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EXHIBIT 10.6(c)
WHOLE LOAN FINANCING FACILITY
CONFORMING AND NONCONFORMING MORTGAGE LOANS
BNC Mortgage, Inc. Dated: March 16, 1998
1063 McGaw Avenue
Irvine, California 92614
Gentlemen:
DLJ Mortgage Capital, Inc. ("DLJ") is pleased to advise you of the availability
of a whole loan financing facility (the "Facility") secured by mortgage loans on
the terms set forth in this letter. Capitalized terms not defined herein shall
have the respective meanings given such terms in the Pledge Agreement, dated the
date hereof, between you and DLJ (the "Pledge Agreement").
1. THE ADVANCES. DLJ agrees to consider from time to time your requests that DLJ
make advances (each, an "Advance", and, collectively, the "Advances") to you in
an aggregate principal amount outstanding at any one time not to exceed the
amount of the Promissory Note (the "Maximum Credit"). Unless otherwise agreed in
writing, this Facility is not a commitment to lend, but rather this Facility
sets forth the procedures to be used in connection with periodic requests for
Advances. You hereby acknowledge that DLJ is under no obligation to agree to
make or to make any Advance pursuant to this Facility. All Advances made by DLJ
hereunder shall be evidenced by the promissory note duly executed by you (the
"Promissory Note"). The Promissory Note shall be dated the date of issue, and
the stated amount shall be equal to the Maximum Credit. Interest in respect
thereof shall be payable only for the periods during which the Advances
evidenced thereby are outstanding. The Promissory Note shall be enforceable
against you only to the extent of the unpaid aggregate principal amount of the
Advances then outstanding, plus accrued and unpaid thereon, plus any other
amounts due thereunder.
2. MAKING THE ADVANCES. (a) On any day you desire to borrow funds from DLJ under
this Facility, you shall notify DLJ that you wish to borrow money on a specified
date, in a specified principal amount and for a specified term.
(b) Upon receipt of your request for an Advance, DLJ may make an offer to you
specifying the terms for such Advance, including the interest rate per annum
(the "Quoted Rate") to be paid by you in respect of such Advance. You shall
immediately notify DLJ as to whether or not you elect to borrow such an Advance.
Each such election by you shall be evidenced by a notice (each, a "Notice of
Borrowing") substantially in the form attached hereto or as otherwise determined
by DLJ, with the blanks appropriately completed and duly executed. On the date
of such Advance, as so agreed by you and DLJ, DLJ will make its Advance to you
subject to and upon the satisfaction of the conditions precedent to such Advance
set forth in Section 6 hereof. Promptly thereafter, DLJ will send to you a
written confirmation of such Advance (each, a "Confirmation"), and your
acceptance of the related proceeds shall constitute your agreement to the terms
of such Confirmation. Such Confirmation may be termed a "Repo Confirmation", but
for purposes hereof the term "Repo", when used in any such Confirmation, shall
be deemed to mean "Advance."
3. PAYMENT OF PRINCIPAL AND INTEREST. Upon each disbursement of funds with
respect to each Advance as set forth in Section 2 above you shall have effected
a borrowing from DLJ hereunder and shall be indebted to DLJ for the principal
amount thereof, plus interest thereon, in accordance with the terms of this
Facility, the Promissory Note and the Notice of Borrowing. You shall repay the
principal amount of each Advance made to you, and the interest thereon, on the
maturity date (the "Maturity Date") specified in the related Notice of Borrowing
in United States Dollars and in same day funds.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. You hereby represent, warrant and
covenant as follows:
(a) You are a corporation duly organized, validly existing and in good standing
under the laws of your jurisdiction of incorporation, your principal place of
business, and you are in compliance with applicable law. You are duly licensed,
qualified and in good standing in every other jurisdiction in which the failure
to take such action would have a material
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adverse effect on your ability to perform your obligations under the
Program Documents.
(b) You are an approved seller/servicer or issuer in good standing with
each Agency to which Agency Mortgage Loans will be submitted.
(c) Your execution, delivery and performance of the Program Documents are
within your charter and corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) your charter or
bylaws or (ii) any rule, regulation or other law or contractual restriction
binding on or affecting you or your property.
(d) Other than the necessary filings with the Agencies regarding the
Collateral (to the extent that the Collateral includes Agency Mortgage
Loans), no authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for your due execution, delivery and performance of the Program Documents.
(e) The Program Documents are your legal, valid and binding obligations,
enforceable against you in accordance with their respective terms.
(f) The available balance sheets, statements of income and changes in
financial condition of you and your subsidiaries as of your most recently
completed fiscal year and quarter, fairly present your financial condition
and results of operations for the period then ended and are in accordance
with generally accepted accounting principles consistently applied, and
copies of such statements, together with the most recent opinion with
respect to such statements of an independent public accounting firm, have
been provided to DLJ, and since such date there has been no material
adverse change in such financial condition, operations or business
prospects.
(g) There is no pending or threatened action or proceeding affecting you or
any of your subsidiaries before any court, governmental agency or
arbitrator, that may materially and adversely affect the financial
condition, operations or business prospects of you or any of your
subsidiaries.
(h) Unless otherwise agreed, at any time any Advance is made or shall be
outstanding, the Collateral Value of the items of Collateral related to
such Advance shall be at least 102% of the Advance then outstanding.
However, with respect to Nonagency Mortgage Loans (i) to the extent that a
Purchase Commitment is in effect, the Collateral Value shall be at least
105% of the principal amount of the Advance then outstanding and (ii) to
the extent that a Purchase Commitment is not in effect, the Collateral
Value shall be at least 110% of the principal amount of the Advance then
outstanding. Notwithstanding the foregoing, DLJ and you may agree upon such
other percentage for purposes of determining Collateral Value for any
particular Advance. To the extent that a deficiency in Collateral Value
exists, you shall promptly cure any such deficiency by delivering cash,
securities or other additional Collateral acceptable to DLJ.
(i) The Program Documents are not entered into in contemplation of
insolvency or with any intent to hinder, delay or defraud any of your
creditors.
(j) Unless otherwise agreed in writing by DLJ, only Mortgage Loans
constituting 1- to 4-family residential first lien Mortgage Loans shall
constitute Collateral acceptable to DLJ for purposes of obtaining an
Advance.
5. CONDITIONS PRECEDENT.
(a) INITIAL ADVANCE. As conditions precedent to the making of the initial
Advance, DLJ shall have received on or before the day of such Advance the
following, in form and substance satisfactory to DLJ and duly executed by
you:
(i) The Program Documents;
(ii) Evidence that all other actions necessary or, in the opinion of DLJ,
desirable to perfect and protect the security interests and liens
created by the Pledge Agreement have been taken, including without
limitation duly executed Uniform
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Commercial Code financing statements on Form UCC-1 with respect to the
Collateral;
(iii) A certified copy of your corporate resolution approving the Program
Documents and borrowings thereunder (either specifically or by general
resolution approving borrowings of the type described in the Program
Documents), and all documents evidencing other necessary corporate action
or governmental approvals as may be required in connection with the
Program Documents;
(iv) A certificate of your corporate secretary certifying the names, true
signatures and titles of your officers duly authorized to request Advances
and sign the Program Documents and the other documents to be delivered
thereunder; and
(v) A favorable opinion of your counsel, which may be internal counsel, as
to such matters as DLJ may reasonably request.
(b) EACH ADVANCE. As conditions precedent to making each Advance, DLJ shall
have received on or before the day of such Advance the following, in form
and substance satisfactory to DLJ and duly executed:
(i) A Notice of Borrowing, the related Collateral Receipt and, if any item
of Collateral securing such Advance is a Wet Mortgage Loan, the related Wet
Closing Notice, each of which must bear the same number;
(ii) If the Collateral is subject to a security interest or lien
immediately prior to the Advance, a letter from the holder of such security
interest or lien releasing the Collateral from such security interest or
lien upon receipt of a stated sum that is less than or equal to the related
Advance;
(iii) If the Collateral consists of Agency Mortgage Loans, either (A) an
assignment by you to Donaldson, Lufkin & Jenrette Securities Corporation
("DLJSC") of the related Purchase Commitment, in form and substance
acceptable to DLJ in its sole discretion, or (B) evidence that you have
instructed the relevant Agency to pay the purchase price for such Agency
Mortgage Loans under the related Purchase Commitment directly to DLJ or its
designee, unless otherwise agreed by DLJ;
(iv) If the Collateral consists of Nonagency Mortgage Loans, evidence that
such Nonagency Mortgage Loans are covered by pool insurance and a pool
insurance certificate (not a commitment to insure) issued by a Pool
Insurer, in form and substance and for such amounts acceptable to DLJ in
its sole discretion, unless otherwise agreed by DLJ; and
(v) Such other documents as DLJ may reasonably request.
6. DLJ ENTITLED TO RELY. In making any Advance or taking any other action
pursuant to the Program Documents, DLJ may conclusively rely upon, and shall
incur no liability to you in acting upon, any request or other communication
that DLJ believes to have been given or made by a person authorized to borrow on
your behalf, whether or not such person is listed on the certificate delivered
pursuant to Section 5(a)(iv).
7. TERMINATION. This Facility shall remain in effect until the earlier of two
years from the date hereof or such time as it is terminated by either DLJ or you
giving written notice of termination hereof to the other. However, no such
termination shall affect your obligations with respect to any Advances
outstanding at the time of such termination or shall be effective with respect
to any Advances made prior to DLJ's receipt of notice thereof. Your obligation
to indemnify DU pursuant to this Facility shall survive the termination hereof.
8. ASSIGNMENT; AMENDMENTS, ETC. The Program Documents are not assignable by
you. The Program Documents are assignable by DLJ in whole or in part. DLJ may
distribute to any prospective assignee any of the Program Documents and any
document or other information delivered to DLJ pursuant thereto. No amendment or
waiver of any provision of this Facility or the Promissory Note, nor any consent
to any failure by you to comply therewith, shall in any event be effective
unless the same shall be in writing and signed by DLJ. Any such amendment,
waiver or consent shall be effective only in
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the specific instance and for the specific purpose for which given. The Program
Documents supersede all other previous agreements between the parties concerning
the same subject matter.
10. COMPENSATION. You shall compensate and indemnify DLJ for all reasonable
costs, expenses, losses and other liabilities that DLJ may sustain (i) if any
repayment of the principal amount of any Advance, together with interest
thereon, is not made on the Maturity Date thereof or (ii) in connection with
the protection of DLJ's rights under or the enforcement of the Program Documents
or any other document received by DLJ or Custodian in connection therewith.
11. NOTICES. All written communications hereunder shall be mailed, telecopied or
delivered at the respective addresses as listed in the Custody Agreement or at
such other address as shall be designated by a party in a written notice to the
other party. All such notices and communications shall be effective when
delivered to the party to which such notice is to be given.
12. GOVERNING LAW; CONSENT TO JURISDICTION. This letter shall be construed in
accordance with, and governed by, the law of the State of New York, without
giving effect to the conflict of law principles thereof. You waive trial by
jury. You hereby irrevocably consent to the non-exclusive jurisdiction of any
court of the State of New York, or in the United States District Court for the
Southern District of New York, arising out of or relating to the Program
Documents in any action or proceeding. You hereby submit to, and waive any
objection you may have to, personal jurisdiction and venue in the courts of the
State of New York and the United States District Court for the Southern District
of New York, with respect to any disputes arising out of or relating to the
Program Documents.
If the terms of this letter are satisfactory to you, please indicate your
agreement and acceptance thereof by signing this letter and returning it to us,
whereupon this letter shall become an agreement between us as of the date of
this letter.
Very truly yours,
DLJ Mortgage Capital, Inc.
By: /s/ N. Dante LaRocca
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Name:
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Title:
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Agreed and Accepted:
BNC Mortgage, Inc.
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By: /s/ Kelly Monahan
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Name: Kelly Monahan
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Title: President
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NOTICE OF BORROWING NO.
DLJ Mortgage Capital, Inc.
277 Park Avenue
New York, NY 10172
Attention: Whole Loan Financing Program
Facsimile (212) 504-8072
RE: Agency/Nonagency_______________Identification/Pool #_____________________
Security Rate ____________% Maturity:______________
Pursuant to the Whole Loan Financing Facility, dated March __, 1998, between you
and the undersigned (as amended from time to time, the "Facility"), the
undersigned hereby gives notice of its election to borrow from you an Advance
and in connection therewith sets forth below the following information (each
capitalized term used herein shall have the meaning specified therefor in the
Facility):
1. The aggregate unpaid principal of the Mortgage Loans is $_______________.
2. The principal amount of this Advance is $_______________.
3. The Quoted Rate for this Advance is ____ % per annum.
4. The beginning Business Day of this Advance is _________,199___.
5. The Maturity Date of this Advance is _________,199___.
6. The Collateral Value of the items of Collateral shall be ________%.
The undersigned hereby certifies that the following statements are true and
correct on the date hereof and shall be true and correct on the date of the
Advance requested herein, before and after giving effect thereto: (a) each of
the representations and warranties contained in the Facility and the Pledge
Agreement are true and correct in all material respects, (b) no Default or Event
of Default (as such terms are defined in the Pledge Agreement) has occurred and
is continuing, (c) if applicable, the undersigned has, coincident or prior to
this Notice of Borrowing, delivered and validly assigned genuine and enforceable
Purchase Commitments to DLJSC for Agency Mortgage Loans or an Agency Security or
to DLJ for Nonagency Mortgage Loans, each in an aggregate amount equal to the
Face Value of the Pool, and (d) Customer has satisfied all of the conditions
precedent in Section 5(b) and all other requirements of the Facility.
The Advance made pursuant hereto shall be made in connection with the items of
Collateral described in the Collateral Receipt No.__________, dated
______________, 199___ and, if applicable, the Wet Closing Notice of even number
and date therewith.
______________________________________________, as Customer
By:___________________________________________
Name:_________________________________________
Title:________________________________________
Date:_______________________________, 199_____