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EXHIBIT 10.6(b)
March 16, 1998
BNC Mortgage, Inc.
1063 McGaw Avenue
Irvine, California 92614
Telephone: 714-260-6000
Facsimile: 714-475-5027
Attention: Kelly W. Monahan
This Commitment Letter confirms our agreement between BNC Mortgage Inc.
("Customer") and DLJ Mortgage Capital, Inc. ("DLJ") pursuant to which DLJ shall
provide committed financing collateralized by eligible Mortgage Loans in
accordance with the terms and conditions hereof and as set forth in the Whole
Loan Funding Facility, the Promissory Note (the "Note") and the Pledge
Agreement, each dated March 16, 1998 and the Tri-Party Custody Agreement(s)
dated September 26, 1995 (collectively, the "Agreements"). The Agreements,
together with the Mortgage Loan Purchase Agreement to be entered into between
Customer and DLJ, dated as of March 16, 1998 (the "Mortgage Loan Purchase
Agreement"), and this Commitment Letter constitute the entire agreement between
the parties with respect to DLJ's financing of Customer's Mortgage Loans.
Capitalized terms not defined herein shall have the meaning ascribed to them in
the Agreements.
No amounts may be borrowed from DLJ in excess of that committed herein
except in DLJ's sole discretion. Unless otherwise agreed in writing, DLJ will
not finance second-lien mortgage loans.
I. ELIGIBLE MORTGAGE LOANS: For purposes of this Commitment Letter,
"Eligible Mortgage Loans" shall be defined as:
A. First-lien residential Mortgage Loans originated or acquired by
Customer in its normal course of business within the preceding 30 days of the
related Advance which are intended to be sold to DLJ and have the
characteristics specified in Customer's underwriting guide, as such guide
approved by DLJ ("Program Loans"); and
B. First-lien residential Mortgage Loans originated or acquired by
Customer in its normal course of business within the preceding 30 days of the
related Advance that have been determined by DLJ in its sole discretion not to
have the characteristics specified in Customer's underwriting guide and which do
not meet the requirements of the Mortgage Loan Purchase Agreement ("Non-Program
Loans").
II. DLJ'S COMMITMENT: Subject to the terms and conditions hereof and the
Agreements, including the performance by Customer of its obligations set forth
below, DLJ hereby commits to:
A. Provide Advances under the Agreements for Eligible Mortgage Loans
until March 16, 2000 unless terminated earlier pursuant to the terms of the
Mortgage Loan Purchase Agreement or this Commitment Letter.
B. Calculate the Collateral Value as follows (provided that, in all
cases, Market Value as used below shall not exceed the related unpaid principal
balance of such Loan):
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March 16, 1998
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1. for each Eligible Mortgage Loan, 100% of the related unpaid
principal balance;
2. for each Eligible Mortgage Loan not committed to be purchased
by DLJ subject to an Advance for more than ninety (90) days, 103%
of the Market Value of such Eligible Mortgage Loan;
3. for each Eligible Mortgage Loan not committed to be purchased
by DLJ subject to an Advance for more than six (6) months, 105%
of the Market Value of such Eligible Mortgage Loan;
4. for each Eligible Mortgage Loan subject to an Advance that is
more than sixty (60) days delinquent as to principal and interest
payment, 105% of the Market Value of such Eligible Mortgage Loan;
5. for each Eligible Mortgage Loan subject to an Advance that is
more than ninety (90) days delinquent as to principal and
interest payment, 110% of the Market value of such Eligible
Mortgage Loan;
6. for each Eligible Mortgage Loan subject to an Advance that is
in foreclosure or bankruptcy, 115% of the Market Value of such
Eligible Mortgage Loan;
7. for each Real Estate Owned, 120% of the Market Value of such
Real Estate Owned, provided, however, that such Real Estate Owned
must be secured by a first-lien Mortgage Loan, which Mortgage
Loan shall then be financed by DLJ.
C. Continue to provide Advances by rolling over such Advances, until
the earliest of (1) termination of this Commitment Letter; (2) termination of
the Mortgage Loan Purchase Agreement; or (3) DLJ is entitled to exercise its
remedies in accordance with Paragraph 6 of the Note.
D. If applicable, net all Mortgage Loan sale proceeds paid by DLJ
against the related Advance;
E. Maintain a funding rate as follows:
1. for Program Loans, or for Non-Program Loans subject to an
Advance for less than 3 months (i) for the period to March 16,
1999, the opening federal funds rate of comparable maturity, plus
50 basis points, (ii) for the period from March 17, 1999 through
March 16, 2000, the opening federal funds rate of comparable
maturity, plus 100 basis points.
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March 16,1998
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2. for Non-Program Loans subject to an Advance for more than 3
months, the opening federal funds rate of comparable maturity,
plus 125 basis points, and
3. for Non-Program Loans subject to an Advance for more than 6
months, the opening federal funds rate of comparable maturity,
plus 150 basis points.
III. CONDITIONS TO CONTINUED FUNDING:. The foregoing commitment is
subject to the conditions that:
A. The total of all Advances involving Wet Transactions may be
limited by DLJ in its reasonable discretion (but shall be no less than $5
million) in connection with any decrease in Customer's GAAP net worth.
B. DLJ shall be under no obligation to make any additional Advances
if an Event of Default has occurred.
C. DLJ generally shall underwrite loans on a post-Advance basis. To
the extent the aggregate percentage of Non-Program Loans being financed by DLJ
exceeds seven and one-half percent (7.5%) of the aggregate number of Eligible
Mortgage Loans being financed by DLJ, DLJ shall have the right, but no the
obligation, to underwrite all or a portion of the mortgage loans possessing any
of the characteristics which are common to such Non-Program Loans prior to an
Advance. To the extent that Customer is able to demonstrate its ability to sell
such Non-Program Loans above par within 90 days of an Advance, the preceding two
sentences shall not apply. DLJ agrees to work with Customer to minimize the
number of loans to be underwritten on a pre-Advance basis.
IV CUSTOMER COMMITMENT: Customer commits to:
A. Provide DLJ, on a daily mark to market basis, collateral
consisting of Eligible Mortgage Loans consistent with the applicable Collateral
Values stated above;
B. Provide evidence acceptable to DLJ that it has, and will
continue to maintain, insurance coverage for itself and its subsidiaries that
encompasses employee dishonesty, forgery or alteration, theft, disappearance and
destruction, robbery and safe burglary, property (other than money and
securities), and computer fraud and shall include DLJ Mortgage Capital, Inc. as
a Loss Payee;
C. Notify DLJ of its intent to borrower under an Advance at least I
Business Day prior to such Advance if the amount contemplated to be borrower
varies by more than $5 million from the previous day's Advances;
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March 16, 1998
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D. Immediately repay DLJ for each Advance related to Non-Program
Loan that is subject to an Advance for a period of such months, which period may
be extended by DLJ in its sole discretion for up to three additional months;
E. At the request of DLJ, immediately pay off any Advance related
to any Mortgage Loan that DLJ determines is not an Eligible Mortgage Loan;
F. Establish and maintain an underwriting and approval process,
which shall be supervised by an officer of the Customer reasonably acceptable to
DLJ, in conformity with the criteria and standards set forth in the Mortgage
Loan Purchase Agreement;
G. Continue to maintain an acceptable status as a mortgage approved
by the Department of Housing and Urban Development.
H. To the extent it utilizes or involved DLJMC in the sale of
Eligible Mortgage Loans in whole loan format (or through securitization to the
extent Customer elects to securitize loans), to pay DLJ on all such dispositions
a fee equal to (i) zero (0) for dispositions relating to mortgage loans
originated after the date on which Customer's stock is initially issued through
a public offering (the "IPO Date") but prior to the date occurring one year
after the IPO Date of the IPO (the "Fee Waiver Period") and (ii) twelve and a
half (12.5) basis points times the outstanding balance of the related loans for
dispositions with respect to mortgage loans originated after the Fee Waiver
Period but prior to the maturity date of the facility. Notwithstanding anything
herein to the contrary, Customer may elect to sell its Eligible Mortgage Loans
to or through another entity, without utilizing DLJMC or payment of any fee to
DLJMC, upon notice to that effect.
V. TERMINATION PROVISIONS: DLJ shall have the right to terminate this
Commitment Letter, and DLJ shall no longer be obligated to make Advances to
Customer under this Commitment Letter and may accelerate the maturity dates of
all Advances then outstanding, upon the occurrence of a Commitment Letter
Termination Event. Upon such termination, DLJ shall have no obligation to return
any fees collected and may utilize any remedy provided in the Agreements. A
Commitment Letter Termination Event shall include any one or more of the
following.
A. An "Event of Default" shall have occurred under the Agreements
and DLJ is entitled to exercise its remedies in accordance with paragraph 6 of
the Note;
B. Customer shall have materially breached any agreement or
commitment contained in the Mortgage Loan Purchase Agreement or this Commitment
Letter, including the items set forth under "Required Financial Statement" and
such breaches have not been cured pursuant to applicable grace periods;
C. There occurs any litigation or proceeding affecting Customer and
its affiliates that is likely to be adversely determined and which, if adversely
determined, would have a material adverse effect on the Collateral or the
ability of Customer to pay and perform on the Obligations.
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March 16, 1998
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D. There occurs any event set forth under "Financial Requirements",
in Annex A attached hereto;
E. A "Material Adverse Change" shall have occurred in the business
or operations of Customer or an affiliate thereof which is defined as the
occurrence of any of the events or circumstances set forth under "Financial
Requirements" in Annex A.
F. There occurs a catastrophic event or events resulting in the
effective absence of a "repo market" for a period of at least 30 consecutive
days respecting mortgage loans and the same results in DLJ not being able to
finance any Advance through the repo market with DLJ's traditional repo
counterparties.
Please acknowledge your agreement to the foregoing by signing and
returning the enclosed DLJplicate of this letter, whereby this Commitment Letter
shall become a binding agreement between DLJ and Customer.
Sincerely,
DLJ MORTGAGE CAPITAL, INC.
By: /s/ N. Dante LaRocca
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Name:
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Title:
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BNC MORTGAGE, INC.
By: /s/ Kelly Monahan
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Name: Kelly Monahan
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Title: President
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ANNEX A
1. FINANCIAL REQUIREMENTS:
A change in Customer's business, operations or financial condition that would
materially and adversely affect the ability of Customer to perform its
obligations under this Commitment Letter and the Agreements as determined in
good faith by DLJ;
Customer, directly or indirectly, engages in business other than the mortgage
banking business;
Customer uses the proceeds of the Advances for any purpose other than to fund
the related mortgage loans;
Customer guarantees the debt obligation of any other entity;
Customer sells any material asset other than in its ordinary course of its
business for less than current fair market value.
Customer falls to submit within 90 days of the date of this commitment, and
within 90 days of the beginning of each of Customer's respective fiscal years, a
business plan acceptable to DLJ (the "Business Plan"), which Business Plan shall
set out, among other things, (i) financial targets for Tangible Net Worth for
fiscal year 1998 and for each fiscal year thereafter; and (ii) a provision
whereby Customer shall establish and maintain a working capital reserve fund of
$5 million or more.
2. REQUIRED FINANCIAL STATEMENTS:
(a) Customer shall deliver to DLJ within 120 days after the last day of
its fiscal year, its audited consolidated statement of income and statement of
changes in cash flow for such year and balance sheet as of the end of such year
in each case presented fairly in accordance with GAAP accompanied, in all cases,
by an unqualified report of a firm of independent certified public accountants
acceptable to DLJ.
(b) Customer shall deliver to DLJ within 60 days after the last day of
each of the first three fiscal quarters in any fiscal year of Customer, its
consolidated statements of income and statement of changes in cash flow for such
quarter and balance sheet as of the end of such quarter, presented fairly in
accordance with GAAP for interim period financial statements.
(c) Customer shall cause to be delivered to DLJ within 60 days after
the last day of each of the first three fiscal quarters in any fiscal year, its
unaudited consolidated statements of income and statement of changes in cash
flow for such quarter and balance sheet as of the end of such quarter.
(d) Customer shall deliver to DLJ within 60 days after the last day of each
calendar month in any fiscal year of Customer, (i) its consolidated statement of
income for such month and balance sheet as of the end of such month accompanied
in each case by a certificate of the chief financial officer or treasurer of
Customer stating that such financial statements are presented fairly in
accordance with GAAP, and (ii) an officer's certificate from its chief financial
officer or treasurer certifying that there does not exist an event of default in
the Agreements or in this Annex.
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(e) as soon as available copies of all proxy statements, financial
statements, ad reports which Customer sends to its stockholders, and copies of
all regular periodic and special reports, and all registration statements, if
any, under the Securities Act of 1933, as amended, which it files with the
Securities and Exchange Commission or any governmental authority which may be
substituted therefor, or with any national securities exchange.
(f) Customer shall deliver to DLJ as soon as the same are available
copies of all regular, periodic and special audit reports conducted by GNMA,
FNMA and/or FHLMC with respect to Customer's operations.
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CUSTOMER LETTERHEAD
Date
Ms. Patricia Robins
Senior Credit Analyst
Donaldson, Lufkin & Jenrette
277 Park Avenue
New York, NY 10172
Re: Commitment Letter between BNC Mortgage, Inc. ("Customer") and
DLJ Mortgage Capital, Inc.("DLJ") dated March 16 1998 (the "Commitment
Letter")
Dear Ms. Robins:
This Compliance Certificate is furnished pursuant to the Commitment Letter.
Capitalized terms to defined herein shall have the meanings ascribed to them in
the Commitment Letter. The following is true, correct and complete:
I am a member of the management of Customer holding the office indicated below;
I have reviewed the terms of the Commitment Letter and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of Customer during the period from the date of the last
Compliance Certificate to the date hereof.
The examinations did not disclose, and I have no knowledge of, the existence of
any condition or event with constitutes a Default or Event of Default during or
at the end of the referenced period or as of the date of this Compliance
Certificate; and
Schedule 1 attached hereto sets forth financial data and computations evidencing
Customer's compliance with the financial covenants set forth in the Commitment
Letter and such other information as DLJ shall have reasonably requested in
writing.
The foregoing certifications are made and delivered this_____day
of_____________,199____.
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Office of Customer
Name:
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Title:
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COMPLIANCE CERTIFICATE
(Date)
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1. GAAP NET WORTH
Actual $
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II. OTHER INFORMATION
ORIGINATION YEAR TO DATE -------------------
ADDITIONAL, INFORMATION REQUESTED BY DLJ:
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