Exhibit 4(e)
THIRD AMENDMENT TO
WAREHOUSING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO WAREHOUSING CREDIT AGREEMENT, dated as of March
31, 1994 (this "Amendment"), is by and between MAYFLOWER MORTGAGE CORPORATION,
d/b/a Republic Bancorp Mortgage Inc., a Michigan corporation (the "Company"),
the banks named in Section 2.1 of the Warehousing Credit Agreement referred to
below (collectively referred to as the "Banks" and individually referred to as
"Bank") and NBD BANK, N.A., a national banking association, as agent for the
Banks (in such capacity, the "Agent").
RECITALS
A. The Company, the Banks and the Agent are parties to a Warehousing
Credit Agreement, dated as of December 18, 1992, and amended by a First
Amendment to Warehousing Credit Agreement dated as of May 1, 1993 and by a
Second Amendment to Warehousing Credit Agreement dated as of December 17, 1993
(as so amended, the "Credit Agreement"), pursuant to which the Banks agreed,
subject to the terms and conditions thereof, to extend credit to the Company.
B. The Company has requested that the maturity date of the Notes be
extended, and the Banks and the Agent have so agreed, subject to the terms and
conditions of this Amendment.
Therefore, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set forth in
Article III hereof, the Credit Agreement shall be amended as follows:
1.1 The definition of "Termination Date" contained in Section 1.1 is
hereby deleted and the following is substituted in place thereof:
"Termination Date" shall mean the earlier to occur of (a) April 30, 1994,
and (b) the date on which the Credit shall be terminated pursuant to Section
2.3 or 7.2.
ARTICLE II. REPRESENTATIONS AND WARRANTS. The Company represents and warrants
to the Agent and the Banks as follows:
2.1 The execution, delivery and performance of this Amendment and all
other agreements and documents executed pursuant hereto have been duly
authorized by all necessary corporate action and are not in contravention of
any Governmental Regulation, or of the terms of its charter or by-laws, or of
any contract or undertaking to which it is a party or by which it or its
property may be bound or affected, the breach of any of which could reasonably
be expected to materially and adversely affect its ability to perform its
obligations under this Amendment, the Credit Agreement or the other Loan
Documents, and do not result in the imposition of any Lien except for
Permitted Liens.
2.2 This Amendment and all other agreements and documents executed
pursuant hereto are the legal, valid and binding obligations of the Company
enforceable against it in accordance with their respective terms, subject to
the effect of any applicable bankruptcy, insolvency moratorium, reorganization
or other similar laws affecting creditors' rights generally, to the
discretionary nature of specific performance, injunctive relief and other
equitable remedies, and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity).
2.3 The representations and warranties contained in Article V of the
Credit Agreement are true on and as of the date hereof with the same force and
effect as if made on and as of the date hereof, except that Schedule 5.4
thereto shall be replaced by the attached Schedule 5.4, and the forms of the
Articles of Incorporation, Bylaws, resolutions and certificates of incumbency
of the Company delivered to the Agent and the Banks on December 18, 1992 and
December 17, 1993, continue to be true, correct and complete in all material
respects and have not been modified or amended in any respect.
2.4 No Default or Event of Default exists as of the date hereof.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall not become
effective until each of the following has been satisfied:
3.1 The Company shall have delivered to the Banks promissory notes in the
forms attached as Exhibits 3.1(a) and (b), appropriately completed for each
bank and duly executed on behalf of the Company (the "New Notes").
3.2 Copies of resolutions adopted by the Board of Directors of the
Company, certified by an officer of the Company as being true and correct and
in full force and effect without amendment as of the date hereof, authorizing
the Company to enter into this Amendment and the New Notes, shall have been
delivered to the Agent and the Banks.
3.3 This Amendment shall have been fully executed and delivered to the
Agent and the Banks.
3.4 The Company shall have delivered to the Agent and the Banks such
other documents and instruments as the Agent or the Banks may request in
connection herewith.
ARTICLE IV. MISCELLANEOUS.
4.1 References in the Credit Agreement or in any other Loan Document to
the Credit Agreement shall be deemed to be references to the Credit Agreement
as amended hereby and as further amended from time to time.
4.2 The Company agrees to pay and to save the Agent and the Banks
harmless from the payment of all costs and expenses arising in connection with
this Amendment, the New Notes and the documents and agreements executed
hereunder or thereunder, including the fees of Honigman Miller Schwartz and
Cohn, counsel to the Agent, in connection with preparing this Amendment, the
New Notes and such other documents and agreements.
4.3 Except as expressly amended hereby, the Company agrees that the
Credit Agreement, the other Loan Documents and all other documents and
agreements executed by the Company in connection with the Credit Agreement in
favor of the Agent and the Banks are ratified and confirmed and shall remain
in full force and effect and the Company acknowledges and agrees that it has
no setoff, counterclaim or defense with respect to any of the foregoing.
Capitalized terms used but not defined herein shall have the respective
meanings ascribed thereto in the Credit Agreement. Not withstanding anything
in the Credit Agreement or the Collateral Documents to the contrary, all
collateral granted by the Company to the Agent and the Banks pursuant to the
Collateral Documents secures all Advances and all other present and future
indebtedness, obligations and liabilities of the Company owing to the Agent
and the Banks in accordance with such Collateral Documents.
4.4 This Amendment may be signed upon any number of counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of March 31, 1994.
MAYFLOWER MORTGAGE CORPORATION,
d/b/a Republic Bancorp Mortgage Inc.
By: /s/ Richard H. Shaffner
-----------------------------
Its: President and Chief Executive Officer
NBD Bank, N.A. (as a Bank and as Agent)
By: /s/
-----------------------------
Its:
-------------------------------------
Comerica Bank
By: /s/
---------------------------------
Its:
--------------------------------------
FOURTH AMENDMENT TO
WAREHOUSING CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO WAREHOUSING CREDIT AGREEMENT, dated as of
April 30, 1994 (this "Amendment"), is by and between MAYFLOWER MORTGAGE
CORPORATION, d/b/a Republic Bancorp Mortgage Inc., a Michigan corporation
(the "Company"), the banks named in Section 2.1 of the Warehousing Credit
Agreement referred to below (collectively referred to as the "Banks" and
individually referred to as "Bank") and NBD BANK, N.A., a national banking
association, as agent for the Banks (in such capacity, the "Agent").
Recitals
A. The Company, the Banks and the Agent are parties to a Warehousing
Credit Agreement, dated as of December 18, 1992, and amended by a First
Amendment to Warehousing Credit Agreement dated as of May 1, 1993, a Second
Amendment to Warehousing Credit Agreement dated as of December 17, 1993 and
a Third Amendment to Warehousing Credit Agreement dated as of March 31,
1994 (as so amended, the "Credit Agreement"), pursuant to which the Banks
agreed, subject to the terms and conditions thereof, to extend credit to
the Company.
B. The parties desire to amend the Credit Agreement on the terms and
conditions of this Amendment.
Therefore, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set forth in
Article III hereof, the Credit Agreement shall be amended as follows:
1.1 The definitions of "Borrowing Base", "Floating Rate" and
"Termination Date" contained in Section 1.1 are hereby deleted and the
following are substituted in place thereof:
"Borrowing Base" shall mean, as of any date, an amount equal to
the sum of the following:
(a) 97% (but not to exceed $10,000,000 in the aggregate) of
the Collateral Value (as defined below) of Acceptable Mortgage
Loans (other than Uncommitted Loans) which are advanced against by
means of a Draft Advance or Good Funds Advance and which have
constituted Collateral for not more than 5 Business Days;
(b) 97% (but not to exceed $15,000,000 in the aggregate) of
the Collateral Value of Gestation Loans);
(c) 97% (but note to exceed $50,000,000 in the aggregate) of
the Collateral Value of Conforming Acceptable Mortgage Loans
(other than Gestation Loans and Uncommitted Loans) which
have constituted Collateral for not more than 90 days;
(d) 95% (but not to exceed $50,000,000 in the aggregate) of
the Collateral Value of Conforming Acceptable Mortgage Loans
(other than Gestation Loans and Uncommitted Loans) which have
constituted Collateral for 91 to 180 days;
(e) 95% (but not to exceed $1,000,000 in the aggregate) of
the Collateral Value of Uncommitted Loans constituting Acceptable
Mortgage Loans; and
(f) 95% (but not to exceed, when combined with the Mortgage
Loans described in (g) below, $7,500,000 in the aggregate) of the
Collateral Value of Non-Conforming Acceptable Mortgage Loans which
have constituted Collateral for not more than 60 days;
(g) 90% (but not to exceed, when combined with the Mortgage
Loans described in (f) above, $7,500,000 in the aggregate) of the
Collateral Value of Non-Conforming Acceptable Mortgage Loans which
have constituted Collateral for 61 to 120 days.
For purposes of the foregoing, "Collateral Value" shall mean (i) with
respect to a Mortgage Loan subject to an outstanding Purchase
Commitment, the lesser of (A) the unpaid principal amount of such
Mortgage Loan, less all discounts collected by the Company or other
originator in connection with such Mortgage Loan, and (B) the purchase
price with respect to the Purchase Commitment relating to such Mortgage
Loan, and (ii) with respect to an Uncommitted Loan, 95% of the unpaid
principal amount of such Mortgage Loan, less all discounts collected by
the Company or other originator in connection with such Mortgage Loan.
"Floating Rate" shall mean the per annum rate equal to:
(a) with respect to Draft Advances and Good Funds Advances,
the greater of (i) the Prime Rate in effect from time to time or
(ii) 100 basis points plus the Federal Funds Rate;
(b) with respect to Advances secured by Gestation Loans, the
sum of 125 basis points plus the Federal Funds Rate; and
(c) with respect to all other Advances, the sum of 175 basis
points and the Federal Funds Rate.
Such Floating Rate shall change simultaneously with any change in the
Prime Rate or Federal Funds Rate, as the case may be.
"Termination Date" shall mean the earlier to occur of (a) April
28, 1995, and (b) the date on which the Credit shall be terminated
pursuant to Section 2.3 or 7.2.
1.2 Clause (a) of the definition of "Adjusted LIBOR Rate" contained in
Section 1.1 is hereby deleted and the following is substituted in place
thereof:
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(a) one and three-fourths percent (1-3/4%),
1.3 The following definitions are hereby added to Section 1.1, to be
inserted in appropriate alphabetical order:
"Agency" shall mean FHLMC, FNMA or GNMA.
"Gestation Loan Sublimit" shall mean, with respect to all Banks in
the aggregate, $15,000,000.
"Gestation Loans" shall mean Acceptable Mortgage Loans which have
been certified by the Company to be (a) subject to outstanding Purchase
Commitments and (b) either (i) included by the Company in a pool of
mortgage loans intended to underlie one or more mortgage-backed
securities to be issued or guaranteed by an Agency and certified by the
applicable Agency or its approved document custodian to be eligible for
inclusion in such a pool (or, in the case of a GNMA mortgage-backed
security, initially certified) or (ii) included in a pool of mortgage
loans underlying one or more mortgage-backed securities issued or
guaranteed by an Agency; provided, however, that a Mortgage Loan shall
not be deemed a Gestation Loan under clause (i) above for more than 30
days nor a Gestation Loan under clause (ii) above for more than 15
days.
"Parent" shall mean Republic Bancorp, Inc., a Michigan corporation
and the sole shareholder of the Company.
1.4 The last paragraph of Section 2.1 is hereby deleted and the
following is substituted in place thereof:
Furthermore, in no event shall the aggregate unpaid principal
balance of (i) all outstanding Draft Advances and all outstanding Good
Funds Advances exceed the Wet Closing Sublimit and (ii) all Advances
secured by Gestation Loans exceed the Gestation Loan Sublimit.
1.5 Sections 3.3(d) and 6.2(c) are hereby deleted, and
Section 6.1(d)(iv) is hereby deleted and the following is substituted in
place thereof:
(iv) Upon request, from time to time, by the Agent or any
Bank, a Borrowing Base Certificate in the form of
Exhibit 6.1(d)(iv) appropriately completed as of the last day of
the calendar month immediately preceding the date of such
certificate.
1.6 The Guaranty Agreement is hereby terminated and deemed null and
void for all purposes, including with respect to any and all obligations of
the Company whether incurred before or after the date hereof, and the
Credit Agreement is hereby amended as follows:
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(a) all references to the "Guaranty Agreement" in the
definition of "Loan Documents", Article VII and Sections 8.8 and
9.17, are hereby deleted;
(b) all references to "Guarantors in the definition of
"Obligations", Article VI (other than any such references in
Section 6.1(d)), Article VII (other than any such references in
Sections 7.1(g), 7.1(h) and 7.1(i)) and Article VIII, are hereby
deleted; and
(c) all remaining references to "Guarantor" in the Credit
Agreement, including those references in Sections 6.1(d), 7.1(g),
7.1(h) and 7.1(i), and in any other Loan Document, are hereby
deemed to be references to "Parent".
1.7 The attached form of Request for Advance (Exhibit 3.1(a)) is
hereby substituted for the form of Request for Advance attached as Exhibit
3.1(a) to the Credit Agreement.
ARTICLE II. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agent and the Banks as follows:
2.1 The execution, delivery and performance of this Amendment and all
other agreements and documents executed pursuant hereto have been duly
authorized by all necessary corporate action and are not in contravention
of any Governmental Regulation, or of the terms of its charter or by-laws,
or of any contract or undertaking to which it is a party or by which it or
its property may be bound or affected, the breach of any of which could
reasonably be expected to materially and adversely affect its ability to
perform its obligations under this Amendment, the Credit Agreement or the
other Loan Documents, and do not result in the imposition of any Lien
except for Permitted Liens.
2.2 This Amendment and all other agreements and documents executed
pursuant hereto are the legal, valid and binding obligations of the Company
enforceable against it in accordance with their respective terms, subject
to the effect of any applicable bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors' rights generally,
to the discretionary nature of specific performance, injunctive relief and
other equitable remedies, and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding at law or in
equity).
2.3 The representations and warranties contained in Article V of the
Credit Agreement are true on and as of the date hereof with the same force
and effect as if made on and as of the date hereof, and the forms of the
Articles of Incorporation, Bylaws, resolutions and certificates of
incumbency of the Company delivered to the Agent and the Banks on
December 18, 1992 and December 17, 1993, continue to be true, correct and
complete in all material respects and have not been modified or amended in
any respect.
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2.4 No Default or Event of Default exists as of the date hereof.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall not become
effective until each of the following has been satisfied:
3.1 The Company shall have delivered to the Banks promissory notes in
the forms attached as Exhibits A and B, appropriately completed for each
Bank and duly executed on behalf of the Company (the "New Notes").
3.2 The Company shall have executed and delivered to the Agent, on
behalf of itself and the Banks, a Second Amendment to the Pledge and
Security Agreement in the form attached as Exhibit C (the "Pledge Agreement
Amendment").
3.3 Copies of resolutions adopted by the Board of Directors of the
Company, certified by an officer of the Company as being true and correct
and in full force and effect without amendment as of the date hereof,
authorizing the Company to enter into this Amendment, the New Notes and the
Pledge Agreement Amendment, shall have been delivered to the Agent and the
Banks.
3.4 This Amendment shall have been fully executed and delivered to the
Agent and the Banks.
3.5 The Company shall have delivered to the Agent and the Banks such
other documents and instruments as the Agent or the Banks may request in
connection herewith.
ARTICLE IV. MISCELLANEOUS.
4.1 References in the Credit Agreement or in any other Loan Document
to the Credit Agreement shall be deemed to be references to the Credit
Agreement as amended hereby and as further amended from time to time.
4.2 The Company agrees to pay and to save the Agent and the Banks
harmless from the payment of all costs and expenses arising in connection
with this Amendment, the New Notes, the Pledge Agreement Amendment and the
documents and agreements executed hereunder or thereunder, including the
fees of Honigman Miller Schwartz and Cohn, counsel to the Agent, in
connection with preparing this Amendment, the New Notes, the Pledge
Agreement Amendment and such other documents and agreements.
4.3 Except as expressly amended hereby, the Company agrees that the
Credit Agreement, the other Loan Documents and all other documents and
agreements executed by the Company in connection with the Credit Agreement
in favor of the Agent and the Banks are ratified and confirmed and shall
remain in full force and effect and the Company acknowledges and agrees
that it has no setoff, counterclaim or defense with respect to any of the
foregoing. Capitalized terms used but not defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement.
Notwithstanding anything in the Credit Agreement or the Collateral
Documents
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to the contrary, all collateral granted by the Company to the Agent and the
Banks pursuant to the Collateral Documents secures all Advances and all
other present and future indebtedness, obligations and liabilities of the
Company owing to the Agent and the Banks in accordance with such Collateral
Documents.
4.4 This Amendment may be signed upon any number of counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of April 30, 1994.
MAYFLOWER MORTGAGE CORPORATION,
d/b/a Republic Bancorp Mortgage Inc.
By: /s/ Lawrence Rosenberg
-------------------------------
Its: CHIEF FINANCIAL OFFICER
--------------------------
NBD BANK, N.A. (as a Bank and
as Agent)
By:
-------------------------------
Its:
-------------------------
COMERICA BANK
By:
-------------------------------
Its:
-------------------------
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to the contrary, all collateral granted by the Company to the Agent and the
Banks pursuant to the Collateral Documents secures all Advances and all
other present and future indebtedness, obligations and liabilities of the
Company owing to the Agent and the Banks in accordance with such Collateral
Documents.
4.4 This Amendment may be signed upon any number of counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of April 30, 1994.
MAYFLOWER MORTGAGE CORPORATION,
d/b/a Republic Bancorp Mortgage Inc.
By:
-------------------------------
Its:
--------------------------
NBD BANK, N.A. (as a Bank and
as Agent)
By: /s/ Carolann M. Morykwas
-------------------------------
Its: Vice President
-------------------------
COMERICA BANK
By: /s/ Donald Kent
-------------------------------
Its: Vice President
-------------------------
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Exhibit 3.1(a)
REQUEST FOR ADVANCE
The undersigned, Mayflower Mortgage Corporation, d/b/a Republic Bancorp
Mortgage Inc., a Michigan corporation (the "Company"), hereby certifies as
follows pursuant to the Warehousing Credit Agreement entered into as of
December 18, 1992, as amended, among the Company, the banks which are
parties thereto and NBD Bank, N.A., as agent for such banks (the "Credit
Agreement," to which reference is made for definitions of capitalized terms
not otherwise defined herein):
1. The Company hereby requests an Advance in the aggregate amount of
$_________to be made on ____________, 199__, as specified on Schedule 1
attached hereto. The Company hereby acknowledges that such advance will
become a part of the Obligations owed under the Credit Agreement, as
evidenced by the Notes delivered thereunder.
2. The Company requests that the specified portion of such Advance be
applied to the repayment of the Obligations specified below or be made
available in immediately available funds to the following account:
3. The Company hereby represents and warrants that, after giving
effect to the Advance requested hereby, (a) the aggregate outstanding
amount of all Advances to the Company under the Credit Agreement will not
exceed the lesser of the Borrowing Base and the Total Commitments, (b) if
such Advance is a Draft Advance or Good Funds Advance, the aggregate
outstanding amount of all Draft Advances and Good Funds Advances will not
exceed the Wet Closing Sublimit, and (c) if such Advance is to be secured
by Gestation Loans, the aggregate outstanding amount of all Advances
secured by Gestation Loans will not exceed the Gestation Loan Sublimit.
4. The representations and warranties of the Company in the Credit
Agreement are true and correct in all material respects as of the date
hereof (both before and after giving effect to such Advance).
5. No Default or Event of Default has occurred and is continuing as
of the date hereof (whether before or after giving effect to the Advance
requested hereby).
This Request for Advance is executed and delivered to NBD Bank, N.A.,
as Agent, by the undersigned authorized officer of the Company on ________,
199__.
MAYFLOWER MORTGAGE CORPORATION,
d/b/a Republic Bancorp Mortgage Inc.
By:
--------------------------------
Title:
------------------------
Schedule 1
to
Request for Advance
Amount of Applicable Loan
Advance Rate* Period**
---------- ---------- --------
* Specify "Floating" or "Adjusted LIBOR."
** Applicable to LIBOR Rate Loans only; specify 30 or 60 days.
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Exhibit A
PROMISSORY NOTE
$25,000,000 April 30, 1994
Detroit, Michigan
FOR VALUE RECEIVED, the undersigned, Mayflower Mortgage Corporation,
d/b/a Republic Bancorp Mortgage Inc., a Michigan corporation (the
"Company"), hereby promises to pay to the order of NBD Bank, N.A. (the
"Bank"), at the main office of the Agent (as such term and each other
capitalized term used herein is defined in the Credit Agreement referred to
below) in the City of Detroit, Michigan, or at such other place as the
holder hereof may from time to time designate in writing, in lawful money
of the United States of America and in immediately available funds, the
principal sum of Twenty-Five Million Dollars ($25,000,000), or such lesser
amount as shall have been loaned by the Bank to the Company in accordance
with the Credit Agreement referred to below, together with interest on the
outstanding balance thereof as provided below, payable on the Termination
Date. The indebtedness outstanding hereunder shall bear interest at the
rates per annum and be payable on the dates provided in the Credit
Agreement.
The Bank is hereby authorized by the Company to record on the Schedule
attached hereto, or on the Bank's books and records, the date, amount and
Floating Rate or Adjusted LIBOR Rate, as applicable, of each Advance, and
the amount of each payment or prepayment thereon, which shall be prima
facie evidence of the information set forth therein for all purposes absent
manifest error. The failure of the Bank to record, or any error in
recording, any such information shall not relieve the Company of its
obligation to repay the outstanding principal amount of the Advances, all
accrued interest thereon and other amounts payable with respect thereto in
accordance with the terms of this Promissory Note and the Credit Agreement
referred to below.
The Company and all endorsers, guarantors and sureties of this
Promissory Note severally waive demand, presentment, protest, diligence,
notice of dishonor and any other formality in connection with this
Promissory Note, and expressly agree that the maturity of this Promissory
Note, or any payment hereunder, may be extended from time to time without
in any way affecting the liability of the Company or such endorsers,
guarantors or sureties. If the indebtedness evidenced by this Promissory
Note or any part thereof shall be collected in any proceeding or be placed
in the hands of attorneys for collection, the Company and all endorsers,
guarantors and sureties of this Promissory Note severally agree to pay, in
addition to the principal and interest due and payable herein, all costs of
collecting this Promissory Note, including reasonable attorneys' fees and
expenses.
This Promissory Note evidences the Advances made under a Warehousing
Credit Agreement entered into as of December 18, 1992, and amended by a
First Amendment to Warehousing Credit Agreement dated as of May 1, 1993, a
Second Amendment to Warehousing Credit Agreement dated as of December 17,
1993, a Third Amendment to Warehousing Credit Agreement dated as of
March 31, 1994 and a Fourth Amendment to Warehousing Credit Agreement dated
as of April 30, 1994 (as so amended and as it may be further amended, the
"Credit Agreement"), by and between the Company, the banks who are parties
thereto and NBD Bank, N.A., as Agent, to which reference is hereby made for
a statement of the circumstances under which this Promissory Note is
subject to prepayment and under which its due date may be accelerated and
other terms applicable to this Promissory Note. This note is secured by
certain collateral referred to in the Credit Agreement and the other Loan
Documents (including, without limitation, the Pledge and Security
Agreement).
This Promissory Note is made under, and shall be governed by and
construed in accordance with, the laws of the State of Michigan applicable
to contracts made and to be performed entirely within such State and
without giving effect to choice of law principles of such State.
This Promissory Note is in replacement of, and substituted for, that
certain promissory note dated March 31, 1994, which in turn had been issued
in replacement of that certain promissory note dated December 17, 1993,
which in turn had been issued in replacement of that certain promissory
note dated December 18, 1992, from the Company to the Bank and shall not be
deemed a notation of, or to have satisfied, such previously issued
promissory notes. Accrued but unpaid interest under such previously
delivered promissory note to the date hereof shall be deemed due and owing
as interest under this Promissory Note on the first Interest Payment Date
under this Promissory Note or, with regard to LIBOR Rate Advances
outstanding on the date hereof under such previously delivered promissory
note, upon expiration of the applicable Advance Period.
MAYFLOWER MORTGAGE CORPORATION,
d/b/a Republic Bancorp Mortgage Inc.
By:
--------------------------------
Its:
--------------------------
SCHEDULE TO
PROMISSORY NOTE
Payment or
Adjusted Prepayment
Date of Type of Advance LIBOR of
Advance Amount Advance* Period** Rate** Principal
------- ------ ------- ------- ------ ----------
------------------------------------
* Floating Rate or LIBOR Rate.
** Applicable to LIBOR Rate Advances only.
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Exhibit B
PROMISSORY NOTE
$25,000,000 April 30, 1994
Detroit, Michigan
FOR VALUE RECEIVED, the undersigned, Mayflower Mortgage Corporation,
d/b/a Republic Bancorp Mortgage Inc., a Michigan corporation (the
"Company"), hereby promises to pay to the order of Comerica Bank, a
Michigan banking corporation (the "Bank"), at the main office of the Agent
(as such term and each other capitalized term used herein is defined in the
Credit Agreement referred to below) in the City of Detroit, Michigan, or at
such other place as the holder hereof may from time to time designate in
writing, in lawful money of the United States of America and in immediately
available funds, the principal sum of Twenty-Five Million Dollars
($25,000,000), or such lesser amount as shall have been loaned by the Bank
to the Company in accordance with the Credit Agreement referred to below,
together with interest on the outstanding balance thereof as provided
below, payable on the Termination Date. The indebtedness outstanding
hereunder shall bear interest at the rates per annum and be payable on the
dates provided in the Credit Agreement.
The Bank is hereby authorized by the Company to record on the Schedule
attached hereto, or on the Bank's books and records, the date, amount and
Floating Rate or Adjusted LIBOR Rate, as applicable, of each Advance, and
the amount of each payment or prepayment thereon, which shall be prima
facie evidence of the information set forth therein for all purposes absent
manifest error. The failure of the Bank to record, or any error in
recording, any such information shall not relieve the Company of its
obligation to repay the outstanding principal amount of the Advances, all
accrued interest thereon and other amounts payable with respect thereto in
accordance with the terms of this Promissory Note and the Credit Agreement
referred to below.
The Company and all endorsers, guarantors and sureties of this
Promissory Note severally waive demand, presentment, protest, diligence,
notice of dishonor and any other formality in connection with this
Promissory Note, or any payment hereunder, may be extended from time to
time without in any way affecting the liability of the Company or such
endorsers, guarantors or sureties. If the indebtedness evidenced by this
Promissory Note or any part thereof shall be collected in any proceeding
or be placed in the hands of attorneys for collection, the Company and all
endorsers, guarantors and sureties of this Promissory Note severally agree
to pay, in addition to the principal and interest due and payable hereon,
all costs of collecting this Promissory Note, including reasonable
attorneys' fees and expenses.
This Promissory Note evidences the Advances made under a Warehousing
Credit Agreement entered into as of December 18, 1992, and amended by a
First Amendment to Warehousing Credit Agreement dated as of May 1, 1993, a
Second Amendment to Warehousing Credit Agreement dated as of December 17,
1993, a Third Amendment to Warehousing Credit Agreement dated as of
March 31, 1994 and a Fourth Amendment to Warehousing Credit Agreement dated
as of April 30, 1994 (as so amended and as it may be further amended, the
"Credit Agreement"), by and between the Company, the banks who are parties
thereto and NBD Bank, N.A., as Agent, to which reference is hereby made for
a statement of the circumstances under which this Promissory Note is
subject to prepayment and under which its due date may be accelerated and
other terms applicable to this Promissory Note. This note is secured by
certain collateral referred to in the Credit Agreement and the other Loan
Documents (including, without limitation, the Pledge and Security
Agreement).
This Promissory Note is made under, and shall be governed by and
construed in accordance with, the laws of the State of Michigan applicable
to contracts made and to be performed entirely within such State and
without giving effect to choice of law principles of such State.
This Promissory Note is in replacement of, and substituted for, that
certain promissory note dated March 31, 1994, which in turn had been issued
in replacement of that certain promissory note dated December 17, 1993,
which in turn had been issued in replacement of that certain promissory
note dated December 18, 1992, from the Company to the Bank, and shall not
be deemed a notation of, or to have satisfied, such previously issued
promissory notes. Accrued but unpaid interest under such previously
delivered promissory note to the date hereof shall be deemed due and owing
as interest under this Promissory Note on the first Interest Payment Date
under this Promissory Note or, with regard to LIBOR Rate Advances
outstanding on the date hereof under such previously delivered promissory
note, upon expiration of the applicable Advance Period.
MAYFLOWER MORTGAGE CORPORATION,
d/b/a Republic Bancorp Mortgage Inc.
By: /s/ Lawrence Rosenberg
--------------------------------
Its: CHIEF FINANCIAL OFFICER
--------------------------
-2-
SCHEDULE TO
PROMISSORY NOTE
Payment or
Adjusted Prepayment
Date of Type of Advance LIBOR of
Advance Amount Advance Period** Rate** Principal
------- ------ ------- -------- -------- ---------
-----------------------------------
* Floating Rate or LIBOR Rate.
** Applicable to LIBOR Rate Advances only.
-3-
SECOND AMENDMENT TO THE
PLEDGE AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO PLEDGE AND SECURITY AGREEMENT ("Agreement")
dated as of April 30, 1994, is made by and between Mayflower Mortgage
Corporation, d/b/a Republic Bancorp Mortgage Inc., a Michigan corporation
(the "Company"), and NBD Bank, N.A., a national banking association
("NBD"), as agent (in such capacity, "Agent") for the benefit of the banks
("Banks") who are parties from time to time to the Credit Agreement (as
such term is defined below).
Recitals
A. The Company, the Banks and the Agent are parties to a Warehousing
Credit Agreement, dated as of December 18, 1992, as amended by the First
Amendment to Warehousing Credit Agreement dated as of May 1, 1993, the
Second Amendment to Warehousing Credit Agreement dated as of December 17,
1993 and the Third Amendment to Warehousing Credit Agreement dated as of
March 31, 1994 (as so amended, the "Pledge and Security Agreement").
B. It is a condition precedent to the Banks' execution and delivery
of a proposed Fourth Amendment to Warehousing Credit Agreement to be dated
the date hereof that the Company shall have entered into this Agreement.
Therefore, the Company hereby agrees with the Agent as follows:
Article I. Amendment. The Pledge and Security Agreement is hereby
amended by the addition of the following subsection at the end of Section 4
thereof:
(a) A Gestation Loan shall be delivered to the Agent for pledge
under this Agreement by the delivery of the following described
documents to the Agent prior to the making of the related Advance by
the Agent on behalf of the Banks, which documents shall be delivered at
the same time and in the same manner as those instruments and documents
described under subsection 4(c) above are required to be delivered with
respect to such Pledged Mortgage (and for purposes of this Agreement,
the following described documents shall also be deemed "Mortgage Loan
Documents"):
(i) certification of the Company that such Pledged Mortgage
conforms to the definition of a Gestation Loan; and
(ii) evidence of the certification by the applicable Agent
(or its approved document custodian), in form and substance
reasonably satisfactory to the Agent, that such Pledged Mortgage
has been found to be eligible for inclusion in a pool of mortgage
loans intended to underlie, or underlying, one or more
mortgage-backed securities issued or guaranteed by such Agency
(with respect to
certificates from FHLMC, the parties agree that a copy of the
completed Form 939 from FHLMC shall satisfy this requirement with
regard to Gestation Loans underlying FHLMC mortgage-backed
securities).
Article II. Miscellaneous.
2.1 References in the Credit Agreement or in any other Loan Document
to the Pledge and Security Agreement shall be deemed to be references to
the Pledge and Security Agreement as amended hereby and as further amended
from time to time.
2.2 Except as expressly amended hereby, the Company agrees that the
Credit Agreement, the Pledge and Security Agreement, the other Loan
Documents and all other documents and agreements executed by the Company in
connection with the Credit Agreement in favor of the Agent and the Banks
are ratified and confirmed and shall remain in full force and effect and
the Company acknowledges and agrees that it has no setoff, counterclaim or
defense with respect to any of the foregoing. Terms used but not defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement or the Pledge and Security Agreement.
2.3 This Amendment may be signed upon any number of counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of April 30, 1994.
MAYFLOWER MORTGAGE CORPORATION,
d/b/a Republic Bancorp Mortgage Inc.
By: /s/ Lawrence Rosenberg
--------------------------------
Its: CHIEF FINANCIAL OFFICER
--------------------------
NBD BANK, N.A.,
as Agent
By: /s/ Carolann M. Morykwas
--------------------------------
Its: Vice President
--------------------------
SECOND AMENDMENT TO THE
PLEDGE AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO PLEDGE AND SECURITY AGREEMENT ("Agreement")
dated as of April 30, 1994, is made by and between Mayflower Mortgage
Corporation, d/b/a Republic Bancorp Mortgage Inc., a Michigan corporation
(the "Company"), and NBD Bank, N.A., a national banking association
("NBD"), as agent (in such capacity, "Agent") for the benefit of the banks
("Banks") who are parties from time to time to the Credit Agreement (as
such term is defined below).
Recitals
A. The Company, the Banks and the Agent are parties to a Warehousing
Credit Agreement, dated as of December 18, 1992, as amended by the First
Amendment to Warehousing Credit Agreement dated as of May 1, 1993, the
Second Amendment to Warehousing Credit Agreement dated as of December 17,
1993 and the Third Amendment to Warehousing Credit Agreement dated as of
March 31, 1994 (as so amended, the "Pledge and Security Agreement").
B. It is a condition precedent to the Banks' execution and delivery
of a proposed Fourth Amendment to Warehousing Credit Agreement to be dated
the date hereof that the Company shall have entered into this Agreement.
Therefore, the Company hereby agrees with the Agent as follows:
Article I. Amendment. The Pledge and Security Agreement is hereby
amended by the addition of the following subsection at the end of Section 4
thereof:
(a) A Gestation Loan shall be delivered to the Agent for pledge
under this Agreement by the delivery of the following described
documents to the Agent prior to the making of the related Advance by
the Agent on behalf of the Banks, which documents shall be delivered at
the same time and in the same manner as those instruments and documents
described under subsection 4(c) above are required to be delivered with
respect to such Pledged Mortgage (and for purposes of this Agreement,
the following described documents shall also be deemed "Mortgage Loan
Documents"):
(i) certification of the Company that such Pledged Mortgage
conforms to the definition of a Gestation Loan; and
(ii) evidence of the certification by the applicable Agent
(or its approved document custodian), in form and substance
reasonably satisfactory to the Agent, that such Pledged Mortgage
has been found to be eligible for inclusion in a pool of mortgage
loans intended to underlie, or underlying, one or more
mortgage-backed securities issued or guaranteed by such Agency
(with respect to
certificates from FHLMC, the parties agree that a copy of the
completed Form 939 from FHLMC shall satisfy this requirement with
regard to Gestation Loads underlying FHLMC mortgage-backed
securities).
Article II. Miscellaneous.
2.1 References in the Credit Agreement or in any other Loan Document
to the Pledge and Security Agreement shall be deemed to be references to
the Pledge and Security Agreement as amended hereby and as further amended
from time to time.
2.2 Except as expressly amended hereby, the Company agrees that the
Credit Agreement, the Pledge and Security Agreement, the other Loan
Documents and all other documents and agreements executed by the Company in
connection with the Credit Agreement in favor of the Agent and the Banks
are ratified and confirmed and shall remain in full force and effect and
the Company acknowledges and agrees that it has no setoff, counterclaim or
defense with respect to any of the foregoing. Terms used but not defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement or the Pledge and Security Agreement.
2.3 This Amendment may be signed upon any number of counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of April 30, 1994.
MAYFLOWER MORTGAGE CORPORATION,
d/b/a Republic Bancorp Mortgage Inc.
By: /s/ Lawrence Rosenberg
--------------------------------
Its: CHIEF FINANCIAL OFFICER
--------------------------
NBD BANK, N.A.,
as Agent
By: /s/ Carolann M. Morykwas
--------------------------------
Its: Vice President
--------------------------