
Subordination Agreements, and (y) a breach by Senior Lender of Section 4 or
Section 5 shall be limited to the effect as therein provided.
2. Authorizes a true copy of the Subordinated
Promissory Note (Term Loan) to be delivered to Senior Lender.
3. Agrees that the Subordination Agreements
contained in the Subordinated Promissory Note (Term Loan) shall be in effect
with respect to the Senior Debt and Senior Lender herein referenced, subject to
Sections 3 and 4 above, upon receipt by the undersigned Authorized Agent of an
executed Counterpart hereof.
THE BOARD OF TRUSTEES OF THE POLICEMEN AND
FIREMEN RETIREMENT SYSTEM OF THE CITY OF
DETROIT
By: Plante & Moran, L.L.P., its Authorized
Agent
By: John A. Woods
------------------------
Name: JOHN A. WOODS
----------------------
Title: ASSOCIATE
---------------------
5
<PAGE> 289
COUNTERPART
The undersigned Senior Lender agrees to the Subordination Agreements
contained in the Subordinated Promissory Note (Term Loan), subject to the
matters set forth in the Request for Approval and specifically, without
limiting the generality of the foregoing, certifies, represents, warrants and
covenants that as of the date hereof, the undersigned has not delivered a
Notice of Senior Debt Default.
Date: October 31, 1997
-------------------
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION(1)
By: Susan L. Needham
------------------------
Name: SUSAN L. NEEDHAM
----------------------
Title: VICE PRESIDENT
---------------------
- ----------------------
(1)in its capacity as a lender and as agent and representative of the other
lenders that are parties to the 10/97 Senior Secured Warehouse Credit Agreement,
as amended, including, initally, only itself
6
<PAGE> 1
NORTHWESTERN CORPORATE CENTER
SOUTHFIELD, MICHIGAN
LEASE
This Lease is made between Landlord and Tenant hereinafter identified
in Sections 1(b) and 1(c) hereof, respectively, and constitutes a Lease between
the parties of the "Demised Premises" in the "Building," as defined in Sections
2.2 and 2.1 hereof, respectively, on the terms and conditions and with and
subject to the covenants and agreements of the parties hereinafter set
forth.
W I T N E S S E T H :
1. BASIC LEASE PROVISIONS.
The following are certain basic lease provisions, which are part of, and in
certain instances referred to in subsequent provisions of, this Lease:
(a) Date of this Lease: October 10, 1997
(b) Landlord: NORTHWESTERN CORPORATE CENTER ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership
(c) Tenant: MCA FINANCIAL CORP.
(d) Demised Premises:
A portion of the Basement; a portion of the First Floor and all of the
Fifth, Sixth and Seventh Floors. SEE ATTACHED RIDER.
(e) Anticipated Commencement Date: March 1, 1998
(f) Expiration Date:
The expiration of one hundred twenty (120) full calendar months after
the Commencement Date.
(g) Basic Rental: SEE ATTACHED RIDER.
(h) Tenant's Share: Fifty-Five Percent (55%)
(i) Tenant's Use: General office and for storage and related purposes.
(j) Deposit:
Two Hundred Ten Thousand and 00/100 Dollars ($210,000)
(k) Tenant's Address for Notices: Prior to the Commencement Date:
23999 Northwestern Highway, Ste. 230
Southfield, MI 48075-2579
Thereafter: The Demised Premises
(l) Landlord's Address for Notices:
Northwestern Corporate Center Associates Limited Partnership
c/o Kojaian Management Corporation
26600 Telegraph, Suite 450
Southfield, Michigan 48304
<PAGE> 2
with a copy to:
Grubb & Ellis Real Estate Management
2000 Town Center, Suite 500
Southfield, Michigan 48075
(m) Guarantor: None.
(n) Guarantor's Address for Notices: Not Applicable.
2. BUILDING AND DEMISED PREMISES.
2.1 Landlord is the owner of certain land and improvements, more
particularly described on Exhibit "A" hereto, at 24700 Northwestern Highway,
Southfield, Michigan, including a building (hereinafter referred to as the
"Building") and certain interior and exterior common and public areas and
facilities, including the surface parking facilities (hereinafter referred
to as the "Common Areas") as may be designated by Landlord for the use in
common by tenants of the Building. The Building and appurtenant Common Areas
are hereinafter referred to as the "Development."
2.2 Subject to the terms, covenants, agreements and conditions herein set
forth, Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, those certain premises (herein referred to as the "Demised Premises")
designated in Section 1(d) hereof, as shown on the floor plan(s) attached
hereto as Exhibit "B," together with the nonexclusive right to use the Common
Areas. The square foot area of the Demised Premises, as well as the Building,
(1) shall be computed based upon the BOMA-American National Standard Z65.1-1996,
and shall contain a proportionate share of the Common Areas of the Building
(6% on full floors and 12% on multi-tenant floors).
2.3 Landlord reserves (a) the right from time to time to make changes,
alterations, additions, improvements, repairs or replacements in or to the
Building (including the Demised Premises) and the fixtures and equipment
thereof, as well as in or to the street entrances, halls, passages, elevators,
escalators and stairways and other parts of the Building, and to erect,
maintain, and use pipes, ducts and conduits in and through the Demised
Premises, all as Landlord may reasonably deem necessary or desirable, (b) the
right to eliminate, substitute and/or rearrange the Common Areas (which may
theretofore have been so designated) as Landlord deems appropriate in its
discretion and (c) the right from time to time to construct additional stories
onto the Building.(2) Tenant's nonexclusive right to utilize the Common Areas
shall be in common with Landlord, other tenants and occupants of the Building
and others to whom Landlord grants such rights from time to time. The
Development will contain parking based upon a ratio of five (5) parking spaces
for each One Thousand (1,000) square feet of usable premises in the Building.
In no event shall Tenant, its employees, customers, invitees and/or guests
utilize in excess of Tenant's allocable portion of such parking spaces. SEE
ATTACHED RIDER.
3. TERM.
3.1 The Term shall commence on that date (hereinafter referred to as the
"Commencement Date") being the later to occur of the "Anticipated Commencement
Date" set forth in Section 1(e) hereof and the date Landlord has substantially
completed the improvements to be constructed or installed by Landlord pursuant
to the provisions of Exhibit "C" hereto as
1-2 See Page 2A.
2
<PAGE> 3
1 shall mean the rentable square foot area thereof, and
2 Exercise by Landlord of the rights reserved in this Section 2.3 shall not
materially hinder, impair or impede Tenant's access to the Building and the
Demised Premises or Tenant's ability to utilize the Demised Premises for the
purposes the same are leased.
2A
<PAGE> 4
provided in Section 4 hereof and, unless sooner terminated as hereinafter
provided, shall end on the "Expiration Date" set forth in Section 1(f) hereof;
provided, however, that if Tenant, with Landlord's prior written approval,
shall take occupancy of the Demised Premises for any purpose whatsoever prior
to the Commencement Date, as defined above, the Commencement Date shall be
deemed to have occurred on the earlier date Tenant takes such occupancy. SEE
ATTACHED RIDER.
3.2 If Landlord, for any reason whatsoever, cannot deliver possession of
the Demised Premises to Tenant on the Anticipated Commencement Date, this Lease
shall not be void or voidable, nor shall Landlord be liable to Tenant for any
loss or damage resulting therefrom, and the Expiration Date shall not
be affected. Notwithstanding the foregoing, if possession of the Demised
Premises has not been delivered to Tenant within (1) following the Anticipated
Commencement Date, Tenant, at its option at any time within thirty (30) days
thereafter, but prior to the delivery of possession, may terminate this Lease
by and upon written notice to (2), and Landlord and Tenant shall thereupon be
released from all obligations under this Lease(3).
4. COMPLETION OF IMPROVEMENTS.
(a) Except as provided in Section 3.2 hereof, prior to the Anticipated
Commencement Date, Landlord shall complete the floor(s) on which the Demised
Premises are located and shall construct or install in the Demised Premises the
improvements to be constructed or installed by Landlord pursuant to(4)
(hereinafter referred to as the "Standard Improvements"). Landlord
shall not be required to incur overtime costs and expenses in performing such
construction and/or installation.
(b) With respect to the Standard Improvements, Tenant will furnish to
Landlord all information regarding its partition, electrical and telephone
requirements and all other pertinent data by not later than November 1,
1997. Within five (5) days after Landlord's submission of working
drawings (5), Tenant shall approve same in writing.
If there are any changes requested by Tenant, after completion(6) of the
plans and specifications for the Standard Improvements and/or any additional
improvements required by Tenant (hereinafter referred to as "Tenant's Plan"),
Tenant will be responsible for all (7) architectural and engineering costs and
related expenses resulting from such changes. No changes will be made
without written approval of Landlord after written request of Tenant.
(c) In the event Tenant desires to have improvements installed in the
Demised Premises in addition to or in lieu of the improvements provided for in
Tenant's Plans, Tenant shall so advise Landlord and submit to Landlord at least
ninety (90) days' prior to the Anticipated Commencement Date, complete plans
and specifications for such improvements. Tenant shall(8) cause
such plans and specifications to be revised in order to comply with Landlord's
(7) comments to such plans and specifications. Upon approval of such plans and
specifications by Landlord, Landlord shall advise Tenant of the cost of
constructing and installing such improvements, and upon approval of such
costs (9) Landlord will commence construction and installation of such
improvements; provided, however, that Tenant may revise such plans in order to
reduce such costs, subject to Landlord's approval. Tenant shall be responsible
for all costs resulting from such additional work, including architectural and
engineering charges.(10) Notwithstanding anything contained to the contrary,
if Tenant shall request any changes or modification to the plans and
specifications after the approval thereof by Landlord, or if Tenant does not
timely submit such plans and specifications or revisions thereof, or if such
plans and specifications require materials which are not readily available or
require long lead time, or if the completion of such construction and
installation is delayed for any other reason attributable to Tenant including
its failure to pay for the same as provided in Paragraph 4(d) hereof,(11) the
Commencement Date shall not be delayed or postponed as a result thereof and the
Commencement Date shall be the date which Landlord determines (12) that the
Demised Premises would have been ready but for such delays, even if the Demised
Premises is not completed on the Commencement Date.
1-12 See Page 3A
3
<PAGE> 5
1 six (6) months
2 Landlord
3 and all payments made by Tenant to Landlord prior to such termination shall
be immediately refunded to Tenant.
4 the Rider to this Section 4
5 prepared in accordance with the Rider to this Section 4 and Tenant's
requirements,
6 and Tenant's approval
7 reasonable
8 promptly
9 by Tenant
10 which exceed the Tenant Allowance described in the attached Rider.
11 and provided the delay in completing such construction is due solely to the
actions or failure to act of Tenant,
12 in good faith
3A
<PAGE> 6
(d) The cost of all improvements to the Demised Premises over and above
the (1) shall be paid by Tenant as follows: (i) one-half (l/2) of such
amount within ten (10) days after the approval of Tenant's plans and
specifications by Landlord and the submission of the costs to Tenant, and (iii)
the balance of such amount prior to occupancy of the Demised Premises by
Tenant. In no event shall Landlord be required to commence or continue such
work if Tenant defaults in its obligation to make the payments herein required.
(e) The Demised Premises shall be deemed completed and possession
delivered to Tenant when Landlord has substantially completed its improvements
subject only to the completion of (2)details of construction, decorations and
mechanical adjustments which do not materially interfere with Tenant's use of
the Demised Premises, and Tenant shall accept the same (3) notice from
Landlord that such improvements have been so completed. If any dispute shall
arise as to whether Landlord has completed its improvements, a certificate
furnished by Landlord's architect certifying(4) the date of such completion
shall be conclusive and binding of that fact and date upon Landlord and Tenant.
SEE ATTACHED RIDER.
5. RENTAL.
5.1 Tenant shall pay to Landlord as rental for the Demised Premises the
Basic Rental set forth in Section 1(g) hereof, which shall be payable in
equal monthly installments in advance, together with the rentals provided for
in Section 5.3 hereof.
5.2 The following terms shall have the following meanings.
(a) The term "Expenses" shall mean the actual cost incurred by Landlord
with respect to the operation, maintenance, repair and replacement and
administration of the Development, including, without limitation or
duplication, (1) the costs incurred for air conditioning; mechanical
ventilation; heating; cleaning (including janitorial services); rubbish
removal; snow removal; general landscaping and maintenance; window washing,
elevators, escalators, porter and matron services, electric current for the
Common Areas; management fees(5); protection and security services;
repairs, replacement, and maintenance; fire, extended coverage, boiler,
sprinkler, apparatus, public liability and property damage insurance
(including loss of rental income insurance); supplies; wages, salaries,
disability benefits, pensions, hospitalization, retirement plans and group
insurance respecting service and maintenance employees and management
staff(6); uniforms and working clothes for such employees and the
cleaning thereof; expenses imposed pursuant to any collective bargaining
agreement with respect to such employees; payroll, social security,
unemployment and other similar taxes with respect to such employees and
staff; sales, use and other similar taxes; Landlord's Michigan Single
Business Tax, water rates and sewer charges and personal property taxes;
advertising, public relations and promotions; depreciation of movable
equipment and personal property, which is, or should be, capitalized on the
books of Landlord, and the cost of movable equipment and personal property,
which need not be so capitalized, as well as the cost of maintaining all
such movable equipment, and any other costs, charges and expenses which,
under generally accepted accounting principles and practices, would be
regarded as maintenance and operating expenses, and (2) the cost of any
capital improvements made to the Development by Landlord after the
Commencement Date that are intended to reduce other Expenses, or made to
the Development by Landlord after the date of this Lease that are required
under any governmental law or regulation that was not applicable to the
Development at the time it was constructed, such cost to be amortized over
such reasonable period as Landlord shall determine(7), together with
interest on the unamortized balance at the rate of two percent (2%) in
excess of the then current "prime rate" of National Bank of Detroit (as
defined in Section 5.5 hereof) or such higher rate as may have been paid by
Landlord on funds borrowed for the purpose of constructing such capital
improvements. Expenses shall not include "Taxes," as defined in Section
5.2(d) hereof; depreciation on the Building other than depreciation on
standard exterior window coverings provided by Landlord and carpeting in
Common Areas and other than as set forth above; costs of services or
repairs, replacements and maintenance which are
1-7 See Page 4A
4
<PAGE> 7
1 Tenant Allowance
2 minor
3 seven (7) days after
4 to Tenant
5 (not to exceed five percent (5%) of gross rentals)
6 prorated with respect to time actually devoted to the Development
7 in accordance with GAAP
4A
<PAGE> 8
paid for by proceeds of insurance, by other tenants (in a manner other than
as provided in Section 5.3 hereof), or third parties; or tenant
improvements, real estate brokers' commissions, interest and capital
items other than replacements and those referred to in clause (2) above.
The Expenses shall be adjusted to equal Landlord's reasonable estimate
of Expenses had the total Building been occupied and had the total Building
been furnished all services.
Landlord shall have the right to aggregate the Expenses relating to the
exterior Common Areas serving the Building and the exterior common areas
serving 19675 Ten Mile and 24800 Northwestern and allocate such Expenses
between the Building and said other buildings on a reasonable and equitable
basis.
(b) The term "Base Expenses" shall mean the Expenses for the 1998
calendar year.
(c) The term "Additional Expenses" shall mean the total dollar
increases, if any, over the Base Expenses paid or incurred by
Landlord in (1) year. SEE ATTACHED RIDER.
(d) The term "Taxes" shall mean the amount incurred by Landlord of all
ad valorem real property taxes and assessments, special or otherwise,
levied upon or with respect to the Development, or the rent and additional
charges payable hereunder, imposed by any taxing authority having
jurisdiction. Taxes shall also include all taxes, levies and charges which
may be assessed, levied or imposed in replacement of, or in addition to,
all or any part of ad valorem real property taxes as revenue sources, and
which in whole or in part are measured or calculated by or based upon the
Development, the freehold and/or leasehold estate of Landlord or Tenant, or
the rent and other charges payable hereunder. Taxes shall include any
expenses incurred by Landlord in determining or attempting to obtain a
reduction of Taxes.
(e) The term "Base Taxes" shall mean the 1998 real estate tax rate
applicable to the Development multiplied by (2) the assessed valuation of
the Development determined by the City of Southfield as of December 31,
1998, or as finally determined in the event Landlord appeals such
assessment.
(f) The term "Additional Taxes" shall mean the total dollar increase,
if any, over the Base Taxes paid or incurred by Landlord in the
respective calendar year.
(g) The term "Tenant's Share" shall mean the percentage set forth in
Section 1(h) hereof. Tenant's Share has been computed on the basis of
the square foot area of the (3) Demised Premises divided by the total
leasable square foot area of the Building (including the Demised
Premises (4)). In the event the square foot area of the Demised Premises
or the leasable square foot area of the Building shall be determined to
differ from that utilized in computing Tenant's Share, Tenant's Share shall
be adjusted accordingly.
5.3 (a) Tenant shall pay to Landlord as additional rental Tenant's Share
of Additional Expenses and Additional Taxes in the manner and at the times
herein provided.
(b) With respect to Additional Expenses and Additional Taxes,
prior to the beginning of each calendar year (5), or as soon thereafter
as practicable, Landlord shall give Tenant notice of Landlord's estimate of
Tenant's Share of Additional Expenses and Additional Taxes for the ensuing
calendar year. On or before the first day of each month during the ensuing
calendar year, Tenant shall pay to Landlord one-twelfth (1/12th) of such
estimated amounts, provided that until such notice is given with respect to the
ensuing calendar year, Tenant shall continue to pay the amount currently
payable pursuant hereto until after the month such notice is given. If at any
time or times (including, without limitation, upon Tenant taking occupancy of
the Demised Premises) it appears to Landlord that Tenant's Share of Additional
Expenses or Tenant's Share of Additional Taxes for the then current
1-5 See Page 5A
5
<PAGE> 9
1 the respective calendar
2 ninety-five percent (95%) of
3 Office Premises of the
4 but excluding the Basement of the Building
5 commencing January 1, 1999,
5A
<PAGE> 10
calendar year will vary from Landlord's estimate by more than five percent
(5%), Landlord may, by notice to Tenant, revise its estimate for such year and
subsequent payments by Tenant for such year shall be based upon such revised
estimate.
Within ninety (90) days after the close of each calendar year, or as
soon after such ninety (90) day period as practicable, Landlord shall deliver
to Tenant a statement prepared by Landlord of Tenant's Share of Additional
Expenses and Additional Taxes, respectively, for such calendar year.
If on the basis of either of such statements, Tenant owes an amount
that is less than the estimated payments for such calendar year previously made
by Tenant, Landlord shall credit such excess amount against the next payment(s)
due from Tenant to Landlord of Additional Expenses or Additional Taxes, as the
case may be. If on the basis of such statement, Tenant owes an amount that is
more than the estimated payments for such calendar year previously made by
Tenant, Tenant shall pay the deficiency to Landlord within (1) days
after delivery of such statement. SEE ATTACHED RIDER.
(c) If this Lease shall terminate on a day other than the last day of
a calendar year, Tenant's Share of Additional Expenses and/or Additional Taxes
that is applicable to the calendar year in which such termination shall occur
shall be prorated on the basis of the number of calendar days within such year
as are within the Term.
5.4 Basic Rental shall be paid to Landlord on or before the first day of
each and every calendar month in advance during the Term. In the event the
Commencement Date is other than the first day of a calendar month, or the
Expiration Date is other than the last day of the calendar month, then the
monthly rental for the first and last fractional months of the Term shall be
appropriately prorated.
5.5 Tenant shall pay as additional rental any money and charges required
to be paid by Tenant pursuant to the terms of this Lease, whether or not
the same may be designated "additional rent."
5.6 Except as above provided, rental and additional rental shall be paid
to Landlord without notice or demand and without deduction or offset, in lawful
money of the United States of America at Landlord's address for notices
hereunder or to such other person or at such other place as Landlord may from
time to time designate in writing. All amounts payable by Tenant to Landlord
hereunder, if not paid when due, shall be subject to an administrative late
charge of five percent (5%) of the amount due and, in addition, shall bear
interest from the due date until paid at the rate equal to two percent (2%) in
excess of the then current "prime rate" of NBD Bank, but not in excess of the
legal rate. Such prime rate shall be the rate announced by such Bank as its
"prime rate"; if no such prime rate is announced, the prime rate shall be
deemed to be fifteen percent (15%). SEE ATTACHED RIDER.
6. OTHER TAXES PAYABLE BY TENANT.
In addition to the monthly rental and other charges to be paid by Tenant
hereunder, Tenant shall reimburse Landlord upon demand for any and all taxes
payable by Landlord (other than net income taxes and taxes included within
Taxes) whether or not now customary or within the contemplation of the parties
hereto: (a) upon, measured by or reasonably attributable to the cost or
value of Tenant's equipment, furniture, fixtures and other personal property
located in the Demised Premises (b) upon or with respect to the possession,
leasing, operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Demised Premises or any portion thereof; and (c)
upon this transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Demised Premises. In the event
that it shall not be lawful for Tenant so to reimburse Landlord, the monthly
rental payable to Landlord under this Lease shall be revised to
1 thirty (30)
6
<PAGE> 11
net to Landlord the same rental after imposition of any such tax upon Landlord
as would have been payable to Landlord prior to the imposition of any such tax.
7. USE.
7.1 The Demised Premises shall be used only for the purposes of "Tenant's
Use" as set forth in Section 1(i) hereof, and for no other purpose or
purposes whatsoever. SEE ATTACHED RIDER.
7.2 Tenant shall not do or permit to be done in or about the Demised
Premises, nor bring or keep or permit to be brought or kept therein, anything
which is prohibited by or will in any way conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may
hereafter be enacted or promulgated, or which is prohibited by the standard
form of fire insurance policy, or will in any way increase the existing rate of
or affect any fire or other insurance upon the Building or any of its contents,
or cause a cancellation of any insurance policy covering the Building or any
part thereof or any of its contents, or adversely affect or interfere with any
services required to be furnished by Landlord to Tenant, or to any other
tenants or occupants of the Building, or with the proper and economical
rendition of any such service. Tenant shall not do or permit anything to be
done in or about the Demised Premises which will in any way obstruct or
interfere with the rights of other tenants of the Building, or injure or annoy
them, or use or allow the Demised Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Demised Premises or commit or suffer to
be committed any waste in, on or about the Demised Premises. If anything done,
omitted to be done or suffered to be done by Tenant, or kept or suffered by
Tenant to be kept in, upon or about the Demised Premises shall cause the rate
of fire or other insurance on the Building in companies acceptable to Landlord
to be increased beyond the minimum rate from time to time applicable to the
Building,(1) Tenant shall pay the amount of any such increases. Tenant shall
not cause or permit the use, generation, storage or disposal in or about the
Demised Premises or the Building of any substances, materials or wastes(2)
subject to regulation under federal, state or local laws from time to time in
effect concerning hazardous, toxic or radioactive materials, unless Tenant
shall have received Landlord's prior written consent, which Landlord may
withhold or at any time revoke in its sole discretion.
8. SERVICES.
8.1 Landlord shall maintain the Common Areas including any (3) lobbies,
stairs, elevators, corridors and restrooms, together with the windows and
exterior walls, roofs, foundations and structure itself of the Building and the
mechanical, plumbing and electrical equipment servicing the Building, in
good order and condition as reasonably determined by Landlord and the cost
shall be included in Expenses, except for the repairs due to fire and other
casualties (to the extent the cost of such repairs are covered by insurance
proceeds) and for the repair of damages occasioned by the acts or omissions of
Tenant (4), which Tenant shall pay to Landlord in full.
8.2 Landlord will arrange for the furnishing of electricity to the Demised
Premises, and Landlord shall elect either: (i) to charge Tenant for electricity
as determined by metering at the applicable secondary rates filed by Landlord
with the proper regulating authorities in effect from time to time covering
such services, but not more than the secondary rates which would be charged
to Tenant by the public utility company, or Such charge to Tenant for
electricity shall be payable in monthly installments together with Basic Rental
in the amount invoiced to Tenant. Notwithstanding anything herein contained to
the contrary, Landlord reserves the right to terminate the furnishing of
electricity at any time upon thirty (30) days' notice to Tenant, in which event
Tenant shall make application directly to the utility company servicing the
Building
1-4 See Page 7A
7
<PAGE> 12
1 as certified in writing thereto by Landlord's insurer
2 other than normal and typical office supplies and equipment
3 parking areas, walkways, landscaping,
4 which are not covered by insurance,
7A
<PAGE> 13
for Tenant's separate supply of electric current, and Landlord shall permit its
wires and conduits to be used for such purposes, to the extent available and
capable of being used safely.(1)
8.3 Landlord shall furnish the Demised Premises with (a) heat, ventilation
and air conditioning to the extent required for the occupancy of the Demised
Premises to standards of comfort and during such hours in each case as
reasonably determined by Landlord for the Building (which hours, until Landlord
shall otherwise designate, shall be from 8:00 a.m. to 6:00 p.m. on
weekdays and from 8:00 a.m. to 12:00 p.m. on Saturdays; in each case except
holidays), or as may be prescribed by any applicable policies or regulations
adopted by any utility or governmental agency, (b) elevator service, and (c)
janitorial service in accordance with Exhibit "D" hereto during the times and
in the manner that services are furnished in comparable first class office
buildings in the area, provided that Landlord shall (2) janitorial services to
any portion of the Demised Premises used for other than office purposes such as
preparing, dispensing or consumption of food or beverages or as an exhibition
area or for storage, shipping room, washroom or similar purposes, or as private
restrooms or a shop or for the operation of computer data processing,
reproduction, duplicating or similar equipment. In addition, Landlord shall
replace all burned out fluorescent (only) tubes, ballasts and starters, and
Tenant shall be billed therefor. Landlord shall not be in default hereunder or
be liable for any damages directly or indirectly resulting from, nor shall the
rental herein reserved by abated by reason of: (1) the installation, use or
interruption of use of any equipment in connection with the furnishing of any
of the foregoing services, (2) failure to furnish or delay in furnishing any
such services when such failure or delay is caused by accident or any condition
beyond the reasonable control of Landlord or by the making of necessary repairs
or improvements to the Demised Premises or to the Building, or (3) any
limitation, curtailment, rationing or restriction on use of water, electricity,
steam, gas or any other form of energy serving the Demised Premises or the
Building. Landlord shall use reasonable efforts diligently to remedy any
interruption in the furnishing of such services. Notwithstanding the
provisions of this Section 8.3, Landlord shall not be required to provide
ventilation and air conditioning to the Demised Premises as herein provided if
Tenant shall utilize in the Demised Premises heat generating equipment or
lighting other than building standard lights which affect the temperature
otherwise maintained by the air conditioning system or if the Demised Premises
are occupied by a number of persons in excess of the design criteria of the air
conditioning system. SEE ATTACHED RIDER.
8.4 Tenant shall pay as additional rent the (3) of providing all
heating, ventilating and air conditioning, including all (3) associated
with the installation of meters for measuring the same, to the Demised Premises
in excess of that required for normal office use or during hours requested
by Tenant when heating, ventilating and air conditioning is not otherwise
furnished by Landlord. Tenant shall notify Landlord in writing at least
twenty-four (24) hours prior to the time it requires heating, ventilating and
air conditioning during periods the same are not otherwise furnished by
Landlord. Notwithstanding the foregoing, Landlord shall only be required to
provide heating, ventilating and air conditioning to the extent available
utilizing the existing equipment servicing the Building.
9. ALTERATIONS AND REPAIRS.
9.1 Tenant shall not make or suffer to be made any alterations, additions
or improvements to or of the Demised Premises or any part thereof, or attach
any fixtures or equipment thereto, without first obtaining Landlord's
consent (4). All such alterations, additions and improvements shall be
performed by contractors and subject to conditions specified by Landlord. If
any such alterations, additions or improvements to the Demised Premises
consented to by Landlord shall be made by Landlord for Tenant's account, Tenant
shall reimburse Landlord for the cost thereof (including a reasonable charge
for Landlord's overhead related thereto(5)) as the work proceeds within five
(5) days after receipt of statements therefor. All such alterations,
additions and improvements shall become the property of Landlord upon their
installation and/or completion and shall remain on the Demised Premises upon
the expiration or termination of this Lease without compensation to Tenant
unless Landlord elects by notice to Tenant to have Tenant remove the same(6),
in which event Tenant shall promptly restore the Demised Premises to their
condition prior to the installation of such alterations, additions and
improvements.(7)
1-7 See Page 8A
8
<PAGE> 14
1 Notwithstanding the foregoing, Tenant shall not suffer any interruption in
service or any extraordinary charges as a result of the termination of such
services by Landlord or the supply of such services by the utility company.
2 only provide Building Standard
3 actual costs of Landlord
4 which consent shall not be unreasonably withheld with respect to
nonstructural alterations, additions or improvements which do not affect
building systems.
5 not to exceed fifteen percent (15%)
6 (excluding, however, any improvements installed pursuant to Article 4
hereof, which Tenant shall not be required to remove)
7 Notwithstanding the foregoing, at Tenant's request, Landlord shall advise
Tenant at the time it consents to such installation, if Tenant will be
required to remove the same.
8A
<PAGE> 15
9.2 Subject to the provisions of Section 8.1 hereof, Tenant shall keep the
Demised Premises and every part thereof in good condition and repair, Tenant
hereby waiving all rights to make repairs at the expense of Landlord or in lieu
thereof to vacate the Demised Premises (1) as provided by any law, statute or
otherwise now or hereafter in effect. All repairs made by or on behalf of
Tenant shall be made and performed in such manner as Landlord may designate, by
contractors or mechanics approved by Landlord and in accordance with the rules
relating thereto annexed to this Lease as Exhibit "E" and all applicable laws
and regulations of governmental authorities having jurisdiction. Tenant shall,
subject to the provisions of Section 9.1 hereof, at the end of the term hereof
surrender to Landlord the Demised Premises in the same condition as when
received, ordinary wear and tear and damage by fire, earthquake, act of God, (2)
or the elements excepted. Landlord has no obligation and has made no promise
to alter, remodel, improve, repair, decorate or paint the Demised Premises
or any part thereof and no representations respecting the condition of the
Demised Premises or the Building have been made by Landlord to Tenant except as
expressly set forth herein.
10. LIENS.
Any mechanic's lien filed against the Demised Premises or the Building for
work claimed to have been done or materials claimed to have been furnished to
Tenant shall be discharged by Tenant within (3) days thereafter (4) For
the purposes hereof, the bonding of such lien by a reputable casualty or
insurance company reasonably satisfactory to Landlord shall be deemed the
equivalent of a discharge of any such lien. Should any action, suit, or
proceeding be brought upon any such lien for the enforcement or foreclosure of
the same, Tenant shall defend Landlord therein, by counsel satisfactory to
Landlord, and pay any damages and satisfy and discharge any judgment entered
therein against Landlord.
11. DESTRUCTION OR DAMAGE.
11.1 In the event the Demised Premises or any portion of the Building
necessary for Tenant's occupancy are damaged by fire, earthquake, act of God,
the elements or other casualty in each case insured against by Landlord's fire
and extended coverage insurance policy covering the Building and, if Landlord's
reasonable estimate of the cost of making such repairs does not exceed the
proceeds of such insurance by more than One Hundred Thousand Dollars
($100,000), Landlord shall forthwith repair the same if such repairs can, in
Landlord's opinion, be completed within (5) days after (6). This Lease shall
remain in full force and effect except that an abatement of Basic Rental shall
be allowed Tenant for such part of the Demised Premises as shall be rendered
unusable by Tenant in the conduct of its business during the time such part is
so unusable. If such repairs cannot, in Landlord's opinion, be made within (5)
days, or if such damage or destruction is not insured against by Landlord's
fire and extended coverage insurance policy covering the Building or if
Landlord's reasonable estimate of the cost of making such repairs exceeds the
proceeds of such insurance by more than One Hundred Thousand Dollars
($100,000), Landlord may elect, upon notice to Tenant within thirty (30) days
after the date of such fire or other casualty, to repair or restore such
damage, in which event this Lease shall continue in full force and effect, but
the Basic Rental shall be partially abated as provided in this Section 11.1.
If Landlord elects not to make such repairs, this Lease shall terminate as of
the date of such election by Landlord. SEE ATTACHED RIDER.
11.2 A total destruction of the Building shall automatically terminate this
Lease.
11.3 If the Demised Premises are to be repaired under this Article 11,
Landlord shall repair at its cost any injury or damage to the Building itself
and building standard tenant improvements in the Demised Premises to be
constructed or installed by Landlord as set forth in Exhibit "C." Tenant shall
perform and pay the cost of repairing any other improvement in the Demised
Premises and shall be responsible for carrying such casualty insurance as it
deems appropriate with respect to such other tenant improvements.
12. SUBROGATION.
Landlord and Tenant shall each obtain from their respective insurers under
all policies of fire insurance maintained by either of them at any time
during the Term insuring or covering the
1-6 See Page 9A
9
<PAGE> 16
1 except as otherwise
2 insurable casualty
3 thirty (30)
4 provided, if Landlord's mortgagee, prospective mortgagee or purchaser of the
Development does not object thereto, Tenant shall have forty-five (45) days
to remove the same.
5 one hundred eighty (180)
6 the occurrence of the damage.
9A
<PAGE> 17
Building or any portion thereof or operations therein, a waiver of all rights
of subrogation which the insurer of one party might have against the other
party, and Landlord and Tenant shall each indemnify the other against any loss
or expense, including reasonable attorneys' fees, resulting from the failure to
obtain such waiver and, so long as such waiver is outstanding, each party
waives, to the extent of the proceeds received under such policy, any right of
recovery against the other party for any loss covered by the policy containing
such waiver; provided, however, that if at any time their respective insurers
shall refuse to permit waivers of subrogation, Landlord or Tenant, in each
instance, may revoke said waiver of subrogation effective thirty (30) days from
the date of such notice, unless within such thirty (30) day period, the other
is able to secure and furnish (without additional expense) equivalent insurance
with such waivers with other companies satisfactory to the other party.
13. EMINENT DOMAIN.
If all or any part of the Demised Premises shall be taken as a result of
the exercise of the power of eminent domain, this Lease shall terminate as to
the part so taken as of the date of taking, and, in the case of partial
taking,(1) either Landlord or Tenant shall have the right to terminate this
Lease as to the balance of the Demised Premises by notice to the other within
thirty (30) days after such date; provided, however, that a condition to the
exercise by Tenant of such right to terminate shall be that the portion of the
Demised Premises(2) taken shall be of such extent and nature (3) substantially
handicap, impede or impair Tenant's use of the balance of the Demised Premises.
In the event of any taking, Landlord shall be entitled to any and all
compensation, damages, income, rent, awards, or any interest therein whatsoever
which may be paid or made in connection therewith, and Tenant shall have no
claim against Landlord for the value of any unexpired term of this Lease or
otherwise. In the event of a partial taking of the Demised Premises which does
not result in a termination of this Lease, the rental thereafter to be paid
shall be reduced on a per square foot basis. SEE ATTACHED RIDER.
14. LANDLORD'S INSURANCE.
Landlord shall, during the Term, provide and keep in force or cause to be
provided or kept in force:
(a) Comprehensive general liability insurance with respect to Landlord's
operation of the Development for bodily injury or death and damage to
property of others;
(b) Fire insurance (including standard extended coverage endorsement
perils and leakage from fire protective devices) in respect of the Building,
excluding Tenant's trade fixtures, equipment and personal property;
(c) Loss of rental income insurance;
together with such other insurance as Landlord, in its (4) discretion,
elects to obtain. Insurance effected by Landlord shall be in amounts which
Landlord shall from time to time determine reasonable and sufficient,
shall be subject to such deductibles and exclusions which Landlord may deem
reasonable and shall otherwise be on such terms and conditions as Landlord
shall from time to time determine reasonable and sufficient. Tenant
acknowledges that Landlord's loss of rental income insurance may provide that
(i) payments thereunder by the insurer will be limited to a period of one year
following the date of any destruction and damage, and (ii) no insurance
proceeds will be payable thereunder in the case of destruction or damage caused
by any occurrence other than fire and other risks included in the standard
extended coverage endorsement perils of a fire insurance policy.(5)
15. INDEMNIFICATION AND TENANT'S INSURANCE.
15.1 Tenant hereby waives all claims against Landlord for damage to any
property or injury or death of any person in, upon or about the Demised
Premises arising at any time and from any cause whatsoever, and Tenant shall
hold Landlord harmless from any damage to any property or injury to or death
of any person arising in, on or about the Demised Premises. The
1-5 See Page 10A
10
<PAGE> 18
1 of the Demised Premises or any material portion of the Common Areas
2 or the Common Areas
3 so as to
4 prudent business
5 At Tenant's request, Landlord shall deliver to Tenant copies of certificates
of insurance evidencing compliance herewith.
10A
<PAGE> 19
foregoing indemnity obligation of Tenant shall include reasonable attorneys'
fees, investigation costs and all other reasonable costs and expenses incurred
by Landlord from the first notice that any claim or demand is to be made or may
be made. The provisions of this Section 15.1 shall survive the termination of
this Lease with respect to any damage, injury or death occurring prior to such
termination. SEE ATTACHED RIDER.
15.2 Tenant shall procure and keep in effect comprehensive general
liability insurance, including contractual liability, with minimum limits of
liability of One Million Dollars ($1,000,000) per occurrence for bodily injury
or death, and Two Hundred Fifty Thousand Dollars ($250,000) per occurrence for
property damage. From time to time, Tenant shall increase the limits of such
policies to such higher limits as Landlord shall reasonably require(1).
Such insurance shall name Landlord, Landlord's property manager (currently
Grubb & Ellis Real Estate Management) and Kojaian Management Corporation as
additional named insureds, shall specifically include the liability assumed
hereunder by Tenant, and shall provide that it is primary insurance and not
excess over or contributory with any other valid, existing and applicable
insurance in force for or on behalf of Landlord, and shall provide that
Landlord shall receive thirty (30) days' notice from the insurer prior to any
cancellation or change of coverage.
15.3 Tenant shall procure and keep in effect fire insurance (including
standard extended coverage endorsement perils and leakage from fire
protective devices) for the full replacement cost of Tenant's trade fixtures,
equipment, personal property and leasehold improvements(2).
15.4 Tenant shall deliver(3) policies of the insurance required pursuant to
Sections 15.2 and 15.3 hereof or certificates thereof to Landlord on or before
the Commencement Date, and thereafter at least thirty (30) days before the
expiration dates of expiring policies.
16. COMPLIANCE WITH LEGAL REQUIREMENTS.
Tenant shall promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force, with the requirements of any board of fire underwriters
or other similar body now or hereafter constituted, with any occupancy
certificate or directive issued pursuant to any law by any public officer or
officers, as well as the provisions of all recorded documents affecting the
Demised Premises, insofar as any thereof relate to or affect the condition, use
or occupancy of the Demised Premises, excluding requirements of structural
changes not related to or affected by improvements made by or for Tenant or not
necessitated by Tenant's act. SEE ATTACHED RIDER.
17. ASSIGNMENT AND SUBLETTING.
17.1 Except as expressly permitted pursuant to this Article 17, Tenant
shall not, without the prior written consent of Landlord, assign, encumber or
hypothecate this Lease or any interest herein or sublet the Demised Premises or
any part thereof, or permit the use of the Demised Premises by any party other
than Tenant. This Lease shall not, nor shall any interest herein, be
assignable as to the interest of Tenant by operation of law without the consent
of Landlord. Sales aggregating fifty percent (50%) or more of the capital or
voting stock of Tenant (if Tenant is a nonpublic corporation) or transfers
aggregating fifty percent (50%) or more of Tenant's partnership interest (if
Tenant is a partnership) shall be deemed to be an assignment of this Lease. SEE
ATTACHED RIDER.
17.2 If at any time or from time to time during the term of this Lease,
Tenant desires to sublet all or any part of the Demised Premises or to assign
this Lease, Tenant shall give notice to Landlord setting forth the proposed
subtenant or assignee, the terms of the proposed subletting and the space so
proposed to be sublet or the terms of the proposed assignment, as the
case may be. Landlord shall have the option, exercisable by notice given to
Tenant within twenty (20) days after Tenant's notice is given, (a) if Tenant's
request relates to a subletting, either to sublet from Tenant such space at the
rental and other terms set forth in Tenant's notice, or, if the proposed
subletting is for the entire Demised Premises for the balance of the Term, to
terminate this Lease or (b) if Tenant's request relates to an assignment,
either to have this Lease assigned to Landlord or to terminate this Lease. If
Landlord does not exercise such option, Tenant shall be free for a period of
one hundred eighty (180) days thereafter to sublet such space or to assign this
Lease to such third party if Landlord shall consent thereto, provided that
the sublease or assignment
1-3 See Page 11A
11
<PAGE> 20
1 in accordance with industry standards.
2 paid for by Tenant
3 copies of
11A
<PAGE> 21
shall be on the same terms set forth in the notice given to Landlord and that
the rental to such subtenant or assignee shall not be less than the then market
rate for such premises.
In the event Tenant shall so sublet a portion of the Demised Premises, or
assign this Lease,(1) all of the sums or other economic consideration received
by Tenant as a result of such subletting or assignment whether denominated
rentals or otherwise, under the sublease or assignment, which exceed in the
aggregate, the total sums which Tenant is obligated to pay Landlord under this
Lease (prorated to reflect obligations allocable to that portion of the Demised
Premises subject to such sublease) shall be payable to Landlord as additional
rental under this Lease without affecting or reducing any other obligation of
Tenant hereunder.
17.3 Notwithstanding the provisions of Sections 17.1 and 17.2 hereof,
Tenant may assign this Lease or sublet the Demised Premises or any portion
thereof, without Landlord's consent and without extending any option to
Landlord, to any corporation which controls, is controlled by or is under
common control with Tenant, or to any corporation resulting from the merger or
consolidation with Tenant, or to any person or entity which acquires all the
assets of Tenant as a going concern of the business that is being conducted on
the Demised Premises, provided that said assignee assumes, in full, the
obligations of Tenant under this Lease.
17.4 Regardless of Landlord's consent, no subletting or assignment shall
release Tenant of Tenant's obligation or alter the primary liability of
Tenant to pay the rental and to perform all other obligations to be
performed by Tenant hereunder,(2) The acceptance of rental by Landlord from
any other person shall not be deemed to be a waiver by Landlord or any
provision hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of default of
any of the terms hereof, Landlord may proceed directly against Tenant without
the necessity of exhausting remedies against such assignee or successor.
Landlord may consent to subsequent assignments or subletting of this Lease or
amendments or modifications to this Lease with assignees of Tenant, (3) Tenant,
or any successor of Tenant, and (4) obtaining its or their consent thereto and
such action shall not relieve Tenant of liability under this Lease.(5)
17.5 In the event Tenant shall assign this Lease or sublet the Demised
Premises or request the consent of Landlord to any assignment or subletting
or if Tenant shall request the consent of Landlord for any act that Tenant
proposes to do, then Tenant shall pay Landlord's reasonable attorneys' fees and
processing fees incurred in connection therewith,(6)
18. RULES.
Tenant shall faithfully observe and comply with the rules and regulations
annexed to this Lease as Exhibit "E" and, after notice thereof, all
reasonable modifications thereof and additions thereto from time to time
promulgated in writing by Landlord,(7) Landlord shall not be responsible to
Tenant for the nonperformance by any other tenant or occupant of the Building
of any of such rules and regulations.
19. ENTRY BY LANDLORD.
19.1 Landlord and its designees may enter the Demised Premises at
reasonable hours(8) to (a) inspect the same, (b) exhibit the same to
prospective purchasers, lenders or tenants, (c) determine whether Tenant is
complying with all of its obligations hereunder, (d) supply janitor service and
any other services to be provided by Landlord to Tenant hereunder, (e) post
notices of nonresponsibility, and (f) make repairs required of Landlord under
the terms hereof or repairs to any adjoining space or utility services or make
repairs, alterations or improvements to any other portion of the Building;
provided, however, that all such work shall be done as promptly as reasonably
possible. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Demised Premises or any other loss occasioned by such
entry. SEE ATTACHED RIDER.
19.2 Landlord shall at all times have and retain a key with which to
unlock all of the doors in, on or about the Demised Premises (excluding
Tenant's vaults, safes and similar areas designated in writing by Tenant in
advance); and Landlord shall have the right to use any and
1-8 See Page 12A
12
<PAGE> 22
1 fifty percent (50%) of
2 unless Tenant is expressly released in writing by Landlord.
3 upon notice to
4 after
5 If Tenant does not consent thereto, Tenant shall remain liable under this
Lease without regard to such amendment or modification.
6 but not to exceed One Thousand and 00/100 Dollars ($1,000.00).
7 and delivered to Tenant.
8 upon reasonable prior notice (except in the case of an emergency)
12A
<PAGE> 23
all means which Landlord may deem proper to open said doors in any emergency in
order to obtain entry to the Demised Premises, and any entry to the Demised
Premises obtained by Landlord by any of said means, or otherwise, shall not
under any circumstances be construed or deemed to be a forcible or unlawful
entry into or a detainer of the Demised Premises or an eviction, actual or
constructive, of Tenant from the Demised Premises, or any portion thereof.
20. EVENTS OF DEFAULT.
20.1 The occurrence of any one or more of the following events
(hereinafter referred to as "Events of Default") shall constitute a breach of
this Lease by Tenant: (a) if Tenant shall fail to pay the Basic Rental when and
as the same becomes due and payable(1); or (b) if Tenant shall fail to pay any
other sum when and as the same becomes due and payable and such failure shall
continue for more than ten (10) days(2); or (c) if Tenant shall fail to
perform or observe any other term hereof or of the rules and regulations
referred to in Article 18 hereof to be performed or observed by Tenant, such
failure shall continue for more than thirty (30) days after notice thereof from
Landlord, and Tenant shall not within such thirty (30) day period commence with
due diligence and dispatch the curing of such default, or, having so commenced,
shall thereafter fail or neglect to prosecute or complete with due diligence
and dispatch the curing of such default; or (e) if Tenant shall
make a general assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts as they become due or shall file a
petition in bankruptcy, or shall be adjudicated as insolvent or shall file a
petition in any proceeding seeking any reorganization, arrangements,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation, or shall file an answer admitting
or fail timely to contest or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or any material part of its properties; or (f)
if within ninety (90) days after the commencement of any proceeding against
Tenant seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, such proceeding shall not have been dismissed, or if, within
ninety (90) days after the appointment without the consent of acquiescence of
Tenant, of any trustee, receiver or liquidator of Tenant or of any material
part of its properties, such appointment shall not have been vacated; or (g) if
this Lease or any estate of Tenant hereunder shall be levied upon under any
attachment or execution and such attachment or execution is not vacated within
ten (10) days.
20.2 If, as a matter of law, Landlord has no right on the bankruptcy of
Tenant to terminate this Lease, then, if Tenant, as debtor, or its trustee
wishes to assume or assign this Lease, in addition to curing or adequately
assuring the cure of all defaults existing under this Lease on Tenant's part on
the date of filing of the proceeding (such assurances being defined below),
Tenant, as debtor, or the trustee or assignee must also furnish adequate
assurances of future performance under this Lease (as defined below). Adequate
assurance of curing defaults means the posting with Landlord of a sum in cash
sufficient to defray the cost of such a cure. Adequate assurance of future
performance under this Lease means posting a deposit equal to three (3) months'
rent, including all other charges payable by Tenant hereunder, such as the
amounts payable pursuant to Article 5 hereof, and, in the case of an assignee,
assuring Landlord that the assignee is financially capable of assuming this
Lease, and that its use of the Demised Premises will not be detrimental to the
other tenants in the Building or Landlord. In a reorganization under Chapter
11 of the Bankruptcy Code, the debtor or trustee must assume this Lease or
assign it within one hundred twenty (120) days from the filing of the
proceeding, or he shall be deemed to have rejected and terminated this Lease.
21. REMEDIES.
If any of the Events of Default shall occur, then Landlord shall have the
following remedies:
(a) Landlord at any time after the Event of Default, at Landlord's option,
may give to Tenant (3) notice of termination of this Lease, and in the event
such notice is given, this Lease shall come to an end and expire (whether or
not the Term shall have
1 and such failure continues for more than ten (10) days after written notice
2 after written notice to Tenant
3 requisition statutory
13
<PAGE> 24
commenced) upon the expiration of such (1) but Tenant shall remain liable for
damages as provided in Article 22 hereof.
(b) Either with or without terminating this Lease, Landlord may
immediately or at any time after the Event of Default or after the date
upon which this Lease shall expire, reenter the Demised Premises or any part
thereof, without notice, either by summary proceedings or by any other
applicable action or proceeding, (2) (without being liable to indictment,
prosecution or damages therefor), and may repossess the Demised Premises and
remove any and all of Tenant's property and effects from the Demised Premises.
(c) Either with or without terminating this Lease, Landlord may relet the
whole or any part of the Demised Premises from time to time, either in the name
of Landlord or otherwise, to such tenant or tenants, for such term or terms
ending before, on or after the Expiration Date, at such rental or rentals and
upon such other conditions, which may include concessions and free rent
periods, as Landlord, in its sole discretion, may determine. In the event of
any such reletting, Landlord shall not be liable for the failure to collect any
rental due upon any such reletting, and no such failure shall operate to
relieve Tenant of any liability under this Lease or otherwise to affect any
such liability; and Landlord may make such repairs, replacements, alterations,
additions, improvements, decorations and other physical changes in and to the
Demised Premises as Landlord, in its sole discretion, considers advisable or
necessary in connection with any such reletting or proposed reletting, without
relieving Tenant of any liability under this Lease or otherwise affecting such
liability.
(d) Landlord shall have the right to recover the rental and all other
amounts payable by Tenant hereunder as they become due (unless and until
Landlord has terminated this Lease) and all other damages incurred by Landlord
as a result of an Event of Default.
(e) The remedies provided for in this Lease are in addition to any other
remedies available to Landlord at law or in equity by statute or otherwise.
22. TERMINATION UPON DEFAULT.
Upon termination of this Lease by Landlord pursuant to Article 21 hereof,
Landlord shall be entitled to recover from Tenant the aggregate of: (a) the
worth at the time of award of the unpaid rental which had been earned at the
time of termination; (b) the worth at the time of award of the amount by which
the unpaid rental which would have been earned after termination until the time
of award exceeds the then reasonable rental value of the Demised Premises
during such period; (c) the worth at the time of the award of the amount by
which the unpaid rental for the balance of the term of this Lease after the
time of award exceeds the reasonable rental value of the Demised Premises for
such period; and (d) any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom. The "worth at the time of award" of the amounts referred to
in clauses (a) and (b) above is computed from the date such rent was due or
would have been due, as the case may be, by allowing interest at the rate of
two percent (2%) in excess of the prime rate of National Bank of Detroit.
The "worth at the time of award" of the amount referred to in clause (c) above
is computed by discounting such amount at the discount rate of the Federal
Reserve Bank of Chicago at the time of award, plus one percent (1%).
23. LANDLORD'S RIGHT TO CURE DEFAULTS.
All covenants, terms and conditions to be performed by Tenant under any of
the terms of this Lease shall be at its sole cost and expense and without any
abatement of rental. If Tenant shall fail to pay any sum of money, other than
Basic Rental, required to be paid by it hereunder or shall fail to perform any
other act on its part to be performed hereunder and such failure shall continue
for thirty (30) days after notice thereof by Landlord, Landlord may, but shall
not be obligated so to do, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment or perform any such other act on
Tenant's part to be made or performed as in this Lease provided. All sums so
paid by Landlord and all necessary incidental costs shall be
1 statutory notice period
2 in accordance with law
14
<PAGE> 25
deemed additional rental hereunder and shall be payable to Landlord on demand,
and Landlord shall have (in addition to any other right or remedy of Landlord)
the same rights and remedies in the event of the nonpayment thereof by Tenant
as in the case of default by Tenant in the payment thereof by Tenant as in the
case of default by Tenant in the payment of Basic Rental.
24. ATTORNEYS' FEES.
If (1) uses the services of an attorney in connection with (i) any
breach or default in the performance of any of the provisions of this Lease, in
order to secure compliance with such provisions or recover damages therefor, or
to terminate this Lease or evict Tenant, or (ii) any action brought by Tenant
against Landlord, (2) shall reimburse (3) upon demand for any and all
attorneys' fees and expenses so incurred by (3).
25. SUBORDINATION.
25.1 This Lease is and shall be subject and subordinate, at all times, to
(a) the lien of any mortgage or mortgages which may now or hereafter affect the
Building, and to all advances made or hereafter to be made upon the security
thereof and to the interest thereon, and to any agreements at any time made
modifying, supplementing, extending or replacing any such mortgages, and
(b) any ground or underlying lease which may now or hereafter affect the
Building, including all amendments, renewals, modifications, consolidation,
replacements and extensions thereof. Notwithstanding the foregoing, at the
request of the holder of any of the aforesaid mortgage or mortgages or the
lessor under the aforesaid ground or underlying lease, this Lease may be made
prior and superior to such mortgage or mortgages and/or such ground or
underlying lease. SEE ATTACHED RIDER.
25.2 At the request of Landlord, Tenant shall execute and deliver such
further instruments as may be reasonably required to implement the
provisions of this Article 25. Tenant hereby irrevocably, during the term
of this Lease, constitutes and appoints Landlord as Tenant's agent and
attorney-in-fact to execute any such instruments if Tenant shall failure or
refuse to execute the same within ten (10) days after notice from Landlord.
25.3 If, as a condition of approving this Lease, Landlord's mortgagee
shall request reasonable modifications of this Lease, Tenant shall not
unreasonably withhold or delay its agreement to such modifications, provided
that such modifications do not increase the obligations or materially and
adversely affect the rights of Tenant under this Lease.
26. MERGER.
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation hereof, shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenancies, or may,
at the option of Landlord, operate as an assignment to it of any or all such
subleases or subtenancies.
27. NONLIABILITY OF LANDLORD.
27.1 In the event Landlord hereunder or any successor owner of the
Building shall sell or convey the Building, all liabilities and obligations on
the part of the original Landlord or such successor owner under this Lease
accruing thereafter shall terminate, and thereupon all such liabilities and
obligations shall be binding upon the new owner. Tenant shall attorn to such
new owner.(4)
1-4 See Page 15A
15
<PAGE> 26
1 either party
2 the losing party
3 the prevailing party
4 provided that such new owner assumes all of the obligations of Landlord
accruing thereafter (including, without limitation, obligations under this
Lease with respect to the Security Deposit), subject to the terms of this
Lease.
15A
<PAGE> 27
27.2 Landlord shall not be responsible or liable to Tenant for any loss or
damage that may be occasioned by or through the acts or omissions of persons
occupying adjoining areas or any part of the area adjacent to or connected with
the Demised Premises or any part of the Building or for any loss or damage
resulting to Tenant or his property from theft or a failure of the security
systems in the Building, or for any damage or loss of property within the
Demised Premises from any cause other than solely by reason of the gross
negligence or willful act of Landlord, and no such occurrence shall be deemed
to be an actual or constructive eviction from the Demised Premises or result in
an abatement of rental.
27.3 If Landlord shall fail to perform any covenant, term or condition of
this Lease upon Landlord's part to be performed, and, if as a consequence of
such default, Tenant shall recover a money judgment against Landlord, such
judgment shall be satisfied only against the right, title and interest of
Landlord in the building and out of rents or other income(1) from the building
receivable by Landlord, or out of the consideration received by Landlord from
the sale or other disposition of all or any part of Landlord's right, title and
interest in the Building, and neither Landlord nor any of the partners of
Landlord shall be liable for any deficiency.
28. ESTOPPEL CERTIFICATE.
At any time and from time to time upon ten (10) days' prior request by
Landlord, Tenant will promptly execute, acknowledge and deliver to Landlord, a
certificate indicating (a) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in full force
and effect, as modified, and stating the date and nature of each modification),
(b) the date, if any, to which rental and other sums payable hereunder have
been paid, (c) that no notice has been received by Tenant of any default which
has not been cured, except as to defaults specified in said certificate, and
(d) such other matters as may be reasonably requested by Landlord. Any such
certificate may be relied upon by any prospective purchaser, mortgagee or
beneficiary under any deed of trust of the Building or any part thereof.
29. NO LIGHT, AIR OR VIEW EASEMENT.
Any diminution or shutting off of light, air or view by any structure which
may be erected on lands adjacent to the Building shall in no way affect this
Lease or impose any liability on Landlord.
30. HOLDING OVER.
It is hereby agreed that in the event of Tenant holding over after the
termination of this Lease, thereafter the tenancy shall be from month to month
in the absence of a written agreement to the contrary, and Tenant shall pay to
Landlord a daily occupancy charge equal to (2)seven percent (7%) of the monthly
rental under Paragraph 5 hereof for the last lease year (plus all other charges
payable by Tenant under this Lease) for each day from the expiration or
termination of this Lease until the date the Demised Premises are delivered in
the condition required herein, and Landlord's right to damages for such illegal
occupancy shall survive.
31. ABANDONMENT.
If Tenant shall abandon or surrender the Demised Premises, or be
dispossessed by process of law or otherwise, any personal property belonging to
Tenant and left on the Demised Premises shall be deemed to be abandoned, or,
at the option of Landlord, may be removed by Landlord at Tenant's expense.
32. SECURITY DEPOSIT.
Upon the execution of this Lease, Tenant has deposited with Landlord the
"Deposit" in the amount set forth in Section 1(j) hereof. The Deposit shall be
held by Landlord as security for the faithful performance by Tenant. If
Tenant fails to pay rent or other charges due hereunder, or otherwise defaults
with respect to any provision of this Lease, Landlord may, but shall have no
obligation to, use, apply or retain all or any portion of the Deposit for the
payment of any rent or other charge in default or for the payment of any
other sum to which Landlord
1 and/or insurance proceeds
2 five percent (5%)
16
<PAGE> 28
may become obligated by reason of Tenant's default, or to compensate Landlord
for any loss or damage which Landlord may suffer thereby. If Landlord so uses
or applies all or any portion of the Deposit, Tenant shall within ten (10) days
after demand therefor deposit cash with Landlord in an amount sufficient to
restore the deposit to the full amount thereof. Landlord shall not be required
to keep the deposit separate from its general accounts. If Tenant performs all
of Tenant's obligations hereunder, the Deposit or so much thereof as has not
theretofore been applied by Landlord, shall be returned, without payment of
interest or other increment for its use, to Tenant (or, at Landlord's option,
to the last assignee, if any, of Tenant's interest hereunder) at the expiration
of the Term, and after Tenant has vacated the Demised Premises. No trust
relationship is created herein between Landlord and Tenant with respect to the
Deposit. SEE ATTACHED RIDER.
33. WAIVER.
33.1 The waiver by Landlord of any agreement, condition or provision
herein contained shall not be deemed to be a waiver of any subsequent breach of
the same or any other agreement, condition or provision herein contained, nor
shall any custom or practice which may grow up between the parties in the
administration of the terms hereof be construed to waive or to lessen the right
of Landlord to insist upon the performance by Tenant of the terms hereof in
strict accordance with said terms. The subsequent acceptance of rental
hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any agreement, condition or provision of this Lease, other
than the failure of Tenant to pay the particular rental so accepted, regardless
of Landlord's knowledge of such preceding breach at the time of acceptance of
such rental.
33.2 Landlord and Tenant hereby waive trial by jury in any action,
proceeding, or counterclaim brought by Landlord or Tenant against the other on
any matter whatsoever arising out of or in any way connected with this Lease,
the relationship of Landlord to Tenant, the use or occupancy of the Demised
Premises by Tenant or any person claiming through or under Tenant, any claim of
injury or damage, and any emergency or other statutory remedy; provided,
however, the foregoing waiver shall not apply to any action for personal injury
or property damage. If Landlord commences any summary or other proceeding for
nonpayment of rent or the recovery of possession of the Demised Premises,
Tenant shall not interpose any counterclaim of whatever nature or description
in any such proceeding, unless the failure to raise the same would constitute a
waiver thereof.
34. NOTICES.
All notices, consents, requests, demands, designations or other
communications which may or are required to be given by either party to the
other hereunder shall be in writing and shall be deemed to have been duly given
when personally delivered or deposited in the United States mail, certified or
registered, postage prepaid, and addressed as follows: to Tenant at the
address set forth in section 1(k) hereof, or to such other place as Tenant may
from time to time designate in a notice to Landlord; to Landlord at the
address set forth in Section 1(l) hereof, or to such other place as Landlord
may from time to time designate in a notice to Tenant; or, in the case of
Tenant, delivered to Tenant at the Demised Premises. In the event a Guarantor
is listed in Section 1(m) hereof and such Guarantor executes this Lease,
Landlord shall forward copies of all notice of default hereunder to the
Guarantor at the address set forth in Section 1(n) hereof. Tenant hereby
appoints as its agent to receive the service of all dispossessory or distraint
proceedings and notices thereunder the person in charge of or occupying the
Demised Premises at the time, and, if no person shall be in charge of or
occupying the Demised Premises at the time, then such service may be made by
attaching the same on the main entrance of the Demised Premises. ALL NOTICES
HEREUNDER SHALL BE DEEMED EFFECTIVE UPON RECEIPT OR UPON REFUSAL TO ACCEPT
DELIVERY.
17
<PAGE> 29
36. COMPLETE AGREEMENT.
There are no oral agreements between Landlord and Tenant affecting this
Lease, and this Lease supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between
Landlord and Tenant or displayed by Landlord to Tenant with respect to the
subject matter of this Lease or the Building. There are no representations
between Landlord and Tenant other than those contained in this Lease and all
reliance with respect to any representations is solely upon such
representations.
18
<PAGE> 30
37. CORPORATE AUTHORITY.
If Tenant signs as a corporation, each of the persons executing this Lease
on behalf of Tenant does hereby covenant and warrant that Tenant is a fully
authorized and existing corporation, that Tenant has and is qualified to do
business in Michigan, that the corporation has full right and authority to
enter into this Lease, and that each and all of the persons signing on behalf
of the corporation are authorized to do so.
38. INABILITY TO PERFORM.
If, by reason of the occurrence of unavoidable delays due to acts of God,
governmental restrictions, strikes, labor disturbances, shortages of materials
or supplies or for any other cause or event beyond Landlord's reasonable
control, Landlord is unable to furnish or is delayed in furnishing any utility
or service required to be furnished by Landlord under the provisions of Article
8 hereof or any other provisions of this Lease or any collateral instrument, or
is unable to perform or make or is delayed in performing or making any
installations, decorations, repairs, alterations, additions, or improvements,
whether required to be performed or made under this Lease or under any
collateral instrument, or is unable to fulfill or is delayed in fulfilling any
of Landlord's other obligations under this Lease or any collateral instrument,
no such inability or delay shall constitute an actual or constructive eviction
in whole or in part, or entitle Tenant to any abatement or diminution of rental
or other charges due hereunder or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Landlord or its agents by reason
of inconvenience or annoyance to Tenant, or injury to or interruption of
Tenant's business, or otherwise, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN
THIS LEASE.
39. COVENANT OF QUIET ENJOYMENT.
Upon Tenant paying the rental and other charges due hereunder and
performing all of Tenant's obligations under this Lease, Tenant may peacefully
and quietly enjoy the Demised Premises during the term of this lease;
subject, however, to the provisions of this Lease and to any mortgages or
ground or underlying leases referred to in Article 25 hereof.
40. MISCELLANEOUS.
40.1 The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. If there be more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several.
40.2 Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both Landlord
and Tenant.
40.3 The agreements, conditions and provisions herein contained shall,
subject to the provisions as to assignment, set forth in Article 17 hereof,
apply to and bind the heirs, executors, administrators, successors and assigns
of the parties hereto.
40.4 Tenant shall not without the consent of Landlord, use the name of the
Building for any purpose other than as the address of the business to be
conducted by Tenant in the Demised Premises. Landlord reserves the right to
select the name of the Building and to make such changes of name as it deems
appropriate from time to time.
40.5 If any provisions of this Lease shall be determined to be illegal or
unenforceable, such determination shall not affect any other provisions of
this Lease and all such other provisions shall remain in full force and
effect.
40.6 This Lease shall be governed by and construed pursuant to the laws of
the State of Michigan.
40.7 Upon Landlord's written request, Tenant shall promptly furnish
Landlord, from time to time, but not more frequently than twice a year,
financial statements reflecting Tenant's current financial condition.
19
<PAGE> 31
SEE ATTACHED RIDER.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date set forth in Section 1(a).
NORTHWESTERN CORPORATE CENTER
ASSOCIATES LIMITED PARTNERSHIP,
a Michigan limited partnership
By: Northwestern Corporate Center,Inc.,
a Michigan corporation, Its General
Partner
By: Mike Kojaian
-----------------------------
Mike Kojaian, President
"LANDLORD"
MCA FINANCIAL CORP.
By: Keith D Pietila
-----------------------------
Its: EVP
-----------------------------
"TENANT"
20
<PAGE> 32
RIDER TO LEASE BETWEEN NORTHWESTERN CORPORATE CENTER ASSOCIATES LIMITED
PARTNERSHIP, AS LANDLORD, AND MCA FINANCIAL CORP., AS TENANT, FOR PREMISES IN
NORTHWESTERN CORPORATE CENTER, SOUTHFIELD, MICHIGAN.
************************************************************************
RIDER TO SECTION 1(d)
The Demised Premises shall consist of seventy thousand six hundred
thirty-six (70,636) rentable square feet of office premises, as follows:
First Floor - 11,488 square feet
Fifth Floor - 19,716 square feet
Sixth Floor - 19,716 square feet
Seventh Floor - 19,716 square feet
(hereinafter referred to as the "Office Premises") and ten thousand (10,000)
square feet in the Basement of the Building (hereinafter referred to as the
"Basement Premises").
RIDER TO SECTION 1(g)
The Basic Rental for the Demised Premises shall be as follows:
<TABLE>
<CAPTION>
Annual Annual
Basic Rental Basic Rental Total Annual Total Monthly
Period Office Premises Basement Premises Basic Rental Basic Rental
- ------ --------------- ----------------- ------------ --------------
<S> <C> <C> <C> <C>
Years 1-3 $1,236,130.00 $100,000.00 $1,336,130.00 $111,344.17
Years 4-6 $1,306,766.00 $110,000.00 $1,416,766.00 $118,063.83
Years 7-10 $1,377,402.00 $120,000.00 $1,497,402.00 $124,783.50
</TABLE>
RIDER TO SECTION 2.3
(a) Notwithstanding anything herein contained to the contrary,
designated parking spaces will be made available for visitors of the Building
adjacent to the Building.
(b) In addition to Tenant's nonexclusive parking rights, Landlord
shall designate ten (10) parking spaces for the exclusive use of Tenant in the
location shown on Exhibit B-1 hereto. Landlord shall not be responsible for
policing Tenant's right to utilize such exclusive parking spaces, provided
Landlord shall use reasonable efforts to make such parking spaces available to
Tenant. Landlord shall have no liability or responsibility to Tenant if such
spaces are not available to Tenant.
RIDER TO SECTION 3.1
(a) Notwithstanding anything herein contained to the contrary,
Tenant shall have the right to cause the Demised Premises to be delivered to
Tenant in three (3) increments, the first on March 1, 1998, the second on June
1, 1998, and the final increment on August 1, 1998. Each such increment shall
consist of one of the Fifth, Sixth or Seventh Floor together with such
reasonable portion of the Demised Premises located on the First Floor and that
portion of the Basement Premises designated by Tenant. Tenant shall exercise
such right by written notice to Landlord on or before November 1, 1997, and
such notice shall designate the portion of the Demised Premises to be so
delivered by Landlord to Tenant on each such date. If Tenant shall exercise
such right, Landlord shall deliver the Demised Premises as so designated by
Tenant and, notwithstanding anything herein contained to the contrary, Tenant
shall only be required to pay the Basic Rental and other rents and charges
hereunder with respect to the portion of the Demised Premises so delivered to
Tenant.
(b) Provided Tenant is not in default at the time of the exercise
of such right or at the commencement of such period, Tenant will have the right
to extend the term of this Lease for one (1) additional period of ten (10)
years upon all of the terms and conditions herein stated. Tenant will exercise
such right, if at all, by written notice to Landlord not less than twelve (12)
<PAGE> 33
months prior to the expiration of the original term. If Tenant will exercise
its right to so extend the term for such period, the Basic Rental for such
period will be as set forth in (c) below.
(c) (i) Within ten (10) days after the exercise by Tenant of
such right to extend the term of this Lease, Landlord will submit to Tenant
Landlord's determination of the Basic Rental for the Demised Premises for such
period, which Basic Rental will be the prevailing market rent for the Demised
Premises, but not less than the Basic Rental paid during the previous year. If
Tenant does not notify Landlord of its acceptance of such Basic Rental as so
determined by Landlord within ten (10) days after receipt thereof, then the
parties will proceed as provided in (ii) below.
(ii) Within ten (10) days after said ten (10) day period,
Landlord and Tenant will each simultaneously submit to the other in a sealed
envelope its suggested annual Basic Rental for such period, which Basic Rental
will be the prevailing market rent for the Demised Premises, but not less than
the Basic Rental paid during the previous year. If the higher of such
suggested Basic Rentals is not more than one hundred five percent (105%) of the
lower of such suggested rentals, then the average of the two (2) suggested
Basic Rentals will be the Basic Rental for such period. Otherwise, within five
(5) days, the determination of the Basic Rental will be made in accordance with
Paragraph (iii) below.
(iii) Within ten (10) days thereafter, Landlord and Tenant
will mutually select and M.A.I. appraiser with experience in real estate
activities, including at least five (5) years' experience in appraising
comparable premises in the Detroit metropolitan area. If the parties cannot
agree on such an appraiser, then within ten (10) days thereafter, each will
select an independent M.A.I. appraiser meeting the aforementioned criteria and
within seven (7) days thereafter, the two appointed appraisers will select a
third appraiser meeting the aforementioned criteria and the third appraiser
will determine the Basic Rental for such period in accordance with (iv) below.
If either Landlord or Tenant fails to make such appointment within said ten
(10) day period, the other will make such appointment on its behalf.
(iv) Once the appraiser has been selected as provided in
(iii) above, each of Landlord and Tenant will submit to such appraiser its
suggested Basic Rental figure as submitted to the other party pursuant to (ii)
above. As soon thereafter as practical, the appraiser will select one of the
two suggested Basic Rentals submitted by Landlord and Tenant that is closer to
the one determined by the appraiser. The Basic Rental so selected by the
appraiser will be binding on Landlord and Tenant. Landlord and Tenant will
equally share the cost of such appraisal.
RIDER TO SECTION 4
Notwithstanding anything contained in Section 4 of the Lease to the
contrary:
(i) Based upon the information supplied by Tenant to Landlord
pursuant to Section 4(b) hereof, Landlord shall prepare plans and
specifications for the renovations to the Office Premises in accordance with
Landlord's understanding of Tenant's needs. Landlord shall submit such plans
and specifications to Tenant for Tenant's approval, which approval shall not be
unreasonably withheld. If Tenant fails to submit Tenant's comments to such
plans and specifications within ten (10) days after receipt thereof, Tenant
shall be deemed to have approved such plans and specifications. Landlord shall
pay all reasonable architectural and design services (including space planning)
relating to the preparation of such plans and specifications.
(ii) Attached hereto as Exhibit "C" is a unit price list relating
to substantially all of the improvements to the Demised Premises. Such unit
prices shall be utilized in determining the cost of completing the renovations
to the Office Premises. With respect to substantial items for which no unit
price is set forth on Exhibit "C," Landlord shall obtain three (3) competitive
bids, to the extent available, for such items. Landlord shall consult with
Tenant with respect to the awarding of contracts, provided that Landlord shall
not be required to award any contracts to contractors who are not reasonably
acceptable to Landlord.
(iii) Landlord shall complete the Office Premises in accordance with
the approved plans and specifications.
<PAGE> 34
(iv) (A) Landlord shall pay the cost of completing the Office
Premises up to a cost of One Million Four Hundred Twelve Thousand Seven Hundred
Twenty and 00/100 Dollars ($1,412,720.00) ($20.00 x 70,636, the area of the
Office Premises) (hereinafter referred to as the "Tenant Allowance"). If such
completion shall cost in excess of the Tenant Allowance, Tenant shall pay such
costs in accordance with the provisions of Section 4(d) hereof. If the cost of
the renovations to the Office Premises are less than the Tenant Allowance,
Tenant shall be permitted to apply up to One Hundred Forty-One Thousand Two
Hundred Seventy-Two and 00/100 Dollars ($141,272.00) against the cost of
installation of signage, cabling, sprinklering or any other improvements to the
Office Premises which would otherwise be required to be paid for by Tenant.
(B) Notwithstanding anything herein contained to the
contrary, Landlord shall perform the following work in or servicing the Demised
Premises, at Landlord's sole cost and expense, and without charge therefor
against the Tenant Allowance:
(1) Men and Women restrooms.
(2) Drinking fountains in common corridors.
(3) Electrical telephone closets.
(4) Building stairways.
(5) Mechanical equipment rooms.
(6) Sheetrock core walls, perimeter and interior
columns, and exterior walls above and below
windows, taped, spackled and ready for
painting.
(7) One heat pump per 2,000 square feet
(distribution from said pump will be charged
against the Tenant Allowance).
(8) Sprinkler protection consisting of mains and
risers installed according to Building Code
(but not the distribution within the
Premises).
(9) Fire protection alarm and communication
systems for each building (not to include
horns, lights, alarms or speakers within the
Premises) as required by code.
(10) Life safety and support systems for the
Development will be installed per code to
include an emergency building systems
generator for 24700 Northwestern Highway.
(11) Landlord will deliver 3.5 watts per square
foot for lighting and equipment. Additional
power is available to be brought on-site if
required by Tenant as part of the Tenant
improvements.
(12) All floor leveling necessary to correct slab
defects.
(Building standard window treatments (horizontal
blinds) are not part of building shell, but shall be
part of the Tenant Allowance.)
(v) The Basement Premises shall be completed by Landlord, at
Landlord's sole cost and expense (which expenses shall not be charged against
the Tenant Allowance), and shall include only a cement floor, metal deck
ceiling, demising walls, one entry door and basic electric service and
lighting.
(vi) Landlord warrants to Tenant that the construction performed by
or on behalf of Landlord pursuant to this Section 4 shall be materially free
from defects in materials and workmanship for a period of one (1) year after
the date of delivery of the Demised Premises to Tenant, subject only to wear
and tear, damage by the elements, casualty and damage caused by the negligence
or intentional acts or omissions of Tenant, its agents, employees and invitees.
If defects in materials and workmanship warranted hereunder shall be disclosed
in writing by Tenant to Landlord prior to the expiration of such one (1) y ear
period, Landlord shall promptly repair, replace or correct the same, at its
sole cost and expense.
(vii) Landlord further warrants to Tenant that the retro-fitting
which Landlord is undertaking to the Development shall be done in such a manner
as to render the Building a first class building comparable to the building
located at 28333 Telegraph Road, Southfield, Michigan, and Landlord shall
maintain the Building as such a first class building throughout the term of
this Lease and any extensions hereof.
3
<PAGE> 35
(viii) At or prior to delivering the Demised Premises to Tenant,
Landlord shall deliver to Tenant a written certificate of its abatement
contractor that any hazardous materials and contamination in the Building has
been abated in accordance with applicable law and governmental regulations or a
certificate from an appropriate governmental authority to such effect.
(ix) Landlord shall perform the following renovation work in and to
the Development, at Landlord's sole cost and expense, prior to the Commencement
Date:
(A) Install new roofs.
(B) Powerwash and recaulk building exteriors.
(C) Replace all existing windows with dual pane insulated
glass.
(D) Completely refurbish or replace elevators.
(E) Repave the parking lots.
(F) Replace and upgrade all parking lot lighting to meet
applicable building codes.
(G) Replace and update exterior landscaping.
Landlord shall consult with Tenant with respect to the retro-fitting of the
Common Areas of the Building, including the use of Tenant's corporate colors
and identity, but Tenant shall not have the right to approve the same.
RIDER TO SECTION 4(e)
Landlord shall promptly, but in no event later than sixty (60) days
after the delivery of possession of the Office Premises to Tenant, complete the
incomplete items and minor details.
RIDER TO SECTION 5.2(c)
Notwithstanding anything herein contained to the contrary,
"Controllable Expenses" shall not increase by more than six percent (6%) per
annum on a cumulative basis during the term of this Lease (not to exceed one
hundred six percent (106%) for 1999, one hundred twelve percent (112%) for
2000, one hundred eighteen percent (118%) for 2001, etc.). For purposes
hereof, Controllable Expenses shall be all Expenses other than utilities,
insurance, Taxes and costs of complying with governmental laws and regulations.
RIDER TO SECTION 5.3(b)
For a period of ninety (90) days after the end of each respective
calendar year to which such records relate, Tenant shall have the right, upon
thirty (30) days' prior written notice to Landlord, to inspect Landlord's
records relating to Expenses and Taxes. Such inspection shall be conducted at
Landlord's offices during normal business hours, at Tenant's expense.
RIDER TO SECTION 5.6
Notwithstanding anything herein contained to the contrary, Tenant
shall not be required to pay such an administrative late charge or interest if
it pays the amount due within five (5) days of the due date thereof on up to
two (2) occasions in any calendar year.
RIDER TO SECTION 7.1
So long as Tenant is not in default under this Lease, Landlord shall
not lease any premises on the First Floor of the Building to any tenant whose
principal business is the making of mortgage loans.
RIDER TO SECTION 8.3
(i) Notwithstanding the provisions of Section 8.3 hereof, in the
event any utilities required to be provided by Landlord pursuant to Section 8.3
hereof are not provided (subject to the provisions of Section 38 hereof) and
such interruption of utilities has an adverse effect on Tenant's ability to
operate in the Demised Premises as a result thereof for in excess of three (3)
consecutive business days, then the Basic Rental and all other rental and
charges hereunder shall
4
<PAGE> 36
abate from and after such three (3) consecutive business day period until such
utilities are restored. Except for fire and other casualty, in the event such
utilities are not being provided for in excess of forty-five (45) consecutive
days, then Tenant shall have the right to terminate this Lease upon written
notice to Landlord, which notice shall be given, if at all, after the
expiration of such forty-five (45) day period and until such utilities are
restored or Tenant again commences operations in the Demised Premises. Such
abatement and right of termination shall be Tenant's sole remedy for Landlord's
failure to provide such utilities.
(ii) The HVAC system for the Building shall be designed and will
maintain the following conditions in accordance with ASHRAE 90-80 and the
Michigan Energy Code:
Summer: 92 degrees d.b. at 75 degrees w.p. outdoor
temperature
75 degrees d.b. at 50% relative humidity indoors
Winter: 0 degrees d.b. outdoor temperature
75 degrees d.b. indoor temperature
based upon the following criteria:
Ventilation: minimum of ten (10) CFM per person
Watts: maximum 3.5 watts per square foot
(iii) Anything herein to the contrary notwithstanding, Tenant shall
be permitted access to the Building and the Demised Premises twenty-four (24)
hours a day, seven (7) days a week. The cost thereof shall be included in
Expenses.
(iv) During after hour usage, Landlord shall provide for random
checks of the Building by security personnel engaged by Landlord.
RIDER TO SECTION 11.1
(a) If Landlord elects to make such repairs and has not completed
the same within two hundred forty (240) days of the occurrence of such
casualty, Tenant shall have the right to terminate this Lease by written notice
to Landlord at any time after the expiration of such two hundred forty (240)
day period and until the completion of such restoration.
(b) If this Lease is terminated pursuant to this Article 11,
Landlord shall refund to Tenant any Basic Rental and additional rental relating
to periods subsequent to such termination.
RIDER TO SECTION 13
(a) Notwithstanding anything herein contained to the contrary,
Tenant shall be entitled to obtain a separate award equal or attributable to
the cost of removal or reinstallation of Tenant's trade fixtures, loss of
business, moving and relocation costs and the unamortized cost of any
improvements made to the Demised Premises, at Tenant's expense, such
amortization to be over the term of this Lease on a straight line basis.
(b) In the event this Lease is terminated pursuant to this Section
13, Landlord shall refund to Tenant any Basic Rental and additional rental
relating to periods subsequent to such termination.
RIDER TO SECTION 15.1
Landlord hereby waives all claims against Tenant for damages to any
person or injury to or death of any person in, upon or about the Common Areas
of the Development arising at any time and from any cause whatsoever and
Landlord shall hold Tenant harmless from any damage to any property or injury
to or death of any person arising in, on or about the Common Areas. The
foregoing indemnity obligation of Landlord shall include reasonable attorney's
fees, investigation costs and/or other costs and expenses incurred by Tenant
from the first notice that any claim or demand is to be made or may be made.
This provision of this Rider shall survive the termination of this Lease with
respect to any damage, injury or death occurring prior to such termination.
5
<PAGE> 37
RIDER TO SECTION 16
Landlord represents and warrants to Tenant that as of the Commencement
Date, with respect to any matters for which Landlord has received written
notice from a governmental authority, the Building, Demised Premises and Common
Areas shall comply with such notices.
RIDER TO SECTION 17.1
Notwithstanding anything contained in Section 17.1 hereof to the
contrary, Landlord agrees that it will not unreasonably withhold its consent to
any proposed assignment of this Lease or subletting of the Demised Premises or
any part thereof by Tenant; provided that Tenant shall not sublet any portion
of the Demised Premises or assign this Lease for any medical or dental use, or
to any governmental or quasi- governmental agency. In determining
reasonableness, Landlord may take into consideration all relevant factors
surrounding the proposed assignment or subletting, including, without
limitation: (i) the business reputation of the proposed assignee or subtenant
and its officers, directors and stockholders, (ii) the nature of the business
of the proposed assignee or subtenant and its effect on the other tenants of
the Building, (iii) the financial condition of the proposed assignee or
subtenant, and (iv) restrictions, if any, contained in leases or other
agreements affecting the Building.
RIDER TO SECTION 19.1
Notwithstanding the provisions of Section 19.1 hereof, in the event
Landlord's exercise of its right pursuant to this Section 19.1 shall have a
material adverse effect on Tenant's ability to operate in the Demised Premises
for in excess of three (3) consecutive business days, then the Basic Rental and
all other rental and charges hereunder shall abate from and after such three
(3) consecutive business day period until such time as the interference is
removed. Such abatement of rental shall be Tenant's sole remedy for Landlord's
interference.
RIDER TO SECTION 25.1
Prior to the Commencement Date, Landlord shall obtain a nondisturbance
agreement from the then existing mortgagee of the Building for Tenant's
benefit. As a condition precedent to the subordination of this Lease to any
future mortgage covering the Building, Landlord shall obtain for Tenant's
benefit a nondisturbance agreement. Each such nondisturbance agreement shall
be subject to Tenant's approval, which approval shall not be unreasonably
withheld.
RIDER TO SECTION 32
Provided Tenant has not been in default after notice and the
expiration of any applicable cure periods during the term of this Lease prior
thereto and Tenant attains a net worth computed in accordance with generally
accepted accounting principles of Fifty Million Dollars ($50,000,000), then,
within thirty (30) days of Landlord's receipt of Tenant's certified financial
statements indicating such a net worth, Landlord shall refund the Deposit to
Tenant.
41. SIGNS.
(a) Landlord, at Landlord's sole cost and expense, shall provide
Tenant signage on the Building directory located on the first floor of the
Building.
(b) Tenant shall, at Tenant's sole cost and expense, have the
right to install appropriate building signage at the entrance to the Demised
Premises, provided that such sign(s) shall be subject to Landlord's approval.
(c) Tenant, at Tenant's sole cost and expense, shall have the
right to install an exterior sign identifying Tenant as a major tenant of the
Building to be affixed to the exterior of the Building at a location and
elevation acceptable to Tenant and approved by Landlord. The sign design and
location shall be approved by both Landlord and Tenant and shall be subject to
the approval of all governmental entities having jurisdiction.
6
<PAGE> 38
42. EXPANSION RIGHTS.
42.1 (a) Tenant shall have the right to lease at least nine
thousand five hundred (9,500) contiguous rentable square feet but not more than
nineteen thousand (19,000) rentable square feet of which at least nine thousand
five hundred (9,500) rentable square feet shall be contiguous (as initially
determined by Tenant, subject to availability with respect to any premises in
excess of nine thousand five hundred (9,500) rentable square feet) of the
Building (as determined by Landlord) between March 1, 2003, and February 28,
2004 (as determined by Landlord). Tenant shall exercise such right by written
notice to Landlord prior to February 28, 2002. Such notice shall contain the
square foot area Tenant wishes to lease.
(b) Within one hundred eighty (180) days after receipt of
Tenant's notice, Landlord shall notify Tenant of the premises to be leased
pursuant to this Section 42.1 and the approximate date of delivery thereof.
(c) Landlord shall deliver such premises to Tenant in its
then "as is" condition; provided, however, that if such premises have not
theretofore been improved for another tenant, Landlord shall provide Tenant the
sum of Twenty and 00/100 Dollars ($20.00) per rentable square foot of such
premises multiplied by a fraction, the numerator of which is the number of
calendar months between such delivery and February 2008, and the denominator of
which is one hundred twenty (120). Such allowance shall be used solely for
renovations to such premises, which renovations shall be performed by Landlord
in accordance with plans and specifications prepared by Landlord and approved
by Tenant in accordance with Paragraph (i) of the Rider to Section 4 hereof.
Tenant shall pay all such costs of such renovations over and above such
allowance, if any.
(d) Such premises shall be deemed a part of the Demised
Premises for all purposes of this Lease upon the delivery thereof to Tenant and
the Basic Rental therefor shall be at the square foot rental for Office
Premises set forth in Section 1(g) hereof commencing upon such delivery.
Tenant's Share shall be revised to reflect the addition of such premises to the
Demised Premises. Landlord and Tenant shall enter into an amendment to this
Lease to affect the foregoing.
(e) Landlord shall have no liability or responsibility
for delays in delivering such premises as a result of any occupant's failure to
vacate such premises at the end of its lease, but Landlord shall immediately
institute proceedings to obtain possession of such premises and this Lease,
with respect to such premises, shall not commence until such premises are
vacated, renovated and delivered to Tenant as herein provided.
(f) Notwithstanding anything herein contained to the
contrary, if Tenant shall lease any additional premises pursuant to the terms
of Sections 42.2 and/or 42.3 hereof prior to the delivery of such premises
pursuant to the terms of this Section 42.1, the square foot area of such
premises leased pursuant to Sections 42.2 and/or 42.3 hereof shall be credited
against the premises Tenant is entitled to lease pursuant to this Section 42.1.
42.2 (a) So long as any premises is available on the Fourth
Floor of the Building, Tenant shall have the right to lease the same upon the
terms and conditions set forth in this Section 42.2. Premises shall be deemed
available hereunder until the same has been leased to another tenant and shall
not be deemed available during the term of such tenant's lease (as the same may
be extended). From time to time, upon Tenant's written request, Landlord shall
advise Tenant of what premises on the Fourth Floor are then available.
(b) Tenant shall exercise its right to so lease any such
available premises by written notice to Landlord, which notice shall designate
the premises Tenant wishes to so lease. Such premises shall be of reasonable
configuration, with reasonable access to elevators, stairways and restrooms and
shall be of such a configuration as will leave the balance of such Floor in a
reasonable configuration for leasing by others.
(c) As soon as such determination is made, Landlord shall
deliver such premises to Tenant and Tenant shall accept the same in its then
"as is" condition; provided, however, that if such premises have not
theretofore been improved for another tenant, Landlord shall provide Tenant the
sum of Twenty and 00/100 Dollars ($20.00) per rentable square foot of
7
<PAGE> 39
such premises multiplied by a fraction, the numerator of which is the number of
calendar months between such delivery and February 2008, and the denominator of
which is one hundred twenty (120). Such allowance shall be used solely for
renovations to such premises, which renovations shall be performed by Landlord
in accordance with plans and specifications prepared by Landlord and approved
by Tenant in accordance with Paragraph (i) of the Rider to Section 4 hereof.
Tenant shall pay all such costs of such renovations over and above such
allowance, if any.
(d) Such premises shall be deemed a part of the Demised
Premises for all purposes of this Lease upon the delivery thereof to Tenant and
the Basic Rental therefor shall be at the square foot rental for Office
Premises set forth in Section 1(g) hereof commencing upon such delivery.
Tenant's Share shall be revised to reflect the addition of such premises to the
Demised Premises. Landlord and Tenant shall enter into an amendment to this
Lease to affect the foregoing.
(e) Notwithstanding anything herein contained to the
contrary, Tenant shall not have the right to lease any portion of such premises
pursuant to this Section 42.2 or Section 42.3 hereof subsequent to March 1,
2005, unless Tenant then has the right to exercise and exercises its right to
extend the term of this Lease for the ten (10) year period pursuant to
Paragraph (b) of the Rider to Section 3.1 hereof.
42.3 (a) If Landlord receives an offer to lease any premises
on the Second or Fourth Floor of the Building (other than for the leasing
thereof to the then current tenant thereof), which Landlord intends to accept,
prior to leasing the same pursuant to such offer, Landlord shall notify Tenant
in writing. Such notice shall contain the terms and provisions of such offer
and Tenant shall have five (5) days from the receipt of Landlord's notice to
Tenant to advise Landlord in writing if Tenant wishes to lease such premises
upon the terms and provisions set forth in Landlord's notice (including the
Basic Rental therefor and the construction obligations relating thereto).
Failure by Tenant to notify Landlord within the times specified shall
constitute Tenant's waiver of its right to lease such premises pursuant to such
notice. If Tenant exercises its right to so lease such premises, Tenant's
obligation to commence payment of Basic Rental (at the rate set forth in
Landlord's notice) shall commence on the date possession is delivered to Tenant
by Landlord and shall continue until the expiration or sooner termination of
this Lease and Tenant's Share shall be increased to reflect such additional
premises effective upon the delivery of possession thereof to Tenant. Upon the
delivery of such notice provided for in the first sentence of this Section
42.3, Tenant's right to lease such premises in accordance with the provisions
of Section 42.2 hereof shall terminate and be of no further force or effect;
provided, however, that if Landlord shall not have consummated a lease with
such offeree upon the terms and conditions set forth in Landlord's notice to
Tenant within one hundred eighty (180) days after such notice, such premises
shall be deemed available premises and Section 42.2 hereof and this Section
42.3 shall again be applicable thereto.
(b) If Tenant shall exercise its right of first refusal
pursuant to this Section 42.3, Landlord and Tenant shall execute and deliver an
amendment to this Lease incorporating such terms and conditions.
(c) Landlord shall have no liability or responsibility
for delays in delivering such premises as a result of any occupant's failure to
vacate such premises at the end of its lease but Landlord shall immediately
institute such proceedings to obtain such premises and Tenant's leasing thereof
shall not commence until such premises are vacant and delivered to Tenant.
MCA FINANCIAL CORP. NORTHWESTERN CORPORATE CENTER
ASSOCIATES LIMITED PARTNERSHIP,
a Michigan limited partnership
By Keith D. Pietila
------------------------- By: Northwestern Corporate Center, Inc.,
a Michigan corporation, Its General
Partner
Its EVP
----------------------- By: Mike Kojaian
---------------------------
"TENANT" Mike Kojaian, President
"LANDLORD"
8
<PAGE> 40
EXHIBIT A
LEGAL DESCRIPTION
Land situated in the City of Southfield, County of Oakland, State of Michigan,
described as follows:
PARCEL I: 24700 Northwestern Highway
Part of the Northwest 1/4 of the Northwest 1/4 of Section 26, Town 1 North,
Range 10 East, City of Southfield, Oakland County, Michigan, described as:
Beginning at a point on the North line of Section 26, said point being North 89
degrees 59 minutes 45 seconds East, 210.0 feet from the Northwest corner of
Section 26, Town 1 North, Range 10 East; thence South 0 degrees 06 minutes 35
seconds West, 467.52 feet; thence along the northerly line of Northwestern
Highway, South 45 degrees 49 minutes 35 seconds East, 135.0 feet; thence North
44 degrees 10 minutes 25 seconds East, 371.0 feet; thence North 45 degrees 49
minutes 35 seconds West, 32.68 feet; then North 0 degrees 00 minutes 15 seconds
West, 94.75 feet; thence South 89 degrees 59 minutes 45 seconds West, 125.00
feet; thence North 0 degrees 00 minutes 15 seconds West, 178.00 feet; thence
along the North line of Section 26, South 89 degrees 59 minutes 45 seconds
West, 206.0 feet to the point of beginning.
Together with the right to use in common with others all easements for parking,
ingress and egress, installation and maintenance of utilities and drainage
facilities and use of all other common facilities, all as set forth in the
certain instrument entitled "Declaration of Easements" dated June 25, 1968 and
recorded in Liber 5225, Page 777, Oakland County Records, as amended by
instrument dated December 7, 1968 and recorded December 23, 1968 in Liber 5297,
Page 465, Oakland County Records.
PARCEL II: 19675 West 10 Mile Road
Part of the Northwest 1/4 of the Northwest 1/4 of Section 26, Town 1 North,
Range 10 East, City of Southfield, Oakland County, Michigan, described as:
Beginning at a point on the South line of Ten Mile Road (120 feet wide), said
point being North 89 degrees 59 minutes 45 seconds East, 416.0 feet and South 0
degrees 00 minutes 15 seconds East, 60.0 feet from the Northwest corner of
Sectioon 26, Town 1 North, Range 10 East; thence South 0 degrees 00 minutes 15
seconds East, 118.00 feet; thence North 89 degrees 59 minutes 45 seconds East,
125.0 feet; thence South 0 degrees 00 minutes 15 seconds East, 94.75 feet;
thence South 45 degrees 49 minutes 35 seconds East, 252.66 feet; thence North
44 degrees 10 minutes 25 seconds East 72.0 feet; thence South 45 degrees 49
minutes 35 seconds East, 50.15 feet; thence 177.95 feet along the arc of a
curve concave to the west, said curve having a radius of 807.68 feet, a central
angle of 12 degrees 37 minutes 25 seconds and who chord bears North 14 degrees
12 minutes 57 seconds East, 177.59 feet; thence North 0 degrees 00 minutes 15
seconds West, 200.0 feet; thence along the South line of Ten Mile Road, South
89 degrees 59 minutes 45 seconds West, 435.98 feet to the point of beginning.
Together with the right to use in common with others all easements for parking
ingress and egress, installation and maintenance of utilities and drainage
facilities, and use of all other common facilities, all as set forth in that
certain instrument entitled "Declaration of Easements" dated June 25, 1968 and
recorded in Liber 5225, Page 777, Oakland County Records, as amended by
instrument dated December 7, 1968 and recorded December 25, 1968 in Liber 5297,
Page 465, Oakland County Records.
<PAGE> 41
PARCEL III: 24800 Northwestern Highway
Part of the Northwest 1/4 of Section 26, Town 1 North, Range 10 East, City of
Southfield, Oakland County, Michigan, described as: Beginning at a point on the
South line of Ten Mile Road which is South 89 degrees 59 minutes 45 seconds
West measured on the North line of Section 26, 1613.28 feet and South 0 degrees
00 minutes 15 seconds East, 60.00 feet from the North 1/4 corner of said
Section 26; thence South 89 degrees 59 minutes 45 seconds West along the South
line of Ten Mile Road, 100.00 feet to a point, thence South 0 degrees 00
minutes 15 seconds East, 200 feet to a point; thence North 89 degrees 59
minutes 45 seconds East, 100.00 feet to a point; thence North 0 degrees 00
minutes 15 seconds West, 200.00 feet to the place of beginning, except the
easterly 60 feet thereof.
Also
Part of the Northwest 1/4 of Section 26, Town 1 North, Range 10 East, City of
Southfield, Oakland County, Michigan, described as: Beginning at a point on
the northerly line of Northwestern Highway, said point being North 89 degrees
59 minutes 45 seconds East, 210.0 feet, and South 0 degrees 06 minutes 35
seconds West, 467.52 feet, and South 45 degrees 49 minutes 35 seconds East,
135.0 feet from the Northwest corner of Section 26, Town 1 North, Range 10
East; thence North 44 degrees 10 minutes 25 seconds East, 371.0 feet; thence
South 45 degrees 49 minutes 35 seconds East, 220.0 feet; thence North 44
degrees 10 minutes 25 seconds East, 72.0 feet; thence South 45 degrees 49
minutes 35 seconds East, 50.15 feet; thence 177.59 feet along the arc of a
curve concave to the West, said curve having a radius of 807.68 feet, a central
angle of 12 degrees 37 minutes 25 seconds and whose chord bears North 14
degrees 12 minutes 57 seconds East, 177.59 feet; thence North 89 degrees 59
minutes 45 seconds east, 193.81 feet; thence 572.94 feet along the westerly
line of Red River Drive (60 feet wide), said westerly line being an arc of a
curve concave to the West having a radius of 1000.00 feet, a central angle of
32 degrees 49 minutes 38 seconds and whose chord bears South 22 degrees 47
minutes 24 seconds West, 565.14 feet; thence North 45 degrees 45 minutes 20
seconds West, 196.21 feet; thence South 44 degrees 14 minutes 40 seconds West,
205.93 feet; thence along the northerly line of Northwestern Highway, North 45
degrees 49 minutes 35 seconds West 330.06 feet to the point of beginning.
Together with the right to use in common with others all easements for parking,
ingress and egress, installation and maintenance of utilities and drainage
facilities and use of all other common facilities, all as set forth in the
certain instrument entitled "Declaration of Easements" dated June 25, 1968 and
recorded in Liber 5225, Page 777, Oakland County Records, as amended by
instrument dated December 7, 1968 and recorded December 23, 1968 in Liber 5297,
Page 465, Oakland County Records.
<PAGE> 42
EXHIBIT "B"
FLOOR PLANS AND SITE PLAN
<PAGE> 43
EXHIBIT "B" (cont.)
FLOOR PLANS AND SITE PLAN
<PAGE> 44
EXHIBIT "B" (cont.)
FLOOR PLANS AND SITE PLAN
<PAGE> 45
EXHIBIT "B" (cont.)
FLOOR PLANS AND SITE PLAN
<PAGE> 46
EXHIBIT "B-1"
FLOOR PLANS AND SITE PLAN
<PAGE> 47
EXHIBIT "C"
UNIT COSTS
<TABLE>
<CAPTION>
DESCRIPTION QUANTITY
<S> <C> <C>
PARTITIONS
1. Drywall partitions to ceiling grid (8'-6") LF @ 40.00
2. Telephone backboard 4'x8' Lump Sum
3. Insulated drywall partitions to deck LF @ 66.00
4. Partition mullion enclosure EA @ 75.00
DEMISING/CORRIDOR PARTITIONS
1. Demising/corridor partition (15'-0") LF @ 67.00
SUITE ENTRANCE
1. Glass suite entrance EA @ 5000.00
DOORS, FRAMES AND HARDWARE
1. Interior oak doors, frame with hardware EA @ 700.00
(3'x8')
2. Office lockset EA @ 60.00
3. Surface mounted closer EA @ 175.00
4. Double oak door EA @ 1500.00
CARPENTRY
CABINETS
1. Upper/lower cabinet with countertop and 4" LF @ 300.00
backsplash
COUNTERS
1. Shelf and rod LF @ 35.00
FLOORCOVERING
1. Building standard carpet SY @ 15.25
2. Vinyl flooring SF @ 1.75
3. Vinyl Base (perimeter) LF @ 1.25
4. Floor Prep Lump Sum
WALLCOVERING
1. Paint (perimeter) SF @ .50c.
2. Stain doors EA @ 50.00
WINDOW TREATMENT
1. Blinds, exterior EA @ 20.00
CEILING
1. Acoustical tile (2x4) SF @ 1.50
TOILET ROOMS
1. Vanity, sink and cabinet with all related EA @ 2500.00
lines
2. Water closet with all related lines EA @ 2200.00
3. Mirror EA @ 110.00
</TABLE>
<PAGE> 48
<TABLE>
<CAPTION>
DESCRIPTION QUANTITY
<S> <C> <C>
KITCHEN/LOUNGE
1. Sink 25"x22" with all related lines EA @ 2400.00
2. Hot water heater with electrical EA @ 930.00
3. Garbage disposal with electric EA @ 480.00
FIRE PROTECTION
1. Building standard fire protection SF @ 1.20
HVAC
1. HVAC building standard SF @ 2.00
2. Add zone box with thermostat EA @ 1320.00
ELECTRICAL - LIGHTING
1. 2 x 4 fluorescent lights EA @ 150.00
2. Downlights - halo EA @ 175.00
3. Dimmer - 1,000 watt EA @ 185.00
ELECTRICAL OUTLETS
1. Duplex EA @ 75.00
2. Dedicated duplex EA @ 200.00
3. Telephone outlets EA @ 50.00
4. Switches EA @ 75.00
5. 3 way switches EA @ 100.00
6. Standard exit lights EA @ 225.00
7. Night lights EA @ 110.00
8. Emergency light EA @ 175.00
9. 200 amp with meter EA @ 3500.00
10. Fire alarm horns EA @ 300.00
11. Speaker Alarm EA @300.00
12. Floor mounted furniture
5 wire system locations
a) dedicated circuits EA @ 250.00
b) furniture whip hook-ups EA @ 50.00
MISCELLANEOUS
1. Window sill LF @16.00
2. Construction cleanup Lump Sum
3. Permit Lump Sum
</TABLE>
<PAGE> 49
EXHIBIT "D"
JANITORIAL SERVICES
DAILY SERVICES: (FIVE TIMES PER WEEK)
1. Empty waste baskets.
2. Empty and clean ash trays, including those in public areas.
3. Dust desk tops which are clear of working papers.
4. Sweep or vacuum traffic area - public and private.
5. Toilet rooms:
(a) Empty all waste receptacles.
(b) Sweep and wet mop floors.
(c) Clean and disinfect all fixtures and clean mirrors and shelves.
6. Clean and disinfect drinking fountains and water coolers.
7. Police parking areas for rubbish and trash.
WEEKLY SERVICES:
1. Damp mop floors, stairways, lobbies and corridors.
2. Sweep or vacuum entire floor area -- public and private.
MONTHLY SERVICES:
1. Strip, wax and polish floor in lobby area and isles.
2. Dust window blinds.
3. Wash all glass in office partitions.
4. Wash outside and inside building entry mats.
SEMI-ANNUAL SERVICES:
1. Power scrub tile areas and wax or apply floor treatment.
2. Wash windows.
SEASONAL SERVICES:
1. Snow removal from concrete walks as necessary.
2. Snow plowing of the parking lots as necessary.
3. Lawn cutting service of green areas as required.
<PAGE> 50
EXHIBIT "E"
RULES AND REGULATIONS
1. The Common Areas of the Building shall not be obstructed or used for any
purpose other than coming to and from the Demised Premises.
2. Landlord has the right to control access to the Building and refuse
admittance to any person or persons without satisfactory identification or a
pass issued by Tenant during hours determined by Landlord.
3. Landlord shall upon reasonable notice have the right to enter upon the
Demised Premises at reasonable hours for the purpose of inspecting the same.
4. Landlord shall upon reasonable notice have the right to enter the Demised
Premises at hours convenient to Tenant for the purpose of exhibiting the
same to prospective tenants within one hundred eighty (180) day period prior
to the expiration of the Lease.
5. No person shall disturb other occupants of the Building by making loud or
disturbing noises.
6. Soliciting, peddling and canvassing is prohibited in the Building and Tenant
shall cooperate to prevent the same. No vending machine shall be operated
in the Building by any tenant.
7. All deliveries and removal of furniture, equipment or other bulky items must
take place after notification to Landlord, during such hours and in such
manner as Landlord shall determine. Tenant shall be responsible for all
damage or injury resulting from the delivery or removal of all articles into
or out of the Building or the Demised Premises. No load shall be placed on
the floors or in elevators in excess of the limits which shall be
established by Landlord. Tenant cannot use the elevator for moving in or
out of the Building without specific arrangements with Landlord.
8. Tenant shall not use any equipment emitting noxious fumes unless they are
properly vented at Tenant's expense.
9. Nothing shall be attached to the interior or exterior of the Building
without the prior written consent of Landlord. However, Tenant shall have
the right to install and remove, within the Demised Premises (subject to the
terms of this Lease), all of Tenant's furniture and normal business
equipment. Building standard levelor-style venetian blinds shall be used in
windows designated by Landlord. No other window treatments or objects shall
be attached to, hung in or used in connection with any exterior of any door
or window or from outside the Building. No article shall be placed on any
window sill.
10. No sign or other representation shall be placed on the interior or exterior
of the Building without prior written consent of Landlord.
11. No hazardous articles shall be brought into or kept in the Building at any
time. No bicycles, vehicles or animals, except seeing eye and aide dogs,
of any kind shall be brought into or kept in or about the Building.
12. No marking, painting, drilling, boring, cutting, defacing of the walls,
floors, ceilings of the Building shall be permitted without the prior
written consent of Landlord. Plastic protective floor mats shall be
maintained over all carpeted areas under desks and chairs with casters.
13. The electrical system and lighting fixtures in the Building and the Demised
Premises shall not be altered or disturbed in any manner without the prior
written consent of Landlord. Any alterations or additions must be
performed by licensed personnel authorized by Landlord.
14. The toilets and other plumbing fixtures shall not be used for any other
purpose than those for which they are designed. No sweepings, rubbish or
other similar materials or substances shall be deposited therein.
<PAGE> 51
15. Smoking is prohibited in the elevator(s), hallways, corridors, stairs,
lobbies and other Common Areas of the Building.
16. Tenant shall not waste electricity, water or air conditioning and shall
cooperate fully with Landlord to assure the most effective and efficient
operation of the heating and/or air conditioning systems of the Building.
17. Tenant assumes full responsibility for protecting the Demised Premises from
theft, robbery and pilferage. Except during Tenant's normal business
hours, Tenant shall keep all doors to the Demised Premises locked and other
means of entry to the Demised Premises closed and secured.
18. All cleaning, repairing, janitorial, decorating, painting or other services
and work in and about the Demised Premises shall be done only by authorized
Building personnel.
19. Tenant or Tenant's employees shall not distribute literature, flyers,
handouts or pamphlets of any type in any of the Common Areas without the
prior written consent of Landlord.
20. Tenant shall not cook, otherwise prepare or sell, any food or beverages in
or from the Demised Premises. However, Tenant shall have the right to
prepare food for the exclusive use of Tenant's employees.
21. Tenant shall not permit the use of any apparatus for sound production or
transmission in such manner that the sound so transmitted or produced shall
be audible or vibrations shall be detectable beyond the Demised Premises.
22. Tenant shall keep all electrical and mechanical apparatus free of
vibration, noise and air waves which may be transmitted beyond the Demised
Premises.
23. No floor covering shall be affixed to any floor in the Demised Premises by
means of glue or other adhesive, unless the installation procedure is
approved by Landlord.
24. Tenant shall comply with all rules and regulations established by Landlord
pursuant to other applicable provisions of this Lease.
25. Landlord shall supply Tenant with two (2) keys for each outside door to the
Demised Premises. If Tenant requires any additional keys, Landlord shall
supply the same at Tenant's expense.
Landlord shall not be responsible for the violation of any of the foregoing
rules and regulations by other tenants of the Building and shall not be
obligated to enforce the same against other tenants. But Landlord shall
enforce and apply the rules and regulations in a non- discriminatory manner.
Landlord shall have the right to amend these rules and regulations from time to
time.
<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> 9-MOS
<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-START> FEB-01-1997
<PERIOD-END> OCT-31-1997
<CASH> 3,713
<SECURITIES> 0
<RECEIVABLES> 33,518
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 8,342
<DEPRECIATION> 2,455
<TOTAL-ASSETS> 236,775
<CURRENT-LIABILITIES> 0
<BONDS> 15,126
0
5,396
<COMMON> 5
<OTHER-SE> 7,062
<TOTAL-LIABILITY-AND-EQUITY> 236,775
<SALES> 0
<TOTAL-REVENUES> 58,499
<CGS> 0
<TOTAL-COSTS> 55,605
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 10,586
<INCOME-PRETAX> 2,894
<INCOME-TAX> 800
<INCOME-CONTINUING> 2,094
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,094
<EPS-PRIMARY> 3.39
<EPS-DILUTED> 3.39
</TABLE>
